Approval and Promulgation of Implementation Plans: Oregon

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR 48-1-7263a; FRL-6127-4]

Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) approves revisions to

the Oregon State Implementation Plan (SIP). EPA is approving revisions

to Oregon Administrative Rules (OAR) Chapter 340, Division 25 submitted

to EPA on August 31, 1995, and October 8, 1996, to satisfy the

requirements of section 110 of the Clean Air Act (CAA) and 40 CFR part

51.

DATES: This direct final rule is effective on September 22, 1998,

without further notice, unless EPA receives relevant adverse comment by

August 24, 1998. If adverse comment is received, EPA will publish a

timely withdrawal of the direct final rule in the Federal Register and

inform the public that the rule will not take effect.

ADDRESSES: Written comments should be addressed to: Montel Livingston,

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

Seattle, Washington 98101.

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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 material 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 Oregon Department of Environmental Quality, 811 SW. Sixth

Avenue, Portland, Oregon 97204.

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

(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-6510.

SUPPLEMENTARY INFORMATION:

I. Introduction

On August 31, 1995, the Oregon Department of Environmental Quality

(ODEQ) submitted to the Environmental Protection Agency (EPA), a

revision to the Oregon State Implementation Plan (SIP). This submittal

contained a revision to Oregon Administrative Rules (OAR), Chapter 340,

Division 25. Specifically, OAR 340-25-305, OAR 340-25-320, and OAR 340-

25-325 were revised. The above revision was adopted by the state on

January 20, 1995, and became state effective on February 17, 1995. The

intent of this revision was to revise the particulate matter allowable

emission limit.

Subsequently, on October 8, 1996, another revision to OAR 340-25-

320 and OAR 340-25-325 was submitted to EPA for incorporation into the

state's federally approved SIP. This revision was adopted by the state

on January 12, 1996, and became state effective January 29, 1996. The

purpose of this revision was to resolve a conflict between the above

rules and Notice of Construction rules OAR 340-28-800 to OAR 340-28-

820. EPA will discuss both submittals in this document.

II. Background

OAR 340-25-325

ODEQ originally adopted, as a matter of state law, the particulate

matter emission standard, OAR 340-25-325, for the hardboard industry in

1971. It became part of the federally approved SIP in 1986. The

emission standard set at that time was 1.0 lb/ksf (1.0 pounds of

particulate matter per 1,000 square feet of finished product). In

establishing this limit, emissions from exhaust vents above the

hardboard presses were assumed to be negligible and therefore were not

considered in establishing the 1.0 lb/ksf emission limit. Because they

were assumed to be negligible, the limit was not intended to require

controls on the vents. Actual emissions from a total facility (vent and

nonvent sources) were assumed to be less than 1.0 lb/ksf. However,

subsequent to the state adoption of the emission standard, testing of

the vents have shown that they are not negligible as originally assumed

and therefore, the standard was set too low for existing plants to

demonstrate compliance. To correct this matter, ODEQ has revised the

rule to account for the press vents particulate matter emissions and

has submitted the revised rule for inclusion in the federally approved

SIP.

However, even though the actual emissions of a particular facility

will not be allowed to increase, the revision will result in an

increase in allowable emissions. And, because the current emission

limits are part of the federally approved SIP, a demonstration that the

revision will not have an adverse impact on air quality is needed.

III. Discussion

A. August 31, 1995 Submittal

1. OAR 340-25-325: The August 1995 rule revision to OAR 340-25-325

corrects the emission limit by including press vent emissions. The

revision keeps the current limit as it applies to all non-vent

emissions sources at a plant and limits vent emissions at each affected

plant to their baseline level or a set maximum level. The revised rule

does not result in an increase in actual emissions; rather it reflects

a correction allowed by OAR 340-028-1020(7)(e) when errors are found or

better data is available for calculating PSELs.

The revision creates a new limit calculated from baseline

1 emissions. A plant's limit would be the sum of vent

emissions and the lesser of baseline non-vent emissions or 1.0 lb/ksf

(the original limit). In no case could the emission rate exceed 2.0 lb/

ksf. The effect would be to hold total emissions to what they would

have been at baseline had the press/cooling vents emissions been taken

into account, or less if baseline non-vent emissions were greater than

1.0, or if the total exceeds 2.0 lb/ksf.

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\1\ Baseline vent emission rate is defined as a source's vent

emissions rate during the baseline period (1977/1978) as defined in

OAR 340-28-0110, expressed as pounds of emissions per thousand

square feet of finished product, on a \1/8\ inch basis.

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2. OAR 340-25-305: The August 1995 revision to OAR 340-25-305 added

the definition for ``baseline vent emission rate'', clarified the

definition of EPA Method 9, and added the definition for ``press/

cooling vent'' to the definitions section of Chapter 340, Division 25,

Statewide Rules--Board Products Industries.

3. OAR 340-25-320: The revision to OAR 340-25-320 was housekeeping

in nature and corrected a cross referencing problem with another rule.

The revision required that any person who proposed to control windblown

particulate emissions from truck dump storage areas other than by

enclosure, had to apply to ODEQ for authorization to utilize

alternative controls. The rule was revised to require the application

to be submitted pursuant to OAR 340-28-800 through 820 instead of OAR

340-20-020 through 030.

B. October 8, 1996 Submittal

1. OAR 340-25-320 and 340-25-523: The October 1996 submittal was

also housekeeping in nature. OAR 340-25-320(1)(c) Particleboard

Manufacturing Operations--Truck Dump and Storage Areas and OAR 340-25-

325(1)(c) Hardboard Manufacturing Operations--Truck Dump and Storage

Areas were revised by deleting the reference to OAR 340-28-800 to 820.

A conflict existed because OAR 340-28-810(2) restricted OAR 340-28-800

through 820 from applying to federal operating permit program sources.

Because the state wanted all sources to be subject to OAR 340-25-

320(1)(c) and OAR 340-25-325(1)(c), reference to OAR 340-28-800 to 820

was deleted.

IV. Sources Affected

A total of seven hardboard manufacturing plants are affected by the

revision to OAR 340-25-325. Six plants are located in areas currently

designated unclassified for particulate matter with an aerodynamic

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

these six plants, Collins Products LLC, is located directly outside the

Klamath Falls PM-10 nonattainment area. The seventh plant, a Jeld Wen,

Inc. facility is located inside the boundary of the Klamath Falls PM-10

nonattainment area.

A. Analysis of Revision

1. Facilities located in areas unclassified for PM-10: In

accordance with Section 110(l) of the Clean Air Act (CAA), EPA Region

10 required either a demonstration or documentation that the PM-10

National Ambient Air Quality Standards (NAAQS) and visibility would be

protected and documentation that the revision would not allow a

violation of the Prevention of Significant Deterioration (PSD)

requirement.

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Bearing in mind the original intent of the rule revision, ODEQ and

the region agreed upon the following methodology: (1) for those sources

which had not changed their mode of operation since baseline, the

region would not require a PSD analysis instead a written justification

including emission calculations would be acceptable; and (2) for those

sources whose method of operation had changed since the hardboard rule

was promulgated and the change resulted in emission increases above the

significant threshold levels, a complete PSD analysis would be

required. Sources that would be subject to a PSD analysis would also

have to undergo a visibility analysis.

However, a PSD increment analysis for all affected sources would

not be required. Since the press vents were in operation when baseline

was established (1977/1978), and the rule revision does not allow for

an increase in actual emissions, a PSD increment analysis was not

required. The rule, by itself, does not allow for increment

consumption.

For NAAQS purposes, the assumption is made that since these sources

are not located in a nonattainment area (the areas are unclassified)

and emissions from the press vents have been occurring since 1977/1978,

increasing the allowable limit to reflect actual emissions would not

adversely affect air quality. The information before EPA does not

indicate that an air quality problem currently exists.

Visibility requirements are addressed through the fact that this

revision does not allow for an increase in actual emissions above those

accounted for in Oregon's long term visibility strategy. Again, as

discussed above, the SIP revision only establishes allowable emissions

equal to or less than baseline emissions.

2. Facility located inside the Klamath Falls PM-10 nonattainment

area: It is EPA position that the revision to OAR 340-025-325 is

subject to Section 193 of the CAA, as amended, for a source located in

one of Oregon's PM-10 nonattainment areas. And therefore, the revision

must demonstrate that the increase in allowable emissions will not have

an adverse impact on timely attainment of the PM-10 National Ambient

Air Quality Standards (NAAQS) in those areas. Also, the demonstration

must ensure that emission reductions equivalent to those required by

the current SIP rule are achieved. This position is based on the fact

that the rule was part of the federally approved SIP before enactment

of the Clean Air Act Amendments (CAAA) of 1990. The only source located

inside a PM-10 nonattainment area affected by this rule revision is the

Jeld Wen, Inc. facility in Klamath Falls.

On September 22, 1995, ODEQ submitted a revision to the November

15, 1991, attainment plan for the Klamath Falls PM-10 nonattainment

area. This revision addressed, among other things, the above Section

193 requirement. A review of the area's attainment demonstration

indicated that the increase in allowable emissions would not adversely

impact air quality. The 1991 attainment plan and 1995 revision to the

plan have both been approved by EPA. See 61 FR 28531 (June 5, 1996) and

62 FR 18047 (April 14, 1997) for details. It is EPA's position that the

requirements of Section 193 have been satisfied.

3. Facility located outside the Klamath Falls PM-10 nonattainment

area: One of the facilities affected by this revision, Collins Products

LLC, is located outside the boundary of the Klamath Falls PM-10

nonattainment area. During assessment of the source's impact on the

nonattainment area, a 1995 dispersion modeling analysis indicated that

a violation of the 24-hour PM-10 NAAQS existed in an unmonitored

location outside the nonattainment area boundary. To address the

modeled violation, and allow EPA to approve the hardboard rule as it

applies to Collins Products, Collins Products agreed to the

installation of additional control devices and a reduction in permitted

allowable emissions. Through the installation of three baghouses and

the reduction in allowable emissions, Collins Products was able to

demonstrate compliance with the 24-hour PM-10 NAAQS. The requirement to

install additional control devices and the reduction in permitted

emission limits have been incorporated into their Air Contaminant

Discharge Permit (ACDP). 2 An addendum to their ACDP was

issued on June 2, 1997. Oregon's ACDP regulations are part of the

federally approved SIP and their permits are federallly enforceable.

(See 40 CFR 52.1988).

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\2\ See letter from Gregory A. Green, Administrator Air Quality

Division, ODEQ to Anita Frankel, Air Director, USEPA, Region 10

dated April 8, 1997.

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B. July 18, 1997 Revision to the PM-10 NAAQS

On July 18, 1997, EPA revised the PM NAAQS (see 62 FR 38651). This

revision changed the form of the 24-hour PM-10 standard, retained the

annual standard, and added 24-hour and annual standards for PM with an

aerometric mean diameter less than 2.5 micrometers (PM-2.5). Section

50.3 of 40 CFR Part 50 was also revised to remove the requirement to

correct the temperature and pressure of measured PM concentrations to

standard reference conditions. The revised PM NAAQS and their

associated appendices became effective on September 16, 1997. However,

the PM-10 NAAQS in effect before September 16, 1997, (pre-existing

standard) was not revoked upon establishing the revised PM NAAQS.

3

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\3\ See memorandum dated December 27, 1997, from Richard D.

Wilson, Acting Assistant Administrator for Air and Radiation, to

Regional Administrators entitled Guidance for Implementing the 1-

Hour Ozone and Pre-existing PM10 NAAQS.

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Additionally, it is EPA's opinion that the submittal conforms to

EPA's guidance for ``Grandfathering'.4 EPA has developed

guidance on applying previously applicable standards to pending SIP

revisions where the relevant requirements have changed since the state

prepared the SIP submittal. The submittal conforms to the applicable

CAA requirements for the pre-existing PM-10 NAAQS.

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\4\ See memorandum dated January 27, 1988, from Gerald A.

Emison, Director, Office of Air Quality Planning and Standards, to

Director, Air and Toxics Division, Region X, entitled

``Grandfathering'' of Requirements for Pending SIP Revisions.

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V. Summary of Action

Section 110(l) of the CAA provides that EPA may not approve a

revision to a state's SIP that would interfere with any applicable

requirement concerning attainment and reasonable further progress or

any other applicable requirement of the Act. EPA has thoroughly

evaluated the above revision and is approving the revisions to OAR

Chapter 340, Division 25, as submitted on August 31, 1995, and October

8, 1996.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors, and in

relation to relevant statutory and regulatory requirements.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective

September 22, 1998, without further notice unless the Agency receives

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relevant adverse comments by August 24, 1998.

If the EPA receives such comments, then EPA will publish a document

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period. Only parties interested in

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

are received, the public is advised that this rule will be effective on

September 22, 1998, and no further action will be taken on the proposed

rule.

VI. Administrative Requirements

A. Executive Order 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866, entitled, ``Regulatory Planning and

Review'' review.

The final rule is not subject to E.O. 13045, entitled, ``Protection

of Children from Environmental Health Risks and Safety Risks'' because

it is not an ``economically significant'' action under E.O. 12866.

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

CAA 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 regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of State action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 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 by the rule.

EPA has determined that the approval action as 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 Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. Section 804, however, exempts from section 801 the

following types of rules: rules of particular applicability; rules

relating to agency management or personnel; and rules of agency

organization, procedure, or practice that do not substantially affect

the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA

is not required to submit a rule report regarding today's action under

section 801 because this is a rule of particular applicability.

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 22, 1998. 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).

F. Oregon's Audit Privilege Act

Nothing in this action should be construed as making any

determination or expressing any position regarding Oregon's Audit

Privilege Act, ORS 468.963 enacted in 1993, or its impact upon any

approved provision in the SIP, including the revision at issue here.

The action taken herein does not express or imply any viewpoint on the

question of whether there are legal deficiencies in this or any other

Clean Air Act program resulting from the effect of Oregon's audit

privilege and immunity law. A state audit privilege and immunity law

can affect only state enforcement and cannot have any impact on federal

enforcement authorities. EPA may at any time invoke its authority under

the Clean Air Act, including, for example, sections 113, 167, 205, 211

or 213, to enforce the requirements or prohibitions of the state plan,

independently of any state enforcement effort. In addition, citizen

enforcement under section 304 of the Clean Air Act is likewise

unaffected by a state audit privilege or immunity law.

G. Oregon's Advance Notice Prior to Penalty

In reviewing previous SIP revisions, EPA determined that because

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

enacted in 1991, bars civil penalties from being imposed for certain

permit violations, ORS 468 fails to provide the adequate enforcement

authority the State must demonstrate to obtain SIP approval, as

specified in Section 110 of the Clean Air Act and 40 CFR 51.230.

Accordingly, the requirement to provide such notice would preclude

federal approval of a 110 SIP revision.

To correct the problem, 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 has responded to EPA's understanding of the

application of 468.126(2)(e) and agrees that, if federal statutory

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requirements preclude the use of the five-day advance notice provision,

no advance notice will be required for violations of SIP requirements

contained in permits.

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: July 9, 1998.

Chuck Clarke,

Regional Administrator, Region 10.

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 et seq.

Subpart MM--State of Oregon

2. Section 52.1970 is amended by adding paragraph (c) (126) to read

as follows:

Sec. 52.1970 Identification of plan.

* * * * *

(c) * * *

(126) On August 31, 1995, and October 8, 1996, the Director of ODEQ

submitted to the Regional Administrator of EPA revisions to its Oregon

SIP: the Oregon Administrative Rules (OAR) Chapter 340, Division 25,

Specific Industrial Standards (OAR 340-25-305, 320 and 325).

(i) Incorporation by reference.

(A) August 31, 1995, letter from ODEQ to EPA submitting a revision

to the Oregon Administrative Rules (OAR); OAR 340-25-305, State

effective on February 17, 1995.

(B) October 8, 1996, letter from ODEQ to EPA submitting a revision

to the Oregon Administrative Rules (OAR); OAR 340-25-320 and OAR 340-

25-325, State effective on January 29, 1996.

[FR Doc. 98-19834 Filed 7-23-98; 8:45 am]

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