[Federal Register Volume 65, Number 91 (Wednesday, May 10, 2000)]
[Rules and Regulations]
[Pages 29956-29959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11671]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR-77-7292-a; FRL-6582-9]


Approval and Promulgation of State Implementation Plans: Oregon 
RACT Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA Region 10 is approving Oregon's reasonably available 
control technology (RACT) rule amendments for volatile organic 
compounds (VOC) as revision to the state implementation plan (SIP). 
These amendments were submitted to EPA on December 7, 1998 and were 
adopted by the Oregon Environmental Quality Commission on September 17, 
1998 to be effective on

[[Page 29957]]

October 12, 1998. After publishing public notices in newspapers of 
general circulation, Oregon Department of Environmental Quality (ODEQ) 
held public hearings on July 15, 1998 in Corvallis, and on July 16, 
1998 in Portland. The ODEQ did not receive any written or oral public 
comments affecting the proposed RACT rule amendments.

DATES: This direct final rule is effective on July 10, 2000 without 
further notice, unless EPA receives adverse comment by June 9, 2000. 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 must be submitted to Mr. Mahbubul Islam, 
Environmental Scientist, Office of Air Quality, EPA Region 10, 1200 
Sixth Avenue, Seattle, WA 98101. Copies of the technical support 
document are available for public review at the EPA Region 10 office 
during normal business hours. Copies of documents relative to this 
action are available for public inspection during normal business hours 
at the following locations. The interested persons wishing to examine 
these documents should make an appointment with the appropriate office 
at least 24 hours before the visiting day. Oregon Department of 
Environmental Quality, Air Quality Division, 811 SW Sixth Avenue, 
Portland, OR 97204-1390. Telephone: (503) 229-5696. Documents which are 
incorporated by reference are available for public inspection at the 
Air and Radiation Docket and Information Center, Environmental 
Protection Agency, 410 M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Mr. Mahbubul Islam, Environmental 
Scientist, Office of Air Quality, EPA Region 10, 1200 Sixth Avenue, 
Seattle, WA 98101, Telephone: (206) 553-6985.

SUPPLEMENTARY INFORMATION:

I. What Is RACT?

    RACT is the lowest emission limitation that a particular source or 
source category is capable of meeting by the application of control 
technology that is reasonably available considering technological and 
economic feasibility. The Portland ozone maintenance plan relies on 
RACT as a emission reduction strategy to maintain compliance with the 
standard for the next ten years. This rule addresses changes to RACT 
for existing sources of VOC's in Portland, Salem, and Medford areas.
    There are two types of RACT which are applicable to sources: 
categorical and source-specific. The categorical RACT applies to a 
group of sources which have similar operations. The non categorical or 
source-specific RACT is applicable to sources which do not fit into one 
of the established RACT categories but have potential to emit in excess 
of 100 ton VOC's per year before considering any add-on controls.

II. What Does This Rule Making Affect?

    This rule making is needed to change the applicability of non-
categorical RACT which is based on the definition of potential to emit 
(PTE). The revised rule makes the Oregon's definition of PTE consistent 
with the federal definition. The PTE for a source is now defined as the 
maximum emission capacity of a stationary source based on its physical 
and operational design without any add-on controls. In April 1997, the 
ODEQ proposed and adopted this new definition of PTE as a temporary 
rule as a part of the Portland ozone maintenance plan. The current rule 
will make the temporary rule permanent. Prior to the temporary rule, 
credits were given for any add-on control technology when PTE was 
calculated to determine applicability of the RACT requirements. The new 
rule requires an analysis based on pre-control conditions.
    This rule approves a change in permit processing for the gasoline 
dispensing facilities. Currently, stage I and stage II permits are 
issued on an annual basis with annual fee collection. The new rule will 
allow permits to be issued for 10 years and fees to be collected on a 
biennial basis. This does not affect the requirements of the permit or 
the amount of permit fees, only the duration and frequency of 
collection. The change was necessary to reduce ODEQ's staff workload by 
decreasing the frequency of permit issuance and fee collection, and 
providing greater clarity and consistency in implementation.
    In this rule, the vapor balance requirement for stage I/II sources 
is changed from a throughput of 10,000 gallons (30 day rolling average) 
to a capacity of 1500 gallons. This change was needed to maintain 
consistency and keep sources from alternating from being subject to the 
rules to not being subject to the rules based on their monthly 
throughput. The change exempts existing small (less than 1500 gallon) 
tanks from the submerged fill and vapor balance requirements. The new 
tanks of the same size are exempt from the vapor balance requirement 
only. This change could in theory allow small facilities to avoid 
control requirements, but in reality sources having such a small 
capacity do not exist. Also, the changes are not a relaxation of the 
existing rules, because gas dispensing facilities that have monthly 
throughput in excess of 10,000 gallons also have storage tanks which 
are larger than 1500 gallons. Thus, the same control requirement that 
is currently subject to the 10,000 gallon throughput trigger will be 
subject to the 1500 gallon capacity trigger.
    This rule also contains a number of housekeeping, numbering and 
language changes, to reduce redundancy and ensure consistency. The 
revised language in the rules is intended to improve clarity and avoid 
confusion. The sections of the Oregon rules affected or modified in 
this rule making package are as follows: OAR 340-022-0100 through 340-
022-0130; OAR 340-022-0170 through 340-022-0180; OAR 340-022-0300 
through 340-022-0403; (RACT rules).

III. Administrative Requirements

Executive Orders

    A. Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR

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19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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. EPA will submit a report containing this rule 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). This rule will be effective July 10, 2000 unless EPA receives 
adverse written comments by July 9, 2000.
    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 July 10, 2000. 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).)

B. Oregon Notice Provision

    During EPA's review of a SIP revision involving Oregon's statutory 
authority, a problem was detected which affected the enforceability of 
point source permit limitations. EPA determined that, because the five-
day advance notice provision required by ORS 468.126(1) (1991) bars 
civil penalties from being imposed for certain permit violations, ORS 
468 fails to provide the adequate enforcement authority that a 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 section 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 ORS 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 a state program from federal approval or 
delegation. ODEQ responded to EPA's understanding of the application of 
ORS 468.126(2)(e) and agreed that, because federal statutory 
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.

C. Oregon Audit Privilege

    Another enforcement issue concerns Oregon's audit privilege and 
immunity law. 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.

List of Subjects 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.

    Dated: March 1, 2000.
Chuck Findley,
Acting 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--Oregon

    2. Section 52.1970 is amended by adding paragraph (c)(130) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (130) The Environmental Protection Agency (EPA) approves various 
amendments to the Oregon State RACT rules for volatile organic 
compounds which are contained in a submittal to EPA, dated December 7, 
1998.
    (i) Incorporation by reference.
    (A) EPA is approving the revised Oregon Regulations, as effective 
October 12, 1998: OAR 340-022-0100; OAR 340-022-0102; OAR 340-022-0104; 
OAR 340-022-0106; OAR 340-022-0107; OAR 340-022-110; OAR 340-022-0120; 
OAR 340-022-0125; OAR 340-022-0130; OAR 340-022-0170; OAR 340-022-0175; 
OAR 340-022-0180; OAR 340-022-0300; OAR 340-022-0400; OAR 340-022-0401; 
and OAR 340-022-0402.
    (B) EPA is repealing/removing the following provision from the 
current incorporation by reference: OAR 340-022-0403, as effective 
August 14, 1996.


    3. Section 52.1972 is amended by revising the section to read as 
follows:


Sec. 52.1972  Approval Status.

    With the exceptions set forth in this subpart, the Administrator 
approves

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Oregon's plan for the attainment and maintenancce of the national 
standards under section 110 of the Clean Air Act.

[FR Doc. 00-11671 Filed 5-9-00; 8:45 am]
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