Federal Register / Vol. 79, No. 74 / Thursday, April 17, 2014 / Proposed Rules 21679 

ability to collect adequate fees. Idaho’s 

title V program included a 

demonstration the State will collect a 

fee from title V sources above the 

presumptive minimum in accordance 

with 40 CFR 70.9(b)(2)(i). Idaho 

regulations require permitting fees for 

major sources subject to new source 

review, as specified at IDAPA 

58.01.01.224 through 227. Therefore, we 

are proposing to conclude that Idaho 

has satisfied the requirements of CAA 

section 110(a)(2)(L) for the 2010 NO2

and 2010 SO2 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 submittals: The Idaho submittals 

reference IDAPA 58.01.01.209, 364 and 

404 which provide for the public 

processes related to developing and 

issuing air quality permits. In addition, 

the submittals reference the 

transportation conformity consultation 

and public processes at IDAPA 

58.01.01.563 through 574. Finally, the 

submittals reference the consultation 

and participation process outlined in 40 

CFR 51.102, incorporated by reference 

at IDAPA 58.01.01.107. 

EPA analysis: The EPA most recently 

approved IDAPA 58.01.01.107 

(incorporations by reference), which 

incorporates by reference EPA 

regulations at 40 CFR part 51— 

Requirements for Preparation, 

Adoption, and Submittal of 

Implementation Plans on March 3, 2014 

(79 FR 11711). In addition, we most 

recently approved Idaho permitting 

rules at IDAPA 58.01.01.209 and 

58.01.01.404, which provide 

opportunity and procedures for public 

comment and notice to appropriate 

Federal, state and local agencies, on 

November 26, 2010 (75 FR 47530). 

Finally, we approved the State rules that 

define transportation conformity 

consultation on April 12, 2001 (66 FR 

18873). Therefore, we are proposing to 

approve the Idaho SIP as meeting the 

requirements of CAA section 

110(a)(2)(M) for the 2010 NO2 and 2010 

SO2 NAAQS. 

V. Proposed Action 

The EPA is proposing to find that the 

Idaho SIP meets the following CAA 

section 110(a)(2) infrastructure elements 

for the 2010 NO2 and 2010 SO2 NAAQS: 

(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). This action is 

being taken under section 110 of the 

CAA. 

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 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this 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 

the 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 Idaho, 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, Incorporation by 

Reference, Nitrogen dioxide, Ozone, 

Particulate Matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: March 27, 2014. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

[FR Doc. 2014–08609 Filed 4–16–14; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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: R10- 

Public_Comments@epa.gov. 

• 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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1Stephen 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. 

2Oregon’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 

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, 

hall.kristin@epa.gov, 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 (mg/m3) to 0.15 mg/m3. 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. 

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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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. 

3For 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. 

4See, 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)). 

5The 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. 

• 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 threeyear 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. 

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. 

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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6See, 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). 

7On 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. 

8For 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. 

9The 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. 

11The 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. 

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 subelements of the same infrastructure SIP 

submission.7

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

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. 

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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12By 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. 

13For 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). 

14The 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 

Continued 

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 SIPapproved 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. 

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


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(November 3, 2009) (corrections to Arizona and 

Nevada SIPs). 

15See, 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). 

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

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 


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16For 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). 

17Oregon Monitoring Network Approval Letter, 

dated March 10, 2014. 

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 SIPapproved 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. 

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. 

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 


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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 EPAapproved 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 mg/m3 (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 


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18Analysis by Mark Schmidt, OAQPS. ‘‘Ambient 

Pb’s Contribution to Class 1 Area Visibility 

Impairment,’’ November 7, 2011. 

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. 

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 Federallyapproved 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 


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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 


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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 


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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 


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Federal Register / Vol. 79, No. 74 / Thursday, April 17, 2014 / Proposed Rules 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 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 511, 538, and 552 

[GSAR Case 2010–G511; Docket 2014–0008; 

Sequence 1] 

RIN 3090–AJ43 

General Services Administration 

Acquisition Regulation (GSAR); 

Purchasing by Non-Federal Entities 

AGENCY: Office of Acquisition Policy, 

General Services Administration. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: The General Services 

Administration (GSA) is issuing a 

proposed rule amending the General 

Services Administration Acquisition 

Regulation (GSAR), Describing Agency 

Needs, to implement the Federal Supply 


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