[Federal Register Volume 79, Number 74 (Thursday, April 17, 2014)]
[Proposed Rules]
[Pages 21679-21691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08608]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2014-0018, FRL-9909-46-Region 10]


Approval and Promulgation of Implementation Plans; Oregon: 
Infrastructure Requirements for the 2008 Lead National Ambient Air 
Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve part of the December 27, 2013, 
State Implementation Plan (SIP) submittal from Oregon for purposes of 
meeting the infrastructure requirements of the Clean Air Act (CAA) for 
the National Ambient Air Quality Standards (NAAQS) promulgated for lead 
(Pb) on October 15, 2008. The CAA requires that each state, after a new 
or revised NAAQS is promulgated, review their SIP to ensure that it 
meets the infrastructure requirements necessary to implement the new or 
revised NAAQS. The EPA is proposing to find that the Oregon SIP meets 
the CAA infrastructure requirements for the 2008 Pb NAAQS.

DATES: Comments must be received on or before May 19, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2014-0018, by any of the following methods:
     Email: [email protected].
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Mail: Kristin Hall, EPA Region 10, Office of Air, Waste 
and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
     Hand Delivery: EPA Region 10 Mailroom, 9th Floor, 1200 
Sixth

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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-
2014-0018. The 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 the 
disclosure of which 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 the 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 the 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, the 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 the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
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 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy. 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: (206) 553-6357, 
[email protected], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA. 
Information is organized as follows:

Table of Contents

I. Background
II. CAA Sections 110(a)(1) and (2) Infrastructure Elements
III. EPA Approach to Review of Infrastructure SIP Submittals
IV. Analysis of the State Submittal
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On October 15, 2008, the EPA revised the level of the primary and 
secondary Pb NAAQS from 1.5 micrograms per cubic meter ([mu]g/m\3\) to 
0.15 [mu]g/m\3\. The CAA requires SIPs meeting the requirements of 
sections 110(a)(1) and (2) be submitted by states within three years 
after promulgation of a new or revised standard. CAA 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 2008 Pb 
NAAQS to the EPA no later than October 15, 2011.
    To help states meet this statutory requirement, the EPA issued 
guidance to address infrastructure SIP elements under CAA sections 
110(a)(1) and (2).\1\ As noted in the guidance, to the extent an 
existing SIP already meets the CAA section 110(a)(2) requirements, 
states may certify that fact in a letter to the EPA. The certification 
should address each CAA section 110(a)(2) infrastructure element as 
applicable to the 2008 Pb NAAQS. The certification should include 
documentation demonstrating a correlation between each 110(a)(2) 
infrastructure element and an equivalent state statutory authority in 
the existing or submitted SIP. As for all SIP submittals, a state 
should provide reasonable public notice of, and an opportunity for a 
public hearing on, the certification before it is submitted to the EPA.
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    \1\ Stephen D. Page, Director, Office of Air Quality Planning 
and Standards. ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements Required Under Sections 110(a)(1) and (2) for 
the 2008 Lead (Pb) National Ambient Air Quality Standards.'' 
Memorandum to EPA Air Division Directors, Regions I-X, October 14, 
2011.
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    CAA section 110(a) imposes the obligation upon states to make a SIP 
submission to the EPA for a new or revised NAAQS, but the contents of 
that submission may vary depending upon the facts and circumstances. In 
the case of the 2008 Pb NAAQS, states typically have met the basic 
infrastructure elements set out in CAA section 110(a)(2) through 
earlier SIP submissions.
    On December 27, 2013, the State of Oregon made a submittal to the 
EPA to meet the requirements of CAA section 110(a)(1) and (2) 
infrastructure elements for the 2008 Pb NAAQS, 2010 nitrogen dioxide 
NAAQS, and 2010 sulfur dioxide NAAQS. We note that this action is only 
addressing the portion of the submittal related to the 2008 Pb NAAQS. 
We will address the remainder of the submittal in a separate action.
    The submittal included an analysis of Oregon's SIP as it relates to 
each section of the CAA section 110(a)(2) infrastructure elements for 
the 2008 Pb NAAQS. Oregon provided notice and an opportunity for public 
comment on the submittal from July 15, 2013, through August 15, 2013. A 
notice of public hearing was published in the Oregonian on July 15, 
2013. The State held a public hearing on August 15, 2013, in Portland, 
Oregon. Comments received during the comment period and the State's 
responses were included in the submittal. We have evaluated Oregon's 
submittal and have determined that Oregon met the requirements for 
reasonable notice and public hearing under section 110(a)(2) of the 
CAA.

II. CAA Sections 110(a)(1) and (2) Infrastructure Elements

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. CAA 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, and enforcement 
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.\2\
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    \2\ Oregon's submittal does not address CAA section 
110(a)(2)(D)(i)(I). In accordance with the panel of the U.S. Court 
of Appeals for the D.C. Circuit opinion, the EPA does not consider 
an Oregon 110(a)(2)(D)(i)(I) SIP for the 2008 Pb NAAQS as a required 
submittal at this time. See EME Homer City generation, L.P. v. EPA, 
696 F .3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. Lexis 4801 
(2013). Unless the EME Homer City decision is reversed or otherwise 
modified by the Supreme Court, which granted review of the case on 
June 24, 2013 and heard oral argument on December 10, 2013, states 
are not required to submit 110(a)(2)(D)(i)(I) SIPs until the EPA has 
quantified their obligations under that section. The portions of the 
Oregon SIP submittal relating to 110(a)(2)(D)(i)(II) and 
110(a)(2)(D)(ii), in contrast, are required. In this notice, we are 
proposing to approve Oregon's submittal for purposes of 
110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii) for the 2008 Pb NAAQS.

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     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.
    The EPA's October 14, 2011, guidance restated our interpretation 
that two elements identified in CAA section 110(a)(2) are not governed 
by the three-year submission deadline of CAA section 110(a)(1) because 
SIPs incorporating necessary local nonattainment area controls are not 
due within three years after promulgation of a new or revised NAAQS, 
but rather, are due at the time the nonattainment area plan 
requirements are due pursuant to CAA section 172 and the various 
pollutant specific subparts 2-5 of part D. These requirements are: (i) 
submissions required by CAA 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 CAA 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 CAA section 110(a)(2)(C) with 
respect to nonattainment new source review (NSR) or CAA section 
110(a)(2)(I). Furthermore, the EPA interprets the CAA section 
110(a)(2)(J) provision on visibility as not being triggered by a new 
NAAQS because the visibility requirements in part C, title I of the CAA 
are not changed by a new NAAQS.

III. EPA Approach to Review of Infrastructure SIP Submittals

    The EPA is acting upon the portion of the SIP submission from 
Oregon that addresses the infrastructure requirements of CAA sections 
110(a)(1) and 110(a)(2) for the 2008 Pb NAAQS. The requirement for 
states to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``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 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon the EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of CAA sections 110(a)(1) 
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, the EPA uses the 
term to distinguish this particular type of SIP submission from 
submissions that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' 
submissions to address the nonattainment planning requirements of part 
D of title I of the CAA, ``regional haze SIP'' submissions required by 
the EPA rule to address the visibility protection requirements of CAA 
section 169A, and nonattainment new source review permit program 
submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. 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 program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\3\ The EPA therefore 
believes that while the timing requirement in section 110(a)(1) is 
unambiguous, some of the other statutory provisions are ambiguous. In 
particular, the EPA believes that the list of required elements for 
infrastructure SIP submissions provided in section 110(a)(2) contains 
ambiguities concerning what is required for inclusion in an 
infrastructure SIP submission.
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    \3\ For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for the 
EPA to interpret some section 110(a)(1) and section 110(a)(2) 
requirements with respect to infrastructure SIP submissions for a given 
new or revised NAAQS. One example of ambiguity is that section 
110(a)(2) requires that ``each'' SIP submission must meet the list of 
requirements therein, while the EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
CAA, which specifically address nonattainment SIP requirements.\4\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires the EPA to establish a schedule for submission of such plans 
for certain pollutants when the Administrator promulgates the 
designation of an area as nonattainment, and section 107(d)(1)(B) 
allows up to two years, or in some cases three years, for such 
designations to be promulgated.\5\ This ambiguity illustrates that 
rather than apply all the stated requirements of section 110(a)(2) in a 
strict literal sense, the EPA must determine which provisions of 
section 110(a)(2) are applicable for a particular infrastructure SIP 
submission.
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    \4\ 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 25162, at 25163-65 (May 12, 2005) (explaining relationship 
between timing requirement of section 110(a)(2)(D) versus section 
110(a)(2)(I)).
    \5\ The EPA notes that this ambiguity within section 110(a)(2) 
is heightened by the fact that various subparts of part D set 
specific dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether the

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EPA must act upon such SIP submission in a single action. Although 
section 110(a)(1) directs states to submit ``a plan'' to meet these 
requirements, the EPA interprets the CAA to allow states to make 
multiple SIP submissions separately addressing infrastructure SIP 
elements for the same NAAQS. If states elect to make such multiple SIP 
submissions to meet the infrastructure SIP requirements, the EPA can 
elect to act on such submissions either individually or in a larger 
combined action.\6\ Similarly, the EPA interprets the CAA to allow it 
to take action on the individual parts of one larger, comprehensive 
infrastructure SIP submission for a given NAAQS without concurrent 
action on the entire submission. For example, the EPA has sometimes 
elected to act at different times on various elements and sub-elements 
of the same infrastructure SIP submission.\7\
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    \6\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (the EPA's final action approving the 
structural PSD elements of the New Mexico SIP submitted by the State 
separately to meet the requirements of the EPA's 2008 
PM2.5 NSR rule), and ``Approval and Promulgation of Air 
Quality Implementation Plans; New Mexico; Infrastructure and 
Interstate Transport Requirements for the 2006 PM2.5 
NAAQS,'' (78 FR 4337) (January 22, 2013) (the EPA's final action on 
the infrastructure SIP for the 2006 PM2.5 NAAQS).
    \7\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to the EPA demonstrating that the State meets the 
requirements of sections 110(a)(1) and (2). The EPA proposed action 
for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 
FR 3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), the 
EPA took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, the 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. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants, 
for example because the content and scope of a state's infrastructure 
SIP submission to meet this element might be very different for an 
entirely new NAAQS than for a minor revision to an existing NAAQS.\8\
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    \8\ For example, implementation of the 1997 PM2.5 
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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    The EPA notes that interpretation of section 110(a)(2) is also 
necessary when the EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, the 
EPA also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), the EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, the EPA assumes that Congress could not 
have intended that each and every SIP submission, regardless of the 
NAAQS in question or the history of SIP development for the relevant 
pollutant, would meet each of the requirements, or meet each of them in 
the same way. Therefore, the EPA has adopted an approach under which it 
reviews infrastructure SIP submissions against the list of elements in 
section 110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, the EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\9\ The 
EPA most recently issued guidance for infrastructure SIPs on September 
13, 2013 (2013 Guidance).\10\ The EPA developed this document to 
provide states with up-to-date guidance for infrastructure SIPs for any 
new or revised NAAQS. Within this guidance, the EPA describes the duty 
of states to make infrastructure SIP submissions to meet basic 
structural SIP requirements within three years of promulgation of a new 
or revised NAAQS. The EPA also made recommendations about many specific 
subsections of section 110(a)(2) that are relevant in the context of 
infrastructure SIP submissions.\11\ The guidance also discusses the 
substantively important issues that are germane to certain subsections 
of section 110(a)(2). Significantly, the EPA interprets sections 
110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need 
to address certain issues and need not address others. Accordingly, the 
EPA reviews each infrastructure SIP submission for compliance with the 
applicable statutory provisions of section 110(a)(2), as appropriate.
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    \9\ The EPA notes, however, that nothing in the CAA requires the 
EPA to provide guidance or to promulgate regulations for 
infrastructure SIP submissions. The CAA directly applies to states 
and requires the submission of infrastructure SIP submissions, 
regardless of whether or not the EPA provides guidance or 
regulations pertaining to such submissions. EPA elects to issue such 
guidance in order to assist states, as appropriate.
    \10\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \11\ The EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). The EPA issued the guidance 
shortly after the U.S. Supreme Court agreed to review the D.C. 
Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which 
had interpreted the requirements of section 110(a)(2)(D)(i)(I). In 
light of the uncertainty created by ongoing litigation, the EPA 
elected not to provide additional guidance on the requirements of 
section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither 
binding nor required by statute, whether the EPA elects to provide 
guidance on a particular section has no impact on a state's CAA 
obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, the 
EPA reviews infrastructure SIP submissions to ensure that the state's 
SIP appropriately addresses the

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requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 
Guidance explains the EPA's interpretation that there may be a variety 
of ways by which states can appropriately address these substantive 
statutory requirements, depending on the structure of an individual 
state's permitting or enforcement program (e.g., whether permits and 
enforcement orders are approved by a multi-member board or by a head of 
an executive agency). However they are addressed by the state, the 
substantive requirements of section 128 are necessarily included in the 
EPA's evaluation of infrastructure SIP submissions because section 
110(a)(2)(E)(ii) explicitly requires that the state satisfy the 
provisions of section 128.
    As another example, the EPA's review of infrastructure SIP 
submissions with respect to the PSD program requirements in sections 
110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD 
program requirements contained in part C and the EPA's PSD regulations. 
Structural PSD program requirements include provisions necessary for 
the PSD program to address all regulated sources and NSR pollutants, 
including greenhouse gases. By contrast, structural PSD program 
requirements do not include provisions that are not required under the 
EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the 2012 PM2.5 
NAAQS. Accordingly, the latter optional provisions are types of 
provisions the EPA considers irrelevant in the context of an 
infrastructure SIP action.
    For other section 110(a)(2) elements, however, the EPA's review of 
a state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, the EPA evaluates whether 
the state has an EPA-approved minor new source review program and 
whether the program addresses the pollutants relevant to that NAAQS. In 
the context of acting on an infrastructure SIP submission, however, the 
EPA does not think it is necessary to conduct a review of each and 
every provision of a state's existing minor source program (i.e., 
already in the existing SIP) for compliance with the requirements of 
the CAA and EPA's regulations that pertain to such programs.
    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and the EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by the EPA; and (iii) 
existing provisions for PSD programs that may be inconsistent with 
current requirements of the EPA's ``Final NSR Improvement Rule,'' 67 FR 
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007). 
Thus, the EPA believes it may approve an infrastructure SIP submission 
without scrutinizing the totality of the existing SIP for such 
potentially deficient provisions and may approve the submission even if 
it is aware of such existing provisions.\12\ It is important to note 
that the EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \12\ By contrast, the EPA notes that if a state were to include 
a new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then the EPA would need to evaluate that 
provision for compliance against the rubric of applicable CAA 
requirements in the context of the action on the infrastructure SIP.
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    The EPA's approach to review of infrastructure SIP submissions is 
to identify the CAA requirements that are logically applicable to that 
submission. The EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and the EPA regulations 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. These provisions, 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 the EPA evaluates adequacy of the infrastructure 
SIP submission. The EPA believes that a better approach is for states 
and the EPA to focus attention on those elements of section 110(a)(2) 
of the CAA most likely to warrant a specific SIP revision due to the 
promulgation of a new or revised NAAQS or other factors.
    For example, the EPA's 2013 Guidance gives simpler recommendations 
with respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, the EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a ``SIP 
call'' whenever the EPA determines that a state's SIP is substantially 
inadequate to attain or maintain the NAAQS, to mitigate interstate 
transport, or to otherwise comply with the CAA.\13\ Section 110(k)(6) 
authorizes the EPA to correct errors in past actions, such as past 
approvals of SIP submissions.\14\

[[Page 21684]]

Significantly, the EPA's determination that an action on a state's 
infrastructure SIP submission is not the appropriate time and place to 
address all potential existing SIP deficiencies does not preclude the 
EPA's subsequent reliance on provisions in section 110(a)(2) as part of 
the basis for action to correct those deficiencies 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 an infrastructure SIP submission, the EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that EPA relies upon in the course of addressing such deficiency in a 
subsequent action.\15\
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    \13\ For example, the EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \14\ The EPA has used 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 82536 (December 30, 2010). The EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \15\ See, e.g., the EPA's disapproval of 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 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. Analysis of the State Submittal

    The Oregon submittal lists specific provisions of the Oregon 
Revised Statutes (ORS) Chapter 468 Environmental Quality Generally, 
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 a discussion of how the Oregon 
SIP meets the requirements of the CAA section 110(a)(2) infrastructure 
elements.

110(a)(2)(A): Emission Limits and Other Control Measures

    CAA section 110(a)(2)(A) requires SIPs to include enforceable 
emission limits and other control measures, means or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights), as well as schedules and timetables for 
compliance, as may be necessary or appropriate to meet the applicable 
requirements of the CAA.
    State submittal: Oregon's submittal cites multiple Oregon air 
quality laws and SIP-approved regulations to address this element for 
the 2008 Pb NAAQS. ORS 468A.035 ``General Comprehensive Plan'' provides 
authority to the Oregon Department of Environmental Quality (ODEQ) to 
develop a general comprehensive plan for the control or abatement of 
air pollution. ORS 468A.020 ``Rules and Standards'' gives the State 
Environmental Quality Commission (EQC) authority to adopt rules and 
standards to perform functions 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. ORS 468A.040 ``Permits; Rules'' provides that the EQC may 
require permits for specific sources, type of air contaminant or 
specific areas of the State. The Oregon submittal cites the following 
additional laws and regulations:

 ORS 468A.045 ``Activities Prohibited without Permit; Limit on 
Activities with Permit''
 ORS 468A.050 ``Classification of Air Contamination Sources; 
Registration and Reporting; Registration and Reporting of Sources; 
Rules; Fees''
 ORS 468A.055 ``Notice Prior to Construction of New Sources; 
Order Authorizing or Prohibiting Construction; Effect of No Order; 
Appeal''
 ORS 468A.070 ``Measurement and Testing of Contamination 
Sources; Rules''
 ORS 468A.310 ``Federal Operating Permit Program Approval; 
Rules; Content of Plan''
 ORS 468A.315 ``Emission Fees for Major Sources; Base Fees; 
Basis of Fees; Rules''
 ORS 468A.350-455 ``Motor Vehicle Pollution Control''
 ORS 468A.365 ``Certification of Motor Vehicle Pollution 
Control Systems and Inspection of Motor Vehicles; Rules''
 ORS 468A.400 ``Fees; collection; Use; Motor Vehicle Pollution 
Control''
 ORS 468A.990 ``Penalties for Air Pollution Offenses''
 ORS 815 ``Vehicle Equipment Generally; Oregon Vehicle Code; 
General Provisions''
 OAR 340-200 ``General Air Pollution Procedures and 
Definitions''
 OAR 340-202 ``Ambient Air Quality Standards and PSD 
Increments''
 OAR 340-204 ``Designation of Air Quality Areas''
 OAR 340-216 ``Air Contaminant Discharge Permits''
 OAR 340-222 ``Stationary Source Plant Site Emission Limits''
 OAR 340-224 ``Major New Source Review''
 OAR 340-225 ``Air Quality Analysis Requirements''
 OAR 340-228 ``Requirements for Fuel Burning Equipment and Fuel 
Sulfur Content''
 OAR 340-234 ``Emission Standards for Wood Products Industries: 
Emission Limitations''
 OAR 340-236 ``Emission Standards for Specific Industries: 
Emission Limits''
 OAR 340-250 ``General Conformity''
 OAR 340-252 ``Transportation Conformity''
 OAR 340-256 ``Motor Vehicles''
 OAR 340-258 ``Motor Vehicle Fuel Specifications''
 OAR 340-268 ``Emission Reduction Credits''
    The submittal includes revisions to Division 200 ``General Air 
Pollution Procedures and Definitions'' and Division 202 ``Ambient Air 
Quality Standards and PSD Increments.'' With respect to Division 200, 
the submittal revises OAR 340-200-0020 ``General Air Quality 
Definitions, Table 1--Significant Air Quality Impact'' to add 
significant impact levels to the table for purposes of implementing the 
Oregon source permitting program for the 1-hour NO2 and 1-
hour SO2 NAAQS. The submittal also revises OAR 340-200-0040 
``State of Oregon Clean Air Act Implementation Plan'' to reflect the 
date last modified, specifically October 16, 2013. With respect to 
Division 202, the submittal revises OAR 340-202-0070 ``Sulfur 
Dioxide,'' OAR 340-202-0010 ``Nitrogen Dioxide,'' and OAR 340-202-0130 
``Ambient Air Quality Standard for Lead'' to align with the revised 
Federal NAAQS. The submittal also adds OAR 340-202-0020 
``Applicability'' to clarify that Lane County Lane Regional Air 
Protection Agency (LRAPA) implements Division 202 in Lane County, 
unless LRAPA has adopted rules that are at least as strict.
    EPA analysis: The EPA does not consider SIP requirements triggered 
by the nonattainment area mandates in part D, title I of the CAA to be 
governed by the submission deadline of CAA section 110(a)(1). 
Regulations and other control measures for purposes of attainment 
planning under part D, title I of the CAA are due on a different 
schedule than infrastructure SIPs. In addition, Oregon has no areas 
designated nonattainment for the 2008 Pb NAAQS and generally regulates 
emissions of Pb through its SIP-approved major and minor new source 
review (NSR) permitting programs, and other SIP-approved regulations 
cited above.
    On December 27, 2011, the EPA approved an Oregon SIP revision to 
adopt the 2008 Pb NAAQS at OAR 340-202-0130 ``Ambient Air Quality 
Standard for Lead'' (76 FR 80747). In the same action, we approved 
revisions to update Oregon's major and minor NSR permitting programs 
for fine particulate matter, among other things. In the December 27, 
2013, submittal, Oregon revises OAR 340-202-0130 ``Ambient

[[Page 21685]]

Air Quality Standard for Lead'' to include more specific language on 
the form of the standard and the appropriate reference method for 
determining compliance with the standard. The submittal also adds OAR 
340-202-0020 ``Applicability'' to clarify that Lane Regional Air 
Protection Agency (LRAPA) implements Division 202 in Lane County, 
unless LRAPA has SIP-approved rules specific to its jurisdiction that 
are at least as strict.
    Based on the above, we are proposing to approve the revision to OAR 
340-202-0130 ``Ambient Air Quality Standard for Lead'' and the addition 
of OAR 340-202-0020 ``Applicability.'' We are taking no action on the 
rule revisions to OAR 340-200-0020 ``General Air Quality Definitions, 
Table 1--Significant Air Quality Impact,'' OAR 340-202-0070 ``Sulfur 
Dioxide,'' and OAR 340-202-0100 ``Nitrogen Dioxide'' because the 
revisions are outside the scope of this Pb infrastructure action. We 
intend to address the NO2 and SO2 revisions in a 
separate action.
    Additionally, we are not approving the submitted revision to OAR 
340-200-0040 ``State of Oregon Clean Air Act Implementation Plan'' 
because it is unnecessary to take action on a provision addressing 
State SIP adoption procedures and because the relevant SIP provisions 
have been separately submitted and approved. Based on the above 
analysis, we are proposing to approve the Oregon SIP as meeting the 
requirements of CAA section 110(a)(2)(A) for the 2008 Pb NAAQS.
    We note that, in this action, we are 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. The EPA believes that a number of states may have SSM 
provisions that are contrary to the CAA and existing EPA guidance \16\ 
and the EPA plans to address such state regulations. In the meantime, 
we encourage any state having a deficient SSM provision to take steps 
to correct it as soon as possible.
---------------------------------------------------------------------------

    \16\ For further description of the EPA's SSM Policy, see, e.g., 
a memorandum dated September 20, 1999, titled ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, 
Startup, and Shutdown,'' from Steven A. Herman, Assistant 
Administrator for Enforcement and Compliance Assurance, and Robert 
Perciasepe, Assistant Administrator for Air and Radiation. Also, the 
EPA issued a proposed action on February 12, 2013, titled ``State 
Implementation Plans: Response to Petition for Rulemaking: Findings 
of Substantial Inadequacy; and SIP Calls to Amend Provisions 
Applying to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction.'' This rulemaking responds to a petition for rulemaking 
filed by the Sierra Club that concerns SSM provisions in 39 states' 
SIPs (February 22, 2013, 78 FR 12460).
---------------------------------------------------------------------------

    In addition, we are not proposing to approve or disapprove any 
existing State rules with regard to director's discretion or variance 
provisions. The EPA believes that a number of states may have such 
provisions that are contrary to the CAA and existing EPA guidance 
(November 24, 1987, 52 FR 45109), and the EPA plans to take action in 
the future to address such state regulations. In the meantime, we 
encourage any state having a director's discretion or variance 
provision that is contrary to the CAA and the EPA guidance to take 
steps to correct the deficiency as soon as possible.

110(a)(2)(B): Ambient Air Quality Monitoring/Data System

    CAA 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 the EPA upon request.
    State submittal: The Oregon submittal references ORS 468.035(a-e, 
m) ``Functions of the Department'' which provides 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. Oregon also references 
OAR 340-212 ``Stationary Source Testing and Monitoring'' regulations.
    EPA analysis: A comprehensive air quality monitoring plan, intended 
to meet the requirements of 40 CFR part 58 was submitted by Oregon to 
the EPA on December 27, 1979 (40 CFR 52.1970) and approved by the EPA 
on March 4, 1981 (46 FR 15136). This air quality monitoring plan has 
been subsequently updated and most recently approved by the EPA on 
March 10, 2014.\17\ This plan includes, among other things, the 
locations for Pb monitoring. Oregon provides an annual air quality data 
report to the public at http://www.deq.state.or.us/aq/forms/annrpt.htm. 
Therefore, we are proposing to approve the Oregon SIP as meeting the 
requirements of CAA section 110(a)(2)(B) for the 2008 Pb NAAQS.
---------------------------------------------------------------------------

    \17\ Oregon Monitoring Network Approval Letter, dated March 10, 
2014.
---------------------------------------------------------------------------

110(a)(2)(C): Program for Enforcement of Control Measures

    CAA 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.
    State submittal: The Oregon 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 ``Functions of the Department,'' paragraphs 
(j) and (k), provide ODEQ with authority to enforce Oregon air 
pollution laws and compel compliance with any rule, standard, order, 
permit or condition. In addition to these statutes, the submittal cites 
the following Oregon laws and regulations:

 ORS 468.020 ``Rules and Standards''
 ORS 468.065 ``Issuance of Permits; Consent; Fees; Use''
 ORS 468.070 ``Denial, Modification, Suspension or Revocation 
of Permits''
 ORS 468.920-963 ``Environmental Crimes''
 ORS 468.996-997 ``Civil Penalties''
 ORS 468A.025 ``Air Purity Standards; Air Quality Standards; 
Treatment and Control of Emissions; Rules''
 ORS 468A.035 ``General Comprehensive Plan''
 ORS 468A.040 ``Permits; Rules''
 ORS 468A.045 ``Activities Prohibited without Permit; Limit on 
Activities with Permit''
 ORS 468A.050 ``Classification of Air Contamination Sources; 
Registration and Reporting; Registration and Reporting of Sources; 
Rules; Fees''
 ORS 468A.055 ``Notice Prior to Construction of New Sources; 
Order Authorizing or Prohibiting Construction; Effect of No Order; 
Appeal''
 ORS 468A.070 ``Measurement and Testing of Contamination 
Sources; Rules''
 ORS 468A.310 ``Federal Operating Permit Program Approval; 
Rules; Content of Plan''
 ORS 468A.990 ``Penalties for Air Pollution Offenses''
 OAR 340-012 ``Enforcement Procedure and Civil Penalties''
 OAR 340-202 ``Ambient Air Quality Standards and PSD 
Increments''
 OAR 340-210 ``Stationary Source Notification Requirements''
 OAR 340-214 ``Stationary Source Reporting Requirements''
 OAR 340-216 ``Air Contaminant Discharge Permits (ADCP)''
 OAR 340-224 ``Major New Source Review''

    EPA analysis: The EPA is proposing to find that the Oregon code 
provisions referenced above provide ODEQ with

[[Page 21686]]

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, the EPA is 
proposing to approve the Oregon SIP as meeting the requirements of CAA 
section 110(a)(2)(C) related to a program of enforcement measures for 
the 2008 Pb NAAQS.
    To generally meet the requirements of CAA section 110(a)(2)(C) with 
regard to the regulation of construction of new or modified stationary 
sources, a state is required to have PSD, nonattainment NSR, and minor 
NSR permitting programs adequate to implement the 2008 Pb NAAQS. As 
explained above, we are not in this action evaluating nonattainment 
related provisions, such as the nonattainment NSR program required by 
part D, title I of the CAA. In addition, Oregon has no designated 
nonattainment areas for the 2008 Pb NAAQS.
    We are proposing to find that the Oregon SIP meets the requirements 
related to PSD under CAA section 110(a)(2)(C) for the 2008 Pb NAAQS. 
The Oregon major 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 LRAPA to implement 
the source permitting programs within LRAPA's 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. 
We most recently approved revisions to the Oregon major NSR rules on 
December 27, 2011 (76 FR 80747).
    The EPA notes that on January 4, 2013, the U.S. Court of Appeals in 
the District of Columbia, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir.), issued a judgment that remanded two of the 
EPA's rules implementing the 1997 PM2.5 NAAQS, including the 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008) (2008 PM2.5 NSR Implementation Rule). The 
court ordered the EPA to ``repromulgate these rules pursuant to Subpart 
4 consistent with this opinion.''Id. at 437. Subpart 4 of part D, title 
I of the CAA establishes additional provisions for particulate matter 
nonattainment areas. The 2008 PM2.5 NSR Implementation Rule 
addressed by the court's decision promulgated NSR requirements for 
implementation of PM2.5 in both nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the 
requirements of subpart 4 only pertain to nonattainment areas, the EPA 
does not consider the portions of the 2008 PM2.5 NSR 
Implementation Rule that address requirements for PM2.5 
attainment and unclassifiable areas to be affected by the court's 
opinion. Moreover, we do not anticipate the need to revise any PSD 
requirements promulgated in the 2008 PM2.5 NSR 
Implementation Rule in order to comply with the court's decision. 
Accordingly, our proposed approval of elements 110(a)(2)(C), 
(D)(i)(II), and (J), with respect to the PSD requirements, does not 
conflict with the court's opinion. The EPA interprets the CAA section 
110(a)(1) and (2) infrastructure submittals due three years after 
adoption or revision of a NAAQS to exclude nonattainment area 
requirements, including requirements associated with a nonattainment 
NSR program. Instead, these elements are typically referred to as 
nonattainment SIP or attainment plan elements, which are due by the 
dates statutorily prescribed under subparts 2 through 5 under part D, 
extending as far as ten years following designations for some elements.
    In addition, we note that on December 27, 2011, we approved 
revisions to the Oregon SIP made in response to the Federal 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC); 
Final Rule'' (2010 PSD PM2.5 Implementation Rule) (75 FR 
64864). See 76 FR 80747. However, on January 22, 2013, the U.S. Court 
of Appeals for the District of Columbia, in Sierra Club v. EPA, 703 
F.3d 458 (D.C. Cir. 2013), issued a judgment that, inter alia, vacated 
the provisions adding the PM2.5 Significant Monitoring 
Concentration to the Federal regulations, at 40 CFR 51.166(i)(5)(i)(c) 
and 52.21(i)(5)(i)(c), that were promulgated as part of the 2010 PSD 
PM2.5 Implementation Rule (75 FR 64864). In its decision, 
the court held that the EPA did not have the authority to use SMCs to 
exempt permit applicants from the statutory requirement in section 
165(e)(2) of the CAA that ambient monitoring data for PM2.5 
be included in all PSD permit applications. Thus, although the 
PM2.5 SMC was not a required element of a state's PSD 
program, were a state PSD program that contains such a provision to use 
that provision to issue new permits without requiring ambient 
PM2.5 monitoring data, such application of the vacated SMC 
would be inconsistent with the court's opinion and the requirements of 
section 165(e)(2) of the CAA.
    This decision also, on the EPA's request, vacated and remanded to 
the EPA for further consideration the portions of the 2010 PSD 
PM2.5 Implementation Rule that revised 40 CFR 51.166 and 40 
CFR 52.21 related to SILs for PM2.5. The EPA requested this 
vacatur and remand of two of the three provisions in the EPA 
regulations that contain SILs for PM2.5, because the wording 
of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR 
52.21(k)(2)) is inconsistent with the explanation of when and how SILs 
should be used by permitting authorities that we provided in the 
preamble to the Federal Register publication when we promulgated these 
provisions. The third SIL provision (40 CFR 51.165(b)(2)) was not 
vacated and remains in effect. The court's decision does not affect the 
PSD increments for PM2.5 promulgated as part of the 2010 PSD 
PM2.5 Implementation Rule.
    On December 9, 2013 the EPA removed the affected PM2.5 
SILs and SMC provisions from the Code of Federal Regulations (78 FR 
73698). In the December 9, 2013, action we stated that ``Permitting 
authorities with EPA-approved SIPs containing any or all of the 
affected PM2.5 SILs and SMC provisions previously allowed by 
sections 51.166(k)(2) and 51.166(i)(5)(i)(c) should remove their 
corresponding SILs provisions and revise the numerical value of the 
PM2.5 SMC to 0 [micro]g/m\3\ (or make equivalent changes) as 
soon as feasible, which may be in conjunction with the next otherwise 
planned SIP revision.'' We also advised that ``these provisions as 
reflected in the existing state and local EPA-approved SIPs are 
unlawful and may not be applied even prior to their removal from the 
SIPs.'' Oregon intends to address the court decision on SMC

[[Page 21687]]

and SIL provisions in a rulemaking proposal regarding updates to its 
permitting program in 2014.
    Given the clarity of the court's decision and our December 9, 2013, 
action to remove the provisions from the Code of Federal Regulations, 
the PM2.5 SILs and SMC provisions included in Oregon's SIP-
approved PSD program on the basis of the EPA's regulations are unlawful 
and no longer enforceable by law. Permits issued on the basis of these 
provisions as they appear in Oregon's SIP would be inconsistent with 
the CAA and difficult to defend in administrative and judicial 
challenges. Thus, the SIP provisions may not be applied even prior to 
their removal from the SIP. As the vacated PM2.5 SILs and 
SMC provisions in the Oregon SIP are no longer enforceable, the EPA 
does not believe the existence of the provisions in the Oregon SIP 
precludes our proposed approval of the Oregon SIP as meeting the 
requirements of CAA section 110(a)(2)(C), (D)(i)(II), and (J) as those 
elements relate to a comprehensive PSD program.
    Oregon's SIP-approved minor NSR program applies major source NSR/
PSD requirements to any source with emissions over the significant 
emission rate, through the administrative mechanisms laid out in OAR 
340-216 ``Air Contaminant Discharge Permits.'' The EPA has determined 
that Oregon's Federally-approved minor NSR program, adopted pursuant to 
section 110(a)(2)(C) of the CAA, regulates emissions of Pb. Based on 
the analysis above, we are proposing to find that the Oregon SIP 
includes enforcement and minor source permitting provisions that are 
adequate to satisfy the requirements of CAA section 110(a)(2)(C) for 
the 2008 Pb NAAQS. Based on the above analysis, we are proposing to 
approve the Oregon SIP as meeting the requirements of CAA section 
110(a)(2)(C) for the 2008 Pb NAAQS.

110(a)(2)(D): Interstate Transport

    CAA section 110(a)(2)(D)(i) addresses four separate elements, or 
``prongs.'' CAA section 110(a)(2)(D)(i)(I) requires state SIPs contain 
adequate provisions prohibiting emissions which will contribute 
significantly to nonattainment of the NAAQS in any other state (prong 
1), and adequate provisions prohibiting emissions which will interfere 
with maintenance of the NAAQS by any other state (prong 2). CAA section 
110(a)(2)(D)(i)(II) requires that state SIPs contain adequate 
provisions prohibiting emissions which will interfere with any other 
state's required measures to prevent significant deterioration (PSD) of 
its air quality (prong 3), and adequate provisions prohibiting 
emissions which will interfere with any other state's required measures 
to protect visibility (prong 4).
    State submittal: The Oregon submittal addresses the requirements of 
CAA section 110(a)(2)(D)(i)(II) (prongs 3 and 4) only. As noted above, 
the Oregon submittal does not address CAA section 110(a)(2)(D)(i)(I). 
See footnote 2. The Oregon submittal references OAR-340-200 ``General 
Air Pollution Definitions and Procedures'' and OAR 340-202 ``Ambient 
Air Quality Standards and PSD Increments.'' The submittal also notes 
that the EPA most recently approved revisions to Oregon's major NSR 
rules on December 27, 2011 (76 FR 80747).
    EPA analysis: In this action, we are proposing to approve the 
Oregon SIP for purposes of CAA sections 110(a)(2)(D)(i)(II) and 
110(a)(2)(D)(ii) for the 2008 Pb NAAQS. The EPA believes that the PSD 
sub-element of CAA section 110(a)(2)(D)(i)(II) (prong 3) is satisfied 
where new major sources and major modifications in Oregon are subject 
to a Federally-approved PSD program that satisfactorily implements the 
2008 Pb NAAQS. In this action, as discussed under section 110(a)(2)(A), 
we are proposing to approve revisions to OAR Division 202 ``Ambient Air 
Quality Standards and PSD Increments.'' In addition, the EPA most 
recently approved revisions to Oregon's major NSR rules on December 27, 
2011 (76 FR 80747) for purposes of fine particulate matter, among other 
things. As discussed in section 110(a)(2)(C) above, we believe that our 
proposed approval of element 110(a)(2)(D)(i)(II) is not affected by 
recent court vacaturs of Federal PSD implementing regulations. 
Therefore, we are proposing to approve the Oregon SIP as meeting the 
requirements of CAA section 110(a)(2)(D)(i)(II) with regard to PSD for 
the 2008 Pb NAAQS.
    The EPA believes, as noted in the October 14, 2011, guidance, that 
with regard to the CAA section 110(a)(2)(D)(i)(II) visibility sub-
element, significant impacts from Pb emissions from stationary sources 
are expected to be limited to short distances from the source and most, 
if not all Pb stationary sources, are located at distances from Class I 
areas such that visibility impacts would be negligible. Although Pb can 
be a component of coarse and fine particles, Pb generally comprises a 
small fraction of coarse and fine particles. Furthermore, when 
evaluating the extent that Pb could impact visibility, Pb-related 
visibility impacts were found to be insignificant (e.g., less that 
0.10%).\18\ Where a state's regional haze SIP has been approved as 
meeting all current obligations, a state may rely upon those provisions 
in support of its demonstration that is satisfies the requirements of 
CAA section 110(a)(2)(D)(i)(II) as it relates to visibility.
---------------------------------------------------------------------------

    \18\ Analysis by Mark Schmidt, OAQPS. ``Ambient Pb's 
Contribution to Class 1 Area Visibility Impairment,'' November 7, 
2011.
---------------------------------------------------------------------------

    On December 14, 2010, Oregon submitted the Oregon Regional Haze 
SIP. On July 5, 2011, the EPA approved portions of the Oregon Regional 
Haze SIP, including the requirements for best available retrofit 
technology (BART) (76 FR 38997). We approved the remaining elements of 
the Oregon Regional Haze SIP on August 22, 2012 (77 FR 50611). Because 
we approved the Oregon SIP as meeting the regional haze requirements, 
we are proposing to approve the Oregon SIP as meeting the CAA section 
110(a)(2)(D)(i)(II) visibility requirements with respect to the 2008 Pb 
NAAQS.
    Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    State submittal: The Oregon submittal references OAR 340-209 
``Public Participation,'' as part of the Federally-approved Oregon PSD 
program. The submittal states that Oregon regulations are consistent 
with Federal requirements in Appendix N of 40 CFR part 50 pertaining to 
the notification of interstate pollution abatement.
    EPA analysis: The EPA most recently approved revisions to the 
Oregon major NSR regulations on December 27, 2011 (76 FR 80747). The 
public notice provisions at OAR 340-209-0060 require that for major NSR 
actions, ODEQ will provide notice to neighboring states, among other 
officials and agencies. Oregon has no pending obligations under section 
115 or 126(b) of the CAA. Therefore, we are proposing to approve the 
Oregon SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii) 
for the 2008 Pb NAAQS.

110(a)(2)(E): Adequate Resources

    CAA 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

[[Page 21688]]

provision of Federal or state law from carrying out the SIP or portion 
thereof), (ii) requirements that the State comply with the requirements 
respecting state boards under CAA 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.
    State submittal: With respect to the requirements of sub-element 
(E)(i), the Oregon submittal cites ORS 468.035 ``Functions of 
Department'' 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 ``Functions of Director; 
Delegation'' provides the ODEQ Director with authority to hire, assign, 
reassign, and coordinate personnel of the department and to administer 
and enforce the laws of the State concerning environmental quality. In 
addition, the submittal cites the CAA section 105 grants received from 
the EPA and matched through the Oregon General Fund.
    With respect to the requirements of sub-element (E)(ii), the 
submittal cites OAR 340-200-0100 ``Purpose,'' OAR 340-200-0110 ``Public 
Interest Representation,'' and OAR 340-200-0120 ``Disclosure of 
Potential Conflicts of Interest.'' The submittal states that the EPA 
approved the listed regulatory provisions as meeting the requirements 
of CAA section 128 on January 22, 2003 (68 FR 2891).
    With respect to the requirements of sub-element (E)(iii), the 
submittal cites ORS 468.020 ``Rules and Standards'' which requires a 
public hearing on any proposed rule or standard prior to adoption. ORS 
468.035(c) ``Functions of Department'' provides ODEQ 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 ``Policy'' calls for a coordinated statewide program of 
air quality control with responsibility allocated between the state and 
the units of local government. ORS 468A.100-180 ``Regional Air Quality 
Control Authorities'' describes the establishment, role and function of 
regional air quality control authorities. State regulations at OAR 340-
200 ``General Air Quality Definitions'' specify LRAPA has authority in 
Lane County and defines the term ``Regional Agency.'' OAR 340-204 
``Designation of Air Quality Areas'' includes designation of control 
areas within Lane County. OAR 340-216 ``Air Contaminant Discharge 
Permits'' includes permitting authorities for LRAPA.
    EPA analysis: We are proposing to find that the above-referenced 
provisions provide Oregon with adequate authority to carry out SIP 
obligations with respect to the 2008 Pb NAAQS as required by CAA 
section 110(a)(2)(E)(i). We are also proposing to approve the Oregon 
SIP as meeting CAA section 110(a)(2)(E)(ii), which requires that SIPs 
contain requirements to comply with CAA section 128, for the Pb NAAQS. 
On January 22, 2003, we approved OAR 340-200-0100 through OAR 340-200-
0120 as meeting the requirements of CAA section 128 (68 FR 2891). We 
previously approved LRAPA Title 12, Section 025 (recodified at LRAPA 
Title 13, section 025) as meeting the requirements of CAA section 128 
on March 1, 1989 (54 FR 8538). Finally, we are proposing to find that 
Oregon has provided 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 the SIP with 
regards to the 2008 Pb NAAQS as required by CAA section 
110(a)(2)(E)(iii). Therefore we are proposing to approve the Oregon SIP 
as meeting the requirements of CAA sections 110(a)(2)(E) for the 2008 
Pb NAAQS.

110(a)(2)(F): Stationary Source Monitoring System

    CAA 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 reports shall be available at reasonable times for public 
inspection.
    State submittal: The Oregon submittal refers to the following 
statutory and regulatory provisions which provide authority and 
requirements for source emissions monitoring, reporting, and 
correlation with emission limits or standards:

 ORS 468.035 ``Functions of Department'' paragraphs (b) and (d)
 ORS 468A.020 ``Rules and Standards''
 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''
 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''
    EPA analysis: The Oregon statutory provisions listed above provide 
authority to establish a program for measurement and testing of 
sources, including requirements for sampling and testing. The Oregon 
regulations cited above require facilities to monitor and report 
emissions, including requirements for monitoring methods and design, 
and monitoring and quality improvement plans. In addition, stationary 
source reporting requirements include maintaining written records to 
demonstrate compliance with emission rules, limitations, or control 
measures, and requirements for reporting and recordkeeping. Information 
is made available to the public through public processes outlined at 
OAR 340-209 ``Public Participation.''
    Additionally, Oregon is required to submit emissions data to the 
EPA for purposes of the National Emissions Inventory (NEI). The NEI is 
the EPA's central repository for air emissions data. The EPA published 
the Air Emissions Reporting Rule (AERR) on December 5, 2008, which 
modified the requirements for collecting and reporting air emissions 
data (73 FR 76539). The AERR shortened the time states had to report 
emissions data from 17 to 12 months, giving states one calendar year to 
submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and their associated precursors--nitrogen oxides, 
sulfur dioxide, ammonia, Pb, carbon monoxide, particulate matter, and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. The EPA compiles the emissions 
data, supplementing it where necessary, and releases it to the general 
public through

[[Page 21689]]

the Web site http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we are proposing to approve the Oregon 
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 
2008 Pb NAAQS.

110(a)(2)(G): Emergency Episodes

    CAA section 110(a)(2)(G) requires states to provide for authority 
to address activities causing imminent and substantial endangerment to 
public health, including adequate contingency plans to implement the 
emergency episode provisions in their SIPs.
    State 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 advisory to notify the public. OAR 
340-214 ``Stationary Source Reporting Requirements'' requires reporting 
of emergencies and excess emissions and reporting requirements.
    EPA analysis: Section 303 of the CAA provides authority to the EPA 
Administrator to restrain any source from causing or contribution to 
emissions which present an ``imminent and substantial endangerment to 
public health or welfare, or the environment.'' We find that ORS 468-
115 ``Enforcement in Cases of Emergency'' provides emergency order 
authority comparable to CAA Section 303.
    As noted in the October 14, 2011, guidance, based on the EPA's 
experience to date with the Pb NAAQS and designating Pb nonattainment 
areas, the EPA expects that an emergency episode associated with Pb 
emissions would be unlikely and, if it were to occur, would be the 
result of a malfunction or other emergency situation at a relatively 
large source of Pb. Accordingly, the EPA believes that the central 
components of a contingency plan would be to reduce emissions from the 
source at issue and public communication as needed. We note that 40 CFR 
part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do 
not apply to Pb.
    We most recently approved revisions to the Oregon air pollution 
emergency rules at OAR 340-206 ``Air Pollution Emergencies'' on 
December 27, 2011 (76 FR 80747). In the same action we approved 
revisions to OAR 340-214 ``Stationary Source Reporting Requirements,'' 
which requires that, where applicable, sources report emergencies and 
excess emissions to ODEQ. Accordingly, we are proposing to approve the 
Oregon SIP as meeting the requirements of CAA section 110(a)(2)(G) for 
the 2008 Pb NAAQS.

110(a)(2)(H): Future SIP Revisions

    CAA 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.
    State submittal: The Oregon submittal refers to ORS 468.020 ``Rules 
and Standards'' which requires public hearing on any proposed rule or 
standard prior to adoption, and ORS 468A.035 ``General Comprehensive 
Plan'' which requires ODEQ to develop a general comprehensive plan for 
the control or abatement of air pollution. The submittal also 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 the Oregon SIP and submittal of revisions to the EPA, 
including standards submitted by a regional authority and adopted 
verbatim into ODEQ rules.
    EPA analysis: As cited above, the Oregon SIP provides for 
revisions, and in practice, Oregon regularly submits SIP revisions to 
the EPA to take into account revisions to the NAAQS and other Federal 
regulatory changes. On December 27, 2011, the EPA approved numerous 
revisions to the Oregon SIP, including updates to reflect Federal 
changes to multiple Federal NAAQS (76 FR 80747). Accordingly, we are 
proposing to approve the Oregon SIP as meeting the requirements of CAA 
section 110(a)(2)(H) for the 2008 Pb NAAQS.

110(a)(2)(I): Nonattainment Area Plan Revision Under Part D

    There are two elements identified in CAA section 110(a)(2) not 
governed by the three-year submission deadline of CAA section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area controls 
are not due within three years after promulgation of a new or revised 
NAAQS, but are rather due at the time of the nonattainment area plan 
requirements pursuant to section 172 and the various pollutant specific 
subparts 2-5 of part D. These requirements are: (i) submissions 
required by CAA 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 CAA section 110(a)(2)(C) with respect to nonattainment NSR 
or CAA section 110(a)(2)(I).

110(a)(2)(J): Consultation With Government Officials

    CAA 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 CAA section 121, 
relating to consultation. CAA 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, CAA section 110(a)(2)(J) requires states to meet 
applicable requirements of part C, title I of the CAA related to 
prevention of significant deterioration and visibility protection.
    State submittal: The Oregon submittal reference specific laws and 
regulations relating to consultation, public notification, and PSD and 
visibility protection:

 ORS 468.020 ``Rules and Standards''
 ORS 468.035 ``Functions of Department'' paragraphs (a), (c), 
(f), and (g)
 ORS 468A.010 ``Policy'' paragraphs (1)(b) and (c)
 ORS 468A.025 ``Air Purity Standards; Air Quality Standards; 
Treatment and Control of Emissions; Rules''
 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 340-216 ``Air Contaminant Discharge Permits''
 OAR 340-224 ``Major New Source Review''
 OAR 340-225 ``Air Quality Analysis Requirements''
 OAR 340-223 ``Regional Haze Rules''
 OAR 340-252 ``Transportation Conformity''

    EPA analysis: The Oregon SIP includes specific provisions for

[[Page 21690]]

consulting with local governments and Federal Land Managers as 
specified in CAA section 121, including the Oregon rules for major 
source PSD permitting. The EPA most recently approved revisions to the 
Oregon major NSR permitting rules at OAR 340-224, which provide 
opportunity and procedures for public comment and notice to appropriate 
Federal, state and local agencies, on December 27, 2011 (76 FR 80747). 
We most recently approved the Oregon rules that define transportation 
conformity consultation on October 4, 2012 (77 FR 60627). While 
transportation conformity requirements do not apply for Pb because of 
the nature of the standard, the consultation procedures that Oregon has 
in place to implement transportation conformity requirements provides 
evidence of the State's ability to consult with other governmental 
agencies on air quality issues.
    In practice, ODEQ routinely coordinates with local governments, 
states, Federal Land Managers and other stakeholders on air quality 
issues including permitting action, transportation conformity, and 
regional haze. Therefore, we are proposing to find that the Oregon SIP 
meets the requirements of CAA section 110(a)(2)(J) for consultation 
with government officials for the 2008 Pb NAAQS.
    Section 110(a)(2)(J) also requires the public be notified if NAAQS 
are exceeded in an area and to enhance public awareness of measures 
that can be taken to prevent exceedances. The EPA calculates an air 
quality index for five major air pollutants regulated by the CAA: 
Ground-level ozone, particulate matter, carbon monoxide, sulfur 
dioxide, and nitrogen dioxide. This air quality index provides daily 
information to the public on air quality. While Pb is not specifically 
part of the air quality index, we note that Oregon actively 
participates and submits information to the EPA's AIRNOW and 
Enviroflash Air Quality Alert programs which provide information to the 
public on the air quality in their locale. Oregon provides the State's 
annual network monitoring plan and annual air quality monitoring data 
summaries to the public on their Web site at http://www.deq.state.or.us/aq/forms/annrpt.htm. The monitoring plans and data 
summaries include information on Pb monitoring. Therefore, we are 
proposing to find that the Oregon SIP meets the requirements of CAA 
section 110(a)(2)(J) for public notification for the 2008 Pb NAAQS.
    Turning to the requirement in CAA section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C, title I of the CAA, we have 
evaluated this requirement in the context of CAA section 110(a)(2)(C) 
with respect to permitting. The EPA most recently approved revisions to 
Oregon's PSD program on December 27, 2011 (76 FR 80747), updating the 
program for purposes of fine particulate matter NAAQS implementation in 
attainment and unclassifiable areas, among other things. We believe 
that our proposed approval of element 110(a)(2)(J) is not affected by 
recent court vacaturs of Federal PSD implementing regulations. Please 
see our discussion of section 110(a)(2)(C). Therefore, we are proposing 
to approve the Oregon SIP as meeting the requirements of CAA 
110(a)(2)(J) with regards to PSD for the 2008 Pb NAAQS.
    With regard to the applicable requirements for visibility 
protection, the 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 applicable requirement relating to visibility 
triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes 
effective.
    Based on the above analysis, we are proposing to approve the Oregon 
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 
2008 Pb NAAQS.

110(a)(2)(K): Air Quality and Modeling/Data

    CAA 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.
    State submittal: The Oregon submittal refers to ORS 468-020 ``Rules 
and Standards'' which requires public hearing on any proposed rule or 
standard prior to adoption, and ORS 468.035 ``Functions of Department'' 
which provides ODEQ authority to conduct studies and investigations to 
determine air quality. The submittal also references 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: The EPA previously approved OAR 340-225 ``Air Quality 
Analysis Requirements'' on November 27, 2011 (76 FR 80747) and these 
rules 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.
    As an example of the State's modeling capacity, we cite a recent 
Oregon SIP revision, supported by modeling. 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, the State submitted these 
maintenance plans to the EPA, supported by extensive modeling. The EPA 
approved the SIP revision on December 19, 2011 (76 FR 78571). 
Therefore, we are proposing to approve the Oregon SIP as meeting the 
requirements of CAA section 110(a)(2)(K) for the 2008 Pb NAAQS.

110(a)(2)(L): Permitting Fees

    CAA 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.
    State submittal: The Oregon 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. 
ORS 468A.040 ``Permits; Rules'' provides that the EQC may require 
permits for air contamination sources, type of air contaminant, or 
specific areas of the State. The submittal also references 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, the EPA fully approved 
Oregon's title V program (60 FR 50106) (effective November 27, 1995). 
While Oregon's title V operating permit program is not formally 
approved into the State's SIP, it is a 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 the EPA can grant 
full approval, a state must demonstrate the ability to collect adequate 
fees. The

[[Page 21691]]

Oregon title V program included a demonstration that fees were 
adequate, and the State will collect a fee from title V sources above 
the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). In 
addition, Oregon regulations require fees for purposes of major and 
minor NSR permitting, as specified in OAR 340-216 ``Air Contaminant 
Discharge Permits''-0020 (Table 2) ``ACDP Fee Schedule'' and -0090 
(Table 1) ``Sources Subject to ADCP and Fees.'' Therefore, we are 
proposing to conclude that Oregon has satisfied the requirements of CAA 
section 110(a)(2)(L) for the 2008 Pb NAAQS.

110(a)(2)(M): Consultation/Participation by Affected Local Entities

    CAA section 110(a)(2)(M) requires states to provide for 
consultation and participation in SIP development by local political 
subdivisions affected by the SIP.
    State submittal: The Oregon submittal refers to the following laws 
and regulations:

 ORS 468.020 ``Rules and Standards''
 ORS 468.035 ``Functions of Department'' paragraphs (a), (c), 
(f), and (g)
 ORS 468A.010 ``Policy'' paragraphs (1)(b) and (c)
 ORS 468A.035 ``General Comprehensive Plan''
 ORS 468A.040 ``Permits; Rules''
 ORS 468A.055 ``Notice Prior to Construction of New Sources; 
Order Authorizing or Prohibiting Construction; Effect of No Order; 
Appeal''
 ORS 468A.070 ``Measurement and Testing of Contamination 
Sources; Rules''
 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 were previously 
approved on December 27, 2011 (76 FR 80747), and provide for 
consultation and participation in SIP development by local political 
subdivisions affected by the SIP. We are proposing to approve the 
Oregon SIP as meeting the requirements of CAA section 110(a)(2)(M) for 
the 2008 Pb NAAQS.

V. Proposed Action

    The EPA is proposing to approve the portion of the December 27, 
2013, SIP submittal from Oregon relating to the infrastructure 
requirements of the 2008 Pb NAAQS. Specifically, we are proposing to 
approve the submitted revision to OAR 340-202-0130 ``Ambient Air 
Quality Standard for Lead'' and the addition of OAR 340-202-0020 
``Applicability.'' We are proposing to find that the Oregon SIP meets 
the following CAA section 110(a)(2) infrastructure elements for the 
2008 Pb NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), 
(J), (K), (L), and (M).
    As described in detail above, we are not approving the submitted 
revision to OAR 340-200-0040 ``State of Oregon Clean Air Act 
Implementation Plan.'' In addition, we are taking no action on the 
submitted revisions to OAR 340-200-0020 ``General Air Quality 
Definitions, Table 1--Significant Air Quality Impact,'' OAR 340-202-
0070 ``Sulfur Dioxide,'' and OAR 340-202-0100 ``Nitrogen Dioxide'' 
because these revisions are outside the scope of the 2008 Pb 
infrastructure SIP. We intend to address these revisions in a separate 
action.

VI. 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, the 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 the requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    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 the 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, Intergovernmental 
relations, Lead, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: March 27, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014-08608 Filed 4-16-14; 8:45 am]
BILLING CODE 6560-50-P