Approval and Promulgation of Implementation Plans; Oregon

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final rule.

SUMMARY:

Environmental Protection Agency (EPA) is approving the revisions to Oregon's State Implementation Plan which were submitted on November 10, 1999. These revisions consist of: approval of the 1993 carbon monoxide periodic emissions inventory for Grants Pass, Oregon; approval of the Grants Pass carbon monoxide maintenance plan; and redesignation of Grants Pass from nonattainment to attainment for carbon monoxide.

DATES:

This direct final rule is effective on October 30, 2000 without further notice, unless EPA receives adverse comment by October 2, 2000. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments should be addressed to: Debra Suzuki, EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101.

Copies of the State's request 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:

Debra Suzuki, Office of Air Quality (OAQ-107), EPA, Seattle, Washington, (206) 553-0985.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Supplementary Information

1. What is the purpose of this rule making?

2. What is a State Implementation Plan?

3. What National Ambient Air Quality Standards are considered in today's rulemaking?

4. What is the background information for this SIP action?

5. What criteria did EPA use to evaluate the State's submittal?

6. In summary, what are the results of EPA's evaluation?

7. Has Grants Pass attained the carbon monoxide NAAQS?

8. Does Grants Pass have a fully approved SIP?

9. How does this action affect Transportation Conformity?

Table 1—Central Business District Transportation Emissions Budget Through 2015 (pounds CO/Winter Day)

10. Has the State provided an adequate emissions inventory?

11. Is the improvement in air quality in Grants Pass due to permanent and enforceable measures?

12. Does the State provide a fully approvable maintenance plan?

13. Did the State provide adequate attainment and maintenance year emissions inventories?

Table 2—1993 CO Attainment Year and Recent Actual Emissions for the Grants Pass Nonattainment Area (CO tons/year)

Table 3—Projected Maintenance Year Emissions for the Grants Pass Nonattainment Area (CO tons/year)

14. Has the State successfully demonstrated maintenance and provided a projected emissions inventory?

15. How will this action affect the oxygenated fuels program in Grants Pass?

16. How will the State continue to verify attainment?

17. What contingency measures does the State provide?

18. How will the State provide for subsequent maintenance plan revisions?

19. How does this action affect specific rules?

20. In conclusion, what is EPA approving and why?

III. Final Action

IV. Administrative Requirements

I. Supplementary Information

1. What Is the Purpose of This Rule Making?

Today's rule making 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 Clean Air Act (Act) requirements and EPA regulations.

First, EPA approves the 1993 periodic carbon dioxide emissions inventory for Grants Pass. The 1993 inventory establishes a baseline characterization of emissions that EPA considers comprehensive and accurate. It provides the foundation for air quality planning in Grants Pass.

Second, EPA approves the carbon monoxide maintenance plan for the Grants Pass nonattainment area into the Oregon State Implementation Plan (SIP).

Third, EPA redesignates Grants Pass 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 for CO for at least ten years beyond this redesignation, as required by the Act.

2. What Is a State Implementation Plan?

The Clean Air Act requires States to keep ambient concentrations of specific air pollutants below certain thresholds to provide an adequate margin of safety for public health and welfare. These maximum concentrations are established by EPA based on current science and are known as the National Ambient Air Quality Standards, or NAAQS. The State's commitments for attaining the NAAQS are outlined in its State Implementation Plan, or SIP. The SIP is a planning document that, when implemented, is designed to ensure the achievement of the NAAQS. Each State currently has a SIP in place, and the Act requires that SIP revisions be made periodically.

A SIP includes the following: (1) inventories of emissions from point, area, and mobile sources; (2) statutes and regulations adopted by the state legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to meet the NAAQS; (4) contingency measures to be undertaken if an area fails to attain or make reasonable progress toward attainment by the required date.

The SIP must be presented to the public in a hearing and approved by the Governor of the State or appointed designee prior to submittal to EPA. The approved SIP serves as the State's commitment to actions that will reduce or eliminate air quality problems. Once approved by EPA, the SIP becomes part of the Code of Federal Regulations and is federally enforceable. Any subsequent changes must go through the formal SIP revision process specified in the Act.

Oregon submitted their original section 110 SIP on January 25, 1972 and it was approved by EPA soon thereafter.

The Grants Pass CO maintenance plan and redesignation request was submitted as a revision to the SIP on November 10, 1999. This revision is the subject of today's action.

3. What National Ambient Air Quality Standards Are Considered in Today's Rulemaking?

The standards considered in today's action are the primary and secondary carbon monoxide NAAQS. These standards were originally promulgated in 1985 and are as follows: (1) 9 parts per million (ppm) for an eight-hour average concentration not to be exceeded more than once per year; and (2) 35 ppm for a one-hour average concentration not to be exceeded more than once per year. (40 CFR 50.8)

The Grants Pass nonattainment area has violated the eight-hour standard but never exceeded the one-hour standard. As a result, the discussion in this rulemaking refers to the eight-hour CO NAAQS only.

4. What Is the Background Information for This SIP Action?

Grants Pass, OR was designated nonattainment for carbon monoxide on December 16, 1985. This designation was the result of ambient air quality monitoring data that showed violations of the CO NAAQS.

The Grants Pass nonattainment area is a 36 square block area of downtown Grants Pass known as the Central Business District. For planning purposes, however, the entire area within the urban growth boundary is treated as the nonattainment area.

In response to the requirements applicable at the time of designation, Oregon submitted an attainment plan to bring the area into attainment by 1990. This plan relied upon the construction of a third bridge over the Rogue River as its primary control measure. The plan showed that diverting motor vehicle traffic away from the Central Business District would bring the area into attainment by the deadline in the Act. EPA approved the SIP revision on January 15, 1988.

Later, upon enactment of the 1990 Clean Air Act Amendments, a new classification scheme was created which established revised attainment dates and planning requirements according to the severity of nonattainment. Under this system, Grants Pass was classified as a moderate nonattainment area because it had a design value of 10.3 ppm based on 1988-89 ambient air monitoring data. The attainment deadline was revised and became December 31, 1995, or as expeditiously as practicable.

The Grants Pass nonattainment area has shown attainment of the CO NAAQS since 1990. In compliance with requirements for moderate areas, Oregon submitted a maintenance plan and redesignation request to EPA on November 10, 1999. On December 16, 1999, EPA notified Oregon that this submittal constituted a complete redesignation request and maintenance plan under the general completeness criteria of 40 CFR part 51, appendix V, sections 2.1 and 2.2.

5. What Criteria Did EPA Use To Evaluate the State's Submittal?

Section 107(d)(3)(E) of the Act lists specific requirements that an area must meet in order to be redesignated from nonattainment to attainment. They are as follows:

1. The area must attain the applicable NAAQS;

2. The area must have a fully approved SIP under section 110(k) of the Act and the area must meet all the relevant requirements under section 110 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.

6. In Summary, What Are the Results of EPA's Evaluation?

EPA has found that the Oregon redesignation request for the Grants Pass, OR nonattainment area meets the requirements of section 107(d)(3)(E), noted above. The following questions and answers provide a brief description of how each of these requirements is met. A Technical Support Document on file at the EPA Region 10 office, contains a more detailed analysis of this redesignation request.

7. Has Grants Pass Attained the Carbon Monoxide NAAQS?

Yes. 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 Grants Pass is based on air quality data that shows that the CO standard was not violated from 1989 through 1993, 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 Grants Pass, OR area has five 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.

8. Does Grants Pass Have a Fully Approved SIP?

Yes. Section 107(d)(3)(E)(ii) of the Act states that EPA may not approve redesignation of a nonattainment area to attainment unless EPA has fully approved all of the SIP requirements that were due under the 1990 amendments. The 1990 Clean Air Act requires that nonattainment areas achieve specific new requirements depending on the severity of the nonattainment classification.

As noted earlier, Grants Pass was classified as a nonattainment area with a design value less than 12.7 ppm. Therefore, the 1990 requirements applicable to the Grants Pass nonattainment area include the preparation of a 1990 emission inventory with periodic updates, adoption of an oxygenated fuels program, the development of contingency measures, adoption of an enhanced inspection and maintenance plan, a forecast of vehicle miles traveled, 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 approved all but one element of the CO attainment SIP. Specifically, the 1990 emissions inventory was reviewed but not acted upon to allow for additional correction and revision. EPA later determined that a 1993 inventory that incorporated these changes would satisfy the requirement for a 1990 base year. This is discussed in further detail below.

A 1993 periodic emissions inventory was submitted with the maintenance plan and fulfills the requirement for a base year inventory. Today's action concurrently approves this required element of the 110 SIP with the redesignation to attainment.

9. How Does This Action Affect Transportation Conformity in Grants Pass?

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.

For transportation conformity and regional emissions analysis purposes, an emissions budget has been established for on-road motor vehicle emissions in the Grants Pass Central Business District. The transportation emissions budget numbers for the plan are shown in Table 1.

10. Has the State Provided An Adequate Emissions Inventory?

Yes. Section 187(a) of the Act required 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). Oregon submitted a 1990 emissions inventory on November 15, 1992. The 1990 inventory was reviewed by EPA but never formally approved.

In lieu of an inventory revision, EPA advised Oregon to incorporate comments into the 1993 periodic inventory and use this as the new base year. The 1993 periodic emissions inventory was submitted on November 10, 1999 with the maintenance plan and redesignation request being considered in today's action.

EPA believes this inventory meets all applicable requirements and approves it as part of the Oregon SIP.

11. Is the Improvement in Air Quality in Grants Pass Due to Permanent and Enforceable Measures?

Yes. EPA approved Grants Pass' attainment 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) a bridge over the Rogue River; (2) the Federal Motor Vehicle Control Program, establishing emission standards for new motor vehicles; and (3) an oxygenated fuels program. As discussed above, the Grants Pass area initially attained the NAAQS in 1990 (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 1998.

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. EPA believes 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.

12. Does the State Provide a Fully Approvable Maintenance Plan?

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.

In this document, EPA is approving Oregon's maintenance plan for Grants Pass because EPA finds that it meets the requirements of section 175A.

13. Did the State Provide Adequate Attainment and Maintenance Year Emissions Inventories?

ODEQ submitted comprehensive inventories of CO emissions from point, area and mobile sources using 1993 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 1993, this is an acceptable year for the attainment inventory. The 1993 emission inventory summaries by source category are listed in Table 2. Detailed inventory data is also contained in the docket for this action maintained by EPA.

Based on the CO emissions in the attainment year (1993), ODEQ calculated inventories for the required maintenance year (2010) and five years beyond (2015), as shown in Table 3 below. 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 following tables summarize the projections in the maintenance plan and demonstrate that future emissions are not expected to exceed attainment year levels.

14. Has the State Successfully Demonstrated Maintenance and Provided a Projected Emissions Inventory?

Yes. Total CO emissions were projected from the 1993 attainment year out to 2015. These projected inventories were prepared according to EPA guidance. The projections show that when CO emissions are calculated without the implementation of the oxygenated fuels program, they are not expected to exceed 1993 attainment year levels.

15. How Will This Action Affect the Oxygenated Fuels Program in Grants Pass?

ODEQ's maintenance demonstration shows that the Grants Pass Urban Growth Boundary 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.

16. How Will the State Continue To Verify Attainment?

In accordance with 40 CFR part 50 and EPA's Redesignation Guidance, 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.

17. What Contingency Measures Does the State Provide?

Section 175(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.

In the event of future violations, implementation of the oxygenated fuels program will be triggered. This contingency measure will require all gasoline blended for sale in Grants Pass to meet requirements identical to those of the current oxygenated gasoline program.

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.

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 that 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 Grants Pass area.

18. 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.

19. How Does This Action Affect Specific Rules?

Upon the effective date of this action, Grants Pass 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 Grants Pass upon the effective date of this action. EPA is approving these rules as revisions to the SIP.

ODEQ re-codified their rules last fall, so there is some discontinuity between the rule numbers of the rules EPA is approving, and the rule numbers currently in the SIP. Below is a list of the specific rules affected by this action, with the state effective date in parentheses.

A. The Rule Revisions EPA Is Incorporating by Reference Into the SIP

OAR 340-204-0030, Designation of Nonattainment Areas (10-22-99)

OAR 340-204-0040, Maintenance Areas (10-22-99)

OAR 340-204-0090, Oxygenated Gasoline Control Areas (10-22-99)

B. The Rules EPA is Removing From the Current SIP

OAR 340-031-0520, Designation of Nonattainment Areas (8-19-96)

OAR 340-031-0530, Maintenance Areas (8-19-96)

OAR 340-022-0470, Oxygenated Gasoline Control Areas (11-4-93)

20. In Conclusion, What is EPA Approving and Why?

EPA is approving the Grants Pass, Oregon 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.

III. Final Action

EPA is approving the following revisions to the Oregon State Implementation Plan: (1) the 1993 carbon monoxide periodic emissions inventory for Grants Pass, Oregon; (2) the Grants Pass carbon monoxide maintenance plan; and (3) redesignation of Grants Pass from nonattainment to attainment for carbon monoxide.

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 shall 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 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 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

D. 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.

E. 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).

F. 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.

G. 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 October 30, 2000 unless EPA receives adverse written comments by October 2, 2000.

H. 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 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.

I. 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 October 30, 2000. 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).)

J. 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.

K. 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

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) (133) to read as follows:

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 § 81.338, the table entitled “Oregon—Carbon Monoxide” is amended by revising the entry for “Grants Pass Area, Josephine County (part)” to read as follows: