[Federal Register Volume 63, Number 142 (Friday, July 24, 1998)]
[Rules and Regulations]
[Pages 39743-39747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19834]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR 48-1-7263a; FRL-6127-4]


Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) approves revisions to 
the Oregon State Implementation Plan (SIP). EPA is approving revisions 
to Oregon Administrative Rules (OAR) Chapter 340, Division 25 submitted 
to EPA on August 31, 1995, and October 8, 1996, to satisfy the 
requirements of section 110 of the Clean Air Act (CAA) and 40 CFR part 
51.

DATES: This direct final rule is effective on September 22, 1998, 
without further notice, unless EPA receives relevant adverse comment by 
August 24, 1998. If adverse comment is received, EPA will publish a 
timely withdrawal of the direct final rule in the Federal Register and 
inform the public that the rule will not take effect.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, 
Seattle, Washington 98101.

[[Page 39744]]

    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street, SW., Washington, 
D.C. 20460. Copies of material submitted to EPA may be examined during 
normal business hours at the following locations: EPA, Region 10, 
Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 
98101, and Oregon Department of Environmental Quality, 811 SW. Sixth 
Avenue, Portland, Oregon 97204.

FOR FURTHER INFORMATION CONTACT: Rindy Ramos, Office of Air Quality 
(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-6510.

SUPPLEMENTARY INFORMATION:

I. Introduction

    On August 31, 1995, the Oregon Department of Environmental Quality 
(ODEQ) submitted to the Environmental Protection Agency (EPA), a 
revision to the Oregon State Implementation Plan (SIP). This submittal 
contained a revision to Oregon Administrative Rules (OAR), Chapter 340, 
Division 25. Specifically, OAR 340-25-305, OAR 340-25-320, and OAR 340-
25-325 were revised. The above revision was adopted by the state on 
January 20, 1995, and became state effective on February 17, 1995. The 
intent of this revision was to revise the particulate matter allowable 
emission limit.
    Subsequently, on October 8, 1996, another revision to OAR 340-25-
320 and OAR 340-25-325 was submitted to EPA for incorporation into the 
state's federally approved SIP. This revision was adopted by the state 
on January 12, 1996, and became state effective January 29, 1996. The 
purpose of this revision was to resolve a conflict between the above 
rules and Notice of Construction rules OAR 340-28-800 to OAR 340-28-
820. EPA will discuss both submittals in this document.

II. Background

OAR 340-25-325

    ODEQ originally adopted, as a matter of state law, the particulate 
matter emission standard, OAR 340-25-325, for the hardboard industry in 
1971. It became part of the federally approved SIP in 1986. The 
emission standard set at that time was 1.0 lb/ksf (1.0 pounds of 
particulate matter per 1,000 square feet of finished product). In 
establishing this limit, emissions from exhaust vents above the 
hardboard presses were assumed to be negligible and therefore were not 
considered in establishing the 1.0 lb/ksf emission limit. Because they 
were assumed to be negligible, the limit was not intended to require 
controls on the vents. Actual emissions from a total facility (vent and 
nonvent sources) were assumed to be less than 1.0 lb/ksf. However, 
subsequent to the state adoption of the emission standard, testing of 
the vents have shown that they are not negligible as originally assumed 
and therefore, the standard was set too low for existing plants to 
demonstrate compliance. To correct this matter, ODEQ has revised the 
rule to account for the press vents particulate matter emissions and 
has submitted the revised rule for inclusion in the federally approved 
SIP.
    However, even though the actual emissions of a particular facility 
will not be allowed to increase, the revision will result in an 
increase in allowable emissions. And, because the current emission 
limits are part of the federally approved SIP, a demonstration that the 
revision will not have an adverse impact on air quality is needed.

III. Discussion

A. August 31, 1995 Submittal

    1. OAR 340-25-325: The August 1995 rule revision to OAR 340-25-325 
corrects the emission limit by including press vent emissions. The 
revision keeps the current limit as it applies to all non-vent 
emissions sources at a plant and limits vent emissions at each affected 
plant to their baseline level or a set maximum level. The revised rule 
does not result in an increase in actual emissions; rather it reflects 
a correction allowed by OAR 340-028-1020(7)(e) when errors are found or 
better data is available for calculating PSELs.
    The revision creates a new limit calculated from baseline 
<SUP>1</SUP> emissions. A plant's limit would be the sum of vent 
emissions and the lesser of baseline non-vent emissions or 1.0 lb/ksf 
(the original limit). In no case could the emission rate exceed 2.0 lb/
ksf. The effect would be to hold total emissions to what they would 
have been at baseline had the press/cooling vents emissions been taken 
into account, or less if baseline non-vent emissions were greater than 
1.0, or if the total exceeds 2.0 lb/ksf.
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    \1\ Baseline vent emission rate is defined as a source's vent 
emissions rate during the baseline period (1977/1978) as defined in 
OAR 340-28-0110, expressed as pounds of emissions per thousand 
square feet of finished product, on a \1/8\ inch basis.
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    2. OAR 340-25-305: The August 1995 revision to OAR 340-25-305 added 
the definition for ``baseline vent emission rate'', clarified the 
definition of EPA Method 9, and added the definition for ``press/
cooling vent'' to the definitions section of Chapter 340, Division 25, 
Statewide Rules--Board Products Industries.
    3. OAR 340-25-320: The revision to OAR 340-25-320 was housekeeping 
in nature and corrected a cross referencing problem with another rule. 
The revision required that any person who proposed to control windblown 
particulate emissions from truck dump storage areas other than by 
enclosure, had to apply to ODEQ for authorization to utilize 
alternative controls. The rule was revised to require the application 
to be submitted pursuant to OAR 340-28-800 through 820 instead of OAR 
340-20-020 through 030.

B. October 8, 1996 Submittal

    1. OAR 340-25-320 and 340-25-523: The October 1996 submittal was 
also housekeeping in nature. OAR 340-25-320(1)(c) Particleboard 
Manufacturing Operations--Truck Dump and Storage Areas and OAR 340-25-
325(1)(c) Hardboard Manufacturing Operations--Truck Dump and Storage 
Areas were revised by deleting the reference to OAR 340-28-800 to 820. 
A conflict existed because OAR 340-28-810(2) restricted OAR 340-28-800 
through 820 from applying to federal operating permit program sources. 
Because the state wanted all sources to be subject to OAR 340-25-
320(1)(c) and OAR 340-25-325(1)(c), reference to OAR 340-28-800 to 820 
was deleted.

IV. Sources Affected

    A total of seven hardboard manufacturing plants are affected by the 
revision to OAR 340-25-325. Six plants are located in areas currently 
designated unclassified for particulate matter with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers (PM-10). One of 
these six plants, Collins Products LLC, is located directly outside the 
Klamath Falls PM-10 nonattainment area. The seventh plant, a Jeld Wen, 
Inc. facility is located inside the boundary of the Klamath Falls PM-10 
nonattainment area.

A. Analysis of Revision

    1. Facilities located in areas unclassified for PM-10: In 
accordance with Section 110(l) of the Clean Air Act (CAA), EPA Region 
10 required either a demonstration or documentation that the PM-10 
National Ambient Air Quality Standards (NAAQS) and visibility would be 
protected and documentation that the revision would not allow a 
violation of the Prevention of Significant Deterioration (PSD) 
requirement.

[[Page 39745]]

    Bearing in mind the original intent of the rule revision, ODEQ and 
the region agreed upon the following methodology: (1) for those sources 
which had not changed their mode of operation since baseline, the 
region would not require a PSD analysis instead a written justification 
including emission calculations would be acceptable; and (2) for those 
sources whose method of operation had changed since the hardboard rule 
was promulgated and the change resulted in emission increases above the 
significant threshold levels, a complete PSD analysis would be 
required. Sources that would be subject to a PSD analysis would also 
have to undergo a visibility analysis.
    However, a PSD increment analysis for all affected sources would 
not be required. Since the press vents were in operation when baseline 
was established (1977/1978), and the rule revision does not allow for 
an increase in actual emissions, a PSD increment analysis was not 
required. The rule, by itself, does not allow for increment 
consumption.
    For NAAQS purposes, the assumption is made that since these sources 
are not located in a nonattainment area (the areas are unclassified) 
and emissions from the press vents have been occurring since 1977/1978, 
increasing the allowable limit to reflect actual emissions would not 
adversely affect air quality. The information before EPA does not 
indicate that an air quality problem currently exists.
    Visibility requirements are addressed through the fact that this 
revision does not allow for an increase in actual emissions above those 
accounted for in Oregon's long term visibility strategy. Again, as 
discussed above, the SIP revision only establishes allowable emissions 
equal to or less than baseline emissions.
    2. Facility located inside the Klamath Falls PM-10 nonattainment 
area: It is EPA position that the revision to OAR 340-025-325 is 
subject to Section 193 of the CAA, as amended, for a source located in 
one of Oregon's PM-10 nonattainment areas. And therefore, the revision 
must demonstrate that the increase in allowable emissions will not have 
an adverse impact on timely attainment of the PM-10 National Ambient 
Air Quality Standards (NAAQS) in those areas. Also, the demonstration 
must ensure that emission reductions equivalent to those required by 
the current SIP rule are achieved. This position is based on the fact 
that the rule was part of the federally approved SIP before enactment 
of the Clean Air Act Amendments (CAAA) of 1990. The only source located 
inside a PM-10 nonattainment area affected by this rule revision is the 
Jeld Wen, Inc. facility in Klamath Falls.
    On September 22, 1995, ODEQ submitted a revision to the November 
15, 1991, attainment plan for the Klamath Falls PM-10 nonattainment 
area. This revision addressed, among other things, the above Section 
193 requirement. A review of the area's attainment demonstration 
indicated that the increase in allowable emissions would not adversely 
impact air quality. The 1991 attainment plan and 1995 revision to the 
plan have both been approved by EPA. See 61 FR 28531 (June 5, 1996) and 
62 FR 18047 (April 14, 1997) for details. It is EPA's position that the 
requirements of Section 193 have been satisfied.
    3. Facility located outside the Klamath Falls PM-10 nonattainment 
area: One of the facilities affected by this revision, Collins Products 
LLC, is located outside the boundary of the Klamath Falls PM-10 
nonattainment area. During assessment of the source's impact on the 
nonattainment area, a 1995 dispersion modeling analysis indicated that 
a violation of the 24-hour PM-10 NAAQS existed in an unmonitored 
location outside the nonattainment area boundary. To address the 
modeled violation, and allow EPA to approve the hardboard rule as it 
applies to Collins Products, Collins Products agreed to the 
installation of additional control devices and a reduction in permitted 
allowable emissions. Through the installation of three baghouses and 
the reduction in allowable emissions, Collins Products was able to 
demonstrate compliance with the 24-hour PM-10 NAAQS. The requirement to 
install additional control devices and the reduction in permitted 
emission limits have been incorporated into their Air Contaminant 
Discharge Permit (ACDP). <SUP>2</SUP> An addendum to their ACDP was 
issued on June 2, 1997. Oregon's ACDP regulations are part of the 
federally approved SIP and their permits are federallly enforceable. 
(See 40 CFR 52.1988).
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    \2\ See letter from Gregory A. Green, Administrator Air Quality 
Division, ODEQ to Anita Frankel, Air Director, USEPA, Region 10 
dated April 8, 1997.
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B. July 18, 1997 Revision to the PM-10 NAAQS

    On July 18, 1997, EPA revised the PM NAAQS (see 62 FR 38651). This 
revision changed the form of the 24-hour PM-10 standard, retained the 
annual standard, and added 24-hour and annual standards for PM with an 
aerometric mean diameter less than 2.5 micrometers (PM-2.5). Section 
50.3 of 40 CFR Part 50 was also revised to remove the requirement to 
correct the temperature and pressure of measured PM concentrations to 
standard reference conditions. The revised PM NAAQS and their 
associated appendices became effective on September 16, 1997. However, 
the PM-10 NAAQS in effect before September 16, 1997, (pre-existing 
standard) was not revoked upon establishing the revised PM NAAQS. 
<SUP>3</SUP>
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    \3\ See memorandum dated December 27, 1997, from Richard D. 
Wilson, Acting Assistant Administrator for Air and Radiation, to 
Regional Administrators entitled Guidance for Implementing the 1-
Hour Ozone and Pre-existing PM10 NAAQS.
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    Additionally, it is EPA's opinion that the submittal conforms to 
EPA's guidance for ``Grandfathering'.<SUP>4</SUP> EPA has developed 
guidance on applying previously applicable standards to pending SIP 
revisions where the relevant requirements have changed since the state 
prepared the SIP submittal. The submittal conforms to the applicable 
CAA requirements for the pre-existing PM-10 NAAQS.
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    \4\ See memorandum dated January 27, 1988, from Gerald A. 
Emison, Director, Office of Air Quality Planning and Standards, to 
Director, Air and Toxics Division, Region X, entitled 
``Grandfathering'' of Requirements for Pending SIP Revisions.
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V. Summary of Action

    Section 110(l) of the CAA provides that EPA may not approve a 
revision to a state's SIP that would interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other applicable requirement of the Act. EPA has thoroughly 
evaluated the above revision and is approving the revisions to OAR 
Chapter 340, Division 25, as submitted on August 31, 1995, and October 
8, 1996.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors, and in 
relation to relevant statutory and regulatory requirements.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective 
September 22, 1998, without further notice unless the Agency receives

[[Page 39746]]

relevant adverse comments by August 24, 1998.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Only parties interested in 
commenting on this rule should do so at this time. If no such comments 
are received, the public is advised that this rule will be effective on 
September 22, 1998, and no further action will be taken on the proposed 
rule.

VI. Administrative Requirements

A. Executive Order 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866, entitled, ``Regulatory Planning and 
Review'' review.
    The final rule is not subject to E.O. 13045, entitled, ``Protection 
of Children from Environmental Health Risks and Safety Risks'' because 
it is not an ``economically significant'' action under E.O. 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D, of the 
CAA do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of State action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action as promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the Comptroller General

    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. Section 804, however, exempts from section 801 the 
following types of rules: rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA 
is not required to submit a rule report regarding today's action under 
section 801 because this is a rule of particular applicability.

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 22, 1998. 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), 42 
U.S.C. 7607(b)(2).

F. Oregon's Audit Privilege Act

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Oregon's Audit 
Privilege Act, ORS 468.963 enacted in 1993, or its impact upon any 
approved provision in the SIP, including the revision at issue here. 
The action taken herein does not express or imply any viewpoint on the 
question of whether there are legal deficiencies in this or any other 
Clean Air Act program resulting from the effect of Oregon's audit 
privilege and immunity law. A state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on federal 
enforcement authorities. EPA may at any time invoke its authority under 
the Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by a state audit privilege or immunity law.

G. Oregon's Advance Notice Prior to Penalty

    In reviewing previous SIP revisions, EPA determined that because 
the five-day advance notice provision required by ORS 468.126(1) 
enacted in 1991, bars civil penalties from being imposed for certain 
permit violations, ORS 468 fails to provide the adequate enforcement 
authority the State must demonstrate to obtain SIP approval, as 
specified in Section 110 of the Clean Air Act and 40 CFR 51.230. 
Accordingly, the requirement to provide such notice would preclude 
federal approval of a 110 SIP revision.
    To correct the problem, the Governor of Oregon signed into law new 
legislation amending ORS 468.126 on September 3, 1993. This amendment 
added paragraph 468.126(2)(e) which provides that the five-day advance 
notice required by ORS 468.126(1) does not apply if the notice 
requirement will disqualify the State's program from federal approval 
or delegation. ODEQ has responded to EPA's understanding of the 
application of 468.126(2)(e) and agrees that, if federal statutory

[[Page 39747]]

requirements preclude the use of the five-day advance notice provision, 
no advance notice will be required for violations of SIP requirements 
contained in permits.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Oregon was approved by the Director of the Office of 
Federal Register on July 1, 1982.

    Dated: July 9, 1998.
Chuck Clarke,
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--State of Oregon

    2. Section 52.1970 is amended by adding paragraph (c) (126) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (126) On August 31, 1995, and October 8, 1996, the Director of ODEQ 
submitted to the Regional Administrator of EPA revisions to its Oregon 
SIP: the Oregon Administrative Rules (OAR) Chapter 340, Division 25, 
Specific Industrial Standards (OAR 340-25-305, 320 and 325).
    (i) Incorporation by reference.
    (A) August 31, 1995, letter from ODEQ to EPA submitting a revision 
to the Oregon Administrative Rules (OAR); OAR 340-25-305, State 
effective on February 17, 1995.
    (B) October 8, 1996, letter from ODEQ to EPA submitting a revision 
to the Oregon Administrative Rules (OAR); OAR 340-25-320 and OAR 340-
25-325, State effective on January 29, 1996.
[FR Doc. 98-19834 Filed 7-23-98; 8:45 am]
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