[Federal Register Volume 84, Number 136 (Tuesday, July 16, 2019)]
[Proposed Rules]
[Pages 33883-33886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14989]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2019-0269, FRL-9996-58-Region 10]


Air Plan Approval; OR: 2018 Permitting Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve 
revisions to the Oregon State Implementation Plan (SIP) submitted on 
December 11, 2018. The revisions update the SIP to allow for electronic 
public notice of proposed major stationary source permits, add 
references to stationary source sampling requirements, make use of 
plain language, and correct errors. The EPA reviewed the submitted 
revisions and proposes to find they are consistent with Clean Air Act 
requirements.

DATES: Comments must be received on or before August 15, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2019-0269, 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 electronically submit 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

[[Page 33884]]

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: Kristin Hall, EPA Region 10, 1200 
Sixth Avenue--Suite 155, Seattle, WA 98101, at (206) 553-6357, or 
hall.kristin@epa.gov.

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

Table of Contents

I. Background
II. Evaluation of Submission
    A. Division 12: Enforcement Procedure and Civil Penalties
    B. Division 200: General Air Pollution Procedures and 
Definitions
    C. Division 209: Public Participation
    D. Division 216: Air Contaminant Discharge Permits
    E. Volume I: Source Sampling Manual
III. Proposed Action
IV. Oregon Notice Provision
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

    Each state has a State Implementation Plan (SIP) containing the 
control measures and strategies used to attain and maintain the 
national ambient air quality standards (NAAQS) established by the EPA 
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. Section 110 of 
the Clean Air Act (CAA) requires each state to periodically revise its 
SIP. As a result, the SIP is a living compilation of regulatory and 
non-regulatory elements that are updated to address federal 
requirements and changing air quality issues in the state.
    Air quality regulations for the State of Oregon (``Oregon'' or 
``the State'') are found in Chapter 340 of the Oregon Administrative 
Rules (OAR) and are generally implemented by the Oregon Department of 
Environmental Quality (ODEQ). On November 15, 2018, the State adopted 
new and revised air quality regulations that became effective November 
16, 2018. Most of the adopted regulations implement Oregon's new, 
state-only air toxics permitting program known as Cleaner Air Oregon, 
established in OAR Chapter 340, Division 245. The State did not submit 
the Division 245 Cleaner Air Oregon regulations for SIP approval. 
However, some of the regulations adopted in the state rulemaking 
package also make changes to rules in the federally-approved SIP. On 
December 11, 2018, Oregon submitted these SIP-related changes to the 
EPA for approval. The changes account for electronic public notice of 
proposed major source permits, add references to stationary source 
sampling requirements, make use of plain language, and correct errors. 
For more details, please see the December 11, 2018 submission in the 
docket for this action.

II. Evaluation of Submission

A. Division 12: Enforcement Procedure and Civil Penalties

    Division 12 contains enforcement procedures and civil penalties for 
violations of environmental regulations. In the submission, Oregon made 
minor edits to this division for clarity and to correct errors. For 
example, Oregon replaced the phrase ``pursuant to'' with ``under'' 
because the word has a plainer meaning. In addition, the State 
corrected references to the federally-defined term ``Best Available 
Control Technology.''
    We reviewed the submitted changes and propose to find that Division 
12 continues to provide the ODEQ with adequate authority to enforce the 
SIP as required by section 110 of the CAA and 40 CFR 51.230(b). 
Consistent with our prior action on October 23, 2015, we propose to 
approve the changes to this division only to the extent the provisions 
relate to enforcement of the requirements contained in the Oregon SIP 
(80 FR 64346). We are not proposing to incorporate the changes by 
reference into the Code of Federal Regulations (CFR), however, because 
the EPA relies on its independent enforcement procedures and penalty 
provisions in bringing enforcement actions and assessing penalties 
under the CAA.

B. Division 200: General Air Pollution Procedures and Definitions

    Division 200 contains general procedures and definitions used in 
the State's air quality program. In the submission, Oregon made minor 
changes to clarify rule language throughout the definitions section of 
this division. The State also revised the definition of ``continuous 
monitoring systems'' to reference the Oregon Continuous Monitoring 
Manual, adopted in OAR 340-200-0035. Likewise, the State clarified the 
definitions of ``source test'' and ``volatile organic compounds'' to 
reference the Oregon Source Sampling Manual, adopted in OAR 340-200-
0035. Oregon added a new definition for ``toxic air contaminant'' to 
account for the new, state-only air toxics permitting program, and made 
conforming changes to related definitions in Division 200. However, 
these revisions have limited impact on the federally-approved Oregon 
SIP because the revisions primarily relate to the new, state-only air 
toxics rules which are not part of the SIP and were not submitted to 
the EPA for approval.
    Division 200 also includes key reference materials used throughout 
Oregon air quality rules. The submission revises citation dates for 
these reference materials. First, all references to federal 
requirements in the CFR now refer to the July 1, 2018 version. Second, 
all references to the Oregon Source Sampling Manual now refer to the 
November 2018 edition (also submitted for approval into the SIP).
    We reviewed the submitted changes to Division 200 and propose to 
approve and incorporate them by reference into the Oregon SIP, except 
all references to ``toxic air contaminants'' and the state-only air 
toxics permitting program set forth in OAR Chapter 340, Division 245, 
because these provisions were not submitted to the EPA for approval. We 
note that the State's submitted update to reference the July 1, 2018 
CFR was approved by the EPA in a prior action. Please see our recent 
rulemaking entitled ``Air Plan Approval; OR: Infrastructure 
Requirements for the 2015 Ozone Standard'' published on June 6, 2019 
(84 FR 26347).

C. Division 209: Public Participation

    Division 209 contains rules to notify the public of certain permit 
actions and give the public an opportunity to participate in the 
permitting process. In the submission, Oregon removed the requirement 
to publish notice of draft major new source review (NSR) permits in the 
local newspaper and added the option to publish notice on a publicly-
accessible website, along with the draft permit. These changes are 
consistent with recent EPA rules published on October 18, 2016 and 
intended to modernize the process (81 FR 71613).
    Oregon also made updates to this division to address the new, 
state-only air toxics permitting program. However, Oregon submitted 
these public participation rule changes only to the extent the rules 
apply to (1) pollutants for which NAAQS have been

[[Page 33885]]

established (criteria pollutants) and precursors to those criteria 
pollutants as determined by the EPA for the applicable geographic area; 
and (2) any additional pollutants that are required to be regulated 
under part C of title I of the CAA, but only for the purposes of 
meeting or avoiding the requirements of part C of title I of the CAA.
    We most recently approved revisions to Division 209 on October 11, 
2017 (82 FR 47122). We found that Division 209 was consistent with the 
CAA and regulatory requirements for public notice of new source review 
actions in 40 CFR 51.161 Public availability of information, 40 CFR 
51.165 Permit requirements, and 40 CFR 51.166 Prevention of significant 
deterioration of air quality. After reviewing the submitted changes, we 
find that Oregon's public participation rules continue to meet the CAA 
and the EPA's NSR public notice requirements.

D. Division 216: Air Contaminant Discharge Permits

    Oregon's Air Contaminant Discharge Permit (ACDP) program is both 
Oregon's federally-enforceable non-title V state operating permit 
program, and the administrative mechanism used to implement the notice 
of construction and NSR programs. There are six types of ACDPs under 
Oregon's rules: Construction, General, Short Term Activity, Basic, 
Simple, and Standard. In the submission, Oregon made changes to this 
division to use plain language, clarify requirements, and reference the 
new, state-only air toxics permitting program. Oregon also revised the 
applicability and jurisdiction section of this division to spell out 
that a source may not continue to operate if the source's ACDP expires, 
or is terminated, denied, or revoked. In the ACDP application 
requirements section, Oregon made changes to require that sources 
seeking new or renewed permits consider the lead time the ODEQ needs to 
process and issue permits and apply earlier in the process. Oregon also 
set application renewal deadlines and clarified the required contents 
of applications.
    Certain SIP-approved rules in Division 216 are used to implement 
both the SIP-approved permitting programs and the new, state-only air 
toxics permitting program. In the submission, Oregon made clear that 
the State requested approval of the submitted changes to Division 216 
for purposes of SIP permitting only.\1\ We reviewed the submitted 
changes and find that the program remains consistent with section 110 
of the CAA and EPA's implementing regulations.
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    \1\ Oregon submitted ACDP permitting rule revisions only to the 
extent that the rules apply to (1) pollutants for which NAAQS have 
been established (criteria pollutants) and precursors to those 
criteria pollutants as determined by the EPA for the applicable 
geographic area; and (2) any additional pollutants that are required 
to be regulated under part C of title I of the CAA, but only for the 
purposes of meeting or avoiding the requirements of part C of title 
I of the CAA.
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E. Volume I: Source Sampling Manual

    The Oregon Source Sampling Manual contains procedures for measuring 
and sampling exhaust gas streams from stationary sources in accordance 
with the requirements of Oregon's air quality rules in OAR Divisions 
200 through 268. We most recently approved changes to the Source 
Sampling Manual on October 11, 2017 (82 FR 47122). Since then, Oregon 
updated Volume I of the manual to account for the new, state-only air 
toxics permitting program and made clarifications and corrections 
throughout the manual. For example, the State clarified that sources 
must notify the ODEQ of all source sampling projects, whether they are 
required by the State or not, if a source seeks to rely on the test as 
evidence in an enforcement case or to demonstrate compliance with non-
delegated federal requirements. Oregon also made clear in the manual 
that complex source testing programs may require 45 days or more for 
protocol approval by the ODEQ.
    Oregon revised the sample replication section of Volume I to state 
that unless otherwise specified by permit, state rule, federal 
regulation, or ODEQ letter, each source test must consist of at least 
three test runs, and the emission results are required to be reported 
for each run individually and as the arithmetic average of all valid 
test runs. Oregon revised the sample postponement and stoppages section 
of Volume I to clarify that postposing a test run in progress because 
the source is not able to comply with a control equipment standard is 
not acceptable. Oregon specified that one bound copy of the source test 
report must be submitted within 30 days following field work, and an 
electronic version of the report may be submitted, in addition to the 
bound copy.
    We reviewed the submitted changes and find that Volume I of the 
Source Sampling Manual remains consistent with 40 CFR part 51, appendix 
M--Recommended Test Methods for State Implementation Plans and 40 CFR 
part 60, appendix A--Test Methods, and appendix B--Performance 
Specifications, for purposes of the emission limits and requirements 
approved into the SIP.

III. Proposed Action

    The EPA proposes to approve, and incorporate by reference into the 
Oregon SIP, the submitted changes to the following sections of the 
Oregon Administrative Rules (OAR) Chapter 340, state effective November 
16, 2018:
     Division 200 General Air Pollution Procedures and 
Definitions (0020, 0035);
     Division 209 Public Participation (0020, 0030, 0040, 
0050); and
     Division 216 Air Contaminant Discharge Permits (0020, 
0030, 0040, 0090, 8020).\2\
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    \2\ Divisions 200, 209, and 216 are proposed to be approved only 
to the extent the rules apply to (1) pollutants for which NAAQS have 
been established (criteria pollutants) and precursors to those 
criteria pollutants as determined by the EPA for the applicable 
geographic area; and (2) any additional pollutants that are required 
to be regulated under Part C of Title I of the CAA, but only for the 
purposes of meeting or avoiding the requirements of Part C of Title 
I of the CAA.
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    The EPA also proposes to approve, but not incorporate by reference, 
the submitted changes to the following sections, state effective 
November 16, 2018:
     Division 12 Enforcement Procedure and Civil Penalties 
(0030, 0053, 0054, 0135, 0140), only to the extent the rules relate to 
enforcement of the requirements contained in the Oregon SIP; and
     ODEQ Source Sampling Manual, Volume I, 2018 Edition, only 
for purposes of the emission limits and requirements approved into the 
SIP.

IV. 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.

V. Incorporation by Reference

    In this rule, the EPA is proposing to include, in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference

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the provisions described in Section III. The EPA has made, and will 
continue to make, these documents generally available electronically 
through www.regulations.gov and/or in hard copy at the appropriate EPA 
office (see the ADDRESSES section of this preamble for more 
information).

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 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);
     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 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 as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 27, 2019.
Chris Hladick,
Regional Administrator, Region 10.
[FR Doc. 2019-14989 Filed 7-15-19; 8:45 am]
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