Current through Register Vol. 24-18, September 15, 2024
(1)
Appeal of permits issued pursuant to WAC
173-400-110.
(a) Any conditions contained in an order of approval, or the
denial of a notice of construction application issued by the council pursuant
to the requirements of WAC
173-400-110 may be appealed as
provided in
chapter
34.05 RCW; provided that
any order, permit, conditions or denial issued pursuant to WAC
173-400-110 which becomes
effective upon final action of the governor according to
RCW 80.50.100 on an application for site
certification shall be subject to judicial review only pursuant to
RCW 80.50.140.
(b) The council shall promptly mail copies of each order
approving or denying a notice of construction application to the applicant and
to any other party who submitted timely comments on the notice of construction
application, along with a notice advising parties of their rights of
appeal.
(2)
Appeal of prevention of significant deterioration
permits issued pursuant to WAC
173-400-730.
(a) A PSD permit, any conditions contained in a PSD permit, or
the denial of a PSD permit by the council may be appealed as provided in
chapter
34.05 RCW; provided that a
PSD permit, any conditions contained in a PSD permit, or the denial of a PSD
permit which becomes effective upon final action of the governor according to
RCW 80.50.100 on an application for site
certification shall be subject to judicial review only pursuant to
RCW 80.50.140. Such an appeal, however, does not
stay the effective date of the permit as a matter of federal law.
(b) A PSD permit issued under the terms of a delegation
agreement between the EPA and the council can be appealed to the EPA's
environmental appeals board as provided in 40 C.F.R. 124.13 and 40 C.F.R. 124.19.
(3)
Appeal of operating permits issued pursuant to
chapter 173-401 WAC.
(a) A decision to issue or to deny a final permit, or the terms
or conditions of such a permit issued by the council pursuant to chapter
173-401 WAC, may be appealed as provided in
chapter
34.05 RCW, provided that a
decision to issue or to deny a final permit, or the terms or conditions of such
a permit issued pursuant to chapter 173-401 WAC which becomes effective upon
final action of the governor according to
RCW 80.50.100 on an application for site
certification, shall be subject to judicial review only pursuant to
RCW 80.50.140.
(b) The council shall identify any appealable decision or
determination as such and shall notify the recipient that the decision may be
appealed by filing an appeal pursuant to
chapter
34.05 RCW.
(c) The provision for appeal in this section is separate from
and additional to any federal rights to petition and review under section
505(b) of the
federal Clean Air Act, including petitions filed pursuant to 40 C.F.R. 70.8(c) and 70.8(d).
(d) Appealing parties. Parties that may file the appeal
referenced in subsection (4)(a) of this section include any person who
submitted comment in the public participation process pursuant to WAC
173-401-800.
(e) As provided in
RCW 34.05.570, a person may seek a writ of
mandamus in the event that the council fails to take final action on an
application for a permit, permit renewal, or permit revision within the
deadlines specified by WAC
173-401-700 through
173-401-725.
(4)
Appeal of acid rain permits issued pursuant to
chapter 173-406 WAC.
(a) Terms used in this subsection have the definitions given in
WAC 173-406-101.
(b) Appeals of the acid rain portion of an operating permit
issued by the council that do not challenge or involve decisions or actions of
the administrator under 40 C.F.R. parts 72, 73, 75, 77 and 78 and sections 407 and 410 of the act and regulations implementing sections 407 and 410 shall be
conducted according to the procedures in
chapter
34.05 RCW; provided that
appeals of the acid rain portion of an operating permit issued by the council
which becomes effective upon final action of the governor according to
RCW 80.50.100 on an application for site
certification shall be subject to judicial review only pursuant to
RCW 80.50.140.
(c) Appeals of the acid rain portion of such a permit that
challenge or involve such decisions or actions of the administrator shall
follow the procedures under 40 C.F.R. part 78 and section 307 of the act. Such
decisions or actions include, but are not limited to, allowance allocations,
determinations concerning alternative monitoring systems, and determinations of
whether a technology is a qualifying repowering technology.
(d) No administrative appeal or judicial appeal of the acid
rain portion of an operating permit shall be allowed more than thirty days
following respectively issuance of the acid rain portion that is subject to
administrative appeal or issuance of the final agency action subject to
judicial appeal.
(e) The administrator may intervene as a matter of right in any
state administrative appeal of an acid rain permit or denial of an acid rain
permit.
(f) No administrative appeal concerning an acid rain
requirement shall result in a stay of the following requirements:
(i) The allowance allocations for any year during which the
appeal proceeding is pending or is being conducted;
(ii) Any standard requirement under WAC
173-406-106;
(iii) The emissions monitoring and reporting requirements
applicable to the affected units at an affected source under 40 C.F.R. part
75;
(iv) Uncontested provisions of the decision on appeal;
and
(v) The terms of a certificate of representation submitted by a
designated representative under subpart B of 40 C.F.R. part 72.
(g) The council will serve written notice on the administrator
of any state administrative or judicial appeal concerning an acid rain
provision of any operating permit or denial of an acid rain portion of any
operating permit within thirty days of the filing of the appeal.
(h) The council will serve written notice on the administrator
of any determination or order in a state administrative or judicial proceeding
that interprets, modifies, voids, or otherwise relates to any portion of an
acid rain permit. Following any such determination or order, the administrator
will have an opportunity to review and veto the acid rain permit or revoke the
permit for cause in accordance with WAC
173-401-810 and
173-401-820.
(5) Appeals from notices of violation issued by the council
will be handled via the council's appellate review procedure as provided in WAC
463-70-070(4)(c).
Statutory Authority:
RCW 80.50.040(1) and (12).
06-06-037, §
463-78-140, filed 2/23/06, effective 3/26/06; 04-21-013,
recodified as §
463-78-140, filed 10/11/04, effective 11/11/04. Statutory
Authority:
RCW 80.50.040(1) and
chapter
70.94 RCW. 93-23-035,
§ 463-39-140, filed 11/10/93, effective
12/11/93.