[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Proposed Rules]
[Pages 918-921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00056]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2008-0903: FRL-9768-5]


Approval and Promulgation of Implementation Plans; Oregon: Open 
Burning and Enforcement Procedures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve revisions to Oregon's State 
Implementation Plan submitted to the EPA by the Oregon Department of 
Environmental Quality on February 16, 2001, July 14, 2005, August 28, 
2006, and May 20, 2008. The February 16, 2001 submittal relates to open 
burning rules. The July 2005, August 2006, and May 2008 submittals 
relate to enforcement procedures, civil penalties, and procedures in 
contested cases (appeals).

DATES: Written comments must be received on or before February 6, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2008-0903, by any of the following methods:
    <bullet> www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    <bullet> Mail: Justin A. Spenillo, EPA, Office of Air, Waste, and 
Toxics, AWT-107, 1200 Sixth Avenue, Suite 900, Seattle, Washington 
98101.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#6e3c5f5e433e1b0c02070d312d0103030b001a1d2e0b1e0f40090118"><span class="__cf_email__" data-cfemail="702241405d2005121c19132f331f1d1d151e0403301500115e171f06">[email protected]</span></a>.
    <bullet> 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-
2008-0903. 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 the 
disclosure of which is restricted by statute. 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 
the disclosure of which 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 in 
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 at (206) 553-6125, 
<a href="/cdn-cgi/l/email-protection#8cfffce9e2e5e0e0e3a2e6f9fff8e5e2cce9fceda2ebe3fa"><span class="__cf_email__" data-cfemail="17646772797e7b7b78397d6264637e795772677639707861">[email protected]</span></a>, or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' are used, it is intended to refer to the EPA.

Table of Contents

I. This Action
II. Why are we proposing to approve these revisions?
    A. EPA's Review of Oregon Administrative Rules (OAR) Chapter 
340, Division 264 Open Burning Rules (February 16, 2001 Submittal)
    B. EPA's Review of OAR Chapter 340, Division 12 Rules (July 14, 
2005 and August 28, 2006 Submittals)
    C. EPA's Review of OAR Chapter 340 Division 11 Rules (May 20, 
2008 Submittal)
    D. EPA's Review of OAR 340-200-0040 (February 16, 2001, July 14, 
2005, August 28, 2006, and May 20, 2008 Submittals)
    E. EPA's Review of OAR 340-150-0250 (July 14, 2005 Submittal)
III. Summary of Action
IV. Statutory and Executive Orders Review

I. This Action

    Title I of the Clean Air Act (CAA), as amended by Congress in 1990, 
specifies the general requirements for states to submit State 
Implementation Plans (SIPs) to attain and maintain the National Ambient 
Air Quality Standards (NAAQS) and EPA's actions regarding approval of 
those SIPs. In this action, the EPA is proposing to approve and 
incorporate by reference revisions to Oregon's open burning rules 
submitted by the Oregon Department of Environmental Quality (ODEQ) on 
February 16, 2001. Oregon's open burning rules are currently codified 
at Oregon Administrative Rules (OAR) Chapter 340, Division 264.
    The EPA is also proposing to approve but not incorporate by 
reference (with certain exceptions explained below) the enforcement 
provisions in Chapter 340, Division 12 submitted by ODEQ on July 14, 
2005 and August 28, 2006.
    We are also proposing to approve but not incorporate by reference 
revisions related to procedures in contested cases (that is, appeals 
from ODEQ actions) found at OAR Chapter 340, Division 11. These 
revisions were submitted by ODEQ on May 20, 2008.
    Each of the above described submittals (the February 16, 2001, July 
14, 2005, August 28, 2006, and May 20, 2008 submittals) 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 for approval into the SIP (as a matter 
of state law), whether or not they have yet been submitted to or 
approved by the EPA. We are proposing no action on the revisions to OAR 
340-200-0040 in each of ODEQ's SIP submittals because it is unnecessary 
to take action on a provision addressing State SIP adoption procedures 
and because the federally-approved SIP consists only of

[[Page 919]]

regulations and other requirements that have been submitted by ODEQ and 
approved by EPA.
    Finally, the EPA is proposing to take no action on the expedited 
enforcement process set forth in OAR 340-150-0250 included in ODEQ's 
July 14, 2005 submittal because this section applies to underground 
storage tank regulations and does not relate to attainment or 
maintenance of the NAAQS or other requirements of section 110 of the 
CAA.

II. Why are we proposing to approve these revisions?

    We are proposing to approve the SIP revisions submitted by ODEQ on 
February 16, 2001; July 14, 2005; August 28, 2006; and May 20, 2008, 
subject to the exceptions discussed in more detail below, because they 
serve to clarify and strengthen Oregon's existing SIP and are 
consistent with CAA requirements. A more detailed explanation of the 
basis for our approval is provided below and in the materials included 
in the docket.

A. EPA's Review of OAR Chapter 340, Division 264 Open Burning Rules 
(February 16, 2001 Submittal)

    The federally-approved open burning rules previously codified at 
OAR Chapter 340, Division 23, have been recodified at OAR Chapter 340, 
Division 264. In addition to the recodification, ODEQ's February 16, 
2001 submittal includes revisions to ODEQ's federally-approved open 
burning rules that fall into several categories: changes related to 
growth, additional requirements, delegation, alterations to exemptions, 
and clarifications. The first category of revisions updates the list of 
open burning control areas to reflect population growth since the SIP 
was last revised. For example, commercial burning is now prohibited 
except by permit in Madras, Tillamook, and Warranton, and adjoining 
areas within three miles of these cities' limits (all located in 
Lincoln County). See OAR 340-264-0100 (previously at OAR 340-023-055). 
In general, this category of revisions imposes more stringent 
requirements on additional geographic areas, and thus makes the open 
burning requirements more stringent.
    A second category consists of revisions that impose additional 
requirements in all geographic areas and thus make the open burning 
regulations overall more stringent. For example, OAR 340-264-0050(2) 
(previously at OAR 340-023-0040) now requires that a person responsible 
for a fire not only constantly attend the open burning, but also be 
capable of and have the necessary equipment for extinguishing the fire 
and completely extinguish the fire before leaving it. As another 
example, OAR 340-264-0060(8) (previously at OAR 340-023-0040) requires 
that most open burning debris be burned on site unless a letter permit 
is issued.
    OAR 340-264-0010 and -0075 are new provisions that allow ODEQ to 
delegate authority to issue and enforce open burning permits to a city, 
county, fire protection district, forest protection district or other 
state agency that ODEQ determines is capable of effectively 
administering the permit program and authorizes ODEQ to withdraw any 
such delegation upon a finding that the entity is not effectively 
administering the program. Given the narrow scope of the delegation to 
local agencies, that the delegated authority will continue to be 
carried out under the SIP-approved open burning regulations, and that 
ODEQ has the ultimate responsibility under this provision, EPA believes 
these provisions do not affect the stringency of ODEQ's open burning 
regulations and are consistent with the requirements of the CAA. See 
CAA 110(a)(2)(E).
    Another category of revisions to ODEQ's open burning rules exempts 
open burning that is subject to restrictions under the current SIP. OAR 
340-264-0040 (previously at OAR 340-023-0035) adds three narrow 
activities to the list of activities exempt from ODEQ's open burning 
rules: fires set for disposal of dry tumbleweed; agricultural burning 
for disease or pest control when authorized in writing by the 
Department of Agriculture; and open burning of animal carcasses by the 
Department of Agriculture because of an animal disease emergency. That 
regulation also expands the exemption for slash burning on forest land 
conducted under Oregon's Smoke Management program to lands within one-
eighth of a mile of forest land. Given the very narrow scope of these 
changes and the other revisions that make ODEQ's open burning rules 
more stringent than the open burning rules currently approved in the 
SIP, EPA believes these revisions will not interfere with attainment or 
maintenance of the NAAQS or other requirements of the CAA.
    The remaining revisions clarify existing requirements. For example, 
revisions to OAR 340-264-0050 (previously at OAR 340-023-0040) clarify 
that persons responsible for open burning activities are also strictly 
liable for violations of the rules and clarify ODEQ's authority to 
extinguish existing fires. As another example, revisions to OAR 340-
264-0040(3) (previously at OAR 340-023-035(3)) clarify that open 
burning fires otherwise exempt from the open burning rules are still 
subject to the requirements and prohibitions of local jurisdictions and 
the State Fire Marshall.
    One set of clarifications to ODEQ's rules requires further 
discussion. Based on statutory clarifications to ODEQ's authority to 
regulate agricultural open burning in 1999, ODEQ has revised its open 
burning rules to make clear that it does not have authority to regulate 
agricultural open burning except for its explicit statutory and 
regulatory authority to regulate field burning in the Willamette Valley 
as provided in ORS 468A.555 to -620 and OAR Division 340, Chapter 266. 
The open burning rules currently in the SIP do have provisions that 
purport to make agricultural open burning in some areas outside of the 
Willamette Valley subject to the general statewide requirements and 
prohibitions for open burning. See, e.g., OAR 340-023-022, -040, -042, 
-055, -060, -065, -070, -075, -080, -085, -090. The underlying 
statutory authority approved into the SIP, however, has for many years 
exempted all agricultural operations and the growing or harvesting of 
crops from regulation--except for field burning in the Willamette 
Valley regulated under ORS 468A.555 to 468A.620. See 56 FR 30006 (July 
30, 1991); 60 FR 37013 (July 19, 1995). On December 27, 2011, EPA 
approved revisions to Oregon's SIP which include statutory and 
regulatory changes narrowing the exemption for agricultural operations 
(76 FR 80747). These changes, however, narrow the agricultural 
operations exemption only to the extent necessary to meet the 
requirements of the CAA. Because there is no express requirement to 
regulate agricultural open burning in the CAA and no information 
showing that the lack of regulation of agricultural open burning in 
Oregon is interfering with attainment or maintenance of the NAAQS, the 
most recent SIP revisions to the agricultural operations exemption do 
not have a bearing on whether the regulation of agricultural open 
burning has ever been or currently is subject to regulation by ODEQ. 
EPA therefore concludes that agricultural open burning (except for 
field burning in the Willamette Valley) has not previously been subject 
to regulation by ODEQ under the SIP and, therefore, Oregon's revision 
of its open burning rules to make this clear (and EPA's approval of 
those revisions) does not affect the stringency of the SIP-approved 
open burning rules.
    Based on EPA's review and analysis of OAR Chapter 340, Division 
264, EPA is proposing to approve this revision to Oregon's SIP as 
meeting the requirements of section 110 of the Clean

[[Page 920]]

Air Act. In addition, EPA proposes to remove from the SIP the 
regulations previously codified at OAR Chapter 340, Division 023 
because they have been recodified and no longer exist at the location 
previously approved in the SIP.

B. EPA's Review of Division 12 Rules (July 14, 2005 and August 28, 2006 
Submittals)

    ODEQ has submitted two SIP revisions to OAR 340, Division 12, one 
on July 14, 2005 and one on August 28, 2006. Division 12 contains 
enforcement procedures and civil penalty provisions that apply across 
all programs implemented by ODEQ, including the air quality regulations 
that EPA has approved into the SIP. Division 12 provides the authority 
and procedures under which ODEQ notifies regulated entities of 
violations, determines the appropriate penalties for violations, and 
assesses penalties for such violations. The revisions to Division 12 
made by ODEQ in 2005 and 2006 clarify the differences between formal 
and informal enforcement processes, make adjustments to the penalty 
matrices, and streamline and reorganize the rules to more closely track 
ODEQ's enforcement and penalty calculation process.
    EPA has reviewed the revisions to Division 12 and finds that they 
continue to provide ODEQ with adequate authority for enforcing the SIP 
as required by Section 110 of the CAA and 40 CFR 50.230(b). 
Importantly, OAR 340-012-0160(3) gives ODEQ the discretion to deviate 
from the penalty matrices and assess penalties of up to $10,000 per 
day, per violation based on the facts and circumstances of the 
individual case. EPA is therefore proposing to approve into the SIP the 
revisions to Division 12 submitted by ODEQ, subject to the 
qualifications and in the manner discussed below.
    First, where ODEQ submitted a regulation in Division 12 as part of 
its July 14, 2005 submittal and that regulation was subsequently 
revised and submitted as part of ODEQ's August 28, 2006 submittal, EPA 
is proposing to approve the version of the regulation submitted as part 
of the August 28, 2006 submittal. The docket contains a chart showing 
the version of the regulations in Division 12 we are approving.
    Second, EPA's authority to approve SIPs extends to provisions 
related to attainment and maintenance of the NAAQS and carrying out 
other specific requirements of Section 110 of the CAA. Therefore, EPA 
is not approving the following regulations in Division 12 that do not 
relate to air emissions: OAR-340-012-0055, -0060, -0065, -0066, -0067, 
-0068, -0071, -0072, -0074, -0079, -0081, -0083, -0097. In addition, 
EPA is approving the remaining sections in Chapter 340, Division 12 
only to the extent they relate to enforcement of requirements contained 
in the Oregon SIP.
    Finally, although EPA is approving the rules in Division 12 in the 
manner discussed above, EPA is not incorporating these rules by 
reference into the Code of Federal Regulations because EPA relies on 
its independent enforcement procedures and penalty provisions in 
bringing enforcement actions and assessing penalties under the CAA.
    In approving these SIP revisions, EPA also notes that 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, the statute does not apply to Oregon's Title V 
program or to any other program if the application of the notice 
provision would disqualify the program from Federal delegation. Oregon 
has previously confirmed that, because the application of the notice 
provision would preclude EPA approval of the Oregon SIP, no advance 
notice is required for violation of SIP requirements.

C. EPA's Review of Division 11 Rules (May 20, 2008 Submittal)

    Oregon's May 20, 2008 submittal revises OAR Chapter 340, Division 
11, which addresses procedures in contested cases (appeals of ODEQ 
actions). These rule revisions were adopted by Oregon on October 17, 
2007 and became effective on March 20, 2008. The rules were revised to 
improve the clarity and completeness of contested case appeals coming 
before the Environmental Quality Commission.
    Division 11 provides authority needed for implementing the SIP and 
is consistent with the Clean Air Act requirements for the issuance of 
permits and enforcement authority. It is not appropriate to incorporate 
these rules by reference into the Code of Federal Regulations, however, 
because EPA relies on its own administrative and enforcement procedures 
in enforcing the Clean Air Act.

D. EPA's Review of OAR 340-200-0040 (February 16, 2001, July 14, 2005, 
August 28, 2006, and May 20, 2008 Submittals)

    On February 16, 2001, July 14, 2005, August 28, 2006 and May 20, 
2008, Oregon submitted revisions to OAR 340-200-0040. EPA is proposing 
no action on these revisions because it is unnecessary to take action 
on provisions addressing State SIP adoption procedures and 
incorporating by reference all of the revisions adopted by the 
Environmental Quality Commission for approval into the Oregon SIP (as a 
matter of state law).

E. EPA's Review of OAR 340-150-0250 (July 14, 2005 Submittal)

    ODEQ's July 14, 2005 SIP submittal included OAR 340-150-0250. We 
are taking no action on this submittal because this section applies to 
underground storage tank regulations and does not relate to attainment 
or maintenance of the NAAQS or other requirements of section 110 of the 
CAA.

III. Summary of Action

    EPA is proposing to approve revisions to OAR, Chapter 340, 
Divisions 11, 12, and 264 because they are consistent with Clean Air 
Act requirements. We are also proposing to take no action on revisions 
to OAR, Chapter 340, Division 200-0040 submitted on February 16, 2001, 
July 14, 2005, August 28, 2006, and May 20, 2008 and OAR, Chapter, 
Division 150-0250 submitted on July 14, 2005 for the reasons discussed 
in Section II.
    Oregon has not demonstrated authority to implement and enforce the 
Oregon Administrative Rules within ``Indian Country'' as defined in 18 
U.S.C. 1151. Therefore, this proposed SIP approval does not extend to 
``Indian Country'' in Oregon.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. 
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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

[[Page 921]]

    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to the 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
    <bullet> 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 EPA notes that 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, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting, 
and recordkeeping requirements.

    Dated: December 27, 2012.
Kate Kelly,
Acting Regional Administrator, Region 10.
[FR Doc. 2013-00056 Filed 1-4-13; 8:45 am]
BILLING CODE 6560-50-P


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