[Federal Register Volume 87, Number 30 (Monday, February 14, 2022)]
[Proposed Rules]
[Pages 8222-8224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02983]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2020-0684, FRL-9402-01-R10]


Air Plan Approval; OR; Air Contaminant Discharge Permit Fee 
Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the Oregon State Implementation Plan (SIP) 
submitted on November 5, 2020. The revision establishes new fees to be 
paid by stationary sources of air contaminants submitting notices of 
intent to construct. The revision also adds a new basic air contaminant 
discharge permit category to allow certain minor sources, that would 
otherwise be required to obtain a general, simple, or standard permit, 
the option to qualify for a basic permit.

DATES: Comments must be received on or before March 16, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2020-0684, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from https://www.regulations.gov. The EPA may 
publish any comment received to its public docket. Do not 
electronically submit any information you consider to be Confidential 
Business Information (CBI) or other information the disclosure of which 
is restricted by statute. Multimedia submissions (audio, video, etc.) 
must be accompanied by a written comment. The written comment is 
considered the official comment and should include discussion of all 
points you wish to make. The EPA will generally not consider comments 
or comment contents located outside of the primary submission (i.e., on 
the web, cloud, or other file sharing system). For additional 
submission methods, the full EPA public comment policy, information 
about CBI or multimedia submissions, and general guidance on making 
effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kristin Hall, EPA Region 10, 1200 
Sixth Avenue, Suite 155, Seattle, WA 98101, at (206) 553-6357 or 
<a href="/cdn-cgi/l/email-protection#7c141d101052170e150f0815123c190c1d521b130a"><span class="__cf_email__" data-cfemail="ec848d8080c2879e859f988582ac899c8dc28b839a">[email protected]</span></a>.

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

Table of Contents

I. Background
    A. State Implementation Plan
    B. Air Contaminant Discharge Permits
    C. Source Notification Requirements
II. Evaluation of Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

A. State Implementation Plan

    Each state has a State Implementation Plan (SIP) containing the 
control measures and strategies used to attain and maintain the 
national ambient air quality standards (NAAQS) established by the EPA 
for the criteria pollutants (carbon monoxide, lead, nitrogen dioxide, 
ozone, particulate matter, sulfur dioxide). Section 110 of the Clean 
Air Act spells out the requirements for each SIP, including but not 
limited to air pollution control regulations, emissions inventories, 
ambient air monitoring, enforcement mechanisms, and authority to revise 
the SIP as needed.
    Revisions to the SIP are adopted by the state and submitted to the 
EPA for review. The EPA approves and codifies

[[Page 8223]]

such SIP revisions as part of the Code of Federal Regulations (CFR), 
making them federally enforceable. The Oregon Department of 
Environmental Quality, as the Governor's designee, routinely revises 
the SIP and submits the changes to the EPA for approval and 
codification in 40 CFR part 52, subpart MM.

B. Air Contaminant Discharge Permits

    The Oregon air contaminant discharge permit (ACDP) program is a set 
of air pollution control regulations in the Oregon SIP. The ACDP 
program serves two SIP-related functions.\1\ First, it governs 
operation of minor sources that are not subject to the major stationary 
source Title V operating permit program. Second, it serves as the 
administrative mechanism used to implement the notice of construction 
and pre-construction permit program, also known as the ``new source 
review'' program.
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    \1\ We note that the ACDP program serves other functions, 
outside of the federally approved Oregon SIP. For example, the ACDP 
program is the mechanism used to implement the risk-based toxics 
permitting program known as Cleaner Air Oregon. Because the ACDP 
program serves other functions, the EPA has approved the ACDP 
program into the Oregon SIP only to the extent it applies to (1) 
pollutants for which NAAQS have been established (criteria 
pollutants) and precursors to those criteria pollutants as 
determined by the EPA for the applicable geographic area; and (2) 
any additional pollutants that are required to be regulated under 
part C of title I of the Clean Air Act (prevention of significant 
deterioration of air quality), but only for purposes of meeting or 
avoiding the requirements of part C of title I of the Clean Air Act.
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    There are six types of permits in the Oregon ACDP program: 
Construction, General, Short-Term Activity, Basic, Simple, and 
Standard. Sources seeking permits must pay associated fees based on 
specific categories and activities codified in Oregon Administrative 
Rules (OAR) Chapter 340, Division 216 and approved into the Oregon SIP. 
Oregon has adjusted these permit fees over time to help ensure there 
are adequate resources to implement the ACDP program.

C. Source Notification Requirements

    Oregon requires stationary sources to submit notices of intent to 
construct for certain types of activities. These notification 
requirements are codified in OAR Chapter 340, Division 210 and are 
approved into the Oregon SIP. Type 2 notices of intent to construct 
generally cover existing sources with issued permits that are seeking 
certain minor changes to those permits. Historically, Oregon has not 
assessed fees to process these Type 2 notices of intent to construct.

II. Evaluation of Submission

    On November 5, 2020, Oregon submitted a SIP revision addressing 
stationary source permitting and associated fees. Oregon subsequently 
revised the scope of the SIP revision submitted for EPA approval in a 
letter dated December 22, 2021.\2\ The SIP revision makes two 
substantive changes. First, the SIP revision adds new fees to process 
Type 2 notices of intent to construct. See OAR 340-210-0230 and 0240. 
Second, the SIP revision adds a new Basic ACDP option, available to a 
qualifying minor source if that source meets certain criteria, 
including taking an enforceable limit on hours of operation and/or 
production. See OAR 340-216-0010 Table 1, Part A, number 8. This second 
change allows a source to obtain a Basic ACDP rather than a General, 
Simple, or Standard ACDP, provided the source: (1) Is not a federal 
major source under Title I or Title V of the Clean Air Act, (2) is not 
subject to other source-specific SIP permitting requirements, (3) 
requests an enforceable limit on actual, uncontrolled emissions, and 
(4) control devices are not required to maintain the enforceable 
limit.\3\ The enforceable limit is established in the Basic ACDP and 
includes associated monitoring, recordkeeping, and reporting 
requirements and any other elements needed to make the limit 
practically enforceable.
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    \2\ Oregon clarified that OAR 340-216-8020, which includes the 
specific fee amounts to be paid by sources, is not submitted for SIP 
approval. The letter has been placed in the docket for this action.
    \3\ Functionally, this option allows certain minor sources 
otherwise required to obtain a General, Simple, or Standard ACDP 
operating permit by virtue of OAR 340-216-8010 Table 1, Part B, 
number 85 to obtain a Basic ACDP. See Footnote 4 to OAR 340-216-8010 
Table 1, Part B, number 85.
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    We have reviewed the submitted changes to Division 210 for 
continued compliance with SIP-related permit fee requirements in Clean 
Air Act section 110(a)(2)(L). We propose to find that the changes are 
designed to increase major stationary source fees paid to the 
permitting authority and are therefore consistent with Clean Air Act 
section 110(a)(2)(L). See also our most recent approval of the Oregon 
SIP as meeting the requirements of Clean Air Act section 110(a)(2)(L) 
(84 FR 26347, June 6, 2019).
    We have reviewed the submitted changes to Division 216 for 
continued compliance with the Clean Air Act, in particular, the SIP-
related minor new source review program requirements in Clean Air Act 
section 110(a)(2)(C) and the EPA's implementing regulations at 40 CFR 
51.160 through 51.164. The EPA previously approved Oregon's minor new 
source review program as meeting these statutory and regulatory 
requirements on October 11, 2017 (82 FR 47122). We propose to find that 
the submitted changes to Division 216 continue to satisfy the statutory 
and regulatory requirements. We note that qualifying minor sources are 
required to apply for and obtain a Basic ACDP permit with enforceable 
limits on hours of operation and/or production, a process that 
includes: SIP-approved legal procedures that enable Oregon to 
determine, among other things, if construction of the minor source will 
violate applicable portions of the control strategy or interfere with 
attainment or maintenance of the NAAQS; public availability of 
information; and administrative processes. We have also reviewed the 
submitted changes as they relate to the EPA's guidance on federally 
enforceable state operating permit programs and propose to find that 
Oregon's ACDP program continues to comply with this guidance (54 FR 
27274, June 28, 1989). See the EPA's action approving the program on 
January 22, 2003 (68 FR 2891).

III. Proposed Action

    The EPA is proposing to approve, and incorporate by reference, 
revisions to the Oregon SIP submitted for purposes of SIP-related 
permitting, as discussed in section II. of this preamble. Upon final 
approval, the Oregon SIP will include the following regulations, State 
effective September 21, 2020:
    <bullet> OAR 340-210-0230, Notice of Construction and Approval of 
Plans: Notice to Construct;
    <bullet> OAR 340-210-0240, Notice of Construction and Approval of 
Plans: Construction Approval; and
    <bullet> OAR 340-216-8010, Table 1--Activities and Sources.

IV. Incorporation by Reference

    In this document, the EPA is proposing to include in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the provisions described in section III. of this preamble. 
The EPA has made, and will continue to make, these documents generally 
available through https://www.regulations.gov and at the EPA Region 10 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

[[Page 8224]]

V. 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 Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed 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 proposed action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <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 requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of the requirements would be inconsistent 
with the Clean Air Act; and
    <bullet> Does not provide the 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 proposed action would not apply on any Indian 
reservation land or in any other area in Oregon where the EPA or an 
Indian tribe has demonstrated that a tribe has jurisdiction. In those 
areas of Indian country, the rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: February 7, 2022.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2022-02983 Filed 2-11-22; 8:45 am]
BILLING CODE 6560-50-P


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