[Federal Register Volume 64, Number 182 (Tuesday, September 21, 1999)]
[Rules and Regulations]
[Pages 51051-51060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24447]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
[Docket #OR55-7270; FRL-6438-5]
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. The Lakeview, Oregon PM10 Control
Plan is intended to bring about the attainment of National Ambient Air
Quality Standards for particulate matter with an aerodynamic diameter
less than or equal to a nominal ten micrometers (PM10). The
implementation plan was submitted to satisfy Federal requirements for
moderate PM10 nonattainment areas.
DATES: This direct final rule is effective on November 22, 1999,
without further notice, unless EPA receives adverse comment by October
21, 1999. 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, EPA, Region 10, Office of Air Quality (OAQ-107), 1200
Sixth Avenue, Seattle, Washington 98101.
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,
DC 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 (OAQ-107), 1200 Sixth Avenue, Seattle Washington
98101, and State of Oregon Department of Environmental Quality, 811 SW
Sixth Avenue, Portland, Oregon 97204-1390.
FOR FURTHER INFORMATION CONTACT: Tracy Oliver, EPA, Region 10, Office
of Air Quality (OAQ-107), 1200 Sixth Ave, Seattle, Washington, 98101,
(206) 553-1388.
SUPPLEMENTARY INFORMATION:
I. Background
A. Applicable PM10 Standard and Initial Area Designations
The Clean Air Act \1\ (Act) requires EPA to reevaluate the health-
based National Ambient Air Quality Standards (NAAQS) every five years
to consider changes based on new scientific information. On July 1,
1987, EPA revised the particulate matter NAAQS to reflect new evidence
that smaller particles pose an increased threat to human health and the
environment (52 FR 24634). Upon revision, PM10 was selected as the new
indicator for particulates.
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\1\ The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Pub. L. 101-549, 104 Stat. 2399. References
herein are to the Clean Air Act, as amended. The Clean Air Act is
codified, as amended, in the U.S. Code at 42 U.S.C., Sections 7401,
et seq.
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EPA replaced the old total suspended particulate (TSP) standard
with new primary and secondary standards for PM10. The new 24-hour
primary and secondary standard for PM10 was set at 150 micrograms per
cubic meter (g/m\3\) with no more than one allowable
exceedance per year within a three-year time frame. The new annual PM10
standard was set at 50 g/m\3\ expected annual arithmetic mean
with no allowable exceedances.
Concurrent with the new standards, EPA promulgated revisions to 40
CFR parts 51 and 52 and implementation guidance for PM10 NAAQS (52 FR
24672). These revisions to 40 CFR Parts 51 and 52 established
requirements for the preparation, adoption, and submittal of State
Implementation Plans (SIPs) and set forth requirements for the
Administrator's approval and promulgation of SIP revisions.
When Congress revised the Act on November 15, 1990, it codified the
EPA's 1987 PM10 NAAQS revisions and designated PM10 areas under Section
107. This revision also changed SIP requirements for particulate matter
(PM) nonattainment areas.\2\
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\2\ Title 1, Subparts 1 and 4 contain revisions applicable to
all nonattainment areas and those specific to PM10 nonattainment
areas. At times, these provisions overlap or conflict. Because EPA
is describing its interpretations here in broad terms, the reader
should refer to the General Preamble (57 FR 13498) to better clarify
the requirements that authorize this action.
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The General Preamble for the implementation of Title I of the
amended Act states that on the date of enactment, PM10 areas meeting
the qualifications of Section 107(d)(4)(B) of the Act became
nonattainment by operation of law. These areas included: (1) Areas with
the greatest probability of violating the old PM standard (Class I
areas in 52 FR 29383 and 55 FR 45799); and (2) other areas violating
the PM10 NAAQS prior to January 1, 1989. All other PM areas were
designated unclassifiable for PM10 (57 FR 13537).\3\
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\3\ Procedures for area classification and attainment date
determinations can be found in CAA section 188.
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The amended Act, in accordance with Section 107(d)(3), authorizes
EPA to promulgate the designation of new areas as nonattainment for
PM10 based on air quality data, planning and control considerations,
and/or any other air quality-related consideration that the
Administrator deems appropriate.
On April 22, 1991, EPA announced in 56 FR 16274 that it had
initiated the redesignation process for 16 areas. Other areas were
subsequently redesignated on a case-by-case basis.
B. Lakeview, Oregon Designation History
By operation of law upon enactment of the 1990 Clean Air Act
Amendments, Lakeview, Oregon was designated ``unclassifiable'' due to a
lack of air quality monitoring data (see CAA section
107(d)(4)(B)(iii)).
The State of Oregon subsequently conducted monitoring in the
Lakeview area to verify PM10 concentrations and
[[Page 51052]]
determine if its designation status should be revised.
On December 29, 1992, the Governor of Oregon submitted a letter
notifying EPA that the monitoring site in Lakeview had recorded an
exceedance of the 24-hour PM10 NAAQS. Because monitors in the area had
also recorded previous exceedances of the 24-hour PM10 NAAQS on January
4, 14, and 16, 1991, the exceedance in 1992 resulted in a violation of
the 24-hour PM10 NAAQS.
The Governor requested that Lakeview be redesignated to
nonattainment for PM10. Additionally, Oregon requested that the
nonattainment area be defined as the Lakeview Urban Growth Boundary.
EPA approved these requests and redesignated Lakeview as nonattainment
for PM10 and classified it as moderate effective December 25, 1993 (58
FR 49931).
On June 1, 1995, the Governor submitted to EPA the Lakeview, Oregon
PM10 Control Plan, Oregon's strategy for meeting the PM10 NAAQS as
expeditiously as practicable. This revision to the Oregon SIP, herein
referred to as the Lakeview Attainment Plan, is the subject of today's
action.
C. Attainment Plan Requirements for Moderate PM10 Nonattainment Areas
A moderate area PM10 attainment plan must include: (1) Provisions
to assure that Reasonably Available Control Measures (RACM), including
Reasonable Available Control Technology (RACT), are implemented within
four years of redesignation; (2) a permit program meeting the
requirements of Section 173 of the Act governing the construction and
operation of new and modified stationary sources of PM10; (3)
quantitative milestones demonstrating reasonable further progress
achieved every three years until the area is redesignated to attainment
(see CAA section 171(1)); and (4) a demonstration that the plan will
provide for the attainment of the PM10 NAAQS as expeditiously as
practicable within six years (or a demonstration that such a date is
not practicable).\4\
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\4\ See 57 FR 13498 and 57 FR 18070 for more detailed discussion
of EPA guidance and statutory requirements applicable to moderate
PM10 nonattainment areas.
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The State is also required to submit contingency measures, pursuant
to Section 172(c) of the Act. These additional controls take effect
without further action if EPA determines that an area has failed to
make reasonable further progress. Pursuant to today's action, the State
of Oregon was required to submit contingency measures within 18 months
of Lakeview's redesignation.
D. Lakeview PM10 Attainment Plan Development
The Lakeview PM10 Attainment Plan was developed by the Oregon
Department of Environmental Quality in consultation with the Town of
Lakeview, Lake County, the Oregon Department of Transportation, the
Oregon Department of Forestry, and EPA. It was prepared in accordance
with the requirements of the Clean Air Act and EPA regulations. It is
designed to achieve attainment of the NAAQS within the time frame
required by the Act.
II. Summary of Today's Action
EPA is approving the Lakeview Attainment Plan as a revision to the
Oregon State Implementation Plan. This plan contains Oregon's strategy
for meeting the PM10 NAAQS in Lakeview, a moderate PM10 nonattainment
area.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial submittal 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
adverse comments be filed. This rule will be effective November 22,
1999, without further notice unless the Agency receives adverse
comments by October 21, 1999.
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. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on November 22, 1999, and
no further action will be taken on the proposed rule.
III. Analysis of State Submission
Section 110(k) of the Act sets out provisions for EPA's review of
SIP submittals (57 FR 13565-13566). The decision to approve Lakeview,
Oregon PM10 Control Plan is based on EPA's belief that the submittal
satisfies all applicable Federal requirements for moderate PM10
nonattainment area SIP revisions.\5\ The following discussion
summarizes the basis for this finding.
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\5\ This document provides general information about EPA's
approval. More detailed discussion of EPA's analysis can be found in
the Technical Support Document for this action (Docket #OR55-7270).
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A. Procedural Background
The Act requires states to follow certain procedural requirements
when developing state implementation plans and plan revisions that will
be submitted to EPA. The Act also requires EPA to follow procedural
requirements when reviewing and acting on these submissions.
Section 110(a)(2) and Section 110(l) of the Act require that all
SIPs and SIP revisions undergo reasonable public notice and public
hearing prior to adoption by the State and approval by EPA.\6\ The Act
also requires EPA to determine whether a State submission is complete
before entering into further review and action (CAA section 110(k)(1);
57 FR 13565).
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\6\ Section 172(c)(7) of the Act also requires that plan
provisions for nonattainment areas meet applicable provisions of
section 110(a)(2).
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Activities that meet the requirements for reasonable public notice
on the part of the State include: (1) A public hearing on the Lakeview
Attainment Plan in Lakeview on February 16, 1995; (2) public notice for
the proposed rule revision via residential mailings and media
notifications.
Activities that meet the requirements for completeness
determination on the part of EPA include: (1) A completeness
determination conducted shortly after submittal; \7\ (2) a letter dated
October 17, 1995, sent to the Director of the Oregon Department of
Environmental Quality (ODEQ) indicating EPA had begun evaluating the
plan in accordance with the Act.
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\7\ EPA's completeness criteria for SIP submittals is specified
in 40 CFR Part 51, Appendix V.
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B. Accurate Emissions Inventory
Section 172(c)(3) of the Act requires that nonattainment plan
provisions include a comprehensive, accurate, and current inventory of
actual emissions from all sources of relevant pollutants in the
nonattainment area. The emissions inventory should also include a
comprehensive, accurate, and current inventory of allowable emissions
in the area (CAA section 110(a)(2)(k)).
An emissions inventory provides information about the relative
contribution of pollution sources within an airshed. It forms the basis
for evaluating control strategies, tracking emission reductions, and
measuring growth. Because this information is required for an area's
attainment
[[Page 51053]]
demonstration (or its demonstration that it cannot practicably attain)
an accurate emissions inventory must accompany each attainment plan
submission (57 FR 13539).
The Lakeview 1992 base year emissions inventory was submitted to
EPA with the attainment plan on June 1, 1995. The year 1992 was chosen
for Lakeview's base year emissions inventory because it is
representative of Lakeview air quality prior to the implementation of
PM10 control measures. The 1992 base year was used as the baseline for
setting emission reduction goals and determining an appropriate
attainment strategy.
The 1992 emissions inventory identifies the relative contribution
of the following major sources of PM10, before the implementation of
control measures. These contributions are calculated on an annual basis
as well as a 24-hour basis during the peak PM10 season (December 1-
February 28).
1992 Base Year--Calculated Emissions Summary 8
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Source 24-hour/peak season Annual
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Industry................................... 21%........................ 34%
Residential Woodheat....................... 58%........................ 42%
Solid Waste Disposal forestry/residential.. **......................... 2%
Fugitive Dust.............................. 11%........................ 19%
Transportation............................. 1%......................... 2%
Other...................................... 9% (incl yard waste)....... <1% (no="" yard="" waste).="" --------------------------------------------------------------------="" total..................................="" 1609="" lbs="" per="" day...........="" 141="" tons="" per="" year.="" ----------------------------------------------------------------------------------------------------------------="" **="" not="" calculated.="" \8\="" the="" source="" categories="" used="" in="" the="" plan="" to="" summarize="" annual="" and="" 24="" hour="" emission="" inventories="" contain="" inconsistencies.="" ``solid="" waste="" disposal''="" in="" the="" annual="" summary="" represents="" emissions="" from="" both="" residential="" and="" forestry="" burning.="" this="" category="" does="" not="" fully="" apply="" to="" the="" 24-hour="" worst-case="" inventory="" because="" forestry="" burning="" is="" a="" predominately="" summer-time="" activity.="" winter-time="" emissions="" from="" residential="" waste="" disposal="" are="" represented="" in="" the="" ``other''="" category="" in="" the="" 24-hour="" summary,="" but="" not="" in="" the="" ``other="" category="" for="" the="" annual="" summary.="" this="" inconsistency="" does="" not="" affect="" the="" approvability="" of="" the="" sip.="" in="" 1999,="" lakeview's="" attainment="" deadline,="" odeq="" projects="" the="" following="" contributions="" from="" the="" same="" source="" categories--both="" before="" and="" after="" the="" implementation="" of="" control="" measures="" in="" the="" attainment="" plan.="" 1999="" attainment="" year--projected="" emissions="" summary="">9
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Source 24-hour/no controls 24-hour/all controls
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Industry................................... 51%........................ 40%
Residential Woodheat....................... 36%........................ 34%
Solid Waste Disposal forestry/residential.. **......................... **
Fugitive Dust.............................. 7%......................... 14%
Transportation............................. 1%......................... 2%
Other...................................... 5% (incl. yard waste)...... 10% (incl. yard waste).
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Total.................................. 2732 lbs per day........... 1390 lbs per day.
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** Not calculated.
\9\ Annual calculations are omitted because Lakeview is in attainment for the annual PM10 NAAQS and in fact has
never exceeded the annual standard for PM10. EPA believes the control measures designed to bring the area into
attainment for the 24-hour standard will further reduce annual emissions.
EPA finds the emission inventory to be comprehensive and accurate.
EPA believes it provides a sufficient basis for the Lakeview attainment
demonstration. This finding is consistent with the requirements of
Sections 172(c)(3) and 110(a)(2)(K) of the Act.
C. RACM (Including RACT)
As noted, the Act requires states with moderate PM10 nonattainment
areas designated after the 1990 amendments to submit attainment plans
containing RACM (including RACT) within 18 months of designation. It
also requires that attainment plans provide for the implementation of
RACM (including RACT) no later than four years after designation (57 FR
13540).
Oregon met these deadlines by submitting the Lakeview Attainment
Plan in 1995 and implementing appropriate and timely control measures.
ODEQ determined RACM (including RACT) for Lakeview by: (1)
Conducting a cost and technical analysis of the area's emission
sources; and (2) evaluating available control measures for meeting the
attainment needs of the community.
The results of the emissions inventory and a chemical mass balance
analysis indicated that emissions from residential wood combustion were
the largest source category on days that exceeded the 24-hour PM10
NAAQS. This conclusion was based on an evaluation of an average
exceedance day using 1991-1993 24-hour data. On a worst-case day basis,
residential wood combustion emitted 77.0% of the PM10 mass. This is
equivalent to 163.1 g/m\3\ of the total average actual PM10
mass (211.8 g/m\3\). ODEQ's analysis also indicated that
actual industrial emissions were relatively minor in comparison,
emitting just 3.0% 10 of the total PM10 mass on an average
exceedance day, or 6.4 g/m\3\ of the total (211.8 g/
m\3\).
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\10\ The Lakeview Lumber Products facility ceased operation and
was dismantled in 1995, after the Lakeview SIP was submitted. ODEQ
estimated that this would reduce total industrial emissions in
Lakeview by one half.
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This analysis clearly showed that PM10 values that exceeded the 24-
hour NAAQS were linked to emissions from residential wood combustion.
As a result, ODEQ concluded that an effective attainment strategy for
the 24-hour NAAQS could focus controls on
[[Page 51054]]
this source category, specifically. More stringent controls on
industrial emissions appeared to offer limited benefit, serving only to
reduce what was already a minor contributor to exceedance day values.
Based on dispersion modeling, a RACT analysis, and the attainment
needs of the community, ODEQ determined that the level of control for
the two industrial sources that were operational at the time of
submittal already met the intent of RACT.11 Nevertheless,
the Lakeview Attainment Plan takes a protective approach and includes
two additional control elements.
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\11\ This finding is consistent with EPA's policy that RACM
(including RACT) does not require implementation of all available
control measures when: (1) an area can already achieve timely
attainment; and (2) additional controls will not appreciably
expedite attainment. See 57 FR 13540-13544.
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Revisions to ODEQ's New Source Review Rules will lower the emission
threshold that triggers offset requirements from 15 tons per year to 5.
This 66% reduction will safeguard reductions gained from other control
measures, ensuring they are not jeopardized by future industrial
growth.
Also, one major source agreed to relinquish emission credits
through a revision to the Plant Site Emission Limit in its Air
Contaminate Discharge Permit, permanently reducing its allowable
emissions by 70%.
EPA finds that the existing industrial controls in the Oregon SIP
and those elements identified in the Lakeview Attainment Plan meet the
RACT requirement for approvable RACM. This finding is supported by the
fact that the full complement of control measures in the Lakeview
Attainment Plan provide for attainment of the PM10 NAAQS by December
31, 1999.
1. Lakeview Attainment Strategy
Attainment of the 24-hour PM10 NAAQS by December 31, 1999, and
continued maintenance of the annual PM10 NAAQS are based on the
following creditable control measures: (1) Non-certified woodstove ban;
(2) voluntary woodstove curtailment program; (3) low-income woodstove
removal program; (4) residential open burning restrictions; and (5)
revision to a Plant Site Emission Limit (PSEL).
The following table identifies the control measures in Lakeview's
attainment strategy and summarizes anticipated emission reductions and
credits, where applicable.
Summary--Lakeview PM10 Attainment Strategy
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1999
Control measures--1999 Attainment Year 24-hr credit emission
requested reductions
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a.Non-certified Woodstove Ban............ 22%............ 215
b. Voluntary Woodstove Curtailment 30%............ 202
Program.
c. Winter Road Sanding Controls.......... none........... * *
d. Low-income Woodstove Removal Program.. 17%............ 88
e. Public Education Programs............. none........... * *
f. Residential Open Burning Restrictions 50%............ 8
\12\.
g. Wood Products PSEL Revisions.......... 60%............ 830
h. Industrial Significant Emission Rate.. none........... * *
i. Offset Restrictions................... none........... * *
j. Forestry Slash Burning................ none........... * *
Total reductions claimed................. ............... 1342
Reductions needed for attainment......... ............... 1007
Excess reductions........................ ............... 335
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* * Not calculated.
\12\ Page A-32 of the plan states the approximately 328 tons of
residential yard debris is burned each year between October and April
generating 2.6 tons of PM10. The emission reduction credit claimed for
residential open burning restrictions discussed in the attainment
strategy section of this notice is based on these emission estimates.
See also footnote 8.
EPA accepts the credits for these control measures as proposed.
This decision considers the fact that the Lakeview nonattainment area
has not monitored exceedance of the 24-hour PM10 NAAQS since 1994 and
has never exceeded the annual standard.
a. Non-certified Woodstove Ban. The State of Oregon adopted a
statewide rule prohibiting the sale of any used woodstove not certified
under Oregon's 1986 woodstove emission standard (OAR 340-34-010). In
addition, the Oregon State Building Code Agency amended its
administrative rules to prohibit the installation of non-certified used
woodstoves in new homes.
To enforce these provisions, ODEQ will investigate potential
violations of the non-certified woodstove ban and take appropriate
enforcement actions if necessary. ODEQ has also committed to public
education and outreach activities to increase public awareness and
compliance with the non-certified woodstove ban. The State Building
Code Agency will enforce the regulations prohibiting the installation
of non-certified woodstoves.
Prior to these regulations, approximately 21% of woodstoves
purchased were non-certified. As a result of this ban, each new
woodstove purchased in lieu of a non-certified woodstove will result in
an estimated 50% per unit reduction in PM10 emissions. ODEQ estimates
that this control will reduce Lakeview's PM10 emissions by 215 lbs per
day in the attainment year. EPA accepts the 22% credit claimed for this
control measure.
b. Voluntary Woodburning Curtailment Program. The Lakeview
Voluntary Woodburning Curtailment Program is designed to limit the use
of woodstoves and fireplaces when PM10 levels are most likely to exceed
the 24-hour NAAQS. This voluntary curtailment program has been in
operation and administered by the town of Lakeview since the fall of
1993.
The Lakeview Town Council formally adopted local ordinances
implementing the Lakeview Air Quality and Voluntary Woodburning
Curtailment Programs in February 1995. Also, the Lake County Board of
Commissioners adopted complementary ordinances in March 1995.
The plan specifies that the Lakeview's Voluntary Woodburning
Curtailment Program is operational between
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November 1 and February 28, when PM10 levels are typically elevated.
During this period, curtailment forecasts are made daily at 3:30 p.m.
Air quality forecasts are based on the Klamath Falls curtailment
advisory, a nearby community with similar airshed characteristics. If
the correlation between these communities does not continue, the plan
states ODEQ will develop a site specific forecasting equation for
Lakeview.
The Lakeview Voluntary Woodburning Curtailment Program involves a
three-tier advisory system with different burning restrictions based on
the risk of exceedance. The advisory levels are: (1) GREEN--no
restrictions, NAAQS violations unlikely, PM10 levels less than 80
/m\3\ expected; (2) YELLOW--restrict unnecessary wood burning,
NAAQS violations possible, PM10 levels between 81-150 /m\3\
expected; (3) RED--restrict all wood burning (except homes with
woodheat only), NAAQS violations likely, PM10 levels greater than 150
/m\3\ expected.
The Lakeview Voluntary Woodburning Curtailment Program includes a
woodstove survey and compliance protocol for conducting and evaluating
woodheating visual surveys. These survey procedures and data collection
tools assist Town officials with collecting information on compliance
rates and resulting emission reductions.
The goal of the Lakeview curtailment program is to achieve a 30%
compliance rate on the two to four days per year when NAAQS exceedances
are most likely. The program is administered by the Town of Lakeview
and endorsed by local ordinances. The Town of Lakeview conducts ongoing
assessments of curtailment compliance rates and focuses efforts as
needed on achieving its compliance goal.
ODEQ anticipates success in Lakeview similar to that achieved in
other communities in Oregon with voluntary curtailment programs,
including Medford, Klamath Falls, and La Grande.
EPA accepts the 30% credit claimed for this control measure based
on a 202 lbs per day emission reduction. This finding considers the
merit of the elements above, consistency with EPA guidance, and the
success of similar programs in Oregon.
c. Winter Road Sanding Controls. The base year emissions inventory
estimates that fugitive dust associated with roadways accounts for
approximately 11% of the worst-case day emissions. In winter, the
majority of these emissions are attributed to road de-icing and
application of anti-skid materials. Due to the seasonal nature of this
emission source, ODEQ chose not to pursue year-round RACM measures such
as paving or transportation reduction plans. Instead, the control
measures focus on reducing emissions from winter road sanding.
RACM for fugitive dust in Lakeview involves the following elements
to be carried out by the Oregon Department of Transportation: (1) The
use of cleaner, more durable aggregates; (2) the coordination with
local officials of rapid aggregate cleanup after snow episodes; and (3)
the continued study of liquid chemical deicers as an alternative to
conventional sanding material.
While no credit is claimed, it is expected that this measure will
reduce emissions when they are needed most, during winter-time
inversions when air quality is most likely to become compromised.
d. Low-income Woodstove Removal Program. The woodstove removal
program is an incentive based program that encourages the replacement
of non-certified woodstoves with cleaner burning alternatives, such as
certified stoves, kerosene heaters, and pellet stoves. The program
targets low to moderate income households that use woodstoves as the
primary source of heat.
In August 1994, the Town of Lakeview received a $200,000 State of
Oregon Community Block Grant for the program. Matching funds included:
(1) $5,000 and in-kind services from the Town of Lakeview; and (2)
$2,000 from Lake County. The total sum, $207,000, enabled Lakeview to
offer interest free, deferred payment loans for the replacement of
inefficient woodstoves.
The credit claimed for this control measure is based on the
assumption that non-wood heating systems would be the primary
replacements for non-certified woodstoves. This assumption is
consistent with County permit records that show an overwhelming
preference (90%) for kerosene heating systems in woodstove change-outs.
EPA accepts the 17% credit claimed for this control measure based
on an 88 lbs per day emission reduction.
e. Lakeview Public Education Program. ODEQ considers the Lakeview
Public Education Program to be a cornerstone of the attainment plan's
suite of residential wood combustion controls. This program is designed
to educate the community about the hazards of particulate air pollution
and encourage compliance with emission reduction programs.
Key elements of the public education program include: (1) radio
public service announcements; (2) posters and brochures; (3) bulk
mailings and mail inserts; (4) community meetings; (5) personal contact
to promote proper woodheating practices; (6) press releases on clean
air issues, Air Pollution Index Trends, and woodburning curtailment
calls; (7) newspaper advertisements and radio announcements; (8)
distribution of woodsmoke health effects information; (9) public
speaking engagements and symposiums; (10) coordination with advisory
committees; and (11) a burning advisory telephone system.
While no emission reduction credit is requested, these programs are
integral to the success of other control measures. EPA believes this
measure is central to the voluntary woodburning curtailment program,
partially justifying that credit. EPA believes the Lakeview Public
Education Program is an important part of the Lakeview attainment
strategy.
f. Residential Open Burning Restrictions. The Lakeview Open Burning
Ordinance contains restrictions on residential open burning within the
urban growth boundary. No open burning is allowed except by special
permit.
Permit conditions require that burning be allowed on GREEN
curtailment advisory days only. Violation of permit conditions is
punishable by civil penalty.
EPA accepts the 50% credit claimed for this control measure based
on an 8 lbs per day emission reduction.
g. Wood Products Plant Site Emission Limit Revisions. According to
the 1992 base year emission inventory, the Ostrander Construction
Company's Freemont Sawmill accounts for 25% of the point source
emissions. The facility's Plant Site Emission Limit (PSEL) as defined
in its 1992 air contaminant discharge permit contained a credit of 34.2
lbs per hour (15 tons per year) as a result of the previous shutdown of
the Wigwam burner. The company agreed to relinquish this credit to the
Lakeview airshed.
The subsequent air contaminant discharge permit, effective
September 29, 1994, reflected this reduction and changed the allowable
emissions from a total of 1,190 lbs per day to 360 lbs per day.
EPA accepts the 60% credit claimed for this control measure, based
on an 830 lbs per day emission reduction.
h. Industrial Significant Emission Rate. Oregon Administrative Rule
340-28-110 Significant Emission Rate provision for industrial sources
was amended to add the Lakeview Nonattainment area. This provision will
manage industrial emission growth by lowering the threshold for
significant emission rate increases that trigger
[[Page 51056]]
emission offset requirements for new and modified sources.
As a result of this provision, the significant emission rate that
triggers New Source Review for new and modified sources in Lakeview was
reduced from 15 to 5 tons per year.
No formal emission reduction credit is claimed; however, this
control measure is protective and will likely prevent increases
industrial emissions that are not accounted for in the attainment plan.
i. Offset Restrictions. The offset requirements in OAR 340-28-1930
require any emission increase greater than 5 tons per year be fully
offset. Emission increases greater than 15 tons per year require Lowest
Achievable Emission Rate (LAER) controls.
No formal credit is claimed for this control measure. These
provisions for future industrial growth are expected to protect the
emission reductions achieved with the credited control measures.
j. Forestry Slash Burning. To reduce potential smoke impacts from
forest slash burning, the Oregon Smoke Management Plan (ORS 477.515)
will be amended to create a special protection zone for the Lakeview
PM10 nonattainment area. This special protection zone will provide for
the following voluntary restrictions on prescribed burning within 20
miles of the nonattainment area: (1) prohibition on burning if weather
forecasts predict smoke impacts on the nonattainment area; (2)
monitoring of burns for at least three days for potential smoke impacts
on the nonattainment area; and (3) ban on fires from December 1 to
February 15 when RED woodburning curtailment days are in effect.
D. Attainment Demonstration
1. Requirements
As noted, moderate PM10 nonattainment areas designated after the
enactment of the 1990 Clean Air Act Amendments are required to submit
an attainment demonstration which includes air quality modeling (CAA
section 189(a)(1)(B)). This demonstration must show either the
attainment of the NAAQS as expeditiously as practicable within six
years of designation or that such a date is not practicable (CAA
section 188(c)(1)). The General Preamble sets out EPA's guidance on the
use of modeling for moderate area attainment demonstrations (57 FR
13539).
The 24-hour PM10 NAAQS is 150 g/m\3\. This standard is
attained when the expected number of days per calendar year with a 24-
hour average concentration above 150 g/m\3\ is equal to or
less than one. (40 CFR 50.600)
The annual PM10 NAAQS is 50 g/m\3\. This standard is
attained when the expected annual arithmetic mean concentration is less
than or equal to 50 g/m\3\.
While the Act requires SIP revisions for PM10 nonattainment areas
to include an attainment demonstration for both the 24-hour and annual
NAAQS, Lakeview has never exceeded the annual PM10 NAAQS. The monitored
24-hour exceedances which resulted in Lakeview's nonattainment
designation are well delineated as winter-time events caused primarily
by residential woodsmoke.
ODEQ requested in a August 15, 1994, letter to EPA that the
Lakeview Attainment Plan be allowed to omit a demonstration based on
the annual PM10 NAAQS. Based on review of the emission inventory and
demonstrated lack of annual exceedances, EPA concurred with this
request.
This decision is supported by the following facts: (1) The area has
never exceeded annual standard; (2) all 24-hour exceedances are limited
to the wood heating season; and (3) industrial sources do not
significantly impact exceedance values. These facts are documented in
the Lakeview Attainment Plan.
As a result of this earlier determination, the Lakeview Attainment
Plan provides an attainment demonstration based on the 24-hour PM10
NAAQS only. All the following discussion with regard to Lakeview's
attainment demonstration is based on the 24-hour NAAQS.
2. Methodology
EPA recommends that attainment demonstrations be conducted
according to the PM10 SIP Development Guideline (June 1987). Federal
regulations require demonstration of attainment ``by means of a
proportional model or dispersion model or other procedure which is
shown to be adequate and appropriate for such purposes'' (40 CFR
51.112). The preferred method is a combination of both dispersion and
receptor modeling.
The regulation and guideline also allows the use of dispersion
modeling alone, or the use of two receptor models in combination with
proportional roll-back. In cases where dispersion models can-not or
need-not be broadly applied, receptor modeling such as Chemical Mass
Balance (CMB) is recommended. ODEQ chose the CMB receptor modeling
approach for Lakeview due to the prevalence of stagnate, inverted
airshed conditions. Also, when worst-case days occur, the airshed is
heavily dominated by emissions from area sources such as woodstoves,
fireplaces, and fugitive dust. Because, EPA has not developed an
approved dispersion model for conditions of this type, Lakeview's
attainment demonstration was not based on dispersion modeling.\13\
---------------------------------------------------------------------------
\13\ EPA's 1990 memo from Robert Bauman regarding ``simple
airsheds'' allows the use of proportional roll-back modeling in lieu
of dispersion modeling when local impacts are attributable to only a
few, well characterized source categories.
---------------------------------------------------------------------------
ODEQ conducted an attainment demonstration using receptor modeling
proportional roll-back calculations to estimate the emission reductions
required in 1999 to achieve the 24-hour NAAQS. While this method was
relied upon as the primary authority for worst-case day source
apportionment, two additional methods were used to validate various
aspects of the CMB solutions. Emission inventory estimates and a
dispersion modeling analysis of hog fuel boiler impacts at a reference
monitor site were also used to verify the CMB results.
3. Results
The CMB, emission inventory, and dispersion modeling methods used
to characterize the Lakeview airshed generated results that were in
general agreement. This implies that the results form a credible basis
for the attainment demonstration.
The emission inventory and receptor modeling methods of
characterizing emissions in an airshed generated similar profiles for
Lakeview. The two methods implicated the same significant source
categories; and both methods generated analogous profiles for source
apportionment.
Source apportionment for a future-year 24-hour worst-case day
(attainment year 1999), suggested woodstoves were the primary source of
PM10. According to the emission inventory, woodstove emissions would
make up 46% of total PM10 mass on a 24-hour worst-case day in 1999.
Similarly, the CMB analysis shows that woodstove emissions would
comprise 69% of total PM10 mass.
Using a hypothetical PM10 mass value of 200 g/m\3\ for a
1999 worst-case day for illustration, the emissions inventory results
suggest that 92 g/m\3\ of this total would be from residential
woodsmoke. The CMB analysis results suggest that 138 g/m\3\ of
the total would be from residential woodsmoke. The proportion of total
mass attributable to woodsmoke are in general agreement. Both suggest
that significant reductions in this source could bring total 24-hour
[[Page 51057]]
PM10 mass values below the NAAQS, 150 g/m\3\.
Results from the dispersion modeling of industrial source emissions
from a hog fuel boiler were also in agreement with the CMB analysis.
The CMB analysis indicates a mean contribution of 6.3 g/m\3\.
The dispersion model indicates levels above and below this estimate
depending on the data set used (0.3 g/m\3\. - 7.4 g/
m\3\); however, the results overall support the CMB analysis,
indicating a relatively low impact from this industrial point source.
EPA guidance on CMB modeling specifies that the apportionment
should account for at least 80% of the measured aerosol mass. ODEQ's
analysis met this requirement and accounted for an average 92% mass.
ODEQ determined the 1992 24-hour worst-case day design value
without controls to be 217 g/m\3\ using EPA's table look up
procedure. Other estimates generated with EPA approved methods were
close to, but less than 217 g/m\3\. This base year design
value was used because it was more conservative and more protective.
This value was adjusted for emission growth expected to occur
between the base year (1992) and the attainment year (1999). This
resulted in a 1999 worst-case day design value of 232.8 g/
m\3\. This design value was used to estimate emission reductions needed
to attain the PM10 NAAQS in 1999.
Based on the 232.8 g/m\3\ design value, ODEQ estimated
that 1999 worst-case day emissions must be reduced by 37%, or 83
g/m\3\. This is equivalent to 1007 lbs PM10 emissions per day.
Thus, to attain the standard, the total emission reductions achieved by
the control measures in the attainment strategy must be greater than or
equal to 83 g/m\3\, or 1007 lbs per 1999 worst-case day.
The previously discussed control measures will reduce emissions by
1342 lbs per worst-case day, creating a 335 lbs per day safety margin.
According to proportional roll-back modeling, this reduction will
result in a worst-case day ambient concentration of 122.5 g/
m\3\. This concentration is below 150 g/m\3\ and demonstrates
attainment of the applicable 24-hour PM10 NAAQS.
EPA approves the attainment demonstration. This decision considers
the fact that the area has not monitored any PM10 exceedances since
1994. Air quality monitoring data indicates that Lakeview has attained
the 24-hour PM10 NAAQS and continues to maintain the annual PM10 NAAQS.
It is EPA's opinion that the appropriate air quality model was used
and all significant emission sources and impacts were considered. The
attainment plan demonstrates attainment of the 24-hour PM10 NAAQS by
1999 and maintenance through 2009. EPA also finds that the plan
demonstrates continued maintenance of the annual PM10 NAAQS through
2009.
E. PM10 Precursors
The control requirements that apply to major stationary sources of
PM10 also apply to major stationary sources of PM10 precursors, unless
EPA determines such sources do not contribute significantly to PM10
levels in excess of the NAAQS (CAA Sec. 189(e)). The General Preamble
contains guidance addressing how EPA intends to implement Section
189(e) (57 FR 13539-13542).
ODEQ's technical analysis indicates that emissions from industrial
point sources have considerably less impact on the 24-hour standard
than residential wood combustion in the Lakeview nonattainment area.
Residential wood combustion is further implicated because violations of
the 24-hour standard have consistently occurred during the wood burning
season during extended periods of cold temperature and airshed
stagnation.
The CMB analysis also indicates that secondary particulates are not
a major component of the area's PM10 emissions. This analysis
identifies that, on an adjusted average winter exceedance day, only
4.4% of the average actual PM10 mass is secondary particulate. This
equals approximately 9.32 g/m\3\ of the total average actual
(211.8 g/m\3\) per day.
EPA believes that sources of PM10 precursors do not contribute
significantly to PM10 levels in excess of the NAAQS in the Lakeview
nonattainment area. EPA grants Lakeview exclusion from the control
requirements authorized under Section 189(e) of the Act for major
stationary sources of PM10 precursors.
This general finding is based on the current character of the area.
It is possible that future growth will change the significance of
precursors in the area and warrant reconsideration of this finding.
F. Quantitative Milestones and Reasonable Further Progress
PM10 nonattainment area plan SIP revisions demonstrating attainment
must contain quantitative milestones to be achieved every three years
until the area is redesignated to attainment. Achieving these
incremental reductions in PM10 emissions demonstrates reasonable
further progress, as defined in Section 171(1) of the Act (see also CAA
section 189(c)).
In its interpretation of Section 189(c), the General Preamble
states that the first three-year period begins on the due date for the
applicable implementation plan revision containing control measures for
the area (57 FR 13539). EPA believes that at least two milestones
should be addressed initially. Once a milestone has passed, the state
must demonstrate that the milestone was achieved (CAA section
189(c)(2)).
The Lakeview submittal, received by EPA on June 1, 1995, must
demonstrate reasonable further progress for the time periods April
1995-1998 and April 1998-2001 unless the area attains sooner.
The Lakeview Attainment Plan demonstrates attainment of the PM10
NAAQS by December 31, 1999, and maintenance of the NAAQS through 2009.
The plan satisfies at least two milestones.
EPA approves the submittal as meeting the quantitative milestone
requirement currently due (April 25, 1998). This is supported by the
lack of monitored exceedances since 1994.
G. Enforceability
All emission limits and control in a SIP must be enforceable by
ODEQ and EPA (see CAA section 172(c)(6), CAA section 110(a)(2)(A), and
57 FR 13556). EPA criteria addressing the enforceability of SIP's and
SIP revisions were stated in a September 23, 1987, memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, Thomas L. Adams Jr., Assistant Administrator for Enforcement
and Compliance Monitoring, and Francis S. Blake, General Counsel,
``Review of State Implementation Plans and Revisions for Enforceability
and Legal Sufficiency''. Nonattainment area provisions must also
contain a program that provides for the enforcement of the control
measures and the regulation of modifications and construction of any
stationary source within the area as necessary to assure the NAAQS are
achieved (CAA section 110(a)(2)(c)).
EPA has reviewed the Lakeview Attainment Plan and finds it
enforceable with regard to the considerations discussed above. EPA
believes the plan, including those control measures relied upon for
attainment, satisfies applicable requirements and is fully enforceable
by the state.
The specific control measures contained in the Lakeview Attainment
Plan are discussed in this Federal Register notice under III. Analysis
of State Submission, C. RACM (including RACT). These control measures
apply throughout the nonattainment area and to all applicable
activities, including
[[Page 51058]]
residential woodstove use and other woodburning activities.
The following summarizes the state, city, county, and interagency
commitments that EPA approves as part of the Oregon SIP. These include
required control measures (noted with abstricts) and SIP strengthening
measures.
a. State of Oregon Rules. (1) OAR Division 34*. This division
establishes rules to control, reduce, and prevent air pollution caused
by residential woodheating emissions. Ban on Used Woodstove Sales--OAR
340-34-101 through 340-34-020. These rules establish requirements for
the sale of new and used woodstoves, specifically prohibiting the sale
and resale of non-certified woodstoves. Woodstove Certification
Program--OAR 340-34-045 through 340-34-115. These rules require all new
stoves, unless specifically exempted, to be certified by the
Administrator and be in compliance with particulate emission limits
specified in federal regulations.
(2) OAR 340-28-110. Revisions to the Significant Emission Rate Rule
apply ``Table 3'' Significant Emission Rate Levels to the Lakeview PM10
nonattainment area.
(3) OAR 340-28-1930. The Lakeview Industrial Emission Offset Rule
requires that new major sources or major modifications that increase
PM10 emissions more than 5 tons per year be fully offset. LAER
technology may be applied in lieu of offsets.
(4) OAR 340-30-200 through 340-30-255. These rules establish
industrial dust RACM and special requirements for operation and
maintenance plans for sources in the Lakeview urban growth area.
b. City Resolutions and Ordinances. (1) Resolution No. 402. This
Town of Lakeview resolution establishes and defines a Lakeview Air
Quality Improvement Program to cooperatively restore and maintain
healthful air quality within the Town of Lakeview.
(2) Ordinance No. 748*. This Town of Lakeview ordinance prohibits
the use of solid fuel burning devices during an Air Pollution Alert
Period (unless specifically exempted) and prohibits the rent or lease
of property not equipped with an Alternative Heat Source (on or after
two years from effective date).
(3) Ordinance No. 749*. This Town of Lakeview ordinance prohibits
the burning of solid waste and places additional restrictions on open
burning.
c. County Resolutions and Ordinances. (1) Resolution March 15,
1995. This Lake County resolution establishes the Lake County
Commission's commitment to cooperatively implement the Lakeview Air
Quality Improvement Program within the Lakeview urban growth boundary.
(2) Ordinance No. 29*. This Lake County ordinance prohibits the use
of solid fuel burning devices during an Air Pollution Alert Period
(unless specifically exempted) and prohibits the rent or lease of
property not equipped with an Alternative Heat Source (on or after two
years from effective date).
(3) Ordinance No. 30*. This Lake County ordinance prohibits the
burning of solid waste and places additional restrictions on open
burning.
d. Interagency Commitments. (1) Winter Road Sanding Program. An
Oregon Department of Transportation, Highway Division Memorandum of
Understanding, establishes the Agency's commitment to: (a) identify and
utilize cleaner sanding materials; and (b) clean-up spent sanding
material promptly.
(2) Forestry Smoke Management Plan. Oregon Department of Forestry
amendments to this plan (ORS 477.515) create a special protection zone
for the Lakeview nonattainment area.
H. Contingency Measures
As provided in Section 172(c)(9) of the Act, all moderate
nonattainment area SIPs that demonstrate attainment must include
contingency measures (57 FR 13543-13544).
Contingency measures consist of other available measures that are
not part of the area's initial control strategy. These measures must
take effect without further action by the State or EPA upon
determination by EPA that the area has either: (1) Failed to attain the
PM10 NAAQS by the applicable deadline; or (2) failed to make reasonable
further progress.
EPA guidance recommends that the emission reductions expected from
the implementation of the contingency measures equal 25% of the total
reduction in actual emissions expected from the plan's control strategy
(57 FR 13544). EPA believes that contingency measures must, at a
minimum, provide for continued progress toward attainment during the
time between an area's failure to attain and the state's adoption of
additional measures required by reclassification to serious, where
applicable (57 FR 13511).
The Lakeview Attainment Plan contains three contingency measures.
ODEQ estimates that these controls will reduce PM10 emissions an
additional 249 lbs per day by the year 1999 if implemented. This
represents 25% of expected 1999 emissions after the application of
other control measures. This meets the requirements for contingency
measure reductions applicable to moderate nonattainment areas. The
specific contingency measures are:
1. Mandatory Woodstove Curtailment Program
This measure upgrades the Lakeview voluntary curtailment program to
a mandatory program, including enforcement provisions, procedures,
penalties, and exemptions. This provision is contained in the Town of
Lakeview Air Quality Resolution No. 402. State backup authority exists
in OAR 340-34-150 through OAR 340-34-175. This requires the State to
implement a mandatory program should the local government fail to do
so.
2. Removal of Non-certified Woodstoves
This is State backup authority for requiring the removal of non-
certified woodstoves upon the sale of a home, as contained in OAR 340-
34-200 through 340-34-215. This provision will be implemented
automatically, if necessary to demonstrate RFP or attainment of the
NAAQS.
3. Prescribed Burning
As a contingency, a mandatory forest slash burning program would be
implemented if slash burning smoke is found to be a significant
contributor to PM10 nonattainment.
EPA approves the contingency measures for the Lakeview
nonattainment area.
IV. Implications of This Action
EPA approves the Lakeview, Oregon, PM10 Control Plan as a revision
to the Oregon State Implementation Plan. This attainment plan was
submitted to EPA on June 1, 1995.
EPA finds that the SIP revision meets the requirements for a
moderate nonattainment area and demonstrates attainment of the PM10
NAAQS by the applicable deadline. The fact that Lakeview has not
experienced an exceedance of the 24-hour PM10 NAAQS since 1994 and has
never exceeded the annual PM10 NAAQS further supports this finding.
EPA's action includes approval of the plan's contingency measures.
Nothing in this action should be construed as permitting, allowing,
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to any SIP shall be considered
separately in light of specific technical, economic, and environmental
factors, and in relation to relevant statutory and regulatory
requirements.
[[Page 51059]]
V. Administrative Requirements
A. Oregon Notice Provision
During EPA's review of a SIP revision involving Oregon's statutory
authority, a problem was detected which affected the enforceability of
point source permit limitations. EPA determined that, because the five-
day advance notice provision required by ORS 468.126(1) (1991) bars
civil penalties from being imposed for certain permit violations, ORS
468 fails to provide the adequate enforcement authority that a 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 Section 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 ORS 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 a state program from federal approval or
delegation. ODEQ responded to EPA's understanding of the application of
ORS 468.126(2)(e) and agreed that, because federal statutory
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.
B. Oregon Audit Privilege
Another enforcement issue concerns Oregon's audit privilege and
immunity law. 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.
C. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, Regulatory Planning and
Review.
D. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal Government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of Section 1(a) of Executive
Order 12875 do not apply to this rule.
E. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be Economically significant as defined under Executive
Order 12866, and (2) concerns an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency. This rule is not subject to Executive Order
13045 because it is does not involve decisions intended to mitigate
environmental health or safety risks
F. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified Section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments To provide meaningful and
timely input in the development of regulatory policies on matters that
significantly or uniquely affect their communities.
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of Section 3(b) of Executive Order 13084 do not apply to this rule.
G. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
Section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act,
[[Page 51060]]
preparation of flexibility analysis would constitute Federal inquiry
into the economic reasonableness of state action. The Clean Air Act
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
H. 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
annual costs to State, local, or tribal governments in the aggregate;
or to 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 promulgated does not
include a Federal mandate that may result in estimated annual 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.
I. 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. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
J. 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 November 22, 1999. 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
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: August 23, 1999.
Chuck Findley,
Acting 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--Oregon
2. Section 52.1970 is amended by adding paragraph (c) (128) to read
as follows:
Sec. 52.1970 Identification of plan.
* * * * *
(c) * * *
(128) On June 1, 1995 the State of Oregon submitted to EPA an
attainment plan for the Lakeview PM10 nonattainment area. This SIP
revision is designed to bring about the attainment of the PM10 NAAQS in
Lakeview and satisfy Federal requirements applicable to moderate PM10
nonattainment areas.
(i) Incorporation by reference.
(A) June 1, 1995 letter from the Director, Oregon Department of
Environmental Quality, the Governor's designee, to Region 10 Regional
Administrator, EPA, submitting the Lakeview, Oregon PM10 Control Plan.
(B) Revision to the Oregon State Implementation Plan: Lakeview,
Oregon PM10 Control Plan; Appendix 3, Lakeview Detailed Emissions
Inventories; Appendix 4, Ordinances and Commitments; Appendix 5,
Demonstration of Attainment; Appendix 9, Woodburning Curtailment Survey
Protocol; Appendix 10, Legal Description of Lakeview PM10 Nonattainment
Area.
(C) Supporting regulations approved as part of the revision, state
effective May 1, 1995: OAR 340-20-047; OAR 340-21-010, -012, -025, -
200; OAR 340-30-043, -300, -310, -340; OAR 340-34-150, -200, -210.
[FR Doc. 99-24447 Filed 9-20-99; 8:45 am]
BILLING CODE 6560-50-U
