Air Plan Approval; OR; Updates to Adoption by Reference of Federal Provisions, 43954-43956 [2021-16947]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Rules and Regulations]
[Pages 43954-43956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16947]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2021-0212; FRL-8738-02-R10]


Air Plan Approval; OR; Updates to Adoption by Reference of 
Federal Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the Oregon State Implementation Plan (SIP) submitted on 
January 29, 2021. The revision updates the date by which Federal 
provisions are adopted by reference into the Oregon SIP, making air 
quality requirements more current.

DATES: This final rule is effective September 10, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R10-OAR-2021-0212. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information 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 at https://www.regulations.gov, or please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information.

FOR FURTHER INFORMATION CONTACT: Kristin Hall (15-H13), EPA Region 10, 
1200 Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-6357, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or 
``our'' is used, it refers to the EPA.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On January 29, 2021, the Oregon Department of Environmental Quality 
submitted a SIP revision to the EPA for approval. The revision, State 
effective January 21, 2021, updates the adoption by reference of 
Federal requirements used throughout the Oregon air quality rules. 
Oregon's air quality rules are codified in Divisions 200 through 268 of 
Chapter 340 of the Oregon Administrative Rules (OAR).
    We proposed to approve the revisions on April 5, 2021 (86 FR 
17569). The reasons for our proposed approval were included in the 
proposal and will not be restated here. The public comment period for 
our proposal closed on May 5, 2021. We received two public comments.

II. Response to Comments

Comments

    The commenters raised a wide range of concerns, including but not 
limited to the importance of human rights, legal recourse for victims 
of crimes, and just compensation for personal injury and loss of 
property. Most of the concerns raised by the commenters are broad in 
nature and do not identify any specific requirements that are 
inconsistent with Clean Air Act (CAA) requirements.

[[Page 43955]]

Therefore, we consider them outside the scope of this action. However, 
we have determined that one issue raised is within the scope of this 
action and requires a response. Specifically, one commenter alleged, 
generally, that incorporation by reference is illegal.

Response

    We disagree with the commenter's assertion that incorporation by 
reference is illegal. On the contrary, section 552(a) of title 5, 
United States Code provides that reasonably available materials are 
considered published in the Federal Register when those materials are 
incorporated by reference therein and approved by the Director of the 
Federal Register. The Code of Federal Regulations (CFR) at 1 CFR part 
51 sets forth the requirements that agencies must follow to incorporate 
materials by reference. In this rulemaking, the EPA is complying with 
the law by adhering to the requirements of 1 CFR part 51, as authorized 
by section 552(a) of title 5, United States Code.
    To the extent the commenter has concerns about Oregon's 
incorporation of certain Federal regulations by reference into State 
rules, Oregon promulgated the rule revisions in accordance with State 
and CAA procedural requirements. Documentation of Oregon's rulemaking 
process is included in the docket for this action. Also, in approving 
SIPs under section 110 of the Clean Air Act (CAA), Congress gave states 
the lead in developing plans to implement, maintain, and enforce the 
national ambient air quality standards (NAAQS)--standards designed to 
protect public health and welfare from air pollution. In reviewing 
state plans, the EPA's role is to approve state choices, provided that 
they meet the criteria of the CAA. See 42 U.S.C. 7410(k) and 40 CFR 
52.02(a). In this case, Oregon submitted State administrative rules to 
the EPA and requested that the EPA approve the rules into the Oregon 
SIP. Our action on the January 29, 2021 Oregon submission, with which 
the commenter takes issue, approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. Therefore, we are finalizing our action as 
proposed.

III. Final Action

    The EPA is approving, and incorporating by reference, revisions to 
the Oregon SIP submitted on January 29, 2021. Upon the effective date 
of this action, the Oregon SIP will include the following regulations, 
State effective January 21, 2021:
     OAR 340-200-0035, Reference Materials; and
     OAR 340-244-0030, General Provisions for Stationary 
Sources: Definitions, only to the extent needed to implement the 
requirements for gasoline dispensing facilities in Division 244 that 
are approved into the SIP for the purposes of regulating VOC emissions.

IV. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, we are finalizing the incorporation by reference of Oregon 
regulatory provisions as described in the amendments to 40 CFR part 52 
set forth below. The EPA has made, and will continue to make, these 
materials generally available through https://www.regulations.gov and 
at the EPA Region 10 Office (please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information). Therefore, these materials have been approved by the EPA 
for inclusion in the SIP, have been incorporated by reference by the 
EPA into that plan, are fully federally-enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rule of the 
EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\1\
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    \1\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 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 those requirements would be inconsistent 
with the CAA; and
     Does not provide the 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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and it will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States

[[Page 43956]]

Court of Appeals for the appropriate circuit by October 12, 2021. 
Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this action for the purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. See section 
307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: August 3, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

    For the reasons set forth in the preamble, 40 CFR part 52 is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart MM--Oregon

0
2. In Sec.  52.1970, paragraph (c), amend table 2 by revising the 
entries for ``200-0035'' and ``244-0030'' and revising footnote number 
3 to read as follows:


Sec.  52.2470   Identification of plan.

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    (c) * * *

                           Table 2--EPA Approved Oregon Administrative Rules (OAR) \1\
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                                                             State
          State citation              Title/subject     effective date   EPA approval date       Explanations
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                                CHAPTER 340--DEPARTMENT OF ENVIRONMENTAL QUALITY
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                         Division 200--General Air Pollution Procedures and Definitions
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                                                  * * * * * * *
200-0035.........................  Reference Materials       1/21/2021  8/11/2021, [Insert   ...................
                                                                         Federal Register
                                                                         citation].
 
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                        Division 244--Oregon Federal Hazardous Air Pollutant Program 2 3
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                                    General Provisions for Stationary Sources
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244-0030.........................  Definitions........       1/21/2021  8/11/2021, [Insert   ...................
                                                                         Federal Register
                                                                         citation].
 
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\3\ The EPA approves Division 244 only to the extent needed to implement the requirements for gasoline
  dispensing facilities that are approved into the SIP for the purpose of regulating VOC emissions.

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[FR Doc. 2021-16947 Filed 8-10-21; 8:45 am]
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