[Federal Register Volume 78, Number 55 (Thursday, March 21, 2013)]
[Proposed Rules]
[Pages 17304-17313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06309]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2011-0884, FRL- 9791-7]
Approval and Promulgation of Implementation Plans; Oregon:
Infrastructure Requirements for the 1997 and 2006 Fine Particulate
Matter and 2008 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to approve the State Implementation Plan
(SIP) submittals from the State of Oregon to demonstrate that the SIP
meets the infrastructure requirements of the Clean Air Act (CAA) for
the National Ambient Air Quality Standards (NAAQS) promulgated for fine
particulate matter (PM2.5) on July 18, 1997 and October 17,
2006, and for ozone on March 12, 2008. The EPA is proposing to find
that the Federally-approved provisions currently in the Oregon SIP meet
the CAA infrastructure requirements for the 1997 PM2.5, 2006
PM2.5, and the 2008 ozone NAAQS. The EPA is also proposing
to find that the Federally-approved provisions currently in the Oregon
SIP meet the interstate transport requirements of the CAA related to
prevention of significant deterioration for the 2008 ozone NAAQS, and
related to visibility for the 2006 PM2.5 and 2008 ozone
NAAQS. This action does not propose to approve any additional
provisions into the Oregon SIP but is a proposed finding that the
current provisions of the Oregon SIP are adequate to satisfy the above-
mentioned infrastructure elements required by the CAA.
DATES: Comments must be received on or before April 22, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2011-0884, by any of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: [email protected].
Mail: Kristin Hall, EPA Region 10, Office of Air, Waste
and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle WA 98101.
Hand Delivery/Courier: EPA Region 10 Mailroom, 9th Floor,
1200 Sixth Avenue, Suite 900, Seattle, WA 98101. Attention: Kristin
Hall, Office of Air, Waste and Toxics, AWT-107. Such deliveries are
only accepted during normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-2011-
0884. The EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute. Do not submit information that you consider
to be CBI or otherwise protected through www.regulations.gov or email.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means the EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to the EPA without going through www.regulations.gov
your email address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, the EPA
recommends that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If the
EPA cannot read your
[[Page 17305]]
comment due to technical difficulties and cannot contact you for
clarification, the EPA may not be able to consider your comment.
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy. Publicly available
docket materials are available either electronically in
www.regulations.gov or in hard copy during normal business hours at the
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue,
Seattle WA 98101.
FOR FURTHER INFORMATION CONTACT: Kristin Hall at (206) 553-6357,
[email protected], or the above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' are used, it is intended to refer to the EPA.
Information is organized as follows:
Table of Contents
I. Proposed Action
II. Background
III. CAA Sections 110(a)(1) and (2) Infrastructure Elements
IV. Scope of Action on Infrastructure Submittals
V. Analysis of the State's Submittal
VI. Scope of Proposed Action
VII. Proposed Action
VIII. Statutory and Executive Order Reviews
I. Proposed Action
The EPA is proposing to approve the State Implementation Plan (SIP)
submittals from the State of Oregon to demonstrate that the SIP meets
the requirements of CAA section 110(a)(1) and (2) for the NAAQS
promulgated for particulate matter on July 18, 1997 and October 17,
2006, and for ozone on March 12, 2008. The EPA is proposing to find
that the Federally-approved provisions currently in the Oregon SIP meet
the following CAA section 110(a)(2) infrastructure elements for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS:
(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The
EPA is also proposing to find that the Federally-approved provisions
currently in the Oregon SIP meet the requirements of CAA section
110(a)(2)(D)(i)(II) as it applies to prevention of significant
deterioration for the 2008 ozone NAAQS, and CAA section
110(a)(2)(D)(i)(II) as it applies to visibility for the 2006
PM2.5 and 2008 ozone NAAQS.
CAA section 110(a)(1) requires that each state, after a new or
revised NAAQS is promulgated, review their SIPs to ensure that they
meet the requirements of the ``infrastructure'' elements of CAA section
110(a)(2). The State of Oregon made multiple submittals to satisfy the
infrastructure requirements for the 1997 and 2006 PM2.5
NAAQS and the 2008 ozone NAAQS. On September 25, 2008, the State
submitted to the EPA a certification that the State's SIP meets the
infrastructure obligations for the 1997 ozone and 1997 PM2.5
NAAQS. Subsequently, on December 23, 2010, the State submitted the
``Oregon SIP Infrastructure for Addressing the Interstate Transport of
Ozone and Fine Particulate Matter'' to address the requirements of CAA
section 110(a)(2)(D)(i) for multiple NAAQS, including the 2006
PM2.5 and 2008 ozone NAAQS. On August 17, 2011, the State
submitted to the EPA a certification that the State's SIP meets the
infrastructure requirements for the 2006 PM2.5 NAAQS.
Finally, on December 19, 2011, the State submitted to the EPA a
certification that the State's SIP meets the infrastructure
requirements for the 2008 ozone NAAQS.
At this time, the EPA is acting on the infrastructure submittals
for the CAA section 110(a)(2) required elements as they relate to the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
This action does not address infrastructure requirements with respect
to the 1997 ozone NAAQS which the EPA previously approved on May 21,
2012 (77 FR 29904). This action also does not address the requirements
of CAA section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS
which have previously been approved by the EPA in three separate
actions on June 9, 2011 (76 FR 33650), July 5, 2011 (76 FR 38997), and
December 27, 2011 (76 FR 80747).
In addition, this action does not address the requirements of CAA
section 110(a)(2)(D)(i)(II) as it relates to prevention of significant
deterioration for the 2006 PM2.5 NAAQS, which the EPA
approved on December 27, 2011 (76 FR 80747). This action also does not
address the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006
PM2.5 and 2008 ozone NAAQS which the EPA will address in a
future action. Furthermore, the EPA interprets the CAA section
110(a)(2)(J) provision on visibility as not being triggered by a new
NAAQS because the visibility requirements in part C are not changed by
a new NAAQS.
II. Background
On July 18, 1997, the EPA promulgated a new 24-hour and a new
annual NAAQS for PM2.5 (particles with an aerodynamic
diameter less than or equal to a nominal 2.5 micrometers) (62 FR
38652). More recently, on October 17, 2006 (effective date December 18,
2006), the EPA revised the standards for particulate matter, tightening
the 24-hour PM2.5 standard from 65 micrograms per cubic
meter ([micro]/m\3\) to 35 [micro]/m\3\, and retaining the current
annual fine particle standard at 15 [micro]/m\3\ (71 FR 61144). On
March 12, 2008, the EPA revised the levels of the primary and secondary
8-hour ozone standards to 0.075 parts per million (73 FR 16436).
The CAA requires State Implementation Plans (SIPs) meeting the
requirements of sections 110(a)(1) and (2) be submitted by states
within three years after promulgation of a new or revised standard. CAA
sections 110(a)(1) and (2) require states to address basic SIP
requirements, including emissions inventories, monitoring, and modeling
to assure attainment and maintenance of the standards, so-called
``infrastructure'' requirements. CAA section 110(a) imposes the
obligation upon states to make a SIP submission to the EPA for a new or
revised NAAQS, but the contents of that submission may vary depending
upon the facts and circumstances. In particular, the data and
analytical tools available at the time the state develops and submits
the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains.
To help states meet this statutory requirement, the EPA issued
guidance to states. On October 2, 2007, the EPA issued guidance to
address infrastructure SIP requirements for the 1997 ozone and 1997
PM2.5 NAAQS.\1\ On September 25, 2009, the EPA issued
guidance to address infrastructure SIP requirements for the 2006 24-
hour PM2.5 NAAQS.\2\ These guidance documents
[[Page 17306]]
provide that, to the extent an existing SIP already meets the CAA
section 110(a)(2) requirements, states may submit a certification to
the EPA.
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\1\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards. ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X,
October 2, 2007.
\2\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards. ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS).'' Memorandum to Regional Air Division Directors,
Regions I-X, September 25, 2009. The EPA has not yet issued guidance
to states to address the infrastructure SIP requirements for the
2008 ozone NAAQS.
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III. CAA Sections 110(a)(1) and (2) Infrastructure Elements
CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. CAA section 110(a)(2) lists specific elements that states
must meet for ``infrastructure'' SIP requirements related to a newly
established or revised NAAQS. These requirements include SIP
infrastructure elements such as modeling, monitoring, and emissions
inventories that are designed to assure attainment and maintenance of
the NAAQS. The requirements, with their corresponding CAA subsection,
are listed below:
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.
110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.
110(a)(2)(J): Consultation with government officials;
public notification; and Prevention of Significant Deterioration (PSD)
and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
The October 2, 2007 and September 25, 2009 EPA infrastructure
guidance clarify that two elements identified in CAA section 110(a)(2)
are not governed by the three-year submission deadline of CAA section
110(a)(1) because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new or
revised NAAQS, but rather, are due at the time the nonattainment area
plan requirements are due pursuant to CAA section 172. These
requirements are: (i) submissions required by CAA section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required in
part D, Title I of the CAA, and (ii) submissions required by CAA
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. As a result, this action
does not address infrastructure elements related to CAA section
110(a)(2)(C) with respect to nonattainment new source review (NSR) or
CAA section 110(a)(2)(I). Furthermore, the EPA interprets the CAA
section 110(a)(2)(J) provision on visibility as not being triggered by
a new NAAQS because the visibility requirements in part C, Title I of
the CAA are not changed by a new NAAQS.
IV. Scope of Action on Infrastructure Submittals
This rulemaking will not cover four substantive issues that are not
integral to acting on a state's infrastructure SIP submission: (i)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction at sources, that may be contrary to
the CAA and the EPA's policies addressing such excess emissions
(``SSM'') \3\; (ii) existing provisions related to ``director's
variance'' or ``director's discretion'' that purport to permit
revisions to SIP approved emissions limits with limited public process
or without requiring further approval by the EPA, that may be contrary
to the CAA (``director's discretion''); (iii) existing provisions for
minor source NSR programs that may be inconsistent with the
requirements of the CAA and the EPA's regulations that pertain to such
programs (``minor source NSR''); and, (iv) existing provisions for PSD
programs that may be inconsistent with current requirements of the
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002),
as amended by 72 FR 32526 (June 13, 2007). The EPA has indicated that
it has other authority to address any such existing SIP defects in
other rulemakings, as appropriate. A detailed rationale for why these
four substantive issues are not part of the scope of infrastructure SIP
rulemakings can be found in the EPA's previous action to approve the
State of Oregon 1997 ozone infrastructure SIP submittal (proposed
action on February 7, 2012, 77 FR 6044; final action on May 21, 2012,
77 FR 29904).
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\3\ For further description of EPA's SSM Policy, see, e.g., a
memorandum dated September 20, 1999, titled, ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions,
Startup, and Shutdown,'' from Steven A. Herman, Assistant
Administrator for Enforcement and Compliance Assurance, and Robert
Perciasepe, Assistant Administrator for Air and Radiation. Also, the
EPA issued a proposed action on February 12, 2013, titled ``State
Implementation Plans: Response to Petition for Rulemaking; Findings
of Substantial Inadequacy; and SIP Calls to Amend Provisions
Applying to Excess Emissions During Periods of Startup, Shutdown and
Malfunction.'' This rulemaking responds to a petition for rulemaking
filed by the Sierra Club that concerns SSM provisions in 39 states'
SIPs (February 22, 2013, 78 FR 12460).
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V. Analysis of the State's Submittal
The State of Oregon SIP submittals list specific provisions of the
Oregon Revised Statutes (ORS) Chapter 468 Environmental Quality
Generally, Public Health and Safety, General Administration; ORS
Chapter 468A Air Quality, Public Health and Safety, Air Quality
Control; Oregon Administrative Rules (OAR) Chapter 340, and the Oregon
SIP. The specific sections are listed below, with a discussion of how
the State submittals meet the requirements.
110(a)(2)(A): Emission limits and other control measures
CAA section 110(a)(2) requires SIPs to include enforceable emission
limits and other control measures, means or techniques (including
economic incentives such as fees, marketable permits, and auctions of
emissions rights), as well as schedules and timetables for compliance,
as may be necessary or appropriate to meet the applicable requirements
of the CAA.
State submittal: The State SIP submittals cite multiple State air
quality laws and previously SIP-approved regulations to address this
element for the 1997 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS. ORS 468A.035 ``General Comprehensive Plan'' provides
authority to the Oregon Department of Environmental Quality (ODEQ) to
develop a general comprehensive plan for the control or abatement of
air pollution. ORS 468A.020 ``Rules and Standards'' gives the State
Environmental Quality Commission (EQC) authority to adopt rules and
standards to perform functions vested by law. ORS 468A.025 ``Air Purity
Standards'' provides the EQC with the authority to set air quality
standards, emission standards, and emission treatment and control
provisions. ORS 468A.040 ``Permits; Rules'' provides that the EQC may
require permits for air contamination sources, type of air contaminant,
or specific areas of the State. The State submittals cite the following
additional laws and regulations that establish emission limits and
pollution controls:
ORS 468A.045 Activities Prohibited Without Permit; Limit
on Activities with Permit
ORS 468A.050 Classification of Air Contamination Sources;
Registration and Reporting of Sources; Rules; Fees
[[Page 17307]]
ORS 468A.055 Notice Prior to Construction of New Sources;
Order Authorizing or Prohibiting Construction; Effect of No Order;
Appeal
ORS 468A.070 Measurement and Testing of Contamination
Sources; Rules
ORS 468A.085 Residential Open Burning of Vegetative Debris
ORS 468A.315 Emission Fees for Major Sources; Base Fees;
Basis of Fees; Rules
ORS 468A.350-.455 Motor Vehicle Pollution Control
ORS 468A.460-.520 Woodstove Emissions Control
ORS 468A.550-.620 Field Burning and Propane Flaming
ORS 468A.625-.645 Chlorofluorocarbons and Halon Control
ORS 468A.650-.660 Aerosol Spray Control
ORS 468A.990 Penalties
OAR 340-200 General Air Pollution Procedures and
Definitions
OAR 340-202 Ambient Air Quality Standards and PSD
Increments
OAR 340-204 Designation of Air Quality Areas
OAR 340-222 Stationary Source Plant Site Emission Limits
OAR 340-224 Major New Source Review
OAR 340-226 General Emission Standards
OAR 340-228 Requirements for Fuel Burning Equipment and
Fuel Sulfur Content
OAR 340-232 Emission Standards for VOC Point Sources
OAR 340-234 Emission Standards for Wood Products
Industries
OAR 340-236 Emission Standards for Specific Industries
OAR 340-240 Rules for Areas with Unique Air Quality Needs
OAR 340-242 Rules Applicable to the Portland Area
OAR 340-250 General Conformity
OAR 340-252 Transportation Conformity
OAR 340-256 Motor Vehicles
OAR 340-258 Motor Vehicle Fuel Specifications
OAR 340-262 Residential Woodheating
OAR 340-266 Field Burning Rules (Willamette Valley)
OAR 340-268 Emission Reduction Credits
EPA analysis: The State regulations identified above were
previously approved by the EPA into the Oregon SIP and demonstrate that
the Oregon SIP includes enforceable emission limits and other control
measures to implement the 1997 PM2.5, 2006 PM2.5,
and 2008 ozone NAAQS. OAR 340-200 ``General Air Pollution Procedures
and Definitions'' defines direct PM2.5, nitrogen oxides
(NOX) and sulfur dioxide (SO2) as precursors to
PM2.5, and NOX and volatile organic compounds
(VOCs) as precursors to ozone. This rule also defines significant
emissions rates, de minimis emission levels, and plant site emission
rates for air pollutants including direct PM2.5,
NOX and SO2 as precursors to PM2.5,
and NOX and VOCs as precursors to ozone. OAR 340-202
``Ambient Air Quality Standards and PSD Increments'' includes the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS. The EPA
most recently approved into the State's SIP revisions to OAR 340-200
and OAR 340-202 on December 27, 2011 (76 FR 80747).
The State of Oregon has no areas designated nonattainment for the
1997 PM2.5 standard and no areas designated nonattainment
for the 2008 ozone standard. The State has two areas designated
nonattainment for the 2006 PM2.5 standard (Klamath Falls and
Oakridge). However, the EPA does not consider SIP requirements
triggered by the nonattainment area mandates in part D, Title I of the
CAA to be governed by the submission deadline of CAA section 110(a)(1).
The State generally regulates emissions of PM2.5,
PM2.5 precursors, and ozone precursors through its SIP-
approved New Source Review (NSR) permitting programs, in addition to
other rules and control programs identified below. The EPA most
recently approved revisions to the State's major and minor NSR
permitting programs on December 27, 2011 (76 FR 80747), to regulate
direct PM2.5 emissions, in addition to NOX and
SO2 as precursors to PM2.5. The State's SIP-
approved major and minor NSR permitting programs regulate
NOX and VOCs as precursors to ozone. In addition to the
State's NSR permitting regulations, the State's SIP contains rules that
establish various controls on emissions of particulate matter,
NOX, SO2, and VOCs. These controls include rules
for operational and work practices standards, fuel burning equipment
and fuel sulfur content, grain loading, specific industry sectors,
motor vehicle pollution, industrial emission management, residential
wood heating, field burning, and banking of emission reduction credits.
Based on the analysis above, the EPA is proposing to approve the Oregon
SIP as meeting the requirements of CAA section 110(a)(2)(A) for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
The EPA is not proposing to approve or disapprove any existing
State provisions with regard to excess emissions during startup,
shutdown, or malfunction (SSM) of operations at a facility. The EPA
believes that a number of states may have SSM provisions that are
contrary to the CAA and existing EPA guidance and the EPA has recently
proposed action to address such state regulations.\4\
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\4\ See footnote 3.
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The EPA is not proposing to approve or disapprove any existing
State rules with regard to director's discretion or variance
provisions. The EPA believes that a number of states may have such
provisions that are contrary to the CAA and existing EPA guidance
(November 24, 1987, 52 FR 45109), and the Agency plans to take action
in the future to address such state regulations. In the meantime, the
EPA encourages any state having a director's discretion or variance
provision that is contrary to the CAA and the EPA guidance to take
steps to correct the deficiency as soon as possible.
110(a)(2)(B): Ambient air quality monitoring/data system
CAA section 110(a)(2)(B) requires SIPs to include provisions to
provide for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to the EPA upon request.
State submittal: The State submittals reference ORS 468.035(a-e, m)
``Functions of the Department'' which provides authority to conduct and
supervise inquiries and programs to assess and communicate air
conditions and to obtain necessary resources (assistance, materials,
supplies, etc) to meet these responsibilities. In addition, the State
references ORS 468A.070 ``Measurement and Testing of Contamination
Sources; Rules'' which provides ODEQ authority to establish a
measurement and testing program pursuant to rules adopted by the EQC.
The State also references the following regulations pertaining to air
quality monitoring and data:
OAR 340-200 General Air Quality Definitions
OAR 340-206 Air Pollution Emergencies
OAR 340-212 Stationary Source Testing and Monitoring
OAR 340-214 Stationary Source Reporting
OAR 340-216 Air Contaminant Discharge Permits
OAR 340-222 Stationary Source Plant Site Emission Limits
OAR 340-225 Air Quality Analysis Requirements
[[Page 17308]]
OAR 340-226 General Emission Standards
OAR 340-232 Emission Standards for VOC Point Sources
OAR 340-256 Motor Vehicles
EPA analysis: A comprehensive air quality monitoring plan, intended
to meet the requirements of 40 CFR part 58 was submitted by the State
to the EPA on December 27, 1979 (40 CFR 52.1970) and approved by the
EPA on March 4, 1981 (46 FR 15136). This air quality monitoring plan
has been subsequently updated, with the most recent submittal dated
July 1, 2012 and approved by the EPA on October 25, 2012.\5\ This plan
includes, among other things, the locations for the particulate matter
monitoring network and ozone monitoring network. The State provides an
annual air quality data report to the public at http://www.deq.state.or.us/aq/forms/annrpt.htm. In addition, the State sends
real time air monitoring information for ozone and particulate matter
to the EPA's AIRNow Web page at http://www.airnow.gov and also provides
the information on the ODEQ Air Quality Index (AQI) Web site at http://www.deq.state.or.us/aqi. Based on the foregoing, the EPA is proposing
to approve the Oregon SIP as meeting the requirements of CAA section
110(a)(2)(B) for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
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\5\ Oregon Monitoring Network Approval Letter dated October 25,
2012.
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110(a)(2)(C): Program for enforcement of control measures
CAA section 110(a)(2)(C) requires states to include a program
providing for enforcement of all SIP measures, and the regulation of
construction of new or modified stationary sources, including a
permitting program to meet PSD and nonattainment NSR requirements as
required by parts C and D of this subchapter.
State submittal: The State submittals refer to ORS 468.090-.140
``Enforcement'' which provide ODEQ with authority to investigate
complaints, investigate and inspect sources for compliance, access
records, commence enforcement procedures, and impose civil penalties.
In addition, ORS 468.035 (j, k) ``Functions of the Department'' provide
ODEQ with authority to enforce State air pollution laws and compel
compliance with any rule, standard, order, permit or condition. The
State submittals cite the following Oregon laws and regulations related
to enforcement and permitting:
ORS 468.065 Issuance of Permits; Consent; Fees; Use
ORS 468.070 Denial, Modification, Suspension or Revocation
of Permits
ORS 468.090-.140 Enforcement
ORS 468.920-.963 Environmental Crimes
ORS 468.996-.997 Civil Penalties
ORS 468A.040 Permits; Rules
ORS 468A.045 Activities Prohibited without Permit
ORS 468A.055 Notice Prior to Construction of New Sources
ORS 468A.060 Duty to Comply with Laws, Rules, and
Standards
ORS 468A.105 Formation of Regional Air Quality Control
Authorities
ORS 468A.155 Rules Authorizing Regional Permit Programs
ORS 468A.165 Compliance with State Standards Required;
Hearing; Notice
ORS 468A.990 Penalties for Air Pollution Offenses
OAR 340-012 Enforcement Procedure and Civil Penalties
OAR 340-200 General Air Pollution Procedures and
Definitions
OAR 340-202 Ambient Air Quality Standards and PSD
Increments
OAR 340-210 Stationary Source Notification Requirements
OAR 340-214 Stationary Source Reporting Requirements
OAR 340-216 Air Contaminant Discharge Permits (ADCP)
OAR 340-224 Major New Source Review
EPA analysis: The EPA is proposing to find that the State code
provisions referenced in the State submissions provide ODEQ with
authority to enforce the air quality laws, regulations, permits, and
orders promulgated pursuant to ORS Chapters 468 and 468A. ODEQ staffs
and maintains an enforcement program to ensure compliance with SIP
requirements. The ODEQ Director, at the direction of the Governor, may
enter a cease and desist order for polluting activities that present an
imminent and substantial danger to public health (ORS 468-115).
Enforcement cases may be referred to the State Attorney General's
Office for civil or criminal enforcement. Therefore, the EPA is
proposing to approve the Oregon SIP as meeting the requirements of CAA
section 110(a)(2)(C) related to a program of enforcement measures for
the 1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
The EPA is also proposing to find that the Oregon SIP meets the
requirements related to PSD under CAA section 110(a)(2)(C) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS. As
discussed below, the State's previously-approved SIP provisions are
adequate to satisfy the requirements of CAA section 110(a)(2)(C) for
the 1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS
because they meet current Federal standards. The State's major NSR
program includes requirements for major source permitting in
nonattainment areas, maintenance areas, and attainment and
unclassifiable areas (OAR 340-224). The State's Federally-enforceable
state operating permit program is found at OAR 340-216 ``Air
Contaminant Discharge Permits,'' and is also the administrative permit
mechanism used to implement the notice of construction and major new
source review programs. ODEQ delegates authority to Lane Regional Air
Protection Agency (LRAPA) to implement the source permitting programs
within LRAPA's area of jurisdiction. The requirements and procedures
contained in OAR 340-216, OAR 340-222 and OAR 340-224 are used by LRAPA
to implement its permitting programs until it adopts rules which are at
least as restrictive as State rules. The EPA most recently approved
revisions to the State's major NSR rules on December 27, 2011 (76 FR
80747), including approval of PSD permitting requirements for
PM2.5 and greenhouse gases.\6\ The State's SIP-approved PSD
permitting program regulates NOX and VOCs as precursors to
ozone.
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\6\ Federal requirements pertaining to the permitting programs
required under Subparts C and D of Title I of the CAA have not
changed since the EPA last reviewed and approved changes to Oregon's
Federally-approved PSD and NSR SIP provisions. Accordingly, the EPA
incorporates by reference the rationale for its approval of Oregon's
major source permitting program as discussed in its September 23,
2011, proposed rule and its December 27, 2011, final rule. See 76 FR
59090 (September 23, 2011) and 76 FR 80747 (December 27, 2011).
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The State's SIP-approved minor NSR program applies major source
NSR/PSD requirements to any source with emissions over the significant
emission rate, through the administrative mechanisms laid out in OAR
340-216 ``Air Contaminant Discharge Permits.'' The EPA has determined
that the State's minor NSR program, adopted pursuant to section
110(a)(2)(C) of the CAA, regulates emissions of PM2.5,
NOX and SO2 as precursors to PM2.5,
and NOX and VOCs as precursors to ozone. In this action, the
EPA is not evaluating the State's SIP for consistency with the EPA's
regulations governing minor NSR. The EPA believes that a number of
states may have minor NSR provisions that are contrary to the existing
EPA regulations for this program. The EPA intends to work with states
to reconcile
[[Page 17309]]
state minor NSR programs with the EPA's regulatory provisions for the
program. The statutory requirements of CAA section 110(a)(2)(C) provide
for considerable flexibility in designing minor NSR programs, and the
EPA believes it may be time to revisit the regulatory requirements for
this program to give the states an appropriate level of flexibility to
design a program that meets their particular air quality concerns,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources.
Based on the analysis above, the EPA is proposing to find that the
Oregon SIP includes enforcement, PSD, and minor source permitting
provisions that are adequate to satisfy the requirements of CAA section
110(a)(2)(C) for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
110(a)(2)(D): Interstate transport
CAA section 110(a)(2)(D)(i) requires that SIPs contain adequate
provisions prohibiting any source or other type of emissions activity
in one state from contributing significantly to nonattainment, or
interfering with maintenance of the NAAQS in another state, or from
interfering with measures required to prevent significant deterioration
of air quality or to protect visibility in another state.
State submittal: The State submitted the ``Oregon SIP
Infrastructure for Addressing the Interstate Transport of Ozone and
Fine Particulate Matter'' (2010 Interstate Transport SIP) to satisfy
the interstate transport requirements for multiple NAAQS, including the
2006 PM2.5 and 2008 ozone NAAQS. The 2010 Interstate
Transport SIP references the State's SIP-approved PSD program and the
State's collaborative work with neighboring states on regional haze
SIPs, which include plans and requirements for addressing visibility
impairment caused by fine particulate matter and ozone in national
parks and wilderness areas. In addition, the 2010 Interstate Transport
SIP references the consultation ODEQ conducted with air agency staff in
Washington, Idaho, Nevada and California in preparing the 2010
Interstate Transport SIP, specifically to identify and understand
relevant air pollution issues in neighboring states, and whether these
problems could be impacted by interstate transport.
EPA analysis: CAA section 110(a)(2)(D)(i) addresses four separate
elements, or ``prongs.'' CAA section 110(a)(2)(D)(i)(I) requires state
SIPs contain adequate provisions prohibiting emissions which will
contribute significantly to nonattainment of the NAAQS in any other
state (prong 1), and adequate provisions prohibiting emissions which
will interfere with maintenance of the NAAQS by any other state (prong
2). CAA section 110(a)(2)(D)(i)(II) requires that state SIPs contain
adequate provisions prohibiting emissions which will interfere with any
other state's required measures to prevent significant deterioration
(PSD) of its air quality (prong 3), and adequate provisions prohibiting
emissions which will interfere with any other state's required measures
to protect visibility (prong 4).
As noted above, this action does not address the requirements of
CAA section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS which
the EPA approved in three previous actions: June 9, 2011 (76 FR 33650),
July 5, 2011 (76 FR 38997) and December 27, 2011 (76 FR 80747). In
addition, this action does not address the requirements of CAA section
110(a)(2)(D)(i)(I) for the 2006 PM2.5 and 2008 ozone NAAQS
which the EPA will address in a separate action. This action also does
not address the requirements of CAA section 110(a)(2)(D)(i)(II) with
regards to prevention of significant deterioration (prong 3) for the
2006 PM2.5 NAAQS, which the EPA approved in a previous
action on December 27, 2011 (76 FR 80747).
In this action, the EPA is proposing to approve the Oregon SIP as
meeting the requirements of CAA section 110(a)(2)(D)(i)(II) with
respect to PSD (prong 3) for the 2008 ozone NAAQS and the requirements
of CAA section 110(a)(2)(D)(i)(II) with respect to visibility (prong 4)
for the 2006 PM2.5 and 2008 ozone NAAQS.
To address whether emissions from sources in Oregon interfere with
any other state's required measures to prevent significant
deterioration of air quality, the State's 2010 Interstate Transport SIP
references the SIP-approved Oregon PSD program. The EPA approved
revisions to the State's major NSR rules on December 27, 2011 (76 FR
80747), including approval of PSD permitting requirements for
PM2.5 and greenhouse gases. The State's SIP-approved PSD
program regulates NOX and VOCs as precursors to ozone. As
discussed in the EPA's 2011 analysis of the State's PSD permitting
requirements, the Federally-approved provisions of the State's SIP meet
current Federal PSD requirements. Federal PSD requirements have not
changed since the date of the EPA's most recent PSD-related SIP
approval and the Oregon SIP provisions continue to meet Federal PSD
permitting standards. Therefore, the EPA is proposing to approve the
Oregon SIP as meeting the requirements of CAA section
110(a)(2)(D)(i)(II) with respect to PSD (prong 3) for the 2008 ozone
NAAQS.
To address whether emissions from sources in the State interfere
with any other state's required measures to protect visibility, the
2010 Interstate Transport SIP refers to the Oregon Regional Haze SIP
which was submitted to the EPA on December 14, 2010, and addresses
PM2.5 and PM2.5 and ozone precursor visibility
impacts across states within the region. On July 5, 2011, the EPA
approved portions of the Oregon Regional Haze SIP including the
requirements for best available retrofit technology (BART) (76 FR
38997). The EPA approved the remaining elements of the Oregon Regional
Haze SIP on August 22, 2012 (77 FR 50611).
The EPA's September 25, 2009, infrastructure guidance states that
the EPA believes the requirement for state SIPs to include adequate
provisions prohibiting interference with measures to protect visibility
in another state could be satisfied by an approved SIP addressing
regional haze. The EPA's reasoning was that the development of the
regional haze SIPs was intended to occur in a collaborative environment
among the states, and that through this process states would coordinate
on emissions controls to protect visibility on an interstate basis. The
2010 Interstate Transport SIP describes the State's participation in
the Western Regional Air Partnership (WRAP), which is a regional
planning organization created to address regional haze and related
issues. WRAP member states include: Alaska, Arizona, California,
Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South
Dakota, Utah, Washington and Wyoming, in addition to member tribes. In
developing their respective regional haze SIPs, WRAP states, including
Oregon, consulted with each other through the WRAP's work groups. As a
result of this process, the common understanding was that each state
would take action to achieve the emissions reductions relied upon by
other states in their reasonable progress demonstrations in their
regional haze SIPs.
Because Oregon has a Federally-approved Regional Haze SIP that
meets current requirements, the EPA concludes that the State's SIP
contains adequate provisions to address the requirements of CAA section
110(a)(2)(D)(i)(II) with respect to visibility (prong 4) for the 2006
PM2.5 and 2008 ozone NAAQS. Therefore, the EPA is proposing
to approve the Oregon SIP as meeting the requirements of CAA
[[Page 17310]]
section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2006
PM2.5 and 2008 ozone NAAQS (prong 4).
Interstate and International transport provisions
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions
insuring compliance with the applicable requirements of CAA sections
126 and 115 (relating to interstate and international pollution
abatement). Specifically, CAA section 126(a) requires new or modified
major sources to notify neighboring states of potential impacts from
the source.
State submittal: The State submittals state that State regulations
are consistent with Federal requirements in Appendix N of 40 CFR part
50 pertaining to the notification of interstate pollution abatement.
The State refers to OAR 340-202 ``Ambient Air Quality and PSD
Increments.''
EPA analysis: The EPA most recently approved revisions to the
State's NSR regulations on December 27, 2011 (76 FR 80747). The State's
public notice requirements at OAR 340-209-0060 require that for major
NSR actions, ODEQ will provide notice to neighboring states, among
other officials and agencies. The State has no pending obligations
under section 115 or 126(b) of the Act. Accordingly, the EPA is
proposing to approve the Oregon SIP as meeting the requirements of CAA
section 110(a)(2)(D)(ii) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
110(a)(2)(E): Adequate resources
CAA section 110(a)(2)(E) requires each state SIP to provide: (i)
Necessary assurances that the State will have adequate personnel,
funding, and authority under State law to carry out the SIP (and is not
prohibited by any provision of Federal or State law from carrying out
the SIP or portion thereof), (ii) requirements that the State comply
with the requirements respecting State boards under section 128, and
(iii) necessary assurances that, where the State has relied on a local
or regional government, agency, or instrumentality for the
implementation of any SIP provision, the State has responsibility for
ensuring adequate implementation of such SIP provision.
State submittal: The State submittals cite ORS 468.035 ``Functions
of Department'' which provides ODEQ authority to employ personnel,
purchase supplies, enter into contracts, and to receive, appropriate,
and expend federal and other funds for purposes of air pollution
research and control. In addition, ORS 468.045 ``Functions of Director;
Delegation'' provides the ODEQ Director with authority to hire, assign,
reassign, and coordinate personnel of the department and to administer
and enforce the laws of the state concerning environmental quality. ORS
468.035(c) ``Functions of Department'' provides ODEQ authority to
advise, consult, and cooperate with other states, state and federal
agencies, or political subdivisions on all air quality control matters.
ORS 468A.010 ``Policy'' calls for a coordinated statewide program of
air quality control with responsibility allocated between the state and
the units of local government. ORS 468A.100-180 ``Regional Air Quality
Control Authorities'' describes the establishment, role and function of
regional air quality control authorities. State regulations at OAR 340-
200 ``General Air Quality Definitions'' specify LRAPA has authority in
Lane County and defines the term ``Regional Agency.'' OAR 340-204
``Designation of Air Quality Areas'' includes designation of control
areas within Lane County. OAR 34-216 ``Air Contaminant Discharge
Permits'' includes permitting authorities for LRAPA.
EPA analysis: The EPA proposes to find that the Oregon SIP meets
the adequate personnel, funding and authority requirements of CAA
section 110(a)(2)(E)(i). The State of Oregon receives sections 103 and
105 grant funds from the EPA and provides State matching funds
necessary to carry out SIP requirements. For purposes of CAA section
110(a)(2)(E)(ii), the EPA approved OAR 340-200-0100 through OAR 340-
200-0120 as meeting the requirements of CAA section 128 on January 22,
2003 (68 FR 2891). Finally, regarding CAA section 110(a)(2)(E)(iii)
state responsibility and oversight of local and regional entities, the
EPA is proposing to find that State law and regulation detailed above
provides ODEQ with adequate authority to carry out SIP obligations with
respect to the 1997 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS. Therefore the EPA is proposing to approve the Oregon SIP
as meeting the requirements of CAA section 110(a)(2)(E) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(F): Stationary source monitoring system
CAA section 110(a)(2)(F) requires (i) The installation,
maintenance, and replacement of equipment, and the implementation of
other necessary steps, by owners or operators of stationary sources to
monitor emissions from such sources, (ii) periodic reports on the
nature and amounts of emissions and emissions-related data from such
sources, and (iii) correlation of such reports by the state agency with
any emission limitations or standards established pursuant to the CAA,
which reports shall be available at reasonable times for public
inspection.
State submittal: The State submittals refer to the following
statutory and regulatory provisions which provide authority and
requirements for source emissions monitoring, reporting, and
correlation with emission limits or standards:
ORS 468.035 (b, d) Functions of Department
ORS 468A.025(4) Air Purity Standards; Air Quality
Standards; Treatment and Control of Emissions; Rules
ORS 468A.070 Measurement and Testing of Contamination
Sources; Rules
OAR 340-212 Stationary Source Testing and Monitoring
OAR 340-214 Stationary Source Reporting Requirements
OAR 340-222 Stationary Source Plant Site Emission Limits
OAR 340-225 Air Quality Analysis Requirements
OAR 340-234 Emission Standards for Wood Products
Industries: Monitoring and Reporting
OAR 340-236 Emission Standards for Specific Industries:
Emissions Monitoring and Reporting
OAR 340-240 Rules for Areas with Unique Air Quality Needs
EPA analysis: The State statutory provisions listed above provide
authority to establish a program for measurement and testing of
sources, including requirements for sampling and testing. The State
regulations cited above require facilities to monitor and report
emissions, including requirements for monitoring methods and design,
and monitoring and quality improvement plans. In addition, stationary
source reporting requirements include maintaining written records to
demonstrate compliance with emission rules, limitations, or control
measures, and requirements for reporting and recordkeeping. Therefore,
the EPA is proposing to approve the Oregon SIP as meeting the
requirements of CAA section 110(a)(2)(F) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(G): Emergency episodes
CAA section 110(a)(2)(G) requires states to provide for authority
to address activities causing imminent and substantial endangerment to
public health, including contingency plans to implement the emergency
episode provisions in their SIPs.
[[Page 17311]]
State submittal: The State submittals cite ORS 468-115
``Enforcement in Cases of Emergency'' which authorizes the ODEQ
Director, at the direction of the Governor, to enter a cease and desist
order for polluting activities that present an imminent and substantial
danger to public health. In addition, OAR 340-206 ``Air Pollution
Emergencies'' authorizes the ODEQ Director to declare an air pollution
alert or warning, or to issue an ozone advisory to notify the public.
OAR 340-214 ``Stationary Source Reporting Requirements'' requires
reporting of emergencies and excess emissions and reporting
requirements.
EPA analysis: ORS 468-115 ``Enforcement in Cases of Emergency''
provides emergency order authority comparable to CAA Section 303.
Emergency episode SIP requirements are set forth at 40 CFR part 51
subpart H (prevention of air pollution emergency episodes, sections
51.150 through 51.153). The EPA has not promulgated revisions to these
rules for PM2.5. However, the EPA's September 25, 2009
guidance \7\ made recommendations on how states could address emergency
episode and contingency plans for PM2.5. Subsequently, on
December 27, 2011 (76 FR 80747), the EPA approved State revisions to
OAR 340-206 ``Air Pollution Emergencies'' to add a significant harm
level, air pollutant alert level, air pollution warning level, and air
pollutant emergency level for PM2.5, consistent with the
EPA's September 25, 2009 guidance. OAR 340-206 ``Air Pollution
Emergencies'' is consistent with the requirements of 40 CFR 51.150
through 51.153 for ozone. Therefore, the EPA is proposing to approve
the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(G)
for the 1997 PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS.
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\7\ See footnote 2.
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110(a)(2)(H): Future SIP Revisions
CAA section 110(a)(2)(H) requires that SIPs provide for revision of
such plan (i) from time to time as may be necessary to take account of
revisions of such national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods of
attaining such standard, and (ii), except as provided in paragraph
110(a)(3)(C), whenever the Administrator finds on the basis of
information available to the Administrator that the SIP is
substantially inadequate to attain the NAAQS which it implements or to
otherwise comply with any additional requirements under the CAA.
State submittal: The State submittals refer to ORS 468A.025 ``Air
Purity Standards; Air Quality Standards; Treatment and Control of
Emissions; Rules'' which provides authority for the EQC to establish
areas of the state that require controls necessary to achieve the
NAAQS. The submittals also refer to OAR 340-200 ``General Air Pollution
Procedures and Definitions'' -0040 ``State of Oregon Clean Air Act
Implementation Plan'' which provides for revisions to the Oregon SIP
and submittal of revisions to the EPA, including standards submitted by
a regional authority and adopted verbatim into ODEQ rules.
EPA analysis: As cited above, the State's SIP provides for
revisions, and in practice, the State regularly submits SIP revisions
to the EPA to take into account revisions to the NAAQS and other
Federal regulatory changes. On December 27, 2011, the EPA approved
numerous revisions to the Oregon SIP, including updates to the State's
rules to reflect Federal changes to the NAAQS for PM2.5,
ozone and lead (76 FR 80747). The EPA proposes to approve the Oregon
SIP as meeting the requirements of CAA section 110(a)(2)(H) for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(I): Nonattainment area plan revision under part D
CAA section 110(a)(2)(I) requires states, in the case of a plan or
revision for an area designated as nonattainment, to meet the
applicable requirements of part D of Title I of the CAA relating to
nonattainment areas.
EPA analysis: There are two elements identified in CAA section
110(a)(2) not governed by the three-year submission deadline of CAA
section 110(a)(1). SIPs incorporating necessary local nonattainment
area controls are not due within three years after promulgation of a
new or revised NAAQS, but are, rather, due at the time of the
nonattainment area plan requirements pursuant to section 172. These
requirements are: (i) submissions required by CAA section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required in
part D, Title I of the CAA, and (ii) submissions required by CAA
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Because the nonattainment
planning requirements are not governed by the three-year submission
deadline of CAA section 110(a)(1), this infrastructure action does not
address to the requirements of CAA section 110(a)(2)(C) with respect to
nonattainment NSR or CAA section 110(a)(2)(I).
110(a)(2)(J): Consultation with government officials
CAA section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and Federal Land Managers who are
carrying out NAAQS implementation requirements pursuant to CAA section
121, relating to consultation. CAA section 110(a)(2)(J) further
requires states to notify the public if NAAQS are exceeded in an area
and to enhance public awareness of measures that can be taken to
prevent exceedances. Lastly, CAA section 110(a)(2)(J) requires states
to meet applicable requirements of part C, title I of the CAA related
to prevention of significant deterioration and visibility protection.
State submittal: The State submittals reference specific laws and
regulations relating to consultation, public notification, and PSD and
visibility protection:
ORS 468.020 Rules and Standards
ORS 468.035(a, c, f-g) Functions of Department
ORS 468A.010 (1) (b, c) Policy
ORS 468A.025 Air Purity Standards; Air Quality Standards;
Treatment and Control of Emissions; Rules
OAR 340-202 Ambient Air Quality Standards and PSD
Increments
OAR 340-204 Designation of Air Quality Areas
OAR 340-206 Air Pollution Emergencies
OAR 340-209 Public Participation
OAR 340-224 Major New Source Review
OAR 340-225 Air Quality Analysis Requirements
EPA analysis: The EPA proposes to find that the State's Federally-
approved SIP includes specific provisions for consulting with local
governments and Federal Land Managers as specified in CAA section 121.
ODEQ coordinates with local governments, states, Federal Land Managers
and other stakeholders on air quality issues and provides notice to
appropriate agencies related to permitting actions. The State regularly
participates in regional planning processes including the Western
Regional Air Partnership, which is a regional planning organization
made up of states, tribes, Federal Land Managers, local air agencies,
whose purpose is to understand current and evolving regional air
quality issues in the West. The EPA is proposing to approve the Oregon
SIP as meeting the requirements of CAA section 110(a)(2)(J) for
[[Page 17312]]
consultation with government officials for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
The State of Oregon sends real time air monitoring information for
ozone, particulate matter, and carbon monoxide to the EPA's AIRNow Web
page at http://www.airnow.gov and also provides the information on the
ODEQ Air Quality Index (AQI) Web site at http://www.deq.state.or.us/aqi
including measures that can be taken to improve air quality. The EPA is
proposing to approve the Oregon SIP as meeting the requirements of CAA
section 110(a)(2)(J) for public notification for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
The requirement in CAA section 110(a)(2)(J) that the SIP meet the
applicable requirements of part C, title I of the CAA is the same as
described earlier at CAA section 110(a)(2)(C) as it relates to PSD. The
EPA most recently approved revisions to the State's Federally-approved
PSD program on December 27, 2011 (76 FR 80747), including PSD program
regulation of direct PM2.5, NOX and
SO2 as precursors to PM2.5, and PSD permitting of
greenhouse gas-emitting sources. The State's SIP-approved PSD
permitting program regulates NOX and VOCs as precursors to
ozone. Therefore, the EPA is proposing to approve the Oregon SIP as
meeting the requirements of CAA section 110(a)(2)(J) for PSD for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
With regard to the applicable requirements for visibility
protection, the EPA recognizes that states are subject to visibility
and regional haze program requirements under part C of Title I of the
CAA. In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C, Title I
of the CAA do not change. Thus we find that there is no new visibility
obligation triggered under CAA section 110(a)(2)(J) when a new NAAQS
becomes effective.
Based on the analysis above, the EPA is proposing to approve the
Oregon SIP as meeting the requirements of CAA section 110(a)(2)(J) for
the 1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(K): Air quality and modeling/data
CAA section 110(a)(2)(K) requires that SIPs provide for (i) the
performance of such air quality modeling as the Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which the
Administrator has established a national ambient air quality standard,
and (ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.
State submittal: The State submittals refer to ORS 468.035
``Functions of Department'' which provides ODEQ authority to conduct
studies and investigations to determine air quality. OAR 340-202
``Ambient Air Quality Standards and PSD Increments'' establishes
standards and procedures for modeling and reporting data on air
emissions. OAR 340-216 ``Air Contaminant Discharge Permits''
establishes requirements for testing, monitoring, recordkeeping, and
reporting requirements to determine compliance with emission standards.
OAR 340-225 ``Air Quality Analysis Requirements'' includes modeling
requirements for analysis and demonstration of compliance with
standards and increments in specified areas. OAR 340-226 ``General
Emission Standards'' provides authority for ODEQ to establish
additional controls through permitting to prevent violation of ambient
air quality standards from a source as determined by modeling,
monitoring or a combination thereof.
EPA analysis: The EPA previously approved the State's regulations
on air quality modeling into the SIP on January 22, 2003 (68 FR 2891)
and these rules require all modeled estimates of ambient concentrations
be based on 40 CFR part 51, Appendix W (Guidelines on Air Quality
Models). Any change or substitution from models specified in 40 CFR
part 51, Appendix W is subject to notice and opportunity for public
comment and must receive prior written approval from ODEQ and the EPA.
As an example of the State's modeling capacity, the State of Oregon
has submitted a recent SIP revision, supported by modeling for ozone.
The Portland and Salem areas were historically nonattainment under the
1-hour ozone standard and require maintenance plans that ensure on-
going compliance with the 1997 8-hour ozone standard. On May 22, 2007,
the State submitted these maintenance plans to the EPA, supported by
extensive modeling. The EPA approved the SIP revision on December 19,
2011 (76 FR 78571). Based on the foregoing, the EPA is proposing to
approve the Oregon SIP as meeting the requirements of CAA section
110(a)(2)(K) for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
110(a)(2)(L): Permitting fees
CAA section 110(a)(2)(L) requires SIPs to require each major
stationary source to pay permitting fees to cover the cost of
reviewing, approving, implementing and enforcing a permit, until such
time as the SIP fee requirement is superseded by the EPA's approval of
the state's title V operating permit program.
State submittal: The State submittals refer to ORS 468.065
``Issuance of Permits: Content; Fees; Use'' which provides the EQC
authority to establish a schedule of fees for permits based upon the
costs of filing and investigating applications, issuing or denying
permits, carrying out Title V requirements and determining compliance.
ORS 468A.050 ``Classification of Air Contamination Sources;
Registration and Reporting of Sources; Rules; Fees'' provides authority
to the EQC to establish fee schedules for air contamination sources.
OAR 340-216 ``Air Contaminant Discharge Permits'' requires payment of
permit fees based on a specified table of sources and fee schedule. In
addition, the State submittals point to the State's approved title V
program.
EPA analysis: On September 28, 1995, the EPA fully approved the
State's title V program (60 FR 50106) (effective November 27, 1995).
While the State's operating permit program is not formally approved
into the State's SIP, it is a legal mechanism the State can use to
ensure that ODEQ has sufficient resources to support the air program,
consistent with the requirements of the SIP. The State's title V
program included a demonstration the State will collect a fee from
title V sources above the presumptive minimum in accordance with 40 CFR
70.9(b)(2)(i). The EPA's review process prior to the approval of the
State's Title V permitting program included an evaluation of the
State's ability to collect adequate fees. Therefore, the EPA proposes
to find that the State has satisfied the requirements of CAA section
110(a)(2)(L) for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
110(a)(2)(M): Consultation/participation by affected local entities
CAA section 110(a)(2)(M) requires states to provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP.
State submittal: The State submittals refer to the following laws
and regulations:
ORS 468.035 (a, c, f-g) Functions of Department
ORS 468A.010 (1) (b, c) Policy
ORS 468A.100-180 Regional Air Quality Control Authorities
ORS 468A.405 Authority to Limit Motor Vehicle Operation
and Traffic; Rules
[[Page 17313]]
OAR 340-200 General Air Pollution Procedures and
Definitions
OAR 340-204 Designation of Air Quality Areas
OAR 340-216 Air Contaminant Discharge Permits
EPA analysis: The regulations cited by the State were previously
approved on December 27, 2011 (76 FR 80747), and provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP. Therefore the EPA proposes to find
that the State's SIP meets the requirements of CAA section 110(a)(2)(M)
for the 1997 PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS.
VI. Scope of Proposed Action
Oregon has not demonstrated authority to implement and enforce the
Oregon Administrative rules within ``Indian Country'' as defined in 18
U.S.C. 1151. ``Indian country'' is defined under 18 U.S.C. 1151 as: (1)
All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation, (2) all dependent Indian communities within the borders of
the United States, whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State,
and (3) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same. Under
this definition, the EPA treats as reservations trust lands validly set
aside for the use of a Tribe even if the trust lands have not been
formally designated as a reservation. Therefore, this SIP approval does
not extend to ``Indian Country'' in Oregon. See CAA sections
110(a)(2)(A) (SIP shall include enforceable emission limits),
110(a)(2)(E)(i) (State must have adequate authority under State law to
carry out SIP), and 172(c)(6) (nonattainment SIPs shall include
enforceable emission limits).
VII. Proposed Action
The EPA is proposing to find that the Federally-approved provisions
currently in the Oregon SIP meet the following CAA section 110(a)(2)
infrastructure elements for the 1997 PM2.5, 2006
PM2.5, and the 2008 ozone NAAQS: (A), (B), (C), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M). The EPA is also proposing
to find that the Federally-approved provisions currently in the Oregon
SIP meet the requirements of CAA section 110(a)(2)(D)(i)(II) as it
applies to prevention of significant deterioration for the 2008 ozone
NAAQS, and CAA section 110(a)(2)(D)(i)(II) as it applies to visibility
for the 2006 PM2.5 and 2008 ozone NAAQS. This action does
not propose to approve any additional provisions into the Oregon SIP
but is a proposed finding that the current provisions of the Oregon SIP
are adequate to satisfy the above-mentioned infrastructure elements
required by the CAA. This action is being taken under section 110 of
the CAA.
VIII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves the state's law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by the state's law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
Oregon, and the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate Matter, and
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 6, 2013.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2013-06309 Filed 3-20-13; 8:45 am]
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