ACTION:
Direct final rule.
SUMMARY:
EPA is taking direct final action to approve the Limited Maintenance Plan (LMP) submitted by the State of Oregon on January 13, 2012, for the Eugene-Springfield nonattainment area (Eugene-Springfield NAA) and the State's request to redesignate the area to attainment for the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM 10 ). EPA is approving the State's request because it meets Clean Air Act (CAA) requirements for redesignation. EPA is approving the State's SIP revision as a direct final rule without prior proposal because EPA views this as a noncontroversial SIP revision and anticipates no adverse comments.
DATES:
This direct final rule will be effective June 10, 2013, without further notice, unless EPA receives adverse comments by May 13, 2013. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.
ADDRESSES:
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2012-0193, by any of the following methods:
• www.regulations.gov: Follow the on-line instructions for submitting comments.
• Email:
R10-Public_Comments@epa.gov
• Mail: Kristin Hall, EPA Region 10, Office of Air, Waste and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle WA, 98101
• Hand Delivery/Courier: EPA Region 10, 1200 Sixth Avenue, Suite 900, Seattle WA, 98101. Attention: Kristin Hall, Office of Air, Waste and Toxics, AWT—107. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-2012-0193. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure 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. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle WA, 98101.
FOR FURTHER INFORMATION CONTACT:
Kristin Hall at telephone number: (206) 553-6357, email address: hall.kristin@epa.gov, or the above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever “we”, “us” or “our” are used, we mean EPA.
Table of Contents
I. This Action
II. Background
A. PM 10 NAAQS
B. Eugene-Springfield NAA and Planning Background
III. Public and Stakeholder Involvement in Rulemaking Process
IV. Requirements for Redesignation
A. CAA Requirements for Redesignation of Nonattainment Areas
B. The LMP Option for PM 10 Nonattainment Areas
C. Conformity Under the LMP Option
V. Review of the Oregon Submittal Addressing the Requirements forRedesignation and LMPs
A. Has the Eugene-Springfield NAA attained the applicable NAAQS?
B. Does the Eugene-Springfield NAA have a fully approved SIP under section 110(k) of the CAA?
C. Has the State met all applicable requirements under section 110 and part D of the CAA?
D. Has the State demonstrated that the Air Quality Improvement is due to permanentand enforceable reductions?
E. Does the area have a fully approved maintenance plan pursuant to section 175A of the CAA?
F. Has the State demonstrated that the Eugene-Springfield NAA qualifies for the LMP Option?
G. Does the State have an approved Attainment Emissions Inventory which can be used to demonstrate attainment of the NAAQS?
H. Does the LMP include an assurance of continued operation of an appropriate EPA-approved Air Quality Monitoring Network, in accordance with 40 CFR part 58?
I. Does the plan meet the Clean Air Act requirements for contingency provisions?
J. Has the State met conformity requirements?
VI. Revisions to SIP Rules to Reflect Redesignation
VII. Final Action
VIII. Oregon Notice Provision
IX. Statutory and Executive Order Reviews
I. This Action
EPA is taking direct final action to approve the LMP submitted by the State of Oregon on January 13, 2012, for the Eugene-Springfield nonattainment area (Eugene-Springfield NAA) and concurrently to redesignate the area to attainment for the PM 10 NAAQS. EPA has reviewed air quality data for the area and determined that the Eugene-Springfield NAA attained the PM 10 NAAQS by the required attainment date, and that monitoring data continue to show attainment. Also in this action, EPA is approving revisions to the State Implementation Plan (SIP) to reflect the redesignation.
II. Background
A. PM 10 NAAQS
“Particulate matter,” also known as particle pollution or PM, is a complex mixture of extremely small particles and liquid droplets. The size of particles is directly linked to their potential for causing health problems. EPA is concerned about particles that are 10 micrometers in diameter or smaller because those are the particles that generally pass through the throat and nose and enter the lungs. Once inhaled, these particles can affect the heart and lungs and cause serious adverse health effects. People with heart or lung diseases, children and older adults are the most likely to be affected by particle pollution exposure. However, even healthy individuals may experience temporary symptoms from exposure to elevated levels of particle pollution.
On July 1, 1987, EPA promulgated a NAAQS for PM 10 (52 FR 24634). EPA established a 24-hour standard of 150 μg/m 3 and an annual standard of 50 μg/m 3 , expressed as an annual arithmetic mean. EPA also promulgated secondary PM 10 standards that were identical to the primary standards. In a rulemaking action dated October 17, 2006, EPA retained the 24-hour PM 10 standard but revoked the annual PM 10 standard (71 FR 61144, effective December 18, 2006).
B. Eugene-Springfield NAA and Planning Background
On August 7, 1987, EPA designated the Eugene-Springfield area as a PM 10 nonattainment area due to measured violations of the 24-hour PM 10 standard (52 FR 29383). The notice announcing the designation, upon enactment of the 1990 CAA Amendments, was published on March 15, 1991, 56 FR 11101. On November 6, 1991, the Eugene-Springfield NAA was subsequently classified as moderate under sections 107(d)(4)(B) and 188(a) of the CAA (56 FR 56694).
After the Eugene-Springfield NAA was designated nonattainment for PM 10 , the Oregon Department of Environmental Quality (ODEQ) and Lane Regional Air Protection Agency (LRAPA) worked with the communities of Eugene and Springfield to develop a plan to bring the area into attainment no later than December 31, 1994. The State submitted the plan to EPA on November 15, 1991, as a moderate PM 10 SIP under section 189(a) of the CAA. The primary control measure submitted by the State was a comprehensive wood burning curtailment program. EPA took final action to approve the State's moderate PM 10 SIP on August 24, 1994, 59 FR 43483.
On January 13, 2012, the State submitted to EPA for approval the Eugene-Springfield PM 10 LMP and requested that EPA redesignate the Eugene-Springfield NAA to attainment for the PM 10 NAAQS. Oregon also submitted revisions to rules in the State's Federally-approved SIP to reflect the redesignation.
III. Public and Stakeholder Involvement in Rulemaking Process
Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to EPA. The State of Oregon provided notice and an opportunity for public comment from August 26, 2011 through September 26, 2011. A notice of public hearing was published in The Eugene Register-Guard on August 26, 2011 and the Oregon Bulletin, Volume 50, No. 9 on September 1, 2011. The State held a public hearing on September 27, 2011, in Springfield, Oregon. This SIP revision became State effective on December 21, 2011, and was submitted by the Governor's designee to the EPA on January 13, 2012. EPA has evaluated the State's submittal and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.
IV. Requirements for Redesignation
A. CAA Requirements for Redesignation of Nonattainment Area
Nonattainment areas can be redesignated to attainment after the area has measured air quality data showing it has attained the NAAQS and when certain planning requirements are met. Section 107(d)(3)(E) of the CAA, and the General Preamble to Title I provide the criteria for redesignation (57 FR 13498, April 16, 1992). These criteria are further clarified in a policy and guidance memorandum from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards dated September 4, 1992, “Procedures for Processing Requests to Redesignate Areas to Attainment” (Calcagni memo). The criteria for redesignation are:
1. The Administrator has determined that the area has attained the applicable NAAQS;
2. The Administrator has fully approved the applicable SIP for the area under section 110(k) of the CAA;
3. The state containing the area has met all requirements applicable to the area under section 110 and part D of the CAA;
4. The Administrator has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions; and
5. The Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA.
B. The LMP Option for PM 10 Nonattainment Areas
On August 9, 2001, EPA issued guidance on streamlined maintenance plan provisions for certain moderate PM 10 nonattainment areas seeking redesignation to attainment (Memo from Lydia Wegman, Director, Air Quality Standards and Strategies Division, entitled “Limited Maintenance Plan Option for Moderate PM 10 Nonattainment Areas” (LMP Option memo)). The LMP Option memo contains a statistical demonstration that areas meeting certain air quality criteria will, with a high degree of probability, maintain the standard 10 years into the future. Thus, EPA has already provided the maintenance demonstration for areas meeting the criteria outlined in the LMP Option memo. It follows that future year emission inventories for these areas, and some of the standard analyses to determine transportation conformity with the SIP are no longer necessary.
To qualify for the LMP Option, the area should have attained the PM 10 NAAQS and, based upon the most recent 5 years of air quality data at all monitors in the area, the 24-hour design value should be at or below 98 μg/m 3 . If an area cannot meet this test, it may still be able to qualify for the LMP Option if the average design value (ADV) for the site is less than the site-specific critical design value (CDV). In addition, the area should expect only limited growth in on-road motor vehicle PM 10 emissions (including fugitive dust) and should have passed a motor vehicle regional emissions analysis test. The LMP Option memo also identifies core provisions that must be included the LMP. These provisions include an attainment year emissions inventory, assurance of continued operation of an EPA-approved air quality monitoring network, and contingency provisions.
C. Conformity Under the LMP Option
The transportation conformity rule and the general conformity rule (40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area.
While EPA's LMP Option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting an emissions budget. Under the LMP Option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the PM 10 NAAQS would result. For transportation conformity purposes, EPA would conclude that emissions in these areas need not be capped for the maintenance period and therefore a regional emissions analysis would not be required. Similarly, Federal actions subject to the general conformity rule could be considered to satisfy the “budget test” specified in 40 CFR 93.158 (a)(5)(i)(A) for the same reasons that the budgets are essentially considered to be unlimited.
V. Review of the Oregon Submittal Addressing the Requirements for Redesignation and LMPs
A. Has the Eugene-Springfield NAA Attained the Applicable NAAQS?
States must demonstrate that an area has attained the PM 10 NAAQS through analysis of ambient air quality data from an ambient air monitoring network representing peak PM 10 concentrations. The data should be quality-assured and stored in the EPA Air Quality System database. EPA has reviewed air quality data for the area and has determined that the Eugene-Springfield NAA attained the PM 10 NAAQS 1
by the applicable attainment date of December 31, 1994, and continues to attain the PM 10 NAAQS. EPA's analysis is described below.
The 24-hour PM 10 NAAQS is 150 μg/m 3 . An area has attained this 24-hour standard when the average number of expected exceedances per year is less than or equal to one, when averaged over a three-year period (40 CFR 50.6). To make this determination, three consecutive years of complete ambient air quality data must be collected in accordance with Federal requirements (40 CFR part 58 including appendices).
A comprehensive air quality monitoring plan, meeting the requirements of 40 CFR part 58, was submitted by Oregon to EPA on December 27, 1979 (40 CFR 52.1970), and approved by EPA on March 4, 1981 (46 FR 15136). This monitoring plan has been subsequently updated, with the most recent submittal dated July 1, 2011, and approved by EPA on January 6, 2012 (Oregon Air Monitoring Plan Approval Letter, dated January 6, 2012). The monitoring plan describes the PM 10 monitoring network throughout the State, which includes site #41-039-0058-81102-1 (commonly referred to as the “Highway 99 Site” or “Key Bank Site” (Highway 99/Key Bank Site)) in the Eugene-Springfield area. In the submittal, LRAPA states that the Highway 99/Key Bank Site historically measures the highest PM 10 concentrations, and that a review of data from 2000 through 2008 shows that PM 10 concentrations recorded at this site remain well below the 24-hour PM 10 NAAQS. In addition, LRAPA states that the Highway 99/Key Bank Site is operated in compliance with EPA monitoring guidelines set forth in 40 CFR part 58, Ambient Air Quality Surveillance.
Data from the Highway 99/Key Bank Site has been quality assured by ODEQ and submitted to EPA's Air Quality System (AQS), accessible through EPA's AirData Web site at http://www.epa.gov/airdata/ . Based on EPA's review of data in AQS, there have been no exceedances of the 24-hour PM 10 NAAQS in the Eugene-Springfield NAA since 1987. Accordingly, during the three-year period ending with the December 31, 1994, attainment date, no exceedances occurred in the Eugene-Springfield NAA, and the expected exceedance rate for the Eugene-Springfield NAA for 1992-1994 is 0. Therefore, Eugene-Springfield NAA attained the 24-hour PM 10 NAAQS by the required attainment date of December 31, 1994 (PM 10 Design Value Report for Lane County, Oregon, dated April 30, 2012). EPA has also reviewed more recent ambient air quality data for the 24-hour PM 10 NAAQS, and has determined that the Eugene-Springfield area continues to attain the 24-hour PM 10 NAAQS. A summary of EPA's data review and analysis can be found in the docket for this action (Eugene-Springfield PM 10 NAAQS and LMP Determination Memo, dated July 23, 2012).
B. Does the Eugene-Springfield NAA have a fully approved SIP under section 110(k) of the CAA?
In order to qualify for redesignation, the SIP for the area must be fully approved under section 110(k) of the CAA, and must satisfy all requirements that apply to the area. As discussed in Section II. B. above, Oregon submitted a moderate PM 10 SIP for the Eugene-Springfield NAA on November 15, 1991. EPA took final action to fully approve the State's moderate PM 10 SIP on August 24, 1994 (59 FR 43483), as satisfying all requirements that apply to the area. Thus the area has a fully approved nonattainment area SIP under section 110(k) of CAA.
C. Has the State met all applicable requirements under Section 110 and Part D of the CAA?
Section 107(d)(3)(E) of the CAA requires that a state containing a nonattainment area must meet all applicable requirements under section 110 and Part D of the CAA for an area to be redesignated to attainment. EPA interprets this to mean that the state must meet all requirements that applied to the area prior to, and at the time of, the submission of a complete redesignation request. The following is a summary of how Oregon meets these requirements.
1. Clean Air Act Section 110 Requirements
Section 110(a)(2) of the CAA contains general requirements for nonattainment plans. These requirements include, but are not limited to, submittal of a SIP that has been adopted by the state after reasonable notice and public hearing; provisions for establishment and operation of appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality; implementation of a permit program; provisions for Part C—Prevention of Significant Deterioration (PSD) and Part D—New Source Review (NSR) permit programs; criteria for stationary source emission control measures, monitoring and reporting, provisions for modeling; and provisions for public and local agency participation. See the General Preamble for further explanation of these requirements (57 FR 13498, April 16, 1992). For purposes of redesignation of the Eugene-Springfield PM 10 NAA, EPA has reviewed the Oregon SIP and finds that the State has satisfied all applicable requirements under CAA section 110(a)(2) for the PM 10 NAAQS. EPA's approval of Oregon's SIP for attainment and maintenance of the PM 10 NAAQS under CAA section 110 can be found at 40 CFR 52.1972.
2. Part D Requirements
Part D of the CAA contains general requirements applicable to all areas designated nonattainment. The general requirements are followed by a series of subparts specific to each pollutant. All PM 10 nonattainment areas must meet the general provisions of Subpart 1 and the specific PM 10 provisions in Subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.” The following paragraphs discuss these requirements as they apply to the Eugene-Springfield NAA.
(2)(a) Part D, section 172(c)(2)—Reasonable Further Progress
Section 172(c) contains general requirements for nonattainment area plans. A thorough discussion of these requirements may be found in the General Preamble (57 FR 13538, April 16, 1992). CAA section 172(c)(2) requires nonattainment plans to provide for reasonable further progress (RFP). Section 171(1) of the CAA defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part (part D of title I) or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” The requirements for reasonable further progress, identification of certain emissions increases and other measures needed for attainment were satisfied with the approved Eugene-Springfield PM 10 SIP (59 FR 43483). In this action, EPA has determined that the Eugene-Springfield NAA attained the 24-hour PM 10 NAAQS by the December 31, 1994, attainment date. Therefore, EPA believes no further showing of RFP or quantitative milestones is necessary.
(2)(b) Part D, section 172(c)(3)—Emissions Inventory
Section 172(c)(3) of CAA requires a comprehensive, accurate, current inventory of actual emissions from all sources in the Eugene-Springfield PM 10 NAA. Oregon included an emissions inventory for the Eugene-Springfield area for the year 2008 in the submittal. The inventory estimated annual and winter day emissions from point sources, residential wood combustion, road dust, and motor vehicle exhaust, brake and tire wear. The emissions inventory includes an inventory of point sources of PM 10 greater than or equal to 10 tons/year to estimate emissions for 2008. Residential wood combustion emission estimates were developed from a 2009 survey of households in the Eugene-Springfield area, included in the State's submittal. Emissions estimates for road dust and motor vehicle exhaust, brake wear, and tire wear were developed using EPA-approved methods, and vehicle miles traveled estimates were obtained from the local metropolitan planning organization, Lane Council of Governments. EPA reviewed the inventory and associated calculations submitted by Oregon and believes that the 2008 Eugene-Springfield emissions inventory is current, accurate and comprehensive and therefore meets the requirements of section 172(c)(3) of the CAA.
(2)(c) Part D, section 172(c)(5)—New Source Review (NSR)
The CAA requires all nonattainment areas to meet several requirements regarding NSR. The State must have an approved major NSR program that meets the requirements of section 172(c)(5). EPA evaluated and initially approved the Oregon major NSR program on August 13, 1982 (47 FR 35191), as being equivalent or more stringent than EPA's regulations on a program basis. EPA subsequently approved revisions to Oregon's major NSR program on January 22, 2003 (68 FR 2891), and most recently approved revisions to the major NSR rules on December 27, 2011 (76 FR 80747). In the Eugene-Springfield NAA, the requirements of the Part D NSR program will be replaced by the State's Maintenance Area NSR requirements upon the effective date of redesignation.
(2)(d) Part D, section 172(c)(7)—Compliance With CAA section 110(a)(2): Air Quality Monitoring Requirements
Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accordance with 40 CFR part 58 to verify attainment status of the area. Oregon submitted a comprehensive air quality monitoring plan, meeting the requirements of 40 CFR part 58 to EPA on December 27, 1979 (40 CFR 52.1970), and EPA approved the plan on March 4, 1981 (46 FR 15136). This monitoring plan has been subsequently updated, with the most recent submittal dated July 1, 2011, and approved by EPA on January 6, 2012 (Oregon Air Monitoring Plan Approval Letter, dated January 6, 2012). As stated in the submittal, ODEQ and LRAPA operate a PM 10 monitoring network which includes site # 41-039-0058-81102-1 (Highway 99/Key Bank Site) in the Eugene-Springfield area. The Highway 99/Key Bank Site is operated in compliance with EPA monitoring guidelines set forth in 40 CFR part 58, Ambient Air Quality Surveillance. In addition, the submittal provides a commitment to continued operation of the PM 10 monitoring network and the Highway 99/Key Bank Site in the Eugene-Springfield area.
(2)(e) Part D, section 172(c)(9)—Contingency Measures
The CAA requires that contingency measures take effect if an area fails to meet RFP requirements or fails to attain the NAAQS by the applicable attainment date. Since, as part of this action, EPA has determined the Eugene-Springfield NAA attained the PM 10 NAAQS by the applicable attainment date of December 31, 1994, contingency measures are no longer required under section 172(c)(9) of the CAA. However, contingency provisions are required for maintenance plans under Section 175A. Please see section V. I. for a description of Oregon's maintenance plan contingency provisions.
(2)(f) Part D, section 189(a), (c) and (e)—Additional Provisions for Particulate Matter Nonattainment Areas
Section 189(a), (c) and (e) requirements apply to moderate PM 10 nonattainment areas. Any of these requirements which were applicable and due prior to the submission of the redesignation request must be fully approved into the SIP before redesignating the area to attainment. With respect to the Eugene-Springfield NAA, these requirements include:
(a) Provisions to assure that reasonably available control measures were implemented by December 10, 1993 (section 189(a)(1)(C));
(b) either a demonstration that the plan provided for attainment as expeditiously as practicable, but not later than December 31, 1994, or a demonstration that attainment by that date was impracticable (section 189(a)(1)(B));
(c) quantitative milestones which were achieved every 3 years and which demonstrate RFP toward attainment by December 31, 1994 (section 189(c)(1)); and
(d) provisions to assure that the control requirements applicable to major stationary sources of PM 10 also apply to major stationary sources of PM 10 precursors except where the Administrator determined that such sources do not contribute significantly to PM 10 levels which exceed the NAAQS in the area (section 189(e)).
Provisions for reasonably available control measures, attainment demonstration, and RFP milestones were fully approved into the SIP upon EPA approval of the moderate PM 10 SIP for the Eugene-Springfield NAA on August 24, 1994 (59 FR 43483). EPA most recently approved revisions to Oregon's major NSR rules on December 27, 2011 (76 FR 80747). Oregon's major NSR rules include control requirements that apply to major stationary sources of PM 10 and PM 10 precursors in nonattainment areas, maintenance areas, and attainment/unclassifiable areas. For the Eugene-Springfield area, EPA determined that major stationary sources do not contribute significantly to PM 10 levels in excess of the NAAQS. Therefore, in EPA's action to approve the moderate PM 10 SIP for Eugene-Springfield, EPA granted the exclusion from control requirements authorized under section 189(e) for major stationary sources of PM 10 precursors (59 FR 43483).
D. Has the State demonstrated that the Air Quality Improvement is due to permanent and enforceable reductions?
Section 107(d)(3)(E)(iii) of the CAA provides that a nonattainment area may not be redesignated unless EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP. Therefore, a state must be able to reasonably attribute the improvement in air quality to permanent and enforceable emission reductions by demonstrating that air quality improvements are the result of actual enforceable emission reductions. This showing should consider emission rates, production capacities, and other related information. The analysis should assume that sources are operating at permitted levels (or historic peak levels) unless evidence is presented that such an assumption is unrealistic.
Permanent and enforceable control measures in the Eugene-Springfield moderate PM 10 SIP include a mandatory home wood heating curtailment program, and existing controls on local industrial sources. These controls were approved by EPA into the Eugene-Springfield PM 10 SIP, and they are both permanent and Federally enforceable (59 FR 43483). As described in the submittal, the primary control measure relied on is the mandatory home wood heating curtailment program which was fully implemented on November 1, 1991. The program consists of a daily multi-stage advisory issued each winter from November through the end of February. The daily advisory, which is based upon forecast meteorology and air quality, provides a color-coded stage based on air quality conditions. During good air quality conditions, a Green advisory allowing residential wood combustion is issued. If air quality conditions are deteriorating, a Yellow advisory requesting voluntary curtailment of residential wood burning is issued. If PM 10 levels are forecast to be near or exceeding the standard, a Red advisory prohibiting residential wood burning is issued (with an exemption for economic need). Each of the three jurisdictions in the Eugene-Springfield NAA—Lane County, the City of Eugene, and the City of Springfield—enacted ordinances that prohibit the use of solid-fuel space heating devices based on the advisories. The enforcement of these ordinances has been delegated to LRAPA.
EPA believes that areas that qualify for the LMP Option will meet the NAAQS, even under worst case meteorological conditions. Therefore, under the LMP Option, the maintenance demonstration is presumed to be satisfied if an area meets the qualifying criteria. A description of the LMP qualifying criteria and how the Eugene-Springfield area meets these criteria is provided below. By qualifying for the LMP Option, Oregon presumptively demonstrates that the air quality improvements in the Eugene-Springfield area are the result of permanent emission reductions and not a result of either economic trends or meteorology.
E. Does the area have a fully approved maintenance plan pursuant to Section 175A of the CAA?
In this action, we are approving the LMP in accordance with the principles outlined in the LMP Option memo. Upon the effective date of this action, the area will have a fully approved maintenance plan.
F. Has the state demonstrated that the Eugene-Springfield NAA Qualifies for the LMP Option?
The LMP Option memo outlines the requirements for an area to qualify for the LMP Option. First, the area should be attaining the NAAQS. In this action, EPA has determined that the Eugene-Springfield NAA attained the PM 10 NAAQS by the required attainment date, and continues to be in attainment with the PM 10 NAAQS. Please see section V. A. for a detailed discussion.
Second, the average design value (ADV) for the past 5 years of monitoring data must be at or below the critical design value (CDV). The CDV is a margin of safety value and is the value at which an area has been determined to have a 1 in 10 probability of exceeding the NAAQS. The LMP Option memo provides two methods for review of monitoring data for the purpose of qualifying for the LMP Option. The first method is a comparison of a site's ADV with the CDV of 98 µg/m 3 for the 24 hour PM 10 NAAQS and 40 µg/m 3 for the annual PM 10 NAAQS. A second method that applies to the 24-hour PM 10 NAAQS is the calculation of a site-specific CDV and a comparison of the site-specific CDV with the ADV for the past 5 years of monitoring data. The State's submittal provides a comparison of 5-year ADVs compared to the 24-hour and annual CDVs, as described in the first method for review of monitoring data to qualify for the LMP Option. Oregon's analysis demonstrates that the Eugene-Springfield NAA meets the LMP design value criteria for the period 2004-2008. Using EPA-recommended methodology, Oregon calculated the 24-hour ADV for the area to be 66 µg/m 3 , which is well below the CDV of 98 µg/m 3 . Oregon calculated the annual ADV to be 17 µg/m 3 , which is well below the CDV of 40 µg/m 3 . EPA has reviewed the Oregon calculations and concurs with the State's findings. EPA also calculated average design values using more recent data and found that the Eugene-Springfield area meets the LMP design value criteria for the period 2007-2011. EPA's design value calculations and analysis can be found in the docket for this action (Eugene-Springfield PM 10 NAAQS and LMP Determination Memo, dated July 23, 2012). Therefore, EPA finds that Eugene-Springfield meets the design value criteria outlined in the LMP Option memo.
Third, the area must meet the motor vehicle regional emissions analysis test in attachment B of the LMP Option memo. Using the methodology outlined in attachment B, Oregon submitted an analysis of whether increased emissions from on-road mobile sources would increase PM 10 concentrations in the Eugene-Springfield NAA to levels that would threaten the assumption of maintenance that underlies the LMP policy. Based on monitoring data for the period 2004-2008, Oregon has determined that the Eugene-Springfield NAA passes the motor vehicle regional emissions analysis test. EPA has reviewed the calculations in the State's submittal and concurs with this conclusion.
As described above, the Eugene-Springfield NAA meets the qualification criteria set forth in the LMP Option memo and therefore qualifies for the LMP Option. The LMP Option memo also indicates that once a state selects the LMP Option and it is in effect, the state will be expected to determine, on an annual basis, that the LMP criteria are still being met. If the state determines that the LMP criteria are not being met, it should take action to reduce PM 10 concentrations enough to requalify for the LMP Option. One possible approach the state could take is to implement contingency provisions. Please see Section V. I. for a description of contingency provisions submitted as part of the State's submittal.
As a result of the above analysis, EPA is approving the LMP for the Eugene-Springfield area and the State's request to redesignate the Eugene-Springfield NAA to attainment for PM 10 .
G. Does the State have an approved attainment emissions inventory which can be used to demonstrate attainment of the NAAQS?
Pursuant to the LMP Option memo, the state's approved attainment plan should include an emissions inventory which can be used to demonstrate attainment of the NAAQS. The inventory should represent emissions during the same five-year period associated with air quality data used to determine whether the area meets the applicability requirements of the LMP Option. The state should review its inventory every three years to ensure emissions growth is incorporated in the inventory if necessary.
Oregon's submittal includes an emissions inventory for the year 2008. After reviewing the 2008 emissions inventory and determining that it is current, accurate and complete, as well as reviewing monitoring data for the years 2004-2008, EPA has determined that the 2008 emissions inventory is representative of the attainment year inventory since the NAAQS was not violated during 2008. In addition, the year 2008 is representative of the level of emissions during the time period used to calculate the average design value since 2008 is one of the years during the five year period used to calculate the design value (2004-2008). The submittal meets EPA guidance, as described above, for purposes of an attainment emissions inventory.
H. Does the LMP include an assurance of continued operation of an appropriate EPA-approved air quality monitoring network, in accordance with 40 CFR part 58?
PM 10 monitoring was established in the Eugene-Springfield area in 1984. LRAPA currently maintains a PM 10 monitoring network which includes the Highway 99/Key Bank Site within the Eugene-Springfield area. Oregon and LRAPA's monitoring network was developed and has been maintained in accordance with Federal siting and design criteria in 40 CFR part 58 and in consultation with EPA Region 10. EPA most recently approved Oregon's air monitoring plan, on January 6, 2012 (Oregon Air Monitoring Plan Approval Letter, dated January 6, 2012). In the submittal, LRAPA states that it will continue to monitor for PM 10 in the Eugene-Springfield NAA.
I. Does the plan meet the clean air act requirements for contingency provisions?
CAA section 175A states that a maintenance plan must include contingency provisions, as necessary, to promptly correct any violation of the NAAQS which may occur after redesignation of the area to attainment. As explained in the LMP Option memo and Calcagni memo, these contingency provisions are considered to be an enforceable part of the SIP. The plan should clearly identify the provisions to be adopted, a schedule and procedures for adoption and implementation, and a specific time limit for action by the state. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency provision, the contingency provision that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the provision. The LMP Option memo and Calcagni memo state that EPA will review what constitutes a contingency plan on a case-by-case basis. At a minimum, it must require that the State will implement all measures contained in the Part D nonattainment plan for the area prior to redesignation.
In the submittal, ODEQ and LRAPA have included maintenance plan contingency provisions to ensure the area continues to meet the PM 10 NAAQS. Specifically, ODEQ and LRAPA submitted revised local home wood heating curtailment program requirements for the three jurisdictions in the area, specifically, Eugene, Springfield and Lane County. The local ordinances implementing the program have been strengthened to include a requirement prohibiting solid fuel space heating devices from burning plastics, petroleum by-products, petroleum treated materials, rubber products, animal remains, animal or vegetable matter resulting from the handling, preparation, cooking or service of food, or of any other material which normally emits dense smoke or noxious odors. In addition, during a Green or Yellow advisory, the discharge of emissions from a solid fuel space heating device is now limited to a maximum opacity of 40%, with a 10 minute exemption during every 4-hour period for the building of a new fire. These revised ordinances have been adopted by the local jurisdictions and are currently being implemented in the Eugene-Springfield area. The ordinances each specify “triggers” for implementing provisions, based on forecasted PM 10 levels. In addition to the local home wood heating curtailment program, the LMP references the Oregon “Heat Smart” law. This law has been adopted state-wide and requires the removal and decommissioning of any uncertified woodstove or fireplace insert from a home when it is sold.
The contingency provisions submitted by ODEQ and LRAPA have been adopted by the local jurisdictions, are currently being implemented in the Eugene-Springfield area, and contain triggers based on forecasted PM 10 levels for implementing specific provisions to reduce particulate matter emissions from home wood heating. Therefore, EPA believes the contingency provisions are adequate to meet CAA Section 175A requirements.
J. Has the State met conformity requirements?
1. Transportation Conformity
Under the LMP Option, emissions budgets are treated as essentially not constraining for the maintenance period because it is unreasonable to expect that qualifying areas would experience so much growth in that period that a NAAQS violation would result. While areas with maintenance plans approved under the LMP Option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the state must document and ensure that:
a. Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113;
b. Transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108;
c. The MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105;
d. Conformity of transportation plans is determined no less frequently than every three years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;
e. The latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;
f. Projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and
g. Project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.
In a letter to LRAPA dated October 3, 1994, EPA determined that the Eugene-Springfield area met the criteria to be exempted from regional emissions analysis for PM 10 (Conformity Letter, dated October 3, 1994). However, project level conformity requirements would continue to apply to the area. With EPA's approval of the LMP, the area continues to be exempt from performing a regional emissions analysis, but must meet project-level conformity analyses as well as the transportation conformity criteria mentioned above.
2. General Conformity
For Federal actions which are required to address the specific requirements of the general conformity rule, one set of requirements applies particularly to ensuring that emissions from the action will not cause or contribute to new violations of the NAAQS, exacerbate current violations, or delay timely attainment. One way that this requirement can be met is to demonstrate that “the total of direct and indirect emissions from the action (or portion thereof) is determined and documented by the State agency primarily responsible for the applicable SIP to result in a level of emissions which, together with all other emissions in the nonattainment area, would not exceed the emissions budgets specified in the applicable SIP” (40 CFR 93.158(a)(5)(i)(A)).
The decision about whether to include specific allocations of allowable emissions increases to sources is one made by the state and local air quality agencies. These emissions budgets are different than those used in transportation conformity. Emissions budgets in transportation conformity are required to limit and restrain emissions. Emissions budgets in general conformity allow increases in emissions up to specified levels. Oregon has not chosen to include specific emissions allocations for Federal projects that would be subject to the provisions of general conformity.
VI. Revisions to SIP Rules To Reflect Redesignation
In the submittal, Oregon included revisions to Oregon Administrative Rules (OAR) and LRAPA rules in the SIP to reflect the redesignation of the Eugene-Springfield area. In this action, EPA is approving changes to OAR Chapter 340, Division 204 Designation of Air Quality Areas, Rule 0030 Designation of Nonattainment Areas and Rule 0040 Designation of Maintenance Areas to remove Eugene-Springfield from the list of PM 10 nonattainment areas and add the area to the list of PM 10 maintenance areas. In addition, EPA is approving minor editorial changes to OAR Chapter 340, Division 204 Designation of Air Quality Areas, Rule 0010 Definitions to consistently refer to the Eugene-Springfield “Urban Growth Boundary” rather than the Eugene-Springfield “Urban Growth Area.” EPA is taking no action on OAR Chapter 340, Division 200 General Air Pollution Procedures and Definitions, Rule 0040 State of Oregon Clean Air Act Implementation Plan because this rule describes the State's procedures for adopting its SIP and incorporates by reference all of the revisions adopted by the Environmental Quality Council for approval into the Oregon SIP (as a matter of state law). This is not what is actually approved by EPA as the Federally-enforceable SIP for Oregon, so we are therefore taking no action on it.
EPA is also approving changes to LRAPA Title 29 Designation of Air Quality Areas, Section 29-0030 Designation of Nonattainment Areas and Section 29-0040 Designation of Maintenance Areas to remove Eugene-Springfield from the list of PM 10 nonattainment areas and add the area to the list of PM 10 maintenance areas. In addition, EPA is approving minor editorial changes to LRAPA Title 29, Designation of Air Quality Areas, Section 29-0010 Definitions to refer to the Eugene-Springfield “Urban Growth Boundary” rather than the Eugene-Springfield “Urban Growth Area.”
Finally, EPA is approving changes to LRAPA Title 32 Emission Standards, Section 32-060 Air Conveying Systems and Section 32-065 Sulfur Content of Fuels to ensure the requirements of these rules continue to apply to the Eugene-Springfield area after redesignation.
VII. Final Action
EPA is taking direct final action to approve the LMP submitted by the State of Oregon for the Eugene-Springfield NAA and concurrently redesignate the area to attainment for the PM 10 NAAQS. EPA has reviewed air quality data for the area and determined that the Eugene-Springfield NAA attained the PM 10 NAAQS by the required attainment date, and that air monitoring data continue to show attainment. Also in this action, EPA is approving revisions to rules in the State's Federally-approved SIP to reflect the redesignation. EPA is approving this revision to the SIP because it meets the CAA requirements for redesignation.
EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective June 10, 2013 without further notice unless the Agency receives adverse comments by May 13, 2013.
If EPA receives such comments, then EPA will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 10, 2013 and no further action will be taken on the proposed rule.
VIII. Oregon Notice Provision
Oregon Revised Statute 468.126 prohibits ODEQ from imposing a penalty for violation of an air, water or solid waste permit unless the source has been provided five days' advanced written notice of the violation and has not come into compliance or submitted a compliance schedule within that five day period. By its terms, the statute does not apply to Oregon's Title V program or to any program if application of the notice provision would disqualify the program from Federal delegation. Oregon has previously confirmed that, because application of the notice provision would preclude EPA approval of the Oregon SIP, no advance notice is required for violation of SIP requirements.
IX. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );
• 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 Clean Air Act; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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 Court of Appeals for the appropriate circuit by June 10, 2013. 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
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate Matter, and Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Air pollution control, National parks, Wilderness areas.
Authority:
42 U.S.C. 7401 et seq.
Dated: September 24, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.
Note:
This document was received by the Office of the Federal Register on April 5, 2013.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority:
42 U.S.C. 7401 et seq.
Subpart MM—Oregon
2. Section 52.1970 is amended by adding paragraph (c)(155) to read as follows:
§ 52.1970
(c) * * *
(155) On January 13, 2012, the Oregon Department of Environmental Quality submitted the Eugene-Springfield PM 10 Limited Maintenance Plan and requested redesignation of the Eugene-Springfield nonattainment area to attainment for the PM 10 National Ambient Air Quality Standards. The State also submitted revisions to rules in the Federally-approved SIP to reflect the requested redesignation. The State's Limited Maintenance Plan, redesignation request, and rule revisions meet the requirements of the Clean Air Act.
(i) Incorporation by reference.
(A) The following revised sections of the Oregon Administrative Rules (OAR) Chapter 340, effective December 21, 2011: Division 204, Designation of Air Quality Areas: Rule 0010 Definitions; Rule 0030 Designation of Nonattainment Areas; and Rule 0040 Designation of Maintenance Areas.
(B) Letter from Merlyn Hough, dated January 8, 2013, certifying that Lane Regional Air Protection Agency (LRAPA) adopted LRAPA provisions from Titles 29 and 32 on September 26, 2011 as described in the LRAPA Board meeting minutes.
(C) Lane Regional Air Protection Agency (LRAPA) Board meeting minutes, dated September 26, 2011.
(D) The following revised sections of the Lane Regional Air Protection Agency (LRAPA) Rules, Title 29 Designation of Air Quality Areas, adopted September 26, 2011: Section 29-0010 Definitions (except paragraphs 1 through 5, and 7 through 14); Section 29-0030 Designation of Nonattainment Areas; and Section 29-0040 Designation of Maintenance Areas.
(E) The following revised sections of the Lane Regional Air Protection Agency (LRAPA) Rules Title 32 Emission Standards, adopted September 26, 2011: Section 32-060 Air Conveying Systems; and Section 32-065 Sulfur Content of Fuels (except paragraphs 1 and 2).
3. Section 52.1973 is amended by adding paragraph (e)(6) to read as follows:
§ 52.1973
(e) * * *
(6) EPA approves as a revision to the Oregon State Implementation Plan, the Eugene-Springfield PM 10 Limited Maintenance Plan adopted by the Oregon Environmental Quality Commission on December 15, 2011 and submitted to EPA on January 13, 2012.
PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
4. The authority citation for part 81 continues to read as follows:
Authority:
42 U.S.C. 7401 et seq.
5. In § 81.338, the table entitled “Oregon-PM-10” is amended by revising the entry for “Eugene/Springfield (the Urban Growth Boundary area)” to read as follows:
§ 81.338
Oregon—PM-10
Designated area
Designation
Date
Type
Classification
Date
Type
*******
Eugene/Springfield (the Urban Growth Boundary area)
6/10/13
Attainment
*******
[FR Doc. 2013-08394 Filed 4-10-13; 8:45 am]
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