[Federal Register Volume 66, Number 183 (Thursday, September 20, 2001)]
[Rules and Regulations]
[Pages 48349-48355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23218]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52 and 81
[OR-00-002a; FRL-7044-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes: Oregon
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
revisions to Oregon's State Implementation Plan (SIP) which were
submitted on November 20, 2000. These revisions consist of the 1996
carbon monoxide (CO) periodic emissions inventory for Klamath Falls,
Oregon, and the Klamath Falls CO maintenance plan. Oregon concurrently
requested redesignation of Klamath Falls from nonattainment to
attainment for CO. EPA is approving the State's request because it
meets all of the Clean Air Act (ACT) requirements for redesignation.
DATES: This direct final rule will be effective on November 19, 2001
without further notice, unless EPA receives adverse comment by October
22, 2001. If adverse comments are received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Written comments should be addressed to: Connie Robinson,
EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle,
Washington 98101.
Copies of the State's requests and other information supporting
this action are available for inspection during normal business hours
at the following locations: EPA, Office of Air Quality (OAQ-107), 1200
Sixth Avenue, Seattle, Washington 98101, and State of Oregon Department
of Environmental Quality, 811 SW Sixth Avenue, Portland, Oregon 97204-
1390.
FOR FURTHER INFORMATION CONTACT: Connie Robinson, Office of Air Quality
(OAQ-107), EPA, Seattle, Washington, (206) 553-1086.
[[Page 48350]]
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our'' is used, we mean the Environmental Protection Agency
(EPA). This supplementary information is organized as follows:
I. Background Information
A. What action is EPA taking?
B. What is a State Implementation Plan?
C. Why was this SIP revision and redesignation request
submitted?
II. Basis for EPA's Action
A. What Criteria did EPA use to Review the Maintenance Plan and
Redesignation request?
B. How does the State Show that the Area Has Attained the CO
NAAQS?
C. Does the Area have a fully approved SIP under section 110(k)
of the Act and has the area met all the relevant requirements under
section 110 and part D of the Act?
D. Are the Improvements in Air Quality Permanent and
Enforceable?
E. Has the State Submitted a Fully Approved Maintenance Plan
pursuant to section 175A of the Act?
F. Did the State provide adequate attainment year and
maintenance year emissions inventories?
Table 1 1996 CO Attainment Year Actual Emissions and 2011 CO
Maintenance Year Projected Emissions (Pounds CO/Winter Day)
G. How will this action affect the oxygenated fuels program in
Klamath Falls?
H. How will the State continue to verify attainment?
I. What contingency measures does the State provide?
J. How will the State provide for subsequent maintenance plan
revisions?
K. How does this action affect Transportation Conformity in
Klamath Falls?
Table 2 Klamath Falls Urban Growth Boundary Emissions Budget
Through 2015 (Pounds CO/Winter Day)
L. How does this action affect specific rules?
III. Final Action
IV. Administrative Requirements
I. Background Information
A. What Action Is EPA Taking?
Today's rulemaking announces three actions being taken by EPA
related to air quality in the State of Oregon. These actions are taken
at the request of the Governor of Oregon in response to Act
requirements and EPA regulations.
First, EPA approves the 1996 periodic CO emissions inventory for
Klamath Falls. The 1996 inventory establishes a baseline of emissions
that EPA considers comprehensive and accurate and provides the
foundation for air quality planning in the Klamath Falls, Oregon
nonattainment area.
Second, EPA approves the CO maintenance plan for the Klamath Falls
nonattainment area into the Oregon SIP.
Third, EPA redesignates Klamath Falls from nonattainment to
attainment for carbon monoxide. This redesignation is based on
validated monitoring data and projections made in the maintenance
plan's demonstration. EPA believes the area will continue to meet the
National Ambient Air Quality Standards (NAAQS) for CO for at least ten
years beyond this redesignation, as required by the Act.
B. What Is a State Implementation Plan?
Section 110 of the Act requires states to develop air pollution
regulations and control strategies to ensure that State air quality
meets the NAAQS established by the EPA. These ambient standards are
established under section 109 of the Act and they address six criteria
pollutants: CO, nitrogen dioxide, ozone, lead, particulate matter and
sulfur dioxide.
Each State must submit these regulations and control strategies to
us for approval and incorporation into the Federally enforceable SIP.
Each State has a SIP designed to protect its air quality. These SIPs
can be extensive, containing regulations, enforceable emission limits,
emission inventories, monitoring networks, and modeling demonstrations.
Oregon submitted their original section 110 SIP on January 25, 1972
and it was approved by EPA soon thereafter. Other SIP revisions have
been submitted over the intervening years and likewise have been
approved. The Klamath Falls CO SIP revisions and redesignation request
submitted on November 20, 2000, are the subject of today's action.
C. Why Was This SIP Revision and Redesignation Request Submitted?
Upon enactment of the 1990 Clean Air Act Amendments, a new
classification scheme was created which established attainment dates
and planning requirements according to the severity of nonattainment.
The Klamath Falls nonattainment area was designated a moderate
nonattainment area for CO on January 6, 1992. This designation was the
result of 1988 and 1989 ambient air quality monitoring data that showed
violations of the CO NAAQS. The attainment deadline became December 31,
1995, or as expeditiously as practicable.
Oregon believes that the Klamath Falls, Oregon area is now eligible
for redesignation because air quality data shows that it has not
recorded a violation of the primary or secondary CO air quality
standards since 1990. The maintenance plan demonstrates that Klamath
Falls will be able to remain in attainment for the next 10 years.
II. Basis for EPA's Action
A. What Criteria Did EPA Use To Review the Maintenance Plan and
Redesignation Request?
Section 107(d)(3)(E) of the Act states that EPA can redesignate an
area to attainment if the following conditions are met:
1. The area must attain the applicable NAAQS.
2. The area must have a fully approved SIP under 110(k) of the Act
and the area must meet all the relevant requirements under section 110
and part D of the act.
3. The air quality improvement must be permanent and enforceable.
4. The area must have a fully approved maintenance plan pursuant to
section 175A of the Act.
EPA has found that the Oregon redesignation request for the Klamath
Falls, Oregon nonattainment area meets the above requirements. A
Technical Support Document on file at the EPA Region 10 office contains
a detailed analysis and rationale in support of the redesignation of
Klamath Fall's CO nonattainment area to attainment.
B. How Does the State Show That the Area Has Attained the CO NAAQS?
To attain the CO NAAQS, an area must have complete quality-assured
data showing no more than one exceedance of the standard per year for
at least two consecutive years. The redesignation of Klamath Falls is
based on air quality data that shows that the CO standard was not
violated from 1990 through 1995, or since. These data were collected by
the Oregon Department of Environmental Quality (ODEQ) in accordance
with 40 CFR 50.8, following EPA guidance on quality assurance and
quality control and are entered in the EPA Aerometric Information and
Retrieval System, or AIRS. Since the Klamath Falls, Oregon area has ten
years of complete quality-assured monitoring data showing attainment
with no violations, the area has met the statutory criterion for
attainment of the CO NAAQS. ODEQ has committed to continue monitoring
in this area in accordance with 40 CFR part 58.
C. Does the Area Have a Fully Approved SIP Under Section 110(k) of the
Act and Has the Area Met All the Relevant Requirements Under Section
110 and Part D of the Act?
Klamath Falls was classified as a nonattainment area with a design
value less than 12.7 parts per million (ppm). Therefore, the 1990
requirements applicable to the Klamath Falls nonattainment area for
inclusion in the
[[Page 48351]]
Oregon SIP include the preparation of a 1990 emission inventory with
periodic updates, adoption of an oxygenated fuels program, development
of contingency measures, development of conformity procedures, and the
establishment of a permit program for new or modified major stationary
sources.
For the purposes of evaluating the request for redesignation to
attainment, EPA has previously approved all but one element of the
Oregon SIP. Section 187(a) of the Act requires moderate CO areas to
submit a comprehensive, accurate, and current inventory of actual
emissions from all sources as described in the nonattainment area
provision section 172(c)(3). Specifically, the 1990 emissions inventory
was reviewed but not acted upon to allow for additional correction and
revision. We later determined that a 1996 inventory that incorporated
these changes would satisfy the requirement for a base year inventory
and would also serve as the periodic emissions inventory submitted with
the maintenance plan. Today's action approves this required element of
the 110 SIP as part of the Oregon SIP concurrently with the
redesignation to attainment.
D. Are the Improvements in Air Quality Permanent and Enforceable?
Yes. EPA is approving Klamath Falls' maintenance plan as meeting
the requirements of the 1990 amendments. Emissions reductions achieved
through the implementation of control measures contained in that SIP
are enforceable. These measures are: (1) The Federal Motor Vehicle
Control Program, establishing emission standards for new motor
vehicles; and (2) an oxygenated fuels program. The Klamath Falls area
initially attained the NAAQS in 1991 (prior to the implementation of
the oxygenated fuels program in November 1992) and the plan cites
monitoring data in AIRS which shows continued attainment through 2000.
ODEQ has demonstrated that actual enforceable emission reductions
are responsible for the air quality improvement and that the CO
emissions in the base year are not artificially low due to a local
economic downturn or unusual or extreme weather patterns. We believe
the combination of certain existing EPA-approved SIP and Federal
measures contributed to permanent and enforceable reductions in ambient
CO levels that have allowed the area to attain the NAAQS.
E. Has the State Submitted a Fully Approved Maintenance Plan Pursuant
to Section 175A of the Act?
Yes. Section 175A sets forth the elements of a maintenance plan for
areas seeking redesignation from nonattainment to attainment. The plan
must demonstrate continued attainment of the applicable NAAQS for at
least ten years after the Administrator approves a redesignation to
attainment. Eight years after the redesignation, the State must submit
a revised maintenance plan which demonstrates attainment for the ten
years following the initial ten-year period. To provide for the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures, with a schedule for implementation
adequate to assure prompt correction of any air quality problems. With
this action, EPA is approving the maintenance plan for the Klamath
Falls area.
F. Did the State Provide Adequate Attainment Year and Maintenance Year
Emissions Inventories?
Yes. ODEQ submitted comprehensive inventories of CO emissions from
point, area and mobile sources using 1996 as the attainment year. This
data was then used in calculations to demonstrate that the CO standard
will be maintained in future years. Since air monitoring recorded
attainment levels of CO in 1996, this is an acceptable year for the
attainment inventory.
Based on the CO emissions in the attainment year (1996), ODEQ
calculated inventories for the required maintenance year (2011) and
four years beyond (2015). Future emission estimates are based on
forecast assumptions about growth of the regional economy and vehicle
miles traveled.
Mobile sources are the greatest source of carbon monoxide. Although
vehicle use is expected to increase in the future, more stringent
Federal automobile standards and removal of older, less efficient cars
over time will still result in an overall decline in CO emissions. The
projections in the maintenance plan demonstrate that future emissions
are not expected to exceed attainment year levels.
Total CO emissions were projected from the 1996 attainment year out
to 2015. These projected inventories were prepared according to EPA
guidance. Because compliance with the 8-hour CO standard is linked to
average daily emissions, emission estimates reflecting a typical winter
season day (pounds of CO per day) were used for the maintenance
demonstration. Oregon calculated these emissions without the
implementation of the oxygenated fuels program. Oregon is requesting
that the SIP requirement for an oxygenated fuels program be
discontinued upon EPA's approval of the maintenance plan and
redesignation. The projections show that CO emissions calculated
without the implementation of the oxygenated fuels program are not
expected to exceed 1996 attainment year levels. The following table
summarizes the attainment year and maintenance year emissions.
Table 1.--1996 CO Attainment Year Actual Emissions and 2011 CO Maintenance Year Projected Emissions
[Pounds CO/Winter Day]
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Year Mobile Area Non-road Point Total
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1996 Attainment Year Actuals................... 26,734 11,586 4,074 3,923 46,316
2011 Maintenance Year Projected................ 24,102 12,409 4,861 3,671 45,044
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Detailed inventory data for this action is contained in the docket
maintained by EPA.
G. How Will This Action Affect the Oxygenated Fuels Program in Klamath
Falls?
ODEQ's maintenance demonstration shows that the Klamath Falls Urban
Growth Boundary (UGB) is expected to continue to meet the CO NAAQS
through 2015 without the oxygenated fuels program, while maintaining a
safety margin. Therefore, EPA approves the State's request to
discontinue the oxygenated fuels program. The oxygenated fuels program
will not need to be implemented following redesignation unless a future
violation of the standard triggers its use as a contingency measure in
accordance with the approved maintenance plan.
H. How Will the State Continue To Verify Attainment?
In accordance with 40 CFR part 50 and EPA's Redesignation Guidance,
[[Page 48352]]
ODEQ has committed to analyze air quality data on an annual basis to
verify continued attainment of the CO NAAQS. ODEQ will also conduct a
comprehensive review of plan implementation and air quality status
eight years after redesignation. The State will then submit a SIP
revision that includes a full emissions inventory update and provides
for the continued maintenance of the standard ten years beyond the
initial ten-year period.
I. What Contingency Measures Does the State Provide?
Section 175A(d) of the Act requires retention of all control
measures contained in the SIP prior to redesignation as contingency
measures in the CO maintenance plan.
Since the oxygenated fuels program was a control measure contained
in the SIP prior to redesignation, the SIP retains oxygenated fuels as
the primary contingency measure in the maintenance plan.
This contingency measure will be triggered in the event of a
quality-assured violation of the NAAQS for CO at any permanent
monitoring site in the nonattainment area. A violation will occur when
any monitoring site records two eight-hour average CO concentrations
that equal or exceed 9.5 ppm in a single calendar year. This
contingency measure will require all gasoline blended for sale in
Klamath Falls to meet requirements identical to those of the current
oxygenated gasoline program.
The oxygenated fuels program will be fully implemented no later
than the next full winter season following the date when the
contingency measure was activated. Implementation will continue
throughout the balance of the CO maintenance period, or until such time
as a reassessment of the ambient CO monitoring data establishes that
the contingency measure is no longer needed.
EPA is approving the conversion of the oxygenated fuels program
from a control measure to a contingency measure for the Klamath Falls
area.
J. How Will the State Provide for Subsequent Maintenance Plan
Revisions?
In accordance with section 175A(b) of the Act, the state has agreed
to submit a revised maintenance SIP eight years after the area is
redesignated to attainment. That revised SIP must provide for
maintenance of the standard for an additional ten years.
The plan states that ODEQ will likely conduct its first revision of
the plan in 2009. It will include a full emissions inventory update and
projected emissions demonstrating continued attainment for ten
additional years.
K. How Does This Action Affect Transportation Conformity in Klamath
Falls?
Under section 176(c) of the Act, transportation plans, programs,
and projects in nonattainment or maintenance areas that are funded or
approved under 23 U.S.C. or the Federal Transit Act, must conform to
the applicable SIPs. In short, a transportation plan is deemed to
conform to the applicable SIP if the emissions resulting from
implementation of that transportation plan are less than or equal to
the motor vehicle emission level established in the SIP for the
maintenance year and other analysis years.
In this maintenance plan, procedures for estimating motor vehicle
emissions are well documented. For transportation conformity and
regional emissions analysis purposes, an emissions budget has been
established for on-road motor vehicle emissions in the Klamath Falls
UGB. The transportation emissions budget numbers for the plan are shown
in Table 2.
Table 2.--Klamath Falls UGB Transportation Emissions Budget Through 2015
[Pounds CO/Winter Day]
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Year 1996 2000 2005 2010 2015
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Budget.................................... 26,734 26,362 26,116 25,498 24,880
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L. How Does This Action Affect Specific Rules?
Upon the effective date of this action, Klamath Falls will no
longer be a nonattainment area, and will become a maintenance area.
Therefore, OAR 340-204-0030, Designation of Nonattainment Areas, and
OAR 340-204-0040, Maintenance Areas, have been revised to reflect this
change. Additionally, OAR 340-204-0090, Oxygenated Gasoline Control
Areas, has been revised to discontinue the program in Klamath Falls
upon the effective date of this action. EPA is approving these rules as
revisions to the SIP and replacing the rules dated 10-22-99.
Below is a list of the specific rule revisions affected by this
action which EPA is incorporating by reference into the SIP, with the
state effective date in parentheses.
OAR 340-204-0030, Designation of Nonattainment Areas (10-25-00)
OAR 340-204-0040, Maintenance Areas (10-25-00)
OAR 340-204-0090, Oxygenated Gasoline Control Areas (10-25-00)
III. Final Action
EPA is approving the following revisions to the Oregon SIP: the
1996 CO periodic emissions inventory for Klamath Falls, Oregon, and the
Klamath Falls CO maintenance plan. EPA is also redesignating Klamath
Falls, Oregon from nonattainment to attainment for CO. EPA is approving
the Klamath Falls CO maintenance plan and Oregon's request for
redesignation to attainment because Oregon has demonstrated compliance
with the requirements of section 107(d)(3)(E). The Agency believes that
the redesignation requirements are effectively satisfied based on
information provided by ODEQ and requirements contained in the Oregon
SIP and maintenance plan.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to any SIP will be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that
[[Page 48353]]
EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
C. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
D. Executive Order 13175
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
E. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
F. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because SIP approvals under section 110 and
subchapter I, part D of the Clean Air Act do not create any new
requirements but simply approve requirements that the State is already
imposing. Additionally, redesignation of an area to attainment under
section 107(d)(3)(E) of the CAA does not impose any new requirements on
small entities. Redesignation is an action that affects the status of a
geographical area and does not impose any regulatory requirements on
sources. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
G. Unfunded Mandates
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
H. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective November 19, 2001, unless EPA
receives adverse written comments by October 22, 2001.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so
[[Page 48354]]
would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 19, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
K. Oregon Notice Provision
During EPA's review of a SIP revision involving Oregon's statutory
authority, a problem was detected which affected the enforceability of
point source permit limitations. EPA determined that, because the five-
day advance notice provision required by ORS 468.126(1) (1991) bars
civil penalties from being imposed for certain permit violations, ORS
468 fails to provide the adequate enforcement authority that a state
must demonstrate to obtain SIP approval, as specified in section 110 of
the Clean Air Act and 40 CFR 51.230. Accordingly, the requirement to
provide such notice would preclude Federal approval of a section 110
SIP revision.
To correct the problem the Governor of Oregon signed into law new
legislation amending ORS 468.126 on September 3, 1993. This amendment
added paragraph ORS 468.126(2)(e) which provides that the five-day
advance notice required by ORS 468.126(1) does not apply if the notice
requirement will disqualify a state program from Federal approval or
delegation. ODEQ responded to EPA's understanding of the application of
ORS 468.126(2)(e) and agreed that, because Federal statutory
requirements preclude the use of the five-day advance notice provision,
no advance notice will be required for violations of SIP requirements
contained in permits.
L. Oregon Audit Privilege
Another enforcement issue concerns Oregon's audit privilege and
immunity law. Nothing in this action should be construed as making any
determination or expressing any position regarding Oregon's Audit
Privilege Act, ORS 468.963 enacted in 1993, or its impact upon any
approved provision in the SIP, including the revision at issue here.
The action taken herein does not express or imply any viewpoint on the
question of whether there are legal deficiencies in this or any other
Clean Air Act Program resulting from the effect of Oregon's audit
privilege and immunity law. A state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities. EPA may at any time invoke its authority under
the Clean Air Act, including, for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by a state audit privilege or immunity law.
Authority: 42 U.S.C. 7401 et seq.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: August 21, 2001.
Charles E. Findley,
Acting Regional Administrator, Region 10.
Parts 52 and 81, chapter I, title 40 of the Code of Federal
Regulations are amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart MM--Oregon
2. Section 52.1970 is amended by adding paragraph (c)(136) to read
as follows:
Sec. 52.1970 Identification of plan.
* * * * *
(c) * * *
(136) On November 20, 2000, the Oregon Department of Environmental
Quality requested the redesignation of Klamath Falls to attainment for
carbon monoxide. The State's maintenance plan and base year emissions
inventory are complete and the redesignation satisfies all the
requirements of the Clean Air Act.
(i) Incorporation by reference.
(A) Oregon Administrative Rule (OAR) 340-204-0030, OAR 340-204-
0040, and OAR 340-204-0090, as effective October 25, 2000.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.338, the table entitled ``Oregon--Carbon Monoxide''
is amended by revising the entry for ``Klamath Falls Area'' to read as
follows:
Sec. 81.38 Oregon.
* * * * *
Oregon--Carbon Monoxide
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Klamath Falls Area, Klamath November 19, Attainment
County (part) * * * Urban 2001.
Growth Boundary.
* * * * * * *
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\1\ This date is November 15, 1990, unless otherwise noted.
[[Page 48355]]
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[FR Doc. 01-23218 Filed 9-19-01; 8:45 am]
BILLING CODE 6560-50-P