[Federal Register Volume 62, Number 10 (Wednesday, January 15, 1997)]
[Proposed Rules]
[Pages 2074-2078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-977]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-5676-9]
Request for Approval of Section 112(l) Delegated Authority;
Oregon
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed approval and delegation.
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SUMMARY: EPA invites public comment on today's proposal to approve the
Oregon Department of Environmental Quality (ODEQ) and the Lane Regional
Air Pollution Authority (LRAPA) (collectively referred to as
``Oregon'') request for delegation of authority to implement and
enforce state-adopted hazardous air pollutant regulations which adopt
by reference the federal National Emission Standards for Hazardous Air
Pollutants (NESHAP) contained in 40 CFR Parts 61 and 63 as these
regulations apply to sources required to obtain a federal operating
permit under Title V of the Clean Air Act (CAA). EPA as well invites
public comment on its proposal to approve specific state rules in order
to recognize conditions and limitations established pursuant to these
rules, or the rules themselves, as federally enforceable.
DATES: All comments on the Oregon submittal must be received by the
close of business on February 14, 1997.
ADDRESSES: Copies of the Oregon submittal are available during normal
business hours at the following addresses for inspection and copying:
U.S. EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101-9797,
and the Oregon Department of Environmental Quality, 811 S.W. Sixth
Avenue, Portland, Oregon, 97204-1390. Written comments should be
addressed sent to: Chris Hall, U.S. EPA Region 10, 1200 Sixth Avenue
(OAQ-107), Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Chris Hall, U.S. EPA Region 10, at
(206) 553-1949.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Section 112(l) of the amended Clean Air Act of 1990 (``the Act'' or
``CAA'') established new, more stringent requirements upon a State or
Local agency that wishes to implement and enforce an air toxics program
pursuant to section 112 of the Act. Prior to November 15, 1990,
delegation of NESHAP regulations to a State or Local agency could occur
without formal rulemaking by EPA. However, the new section 112(l) of
the Act requires EPA to approve State and Local toxics rules and
programs under section 112 through formal notice and comment
rulemaking. Now State and Local air agencies that wish to implement and
enforce a federally-approved air toxics program must make a showing to
EPA that they have adequate authorities and resources. Approval is
granted by the EPA through the authority contained in section 112(l),
and implemented through the Federal rule found in 40 Code of Federal
Regulations (CFR) Part 63, subpart E (58 FR 62262, November 26, 1993),
if the Agency finds that: (1) The State or Local program or rule is
``no less stringent'' than the corresponding Federal rule or program,
(2) adequate authority and resources exist to implement the State or
Local program or rule, (3) the schedule for implementation and
compliance is sufficiently expeditious, and (4) the State or Local
program or rule is otherwise in compliance with Federal guidance.
II. Discussion of the Oregon 112(l) Submittal
On November 15, 1993, Oregon submitted to EPA an application
requesting the delegation of authority to implement and enforce the
state-adopted rules for ``Hazardous Air Pollutants'' found in Oregon
Administrative Regulations (OAR) Chapter 340, Division 32 in lieu of
the Federal NESHAP regulations contained within 40 CFR Part 61. In the
submittal, Oregon also requested that comparable delegation be provided
to LRAPA to enforce the state regulations in Lane County.
On August 3, 1994, Oregon supplemented its initial application by
providing additional documentation to support its initial request and
seeking approval of its 112(g) rules and its rules for creating
synthetic minor sources. On March 29, 1996, Oregon further supplemented
its application by limiting its initial request for delegation to apply
to Part 70 sources only; requested delegation for Part 70 sources only
the authority to implement and enforce certain 40 CFR Part 63 NESHAP
standards; and requested approval for Part 70 sources only to
substitute the State asbestos regulations for the asbestos NESHAP. In
the March 1996 supplement, Oregon also requested deferral of delegated
federal authority to implement sections 112(g) of the federal CAA until
the conclusion of federal rulemaking on this program element. By letter
dated December 11, 1996, Oregon rescinded its request to substitute its
state asbestos rule for the asbestos NESHAP, therefore EPA will take no
action in this regard at this time.
Oregon's section 112(l) application contains the following
documents: (1) A written finding by the State Attorney General and the
independent legal counsel for LRAPA stating that Oregon has the legal
authority to implement and enforce state-adopted regulations as well as
assure compliance by all sources within their jurisdiction; (2) a copy
of OAR Chapter 340, Division 32 1 (hereafter referred to as ``OAR
340-032''), which contains the fully adopted State NESHAP regulations
which would be substituted for the Federal NESHAP regulations upon
approval; (3) a copy of OAR Chapter 340, Division 28 2 (hereafter
referred to as ``OAR 340-28''), which contains the permitting
requirements for each source subject to OAR-340-032, including the
State synthetic minor rules, the State Air
[[Page 2075]]
Contaminant Discharge Permit (ACDP) program rules, and the State
federal operating permit (FOP) program rules; and (4) a complete
program description. The full program submittal is available for review
for more detailed information.
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\1\ As in effect October 6, 1995.
\2\ As in effect on July 1, 1995.
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A. Emission Standards for Hazardous Air Pollutants
Pursuant to 40 CFR 63.91, Oregon is requesting delegation of
authority to implement and enforce the federal NESHAP regulations
contained in 40 CFR Part 61, subparts A through F, J, L, N through P,
V, and Y through FF, as adopted by reference in OAR 340-032-05520
through -5580, as these rules apply to Part 70 sources. Oregon is also
seeking delegation of authority to implement and enforce 40 CFR Part
63, subparts A, F through I, N, O, Q, R, T, and EE, as adopted into OAR
340-032-0510, as these rules apply to Part 70 sources.
Also, EPA proposes to approve a mechanism for Oregon to receive
delegation of future NESHAP regulations that are adopted by reference
into state law unchanged. The details of this mechanism are outlined in
section IV.C.
B. Voluntary Limits on Emissions
Oregon requests section 112(l) approval of state-adopted
regulations which would allow Oregon permitting authorities to
establish federally-enforceable emission limitations by permit limiting
a source's potential to emit hazardous air pollutants (HAP) below major
source thresholds.
Oregon's voluntary emission limitation rules are contained in OAR
340-028-110(114); -1050; -1740; and -2110. The provisions of these
sections are applicable as a matter of state law to any air contaminant
and not just applicable to the criteria pollutants regulated under the
EPA-approved Oregon state implementation plan (SIP).
Oregon's ACDP program regulations (OAR 340-28-1700 through 1790)
provide the mechanism for the owner or operator of a source to apply
for and obtain enforceable permit conditions that limit the source's
potential to emit. Such limitations would be inserted into an ACDP
issued by Oregon, after public notice and an opportunity for comment,
and would include monitoring, recordkeeping and reporting requirements
sufficient to ensure that the source complies with these limitations.
If approved by EPA, limits established pursuant to these regulations
would be considered federally enforceable. Therefore, Oregon would have
the ability to set limits which would be sufficient to exempt a source
from the requirement to obtain a FOP and/or comply with Federal, State
or Local hazardous air pollutant regulations. Approval of federally
enforceable permit limits under section 112(l) is necessary because the
Oregon SIP approved ACDP program only extends to the control of
criteria pollutants. Federally enforceable limits on criteria
pollutants (i.e., VOCs or PM-10) may have the incidental effect of
limiting certain HAP listed pursuant to section 112(b) 3, however,
section 112 of the Act provides the underlying authority for
controlling all HAP emissions. EPA plans to codify the approval
criteria for programs limiting the potential to emit of HAPs through
amendments to Subpart E of 40 CFR Part 63, the regulations promulgated
to implement section 112(l) of the Act. In this respect, EPA is
proposing to approve OAR 340-028-1740, Oregon's synthetic area source
permit program, under the authority of section 112(l) of the Act.
Furthermore, EPA proposes that, after final approval of this section,
synthetic area source permits issued pursuant to these EPA-approved
regulations including terms and conditions for HAP contained therein,
would be enforceable by the EPA and by citizens under section 304 of
the Act regardless of whether such permits were issued prior to EPA
approval of this section. However, such permits would have to have been
issued after the effective date of OAR 340-028-1740 (i.e., after
November 4, 1993) in accordance with all of the provisions set forth in
that section. It is EPA's position that further actions approving OAR
340-028-1740 will not be necessary even though 40 CFR part 63, subpart
E potential to emit language revisions may not be finalized by the time
this proposed action is finalized.
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\3\ See the Kathie A. Stein guidance memo of January 25, 1995,
titled ``Guidance on Enforceability Requirements for Limiting
Potential to Emit through SIP and Section 112 Rules and General
Permits'' which addresses the technical aspects of how criteria
pollutant limits may be recognized for purposes of limiting a
source's potential to emit of HAP to below section 112 major source
levels.
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III. Authority and Commitments for Section 112 Implementation
Under 40 CFR Part 63, subpart E, the minimum documentation needed
as part of this 40 CFR 63.91 delegation request is: A written finding
by the State attorney general (and the independent counsel for LRAPA)
confirming that Oregon has adequate legal authorities to implement and
enforce State rule(s) or program(s); copies of the State statutes,
regulations and other documents which contain the appropriate
provisions for which Oregon is requesting delegation; a demonstration
of adequate resources to implement and enforce all aspects of the
delegated rules or program; a schedule demonstrating expeditious
implementation of the delegated rules or program; a plan that assures
expeditious compliance by all sources; and a demonstration of adequate
legal authority to implement and enforce all delegated rules or program
and to assure compliance by all sources upon approval.
A. Written Findings by Legal Counsel
40 CFR 63.91(b)(1) requires that, at a minimum, the State have the
following authorities: (1) Enforcement authorities that meet the
requirements of 40 CFR 70.11 of this chapter; (2) authority to request
information from regulated sources regarding their compliance status;
(3) authority to inspect sources and any records required to determine
a source's compliance status; and (4) if ODEQ delegates authorities to
a Local agency, ODEQ must retain enforcement authority unless the Local
agency's authorities meet the requirements of 40 CFR 70.11. Oregon has
provided to EPA legal opinions from the State Attorney General and the
independent legal counsel for LRAPA which clearly outline Oregon's
enforcement authorities as they pertain to the requirements of 40 CFR
63.91(b)(1).4
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\4\ Since the original submission of this delegation
application, EPA has fully approved Oregon's Part 70 operation
permit program after determining that Oregon's enforcement
authorities meet the requirements of 40 CFR Part 70.11. 60 FR 50106
(November 27, 1995).
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B. Copies of State Statutes and Regulations
Complete copies of the Oregon regulations, OAR 340-032 (1995) and
OAR 340-28 (1995), and Oregon Revised Statutes (ORS) 468 and 468A
(1993) have been provided to EPA as required by 40 CFR 63.91(b)(2). OAR
340-032 ``Hazardous Air Pollutants'' establishes Oregon's procedures
for regulating sources subject to 40 CFR Part 61 and Part 63. OAR 340-
032-0130 ``List of Hazardous Air Pollutants'' incorporates into state
law all of the HAP listed in section 112(b) of the Act. OAR 340-032-
0240 ``Permit to Operate'' requires all new, existing and modified
major sources of HAPs to obtain a FOP.
OAR 340-032-0500 ``Emission Limitations for New Major Sources''
requires new major sources of hazardous air pollutants to obtain a
permit prior to construction or reconstruction, as well as requires
such
[[Page 2076]]
new sources to utilize maximum achievable control technology (MACT).
OAR 340-032-0510 through -0620 adopts by reference 40 CFR Part 63,
subparts A, F through I, M through O, Q, R, T, and EE as they apply to
new major sources. OAR 340-032-2500 ``Emission Limitations for Existing
Major Sources'' requires existing major sources of HAP to comply with
applicable federal MACT standards and if such standards are not timely
promulgated, then comply with state-adopted MACT regulations and to
obtain a state-issued FOP permit. OAR 340-032-2600 through -3010 adopt
by reference 40 CFR Part 63, subparts A, F through I, M through O, Q,
R, T, and EE as they apply to existing major sources. OAR 340-032-4500
``Requirements for Modifications of Existing Major Sources'' requires
existing major sources of HAP to apply MACT whenever that source is
modified and the modification results in an increase in HAP emissions
above de minimis levels.
OAR 340-032-5500 ``Applicability'' indicates which sections of OAR
340-032 with which a stationary source identified in OAR 340-032-5530
through 5650 must comply with. OAR 340-032-5510 ``General
Requirements'' requires all new sources subject to the state HAP
regulations to notify Oregon prior to and after start-up. OAR 340-032-
5520 ``Federal Regulations Adopted by Reference'' adopt by reference 40
CFR 61, subparts A through F, I, J, L, N through P, V, and Y through FF
as in effect on July 1, 1993. OAR 340-032-5530 through OAR 340-032-5580
contain brief descriptions for each of the Federal NESHAP standards
adopted by reference under OAR 340-032-5520 which helps a source
determine whether it is potentially subject to the state-adopted
standard without having to refer to the Code of Federal Regulations.
OAR 3440-032-5590 through OAR 340-032-5650 contains the state asbestos
rule language. Finally, OAR 340-32-5520 provides that if a discrepancy
exists between 40 CFR Part 61 and OAR 340-32-5530 through 340-32-5650,
then the applicable section of 40 CFR Part 61 shall apply.
C. Demonstration of Adequate Resources
40 CFR 63.91(b)(3) requires Oregon to provide for adequate
resources to implement and enforce all aspects of the program or rule.
Specifically, 40 CFR 63.91(b)(3) requires Oregon to provide: 1) a
description in narrative form of the scope, structure, coverage, and
processes of the State program; 2) a description of the organization
and structure of the agency or agencies that will have responsibility
for administering the program; and 3) a description of the agency staff
who will carry out the State program, including the number, occupation,
and general duties of the employees.
EPA believes Oregon has taken the necessary steps to provide for
adequate resources to support implementation and enforcement of its air
toxics program which are at least as stringent as the federal program.
OAR 340-032 and OAR 340-28 provide the regulatory framework for
administering Oregon's HAP program. OAR 340-32-0105 now provides that
the provisions of OAR 340-032 apply ``to any new, modified, or existing
source that emits or has the potential to emit any HAP'' which is
defined in OAR 340-32-0120(23) as ``an air pollutant listed by the EPA
pursuant to Sec. 112(b) of the Federal CAA.'' Oregon has defined
``HAP'' such that their program at a minimum covers the same list of
HAPs found in the CAA.
Oregon has adopted by reference into state law all of the 40 CFR
Part 61 and Part 63 subparts for which they are requesting delegation
under the authority of 40 CFR 63.91. Therefore, Oregon's air toxics
programs covers the same sources and the same pollutants which are
presently being covered under the Federal NESHAP regulations.
ODEQ will be implementing and enforcing OAR 340-032 and OAR 340-28
throughout the State of Oregon (with the exception of Lane County)
under the authority of ORS 468 and ORS 468A. Implementation and
enforcement of OAR 340-032 and 340-028 or similar local regulations
will be administered by LRAPA in Lane County. OAR 340-032-0110 and ORS
468A.135 gives LRAPA authority to implement and enforce OAR regulations
or adopt their own more stringent regulations.
Resources to fund implementation and enforcement of the Oregon air
toxics program for sources subject to the Federal NESHAP regulations
but which are not subject to FOP requirements are covered by a three-
part fee system comprised of a filing fee, a processing fee, and a
compliance determination fee administered through its ACDP program.
Oregon has been operating this fee program since 1972. Program costs
for major sources subject concurrently to NESHAP regulations and FOP
requirements are covered through a separate three-part fee system
composed of an emission fee, a base fee and user fees administered
through its FOP program. EPA believes that Oregon assess fees which are
adequate to cover the costs of implementing and enforcing the terms of
each permit issued under these programs.5
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\5\ For further discussion of ODEQ's FOP fee system, see the
September 14, 1994 Federal Register (59 FR 47105) rulemaking
granting interim approval to the state of Oregon of its FOP program,
including its three part fee system.
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Oregon was granted full approval of its FOP program on November 27,
1995. See 60 FR 50106. As part of this approval, EPA found that Oregon
possessed adequate legal authorities and resources to implement and
enforce its statewide FOP program as it applies to Part 70
sources.6 Since Oregon has met the requirements of Part 70 for an
approved Title V operating permit program, EPA considers this finding
of adequate resources and authorities to be sufficient for section
112(l) purposes as well as it applies to Part 70 sources.7
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\6\ For further discussion regarding Oregon's authorities and
resources for implementing its FOP program please refer to the
language contained in the September 14, 1994, Federal Register (59
FR 47105) notice proposing interim approval of the Oregon FOP
program and the December 2, 1994, Federal Register (59 FR 61820)
notice granting interim approval of the Oregon FOP program, and the
September 28, 1995 Federal Register proposal (60 FR 50166) and
direct final Federal Register (60 FR 50106) which granted full
approval of ODEQ's FOP program.
\7\ See the December 10, 1993, EPA policy memo from John Seitz
of OAQPS titled ``Straight Delegation Issues Concerning Sections 111
and 112 Requirements and Title V.''
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D. Demonstration of Expeditious Implementation
Oregon has the broad legal authority to implement and enforce all
Federal NESHAP regulations adopted into State law or included in a
State-issued permit pursuant to OAR 340-28. EPA believes that Oregon's
statutory and regulatory authorities are adequate to expeditiously
implement those 40 CFR Parts 61 and 63 regulations adopted by reference
in OAR 340-032 for which they are requesting delegation.
Oregon will adopt all new and amended NESHAP regulations into OAR
340-032. Oregon will implement and enforce these regulations for Part
70 sources through its FOP program. All existing major sources of HAP
will be required to obtain a FOP. See OAR 340-032-0220(1) and OAR 340-
28-2110(1). New major sources of HAP must obtain an ACDP construction
permit prior to commencing construction. See OAR 340-032-0230(1).
E. Demonstration of Expeditious Compliance
The EPA believes that Oregon's FOP program provides for an
expeditious schedule for assuring compliance with NESHAP requirements
as required by 63.91(b)(5). The FOP program regulations contain
adequate authority
[[Page 2077]]
to provide for an expeditious schedule for assuring compliance with all
NESHAP requirements. Nothing in OAR 340-032 or OAR 340-028 would allow
a source to avoid or delay compliance with any CAA requirement beyond
the compliance date required by the Federal NESHAP regulations.
EPA also believes that the Oregon synthetic area source program
meets the requirements of 40 CFR 63.91(b)(5) since this program does
not allow for the waiver of any NESHAP requirement. To be more
specific, sources that become minor through a permit issued pursuant to
this program will still be required to meet all NESHAP requirements
applicable to non-major sources.
F. Demonstration of Adequate Legal Authority
40 CFR 63.91(b)(6) requires Oregon to demonstrate that it has
adequate legal authority to assure compliance as well as assure minimum
enforcement authority which includes: (1) enforcement authorities that
meet the requirements of 40 CFR 70.11; and (2) ability to retain
enforcement authority in jurisdictions where this program has been re-
delegated by the State to a local authority, unless the local authority
has enforcement authorities that meet the requirements of 40 CFR 70.11.
As previously indicated, ODEQ and LRAPA have enforcement authorities
that meet the requirements of 40 CFR 70.11.
IV. Programs for Proposed Approval
A. Adoptions by Reference
It is EPA's belief that the Oregon submittal substantially meets
the requirements of 40 CFR 63.91. Therefore, with this notice EPA
proposes to grant full approval to Oregon's request for delegated
authority to implement and enforce 40 CFR Part 61, subparts A through
F, J, L, N through P, V, and Y through FF; and 40 CFR Part 63, subparts
A, F through I, N, O, Q, R, T, and EE, as adopted into OAR 340-032.
This delegation of authority to implement and enforce these rules
applies only as these rules apply to 40 CFR part 70 sources. EPA will
continue to administer and enforce these regulations as they apply to
non-Part 70.
B. Voluntary Limits on HAP Emissions
EPA is proposing to grant approval of OAR 340-028 sections -
110(114), -1050, -1740, and -2110 under the authority of section 112(l)
of the Act to recognize the Oregon ACDP program as federally
enforceable for the purpose of establishing potential to emit
limitations. Approval of these regulations will allow Oregon to create
federally enforceable emission limitations by permit for sources who
have the potential to emit HAP above major threshold levels but have
actual HAP emissions which are below major source levels.8
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\8\ The source would thereby become a ``synthetic area source''
or a ``synthetic minor source.''
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C. Mechanism for Delegation of Future NESHAP Standards
In addition, EPA proposes to approve a mechanism for future
delegation of those Federal NESHAP regulations that Oregon adopts by
reference into state law.9 Under this streamlined approach, upon
adoption of a NESHAP regulation Oregon would only need to send a letter
to EPA requesting delegation for that regulation. EPA would in turn
respond to this request by sending a letter back to Oregon delegating
the NESHAP regulation as requested. No further formal response from
Oregon would be necessary at this point, and if a negative response
from Oregon is not received within 10 days of this letter of delegation
from EPA, the delegation would then become final.
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\9\ See section 5.1.2.b of the document ``Interim Enabling
Guidance for the Implementation of 40 CFR part 63, subpart E'' (EPA-
453/R-93-040, November 1993).
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V. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of today's proposed
approval. Copies of the Oregon submittal and other information relied
upon for this action are contained in a docket maintained at the EPA
Regional Office. The docket is a file of information submitted to, or
otherwise considered by, EPA in the development of this proposed
rulemaking. The principal purposes of the docket are: (1) To allow
interested parties a means to identify and locate documents so that
they can effectively participate in the rulemaking process, and (2) to
serve as the record in case of judicial review. The EPA will consider
any comments received by February 14, 1997.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
NESHAP rule or program delegation approvals under section 112(l) of
the Act do not create any new requirements, but simply confer federal
authority for those requirements that the State of Oregon is already
imposing. Therefore, because the section 112 delegation approvals do
not impose any new requirements, the Agency has determined that it
would not have a significant impact on any small entities affected.
D. Unfunded Mandates Reform Act
EPA has determined that the proposed approval action promulgated
today 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 Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
VI. Summary of Action
EPA is soliciting public comment on its proposed delegation and
approval of implementation and enforcement authority to Oregon pursuant
to the authority of section 112(l) of the Act. EPA is also proposing to
approve a mechanism for Oregon to receive future delegation of section
112 standards that are unchanged from the federal standards, but only
as these standards apply to Part 70 sources. At the request of Oregon,
EPA is proposing to take no action at this time in regard to their 40
CFR 63.93 rule substitution request for the state asbestos regulations
contained in OAR 340-32-5590 through 340-32-5650. Interested parties
are invited to comment on all aspects of this proposed rule. Comments
should be submitted in triplicate, to the address listed in the front
of this Notice. Public comments postmarked by February 14, 1997 will be
considered in the final rulemaking action taken by EPA. Issues raised
by those comments will be carefully reviewed and considered in the
decision to approve or disapprove the submittal. The EPA expects to
make a final decision on whether or not to approve the Oregon submittal
by July 14, 1997 and will give notice of the decision in the Federal
Register. The notice will include a summary of the reasons for
[[Page 2078]]
the final determination and a response to all major comments.
Authority: 42 U.S.C. 7401-7671q.
Dated: January 6, 1997.
Chuck Clark,
Regional Administrator.
[FR Doc. 97-977 Filed 1-14-97; 8:45 am]
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