[Federal Register Volume 66, Number 212 (Thursday, November 1, 2001)]
[Rules and Regulations]
[Pages 55105-55112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27279]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket #s: OR 68-7283a, OR 37-2-6301a, and OR 37-1-6301a; FRL-7035-6]


Approval and Promulgation of Air QualityImplementation Plan; 
Oregon

AGENCY: Environmental Protection Agency (EPA or ``we'').

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving most but not all 
of the State Implementation Plan (SIP) revisions submitted by the State 
of Oregon. This rulemaking evaluates the provisions of the Oregon 
Visibility SIP submitted August 26, 1993, smoke management plan 
provisions submitted on August 26, 1993, amendments to the smoke 
management plan for the Blue Mountains submitted September 27, 1995, 
and revisions to the Oregon field burning program submitted July 3, 
1997. We are acting on these submissions together because they address, 
or are affected by, the control of particulate matter from area 
sources, specifically smoke from field burning and smoke from forestry 
burning. These rules are also linked through the Oregon Visibility SIP, 
which seeks to control visibility degradation through field burning 
programs and smoke management programs.
    EPA is taking no action on the provision in the visibility SIP 
changing the review period from three to five years. Instead, the 
original three year review cycle will remain in the federally approved 
SIP until the first Regional Haze SIP is submitted and approved.

DATES: This direct final rule will be effective December 31, 2001, 
unless EPA receives adverse comment by December 3, 2001. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the informing the public that the rule will not 
take effect.

ADDRESSES: Mail written comments to Steven K. Body, EPA, Region 10, 
Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 
98101. You can see copies of the relevant documents used in this 
rulemaking during normal business hours at the following location: EPA 
Region 10, Office of Air Quality, 1200 Sixth Avenue, Seattle, 
Washington, 98101.

FOR FURTHER INFORMATION CONTACT: Steven K. Body, EPA Region 10, Office 
of Air Quality, at (206) 553-0782.

SUPPLEMENTARY INFORMATION: The supplementary information is organized 
in the following order:

I. Visibility
    A. What is visibility protection and why do we have it?
    B. How is visibility being protected in Oregon?
    C. What does Oregon's 1993 Visibility SIP submission propose to 
change and how do these changes compare to the Federal requirements?
    D. Which regulations are being approved through this federal 
action?
II. Smoke Management Plan
    A. What is Oregon's Smoke Management Plan?
    B. How does Oregon's 1993 submission change the plan?
    C. How does the Smoke Management Plan compare to Federal 
requirements?
    D. Which regulations are being approved through this Federal 
action?
III. Smoke Management Plan--Blue Mountains Revision
    A. What changes to the Smoke Management Plan are being proposed?
    B. What are the Federal requirements?
    C. Which regulations are being approved through this Federal 
action?
IV. Field Burning
    A. What is Oregon's field burning program?
    B. How does this SIP submission change the program?
    C. What are the changes in acreage limitations?
    D. What are the changes in registration and permitting of 
different types of burning?
    E. Are there any other significant changes proposed by the 1997 
SIP submission?
    F. What are the Federal requirements for field burning?
    G. Which regulations are being approved through this Federal 
action?
V. Administrative Requirements

I. Visibility

A. What Is Visibility Protection and Why Do We Have It?

    Section 169A of the Federal Clean Air Act (CAA or Act) requires 
states to protect visibility in mandatory Class I Federal areas where 
visibility is an important value. Mandatory Class I Federal areas are 
generally large national parks or wilderness areas where visibility is 
considered an important value. In Oregon, there are 12

[[Page 55106]]

mandatory Class I Federal areas, which include the Mount Hood 
Wilderness, the Mount Jefferson Wilderness, Three Sisters Wilderness, 
and Crater Lake National Park. A full listing of these mandatory Class 
I Federal areas can be found at 40 CFR 81.425, as well as at OAR 340-
30-120. The Federal rules regulating visibility protection are set out 
in 40 CFR part 51, subpart P.
    What are the main visibility protections provided for by the 
Federal rules? The Clean Air Act sets out a goal of preventing any 
future and remedying any existing impairment of visibility in mandatory 
Class I Federal areas (section 169(A)). Employing a close coordination 
process among the state and the Federal land managers (FLM), the 
Federal rules require monitoring of visibility in mandatory Class I 
Federal areas, as well as the development of a long-term strategy for 
making reasonable progress towards this national visibility goal. The 
visibility protection rules also provide for an assessment of 
visibility impacts from any new major stationary source or major 
modification that may affect mandatory Class I Federal areas. 
Additionally, in the event that a Federal land manager certifies 
impairment of visibility in a mandatory Class I Federal area that could 
be caused, or contributed to, by a major stationary facility, Best 
Available Retrofit Technology (BART) may be imposed on the facility.
    The Federal visibility rules were modified in 1999 to include 
provisions for addressing regional haze. Regional haze is visibility 
impairment which results from emissions from many point and non-point 
sources. All of the states are currently in the process of developing 
revisions to their SIP to address the regional haze provisions. 
Therefore, the SIP submission under discussion in this action is not 
required to comply with the regional haze provisions of 40 CFR part 51, 
subpart P. Please see the Technical Support Document associated with 
this rule for additional discussion of the visibility requirements of 
the Federal rule.

B. How Is Visibility Being Protected in Oregon?

    On November 22, 1988, EPA approved visibility protection provisions 
into Oregon's State Implementation Plan (see 53 FR 47188). Oregon's 
visibility protection provisions are at Oregon Administrative Rule 
(OAR) 340-20-047, section 5.2. The visibility protection SIP provided 
three approaches to visibility protection: (1) A short-term strategy to 
be accomplished over a 5 year period to mitigate existing visibility 
impairment; (2) a long-range strategy to reduce fine particle emissions 
from agricultural field burning and forest prescribed burning over a 
10-15 year period; and (3) on-going visibility protection afforded 
through the New Source Review permitting process. EPA approved the 
visibility SIP because it conformed to the federal visibility 
protection provisions outlined in 40 CFR 51.300, subpart P. On August 
26, 1993, Oregon submitted changes to Oregon's regulations as proposed 
revisions to the visibility SIP.

C. What Does Oregon's 1993 Visibility SIP Submission Propose To Change 
and How Do These Changes Compare to the Federal Requirements?

    The federal rules regulating visibility protection are set out in 
40 CFR part 51, subpart P. Many of the federal requirements set out in 
subpart P are specific to SIPs that contain BART controls on a 
stationary source. Currently there are no major stationary sources in 
Oregon that could be required to adopt BART controls, therefore the 
BART requirements in subpart P are not applicable to this review of the 
Oregon SIP.
    How does Oregon's SIP submission compare with the federal 
visibility requirements? The federal regulations require states to: (1) 
Develop long-term strategies for improving visibility over a 10-15 year 
period; (2) assess visibility impairment; (3) establish BART emission 
limits (if applicable); and (4) implement visibility protection 
provisions under the Prevention of Significant Deterioration program. 
See 40 CFR 51.302. The first, second and fourth requirements are 
discussed below. The third requirement is not applicable to Oregon 
because no Federal Land Manager has certified impairment of visibility 
in a Class I area due to a specific stationary source.
    What are the proposed changes to the long-term strategy for 
visibility protection and how do they compare to the federal 
requirements? The 1993 submission builds on the programs established in 
the earlier visibility SIP. Oregon set out a comprehensive plan for all 
its Class I areas. Focusing on vegetative burning, the 1993 submission: 
(1) Expands the period during which restrictions to protect visibility 
apply by approximately 15 days; (2) incorporates the Class I area 
visibility protection provisions of the Union and Jefferson County 
field burning ordinances (Union County Ordinance #1992-4 passed May 6, 
1992, and Jefferson County Ordinance #0-58-89 passed May 31, 1989); (3) 
reduces the annual acreage allowed for research and hardwood conversion 
burning from 1200 to 600 acres per year; and (4) revises the Willamette 
Valley field burning restriction emergency clause to allow hardship 
requests for visibility protection exemptions beyond August 10th of 
each year. In addition to these changes, the 1993 visibility SIP 
submission proposes to decrease the frequency of the formal review of 
the visibility program by the Department of Environmental Quality from 
3 to 5 years. However, EPA will take no action on this provision 
because at this time Federal visibility protection regulations require 
the states to review and revise as necessary the visibility program 
every three years. See 40 CFR 51.306(c). Thus the three year review 
period remains in the SIP.
    EPA has determined that the 1993 submission is a general 
strengthening of the SIP because it includes additional provisions 
protecting visibility, such as the expansion of the visibility 
protection period, and the addition of field burning ordinances for 
Jefferson and Union County.
    Visibility is actively monitored in the Oregon Class I areas. 
Visibility in the Class I areas has significantly improved from the 
conditions in the 1980s. Please see the Technical Support Document 
associated with this rule for further discussion on this issue.
    The 1993 submission evaluated monitoring results for the summers of 
1984 to 1989 as part of the State's assessment of the effectiveness of 
its past controls and choice of future controls needed. Oregon 
concluded that from 23% to 31% of the visibility impairment cases 
documented within the Eagle Cap Wilderness are caused by agricultural 
field burning in the Grande Ronde Valley. Oregon also identified 
Jefferson County agricultural field burning as a source of impairment 
within the central Oregon Cascade wilderness areas. Based on this 
assessment, Oregon continues to focus on emissions from agricultural 
burning.
    EPA believes that Oregon's monitoring system and the SIP's use of 
these data satisfy the federal requirements to monitor visibility, 
assess the progress achieved in remedying existing impairment of 
visibility, assess changes in visibility since the last report, and use 
these assessments in the development of a long-term strategy. See 40 
CFR 51.302(c)(ii), 51.305, 51.306(c)(1), and 51.306(c)(3).
    40 CFR 51.307 sets out the requirements for evaluating the 
visibility impacts from any new major stationary source or major 
modification that would be constructed in an area

[[Page 55107]]

that is designated attainment or unclassified. The State of Oregon is 
fully delegated to carry out the Prevention of Significant 
Deterioration (PSD) program and complies with this section of the 
visibility provisions.

D. Which Regulations Are Being Approved Through This Federal Action?

    In this action, EPA is revising Oregon's State Implementation Plan 
to include OAR 340-20-047, section 5.2 that became effective August 11, 
1992. EPA is taking no action on the provision in OAR 340-20-047, 
section 5.2.4.2 and section 5.2.5.1, that changes the review period of 
the visibility SIP from three to five years.

II. Smoke Management Plan

A. What Is Oregon's Smoke Management Plan?

    Oregon's Smoke Management Plan (SMP) is a program designed to 
manage smoke impacts from the burning of silvicultural wastes and the 
prescribed burning of forests. The Oregon SMP tries to balance 
essential forest land burning with preventing smoke from being carried 
to, or accumulating in, designated areas and other areas sensitive to 
smoke. The SMP establishes a permitting system for burning based on 
close cooperation of the Oregon Department of Forestry (ODF) and the 
Oregon Department of Environmental Quality (ODEQ). The SMP requires 
burners to obtain burning permits and to burn only under appropriate 
meteorological conditions.
    Oregon's Smoke Management Plan is at OAR 629-43-043, Oregon 
Department of Forestry rules. On November 22, 1988, EPA incorporated 
the State of Oregon's smoke management program (OAR 629-43-043) and the 
``Operational Guidance for the Oregon Smoke Management Program'' 
(Directive 1-4-1-601) into the SIP. See 53 FR 47188 (November 22, 
1988). On August 26, 1993, Oregon submitted the Department of 
Environmental Quality Smoke Management Plan as amended and adopted as 
part of the Oregon Clean Air Act Implementation Plan (SIP) through 
Oregon Administrative Rule (OAR) 340-20-047, to EPA as a revision to 
the SMP portion of the Oregon SIP

B. How Does Oregon's 1993 Submission Change the Plan?

    Through this 1993 SIP submission, Oregon is modifying its Smoke 
Management Plan to strengthen visibility protection of the Class I 
areas, and to provide for additional protections around nonattainment 
areas for particulate matter with an aerodynamic diameter less than or 
equal to a nominal 10 micrometers (PM-10). EPA is approving Oregon's 
amendment to its Smoke Management Plan because it constitutes a general 
strengthening of the SIP.
    One of the primary strengthening provisions of the Oregon Smoke 
Management Plan is the adoption of additional restrictions on burning 
through the establishment of a Special Protection Zone (SPZ) around 
each of the six PM-10 nonattainment areas in Oregon. When this rule was 
under development in 1992, there were six PM-10 nonattainment areas; 
Klamath Falls, Medford, Oakridge, Grants Pass, Eugene-Springfield, and 
La Grande. A new nonattainment area, Lakeview, was designated on 
October 25, 1993. See 40 CFR 81.338. The SMP does not identify a SPZ 
for Lakeview. Determined in part by geography, meteorology and location 
of forested areas, the 20 mile SPZ boundary around the six PM-10 
nonattainment areas would contain additional restrictions on slash 
burning. In western Oregon, between November 15 and February 15, the 
slash burning restrictions are mandatory: (1) A prohibition on burning 
in the SPZ if the Department of Forestry forecaster determines weather 
conditions are likely to cause a smoke intrusion into the adjacent PM-
10 nonattainment area; (2) monitoring of burns for at least 3 days and 
requirements to extinguish fires to prevent smoke from smoldering fires 
from affecting the nonattainment area; and (3) a prohibition on new 
ignitions in the SPZ when there is a residential wood combustion 
curtailment in the adjacent PM-10 nonattainment area between December 1 
to February 15 (during ``Red'' woodburning curtailment). In eastern 
Oregon, these three restrictions would be voluntary for La Grande and 
Klamath Falls.
    In the event that both a PM-10 nonattainment area fails to attain 
the National Ambient Air Quality Standard by the specified deadline, 
and a measured impact from slash smoke is determined to be a 
significant contributor to the PM-10 nonattainment, then additional 
smoke burning restrictions would take effect as contingency measures to 
the PM-10 nonattainment area plans.
    The 1993 SIP revision revises the definition of slash to exclude 
brush generated by residential development land clearing. Instead, the 
burning of brush generated by residential development land clearing 
will be regulated by the Department of Environmental Quality's open 
burning rules.
    For additional discussion of the previously described modifications 
and other changes to the smoke management plan proposed by the 1993 SIP 
submission, please see the Technical Support Document associated with 
this rule.

C. How Does the Smoke Management Plan Compare to Federal Requirements?

    The visibility protection provisions at 40 CFR part 51, subpart P 
suggest that states consider Smoke Management Plans in developing long-
term strategies for visibility protection. In September 1992, the 
Environmental Protection Agency published The Prescribed Burning 
Background Document and Technical Information Document for Best 
Available Control Measures to assist states in the development of Smoke 
Management Plans (EPA-450/2-92-003). These are a few examples of how 
the federal government widely acknowledges the benefits of smoke 
management plans. However, there are no specific federal requirements 
for states to develop and adopt Smoke Management Plans. Nonetheless, 
when compared with many of the smoke management plans adopted by other 
states, Oregon's Smoke Management Plan is one of the stronger plans.

D. Which Regulations Are Being Approved Through This Federal Action?

    In this action, EPA is revising Oregon's State Implementation Plan 
to include rules for the Oregon Department of Forestry. Specifically, 
OAR 629-24-301, that became effective on August 1, 1987 and the Smoke 
Management Plan at OAR 629-43-0043 that became effective on April 13, 
1987, are approved. This action also approves Oregon Revised Statutes, 
ORS 477.515, last amended in 1971 into the SIP and modifies the 
Operational Guidance for the Oregon Smoke Management Program, Directive 
1-4-1-601 that became effective on August 11, 1992.

III. Smoke Management Plan--Blue Mountain Revision

A. What Changes to the Smoke Management Plan Are Being Proposed?

    On September 27, 1995, Oregon submitted a package of rules revising 
the Prevention of Significant Deterioration (PSD) program for Oregon. 
The package included several modifications to comply with existing 
federal requirements for the PSD program, as well as changes specific 
to the Oregon program. The 1995 submission sought to: replace Total

[[Page 55108]]

Suspended Particulate increments with PM-10 increments; change the 
boundaries for the Class I areas; change the PSD baseline date, and 
amend the Smoke Management Plan.
    On March 7, 1997, EPA approved the changes submitted in the 
September 1995 package with the exception of approving the amendments 
to the Smoke Management Plan (see 62 FR 10457). In this action, EPA is 
approving the Smoke Management Plan amendments.
    The 1995 submission amends the Smoke Management Plan in the Blue 
Mountains in eastern Oregon. The Blue Mountains comprise the Umatilla, 
Wallowa-Whitman, Ochoco, and Malheur National Forests in northeastern 
Oregon, the forest lands of the Baker Resource Area, Vale Bureau of 
Land Management (BLM) District, Central Oregon Resource Area, 
Prineville BLM District, and the Three Rivers Resource Area and the 
Burns BLM District. The 1995 submission creates a mandatory smoke 
management program that requires Forest Service and BLM to track annual 
emissions from prescribed burning and wildfire to protect against a 
violation of the PSD increment requirements. The 1995 submission 
requires prescribed burning to be curtailed if the emission target is 
reached. Should unexpected increases in wildfires cause the target 
level to be exceeded, the annual prescribed burning limit would be 
adjusted downward to offset these increases.
    The PSD baseline time period for the Blue Mountains is set using 
the period of 1980 to 1993, inclusive. The amendments to the Smoke 
Management Plan establishes a total baseline emissions from prescribed 
burning and wildfire. The total baseline emissions are estimated to be 
17,500 tons of PM-10 per year. The Smoke Management Plan distributes 
this increment between a wildfire target level of 2,500 tons of PM-10 
per year, and a prescribed burning emission limit of 15,000 tons per 
year. The 1995 submission requires wildfire emissions to be estimated, 
and adjustments to the prescribed burning schedule to be made in 
response to these estimates.
    Further, the Forest Service and BLM are required to conduct 
prescribed burning under smoke dispersion conditions which minimize 
smoke impacts and protect air quality in northeast Oregon, southeast 
Washington, and western Idaho. An important component of this program 
is the establishment of real-time monitoring of smoke impacts through a 
smoke management network operated by the Forest Service, with technical 
assistance from the Oregon Department of Environmental Quality. Should 
burning be determined to be causing a measurable smoke impact, 
aggressive mop-up or other measures would be used to reduce the 
duration or intensity of the smoke impacts.

B. What Are the Federal Requirements?

    There are no specific federal requirements for Smoke Management 
Plans. The federal requirements for the Prevention of Significant 
Deterioration are outlined in 40 CFR 51.166. As noted above, EPA 
approved the revision of the baseline date for an area in northeastern 
Oregon in March 1997. EPA has reviewed the derivation of the 17,500 
tons per year baseline and believes it is consistent with the Clean Air 
Act. EPA further believes that this Smoke Management Plan would improve 
Oregon's ability to try to control overall smoke impacts from forest 
fires. This is a creative approach to minimize air quality impacts from 
prescribed fires and wildfires based on strong cooperation among state 
air regulators, state land managers, and federal land managers.

C. Which Regulations Are Being Approved Through This Federal Action?

    In this action, EPA is revising Oregon's State Implementation Plan 
to include the ``Oregon Smoke Management Plan, Appendix 5, Operational 
Guidance to the Oregon Smoke Management Program, Criteria for National 
Forest and BLM Lands in the Blue Mountains of NE Oregon (Volume 3, 
Section A1)'' with the effective date of July 12, 1995.

IV. Field Burning

A. What Is Oregon's field burning program?

    Since the 1970's, Oregon has operated a field burning program to 
control particulate matter emissions from the burning of perennial and 
annual grass seed and cereal grain crops in the Willamette Valley. The 
Willamette Field Burning Rules are in OAR Chapter 340, Division 26. The 
open burning of all other agricultural waste material, including 
sanitizing perennial and annual grass seed crops by open burning in 
counties outside of the Willamette Valley is governed by OAR Chapter 
340, Division 23, ``Rules for Open Burning.'' This action addresses 
changes to Division 26 only.
    Over the years, Oregon has modified its field burning program. In 
1985, EPA approved the field burning SIP. The field burning program was 
a permits and fee program. Burning permits were specific to location 
and might limit or define the methods a burner may use. The 1985 field 
burning SIP established a cap on the maximum acreage to be open burned 
annually in the Willamette Valley. This acreage cap was set at 250,000 
acres annually. The 1985 field burning SIP included a record keeping 
provision that enabled the program to track acreage burned. Based on 
meteorological assessments of wind conditions and mixing heights, the 
field burning program had daily burning authorization criteria.
    EPA last approved the propane flaming annual acreage cap and 
several definitions for the Oregon field burning program in 1997 (62 FR 
8385, February 25, 1997). The approved modifications to Division 26 
were those that were effective in Oregon on March 10, 1993. The last 
substantive EPA approval of Division 26 occurred in 1985 (50 FR 31368, 
August 2, 1985). On July 3, 1997, ODEQ submitted revisions to the field 
burning program as a revision to Chapter 340, Division 26, ``Rules for 
Open Burning (Willamette Valley)'.

B. How Does This SIP Submission Change the Program?

    What are the significant changes proposed by the July 3, 1997, 
submission? This 1997 submission proposes to significantly revise the 
1985 field burning SIP. Earlier in 1997, EPA adopted several 
housekeeping changes to the Willamette Valley field burning rule (see 
62 FR 8385, February 25, 1997). The February 1997 action was not 
intended to address any substantive changes to the field burning 
program. In February 1997, EPA specifically approved the definitions 
for: ``fire safety buffer zone,'' ``marginal day,'' ``open burning,'' 
``propane flaming permit,'' ``released allocation,'' and ``stack 
burning permit.'' EPA also approved a maximum acreage to be propane-
flamed annually in the Willamette Valley.
    The July 3, 1997, submission modifying the Oregon field burning 
rules establishes three types of burning: open field burning, propane 
flaming and stack or pile burning. The 1997 submission reduces the 
total acreage allowed to be open burned, establishes a separate acreage 
cap for propane flaming, exempts stack or pile burning from the field 
burning cap and changes the registration, permitting and fee structure 
for all these burns. The 1997 submission also adds two new sections: 
Sections 340-26-033 and 340-26-055 which regulate preparatory burning 
and stack or pile burning. This 1997 submission also repeals Section 
340-26-025 which provided for Civil Penalties.

[[Page 55109]]

C. What Are The Changes in Acreage Limitations?

    How are acreage limitations affected by the new submission? In the 
1985 field burning SIP, Oregon established that the maximum acreage to 
be open burned annually would not exceed 250,000 acres. The 1985 SIP 
also set a daily burn limit of 46,934 acres per day. Propane flaming 
was not included under this acreage limitation. In supporting 
documentation on the July 3, 1997, SIP revision, provided to EPA by 
Oregon on December 22, 1999, Oregon asserts that stack or pile burning 
were not considered to be covered by this limitation, either. EPA 
disagrees. In reading the language used in the 1985 SIP, as well as the 
language adopted under the Fire Marshal Rules that were first 
promulgated in 1988, there was a consistent division only between field 
burning and propane flaming. ``Stack or pile burning'' was not 
considered to be a separate category. EPA believes that the 250,000 
annual acreage limit covered both open field burning and stack or pile 
burning.
    As noted earlier, the 1997 submission defines three different 
methods of burning: open field burning, propane flaming, and stack or 
pile burning. The 1997 submission treats each of these types of burns 
differently. One of the most aggressive forms of control in Oregon's 
field burning program is the significant decrease in the maximum 
acreage that can be open field burned annually. The maximum allowable 
acreage decreased from 140,000 (for 1992-3) to 120,000 (for 1994-5) to 
100,000 (for 1996-7) to 40,000 for 1998 and thereafter. Maximum acreage 
of fields to be propane flamed annually is set at 75,000 acres. No 
specific acreage caps have been set for stack or pile burning, however, 
the fees for stack or pile burning incrementally increase annually to 
discourage this type of burning.
    What is the effect of the acreage limitations proposed in the 1997 
submission? Combining the limits for open burning and propane flaming, 
the maximum combined acreage to be burned annually is 140,000 acres. 
This is a decrease from the 250,000 annual limit on open burning 
established in the 1985 SIP. Stack and pile burning is not included in 
this annual cap.
    As noted above, EPA believes that stack or pile burning was 
included in the 1985 SIP's annual limit of 250,000 acres. In 1999, 
Oregon estimated the amount of acreage treated by stack or pile burning 
fell from approximately 60,000 acres in 1988 to 30,000 acres in 1991, 
to 14,574 acres in 1992, to 8,588 acres in 1997. (See December 22, 1999 
letter from Laurey Cook, ODEQ, to Claire Hong, EPA Region 10). EPA 
believes that these significant decreases in the amount of acreage 
stack or pile burned are likely to continue due to the conversion of 
agricultural lands to other uses, the fall in hay prices, and the 
increased cost of sanitizing the fields. Even if we were to use the 
historically much higher 1988 levels of stack or pile burning, the 
overall acreage that would be burned would still fall below the limits 
established in the 1985 SIP for annual limits.
    In addition to the change in annual acreage limits, another change 
to the acreage limitations focused on acreage burned per day. Under the 
1985 SIP, the daily cap on acres field burned was 46,934 acres. This 
cap was based on air quality dispersion modeling that indicated that 
burning this acreage would not result in a violation of the National 
Ambient Air Quality Standards or Prevention of Significant 
Deterioration increments. The 1997 submission would repeal this daily 
acreage cap. EPA believes that repealing this daily acreage limit would 
not result in a weakening of the SIP due to the significantly decreased 
acreage that can be burned over the year for all types of burning. 
Although not a direct comparison, the annual limit in the 1997 
submission for open burning is lower than the 1985 daily cap on acres 
burned. Additionally, the 1997 submission adds acreage limits for steep 
terrain, training fires, and preparatory burns. When evaluated in 
total, EPA believes all these changes to acreage limits is a general 
strengthening of the SIP.
    In reviewing the 1997 submission, EPA considers the impact of rule 
changes on air quality. Comparing the total acreage allowed to be 
burned under the 1985 SIP to the total acreage allowed to be burned 
under the 1997 submission is a rough indicator of what air quality 
impacts may be. However, there are factors in addition to decreased 
acreage that support the idea that this 1997 modification would result 
in better air quality. The 1997 submission encourages the use of stack 
or pile burning over open field burning. In general, stack or pile 
burning tends to emit less smoke than open field burning due to higher 
combustion rates because of the concentration of materials. While this 
correlation does not hold true if the stacks or piles are wet, it is 
likely that encouraging the use of stack or pile burning over open 
field burning would result in lower emissions. Oregon estimates that an 
acre of straw burned in the field emits sixty percent more particulate 
matter than an acre of straw removed and burned in a stack. When 
evaluated in total, EPA believes that the overall impact of changes to 
acreage limitations would be a strengthening of the SIP.

D. What Are the Changes in Registration and Permitting of Different 
Types of Burning?

    Two of the main changes between the 1985 SIP and the 1997 
submission is the change in the treatment of propane flaming and the 
addition of stack or pile burning as a separate category of burning. In 
the 1985 SIP, propane flaming was exempt from rules OAR 340-26-010 
through 340-26-015 and, therefore not subject to open field burning 
requirements related to registration, permits, fees, limitations, 
allocations and daily burning authorization criteria. The 1997 
submission dramatically modifies the treatment of propane flaming. The 
1997 submission prohibits individuals from burning in a manner contrary 
to the Department's conditions. Section OAR 340-26-010 (5), states 
that, ``No person shall cause or allow open field burning, propane 
flaming, or stack or pile burning which is contrary to the Department's 
announced burning schedule specifying the times, locations and amounts 
of burning permitted, or to any other provision announced or set forth 
by the Department or this Division.'' The 1997 submission would repeal 
the exemption of propane flaming from registration, permitting and 
other general controls established for field burning. This does not 
mean that propane flaming is treated in the exact same manner as field 
burning. It is not. Rather, propane flaming is more controlled under 
the 1997 rules than it was in the 1985 SIP.
    Stack or pile burning's treatment under Division 26 is also 
clarified by the 1997 submission. The 1997 submission creates a new 
category of burning known as stack or pile burning. The 1997 submission 
does not include stack or pile burning in the annual acreage 
limitations established for field burning. As discussed earlier in this 
Federal Register notice, and in the TSD that accompanies this action, 
EPA believes that failing to include stack or pile burning in the 
annual acreage limits does not weaken the SIP because of the 
significant decrease in the acreage that can be burned under the annual 
cap.
    The 1997 submission also proposes to change the treatment of stack 
or pile burning by exempting stack or pile burning from the 
registration process. Although Oregon would no longer separately 
register acres that would be

[[Page 55110]]

stack or pile burned, Oregon would continue to permit stack or pile 
burning. Thus, Oregon would still be able to track the acres to be 
stack or pile burned through the permitting process. Oregon also 
proposes to clarify that stack or pile burning will be subject to the 
State Fire Marshal Rules that prohibit burning within 1/4 mile of major 
roadways, and that can impose additional conditions on burning. Stack 
and pile burning must be conducted with a valid permit, must follow 
established procedures of the Department, and is prohibited on any day, 
or at any time, if the Department has notified the State Fire Marshal 
that such burning is prohibited because of adverse meteorological or 
air quality conditions.
    What is the overall impact of these changes to the treatment of 
stack or pile burning? Although stack or pile burning will no longer be 
registered, it continues to be permitted, thus allowing sufficient 
regulatory authority to control stack or pile burning. EPA believes the 
impact of these changes would not constitute a relaxation of the SIP.

E. Are There Any Other Significant Changes Proposed by the 1997 SIP 
Submission?

    The 1997 submission incorporates the Rules of the State Fire 
Marshal by reference into 340-26-001, 340-26-015, 340-26-033, 340-26-
045, and 340-26-055. The rules of the State Fire Marshal, safety 
requirements for field burning and propane flaming, are at Oregon 
Administrative Rules 837-110-010 through 837-110-160. Adopting these 
rules by reference is intended to increase the degree of public safety 
by preventing unwanted wild fires and smoke from open field burning, 
propane flaming, and stack burning near highways and freeways. The 
State Fire Marshal rules establish a fire safety buffer zone around 
highways and roadways. The State Fire Marshal rules outline additional 
controls on the manner and timing of burns in these areas.
    The 1997 submission repeals Section 340-26-025 entitled ``Civil 
Penalties''. While SIP revisions are evaluated for enforceability, 
rules describing state enforcement authority and penalties are not 
appropriate for inclusion into the SIP to avoid potential conflict with 
EPA's independent authorities. Therefore, EPA is taking no action on 
these provisions of the Oregon rules.
    Other rule changes include systematically referencing propane 
flaming and stack or pile burning to the rules to clarify which 
criteria apply to different types of burns. The ``prohibition 
conditions'' under daily burning authorization criteria are tightened 
and the acreage limitation for experimental burning are lowered from 
5000 to 1000 acres. Several definitions have been added, and the 
definition for ``grower allocation'' has been modified to tighten the 
amount of acreage that could be allocated in the event that total 
registration as of April 1 exceeds the maximum acreage allowed to be 
open field burned or propane flamed annually.

F. What Are the Federal Requirements for Field Burning?

    Similar to smoke management plans, there are no federal 
requirements for field burning controls. How then does EPA evaluate the 
adequacy of these significant changes proposed by the 1997 submission? 
Section 193 of the Clean Air Act, entitled the ``General Savings 
Clause'' provides that, ``no control requirement in effect, or required 
to be adopted by an order, settlement agreement, or plan in effect 
before the date of the enactment of the Clean Air Act Amendments of 
1990 in an area which is a nonattainment area for any air pollutant, 
may be modified after such enactment in any manner unless the 
modification insures equivalent or greater emission reductions of such 
air pollutant.''
    The pollutant of concern is PM-10 and the area of interest is the 
Willamette Valley, which contains several PM-10 nonattainment areas. 
The criteria for approval of these revisions is whether the 1997 
submission would pose a relaxation of the controls that are in effect 
in the existing State Implementation Plan.
    The majority of the changes proposed by the 1997 submission, such 
as the specific incorporation of the State Fire Marshal rules, 
strengthen the controls on field burning. The area most likely to be 
seen as a relaxation is the exemption of stack or pile burning from the 
annual acreage cap for field burning. However, as discussed above, EPA 
believes the impacts of this change are not a relaxation of the SIP.
    In addition to reviewing the regulatory stringency of the 1997 
submission compared to the 1985 SIP, it may be useful to evaluate the 
air quality in the Willamette Valley. The air quality data do not raise 
specific concerns about the contribution of field burning to the 
exceedances of the PM-10 standard. Please see the associated Technical 
Support Document for a fuller discussion.

G. Which Regulations Are Being Approved Through This Federal Action?

    In this action, EPA is revising the Oregon State Implementation 
Plan to include OAR Chapter 340, Division 26 effective May 31, 1994. 
Further, EPA is incorporating by reference the rules of the State Fire 
Marshal OAR 837-110-110 through 837-110-160, effective February 7, 
1994.
    Please note that since these SIP revisions were adopted by the 
state, other modifications to Oregon's rules may have been adopted by 
the Environmental Quality Commission and submitted to the EPA for 
approval (e.g. the rule recodification package). Approval of the SIP 
revisions discussed in this action does not rescind any local rule 
amendments that were subsequently filed and submitted.

V. Administrative Requirements

    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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution or Use'' (66 FR 28355, May 22, 2001) 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). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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,

[[Page 55111]]

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 
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 December 31, 2001 unless EPA 
receives adverse written comments by December 3, 2001.
    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 December 31, 2001. 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).)

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.

Oregon Audit Privilege and Immunity Law

    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 in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and record keeping requirements.

    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 23, 2001.
Ronald A. Kreizenbeck,
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)(135) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (135) The Oregon Department of Environmental Quality submitted a 
Visibility SIP revision on August 26, 1993, smoke management provisions 
on August 26, 1993, revisions to the Oregon field burning program on 
July 3, 1997, and amendments to the smoke management program regarding 
the Blue Mountains rules on September 27, 1995. EPA approves these 
revisions with the exception of the provision that changes the review 
period of the Visibility SIP from every three years to every 5 years 
(OAR 340-20-047 Section 5.2.4.2 and OAR 340-20-047 Section 5.2.5.1)
    (i) Incorporation by reference.
    (A) OAR 629-24-301 effective August 1, 1987.

[[Page 55112]]

    (B) OAR 629-43-043 effective April 13, 1987.
    (C) ORS 477.515 effective 1971.
    (D) Directive 1-4-1-601, Operational Guidance for the Oregon Smoke 
Management Program, effective October 23, 1992.
    (E) OAR 340-26-0035 and 340-26-0040, effective March 10, 1993; OAR 
340-26-0001, 340-26-0031, 340-26-0033, and 340-26-0045, effective May 
11, 1993; 340-26-0003, 340-26-0005, 340-26-0010, 340-26-0012, 340-26-
0013, 340-26-0015, and 340-26-0055, effective May 31, 1994.
    (F) OAR 837-110-0010, 837-110-0020, 837-110-0030, 837-110-0040, 
837-110-0070, 837-110-0080, 837-110-0090, 837-110-0110, 837-110-0120, 
837-110-0130, and 837-110-0150, effective February 7, 1994; 837-110-
0160, effective August 11, 1993; and 837-110-0050, 837-110-0060, and 
837-110-0140, effective February 7, 1989.
    (G) Union County Ordinance #1992-4 effective July 1, 1992.
    (H) Jefferson County Ordinance #-0-58-89 effective May 31, 1989.
    (I) Remove the following provision from the current incorporation 
by reference: OAR 340-26-025 effective March 7, 1984.
    (ii) Additional Materials.
    (A) OAR 340-20-047 Section 5.2 effective August 11, 1992 (except 
section 5.2.4.2 and section 5.2.5.1 introductory paragraph)
    (B) ``Oregon Smoke Management Plan, Appendix 5, Operational 
Guidance for the Oregon Smoke Management Program, Criteria for National 
Forest and Bureau of Land Management Lands in the Blue Mountains of NE 
Oregon (Volume 3, Section A1)'', effective July 12, 1995.

[FR Doc. 01-27279 Filed 10-31-01; 8:45 am]
BILLING CODE 6560-50-P