Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Oregon

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Docket# OR-1-0001; FRL-5852-3]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA)

approves the Sections 111(d)/129 State Plan submitted by Oregon on

December 31, 1996, for implementing and enforcing the Emissions

Guidelines (EG) applicable to existing Municipal Waste Combustors

(MWCs) with capacity to combust more than 250 tons/day of municipal

solid waste (MSW). See 40 CFR part 60, subpart Cb.

DATES: This action is effective on September 8, 1997 unless

significant, material, and adverse comments are received by August 11,

1997. If significant, material, and adverse comments are received by

the above date, this direct final rule will be withdrawn, and timely

notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Catherine Woo,

Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle,

Washington 98101.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW, Washington,

D.C. 20460. Copies of materials submitted to EPA may be examined during

normal business hours at the following locations: EPA, Region 10,

Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington

98101, and at Oregon Department of Environmental Quality, 811 SW Sixth

Avenue, Portland, Oregon 97204.

FOR FURTHER INFORMATION CONTACT: Catherine Woo, Office of Air Quality

(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-1814.

SUPPLEMENTARY INFORMATION:

I. Background

On December 19, 1995, pursuant to sections 111 and 129 of the Clean

Air Act (Act), the EPA promulgated new source performance standards

(NSPS) applicable to new MWCs and EG applicable to existing MWCs. The

NSPS and EG are codified at 40 CFR Part 60, Subparts Eb and Cb,

respectively. See 60 FR 65387. Subparts Cb and Eb regulate the

following: particulate matter, opacity, sulfur dioxide, hydrogen

chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury,

and dioxins and dibenzofurans.

On April 8, 1997, the United States Court of Appeals for the

District of Columbia Circuit vacated subparts Cb and Eb as they apply

to MWC units with capacity to combust less than or equal to 250 tons/

day of MSW (small MWCs), consistent with their opinion in Davis County

Solid Waste Management and Recovery District v. EPA, 101 F.3d 1395

(D.C. Cir. 1996), as amended, 108 F.3d 1454 (D.C. Cir. 1997). As a

result, subparts Eb and Cb apply only to MWC units with individual

capacity to combust more than 250 tons/day of municipal solid waste

(large MWC units).

Under section 129 of the Act, emission guidelines are not federally

enforceable. Section 129(b)(2) of the Act requires States to submit to

the EPA for approval State Plans that implement and enforce the

emission guidelines. State Plans must be at least as protective

[[Page 36996]]

as the emission guidelines, and become federally enforceable upon

approval by EPA. The procedures for adoption and submittal of State

Plans are codified in 40 CFR part 60, subpart B. EPA originally

promulgated the subpart B provisions on November 17, 1975. EPA amended

subpart B on December 19, 1995, to allow the subparts developed under

Section 129 to include specifications that supersede the general

provisions in subpart B regarding the schedule for submittal of State

Plans, the stringency of the emission limitations, and the compliance

schedules. See 60 FR 65414.

This action approves the State Plan submitted by Oregon to

implement and enforce subpart Cb, as it applies to large MWC units

only.

II. Discussion

The Oregon Department of Environmental Quality (ODEQ) submitted to

EPA the following in their 111(d)/129 State Plan for implementing and

enforcing the emission guidelines for existing MWCs in the State:

Emission Standards and Limitations; Compliance Schedule; Emission

Inventory; Source Surveillance, Compliance Assurance and Enforcement;

and applicable State regulations (OAR 340-025-0557, and OAR 340-025-

0950 through 1010) on December 31, 1996. ODEQ submitted its plan before

the Court of Appeals vacated subpart Cb as it applies to small MWC

units. Thus, ODEQ's plan covers both large and small MWC units. As a

result of the Davis decision and subsequent vacatur order, there are no

emission guidelines promulgated under sections 111 and 129 that apply

to small MWC units. Accordingly, EPA's review and approval of ODEQ's

State Plan for MWCs addresses only those parts of ODEQ's Plan which

affect large MWC units. Small units are not subject to the requirements

of the Federal Rule and not part of this approval. Until EPA again

promulgates emission guidelines for small MWC units, EPA has no

authority under section 129(b)(2) of the Act to review and approve

State Plans applying state rules to small MWC units.

The approval of ODEQ's State Plan is based on finding that: (1)

ODEQ provided adequate public notice of public hearings for the

proposed rulemaking which allows Oregon to implement and enforce the EG

for large MWCs, and (2) ODEQ also demonstrated legal authority to adopt

emission standards and compliance schedules applicable to the

designated facilities; enforce applicable laws, regulations, standards

and compliance schedules; seek injunctive relief; obtain information

necessary to determine compliance; require recordkeeping; conduct

inspections and tests; require the use of monitors; require emission

reports of owners and operators; and make emission data publicly

available.

In Attachment 3a of the State Plan, ODEQ cites all emission

standards and limitations for the major pollutant categories related to

the designated sites and facilities. These standards and limitations

are approved as being at least as protective as the Federal

requirements contained in subpart Cb for existing large MWC units.

ODEQ also submitted Oregon Administrative Rule (OAR) 340-025-0110,

which includes a compliance schedule and legally enforceable increments

of progress for each large MWC. The State Rule has been reviewed and

approved as being at least as protective as Federal requirements for

existing large MWC units.

Oregon's Plan includes its legal authority to require owners and

operators of designated facilities to maintain records and report to

the State the nature and amount of emissions and the compliance status

of the facilities. Oregon also cites its legal authority to provide

periodic inspection and testing, as necessary. OAR 340-025-1000 was

submitted as evidence of Oregon's authority to require public

disclosure of MWC emissions data. Oregon submitted the following State

rules to support the requirements of monitoring, reporting, and

compliance assurance: OAR 340-025-0970, Operating Practices; OAR 340-

025-0980, Operator Training and Certification; and OAR 340-025-0990,

Monitoring and Testing. All of these State rules have been reviewed and

approved as meeting Federal requirements for existing large MWC units.

All measures and other elements in the State Plan must be

enforceable by ODEQ and EPA. (See Sections 111(d), 129 and 40 CFR part

60.) During EPA's review of a previous State Implementation Plan

revision involving Oregon's statutory authority, a problem was detected

which affected the enforceability of point source permit limitations.

EPA determined that, because a five-day advance notice provision

required by Oregon Revised Statute (ORS) 468.126(1) (1991) can bar

civil penalties from being imposed for certain permit violations, ORS

468 fails to provide the adequate enforcement authority the State must

demonstrate to obtain State Plan submittal, as specified in Section

111(d) of the Clean Air Act and 40 CFR part 60. Accordingly, the

requirement to provide such notice would preclude Federal approval of

the State Plan.

However, following EPA notification to Oregon, the Governor of

Oregon signed into law new legislation amending ORS 468.126 on

September 3, 1993. This amendment added paragraph 468.126(2)(e) which

provides that the five-day advance notice required by ORS 468.126(1)

does not apply if the notice requirement will disqualify the State's

program from Federal approval or delegation. ODEQ responded to EPA's

interpretation of the application of 468.126(2)(e) and agreed that, if

Federal statutory requirements preclude the use of the five-day advance

notice provision, no advance notice will be required for violations of

the State Plan requirements. Because the five-day notice provision in

ORC 468.126 could preclude enforcement of the State Plan in some

instances, application of the notice provision would preclude approval

of the State MWC Plan. Accordingly, pursuant to ORS 468.126(2)(e), the

five-day notice will not be required for permit violations of the State

Plan.

As stated in Attachment 6 of the State Plan, Oregon plans to

provide progress of plan updates on a semi-annual basis as well as

provide progress in the required annual report pursuant to 40 CFR

51.321. This meets the minimum requirement for State reporting, and

this is approved.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, the EPA has included a parallel proposal to

approve the ODEQ State Plan. If no significant, material, and adverse

comments are received by August 11, 1997, this action will be effective

September 8, 1997.

If the EPA receives significant, material, and adverse comments by

the above date, this action will be withdrawn before the effective date

by publishing a subsequent document in the Federal Register that will

withdraw this final action. All public comments received will be

addressed in a subsequent final rule based on the parallel proposed

rule published in today's Federal Register. The EPA will not institute

a second comment period on this action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received, the public is advised that this action will be

effective September 8,1997.

[[Page 36997]]

III. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Pursuant to section 605(b) of the Regulatory Flexibility Act, I

certify that this rule will not have a significant economic impact on a

substantial number of small entities. This Federal action approves pre-

existing requirements under federal, State or local law, and imposes no

new requirements on any entity affected by this rule, including small

entities. Therefore, these amendments will not have a significant

impact on a substantial number of small entities.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate, or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted on by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives, and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by September 8, 1997. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review, nor does it extend the time within which a petition for

judicial review may be filed, and shall not postpone the effectiveness

of such rule or action. This action may not be challenged later in

proceedings to enforce its requirements. (See section 307(b)(2), 42

U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 62

Environmental protection, Administrative practice and procedure,

Air pollution control, Incorporation by reference, Intergovernmental

relations, Municipal Waste Combustors, Reporting and recordkeeping

requirements.

Dated: June 24, 1997.

Chuck Clarke,

Regional Administrator.

40 CFR part 62 is amended as follows:

PART 62--[AMENDED]

1. The authority citation for part 62 continues to read as follows:

Authority: 42 U.S.C. 7401-7642.

Subpart MM--Oregon

2. Part 62.9350 is amended by adding paragraphs (b)(4) and (c)(4)

to read as follows:

Sec. 62.9350 Identification of plan.

* * * * *

(b)* * *

(4) Control of metals, acid gases, organic compounds and nitrogen

oxide emissions from existing municipal waste combustors was submitted

by Oregon Department of Environmental Quality on December 31, 1996.

(c)* * *

(4) Existing municipal waste combustors.

3. Subpart MM is amended by adding a new Sec. 62.9505 and a new

undesignated heading to read as follows:

Metals, Acid Gases, Organic Compounds and Nitrogen Oxide Emissions Frp,

Existing Municipal Waste Combustors With the Capacity to Combust

Greater Than 250 Tons Per Day of Municipal Solid Waste

Sec. 62.9505 Identification of sources.

The plan applies to existing facilities at the following municipal

waste combustor sites:

(a) Ogden Martin Systems, Marion County, Oregon.

(b) Coos County, Coos Bay, Oregon.

[FR Doc. 97-18082 Filed 7-9-97; 8:45 am]

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