Approval and Promulgation of State Implementation Plans: Oregon

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR-14-1-5535; FRL-5807-4]

Approval and Promulgation of State Implementation Plans: Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the State

Implementation Plan (SIP) submitted by the State of Oregon for the

purpose of bringing about the attainment of the National Ambient Air

Quality Standards (NAAQS) for particulate matter with an aerodynamic

diameter less than or equal to a nominal 10 micrometers (PM-10). The

implementation plan was submitted by the state to satisfy certain

Federal requirements for an approvable moderate nonattainment area PM-

10 SIP for the Klamath Falls, Oregon, PM-10 nonattainment area.

EFFECTIVE DATE: April 14, 1997.

ADDRESSES: Copies of the state's request and other information

supporting this action are available for inspection during normal

business hours at the following locations: EPA, Office of Air Quality

(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101; EPA Oregon

Operations Office, 811 SW Sixth Avenue, Third Floor, Portland, Oregon

97204; and the Oregon Department of Environmental Quality, 811 SW Sixth

Avenue, Portland, Oregon 97204-1390.

[[Page 18048]]

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, EPA, 401 M Street SW, Washington, D.C. 20460, as well as at the

above addresses.

FOR FURTHER INFORMATION CONTACT: Rindy Ramos, EPA, Office of Air

Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, (206)

553-6510.

SUPPLEMENTARY INFORMATION:

I. Background

The area within the Klamath Falls, Oregon, Urban Growth Boundary

(UGB), was designated nonattainment for PM-10 and classified as

moderate under Sections 107(d)(4)(B) and 188(a) of the Clean Air Act

(CAA), upon enactment of the Clean Air Act Amendments (CAAA) of

1990.1 See 56 FR 56694 (November 6, 1991) and 40 CFR 81.338. The

air quality planning requirements for moderate PM-10 nonattainment

areas are set out in Subparts 1 and 4 of Title I of the Act.2 EPA

has issued a ``General Preamble'' describing EPA's preliminary views on

how EPA intends to review SIPs and SIP revisions submitted under Title

I of the Act, including those state submittals containing moderate PM-

10 nonattainment area SIP requirements (see generally 57 FR 13498

(April 16, 1992) and 57 FR 18070 (April 28, 1992)). The General

Preamble provides a detailed discussion of EPA's interpretation of the

Title I requirements. In this rulemaking action for the PM-10 SIP for

the Klamath Falls nonattainment area, EPA's proposed action is

consistent with its interpretations, discussed in the General Preamble,

and takes into consideration the specific factual issues presented in

the SIP. Additional information supporting EPA's action on this

particular area is available for inspection at the addresses indicated

above.

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\1\ The 1990 Amendments to the Clean Air Act made significant

changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399.

References herein are to the Clean Air Act, as amended (``the

Act''). The Clean Air Act is codified, as amended, in the U.S. Code

at 42 U.S.C. 7401, et seq.

\2\ Subpart 1 contains provisions applicable to nonattainment

areas generally and Subpart 4 contains provisions specifically

applicable to PM-10 nonattainment areas. At times, Subpart 1 and

Subpart 4 overlap or may conflict. EPA has attempted to clarify the

relationship among these provisions in the ``General Preamble''

document and, as appropriate, in today's notice and supporting

information.

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Those states containing initial moderate PM-10 nonattainment areas

(those areas designated nonattainment under Section 107(d)(4)(B)) were

required to submit, among other things, the following provisions by

November 15, 1991:

1. Provisions to assure that Reasonably Available Control Measures

(including such reductions in emissions from existing sources in the

area as may be obtained through the adoption, at a minimum, of

Reasonably Available Control Technology shall be implemented no later

than December 10, 1993;

2. Either a demonstration (including air quality modeling) that the

plan will provide for attainment as expeditiously as practicable but no

later than December 31, 1994, or a demonstration that attainment by

that date is impracticable;

3. Quantitative milestones which are to be achieved every 3 years

and which demonstrate Reasonable Further Progress (RFP) toward

attainment by December 31, 1994; and

4. Provisions to assure that the control requirements applicable to

major stationary sources of PM-10 also apply to major stationary

sources of PM-10 precursors except where the Administrator determines

that such sources do not contribute significantly to PM-10 levels which

exceed the NAAQS in the area. See Sections 172(c), 188, and 189 of the

Act.

States with initial moderate PM-10 nonattainment areas were

required to: 1) submit a permit program for the construction and

operation of new and modified major stationary sources of PM-10 by June

30, 1992 (see Section 189(a)); and 2) submit contingency measures by

November 15, 1993, which were to become effective without further

action by the state or EPA, upon a determination by EPA that the area

has failed to achieve RFP or to attain the PM-10 NAAQS by the

applicable statutory deadline (see Section 172(c)(9) and 57 FR 13543-

13544). Oregon has made submittals in response to both of the above

described requirements. EPA intends to address that submittal

containing the new source review permit program in a separate action.

To address the CAAA of 1990, Oregon submitted a PM-10 nonattainment

area SIP for Klamath Falls, Oregon, on November 15, 1991. A subsequent

revision to the plan was submitted to EPA on September 22, 1995. EPA

reviewed the November 15, 1991, and September 22, 1995, SIP revisions

according to its interpretation of subpart 1 and 4 of Part D of Title I

of the Act. EPA concluded from its review that the SIP met the

applicable requirements of the Act and EPA, therefore, solicited public

comment on its proposed approval. See the June 5, 1996, Federal

Register document at 61 FR 28531 and its accompanying Technical Support

Document (TSD). The June 5, 1996, document also indicated that anyone

wishing to comment should do so by July 5, 1996.

On July 12, 1996, in response to the June 5, 1996, Federal Register

document, EPA received comments from three parties. It is EPA's

opinion, however, that the majority of these comments are beyond the

scope of EPA's proposed action. Many of the comments focus on issues

associated with a former Weyerhaeuser Company facility (currently owned

by Collins Products LLC) located outside the designated nonattainment

area. While the commenters raise several concerns with this facility,

most of them do not apply to EPA's approval of the nonattainment area

plan. As explained in more detail in the Response to Comment Document

for this action, EPA is currently working with the State of Oregon to

resolve issues associated with the facility.

EPA has thoroughly considered the comments in determining the

appropriate action on the Klamath Falls PM-10 Control Plan. A summary

of EPA's review of the comments is presented in the ``Response to

Comments'' section below. A more detailed Response to Comment Document

is available for public review at the above addresses.

EPA is approving the Klamath Falls SIP as described in the June 5,

1996, Federal Register document at 61 FR 28531 and its accompanying

(TSD). The following is a review of those comments received during the

public comment period.

II. Response to Comments

A. Area Designation

The commenters all stated that the boundary for the nonattainment

area should be enlarged to include sources currently external to the

Urban Growth Boundary (UGB). One group of commenters provided the

following:

NAAQS standards were the original keystone of the CAA. All

``areas'' \2\ containing a site for which air quality data show a

violation of NAAQS were originally designated as non-attainment by

Congress. Sec. 107(d)(4)(B)(2) [sic]. Klamath Falls was classified

as a moderate PM-10 non-attainment area by operation of law.

________________

\2\ Congress' use of the word area does not mean nonattainment

area. The use of the word ``area'' must be given its plain meaning.

The definition of ``area'' is not found in the act. When referring

to non-attainment area, the act is using the definition found at

Sec. 171(2). The word area cannot logically

[[Page 18049]]

mean non-attainment area. This would be circular.

These same commenters contend that ``the urban growth boundary is

an arbitrary land classification distinction.'' The comment states:

``The 1986 modeling fails to satisfy 40 CFR part 51, appendix W. The

SIP modeling should have included a `land use classification procedure

or a population based procedure to determine whether the character' of

the area was primarily urban or rural.''

The first comment implies that Klamath Falls was designated

nonattainment for PM-10 in accordance with section 107(d)(4)(B)(ii) of

the Clean Air Act (CAA). This is not entirely correct. Klamath Falls

was designated nonattainment in accordance with section

107(d)(4)(B)(i). This section of the CAA states:

(i) each area identified in 52 Federal Register 29383 (Aug. 7,

1987) as a Group 1 area (except to the extent that such

identification was modified by the Administrator before November 15,

1990) is designated nonattainment for PM-10.

EPA believes it is important to point out that the Klamath Falls

nonattainment boundaries were established, as were the boundaries for

all the initial PM-10 nonattainment areas, through a public notice

process which provided an opportunity for comment on the

appropriateness of the boundary description. In the August 7, 1987,

Federal Register document, Klamath Falls was identified by EPA as a PM-

10 area of concern and categorized as a Group 1 area. EPA did not

receive any comments questioning this action. Subsequently, on October

31, 1990, the area of concern was further defined as the area within

the urban growth boundary. See 55 FR 45799. Therefore, upon passage of

the Clean Air Act Amendments on November 15, 1990, the existing Klamath

Falls Group 1 area, as defined by the urban growth boundary, was

designated nonattainment and classified as a moderate PM-10

nonattainment area by operation of law. See 56 FR 56694 at 56705-56706,

56820 (Nov. 6, 1991) (document announcing formal codification of

initial PM-10 nonattainment areas in 40 CFR part 81).

On March 15, 1991 (56 FR 11101), prior to the November 6, 1991,

formal codification document, EPA announced all the designations and

classifications occurring for PM-10 by operation of law upon enactment

of the Clean Air Act (the ``initial PM-10 nonattainment areas''). In

this Federal Register document EPA provided, among other things, an

opportunity for the public to comment on EPA's announcement. EPA

requested public comment on the announcement in order to facilitate

public participation and avoid errors. EPA did not receive any comments

disputing the extent and description (i.e., the boundary) of the

Klamath Falls nonattainment area.

Furthermore, Oregon Administrative Rule (OAR) 340-31-500(10)

contains a legal description of the Klamath Falls UGB. This rule is

part of the federally-approved SIP.

EPA is not sure what distinction the commenter is attempting to

draw in the context of section 107(d) between the word ``area'' and the

phrase ``nonattainment area.'' That section itself defines a

nonattainment area as, among other things, any area that does not meet,

i.e., is violating, the national ambient air quality standard for any

pollutant. Section 107(d)(1)(A)(i). Other provisions in section 107(d)

determine the process by which particular areas are officially

designated as nonattainment. Indeed, the definition in section 171(2)

essentially refers back to the section 107(d) definition.

The comment on the urban vs. rural land use classification in

section 8.2.8 of EPA's Guideline on Air Quality Models (Revised) is not

relevant either to issues regarding the determination of the

appropriate boundaries of the nonattainment area, or the method of

modeling used to demonstrate attainment. Receptor, not dispersion

modeling, is used to demonstrate attainment with the NAAQS. Section

8.2.8 was written primarily in the context of the Prevention of

Significant Deterioration program. It was written to determine the

dispersion coefficient when modeling a single source and not for the

purpose of determining the nonattainment boundaries of an area.

B. Weyerhaeuser (Collins Products LLC) Issues

The primary issues associated with the Weyerhaeuser facility

presented by a commenter include, but are not limited to: (1)

dispersion modeling showing significant impacts at the Peterson School

monitoring site, (2) dispersion modeling showing exceedances of the 24-

hour NAAQS outside of the UGB, and (3) exclusion of Weyerhaeuser's PM-

10 emissions from the plan's emission inventory. Each of these issues

is addressed generally below and in more detail in the Response to

Comment document.

1. Weyerhaeuser's Modeled Impacts at Peterson School

One commenter refers to two modeling analyses, one conducted in

1992 and one conducted in 1994, which indicated the facility had a

significant impact at Peterson School and its emissions contributed to

an exceedance of the NAAQS at an unmonitored location. Another modeling

analysis, not referenced by the commenter, was conducted in 1995.

The 1992 and 1994 modeling analyses performed to assess

Weyerhaeuser's impact at the Peterson School monitoring site have been

superseded by a modeling analysis conducted in 1995. The modeling

analysis in 1995 was performed to satisfy the SIP commitment that

Weyerhaeuser's emissions be dispersion modeled ``to determine whether

emissions from the Weyerhaeuser facility have a significant impact

(annual average impact of 1 g/m3, or 24-hour impact of 5

g/m3) at the maximum concentration point within the

nonattainment area (Peterson School monitoring site).'' 3 The 1995

analysis was also performed to address deficiencies with the 1992 and

1994 analyses. Therefore, because the 1992 and the 1994 modeling

analyses have been superseded, the comments received concerning the

1992 and the 1994 modeling analyses performed by either Weyerhaeuser or

by the Oregon Department of Environmental Quality (ODEQ) are no longer

relevant.

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\3\ State Implementation Plan for PM-10 in Klamath Falls,

October 1991, Section 4.12.3.2.

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The 1995 analysis, summarized in an ODEQ August 4, 1995,

memorandum, indicates that, on exceedance days, the Weyerhaeuser

facility does not have a significant impact at the Peterson School

monitoring site. Included in this analysis is the facility's current

permitted allowable emissions, emission credits, and plant fugitive

emissions. These allowable emissions are reflected in the facility's

Air Contaminant Discharge Permit, issued on November 20, 1995. Through

the state's operating permit program, this permit is part of the

federally approved SIP.

This 1995 analysis indicates that the facility's current permitted

emissions do not have a significant impact on the Peterson School site

during exceedance days.

2. Weyerhaeuser's Modeled Impact at an Unmonitored Location

One commenter contends:

that there are presently exceedances within the Klamath area which

may preclude redesignation. Sec. 172(c)(1) provides that an

approvable SIP ``shall provide for the attainment of the national

primary ambient air quality standards.''

[[Page 18050]]

EPA believes that the comment alludes to a modeled violation of the

NAAQS at a location outside of the designated nonattainment area

boundary. Specifically, preliminary dispersion modeling information

indicates that the Weyerhaeuser Klamath Falls facility is causing a

violation of the NAAQS at an unmonitored site outside the nonattainment

area. The modeled violation of the NAAQS outside of the nonattainment

area and the approvability of the Klamath Falls PM-10 Control Plan by

EPA, are two separate issues. This rulemaking action concerns only the

latter issue.

Nevertheless, to address the comment concerning the modeled

violation, it is useful to note that the State of Oregon, with input

from EPA, is currently working with Collins Products LLC to mitigate

the modeled NAAQS violation. Further, as discussed in the June 5, 1996,

Federal Register document (61 FR 28531) and the TSD for that notice,

any violation of the NAAQS outside of an existing nonattainment area

would be subject to its own planning requirements, analysis, and

potential control measures.

3. Exclusion of Emissions

Both the 1991 version and the 1995 revision of the proposed Klamath

Falls PM-10 SIP, to some degree, discuss Weyerhaeuser's emissions. As

required by the nonattainment area plan, and as discussed in the TSD to

the June 5, 1996, Federal Register document; the Response to Comments

Document for this action; and elsewhere in this document, Weyerhaeuser

evaluated its impact at the Peterson School monitoring site.

C. Slash Burning Emissions

EPA received comments from two commenters indicating that PM-10

emissions from slash burning are not properly quantified. One of the

commenters contends that:

DEQ's emission inventory for Klamath County tallies slash

burning as the single largest source of emissions

and, given that, wonders how EPA can

* * * support a plan that considers slash to be a 0% contributor

when DEQ's own records show that over 3,000 \4\ tpy come from slash.

________________

\4\ This figure is from 1987-88 using DEQ's emission factor

applied to State Forestry Smoke Management Annual Report data.

As the commenter indicates, these emission estimates are on a

county-wide basis and as such do not accurately reflect emissions

generated from within the nonattainment area or the area in close

proximity to the nonattainment area. For comparison purposes, the

county is 6,135 square miles, whereas the nonattainment area is only

approximately 70 square miles. In addition, specific information

linking slash burning days with monitored exceedance days is not

presented.

However, to address the potential impacts of forestry slash

burning, a voluntary smoke management plan was developed and

implemented. This plan establishes a Special Protection Zone (SPZ)

around the nonattainment area. This SPZ restricts prescribed burning

within a 20 miles radius of Klamath Falls during the winter residential

wood burning season. As previously stated, exceedances of the 24-hour

NAAQS have historically occurred during the wood burning season. To

supplement the voluntary smoke management plan, a Memorandum of

Understanding was signed by and between several timber companies,

several national forests, the Oregon Department of Forestry, and the

Bureau of Land Management. As discussed in the June 5, 1996, Federal

Register document and its TSD, EPA believes these steps adequately

address the potential impacts of slash burning on the nonattainment

area.

D. Control Measures

It is one commenter's position that * * * reduction in emissions do

not `result from' implementation of the plan. Sec. 107(d)(3)(E)(iii).''

1. Mandatory Residential Woodburning Curtailment Program

It is one commenter's belief that a lack of exceedances of the 24-

hour NAAQS since January 1991, is

* * * not a measure of the success of the mandatory woodstove

curtailment program, but rather the accumulation of a number of

significant changes that have been occurring. The most significant

changes occurred at Weyco [Weyerhaeuser] * * *

Because the mandatory curtailment program (a voluntary program had

been in place for several years) was implemented November 1, 1991, it

is this commenter's opinion that the first complete year where

reductions from the mandatory program would have occurred is in 1992.

It is EPA's opinion that the chosen control strategies, which

include the mandatory curtailment program, have brought the area into

attainment with the NAAQS. This is discussed in more detail in the June

5, 1996, Federal Register document, the TSD to that document, and the

Response to Comment Document for this document.

Based on ambient monitoring, the last seven exceedances of the 24-

hour NAAQS occurred in 1991. All of the exceedances occurred in January

of that year. On October 31, 1991, one day before the mandatory

curtailment program was implemented, a monitored value of 136

g/m\3\ was recorded. On November 1, 1991, the mandatory

curtailment program was implemented, and, during the 1991/1992

woodburning season, the highest monitored value was 133 g/

m\3\. During November and December of 1991, there were no monitored

exceedances of the 24-hour NAAQS, thus, indicating that emission

reductions were being achieved by the end of 1991. In mid-1992,

Weyerhaeuser's five hog fuel boilers were taken out of service. This is

after completion of a successful woodburning season (November 1991

through February 1992) without any exceedances of the NAAQS. Therefore,

it is not unreasonable for EPA to believe that improvement in air

quality is due to implementation of the control measures. As discussed

in the TSD to the June 5, 1996, Federal Register document, ODEQ has

conducted compliance surveys and documented the effectiveness of the

program.

However, EPA also recognizes that the Weyerhaeuser facility has

reduced its actual PM-10 emissions and has taken a reduction in its

allowable emissions of over 600 tons since 1992. The facility is

currently permitted at 111 pounds per hour, a substantial reduction

from its previous limit.

2. Open Burning

The nonattainment area plan does not request credit for its open

burning control measures. It is one commenter's opinion that this is

not appropriate because significant open burning emissions existed in

the baseline period.

It is the state's prerogative to request credit for a specific

control measure. In regard to open burning, the plan does contain open

burning restrictions, but ODEQ chose not to request emission reduction

credits for the reductions resulting from the open burning control

measure. Nevertheless, emission reductions from the plan's control

measures will be realized and remain enforceable.

E. Attainment Demonstration Method

ODEQ conducted an attainment demonstration based upon receptor

modeling proportional roll-back calculations to estimate the emission

reductions required in 1994 to achieve the NAAQS. One commenter does

not agree with this method and states: ``The SIP ignores the results of

the dispersion

[[Page 18051]]

model [1992 modeling], uses an inappropriate rollback model with faulty

emission inputs and attempts to use a receptor model for validation.''

The commenter further states the SIP violates the CAA because two

documents contained in Section 3.2 of 40 CFR Part 51, Appendix W, were

not used to justify the use of rollback.

The same commenter provided a chart (Attachment D) relating ``total

wood production at Weyerhaeuser and PM-10 readings at Peterson School''

and states that the correlation coefficient (R square value) is 0.94

using linear regression in an attempt to demonstrate that Weyerhaeuser

was a dominant contributor to exceedances at Peterson School.

As noted elsewhere, the 1992 modeling analysis has been superseded

by a modeling analysis conducted in 1995 and, therefore, the 1992

analysis is no longer relevant.

As previously stated, the initial moderate PM-10 nonattainment

areas were required to submit a demonstration (including air quality

modeling) showing that the plan would provide for attainment as

expeditiously as practicable but no later than December 31, 1994 (see

Section 189(a)(1)(B) of the Act). The General Preamble sets out EPA's

guidance on the use of modeling for moderate area attainment

demonstrations (see 57 FR 13539). Alternatively, the state had to show

attainment by December 31, 1994, or that attainment was impracticable.

Generally, EPA recommends that attainment be demonstrated according

to the PM-10 SIP Development Guideline (June 1987), which presents

three methods. Federal regulations require demonstration of attainment

``by means of a proportional model or dispersion model or other

procedure which is shown to be adequate and appropriate for such

purposes'' (40 CFR 51.112). The preferred method is the use of both

dispersion and receptor modeling in combination. The regulation and the

guideline also allow the use of dispersion modeling alone, or the use

of two receptor models in combination with proportional rollback.

As indicated in the General Preamble, 57 FR at 13539, EPA has

developed a supplemental attainment demonstration policy for initial

PM-10 nonattainment areas such as Klamath Falls. The Preamble provides

additional flexibility in meeting the PM-10 attainment demonstration

requirements. An earlier April 2, 1991, memorandum titled, ``PM-10

Moderate Area SIP Guidance: Final Staff Work Product,'' contained

``Attachment 5'' describing the same policy. The policy explains that

in certain circumstances a modified attainment demonstration may be

appropriate on a case-by-case basis. It may be reasonable to accept a

modified attainment demonstration in cases where ``time constraints,

inadequate resources, inadequate data bases, lack of a model for some

unique situations, and other unavoidable circumstances would leave an

area unable to submit an attainment demonstration'' by November 15,

1991. The policy further explains that its application is reserved for

those initial PM-10 nonattainment areas that have ``completed the

technical analysis * * * and made a good-faith effort to submit a final

SIP by their November 15, 1991, due date.''

During development of the Klamath Falls initial moderate area PM-10

attainment plan, ODEQ did not use dispersion modeling to estimate the

design values or in the attainment and maintenance demonstrations. This

was due to: (1) the lack of adequate historical meteorological data,

(2) the late receipt in the development process of spatially resolved

emission inventory data needed for modeling, (3) the fact that the

intense and extremely shallow inversions and calm winds in the area

(typical wind speeds during exceedances days are less than one meter

per second) are not conducive to dispersion modeling (EPA does not have

and has not developed an approved guideline model for conditions of

this type), and (4) the fact that on winter days, when worst case air

quality conditions occur, the airshed is heavily dominated by emissions

from woodstoves, fireplaces, and road sanding.

The Klamath Falls PM-10 attainment demonstration is based upon

receptor modeling proportional roll-back calculations to estimate the

emission reductions required in 1994 to achieve the NAAQS. Emission

inventory estimates were reconciled with Chemical Mass Balance (CMB--

version 7.0) receptor modeling. Results from two emission estimation

methods--emission inventory and receptor modeling--are in agreement

that woodsmoke and soil dust are the major sources of emissions on

exceedance days. According to the emission inventory, woodsmoke equals

80% and soil dust equals 8% of total PM-10 particulate. According to

the CMB analysis, woodsmoke equals 82% and soil dust equals 10.9% of

particulate. This issue is discussed in more detail in the TSD for the

June 5, 1996, Federal Register document (see 61 FR 28537).

EPA guidance on CMB modeling specifies that the apportionment

should account for at least 80% of the measured aerosol mass. ODEQ's

analysis accounted for 96% of the mass.

The comment that the two documents (Interim Procedures for

Evaluating Air Quality Models and Protocol for Determining the Best

Performing Model) contained in Section 3.2 of 40 CFR part 51, appendix

W are not used to justify the use of roll-back is correct. This is

because the documents are intended to be used to evaluate the

performance of dispersion models not receptor models.

Because the input data for the graph presented in Attachment D were

not provided, EPA was not able to verify the correlation. In addition,

the graph presented in Attachment D, entitled ``ANNUAL PM10 VS WEYCO

LUMBER PRODUCTION'', shows lumber production (board feet x 100,000)

on the Y axis, and annual PM-10 concentrations (g/m\3\) on the

X axis. The labeling of the X and Y axes appear to be in error. For

example the graph indicates that, when lumber production is

approximately 70 x 100,000 board feet, annual PM-10 concentrations

should be approximately 200 g/m\3\. This value appears to be

in error because monitored annual PM-10 concentrations have never been

above 73 g/m\3\. Furthermore, the graph does not consider

implementation of the area's control measures (e.g., woodsmoke

curtailment, road dust measures, woodstove changeout), which

significantly reduced emissions over the same time period covered by

the graph, and the resulting improvement in air quality due to

implementation of the selected control measures.

Therefore, it is EPA's opinion that the graph presented in

Attachment D is inconclusive evidence that Weyerhaeuser was (is) a

dominant contributor to exceedances at Peterson School. In conclusion,

because ODEQ followed EPA guidance, used the approved EPA chemical mass

balance model, and because the CMB results were verified by the

emission inventory, EPA is satisfied that the source apportionment

provided by ODEQ in the Klamath Falls SIP is adequate.

EPA believes this conclusion is strengthened by the fact that,

since implementation of the control strategies in 1991, the area has

not exceeded the PM-10 NAAQS and has, based on monitored values, met

the CAA attainment date of December 31, 1994.

F. Contingency Measures

It is one commenter's opinion that the SIP's contingency plan ``is

flawed,'' ``the contingency section of the CAA has been violated,'' and

the measures do not ``protect against backsliding.'' These comments are

made in regard to the

[[Page 18052]]

plan's contingency measure applicable to the Weyerhaeuser facility.

EPA disagrees that the contingency section of the CAA has been

violated. All moderate area SIPs, due November 15, 1991, were required

to contain contingency measures that would be immediately implemented

upon a determination by EPA that an area failed to make RFP or to

attain the standard by the applicable attainment date. Besides a

contingency measure applicable to the Weyerhaeuser facility (see OAR

340-21-200), the nonattainment area plan also contains contingency

measures applicable to woodstoves, industrial sources located inside

the nonattainment area, and numerous road dust control measures. These

measures were reviewed and discussed in detail in the TSD for the June

5, 1996, Federal Register document. The attainment date for the Klamath

Falls nonattainment area was December 31, 1994. Based on monitored air

quality data, the Klamath Falls PM-10 nonattainment area has

demonstrated RFP and attained the PM-10 NAAQS. Air quality monitors

located within the designated nonattainment area boundary have not

recorded an exceedance of the NAAQS since 1991.

In light of all the above, EPA believes the Klamath Falls SIP does

provide for ``meaningful contingency planning'' that meets the

requirements of the Act.

III. This Action

Section 110(k) of the Act sets out provisions governing EPA's

review of SIP submittals (see 57 FR 13565-13566). In this action, EPA

is approving the plan revisions submitted to EPA on November 15, 1991,

and September 22, 1995. EPA has determined that the submittals meet all

of the applicable requirements of the Act due on November 15, 1991,

with respect to moderate area PM-10 submittals. Also, EPA is granting

the exclusion from PM-10 control requirements applicable to major

stationary sources of PM-10 precursors. In addition, EPA is approving

the SIP revision submitted on November 15, 1991, as meeting the

requirement for contingency measures.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors, and in relation to relevant statutory and

regulatory requirements.

IV. Effective Date

Pursuant to Section 553(d)(3) of the Administrative Procedures Act

(APA), this final rule is effective April 14, 1997. Section 553(d)(3)

of the APA allows EPA to waive the requirement that a rule be published

30 days before the effective date if EPA determines there is ``good

cause'' and publishes the grounds for such a finding with the rule.

Under section 553(d)(3), EPA must balance the necessity for immediate

federal enforceability of these SIP revisions against principles of

fundamental fairness which require that all affected persons be

afforded a reasonable time to prepare for the effective date of a new

rule. United States v. Gavrilovic, 551 F 2d 1099, 1105 (8th Cir. 1977).

The purpose of the requirement for a rule to be published 30 days

before the effective date of the rule is to give all affected persons a

reasonable time to prepare for the effective date of a new rule. Id.

EPA has determined good cause exists to make this Federal Register

document effective upon publication. The rules made federally

enforceable by this Federal Register document have been enforceable as

a matter of state law for more than five years. In addition, the PM-10

emission inventory contained in the Klamath Falls PM-10 Control Plan

must be federally approved before the Oregon Department of

Transportation can make conformity determinations for several

transportation projects in Klamath Falls which will benefit the general

public. The imposition of the 30-day delay in the effective date of

this SIP revision would require some of these projects to be postponed

for an additional 30 days. Therefore, EPA believes the 30-day

publication period would cause undue burdens to the public, and to

affected governmental and transportation planning agencies.

Thus, EPA has determined that good cause exists to make these SIP

revisions immediately effective and that the principles of fundamental

fairness are met because all known affected persons have been afforded

a reasonable time to prepare for the effective date of these SIP

revisions. Accordingly, pursuant to section 553(d)(3) of the APA, this

Oregon SIP revision approval is effective upon publication in the

Federal Register.

VI. 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.

SIP approvals under section 110 and subchapter I, part D, of the

Clean Air Act do not create any new requirements but simply approve

requirements that the state is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-state relationship

under the CAA, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

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 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.

[[Page 18053]]

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 June 13, 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 CAA section 307(b)(2), 42 U.S.C.

7607(b)(2))

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter.

Note: Incorporation by reference of the Implementation Plan for

the State of Oregon was approved by the Director of the Office of

Federal Register on July 1, 1982.

Dated: March 28, 1997.

Chuck Clarke,

Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart MM--Oregon

2. Section 52.1970 is amended by adding paragraph (c)(119) to read

as follows:

Sec. 52.1970 Identification of plan.

* * * * *

(c) * * *

(119) November 15, 1991, and September 20, 1995, letters from the

Director, Oregon Department of Environmental Quality, to the Region 10

Regional Administrator, EPA, submitting the PM-10 Klamath Falls,

Oregon, PM-10 Control Plan and amendments as revisions to its SIP.

(i) Incorporation by reference.

(A) State Implementation Plan for PM-10 in Klamath Falls, dated

October 1991 and revised August 1995; and Appendix 4: Ordinances and

Commitments, Ordinance No. 6630 (adopted September 16, 1991), and

Ordinance No. 63 (adopted July 31, 1991)--Chapters 170 and 406.

[FR Doc. 97-9508 Filed 4-11-97; 8:45 am]

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