2024-06807. Air Plan Approval; OR; Permitting Rule Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) proposes to approve revisions to the Oregon State Implementation Plan (SIP) submitted on March 27, 2023. The submitted changes are designed to strengthen the stationary source permitting rules by eliminating generic plant site emission limits in favor of source-specific and source-category specific limits, updating construction notification requirements, clarifying the use of modeling and monitoring for compliance assurance, and streamlining the application process.

DATES:

Comments must be received on or before May 1, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R10-OAR-2023-0438, 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 [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we” or “our” is used, it means the EPA.

Table of Contents

I. Background

A. State Implementation Plan

B. State Submission

II. Evaluation

A. Division 200—General Air Pollution Procedures and Definitions

B. Division 208—Visible Emissions and Nuisance Requirements

C. Division 209—Public Participation

D. Division 210—Stationary Source Notification Requirements

E. Division 216—Air Contaminant Discharge Permits

F. Division 222—Stationary Source Plant Site Emission Limits

G. Division 224—New Source Review

H. Division 225—Air Quality Analysis Requirements

I. Division 226—General Emission Standards

J. Division 228—Requirements for Fuel Burning Equipment

K. Division 232—Emission Standards for VOC Point Sources

L. Division 234—Emission Standards for Wood Products Industries

M. Division 21—General Emission Standards for Particulate Matter

III. Proposed Action

A. Rule Sections To Be Incorporated by Reference

B. Rule Sections To Be Removed From Incorporation by Reference

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

I. Background

A. State Implementation Plan

The Clean Air Act requires the EPA to establish national ambient air quality standards (NAAQS) for carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide.^[1] Each state has a State Implementation Plan (SIP) designed to meet the NAAQS through various air pollution regulations, control measures and strategies. A SIP contains elements such as emission limits, pollution control technology requirements, permitting programs, and enforcement mechanisms, among other elements. Each state revises its SIP over time to respond to new Federal requirements and to address changing air quality conditions.

States submit SIP revisions to the EPA for review and approval.^[2] The EPA takes action through notice and comment rulemaking to approve and incorporate submitted state air quality regulations by reference into the SIP, codified in the Code of Federal Regulations (CFR). As part of the SIP, state regulations are enforceable by the EPA and by citizens in Federal district court.^[3]

B. State Submission

On March 27, 2023, the Oregon Department of Environmental Quality (DEQ) submitted a SIP revision to the EPA for approval into the Oregon SIP, codified at 40 CFR part 52, subpart MM. The submitted changes, State effective March 1, 2023, update the stationary source permitting programs established in chapter 340 of the Oregon Administrative Rules (OAR). The Oregon Department of Environmental Quality (Oregon DEQ) is the permitting authority throughout the State, except where Lane Regional Air Protection Agency has been authorized to permit sources located in Lane County, Oregon.

II. Evaluation

The following sections of this preamble describe the significant changes made to the Oregon air permitting regulations and evaluate the changes with respect to Clean Air Act requirements.^[4]

A. Division 200—General Air Pollution Procedures and Definitions

Oregon clarified and updated several centralized definitions which are used throughout the Oregon air quality regulations.^[5] The State updated the definition of “air contaminant” to clearly exclude uncombined water.^[6] This update is appropriate because: (1) uncombined water is not a criteria pollutant or otherwise regulated air pollutant under the Clean Air Act; and (2) uncombined water is not included when measuring particulate matter emissions, consistent with the EPA's definition at 40 CFR 51.100(pp). Oregon also made clear that the definition of “construction” includes the replacement of a source and that the definition of “emission limit” includes a permit condition or order. These changes are appropriate because they strengthen and clarify the SIP.

The State also made minor updates to certain terms; for example, Oregon clarified that all fluorinated greenhouse gases, as defined in 40 CFR part 98, are included in the State's definition of “greenhouse gas.” Oregon updated the definition of “major source” to ensure that all uses of the term throughout the air quality rules point to the corresponding definition based on the applicable permitting program (the Clean Air Act defines the term “major source” differently based on area designation, type of pollutant, etc.). In addition, the State clarified the correct definition of “particulate matter” to be used in regulating visible emissions. Oregon also updated the definition of “significant emission rate” to point to the EPA test method used to measure inorganic fluoride compounds and updated the definition of “VOC” to align with the Federal definition in 40 CFR 51.100(s). We propose to approve these clarifying updates.

Oregon revised the definition of “significant impact level” to remove the levels established for the coarse particulate matter (PM₁₀) annual standard. This change is consistent with the EPA's revocation of the PM₁₀ annual standard on October 17, 2006 (71 FR 61144). Finally, Oregon struck the definition of “generic plant site emission limit” because the State has repealed the permitting regulations in which the term is used. For further discussion, please see section II.G. of this preamble. We propose to approve the removal of these obsolete terms and definitions.

B. Division 208—Visible Emissions and Nuisance Requirements

Oregon updated the visible emission regulations in Division 208 in several ways. Oregon spelled out that the visible emission limits in OAR 340-208-0110 do not apply to recovery furnaces that are subject to the separate standards for wood products industries established in Division 234. In the same rule section, the State removed text that historically served to phase in tighter, 20 percent opacity limits. The limits are now widely applicable. In addition, Oregon clarified that, in and around the Portland area, industrial fuel burning equipment that fires wood residue is limited to no more than 0.10 grains per standard cubic foot of exhaust.^[7] We propose to approve the submitted changes because they clarify how and where visible emission limits apply without relaxing the requirements.

C. Division 209—Public Participation

In the submission, the State updated the centralized public participation requirements in Division 209. Oregon revised OAR 340-209-0080 to spell out the timeline and actions required for an owner or operator to appeal a permit decision, specifically adding text stating that an issued permit is effective on the date of signature, unless the applicant requests a hearing to contest the permit within 20 days of the notification date. In addition, Oregon made clear that a permit denial is effective 60 days from the notification date unless the applicant requests a hearing within that timeframe. We propose to approve the changes because they make the permit appeal process transparent to applicants and the public.

D. Division 210—Stationary Source Notification Requirements

In the submission, Oregon made changes to the registration requirements in Division 210. The current SIP requires that any air contaminant source that is not otherwise required to obtain an air contaminant discharge permit under Division 216, or title V operating permit under Division 218, must register with the permitting authority upon request. The State updated the general registration provisions in OAR 340-210-0100 to make clear to owners and operators of subject sources that appropriate record-keeping is required and that failure to pay fees may be cause to terminate registration.^[8] We propose to approve the submitted changes because they clarify what is required to maintain source registration and therefore strengthen the SIP.

In the submission, the State also made changes to the notice of construction provisions in Division 210. An owner or operator of a proposed new source that will emit any regulated air pollutant, and that is not otherwise required to obtain an air contaminant discharge permit under Division 216 or a title V permit under Division 218, must notify the permitting authority, consistent with Division 210. In addition, an owner or operator seeking to modify an existing source must notify the permitting authority if the modification would increase regulated air pollutant emissions, replace an emissions device, or modify or replace an air pollution control device. We note that such a modifying source may or may not have an existing air contaminant discharge permit or title V permit.

In the submission, Oregon revised the applicability requirements in OAR 340-210-0205 to make clear that owners or operators must notify the permitting authority using the appropriate application materials before undertaking any of the covered activities in Division 210. We propose to approve the changes as strengthening the SIP.

The State also added language to OAR 340-210-0225 to clarify which kinds of changes fall under each notification type prescribed in the Division 210 rules (Types 1, 2, 3 and 4), in addition to the associated requirements for owners and operators under each type. Type 1 changes generally consist of construction and modification for which an owner or operator is not required to obtain an air contaminant discharge permit or permit modification under Division 216, and where the changes would not increase emissions in a significant way, would not increase emissions above an existing plant site emission limit (PSEL), and would not be used to establish a federally enforceable limit on potential to emit.^[9] A construction or modification may also be a Type 1 change if it is one of a list of equipment, units, or activities that are expected to result in little to no change in emissions.^[10] Type 2 changes include construction or modification for which the owner or operator is not required to obtain an air contaminant discharge permit or permit modification under Division 216, and where the construction or modification would not cause or increase emissions above certain regulatory thresholds, such as the significant emission rate.^[11] Type 3 changes include construction or modification where the construction or modification would cause or increase emissions above certain regulatory thresholds, such as the significant emission rate.^[12] Finally, Type 4 changes include construction or modification that is subject to new source review (NSR) requirements governed by Division 224. We propose to approve the changes because they are designed to ensure that construction activities receive the proper review by the permitting authority.

Oregon also revised the application requirements in OAR 340-210-0230 to specify what should be in a notice of construction application and to require that applicants must generally use the State-provided online electronic forms. In addition, applications must include information on production, throughput, material usage, and emissions with supporting calculations. Any person proposing a Type 2 or Type 3 change for a new or replaced device or activity must also submit an air quality analysis, for any pollutants that are emitted above the de minimis emission level, demonstrating that the emissions from the individual device or activity, including reductions due to air pollution control devices or permitted limits on production capacity, will not cause or contribute to a new exceedance of the NAAQS. We propose to approve these revisions as strengthening the SIP because they require an air quality analysis to demonstrate the NAAQS are protected when Type 2 and Type 3 construction and modification activities are planned at a source.

The State revised the construction approval conditions in OAR 340-210-0240 to clarify when and how an applicant may proceed with construction or modification. For a Type 1 change, an owner or operator may proceed with construction immediately after notifying the permitting authority, unless the owner or operator requests confirmation. For a Type 2 change, an owner or operator may construct or modify 60 calendar days after the permitting authority receives the complete notice application and fees, or on the date that the permitting authority approves the application in writing, whichever is sooner, unless the permitting authority determines that the activity does not qualify as a Type 2 change. When planning a Type 3 or Type 4 change, an owner or operator must obtain the appropriate air contaminant discharge permit prior to proceeding with construction or modification. Upon approval, an owner or operator must commence construction or modification within 18 months. Approval terminates if not commenced within 18 months, except that a source may request one 18 month extension of the deadline. Oregon also spelled out that any construction or modification must happen according to the plans and specifications reviewed and approved by the permitting authority. Finally, Oregon revised OAR 340-210-0250 to clarify which types of permits must be obtained for Type 3 and 4 changes. We propose to approve the changes because they clarify the construction approval requirements and require owners and operators to construct according to approved plans.

E. Division 216—Air Contaminant Discharge Permits

As part of the submission, the State revised the air contaminant discharge permit (ACDP) requirements in Division 216 to ensure proper permitting and NAAQS compliance. First, Oregon updated the general applicability provisions in OAR 340-216-0020 to make clear that the owner or operator of a source must construct and operate the permitted facility in accordance with previously-approved plans and specifications. Second, the State revised OAR 340-216-0025 to add clarifying language about the permitting authority's ability to reassign a source to a different permit type. Specifically, Oregon added language stating that, notwithstanding the other eligibility requirements already established in the State regulations for the different types of ACDPs, the permitting authority may change the specific permit type to be issued to a source based on several additional factors including the compliance history of the facility's corporate officers, parent company, subsidiaries, and other related people and entities. We propose to approve these changes because they are designed to enhance State oversight of stationary source construction and operation.

Permit Application Procedures

Oregon made changes to the permit application procedures in OAR 340-216-0040 to require additional application materials when a source applies for a new, renewed, or modified permit. These materials were added to help ensure that subject sources will not cause or contribute to a new exceedance of the NAAQS, including the short-term NAAQS promulgated by the EPA in 2010 for SO₂ and NO₂.

When requesting a new ACDP—except a new short-term activity permit—in addition to what was already required in the application, each source must also provide:

• The make, model, and identification number associated with activities and devices used at the source, if available;
• The specific exhaust parameters for devices used at the source;
• The most recent information reported to the EPA's toxics release inventory (TRI) for that specific source, if that source is subject to the TRI program;
• An air quality impact analysis conducted in accordance with Division 225 demonstrating that the source's emissions will not cause or contribute to a new exceedance of any NAAQS;
• The anticipated date of commencement of construction; and
• The anticipated date of construction completion.

When requesting to renew an ACDP permit, in addition to the already-required materials, each source must also submit:

• All information required for a new ACDP if that information has changed since the last permit renewal or issuance;
• A complete list of all devices and activities at the source;
• An estimate of the amount and type of each air contaminant emitted by the source; and
• All changes to the source since the last permit issuance and all requirements applicable to those changes; and
• When required by the permitting authority, an air quality analysis conducted in accordance with Division 225 demonstrating that the source's emissions will not cause or contribute to a new exceedance of a NAAQS.

For requests to modify an ACDP permit, in addition to the already-required materials, each source must also submit:

• When required by the permitting authority, an air quality analysis conducted in accordance with Division 225 demonstrating that the source's emissions will not cause or contribute to a new exceedance of a NAAQS.

For all permit applications, if additional information is needed to complete the permit application, the permitting authority will send a written request to the applicant and require the information be submitted within 60 days. Applicants may request a good cause extension. We propose to approve the changes to the permit application procedures because they are designed to provide the permitting authority with the specific information needed to issue a permit that protects ambient air quality, including the short-term NAAQS.

Short-Term Activity Permits

With respect to short-term activity ACDPs, the State revised OAR 340-216-0054 to make clear that a short-term permit is only available for activities that either do not require a title V operating permit, that are unexpected or emergencies, or that involve a pilot plant or exploratory emissions unit. The State also added several application requirements, including, if required by the permitting authority, an air quality impact analysis demonstrating that the source's emissions will not cause or contribute to a new exceedance of the NAAQS. The State added that a short-term activity permit automatically terminates after 60 days. A source may request one 60-day extension, but no more. If a short-term activity permit is issued to an already-permitted source, that source must include the emissions from the short-term activity when determining compliance with applicable plant site emission limits. We propose to approve these revisions because they are intended to prevent covered activities from causing or contributing to a new NAAQS exceedance.

General Permits

As specified in Division 216, general ACDPs are established by the permitting authority for specific source categories when there are multiple sources with the same, or substantially similar, types of operations. The general permit provisions indicate that such a permit is appropriate when all requirements applicable to a covered operation may be included in the general permit, the emission limitations, monitoring, recordkeeping and reporting are the same for all operations covered by the general permit, and the regulated pollutants emitted are of the same type for all covered operations. Examples include rock crushers and asphalt plants. For such general permits, the State added procedures to OAR 340-216-0060 spelling out how a person may petition to add a new category to the list of source categories covered by general permits. We propose to approve the revisions to OAR 340-216-0060.

Simple and Standard Permits

Simple ACDPs, described in OAR 340-216-0064, generally limit a source's emissions to less than the significant emission rate (SER) for each pollutant. Oregon updated these requirements to ensure that emissions from a source permitted under a simple permit will not cause or contribute to a new exceedance of a NAAQS. In particular, the revisions require that a simple permit include each physical or operational limit required to ensure all devices and activities at a source are controlled, or a requirement to conduct ambient monitoring to ensure compliance with the NAAQS. Oregon also extended the simple permit term from 5 years to 10 years. For standard permits in OAR 340-216-0066, Oregon made similar changes, except that the permit term for standard permits will generally remain at 5 years, except when issued to meet major new source review (NSR), in which case the permit will have no expiration date. We propose to approve these changes as consistent with the EPA's NSR regulations at 40 CFR 51.161 through 166. For further discussion, see section II.G. of this preamble.

Permit Termination and Department-Initiated Permit Modifications

Oregon revised the rules addressing termination of permits in OAR 340-216-0082 to make clear that a source may not operate after an air contaminant discharge permit has been terminated. However, when a construction approval permit is terminated for failure to commence or complete construction within required timeframes, a source may request an extension for good cause and a terminated permit may be reinstated by the permitting authority if the source submits a complete renewal application within 30 days of termination and pays all applicable fees. Oregon also revised OAR 340-216-0884 to make clear that department-initiated modifications are issued by the permitting authority following the regulatory procedures for each type of permit, including the appropriate public participation process spelled out in Division 209. We propose to approve the changes because they clarify the public process for department-initiated modifications and spell out the permit termination procedures.

Permit Fees

In the submission, Oregon requested to remove a table of permit fees from the SIP (Table 2 to OAR 340-216-8020). This table includes the specific dollar amounts charged for various types of permit actions and is revised over time by the State for inflation and needed revenue adjustments. We propose to approve Oregon's request to remove the fee table from the SIP because the overall requirement for sources to pay pre-construction permit fees at OAR 340-216-8020(1) will remain in the SIP, consistent with the requirements of Clean Air Act section 110(a)(2)(L).^[13]

F. Division 222—Stationary Source Plant Site Emission Limits

Plant site emission limits (PSELs) are included in most Oregon air contaminant discharge permits and title V operating permits as a means of regulating plantwide increases and decreases in air emissions. Historically, PSELs were established by the Oregon DEQ at either source-specific levels or standardized “generic” levels for each pollutant. Generic PSELs were defined in the Oregon air regulations as annual limits set at one (1) ton less than the significant emission rate (SER) for each pollutant. In practice, a source with capacity less than the SER for a pollutant would often be assigned a generic PSEL in a permit. However, many such sources had actual emissions lower than the generic PSEL. This system was devised in 2001 as a permit streamlining practice that allowed owners or operators to increase emissions up to the generic PSEL without requiring a permit modification, if there were no physical modifications to the source. Oregon has since determined that the use of generic PSELs is no longer an appropriate permitting tool. In the submission, the State eliminated generic PSELs in favor of PSELs specific to an individual source or source category. The changes are described in the following paragraphs.

Oregon clarified in the general requirements for establishing PSELs at OAR 340-222-0035 that such limits must include aggregate insignificant activities, if applicable, because aggregate insignificant activities must be considered when determining new source review applicability under Division 224. We propose to approve this clarification because it is intended to make sure that sources are appropriately brought into the new source review permitting program for review.

The State repealed the generic PSEL option at OAR 340-222-0040 and all references to generic PSELs in Division 222. Oregon then revised the annual PSEL provisions in OAR 340-222-0041 to account for the repeal of the generic PSEL option and to further clarify how the permitting authority will establish all types of annual PSELs. Specifically, for a general ACDP, the permitting authority may establish a general PSEL for a pollutant based on the corresponding source category's maximum potential to emit that pollutant.^[14] For each source subject to a simple ACDP, a source-specific PSEL is established for each regulated pollutant based on the facility's potential to emit. In addition, for each source subject to a standard ACDP, the permitting authority will establish a source-specific PSEL for each regulated pollutant based on the facility's potential to emit, netting basis, or a level requested by the applicant, whichever is less. This approach is designed to yield permits that more accurately reflect actual emissions and to ensure the permitting authority has the opportunity to require and review air quality modeling for compliance with the short-term NAAQS.

Finally, Oregon clarified that an increase in the PSEL for PM₁₀ or PM_2.5 is subject to air quality analysis requirements but an increase in total particulate matter is not, as described in section II.H. of this preamble. In reviewing the repeal of generic PSELs and the changes to Division 222, we propose to approve the changes described as well as other changes Oregon made to the PSEL rules because they clarify and strengthen the SIP.

G. Division 224—New Source Review

Oregon revised the new source review (NSR) requirements in Division 224 to remove the expiration dates from NSR permits. The State made this change because the permitting authority must reissue an expired NSR permit in order to change NSR permit conditions. For certain sources subject to both NSR and title V, NSR permits must be incorporated into title V operating permits and this change to remove expiration dates is intended to eliminate the need for the source to reapply for the same permit and for the permitting authority to reissue the permit. We propose to approve the removal of NSR permit expiration dates because the EPA's NSR regulations at 40 CFR 51.161 through 166 do not mandate NSR permits expire after a specific duration and removal of the expiration dates does not affect the stringency of the SIP.

H. Division 225—Air Quality Analysis Requirements

Certain sources seeking permits in Oregon are subject to the air quality analysis requirements in Division 225. In the submission, the State added language to the procedural requirements in OAR 340-225-0030. Significant increases in total particulate matter emissions ^[15] do not require an air quality impact analysis for comparison to significant impact levels, PSD increments, and ambient air quality standards. However, if applicable, the Oregon DEQ may require an owner or operator to speciate particulate matter and conduct an air quality analysis for PM₁₀ and PM_2.5 . We propose to approve this clarification because it is appropriate to focus air quality analyses on PM_2.5 and PM₁₀ for comparison to the PM₁₀ and PM_2.5 NAAQS.

Oregon also corrected the rule language addressing analyses to determine compliance with the NAAQS, PSD increments, visibility and other requirements in OAR 340-225-0050 and OAR 340-225-0070 to consistently refer to a “proposed source or modification.” We propose to approve the changes because they correct inadvertent errors from a prior State rulemaking.

I. Division 226—General Emission Standards

The State revised the general emission standards for highest and best practicable treatment and control in Division 226. Specifically, Oregon revised OAR 340-226-0010 to state that the Oregon DEQ may establish permit conditions to prevent the degradation of air quality. Oregon added language to OAR 340-226-0140 to make clear that any air quality analysis must be conducted in accordance with the procedures in Division 225. The revisions also included changes to the same rule section clarifying that for existing sources, the permitting authority may conduct monitoring or modeling (or may require the source to conduct monitoring or modeling) to determine whether the source's emissions will cause or contribute to a new exceedance of an ambient air quality standard. In addition, OAR 340-226-0240 historically phased in tighter grain loading standards to limit particulate matter emissions from sources other than fuel and refuse burning.^[16] The tighter limits are now in effect and the State has removed the obsolete phase-in language. We propose to approve the changes because they are designed to improve permit program implementation and protect the NAAQS.

J. Division 228—Requirements for Fuel Burning Equipment

Oregon made similar changes to the fuel burning equipment requirements in Division 228 to remove obsolete language that historically phased in tighter emission limits. We propose to approve these housekeeping changes.

K. Division 232—Emission Standards for VOC Point Sources

Oregon revised the non-categorical emission standards at OAR 340-232-0040 to clarify that certain large VOC sources with no categorical Reasonably Available Control Technology (RACT) requirements are subject to case-by-case RACT determination by the Oregon DEQ. If a source is located in the Portland-Vancouver or Salem-Keizer areas ^[17] and has the potential to emit over 100 tons per year of VOC from aggregated, non-regulated emissions units based on the design capacity or maximum production or throughput capacity of the source operating 8,760 hours per year without the use of control devices or limits on hours of operation, it is subject to case-by-case RACT. A source that has complied with the NSR requirements in Division 224 and is subject to Best Available Control Technology (BACT) or Lowest Achievable Emission Rate (LAER) requirements is presumed to have met the Division 232 RACT requirements. In addition, a source may request relief from RACT by demonstrating to the Oregon DEQ that the aggregated, non-regulated emissions units are unable to emit more than 100 tons per year of VOC, based on the design capacity or maximum production or throughput capacity of the source operating 8,760 hours per year without the use of control devices. We propose to approve the changes because they make clear that a VOC PSEL is not sufficient to avoid this non-categorical RACT requirement.

The State also revised the surface coating in manufacturing requirements at OAR 340-232-0160 to clarify that surface coating operations not specifically listed in the rule are subject to OAR 340-232-0040. But the requirements do not apply to certain very small VOC sources.^[18] We propose to approve these minor changes.

L. Division 234—Emission Standards for Wood Products Industries

Oregon revised the emission standards for kraft pulp mills to clarify that sources subject to the particulate emission standards in Division 234 are not also subject to the grain loading standards in Divisions 226 and 228 and the opacity limits in Division 208. We propose to approve this clarification.

M. Division 21—General Emission Standards for Particulate Matter

The Oregon SIP contains certain expired rules that historically addressed industrial contingency requirements for selected PM₁₀ nonattainment areas in Oregon (OAR 340-021-0200 through 0245). In the submission, Oregon requested to remove the rule sections from the SIP because they have expired and are no longer in effect as a matter of State law. The expired rule sections applied only to coarse particulate (PM₁₀) nonattainment areas that failed to attain the 1987 PM₁₀ NAAQS by the applicable attainment date of December 31, 1994.^[19] There are no areas in which these rules apply because all PM₁₀ nonattainment areas in Oregon have attained the PM₁₀ standard and have been redesignated to attainment.^[20] We propose to approve the State's request to remove the Division 21 rules from the SIP because the rules are expired, apply nowhere in Oregon, were repealed by the State in 1998, no longer exist as a matter of State law, and as such, removal will not interfere with any applicable requirements concerning attainment and reasonable further progress, or any other applicable requirement of this chapter.

III. Proposed Action

The EPA is proposing to approve revisions to the Oregon SIP submitted on March 27, 2023.^[21] The following paragraphs detail our proposed incorporations by reference.

A. Rule Sections To Be Incorporated by Reference

The EPA is proposing to incorporate specific Oregon administrative rule sections by reference. Upon final action, the regulatory portion of the Oregon SIP, at 40 CFR 52.1970(c), will include the following provisions, State effective March 1, 2023:

• OAR 340-200-0020 General Air Quality Definitions (defining terms used in the Oregon air quality regulations);
• OAR 340-200-0025 Abbreviations and Acronyms (defining abbreviations and acronyms used in the Oregon air quality regulations);
• OAR 340-200-0035 Reference Materials (specifying the title and version of each reference material used in the Oregon air quality regulations);

• OAR 340-204-0300 Designation of Sustainment Areas ^[22] (identifying the areas in Oregon designated as sustaining the relevant air quality standard);

• OAR 340-204-0310 Designation of Reattainment Areas ^[23] (identifying the areas in Oregon designated as reattaining the relevant air quality standard);

• OAR 340-206-0010 Introduction (establishing significant harm levels for pollutants in areas based on priority level);
• OAR 340-208-0110 Visible Air Contaminant Limitations (establishing limits and test methods for visible emissions);
• OAR 340-209-0080 Issuance or Denial of a Permit (specifying procedures for issuing and denying permits, including how to request a hearing to contest a permit decision);
• OAR 340-210-0100 Registration in General (identifying categories of sources that are required to register with the Oregon DEQ);
• OAR 340-210-0205 Notice of Construction and Approval of Plans: Applicability and Requirements, except paragraph (3) (listing source types and activities that require notice to the Oregon DEQ prior to construction);
• OAR 340-210-0225 Notice of Construction and Approval of Plans: Types of Construction/Modification Changes (establishing the activities that qualify for each type of notice of construction);
• OAR 340-210-0230 Notice of Construction and Approval of Plans: Notice to Construct Application (requiring the specific information to be submitted in an application);
• OAR 340-210-0240 Notice of Construction and Approval of Plans: Construction Approval (specifying what level of approval from Oregon DEQ is needed before a source may begin construction);
• OAR 340-210-0250 Notice of Construction and Approval of Plans: Approval to Operate (specifying what is required of a source to obtain approval to operate);
• OAR 340-214-0110 Reporting: Request for Information (requiring sources to respond to Oregon DEQ requests for information);
• OAR 340-214-0114 Reporting: Records; Maintaining and Reporting (detailing when and how to record and report data);
• OAR 340-214-0130 Reporting: Information Exempt from Disclosure (establishing that trade secrets and other eligible data may be exempt from disclosure);
• OAR 340-216-0020 Applicability and Jurisdiction (identifying source categories subject to air contaminant discharge permits);
• OAR 340-216-0025 Types and Permits (identifying the types of air contaminant discharge permits);
• OAR 340-216-0040 Application Requirements (spelling out the information required to be included in permit applications);
• OAR 340-216-0054 Short Term Activity ACDPs (listing the pilot and other time-limited activities that may be eligible for a short term activity ACDP);
• OAR 340-216-0056 Basic ACDPs (identifying the contents of a basic ACDP);
• OAR 340-216-0060 General Air Contaminant Discharge Permits (identifying the contents of a general ACDP);
• OAR 340-216-0064 Simple ACDPs (identifying the contents of a simple ACDP);
• OAR 340-216-0066 Standard ACDPs (identifying the contents of a standard ACDP);
• OAR 340-216-0068 Simple and Standard ACDP Attachments (allowing Oregon DEQ to add requirements to existing simple and standard ACDP permits);
• OAR 340-216-0082 Expiration, Termination, Reinstatement or Revocation of an ACDP (regulating when and how ACDPs expire, are terminated, reinstated or revoked);
• OAR 340-216-0084 Department Initiated Modification (establishing a means by which Oregon DEQ may modify an ACDP when needed);
• OAR 340-216-8010 Table 1—Activities and Sources (listing which source categories and associated activities must obtain an ACDP);
• OAR 340-216-8020 Table 2—Air Contaminant Discharge Permits, except paragraph (2) and Table 2 (requiring sources to pay ACDP fees to the Oregon DEQ);
• OAR 340-222-0020 Applicability and Jurisdiction (requiring that plant site emission limits are included in most ACDPs and title V operating permits);
• OAR 340-222-0035 General Requirements for Establishing All PSELs (describing how plant site emission limits are established and how they are revised);
• OAR 340-222-0041 Annual PSELs (prescribing how annual plant site emission limits are established on a source-specific basis);
• OAR 340-222-0042 Short Term PSEL (establishing short term limits for sources located in areas with an established short term significant emission rate);
• OAR 340-222-0046 Netting Basis (establishes netting basis requirements);

• OAR 340-224-0030 New Source Review Procedural Requirements (establishing application and processing procedures for new source review permits);

• OAR 340-224-0520 Net Air Quality Benefit Emission Offsets: Requirements for Demonstrating Net Air Quality Benefit for Ozone Areas (requiring certain sources to offset emissions in areas with ozone problems);
• OAR 340-224-0530 Net Air Quality Benefit Emission Offsets: Requirements for Demonstrating Net Air Quality Benefit for Non-Ozone Areas (requiring sources to offset emissions in areas with particulate matter problems);
• OAR 340-225-0030 Procedural Requirements (prescribing the procedures for air quality analysis);
• OAR 340-225-0050 Requirements for Analysis in PSD Class II and Class III Areas (establishing the modeling requirements for sources in PSD class II and III areas);
• OAR 340-225-0070 Requirements for Demonstrating Compliance with Air Quality Related Values Protection (describing how to comply with limits established for national parks, wilderness, and other areas);
• OAR 340-226-0100 Highest and Best Practicable Treatment and Control: Policy and Application (requiring appropriate conditions in permits to control and treat emissions to the highest extent);
• OAR 340-226-0130 Highest and Best Practicable Treatment and Control: Typically Achievable Control Technology (TACT) (laying out when and how the Oregon DEQ will make typically achievable control technology determinations);
• OAR 340-226-0140 Highest and Best Practicable Treatment and Control: Additional Control Requirements for Stationary Sources of Air Contaminants (providing that the Oregon DEQ will establish additional control requirements to protect the NAAQS, visibility, and other public health and environmental goals);
• OAR 340-226-0210 Grain Loading Standards: Particulate Emission Limitations for Sources Other Than Fuel Burning Equipment, Refuse Burning Equipment and Fugitive Emissions (establishing particulate emission standards for non-fuel burning equipment);
• OAR 340-228-0210 General Emission Standards for Fuel Burning Equipment: Grain Loading Standards (setting grain loading standards for fuel-burning equipment);
• OAR 340-232-0030 Definitions (defining terms used in the rules establishing emission standards for VOC point sources);
• OAR 340-232-0040 General Non-Categorical Requirements (spelling out general case-by-case RACT requirements for VOC point sources);
• OAR 340-232-0090 Bulk Gasoline Terminals Including Truck and Trailer Loading (VOC emission limits for bulk gasoline terminals);
• OAR 340-232-0160 Surface Coating in Manufacturing (VOC emission limits for surface coating operations);
• OAR 340-232-0170 Aerospace Component Coating Operations (VOC emission limits for component coating in the aerospace industry);
• OAR 340-234-0010 Definitions except (8) and (10) (defining terms used in the rules establishing emission standards for the wood products industry);
• OAR 340-234-0210 Kraft Pulp Mills: Emission Limitations, except references to total reduced sulfur (setting emission limits for kraft pulp mills);
• OAR 340-236-8010 Hot Mix Asphalt Plants: Table—Process Weight Table (requiring hot mix asphalt plants to comply with specific process weight discharge rates);

B. Rule Sections To Be Removed From Incorporation by Reference

The EPA is proposing to remove from incorporation by reference the following Oregon administrative rule sections:

• OAR 340-210-0215 Notice of Construction and Approval of Plans: Requirement, State effective April 16, 2015 (requirements to notify the Oregon DEQ prior to constructing or modifying a subject source);
• OAR 340-222-0040 Generic Annual PSEL, State effective April 16, 2015 (establishing generic plant site emission limits for subject sources that emit less than the significant emission rate);
• OAR 340-021-200 Purpose, State effective May 1, 1995 (describing the purpose of contingency control requirements for existing industrial sources in coarse particulate matter nonattainment areas);
• OAR 340-021-205 Relation to Other Rules, State effective March 10, 1993 (describing the relation of contingency control requirements to other regulations);

• OAR 340-021-210 Applicability, State effective March 10, 1993 (stating that contingency control requirements shall apply if the EPA determines an area has failed to attain the PM₁₀ standard by the applicable attainment date);

• OAR 340-021-215 Definitions, State effective March 10, 1993 (establishing definitions used in the contingency control requirements);
• OAR 340-021-220 Compliance Schedule for Existing Sources, State effective March 10, 1993 (setting the compliance schedule for sources to install emissions control systems as a contingency control requirement);
• OAR 340-021-225 Wood-Waste Boilers, State effective March 10, 1993 (limiting emissions from wood-waste boilers to a specific rate as a contingency control requirement);
• OAR 340-021-230 Wood Particle Dryers at Particleboard Plants, State effective March 10, 1993 (limiting emissions from wood particle dryers to a specific rate as a contingency control requirement);
• OAR 340-021-235 Hardboard Manufacturing Plants, State effective March 10, 1993 (limiting emissions from hardboard manufacturing plants to a specific rate as a contingency control requirement);
• OAR 340-021-240 Air Conveying Systems, State effective March 10, 1993 (limiting emissions from air conveying systems to a specific rate as a contingency control requirement); and
• OAR 340-021-245 Fugitive Emissions, State effective March 10, 1993 (requiring wood products manufacturing plants to limit fugitive emissions as a contingency control requirement).

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).

Also in this document, the EPA is proposing to remove in a final rule, regulatory text from incorporated by reference, as described in section III. of this preamble.

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, 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:

• 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 14094 (88 FR 21879, April 11, 2023);

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• 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.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the proposed rule would not have Tribal implications and would not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its SIP submission; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this proposed action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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: March 26, 2024.

Casey Sixkiller,

Regional Administrator, Region 10.

Footnotes

1.  See Clean Air Act section 109.

2.  See Clean Air Act section 110.

3.  See Clean Air Act section 304.

4.  We note that we have not described minor wording changes and clarifications that do not alter the meaning of the rules. We also note that we intend to address the submitted changes to Division 214, related to stationary source reporting requirements, in a separate action.

5.  See OAR 340-200-0020 General Air Quality Definitions.

6.  Uncombined water means droplets of water that have not combined with hygroscopic particles or do not contain dissolved solids.

7.  If installed, constructed or last modified after June 1, 1970. Such equipment installed before that date is limited to 0.20 grains per standard cubic foot.

8.  Registered sources include sources such as motor vehicle surface coating operations, dry cleaners using perchloroethylene, and other types of smaller sources. Registering such sources helps the Oregon DEQ inventory statewide emissions, provide technical assistance, and communicate with owners and operators.

9.  More specifically, the construction or modification would: have emissions from any new, modified, or replaced device or activity, or any combination of devices or activities, of less than or equal to the de minimis levels defined in OAR 340-200-0020; not result in an increase of emissions from the source above any PSEL; not result in an increase of emissions from the source above the netting basis by more than or equal to the SER; not be used to establish a federally enforceable limit on the potential to emit; and not require a technically achievable control technology determination under OAR 340-226-0130 or a maximum achievable control technology determination under OAR 340-244-0200.

10.  Activities that are expected to result in little or no change in emissions include, for example: vacuum pumps; hand-held sanding equipment; Lithographic printing equipment which uses laser printing; concrete application and installation; among numerous other activities. See submitted changes to OAR 340-210-0225 in the submission in the docket for this action.

11.  Specifically, construction or modification that would have emissions from any new, modified, or replaced device or activity, or any combination of devices or activities, of less than the significant emission rate (SER) defined in OAR 340-200-0020; not result in an increase of emissions from the source above any plant site emission limit (PSEL); not result in an increase of emissions from the source above the netting basis by more than or equal to the SER; not be used to establish a federally enforceable limit on the potential to emit; be used to establish a State-only enforceable limit on the potential to emit; not require a technically achievable control technology (TACT) determination under OAR 340-226-0130 or a maximum achievable control technology (MACT) determination under OAR 340-244-0200; and not cause or contribute to a new exceedance of the NAAQS for a new or replaced device or activity.

12.  Specifically, construction or modification that would result in emissions from any new, modified, or replaced device or activity, or any combination of devices or activities, of more than or equal to the SER defined in OAR 340-200-0020; result in an increase of emissions from the source above any PSEL before applying unassigned emissions or emissions reduction credits available to the source but less than the SER after applying unassigned emissions or emissions reduction credits available to the source; be used to establish a federally enforceable limit on the potential to emit; require a TACT determination under OAR 340-226-0130 or a MACT determination under 340-244-0200; or not cause or contribute to a new exceedance of a National Ambient Air Quality Standard adopted under OAR chapter 340, division 202 for a new or replaced device or activity.

13.  OAR-340-214-0820(a).

14.  Revised OAR 340-222-0041(1) states “For sources subject to a General ACDP or a General Oregon Title V Operating Permit, a PSEL may be set based on the potential to emit of the largest emitting source in that source category for all sources on that permit type in the State. PSELs will be set for all regulated pollutants emitted at more than the de minimis emission level.” The EPA interprets this to mean that the PSEL may be set based on the potential to emit of the largest emitting source in the source category for which the permitting authority issued the General ACDP. For example, the Oregon DEQ has issued a General ACDP for portable and stationary rock crushers, screens, and associated material handling activities (SIC 1442): Permit Number AQGP-008 (available at https://www.oregon.gov/​deq/​FilterPermitsDocs/​AQGP-008.pdf). Revised OAR 340-222-0041(1) permits the Oregon DEQ to set the PSELs for sources eligible under this General ACDP to the potential to emit of the largest emitting portable and stationary rock crusher, screening, and material handling source that holds a current General ACDP under AQGP-008 in Oregon. The EPA further understands that a source with the potential to emit equal to or greater than the significant emission rate (SER) for a pollutant is subject to a standard ACDP and therefore any PSEL revisions for sources subject to General ACDPs will always be lower than prior Generic PSELs.

15.  Significant in this context means equal to or greater than the SER.

16.  Fuel and refuse burning are regulated in Divisions 228 and 230, respectively.

17.  See OAR 340-232-0020.

18.  Specifically, sources whose VOC potential to emit before add on controls from activities identified in section (5) is less than 10 tons per year; sources with VOC actual emissions before add on controls from activities identified in section (5) are less than 3 pounds per hour; sources with VOC actual emissions before add on controls from activities identified in section (5) are less than 15 pounds per day. See OAR 340-232-0160.

19.  See 57 FR 13498, April 16, 1992, at page 13537. The applicable attainment date for PM₁₀ nonattainment areas classified as “moderate” was December 31, 1994. All designated PM₁₀ areas in Oregon were classified as moderate.

20.  See Oregon area designations codified at 40 CFR 81.338.

21.  We note that we have not described minor wording changes and clarifications that do not alter the meaning of the rules. We also note that we intend to address the submitted changes to Division 214, related to stationary source reporting requirements, in a separate action.

22.  Oregon revised the regulatory note only, not the regulatory text.

23.  Oregon revised the regulatory note only, not the regulatory text.