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[Federal Register Volume 78, Number 28 (Monday, February 11, 2013)]
[Proposed Rules]
[Pages 9651-9654]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02964]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2012-0494: FRL-9778-7]

Approval and Promulgation of Implementation Plans; Oregon: Heat 
Smart Program and Enforcement Procedures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve multiple revisions to Oregon's 
State Implementation Plan (SIP) submitted to the EPA by the Oregon 
Department of Environmental Quality (ODEQ) on October 5, 2011, June 8, 
2012, and November 28, 2012. The October 5, 2011 submission contains 
revisions to the Heat Smart program and to the enforcement procedures 
and civil penalties in Oregon Administrative Rules (OAR) Chapter 340, 
Division 12 (OAR 340-12). The June 8, 2012 submission contains 
additional revisions to the Heat Smart program, along with minor 
revisions and clarifications to general air pollution definitions (OAR 
340-200), rules for stationary source notification requirements (OAR 
340-210), and requirements for fuel burning (OAR 340-228). The November 
28, 2012 submission contains revisions to approve the inclusion of 
expedited enforcement offers and updated penalty classifications and 
criteria (OAR 340-012).

DATES: Comments must be received on or before March 13, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2012-0494, by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Mail: Justin A. Spenillo, EPA, Office of Air, Waste, and Toxics, 
AWT-107, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101.
    C. Email: R10-Public_Comments@epa.gov.
    D. Hand Delivery: EPA, Region 10 Mailroom, 9th Floor, 1200 Sixth 
Avenue, Seattle, Washington 98101. Attention: Justin A. Spenillo, 
Office of Air Waste, and Toxics, AWT-107. Such deliveries are only 
accepted during normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2012-0494. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information that is 
restricted by statute from disclosure. Do not submit information that 
you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, the EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
that is restricted by statute from disclosure. 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 at www.regulations.gov or 
in hard copy during normal business hours at the Office of Air, Waste 
and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 
98101.

FOR FURTHER INFORMATION CONTACT: Justin A. Spenillo, (206) 553-6125; or 
by email at spenillo.justin@epa.govmailto:body.steve@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. This Action
II. Why are we proposing to approve these revisions?
    A. The EPA's Review of OAR Chapter 340, Division 262 Heat Smart 
Program for Residential Woodstoves and Other Solid Fuel Heating 
Devices (October 5, 2011 and June 8, 2012 Submittals)
    B. The EPA's Review of OAR Chapter 340, Division 12 Rules 
(October 5, 2011 and November 28, 2012 Submittals)
    C. The EPA's Review of OAR Chapter 340, Divisions 200, 210, and 
228 Rules (June 8, 2012 Submittal)
    D. The EPA's Review of OAR 340-200-0040 (October 5, 2011, June 
8, 2012, and November 28, 2012 Submittals)
III. Summary of Action
IV. Statutory and Executive Orders Review

I. This Action

    Title I of the CAA, as amended by Congress in 1990, specifies the 
general requirements for states to submit SIPs to attain and maintain 
the National Ambient Air Quality Standards (NAAQS) and the EPA's 
actions regarding approval of those SIPs. In this action, we are 
proposing to approve and incorporate by reference (IBR) revisions

[[Page 9652]]

to the portions of Oregon's SIP relating to the Heat Smart Program 
found at OAR 340-262 and submitted by ODEQ on October 5, 2011 and June 
8, 2012.
    The EPA is also proposing to approve but not IBR revisions to 
enforcement provisions in OAR 340-012, submitted by ODEQ on October 5, 
2011 and November 28, 2012. In addition, the EPA proposes to approve 
the remaining revisions to OAR 340-012 only to the extent they relate 
to enforcement of requirements contained in the Oregon SIP.
    The EPA proposes to approve revisions to OAR 340-200 (except OAR 
340-200-0040), OAR 340-210 and OAR 340-228, as they relate to general 
definitions, stationary source notification requirements, and fuel 
requirements in the Oregon SIP. These revisions were submitted by ODEQ 
on June 8, 2012.
    Each of the above-described submittals (October 5, 2011, June 8, 
2012, and November 28, 2012) contains an amendment to OAR 340-200-0040, 
which describes the State's procedures for adopting its Clean Air Act 
Implementation Plan and references all of the state air regulations 
that have been adopted by the Environmental Quality Commission (EQC) 
for approval into the SIP (as a matter of state law), whether or not 
they have been submitted or approved by the EPA. We are proposing no 
action on the revisions to OAR 340-200-0040 in each of these submittals 
because it is unnecessary to take action on a provision addressing the 
State's SIP adoption procedures and because the Federally-approved SIP 
consists only of regulations and other requirements that have been 
submitted by ODEQ and approved by the EPA.

II. Why are we proposing to approve these revisions?

    We are proposing to approve the SIP revisions submitted by ODEQ on 
October 5, 2011, June 8, 2012, and November 28, 2012 (except for OAR 
340-200-0040) because they serve to clarify and strengthen the State's 
existing SIP and are consistent with the CAA requirements. A more 
detailed explanation of the basis for our approval is provided below 
and in the materials included in the docket.

A. The EPA's Review of OAR Chapter 340, Division 262 Heat Smart Program 
for Residential Woodstoves and Other Solid Fuel Heating Devices 
(October 5, 2011 and June 8, 2012 Submittals)

    OAR 340-262 was last approved by the EPA on January 22, 2003 (68 FR 
2891). The Federally-approved woodheating rules previously codified at 
OAR 340-262 have been reorganized and strengthened within the same 
division and renamed as the Heat Smart Program for Residential 
Woodstoves and Other Solid Fuel Heating Devices. The Heat Smart program 
requires the removal of uncertified woodstoves and most other 
uncertified solid fuel heating devices upon the sale of a home. The 
revisions included in ODEQ's October 5, 2011 and June 8, 2012 
submittals provide for: establishing the Heat Smart program as a 
statewide program as opposed to being a contingency measure only 
applicable to non-attainment areas in Oregon, streamlining and 
reorganizing the existing woodheating rules, and additions to the rules 
that strengthen the division and contribute to maintenance of the 
NAAQS. Table 1 below outlines the reorganization of OAR 340-262.

                 Table 1--Reorganization of OAR 340-262
------------------------------------------------------------------------
                                  Prior
           Rule name               rule               New rule
------------------------------------------------------------------------
Purpose.......................  -0010      -0400
Definitions...................  -0020      -0450
Woodstove Sales--Requirements   -0030      -0600
 for Sale of Woodstoves.
Exemptions....................  -0040      -0600, -0700, -0800
Civil Penalties...............  -0050      -0800
Woodstove Certification         -0100      -0500
 Program--Applicability.
Emissions Performance           -0110      -0500
 Standards and Certification.
General Certification           -0120      -0500
 Procedures.
Labeling Requirements.........  -0130      -0600
Woodburning Curtailment--       -0200      -0800 (1)
 Applicability.
Determination of Air            -0210      -0800 (3)
 Stagnation Conditions.
Prohibition of Woodburning      -0220      -0800 (4)
 During Periods of Air
 Stagnation.
Public Information Program....  -0230      -0800 (5)
Enforcement...................  -0240      -0800 (6-8)
Suspension and Department       -0250      -0800 (9)
 Program.
Woodstove Removal Contingency   -0300      -0700
 Program--Applicability.
Removal and Destruction of      -0310      -0700
 Uncertified Stove Upon Sale
 of Home.
Home Seller's Responsibility    -0320      -0700
 to Verify Stove Destruction.
Home Seller's Responsibility    -0330      -0700
 to Disclose.
Materials Prohibited from       New        -0900
 Burning.
------------------------------------------------------------------------

The expansion of the Heat Smart program to a statewide program makes it 
applicable to a larger geographic area and with broader criteria, and 
enhances protection of air quality by accelerating the replacement of 
uncertified woodstoves. This revision strengthens the SIP by increasing 
the applicability and scope of the Heat Smart program which will result 
in the removal of more uncertified woodstoves and other uncertified 
solid fuel heating devices, and is therefore more protective of the 
NAAQS.

    In addition to the reorganization of OAR 340-262 and the expansion 
of the Heat Smart program statewide, Oregon submitted for approval a 
number of additions, clarifications, and streamlining revisions. Oregon 
requests approval to add prohibitions limiting the types of materials 
that can be burned in a solid fuel device. The inclusion of such 
limitations strengthens the SIP by reducing the potential emission of 
criteria pollutants from the burning of inappropriate material. Oregon 
also proposes to expand the applicability of the rules from woodstoves/
woodheaters to include solid fuel burning devices. The October 5, 2011 
submittal requests approval to include a new definition for solid fuel 
burning devices that includes

[[Page 9653]]

woodstoves and other devices that burn wood, coal, or other nongaseous 
or nonliquid fuels. The June 8, 2012 submittal refines the definition 
to maintain the residential focus of the rule by not including small 
scale heating devices used for commercial, industrial, and 
institutional facilities. The new definition of solid fuel burning 
devices is more stringent because it covers residential heating devices 
that use wood, coal, or other non-gaseous or non-liquid fuels in 
addition to the residential woodheating devices covered under the prior 
definition.
    Based on the EPA's review and analysis of OAR 340-262, the EPA is 
proposing to approve the above-described SIP strengthening revisions as 
meeting the requirements of section 110 of the CAA. In addition, the 
EPA proposes to remove from the SIP the regulations previously codified 
at OAR 340-262-0010 to OAR 340-262-0330 because the citations for these 
regulations have been renumbered as shown in Table 1.

B. The EPA's Review of OAR Chapter 340, Division 12 Rules (October 5, 
2011 and November 28, 2012 Submittals)

    The October 5, 2011 submittal included revisions to OAR 340-012-
0054 and 340-012-0140. These revisions strengthen enforcement by 
including as Class I and II violations the restrictions on burning 
certain materials in solid fuel devices contained in OAR 340-262-0900, 
and by updating the related penalty matrix. Oregon is also requesting 
one revision to remove as a Class III violation the failure to display 
a certified woodstove temporary label. The removal of this violation as 
a Class III violation will not interfere with attainment and 
maintenance of the NAAQS.
    The November 28, 2012 submittal includes one substantive revision 
and minor typographical and renumbering revisions. The substantive 
revision was the addition of expedited enforcement offers and 
associated criteria at OAR 340-012-0030, 340-012-0038, and 340-012-
0170. An expedited enforcement offer is a written offer from ODEQ to 
settle alleged violations using expedited procedures. The purpose of 
expedited enforcement offers is to promote compliance and enforcement 
through faster, informal resolution of alleged violations. The minor 
typographical and renumbering revisions address OAR 340-012-0155.
    The EPA has reviewed the revisions described above and finds that 
they provide ODEQ with adequate authority for enforcing the SIP as 
required by Section 110 of the CAA and 40 CFR 51.230(b). The EPA is 
therefore proposing to approve the revisions to OAR 340-012 subject to 
the qualifications and in the manner discussed below.
    The EPA's authority to approve SIP revisions extends to provisions 
related to attainment and maintenance of the NAAQS and carrying out 
other specific requirements of Section 110 of the CAA. In addition, EPA 
is approving the remaining sections in OAR 340-012 only to the extent 
they relate to enforcement of requirements contained in the Oregon SIP.
    Although the EPA is approving the regulations in OAR 340-012 in the 
manner discussed above, the EPA is not incorporating these rules by 
reference into the Code of Federal Regulations because the EPA relies 
on its own independent enforcement procedures and penalty provisions in 
bringing enforcement actions and assessing penalties under the CAA.
    The EPA also notes that Oregon Revised Statute (ORS) 468.126 
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, this statutory provision 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 the EPA approval of the Oregon SIP, no advance 
notice is required for violation of SIP requirements.

C. The EPA's Review of OAR Chapter 340, Divisions 200, 210, and 228 
Rules (June 8, 2012 Submittal)

    The June 8, 2012 submission includes revisions to OAR 340, 
Divisions 200, 210, and 228, which were last subject to the EPA 
approval on January 22, 2003 (68 FR 2891). OAR 340-200 includes the 
rules for General Air Pollution Procedures and Definitions, OAR 340-210 
includes the rules for Stationary Source Notification Requirements, and 
OAR 340-228 includes the rules for Requirements for Fuel Burning 
Equipment and Fuel Sulfur.
    Revisions to OAR 340-200-0020, General Air Quality Definitions, 
include minor typographical corrections, inclusion of a definition of 
``form,'' and subsequent renumbering.
    Revisions to OAR 340-210, Stationary Source Notification 
Requirements, include changes to OAR 340-210-0100, 340-210-0110, 340-
210-0120, and 340-210-0250. The revisions to OAR 340-210-0100 expand 
upon and clarify the applicable sources, personnel, and criteria 
necessary for a source to register with ODEQ in lieu of obtaining a 
permit. The revision to OAR 340-210-0100 also includes updated fee 
information and clarifies the registration requirements applicable to 
sources subject to a federal New Source Performance Standards (NSPS) 
and National Emission Standards for Hazardous Air Pollutants (NESHAPs). 
Revisions to OAR 340-210-0110 and 340-210-0120 expand and clarify the 
registration criteria and requirements to maintain registration. 
Revisions to OAR 340-210-0250, Approval to Operate, clarify that 
compliance with existing standards, testing and monitoring 
requirements, and registration are still required and applicable. These 
revisions are more detailed and stringent than the previously approved 
provisions and are improvements to the rule.
    Revisions to OAR 340-228, Requirements for Fuel Burning Equipment 
and Fuel Sulfur Content, include changes to OAR 340-228-0020, 340-228-
0200, and 340-228-0210. These revisions include a cross reference to 
the revised OAR 340-262 and clarify source applicability dates.
    Based on the EPA's review and analysis of the revisions to OAR 340-
200, 340-210, and 340-228, the EPA is proposing to approve the 
revisions because they meet the requirements of section 110 of the CAA 
and will not interfere with attainment or maintenance of the NAAQS.

D. The EPA's Review of OAR 340-200-0040 (October 5, 2011, June 8, 2012, 
and November 28, 2012 Submittals)

    On October 5, 2011, June 8, 2012, and November 28, 2012, Oregon 
submitted for SIP approval amendments to OAR 340-200-0040. The EPA is 
proposing no action on these amendments because it is unnecessary to 
take action on provisions addressing the State's SIP adoption 
procedures and incorporating by reference all of the revisions adopted 
by the State for approval into the SIP (as a matter of state law).

III. Summary of Action

    The EPA is proposing to approve amendments to OAR Chapter 340, 
Divisions 12, 200, 210, 228 and 262 because they are consistent with 
CAA requirements. We are also proposing to take no action to approve 
amendments to OAR 340-200-0040 submitted on October 5, 2011, June 8, 
2012, and November 28, 2012.

[[Page 9654]]

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and it will not impose substantial direct costs on tribal 
governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Particulate 
matter.

    Dated: January 31, 2013.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2013-02964 Filed 2-8-13; 8:45 am]
BILLING CODE 6560-50-P
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