[Federal Register Volume 60, Number 138 (Wednesday, July 19, 1995)]
[Rules and Regulations]
[Pages 37013-37015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17670]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OR45-1-6762a; FRL-5251-4]


Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves a revision 
to the State of Oregon's Air Quality Control Plan Volume 2 (The Federal 
Clean Air Act State Implementation Plan and other State Regulations). 
Specifically EPA approves a revision to Section 2.2--Legal Authority, 
of the State's Implementation Plan (SIP) and a revision to Chapters 468 
and 468A of the Oregon Revised Statutes (ORS). The SIP revision was 
submitted to address section 110(a)(2)(E) of the Clean Air Act, as 
amended (CAA).

DATES: This action will be effective on September 18, 1995 unless 
adverse or critical comments are received by August 18, 1995.
    If the effective date is delayed, timely notice will be published 
in the Federal Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, Air & Radiation Branch (AT-082), EPA, 1200 Sixth Avenue, 
Seattle, Washington 98101.
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, EPA, 401 M Street, SW., Washington, DC 20460. Copies of 
material submitted to EPA may be examined during normal business hours 
at the following locations: EPA, Region 10, Air & Radiation Branch, 
1200 Sixth Avenue (AT-082), Seattle, Washington 98101, and the ODEQ, 
811 SW., Sixth Avenue, Portland, Oregon 97204-1390.

FOR FURTHER INFORMATION CONTACT: Rindy Ramos, Air & Radiation Branch 
(AT-082), EPA, Seattle, Washington 98101, (206) 553-6510.

SUPPLEMENTARY INFORMATION.

I. Background

    On July 29, 1992, the Oregon Department of Environmental Quality 
(ODEQ) submitted to EPA a revision to Chapter 468 of the Oregon Revised 
Statutes (ORS), a new ORS Chapter 468A, and a revised Section 2.2--
Legal Authority, to the federally approved SIP. This submittal 
contained statutes amended or adopted through July, 1991. In addition, 
some of the statutes previously contained in Chapter 468 were 
renumbered and moved into the 

[[Page 37014]]
newly created Chapter 468A entitled ``Air Quality''. Chapter 468A was 
created for those statutes specific to air quality. Also, the title for 
Chapter 468 was changed from ``Pollution Control'' to ``Environmental 
Quality Generally''.
    Section 2.2--Legal Authority. This section of the SIP discusses the 
legal basis upon which Oregon's Environmental Quality Commission 
establishes policy for the operation of ODEQ and upon which ODEQ 
functions to control, prevent and abate air pollution in Oregon. This 
section also contains the statutes upon which Oregon's legal authority 
to regulate air pollutants is based.
    On August 30, 1994, the State of Oregon submitted to EPA another 
revision to Chapters 468 and 468A of the ORS. These revised chapters 
include statutes amended or adopted by the Oregon Legislature through 
August, 1993, and became state effective on November 4, 1993.
    Because the August 30, 1994, submittal supersedes the 1992 
submittal of Chapters 468 and 468A, EPA is taking action on the 1994 
submittal of the chapters and the 1992 submittal of Section 2.2--Legal 
Authority in this document.
    The August 30, 1994, submittal includes the following provisions in 
ORS Chapter 468: General Administration--sections 468.005 through 
468.075, Enforcement--sections 468.090 to 468.140, and Pollution 
Control Facilities Tax Credit--sections 468.150 to 468.190. ORS Chapter 
468A contains the following provisions: Air Pollution Control--sections 
468A.005 to 468A.085, Regional Air Quality Control Authorities--
sections 468A.100 to 468A.180, Small Business Stationary Source 
Technical and Environmental Compliance Assistance Program--section 
468A.330, Motor Vehicle Pollution Control--sections 468A.350 to 
468A.455, Woodstove Emissions Control--sections 468A.460 to 468A.520, 
and Field Burning and Propane Flaming--sections 468A.550 to 468A.620.
    In this document, EPA approves the above statutes, except for ORS 
468A.075 and ORS 468A.330, as meeting the requirements of section 
110(a)(2)(E) of the CAA and 40 CFR part 51, subpart L--Legal Authority. 
EPA is not acting on ORS 468A.075 and ORS 468A.330 in this Federal 
Register document. Section 110(a)(2)(E) requires, among other things, 
that a SIP provides assurance that a state has adequate authority under 
state law to carry out SIP requirements (and is not prohibited by any 
provision of Federal or State law from carrying out such implementation 
plan or portion thereof).
    As discussed in Section 2.2 of the SIP, ODEQ recognizes that EPA 
has not previously approved, nor will EPA now approve, statutes or 
regulations for variances as revisions to the SIP. ORS 468A.075 
provides the authority for the state to grant variances from air 
contamination rules and standards. However, since SIP rules and 
standards are relied upon to attain and maintain the National Ambient 
Air Quality Standards (NAAQS), and because any relaxation of a SIP 
requirement would require a SIP revision, and only EPA can approve a 
revision, it is not appropriate for EPA to approve the state's 
authority to grant variances into the SIP.
    It should be noted that even if the state grants a source specific 
variance to a SIP limit, EPA is not precluded from enforcing the 
federally approved SIP limit. Thus, granting of a variance by the state 
does not change the federally enforceable and approved SIP limit.
    EPA is also not acting on ORS 468A.330. This section authorizes the 
state to establish a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program (SBAP) in accordance with 
section 507 of the CAA. The statute, in conjunction with the SBAP, will 
be reviewed and acted on at a later date.
    All measures and other elements in a SIP must be enforceable by 
ODEQ and EPA (See sections 172(c)(6), 110(a)(2)(A) and 57 FR 13556). 
EPA criteria addressing the enforceability of SIPs and SIP revisions 
were stated in a September 23, 1987, memorandum (with attachments) from 
J. Craig Potter, Assistant Administrator for Air and Radiation, et al. 
(see 57 FR 13541).
    During review of the 1992 submittal, EPA determined that the Oregon 
Revised Statute Chapter 468, as amended in 1991, bars civil penalties 
from being imposed for certain stationary source permit violations. 
Specifically, ORS 468.126(1) provided that penalties could not be 
assessed against a source for permit violations unless the state first 
provided notice of the violation to the source, and further, if within 
five days, the source came into compliance or provided an adequate 
schedule to come into compliance in the future, no penalties could be 
assessed. EPA informed the Oregon Department of Environmental Quality 
that this provision was unacceptable to the extent it applied to permit 
limits which were specified in the SIP and were relied on to attain, 
maintain or demonstrate attainment with a NAAQS.
    On September 3, 1993, the Governor of Oregon signed into law new 
legislation correcting this deficiency. The new law provides that the 
five-day advance notice provision required by ORS 468.126(1) does not 
apply if the notice requirement would disqualify a state program from 
federal approval or delegation (see ORS 468.126(2)(e)).
    The state has acknowledged, by a letter dated November 5, 1993, 
that, pursuant to ORS 468.126(2)(e), the notice provision in ORS 
468.126(1) will not apply to violations of SIP requirements contained 
in permits, including permits containing industrial source control 
requirements, relied upon to attain, maintain, or demonstrate 
attainment with a NAAQS. Therefore, EPA is approving this provision 
into the SIP. It's application to non-SIP items that are specified in a 
permit will be separately reviewed in conjunction with any submitted 
permit program.

II. This Action

    EPA approves the July 29, 1992, submittal revising Section 2.2--
Legal Authority of the Oregon SIP. EPA also approves the August 30, 
1994, submittal revising ORS Chapters 468 and 468A, except for ORS 
468A.075 and ORS 468A.330. This revision of the ORS became state 
effective November 4, 1993.

III. Administrative Review

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2). 

[[Page 37015]]

    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective September 18, 1995 unless, by August 18, 1995 adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be timely 
withdrawn by publishing a subsequent document that will withdraw the 
final action. All public comments received will be addressed in a 
subsequent final rule based on this action serving as a proposed rule. 
The EPA will not institute a second comment period on this action. Any 
parties interested in commenting on this action should do so at this 
time. If no such comments are received, the public is advised that this 
action will be effective September 18, 1995.
    The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air 
Act Amendments enacted on November 15, 1990. The EPA has determined 
that this action conforms with those requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The OMB has exempted this regulatory action from 
E.O. 12866 review.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 18, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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), 42 U.S.C. 
7607(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Note: Incorporation by reference of the Implementation Plan for 
the State of Oregon was approved by the Director of the Office of 
the Federal Register on July 1, 1982.

    Dated: June 23, 1995.
Chuck Clarke,
Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart MM--Oregon

    2. Section 52.1970 is amended by adding paragraph (c)(111) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (111) The EPA approves a revision to the State of Oregon's Air 
Quality Control Plan Volume 2 (The Federal Clean Air Act State 
Implementation Plan and other State Regulations), specifically a 
revision to Section 2.2--Legal Authority and a revision to Chapters 468 
and 468A of the Oregon Revised Statutes (ORS).
    (i) Incorporation by reference.
    (A) On July 29, 1992 and August 30, 1994, ODEQ submitted to EPA a 
revision to Oregon Revised Statutes (ORS), Chapter 468 (1993 Edition), 
and Chapter 468A (1993 Edition), both of which were amended and adopted 
through August 1993 and in effect on November 4, 1993; and a revised 
Section 2.2--Legal Authority, including subsections 2.2.1 through 
2.2.9, dated and revised July 29, 1992, the date of the official 
attached transmittal letter.

[FR Doc. 95-17670 Filed 7-18-95; 8:45 am]
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