Air Plan Approval; OR; Smoke Management Revision, 10220-10225 [2021-03036]

Download as PDF 10220 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules tkelley on DSKBCP9HB2PROD with PROPOSALS exclusion as an opportunity to evade the general mailing ban. If the mailer’s claim to the exclusion is not appropriately credible or verifiable, then that claim may not be sufficient to deprive the Postal Service of reasonable cause to believe that the item is a nonmailable ENDS. Therefore, the proposed rule would authorize Postal Service personnel, upon reasonable cause to believe that a package contains cigarettes, smokeless tobacco, or ENDS, to treat the package as nonmailable unless the customer has affirmatively, credibly, and verifiably indicated that the relevant contents are, in fact, mailable. Commenters are invited to offer their views on this proposed standard for reasonable cause in connection with ENDS-type items (or any other tobacco products). To the extent that commenters might propose alternative standards, commenters are advised to account specifically for the need to prevent abuse of the narrow exclusion of therapeutic and tobacco-cessation products; the asymmetry between mailers’ and the Postal Service’s access to information about the FDA-approval status and marketing of particular products; the Postal Service’s limited resources; and its limited legal authority to open mailpieces that are sent in sealed mail classes without a warrant. 39 U.S.C. 404(c); 39 CFR 233.3(c)(3)–(4), (g)(1)–(2). Applicability of Exceptions The existing Noncontiguous States, Business/Regulatory Purposes, and Certain Individuals exceptions appear to be articulated in terms that can apply to ENDS as well as to cigarettes and smokeless tobacco. As such, the proposed use of the umbrella term ‘‘tobacco products’’ in the rules for each exception would automatically apply all such existing rules to ENDS. Commenters are nonetheless invited to identify any potential anomalies or other problems that this approach might create and to recommend solutions for such problems. The Consumer Testing and Public Health exceptions apply only to ‘‘cigarettes,’’ and not to smokeless tobacco. 18 U.S.C. 1716E(b)(5)–(6). As noted earlier, the Act technically includes ENDS within the relevant definition of ‘‘cigarettes.’’ Without more, this would ordinarily indicate that these exceptions should apply to ENDS as well as other forms of ‘‘cigarettes.’’ However, 18 U.S.C. 1716E(b)(5)(A)(ii) or (C)(ii)(III) confine the exceptions to packages containing ‘‘not more than 12 packs of cigarettes (240 cigarettes).’’ Congress did not amend these VerDate Sep<11>2014 18:27 Feb 18, 2021 Jkt 253001 provisions when it included ENDS, broadly defined, in the definition of ‘‘cigarettes,’’ and neither the text of the Act nor its legislative history contains any guidance as to how these conditions should apply to ENDS. ENDS are not packaged in such standard quantities as traditional cigarettes. ENDS rely on devices that can be used in an open-ended fashion, with potentially limitless quantities of liquid filled cartridges, whereas traditional cigarettes are self-contained, single-use items. Moreover, ENDS filler liquids can contain varying quantities of nicotine, or even no nicotine, whereas cigarettes uniformly contain nicotine. As such, it does not appear possible even to devise an administrable standard of equivalence that would allow ‘‘12 packs of cigarettes (240 cigarettes)’’ to be translated into some quantity of ENDS filler liquid, let alone ENDS products other than filler liquid. Given the Act’s broad definition of ENDS and the material differences between ENDS products and the types of products originally encompassed by the Consumer Testing and Public Health exceptions, it appears reasonable to construe the lack of accommodation for ENDS in the relevant statutory text to render those exceptions inapplicable to ENDS. To the extent that commenters believe that the Consumer Testing and Public Health exceptions should apply to ENDS, commenters are invited to recommend alternative standards consistent with Congress’s apparent intent to limit the quantity of items mailed in packages under the exceptions. Commenters should explain in detail how any proposed alternative quantity limits are analogous to or otherwise consistent with those in 18 U.S.C. 1716E(b)(5)(A)(ii) or (C)(ii)(III), or why such consistency is not necessary. Commenters are also invited to furnish any relevant documentation or supporting information that may aid the Postal Service in evaluating their recommendations. Effective Date of Eventual Final Rule Particularities here merit a brief discussion of the timing of the eventual final rule, in the interest of providing stakeholders with advance information. Section 603(a) of the Act requires the Postal Service ‘‘promulgate regulations to clarify the applicability of the prohibition on mailing of cigarettes’’ to ENDS not later than 120 days after enactment (i.e., April 26, 2021). Section 603(b) provides that the prohibition will apply to mailings of ENDS ‘‘on and after’’ the publication date of the final rule. In specifying this immediate effective date, Congress expressly PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 abrogated the standard 30-day notice period for a final rule under the Administrative Procedure Act (APA), which would otherwise apply to rulemakings concerning the mailability statute here. 5 U.S.C. 553(d), 559; 39 U.S.C. 3001(m). To the extent that this rulemaking concerns not only the mailing prohibition referenced in the Act, but also the application of exemptions from that prohibition, the APA permits those aspects of the eventual final rule likewise to take effect with less than 30 days’ notice (e.g., immediately upon publication). 5 U.S.C. 553(d)(1). Joshua J. Hofer, Attorney, Ethics and Legal Compliance. [FR Doc. 2021–03393 Filed 2–17–21; 11:15 am] BILLING CODE 7710–12–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R10–OAR–2019–0599, FRL–10019– 38–Region 10] Air Plan Approval; OR; Smoke Management Revision Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: Environmental Protection Agency (EPA) is proposing to approve Oregon State Implementation Plan (SIP) revisions submitted on November 3, 2014 and September 27, 2019. The submitted revisions incorporate by reference the most recent updates to Oregon’s Smoke Management Plan. EPA is acting only on the most recent version of such regulations as the previous versions are no longer in effect as a matter of state law. EPA is also making technical corrections related to previous approvals of components of Oregon’s SIP. EPA is proposing to determine that the changes are consistent with Clean Air Act requirements. DATES: Comments must be received on or before March 22, 2021. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R10– OAR–2019–0599, at https:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from https:// www.regulations.gov. EPA may publish any comment received to its public docket. Do not electronically submit any information you consider to be Confidential Business Information (CBI) or other information the disclosure of SUMMARY: E:\FR\FM\19FEP1.SGM 19FEP1 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules which is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10, 1200 Sixth Avenue, Suite 155, Seattle, WA 98101, at (206) 553–1999, or ruddick.randall@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, wherever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it means EPA. Table of Contents tkelley on DSKBCP9HB2PROD with PROPOSALS I. Background II. Oregon’s Smoke Management Program A. 2014 Submittal Summary B. 2019 Submittal Summary III. Evaluation of Oregon’s SIP Submittals IV. Technical Corrections V. EPA’s Proposed Action VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. Background Each state has a State Implementation Plan (SIP) containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS) established by the Environmental Protection Agency (EPA) for the criteria pollutants (carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, sulfur dioxide). The SIP contains such elements as air pollution control regulations, emission inventories, attainment demonstrations, and enforcement mechanisms. Oregon, and some other states, have adopted Smoke Management Plan SIPs to reduce emissions that contribute to visibility impairment. Wildfire has had a serious impact on Oregon during the past decade with many large-scale wildfires impacting the summer air quality in Oregon. The state anticipates that the Oregon Department of Forestry (ODF) will increase the use of prescribed fire to minimize the impacts of wildfire on air quality in response to this trend. Through the SMP, Oregon carefully manages prescribed fires to minimize smoke impacts to populated areas while VerDate Sep<11>2014 18:27 Feb 18, 2021 Jkt 253001 maximizing the use of prescribed fire as a forest management tool. EPA first approved Oregon’s Smoke Management Plan and associated rules into the SIP in 1988 and has approved numerous revisions to the Plan over time.1 Oregon requested additional revisions to smoke management rules contained in OAR Chapter 629–048, and ODF Directive 1–4–1–601 in a SIP submittal dated October 31, 2014 (received November 3, 2014, hereafter ‘‘2014 Submittal’’). Before EPA took action on the 2014 Submittal, Oregon began additional rulemaking to revise portions of its smoke management rules. Oregon submitted those additional revisions to OAR 629–048 for SIP approval on September 24, 2019 (hereafter ‘‘2019 Submittal’’). The 2019 Submittal includes revisions to regulations in Oregon’s 2014 Submittal on which the EPA has not yet taken action. In this action, EPA is proposing to approve only the most recent submitted version of such regulations because the previous versions of the regulations included in the 2014 Submittal are no longer in effect as a matter of state law. II. Oregon’s Smoke Management Program The ODF oversees prescribed forest burning in Oregon forest lands to decrease forest fuels and debris that pose increased fire risk, restore forest health and reduce the potential for major wildfires. ORS 477.013 directs ODF to develop and implement a Smoke Management Plan for prescribed forestry burning. To carry out this directive, ODF developed a Smoke Management Plan, which currently consists of rules under OAR 629–048 (previously under OAR 629–043) and the Operational Guidance for the Oregon Smoke Management Program in Directive 1–4– 1–601. Oregon’s Smoke Management Plan applies to prescribed burning on federal, state and private forestland. The objectives of the Oregon Smoke 1 On November 22, 1988, (53 FR 47188) EPA approved the Oregon Smoke Management Plan at Oregon Administrative Rule (OAR) Chapter 629, Division 43–043, and the Oregon Department of Forestry (ODF) ‘‘Operational Guidance for the Oregon Smoke Management Program’’ (Directive 1–4–1–601), into the Oregon SIP. On November 1, 2001, (66 FR 55105) EPA approved revisions to the Smoke Management Plan at OAR 629–43–043, and approved modifications to the ODF directive ‘‘Operational Guidance for the Oregon Smoke Management Program’’ into the Oregon SIP. Oregon requested EPA approve further changes to the Smoke Management Rule in a December 20, 2010, SIP submittal. In the 2010 submittal, OAR 629–048 (‘‘Smoke Management’’) replaced OAR 629–043 (‘‘Smoke Management Plan’’). EPA approved the 2010 submission on August 22, 2012 (77 FR 50611). PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 10221 Management Plan (629–048–0010(4)) are to: (a) Minimize smoke emissions resulting from prescribed burning as described by ORS 477.552; (b) Provide maximum opportunity for essential forestland burning; (c) Protect public health by avoiding smoke intrusions; (d) Coordinate with other state smoke management programs; (e) Comply with state and federal air quality and visibility requirements; and (f) Promote the further development of techniques to minimize or reduce emissions by encouraging cost-effective utilization of forestland biomass, alternatives to burning and emission reduction techniques. A. 2014 Submittal Summary As discussed above, in 2014 Oregon revised its Smoke Management Plan and submitted it to EPA for approval into the SIP. Among the 2014 revisions, OAR 629–048–0130, Visibility Objectives, was strengthened by extending applicability to the full calendar year, as it was previously only applicable from July 1 to September 15. OAR 629–048– 0130 is the only provision in the 2014 Submittal that remains in effect. All other portions of OAR 629–048 submitted in 2014 were further revised and included in the state’s subsequent 2019 Submittal. Since the remainder of the 2014 Submittal is no longer in effect as a matter of state law, EPA is not proposing to take action on any other component of Oregon’s 2014 Submittal. B. 2019 Submittal Summary In the 2019 Submittal, Oregon’s process for approving prescribed fires focuses heavily on forecasting weather conditions and their effects on smoke dispersal with new NAAQS-related considerations. Oregon’s previous approach included making single decisions for large tracts (approximately 150,000 contiguous acres, roughly the size of a ranger district) even though these large tracts can contain multiple airsheds and vastly different smoke dispersion conditions. The approach in the 2019 Submittal is more protective because ODF tailors burn decisions based on air quality and meteorological conditions within airsheds allowing for more accurate forecasts of smoke dispersion overall. Oregon’s prescribed fires and resulting smoke are managed under the 2019 Submittal with no burning allowed within 35 miles of a smoke sensitive receptor area 2 (SSRA), if smoke or 2 SSRAs are defined in OAR 629–048–0005(26) as areas designated for the highest level of protection under the Smoke Management Plan. They are designated by the State Board of Forestry, in E:\FR\FM\19FEP1.SGM Continued 19FEP1 tkelley on DSKBCP9HB2PROD with PROPOSALS 10222 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules down-slope drainage is likely to impact the SSRA due to forecasted wind direction. Forecasts are produced 6 days a week by ODF during the prescribed fire season and provide instructions for burners to prevent smoke impacts such as wind-direction related limitations on burning near SSRAs. Oregon’s stated main goal of burn instructions is to move smoke up and away from ground levels, which is why individual burn plan instructions are customized for the burn area and are subject to changes based on forecast meteorology and field conditions. ODF also communicates directly with individual burn bosses about fires planned near SSRAs. The 2019 Submittal’s SIP revisions do not increase prescribed fire authorization levels. The 2019 Submittal also retains the five program elements in Oregon’s currently approved SIP: (1) Taking actions to minimize smoke emissions, (2) burning only during appropriate weather conditions in order to avoid smoke impacts in urban areas, (3) encouraging use of alternatives to fire, including a comprehensive reference manual of alternatives to prescribed fire, (4) requiring permits be obtained prior to burning, and (5) including a burn authorization process that involves the issuance of smoke management forecasts and burning instructions.3 Oregon’s 2019 Submittal includes additional controls and contingencies to protect against impacts on air quality from prescribed burning to nonattainment areas, maintenance areas, and areas at risk for becoming nonattainment. The 2019 Submittal provisions call for consideration of all particulate matter (PM) emissions in the air when planning for prescribed burns whereas the current federally approved requirements only consider the PM emissions attributable to prescribed fires. The 2019 Submittal adds a definition for a ‘‘smoke incident’’ and re-defines a ‘‘smoke intrusion’’ in order to establish sub-NAAQS intrusion thresholds and a burn approval target not to exceed approximately 75% of the 24-hour PM2.5 NAAQS. The 2019 SIP Submittal also establishes a NAAQS protective criterion for burn approvals through use of a one-hour threshold even though there is no NAAQS onehour limit. The one-hour intrusion level, set at 70 mg/m3, and a 24-hour intrusion level set at 26 mg/m3 level consultation with DEQ under OAR 629–048–0140, due to past history of smoke incidents, density of population or other special legal status related to visibility such as the Columbia River Gorge Scenic Area. 3 EPA finalized the 2012 proposed approval on August 22, 2012, (77 FR 50611). VerDate Sep<11>2014 18:27 Feb 18, 2021 Jkt 253001 (OAR 629–048–0005 (27)) are designed to protect the NAAQS (PM2.5). These criteria collectively enable ODF to dictate necessary modifications to burn volume or tonnage, or to withhold approval to burn considering weather conditions. Considered as a whole, the revisions contained in the 2019 Submittal strengthen the currently SIPapproved smoke management requirements. Other notable modifications to the State’s Smoke Management SIP include a process for developing community response plans and exemption requests, updates to Special Protection Zone 4 (SPZ) requirements that provide extra smoke management protection during winter months to communities with histories of exceeding federal air quality standards, and allowing the use of polyyethylene sheeting on burn piles to facilitate rapid ignition and combustion of burn piles. III. Evaluation of Oregon’s SIP Submittals Approvals to revisions of SIPs are subject to the requirements of CAA section 110(l). Under CAA section 110(l), the Administrator may not approve a SIP revision ‘‘if the revision would interfere with any applicable requirements concerning attainment and reasonable further progress, or any other applicable requirement of [the Act].’’ The 2019 Submittal contains a ‘weight of evidence’ analysis 5 focused primarily on particulate matter impacts of the SMP revisions, as well as the implications of the revisions to the SMP on other NAAQS pollutants. The most relevant pollutants for this analysis are PM2.5, PM10, and ozone due to the nature of prescribed fire emissions and because EPA recently revised the PM2.5 and Ozone NAAQS resulting in more stringent standards (78 FR 3085, January 15, 2013, and 80 FR 65292, October 26, 2015). EPA expects that attainment and maintenance related to criteria pollutants other than PM and ozone are unlikely to be impacted by the State’s prescribed burning program. In addition, there are no nonattainment areas for ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide, or lead in Oregon, nor has Oregon submitted any changes to regulatory limits in its 4 Special Protection Zones have been established around certain communities requiring additional protection from particulates such as nonattainment or maintenance. Maps identifying these areas are identified in maps located within Department Directive 1–4–1–601, which is included in the docket. See OAR 629–048–0135 for details on requirements for these areas. 5 A copy of the study is included in the Docket materials for this action. See: Oregon SMP 110 Discussion. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 smoke management SIP provisions for these pollutants. Prescribed burning does not generally occur in Oregon in summer months, the season when ozone values are expected to be the highest due to increased temperature and solar radiation, because those months generally have unfavorable smoke dispersion conditions 6 and fire safety concerns. For these reasons, we are proposing to find that attainment and maintenance of the Ozone NAAQS are unlikely to be affected by the provision submitted for approval. We are also proposing to find that attainment and maintenance of the PM NAAQS are unlikely to be affected by the provisions in the 2019 Submittal for reasons discussed below. There are currently three PM nonattainment areas in Oregon: Klamath Falls for 2006 PM2.5 and Oakridge for the 2006 PM2.5 and 1987 PM10 NAAQS. Determinations of Attainment by the Attainment Date and a Clean Data Determinations were published by EPA for these areas.7 All areas in Oregon fall far below the PM10 standard of 150 mg/m3 and are attaining the PM10 NAAQS. As discussed in the proposed findings of attainment for Klamath Falls (81 FR 36176, June 6, 2016) and Oakridge (82 FR 52686, November 14, 2017), residential wood combustion (RWC) in the cold, winter months during atmospheric inversions is the most significant source of PM2.5 emissions responsible for elevated particulate matter in these areas. RWC emissions from certified and noncertified wood stoves, fireplaces, and pellet stoves are the most significant source of PM2.5 emissions. In the Oakridge area, RWC accounts for about 86% of the base year direct PM2.5 emissions and 84% of the projected emissions on worst case winter days. The primary control strategy for these areas is reducing emissions from residential wood combustion through a program to change-out uncertified woodstoves and an episodic woodstove curtailment program. The curtailment program restricts wood burning on ‘‘Red’’ advisory days. ‘‘Red’’ days are generally declared when PM2.5 concentration is expected to be 25mg/m3 (approx. 72% of the NAAQS) or higher. Oregon established SPZs around Klamath Falls and Oakridge to provide additional protection from smoke in these areas. The Oregon Smoke Management Plan designates SPZs to 6 See Section 2.6 of Oregon SMP 110 Discussion, which is included in the docket for this action. 7 Klamath Falls 2006 PM , 81 FR 36176, 6/6/ 2.5 2016; and Oakridge 2006 PM2.5, 85 FR 5537, 2/8/2018; Oakridge 1987 p.m.10, 66 FR 38947, 7/26/2001. E:\FR\FM\19FEP1.SGM 19FEP1 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules tkelley on DSKBCP9HB2PROD with PROPOSALS include extra restrictions regarding the use of prescribed fire during the problematic cold weather season when these areas can experience air stagnation events. Specifically, the Oregon SMP at OAR 629–048–0135 prohibits prescribed burning on ‘‘Red’’ woodstove days in the SPZ from December 1 through February 15 and provides additional cautionary requirements for prescribed burning in SPZs on non ‘‘Red’’ woodstove days from November 15 through February 15. The 2014 and 2019 submittals establish more protective burn authorization levels than those in the previously SIP-approved SMP through the establishment of sub-NAAQS intrusion thresholds at OAR 629–048– 0005(27).8 For example, although there is no one hour NAAQS for PM2.5, ODEQ has established a 1-hr threshold of 70 mg/m3, further bound by the 24-hr threshold of 26 mg/m3 (approximately 75% of the NAAQS) for determining whether or not a burn will be permitted. If PM2.5 is at or above the sub-NAAQS thresholds, the 2019 Submittal provides that a prescribed burn would not be approved. Likewise, if the PM2.5 is lower than the PM2.5 thresholds, but additional smoke would likely cause an exceedance of the thresholds, the burn would also not be approved. The submitted revisions contain an exemption process from the 1-hr PM2.5 intrusion threshold but the exemption imposes additional requirements and conditions (OAR 629–048–0180). The revised Smoke Management Plan also includes provisions for removing a community’s exemption from the 1-hour intrusion threshold if an area has had three or more 24-hour threshold exceedances in five years.9 The revised plan also includes a provision for revoking the exemption if the SSRA is within one exceedance of a NAAQS violation. Also, SSRAs that are in a nonattainment with the NAAQS will not be eligible for an exemption (see 629–048– 0180 (3)(e) and (f)). There is not an exemption process for the 24-hr PM2.5 threshold of 26 mg/m3, therefore the revised Smoke Management Plan is 8 In its response to comments during the state public process, Oregon acknowledged that the proposed 2019 SIP amendments have the effect of allowing for an estimated increase of prescribed fire use by 80%. However, EPA proposes to conclude the burn-specific authorization criteria based on ambient monitoring data, included in the proposed SIP amendment, are sufficient to ensure continued protection of the NAAQS. 9 From 629–048–0180 (3)(d), ‘‘ODF and DEQ may revoke the exemption if there are repeated (three or more in five years) smoke intrusions that exceed the 24-hour average threshold or prescribed burning contributes to two or more NAAQS exceedances.’’ VerDate Sep<11>2014 18:27 Feb 18, 2021 Jkt 253001 more protective than the 24-hr PM2.5 NAAQS. The proposed revisions also include new best burn practices and emissions reduction techniques at OAR 629–048– 0210 allowing the burning of polyethylene coverings used to keep piles of slash and thinning debris dry. To determine the efficacy of polyethylene coverings, ODF and EPA’s Office of Research and Development contracted with a testing firm to conduct a study 10 of emissions from wet versus dry (covered and uncovered) piles. The study showed that wet piles burn slower and produce more emissions on a mass basis due to incomplete combustion than dry piles. In general, burning dry piles, even with polyethylene still in place, produces less criteria pollutant emissions than burning uncovered wet piles. Therefore, the revisions allowing for burning polyethylene to facilitate a reduction in emissions are more protective of the NAAQS. Some additional changes in the 2014 and 2019 Submittals that EPA proposes to determine are either more protective than current SIP requirements or not expected to result in significant NAAQS impacts include expanding SPZ boundaries 11 to include the areas from which prescribed burning could cause an impact and changing SSRA 12 boundaries to better align with airshed boundaries. Prescribed burning is generally not expected to make significant contributions to the remaining criteria pollutants (Lead, CO, NOX, and SO2) due to a combination of factors. Monitored values in Oregon for these pollutants are well below the level of the NAAQS; wildfires are not known to be significant contributors of airborne Lead or SO2, and finally, prescribed burning in any one geographic area will be infrequent enough that it is not expected to create elevated concentrations that violate the NAAQS for any of these criteria pollutants. For additional information regarding these pollutants see Oregon SMP 110 Discussion, which is included in the docket materials for this action. Oregon’s Smoke Management Plan revisions include OAR 629–048–0130 Visibility Objectives, which clearly state that it is the intent under the Smoke Management Plan to comply with Regional Haze requirements as 10 A copy of the study is included in the Docket materials for this action. See: Attachment G of Oregon SMP 110 Discussion. 11 As described in OAR 629–048–0137 SPZ Contingency Plan Requirements. 12 SSRAs are areas designated for the highest level of protection under the Smoke Management Plan (OAR 629–048–0005(26). PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 10223 identified in the Oregon Regional Haze Plan. The revised Smoke Management Plan also enhances the Regional Haze Plan by incorporating practices to minimize visibility impacts to the Kalmiopsis Wilderness and Crater Lake National Park into the Smoke Management Plan.13 Oregon’s 5-Year Progress Report approved May 17, 2019 (83 FR 22853), demonstrates that the long-term strategy and emission control measures in the existing Regional Haze SIP are sufficient to enable Oregon to meet all established reasonable progress goals. EPA proposes to find that Oregon’s smoke management revisions do not constitute a relaxation in Oregon’s Regional Haze SIP approved August 22, 2012 (77 FR 50611) because Oregon’s revisions do not alter limits on the quantity of light impairing pollutants emitted from prescribed burning and OAR 629–048(2) clearly states it is Oregon’s intent to operate their Smoke Management Plan in a manner consistent with the Oregon Regional Haze Plan. IV. Technical Corrections EPA is making technical corrections to provisions previously approved as revisions to the Oregon SIP pursuant to CAA 110(k)(6). In 2012 we approved (77 FR 50611) Oregon’s revised Smoke Management Plan at OAR 629–048– 0001 through –0500 which replaced OAR 629–043–0043 but we failed to update 40 CFR 52.1970(c), Table 2. We are correcting Table 2 to reflect the 2012 approval by removing ‘‘OAR 629–43– 043’’ and adding the portions of OAR 629–048 (state effective January 1, 2008) that were not revised by Oregon’s 2014 or 2019 Submittals. We are correcting the identification of the Oregon SIP at 40 CFR part 52.1970(c), Table 2 by adding: • OAR 629–048–0100, Regulated Areas (state effective 1/1/2008); • OAR 629–048–0160, Bear Creek/ Rogue River Valley SSRA (state effective 1/1/2008); • OAR 629–048–0300, Registration of Intent to Burn (state effective 1/1/2008); • OAR 629–048–0330, Emission Inventories (state effective 1/1/2008); • OAR 629–048–0400, Coordination with Other Regulating Jurisdictions and for Other Pollutants (state effective 1/1/ 2008). We are also making technical corrections to the Oregon SIP at 40 CFR part 52.1970(e), Table 5, Section 3, by revising the reference to Oregon’s 13 See our proposed approval of Oregon’s Regional Haze Progress Report (83 FR 11927, March 19, 2018) which was finalized May 17, 2018 (83 FR 33853). E:\FR\FM\19FEP1.SGM 19FEP1 10224 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules tkelley on DSKBCP9HB2PROD with PROPOSALS Smoke Management Plan Administrative Rule to reflect the 2012 approval of OAR 629–048 and by removing the reference to OAR ‘‘629 43– 043’’. V. EPA’s Proposed Action We have reviewed Oregon’s demonstration and propose to find that the revisions discussed above meet the requirements of the CAA. Based on our review of Oregon’s demonstration, we propose to conclude that the revisions to Oregon’s SIP will not interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable requirement of the Clean Air Act. Under CAA section 110(k), EPA is proposing to approve, and incorporate by reference, the 2014 and 2019 submitted revisions into the Oregon SIP at 40 CFR part 52, subpart MM. As discussed above, Oregon’s 2014 and 2019 Submittals revised portions of OAR 629–048 and we are proposing to approve only the most recently submitted version of such regulations as previous versions are no longer in effect as a matter of state law. Upon final approval, the Oregon SIP will include the addition of the following: • OAR 629–048–0001, Title, Scope and Effective Dates (state effective 3/1/ 2019); • OAR 629–048–0005, Definitions (state effective 3/1/2019); • OAR 629–048–0010, Purpose (state effective 3/1/2019); • OAR 629–048–0020, Necessity of Prescribed Burning (state effective 3/1/ 2019); • OAR 629–048–0021, Necessity of Safeguarding Public Health (state effective 3/1/2019); • OAR 629–048–0100, Regulated Areas (state effective 1/1/2008); • OAR 629–048–0110, Characterization and Response to Smoke Incidents, Smoke Intrusions, and National Ambient Air Quality Standards (NAAQS) Exceedances (state effective 3/ 1/2019); • OAR 629–048–0120, Air Quality Maintenance Objectives (state effective 3/1/2019); • OAR 629–048–0130, Visibility Objectives (state effective 7/11/2014); • OAR 629–048–0135, Special Protection Zone Requirements (state effective 3/1/2019); • OAR 629–048–0137, SPZ Contingency Plan Requirements (state effective 3/1/2019); • OAR 629–048–0140, Smoke Sensitive Receptor Areas (state effective 3/1/2019); • OAR 629–048–0150, Criteria for Future Listing of Smoke Sensitive VerDate Sep<11>2014 18:27 Feb 18, 2021 Jkt 253001 Receptor Areas (state effective 3/1/ 2019); • OAR 629–048–0160, Bear Creek/ Rogue River Valley SSRA (state effective 1/1/2008); • OAR 629–048–0180, Communication, Community Response Plans, and Exemption Requests (state effective 3/1/2019); • OAR 629–048–0200, Regulated Areas (state effective 3/1/2019); • OAR 629–048–0210, Best Burn Practices; Emission Reduction Techniques (state effective 3/1/2019); • OAR 629–048–0220, Forecast Procedures (state effective 3/1/2019); • OAR 629–048–0230, Burn Procedures (state effective 3/1/2019); • OAR 629–048–0300, Registration of Intent to Burn (state effective 1/1/2008); • OAR 629–048–0310, Fees for Prescribed burning (state effective 3/1/ 2019); • OAR 629–048–0320, Reporting of Accomplishments (state effective 3/1/ 2019); • OAR 629–048–0330, Emission Inventories (state effective 1/1/2008); • OAR 629–048–0400, Coordination with Other Regulating Jurisdictions and for Other Pollutants (state effective 1/1/ 2008); • OAR 629–048–0450, Periodic Evaluation and Adaptive Management (state effective 3/1/2019); • OAR 629–048–0500, Enforcement (state effective 3/1/2019); • ORS 477.013, Smoke Management Plan; rules (state effective 3/1/2019); and • Oregon Department of Forestry Directive 1–4–1–601, Operational Guidance for the Oregon Smoke Management Program (state effective 3/ 1/2019). Pursuant to 110(k)(6), we are also making corrections to the regulatory text that includes incorporation by reference by removing ‘‘OAR 629–43–043’’ as discussed in Section IV. Upon final approval, the following regulations will be removed from 40 CFR 52.1970(c), Table 2: • OAR 629–043–0043, Smoke Management Plan (state effective 4/13/ 1987); and the corresponding crossreference will be removed from 40 CFR 52.1970(e), Table 5, Section 3. VI. Incorporation by Reference In this document, EPA is proposing to include in a final rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the provisions described in Section V of this preamble. Also, in this document, EPA is proposing to remove the PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 incorporation by reference of ‘‘OAR 629–43–043’’ as described in Section IV. EPA has made, and will continue to make, these documents generally available through https:// www.regulations.gov and at EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). VII. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not 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 requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of the requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as E:\FR\FM\19FEP1.SGM 19FEP1 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this proposed action does not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter. Authority: 42 U.S.C. 7401 et seq. Dated: February 9, 2021. Michelle L. Pirzadeh, Acting Regional Administrator, Region 10. [FR Doc. 2021–03036 Filed 2–18–21; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2020–0477; FRL–10016– 38–Region 9] Air Plan Approval; California; Placer County Air Pollution Control District; Open Burning Rules Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve revisions to the Placer County Air Pollution Control District (PCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern emissions of oxides of nitrogen (NOX) and particulate matter (PM) from open burning. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action. DATES: Comments must be received on or before March 22, 2021. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R09– OAR–2020–0477 at https:// www.regulations.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. SUMMARY: 10225 For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/ commenting-epa-dockets. If you need assistance in a language other than English or if you are a person with disabilities who needs a reasonable accommodation at no cost to you, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Kevin Gong, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972–3073 or by email at Gong.Kevin@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to the EPA. Table of Contents I. The State’s Submittal A. What rules did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rule revisions? II. The EPA’s Evaluation and Action A. How is the EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. The EPA’s Recommendations To Further Improve the Rules D. Public Comment and Proposed Action III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. The State’s Submittal A. What rules did the State submit? Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board. TABLE 1—SUBMITTED RULES Local agency Rule No. tkelley on DSKBCP9HB2PROD with PROPOSALS PCAPCD ......... PCAPCD ......... PCAPCD ......... Rule title 301 302 305 Nonagricultural Burning Smoke Management ................................................ Agricultural Waste Burning Smoke Management .......................................... Residential Allowable Burning ........................................................................ On May 21, 2019, the submittal for PCAPCD Rules 301 and 302 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review. On July 31, 2019, the submittal for PCAPCD Rule 305 was also deemed by operation of law to meet the criteria. B. Are there other versions of these rules? We approved earlier versions of Rules 301, 302, and 305 into the SIP on VerDate Sep<11>2014 18:27 Feb 18, 2021 Amended Jkt 253001 January 31, 2013 (78 FR 6736). If we take final action to approve the submitted versions of Rules 301, 302, and 305 that are the subject of this rulemaking, they will replace the previously approved versions of these rules in the SIP. C. What is the purpose of the rule revisions? Emissions of NOX contribute to the production of ground-level ozone, smog and PM, which harm human health and the environment. Section 110(a) of the PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 08/09/2018 08/09/2018 10/11/2018 Submitted 11/21/2018 11/21/2018 01/31/2019 CAA requires states to submit regulations that control NOX emissions. Emissions of PM, including PM equal to or less than 2.5 microns in diameter (PM2.5) and PM equal to or less than 10 microns in diameter (PM10), contribute to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires states to submit E:\FR\FM\19FEP1.SGM 19FEP1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 86, Number 32 (Friday, February 19, 2021)]
[Proposed Rules]
[Pages 10220-10225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03036]


=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2019-0599, FRL-10019-38-Region 10]


Air Plan Approval; OR; Smoke Management Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Environmental Protection Agency (EPA) is proposing to approve 
Oregon State Implementation Plan (SIP) revisions submitted on November 
3, 2014 and September 27, 2019. The submitted revisions incorporate by 
reference the most recent updates to Oregon's Smoke Management Plan. 
EPA is acting only on the most recent version of such regulations as 
the previous versions are no longer in effect as a matter of state law. 
EPA is also making technical corrections related to previous approvals 
of components of Oregon's SIP. EPA is proposing to determine that the 
changes are consistent with Clean Air Act requirements.

DATES: Comments must be received on or before March 22, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2019-0599, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from https://www.regulations.gov. EPA may publish 
any comment received to its public docket. Do not electronically submit 
any information you consider to be Confidential Business Information 
(CBI) or other information the disclosure of

[[Page 10221]]

which is restricted by statute. Multimedia submissions (audio, video, 
etc.) must be accompanied by a written comment. The written comment is 
considered the official comment and should include discussion of all 
points you wish to make. EPA will generally not consider comments or 
comment contents located outside of the primary submission (i.e. on the 
web, cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10, 1200 
Sixth Avenue, Suite 155, Seattle, WA 98101, at (206) 553-1999, or 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' is used, it means EPA.

Table of Contents

I. Background
II. Oregon's Smoke Management Program
    A. 2014 Submittal Summary
    B. 2019 Submittal Summary
III. Evaluation of Oregon's SIP Submittals
IV. Technical Corrections
V. EPA's Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. Background

    Each state has a State Implementation Plan (SIP) containing the 
control measures and strategies used to attain and maintain the 
national ambient air quality standards (NAAQS) established by the 
Environmental Protection Agency (EPA) for the criteria pollutants 
(carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, 
sulfur dioxide). The SIP contains such elements as air pollution 
control regulations, emission inventories, attainment demonstrations, 
and enforcement mechanisms. Oregon, and some other states, have adopted 
Smoke Management Plan SIPs to reduce emissions that contribute to 
visibility impairment. Wildfire has had a serious impact on Oregon 
during the past decade with many large-scale wildfires impacting the 
summer air quality in Oregon. The state anticipates that the Oregon 
Department of Forestry (ODF) will increase the use of prescribed fire 
to minimize the impacts of wildfire on air quality in response to this 
trend. Through the SMP, Oregon carefully manages prescribed fires to 
minimize smoke impacts to populated areas while maximizing the use of 
prescribed fire as a forest management tool.
    EPA first approved Oregon's Smoke Management Plan and associated 
rules into the SIP in 1988 and has approved numerous revisions to the 
Plan over time.\1\ Oregon requested additional revisions to smoke 
management rules contained in OAR Chapter 629-048, and ODF Directive 1-
4-1-601 in a SIP submittal dated October 31, 2014 (received November 3, 
2014, hereafter ``2014 Submittal''). Before EPA took action on the 2014 
Submittal, Oregon began additional rulemaking to revise portions of its 
smoke management rules. Oregon submitted those additional revisions to 
OAR 629-048 for SIP approval on September 24, 2019 (hereafter ``2019 
Submittal''). The 2019 Submittal includes revisions to regulations in 
Oregon's 2014 Submittal on which the EPA has not yet taken action. In 
this action, EPA is proposing to approve only the most recent submitted 
version of such regulations because the previous versions of the 
regulations included in the 2014 Submittal are no longer in effect as a 
matter of state law.
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    \1\ On November 22, 1988, (53 FR 47188) EPA approved the Oregon 
Smoke Management Plan at Oregon Administrative Rule (OAR) Chapter 
629, Division 43-043, and the Oregon Department of Forestry (ODF) 
``Operational Guidance for the Oregon Smoke Management Program'' 
(Directive 1-4-1-601), into the Oregon SIP. On November 1, 2001, (66 
FR 55105) EPA approved revisions to the Smoke Management Plan at OAR 
629-43-043, and approved modifications to the ODF directive 
``Operational Guidance for the Oregon Smoke Management Program'' 
into the Oregon SIP. Oregon requested EPA approve further changes to 
the Smoke Management Rule in a December 20, 2010, SIP submittal. In 
the 2010 submittal, OAR 629-048 (``Smoke Management'') replaced OAR 
629-043 (``Smoke Management Plan''). EPA approved the 2010 
submission on August 22, 2012 (77 FR 50611).
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II. Oregon's Smoke Management Program

    The ODF oversees prescribed forest burning in Oregon forest lands 
to decrease forest fuels and debris that pose increased fire risk, 
restore forest health and reduce the potential for major wildfires. ORS 
477.013 directs ODF to develop and implement a Smoke Management Plan 
for prescribed forestry burning. To carry out this directive, ODF 
developed a Smoke Management Plan, which currently consists of rules 
under OAR 629-048 (previously under OAR 629-043) and the Operational 
Guidance for the Oregon Smoke Management Program in Directive 1-4-1-
601. Oregon's Smoke Management Plan applies to prescribed burning on 
federal, state and private forestland. The objectives of the Oregon 
Smoke Management Plan (629-048-0010(4)) are to:

    (a) Minimize smoke emissions resulting from prescribed burning 
as described by ORS 477.552;
    (b) Provide maximum opportunity for essential forestland 
burning;
    (c) Protect public health by avoiding smoke intrusions;
    (d) Coordinate with other state smoke management programs;
    (e) Comply with state and federal air quality and visibility 
requirements; and
    (f) Promote the further development of techniques to minimize or 
reduce emissions by encouraging cost-effective utilization of 
forestland biomass, alternatives to burning and emission reduction 
techniques.

A. 2014 Submittal Summary

    As discussed above, in 2014 Oregon revised its Smoke Management 
Plan and submitted it to EPA for approval into the SIP. Among the 2014 
revisions, OAR 629-048-0130, Visibility Objectives, was strengthened by 
extending applicability to the full calendar year, as it was previously 
only applicable from July 1 to September 15. OAR 629-048-0130 is the 
only provision in the 2014 Submittal that remains in effect. All other 
portions of OAR 629-048 submitted in 2014 were further revised and 
included in the state's subsequent 2019 Submittal. Since the remainder 
of the 2014 Submittal is no longer in effect as a matter of state law, 
EPA is not proposing to take action on any other component of Oregon's 
2014 Submittal.

B. 2019 Submittal Summary

    In the 2019 Submittal, Oregon's process for approving prescribed 
fires focuses heavily on forecasting weather conditions and their 
effects on smoke dispersal with new NAAQS-related considerations. 
Oregon's previous approach included making single decisions for large 
tracts (approximately 150,000 contiguous acres, roughly the size of a 
ranger district) even though these large tracts can contain multiple 
airsheds and vastly different smoke dispersion conditions. The approach 
in the 2019 Submittal is more protective because ODF tailors burn 
decisions based on air quality and meteorological conditions within 
airsheds allowing for more accurate forecasts of smoke dispersion 
overall.
    Oregon's prescribed fires and resulting smoke are managed under the 
2019 Submittal with no burning allowed within 35 miles of a smoke 
sensitive receptor area \2\ (SSRA), if smoke or

[[Page 10222]]

down-slope drainage is likely to impact the SSRA due to forecasted wind 
direction. Forecasts are produced 6 days a week by ODF during the 
prescribed fire season and provide instructions for burners to prevent 
smoke impacts such as wind-direction related limitations on burning 
near SSRAs. Oregon's stated main goal of burn instructions is to move 
smoke up and away from ground levels, which is why individual burn plan 
instructions are customized for the burn area and are subject to 
changes based on forecast meteorology and field conditions. ODF also 
communicates directly with individual burn bosses about fires planned 
near SSRAs.
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    \2\ SSRAs are defined in OAR 629-048-0005(26) as areas 
designated for the highest level of protection under the Smoke 
Management Plan. They are designated by the State Board of Forestry, 
in consultation with DEQ under OAR 629-048-0140, due to past history 
of smoke incidents, density of population or other special legal 
status related to visibility such as the Columbia River Gorge Scenic 
Area.
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    The 2019 Submittal's SIP revisions do not increase prescribed fire 
authorization levels. The 2019 Submittal also retains the five program 
elements in Oregon's currently approved SIP: (1) Taking actions to 
minimize smoke emissions, (2) burning only during appropriate weather 
conditions in order to avoid smoke impacts in urban areas, (3) 
encouraging use of alternatives to fire, including a comprehensive 
reference manual of alternatives to prescribed fire, (4) requiring 
permits be obtained prior to burning, and (5) including a burn 
authorization process that involves the issuance of smoke management 
forecasts and burning instructions.\3\
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    \3\ EPA finalized the 2012 proposed approval on August 22, 2012, 
(77 FR 50611).
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    Oregon's 2019 Submittal includes additional controls and 
contingencies to protect against impacts on air quality from prescribed 
burning to nonattainment areas, maintenance areas, and areas at risk 
for becoming nonattainment. The 2019 Submittal provisions call for 
consideration of all particulate matter (PM) emissions in the air when 
planning for prescribed burns whereas the current federally approved 
requirements only consider the PM emissions attributable to prescribed 
fires. The 2019 Submittal adds a definition for a ``smoke incident'' 
and re-defines a ``smoke intrusion'' in order to establish sub-NAAQS 
intrusion thresholds and a burn approval target not to exceed 
approximately 75% of the 24-hour PM2.5 NAAQS. The 2019 SIP 
Submittal also establishes a NAAQS protective criterion for burn 
approvals through use of a one-hour threshold even though there is no 
NAAQS one-hour limit. The one-hour intrusion level, set at 70 [mu]g/m3, 
and a 24-hour intrusion level set at 26 [mu]g/m3 level (OAR 629-048-
0005 (27)) are designed to protect the NAAQS (PM2.5). These 
criteria collectively enable ODF to dictate necessary modifications to 
burn volume or tonnage, or to withhold approval to burn considering 
weather conditions. Considered as a whole, the revisions contained in 
the 2019 Submittal strengthen the currently SIP-approved smoke 
management requirements.
    Other notable modifications to the State's Smoke Management SIP 
include a process for developing community response plans and exemption 
requests, updates to Special Protection Zone \4\ (SPZ) requirements 
that provide extra smoke management protection during winter months to 
communities with histories of exceeding federal air quality standards, 
and allowing the use of polyyethylene sheeting on burn piles to 
facilitate rapid ignition and combustion of burn piles.
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    \4\ Special Protection Zones have been established around 
certain communities requiring additional protection from 
particulates such as nonattainment or maintenance. Maps identifying 
these areas are identified in maps located within Department 
Directive 1-4-1-601, which is included in the docket. See OAR 629-
048-0135 for details on requirements for these areas.
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III. Evaluation of Oregon's SIP Submittals

    Approvals to revisions of SIPs are subject to the requirements of 
CAA section 110(l). Under CAA section 110(l), the Administrator may not 
approve a SIP revision ``if the revision would interfere with any 
applicable requirements concerning attainment and reasonable further 
progress, or any other applicable requirement of [the Act].''
    The 2019 Submittal contains a `weight of evidence' analysis \5\ 
focused primarily on particulate matter impacts of the SMP revisions, 
as well as the implications of the revisions to the SMP on other NAAQS 
pollutants. The most relevant pollutants for this analysis are 
PM2.5, PM10, and ozone due to the nature of 
prescribed fire emissions and because EPA recently revised the 
PM2.5 and Ozone NAAQS resulting in more stringent standards 
(78 FR 3085, January 15, 2013, and 80 FR 65292, October 26, 2015). EPA 
expects that attainment and maintenance related to criteria pollutants 
other than PM and ozone are unlikely to be impacted by the State's 
prescribed burning program. In addition, there are no nonattainment 
areas for ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide, or 
lead in Oregon, nor has Oregon submitted any changes to regulatory 
limits in its smoke management SIP provisions for these pollutants.
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    \5\ A copy of the study is included in the Docket materials for 
this action. See: Oregon SMP 110 Discussion.
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    Prescribed burning does not generally occur in Oregon in summer 
months, the season when ozone values are expected to be the highest due 
to increased temperature and solar radiation, because those months 
generally have unfavorable smoke dispersion conditions \6\ and fire 
safety concerns. For these reasons, we are proposing to find that 
attainment and maintenance of the Ozone NAAQS are unlikely to be 
affected by the provision submitted for approval.
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    \6\ See Section 2.6 of Oregon SMP 110 Discussion, which is 
included in the docket for this action.
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    We are also proposing to find that attainment and maintenance of 
the PM NAAQS are unlikely to be affected by the provisions in the 2019 
Submittal for reasons discussed below. There are currently three PM 
nonattainment areas in Oregon: Klamath Falls for 2006 PM2.5 
and Oakridge for the 2006 PM2.5 and 1987 PM10 
NAAQS. Determinations of Attainment by the Attainment Date and a Clean 
Data Determinations were published by EPA for these areas.\7\ All areas 
in Oregon fall far below the PM10 standard of 150 [mu]g/m\3\ 
and are attaining the PM10 NAAQS. As discussed in the 
proposed findings of attainment for Klamath Falls (81 FR 36176, June 6, 
2016) and Oakridge (82 FR 52686, November 14, 2017), residential wood 
combustion (RWC) in the cold, winter months during atmospheric 
inversions is the most significant source of PM2.5 emissions 
responsible for elevated particulate matter in these areas. RWC 
emissions from certified and non-certified wood stoves, fireplaces, and 
pellet stoves are the most significant source of PM2.5 
emissions. In the Oakridge area, RWC accounts for about 86% of the base 
year direct PM2.5 emissions and 84% of the projected 
emissions on worst case winter days. The primary control strategy for 
these areas is reducing emissions from residential wood combustion 
through a program to change-out uncertified woodstoves and an episodic 
woodstove curtailment program. The curtailment program restricts wood 
burning on ``Red'' advisory days. ``Red'' days are generally declared 
when PM2.5 concentration is expected to be 25[mu]g/m\3\ 
(approx. 72% of the NAAQS) or higher.
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    \7\ Klamath Falls 2006 PM2.5, 81 FR 36176, 6/6/2016; 
and Oakridge 2006 PM2.5, 85 FR 5537, 2/8/2018; Oakridge 
1987 p.m.10, 66 FR 38947, 7/26/2001.
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    Oregon established SPZs around Klamath Falls and Oakridge to 
provide additional protection from smoke in these areas. The Oregon 
Smoke Management Plan designates SPZs to

[[Page 10223]]

include extra restrictions regarding the use of prescribed fire during 
the problematic cold weather season when these areas can experience air 
stagnation events. Specifically, the Oregon SMP at OAR 629-048-0135 
prohibits prescribed burning on ``Red'' woodstove days in the SPZ from 
December 1 through February 15 and provides additional cautionary 
requirements for prescribed burning in SPZs on non ``Red'' woodstove 
days from November 15 through February 15.
    The 2014 and 2019 submittals establish more protective burn 
authorization levels than those in the previously SIP-approved SMP 
through the establishment of sub-NAAQS intrusion thresholds at OAR 629-
048-0005(27).\8\ For example, although there is no one hour NAAQS for 
PM2.5, ODEQ has established a 1-hr threshold of 70 [mu]g/
m\3\, further bound by the 24-hr threshold of 26 [mu]g/m\3\ 
(approximately 75% of the NAAQS) for determining whether or not a burn 
will be permitted. If PM2.5 is at or above the sub-NAAQS 
thresholds, the 2019 Submittal provides that a prescribed burn would 
not be approved. Likewise, if the PM2.5 is lower than the 
PM2.5 thresholds, but additional smoke would likely cause an 
exceedance of the thresholds, the burn would also not be approved. The 
submitted revisions contain an exemption process from the 1-hr 
PM2.5 intrusion threshold but the exemption imposes 
additional requirements and conditions (OAR 629-048-0180). The revised 
Smoke Management Plan also includes provisions for removing a 
community's exemption from the 1-hour intrusion threshold if an area 
has had three or more 24-hour threshold exceedances in five years.\9\ 
The revised plan also includes a provision for revoking the exemption 
if the SSRA is within one exceedance of a NAAQS violation. Also, SSRAs 
that are in a non-attainment with the NAAQS will not be eligible for an 
exemption (see 629-048-0180 (3)(e) and (f)). There is not an exemption 
process for the 24-hr PM2.5 threshold of 26 [mu]g/m\3\, 
therefore the revised Smoke Management Plan is more protective than the 
24-hr PM2.5 NAAQS.
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    \8\ In its response to comments during the state public process, 
Oregon acknowledged that the proposed 2019 SIP amendments have the 
effect of allowing for an estimated increase of prescribed fire use 
by 80%. However, EPA proposes to conclude the burn-specific 
authorization criteria based on ambient monitoring data, included in 
the proposed SIP amendment, are sufficient to ensure continued 
protection of the NAAQS.
    \9\ From 629-048-0180 (3)(d), ``ODF and DEQ may revoke the 
exemption if there are repeated (three or more in five years) smoke 
intrusions that exceed the 24-hour average threshold or prescribed 
burning contributes to two or more NAAQS exceedances.''
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    The proposed revisions also include new best burn practices and 
emissions reduction techniques at OAR 629-048-0210 allowing the burning 
of polyethylene coverings used to keep piles of slash and thinning 
debris dry. To determine the efficacy of polyethylene coverings, ODF 
and EPA's Office of Research and Development contracted with a testing 
firm to conduct a study \10\ of emissions from wet versus dry (covered 
and uncovered) piles. The study showed that wet piles burn slower and 
produce more emissions on a mass basis due to incomplete combustion 
than dry piles. In general, burning dry piles, even with polyethylene 
still in place, produces less criteria pollutant emissions than burning 
uncovered wet piles. Therefore, the revisions allowing for burning 
polyethylene to facilitate a reduction in emissions are more protective 
of the NAAQS.
---------------------------------------------------------------------------

    \10\ A copy of the study is included in the Docket materials for 
this action. See: Attachment G of Oregon SMP 110 Discussion.
---------------------------------------------------------------------------

    Some additional changes in the 2014 and 2019 Submittals that EPA 
proposes to determine are either more protective than current SIP 
requirements or not expected to result in significant NAAQS impacts 
include expanding SPZ boundaries \11\ to include the areas from which 
prescribed burning could cause an impact and changing SSRA \12\ 
boundaries to better align with airshed boundaries. Prescribed burning 
is generally not expected to make significant contributions to the 
remaining criteria pollutants (Lead, CO, NOX, and 
SO2) due to a combination of factors. Monitored values in 
Oregon for these pollutants are well below the level of the NAAQS; 
wildfires are not known to be significant contributors of airborne Lead 
or SO2, and finally, prescribed burning in any one 
geographic area will be infrequent enough that it is not expected to 
create elevated concentrations that violate the NAAQS for any of these 
criteria pollutants. For additional information regarding these 
pollutants see Oregon SMP 110 Discussion, which is included in the 
docket materials for this action.
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    \11\ As described in OAR 629-048-0137 SPZ Contingency Plan 
Requirements.
    \12\ SSRAs are areas designated for the highest level of 
protection under the Smoke Management Plan (OAR 629-048-0005(26).
---------------------------------------------------------------------------

    Oregon's Smoke Management Plan revisions include OAR 629-048-0130 
Visibility Objectives, which clearly state that it is the intent under 
the Smoke Management Plan to comply with Regional Haze requirements as 
identified in the Oregon Regional Haze Plan. The revised Smoke 
Management Plan also enhances the Regional Haze Plan by incorporating 
practices to minimize visibility impacts to the Kalmiopsis Wilderness 
and Crater Lake National Park into the Smoke Management Plan.\13\ 
Oregon's 5-Year Progress Report approved May 17, 2019 (83 FR 22853), 
demonstrates that the long-term strategy and emission control measures 
in the existing Regional Haze SIP are sufficient to enable Oregon to 
meet all established reasonable progress goals. EPA proposes to find 
that Oregon's smoke management revisions do not constitute a relaxation 
in Oregon's Regional Haze SIP approved August 22, 2012 (77 FR 50611) 
because Oregon's revisions do not alter limits on the quantity of light 
impairing pollutants emitted from prescribed burning and OAR 629-048(2) 
clearly states it is Oregon's intent to operate their Smoke Management 
Plan in a manner consistent with the Oregon Regional Haze Plan.
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    \13\ See our proposed approval of Oregon's Regional Haze 
Progress Report (83 FR 11927, March 19, 2018) which was finalized 
May 17, 2018 (83 FR 33853).
---------------------------------------------------------------------------

IV. Technical Corrections

    EPA is making technical corrections to provisions previously 
approved as revisions to the Oregon SIP pursuant to CAA 110(k)(6). In 
2012 we approved (77 FR 50611) Oregon's revised Smoke Management Plan 
at OAR 629-048-0001 through -0500 which replaced OAR 629-043-0043 but 
we failed to update 40 CFR 52.1970(c), Table 2. We are correcting Table 
2 to reflect the 2012 approval by removing ``OAR 629-43-043'' and 
adding the portions of OAR 629-048 (state effective January 1, 2008) 
that were not revised by Oregon's 2014 or 2019 Submittals.
    We are correcting the identification of the Oregon SIP at 40 CFR 
part 52.1970(c), Table 2 by adding:
     OAR 629-048-0100, Regulated Areas (state effective 1/1/
2008);
     OAR 629-048-0160, Bear Creek/Rogue River Valley SSRA 
(state effective 1/1/2008);
     OAR 629-048-0300, Registration of Intent to Burn (state 
effective 1/1/2008);
     OAR 629-048-0330, Emission Inventories (state effective 1/
1/2008);
     OAR 629-048-0400, Coordination with Other Regulating 
Jurisdictions and for Other Pollutants (state effective 1/1/2008).
    We are also making technical corrections to the Oregon SIP at 40 
CFR part 52.1970(e), Table 5, Section 3, by revising the reference to 
Oregon's

[[Page 10224]]

Smoke Management Plan Administrative Rule to reflect the 2012 approval 
of OAR 629-048 and by removing the reference to OAR ``629 43-043''.

V. EPA's Proposed Action

    We have reviewed Oregon's demonstration and propose to find that 
the revisions discussed above meet the requirements of the CAA. Based 
on our review of Oregon's demonstration, we propose to conclude that 
the revisions to Oregon's SIP will not interfere with any applicable 
requirement concerning attainment, reasonable further progress, or any 
other applicable requirement of the Clean Air Act.
    Under CAA section 110(k), EPA is proposing to approve, and 
incorporate by reference, the 2014 and 2019 submitted revisions into 
the Oregon SIP at 40 CFR part 52, subpart MM. As discussed above, 
Oregon's 2014 and 2019 Submittals revised portions of OAR 629-048 and 
we are proposing to approve only the most recently submitted version of 
such regulations as previous versions are no longer in effect as a 
matter of state law.
    Upon final approval, the Oregon SIP will include the addition of 
the following:
     OAR 629-048-0001, Title, Scope and Effective Dates (state 
effective 3/1/2019);
     OAR 629-048-0005, Definitions (state effective 3/1/2019);
     OAR 629-048-0010, Purpose (state effective 3/1/2019);
     OAR 629-048-0020, Necessity of Prescribed Burning (state 
effective 3/1/2019);
     OAR 629-048-0021, Necessity of Safeguarding Public Health 
(state effective 3/1/2019);
     OAR 629-048-0100, Regulated Areas (state effective 1/1/
2008);
     OAR 629-048-0110, Characterization and Response to Smoke 
Incidents, Smoke Intrusions, and National Ambient Air Quality Standards 
(NAAQS) Exceedances (state effective 3/1/2019);
     OAR 629-048-0120, Air Quality Maintenance Objectives 
(state effective 3/1/2019);
     OAR 629-048-0130, Visibility Objectives (state effective 
7/11/2014);
     OAR 629-048-0135, Special Protection Zone Requirements 
(state effective 3/1/2019);
     OAR 629-048-0137, SPZ Contingency Plan Requirements (state 
effective 3/1/2019);
     OAR 629-048-0140, Smoke Sensitive Receptor Areas (state 
effective 3/1/2019);
     OAR 629-048-0150, Criteria for Future Listing of Smoke 
Sensitive Receptor Areas (state effective 3/1/2019);
     OAR 629-048-0160, Bear Creek/Rogue River Valley SSRA 
(state effective 1/1/2008);
     OAR 629-048-0180, Communication, Community Response Plans, 
and Exemption Requests (state effective 3/1/2019);
     OAR 629-048-0200, Regulated Areas (state effective 3/1/
2019);
     OAR 629-048-0210, Best Burn Practices; Emission Reduction 
Techniques (state effective 3/1/2019);
     OAR 629-048-0220, Forecast Procedures (state effective 3/
1/2019);
     OAR 629-048-0230, Burn Procedures (state effective 3/1/
2019);
     OAR 629-048-0300, Registration of Intent to Burn (state 
effective 1/1/2008);
     OAR 629-048-0310, Fees for Prescribed burning (state 
effective 3/1/2019);
     OAR 629-048-0320, Reporting of Accomplishments (state 
effective 3/1/2019);
     OAR 629-048-0330, Emission Inventories (state effective 1/
1/2008);
     OAR 629-048-0400, Coordination with Other Regulating 
Jurisdictions and for Other Pollutants (state effective 1/1/2008);
     OAR 629-048-0450, Periodic Evaluation and Adaptive 
Management (state effective 3/1/2019);
     OAR 629-048-0500, Enforcement (state effective 3/1/2019);
     ORS 477.013, Smoke Management Plan; rules (state effective 
3/1/2019); and
     Oregon Department of Forestry Directive 1-4-1-601, 
Operational Guidance for the Oregon Smoke Management Program (state 
effective 3/1/2019).
    Pursuant to 110(k)(6), we are also making corrections to the 
regulatory text that includes incorporation by reference by removing 
``OAR 629-43-043'' as discussed in Section IV. Upon final approval, the 
following regulations will be removed from 40 CFR 52.1970(c), Table 2:
     OAR 629-043-0043, Smoke Management Plan (state effective 
4/13/1987); and the corresponding cross-reference will be removed from 
40 CFR 52.1970(e), Table 5, Section 3.

VI. Incorporation by Reference

    In this document, EPA is proposing to include in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the provisions described in Section V of this preamble. Also, 
in this document, EPA is proposing to remove the incorporation by 
reference of ``OAR 629-43-043'' as described in Section IV. EPA has 
made, and will continue to make, these documents generally available 
through https://www.regulations.gov and at EPA Region 10 Office (please 
contact the person identified in the For Further Information Contact 
section of this preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not 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 requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of the requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as

[[Page 10225]]

appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed action does not apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Particulate matter.

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

    Dated: February 9, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2021-03036 Filed 2-18-21; 8:45 am]
BILLING CODE 6560-50-P

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