Approval and Promulgation of Implementation Plans; Oregon: Open Burning and Enforcement Procedures, 918-921 [2013-00056]
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Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Proposed Rules
(c) Effective/applicability date. This
section applies after the date of
publication of the Treasury decision
adopting these rules as final regulations
in the Federal Register. The rules in
these proposed regulations may be
relied upon by the affected filers prior
to the publication of final regulations.
Steven T. Miller,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2012–31745 Filed 1–2–13; 4:15 pm]
BILLING CODE 4830–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2008–0903: FRL–9768–5]
Approval and Promulgation of
Implementation Plans; Oregon: Open
Burning and Enforcement Procedures
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing to
approve revisions to Oregon’s State
Implementation Plan submitted to the
EPA by the Oregon Department of
Environmental Quality on February 16,
2001, July 14, 2005, August 28, 2006,
and May 20, 2008. The February 16,
2001 submittal relates to open burning
rules. The July 2005, August 2006, and
May 2008 submittals relate to
enforcement procedures, civil penalties,
and procedures in contested cases
(appeals).
DATES: Written comments must be
received on or before February 6, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2008–0903, by any of the
following methods:
• www.regulations.gov. Follow the
on-line instructions for submitting
comments.
• Mail: Justin A. Spenillo, EPA,
Office of Air, Waste, and Toxics, AWT–
107, 1200 Sixth Avenue, Suite 900,
Seattle, Washington 98101.
• Email: R10Public_Comments@epa.gov.
• Hand Delivery: EPA, Region 10
Mailroom, 9th Floor, 1200 Sixth
Avenue, Seattle, Washington 98101.
Attention: Justin A. Spenillo, Office of
Air, Waste, and Toxics, AWT–107. Such
deliveries are only accepted during
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R10–OAR–2008–
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0903. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
the disclosure of which is restricted by
statute. Do not submit information that
you consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means the EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send an email
comment directly to the EPA without
going through www.regulations.gov,
your email address will be
automatically captured and included as
part of the comment that is placed in the
public docket and made available on the
Internet. If you submit an electronic
comment, the EPA recommends that
you include your name and other
contact information in the body of your
comment and with any disk or CD–ROM
you submit. If the EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
the EPA may not be able to consider
your comment. Electronic files should
avoid the use of special characters, any
form of encryption, and be free of any
defects or viruses.
Docket: All documents in the
electronic docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information the disclosure of which is
restricted by statute. Certain other
material, such as copyrighted material is
not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically in www.regulations.gov or
in hard copy during normal business
hours at the Office of Air, Waste and
Toxics, EPA Region 10, 1200 Sixth
Avenue, Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT:
Justin A. Spenillo at (206) 553–6125,
spenillo.justin@epa.gov, or the above
EPA, Region 10 address.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used, it is
intended to refer to the EPA.
Table of Contents
I. This Action
II. Why are we proposing to approve these
revisions?
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A. EPA’s Review of Oregon Administrative
Rules (OAR) Chapter 340, Division 264
Open Burning Rules (February 16, 2001
Submittal)
B. EPA’s Review of OAR Chapter 340,
Division 12 Rules (July 14, 2005 and
August 28, 2006 Submittals)
C. EPA’s Review of OAR Chapter 340
Division 11 Rules (May 20, 2008
Submittal)
D. EPA’s Review of OAR 340–200–0040
(February 16, 2001, July 14, 2005, August
28, 2006, and May 20, 2008 Submittals)
E. EPA’s Review of OAR 340–150–0250
(July 14, 2005 Submittal)
III. Summary of Action
IV. Statutory and Executive Orders Review
I. This Action
Title I of the Clean Air Act (CAA), as
amended by Congress in 1990, specifies
the general requirements for states to
submit State Implementation Plans
(SIPs) to attain and maintain the
National Ambient Air Quality Standards
(NAAQS) and EPA’s actions regarding
approval of those SIPs. In this action,
the EPA is proposing to approve and
incorporate by reference revisions to
Oregon’s open burning rules submitted
by the Oregon Department of
Environmental Quality (ODEQ) on
February 16, 2001. Oregon’s open
burning rules are currently codified at
Oregon Administrative Rules (OAR)
Chapter 340, Division 264.
The EPA is also proposing to approve
but not incorporate by reference (with
certain exceptions explained below) the
enforcement provisions in Chapter 340,
Division 12 submitted by ODEQ on July
14, 2005 and August 28, 2006.
We are also proposing to approve but
not incorporate by reference revisions
related to procedures in contested cases
(that is, appeals from ODEQ actions)
found at OAR Chapter 340, Division 11.
These revisions were submitted by
ODEQ on May 20, 2008.
Each of the above described
submittals (the February 16, 2001, July
14, 2005, August 28, 2006, and May 20,
2008 submittals) contains an
amendment to OAR 340–200–0040,
which describes the State’s procedures
for adopting its Clean Air Act
Implementation Plan and references all
of the state air regulations that have
been adopted by the Environmental
Quality Commission for approval into
the SIP (as a matter of state law),
whether or not they have yet been
submitted to or approved by the EPA.
We are proposing no action on the
revisions to OAR 340–200–0040 in each
of ODEQ’s SIP submittals because it is
unnecessary to take action on a
provision addressing State SIP adoption
procedures and because the federallyapproved SIP consists only of
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regulations and other requirements that
have been submitted by ODEQ and
approved by EPA.
Finally, the EPA is proposing to take
no action on the expedited enforcement
process set forth in OAR 340–150–0250
included in ODEQ’s July 14, 2005
submittal because this section applies to
underground storage tank regulations
and does not relate to attainment or
maintenance of the NAAQS or other
requirements of section 110 of the CAA.
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II. Why are we proposing to approve
these revisions?
We are proposing to approve the SIP
revisions submitted by ODEQ on
February 16, 2001; July 14, 2005; August
28, 2006; and May 20, 2008, subject to
the exceptions discussed in more detail
below, because they serve to clarify and
strengthen Oregon’s existing SIP and are
consistent with CAA requirements. A
more detailed explanation of the basis
for our approval is provided below and
in the materials included in the docket.
A. EPA’s Review of OAR Chapter 340,
Division 264 Open Burning Rules
(February 16, 2001 Submittal)
The federally-approved open burning
rules previously codified at OAR
Chapter 340, Division 23, have been
recodified at OAR Chapter 340, Division
264. In addition to the recodification,
ODEQ’s February 16, 2001 submittal
includes revisions to ODEQ’s federallyapproved open burning rules that fall
into several categories: changes related
to growth, additional requirements,
delegation, alterations to exemptions,
and clarifications. The first category of
revisions updates the list of open
burning control areas to reflect
population growth since the SIP was
last revised. For example, commercial
burning is now prohibited except by
permit in Madras, Tillamook, and
Warranton, and adjoining areas within
three miles of these cities’ limits (all
located in Lincoln County). See OAR
340–264–0100 (previously at OAR 340–
023–055). In general, this category of
revisions imposes more stringent
requirements on additional geographic
areas, and thus makes the open burning
requirements more stringent.
A second category consists of
revisions that impose additional
requirements in all geographic areas and
thus make the open burning regulations
overall more stringent. For example,
OAR 340–264–0050(2) (previously at
OAR 340–023–0040) now requires that
a person responsible for a fire not only
constantly attend the open burning, but
also be capable of and have the
necessary equipment for extinguishing
the fire and completely extinguish the
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fire before leaving it. As another
example, OAR 340–264–0060(8)
(previously at OAR 340–023–0040)
requires that most open burning debris
be burned on site unless a letter permit
is issued.
OAR 340–264–0010 and -0075 are
new provisions that allow ODEQ to
delegate authority to issue and enforce
open burning permits to a city, county,
fire protection district, forest protection
district or other state agency that ODEQ
determines is capable of effectively
administering the permit program and
authorizes ODEQ to withdraw any such
delegation upon a finding that the entity
is not effectively administering the
program. Given the narrow scope of the
delegation to local agencies, that the
delegated authority will continue to be
carried out under the SIP-approved
open burning regulations, and that
ODEQ has the ultimate responsibility
under this provision, EPA believes these
provisions do not affect the stringency
of ODEQ’s open burning regulations and
are consistent with the requirements of
the CAA. See CAA 110(a)(2)(E).
Another category of revisions to
ODEQ’s open burning rules exempts
open burning that is subject to
restrictions under the current SIP. OAR
340–264–0040 (previously at OAR 340–
023–0035) adds three narrow activities
to the list of activities exempt from
ODEQ’s open burning rules: fires set for
disposal of dry tumbleweed; agricultural
burning for disease or pest control when
authorized in writing by the Department
of Agriculture; and open burning of
animal carcasses by the Department of
Agriculture because of an animal
disease emergency. That regulation also
expands the exemption for slash
burning on forest land conducted under
Oregon’s Smoke Management program
to lands within one-eighth of a mile of
forest land. Given the very narrow scope
of these changes and the other revisions
that make ODEQ’s open burning rules
more stringent than the open burning
rules currently approved in the SIP,
EPA believes these revisions will not
interfere with attainment or
maintenance of the NAAQS or other
requirements of the CAA.
The remaining revisions clarify
existing requirements. For example,
revisions to OAR 340–264–0050
(previously at OAR 340–023–0040)
clarify that persons responsible for open
burning activities are also strictly liable
for violations of the rules and clarify
ODEQ’s authority to extinguish existing
fires. As another example, revisions to
OAR 340–264–0040(3) (previously at
OAR 340–023–035(3)) clarify that open
burning fires otherwise exempt from the
open burning rules are still subject to
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the requirements and prohibitions of
local jurisdictions and the State Fire
Marshall.
One set of clarifications to ODEQ’s
rules requires further discussion. Based
on statutory clarifications to ODEQ’s
authority to regulate agricultural open
burning in 1999, ODEQ has revised its
open burning rules to make clear that it
does not have authority to regulate
agricultural open burning except for its
explicit statutory and regulatory
authority to regulate field burning in the
Willamette Valley as provided in ORS
468A.555 to –620 and OAR Division
340, Chapter 266. The open burning
rules currently in the SIP do have
provisions that purport to make
agricultural open burning in some areas
outside of the Willamette Valley subject
to the general statewide requirements
and prohibitions for open burning. See,
e.g., OAR 340–023–022, –040, –042,
–055, –060, –065, –070, –075, –080,
–085, –090. The underlying statutory
authority approved into the SIP,
however, has for many years exempted
all agricultural operations and the
growing or harvesting of crops from
regulation—except for field burning in
the Willamette Valley regulated under
ORS 468A.555 to 468A.620. See 56 FR
30006 (July 30, 1991); 60 FR 37013 (July
19, 1995). On December 27, 2011, EPA
approved revisions to Oregon’s SIP
which include statutory and regulatory
changes narrowing the exemption for
agricultural operations (76 FR 80747).
These changes, however, narrow the
agricultural operations exemption only
to the extent necessary to meet the
requirements of the CAA. Because there
is no express requirement to regulate
agricultural open burning in the CAA
and no information showing that the
lack of regulation of agricultural open
burning in Oregon is interfering with
attainment or maintenance of the
NAAQS, the most recent SIP revisions
to the agricultural operations exemption
do not have a bearing on whether the
regulation of agricultural open burning
has ever been or currently is subject to
regulation by ODEQ. EPA therefore
concludes that agricultural open
burning (except for field burning in the
Willamette Valley) has not previously
been subject to regulation by ODEQ
under the SIP and, therefore, Oregon’s
revision of its open burning rules to
make this clear (and EPA’s approval of
those revisions) does not affect the
stringency of the SIP-approved open
burning rules.
Based on EPA’s review and analysis
of OAR Chapter 340, Division 264, EPA
is proposing to approve this revision to
Oregon’s SIP as meeting the
requirements of section 110 of the Clean
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Air Act. In addition, EPA proposes to
remove from the SIP the regulations
previously codified at OAR Chapter 340,
Division 023 because they have been
recodified and no longer exist at the
location previously approved in the SIP.
B. EPA’s Review of Division 12 Rules
(July 14, 2005 and August 28, 2006
Submittals)
ODEQ has submitted two SIP
revisions to OAR 340, Division 12, one
on July 14, 2005 and one on August 28,
2006. Division 12 contains enforcement
procedures and civil penalty provisions
that apply across all programs
implemented by ODEQ, including the
air quality regulations that EPA has
approved into the SIP. Division 12
provides the authority and procedures
under which ODEQ notifies regulated
entities of violations, determines the
appropriate penalties for violations, and
assesses penalties for such violations.
The revisions to Division 12 made by
ODEQ in 2005 and 2006 clarify the
differences between formal and informal
enforcement processes, make
adjustments to the penalty matrices, and
streamline and reorganize the rules to
more closely track ODEQ’s enforcement
and penalty calculation process.
EPA has reviewed the revisions to
Division 12 and finds that they continue
to provide ODEQ with adequate
authority for enforcing the SIP as
required by Section 110 of the CAA and
40 CFR 50.230(b). Importantly, OAR
340–012–0160(3) gives ODEQ the
discretion to deviate from the penalty
matrices and assess penalties of up to
$10,000 per day, per violation based on
the facts and circumstances of the
individual case. EPA is therefore
proposing to approve into the SIP the
revisions to Division 12 submitted by
ODEQ, subject to the qualifications and
in the manner discussed below.
First, where ODEQ submitted a
regulation in Division 12 as part of its
July 14, 2005 submittal and that
regulation was subsequently revised and
submitted as part of ODEQ’s August 28,
2006 submittal, EPA is proposing to
approve the version of the regulation
submitted as part of the August 28, 2006
submittal. The docket contains a chart
showing the version of the regulations
in Division 12 we are approving.
Second, EPA’s authority to approve
SIPs extends to provisions related to
attainment and maintenance of the
NAAQS and carrying out other specific
requirements of Section 110 of the CAA.
Therefore, EPA is not approving the
following regulations in Division 12 that
do not relate to air emissions: OAR–
340–012–0055, –0060, –0065, –0066,
–0067, –0068, –0071, –0072, –0074,
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–0079, –0081, –0083, –0097. In
addition, EPA is approving the
remaining sections in Chapter 340,
Division 12 only to the extent they
relate to enforcement of requirements
contained in the Oregon SIP.
Finally, although EPA is approving
the rules in Division 12 in the manner
discussed above, EPA is not
incorporating these rules by reference
into the Code of Federal Regulations
because EPA relies on its independent
enforcement procedures and penalty
provisions in bringing enforcement
actions and assessing penalties under
the CAA.
In approving these SIP revisions, EPA
also notes that ORS 468.126 prohibits
ODEQ from imposing a penalty for
violation of an air, water or solid waste
permit unless the source has been
provided five days’ advanced written
notice of the violation and has not come
into compliance or submitted a
compliance schedule within that fiveday period. By its terms, the statute does
not apply to Oregon’s Title V program
or to any other program if the
application of the notice provision
would disqualify the program from
Federal delegation. Oregon has
previously confirmed that, because the
application of the notice provision
would preclude EPA approval of the
Oregon SIP, no advance notice is
required for violation of SIP
requirements.
C. EPA’s Review of Division 11 Rules
(May 20, 2008 Submittal)
Oregon’s May 20, 2008 submittal
revises OAR Chapter 340, Division 11,
which addresses procedures in
contested cases (appeals of ODEQ
actions). These rule revisions were
adopted by Oregon on October 17, 2007
and became effective on March 20,
2008. The rules were revised to improve
the clarity and completeness of
contested case appeals coming before
the Environmental Quality Commission.
Division 11 provides authority needed
for implementing the SIP and is
consistent with the Clean Air Act
requirements for the issuance of permits
and enforcement authority. It is not
appropriate to incorporate these rules by
reference into the Code of Federal
Regulations, however, because EPA
relies on its own administrative and
enforcement procedures in enforcing the
Clean Air Act.
D. EPA’s Review of OAR 340–200–0040
(February 16, 2001, July 14, 2005,
August 28, 2006, and May 20, 2008
Submittals)
On February 16, 2001, July 14, 2005,
August 28, 2006 and May 20, 2008,
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Oregon submitted revisions to OAR
340–200–0040. EPA is proposing no
action on these revisions because it is
unnecessary to take action on provisions
addressing State SIP adoption
procedures and incorporating by
reference all of the revisions adopted by
the Environmental Quality Commission
for approval into the Oregon SIP (as a
matter of state law).
E. EPA’s Review of OAR 340–150–0250
(July 14, 2005 Submittal)
ODEQ’s July 14, 2005 SIP submittal
included OAR 340–150–0250. We are
taking no action on this submittal
because this section applies to
underground storage tank regulations
and does not relate to attainment or
maintenance of the NAAQS or other
requirements of section 110 of the CAA.
III. Summary of Action
EPA is proposing to approve revisions
to OAR, Chapter 340, Divisions 11, 12,
and 264 because they are consistent
with Clean Air Act requirements. We
are also proposing to take no action on
revisions to OAR, Chapter 340, Division
200–0040 submitted on February 16,
2001, July 14, 2005, August 28, 2006,
and May 20, 2008 and OAR, Chapter,
Division 150–0250 submitted on July
14, 2005 for the reasons discussed in
Section II.
Oregon has not demonstrated
authority to implement and enforce the
Oregon Administrative Rules within
‘‘Indian Country’’ as defined in 18
U.S.C. 1151. Therefore, this proposed
SIP approval does not extend to ‘‘Indian
Country’’ in Oregon.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
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• 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 an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to the requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting, and
recordkeeping requirements.
Dated: December 27, 2012.
Kate Kelly,
Acting Regional Administrator, Region 10.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2012–0587; FRL–9733–1]
Revisions to the California State
Implementation Plan, San Diego APCD,
Northern Sierra AQMD, and
Sacramento Metropolitan AQMD
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
revisions to the San Diego Air Pollution
Control District (SDAPCD), Northern
Sierra Air Quality Management District
(NSAQMD), and Sacramento
Metropolitan Air Quality Management
District (SMAQMD) portions of the
California State Implementation Plan
(SIP). These revisions concern volatile
organic compound (VOC) emissions
from transfer of gasoline at gasoline
dispensing facilities. We are proposing
to approve four local rules to regulate
these emission sources under the Clean
Air Act (CAA or the Act).
DATES: Any comments on this proposal
must arrive by February 6, 2013.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2012–0587, by one of the
following methods:
1. Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions.
2. Email: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air-4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
www.regulations.gov or email.
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send email
directly to EPA, your email address will
be automatically captured and included
as part of the public comment. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
SUMMARY:
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able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: Generally, documents in the
docket for this action are available
electronically at www.regulations.gov
and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco,
California 94105–3901. While all
documents in the docket are listed at
www.regulations.gov, some information
may be publicly available only at the
hard copy location (e.g., copyrighted
material, large maps), and some may not
be publicly available in either location
(e.g., CBI). To inspect the hard copy
materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Nicole Law, EPA Region IX, (415) 947–
4126, law.nicole@epa.gov.
This
proposal addresses the following local
rules: NSAQMD Rule 214 Phase I Vapor
Recovery Requirements, SDAPCD Rule
61.4 Transfer of Volatile Organic
Compounds into Vehicle Fuel Tanks,
SMAQMD Rule 448 Gasoline Transfer
into Stationary Storage Containers, and
SMAQMD Rule 449 Transfer of Gasoline
into Vehicle Fuel Tanks. In the Rules
and Regulations section of this Federal
Register, we are approving these local
rules in a direct final action without
prior proposal because we believe these
SIP revisions are not controversial. If we
receive adverse comments, however, we
will publish a timely withdrawal of the
direct final rule and address the
comments in subsequent action based
on this proposed rule. Please note that
if we receive adverse comment on an
amendment, paragraph, or section of
this rule and if that provision may be
severed from the remainder of the rule,
we may adopt as final those provisions
of the rule that are not the subject of an
adverse comment.
We do not plan to open a second
comment period, so anyone interested
in commenting should do so at this
time. If we do not receive adverse
comments, no further activity is
planned. For further information, please
see the direct final action.
SUPPLEMENTARY INFORMATION:
Dated: September 5, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012–31634 Filed 1–4–13; 8:45 am]
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]]>Agencies
[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Proposed Rules]
[Pages 918-921]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00056]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2008-0903: FRL-9768-5]
Approval and Promulgation of Implementation Plans; Oregon: Open
Burning and Enforcement Procedures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to approve revisions to Oregon's State
Implementation Plan submitted to the EPA by the Oregon Department of
Environmental Quality on February 16, 2001, July 14, 2005, August 28,
2006, and May 20, 2008. The February 16, 2001 submittal relates to open
burning rules. The July 2005, August 2006, and May 2008 submittals
relate to enforcement procedures, civil penalties, and procedures in
contested cases (appeals).
DATES: Written comments must be received on or before February 6, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2008-0903, by any of the following methods:
www.regulations.gov. Follow the on-line instructions for
submitting comments.
Mail: Justin A. Spenillo, EPA, Office of Air, Waste, and
Toxics, AWT-107, 1200 Sixth Avenue, Suite 900, Seattle, Washington
98101.
Email: R10-Public_Comments@epa.gov.
Hand Delivery: EPA, Region 10 Mailroom, 9th Floor, 1200
Sixth Avenue, Seattle, Washington 98101. Attention: Justin A. Spenillo,
Office of Air, Waste, and Toxics, AWT-107. Such deliveries are only
accepted during normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2008-0903. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
www.regulations.gov or in hard copy during normal business hours at the
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue,
Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT: Justin A. Spenillo at (206) 553-6125,
spenillo.justin@epa.gov, or the above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' are used, it is intended to refer to the EPA.
Table of Contents
I. This Action
II. Why are we proposing to approve these revisions?
A. EPA's Review of Oregon Administrative Rules (OAR) Chapter
340, Division 264 Open Burning Rules (February 16, 2001 Submittal)
B. EPA's Review of OAR Chapter 340, Division 12 Rules (July 14,
2005 and August 28, 2006 Submittals)
C. EPA's Review of OAR Chapter 340 Division 11 Rules (May 20,
2008 Submittal)
D. EPA's Review of OAR 340-200-0040 (February 16, 2001, July 14,
2005, August 28, 2006, and May 20, 2008 Submittals)
E. EPA's Review of OAR 340-150-0250 (July 14, 2005 Submittal)
III. Summary of Action
IV. Statutory and Executive Orders Review
I. This Action
Title I of the Clean Air Act (CAA), as amended by Congress in 1990,
specifies the general requirements for states to submit State
Implementation Plans (SIPs) to attain and maintain the National Ambient
Air Quality Standards (NAAQS) and EPA's actions regarding approval of
those SIPs. In this action, the EPA is proposing to approve and
incorporate by reference revisions to Oregon's open burning rules
submitted by the Oregon Department of Environmental Quality (ODEQ) on
February 16, 2001. Oregon's open burning rules are currently codified
at Oregon Administrative Rules (OAR) Chapter 340, Division 264.
The EPA is also proposing to approve but not incorporate by
reference (with certain exceptions explained below) the enforcement
provisions in Chapter 340, Division 12 submitted by ODEQ on July 14,
2005 and August 28, 2006.
We are also proposing to approve but not incorporate by reference
revisions related to procedures in contested cases (that is, appeals
from ODEQ actions) found at OAR Chapter 340, Division 11. These
revisions were submitted by ODEQ on May 20, 2008.
Each of the above described submittals (the February 16, 2001, July
14, 2005, August 28, 2006, and May 20, 2008 submittals) contains an
amendment to OAR 340-200-0040, which describes the State's procedures
for adopting its Clean Air Act Implementation Plan and references all
of the state air regulations that have been adopted by the
Environmental Quality Commission for approval into the SIP (as a matter
of state law), whether or not they have yet been submitted to or
approved by the EPA. We are proposing no action on the revisions to OAR
340-200-0040 in each of ODEQ's SIP submittals because it is unnecessary
to take action on a provision addressing State SIP adoption procedures
and because the federally-approved SIP consists only of
[[Page 919]]
regulations and other requirements that have been submitted by ODEQ and
approved by EPA.
Finally, the EPA is proposing to take no action on the expedited
enforcement process set forth in OAR 340-150-0250 included in ODEQ's
July 14, 2005 submittal because this section applies to underground
storage tank regulations and does not relate to attainment or
maintenance of the NAAQS or other requirements of section 110 of the
CAA.
II. Why are we proposing to approve these revisions?
We are proposing to approve the SIP revisions submitted by ODEQ on
February 16, 2001; July 14, 2005; August 28, 2006; and May 20, 2008,
subject to the exceptions discussed in more detail below, because they
serve to clarify and strengthen Oregon's existing SIP and are
consistent with CAA requirements. A more detailed explanation of the
basis for our approval is provided below and in the materials included
in the docket.
A. EPA's Review of OAR Chapter 340, Division 264 Open Burning Rules
(February 16, 2001 Submittal)
The federally-approved open burning rules previously codified at
OAR Chapter 340, Division 23, have been recodified at OAR Chapter 340,
Division 264. In addition to the recodification, ODEQ's February 16,
2001 submittal includes revisions to ODEQ's federally-approved open
burning rules that fall into several categories: changes related to
growth, additional requirements, delegation, alterations to exemptions,
and clarifications. The first category of revisions updates the list of
open burning control areas to reflect population growth since the SIP
was last revised. For example, commercial burning is now prohibited
except by permit in Madras, Tillamook, and Warranton, and adjoining
areas within three miles of these cities' limits (all located in
Lincoln County). See OAR 340-264-0100 (previously at OAR 340-023-055).
In general, this category of revisions imposes more stringent
requirements on additional geographic areas, and thus makes the open
burning requirements more stringent.
A second category consists of revisions that impose additional
requirements in all geographic areas and thus make the open burning
regulations overall more stringent. For example, OAR 340-264-0050(2)
(previously at OAR 340-023-0040) now requires that a person responsible
for a fire not only constantly attend the open burning, but also be
capable of and have the necessary equipment for extinguishing the fire
and completely extinguish the fire before leaving it. As another
example, OAR 340-264-0060(8) (previously at OAR 340-023-0040) requires
that most open burning debris be burned on site unless a letter permit
is issued.
OAR 340-264-0010 and -0075 are new provisions that allow ODEQ to
delegate authority to issue and enforce open burning permits to a city,
county, fire protection district, forest protection district or other
state agency that ODEQ determines is capable of effectively
administering the permit program and authorizes ODEQ to withdraw any
such delegation upon a finding that the entity is not effectively
administering the program. Given the narrow scope of the delegation to
local agencies, that the delegated authority will continue to be
carried out under the SIP-approved open burning regulations, and that
ODEQ has the ultimate responsibility under this provision, EPA believes
these provisions do not affect the stringency of ODEQ's open burning
regulations and are consistent with the requirements of the CAA. See
CAA 110(a)(2)(E).
Another category of revisions to ODEQ's open burning rules exempts
open burning that is subject to restrictions under the current SIP. OAR
340-264-0040 (previously at OAR 340-023-0035) adds three narrow
activities to the list of activities exempt from ODEQ's open burning
rules: fires set for disposal of dry tumbleweed; agricultural burning
for disease or pest control when authorized in writing by the
Department of Agriculture; and open burning of animal carcasses by the
Department of Agriculture because of an animal disease emergency. That
regulation also expands the exemption for slash burning on forest land
conducted under Oregon's Smoke Management program to lands within one-
eighth of a mile of forest land. Given the very narrow scope of these
changes and the other revisions that make ODEQ's open burning rules
more stringent than the open burning rules currently approved in the
SIP, EPA believes these revisions will not interfere with attainment or
maintenance of the NAAQS or other requirements of the CAA.
The remaining revisions clarify existing requirements. For example,
revisions to OAR 340-264-0050 (previously at OAR 340-023-0040) clarify
that persons responsible for open burning activities are also strictly
liable for violations of the rules and clarify ODEQ's authority to
extinguish existing fires. As another example, revisions to OAR 340-
264-0040(3) (previously at OAR 340-023-035(3)) clarify that open
burning fires otherwise exempt from the open burning rules are still
subject to the requirements and prohibitions of local jurisdictions and
the State Fire Marshall.
One set of clarifications to ODEQ's rules requires further
discussion. Based on statutory clarifications to ODEQ's authority to
regulate agricultural open burning in 1999, ODEQ has revised its open
burning rules to make clear that it does not have authority to regulate
agricultural open burning except for its explicit statutory and
regulatory authority to regulate field burning in the Willamette Valley
as provided in ORS 468A.555 to -620 and OAR Division 340, Chapter 266.
The open burning rules currently in the SIP do have provisions that
purport to make agricultural open burning in some areas outside of the
Willamette Valley subject to the general statewide requirements and
prohibitions for open burning. See, e.g., OAR 340-023-022, -040, -042,
-055, -060, -065, -070, -075, -080, -085, -090. The underlying
statutory authority approved into the SIP, however, has for many years
exempted all agricultural operations and the growing or harvesting of
crops from regulation--except for field burning in the Willamette
Valley regulated under ORS 468A.555 to 468A.620. See 56 FR 30006 (July
30, 1991); 60 FR 37013 (July 19, 1995). On December 27, 2011, EPA
approved revisions to Oregon's SIP which include statutory and
regulatory changes narrowing the exemption for agricultural operations
(76 FR 80747). These changes, however, narrow the agricultural
operations exemption only to the extent necessary to meet the
requirements of the CAA. Because there is no express requirement to
regulate agricultural open burning in the CAA and no information
showing that the lack of regulation of agricultural open burning in
Oregon is interfering with attainment or maintenance of the NAAQS, the
most recent SIP revisions to the agricultural operations exemption do
not have a bearing on whether the regulation of agricultural open
burning has ever been or currently is subject to regulation by ODEQ.
EPA therefore concludes that agricultural open burning (except for
field burning in the Willamette Valley) has not previously been subject
to regulation by ODEQ under the SIP and, therefore, Oregon's revision
of its open burning rules to make this clear (and EPA's approval of
those revisions) does not affect the stringency of the SIP-approved
open burning rules.
Based on EPA's review and analysis of OAR Chapter 340, Division
264, EPA is proposing to approve this revision to Oregon's SIP as
meeting the requirements of section 110 of the Clean
[[Page 920]]
Air Act. In addition, EPA proposes to remove from the SIP the
regulations previously codified at OAR Chapter 340, Division 023
because they have been recodified and no longer exist at the location
previously approved in the SIP.
B. EPA's Review of Division 12 Rules (July 14, 2005 and August 28, 2006
Submittals)
ODEQ has submitted two SIP revisions to OAR 340, Division 12, one
on July 14, 2005 and one on August 28, 2006. Division 12 contains
enforcement procedures and civil penalty provisions that apply across
all programs implemented by ODEQ, including the air quality regulations
that EPA has approved into the SIP. Division 12 provides the authority
and procedures under which ODEQ notifies regulated entities of
violations, determines the appropriate penalties for violations, and
assesses penalties for such violations. The revisions to Division 12
made by ODEQ in 2005 and 2006 clarify the differences between formal
and informal enforcement processes, make adjustments to the penalty
matrices, and streamline and reorganize the rules to more closely track
ODEQ's enforcement and penalty calculation process.
EPA has reviewed the revisions to Division 12 and finds that they
continue to provide ODEQ with adequate authority for enforcing the SIP
as required by Section 110 of the CAA and 40 CFR 50.230(b).
Importantly, OAR 340-012-0160(3) gives ODEQ the discretion to deviate
from the penalty matrices and assess penalties of up to $10,000 per
day, per violation based on the facts and circumstances of the
individual case. EPA is therefore proposing to approve into the SIP the
revisions to Division 12 submitted by ODEQ, subject to the
qualifications and in the manner discussed below.
First, where ODEQ submitted a regulation in Division 12 as part of
its July 14, 2005 submittal and that regulation was subsequently
revised and submitted as part of ODEQ's August 28, 2006 submittal, EPA
is proposing to approve the version of the regulation submitted as part
of the August 28, 2006 submittal. The docket contains a chart showing
the version of the regulations in Division 12 we are approving.
Second, EPA's authority to approve SIPs extends to provisions
related to attainment and maintenance of the NAAQS and carrying out
other specific requirements of Section 110 of the CAA. Therefore, EPA
is not approving the following regulations in Division 12 that do not
relate to air emissions: OAR-340-012-0055, -0060, -0065, -0066, -0067,
-0068, -0071, -0072, -0074, -0079, -0081, -0083, -0097. In addition,
EPA is approving the remaining sections in Chapter 340, Division 12
only to the extent they relate to enforcement of requirements contained
in the Oregon SIP.
Finally, although EPA is approving the rules in Division 12 in the
manner discussed above, EPA is not incorporating these rules by
reference into the Code of Federal Regulations because EPA relies on
its independent enforcement procedures and penalty provisions in
bringing enforcement actions and assessing penalties under the CAA.
In approving these SIP revisions, EPA also notes that ORS 468.126
prohibits ODEQ from imposing a penalty for violation of an air, water
or solid waste permit unless the source has been provided five days'
advanced written notice of the violation and has not come into
compliance or submitted a compliance schedule within that five-day
period. By its terms, the statute does not apply to Oregon's Title V
program or to any other program if the application of the notice
provision would disqualify the program from Federal delegation. Oregon
has previously confirmed that, because the application of the notice
provision would preclude EPA approval of the Oregon SIP, no advance
notice is required for violation of SIP requirements.
C. EPA's Review of Division 11 Rules (May 20, 2008 Submittal)
Oregon's May 20, 2008 submittal revises OAR Chapter 340, Division
11, which addresses procedures in contested cases (appeals of ODEQ
actions). These rule revisions were adopted by Oregon on October 17,
2007 and became effective on March 20, 2008. The rules were revised to
improve the clarity and completeness of contested case appeals coming
before the Environmental Quality Commission.
Division 11 provides authority needed for implementing the SIP and
is consistent with the Clean Air Act requirements for the issuance of
permits and enforcement authority. It is not appropriate to incorporate
these rules by reference into the Code of Federal Regulations, however,
because EPA relies on its own administrative and enforcement procedures
in enforcing the Clean Air Act.
D. EPA's Review of OAR 340-200-0040 (February 16, 2001, July 14, 2005,
August 28, 2006, and May 20, 2008 Submittals)
On February 16, 2001, July 14, 2005, August 28, 2006 and May 20,
2008, Oregon submitted revisions to OAR 340-200-0040. EPA is proposing
no action on these revisions because it is unnecessary to take action
on provisions addressing State SIP adoption procedures and
incorporating by reference all of the revisions adopted by the
Environmental Quality Commission for approval into the Oregon SIP (as a
matter of state law).
E. EPA's Review of OAR 340-150-0250 (July 14, 2005 Submittal)
ODEQ's July 14, 2005 SIP submittal included OAR 340-150-0250. We
are taking no action on this submittal because this section applies to
underground storage tank regulations and does not relate to attainment
or maintenance of the NAAQS or other requirements of section 110 of the
CAA.
III. Summary of Action
EPA is proposing to approve revisions to OAR, Chapter 340,
Divisions 11, 12, and 264 because they are consistent with Clean Air
Act requirements. We are also proposing to take no action on revisions
to OAR, Chapter 340, Division 200-0040 submitted on February 16, 2001,
July 14, 2005, August 28, 2006, and May 20, 2008 and OAR, Chapter,
Division 150-0250 submitted on July 14, 2005 for the reasons discussed
in Section II.
Oregon has not demonstrated authority to implement and enforce the
Oregon Administrative Rules within ``Indian Country'' as defined in 18
U.S.C. 1151. Therefore, this proposed SIP approval does not extend to
``Indian Country'' in Oregon.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
[[Page 921]]
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 an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to the requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting,
and recordkeeping requirements.
Dated: December 27, 2012.
Kate Kelly,
Acting Regional Administrator, Region 10.
[FR Doc. 2013-00056 Filed 1-4-13; 8:45 am]
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