Air Quality State Implementation Plans; Approvals and Promulgations: Oregon; Permitting

Air Plan Approval; OR; Permitting Rule Revisions

Supplementary Information

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

Table of Contents

I. Background

II. Comments and Responses

III. Final Action

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

I. Background

On April 1, 2024, the EPA proposed to approve revisions to the Oregon SIP to strengthen and streamline the stationary source permitting rules (89 FR 22363). The reasons for our proposed action are included in the proposal and will not be restated here. The public comment period closed on May 1, 2024. We received four comments from members of the public. The full text of the comments may be found in the docket for this action. We have summarized the comments and provided our responses in section II. of this preamble.

II. Comments and Responses

Comment 1 and EPA Responses

The first commenter conveyed overall support for the EPA's proposed action to approve the submitted revisions to the Oregon SIP. The EPA acknowledges the commenter's support for the EPA's approval of Oregon's SIP submission. However, the same commenter also expressed concern about two specific items in our proposed action. First, the commenter speculated about the potential impact to the permitting program and its transparency if the permit fee table (listing the specific dollar amounts charged to facility owners and operators for various types of permit actions) were removed from the SIP. The permit fee table in question is table 2 of Oregon Administrative Rules (OAR) 340-216-8020.

In response to the comment, the EPA reiterates what was stated in the proposed action  ⁽¹⁾ and further elaborates. In the March 27, 2023, submission, Oregon requested to remove the permit fee table from the SIP. The table codifies in State regulation the specific amounts to be charged by the State of Oregon to facility owners and operators for various types of permit actions. This table is revised periodically by the State to account for inflation and State-initiated revenue adjustments. However, there is no Clean Air Act requirement to include this itemized list in the SIP. States may decide to maintain such provisions as State-only regulations. Importantly, the requirement to pay pre-construction permit fees remains in the SIP, consistent with Clean Air Act section 110(a)(2)(L). ⁽²⁾ Therefore, the EPA's position remains that the SIP submission meets Clean Air Act requirements.

With respect to transparency, the table of permit fees remains codified as a matter of State law in the OAR and is readily available to the public and regulated entities on the Oregon Secretary of State website. ⁽³⁾ The Oregon Department of Environmental Quality continues to implement the permitting program and charge the associated fees listed in the permit fee table, as required. Therefore, we find that there is no anticipated impact to transparency.

Second, the same commenter expressed concern about removing text from the SIP-approved Oregon rules that historically tightened opacity limits related to visible emissions. While the commenter did not cite to the specific regulation change, we infer that the commenter was referring to the changes to OAR 340-208-0110.

In response to this comment, the EPA believes the commenter has misunderstood Oregon's rule revisions and the basis of the EPA's proposed action. As part of the March 27, 2023 SIP submission, Oregon submitted revisions to OAR 340-208-0110. The revisions removed obsolete text that, in the past, phased in tighter, 20 percent opacity limits starting on January 1, 2020. These tighter, 20 percent opacity limits have been fully phased in and are now widely applicable. Therefore, the text that allowed greater than 20 percent opacity prior to January 1, 2020, is obsolete. Removing this obsolete text from the SIP makes the rules clearer and easier to implement and has no substantive impact on the opacity standards in Oregon's SIP. Therefore, approval of this revision is appropriate.

Comment 2 and EPA Responses

The second commenter stated that they do not feel Oregon does enough to protect the public from air pollution and that the efforts the State does make are not equitable or fair. As an example, the commenter referenced the motor vehicle inspection and maintenance program that requires emissions testing in Portland and other metropolitan areas, but does not require such testing statewide.

The EPA acknowledges the comment, however, the commenter does not indicate with specificity why approval of Oregon's revisions to its SIP-approved permitting rules is inconsistent with the Clean Air Act or otherwise inappropriate.

In addition, the EPA does not consider comments on the SIP-approved Oregon motor vehicle inspection and maintenance program to be within the scope of this action. Revisions to the inspection and maintenance program requirements of Division 256 in the OAR were most recently approved by the EPA on July 12, 2022 and we are not in this action revisiting our prior decision (87 FR 41256). Likewise, comments on potential future changes to the SIP-approved motor vehicle inspection and maintenance program that have not been submitted to the EPA for SIP approval are outside the scope of this action.

Comment 3 and EPA Responses

The third commenter expressed concern about air emissions from cannabis farms and urged that Federal charges be reestablished. The commenter pointed to studies of the potential for volatile organic compound emissions from cannabis farms to contribute to ozone formation. The EPA acknowledges the comment, however, the comment is outside the scope of this action and does not indicate that the EPA's approval of the SIP submission is inconsistent with the CAA. Federal oversight of cannabis farms is unrelated to this action. This action addresses changes to the Oregon regulations governing stationary source permitting in the State, including changes to eliminate generic plant site emission limits, update construction notification requirements, clarify the use of modeling and monitoring for compliance assurance, and streamline the permit application process.

Comment 4 and EPA Responses

The fourth commenter appears to support the EPA's proposed action. The EPA acknowledges the commenter's support of the EPA's approval of Oregon's SIP submission.

For the reasons stated in our proposed action (89 FR 22363, April 1, 2024) and in section II. of this preamble, the EPA is finalizing its action as proposed.

III. Final Action

The EPA is approving revisions to the Oregon SIP submitted on March 27, 2023. ⁽⁴⁾ The following paragraphs detail our incorporations by reference.

A. Rule Sections To Be Incorporated by Reference

The EPA is incorporating specific OAR sections by reference into the Code of Federal Regulations (CFR). Upon the effective date of this action, the regulatory portion of the Oregon SIP at 40 CFR 52.1970(c) will include the following provisions, State effective March 1, 2023:

• OAR 340-200-0020 General Air Quality Definitions (defining terms used in the Oregon air quality regulations);
• OAR 340-200-0025 Abbreviations and Acronyms (defining abbreviations and acronyms used in the Oregon air quality regulations);
• OAR 340-200-0035 Reference Materials (specifying the title and version of each reference material used in the Oregon air quality regulations);
• OAR 340-204-0300 Designation of Sustainment Areas (identifying the areas in Oregon designated as sustaining the relevant air quality standard);
• OAR 340-204-0310 Designation of Reattainment Areas (identifying the areas in Oregon designated as reattaining the relevant air quality standard);
• OAR 340-206-0010 Introduction (establishing significant harm levels for pollutants in areas based on priority level);
• OAR 340-208-0110 Visible Air Contaminant Limitations (establishing limits and test methods for visible emissions);
• OAR 340-209-0080 Issuance or Denial of a Permit (specifying procedures for issuing and denying permits, including how to request a hearing to contest a permit decision);
• OAR 340-210-0100 Registration in General (identifying categories of sources that are required to register with the Oregon DEQ);
• OAR 340-210-0205 Notice of Construction and Approval of Plans: Applicability and Requirements, except paragraph (3) (listing source types and activities that require notice to the Oregon DEQ prior to construction);
• OAR 340-210-0225 Notice of Construction and Approval of Plans: Types of Construction/Modification Changes (establishing the activities that qualify for each type of notice of construction);
• OAR 340-210-0230 Notice of Construction and Approval of Plans: Notice to Construct Application (requiring the specific information to be submitted in an application);
• OAR 340-210-0240 Notice of Construction and Approval of Plans: Construction Approval (specifying what level of approval from Oregon DEQ is needed before a source may begin construction);
• OAR 340-210-0250 Notice of Construction and Approval of Plans: Approval to Operate (specifying what is required of a source to obtain approval to operate);
• OAR 340-214-0110 Reporting: Request for Information (requiring sources to respond to Oregon DEQ requests for information);
• OAR 340-214-0114 Reporting: Records; Maintaining and Reporting (detailing when and how to record and report data);
• OAR 340-214-0130 Reporting: Information Exempt from Disclosure (establishing that trade secrets and other eligible data may be exempt from disclosure);
• OAR 340-216-0020 Applicability and Jurisdiction (identifying source categories subject to Division 216 regarding air contaminant discharge permits);
• OAR 340-216-0025 Types and Permits (identifying the types of air contaminant discharge permits);
• OAR 340-216-0040 Application Requirements (spelling out the information required to be included in permit applications);
• OAR 340-216-0054 Short Term Activity ACDPs (listing the pilot and other time-limited activities that may be eligible for a short term activity ACDP);
• OAR 340-216-0056 Basic ACDPs (identifying the contents of a basic ACDP);
• OAR 340-216-0060 General Air Contaminant Discharge Permits (identifying the contents of a general ACDP);
• OAR 340-216-0064 Simple ACDPs (identifying the contents of a simple ACDP);
• OAR 340-216-0066 Standard ACDPs (identifying the contents of a standard ACDP);
• OAR 340-216-0068 Simple and Standard ACDP Attachments (allowing Oregon DEQ to add requirements to existing simple and standard ACDP permits);
• OAR 340-216-0082 Expiration, Termination, Reinstatement or Revocation of an ACDP (regulating when and how ACDPs expire, are terminated, reinstated or revoked);
• OAR 340-216-0084 Department Initiated Modification (establishing a means by which Oregon DEQ may modify an ACDP when needed);
• OAR 340-216-8010 Table 1-Activities and Sources (listing which source categories and associated activities must obtain an ACDP);
• OAR 340-216-8020 Table 2-Air Contaminant Discharge Permits, except paragraph (2) and table 2 (requiring sources to pay ACDP fees to the Oregon DEQ);
• OAR 340-222-0020 Applicability and Jurisdiction (requiring that plant site emission limits are included in most ACDPs and title V operating permits);
• OAR 340-222-0035 General Requirements for Establishing All PSELs (describing how plant site emission limits are established and how they are revised);
• OAR 340-222-0041 Annual PSELs (prescribing how annual plant site emission limits are established on a source-specific basis);
• OAR 340-222-0042 Short Term PSEL (establishing short term limits for sources located in areas with an established short term significant emission rate);
• OAR 340-222-0046 Netting Basis (establishing netting basis requirements);
• OAR 340-224-0030 New Source Review Procedural Requirements (establishing application and processing procedures for new source review permits);
• OAR 340-224-0520 Net Air Quality Benefit Emission Offsets: Requirements for Demonstrating Net Air Quality Benefit for Ozone Areas (requiring certain sources to offset emissions in areas with ozone problems);
• OAR 340-224-0530 Net Air Quality Benefit Emission Offsets: Requirements for Demonstrating Net Air Quality Benefit for Non-Ozone Areas (requiring sources to offset emissions in areas with particulate matter problems);

• OAR 340-225-0030 Procedural Requirements (prescribing the procedures for air quality analysis);

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

B. Rule Sections To Be Removed From Incorporation by Reference

The EPA is removing from incorporation by reference the following provisions:

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

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

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

IV. Incorporation by Reference

In this document, the EPA is 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 the Oregon regulatory provisions described in section III. of this preamble and set forth in the amendments to 40 CFR part 52 in this document. 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 Clean Air Act 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. ⁽⁵⁾

Also in this document, the EPA is removing regulatory text from incorporated by reference, as described in section III. of this preamble.

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the 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).

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a "major rule" as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 23, 2024. 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).

For the reasons set forth in the preamble, the EPA amends 40 CFR part 52 as follows:

Part 52 Approval and Promulgation of Implementation Plans

Subpart Mm Oregon

[FR Doc. 2024-15748 Filed 7-22-24; 8:45 am]

BILLING CODE 6560-50-P

⁽¹⁾  See 89 FR 22363, April 1, 2024, at page 22367.

⁽²⁾  OAR-340-216-8020(1).

⁽³⁾ https://www.sos.oregon.gov/archives.

⁽⁴⁾  We are deferring action on the submitted changes to OAR-340-214-0330, because we intend to address the changes in a separate, future action.

⁽⁵⁾  62 FR 27968 (May 22, 1997).