Approval and Promulgation of Implementation Plans; Oregon: Permitting and General Rule Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving, and incorporating by reference, changes to Oregon's State Implementation Plan (SIP) submitted on April 22, 2015. The changes relate to the criteria pollutants for which the EPA has established national ambient air quality standards—carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. Specifically, the changes account for new federal requirements for fine particulate matter, update the major and minor source pre-construction permitting programs, and add state-level air quality designations. The changes also address public notice procedures for informational meetings, and tighten emission standards for dust and smoke. In addition, Oregon reorganized rules in the SIP by consolidating definitions, removing duplicate provisions, correcting errors, and removing outdated provisions.

DATES:

This final rule is effective November 13, 2017.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2015-0333. All documents in the docket are listed on the https://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information 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 is publicly available only in hard copy form. Publicly available docket materials are available at https://www.regulations.gov or at the EPA Region 10 Office of Air and Waste, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Kristin Hall, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency—Region 10, 1200 Sixth Ave., Seattle, WA 98101; telephone number: (206) 553-6357; email address: hall.kristin@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

Table of Contents

I. Background

II. Response to Comment

III. Final Action

IV. Incorporation by Reference

V. Oregon Notice Provision

VI. Statutory and Executive Orders Review

I. Background

On April 22, 2015, the Oregon Department of Environmental Quality (ODEQ) submitted revisions to 26 Oregon Administrative Rule (OAR) divisions within Chapter 340, and two source sampling and monitoring manuals related to the rules. These changes were effective on April 16, 2015, as a matter of state law. On March 22, 2017, the EPA proposed to approve the submitted rule changes (82 FR 14654). Please see our proposed rulemaking for further explanation and the basis of our finding. We note that on April 20, 2017, we received a request from the public for additional time to review the submitted changes and our proposed action. In response to the request, we reopened the comment period on May 30, 2017 for an additional 30 days, closing on June 29, 2017 (82 FR 24621). We received the following comments.

II. Response to Comment

Comment 1: A commenter asserted that certain public participation requirements in Division 209 of Oregon's air quality rules are vaguely worded, and as a result, could be hard to implement. The commenter gave only one specific example, pointing to a phrase in OAR 340-209-0030 Public Notice Categories and Timing: “[t]he Department will schedule a hearing to allow interested persons to submit oral or written comments if the Department determines that a hearing is necessary.” The commenter said the meaning of “necessary” is unclear and that the rule should be more specific—listing what factors will be evaluated to judge whether a hearing is, or is not, necessary.

Response 1: Federal rules require states to inform the public about plans to permit stationary sources of air pollutants. These federal requirements vary, based on the size of the source, where it's located, and the type of permit, among other things. Oregon's public participation rules in Division 209 group permit actions into four categories, assigning different levels of public participation to the categories. We first approved this approach to public involvement into the Oregon SIP on January 22, 2003 (68 FR 2891). In that action, we found that Oregon's rules were consistent with federal public process requirements for SIP permitting actions. See 68 FR 2891, at page 2894. Since 2003, Oregon has made minor changes to Division 209. On March 22, 2017, we proposed to approve the most recent version of Division 209 as meeting the public process requirements for new source review SIP permitting actions. See 82 FR 14654, at page 14658.

With respect to the commenter's concern that some aspects of Oregon's public comment procedures may be too vague to implement, the commenter cited to only one specific example: That OAR 340-209-0030 does not provide criteria for determining when a public hearing is “necessary.” We note, however, that Oregon's rules, in addition to requiring a public comment period, specifically require that a public hearing be held for all major new source review SIP permitting in attainment and unclassifiable areas (prevention of significant deterioration (PSD)). See OAR 209-0030(d)(C). For other new source review SIP permit actions, in addition to providing for a public comment period, Oregon's rules require a public hearing if 10 members of the public request a hearing, or an organization representing at least 10 people requests a hearing. See OAR 340-209-0030(c)(B). The provision that is of concern to the commenter provides additional discretionary authority for the ODEQ to conduct a public hearing whenever it considers such a process to be necessary. The absence of additional detail in this provision does not provide grounds for the EPA to change its proposed approval.

We continue to believe that Oregon's public participation rules meet federal requirements for new source review SIP permitting actions and we are therefore finalizing our action.

Comment 2: A commenter stated that, as a member of the construction industry for 48 years, the commenter has experienced the EPA to be a burden on the middle income taxpayer. The commenter asserted that the extra cost of regulation hurts builders and the working middle class, in part because the EPA refuses to work with builders, who must deal with environmental regulations, and who then pass on the extra cost of those regulations.

Response 2: The commenter's concerns are broad in nature and do not identify any specific requirements the commenter contends are inconsistent with CAA requirements. In approving SIPs under section 110 of the CAA, Congress gave states the lead in developing plans to implement, maintain, and enforce the national ambient air quality standards (NAAQS)—standards designed to protect public health and welfare from air pollution. In reviewing state plans, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. See 42 U.S.C. 7410(k) and 40 CFR 52.02(a). In this case, Oregon submitted permitting and general air quality rules to the EPA and requested that the EPA approve the rules into the Oregon SIP. Our action on the April 22, 2015 Oregon submission, with which the commenter takes issue, approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. Therefore, we are finalizing our action.

III. Final Action

We are approving, and incorporating by reference, specific rule revisions submitted by Oregon on April 22, 2015. As documented in the submission, we are approving certain of the state rule revisions to also apply in Lane County, because the Oregon Environmental Quality Commission has determined those rules to be more stringent than the corresponding local rules. We are also approving, but not incorporating by reference, specific provisions that provide the ODEQ with authority needed for SIP approval, but that may conflict with the EPA's independent authorities. We note that we are deferring action on our proposed approval of changes to Oregon excess emissions and emergency provisions, OAR 340-214-0300 through 0360, to be addressed in a separate, future action.

Lastly, we are removing repealed rules from Oregon's federally-approved SIP, as requested by the state, because they are obsolete or redundant. We are not taking action on certain rules that are inconsistent with CAA requirements or that are inappropriate for SIP approval because they are not related to the criteria pollutants regulated under title I of the CAA, not essential for meeting and maintaining the NAAQS, or not related to the requirements for SIPs under section 110 of the CAA.

A. Rules Approved and Incorporated by Reference

We are approving into the Oregon SIP, and incorporating by reference at 40 CFR part 52, subpart MM, the submitted revisions to Chapter 340 of the OAR listed below, state effective April 16, 2015:

• Division 200—General Air Pollution Procedures and Definitions (0010, 0020, 0025, 0030, 0035);
• Division 202—Ambient Air Quality Standards and PSD Increments (0010, 0020, 0050, 0070, 0100, 0130, 0200, 0210, 0220, 0225);
• Division 204—Designation of Air Quality Areas (0010, 0020, 0030, 0040, 0050, 0060, 0070, 0080, 0090, 0300, 0310, 0320);
• Division 206—Air Pollution Emergencies (0010, 0020, 0030, 0040, 0050, 0060, 0070, 8010, 8020, 8030, 8040);
• Division 208—Visible Emissions and Nuisance Requirements (0005, 0010, 0110, 0210);
• Division 209—Public Participation (0010, 0020, 0030, 0040, 0050, 0060, 0070, 0080);
• Division 210—Stationary Source Notification Requirements (0010, 0020, 0100, 0110, 0120, 0205, 0215, 0225, 0230, 0240, 0250);
• Division 212—Stationary Source Testing and Monitoring (0005, 0010, 0110, 0120, 0130, 0140, 0150);
• Division 214—Stationary Source Reporting Requirements (0005, 0010, 0100, 0110, 0114, 0130, 0200, 0210, 0220);
• Division 216—Air Contaminant Discharge Permits (0010, 0020, 0025, 0030, 0040, 0052, 0054, 0056, 0060, 0062, 0064, 0066, 0068, 0070, 0082, 0084, 0090, 0094, 8010, 8020);
• Division 222—Stationary Source Plant Site Emission Limits (0010, 0020, 0030, 0035, 0040, 0041, 0042, 0046, 0048, 0051, 0055, 0080, 0090);
• Division 224—New Source Review (0010, 0020, 0025, 0030, 0034, 0038, 0040, 0045, 0050, 0055, 0060, 0070, 0245, 0250, 0255, 0260, 0270, 0500, 0510—except paragraph (3), 0520, 0530, 0540);
• Division 225—Air Quality Analysis Requirements (0010, 0020, 0030, 0040, 0045, 0050, 0060, 0070);
• Division 226—General Emissions Standards (0005, 0010, 0100, 0110, 0120, 0130, 0140, 0210, 0310, 0320, 0400, 8010);
• Division 228—Requirements for Fuel Burning Equipment and Fuel Sulfur Content (0010, 0020, 0100, 0110, 0120, 0130, 0200, 0210);
• Division 232—Emission Standards for VOC Point Sources (0010, 0020, 0030, 0040, 0050, 0060, 0080, 0085, 0090, 0100, 0110, 0120, 0130, 0140, 0150, 0160, 0170, 0180, 0190, 0200, 0210, 0220, 0230);
• Division 234—Emission Standards for Wood Products Industries (0005, 0010 except (8) and (10), 0100, 0140, 0200, 0210—except (1), 0220—except (2), 0240—except (1), 0250—except (1) and (2), 0270, 0500, 0510, 0520, 0530, 0540);
• Divisions 236—Emission Standards for Specific Industries (0005, 0010, 0400, 0410, 0420, 0440, 8010);
• Division 240—Rules for Areas with Unique Air Quality Needs (0010, 0020, 0030, 0050, 0100, 0110, 0120, 0130, 0140, 0150, 0160, 0180, 0190, 0210, 0220, 0250, 0300, 0320, 0330, 0340, 0350, 0360, 0400, 0410, 0420, 0430, 0440, 0510, 0550, 0560, 0610);
• Division 242—Rules Applicable to the Portland Area (0400, 0410, 0420, 0430, 0440, 0600, 0610, 0620, 0630);
• Division 262—Heat Smart Program for Residential Woodstoves and Other Solid Fuel Heating Devices (0450);
• Division 264—Rules for Open Burning (0010, 0020, 0030, 0040, 0050, 0060, 0070, 0075, 0078, 0080, 0100, 0110, 0120, 0130, 0140, 0150, 0160, 0170, 0175, 0180); and
• Division 268—Emission Reduction Credits (0010, 0020, 0030).

Rules Also Approved for Lane County

• Division 200—General Air Pollution Procedures and Definitions (0020);
• Division 202—Ambient Air Quality Standards and PSD Increments (0050);
• Division 204—Designation of Air Quality Areas (0300, 0310, 0320);
• Division 208—Visible Emissions and Nuisance Requirements (0110, 0210);
• Division 214—Stationary Source Reporting Requirements (0114)(5);
• Division 216—Air Contaminant Discharge Permits (0040, 8010);
• Division 222—Stationary Source Plant Site Emission Limits (0090);
• Division 224—New Source Review (0030, 0530);
• Division 225—Air Quality Analysis Requirements (0010, 0020, 0030, 0040, 0045, 0050, 0060, 0070);
• Division 226—General Emissions Standards (0210); and
• Division 228—Requirements for Fuel Burning Equipment and Fuel Sulfur Content (0210).

B. Rules Approved but Not Incorporated by Reference

We are approving, but not incorporating by reference, the following provisions:

• ODEQ Source Sampling Manual, Volumes I and II, April 2015 (for purposes of the limits approved into the SIP);
• ODEQ Continuous Emissions Monitoring Manual, April 2015 (for purposes of the limits approved into the SIP);
• ODEQ-LRAPA Stringency Analysis and Directive, Attachment B; and
• Division 200—General Air Pollution Procedures and Definitions (0100, 0110, 0120).

C. Rules Removed

We are removing the following sections from the Oregon SIP because they have been repealed, replaced by rules noted in paragraph A above, or the state has asked that they be removed:

• Division 208—Visible Emissions and Fugitive Emissions Requirements (0100, 0200);
• Division 212—Compliance Assurance Monitoring (0200, 0210, 0220, 0230, 0240, 0250, 0260, 0270, 0280);
• Division 214—Stationary Source Reporting Requirements (0400, 0410, 0420, 0430);
• Division 222—Stationary Source Plant Site Emissions Limits (0043, 0045, 0070);
• Division 224—New Source Review (0080, 0100);
• Division 225—Air Quality Analysis Requirements (0090);
• Division 226—General Emission Standards (0200);
• Division 228—Requirements for Fuel Burning Equipment and Fuel Sulfur Content (0400, 0410, 0420, 0430, 0440, 0450, 0460, 0470, 0480, 0490, 0500, 0510, 0520, 0530);
• Division 234—Emission Standards for Wood Products Industries (0300, 0310, 0320, 0330, 0340, 0350, 0360, 0400, 0410, 0420, 0430);
• Division 236—Emission Standards for Specific Industries (0100, 0110, 0120, 0130, 0140, 0150, 0200, 0210, 0220, 0230, 0430);
• Division 240—Rules for Areas with Unique Air Quality Needs (0170, 0230, 0310);
• Division 242—Rules Applicable to the Portland Areas (0700, 0710, 0720, 0730, 0740, 0750, 0760, 0770, 0780, 0790); and
• Division 264—Rules for Open Burning (0190).

D. Rules We Are Not Acting On

For the reasons stated above, we are not incorporating the following revised provisions into the Oregon SIP because they are inappropriate for SIP approval under section 110, title I of the CAA:

• Division 200—General Air Pollution Procedures and Definitions (0050) (compliance schedules);
• Division 222—Stationary Source Plant Site Emission Limits (0060) (hazardous air pollutants);
• Division 224—New Source Review (0510(3)) (fine particulate matter inter-pollutant offset ratios); and
• Division 234—Emission Standards for Wood Products Industries (0010(8) and (10), 0210(1), 0220(2), 0240(1), 0250 (1) and (2)) (total reduced sulfur and odor).

E. Rules Deferred

• Division 214—Stationary Source Reporting Requirements (0300, 0310, 0320, 0330, 0340, 0350, 0360) (excess emissions and emergency provisions).

IV. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference as described in Section III above, and the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and/or at the EPA Region 10 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

These materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.

V. Oregon Notice Provision

Oregon Revised Statute 468.126, prohibits the ODEQ from imposing a penalty for violation of an air, water or solid waste permit unless the source has been provided five days' advanced written notice of the violation and has not come into compliance or submitted a compliance schedule within that five-day period. By its terms, the statute does not apply to Oregon's title V program or to any program if application of the notice provision would disqualify the program from federal delegation. Oregon has previously confirmed that, because application of the notice provision would preclude EPA approval of the Oregon SIP, no advance notice is required for violation of SIP requirements.

VI. Statutory and Executive Orders Review

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 this action does not involve technical standards; 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, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Incorporation by reference
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

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

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart MM—Oregon

2. Section 52.1970 is amended:

a. In paragraph (c), by revising Table 2 and adding Table 5;

b. In paragraph (e), under the table entitled “Oregon Administrative Rules, Approved But Not Incorporated By Reference”, by revising the entries “200-0100”, “200-0110”, and “200-0120”;and by revising the tables entitled “EPA Approved Oregon State Directive” and “EPA Approved Manuals.”

The revisions read as follows:

3. Section 52.1987 is amended by revising paragraph (a) to read as follows: