[Federal Register Volume 59, Number 177 (Wednesday, September 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22721]
[[Page Unknown]]
[Federal Register: September 14, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5070-3]
Clean Air Act Proposed Interim Approval, or in the Alternative
Proposed Disapproval, of Operating Permits Program; Oregon Department
of Environmental Quality, Lane Regional Air Pollution Authority
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: EPA proposes interim approval of the Operating Permits
Programs submitted by the Oregon Department of Environmental Quality
(ODEQ) and Lane Regional Air Pollution Authority (LRAPA) for the
purpose of complying with Federal requirements which mandate that
States develop, and submit to EPA, programs for issuing operating
permits to all major stationary sources, and to certain other sources,
provided certain proposed revisions to Oregon rules are adopted and
submitted to EPA as a program revision prior to EPA's statutory
deadline for acting on the State's submittal. In the alternative, EPA
proposes disapproval of the Oregon programs if the proposed revisions
are not adopted and submitted prior to the statutory deadline.
DATES: Comments on this proposed action must be received in writing by
October 14, 1994.
ADDRESSES: Comments should be addressed to Anne Dalrymple at the Region
10 address indicated.
Copies of the State's submittal and other supporting information
used in developing the proposed action are available for inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle,
Washington 98101.
FOR FURTHER INFORMATION CONTACT: Anne Dalrymple, (206) 553-0199.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Background
As required under title V of the Clean Air Act (Act) as amended
(1990), EPA promulgated rules defining the minimum elements of an
approvable State operating permits program and the corresponding
standards and procedures by which the EPA will approve, oversee, and
withdraw approval of State operating permits programs (see 57 FR 32250
(July 21, 1992)). These rules are codified at title 40 Code of Federal
Regulations (CFR) part 70. Title V requires States to develop, and
submit to EPA, programs for issuing these operating permits to all
major stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA approve or disapprove each
program within one year after receiving the submittal. The EPA's
program review occurs pursuant to section 502 of the Act and part 70
which, together, outline criteria for approval or disapproval. Where a
program substantially, but not fully, meets the requirements of part
70, EPA may grant the program interim approval for a period of up to
two years. If EPA has not fully approved a program by two years after
the November 15, 1993 date, or by the end of an interim program, it
must establish and implement a Federal program.
B. Federal Oversight and Sanctions
The EPA must apply sanctions to a State for which 18 months have
passed since EPA disapproved the program. In addition, discretionary
sanctions may be applied any time during the 18-month period following
the date required for program submittal or program revision. If the
State has no approved program 2 years after the date required for
submission of the program, EPA will impose additional sanctions, where
applicable, and EPA must promulgate, administer, and enforce a Federal
permits program for the State. The EPA has the authority to collect
reasonable fees from the permittees to cover the costs of administering
the program.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
The program submitted by the State of Oregon includes submissions
by ODEQ, LRAPA and the Oregon Attorney General. Collectively, these
submissions meet the requirements of 40 CFR part 70, Sec. 70.4 for
complete program submittal including a letter of submittal from
Oregon's Governor requesting approval, complete program descriptions,
the legal opinions of the Attorney General and the independent legal
counsel for LRAPA, and fully adopted implementing regulations. An
implementation agreement is currently being developed between the
Oregon agencies and EPA.
The Oregon state operating permit regulations found within the
Oregon Administrative Rules (OAR), Chapter 340, Division 28, including
proposed rule revisions, and the authorizing statutes substantially
meet the requirements of 40 CFR part 70, Sec. Sec. 70.2 and 70.3 for
applicability, Sec. Sec. 70.4, 70.5, and 70.6 for permit content
including operational flexibility, Sec. 70.7 for public participation
and minor permit modifications, Sec. 70.8 for permit review by EPA and
affected States, Sec. 70.5 for criteria which define insignificant
activities, Sec. 70.11 for requirements for enforcement authority, and
Sec. 70.5 for complete application forms. The full program submittal,
the proposed revisions to OAR Chapter 340, Division 28, and the
Technical Support Document are available for review for more detailed
information.
2. Regulations and Program Implementation
a. Program Implementation
The Oregon 1991 Legislature enacted Oregon Revised Statute (ORS)
468A.300-330, which gave ODEQ authority to promulgate regulations
establishing a title V program, to collect interim fees and to develop
a Small Business Assistance Program. The 1993 Legislature also passed
statutes enhancing civil and criminal enforcement authority (Senate
Bill 912) and authorizing collection of emissions fees to fully fund
the title V program (Senate Bill 86). The Oregon Environmental Quality
Commission (EQC) adopted rules implementing the title V program which
are published at OAR Chapter 340, Division 28 (Stationary Source Air
Pollution Control and Permitting Procedures), and OAR Chapter 340,
Division 32 (Hazardous Air Pollutants), and became effective September
24, 1993. On July 11, 1994, ODEQ proposed for public comment revisions
to OAR Chapter 340, Division 28. ODEQ has informed EPA that final rule
revisions will be submitted to the EQC for consideration on October 21,
1994, and if adopted, would be submitted to EPA as a revision to
Oregon's current program prior to EPA's statutory deadline for acting
on Oregon's title V submittal.
b. Scope of the Program
ODEQ will be implementing Oregon's title V program throughout the
State of Oregon, except for Lane County. ODEQ will implement the title
V program under the following authority: ORS 468 et seq. and ORS 468A
et seq., OAR Chapter 340, Division 28 (Stationary Source Air Pollution
Control and Permitting Procedures), and OAR Chapter 340, Division 32
(Hazardous Air Pollutants). OAR Chapter 340, Division 28 contains
regulations pertaining to both title V and non-title V sources.
Therefore, this notice proposes to approve certain regulations within
Division 28 as part of Oregon's title V program. The Technical Support
Document identifies the regulations approved in this rulemaking. The
remainder of Division 28 will be approved or disapproved as part of the
Oregon State Implementation Plan in a separate rulemaking. As explained
more fully below, EPA intends to approve portions of OAR Chapter 340
Division 32 in a separate Federal Register notice under section 112(l)
of the Act.
LRAPA will be the local title V permitting authority with
jurisdiction over title V sources in Lane County, Oregon. ORS 468A.135
gives LRAPA authority to enforce Oregon's title V rules or adopt their
own more stringent rules. LRAPA has not adopted its own title V rules,
so it will enforce OAR 340-28 et seq.
The Oregon permitting authorities have not made an affirmative
showing of legal authority to regulate sources within the exterior
boundaries of Indian Reservations in Oregon under the Clean Air Act.
Therefore, interim approval of the Oregon operating permits programs
will not extend to lands within the exterior boundaries of Indian
Reservations.1 Title V sources located within the exterior
boundaries of Indian Reservations in Oregon will be subject to the
Federal operating permit program, to be promulgated at 40 CFR part 71,
or subject to the operating program of any Tribe delegated such
authority under section 301(d) of the Act.
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\1\This is not a determination that the Oregon permitting
authorities do not have jurisdiction over sources within the
exterior boundaries of Indian Reservations in Oregon. However, no
such showing has been made at the time of this proposed notice.
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c. Variance Provisions
ORS 468A.075 allows the Oregon Environmental Quality Commission
(EQC) discretion to grant relief from compliance with State rules and
regulations under certain conditions. Section 23-005 of LRAPA's rules
contains a variance provision modeled closely after ORS 468A.075. The
EPA regards ORS 468A.075 and LRAPA section 23-005 as wholly external to
the program submitted for approval under part 70, and consequently
proposes to take no action on these provisions of State and local law
in this rulemaking. The EPA does not recognize the ability of a
permitting authority to grant relief from the duty to comply with a
federally enforceable part 70 permit, except where such relief is
granted through procedures allowed by part 70. In other words, a
variance does not affect the title V source until the title V permit is
modified pursuant to the procedures in part 70. EPA reserves the right
the enforce the terms of the part 70 permit where the permitting
authority purports to grant relief from the duty to comply with a part
70 permit in a manner inconsistent with part 70 procedures. A part 70
permit may also incorporate, via part 70 permit issuance or
modification procedures, the schedule of compliance set forth in a
variance. However, EPA reserves the right to pursue enforcement of
applicable requirements notwithstanding the existence of a compliance
schedule in a permit to operate. This is consistent with 40 CFR
70.5(c)(8)(iii)(C), which states that a schedule of compliance ``shall
be supplemental to, and shall not sanction noncompliance with, the
applicable requirements on which it is based.''
d. Environmental Audit Report Privilege
ORS 468.963 contains a limited ``Environmental Audit Report
Privilege,'' which prevents, with certain exceptions, the admission of
voluntary, internal environmental audit reports as evidence in any
civil, criminal or administrative proceeding. It is not clear at this
time what effect, if any, this privilege might have on title V
enforcement actions. EPA is currently establishing a national position
regarding EPA approval of environmental programs in States which adopt
statutes that confer an evidentiary privilege for environmental audit
reports. The EPA regards ORS 468.963 as wholly external to the program
submitted for approval under part 70, and consequently proposes to take
no action on this provision of State law in this rulemaking. If, during
program implementation, EPA determines that this provisions interferes
with Oregon's enforcement responsibilities under part 70, EPA will
consider this grounds for withdrawing program approval in accordance
with 40 CFR 70.10(c).
3. Permit Fee Demonstration
Program costs for ODEQ and LRAPA will be covered through a three-
part fee system composed of an emission fee, a base fee and user fees.
The emission fee is set at $25 per ton, adjusted for inflation by the
percentage, if any, by which the Consumer Price Index (CPI) exceeds the
CPI for the calendar year 1989 if the Oregon EQC determines by rule the
increased fee is necessary to cover all reasonable direct and indirect
costs of implementing the Federal operating permit program. All sources
subject to the title V program will also pay a base fee of $2,500 per
year. User fees will be charged to sources to cover the costs of
specific program activities requested by the source. ODEQ estimates
that the total amount collected will be approximately $50 per ton and
will exceed $4 million per year in the first year of program
implementation. The Oregon submittal includes an adequate demonstration
that the fees collected by each agency will cover the direct and
indirect costs of implementing and enforcing the Federal operating
permit program. Furthermore, each agency has committed in its submittal
to review its fee schedule annually and to increase fees, as necessary,
to reflect actual program implementation costs.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and Commitments for Section 112 Implementation
Oregon permitting authorities are constitutionally prohibited from
implementing or enforcing Federal applicable regulations, but must
either adopt the Federal requirements as State regulations or include
them in a State-issued permit pursuant to OAR 340-28-640(3). ODEQ and
LRAPA have broad legal authority to adopt regulations necessary to
implement any and all section 112 requirements and have adopted OAR
Chapter 340, Division 32 rules in order to regulate the list of
hazardous air pollutants (HAPs) under section 112(b). Division 32
requires the Environmental Quality Commission to adopt and enforce
Maximum Achievable Control Technology (MACT) standards for major
sources and Generally Achievable Control Technology (GACT) standards
for area sources as they are promulgated by EPA. Division 32 also
establishes a voluntary early reductions program for HAPs and contains
accidental release provisions.
EPA has determined that this broad statutory and regulatory
authority is adequate for the Oregon permitting authorities to
implement all section 112 requirements provided they expeditiously
adopt appropriate implementing regulations as new Federal regulations
are promulgated. EPA regards the commitments of the Oregon permitting
authorities as an acknowledgement of their obligation to adopt
regulations necessary to issue permits that assure compliance with
section 112 applicable requirements. Should an Oregon permitting
authority fail to adopt regulations necessary to maintain adequate
legal authority to issue timely permits, or fail to include in permits
pursuant to OAR 340-28-640(3) Federal applicable requirements that have
not been adopted by ODEQ, EPA will consider this grounds for
withdrawing approval of such permitting authority's program in
accordance with the provisions of 40 CFR 70.10(c). For further
discussion of this determination, please refer to April 13, 1993
guidance memorandum entitled ``Title V Program Approval Criteria for
Section 112 Activities,'' signed by John Seitz.
b. Implementation of Section 112(g) Upon Program Approval
After the effective date of the Oregon operating permit programs,
no new major source or major modification to an existing major source
may be constructed unless it has been subject to a case-by-case
determination of maximum achievable control technology (MACT) or
offsets by a permitting authority pursuant to section 112(g) of the
Federal Clean Air Act. The results of such case-by-case determination
of MACT or offsets must be federally-enforceable by the time
construction begins on the new source or modification. The Oregon
permitting authorities have committed to adopting and submitting
regulations which implement the requirements of section 112(g) of the
Act as expeditiously as possible after EPA promulgates its regulations
to implement section 112(g) of the Act.
However, the EPA regulations, and hence the Oregon regulations, for
implementing section 112(g) will not be adopted until some time after
the effective date of the Oregon operating permits program. In order to
allow the continued construction of new major sources and major
modifications after the effective date of the Oregon title V program,
EPA has established a transition policy for permitting sources in the
interim period between the effective date of a title V operating
permits program and the adoption of State rules implementing EPA's
forthcoming section 112(g) regulations. Because EPA has not yet
promulgated regulations to implement section 112(g) of the Act, EPA has
determined it has authority to approve many existing State air toxics
permitting regulations under section 112(l) of the Act solely for the
purpose of implementing section 112(g) during this interim period.
Oregon administrative rules Chapter 340, Division 32 contain air
toxics permitting regulations which require new and modified major
sources of hazardous air pollutants to obtain a permit prior to
construction. Furthermore, these regulations require such new and
modified major sources to utilize MACT. On August 3, 1994, Oregon
submitted these rules to EPA for approval as an interim permitting
program for implementing section 112(g) of the Act. Approval by EPA of
these rules would provide Oregon permitting authorities with a
mechanism for establishing federally-enforceable emission limitations
and other restrictions to implement section 112(g).
EPA intends to propose approval of the Oregon air toxics permitting
rules in the near future in a separate rulemaking pursuant to section
112(l) of the Act. The scope of the proposed approval of Oregon's air
toxic permitting regulations will be narrowly limited to section 112(g)
and will not confer or imply approval for purposes of any other
provision under the Act. Furthermore, such approval would be for an
interim period only, and would require the Oregon permitting
authorities to expeditiously adopt regulations consistent with
regulations promulgated by EPA to implement section 112(g) of the Act.
c. Program for Delegation of Section 112 Standards
State law prohibits Oregon permitting authorities from adopting
prospective Federal regulations. As such, EPA can only delegate section
112 standards to the State after such standards are either adopted as
State regulations or included in State-issued permits pursuant to OAR
340-28-640(3). As noted above, the Oregon permitting authorities
submitted OAR Chapter 340, Division 32 regulations (including
regulations which adopt all of the current applicable National Emission
Standards for Hazardous Air Pollutants in 40 CFR part 612) to EPA
for approval under section 112(l) of the Act on August 3, 1994. Since
the adopted regulations and the requests for approval include
additional sources to those subject to title V, EPA will be acting on
these requests under separate rulemaking pursuant to the provisions of
40 CFR part 63.
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\2\ The Oregon Environmental Quality Council has adopted subpart
I of the radionuclide NESHAP as applicable only to sources subject
to title V. ODEQ and LRAPA will only implement and enforce this
NESHAP for sources required to have title V permits pursuant to OAR
340-28-2100, et seq.
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d. Commitments for Title IV Implementation
ODEQ and LRAPA each have made commitments to adopt and submit to
EPA by January 1, 1995 a program implementing title IV of the Federal
Clean Air Act. This commitment is supported by adequate legal authority
(see ORS 468.020, ORS 468A.310, and OAR 340-28-2100(2)).
B. Options for Program Approval and Implications
1. Proposed Interim Approval
EPA is proposing to grant interim approval to the operating permits
program submitted by the ODEQ and LRAPA on November 15, 1993. If
promulgated, the ODEQ and LRAPA must make the following changes to
receive full approval:
a. Small Business Assistance Program Provisions
The statute establishing Oregon's Small Business Assistance (SBA)
Program, ORS 468A.330, also addresses enforcement against sources for
violations observed during on-site technical assistance visits. ORS
468A.330(4)(a) provides that ``Onsite technical assistance for the
development and implementation of the Small Business Stationary Source
Technical and Environmental Compliance Assistance Program shall not
result in inspections or enforcement actions.'3' Oregon's statute
appears not simply to give a source an opportunity to correct a
violation observed during a technical assistance visit before being
subject to enforcement action, but rather appears to protect the source
from followup inspections or enforcement activities that result from
observations made during a technical assistance visit. In that respect,
ORS 468A.330(4)(a) appears to be inconsistent with the enforcement
responsibilities of 40 CFR 70.11(a)(3).
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\3\The statute does not prohibit enforcement actions if there is
reasonable cause to believe that violation causes a clear and
immediate danger to public health or safety or the environment.
In order to obtain full approval, Oregon must ensure that no title
V source, whether a major source or a minor source, will be absolutely
immune from inspections and enforcement actions resulting from
technical assistance visits. Interim approval is possible, however,
because ORS 468.140 provides Oregon with general civil penalty
authority that is in all other respects consistent with the
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requirements of 40 CFR 70.11(a)(3) (see 40 CFR 70.4(d)(3)(vii)).
b. Necessary Criminal Authority
i. Upset/Bypass as a Defense to Criminal Liability
ORS 468.959 provides an affirmative defense to criminal liability
for violations that result from an ``upset'' or a ``bypass'' as those
terms are defined in the statute. This affirmative defense appears to
be broader than the affirmative defense under part 70 for emissions in
excess of a technology-based emissions limitation caused by an
``emergency'' (see 40 CFR 70.6(g)). For example, 40 CFR 70.6(g)
requires a source to prove that excess emissions were not caused by
improperly designed control equipment, lack of preventative
maintenance, careless or improper operation or operator error. Under
ORS 468.959, however, a source is not required to make a similar
showing in order to claim the affirmative defense of excess emissions
due to a ``bypass.'' ORS 468.959 also does not provide that the burden
of proving that an upset or bypass occurred is on the violator. Oregon
must ensure that this statute is consistent with 40 CFR 70.6(g).
ii. Criminal Liability of Corporations
ORS 161.170 addresses the extent to which a corporation can be
subject to criminal liability. Under that statute, a corporation is
subject to criminal liability only in one of three circumstances: (1)
The conduct constituting the offense is engaged in by an agent of the
corporation while acting within the scope of employment and on behalf
of the corporation and the offense is a misdemeanor or a violation or
the offense is one defined by a statute that clearly indicates a
legislative intent to impose criminal liability on a corporation; (2)
the conduct constituting the offense consists of an omission to
discharge a specific duty of affirmative performance imposed on
corporations by law; or (3) the conduct constituting the offense is
engaged in, authorized, solicited, requested, commanded, or knowingly
tolerated by the board of directors or by a high managerial agent
acting within the scope of employment and in behalf of the corporation.
The first two circumstances appear to be inapplicable in the case of
statutes which impose criminal liability for knowing air violations,
because these offenses are felonies and do not involve the discharge of
a specific duty of affirmative performance imposed on corporations by
law. A corporation could be subject to criminal liability under the
third category, but only if the board of directors or a high managerial
agent ``engaged in, authorized, solicited, requested, commanded or
knowingly tolerated'' the conduct constituting the offense.
Part 70 requires that the burden of proof and degree of knowledge
or intent required under State law for civil and criminal liability be
no greater than that required for civil and criminal liability under
the Clean Air Act (see 40 CFR 70.11(b)). Under the Clean Air Act, the
government must prove only that the crime was committed by an employee
of the corporation and the employee at that time was performing that
employee's duties for the corporation, even though the acts charged may
not have been specifically authorized by the corporation. See United
States v. Hilton Hotels Corp., 467 F. 2d 1000 (9th Cir. 1973); United
States v. Twentieth Century Fox Film Corp., 882 F. Supp. 656, 660 (2nd
Cir., 1989); United States v. Cadillac Overall Supply Co., 568 F. 2d
1078, 1090 (5th Cir. 1978). By requiring the State to prove that the
board of directors or a high managerial agent ``engaged in, authorized,
solicited, requested, commanded or knowingly tolerated'' the conduct
constituting the offense, Oregon law appears to impose both a higher
degree of knowledge or intent (at a minimum, the State must prove
``knowing toleration'' by the board or a high managerial agent) and a
higher burden of proof (the State must prove the additional element of
participation or knowing toleration by the board or high managerial
agent). Oregon must ensure that the degree of knowledge or intent and
the burden of proof required for imposing criminal liability on a
corporation in Oregon do not exceed that required for imposing criminal
liability under the Clean Air Act.
c. Definition of Title I Modification
OAR 340-28-110(118) defines ``Title I modification'' in such a was
as to only include ``major modifications'' subject to parts C and D of
title I of the Act, changes subject to section 111 of the Act, and
modifications under section 112 of the Act. EPA believes the phrase
``modification under any provision of title I of the Act'' in 40 CFR
70.7(e)(2)(i)(A)(5) is best interpreted to mean any change at a source
that would trigger permitting authority review under regulations
approved or promulgated under title I of the Act. This would include
State preconstruction review programs approved by EPA as part of the
State implementation plan (SIP) under section 110(a)(2)(C) of the Act
and regulations addressing source changes that trigger National
Emission Standards for Hazardous Air Pollutants (NESHAP) established
pursuant to section 112 of the Act prior to the 1990 amendments.
Therefore, EPA proposes that, to receive full approval, Oregon must
revise OAR 340-28-110(118) to include any determination established
through a minor source pre-construction permit as well as changes
reviewed under 40 CFR 61.15. EPA expects to revise its criteria for
interim approval in 40 CFR 70.4(d) prior to final action on this
proposal to grant interim approval to Oregon so that interim approval
may be granted to State programs like Oregon's that include a narrower
definition of ``title I modification.'' As noted, EPA believes the
better interpretation of ``title I modifications'' would preclude
granting full approval to the Oregon program. However, in the proposal
to revise part 70, EPA will be taking comment on whether the criteria
in 40 CFR 70.7(e)(2)(i)(A), including the phrase ``modification under
any provision of title I,'' should be interpreted in a manner that
would allow changes reviewed under programs approved pursuant to
section 110(a)(2)(C) of the Act and changes that trigger the
application of NESHAP established prior to the 1990 Amendments to be
eligible for processing through minor modification procedures. Should
EPA adopt this alternative interpretation, the current definition of
``title I modification'' in the Oregon programs would be fully
consistent with part 70.
2. Proposed Approval or, in the Alternative, Proposed Interim Approval
In reviewing Oregon's title V submittal, EPA found several minor
inconsistencies between the requirements of 40 CFR part 70 and Oregon's
program. EPA also was unable to find in Oregon's program several minor
authorities required by part 70. To rectify these deficiencies Oregon
has proposed revisions to several provisions of OAR 340, Division 28.
These revisions were proposed for public comment on July 11, 1994. ODEQ
has advised EPA that final rule revisions will be submitted to the EQC
for consideration on October 21, 1994, and if adopted, would be
submitted to EPA as a revision to Oregon's current program prior to
EPA's statutory deadline for acting on Oregon's title V submittal.
If adopted without any substantial changes, these provisions of
Oregon's revised rules will meet the requirements of part 70. EPA is
therefore proposing to fully approve the Oregon program with respect to
the provisions discussed in detail below, contingent upon the revisions
being adopted and submitted without substantial changes from the
proposed revisions. However, if any of the revisions are not adopted
and submitted, then these items will also be a basis for interim
approval, (i.e. in addition to the items referred to in section II.B.1
above.) In such event, the required changes must be adopted and
submitted prior to the expiration of the interim approval period. In
accordance with 40 CFR 70.4(e)(2), if the adopted revisions are
substantially different from what has been proposed, EPA will consider
the submittal to represent a material change to the program and shall
extend the review period accordingly in order to repropose action on
the Oregon title V program.
a. Timeframe for Acting on Early Reduction Applications
40 CFR 70.4(b)(11)(iii) requires a permitting authority to act on
any permit application that includes an early reduction application
under section 112(i)(5) of the Act within nine months of receipt of a
complete application. The current Oregon regulations do not contain
such a provision, but rather, would allow the permitting authority the
full 18 months to act on such an application. The proposed revision to
OAR 340-28-2200(1)(d) corrects this deficiency. EPA therefore proposes
to fully approve this provision of the Oregon program contingent upon
the final adoption and submission of the revised OAR 340-28-2200(1)(d).
b. Definition of ``Prompt'' for Reporting of Deviations
40 CFR 70.6(a)(3)(iii)(B) requires the permitting authority to
define ``prompt'' in its permit program regulations for purposes of
reporting deviation from permit requirements. The current Oregon
regulations only require ``prompt'' reporting, but do not define what
would be considered to be ``prompt.'' The proposed revision to OAR 340-
28-2130(3)(c)(B) corrects this deficiency by defining prompt to be
within seven days of the deviation.
c. Criteria for General Permits
40 CFR 70.6(d) allows permitting authorities to issue a ``general
permit'' covering numerous similar sources. The current Oregon
regulations purport to allow the Oregon permitting authorities to issue
general permits covering any and all source categories, but only
include adequate criteria for issuing permits to existing major sources
of hazardous air pollutants. Oregon has indicated that it was the
State's intent to currently limit its program to just such sources. The
proposed revision to OAR 340-28-2170(a) corrects this deficiency by
clarifying that ``general permits'' can only be issued to certain
categories of major sources of hazardous air pollutants.
d. ''Anti-Tampering'' Provisions
State law does not currently demonstrate necessary criminal
authority to recover fines against any person who knowingly renders
inaccurate any required monitoring device or method as required by
under 40 CFR 70.11(a)(3)(iii). However, Oregon has proposed a new
provision at OAR 340-28-2130(3)(a)(E) which, if adopted, would prohibit
any person from rendering inaccurate any required monitoring device or
method. Under ORS 468.936, a knowing violation of any applicable
requirement, including proposed OAR 340-28-2130(3)(a)(E), would be
subject to a criminal fine in the maximum amount of not less that
$10,000 per day per violation.
3. Proposed Approval or, in the Alternative, Proposed Disapproval
In reviewing Oregon's title V submittal, EPA found several
significant inconsistencies between the requirements of 40 CFR part 70
and Oregon's program. To rectify these deficiencies Oregon has proposed
revisions to several provisions of OAR 340, Division 28. These
revisions were proposed for public comment on July 11, 1994. ODEQ has
advised EPA that final rule revisions will be submitted to the EQC for
consideration on October 21, 1994, and if adopted, would be submitted
to EPA as a revision to Oregon's current program prior to EPA's
statutory deadline for acting on Oregon's title V submittal.
If adopted without any substantial changes, these provisions of
Oregon's revised rules will meet the requirements of part 70. EPA is
therefore proposing to fully approve the Oregon program with respect to
the provisions discussed in detail below, contingent upon the revisions
being adopted and submitted without substantial changes from the
proposed revisions. However, if any of the revisions are not adopted
and submitted, EPA proposes to disapprove Oregon's program in the final
action. In accordance with 40 CFR 70.4(e)(2), if the adopted revisions
are substantially different than what has been proposed, EPA will
consider the submittal to represent a material change to the program
and shall extend the review period accordingly in order to repropose
action on the Oregon title V program.
a. Categorically Insignificant Activities
The current Oregon definition of ``categorically insignificant
activities,'' OAR 340-28-110(15), contains broad descriptions of
activities for which complete information need not be included in title
V permit applications. However, many of these activities are subject to
applicable requirements and the effect of the definition would be to
prevent proper incorporation of applicable requirements into title V
permits. EPA, therefore, believes that it would have to disapprove the
Oregon title V program as it currently exists because the State could
not ensure that permits would include all requirements applicable to
emission units at a title V source.
40 CFR 70.5(c) requires permit applications to include sufficient
information to determine the applicability of, or to impose, any
applicable requirement. The title V permit must ensure that the source
complies with all applicable requirements, and, as such, the owner or
operator cannot omit any information from a permit application that is
necessary to determine or impose an applicable requirement. The Oregon
permit application rule, OAR 340-28-2120(3)(c)(E), requires the
application to list all categorically insignificant activities but does
not require the source to provide sufficient information to determine
whether there are requirements applicable to any of the listed
activities. Therefore, the definition of ``categorically insignificant
activities'' must either be changed to insure that the rule does not
apply to any activity for which there are applicable requirements or
the list of ``categorically insignificant activities'' must be revised
so that it does not include an activity which is subject to an
applicable requirement, or the Oregon rules must require the
application to provide sufficient information to determine whether
there are requirements applicable to any of the listed activities and
the permit will specifically include the regulations applicable to
categorically insignificant activities.
In response to EPA's preliminary review and findings with respect
to this issue, Oregon has proposed revisions to its definition of
``categorically insignificant activities'' and to OAR 340-28-2110(7)
and 340-28-2120(3). Proposed OAR 340-28-2110(7) requires that all
emissions from insignificant activities, including categorically
insignificant activities and aggregate insignificant emissions, must be
included in the determination of the applicability of any requirement.
Proposed OAR 340-28-2120(3) clarifies that an application may not omit
information needed to determine the applicability of, or to impose, any
applicable requirement, including those requirements that apply to
categorically insignificant activities. Therefore, under the proposed
revisions, all applicable requirements will be included in the permit,
regardless of whether an activity is classified as a ``categorically
insignificant activity.''
The proposed revision to the definition of ``categorically
insignificant activities,'' plus changes to the provisions for permit
applications and applicability, and the existing permit content
provisions, together meet the requirements of part 70. EPA is therefore
proposing to fully approve the Oregon program with respect to this
issue if the revised definition of ``categorically insignificant
activities'' and proposed revisions to OAR 340-28-2110(7) and OAR 340-
28-2120(3) are adopted and submitted without substantial changes from
the proposed revisions.
The Oregon proposed rule revisions also delete the definitions of
``Exempt Insignificant Mixture Usage,'' OAR 340-28-110(41), ``Non-
exempt Insignificant Mixture Usage,'' OAR 340-28-110(63), and
``Insignificant Mixture,'' OAR 340-28-110(53) and references to these
terms throughout OAR Division 28. Proposed OAR 340-28-2110(3)(c)(E)
revises and replaces the concept of ``insignificant mixtures,'' which
is to be deleted by the proposed revision to OAR Division 28. EPA is
therefore proposing to fully approve the Oregon program if these
proposed revisions are adopted and submitted without substantial
changes.
b. Use of Title I Permits to Modify Title V Permits
Section 502(b)(10) of the Act, 40 CFR 70.4(b)(12), (14) and (15)
and 40 CFR 70.7(a)(1) require that, with certain exceptions, the permit
revision provisions of the approved permitting program be used to
modify or change the provisions of a title V permit. However, current
Oregon regulations allow a permitting authority to effectively change
the provisions of a title V permit using the minor new source review
provisions of the state implementation plan. These new source review
provisions cannot substitute for the title V permit revision process
because they do not provide for adequate public notice, affected State
review, or an opportunity for EPA review and objection as required by
40 CFR 70.7(a)(1). EPA believes that it would have to disapprove the
current Oregon permit program because the Oregon regulations do not
ensure that any new or modified source operates in compliance with its
title V permit until the title V permit is revised in accordance with
the procedures for permit modifications. The proposed revision to the
current OAR 340-28-2110(7) (renumbered to OAR 340-28-2110(8)) corrects
this deficiency.
c. Administrative Permit Amendments
As discussed above, only the permit revision provisions of the
approved permitting program can be used to modify or change the
provisions of a title V permit. However, the current Oregon
regulations, OAR 340-28-2230(1)(j), allow for the use of administrative
amendments to change the applicable requirements included in a permit.
Again, EPA believes that it would have to disapprove the current Oregon
program because it would allow permitting authorities to change the
content of a title V permit without following adequate procedures. The
proposed revision to 340-28-2230(1) deletes subparagraph (j) which
corrects this deficiency.
4. Proposed Approval or, in the Alternative, Proposed Disapproval
Section 502(a) of the Act allows EPA to exempt, by rule, one or
more source categories from the requirements of title V, provided that
EPA may not exempt any major source from such requirements. 40 CFR
70.3(b)(1) allows states to temporarily exempt from the requirements of
title V certain categories of sources which are not major sources. The
current Oregon regulations are consistent with the requirements of 40
CFR 70.3(b)(1) and EPA is proposing to fully approve these provisions
of the Oregon program.
Oregon has proposed to adopt ``prohibitory rules'' for several
source categories which, when approved into the Oregon state
implementation plan, would establish federally-enforceable limits on a
source's potential to emit. Sources which choose to be subject to one
of these ``prohibitory rules'' would no longer qualify as a major
source and would therefore not be subject to the requirements of title
V.
In conjunction with the proposal to adopt these ``prohibitory
rules,'' Oregon has proposed revisions to the applicability provisions
of its permit program (OAR 340-28-2110(4)) to add additional source
category exemptions. These revisions were proposed for public comment
on July 11, 1994. ODEQ has advised EPA that final rule revisions will
be submitted to the EQC for consideration on October 21, 1994, and if
adopted, would be submitted to EPA as a revision to Oregon's current
program prior to EPA's statutory deadline for acting on Oregon's title
V submittal.
EPA believes that, if the proposed revisions are adopted, it would
have to disapprove the Oregon program because it would inappropriately
exempt certain title V sources from the requirements of title V. These
exemptions exceed those allowed by EPA's regulations because they would
exempt four categories of sources from the requirements of title V even
if EPA does not approve the ``prohibitory rules'' so as to make them
federally enforceable. Furthermore, the proposed revisions would exempt
sources within the four categories even if such sources were subject to
standards promulgated pursuant to sections 111 or 112 of the Act.
As discussed above, if these proposed revisions are adopted, the
provisions of Oregon's revised rules will fail to meet the requirements
of part 70. EPA is therefore proposing, as an alternative to full
approval of the current rules, to disapprove the Oregon program with
respect to these provisions if the revisions are adopted and submitted
as proposed. If revisions to the applicability provisions of the Oregon
rules are adopted but are substantially different than what has been
proposed, EPA will consider the submittal to represent a material
change to the program and shall extend the review period accordingly in
order to repropose action on the Oregon title V program.
Interim approval of the Oregon operating permit programs, which may
not be renewed, extends for a period of up to two years. During the
interim approval period, the State is protected from sanctions for
failure to have a program, and EPA is not obligated to promulgate a
Federal permits program in the State. Permits issued under a program
with interim approval have full standing with respect to part 70. In
addition, the one year deadline for submittal of permit applications by
subject sources and the three year time period for processing all
initial permit applications begins upon publication of the final action
on this proposed interim approval.
The EPA is proposing to disapprove in the alternative the operating
permits program submitted by the ODEQ and LRAPA. If promulgated, this
disapproval would constitute a disapproval under section 502(d) of the
Act (see generally 57 FR 32253-54). As provided under section 502(d)(1)
of the Act, Oregon would have up to 180 days from the date of EPA's
notification of disapproval to the Governor of Oregon to revise and
resubmit the program.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval and, in the alternative, proposed disapproval. Copies
of the State's 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 October 14, 1994.
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 analysisassessing 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.
Operating permit program approvals under section 502(g) of the Act
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal
operating permits program approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the Act, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of State action. The Act forbids EPA to base its actions
concerning operating permits programs on such grounds. Union Electric
Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C.
7410(a)(2).
If EPA's final action is a disapproval, it will not affect any
existing State requirements applicable to small entities. Federal
disapproval of the State submittal does not affect its State-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose a new Federal requirement. Therefore, EPA certifies that any
proposed disapproval action would not have a significant impact on a
substantial number of small entities because it does not remove
existing State requirements nor does it substitute a new Federal
requirement.
IV. Miscellaneous
A. Proposed Interim Approval
Proposal for interim approval of the program.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 1, 1994.
Jane S. Moore,
Acting Regional Administrator.
[FR Doc. 94-22721 Filed 9-13-94; 8:45 am]
BILLING CODE 6560-50-F
