[Federal Register Volume 84, Number 47 (Monday, March 11, 2019)]
[Proposed Rules]
[Pages 8647-8654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04385]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2018-0679; FRL-9990-50-Region 10]
Air Plan Approval; OR: Infrastructure Requirements for the 2015
Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Whenever a new or revised National Ambient Air Quality
Standard (NAAQS) is promulgated, the Clean Air Act requires each State
to submit a plan for the implementation, maintenance, and enforcement
of the standard, commonly referred to as infrastructure requirements.
The Environmental Protection Agency (EPA) is proposing to approve the
Oregon Department of Environmental Quality's (ODEQ) State
Implementation Plan (SIP), submitted on September 21, 2018, as meeting
infrastructure requirements for the 2015 ozone NAAQS. In addition, the
EPA is proposing to approve an Oregon Administrative Rule, submitted as
part of the Cleaner Air Oregon program and
[[Page 8648]]
rule revision on December 11, 2018, which incorporates the Code of
Federal Regulation November 2018 edition as the version referred to
throughout their rule.
DATES: Comments must be received on or before April 10, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2018-0679, 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. EPA Evaluation
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review
I. Background
On October 26, 2015 (80 FR 65292) the EPA published a rule revising
the 8-hour ozone NAAQS from 0.075 parts per million (ppm) to a new,
more protective level of 0.070 ppm. Whenever EPA promulgates a new or
revised NAAQS, CAA section 110(a)(1) requires states to make SIP
submissions to provide for the implementation, maintenance, and
enforcement of the NAAQS. This particular type of SIP submission is
commonly referred to as an ``infrastructure SIP.''
These submissions must meet the various requirements of CAA section
110(a)(2), as applicable. Due to ambiguity in some of the language of
CAA section 110(a)(2), EPA believes that it is appropriate to interpret
these provisions in the specific context of acting on infrastructure
SIP submissions. EPA has previously provided comprehensive guidance on
the application of these provisions through a guidance document for
infrastructure SIP submissions and through regional actions on
infrastructure submissions.\1\ Unless otherwise noted below, we are
following that existing approach in acting on this submission. In
addition, in the context of acting on such infrastructure submissions,
EPA evaluates the submitting state's SIP for facial compliance with
statutory and regulatory requirements, not for the state's
implementation of its SIP.\2\ The EPA has other authority to address
any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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\1\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on the Oregon Department of Environmental Quality's
infrastructure SIP to address the lead NAAQS (79 FR 21679, April 17,
2014).
\2\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, No. 16-71933 (Aug.
30, 2018).
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On September 21, 2018, the Oregon Department of Environmental
Quality (ODEQ) submitted a SIP revision to meet the 2015 ozone NAAQS
infrastructure requirements.\3\ The EPA is proposing to approve ODEQ's
submission as meeting certain 2015 ozone NAAQS infrastructure
requirements.
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\3\ The September 25, 2018, submission also addressed all
interstate transport requirements at CAA section 110(a)(2)(D) for
the 2015 ozone NAAQS. However, this publication proposes action on
only a portion of those requirements, specifically CAA sections
110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii). We intend to address the
remainder of the interstate transport requirements in a separate,
future action. See section 110(a)(2)(D) below.
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II. EPA Evaluation
110(a)(2)(A): Emission Limits and Other Control Measures
CAA section 110(a)(2)(A) requires SIPs to include enforceable
emission limits and other control measures, means or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements of the CAA.
State submission: Oregon's submission cites multiple Oregon air
quality laws and SIP-approved regulations to address this element for
the 2015 ozone NAAQS. Oregon Revised Statutes (ORS) 468A.035 General
Comprehensive Plan provides authority to the ODEQ to develop a general
comprehensive plan for the control or abatement of air pollution. ORS
468.020 Rules and Standards gives the Oregon Environmental Quality
Commission (EQC) authority to adopt rules and standards to perform
functions vested by law. ORS 468A.025 Air Purity Standards provides the
EQC with authority to set air quality standards, emission standards,
and emission treatment and control provisions. ORS 468A.040 Permits;
Rules provides that the EQC may require permits for specific sources,
type of air contaminant or specific areas of the State. The Oregon
submission also cites these other SIP-approved laws and regulations:
ORS 468 Environmental Quality Generally; Public Health and
Safety; General Administration
ORS 468A Air Quality, Public Health and Safety, Air Pollution
Control
ORS 468A.010 Policy
ORS 468A.015 Purpose of air pollution laws
ORS 468A.045 Activities Prohibited without Permit; Limit on
Activities with Permit
ORS 468A.050 Classification of Air Contamination Sources;
Registration and Reporting; Registration and Reporting of Sources;
Rules; Fees
ORS 468A.055 Notice Prior to Construction of New Sources;
Order Authorizing or Prohibiting Construction; Effect of No Order;
Appeal
ORS 468A.070 Measurement and Testing of Contamination Sources;
Rules
ORS 468A.310 Federal Operating Permit Program Approval; Rules;
Content of Plan
ORS 468A.315 Emission Fees for Major Sources; Base Fees; Basis
of Fees; Rules
ORS 468A.350-455 Motor Vehicle Pollution Control
ORS 468A.625-.645 Chlorofluorocarbons and Halon Control
ORS 468A.650-.660 Aerosol Spray Control
ORS 468A.990 Penalties
OAR 340-200-0020 General Air Pollution Procedures and
Definitions
OAR 340-202 Ambient Air Quality Standards and PSD Increments
[[Page 8649]]
OAR 340-204 Designation of Air Quality Areas
OAR 340-216 Air Contaminant Discharge Permits
OAR 340-222 Stationary Source Plant Site Emission Limits
OAR 340-223 Regional Haze Rules
OAR 340-224 New Source Review
OAR 340-226 General Emission Standards
OAR 340-232 Emission Standards for VOC Point Sources
OAR 340-236 Emission Standards for Specific Industries:
Emission Limits
OAR 340-242 Rules Applicable to the Portland Area
OAR 340-250 General Conformity
OAR 340-252 Transportation Conformity
OAR 340-256 Motor Vehicles
OAR 340-258 Motor Vehicle Fuel Specifications
OAR 340-268 Emission Reduction Credits
EPA analysis: The State regulations identified above were
previously approved by the EPA into the Oregon SIP and demonstrate that
the Oregon SIP includes enforceable emission limits and other control
measures to implement the 2015 ozone NAAQS. We recently approved
updates to the Oregon ambient air quality standards in Division 202 to
account for the 2015 ozone NAAQS (83 FR 24034, May 24, 2018). Oregon
has no areas designated nonattainment for the 2015 ozone NAAQS. We
note, however, that the EPA does not consider SIP requirements
triggered by the nonattainment area mandates in part D, title I of the
CAA to be governed by the submission deadline of CAA section 110(a)(1).
Regulations and other control measures for purposes of attainment
planning under part D, title I of the CAA are due on a different
schedule than infrastructure SIPs.
Oregon regulates emissions of ozone precursors through its SIP-
approved new source review (NSR) permitting program, in addition to
provisions described below. Oregon's SIP-approved NSR program, in
Division 224 New Source Review, is administered through Division 216
Air Contaminant Discharge Permits. The EPA most recently approved
revisions to Oregon's NSR program as meeting Federal requirements on
October 10, 2017 (82 FR 47122). The program regulates new and modified
stationary sources of nitrogen oxides (NOX) and Volatile
Organic Compounds (VOC) as precursors to ozone.
In addition to permitting provisions, Oregon's SIP contains
numerous rules that limit emissions of NOX and VOC as
precursors to ozone formation. These rules (listed above) include
requirements to reduce pollutants that reduce visibility and contribute
to regional haze, emission standards for VOC point sources, emission
limits for hot mix asphalt plants and other industries, industrial
emission management rules that apply to the Portland area, and
requirements that regulate motor vehicle fuel content specifications
and certification of vehicle pollution control systems. As a result, we
are proposing to approve the Oregon SIP as meeting the requirements of
CAA section 110(a)(2)(A) for the 2015 ozone NAAQS.
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
CAA section 110(a)(2)(B) requires SIPs to include provisions to
provide for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to the EPA upon request.
State submission: The Oregon submission references ORS 468.035(a-e,
m) Functions of the Department which provides authority to conduct and
supervise inquiries and programs to assess and communicate air
conditions and to obtain necessary resources (assistance, materials,
supplies, etc.) to meet these responsibilities and ORS 468A.070
Measurement and Testing of Contamination Sources; Rules which provides
the authority to establish a measurement and testing program. In
addition, ORS 468A.025 Air Purity Standards; Air Quality Standards;
Treatment and Control of Emissions; Rules requires controls necessary
to achieve ambient air quality standards and prevent significant
impairment of visibility. The submission also references Division 212
Stationary Source Testing and Monitoring regulations which sets
requirements, methods, and criteria for emission monitoring and
reporting.
EPA analysis: A comprehensive air quality monitoring plan, intended
to meet federal requirements, was originally submitted by Oregon on
December 27, 1979 (40 CFR 52.1970) and approved by the EPA on March 4,
1981 (46 FR 15136). The plan includes statutory and regulatory
authority to establish and operate an air quality monitoring network,
including ozone monitoring. Oregon's SIP-approved regulations at
Division 212 govern stationary source testing and monitoring in
accordance with Federal reference methods. Every five years, Oregon
assesses the adequacy of the State monitoring network and submits that
assessment to the EPA for review. In practice, Oregon operates a
comprehensive monitoring network, including ozone monitoring, compiles
and analyzes collected data, and submits the data to the EPA's Air
Quality System on a quarterly basis. Therefore, we are proposing to
approve the Oregon SIP as meeting the requirements of CAA section
110(a)(2)(B) for the 2015 ozone NAAQS.
110(a)(2)(C): Program for Enforcement of Control Measures
CAA section 110(a)(2)(C) requires each State to include a program
providing for enforcement of all SIP measures and the regulation of
construction of new or modified stationary sources, including a program
to meet PSD and nonattainment NSR requirements.
State submission: The Oregon submission refers to ORS 468.090-140
Enforcement which provides the ODEQ with authority to investigate
complaints, investigate and inspect sources for compliance, access
records, commence enforcement procedures, and impose civil penalties.
In addition, ORS 468.035 Functions of the Department, paragraphs (j)
and (k), provide the ODEQ with authority to enforce Oregon air
pollution laws and compel compliance with any rule, standard, order,
permit or condition. The submission also cites:
ORS 468.020 Rules and Standards
ORS 468.065 Issuance of Permits; Consent; Fees; Use
ORS 468.070 Denial, Modification, Suspension or Revocation of
Permits
ORS 468.920-963 Environmental Crimes
ORS 468.996-997 Civil Penalties
ORS 468A.025 Air Purity Standards; Air Quality Standards;
Treatment and Control of Emissions; Rules
ORS 468A.035 General Comprehensive Plan
ORS 468A.040 Permits; Rules
ORS 468A.045 Activities Prohibited without Permit; Limit on
Activities with Permit
ORS 468A.050 Classification of Air Contamination Sources;
Registration and Reporting; Registration and Reporting of Sources;
Rules; Fees
ORS 468A.055 Notice Prior to Construction of New Sources;
Order Authorizing or Prohibiting Construction; Effect of No Order;
Appeal
ORS 468A.070 Measurement and Testing of Contamination Sources;
Rules
ORS 468A.310 Federal Operating Permit Program Approval; Rules;
Content of Plan
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ORS 468A.990 Penalties for Air Pollution Offenses
OAR 340-012 Enforcement Procedure and Civil Penalties
OAR 340-202 Ambient Air Quality Standards and PSD Increments
OAR 340-210 Stationary Source Notification Requirements
OAR 340-214 Stationary Source Reporting Requirements
OAR 340-216 Air Contaminant Discharge Permits (ADCP)
OAR 340-224 New Source Review
EPA analysis: The EPA is proposing to find that Oregon code
provisions provide the ODEQ with authority applicable to the 2015 ozone
standard to enforce the air quality laws, regulations, permits, and
orders promulgated pursuant to ORS Chapters 468 and 468A. The ODEQ
staffs and maintains an enforcement program to ensure compliance with
SIP requirements. The ODEQ Director, at the direction of the Governor,
may enter a cease and desist order for polluting activities that
present an imminent and substantial danger to public health (ORS
468.115). Enforcement cases may be referred to the State Attorney
General's office for civil or criminal enforcement.
To generally meet the requirements of CAA section 110(a)(2)(C) for
regulation of construction of new or modified stationary sources, each
State is required to have PSD, nonattainment NSR, and minor NSR
permitting programs adequate to implement the 2015 ozone NAAQS. As
explained above, we are not in this action evaluating nonattainment-
related provisions, including the nonattainment NSR program required by
part D, title I of the CAA.
Oregon's Federally-enforceable State operating permit program, at
Division 216 Air Contaminant Discharge Permits, is also the
administrative permit mechanism used to implement the SIP-approved NSR
program. We most recently approved revisions to the NSR program
(Divisions 200, 202, 209, 212, 216, 222, 224, 225, and 268) as meeting
Federal requirements at 40 CFR 51.160 through 164 (minor NSR) and 40
CFR 51.166 (PSD) on October 11, 2017 (82 FR 47122). The Oregon minor
NSR and PSD rules meet current requirements for all regulated NSR
pollutants. Therefore, we are proposing to approve the Oregon SIP as
meeting the requirements of CAA section 110(a)(2)(C) for the 2015 ozone
NAAQS.
110(a)(2)(D): Interstate Transport
CAA section 110(a)(2)(D)(i) addresses four separate elements, or
``prongs.'' CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain
adequate provisions prohibiting emissions which will contribute
significantly to nonattainment of the NAAQS in any other State (prong
1), and adequate provisions prohibiting emissions which will interfere
with maintenance of the NAAQS by any other State (prong 2). CAA section
110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions
prohibiting emissions which will interfere with any other State's
required measures to prevent significant deterioration (PSD) of its air
quality (prong 3), and adequate provisions prohibiting emissions which
will interfere with any other State's required measures to protect
visibility (prong 4).
CAA section 110(a)(2)(D)(ii) states SIPs must include provisions
ensuring compliance with the applicable requirements of CAA sections
126 and 115 (relating to interstate and international pollution
abatement). CAA section 126 requires notification to neighboring States
of potential impacts from a new or modified major stationary source and
specifies how a State may petition the EPA when a major source or group
of stationary sources in a State is thought to contribute to certain
pollution problems in another State. CAA section 115 governs the
process for addressing air pollutants emitted in the United States that
cause or contribute to air pollution that may reasonably be anticipated
to endanger public health or welfare in a foreign country.
State submission: The Oregon submission addresses all interstate
transport requirements of the CAA. This proposed action, however,
addresses only the CAA sections 110(a)(2)(D)(i)(II), and
110(a)(2)(D)(ii). We intend to address the remainder of the interstate
transport requirements in a separate, future action.
To meet the provisions of the CAA sections 110(a)(2)(D)(i)(II), and
110(a)(2)(D)(ii), the Oregon submission references the State's SIP-
approved NSR program, the State's SIP-approved regional haze plan and
the recently SIP-approved Oregon Regional Haze Progress Report (May 17,
2018, 83 FR 22853). The Oregon submission also references Division 209
Public Participation, approved as part of the Oregon NSR program, and
asserts that Oregon regulations are consistent with Federal
requirements in Appendix N of 40 CFR part 50 pertaining to the
notification of interstate pollution abatement.
EPA analysis: The EPA believes that the PSD sub-element of CAA
section 110(a)(2)(D)(i)(II) (prong 3) is satisfied where major new and
modified stationary sources in attainment and unclassifiable areas are
subject to a SIP-approved PSD program. The EPA most recently approved
revisions to Oregon's NSR program as meeting Federal PSD requirements
on October 11, 2017 (82 FR 47122). Therefore, we are proposing to
approve the Oregon SIP as meeting CAA section 110(a)(2)(D)(i)(II) prong
3 with respect to PSD for the 2015 ozone NAAQS.
The EPA believes, as noted in the 2013 Guidance, where a State's
regional haze plan has been approved as meeting all current
obligations, a State may rely upon those provisions in support of its
demonstration that it satisfies CAA section 110(a)(2)(D)(i)(II) as it
relates to visibility (prong 4). On July 5, 2011, the EPA approved
portions of the Oregon regional haze plan, including the requirements
for best available retrofit technology (76 FR 38997). We approved the
remaining elements of the Oregon regional haze plan on August 22, 2012
(77 FR 50611). In addition, on May 17, 2018, the EPA approved the
Oregon Regional Haze Progress Report and determined the existing
regional haze SIP adequate to meet the State's visibility goals and
requires no substantive revisions at this time (83 FR 22853). Because
we approved the Oregon plan as meeting regional haze requirements, we
are proposing to approve the Oregon SIP as meeting CAA section
110(a)(2)(D)(i)(II) prong 4 visibility requirements with respect to the
2015 ozone NAAQS.
The Division 209 public notice provisions in Oregon's SIP-approved
NSR program require that for major NSR permit actions, Oregon must
provide notice to neighboring States, among other officials and
agencies. This notice requirement is consistent with CAA section
126(a). In addition, Oregon has no pending obligations under section
115 or 126(b) of the CAA. Therefore, we are proposing to approve the
Oregon SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii)
for the 2015 ozone NAAQS.
110(a)(2)(E): Adequate Resources
CAA section 110(a)(2)(E) requires each State to provide (i)
necessary assurances that the State will have adequate personnel,
funding, and authority under State law to carry out the SIP (and is not
prohibited by any provision of Federal or State law from carrying out
the SIP or portion thereof), (ii) requirements that the State comply
with the State board provisions under CAA section 128 and (iii)
necessary assurances that, where the State has relied on a local or
regional government, agency, or instrumentality for the implementation
of any SIP provision, the State has responsibility for ensuring
[[Page 8651]]
adequate implementation of such SIP provision.
State submission: With respect to sub-element (E)(i), the Oregon
submission cites ORS 468.035 Functions of Department which provides the
ODEQ authority to employ personnel, purchase supplies, enter into
contracts, and to receive, appropriate, and expend Federal and other
funds for purposes of air pollution research and control. In addition,
ORS 468.045 Functions of Director; Delegation provides the ODEQ
Director with authority to hire, assign, reassign, and coordinate
personnel of the department and to administer and enforce the laws of
the State concerning environmental quality. The ODEQ has an
intergovernmental agreement to delegate its authority to implement the
requirements of the CAA in Lane County, Oregon to the Lane Regional Air
Protection Agency (LRAPA). In addition, the submission cites the CAA
section 105 grants received from the EPA and matched through the Oregon
General Fund.
Turning to sub-element (E)(ii), the submission cites OAR 340-200-
0100 Purpose, OAR 340-200-0110 Public Interest Representation, and OAR
340-200-0120 Disclosure of Potential Conflicts of Interest. The
submission states that the EPA approved the listed regulatory
provisions as meeting the requirements of CAA section 128 on January
22, 2003 (68 FR 2891). In addition, the submission cites LRAPA Title
12, Section 025 (recodified to LRAPA Title 13, Section 025 Conflict of
Interest), approved by the EPA on March 1, 1989 (54 FR 8538), and notes
it meets CAA section 128.
With respect to sub-element (E)(iii), the submission cites ORS
468.020 Rules and Standards which requires a public hearing on any
proposed rule or standard prior to adoption. ORS 468.035(c) Functions
of Department provides the ODEQ authority to advise, consult, and
cooperate with other States, State and Federal agencies, or political
subdivisions on all air quality control matters. ORS 468A.010 Policy
calls for a coordinated Statewide program of air quality control with
responsibility allocated between the State and the units of local
government. ORS 468A.100-180 Regional Air Quality Control Authorities
describes the establishment, role and function of regional air quality
control authorities. State regulations in Division 200 specify LRAPA
has authority in Lane County, defines the term Regional Agency and
describes inclusion of LRAPA's actions into the SIP. Division 204
includes designation of control areas within Lane County. Division 216
Air Contaminant Discharge Permits includes permitting authority for
LRAPA.
EPA analysis: We are proposing to find that the above-referenced
provisions provide Oregon with adequate authority to carry out SIP
obligations with respect to the 2015 ozone NAAQS as required by CAA
section 110(a)(2)(E)(i). We are also proposing to approve the Oregon
SIP as meeting CAA section 110(a)(2)(E)(ii) because we previously
approved the SIP for purposes of CAA section 128. On January 22, 2003,
we approved OAR 340-200-0100 through OAR 340-200-0120 as meeting CAA
section 128 (68 FR 2891). In addition, we approved LRAPA Title 12,
Section 025 (recodified at LRAPA Title 13, section 025) as meeting CAA
section 128 on March 1, 1989 (54 FR 8538).
We are proposing to find that Oregon has provided necessary
assurances that, where the State has relied on a local or regional
government, agency, or instrumentality for the implementation of any
SIP provision, the State has responsibility for ensuring adequate
implementation of the SIP as required by CAA section 110(a)(2)(E)(iii).
Therefore, we are proposing to approve the Oregon SIP as meeting the
requirements of CAA sections 110(a)(2)(E) for the 2015 ozone NAAQS.
110(a)(2)(F): Stationary Source Monitoring System
CAA section 110(a)(2)(F) requires (i) the installation,
maintenance, and replacement of equipment, and the implementation of
other necessary steps, by owners or operators of stationary sources to
monitor emissions from such sources, (ii) periodic reports on the
nature and amounts of emissions and emissions-related data from such
sources, and (iii) correlation of such reports by the State agency with
any emission limitations or standards established pursuant to the CAA,
which reports shall be available at reasonable times for public
inspection.
State submission: The Oregon submission refers to the following
statutory and regulatory provisions for source emissions monitoring,
reporting, and correlation with emission limits or standards:
ORS 468.020 Rules and Standards
ORS 468.035 Functions of Department paragraphs (b) and (d)
ORS 468A.025(4) Air Purity Standards; Air Quality Standards;
Treatment and Control of Emissions; Rules
ORS 468A.070 Measurement and Testing of Contamination Sources;
Rules
ORS 468A.310 Federal operating permit program approval; rules;
content of plan
ORS 468A.365 Certification of Motor Vehicle Pollution Control
Systems and Inspection of Motor Vehicles; Rules
OAR 340-212 Stationary Source Testing and Monitoring
OAR 340-214 Stationary Source Reporting Requirements
OAR 340-222 Stationary Source Plant Site Emission Limits
OAR 340-224-0070 New Source Review, Prevention of Significant
Deterioration Requirements for Sources in Attainment or Unclassified
Areas
OAR 340-225 Air Quality Analysis Requirements
OAR 340-232 Emission Standards for VOC Point Sources
OAR 340-236 Emission Standards for Specific Industries:
Emissions Monitoring and Reporting
OAR 340-250 General Conformity
OAR 340-258-0010 through 0310 Motor Vehicle Fuel
Specifications, record keeping and reporting
EPA analysis: The Oregon statutory provisions listed above provide
authority to establish a program for measurement and testing of
sources, including requirements for sampling and testing with respect
to the 2015 ozone NAAQS. The Oregon regulations cited above require
facilities to monitor and report emissions, including requirements for
monitoring methods and design, and monitoring and quality improvement
plans. Oregon's stationary source reporting requirements include
maintaining written records to demonstrate compliance with emission
rules, limitations, or control measures, and requirements for reporting
and recordkeeping. Information is made available to the public through
public processes outlined at OAR 340-209 Public Participation.
Oregon submits emissions data to the EPA for purposes of the
National Emissions Inventory (NEI). The NEI is the EPA's central
repository for air emissions data. Oregon submits a comprehensive
emission inventory every three years and reports emissions for certain
larger sources annually through the EPA's online Emissions Inventory
System. Oregon reports emissions data for the six criteria pollutants
and voluntarily reports emissions of hazardous air pollutants. The EPA
compiles the emissions data, supplementing it where necessary, and
releases it to the public through the website https://www.epa.gov/air-emissions-inventories.
[[Page 8652]]
Based on the analysis above, we are proposing to approve the Oregon
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the
2015 ozone NAAQS.
110(a)(2)(G): Emergency Episodes
CAA section 110(a)(2)(G) requires States to provide for authority
to address activities causing imminent and substantial endangerment to
public health, including adequate contingency plans to implement the
emergency episode provisions in their SIPs.
State submission: The Oregon submission cites ORS 468-115
Enforcement in Cases of Emergency which authorizes the ODEQ Director,
at the direction of the Governor, to enter a cease and desist order for
polluting activities that present an imminent and substantial danger to
public health. In addition, OAR 340-206 Air Pollution Emergencies
authorizes the ODEQ Director to declare an air pollution alert or
warning, or to issue an advisory to notify the public. OAR 340-214
Stationary Source Reporting Requirements governs reporting of
emergencies and excess emissions and reporting requirements.
EPA analysis: Section 303 of the CAA provides authority to the EPA
Administrator to restrain any source from causing or contribution to
emissions which present an ``imminent and substantial endangerment to
public health or welfare, or the environment.'' We find that ORS 468-
115 Enforcement in Cases of Emergency provides emergency order
authority comparable to CAA section 303.
We recently approved revisions to the Oregon air pollution
emergency rules at OAR 340-206 Air Pollution Emergencies on October 11,
2017 (82 FR 47122). Oregon's rules are consistent with Federal
emergency episode requirements for ozone (prevention of air pollution
emergency episodes, 40 CFR part 51 subpart H; sections 51.150 through
51.153). Accordingly, we are proposing to approve the Oregon SIP as
meeting the requirements of CAA section 110(a)(2)(G) for the 2015 ozone
NAAQS.
110(a)(2)(H): Future SIP Revisions
CAA section 110(a)(2)(H) requires that SIPs provide for revision of
a State plan (i) from time to time as may be necessary to take account
of revisions of a national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods of
attaining the standard, and (ii), except as provided in paragraph
110(a)(3)(C), whenever the Administrator finds that the SIP is
substantially inadequate to attain the NAAQS which it implements or to
otherwise comply with any additional requirements under the CAA.
State submission: The Oregon submission refers to ORS 468.020 Rules
and Standards which requires public notice on any proposed rule or
standard prior to adoption, and ORS 468A.035 ``General Comprehensive
Plan'' which requires the ODEQ to develop a general comprehensive plan
for the control or abatement of air pollution. The submission also
refers to OAR 340-200-0040 State of Oregon Clean Air Act Implementation
Plan which provides for revisions to the Oregon SIP and submission of
revisions to the EPA, including standards submitted by a regional
authority and adopted verbatim into State rules.
EPA analysis: As cited above, the Oregon SIP provides for
revisions, and in practice, Oregon regularly submits SIP revisions to
the EPA. On October 11, 2017, the EPA approved many revisions to the
Oregon SIP (82 FR 47122). Other recent EPA actions on revisions to the
Oregon SIP include but are not limited to: May 24, 2018 (83 FR 24034);
May 17, 2018 (83 FR 22853); February 8, 2018 (83 FR 5537); October 21,
2016 (81 FR 72714); July 20, 2016 (81 FR 47029); June 6, 2016 (81 FR
36176); May 16, 2018 (81 FR 30181). Accordingly, we are proposing to
approve the Oregon SIP as meeting the requirements of CAA section
110(a)(2)(H) for the 2015 ozone NAAQS.
110(a)(2)(I): Nonattainment Area Plan Revision Under Part D
There are two elements identified in CAA section 110(a)(2) not
governed by the three-year submission deadline of CAA section 110(a)(1)
because SIPs incorporating necessary local nonattainment area controls
are due on nonattainment area plan schedules pursuant to section 172
and the various pollutant-specific subparts 2 through 5 of part D.
These are submissions required by: (i) CAA section 110(a)(2)(C) to the
extent that subsection refers to a permit program as required in part
D, title I of the CAA, and (ii) section 110(a)(2)(I) which pertain to
the nonattainment planning requirements of part D, title I of the CAA.
As a result, this action does not address CAA section 110(a)(2)(C) with
respect to nonattainment NSR or CAA section 110(a)(2)(I).
110(a)(2)(J): Consultation With Government Officials
CAA section 110(a)(2)(J) requires States to provide a process for
consultation with local governments and Federal Land Managers carrying
out NAAQS implementation requirements pursuant to CAA section 121. CAA
section 110(a)(2)(J) further requires States to notify the public if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances. Lastly, CAA section
110(a)(2)(J) requires States to meet applicable requirements of part C,
title I of the CAA related to prevention of significant deterioration
and visibility protection.
State submission: The Oregon submission references specific laws
and regulations relating to consultation, public notification, and PSD:
ORS 468.020 Rules and Standards
ORS 468.025 Air Purity Standards; Air Quality Standards;
Treatment and Control of Emissions; Rules
ORS 468.035 Functions of Department paragraphs (a), (c), (f)
and (g)
ORS 468A.010 Policy paragraphs (1)(b) and (c)
OAR 340-202 Ambient Air Quality Standards and PSD Increments
OAR 340-202 Ambient Air Quality Standards and PSD Increments
OAR 340-204 Designation of Air Quality Areas
OAR 340-206 Air Pollution Emergencies
OAR 340-209 Public Participation
OAR 340-216 Air Contaminant Discharge Permits (ACDP)
OAE 340-223 Regional Haze Rules
OAR 340-224 New Source Review
OAR 340-225 Air Quality Analysis Requirements
OAR 340-252 Transportation Conformity
EPA analysis: The Oregon SIP includes specific provisions for
consulting with local governments and Federal Land Managers as
specified in CAA section 121, including the Oregon rules for PSD
permitting. The EPA most recently approved revisions to the Oregon NSR
program, which provides opportunity and procedures for public comment
and notice to appropriate Federal, State and local agencies, on October
11, 2017 (82 FR 47122). In addition, we approved the Oregon rules that
define transportation conformity consultation on October 4, 2012 (77 FR
60627) and regional haze interagency planning on July 5, 2011 (76 FR
38997).
In practice, the ODEQ routinely coordinates with local governments,
States, Federal Land Managers and other stakeholders on air quality
issues including transportation conformity and regional haze, and
provides notice to appropriate agencies related to permitting actions.
Oregon participates in regional planning processes including the
Western Regional Air
[[Page 8653]]
Partnership, which is a voluntary partnership of States, Tribes,
Federal Land Managers, local air agencies and the EPA, whose purpose is
to understand current and evolving regional air quality issues in the
West. Based on the provisions above, we are proposing to find that the
Oregon SIP meets the requirements of CAA section 110(a)(2)(J) for
consultation with government officials for the 2015 ozone NAAQS.
Section 110(a)(2)(J) also requires States to notify the public if
ambient air quality standards are exceeded in an area. States must
advise the public of the health hazards associated with air pollution
and what can be done to prevent exceedances. The EPA calculates an air
quality index for five major air pollutants regulated by the CAA:
Ground-level ozone, particulate matter, carbon monoxide, sulfur
dioxide, and nitrogen dioxide. This air quality index (AQI) provides
daily information to the public on air quality. Oregon actively
participates and submits information to the EPA's AIRNOW and
Enviroflash Air Quality Alert programs which provide information to the
public on local air quality. Oregon also provides the AQI to the public
at http://www.deq.state.or.us/aqi/. Therefore, we are proposing to find
that the Oregon SIP meets the requirements of CAA section 110(a)(2)(J)
for public notification for the 2015 ozone NAAQS.
Turning to the requirement in CAA section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C, title I of the CAA, we have
evaluated this requirement in the context of CAA section 110(a)(2)(C)
and permitting. The EPA most recently approved revisions to Oregon's
PSD program on October 11, 2017 (82 FR 47122), updating the program for
current Federal requirements. Therefore, we are proposing to approve
the Oregon SIP as meeting the requirements of CAA 110(a)(2)(J) with
respect to PSD for the 2015 NAAQS.
With respect to visibility protection under element (J), the EPA
recognizes that States are subject to visibility and regional haze
program requirements under part C of the CAA. In the event of the
establishment of a new NAAQS, however, the visibility and regional haze
program requirements under part C do not change. Thus, we find that
there is no new applicable requirement relating to visibility triggered
under CAA section 110(a)(2)(J) when a new NAAQS becomes effective.
Based on the above analysis, we are proposing to approve the Oregon
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the
2015 ozone NAAQS.
110(a)(2)(K): Air Quality and Modeling/Data
CAA section 110(a)(2)(K) requires that SIPs provide for (i) the
performance of air quality modeling as the Administrator may prescribe
for the purpose of predicting the effect on ambient air quality of any
emissions of any air pollutant for which the Administrator has
established a NAAQS, and (ii) the submission, upon request, of data
related to such air quality modeling to the Administrator.
State submission: The Oregon submission refers to ORS 468-020 Rules
and Standards which requires public hearing on any proposed rule or
standard prior to adoption, and ORS 468.035 Functions of Department
which provides the ODEQ authority to conduct studies and investigations
to determine air quality. The submission also references OAR 340-225
Air Quality Analysis Requirements which includes modeling requirements
for analysis and demonstration of compliance with standards and
increments in specified areas.
In addition, on December 11, 2018, Oregon submitted OAR 340-200-
0035 Reference Materials as a related rule amendment associated with
ODEQ's Cleaner Air Oregon program and rule submission.\4\ Specifically,
OAR 340-200-0035(1) was revised to incorporate the Code of Federal
Regulations, July 1, 2018 edition, as the updated reference to be used
throughout their rule.
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\4\ The Cleaner Air Oregon program and rules, and related rules,
add public health-based protection from emissions of industrial
toxic air contaminants to the state's existing air permitting
regulatory framework. The goal of the Cleaner Air Oregon program is
to evaluate potential health risks to people near commercial and
industrial facilities that emit regulated toxic air contaminants,
communicate those results to affected communities, and ultimately
reduce those risks below health-based standards.
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EPA analysis: The EPA previously approved OAR 340-225 Air Quality
Analysis Requirements on October 11, 2017 (82 FR 47122). These rules
specify that modeled estimates of ambient concentrations be based on 40
CFR part 51, appendix W (Appendix W) (Guidelines on Air Quality
Models). Oregon's SIP requires modeled estimates of ambient
concentrations be based on the current version of Appendix W,
consistent with the EPA's implementing regulations in 40 CFR part 51.
On December 11, 2018, the ODEQ submitted revised OAR 340-200-0035
Reference Materials as part of its Cleaner Air Oregon SIP submission.
Specifically, the submission of OAR 340-200-0035(1) incorporates
Appendix W, as of July 1, 2018 and therefore captures the EPA's recent
changes to the Federal Guidelines on Air Quality Models codified in 40
CFR part 51, appendix W (January 17, 2017, 82 FR 5182). Any change or
substitution from models specified in Appendix W is subject to notice
and opportunity for public comment and must receive prior written
approval from the ODEQ and the EPA.
Based on the above information, we are proposing to approve the
Oregon SIP as meeting the requirements of CAA section 110(a)(2)(K) for
the 2015 ozone NAAQS. We are also proposing to approve the revised OAR
340-200-0035(1) Reference Materials.
110(a)(2)(L): Permitting Fees
CAA section 110(a)(2)(L) directs SIPs to require each major
stationary source to pay permitting fees to cover the cost of
reviewing, approving, implementing and enforcing a permit.
State submission: The Oregon submission refers to ORS 468.065
Issuance of Permits: Content; Fees; Use which provides the EQC
authority to establish a schedule of fees for permits based on the
costs of filing and investigating applications, issuing or denying
permits, carrying out title V requirements and determining compliance.
ORS 468A.040 Permits; Rules provides that the EQC may require permits
for air contamination sources, type of air contaminant, or specific
areas of the State. The submission also references OAR 340-216 Air
Contaminant Discharge Permits which requires payment of permit fees
based on a specified table of sources and fee schedule.
EPA analysis: On September 28, 1995, the EPA fully-approved
Oregon's title V operating permit program (60 FR 50106). While Oregon's
title V program is not formally approved into the SIP, it is a
mechanism the State can use to ensure the ODEQ has sufficient resources
to support the air program, consistent with the requirements of the
SIP. Before the EPA can grant full approval, a State must demonstrate
the ability to collect adequate fees. The Oregon title V program
included a demonstration that fees would be adequate, and that the
State would collect fees from title V sources above the presumptive
minimum in accordance with 40 CFR 70.9(b)(2)(i). In addition, we note
that Oregon SIP-approved regulations require fees for purposes of major
and minor NSR permitting, as specified in OAR 340-216-0090 Sources
Subject to ADCP and
[[Page 8654]]
Fees, OAR 340-216-8010 Table 1--Activities and Sources, and OAR 340-
216-8020 Table 2--Air Contaminant Discharge Permits (fee schedule).
Therefore, we are proposing to conclude that Oregon has satisfied the
requirements of CAA section 110(a)(2)(L) for the ozone NAAQS.
110(a)(2)(M): Consultation/Participation by Affected Local Entities
CAA section 110(a)(2)(M) requires States to provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP.
State submission: The Oregon submission refers to the following
laws and regulations:
ORS 468.020 Rules and Standards
ORS 468.035 Functions of Department paragraphs (a), (c), (f),
and (g)
ORS 468A.010 Policy paragraphs (1)(b) and (c)
ORS 468A.025 Air Purity Standards; Air Quality Standards;
Treatment and Control of Emissions; Rules
ORS 468A.035 General Comprehensive Plan
ORS 468A.040 Permits; Rules
ORS 468A.055 Notice Prior to Construction of New Sources;
Order Authorizing or Prohibiting Construction; Effect of No Order;
Appeal
ORS 468A.070 Measurement and Testing of Contamination Sources;
Rules
ORS 468A.100-180 Regional Air Quality Control Authorities
OAR 340-200 General Air Pollution Procedures and Definitions
OAR 340-204 Designation of Air Quality Areas
OAR 340-216 Air Contaminant Discharge Permits
EPA analysis: The regulations cited by Oregon were previously
approved on December 27, 2011 (76 FR 80747) and provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP. We are proposing to approve the
Oregon SIP as meeting the requirements of CAA section 110(a)(2)(M) for
the 2015 ozone NAAQS.
III. Proposed Action
The EPA is proposing to find the Oregon SIP meets the following CAA
section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS:
(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L),
and (M). This proposed action addresses only the interstate transport
requirements of CAA sections 110(a)(2)(D)(i)(II), and 110(a)(2)(D)(ii).
We intend to address the remainder of the interstate transport
requirements in a separate, future action. In addition, we are also
proposing to approve into the Oregon SIP, and incorporate by reference
at 40 CFR part 52, subpart MM, a revision to Oregon's Administrative
Rule 340-200-0035(1) Reference Materials submitted as part of the
Cleaner Air Oregon SIP on December 11, 2018.
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 V. 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 FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
V. Statutory and Executive Orders Review
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 (Public Law 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 it 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).
In addition, the SIP is not 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 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: February 25, 2019.
Chris Hladick,
Regional Administrator, Region 10.
[FR Doc. 2019-04385 Filed 3-8-19; 8:45 am]
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