62992 Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Rules and Regulations

1For the purpose of this action, ‘‘IEU’’ refers to

activities and emission units that are defined as

insignificant under WAC 173–401–200(16) and

173–401–530, when used in discussing

Washington’s program, and refers to the generic

concept under part 70, when used in discussing the

requirements of part 70.

Authority: 42 U.S.C. 7401 et seq.

2. Section 63.420 is amended by

adding paragraph (j) to read as follows:

§ 63.420 Applicability.

* * * * *

(j) Rules Stayed for Reconsideration.

Notwithstanding any other provision of

this subpart, the December 14, 1995

compliance date for existing facilities in

§ 63.424(e) and § 63.428(a), (i)(1), and

(j)(1) of this subpart is stayed from

December 8, 1995, to March 7, 1996.

[FR Doc. 95–29992 Filed 12–7–95; 8:45 am]

BILLING CODE 6560–50–M

40 CFR Part 70

[AD–FRL–5343–3]

Clean Air Act Final Interim Approval of

Operating Permits Program;

Washington

AGENCY: U.S. Environmental Protection

Agency (EPA).

ACTION: Final interim approval and

notice of correction.

SUMMARY: EPA is repromulgating final

interim approval of one element of the

State of Washington’s title V air

operating permits program. On

November 9, 1994, EPA granted interim

approval to Washington’s operating

permits program. 59 FR 55813

(November 9, 1994). One of the bases for

granting Washington’s program interim

rather than full approval was that EPA

determined that Washington’s

exemption for ‘‘insignificant emission

units’’ exceeded the exemption

authorized for such units under the

Clean Air Act. A coalition of industries

filed a petition for review of EPA’s

decision to condition full approval on

changes to Washington’s treatment of

insignificant emission units. Upon

EPA’s request for a voluntary remand,

the Court remanded this interim

approval issue to EPA for

reconsideration. EPA continues to

believe that Washington has

impermissibly expanded the exemption

for insignificant emission units and

therefore again conditions full approval

of the Washington operating permits

program on changes to Washington’s

treatment of insignificant emission

units.

EPA is also approving a change to the

jurisdiction of the Benton County Clean

Air Authority.

Finally, EPA is correcting the date for

expiration of the interim approval and

the due date of the required submission

addressing the interim approval issues.

EFFECTIVE DATE: January 8, 1996.

ADDRESSES: Copies of Washington’s

submittal and other supporting

information used in developing this

action are available for inspection

during normal business hours at the

address indicated.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Waddell, 1200 Sixth Avenue,

Seattle, Washington 98101.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the 1990

Clean Air Act Amendments (sections

501–507 of the Clean Air Act (‘‘the

Act’’)), EPA has promulgated rules

which define the minimum elements of

an approvable State operating permits

program and the corresponding

standards and procedures by which the

EPA will approve, oversee, and

withdraw approval of State operating

permits programs (see 57 FR 32250 (July

21, 1992)). These rules are codified at 40

Code of Federal Regulations (CFR) Part

70. Title V requires States to develop,

and submit to EPA, programs for issuing

these operating permits to all major

stationary sources and to certain other

sources.

The Act requires that States develop

and submit these programs to EPA by

November 15, 1993, and that EPA act to

approve or disapprove each program

within 1 year after receiving the

submittal. EPA’s program review occurs

pursuant to section 502 of the Act and

the part 70 regulations, which together

outline criteria for approval or

disapproval. Where a program

substantially, but not fully, meets the

requirements of part 70, EPA may grant

the program interim approval for a

period of up to 2 years. If EPA has not

fully approved a program by 2 years

after the November 15, 1993 date, or by

the end of an interim program, it must

establish and implement a Federal

program.

B. Previous Action on Washington’s

Program

Washington submitted its operating

permits program to EPA in November

1993. In November 1994, EPA granted

interim approval to Washington’s

program and conditioned full approval

on, among other things, revisions to

Washington’s regulations pertaining to

the treatment of insignificant emission

units (IEUs).1 See 59 FR 55813

(November 9, 1994). On January 9, 1995,

the Western States Petroleum

Association, Northwest Pulp & Paper

Association, Aluminum Company of

America, Columbia Aluminum

Corporation, Intalco Aluminum

Corporation, Kaiser Aluminum &

Chemical Corporation and Vanalco Inc.

(collectively, ‘‘Petitioners’’) filed a

petition with the United States Court of

Appeals for the Ninth Circuit seeking

review of the conditions in EPA’s final

interim approval of Washington’s

operating permits program. Western

States Petroleum Association, et al. v.

EPA, et al., No. 95–70034 (9th Cir., Jan.

6, 1995). In their petition and

subsequent brief, Petitioners claimed

that EPA had exceeded its authority in

requiring Washington to revise its IEU

rules as a condition of full approval and

that this condition was arbitrary,

capricious, an abuse of discretion, and

not otherwise in accordance with the

law. Petitioners’ brief clarified that

Petitioners were challenging only EPA’s

requirement that Washington revise its

IEU rules to obtain full approval and did

not challenge any of the four other

conditions for full approval. The State

of Washington filed a brief as intervenor

in the matter.

In reviewing the issue, EPA

determined that the Petitioners and the

State of Washington had raised a

substantial question concerning EPA’s

interpretation of the IEU provisions of

part 70 and the specific regulatory

revisions EPA had ordered the State to

make to its IEU rules as a condition of

full approval. EPA therefore moved the

Court on May 23, 1995, to vacate and

remand to EPA those portions of EPA’s

final interim approval of Washington’s

operating permits program concerning

IEUs. The Court granted EPA’s motion

on July 7, 1995.

Following the Court’s order, EPA

again reviewed the part 70 regulations

and Washington’s IEU provisions and,

on September 28, 1995, again proposed

interim approval of the State’s program

(60 FR 50166). EPA explained in the

proposal that EPA continued to believe

that Washington’s IEU provisions did

not comport with the requirements of

part 70 with respect to permit content

because the State’s regulations expressly

excluded IEUs subject to generally

applicable requirements of the

Washington State Implementation Plan

(SIP) from all the requirements of 40

CFR 70.6, except for the requirement to

include in the permit all applicable

requirements. EPA also expressed its

concern that the State’s definition of
Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Rules and Regulations 62993

2This includes the requirement to include

‘‘gapfilling’’ testing, monitoring, recordkeeping and

reporting requirements for IEUs, as required by 40

CFR 70.6(a)(3)(i), (ii) and (iii); compliance

certification, testing, monitoring, reporting and

recordkeeping requirements sufficient to assure

compliance with the generally applicable

requirements for subject IEUs, as required by 40

CFR 70.6(c)(1); compliance certification for IEUs, as

required by 40 CFR 70.6(c)(5); and, for IEUs not in

compliance, a compliance schedule and progress

reports, as required by 40 CFR 70.6(c)(3) and (4).

IEU excluded, perhaps unintentionally,

IEUs from certain permit application

requirements that apply to IEUs and

possibly from even title V applicability

determinations.

During the public comment period on

the September 1995 proposal, EPA

received comments from the Petitioners,

the State of Washington, Department of

Ecology (‘‘State’’ or ‘‘Ecology’’), and the

Boeing Corporation, an aerospace

manufacturing concern with major

operations in Washington State

(collectively, the ‘‘commenters’’). The

commenters addressed only EPA’s

proposed interim approval of the

Washington IEU program. No comments

were received regarding the change in

jurisdiction of Benton County Clean Air

Authority or the correction of the

expiration date for interim approval.

EPA has carefully reviewed the

comments and continues to believe that

the Washington IEU program must be

revised as a condition of full approval.

As discussed in more detail below, EPA

grants deference to the State’s

interpretation of its IEU regulations, and

is therefore satisfied, based on the

State’s interpretation, that the State’s

IEU regulations meet the requirements

of part 70 with respect to permit

applications and title V applicability.

The problems with the permit content

requirements of section 70.6 which EPA

addressed in the September 1995

proposal, however, arise not from a

difference of opinion as to the

interpretation of Washington’s

regulations, but instead from a

difference of opinion as to the plain

meaning and intent of the part 70

regulations themselves. EPA continues

to believe that part 70 does not exempt

IEUs subject to applicable requirements

from the testing, monitoring,

recordkeeping, reporting, compliance,

and compliance certification

requirements of 40 CFR 70.6(a)(1), (a)(3)

and (c). Because Washington’s title V

program expressly excludes IEUs

subject to generally applicable

requirements from these requirements of

section 70.6, EPA continues to believe

that the Washington IEU regulations do

not qualify for full approval.

II. Final Action and Implications

A. Response to Comments

As discussed above, the comments

addressed only EPA’s proposed interim

approval of Washington’s IEU

regulations.

1. Permit Content

As the State of Washington and

Petitioners concede, the Washington

program expressly exempts IEUs subject

to generally applicable requirements

from the testing, monitoring,

recordkeeping, reporting, compliance,

and compliance certification

requirements of section 70.6.2 See WAC

173–401–200(16), 173–401–530(2)(c)

and 173–401–530(2)(d). Instead, for

IEUs subject to generally applicable

requirements of the Washington SIP, the

Washington program requires only that

the permit contain the generally

applicable requirements that apply to

such IEUs. WAC 173–401–530(2)(b).

The commenters argue that the language

and intent of the part 70 regulations

allow such an exemption from the

permit content requirements of section

70.6 for IEUs. EPA disagrees.

The commenters acknowledge that

there is no reference in 40 CFR 70.6 to

IEUs. They argue, however, that this fact

‘‘in no way undermines the authority

granted to states in section 70.5 to

exempt insignificant emission units

from permit program requirements.’’

Section 70.5, however, does not exempt

IEUs from ‘‘permit program

requirements’’ in general, but instead

exempts IEUs only from certain permit

application requirements. There is

nothing in the language of section 70.5

or elsewhere in the part 70 regulations

to support the commenters’ argument

that, because a State may exempt IEUs

from certain permit application

requirements in section 70.5, a State

may also exempt IEUs from certain

permit content requirements in section

70.6.

The commenters’ reliance on EPA’s

inherent power to exempt emission

units with de minimis emissions from

certain permit content requirements is

also misplaced. EPA did indeed rely on

Alabama Power Co. v. Costle, 636 F.2d

323 (D.C. Cir. 1980), to exempt IEUs

from certain permit application

requirements in section 70.5. See 57 FR

32250, 32273 (July 21, 1992). Whether

EPA could have relied on this same

authority to exempt IEUs from certain

permit content requirements in section

70.6, however, is irrelevant at this point.

As stated above, nothing in the language

of the part 70 regulations themselves or

in the preamble to the proposed or final

part 70 regulations supports the

commenters’ argument that the limited

exemption in certain permit application

requirements in section 70.5 also

extends to the permit content

requirements of section 70.6. The

commenters’ concern appears to be with

the part 70 regulations themselves, that

is, the failure of the part 70 regulations

to exempt IEUs subject to applicable

requirements from certain permit

content requirements of section 70.6.

The time for raising such an issue has

long since past.

Unable to point to any language in the

part 70 regulations supporting their

interpretation, the commenters rely on

‘‘logic.’’ The commenters first argue that

‘‘it is entirely illogical for EPA to

specifically exempt these IEUs from the

application and then attempt to regulate

these same IEUs in the final permit.’’

The commenters go on to state that

EPA’s decision undermines the broad

purpose of part 70’s IEU program

exemption. The commenters appear to

misunderstand the purpose and scope of

the part 70 program for insignificant

emissions units and activities. In

promulgating section 70.5(c), EPA

crafted a limited exemption regarding

the information required in part 70

permit applications. Notwithstanding

this general exemption from certain

permit application requirements,

section 70.5(c) requires that an

application ‘‘may not omit information

needed to determine the applicability

of, or to impose, any applicable

requirement.’’ This means that when

information is needed in an application

to determine whether substantive

requirements apply to an IEU, even this

limited exemption to the permit

application requirements provided in

section 70.5 falls away.

In a similar vein is the comment that

not allowing IEU’s to be exempted from

permit content requirements

‘‘essentially obliterates the exemption.’’

EPA disagrees. An emission unit that is

not exempted from the application must

be addressed in accordance with section

70.5(c)(3), which among other things

requires a physical description of the

emissions points, information about the

emissions, raw materials and

production rate, and any air pollution

control equipment. EPA therefore sees

no basis for the argument that extension

of the IEU exemption to the permit

content requirements of section 70.6 is

necessary in order to give meaning to

the IEU exemption.

The commenters also argue that ‘‘If

insignificant emission units are not

entirely exempted from the monitoring,

recordkeeping, reporting and

certification requirements of a permit,

both sources and permitting agencies

will be forced to expend substantial
62994 Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Rules and Regulations

3Oregon’s IEU provisions received full approval

when EPA granted the Oregon title V program final

interim approval, see 59 FR 61820 (December 2,

1994), and the entire Oregon title V program has

now received final full approval. See 60 FR 50106

(September 28, 1995).

resources without compensating

environmental benefit.’’ As an initial

matter, EPA again points out that this

concern challenges the part 70

regulations themselves and should have

been raised following final

promulgation of the part 70 regulations.

Such concerns are untimely when

raised in the context of EPA’s action on

Washington’s title V program. In any

event, EPA disagrees that applying the

testing monitoring, recordkeeping,

reporting, and compliance certification

requirements of section 70.6 to IEUs

with applicable requirements will be

unduly burdensome or result in no

compensating environmental benefit.

The commenters imply that requiring

the provisions of section 70.6 to be met

with respect to IEUs subject to

applicable requirements will result in

unnecessary paperwork. As EPA

discussed in its September 1995

proposal on this action, part 70 allows

States flexibility in tailoring the amount

and quality of information required in

the permit application, and the rigor of

compliance requirements in the permit,

to the type of emission unit and

applicable requirement in question. See

60 FR 50170; See also White Paper for

Streamlined Development of Part 70

Permit Applications, from Lydia

Wegman, Deputy Director of EPA’s

Office of Air Quality Planning and

Standards, to EPA Regional Air

Directors (July 10, 1995). The

requirement to include in a permit

testing, monitoring, recordkeeping,

reporting, and compliance certification

sufficient to assure compliance with the

terms and conditions of the permit does

not require the permit to impose the

same level of rigor with respect to

emission units that do not require

extensive testing or monitoring in order

to assure compliance with the

applicable requirements as it does with

respect to emission units that do require

extensive testing or monitoring because

of their potential to violate emission

limitations or other requirements under

normal operating conditions. As

provided for in 40 CFR 70.6(a)(3)(B),

recordkeeping may be used to provide

reliable data that are representative of

the source’s compliance with the

permit. For example, records showing

the use of natural gas as the fuel for

combustion sources would, in most

cases, provide reliable data for a

certification of compliance with sulfur

dioxide emission limits.

The burden of ensuring that a permit

meets the requirements of section 70.6

can also be significantly minimized by

using standard permit terms to address

testing, monitoring, recordkeeping,

reporting, compliance and compliance

certification requirements for common

generally applicable requirements that

apply to IEUs. Permits could, for

example, contain a chart summarizing

the monitoring, recordkeeping, and

reporting requirements that would form

the basis for compliance certifications

for the generally applicable

requirements for IEUs.

In the September 1995 proposal on

this action, EPA pointed to the Oregon

operating permits program as an

example of a program that had

effectively implemented the

requirements of section 70.6 for IEUs.

The Oregon program received interim

approval effective January 3, 1995, (59

FR 61820 (December 2, 1994)),3 one

month after Washington’s program first

received final interim approval. Since

that time, Oregon permitting authorities

have received complete title V permit

applications from over 86 sources, have

issued 12 final title V permits and have

submitted to EPA an additional 5

proposed title V permits. As discussed

in the September 1995 proposal on this

action, Oregon has used standard permit

terms in its title V permits to address

generally applicable requirements for

IEUs as well as the associated testing,

monitoring, recordkeeping, reporting,

compliance, and compliance

certification requirements for such IEUs.

See 60 FR 50170–50171. Based on EPA’s

review of public comments on the 5

proposed and 12 final permits issued to

date, Oregon sources have not objected

to the permit terms relating to IEUs.

EPA is committed to issuing

additional guidance to aid State and

local permitting authorities in drafting

permits which comply with the permit

content requirements of section 70.6.

EPA intends to issue such guidance

with respect to IEUs with applicable

requirements within the next several

months. This guidance will address

such things as streamlining the permit

by using general conditions which

apply to categories of IEUs; appropriate

monitoring, recordkeeping and

reporting requirements for IEUs; and the

appropriate level of information (i.e.,

reasonable inquiry) upon which

compliance certifications would be

based.

One commenter on the Washington

title V program has stated, without any

substantiation, that ‘‘a comparison of

title V applications for similar sources

in the two states reveals that Oregon

applications were several times larger

than those prepared in Washington,

with the difference attributable to

emissions units making up one or two

percent of the source’s total emissions.’’

Although EPA has to date received only

16 permit applications from title V

sources in Washington, a comparison of

five Washington title V applications to

Oregon title V applications for sources

with the same SIC codes does not

substantiate the commenter’s claim.

Although the Oregon permit

applications that EPA reviewed were

generally one-and-one-half times larger

than their Washington counterparts, two

of the five Washington applications

contained more pages addressing IEUs

and facility-wide applicable

requirements than did their Oregon

counterparts and one had the same

number of pages. More importantly,

none of these 10 permit applications for

Washington and Oregon contained any

significant number of pages addressing

IEUs. The IEU-related portions of the

Oregon applications ranged from 5 to 25

pages and the IEU-related portions of

the Washington applications ranged

from 3 to 19 pages. As indicated by the

sample Oregon permit which was

included in the docket for the proposal

on this action, and the accompanying

application for the permit which EPA

has added to the docket, only 8 of the

165 pages of the permit application are

devoted to IEUs, which includes three

pages of checklists for categorically

exempt IEUs, one page of brief

descriptions/equations addressing

aggregate insignificant IEUs, two pages

listing facility-wide applicable

requirements, and two pages listing

compliance methods for the facilitywide applicable requirements. Note as

well that not even two of the 27 pages

of the Oregon permit for this source are

devoted to IEUs. Any difference in the

size of Oregon and Washington title V

permit applications appears to be

attributable to the difference in the

forms required to be submitted for

emission units other than IEUs and

other differences in the Oregon and

Washington air programs, such as the

unique plant site emissions limit (PSEL)

provisions of Oregon’s rules. In short,

Oregon permitting authorities and

sources do not appear to be awash in the

avalanche of paperwork for IEUs

predicted by the commenters.

EPA also vigorously disagrees that

requiring permits to address the testing,

monitoring, reporting, recordkeeping,

compliance, and compliance

certification requirements of section

70.6 for IEUs will have little or no

environmental benefit. For example, the

Washington IEU program lists ‘‘vents
Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Rules and Regulations 62995

4The Wisconsin program does not specifically

contain this requirement. As EPA clarified in its

technical support document supporting EPA’s

approval of the Wisconsin program, however,

because the State very narrowly defined IEUs and

required that all IEUs be listed in the application,

the Wisconsin program met the requirements of

section 70.5(c).

from rooms, buildings and enclosures

that contain permitted emissions units

or activities from which local

ventilation, controls and separate

exhaust are provided’’ as ‘‘categorically

exempt’’ IEUs if they are subject to no

applicable requirements other than the

generally applicable requirements of the

Washington SIP. WAC 173–401–532(9)

and 173–401–530(2)(a). EPA has

received a title V application from one

Washington facility which lists ‘‘furnace

building roof monitor and other vents,

doorways’’ as collectively emitting 922

tons of particulate per year. The

application also indicates that these

emission points are subject only to the

generally applicable opacity limit (WAC

173–400–040(1)), grain loading standard

(WAC 173–400–060), and sulfur dioxide

standard (WAC 173–400–040(6)) in the

Washington SIP. Based on the

description provided in the application,

EPA believes that these emission units

would qualify as IEUs under WAC 173–

401–532(9) and 173–401–530(2)(a). The

application indicates that these

emissions units are not in compliance

with the State’s opacity limit.

Washington’s current regulations would

require that the title V permit for this

source contain the generally applicable

requirements that apply to these IEUs,

but would exempt them from any other

requirements of section 70.6, including

the requirement to submit an annual

compliance certification. The

environmental benefit of requiring the

title V permit for such a source to

include an appropriate level of testing,

monitoring, recordkeeping, and

reporting, and to require annual

certification of the compliance status of

these IEUs, should be obvious.

Requiring IEUs to be addressed in the

permit puts the burden on sources to

ensure that they are in compliance with

the applicable requirements, rather than

on permitting authorities to document

that such sources are out of compliance.

This shift in responsibility for ensuring

compliance is one of the major

objectives of the title V program.

The commenters final comment on

the permit content issue is that, in

finding that Washington’s IEU

regulations fail to meet the permit

content requirements of section 70.6,

EPA is holding the Washington program

to a different standard than the agency

has applied to other States. The

commenters can point to no instance,

however, in which EPA has given

approval to an IEU program which

expressly exempts IEUs from some or all

permit content requirements, as does

the Washington program. Instead, the

commenters’ argument appears to be

that EPA has approved State programs

that exempt or require only the

summary listing of IEUs in permit

applications and that, ‘‘Because the

[IEU] units are not listed in the permit

application there is a clear inference to

sources, and the tacit understanding by

the permitting agencies that IEUs are not

included in the operating permit.’’ This

is not the case.

EPA has approved State title V

programs that exempt or allow sources

to omit IEUs from or merely list IEUs in

the permit application, but only if the

States have shown to EPA’s satisfaction

that their programs meet the two

minimum requirements of section

70.5(c) for the treatment of IEUs in

permit applications. First, insignificant

activities which are exempt because of

size or production rate must be listed in

the permit application. Second, the

permit application may not omit

information needed to determine the

applicability of, or to impose, any

applicable requirement or any required

fee.4 EPA also required the State of

Washington to satisfy these

requirements as a condition of full

approval of its IEU provisions and, as

discussed below, EPA now finds that

Washington has satisfied these

requirements for permit applications.

But, contrary to the commenters’

assertion, EPA has also required, as a

condition for full approval of a State’s

IEU program, that the State ensure that

permits issued for such sources comply

with the requirements of section 70.6

with respect to all IEUs subject to

applicable requirements. EPA disagrees

with the inference drawn by the

commenters, namely, that other State

programs might be interpreted to

exempt IEU’s from permit content

requirements because the State

programs have provided sources relief

from certain permit application

requirements. Such an inference is not

reasonable or appropriate given the fact

that there is no language in the State

program regulations cited by the

commenters which contain or suggest

an exemption from the permit content

requirements and given the fact that the

federal regulation under which the State

programs have been approved does not

allow for this result. Indeed, for obvious

reasons, EPA’s approval of these

programs has been based on the

assumption that State program

regulations will be interpreted in the

same way that EPA has interpreted part

70. That is, where the State program

does not specifically exempt IEU’s from

permit content requirements, EPA has

assumed that no such exemption will be

inferred. Where EPA has been

concerned that a State program could be

interpreted to provide an exemption

from permit content requirements for

IEUs subject to applicable requirements,

EPA has clarified its expectation in the

Federal Register notice acting on such

programs that the permitting authorities

must ensure that all permits issued

‘‘assure compliance with all applicable

requirements at the time of permit

issuance.’’ See 60 FR 32603, 32608 (June

23, 1995); 60 FR 44799, 44801 (August

29, 1995). If, during implementation of

such programs, permits are issued

which do not comply with the

requirements of section 70.6 with

respect to IEUs subject to applicable

requirements, EPA would consider this

grounds for objecting to individual

permits, 40 CFR 70.8(c)(1), as well as

grounds for withdrawing approval of

such State programs, 40 CFR

70.10(c)(1)(ii)(B).

In summary, the commenters can

point to no instance in which EPA has

approved a State program which

expressly exempts IEUs with applicable

requirements from the permit content

requirements of section 70.6. Moreover,

the commenters can point to no action

on the part of EPA which has expressly

or implicitly condoned a tacit

exemption from the permit content

requirements for such IEUs. EPA’s

decision to grant interim rather than full

approval to the Washington IEU

regulations for failing to comply with

the requirements of section 70.6 is fully

consistent with EPA’s actions on other

State IEU programs.

2. Permit Application Requirements

The commenters also objected to

EPA’s proposed finding that the

Washington regulations fail to meet the

requirements of section 70.5 for permit

applications with respect to IEUs. The

basis of EPA’s position was that WAC

173–401–200(16) appears to specifically

exempt activities and units deemed

insignificant under WAC 173–401–530

from all of Washington’s permit

program requirements, except as

provided in WAC 173–401–530. WAC

173–401–530, however, does not

include all of the requirements of

section 70.5 which a State must meet

with respect to IEUs, most importantly,

the requirement of section 70.5(c) that a

permit application may not omit

information needed to determine the

applicability or to impose any
62996 Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Rules and Regulations

5Although, in the September 1995 proposal on

this action, EPA did not specifically discuss the

applicable requirements gatekeeper as one of the

examples where the Washington program fails to

satisfy the requirements of part 70 with respect to

permit applications, the opening sentence of the

discussion in the proposal on permit applications

clearly expressed EPA’s concern that the exemption

in WAC 173–401–200(16) appeared to extend to the

gatekeeper itself, which is contained in WAC 173–

401–510(1). See 60 FR 50169.

applicable requirement or to evaluate

any required fee (the ‘‘applicable

requirements gatekeeper’’).5 WAC 173–

401–530 also does not incorporate the

requirement that all applications be

certified as to truth, accuracy and

completeness, which is contained in

WAC 173–401–500(7)(c) and 173–401–

520. Another problem noted by EPA

was the fact that WAC 173–401–500(7)

could be interpreted as allowing a

permit application to be deemed

complete even if the source had not

provided the information in the permit

application required by Washington’s

regulations for IEUs.

The commenters, including the State

of Washington, responded that EPA was

taking an overly broad interpretation of

the exclusion contained in WAC 173–

401–200(16), thereby giving other

provisions of Washington’s IEU

regulations no effect. Upon further

review and based on the State’s

interpretation of its regulations, EPA

finds that the Washington IEU

provisions meet the requirements of

section 70.5(c).

The definition of IEU at WAC 173–

401–200(16) does appear to exclude

IEUs from all requirements except those

contained in WAC 173–401–530.

Certain other requirements of

Washington’s regulations for title V

permit applications, however,

specifically refer to IEUs. Importantly,

WAC 173–401–510, which sets forth the

permit application requirements for all

sources in Washington, specifically

refers to IEUs by stating:

Information as described below for each

emissions unit at a chapter 401 source other

than insignificant emissions units shall be

included in the application. However, an

application may not omit information need to

determine the applicability of, or to impose,

any applicable requirement or to evaluate the

fee amount required under the permitting

authority’s schedule.

WAC 173–401–510(1). The State has

argued that this provision would be

nullified if WAC 173–401–200(16) was

interpreted to exempt IEUs from those

provisions outside of WAC 173–401–

530 that specifically refer to IEUs, such

as 173–401–510(1). The State has

assured EPA that this was not its intent.

Instead, the State has stated that the

‘‘applicable requirements gatekeeper’’ of

WAC 173–401–510(1) was specifically

included to limit the statements in WAC

173–401–200(16) and 173–401–510(1)

that IEUs are not subject to the permit

program requirements, including the

application requirements, except as

provided by WAC 173–401–530.

In response to the EPA’s concern with

respect to the requirement to certify the

truth, accuracy and completeness of the

permit application, the commenters

state that ‘‘Statements in a Washington

operating permit application, including

those regarding IEUs made in

accordance with WAC 173–401–530, are

plainly subject to the certification

requirements of WAC 173–401–

500(7)(c).’’ The State further argues that

the State’s standard permit application

form requires certification of all

information in the application and that

if a source attempted to limit its

certification with respect to IEUs, the

State would view the application

incomplete.

In response to EPA’s concern that the

criteria for determining completeness in

WAC 173–401–500(7) could be

interpreted to allow an application to be

deemed complete even if it omits all

required information on IEUs, the

commenters again point out that the

specific provisions in WAC 173–401–

510(1) and –500(4) require an

application to include necessary

information regarding IEUs to be

complete and that interpreting WAC

173–401–200(16) to vitiate those

provisions would render the specific

references to IEUs in WAC 173–401–500

and 173–401–510 meaningless.

Although EPA believes the

interrelationship among the various

provisions in Washington’s regulations

for IEUs is far from clear, EPA is willing

to grant deference to the State’s

interpretation of its own rules.

Accordingly, EPA now finds that

Washington’s program fully meets the

requirements of 40 CFR 70.5 regarding

permit applications. Because the State

will need to revise its title V rules to get

full title V approval, EPA strongly

encourages the State to revise its IEU

provisions to clarify the relationship

among WAC 173–401–200(16), 173–

401–500, 173–401–510, 173–401–520

and 173–401–530. EPA will also pay

close attention during program

implementation to permit applications

and proposed permits to ensure that the

Washington rules are implemented

consistently with the State’s assertions.

3. Applicability Determinations

A final concern raised by EPA was

that State law could be interpreted so as

to exclude emissions from IEUs in the

calculation of a source’s potential to

emit for purposes of determining

whether the source was a major source

and thereby subject to Washington’s

title V program in the first instance.

Again, EPA’s concern hinged on the

extent of the exemption in WAC 173–

401–200(16). The commenters

responded by pointing out that the

definition of ‘‘insignificant activity’’ or

‘‘insignificant emission unit’’ requires

the unit or activity to be ‘‘located at a

chapter 401 source’’ before it can qualify

as insignificant and thus be exempted

from certain permit program

requirements. The commenters argue

that this requires that a source first be

determined to be a major source before

any emission unit can be deemed

insignificant, thus requiring all

emissions, including emissions from

IEUs, to be considered when

determining if a source is a major

source.

Again, EPA is willing to grant

deference to the State’s interpretation of

its own rules and finds that this

provision complies with the

requirements of 40 CFR Part 70. EPA

will also pay close attention to

applicability determinations during

program implementation to ensure that

the Washington rules are implemented

consistently with the State’s assertions.

B. Interim Approval Action

EPA is promulgating interim approval

of Washington’s regulations addressing

IEUs. Ecology must make the following

revisions to its IEU provisions as a

condition of full approval:

(5) Revise WAC 173–401–200(16)

(Definition of ‘‘insignificant activity’’ and

‘‘insignificant emissions unit’’); WAC 173–

401–530 (Insignificant emission units); WAC

173–401–532 (Categorically exempt

insignificant emission units); and WAC 173–

401–533 (Units and activities defined as

insignificant based on size or production

rate) to ensure that permits contain all

applicable requirements and meet all permit

content requirements of 40 CFR 70.6 for all

emission units, even for IEUs.

This requirement replaces Condition

5 under the heading ‘‘Ecology’’ in

section II.B. of EPA’s November 9, 1994,

Federal Register notice granting final

interim approval of the Washington

operating permits program. See 59 FR

55818. Note that this action in no way

affects the changes necessary to address

all other interim approval issues

identified in the November 9, 1994

Federal Register notice. In other words,

as a condition of full approval,

Washington must also correct the four

other deficiencies in its program

identified in the November 9, 1994,

notice and the other Washington

permitting authorities must correct all
Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Rules and Regulations 62997

deficiencies in their respective programs

identified in the November 9, 1994,

notice. See 59 FR 55818–55819.

EPA is also approving as a program

revision the transfer of title V permitting

and enforcement authority for sources

in Franklin County to the Washington

Department of Ecology.

Finally, EPA is correcting the dates in

40 CFR Part 70, Appendix A for

expiration of the interim approval of the

Washington State and local operating

permits programs from November 9,

1996, to December 9, 1996, and is

correcting the date by which the State

is required to submit a corrective

program from May 9, 1996, to June 9,

1996.

C. Effective Date of Interim Approval

This action does not change the time

period for the initial interim approval,

which is December 9, 1996. During this

ongoing interim approval period, the

State is protected from sanctions for

failure to have a program, and EPA is

not obligated to promulgate, administer

and enforce a Federal permits program

for the State of Washington. Permits

issued under the Washington program

have full standing with respect to part

70. In addition, the 1-year deadline for

submittal of permit applications by

subject sources and the 3-year time

period for processing the initial permit

applications began upon the effective

date of interim approval, which in this

case was December 9, 1994.

If the State of Washington were to fail

to submit a complete corrective program

for full approval by the date 6 months

before expiration of the interim

approval (by June 9, 1996) EPA would

start an 18-month clock for mandatory

sanctions. If the State of Washington

were then to fail to submit a complete

corrective program before the expiration

of that 18-month period, EPA would be

required to apply one of the sanctions

in section 179(b) of the Act, which

would remain in effect until EPA

determined that the State of Washington

had corrected the deficiency by

submitting a complete corrective

program. Moreover, if the Administrator

were to find a lack of good faith on the

part of the State of Washington both

sanctions under section 179(b) would

apply after the expiration of the 18-

month period until the Administrator

determined that the State of Washington

had come into compliance. In any case,

if, 6 months after application of the first

sanction, the State of Washington still

had not submitted a corrective program

that EPA found complete, a second

sanction would be required.

If, following expiration of final

interim approval, EPA were to

disapprove the State of Washington’s

complete corrective program, EPA

would be required to apply one of the

section 179(b) sanctions on the date 18

months after the effective date of the

disapproval, unless prior to that date the

State or Washington had submitted a

revised program and EPA had

determined that it corrected the

deficiencies that prompted the

disapproval. Moreover, if the

Administrator found a lack of good faith

on the part of the State of Washington

both sanctions under section 179(b)

would apply after the expiration of the

18-month period until the

Administrator determined that the State

of Washington had come into

compliance. In all cases, if, 6 months

after EPA applied the first sanction, the

State of Washington had not submitted

a revised program that EPA had

determined corrected the deficiencies

that prompted disapproval, a second

sanction would be required.

In addition, discretionary sanctions

may be applied where warranted any

time after the end of an interim approval

period if a State has not timely

submitted a complete corrective

program or EPA has disapproved a

submitted corrective program.

Moreover, if EPA has not granted full

approval to a State program by the

expiration of an interim approval and

that expiration occurs after November

15, 1995, EPA must promulgate,

administer and enforce a Federal

permit’s program for that State upon

expiration of interim approval.

III. Administrative Requirements

A. Docket

Copies of the State’s submittal and

other information relied upon for this

action are contained in a docket

maintained at the EPA Regional Office.

The docket is an organized and

complete file of all the information

submitted to, or otherwise considered

by, EPA in the development of this final

interim approval. The docket is

available for public inspection at the

location listed under the ADDRESSES

section of this document.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

EPA’s actions under section 502 of the

Act do not create any new requirements,

but simply address operating permits

programs submitted to satisfy the

requirements of 40 CFR part 70. Because

this proposed action does not impose

any new requirements, it does not have

a significant impact on a substantial

number of small entities.

D. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the action

proposed today does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new Federal requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

List of Subjects in 40 CFR Part 70

Environmental protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Operating permits, Reporting

and recordkeeping requirements.

Authority: 42 U.S.C. sections 7401–7671q.

Final Interim Approval of the part 70

operating permits program for the

Washington Department of Ecology, the

Washington Energy Facility Site

Evaluation Council, the Benton County

Clean Air Authority, the Northwest Air

Pollution Authority, the Olympic Air

Pollution Control Authority, the Puget

Sound Air Pollution Control Agency,

the Spokane County Air Pollution

Control Authority, the Southwest Air

Pollution Control Authority, and the

Yakima County Clean Air Authority.

Dated: November 15, 1995.

Chuck Clarke,

Regional Administrator.

PART 70—[AMENDED]

Part 70, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:
62998 Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Rules and Regulations

1. The authority citation for part 70

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Part 70 is amended by revising the

Washington paragraph of Appendix A

as follows:

Appendix A—Approval Status of State

and Local Operating Permits Programs

* * * * *

Washington

(a) Department of Ecology (Ecology):

submitted on November 1, 1993; effective on

December 9, 1994; interim approval expires

December 9, 1996.

(b) Energy Facility Site Evaluation Council

(EFSEC): submitted on November 1, 1993;

effective on December 9, 1994; interim

approval expires December 9, 1996.

(c) Benton County Clean Air Authority

(BCCAA): submitted on November 1, 1993

and amended on September 29, 1994 and

April 12, 1995; effective on December 9,

1994; interim approval expires December 9,

1996.

(d) Northwest Air Pollution Authority

(NWAPA): submitted on November 1, 1993;

effective on December 9, 1994; interim

approval expires December 9, 1996.

(e) Olympic Air Pollution Control

Authority (OAPCA): submitted on November

1, 1993; effective on December 9, 1994;

interim approval expires December 9, 1996.

(f) Puget Sound Air Pollution Control

Agency (PSAPCA): submitted on November

1, 1993; effective on December 9, 1994;

interim approval expires December 9, 1996.

(g) Southwest Air Pollution Control

Authority (SWAPCA): submitted on

November 1, 1993; effective on December 9,

1994; interim approval expires December 9,

1996.

(h) Spokane County Air Pollution Control

Authority (SCAPCA): submitted on

November 1, 1993; effective on December 9,

1994; interim approval expires December 9,

1996.

(i) Yakima County Clean Air Authority

(YCCAA): submitted on November 1, 1993

and amended on September 29, 1994;

effective on December 9, 1994; interim

approval expires December 9, 1996.

* * * * *

[FR Doc. 95–29994 Filed 12–7–95; 8:45 am]

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