[Federal Register Volume 77, Number 25 (Tuesday, February 7, 2012)]
[Proposed Rules]
[Pages 6044-6054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2779]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2011-0716, FRL-9628-1]


Approval and Promulgation of Implementation Plans; Oregon: 
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP) submittal from the State of Oregon to demonstrate that the SIP 
meets the requirements of section 110(a)(1) and (2) of the Clean Air 
Act (CAA) for the National Ambient Air Quality Standards (NAAQS) 
promulgated for ozone on July 18, 1997. EPA is proposing to find that 
the current Oregon SIP meets the following 110(a)(2) infrastructure 
elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M).

DATES: Comments must be received on or before March 8, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2011-0716, by any of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected]
     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-
2011-

[[Page 6045]]

0716. 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 coment, 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: [email protected], or the above EPA, 
Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', 
``us'' or ``our'' are used, we mean EPA. Information is organized as 
follows:

Table of Contents

I. What action is EPA proposing?
II. What is the background for the action that EPA is proposing?
III. What infrastructure elements are required under sections 
110(a)(1) and (2)?
IV. What is the scope of action on infrastructure submittals?
V. What is EPA's analysis of Oregon's submittal?
VI. Scope of Proposed Action
VII. Proposed Action
VIII. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    EPA is proposing to approve the State Implementation Plan (SIP) 
submittal from the State of Oregon to demonstrate that the SIP meets 
the requirements of section 110(a)(1) and (2) of the Clean Air Act 
(CAA) for the National Ambient Air Quality Standards (NAAQS) 
promulgated for ozone on July 18, 1997. EPA is proposing to find that 
the current Oregon SIP meets the following 110(a)(2) infrastructure 
elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M).
    Section 110(a)(1) of the CAA requires that each state, after a new 
or revised NAAQS is promulgated, review their SIPs to ensure that they 
meet the requirements of the ``infrastructure'' elements of section 
110(a)(2). The State of Oregon submitted a certification to EPA on 
September 25, 2008, certifying that Oregon's SIP meets the 
infrastructure obligations for the 1997 8-hour ozone and 1997 
PM2.5 NAAQS. The certification included an analysis of 
Oregon's SIP as it relates to each section of the infrastructure 
requirements with regard to the 1997 8-hour ozone and 1997 
PM2.5 NAAQS.
    At this time, EPA is acting on the infrastructure SIP submittal for 
the 110(a)(2) required elements as they relate to the 1997 8-hour ozone 
NAAQS. This action does not address infrastructure requirements with 
respect to the 1997 PM2.5 NAAQS which EPA intends to act on 
at a later time. This action also does not address the requirements of 
110(a)(2)(D(i) for the 1997 8-hour ozone NAAQS which were previously 
approved by EPA in three separate actions on June 9, 2011 (76 FR 
33650), July 5, 2011 (76 FR 38997), and November 9, 2011 (76 FR 80747).

II. What is the background for the action that EPA is proposing?

    On July 18, 1997, EPA promulgated a new NAAQS for ozone. EPA 
revised the ozone NAAQS to provide an 8-hour averaging period which 
replaced the previous 1-hour averaging period, and the level of the 
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 
38856).
    The CAA requires SIPs meeting the requirements of sections 
110(a)(1) and (2) be submitted by states within 3 years after 
promulgation of a new or revised standard. Sections 110(a)(1) and (2) 
require states to address basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the standards, so-called ``infrastructure'' 
requirements. States were required to submit such SIPs for the 1997 8-
hour ozone NAAQS to EPA no later than June 2000. However, intervening 
litigation over the 1997 8-hour ozone standard created uncertainty 
about how to proceed, and many states did not provide the required 
infrastructure SIP submissions for the newly promulgated standard.
    To help states meet this statutory requirement for the 1997 8-hour 
ozone NAAQS, EPA issued guidance to address infrastructure SIP elements 
under section 110(a)(1) and (2).\1\ This guidance provides that to the 
extent an existing SIP already meets the section 110(a)(2) 
requirements, states need only to certify that fact via a letter to 
EPA. Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, but the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time the 
state develops and submits the SIP for a new or revised NAAQS affects 
the content of the submission. The contents of such SIP submissions may 
also vary depending upon what provisions the state's federally approved 
SIP already contains. In the case of the 1997 8-hour ozone NAAQS, 
states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous ozone standards.
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    \1\ William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards. ``Guidance on SIP 
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality 
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X, 
October 2, 2007.
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III. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    Section 110(a)(1) provides the procedural and timing requirements 
for SIP submissions after a new or revised NAAQS is promulgated. 
Section 110(a)(2) lists specific elements that states must meet for 
``infrastructure'' SIP requirements related to a newly established or 
revised NAAQS. These requirements include SIP infrastructure elements 
such as modeling, monitoring,

[[Page 6046]]

and emissions inventories that are designed to assure attainment and 
maintenance of the NAAQS. The requirements, with their corresponding 
CAA subsection, are listed below:
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.
     110(a)(2)(J): Consultation with government officials; 
public notification; and Prevention of Significant Deterioration (PSD) 
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    EPA's October 2, 2007 guidance clarified that two elements 
identified in section 110(a)(2) are not governed by the 3 year 
submission deadline of section 110(a)(1) because SIPs incorporating 
necessary local nonattainment area controls are not due within 3 years 
after promulgation of a new or revised NAAQS, but rather due at the 
time the nonattainment area plan requirements are due pursuant to CAA 
section 172. These requirements are: (i) Submissions required by 
section 110(a)(2)(C) to the extent that subsection refers to a permit 
program as required in part D, Title I of the CAA, and (ii) submissions 
required by section 110(a)(2)(I) which pertain to the nonattainment 
planning requirements of part D, Title I of the CAA. As a result, this 
action does not address infrastructure elements related to section 
110(a)(2)(C) with respect to nonattainment new source review (NSR) or 
110(a)(2)(I).
    This action also does not address the requirements of 
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS which have been 
addressed by three separate actions issued by EPA. On June 9, 2011, EPA 
approved the SIP revision submitted by the Oregon Department of 
Environmental Quality (ODEQ) to address specific provisions of Clean 
Air Act section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS 
including two of the four prongs of 110(a)(2)(D)(i): significant 
contribution to nonattainment of these NAAQS in any other state (prong 
1) and interference with maintenance of these NAAQS by any other state 
(prong 2) (76 FR 33650). Subsequently, on July 5, 2011, EPA approved 
portions of a SIP revision submitted by ODEQ as meeting the 
requirements of the fourth prong of Clean Air Act section 
110(a)(2)(D)(i) as it applies to visibility for the 1997 8-hour ozone 
NAAQS (prong 4) (76 FR 38997). Finally, on November 9, 2011, EPA 
approved an Oregon SIP revision that addressed among other things, 
interference with any other state's required measures to prevent 
significant deterioration (PSD) of its air quality with respect to the 
1997 8-hour ozone NAAQS (prong 3) (76 FR 80747).
    Furthermore, EPA interprets the section 110(a)(2)(J) provision on 
visibility as not being triggered by a new NAAQS because the visibility 
requirements in part C are not changed by a new NAAQS.

IV. What is the scope of action on infrastructure submittals?

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on those infrastructure SIP 
submissions.\2\ The commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction at sources that may be contrary to the CAA and 
EPA's policies addressing such excess emissions (``SSM'') and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated in other proposals that it would address 
the issues separately: (i) Existing provisions for minor source new 
source review programs that may be inconsistent with the requirements 
of the CAA and EPA's regulations that pertain to such programs (``minor 
source NSR'') and (ii) existing provisions for Prevention of 
Significant Deterioration programs that may be inconsistent with 
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 
80,186 (December 31, 2002), as amended by 72 FR 32,526 (June 13, 2007) 
(``NSR Reform''). In light of the comments, EPA believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth. It is important to emphasize that EPA is taking the same 
position with respect to these four substantive issues in this action 
on the infrastructure SIP for the 1997 8-hour ozone NAAQS submittal 
from Oregon.
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    \2\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational, and to provide general notice 
of the potential existence of provisions within the existing SIPs of 
some states that might require future corrective action. EPA did not 
want states, regulated entities, or members of the public to be under 
the misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing State provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
reapproval of any existing provisions that relate to these four 
substantive issues. EPA is reiterating that position in this action on 
the 1997 8-hour ozone infrastructure SIP for Oregon.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the

[[Page 6047]]

other three substantive issues to be integral parts of acting on an 
infrastructure SIP submission, and therefore that EPA was merely 
postponing taking final action on the issues in the context of the 
infrastructure SIPs. This was not EPA's intention. To the contrary, EPA 
only meant to convey its awareness of the potential for certain types 
of deficiencies in existing SIPs, and to prevent any misunderstanding 
that it was reapproving any such existing provisions. EPA's intention 
was to convey its position that the statute does not require that 
infrastructure SIPs address these specific substantive issues in 
existing SIPs and that these issues may be dealt with separately, 
outside the context of acting on the infrastructure SIP submission of a 
state. To be clear, EPA did not mean to imply that it was not taking a 
full final agency action on the infrastructure SIP submission with 
respect to any substantive issue that EPA considers to be a required 
part of acting on such submissions under section 110(k) or under 
section 110(c). Given the confusion evidently resulting from EPA's 
statements in those other proposals, however, we want to explain more 
fully the Agency's reasons for concluding that these four potential 
substantive issues in existing SIPs may be addressed separately from 
actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPS are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, new source review 
permitting program submissions required to address the requirements of 
part D, and a host of other specific types of SIP submissions that 
address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\3\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\4\
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    \3\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \4\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOx SIP Call; Final Rule,'' 70 FR 25,162 (May 12, 
2005) (defining, among other things, the phrase ``contribute 
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\5\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\6\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section 110(a)(2) would be 
relevant, or as relevant, or relevant in the same way, for each new or 
revised NAAQS and the attendant infrastructure SIP submission for that 
NAAQS. For example, the monitoring requirements that might be necessary 
for purposes of section 110(a)(2)(B) for one NAAQS could be very 
different than what might be necessary for a different pollutant. Thus, 
the content of an infrastructure SIP submission to meet this element 
from a state might be very different for an entirely new NAAQS, versus 
a minor revision to an existing NAAQS.\7\
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    \5\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \6\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \7\ For example, implementation of the 1997PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs

[[Page 6048]]

required by part D also would not need to address the requirements of 
section 110(a)(2)(G) with respect to emergency episodes, as such 
requirements would not be limited to nonattainment areas. As this 
example illustrates, each type of SIP submission may implicate some 
subsections of section 110(a)(2) and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\8\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \9\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements. '' \10\ EPA also stated its 
belief that with one exception, these requirements were ``relatively 
self explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \11\ For the one exception to that general assumption, 
however, i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
State would work with its corresponding EPA regional office to refine 
the scope of a State's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the State's SIP for the NAAQS in question.
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    \8\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \9\ Id., at page 2.
    \10\ Id., at attachment A, page 1.
    \11\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\12\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS. Significantly, neither the 2007 
Guidance nor the 2009 Guidance explicitly referred to the SSM, 
director's discretion, minor source NSR, or NSR Reform issues as among 
specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 
2009 Guidance, however, EPA did not indicate to states that it intended 
to interpret these provisions as requiring a substantive submission to 
address these specific issues in existing SIP provisions in the context 
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 
Guidance merely indicated its belief that the states should make 
submissions in which they established that they have the basic SIP 
structure necessary to implement, maintain, and enforce the NAAQS. EPA 
believes that states can establish that they have the basic SIP 
structure, notwithstanding that there may be potential deficiencies 
within the existing SIP. Thus, EPA's proposals for other states 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions. The same holds 
true for this action on the 1997 8-hour ozone infrastructure SIP for 
Oregon.
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    \12\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
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    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific

[[Page 6049]]

substantive deficiencies in existing SIPs. These other statutory tools 
allow the Agency to take appropriate tailored action, depending upon 
the nature and severity of the alleged SIP deficiency. Section 
110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the Agency 
determines that a state's SIP is substantially inadequate to attain or 
maintain the NAAQS, to mitigate interstate transport, or otherwise to 
comply with the CAA.\13\ Section 110(k)(6) authorizes EPA to correct 
errors in past actions, such as past approvals of SIP submissions.\14\ 
Significantly, EPA's determination that an action on the infrastructure 
SIP is not the appropriate time and place to address all potential 
existing SIP problems does not preclude the Agency's subsequent 
reliance on provisions in section 110(a)(2) as part of the basis for 
action at a later time. For example, although it may not be appropriate 
to require a state to eliminate all existing inappropriate director's 
discretion provisions in the course of acting on the infrastructure 
SIP, EPA believes that section 110(a)(2)(A) may be among the statutory 
bases that the Agency cites in the course of addressing the issue in a 
subsequent action.\15\
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    \13\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \14\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR 
34,641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57,051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \15\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21,2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4,540 (Jan. 26, 2011) (final disapproval of such provisions).
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V. What is EPA's analysis of Oregon's submittal?

    The Oregon SIP submittal lists specific provisions of the Oregon 
Revised Statutes (ORS) Chapter 468 Environmental Quality, Public Health 
and Safety, General Administration; ORS Chapter 468A Air Quality, 
Public Health and Safety, Air Quality Control; Oregon Administrative 
Rules (OAR) Chapter 340, and the Oregon SIP. The specific sections are 
listed below, with an analysis of how the Oregon submittal by ODEQ 
meets the requirements.
    110(a)(2)(A): Emission limits and other control measures:
    Section 110(a)(2)(A) requires SIPs to include enforceable emission 
limits and other control measures, means or techniques, schedules for 
compliance and other related matters. EPA notes that the specific 
nonattainment area plan requirements of Section 110(a)(2)(I) are 
subject to the timing requirement of Section 172, not the timing 
requirement of Section 110(a)(1).
    Oregon's submittal: The Oregon SIP submittal cites multiple Oregon 
air quality laws and regulations to address this element. ORS 468A.035 
``General Comprehensive Plan'' provides authority to ODEQ to develop a 
general comprehensive plan for the control or abatement of air 
pollution. ORS 468A.020 ``Rules and Standards'' gives the Environmental 
Quality Commission (EQC) authority to adopt rules and standards to 
perform function vested by law. ORS 468A.025 ``Air Purity Standards'' 
provides the EQC with authority to set air quality standards, emission 
standards, and emission treatment and control provisions. The Oregon 
submittal goes on to cite the following listing of Oregon laws and 
regulations that establish emission limits and pollution controls. For 
a detailed description, please refer to the Technical Support Document 
(TSD) in the docket for this action:

 ORS 468A.085 Residential Open Burning of Vegetative Debris
 ORS 468A.350-.455 Motor Vehicle Pollution Control
 ORS 468A.460-.520 Woodstove Emissions Control
 ORS 468A.550-.620 Field Burning and Propane Flaming
 ORS 468A.625-.645 Chlorofluorocarbons and Halon Control
 ORS 468A.650-.660 Aerosol Spray Control
 OAR 340-202 Ambient Air Quality Standards and PSD Increments
 OAR 340-204 Designation of Air Quality Areas
 OAR 340-222 Stationary Source Plant Site Emission Limits
 OAR 340-256 Motor Vehicles
 OAR 340-226 General Emission Standards
 OAR 340-228 Requirements for Fuel Burning Equipment and Fuel 
Sulfur Content
 OAR 340-232 Emission Standards for VOC Point Sources
 OAR 340-234 Emission Standards for Wood Products Industries
 OAR 340-236 Emission Standards for Specific Industries
 OAR 340-240 Rules for Areas with Unique Air Quality Needs
 OAR 340-242 Rules Applicable to the Portland Area
 OAR 340-258 Motor Vehicle Fuel Specifications
 OAR 340-262 Residential Woodheating
 OAR 340-266 Field Burning Rules (Willamette Valley)

    EPA analysis: EPA finds that Oregon's rules define and reference 
emissions limits and significant emissions rates for air pollutants 
including NOX and VOCs, as precursors to ozone. Oregon has 
no areas designated nonattainment for the 1997 8-hour ozone NAAQS.
    Some of the rules listed above were approved into the SIP under 
part D because certain areas in Oregon were historically nonattainment 
under the 1-hour ozone standard and required maintenance plans to 
ensure on-going compliance with the 1997 8-hour ozone standard. As a 
result, Oregon regulates ozone and its precursors through its SIP-
approved major and minor source permitting programs and ozone 
maintenance plans. EPA does not consider SIP requirements triggered by 
the nonattainment area mandates in part D of Title I of the CAA to be 
governed by the submission deadline of section 110(a)(1). Nevertheless, 
Oregon has referenced some SIP provisions originally submitted in 
response to part D in its submittal documenting its compliance with the 
infrastructure requirements of section 110(a)(1) and (2). Oregon has 
over time continually updated the elements of its SIP addressing the 
ozone NAAQS, and the provisions reviewed here are a weave of SIP 
revisions submitted in response to the infrastructure requirements of 
section 110(a)(2) and the nonattainment requirements of part D.
    For the purposes of this action, EPA is reviewing any rules 
originally submitted in response to part D solely for the purposes of 
determining whether they support a finding that the state has met the 
basic infrastructure requirements under section 110(a)(2). EPA is 
proposing to approve Oregon's SIP as meeting the requirements of 
section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.
    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during 
startup, shutdown, or malfunction (SSM) of operations at a facility. 
EPA believes that a number of

[[Page 6050]]

states may have SSM provisions that are contrary to the Clean Air Act 
and existing EPA guidance \16\ and the Agency plans to address such 
state regulations in the future. In the meantime, EPA encourages any 
state having a deficient SSM provision to take steps to correct it as 
soon as possible.
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    \16\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation. ``State Implementation Plans (SIPs): Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown.'' Memorandum to EPA Air Division Directors, August 11, 
1999.
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    In this action, EPA is not proposing to approve or disapprove any 
existing state rules relating to director's discretion or variance 
provisions. EPA believes that a number of states may have such 
provisions that are contrary to the Clean Air Act and existing EPA 
guidance (52 FR 45109), November 24, 1987, and the Agency plans to take 
action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision that is contrary to the Clean Air Act and EPA 
guidance to take steps to correct the deficiency as soon as possible.
    110(a)(2)(B): Ambient air quality monitoring/data system:
    Section 110(a)(2)(B) requires SIPs to include provisions to provide 
for establishment and operation of ambient air quality monitors, 
collecting and analyzing ambient air quality data, and making these 
data available to EPA upon request.
    Oregon's submittal: Oregon references ORS 468.035(a-e, m) 
``Functions of the Department'' which provide authority to conduct and 
supervise inquiries and programs to assess and communicate air 
conditions and to obtain necessary resources (assistance, materials, 
supplies, etc) to meet these responsibilities.
    EPA analysis: A comprehensive air quality monitoring plan, intended 
to meet 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 air quality monitoring plan has been 
subsequently updated, with the most recent submittal dated July 1, 
2011. EPA approved the plan on January 6, 2012. This plan includes, 
among other things, the locations for the ozone monitoring network. 
Oregon provides an annual air quality data report to the public on the 
ODEQ Web site at http://www.deq.state.or.us/aq/forms/annrpt.htm. In 
addition, Oregon sends real time air monitoring information for ozone, 
particulate matter, and carbon monoxide to EPA's AIRNow Web page at 
http://www.airnow.gov and also provides the information on the ODEQ Air 
Quality Index (AQI) Web site at http://www.deq.state.or.us/aqi. Based 
on the foregoing, EPA proposes to approve the Oregon's SIP as meeting 
the requirements of CAA Section 110(a)(2)(B) for the 1997 8-hour ozone 
NAAQS.
    110(a)(2)(C): Program for enforcement of control measures:
    Section 110(a)(2)(C) requires states to include a program providing 
for enforcement of all SIP measures and the regulation of construction 
of new or modified stationary sources, including a program to meet PSD 
and nonattainment NSR requirements.
    Oregon's submittal: Oregon's SIP submittal refers to ORS 
468.090-.140 ``Enforcement'' which provides ODEQ with authority to 
investigate complaints, investigate and inspect sources for compliance, 
access records, commence enforcement procedures, and impose civil 
penalties. In addition, ORS 468.035 (j, k) ``Functions of the 
Department'' provides ODEQ with the authority to enforce state air 
pollution laws and compel compliance with any rule, standard, order, 
permit or condition. The Oregon submittal goes on to cite the following 
listing of Oregon laws and regulations related to enforcement and 
permitting. For a detailed description, please refer to the TSD in the 
docket for this action:

 ORS 468.920-.963 Environmental Crimes
 ORS 468.996-.997 Civil Penalties
 ORS 468.065 Issuance of Permits; Content: Fees: Use
 ORS 468.070 Denial, Modification, Suspension or Revocation of 
Permits
 ORS 468A.040 Permits; Rules
 ORS 468A.045 Activities Prohibited without Permit
 ORS 468A.055 Notice Prior to Construction of New Sources
 ORS 468A.990 Penalties for air pollution offenses
 OAR 340-012 Enforcement Procedure and Civil Penalties
 OAR 340-216 Air Contaminant Discharge Permits (ADCP)
     OAR 340-210 Stationary Source Notification Requirements
     OAR 340-214 Stationary Source Reporting Requirements
     OAR 340-224 Major New Source Review
    EPA analysis: To generally meet the requirements of section 
110(a)(2)(C), the state is required to have PSD, nonattainment NSR, and 
minor NSR permitting programs adequate to implement the 1997 8-hour 
ozone NAAQS. As explained above, in this action EPA is not evaluating 
nonattainment related provisions, such as the nonattainment NSR program 
required by part D of the CAA. In addition, Oregon has no nonattainment 
areas for the 1997 8-hour ozone NAAQS.
    EPA believes Oregon code provides ODEQ with the authority to 
enforce the air quality laws, regulations, permits, and orders 
promulgated pursuant to ORS Chapters 468 and 468A. ODEQ staffs and 
maintains an enforcement program to ensure compliance with SIP 
requirements. The ODEQ Director, at the direction of the Governor, may 
enter a cease and desist order for polluting activities that present an 
imminent and substantial danger to public health (ORS 468-115). 
Enforcement cases may be referred to the state Attorney General's 
Office for civil or criminal enforcement. Therefore, EPA is proposing 
to approve the Oregon SIP as meeting the requirements of 110(a)(2)(C) 
related to enforcement for the 1997 8-hour ozone NAAQS.
    EPA is proposing to approve Oregon's SIP as generally meeting the 
requirements related to PSD under section 110(a)(2)(C) for the 1997 8-
hour ozone standard. EPA most recently approved revisions to Oregon's 
major NSR rules (which encompass PSD and Part D NSR) to include 
NOX as a precursor for ozone for PSD purposes and PSD 
permitting of GHGs on November 9, 2011 (76 FR 80747).
    EPA is proposing to approve Oregon's infrastructure certification 
for the 1997 8-hour ozone NAAQS with respect to the general requirement 
in section 110(a)(2)(C) to include a program in the SIP that regulates 
the modification and construction of any stationary source as necessary 
to assure that the NAAQS are achieved. EPA most recently approved 
revisions to Oregon's NSR program, including NSR Reform on November 9, 
2011 (76 FR 80747). EPA has determined that Oregon's minor NSR program 
adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions 
of ozone and its' precursors.
    Oregon's NSR program includes requirements for major source 
permitting in nonattainment areas, maintenance areas, and attainment 
and unclassifiable areas (OAR 340-224). Oregon's federally-enforceable 
state operating permit program is found at OAR 340-216 ``Air 
Contaminant Discharge Permits'' and is also the administrative permit 
mechanism used to implement the notice of construction and major new 
source review programs. ODEQ delegates authority to Lane

[[Page 6051]]

Regional Air Protection Agency (LRAPA) to implement the source 
permitting programs within its area of jurisdiction. The requirements 
and procedures contained in OAR 340-216, OAR 340-222 and OAR 340-224 
are used by LRAPA to implement its permitting programs until it adopts 
rules which are at least as restrictive as state rules. In this action, 
EPA is not proposing to approve or disapprove any state rules with 
regard to NSR reform requirements for major sources.
    In addition, EPA is not proposing to approve or disapprove the 
state's existing minor NSR program in this action; we are not 
evaluating this program for consistency with EPA's regulations 
governing minor NSR herein. EPA believes that a number of states may 
have minor NSR provisions that are contrary to the existing EPA 
regulations for this program. EPA intends to work with states to 
reconcile state minor NSR programs with EPA's regulatory provisions for 
the program. The statutory requirements of section 110(a)(2)(C) provide 
for considerable flexibility in designing minor NSR programs, and EPA 
believes it may be time to revisit the regulatory requirements for this 
program to give the states an appropriate level of flexibility to 
design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
    110(a)(2)(D): Interstate transport:
    Section 110(a)(2)(D) requires SIPs to include provisions 
prohibiting any source or other type of emissions activity in one state 
from contributing significantly to nonattainment, or interfering with 
maintenance of the NAAQS in another state, or from interfering with 
measures required to prevent significant deterioration of air quality 
or to protect visibility in another state.
    As noted above, this action does not address the requirements of 
110(a)(2)(D)(i) for the 8-hour ozone NAAQS which have been addressed by 
three separate actions issued by EPA. On June 9, 2011, EPA approved the 
ODEQ SIP submittal to address specific provisions of Clean Air Act 
section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS including two 
of the four prongs of 110(a)(2)(D)(i): Significant contribution to 
nonattainment of these NAAQS in any other state (prong 1); and 
interference with maintenance of these NAAQS by any other state (prong 
2) (76 FR 33650). Subsequently, on July 5, 2011, EPA approved portions 
of a SIP revision submitted by ODEQ as meeting the requirements of the 
fourth prong of Clean Air Act section 110(a)(2)(D)(i) as it applies to 
visibility for the 1997 8-hour ozone NAAQS (prong 4) (76 FR 38997). 
Finally, on November 9, 2011, EPA approved an Oregon SIP revision that 
addressed among other things, interference with any other state's 
required measures to prevent significant deterioration (PSD) of its air 
quality with respect to the 1997 8-hour ozone NAAQS (prong 3) (76 FR 
80747).
    Interstate and International transport provisions:
    Section 110(a)(2)(D)(ii) requires SIPs to include provisions 
ensuring compliance with the applicable requirements of sections 126 
and 115 (relating to interstate and international pollution abatement). 
Specifically, section 126(a) requires new or modified major sources to 
notify neighboring states of potential impacts from the source.
    EPA analysis: EPA most recently approved revisions to Oregon's NSR 
regulations on November 9, 2011 (76 FR 80747). Oregon's public notice 
requirements at OAR 340-209-0060 require that for major NSR actions 
ODEQ will provide notice to neighboring states, among other officials 
and agencies. The state has no pending obligations under section 115 or 
126(b) of the Act. EPA is proposing to approve the Oregon SIP as 
meeting the requirements of CAA Section 110(a)(2)(D)(ii) for the 1997 
8-hour ozone NAAQS.
    110(a)(2)(E): Adequate resources:
    Section 110(a)(2)(E) requires states to provide (i) necessary 
assurances that the state will have adequate personnel, funding, and 
authority under state law to carry out the SIP (and is not prohibited 
by any provision of Federal or state law from carrying out the SIP or 
portion thereof), (ii) requires that the state comply with the 
requirements respecting state boards under section 128 and (iii) 
necessary assurances that, where the state has relied on a local or 
regional government, agency, or instrumentality for the implementation 
of any SIP provision, the state has responsibility for ensuring 
adequate implementation of such SIP provision.
    Oregon's submittal: Oregon cites ORS 468.035 which provides ODEQ 
authority to employ personnel, purchase supplies, enter into contracts, 
and to receive appropriate and expend federal and other funds for 
purposes of air pollution research and control. In addition, ORS 
468.045 provides the ODEQ director with the power to hire, assign, 
reassign, and coordinate personnel of the department; authority to 
administer and enforce the laws of the state concerning environmental 
quality. ORS 468.035(c) provides authority to advise, consult, and 
cooperate with other states, state and federal agencies, or political 
subdivisions on all air quality control matters. ORS 468A.010 calls for 
a coordinated statewide program of air quality control with 
responsibility allocated between the state and the units of local 
government and ORS 468A.100-180 describes the establishment, role and 
function of regional air quality control authorities and includes the 
provision that regional rules may not be less strict than state rules. 
The statute also provides the state Environmental Quality Commission 
with authority to require corrective measures by the regional agency or 
to remove the regional agency's administrative and enforcement 
functions if they fail to meet the specified requirements of state law. 
Oregon regulations at OAR 340-200 specify Lane Regional Air Protection 
Agency (LRAPA) has authority in Lane County and defines the term 
``Regional Agency.''
    EPA analysis: Regarding adequate personnel, funding and authority, 
EPA believes the Oregon SIP meets the requirements of this element. 
Oregon receives sections 103 and 105 grant funds from EPA and provides 
state matching funds necessary to carry out SIP requirements. Regarding 
the state board requirements under section 128, EPA approved OAR 340-
200-0100 through OAR 340-200-0120 as meeting the requirements of CAA 
section 128 on January 22, 2003 (68 FR 2891). Finally, regarding state 
responsibility and oversight of local and regional entities, Oregon law 
and regulation listed above provide ODEQ with adequate authority to 
carry out SIP obligations with respect to the 1997 8-hour ozone NAAQS. 
Therefore EPA is proposing to approve the Oregon SIP as meeting the 
requirements of CAA Section 110(a)(2)(E) for the 1997 8-hour ozone 
NAAQS.
    110(a)(2)(F): Stationary source monitoring system:
    Section 110(a)(2)(F) requires (i) the installation, maintenance, 
and replacement of equipment, and the implementation of other necessary 
steps, by owners or operators of stationary sources to monitor 
emissions from such sources, (ii) periodic reports on the nature and 
amounts of emissions and emissions-related data from such sources, and 
(iii) correlation of such reports by the state agency with any emission 
limitations or standards established pursuant to the CAA, which

[[Page 6052]]

reports shall be available at reasonable times for public inspection.
    Oregon's submittal: Oregon's SIP submittal refers to statute and 
regulation which provides authority and requirements for source 
emissions monitoring, reporting, and correlation with emission limits 
or standards. For a detailed description, please refer to the TSD in 
the docket for this action:

 ORS 468.035 (b, d) Functions of Department
 ORS 468A.025(4) Air Purity Standards; Air Quality Standards; 
Treatment and Control of Emissions; Rules
 ORS 468A.070 Measurement and Testing of Contamination Sources; 
Rules
 ORS 468A.365 Certification of Motor Vehicle Pollution Control 
Systems and Inspection of Motor Vehicles; Rules
 OAR 340-212 Stationary Source Testing and Monitoring
 OAR 340-214 Stationary Source Reporting Requirements
 OAR 340-222 Stationary Source Plant Site Emission Limits
 OAR 340-225 Air Quality Analysis Requirements
 OAR 340-234 Emission Standards for Wood Products Industries: 
Monitoring and Reporting
 OAR 340-236 Emission Standards for Specific Industries: 
Emissions Monitoring and Reporting
 OAR 340-240 Rules for Areas with Unique Air Quality Needs

    EPA analysis: The provisions cited by the Oregon SIP submittal 
provide for monitoring, recordkeeping and reporting requirements for 
sources subject to major and minor source permitting. EPA proposes to 
approve the Oregon SIP as meeting the requirements of CAA Section 
110(a)(2)(F) for the 1997 8-hour ozone NAAQS.
    110(a)(2)(G): Emergency episodes:
    Section 110(a)(2)(G) requires states to provide for authority to 
address activities causing imminent and substantial endangerment to 
public health, including contingency plans to implement the emergency 
episode provisions in their SIPs.
    Oregon's submittal: The Oregon submittal cites ORS 468-115 
``Enforcement in Cases of Emergency'' which authorizes the ODEQ 
Director, at the direction of the Governor, to enter a cease and desist 
order for polluting activities that present an imminent and substantial 
danger to public health. In addition, OAR 340-206 ``Air Pollution 
Emergencies'' authorizes the ODEQ Director to declare an air pollution 
alert or warning or to issue an ozone advisory to notify the public. 
OAR 340-214 ``Stationary Source Reporting Requirements'' requires 
reporting of emergencies and excess emissions and reporting 
requirements.
    EPA analysis: As noted in EPA's October 2, 2007 guidance, the 
significant harm level for the 8-hour ozone NAAQS shall remain 
unchanged at 0.60 ppm ozone, 2 hour average, as indicated in 40 CFR 
51.151. EPA believes that the existing ozone-related provisions of 40 
CFR part 51 subpart H remain appropriate. Oregon's regulations 
discussed above, which have previously been approved by EPA into the 
SIP on January 22, 2003 (68 FR 2891) continue to be consistent with the 
requirements of 40 CFR 51.151. Accordingly, EPA proposes to find that 
the Oregon SIP is adequate for purposes of CAA section 110(a)(2)(G) for 
the 1997 8-hour ozone NAAQS.
    110(a)(2)(H): Future SIP Revisions:
    Section 110(a)(2)(H) requires that SIPs provide for revision of 
such plan (i) from time to time as may be necessary to take account of 
revisions of such national primary or secondary ambient air quality 
standard or the availability of improved or more expeditious methods of 
attaining such standard, and (ii) except as provided in paragraph 
110(a)(3)(C), whenever the Administrator finds on the basis of 
information available to the Administrator that the SIP is 
substantially inadequate to attain the NAAQS which it implements or to 
otherwise comply with any additional requirements under the CAA.
    Oregon's submittal: Oregon's SIP submittal refers to OAR 340-200 
``General Air Pollution Procedures and Definitions: -0040 State of 
Oregon Clean Air Act Implementation Plan'' which provides for revisions 
to Oregon's SIP and submittal of revisions to the EPA, including 
standards submitted by a regional authority and adopted verbatim in 
ODEQ rules.
    EPA analysis: Oregon regularly submits SIP revisions to EPA. On 
November, 9, 2011, EPA most recently approved a number of Oregon SIP 
revisions, including updates to Oregon's rules to reflect federal 
changes to the NAAQS for PM2.5, ozone and lead (76 FR 
80747). EPA proposes to approve the Oregon SIP as meeting the 
requirements of section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.
    110(a)(2)(I): Nonattainment area plan revision under part D:
    EPA analysis: There are two elements identified in section 
110(a)(2) not governed by the 3 year submission deadline of section 
110(a)(1) because SIPs incorporating necessary local nonattainment area 
controls are not due within 3 years after promulgation of a new or 
revised NAAQS, but rather due at the time of the nonattainment area 
plan requirements pursuant to section 172. These requirements are: (i) 
Submissions required by section 110(a)(2)(C) to the extent that 
subsection refers to a permit program as required in part D Title I of 
the CAA, and (ii) submissions required by section 110(a)(2)(I) which 
pertain to the nonattainment planning requirements of part D, Title I 
of the CAA. As a result, this action does not address infrastructure 
elements related to section 110(a)(2)(C) with respect to nonattainment 
NSR or section 110(a)(2)(I).
    110(a)(2)(J): Consultation with government officials:
    Section 110(a)(2)(J) requires states to provide a process for 
consultation with local governments and Federal Land Managers carrying 
out NAAQS implementation requirements pursuant to Section 121 relating 
to consultation. Section 110(a)(2)(J) further requires states to notify 
the public if NAAQS are exceeded in an area and to enhance public 
awareness of measures that can be taken to prevent exceedances. Lastly, 
Section 110(a)(2)(J) requires states to meet applicable requirements of 
Part C related to prevention of significant deterioration and 
visibility protection.
    Oregon's submittal: Oregon's SIP submittal refers to a number of 
laws and regulations relating to consultation, public notification, and 
PSD and visibility protection. For a detailed description, please refer 
to the TSD in the docket for this action:

 ORS 468.020 Rules and Standards
 ORS 468.035 (a, c, f-g) Functions of Department
 ORS 468A.010 Policy (1) (b, c)
 ORS 468A.025 Air Purity Standards; Air Quality Standards; 
Treatment and Control of Emissions; Rules (c)
 OAR 340-202 Ambient Air Quality Standards and PSD Increments
 OAR 340-204 Designation of Air Quality Areas
 OAR 340-206 Air Pollution Emergencies
 OAR 340-209 Public Participation
 OAR 340-224 Major New Source Review
 OAR 340-225 Air Quality Analysis Requirements

    EPA analysis: EPA finds that Oregon's SIP includes specific 
provisions for consulting with local governments and Federal Land 
Managers relating to CAA section 121. ODEQ routinely coordinates with 
local governments, states, federal land managers and other

[[Page 6053]]

stakeholders on air quality issues and provides notice to appropriate 
agencies related to permitting actions. Oregon regularly participates 
in regional planning processes including the Western Regional Air 
Partnership which is a voluntary partnership of states, tribes, federal 
land managers, local air agencies and the U.S. EPA whose purpose is to 
understand current and evolving regional air quality issues in the 
West. Therefore EPA proposes to approve the Oregon SIP as meeting the 
requirements of CAA Section 110(a)(2)(J) for consultation with 
government officials.
    Oregon sends real time air monitoring information for ozone, 
particulate matter, and carbon monoxide to EPA's AIRNow Web page at 
http://www.airnow.gov and also provides the information on the ODEQ Air 
Quality Index (AQI) Web site at http://www.deq.state.or.us/aqi 
including measures that can be taken to improve air quality. Therefore, 
EPA is proposing to approve the Oregon SIP as meeting the requirements 
of CAA Section 110(a)(2)(J) for public notification.
    Turning to the requirement in section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C of title I of the CAA, EPA 
has evaluated this requirement in the context of section 110(a)(2)(C) 
with respect to permitting. EPA most recently approved revisions to 
Oregon's PSD program on November 9, 2011 (76 FR 80747). Oregon's PSD 
program regulates NOX as a precursor for ozone. Oregon has 
no nonattainment areas for the 1997 8-hour ozone standard. Therefore, 
EPA is proposing to approve Oregon's SIP as meeting the requirements of 
CAA Section 110(a)(2)(J) related to PSD.
    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the CAA. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus we 
find that there is no new visibility obligation triggered under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    110(a)(2)(K): Air quality and modeling/data:
    Section 110(a)(2)(K) requires that SIPs provide for (i) the 
performance of such air quality modeling as the Administrator may 
prescribe for the purpose of predicting the effect on ambient air 
quality of any emissions of any air pollutant for which the 
Administrator has established a national ambient air quality standard, 
and (ii) the submission, upon request, of data related to such air 
quality modeling to the Administrator.
    Oregon's submittal: Oregon's SIP submittal refers to ORS 468.035 
``Functions of Department'' (b) which provides ODEQ authority to 
conduct studies and investigations to determine air quality. Oregon's 
SIP submittal also refers to OAR 340-225 ``Air Quality Analysis 
Requirements'' which includes modeling requirements for analysis and 
demonstration of compliance with standards and increments in specified 
areas.
    EPA analysis: EPA previously approved Oregon's regulations on air 
quality modeling into the SIP on January 22, 2003 (68 FR 2891). 
Oregon's rules above require all modeled estimates of ambient 
concentrations be based on 40 CFR Part 51, Appendix W (Guidelines on 
Air Quality Models). Any change or substitution from models specified 
in 40 CFR Part 51, Appendix W is subject to notice and opportunity for 
public comment and must receive prior written approval from ODEQ and 
the EPA. While Oregon has no nonattainment areas for the 1997 8-hour 
ozone NAAQS, Oregon has submitted a recent SIP revision supported by 
modeling for ozone. The Portland and Salem areas were historically 
nonattainment under the 1-hour ozone standard and require maintenance 
plans that ensure on-going compliance with the 1997 8-hour ozone 
standard. On May 22, 2007, Oregon submitted these maintenance plans to 
EPA, supported by extensive modeling. EPA approved the SIP revision on 
December 19, 2011 (76 FR 78571). Based on the foregoing, EPA is 
proposing to approve Oregon's SIP as meeting the requirements of CAA 
Section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.
    110(a)(2)(L): Permitting fees:
    Section 110(a)(2)(L) requires SIPs to require each major stationary 
source to pay permitting fees to cover the cost of reviewing, 
approving, implementing and enforcing a permit, until such time as the 
SIP fee requirement is superseded by EPA's approval of the state's 
title V operating permit program.
    Oregon's submittal: Oregon's SIP submittal refers to ORS 468.065 
``Issuance of Permits: Content; Fees; Use'' which provides the EQC 
authority to establish a schedule of fees for permits based upon the 
costs of filing and investigating applications, issuing or denying 
permits, carrying out Title V requirements and determining compliance. 
Oregon's submittal also refers to OAR 340-216 ``Air Contaminant 
Discharge Permits'' which requires payment of permit fees based on a 
specified table of sources and fee schedule.
    EPA analysis: On September 28, 1995, EPA fully approved Oregon's 
Title V program (60 FR 50106) (effective November 27, 1995). While 
Oregon's operating permit program is not formally approved into the 
state's SIP, it is a legal mechanism the state can use to ensure that 
ODEQ has sufficient resources to support the air program, consistent 
with the requirements of the SIP. Before EPA can grant full approval, a 
state must demonstrate the ability to collect adequate fees. Oregon's 
title V program included a demonstration the state will collect a fee 
from title V sources above the presumptive minimum in accordance with 
40 CFR 70.9(b)(2)(i). Oregon collects sufficient fees to administer the 
title V permit program. Therefore, EPA proposes to conclude that 
Oregon's SIP demonstrates the state has satisfied the requirements of 
CAA Section 110(a)(2)(L) for the 1997 8-hour ozone NAAQS.
    110(a)(2)(M): Consultation/participation by affected local 
entities:
    Section 110(a)(2)(M) requires states to provide for consultation 
and participation in SIP development by local political subdivisions 
affected by the SIP.
    Oregon's submittal: Oregon's SIP submittal refers to the following 
laws and regulations. For a detailed description, please refer to the 
TSD that can be found in the docket for this proposed action:

 ORS 468.035 (a, c, f-g) Functions of Department
 ORS 468A.010 Policy (1) (b, c)
 ORS 468A.100-180 Regional Air Quality Control Authorities
 OAR 340-200 General Air Pollution Procedures and Definitions
 OAR 340-204 Designation of Air Quality Areas
 OAR 340-216 Air Contaminant Discharge Permits

    EPA analysis: The regulations cited by Oregon's submittal were 
previously approved on November 9, 2011 (76 FR 80747) and provide for 
authority and procedures for local and regional authorities to 
participate and consult in the SIP development process. Therefore EPA 
proposes to find that Oregon's SIP meets the requirements of CAA 
Section 110(a)(2)(M) for the 1997 8-hour ozone NAAQS.

VI. Scope of Proposed Action

    Oregon has not demonstrated authority to implement and enforce the 
Oregon Administrative Rules within ``Indian Country'' as defined in 18

[[Page 6054]]

U.S.C. 1151.\17\ Therefore, this SIP approval does not extend to 
``Indian Country'' in Oregon. See CAA sections 110(a)(2)(A) (SIP shall 
include enforceable emission limits), 110(a)(2)(E)(i) (State must have 
adequate authority under State law to carry out SIP), and 172(c)(6) 
(nonattainment SIPs shall include enforceable emission limits). This is 
consistent with EPA's previous approval of Oregon's PSD program, in 
which EPA specifically disapproved the program for sources within 
Indian Reservations in Oregon because the State had not shown it had 
authority to regulate such sources. See 40 CFR 52.1987(c). It is also 
consistent with EPA's approval of Oregon's title V operating permits 
program. See 59 FR 61820, 61827 (December 2, 1994) (interim approval 
does not extend to Indian Country); 60 FR 50106, 50106 (September 28, 
1995) (full approval does not extend to Indian Country).
---------------------------------------------------------------------------

    \17\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1) 
All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through 
the reservation, (2) all dependent Indian communities within the 
borders of the United States, whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a State, and (3) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats 
as reservations trust lands validly set aside for the use of a Tribe 
even if the trust lands have not been formally designated as a 
reservation.
---------------------------------------------------------------------------

VII. Proposed Action

    EPA is proposing to approve the SIP submittal from the State of 
Oregon to demonstrate that the SIP meets the requirements of section 
110(a)(1) and (2) of the CAA for the NAAQS promulgated for ozone on 
July 18, 1997. EPA is proposing to approve in full the following 
section 110(a)(2) infrastructure elements for Oregon for the 1997 ozone 
NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M). 
EPA is taking no action on infrastructure elements (D)(i) and (I) for 
the 1997 ozone NAAQS. This action is being taken under section 110 of 
the CAA.

VIII. 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 
proposed action merely approves the state's law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by the state's law. For that reason, this proposed action:

 Is not a ``significant regulatory action'' subject to review 
by the Office of Management and Budget under Executive 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 CAA; 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 
Oregon, and EPA notes that it will not impose substantial direct costs 
on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: January 27, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2012-2779 Filed 2-6-12; 8:45 am]
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