Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations 38997 

Name of non-regulatory SIP revision Applicable geographic area State submittal 

date EPA approval date Additional explanation 

*******

8-Hour Ozone Maintenance 

Plan and 2002 Base Year 

Emissions Inventory.

Tioga County .......................... 9/28/06, 11/14/ 

06 

7/6/07, 72 FR 36892 ...............

*******

(2) * * * 

Name of source Permit 

No. County 

State 

submittal 

date 

EPA approval date Additional explanation/§ 52.2063 

citation 

USX Corp./US Steel GroupFairless Hills.09–0006 Bucks ..................... 8/11/95, 

11/15/95 

4/09/96, 61 FR 

15709.

52.2036(b); 52.2037(c); source shutdown date is 8/1/91. 

* * * * * * * 

Rockwell Heavy Vehicle, Inc.- 

New Castle Forge Plant.

37–065 Lawrence ................ 4/8/98 4/16/99, 64 FR 

18818.

52.2036(k); source shutdown date is 4/ 

1/93. 

* * * * * * * 

Mercersburg Tanning Co. ....... 28–2008 Franklin .................. 4/26/95 3/12/97, 62 FR 

11079.

52.2037(h); 52.2063(c)(114)(i)(A)(3) & 

(ii)(A). 

* * * * * * * 

[FR Doc. 2011–16636 Filed 7–1–11; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 


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38998 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations 

1Areas 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.’’ 

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). 

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 

§ 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, LongTerm 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 FosterWheeler 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 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations 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 doublecounting of ‘‘remaining useful life’’ by 

ODEQ to justify lesser pollution control 

requirements as BART for the Boardman 

facility. 

Response: ODEQ did not doublecount 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 FosterWheeler 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 FosterWheeler 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 costeffective even with the State’s $7,300/ 

ton and $10 million/dv thresholds 

claiming that semi-dry flue gas 

desulfurization (SDFGD), selective noncatalytic 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 


srobinson on DSK4SPTVN1PROD with RULES
39000 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations 

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. 

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. 

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: 


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Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations 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 costeffectiveness 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 


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4EPA 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. 

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 postBART 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. 

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 


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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 qualityrelated 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 noncompliance, 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 


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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 fiveday 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 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations 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] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart MM—Oregon 

■ 2. Section 52.1970 is amended by 

adding and reserving paragraph (c)(150), 

and adding paragraph (c)(151) to read as 

follows: 

§ 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] 

■ 3. Section 52.1973 is amended by 

adding paragraph (g) to read as follows: 

§ 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] 

■ 4. Section 52.1989 is amended by 

adding paragraph (b) to read as follows: 

§ 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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