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[Federal Register: July 5, 2011 (Volume 76, Number 128)]
[Rules and Regulations]               
[Page 38997-39005]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jy11-6]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2011-0035; FRL-9425-3]

 
Approval and Promulgation of Implementation Plans; State of 
Oregon; Regional Haze State Implementation Plan and Interstate 
Transport Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving portions of a State Implementation Plan (SIP) 
revision submitted by the State of Oregon on December 20, 2010, as 
meeting the requirements of Clean Air Act (CAA) section 
110(a)(2)(D)(i)(II) as it applies to visibility for the 1997 8-hour 
ozone and 1997 particulate matter (PM2.5) National Ambient 
Air Quality Standards (NAAQS). EPA is also approving portions of the 
revision as meeting certain requirements of the regional haze program, 
including the requirements for best available retrofit technology 
(BART).

DATES:  Effective Date: This final rule is effective August 4, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R10-OAR-2010-0035. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the State and Tribal Air Programs Unit, Office of Air Waste and Toxics, 
EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101. EPA requests that 
if at all possible, you contact the individual listed in the FOR 
FURTHER INFORMATION CONTACT section to view the hard copy of the 
docket. You may view the hard copy of the docket Monday through Friday, 
8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Keith Rose, EPA Region 10, Suite 900, 
Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle, WA 98101.

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act, CAA, or Clean Air Act mean or refer 
to the Clean Air Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words Oregon and State mean the State of Oregon.

Table of Contents

I. Background Information
II. Response to Comments
III. Final Action
IV. Oregon Notice Provision
V. Scope of EPA Approval
VI. Statutory and Executive Orders Review

I. Background Information

    On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and 
for fine particulate matter (PM2.5). This action is being 
taken, in part, in response to the promulgation of the 1997 8-hour 
ozone and PM2.5 NAAQS. Section 110(a)(1) of the CAA requires 
states to submit a SIP revision to address a new or revised NAAQS 
within 3 years after promulgation of such standards, or within such 
shorter period as EPA may prescribe. Section 110(a)(2) lists the 
elements that such new SIPs must address, as applicable, including 
section 110(a)(2)(D)(i), which pertains to interstate transport of 
certain emissions.
    Section 110(a)(2)(D)(i) of the CAA requires that a SIP must contain 
adequate provisions prohibiting any source or other type of emissions 
activity within the state from emitting

[[Page 38998]]

any air pollutant in amounts which will: (1) Contribute significantly 
to nonattainment of the NAAQS in any other state; (2) interfere with 
maintenance of the NAAQS by any other state; (3) interfere with any 
other state's required measures to prevent significant deterioration of 
air quality; or (4) interfere with any other state's required measures 
to protect visibility. This action addresses the fourth prong, section 
110(a)(2)(D)(i)(II).
    In the CAA Amendments of 1977, Congress established a program to 
protect and improve visibility in the national parks and wilderness 
areas. See CAA section 169(A). Congress amended the visibility 
provisions in the CAA in 1990 to focus attention on the problem of 
regional haze. See CAA section 169(B). EPA promulgated regulations in 
1999 to implement sections 169A and 169B of the Act. These regulations 
require states to develop and implement plans to ensure reasonable 
progress toward improving visibility in mandatory Class I Federal areas 
\1\ (Class I areas). 64 FR 35714 (July 1, 1999); see also 70 FR 39104 
(July 6, 2005) and 71 FR 60612 (October 13, 2006).
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    \1\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6000 acres, wilderness areas and 
national memorial parks exceeding 5000 acres, and all international 
parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). 
In accordance with section 169A of the Clean Air Act, EPA, in 
consultation with the Department of the Interior, promulgated a list 
of 156 areas where visibility is identified as an important value. 
44 FR 69122 (November 30, 1979). The extent of a mandatory Class I 
area includes subsequent changes in boundaries, such as park 
expansions. 42 U.S.C. 7472(a). Although states and tribes may 
designate as Class I additional areas which they consider to have 
visibility as an important value, the requirements of the visibility 
program set forth in section 169A of the Clean Air Act apply only to 
``mandatory Class I Federal areas.'' Each mandatory Class I Federal 
area is the responsibility of a ``Federal Land Manager.'' 42 U.S.C. 
7602(i). When we use the term ``Class I area'' in this action, we 
mean a ``mandatory Class I Federal area.''
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    On December 20, 2010, the State of Oregon submitted to EPA a State 
Implementation Plan (SIP) revision addressing the interstate transport 
requirements for visibility for the 1997 ozone and PM2.5 
NAAQS, see CAA Sec.  110(a)(2)(D)(i)(II), and the requirements of the 
Regional Haze program at 40 CFR 51.308. (Regional Haze SIP submittal).
    On March 8, 2011, EPA published a notice in which the Agency 
proposed to approve the Oregon SIP revision as meeting the requirements 
of both section 110(a)(2)(D)(i)(II) of the CAA and the Regional Haze 
requirements set forth in sections 169A and 169B of the Act and in 40 
CFR 51.300-308 with the exception of Chapter 11, Oregon Reasonable 
Progress Goal Demonstration and Chapter 12, Long-Term Strategy. 76 FR 
12651. (Notice of Proposed Rulemaking or NPR). For Oregon's Reasonable 
Progress Goal Determination and Long-Term Strategy, EPA did not propose 
taking any action.

II. Response to Comments

    EPA received a number of comments on the proposed action to approve 
certain elements of the Regional Haze SIP submittal. Comments in 
support were received from: The Citizens' Utility Board of Oregon; 
International Brotherhood of Electrical Workers Local 125; Morrow 
County; and Portland General Electric Company (PGE). Adverse comments 
were received by two entities: The National Parks and Conservation 
Association (NPCA); and Pacific Environmental Advocacy Center (PEAC). 
The comments submitted by NPCA incorporated multiple comments which 
were previously submitted to Oregon Department of Environmental Quality 
(ODEQ) on some of the prior proposals the State was previously 
considering. Some of these comments related to options, closure 
timeframes or evaluations which were previously considered by ODEQ but 
were not included in the final Regional Haze SIP submission. 
Accordingly, because these now superseded aspects of ODEQ's BART 
analysis or determination are not before EPA, a response to the 
comments about those options is not necessary. The following discussion 
summarizes and responds to the relevant comments received on EPA's 
proposed SIP action and explains the basis for EPA's final action.
    Comment: The Citizens' Utility Board commented that the ODEQ BART 
rules for the PGE coal-fired electric power plant at Boardman, Oregon 
(PGE Boardman or Boardman facility) allow for cost effective pollution 
controls which will reduce air pollution generated by the facility, 
including air pollutants which contribute to haze in Class 1 areas. The 
commenter states that the rules also require the Boardman facility to 
be shut down by December 31, 2020 and the shut down allows the State of 
Oregon to move forward with its goals to reduce carbon emissions 
statewide and will protect utility customers from the costs and risks 
that will be associated with carbon regulation. The commenter further 
stated that the Best Available Retrofit Technology (BART) rules 
approved by the ODEQ are the product of several years of work resulting 
from a collaborative process involving state agencies, environmental 
organizations, consumer groups, local governments, and other 
stakeholders. The rules result in significant reductions in air 
pollution, while allowing Oregon to pursue important state policies 
targeted towards reducing carbon emissions, and keeping electric rates 
affordable.
    Response: EPA acknowledges the comment and notes that there will be 
a significant reduction in NOX and SO2 from the 
Boardman facility due to the BART controls for those pollutants, and 
the further reasonable progress limits for SO2 in 2018. 
Also, ceasing to use coal at the Foster-Wheeler boiler by end of 2020, 
will result in a additional reduction of NOX, 
SO2, and carbon dioxide emissions from the facility and 
significant cumulative visibility improvement in all impacted Class I 
areas.
    Comment: International Brothers of Electrical Workers Local 125 
commented that the Boardman facility is more than an electrical 
generating plant and that the city of Boardman and county of Morrow are 
dependent on this a facility for a substantial portion of its revenue. 
Boardman's citizens and Morrow County's resident recognize that the 
facility will cease using coal by the end of 2020, but are hopeful that 
alternative fuel sources will be approved to continue operations beyond 
2020.
    Response: EPA recognizes the facility's importance to the 
community. The approved rules do not prevent the facility owners from 
using alternate fuel or from constructing a new power source. If the 
Boardman facility is powered with alternative fuels or if a new 
facility is constructed all applicable CAA requirements, including New 
Source Performance Requirements (NSPS) and Prevention of Significant 
Deterioration (PSD) emission control requirements, must be met. The 
emission netting basis and plant site emission limits (PSELs) used in 
determining whether a modification to facility must meet PSD 
requirements, will be reduced to zero when the Foster-Wheeler boiler at 
the facility permanently ceases to burn coal. OAR 340-223-0030(1)(e).
    Comment: Morrow County commented that they support EPA's approval 
of Oregon's Regional Haze SIP submittal and stated that the 10 year 
timeframe in the BART rule provides adequate time to put reliable 
replacement generation in place, protects this region and the state 
from the economic blow that would result from an earlier closure and is 
an appropriate balance of environmental and economic interests of 
Oregon and its citizens. The County further stated that the SIP 
accomplishes their wish to

[[Page 38999]]

have environmental standards in place that will preserve the beauty of 
the area for future generations by reducing emission of NOX, 
SO2, and mercury, during the plant's remaining lifetime and 
ending all coal-related emissions from the Boardman facility at least 
20 years ahead of schedule.
    Response: EPA acknowledges this comment.
    Comment: PGE commented that it believes that the ODEQ BART rules 
for the Boardman facility achieve the proper balance of environmental 
benefits, the cost to customers and the reliability of the PGE 
electrical power system. PGE states it found that it is possible to 
secure greater environmental benefits with a better balance of cost and 
risk by transitioning the Boardman facility away from coal at least 20 
years ahead of schedule. PGE believes that the ODEQ Boardman BART rule 
includes significant and cost-effective emission control measures to 
improve visibility and ensure that the Boardman plant will cease coal-
firing by December 31, 2020.
    Response: EPA believes that the BART controls required for PGE 
Boardman will result in a significant reduction in haze that impacts 
Class I areas through 2020. Then, ceasing to burn coal at the facility 
will result in additional and significant reductions in SO2 
and NOX emissions from Boardman at that time, and well as 
substantial reductions in carbon dioxide emissions. Further, ceasing to 
burn coal by no later than December 31, 2020, will result in cumulative 
visibility improvements in all 14 impacted Class I areas. See Regional 
Haze SIP submittal, Appendix D at D-171.
    Comment: Comments were submitted claiming an inappropriate double-
counting of ``remaining useful life'' by ODEQ to justify lesser 
pollution control requirements as BART for the Boardman facility.
    Response: ODEQ did not double-count the remaining useful life of 
the plant in the PGE Boardman BART analysis. As ODEQ explained, closure 
of the plant is not, by itself, considered BART. Rather, the closure 
date establishes the remaining useful life of the plant which is used 
to determine the cost effectiveness of the various control 
technologies. See Regional Haze SIP submittal, Appendix D at D-125. See 
also Appendix Y to Part 51--Guidelines for BART Determinations Under 
the Regional Haze Rule (BART Guidelines), Section D. step 4.k.1. (70 FR 
39156 (July 6, 2005)). A decision to cease burning coal by 2020 
shortens the expected useful life of the coal-burning Foster-Wheeler 
boiler by 20 years when compared to its expected useful life of 2040. 
ODEQ documented its method for incorporating remaining useful plant 
life in determining cost effectiveness of control technologies. See 
Regional Haze SIP submittal, Appendix D at D-125 and D-131. The BART 
Guidelines specifically provide that the remaining useful life of a 
source may affect the annualized costs of retrofit controls and 
explains that ``where the remaining useful life is less than the time 
period for amortizing costs, you should use this shorter time period in 
your cost calculations.'' 70 FR 39169. Thus, ODEQ appropriately applied 
the BART Guidelines when it considered the remaining useful life of the 
Foster-Wheeler boiler when evaluating the cost effectiveness of the 
control technologies. In addition, EPA notes that ODEQ's conclusion 
regarding cost effectiveness for SO2 controls, specifically 
Semi-dry Flue Gas Desulfurization (SDFGD) versus Dry Sorbent Injection 
(DSI) technologies, varied appropriately depending on the plant closure 
date. See EPA Assessment of ODEQ Determination of Best Available 
Retrofit Technology for the PGE Coal Fired Power Plant in Boardman, 
Oregon (EPA Boardman BART Assessment) January 18, 2011.
    Comment: One comment stated that a compilation of BART analyses 
across the United States reveals that the average cost per deciview 
(dv) proposed by either a state or a BART source is $14 to $18 million, 
with a maximum of $51 million per dv proposed by South Dakota at the 
Big Stone power plant. The commenter noted that ODEQ has chosen $10 
million/dv as a cost criterion, which is somewhat below the national 
average.
    Response: ODEQ selected a dollars/dv cost effectiveness threshold 
of $10 million/dv based on what it considered the most relevant cost 
effectiveness figures available from similar coal-fired power plants in 
other parts of the country. See Regional Haze SIP submittal, Appendix 
D--Table 16 (D-137) for the estimated dollars/dv of the various control 
technologies. EPA notes that the comment is consistent with EPA's 
review of dollars/dv cost effectiveness data compiled by the National 
Park Service (NPS) available for a variety of coal-fired facilities 
located across the country. The NPS data show that ODEQ's dollar/dv 
threshold is below the average cost for BART NOX and 
SO2 control technologies selected for other coal-fired power 
plants in the country. In EPA's view, however, the dollars/dv metric is 
a difficult one to apply consistently across BART sources given the 
variability in the number of Class I areas impacted by emissions from a 
BART source and the number of days of impacts at each area. In 
assessing the reasonableness of a state's BART determination, EPA does 
not consider it appropriate to focus on a bright-line threshold such as 
a dollars/dv cost effectiveness threshold but rather on the full range 
of relevant factors. In reviewing the BART determination for the 
Boardman facility, EPA has accordingly taken into account not only 
ODEQ's analysis of dollars/dv, but also the range of visibility impacts 
associated with the various control options.
    Comment: One comment expressed concern with the way in which the 
incremental cost analysis is used by ODEQ. It stated that to use 
incremental costs properly, they must be compared to incremental costs 
for similar situations.
    Response: The Regional Haze SIP submittal shows that that ODEQ 
estimated the incremental cost and average cost effectiveness of the 
various control options considered in its cost analysis for determining 
BART. ODEQ first calculated the average cost effectiveness of each 
technology, and then calculated the incremental cost of going from the 
most cost effective technology to each of the more stringent 
technically feasible control technologies. See Regional Haze SIP 
submittal, Appendix D--Table 8 at D-132 and Cost effectiveness table on 
D-168. The approach used by ODEQ to determine average and incremental 
cost effectiveness is consistent with the procedure outlined in the 
BART Guidelines. See 70 FR 39167. Given the source-specific nature of a 
BART determination and the emphasis not only on the costs of control, 
but other factors such as the degree of visibility improvement 
resulting from the use of controls and the remaining useful life of the 
facility, comparisons of incremental costs across sources are often not 
meaningful in making BART determinations.
    Comment: Multiple comments were submitted concerning the cost 
effectiveness calculations. The comments expressed concern regarding 
the dismissal of controls that are cost-effective even with the State's 
$7,300/ton and $10 million/dv thresholds claiming that semi-dry flue 
gas desulfurization (SDFGD), selective non-catalytic reduction (SNCR), 
and selective catalytic reduction (SCR) were eliminated from 
consideration as BART for PGE Boardman through inappropriately inflated 
costs, inclusion of costs not allowed by EPA's Cost Control Manual, 
underestimated control effectiveness, and arbitrarily and

[[Page 39000]]

shortened equipment life due to excessively long assumed installation 
times.
    Response: As explained in the SIP submittal, ODEQ evaluated and 
considered the costs, control efficiencies of the various control 
technologies, and expected equipment life in its BART determination. 
ODEQ used an independent contractor (ERG) to evaluate PGE's cost 
estimates for the Boardman facility and concluded that while PGE's 
estimates were significantly higher than ERG's, PGE's estimates better 
reflected real world costs, and were appropriate for the PGE Boardman 
BART analysis. More specifically, ERG concluded that the actual cost of 
retrofits is, in general, higher than the estimates provided by the 
EPA's Cost Control Manual. ODEQ explained that difference is due to a 
dramatic increase is labor and material costs in recent years. See 
Regional Haze SIP submittal, Attachment 7.2, ODEQ response to comments, 
I.1.a-c, for more detail.
    In reviewing ODEQ's BART determination, EPA recognized that the 
cost estimates ODEQ relied on included two capital cost line items that 
are not normally included when using the EPA Cost Control manual. The 
effect of including these two line items is that the capital costs are 
likely ``at the high end'' of the capital cost range estimate. See EPA 
Boardman BART Assessment at 2. To assess the impact of ODEQ's decision 
to include these items in the cost estimate, EPA further evaluated the 
cost effectiveness value for SDFGD without including the two capital 
cost line items, and concluded that the cost effectiveness of SDFGD 
would drop from $5,535/ton to $4,810/ton. Although EPA considers the 
$4,810/ton to better reflect the true cost of SDFGD, we conclude that 
the $725/ton difference between the two estimates would not materially 
affect ODEQ's evaluation. EPA notes that the incremental visibility 
improvement between SDFGD and DSI-1 (0.4 lb/mmBtu) would only be 0.4 dv 
at the most impacted Class I area. Additionally, EPA found that with an 
SO2 limit of 0.3 lb/mmBtu in 2018, the incremental 
visibility improvement between the two control technologies would only 
be 0.26 dv in the most impacted Class I area. In addition, while SDFGD 
would achieve a cumulative visibility improvement of 10.6 dv in all 
impacted Class I areas and DSI-1 \2\ would achieve a cumulative 
visibility improvement of 7.0 dv and DSI-2 \3\ would achieve a 
cumulative improvement of 9.3 dv in 2018, when the facility ceases to 
burn coal at the end of 2020, the cumulative visibility improvement 
would be 31.46 dv. See Regional Haze SIP submittal, Appendix D at D-
137, 168 and 171. When choosing between the two technologies, it is 
reasonable for the state to consider the sizable capital cost 
difference between SDFGD and DSI, and the relatively small incremental 
visibility improvement between the two technologies in light of the 
shutdown of the unit in 2020. In EPA's view, ODEQ's final selection of 
BART would not have changed even if the cost effectiveness had been 
adjusted to reflect the EPA Cost Manual.
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    \2\ DSI-1 is defined as the initial DSI system performance that 
would achieve an SO2 emission limit of 0.4 lbs/mmBtu by 
July 1, 2014.
    \3\ DSI-2 is defined as the DSI system performance that would 
achieve an SO2 emission limit of 0.3 lbs/mmBtu by July 1, 
2018.
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    Regarding the comments concerning control effectiveness of SCR, 
SNCR, and SDFGD technologies, ODEQ determined the control effectiveness 
of these control options by evaluating actual emissions data from other 
sources employing similar types controls, taking into consideration 
that BART limit must be achieved at all times for a retrofit 
installation at Boardman. ODEQ's evaluation determined that the 
Boardman facility could not achieve the lower emission rate suggested 
by the commenter. See Regional Haze SIP submittal, Appendix D at D-14 
through D-18, and Attachment 7.2, ODEQ response to comments 1I.1.b.
    Comment: A commenter notes that on September 1, 2010, Oregon 
released a proposed rulemaking for public comment that included BART 
requirements for PGE Boardman based on a variety of closure dates, 
including 2020. The comment claims that the September 2010 proposal 
required installation of SDFGD and SNCR for a 2020 shutdown but that 
the requirements for a 2020 closure date were relaxed significantly in 
the plan EPA proposes to approve. The commenter does not believe there 
is sufficient justification for this relaxation of BART and states the 
relaxation appears arbitrary.
    Response: As mentioned above, EPA's action relates to the BART 
determinations contained in the Regional Haze Plan that was submitted 
to EPA on December 20, 2010. EPA explained the basis for its decision 
to approve ODEQ's BART determination in the notice of proposed 
rulemaking. 76 FR at 12660-12662. Although ODEQ may have considered 
establishing more stringent BART emission limits at an earlier point, 
this does not provide a basis for disapproving its final BART 
determination.
    Comment: A commenter stated that it is unclear whether the current 
regulatory language proposed by ODEQ would actually result in the 
``closure'' of the Boardman facility because each closure option states 
that it only applies to the ``Foster-Wheeler boiler'' at Boardman. To 
ensure no other coal-fired boiler could be installed at Boardman the 
commenter requested ODEQ to strike the commercial name of the boiler 
from OAR 340-223-0020 through OAR 340-223-0090 and replace it with 
either ``any coal-fired boiler'' or ``the Boardman coal-fired power 
plant.''
    Response: The State rules are clear in that they apply to the 
Foster-Wheeler boiler which is the only coal-fired unit at the Boardman 
facility. The rules do not prevent the plant owners from applying for a 
permit to construct a new power plant at the facility or to use the 
existing equipment with different fuel. See Oregon Regional Haze SIP 
submittal Attachment 1.1 at 8-9. However any new facility or change in 
the operations would need to be permitted in compliance with the CAA 
requirements. Further, the rules explain that notwithstanding the 
definition of netting basis and the process for reducing plant site 
emission limits (PSEL) in the Oregon rules, the netting basis and the 
PSEL are reduced to zero on the date which the boiler permanently 
ceases to burn coal. See OAR 340-223-0030(1)(e). Thus, as ODEQ 
explained to the Environmental Quality Commission, ``Any new facility 
or repowering of the existing coal-fired boiler would be permitted as a 
new facility without relying on the reductions from the existing plant 
and in compliance with all applicable state and federal requirements, 
including modern air pollution controls and air quality impact 
analysis.'' See Regional Haze SIP submittal, Attachment 1.1 at 9.
    Comment: Multiple commenters explained that if ODEQ decides that 
the SO2 emission limit, based on DSI, is BART for PGE 
Boardman, it should require PGE to design and install the DSI system to 
achieve 90% efficiency and require that PGE optimize its effectiveness 
for the duration of its operation.
    Response: ODEQ established SO2 BART limits for the 
Boardman facility based on an estimated 35% minimal efficiency of DSI 
in removing SO2 from the flue gas. A similar comment 
regarding DSI efficiency was made to ODEQ during the State public 
comment period. In response ODEQ stated:

[[Page 39001]]

    ``ODEQ is not aware of a DSI system, such as proposed for the 
PGE Boardman Plant, to have been installed on a similar sized unit. 
DSI has been used on smaller units that also included fabric 
filters, which both contribute to improved efficiency of the DSI 
system. ODEQ's proposal relies on the existing ESP and does not 
include the installation of a fabric filter, which would cost over 
$100 million. In addition, the ducts between the air heater and the 
ESP are much larger at the Boardman Plant. It is more difficult to 
adequately disperse the sorbent reagent in larger ducts and still 
maintain enough residence time for the sorbent to react with the 
SO2. [A] thirty five percent efficiency is probably a 
little conservative, but a BART limit should be achievable at all 
times.'' Regional Haze SIP submittal, Attachment 7.2 response to 
comment I.6.a.

EPA considers ODEQ's response regarding the uncertainties associated 
with the use of DSI to be reasonable.
    Comment: One comment stated that DSI for PGE Boardman for the 
shutdown within five years of EPA approval of the SIP may well be an 
appropriate cost effective technology choice capable of reducing 
SO2 emissions in a manner consistent with BART requirements. 
Similarly, a commenter states that ODEQ should require that PGE install 
DSI ``as expeditiously as practicable'' and contends it could be 
installed in a year's time.
    Response: As explained above, ODEQ determined that DSI is a cost 
effective control technology for SO2. The Oregon BART rule 
at OAR 340-223-0030 (1)(b)(A) requires that the Boardman facility 
achieve an SO2 emission limit of 0.4 lbs/mmBtu by July 1, 
2014, about two years ahead of the five-year maximum time allowed by 
the CAA for the installation of BART. As ODEQ explains, ``The proposed 
compliance date [of July 1, 2014] allows PGE three years to design the 
DSI system and conduct the pilot study, which may involve evaluation of 
several types of sorbent materials and injection locations, along with 
particulate matter stack testing.'' See Regional Haze SIP submittal, 
Attachment 7.2, response to comment I.7. Given the uncertainties 
associated with the use of DSI on a plant such as Boardman, installing 
DSI in this timeframe satisfies the requirement of ``as expeditiously 
as practicable'' and is within the timeframe specified in the CAA.
    ODEQ determined that the Boardman facility need install any 
additional emission controls if the Foster-Wheeler boiler is shut down 
within five years of approval of the SIP. ODEQ did not consider DSI as 
a required control technology for this scenario. See Regional Haze SIP 
submittal, Appendix D at D-142. EPA agrees with ODEQ's conclusion that 
it would be unreasonable to require the installation of DSI for such a 
short period of operation before shutting down.
    Comment: One comment stated that the capital and operating costs of 
DSI for Boardman were overstated. Some comments explained that although 
ODEQ has not provided sufficient data on the costs of DSI, it is 
possible that DSI could also meet ODEQ's cost-effectiveness threshold, 
even if used for only a few years as in the case were the Boardman 
facility were to shut down within five years of EPA final approval of 
the SIP.
    Response: ODEQ's analysis for determining the capital and direct 
annual costs for DSI are described on pages D-130-131 of Appendix D of 
the Regional Haze SIP submittal. EPA's Boardman BART Assessment 
acknowledged that PGE's capital cost estimates for various control 
technologies are ``likely at the high end of the range for capital cost 
estimates,'' but as discussed above, even if the cost estimates are at 
the high end, considering the cost differential between DSI and SDFGD, 
and given the visibility improvements associated with selecting DSI 
based on an early shut down, the variation in cost estimates was not 
determinative. Therefore, EPA believes that the methods used by ODEQ to 
determine effectiveness and cost of DSI, and a determination not to 
require DSI if the Boardman facility ceases to burn coal within five 
years of EPA's approval, are reasonable and within the State's 
discretion. See also the response to comment above.
    Comment: One comment stated that DSI is a technically feasible 
control technology at PGE Boardman. This comment explained that (1) the 
size of the coal-fired unit is inconsequential as to whether DSI is 
technically feasible, and (2) while DSI is not in widespread use on 
larger boilers like the Boardman facility, that is most likely due to 
availability of sorbents, costs, and SO2 control 
effectiveness when compared to other SO2 control 
technologies like semi-dry or wet scrubbers, not technical feasibility.
    Related comments suggest that it is improper for ODEQ to discard 
DSI as technically infeasible merely because its installation triggers 
addition legal obligations under the Clean Air Act (or State law). In 
the commenter's view, ODEQ cannot conclude that DSI is technically 
infeasible because it would interfere with PGE's compliance with state 
mercury reduction goals, or result in adverse impacts to the 
particulate matter air quality standards. The comment states that as a 
legal matter PGE must comply with requirements associated with Regional 
Haze, and those intended to prevent significant deterioration of air 
quality and any requirements to reduce hazardous pollutants such as 
mercury. In the commenter's view, even if DSI were genuinely 
technically infeasible, PGE would not be entitled to the de facto 
exemption from BART that it requests because the ODEQ has an obligation 
to identify, and prescribe, a technically feasible BART limit.
    Response: As explained above, ODEQ determined that DSI is 
technically feasible for PGE Boardman. Although ODEQ was not aware of a 
similar sized unit with a DSI system, this control technology has been 
used on smaller units that also included fabric filters which 
contribute to improved efficiency of the DSI system. However, ODEQ's 
BART determination does not require the installation of a new fabric 
filter system, which would cost about an additional $100 million, but 
instead relies on the use of the existing ESP at the Boardman facility. 
Furthermore, there is additional question regarding DSI performance 
because of the size of the ducts between the air heater and the ESP. 
These ducts are much larger at the Boardman Plant than the ducts on 
smaller power plants where DSI has been demonstrated. This adds to the 
uncertainty in DSI performance because it is more difficult to 
adequately disperse the sorbent reagent in larger ducts and still 
maintain enough residence time for the sorbent to react with the 
SO2. Thus, there is some uncertainty as to how well DSI will 
work on this particular facility. See Regional Haze SIP submittal, 
Appendix D at D-129, D-169 and D-170 (ODEQ's basis for projected DSI 
system efficiency).
    Although ODEQ concluded that DSI is technically feasible, it also 
took into consideration that DSI at this size and type of facility may 
result in unacceptable levels of PM or mercury emissions. This could 
result in potential additional costs if the levels of these pollutants 
were high enough to require additional controls. Specifically, ODEQ 
recognized that a significant increase in PM2.5 emissions was a 
possible outcome of installing DSI, and that if this occurred, the 
installation would be subject to the PSD requirements. The resulting 
BACT or air quality impact analysis would require additional controls 
which would increase the cost of DSI. Regional Haze SIP submittal, 
Appendix D at D-142 and D-170. Thus, rather than avoiding other legal 
requirements, ODEQ considered them in its overall cost effectiveness 
evaluation

[[Page 39002]]

of the technology. ODEQ did not exclude the technology because it might 
trigger other legal obligation but considered them in the overall 
evaluation of what was the most reasonable BART for this facility.
    Comment: One commenter stated that Oregon did not appropriately 
consider the lower emission limitation of 0.3 lb/mmBtu (DSI-2) as BART, 
but instead only considered it to meet reasonable further progress by 
2018. The commenter explained that the DSI-2 limitation was not 
identified as technologically infeasible or cost prohibitive for BART, 
and that ODEQ has provided no reason why the study of DSI-2 cannot be 
conducted ``as expeditiously as practicable'' but no later than five 
years after EPA approves the state SIP.
    Response: ODEQ determined that due to uncertainties associated with 
DSI-1 performance at a large coal fired-facility the size of Boardman 
without a baghouse, the higher, more conservative limit of 0.40 lb/
mmBtu could be achieved with a high degree of certainty in 2014, 
whereas the lower limit of 0.3 lb/mmBtu would not be achieved with DSI-
2 until 2018, when future refinements in the DSI system performance 
could be achieved, possibly in combination with ultra-low sulfur coal 
or supplemental fuels, such as biomass. Regional Haze SIP submittal, 
Appendix D at D-169- D-170; 76 FR 12662. See also response to comment 
above.
    Comment: One commenter stated that loopholes in Oregon's 
Administrative Rules (OAR 340-223-0010 through 340-223-0080) included 
provisions that would inappropriately remove the requirement for DSI. 
In the commenter's view the condition under which DSI would not be 
required, including a post-BART determination of technical 
infeasibility or the triggering of additional CAA obligations should 
not be allowed to preclude the installation of BART, which is by 
definition technically feasible. The commenter also asks that in 
approving Oregon's SIP submittal, EPA interpret the conditions 
contained in OAR 340-223-0030(3) as requiring EPA approval or 
concurrence with ODEQ's determinations prior to implementation of 
relaxed standards. Additionally, a commenter questions whether the 
provision would require or allow any public comment on ODEQ's 
determination that DSI-1 or DSI-2 is technologically infeasible, would 
inhibit compliance with Oregon's mercury rules, or would trigger PSD 
applicability.
    Response: As explained above, ODEQ determined that DSI is a 
technically feasible SO2 control technology for PGE Boardman 
and that it can achieve 0.4 lb/mmBtu at a removal efficiency of about 
35%. Regional Haze SIP submittal, Appendix D at D-127-128. While ODEQ 
determined that DSI was technically feasible, it also acknowledged that 
the technology has only been demonstrated at smaller boilers than the 
one at the Boardman facility.\4\ Thus, the State determined it was 
appropriate to require additional studies. The rules being approved 
today provide that technical studies to evaluate the SO2 
limits, and the potential side effects of those limits, must be 
conducted in accordance with a plan that is preapproved by ODEQ. These 
studies will fully evaluate and review the effectiveness and use of DSI 
technology at this facility. See OAR 340-223-0030(2), see also Regional 
Haze SIP submittal, Attachment 7.2 at 17. The rules first establish a 
limit of 0.40 lb/mmBtu by July 1, 2014 and 0.30 lb/mmBtu by July 1, 
2018. Then the rules describe the specific conditions under which the 
SO2 limit of 0.40 lb/mmBtu or 0.30 lb/mmBtu may be exceeded. 
OAR 340-223-0030(3). Specifically, the rules provide that if upon 
completion of the specified pilot studies, the results shows that DSI 
is not capable of achieving the BART limit of 0.4 lb/mmBtu (between 
July1, 2014 and June 30, 2018) or 0.30 lb/mmBtu (between July 1, 2018 
and December 31, 2020), or would prevent compliance with specified 
mercury limits or cause a significant air quality impact for PM10 or 
PM2.5, the SO2 emission limit may be modified up to 0.55lb/
mmBtu through a modification to the facility's Title V permit. The rule 
being approved today is clear as to what conditions must be satisfied 
in order for the source to exceed the 0.4 lb/mmBtu or 0.3 lb/mmBtu 
limits. The rule provides, that if applicable, the study may propose a 
limit that exceeds the 0.4 lb/mmBtu or 0.3 lb/mmBtu limits based on 
reduction of the sulfur dioxide emission limits to the maximum extent 
possible through the use of DSI or other SO2 control system 
of equal or lower cost, including but not limited to the use of low 
sulfur coal, provided that the proposed emission limit may not exceed 
0.55lb/mmBtu heat input as a 30-day rolling average. The conditions and 
parameters under which the 0.3 lb/mmBtu or 0.4 lb/mmBtu emission limits 
may be exceeded, are spelled out in the rule and were considered by EPA 
in its review of the proposed rule. Those conditions and parameters, 
including the alternate upper limit of 0.55 lb/mmBtu, are being 
approved today and additional approval by EPA is not necessary.
---------------------------------------------------------------------------

    \4\ EPA also recognizes some uncertainty regarding the 
effectiveness of this control at the Boardman facility. For example, 
EPA's ``Air Pollution Control Technology Fact Sheet'' states that 
``SO2 removal efficiencies [of DSI] are significantly 
lower that wet systems, between 50% and 60% for calcium-based 
sorbents. Sodium- based dry sorbent injection into the duct can 
achieve up to 80% control efficiencies.'' EPA-452/F-03-034 at 5. EPA 
realizes that the proposed control limit of 0.4 lb/mmBtu is below 
the range cited in this fact sheet, but given the larger size of the 
Boardman boiler and the State's desire not to overload the existing 
ESP PM control system, EPA believes that the proposed emission limit 
is reasonable.
---------------------------------------------------------------------------

    Regarding the commenter's concern relating to the opportunity for 
public input into this potential change in emission limits, the rule 
allows for the PGE Boardman's Title V operating permit to be modified 
to include a federally enforceable permit limit based on the 
performance of DSI demonstrated by the pilot study, as performed 
according to OAR 340-223-0030(2)(c). Thus, before the 0.4 lb/mmBbtu or 
0.3 lb/mmBtu emission limits may be exceeded, the source would need to 
comply with the conditions in OAR 340-223-0030(3) including submitting 
a complete application for a Title V permit modification. The permit 
modification would be considered a significant permit modification 
under OAR 340-218-0180 and a category 3 permit under Oregon Title V 
rules. See OAR 340-218-0210(1). A category 3 permit is subject to the 
procedures in OAR 340-209-0030(3)(c) which include general public 
notice, opportunity for public comment and EPA review. In addition, the 
results of the pilot study, the technical basis and the recommended 
alternative limit would be provided to the public for review and 
comment during the Title V modification process.
    Comment: The commenter also asks EPA to re-evaluate the 
environmental benefits from Oregon's SIP submittal based on the 
emission limit and reductions that EPA approval of the SIP would 
actually require: 0.55 lb/mmBtu, which the Oregon SIP submittal does 
require to be met, regardless of the results of the pilot studies.
    Response: The visibility improvements to Class I areas impacted by 
PGE Boardman were based on the SO2 and NOX BART 
emission limits to be achieved by 2014, and on further reasonable 
progress emission limits for SO2 achieved by 2018. The 
SO2 BART limit of 0.40 lb/mmBtu is the applicable limit as 
of July 1, 2014 unless specific conditions are satisfied and ODEQ 
approves an alternate limit. See OAR 340-223-0030(2)(c)(E). 
Additionally, ODEQ explains that an alternate limit must not exceed 
0.55 lb/mmBtu in order to achieve at least a 0.5 dv improvement

[[Page 39003]]

in visibility in Mt. Hood Wilderness Area. See Id. and the Regional 
Haze SIP submittal, Appendix D ``Control Effectiveness'' table at D-168 
and text on D-170. Thus, the State considered the visibility 
improvements associated with a 0.55 lb/mmBtu and the additional 
analysis requested by the commenter is not necessary.
    Comment: One commenter stated that visibility improvements and 
potential improvements in other non-air quality-related impacts in the 
region would occur as a result of the installation of SCR at the 
Boardman facility and should be taken into consideration in determining 
BART the facility. This commenter further explained that NOX 
emissions can contribute to excess nitrogen in ecosystems, which can 
alter the chemical balance of the soils and waterbodies with serious 
consequences for plant and animal life. For these reasons, the 
commenter concluded, ODEQ must require installation of SCR and new low 
NOX burners with overfire air as BART for the Boardman 
facility.
    Response: The estimated visibility improvements that could be 
achieved over current conditions with each combination of technically 
feasible controls were taken into consideration in determining BART for 
Boardman. See 76 FR 12611. More specifically, ODEQ determined that LNB 
and MOFA are BART for NOX because they are cost effective 
and provided a 1.45 dv improvement at Mt. Hood Wilderness Area (the 
most impacted Class I area) and a cumulative visibility improvement of 
8.75 dv in all 14 impacted Class I areas. ODEQ determined that DSI is 
BART for SO2 because it is cost effective and provides a 
significant (0.96 dv) improvement at Mt. Hood Wilderness Area and a 7.4 
dv improvement in all impacted Class I areas by July 1, 2014. For 
further comparison of visibility improvement associated with the 
various control technologies and timeframes see the Regional Haze SIP 
submittal, Appendix D, at D-169-172. The contribution of the facility's 
NOX emissions to excess nitrogen in ecosystems, were not 
taken into account in the PGE Boardman BART analysis. However, it would 
be extremely difficult to quantify, or even to qualitatively assess, 
the impacts of added nitrogen from one source on an ecosystem. The 
impacts of deposition related effects such as nutrient enrichment and 
eutrophication vary considerably across ecosystems. EPA does not 
consider it unreasonable for ODEQ to have not taken these impacts into 
account in making its BART determination.
    Comment: One commenter urged the Department to consider and 
maintain the 2018 and five year closure options for the Boardman 
facility. The commenter requested that ODEQ also look at additional 
cost-benefit and technical analysis for the 2018 option.
    Response: ODEQ's final Regional Haze SIP submittal includes rules 
which allow PGE Boardman to either cease burning coal within five years 
of EPA's approval of the rules or to cease burning coal by December 31, 
2020. PGE must notify ODEQ in writing no later than July 1, 2014 if it 
chooses to cease coal burning within 5 years of this action. If it 
chooses that option, one set of emission limits apply; however, if it 
chooses to continue operating until December 31, 2020, more stringent 
emission limits apply. A 2018 shutdown option was considered by ODEQ 
but removed from the final SIP submittal because PGE indicated that it 
intended to operate the Boardman facility until the end of 2020, and 
because ODEQ has no authority to require a facility to shut down by a 
certain date under the BART Rule absent a commitment by the source to 
do so.
    Comment: A commenter stated that the regulation should specify that 
if PGE continues to operate the Boardman facility as a coal-fired 
facility after its selected closure deadline the operating permit for 
the facility shall be deemed void. The commenter also requested that to 
avoid any uncertainty regarding the availability of relief due to non-
compliance, the regulation should explicitly state that the state, EPA 
and citizens may apply for both injunctive and civil penalty relief.
    Response: A violation of a federally enforceable state rule or 
permit is subject to liability as provided in section 113 of the CAA, 
42 USC 7413, and would be addressed as appropriate under applicable 
state or federal law. Additional language to restate the existing 
authority is not necessary.
    Comment: One commenter requested that EPA correct or remove certain 
factual statements that were included in the notice of proposed 
rulemaking. Specifically, the commenter requested changes to state that 
PGE Boardman is a 617 megawatt (MW) plant instead of 584 MW plant and 
that it commenced construction on ``December 6, 1979'' instead of in 
``1975''.
    Response: EPA agrees that the PGE Boardman coal fired power plant 
is capable of producing about 617 MW of electricity, not 584 MW. 
According to ODEQ's BART report, construction on the PGE Boardman plant 
began in 1975. However, the first air contaminant discharge permit from 
ODEQ to PGE for Boardman was dated December 6, 1979.
    Comment: One commenter stated that for the five-year closure option 
at Boardman, ODEQ should require additional interim controls that would 
reduce emissions in the remaining five remaining years of operation.
    Response: OAR 340-223-0080 provides alternate requirements in the 
event the owner elects to permanently cease burning coal within five 
years of EPA's SIP approval. Under this alternative, the NOX 
emission limit of 0.23 lb/mmBtu applies beginning July 1, 2011, unless 
the source satisfies the requirements in OAR 430-223-0080(2)(a) and it 
is demonstrated by December 31, 2011, that the emission limit of 0.23 
lb/mmBtu cannot be achieved with combustion controls, in which case the 
ODEQ may grant an extension to July 1, 2013. OAR 340-223-080(2)(a).
    Comment: One commenter requested that the NOX, 
SO2 and PM emission limits for PGE Boardman include emission 
limits during startup and shutdown.
    Response: The BART rules include do startup and shutdown emission 
limits for the Boardman facility. See OAR 340-223-0030(1)(d). These 
limits, which are three-hour rolling averages, are: Sulfur dioxide, 
1.20 lb/mmBtu, Nitrogen oxide, 0.70 lb/mmBtu, and particulate matter 
emissions must be minimized to the extent practicable pursuant to 
approved startup and shutdown procedures in accordance with OAR 340-
214-0310.
    Comment: As stated above, NPCA incorporated into their comments a 
number of comment letters that had previously been submitted to ODEQ. 
Many of the comments contained in these letters relate to emission 
limits or comments about technologies associated with the ``no 
closure'' option provided in prior versions of OAR 340-223-0050, 0060, 
and 0070, and ODEQ's BART determination based on PGE operating the 
coal-fired boiler at the Boardman facility until 2040.
    Response: The Oregon Regional Haze Plan submitted to EPA included 
revisions to the State's regional haze rules at OAR 340-223-0010 
through 340-223-0080. In this action, EPA is taking final action to 
approve a revision to the Oregon SIP which incorporates OAR 340-223-
0010 through 340-223-0080 and specifically includes OAR 340-223-0030. 
As provided in OAR 340-223-0050, and as explained in the notice of 
proposed rulemaking, upon EPA's final approval of OAR 340-223-0030, OAR 
340-223-0060 and 340-223-0070 are repealed as a matter of law. 76 FR 
12662-12663. Thus, compliance

[[Page 39004]]

with the ``no closure option'' or operating until 2040 is no longer an 
alternative. Therefore, the BART determination associated with that 
option is no longer relevant and responses to comments regarding it are 
unnecessary.

III. Final Action

    EPA is approving the BART measures in the Oregon Regional Haze plan 
as meeting the requirements of section 110(a)(2)(D)(i)(II) of the Clean 
Air Act with respect to the 1997 8-hour ozone and 1997 PM2.5 NAAQS. In 
addition, EPA is approving portions of the Oregon Regional Haze Plan, 
submitted on December 20, 2010, as meeting the requirements set forth 
in section 169A of the Act and in 40 CFR 51.308(e) regarding BART. EPA 
is also approving the Oregon submittal as meeting the requirements of 
40 CFR 51.308(d)(2) and (4)(v) regarding the calculation of baseline 
and natural conditions for the Mt. Hood Wilderness Area, Mt. Jefferson 
Wilderness Area, Mt. Washington Wilderness Area, Kalmiopsis Wilderness 
Area, Mountain Lakes Wilderness Area, Gearhart Mountain Wilderness 
Area, Crater Lake National Park, Diamond Peak Wilderness Area, Three 
Sisters Wilderness Area, Strawberry Mountain Wilderness Area, Eagle Cap 
Wilderness Area, and Hells Canyon Wilderness Area, and the statewide 
inventory of emissions of pollutants that are reasonably anticipated to 
cause or contribute to visibility impairment in any mandatory Class I 
Federal Area.

IV. Oregon Notice Provision

    Oregon Revised Statute 468.126, which remains unchanged since EPA 
last approved Oregon's SIP, prohibits 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. Scope of EPA Approval

    Oregon has not demonstrated authority to implement and enforce the 
Oregon Administrative rules within ``Indian Country'' as defined in 18 
U.S.C. 1151. ``Indian country'' is defined under 18 U.S.C. 1151 as: (1) 
All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation, (2) all dependent Indian communities within the borders of 
the United States, whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a State, 
and (3) all Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same. Under 
this definition, EPA treats as reservations trust lands validly set 
aside for the use of a Tribe even if the trust lands have not been 
formally designated as a reservation. Therefore, this SIP approval does 
not extend to ``Indian Country'' in Oregon. See CAA sections 
110(a)(2)(A) (SIP shall include enforceable emission limits), 
110(a)(2)(E)(i) (State must have adequate authority under State law to 
carry out SIP), and 172(c)(6) (nonattainment SIPs shall include 
enforceable emission limits).

VI. Statutory and Executive Orders Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the rule neither imposes substantial direct compliance costs on 
tribal governments, nor preempts tribal law. Therefore, the 
requirements of section 5(b) and 5(c) of the Executive Order do not 
apply to this rule. Consistent with EPA policy, EPA nonetheless 
provided a consultation opportunity to Tribes in Idaho, Oregon and 
Washington in letters dated January 14, 2011. EPA received one request 
for consultation, and we have followed-up with that Tribe. This action 
also does not have Federalism implications because it does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
action merely approves a state rule implementing a Federal standard, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule

[[Page 39005]]

cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 6, 2011. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Incorporation by reference, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Visibility, and Volatile organic compounds.

    Dated: June 17, 2011.
Dennis J. McLerran,
Regional Administrator, Region 10.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart MM--Oregon

0
2. Section 52.1970 is amended by adding and reserving paragraph 
(c)(150), and adding paragraph (c)(151) to read as follows:

Sec.  52.1970  Identification of plan.

* * * * *
    (c) * * *
    (150) [Reserved]
    (151) On December 20, 2010, the Oregon Department of Environmental 
Quality submitted a SIP revision to meet the regional haze requirements 
of Clean Air Act section 169A and the interstate transport requirements 
of Clean Air Act section 110(a)(2)(D)(i)(II) as it applies to 
visibility for the 1997 8-hour ozone NAAQS and 1997 PM2.5 
NAAQS.
    (i) Incorporation by reference.
    (A) December 10, 2010, letter from ODEQ to the Oregon Secretary of 
State requesting filing of permanent rule amendments to OAR 340-223.
    (B) December 10, 2010, filed copy of State ``Certificate and Order 
for Filing'' verifying the effective date of December 10, 2010, for OAR 
340-223-0010, OAR 340-223-0020, OAR 340-223-0030, OAR 340-223-0040, OAR 
340-223-0050 and OAR 340-223-0080.
    (C) The following revised sections of the Oregon Administrative 
Rules, Chapter 340:
    (1) 340-223-0010 Purpose of Rules, effective December 10, 2010.
    (2) 340-223-0020 Definitions, effective December 10, 2010.
    (3) 340-223-0030 BART and Additional Regional Haze Requirements for 
the Foster-Wheeler Boiler at the Boardman Coal-Fired Power Plant 
(Federal Acid Rain Program Facility ORISPL Code 6106), effective 
December 10, 2010.
    (4) 340-223-0040 Federally Enforceable Permit Limits, effective 
December 10, 2010.
    (5) 340-223-0050 Alternative Regional Haze Requirements for the 
Foster-Wheeler Boiler at the Boardman Coal-Fired Power Plant (Federal 
Acid Rain Program Facility ORISPL Code 6106), effective December 10, 
2010.
    (6) 340-223-0080 Alternative Requirements for the Foster-Wheeler 
Boiler at the Boardman Coal-Fired Power Plant (Federal Acid Rain 
Program Facility ORISPL code 6106) Based Upon Permanently Ceasing the 
Burning of Coal Within Five Years of EPA Approval of the Revision to 
the Oregon Clean Air Act State Implementation Plan Incorporating OAR 
Chapter 340, Division 223, effective December 10, 2010.
    (ii) Additional material.
    (A) The portion of the SIP revision relating to statewide inventory 
of emissions of pollutants that are reasonably anticipated to cause or 
contribute to visibility impairment in any mandatory Class I Federal 
Area and the calculation of baseline and natural visibility conditions 
in Oregon Class I areas, and determination of current and 2018 
visibility conditions in Oregon Class I areas.
    (B) [Reserved]

0
3. Section 52.1973 is amended by adding paragraph (g) to read as 
follows:

Sec.  52.1973  Approval of plans.

* * * * *
    (g) Visibility protection. (1) EPA approves portions of a Regional 
Haze SIP revision submitted by the Oregon Department of Environmental 
Quality on December 20, 2010, and adopted by the Oregon Department of 
Environmental Quality Commission on December 9, 2010, as meeting the 
requirements of Clean Air Act section 169A and 40 CFR 51.308(e) 
regarding Best Available Retrofit Technology. The SIP revision also 
meets the requirements of 40 CFR 51.308(d)(2) and (d)(4)(v) regarding 
the calculation of baseline and natural conditions for the Mt. Hood 
Wilderness Area, Mt. Jefferson Wilderness Area, Mt Washington 
Wilderness Area, Kalmiopsis Wilderness Area, Mountain Lakes Wilderness 
Area, Gearhart Mountain Wilderness Area, Crater Lake National Park, 
Diamond Peak Wilderness Area, Three Sisters Wilderness Area, Strawberry 
Mountain Wilderness Area, Eagle Cap Wilderness Area, and Hells Canyon 
Wilderness Area, and the statewide inventory of emissions of pollutants 
that are reasonably anticipated to cause or contribute to visibility 
impairment in any mandatory Class I Federal Area. The SIP revision also 
meets the requirements of Clean Air Act section 110(a)(2)(D)(i)(II) as 
it applies to visibility for the 1997 8-hour ozone NAAQS and 1997 
PM2.5 NAAQS.
    (2) [Reserved]

0
4. Section 52.1989 is amended by adding paragraph (b) to read as 
follows:

Sec.  52.1989  Interstate Transport for the 1997 8-hour ozone NAAQS and 
1997 PM2.5 NAAQS.

* * * * *
    (b) On December 20, 2010, the Oregon Department of Environmental 
Quality submitted a Regional Haze SIP revision, adopted by the Oregon 
Environmental Quality Commission on December 9, 2010. EPA approves the 
portion of this submittal relating to section 110(a)(2)(D)(i)(II) as it 
applies to visibility for the 1997 8-hour ozone NAAQS and 1997 
PM2.5 NAAQS. The SIP revision also meets the requirements of 
Clean Air Act section 169A and 40 CFR 51.308(e) regarding Best 
Available Retrofit Technology and the requirements of 40 CFR 
51.308(d)(2) and (d)(4)(v) regarding the calculation of baseline and 
natural conditions for the Mt. Hood Wilderness Area, Mt. Jefferson 
Wilderness Area, Mt Washington Wilderness Area, Kalmiopsis Wilderness 
Area, Mountain Lakes Wilderness Area, Gearhart Mountain Wilderness 
Area, Crater Lake National Park, Diamond Peak Wilderness Area, Three 
Sisters Wilderness Area, Strawberry Mountain Wilderness Area, Eagle Cap 
Wilderness Area, and Hells Canyon Wilderness Area, and the statewide 
inventory of emissions of pollutants that are reasonably anticipated to 
cause or contribute to visibility impairment in any mandatory Class I 
Federal Area.

[FR Doc. 2011-16635 Filed 7-1-11; 8:45 am]
BILLING CODE 6560-50-P
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