[Federal Register Volume 63, Number 142 (Friday, July 24, 1998)]
[Rules and Regulations]
[Pages 39743-39747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19834]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OR 48-1-7263a; FRL-6127-4]
Approval and Promulgation of Implementation Plans: Oregon
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: Environmental Protection Agency (EPA) approves revisions to
the Oregon State Implementation Plan (SIP). EPA is approving revisions
to Oregon Administrative Rules (OAR) Chapter 340, Division 25 submitted
to EPA on August 31, 1995, and October 8, 1996, to satisfy the
requirements of section 110 of the Clean Air Act (CAA) and 40 CFR part
51.
DATES: This direct final rule is effective on September 22, 1998,
without further notice, unless EPA receives relevant adverse comment by
August 24, 1998. If adverse comment is received, EPA will publish a
timely withdrawal of the direct final rule in the Federal Register and
inform the public that the rule will not take effect.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue,
Seattle, Washington 98101.
[[Page 39744]]
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW., Washington,
D.C. 20460. Copies of material submitted to EPA may be examined during
normal business hours at the following locations: EPA, Region 10,
Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington
98101, and Oregon Department of Environmental Quality, 811 SW. Sixth
Avenue, Portland, Oregon 97204.
FOR FURTHER INFORMATION CONTACT: Rindy Ramos, Office of Air Quality
(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-6510.
SUPPLEMENTARY INFORMATION:
I. Introduction
On August 31, 1995, the Oregon Department of Environmental Quality
(ODEQ) submitted to the Environmental Protection Agency (EPA), a
revision to the Oregon State Implementation Plan (SIP). This submittal
contained a revision to Oregon Administrative Rules (OAR), Chapter 340,
Division 25. Specifically, OAR 340-25-305, OAR 340-25-320, and OAR 340-
25-325 were revised. The above revision was adopted by the state on
January 20, 1995, and became state effective on February 17, 1995. The
intent of this revision was to revise the particulate matter allowable
emission limit.
Subsequently, on October 8, 1996, another revision to OAR 340-25-
320 and OAR 340-25-325 was submitted to EPA for incorporation into the
state's federally approved SIP. This revision was adopted by the state
on January 12, 1996, and became state effective January 29, 1996. The
purpose of this revision was to resolve a conflict between the above
rules and Notice of Construction rules OAR 340-28-800 to OAR 340-28-
820. EPA will discuss both submittals in this document.
II. Background
OAR 340-25-325
ODEQ originally adopted, as a matter of state law, the particulate
matter emission standard, OAR 340-25-325, for the hardboard industry in
1971. It became part of the federally approved SIP in 1986. The
emission standard set at that time was 1.0 lb/ksf (1.0 pounds of
particulate matter per 1,000 square feet of finished product). In
establishing this limit, emissions from exhaust vents above the
hardboard presses were assumed to be negligible and therefore were not
considered in establishing the 1.0 lb/ksf emission limit. Because they
were assumed to be negligible, the limit was not intended to require
controls on the vents. Actual emissions from a total facility (vent and
nonvent sources) were assumed to be less than 1.0 lb/ksf. However,
subsequent to the state adoption of the emission standard, testing of
the vents have shown that they are not negligible as originally assumed
and therefore, the standard was set too low for existing plants to
demonstrate compliance. To correct this matter, ODEQ has revised the
rule to account for the press vents particulate matter emissions and
has submitted the revised rule for inclusion in the federally approved
SIP.
However, even though the actual emissions of a particular facility
will not be allowed to increase, the revision will result in an
increase in allowable emissions. And, because the current emission
limits are part of the federally approved SIP, a demonstration that the
revision will not have an adverse impact on air quality is needed.
III. Discussion
A. August 31, 1995 Submittal
1. OAR 340-25-325: The August 1995 rule revision to OAR 340-25-325
corrects the emission limit by including press vent emissions. The
revision keeps the current limit as it applies to all non-vent
emissions sources at a plant and limits vent emissions at each affected
plant to their baseline level or a set maximum level. The revised rule
does not result in an increase in actual emissions; rather it reflects
a correction allowed by OAR 340-028-1020(7)(e) when errors are found or
better data is available for calculating PSELs.
The revision creates a new limit calculated from baseline
1 emissions. A plant's limit would be the sum of vent
emissions and the lesser of baseline non-vent emissions or 1.0 lb/ksf
(the original limit). In no case could the emission rate exceed 2.0 lb/
ksf. The effect would be to hold total emissions to what they would
have been at baseline had the press/cooling vents emissions been taken
into account, or less if baseline non-vent emissions were greater than
1.0, or if the total exceeds 2.0 lb/ksf.
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\1\ Baseline vent emission rate is defined as a source's vent
emissions rate during the baseline period (1977/1978) as defined in
OAR 340-28-0110, expressed as pounds of emissions per thousand
square feet of finished product, on a \1/8\ inch basis.
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2. OAR 340-25-305: The August 1995 revision to OAR 340-25-305 added
the definition for ``baseline vent emission rate'', clarified the
definition of EPA Method 9, and added the definition for ``press/
cooling vent'' to the definitions section of Chapter 340, Division 25,
Statewide Rules--Board Products Industries.
3. OAR 340-25-320: The revision to OAR 340-25-320 was housekeeping
in nature and corrected a cross referencing problem with another rule.
The revision required that any person who proposed to control windblown
particulate emissions from truck dump storage areas other than by
enclosure, had to apply to ODEQ for authorization to utilize
alternative controls. The rule was revised to require the application
to be submitted pursuant to OAR 340-28-800 through 820 instead of OAR
340-20-020 through 030.
B. October 8, 1996 Submittal
1. OAR 340-25-320 and 340-25-523: The October 1996 submittal was
also housekeeping in nature. OAR 340-25-320(1)(c) Particleboard
Manufacturing Operations--Truck Dump and Storage Areas and OAR 340-25-
325(1)(c) Hardboard Manufacturing Operations--Truck Dump and Storage
Areas were revised by deleting the reference to OAR 340-28-800 to 820.
A conflict existed because OAR 340-28-810(2) restricted OAR 340-28-800
through 820 from applying to federal operating permit program sources.
Because the state wanted all sources to be subject to OAR 340-25-
320(1)(c) and OAR 340-25-325(1)(c), reference to OAR 340-28-800 to 820
was deleted.
IV. Sources Affected
A total of seven hardboard manufacturing plants are affected by the
revision to OAR 340-25-325. Six plants are located in areas currently
designated unclassified for particulate matter with an aerodynamic
diameter less than or equal to a nominal 10 micrometers (PM-10). One of
these six plants, Collins Products LLC, is located directly outside the
Klamath Falls PM-10 nonattainment area. The seventh plant, a Jeld Wen,
Inc. facility is located inside the boundary of the Klamath Falls PM-10
nonattainment area.
A. Analysis of Revision
1. Facilities located in areas unclassified for PM-10: In
accordance with Section 110(l) of the Clean Air Act (CAA), EPA Region
10 required either a demonstration or documentation that the PM-10
National Ambient Air Quality Standards (NAAQS) and visibility would be
protected and documentation that the revision would not allow a
violation of the Prevention of Significant Deterioration (PSD)
requirement.
[[Page 39745]]
Bearing in mind the original intent of the rule revision, ODEQ and
the region agreed upon the following methodology: (1) for those sources
which had not changed their mode of operation since baseline, the
region would not require a PSD analysis instead a written justification
including emission calculations would be acceptable; and (2) for those
sources whose method of operation had changed since the hardboard rule
was promulgated and the change resulted in emission increases above the
significant threshold levels, a complete PSD analysis would be
required. Sources that would be subject to a PSD analysis would also
have to undergo a visibility analysis.
However, a PSD increment analysis for all affected sources would
not be required. Since the press vents were in operation when baseline
was established (1977/1978), and the rule revision does not allow for
an increase in actual emissions, a PSD increment analysis was not
required. The rule, by itself, does not allow for increment
consumption.
For NAAQS purposes, the assumption is made that since these sources
are not located in a nonattainment area (the areas are unclassified)
and emissions from the press vents have been occurring since 1977/1978,
increasing the allowable limit to reflect actual emissions would not
adversely affect air quality. The information before EPA does not
indicate that an air quality problem currently exists.
Visibility requirements are addressed through the fact that this
revision does not allow for an increase in actual emissions above those
accounted for in Oregon's long term visibility strategy. Again, as
discussed above, the SIP revision only establishes allowable emissions
equal to or less than baseline emissions.
2. Facility located inside the Klamath Falls PM-10 nonattainment
area: It is EPA position that the revision to OAR 340-025-325 is
subject to Section 193 of the CAA, as amended, for a source located in
one of Oregon's PM-10 nonattainment areas. And therefore, the revision
must demonstrate that the increase in allowable emissions will not have
an adverse impact on timely attainment of the PM-10 National Ambient
Air Quality Standards (NAAQS) in those areas. Also, the demonstration
must ensure that emission reductions equivalent to those required by
the current SIP rule are achieved. This position is based on the fact
that the rule was part of the federally approved SIP before enactment
of the Clean Air Act Amendments (CAAA) of 1990. The only source located
inside a PM-10 nonattainment area affected by this rule revision is the
Jeld Wen, Inc. facility in Klamath Falls.
On September 22, 1995, ODEQ submitted a revision to the November
15, 1991, attainment plan for the Klamath Falls PM-10 nonattainment
area. This revision addressed, among other things, the above Section
193 requirement. A review of the area's attainment demonstration
indicated that the increase in allowable emissions would not adversely
impact air quality. The 1991 attainment plan and 1995 revision to the
plan have both been approved by EPA. See 61 FR 28531 (June 5, 1996) and
62 FR 18047 (April 14, 1997) for details. It is EPA's position that the
requirements of Section 193 have been satisfied.
3. Facility located outside the Klamath Falls PM-10 nonattainment
area: One of the facilities affected by this revision, Collins Products
LLC, is located outside the boundary of the Klamath Falls PM-10
nonattainment area. During assessment of the source's impact on the
nonattainment area, a 1995 dispersion modeling analysis indicated that
a violation of the 24-hour PM-10 NAAQS existed in an unmonitored
location outside the nonattainment area boundary. To address the
modeled violation, and allow EPA to approve the hardboard rule as it
applies to Collins Products, Collins Products agreed to the
installation of additional control devices and a reduction in permitted
allowable emissions. Through the installation of three baghouses and
the reduction in allowable emissions, Collins Products was able to
demonstrate compliance with the 24-hour PM-10 NAAQS. The requirement to
install additional control devices and the reduction in permitted
emission limits have been incorporated into their Air Contaminant
Discharge Permit (ACDP). 2 An addendum to their ACDP was
issued on June 2, 1997. Oregon's ACDP regulations are part of the
federally approved SIP and their permits are federallly enforceable.
(See 40 CFR 52.1988).
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\2\ See letter from Gregory A. Green, Administrator Air Quality
Division, ODEQ to Anita Frankel, Air Director, USEPA, Region 10
dated April 8, 1997.
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B. July 18, 1997 Revision to the PM-10 NAAQS
On July 18, 1997, EPA revised the PM NAAQS (see 62 FR 38651). This
revision changed the form of the 24-hour PM-10 standard, retained the
annual standard, and added 24-hour and annual standards for PM with an
aerometric mean diameter less than 2.5 micrometers (PM-2.5). Section
50.3 of 40 CFR Part 50 was also revised to remove the requirement to
correct the temperature and pressure of measured PM concentrations to
standard reference conditions. The revised PM NAAQS and their
associated appendices became effective on September 16, 1997. However,
the PM-10 NAAQS in effect before September 16, 1997, (pre-existing
standard) was not revoked upon establishing the revised PM NAAQS.
3
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\3\ See memorandum dated December 27, 1997, from Richard D.
Wilson, Acting Assistant Administrator for Air and Radiation, to
Regional Administrators entitled Guidance for Implementing the 1-
Hour Ozone and Pre-existing PM10 NAAQS.
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Additionally, it is EPA's opinion that the submittal conforms to
EPA's guidance for ``Grandfathering'.4 EPA has developed
guidance on applying previously applicable standards to pending SIP
revisions where the relevant requirements have changed since the state
prepared the SIP submittal. The submittal conforms to the applicable
CAA requirements for the pre-existing PM-10 NAAQS.
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\4\ See memorandum dated January 27, 1988, from Gerald A.
Emison, Director, Office of Air Quality Planning and Standards, to
Director, Air and Toxics Division, Region X, entitled
``Grandfathering'' of Requirements for Pending SIP Revisions.
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V. Summary of Action
Section 110(l) of the CAA provides that EPA may not approve a
revision to a state's SIP that would interfere with any applicable
requirement concerning attainment and reasonable further progress or
any other applicable requirement of the Act. EPA has thoroughly
evaluated the above revision and is approving the revisions to OAR
Chapter 340, Division 25, as submitted on August 31, 1995, and October
8, 1996.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors, and in
relation to relevant statutory and regulatory requirements.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
relevant adverse comments be filed. This rule will be effective
September 22, 1998, without further notice unless the Agency receives
[[Page 39746]]
relevant adverse comments by August 24, 1998.
If the EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period. Only parties interested in
commenting on this rule should do so at this time. If no such comments
are received, the public is advised that this rule will be effective on
September 22, 1998, and no further action will be taken on the proposed
rule.
VI. Administrative Requirements
A. Executive Order 12866 and 13045
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled, ``Regulatory Planning and
Review'' review.
The final rule is not subject to E.O. 13045, entitled, ``Protection
of Children from Environmental Health Risks and Safety Risks'' because
it is not an ``economically significant'' action under E.O. 12866.
B. Regulatory Flexibility Act
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. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
C. Unfunded Mandates
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 as 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
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the Comptroller General
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. Section 804, however, exempts from section 801 the
following types of rules: rules of particular applicability; rules
relating to agency management or personnel; and rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA
is not required to submit a rule report regarding today's action under
section 801 because this is a rule of particular applicability.
E. Petitions for Judicial 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 22, 1998. 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).
F. Oregon's Audit Privilege Act
Nothing in this action should be construed as making any
determination or expressing any position regarding Oregon's Audit
Privilege Act, ORS 468.963 enacted in 1993, or its impact upon any
approved provision in the SIP, including the revision at issue here.
The action taken herein does not express or imply any viewpoint on the
question of whether there are legal deficiencies in this or any other
Clean Air Act program resulting from the effect of Oregon's audit
privilege and immunity law. A state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on federal
enforcement authorities. EPA may at any time invoke its authority under
the Clean Air Act, including, for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by a state audit privilege or immunity law.
G. Oregon's Advance Notice Prior to Penalty
In reviewing previous SIP revisions, EPA determined that because
the five-day advance notice provision required by ORS 468.126(1)
enacted in 1991, bars civil penalties from being imposed for certain
permit violations, ORS 468 fails to provide the adequate enforcement
authority the State must demonstrate to obtain SIP approval, as
specified in Section 110 of the Clean Air Act and 40 CFR 51.230.
Accordingly, the requirement to provide such notice would preclude
federal approval of a 110 SIP revision.
To correct the problem, the Governor of Oregon signed into law new
legislation amending ORS 468.126 on September 3, 1993. This amendment
added paragraph 468.126(2)(e) which provides that the five-day advance
notice required by ORS 468.126(1) does not apply if the notice
requirement will disqualify the State's program from federal approval
or delegation. ODEQ has responded to EPA's understanding of the
application of 468.126(2)(e) and agrees that, if federal statutory
[[Page 39747]]
requirements preclude the use of the five-day advance notice provision,
no advance notice will be required for violations of SIP requirements
contained in permits.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter.
Note: Incorporation by reference of the Implementation Plan for
the State of Oregon was approved by the Director of the Office of
Federal Register on July 1, 1982.
Dated: July 9, 1998.
Chuck Clarke,
Regional Administrator, Region 10.
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 et seq.
Subpart MM--State of Oregon
2. Section 52.1970 is amended by adding paragraph (c) (126) to read
as follows:
Sec. 52.1970 Identification of plan.
* * * * *
(c) * * *
(126) On August 31, 1995, and October 8, 1996, the Director of ODEQ
submitted to the Regional Administrator of EPA revisions to its Oregon
SIP: the Oregon Administrative Rules (OAR) Chapter 340, Division 25,
Specific Industrial Standards (OAR 340-25-305, 320 and 325).
(i) Incorporation by reference.
(A) August 31, 1995, letter from ODEQ to EPA submitting a revision
to the Oregon Administrative Rules (OAR); OAR 340-25-305, State
effective on February 17, 1995.
(B) October 8, 1996, letter from ODEQ to EPA submitting a revision
to the Oregon Administrative Rules (OAR); OAR 340-25-320 and OAR 340-
25-325, State effective on January 29, 1996.
[FR Doc. 98-19834 Filed 7-23-98; 8:45 am]
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