[Federal Register Volume 83, Number 227 (Monday, November 26, 2018)]
[Proposed Rules]
[Pages 60386-60389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25679]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2018-0596; FRL-9986-94-Region 10]


Air Plan Approval; OR: Lane County Outdoor Burning and 
Enforcement Procedure Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve 
and incorporate by reference (IBR) into the Oregon State Implementation 
Plan (SIP) the Lane Regional Air Protection Agency's (LRAPA) revised 
outdoor burning rule submitted by the Oregon Department of 
Environmental Quality (ODEQ) on July 19, 2018. The revised rule, as it 
applies in Lane County, Oregon, clarifies terminology and provides 
additional controls of outdoor burning activities, reducing particulate 
emissions and strengthening the Oregon SIP. In addition, the EPA 
proposes to approve but not IBR the enforcement procedures and civil 
penalties rule for LRAPA submitted by the ODEQ on September 25, 2018. 
The revised rule contains revisions that bring enforcement procedures 
and civil penalties rule into alignment with recent changes in Oregon 
State regulations.

DATES: Comments must be received on or before December 26, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2018-0596, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information the disclosure of which is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Christi Duboiski at (360) 753-9081, or 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA.

Table of Contents

I. Background
II. Evaluation of Revisions
    A. Title 47: Outdoor Burning
    B. Title 15: Enforcement Procedures and Civil Penalties
III. Proposed Action
IV. Incorporation by Reference
V. Oregon Notice Provision
VI. Statutory and Executive Order Reviews

I. Background

    Each State has a Clean Air Act (CAA) State Implementation Plan 
(SIP), containing the control measures and strategies used to attain 
and maintain the national ambient air quality standards (NAAQS) 
established for the criteria pollutants (carbon monoxide, lead, 
nitrogen dioxide, ozone, particulate matter, sulfur dioxide). The SIP 
contains such elements as air pollution control regulations, emission 
inventories, attainment demonstrations, and enforcement mechanisms. The 
SIP is a compilation of these elements and is revised and updated by a 
State over time--to keep pace with Federal requirements and to address 
changing air quality issues in that State.
    The Oregon Department of Environmental Quality (ODEQ) implements 
and enforces the Oregon SIP through rules set out in Chapter 340 of the 
Oregon Administrative Rules (OAR), Divisions 200 to 268, apply in all 
areas of the State, except where the Oregon Environmental Quality 
Commission (EQC) has designated Lane Regional Air Protection Agency 
(LRAPA) to administer rules within its area of jurisdiction.
    LRAPA has been designated by the EQC to implement and enforce State 
rules in Lane County, and to adopt local rules that apply within Lane 
County. LRAPA may promulgate a local rule in lieu of a State rule 
provided: (1) it is as strict as the corresponding State rule; and (2) 
it has been submitted to and approved by the EQC. This delegation of 
authority to LRAPA in the Oregon SIP is consistent with CAA section 
110(a)(2)(E) requirements for State and local air agencies.
    On July 19, 2018 and September 25, 2018, the ODEQ and LRAPA 
submitted revisions to the Oregon SIP as it applies in Lane County. 
These changes update the LRAPA Title 47 outdoor burning rule providing 
clarification and additional controls of outdoor burning activities in 
Lane County and align the Title 15 enforcement procedure and civil 
penalties rule with recently approved State rules in OAR Chapter 340, 
Division12 (80 FR 64346, October 23, 2015).

[[Page 60387]]

II. Evaluation of Revisions

A. Title 47: Outdoor Burning

    LRAPA regulates outdoor burning throughout Lane County, Oregon, 
except for agricultural burning, forest slash burning permitted by the 
Oregon Department of Forestry or U.S. Forest Service, and fire 
department training burns. The LRAPA Title 47 outdoor burning rule, 
most recently approved by the EPA on October 23, 2015, is an element of 
the SIP strategy outlining how Oregon will meet Federal air quality 
standards to protect public health and the environment (80 FR 64346). 
In general, the revised LRAPA outdoor burning rule provides for 
additional controls of outdoor burning activities in Lane County, 
Oregon. In addition, the submitted revisions make clarifications, 
incorporate housekeeping changes that eliminate duplicative text, 
change the ``open burning'' reference to ``outdoor burning'', separate 
the reference of Eugene-Springfield Urban Growth Boundary (ESUGB) to 
the Eugene Urban Growth Boundary (UGB) and the Springfield UGB (noting 
each as a separate and distinct UGB), clean up typographical errors, 
and format and renumber sections and paragraphs. The key substantive 
changes are discussed below.
General
    LRAPA revised the general policy section of Title 47, Section 47-
001 to clarify the outdoor burning rule applies in Lane County in 
accordance with OAR 340-264-0160(1). This State rule establishes the 
outdoor burning requirements in Lane County are not to be less 
stringent than Oregon's rule and prohibits LRAPA from regulating 
agricultural outdoor burning. In addition, LRAPA added ``bonfires'' and 
``ecological conversion'' to the list of outdoor burning categories to 
provide clarification and a more complete list of what types of permits 
LRAPA issues for outdoor burning,
Exemptions
    LRAPA revised the agricultural outdoor burning exemption language 
in Section 47-005 to align with OAR 340-264-0040 and ORS 468A.020 and 
made clear that this type of burning is still subject to the 
requirements and prohibitions of local jurisdictions and the State Fire 
Marshal. The exemption for recreational fires on private property or in 
designated recreational areas was tightened in two ways: the 
prohibition on recreational fires on yellow and red home wood heating 
advisory days now extends from at least October through May (as opposed 
to November through February in the current SIP) and now applies in the 
Oakridge Urban Growth Boundary (in addition to within the Eugene and 
Springfield Urban Growth Boundaries and the city limits of Oakridge). 
Although outdoor barbequing remains exempt, woody yard trimmings, 
leaves and grass clippings may no longer be burned as fuel. Religious 
ceremonial fires remain exempt; however, LRAPA clarified the allowable 
size, location, and fuel source. Larger fires are to be permitted under 
the ``Bonfire'' requirement under Section 47-020 Outdoor Burning Letter 
Permit. LRAPA expects religious ceremonial fires to occur infrequently 
and the definition requires that such fires be controlled, be 
``integral to a religious ceremony or ritual,'' and that prohibited 
materials not be burned.
Definitions
    In general, the revisions to LRAPA's definitions in Section 47-010 
clarify the types of burn categories, and further define restrictions 
and burn boundaries. For example, the ``bonfire'' definition 
establishes the size of a controlled outdoor fire to be larger than 3 
feet in diameter and 2 feet in height. This helps to distinguish 
between what is allowed as a bonfire, or what is considered 
``recreational'' or ``religious ceremonial''. LRAPA also clarified that 
a bonfire cannot serve as a disposal for prohibited materials listed in 
Section 47-015(1)(e). LRAPA bounded the definition of ``religious 
ceremonial fire'', setting limits on pile size, defining materials that 
can and cannot be burned and defining where the burn can take place. 
Finally, LRAPA defined ``outdoor burning letter permit'', issued 
pursuant to Section 47-020, to authorize burning of select materials at 
a defined site and under certain conditions. These updates provide 
clarification designed to enhance the enforceability of the rule. We 
propose to approve the submitted revisions to Title 47 definitions 
because the changes strengthen the SIP and are consistent with the CAA.
Outdoor Burning Requirements
    LRAPA Section 47-015 contains most of the general requirements for 
all outdoor burning and specific requirements for the following burn 
types: residential, construction and demolition, commercial, 
industrial, and forest slash. The general outdoor burning requirements 
have been made more stringent in many respects. First, subsection 47-
015(1)(e) regarding prohibited materials has been expanded to broadly 
prohibit the burning of items which, when burned, normally emit dense 
smoke noxious odors, or hazardous air contaminants, and specifically 
adds cardboard, clothing and grass clippings to the list of such items. 
The prohibition on the outdoor burning of cardboard and clothing was 
included to be at least as stringent with OAR 340-264-0160. In 
addition, a new provision was added, Section 47-015(1)(i), which 
prohibits the outdoor burning in barrels throughout Lane County.
    Residential outdoor burning is allowed only on approved burning 
days with the start and end times for burning set as part of the daily 
burning advisory issued by LRAPA. The previous start and end times, 
beginning at sunrise and extending until sunset, were eliminated to 
avoid misinterpretation of the hours set by the LRAPA outdoor burning 
advisory, which generally allows the burn to commence a minimum of 
several hours after sunrise and requires the burn to be extinguished at 
least several hours prior to sunset.
    LRAPA also added and expanded several provisions defining outdoor 
burning limits for the cities of Eugene, Springfield, Oakridge and 
Lowell and their associated urban growth boundaries; and the cities of 
Coburg, Cottage Grove, Creswell, Dunes City, Junction City, Veneta and 
Westfir. For example, LRAPA expanded outdoor burning limits from the 
Eugene city limits to the Eugene UGB, except that outdoor burning of 
wood yard trimmings is allowed on lots of two acres or more. The 
outdoor burning prohibition for Springfield was expanded to include the 
UGB, except that outdoor burning of woody yard trimmings is allowed on 
lots of one half acre or more. The Oakridge outdoor burning boundary 
was also expanded to include the UGB. In addition, LRAPA added that 
outdoor burning within Florence city limits is prohibited per Florence 
city ordinance. These changes strengthen the previous rule, which only 
restricted the burning of woody yard trimmings within the Eugene and 
Springfield city limits and as otherwise prohibited by some city fire 
codes. LRAPA's approved burn days are still from March 1 through June 
15 and October 1 through October 31. LRAPA also formalized the 
prohibition of the outdoor burning of grass clippings throughout Lane 
County; however, the outdoor burning of fallen leaves and woody yard 
trimmings is still allowed, subject to restrictions based on time and 
location.
    In general, these revisions impose more stringent requirements on 
additional geographic areas, increasing the overall stringency of the 
restrictions on outdoor burning, and the EPA

[[Page 60388]]

proposes to approve them as consistent with CAA requirements.
Letter Permits
    Section 47-020 authorizes certain types of outdoor burning under 
letter permits issued by LRAPA. Section 47-020(2) has been amended, 
increasing the fees for letter permits issued for outdoor burning of 
standing vegetation from $100 to $1,000. A new provision in Section 47-
020(2) authorizes the Director to compromise on the permit fee, on a 
case by case basis, based on set factors. In addition, Subsection 47-
020(4) was amended to increase the permit fee for outdoor burning from 
$4 per cubic year to $10 per cubic yard, with a minimum fee of $100. 
The fee applies to all outdoor burning except for prescribed burning of 
standing vegetation, which is addressed in Section 47-010(2).
    The EPA proposes to find the revised LRAPA Title 47 outdoor burning 
rule provides for additional controls on outdoor burning which are 
designed to reduce particulate emissions in Lane County and strengthen 
Oregon's SIP. Based on the EPA's review and analysis of the revised 
rule, the EPA is proposing to approve the submitted Title 47 revisions 
to the Oregon SIP for Lane County as meeting the requirements of 
section 110 of the Clean Air Act.
Rules not Appropriate for SIP Approval
    Title 47 contains several provisions that are not appropriate for 
SIP approval, including but not limited to nuisance, fire safety, and 
Title V. The EPA's authority to approve SIPs extends to provisions 
related to attainment and maintenance of the NAAQS and carrying out 
other specific requirements of section 110 of the CAA. In this action, 
the EPA is not approving into the SIP the following provisions of Title 
47 because they are inappropriate for SIP approval: LRAPA 47-010--
definition of ``nuisance''; LRAPA 47-015(1)(d); LRAPA 47-015(1)(h); 
LRAPA 47-020(3); LRAPA 47-020(9)(i); and LRAPA 47-020(10) (80 FR 64346, 
October 23, 2015).

B. Title 15: Enforcement Procedure and Civil Penalties

    Title 15 outlines enforcement procedures and civil penalty 
provisions that apply to air quality regulations implemented by LRAPA 
and approved by the EPA into the SIP. Title 15 provides the authority 
and procedures under which LRAPA notifies regulated entities of 
violations, determines the appropriate penalties for violations, and 
assesses penalties for such violations.
    LRAPA updated Title 15 to correspond to the State enforcement rule 
in OAR Chapter 340, Division 12, approved by the EPA on October 23, 
2015 (80 FR 64346). LRAPA revisions implement legislative increases in 
statutory maximum penalties, align violation classifications and 
magnitudes with program priorities, and provide greater mitigating 
credit for correcting violations. In addition, the rules incorporate 
housekeeping changes that include eliminating duplicative text, 
changing references from ``the Agency'' to ``LRAPA'' and ``open 
burning'' to ``outdoor burning'', formatting and renumbering the 
sections and paragraphs, and cleaning up typographical errors. The key 
substantive changes are discussed below.
    Overall, LRAPA aligned its definitions with those in the 
corresponding State rule recently reviewed and approved by the EPA on 
October 23, 2015 (80 FR 64346). Key definition changes include adding 
definitions for ``alleged violation'', ``conduct'', ``notice of civil 
penalty assessment'', ``residential owner-occupant'' and ``willful'' 
and removing the term ``risk of harm''. To mirror the State's 
definition, LRAPA revised the term ``magnitude of the violation'' by 
removing language that is procedural in nature. Detailed procedures are 
centralized in Section 15-030 Civil Penalty Determination Procedure 
(Mitigating and Aggravating Factors). LRAPA also simplified the 
definition of ``violation'' to remove redundant language defining the 
three classes of violation (class I, II and III).
    The submitted revisions also include several rule sections revised 
to be consistent with OAR Chapter 340, Division 12. LRAPA revised 
Section 15.018 Notice of Permit Violations and Exceptions to align with 
OAR 340-012-0038 by including language requiring no advance notice 
prior to assessment of a civil penalty if the permittee has an Air 
Contaminant Discharge Permit (ACDP) condition that implements the SIP 
under the CAA and the permit violation would disqualify a State program 
from Federal approval or delegation.
    Section 15.025 Civil Penalty Matrices was revised to align with 
State civil penalties in OAR 340-012-0140. The LRAPA penalty matrices 
and applications were updated to directly reflect Oregon's SIP-approved 
penalty amounts. LRAPA also amended Section 15.030 Civil Penalty 
Determination to provide the director the discretion to increase the 
penalty amount to $25,000 per violation per day of violation to 
correspond with OAR 340-012-0160(4). In addition, the civil penalty 
formulation factors were updated to mirror language in OAR 340-012-0045 
and OAR 340-012-0145. The submitted revisions increase the additional 
civil penalties for violations that pose an extreme hazard to public 
health or cause extensive environmental damage to mirror those in OAR 
340-200-012-0155. As stated in Section 15-045, nothing in Title 15 is 
intended to preclude LRAPA from assessing a penalty of up to the 
maximum allowed for the violation by Oregon Revised Statutes 468 (ORS 
468).
    LRAPA also aligned Section 15.060 Selected Magnitude Categories 
with the State SIP-approved language in OAR 340-012-0135 by removing a 
duplicative table defining significant emission rate amounts for 
selected air pollutant magnitude determinations. This information can 
now be found in LRAPA's Title 12, Tables 2 and 3.
    The EPA has reviewed the revisions to the LRAPA Title 15 
enforcement procedures and civil penalties rule and finds the rule 
continues to provide LRAPA with adequate authority to enforce the SIP 
as required by section 110 of the Clean Air Act. The EPA therefore 
proposes to approve into the SIP the revisions to Title 15 to the 
extent the provisions relate to section 110 of the CAA and determining 
compliance with and for purposes of implementation of SIP-approved 
requirements. We note that we are not incorporating Title 15 by 
reference into the Code of Federal Regulations (CFR). These types of 
rules are generally not incorporated by reference into the CFR because 
they may conflict with the EPA's independent administrative and 
enforcement procedures under the CAA.

III. Proposed Action

    We propose to approve and incorporate by reference into the Oregon 
SIP the submitted revisions to the LRAPA Title 47 outdoor burning rule, 
Sections 001, 005, 010 (except the definition of ``nuisance''), 015 
(except (1)(d) and (1)(h)), and 020 (except (3), (9)(i), and (10)). 
These rules were State effective July 13, 2018 and submitted to the EPA 
by the ODEQ and LRAPA on July 19, 2018.
    We also propose to approve, but not incorporate by reference, the 
submitted revisions to the LRAPA Title 15 enforcement procedures and 
civil penalty rule, Sections 001, 005, 015, 018, 020, 025, 030, 035, 
040, 045, 055, 057, 060, and 065. These rules were State effective on 
September 14, 2018, and submitted by the ODEQ and LRAPA on September 
25, 2018. They align LRAPA's Title 15 rule with the ODEQ's

[[Page 60389]]

Division 12 and provide LRAPA with authority needed for SIP approval.

IV. Incorporation by Reference

    In this document, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, we are proposing to incorporate by 
reference the provisions described above in Section III. Proposed 
Action. The EPA has made, and will continue to make, these documents 
generally available electronically through https://www.regulations.gov 
and in hard copy at the appropriate EPA office (see the ADDRESSES 
section of this preamble for more information).

V. Oregon Notice Provision

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

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    The proposed SIP would not be approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the proposed rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 9, 2018.
Chris Hladick,
Regional Administrator, Region 10.
[FR Doc. 2018-25679 Filed 11-23-18; 8:45 am]
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