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Clean Air Act Final Interim Approval Operating Permits Programs in Oregon
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 2, 1994]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5116-2
Clean Air Act Final Interim Approval Operating Permits Programs
in Oregon
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
SUMMARY: EPA is promulgating 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 for an approvable State
program to issue operating permits to all major stationary sources, and
to certain other sources.
EFFECTIVE DATE: January 3, 1995.
ADDRESSES: Copies of Oregon's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue,
Seattle, Washington.
FOR FURTHER INFORMATION CONTACT: Anne Dalrymple, U.S. Environmental
Protection Agency, 1200 Sixth Avenue, AT-082, Seattle, Washington
98101, (206) 553-0199.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the Clean Air Act Amendments of 1990 (sections 501-507
of the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) part 70, require that States develop
and submit operating permits programs to EPA by November 15, 1993, and
that EPA act to approve or disapprove each program within one year
after receiving the submittal. EPA's program review occurs pursuant to
Section 502 of the Act and the part 70 regulations, 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.
On September 14, 1994, EPA proposed interim approval of the
operating permits programs for ODEQ and LRAPA, provided certain
proposed revisions to Oregon rules were 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 proposed disapproval of the
Oregon program if the proposed revisions were not adopted and submitted
prior to the statutory deadline. See 59 FR 47105 (Sept. 14, 1994). EPA
received four public comments on the proposal. In this notice EPA is
taking final action on its proposal to promulgate interim approval of
the operating permits programs for ODEQ and LRAPA.
II. Final Action and Implications
A. Analysis of State Submission and Response to Public Comments
Changes to Chapter 340, Division 28
On July 11, 1994, ODEQ proposed for public comment revisions to OAR
Chapter 340, Division 28 (Stationary Source Air Pollution Control and
Permitting Procedures). EPA discussed these proposed changes in the
September 14, 1994 Federal Register notice proposing action on Oregon's
title V submittal.\1\ See 59 FR 47108-47111. The Oregon Environmental
Quality Commission (EQC) adopted the revisions to OAR Chapter 340,
Division 28 on October 21, 1994. These rules became effective on
October 28, 1994. Oregon submitted these revised regulations to EPA on
November 15, 1994 as an amendment to the Oregon title V submittal. The
revisions make the regulatory changes necessary for the Oregon program
to receive interim approval.
\1\Unless otherwise stated, all references to ``Oregon,''
``Oregon's submittal'' or ``Oregon's program'' refer to the
operating permit programs submitted by the State of Oregon on behalf
of ODEQ and LRAPA.
The following rules were adopted or revised in response to EPA's
September 14, 1994 Federal Register notice: OAR 340-28-110(15); OAR
340-28-2110(3)(c)(E); OAR 340-28-2110(7) (renumbered to OAR 340-28-
2110(8)); OAR 340-28-2120(3); OAR 340-28 2130(3)(a)(E); OAR 340-28-
2130(3)(c)(B); OAR 340-28-2170(1);\2\ OAR 340-28-2200(1)(d).
\2\This regulation was erroneously cited in the proposed Federal
Register as OAR 340-28-2170(a).
The following rules were repealed in response to EPA's September
14, 1994 Federal Register notice: OAR 340-28-110(41); OAR 340-28-
110(53); OAR 340-28-110(63); OAR 340-28-2230(1)(j).
The following proposed rule was not adopted by the EQC on October
21, 1994 in response to EPA's September 14, 1994 Federal Register
notice: OAR 340-28-2110(4).
2. Response to Public Comment
EPA received comments on the EPA's proposed action on the Oregon
program from four commenters: ODEQ, the American Forest & Paper
Association, the National Environmental Development Association/Clean
Air Regulatory Project, and the Northwest Pulp and Paper Association.
No commenters objected to approval of the Oregon permit program.
a. Insignificant Emissions Units. One commenter objected to EPA's
proposal that in order to avoid disapproval of its title V program,
Oregon must revise its regulation defining ``categorically
insignificant activities'' (OAR 340-28-110(15)) and the related
provisions on permit applications (OAR 340-28-2120(3)) and
applicability (OAR 340-28-2110(7)). The commenter disagreed with EPA's
position that all activities subject to applicable requirements must be
properly incorporated into title V permits. The commenter further
stated that the Clean Air Act does not support EPA's position and that
EPA's interpretation renders the Part 70 provisions on insignificant
activities meaningless.
EPA maintains, however, that title V and the part 70 rules preclude
the exemption of activities as ``insignificant'' when such units are
subject to an applicable requirement. Section 504(a) of the Act
provides that ``each permit issued under this title shall include
enforceable emission limitations and standards, a schedule of
compliance, a requirement that the permittee submit to the permitting
authority, no less often than every 6 months, the results of any
required monitoring, and such other conditions as are necessary to
assure compliance with applicable requirements of the Act, including
the requirements of the applicable implementation plan.'' (emphasis
added). Section 70.6(a)(1) provides that each permit shall include
``emission limitations and standards, including those operational
requirements and limitations that assure compliance with all applicable
requirements at the time of permit issuance''. Furthermore, 70.6(c)(1)
requires that each permit shall contain ``compliance, certification,
testing, monitoring, reporting, and recordkeeping requirements
sufficient to assure compliance with the terms and conditions of the
permit.'' The fact that an emission unit may emit only small quantities
of pollutants does not provide a basis to exempt it from the
fundamental statutory requirement that title V permits must
specifically include, and ensure compliance with, all applicable
requirements.
EPA disagrees that requiring all activities subject to applicable
requirements to be properly incorporated into title V permits will
render the insignificant activities provisions of Part 70 meaningless.
For example, the requirement to ``describe'' emissions of regulated
pollutants in a permit application is not a requirement to quantify
those emissions. Smaller units can be aggregated and described in very
general terms (i.e., ``all valves and flanges not otherwise
specified'') provided the description is specific enough to determine
the applicability of and to impose all applicable requirements.
Furthermore, the requirement to include in a permit compliance
certification testing, monitoring, reporting, and recordkeeping
sufficient to assure compliance with the terms and conditions of the
permit does not impose the same level of rigor with respect to small
emission units that do not require extensive testing or monitoring in
order to determine compliance with the applicable requirements.
In any event, Oregon has made the changes to its insignificant
activities regulations which EPA indicated in the September 14, 1994,
Federal Register notice were necessary for approval and it is these
revised regulations on which EPA is taking final action at this time.
The versions of OAR 340-28-110(15), 340-28-2110(7) and 340-28-2120(3)
originally submitted by Oregon to EPA on November 15, 1993, as part of
its title V submittal are no longer effective as a matter of State law
and are no longer before EPA for consideration. Accordingly, EPA is
fully approving the Oregon program with respect to insignificant
activities.
b. Definition of Title I Modification. The definition of ``title I
modification'' in the regulations submitted by Oregon as part of its
Title V program does not include changes reviewed under a minor source
preconstruction review program approved pursuant to section
110(a)(2)(C) of the Act (``minor NSR changes'') or changes triggering
the application of a National Emission Standard for Hazardous Air
Pollutants (NESHAP) established pursuant to section 112 prior to the
1990 Amendments (``part 61 NESHAP modifications''). In the September
14, 1994 Federal Register notice proposing action on the Oregon title V
program, EPA advised the State that it would be required to revise its
definition of the term ``title I modification'' to obtain full EPA
approval:
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. See (59 FR 47108).
In response to EPA's proposed interim approval of the Oregon
program, three commenters objected to EPA's proposed requirement that
Oregon revise its definition of ``title I modification'' to include
minor new source review in order to obtain full approval. These
commenters argued that Oregon's current definition fully meets the
requirements of the Clean Air Act. One commenter contended that section
110(a)(2) does not require a State Implementation Plan (SIP) to include
a program to regulate the modification of any stationary source but
rather to only include a program to regulate modifications as defined
in other sections of title I. These commenters also stated that the
changes required by the September 14, 1994, Federal Register notice
would be completely unworkable and would frustrate the practical
implementation of the operating permit program in Oregon by requiring
sources to undergo significant permit modification procedures for
changes covered by Oregon's Notice of Construction rule that was
approved by EPA as part of the SIP under section 110(a)(2)(C) of the
Act.
As discussed below, EPA has reconsidered the approach proposed in
the September 14, 1994 Federal Register notice and is fully approving
Oregon's title V program with respect to the definition of ``title I
modification.'' If EPA were to conclude at this time that the phrase
``title I modification'' should be interpreted as including minor NSR
changes, EPA would be required to disapprove Oregon's program because
part 70 does not currently allow EPA to grant interim approval unless
the permitting agency has adequate authority to issue permits that
assure compliance with all applicable requirements. See 40 CFR
70.4(d)(3)(ii). On August 29, 1994, EPA proposed revisions to the
interim approval criteria to, among other things, allow State programs
with a more narrow definition of ``title I modification,'' like
Oregon's, to receive interim approval (59 FR 44572). The Agency also
solicited public comment on the appropriate interpretation of ``title I
modification'' (59 FR 44573). The Agency stated that if, after
considering the public comments, it continued to believe that the
phrase ``title I modification'' should be interpreted as including
minor NSR changes, it would revise the interim approval criteria as
needed to grant interim approval to States that adopted a narrower
definition.
As noted in the September 14, 1994 Federal Register notice
proposing action on Oregon's title V program, EPA intended to finalize
its revisions to the interim approval criteria under 40 CFR section
70.4(d) before taking final action on Part 70 programs submitted by the
States. However, that is no longer possible. Publication of the
proposed revisions occurred on August 29, 1994, and EPA received
several requests to extend the original 30-day public comment period.
Given the importance to the States, sources and the public of the
issues raised in that rulemaking, but mindful of the need to take
action quickly, EPA agreed to extend the comment period until October
28, 1994. See 59 FR 52122 (October 14, 1994). Consequently, final
action to revise the interim approval criteria will not occur before
the deadline for EPA action on State programs, such as Oregon's, that
were submitted on or before November 15, 1993.<SUP>3
\3\Section 502(d) requires, in relevant part, that ``[n]ot later
than 1 year after receiving a program, and after notice and
opportunity for public comment, the Administrator shall approve or
disapprove such program, in whole or in part.''
EPA believes it would be inappropriate to delay action on Oregon's
program, perhaps for several months, until final action is taken on the
interim approval revisions. EPA also believes it would be inappropriate
to grant interim approval to Oregon on this issue before final action
is taken to revise the current interim approval criteria of 40 CFR
Sec. 70.4(b) to provide a legal basis for such approval. Until the
revision to the interim approval criteria is promulgated, EPA's choices
are to either fully approve or to disapprove the narrower definition of
``title I modification'' in States such as Oregon. For the reasons set
forth below, EPA believes that disapproving such programs at this time
solely because of this issue would be inappropriate.
First, EPA has not yet conclusively determined that a narrower
definition of ``title I modification'' is inappropriate and thus a bar
to full approval. The Agency has received numerous comments on this
issue as a result of the August 29, 1994 Federal Register notice, and
EPA obviously cannot make a final decision on this issue until it has
evaluated all of the comments. As such, EPA will address the concerns
regarding its interpretation of ``title I modification'' which were
raised by the commenters on EPA's proposed interim approval of the
Oregon program within the context of the final rulemaking for revisions
to part 70.
Second, EPA believes that the Oregon program should not be
disapproved because EPA itself has not yet completed rulemaking to
resolve this issue. Moreover, disapproving programs from States such as
Oregon that submitted their program to EPA on or before the November
15, 1993 statutory deadline could lead to the inequitable result that
these States would receive disapprovals, while States which were late
in submitting programs could take advantage of revised interim approval
criteria if and when these criteria become final. In effect, States
would be severely penalized for having made timely program submissions
to EPA. Finally, disapproval of a State program for a potential problem
that primarily affects permit revision procedures would delay the
initial issuance of Part 70 permits, hampering State and Federal
efforts to improve environmental protection through the operating
permits programs.
Therefore, for the reasons described above, EPA is approving
Oregon's use of a narrower definition of ``title I modification'' at
this time.<SUP>4 However, should EPA in the interim approval criteria
rulemaking make a final determination that such a narrow definition of
``title I modification'' is inappropriate and that a revision of the
interim approval criteria is warranted, the Agency will propose further
action on Oregon's program so that the State's definition of ``title I
modification'' would become grounds for interim approval.<SUP>5 A State
program like Oregon's that receives full approval of its narrower
``title I modification'' definition pending completion of EPA's
rulemaking must ultimately be placed on an equal footing with States
that receive interim approval in later months under any revised interim
approval criteria because of the same issue. Converting the full
approval on this issue to an interim approval after EPA completes its
rulemaking will avoid this inequity. EPA anticipates that an action to
convert the full approval on the ``title I modification'' issue to an
interim approval would be done through an additional rulemaking to
ensure that there is adequate notice of the change in approval status
of Oregon's title V program.
\4\For similar reasons, EPA will not construe 40 CFR section
70.7(e)(2)(i)(A)(3) to prohibit ODEQ and LRAPA from allowing minor
new source review changes to be processed as minor permit
modifications. See 59 FR 44573-44574.
\5\ State programs with a narrower ``title I modification''
definition that are acted upon by EPA after an Agency decision that
such a narrower definition is inappropriate would be considered
deficient, but would be eligible for interim approval under revised
40 CFR section 70.4(b).
c. Section 112(g) Modifications. Two commenters stated that,
because EPA has not yet issued final regulations to implement section
112(g) of the Act and no such final regulations are expected for
several months, it was inappropriate for EPA to require Oregon to take
delegation of section 112(g) authority as a condition of title V
approval. These commenters also objected to EPA's transitional policy
of allowing permitting authorities to use their existing State air
toxics permitting rules, upon EPA approval, as an interim mechanism for
implementing section 112(g) of the Act.
EPA disagrees with the commenters' contention that it is
inappropriate for EPA to require Oregon to implement section 112(g)
until after EPA has promulgated implementing regulations. The statutory
language in section 112(g)(2) prohibits the modification, construction,
or reconstruction of a source after the effective date of a title V
program unless maximum achievable control technology (MACT) (determined
on a case-by-case basis, if necessary) is met. The unambiguous meaning
of this provision is that the prohibition takes effect in a State on
the effective date of title V in that State regardless of whether EPA
or the State has promulgated implementing regulations. Furthermore,
implementation of section 112(g) by a permitting authority is a
requirement for receiving approval of its title V program (See 56 FR
21722 (May 10, 1991) and the April 13, 1993 memorandum entitled,
``Title V Program Approval Criteria for Section 112 Activities,''
signed by John Seitz, Director of the Office of Air Quality Planning
and Standards). EPA's approval of Oregon's title V program is based
upon Oregon's commitment to implement section 112(g) upon the effective
date of its title V program.
EPA has acknowledged that States may encounter difficulties
implementing section 112(g) prior to promulgation of final EPA
regulations (See June 28, 1994 memorandum entitled, ``Guidance for
Initial Implementation of Section 112(g),'' signed by John Seitz,
Director of the Office of Air Quality Planning and Standards). EPA has
issued guidance, in the form of the proposed regulations implementing
Section 112(g), which may be used to determine whether a physical or
operational change at a source is not a modification either because it
is below de minimis levels or because it has been offset by a decrease
of more hazardous emissions. See 59 FR 15004 (April 1, 1994). EPA
believes the proposed rule provides sufficient guidance to Oregon and
sources until such time as EPA's section 112(g) rulemaking is
finalized.
EPA is aware that Oregon does not have a program designed
specifically to implement section 112(g); however, Oregon does have
several preconstruction review programs that can serve as procedural
vehicles for rendering Federally enforceable case-by-case MACT or
offset determinations. Oregon's preconstruction review programs may be
used during the transition period between title V approval in Oregon
and EPA approval of Oregon regulations to implement Section 112(g) to
grant relief from the prohibition imposed by section 112(g).
EPA believes Oregon's preconstruction review programs will be
adequate in most, if not all, cases because they will allow Oregon to
select control measures that would meet MACT, as defined in section
112, and incorporate these measures into a Federally-enforceable
preconstruction permit. Although it is true that the preconstruction
review programs in the EPA-approved Oregon state implementation plan
(SIP) apply only to criteria pollutants, Oregon should be able to
impose Federally-enforceable measures reflecting MACT for most, if not
all, changes qualifying as a modification, construction, or
reconstruction under section 112(g). EPA believes this to be the case
because most section 112(b) hazardous air pollutants (HAPs) are also
criteria pollutants, and moreover because measures designed to limit
criteria pollutant emissions will often have the incidental effect of
limiting non-criteria pollutant HAPs.
In those instances where a section 112(g) modification,
construction, or reconstruction is entirely outside of Oregon's SIP
preconstruction review programs, for example, where the change results
only in non-criteria pollutant HAP emissions, sources may be able to
utilize either one of two new provisions of Oregon's rules which have
been submitted to EPA for approval under section 112(l) of the Act.
Upon EPA approval of these rules, sources would be able to utilize
Oregon's provision for voluntary HAP plant-site emission limits (see
OAR 340-28-1050(2)(b)) or permits to construct or modify major sources
of HAPs (see OAR 340-32-500 and 4500) to make case-by-case MACT or
offset determinations Federally enforceable.
Another consequence of the fact that Oregon lacks an EPA-approved
program designed specifically to implement section 112(g) is that the
applicability criteria found in its approved preconstruction review
programs may differ from those in section 112(g). However, whether a
particular source change qualifies as a modification, construction, or
reconstruction for section 112(g) purposes will be determined according
to the statutory provisions of section 112(g), using the proposed rule
as guidance. As noted in the June 28, 1994 guidance, EPA intends to
defer wherever possible to a State's judgement regarding applicability
determinations. This deference must be subject to obvious limitations.
For instance, a physical or operational change resulting in a net
increase in HAP emissions above 10 tons per year could not be viewed as
a de minimis increase under any interpretation of the Act. The EPA
would expect Oregon to be able to issue a preconstruction permit
containing a case-by-case determination of MACT in such a case even if
review under its own preconstruction review programs would not be
triggered.
d. Limitations on Potential to Emit. Two commenters objected to
EPA's requirement that Oregon refrain from adopting proposed revisions
to Oregon's applicability provision (OAR 340-28-2110) on the grounds
that such a revision would inappropriately exempt certain title V
sources from the requirements of title V. In the September 14, 1994,
Federal Register notice, EPA stated that the applicability provision
originally submitted by Oregon on November 15, 1993, was fully
approvable. EPA also stated, however, that it believed that Oregon's
proposed revision to OAR 340-28-2110, which would exempt from title V
sources subject to certain ``prohibitory rules'' Oregon had also
proposed, would require disapproval of Oregon's program. The commenters
stated, without elaboration, that Oregon's proposed revisions to OAR
340-28-2110 are fully consistent with 40 CFR 70.3(b)(1), which allows
States to exempt temporarily from title V certain categories of sources
that are not major sources.
EPA maintains that the exemptions Oregon proposed in OAR 340-28-
2110(4) exceeded the scope of the exemption allowed under part 70
because the revisions would exempt four categories of sources from the
requirements of title V as a matter of State law even if EPA does not
approve the ``prohibitory rules'' into the SIP so as to make them
Federally enforceable. In other words, Oregon's proposed revision to
OAR 340-28-2110(4) would have impermissibly exempted title V sources
that were in fact major sources under Federal law if the ``prohibitory
rule'' under which the sources sought to operate were not approved by
EPA. In addition, the proposed revision would have exempted sources
within the four categories from title V even if such sources were
subject to standards promulgated pursuant to section 111 or 112 of the
Act after July 21, 1992, and the sources had been specifically
determined in such promulgation not to be exempt from title V (see 40
CFR 70.3(b)(2)). More to the point, if EPA approves a ``prohibitory
rule'' into the Oregon SIP which has the effect of making sources
subject to that rule ``minor sources,'' then those sources would be
exempted from title V by the current provision in OAR 340-28-
2110(4)(b).
In any event, Oregon did not adopt the proposed revision to OAR
340-28-2110(4). Therefore, the version of the regulation which the
commenters addressed in their comments is no longer before EPA for
consideration. Rather, it is the version of OAR 340-28-2110(4) which
Oregon originally submitted to EPA on November 15, 1993, and which EPA
proposed to approve on September 14, 1994, that is currently before
EPA. Accordingly, OAR 340-28-2110 does not present a bar to title V
approval.
e. Environmental Audit Privilege. One commenter raised several
objections to EPA's discussion in the September 14, 1994 Federal
Register notice of Oregon's environmental audit privilege (ORS
468.963). EPA there stated that it was currently developing a national
position regarding EPA approval of environmental programs in States
which have environmental audit privileges and that it was proposing to
take no action on the Oregon audit provision in the context of this
title V approval. EPA further stated that it might consider such a
provision grounds for withdrawing program approval under 40 CFR
70.10(c) in the future if it later determined that the Oregon audit
provision interfered with Oregon's enforcement responsibilities under
part 70. See 59 FR 47106.
Although acknowledging that EPA is taking no current action on the
Oregon audit provision, the commenter stated that it is bad policy for
EPA to threaten a State permit program by indicating that EPA's own
policy is under review, and that the Oregon law is fully consistent
with the Clean Air Act and Federal law on criminal enforcement. The
commenter further stated that civil penalties, which the commenter
believes are not precluded by the Oregon audit provision, are adequate
to deter noncompliance and that the Oregon provision does not impinge
on EPA's enforcement authorities.
EPA's discussion of the environmental audit privilege was not
intended to be taken as a threat to the approval of Oregon's title V
program; rather, EPA merely intends to advise Oregon that the audit
provision could be grounds for withdrawing Oregon's title V program in
the future if EPA were to determine that the provision interfered with
Oregon's enforcement responsibilities under part 70. Section
70.11(c)(iii) allows EPA to withdraw program approval if it determines
that a State has failed to enforce the requirements of part 70. EPA
also disagrees with the premise underlying the commenter's assessment
that the Oregon audit provision is consistent with the Clean Air Act
and other Federal criminal law. The commenter stated that the Oregon
audit statute provides a shield only against criminal liability. By its
terms, however, the privilege applies to ``any civil, criminal or
administrative proceeding'' except as otherwise provided by the
statute. See ORS 468.963(2). Finally, the commenter's argument that the
Oregon statute does not impinge on EPA's enforcement authorities, if
carried to its logical conclusion, would mean that a State would not
have to have any civil or criminal enforcement authorities to obtain
title V approval. Such an argument contradicts the clear requirement
that States must have certain civil and criminal enforcement
authorities in order to obtain title V approval. See Section
502(b)(5)(E) of the Act.
In any event, the commenter's concerns are premature at this time.
As the commenter acknowledged, EPA has not proposed to take any action
on Oregon's environmental audit privilege in the context of this final
action on Oregon's program. Such concerns would be properly raised when
and if EPA proposed to withdraw Oregon's title V approval because EPA
determines that the Oregon statute is interfering with Oregon's ability
to enforce its title V program or EPA revised part 70 to prohibit
environmental audit provisions such as Oregon's.
f. Criminal Authorities. (i) Upset/Bypass. EPA received two
comments on its proposed finding that ORS 468.959, which provides a
specific defense to criminal liability for violations resulting from an
``upset'' or a ``bypass,'' precludes full title V approval. In its
proposal, EPA stated that the Oregon provision appears broader than the
affirmative defense set forth in 40 CFR 70.6(g) for emissions in excess
of technology-based emissions limits. See 59 FR 47108.
One commenter stated simply that Oregon's statute is consistent
with part 70, without further elaboration. The other commenter argued
that the Oregon statute clearly places the burden of proof of
establishing an upset or a bypass on the defendant, as required by 40
CFR 70.6(g)(4). The commenter also stated that the Oregon statute
merely sets forth an affirmative defense based on necessity and that
nothing in the Clean Air Act authorizes EPA to preempt such
longstanding notions of fairness that have been incorporated into State
criminal law. The commenter further argued that if the Oregon upset/
bypass statute precludes full approval in Oregon, other States with
similar statutes should be similarly treated.
EPA agrees with the commenter that the Oregon statute appears to
place the burden of proving an upset or bypass on the defendant, as
required by 40 CFR 70.6(g)(4). EPA nonetheless maintains that the
Oregon statute is broader than the emergency provisions of 40 CFR
70.6(g) for several reasons. Section 70.6(g) requires a source to prove
that the excess emissions were not caused by improperly designed
control equipment, lack of preventive maintenance, careless or improper
operation, or operator error. No similar showing is required for a
source in Oregon to claim an affirmative defense to excess emissions
due to a ``bypass.'' For example, the Oregon provision would allow a
source to routinely bypass improperly designed control equipment with
impunity simply by indicating that the control equipment would be
severely damaged if operated during the periods of bypass. The
recordkeeping and reporting requirements under part 70 are also more
extensive than those required by ORS 468.959. Moreover, the emergency
provision of part 70 provides a defense only to emissions in excess of
a technology-based emissions limit, while the Oregon statute provides a
defense to any emissions limit, including a health-based limit.
EPA also disagrees with the commenter's assertion that the Clean
Air Act does not authorize EPA to require States to make changes to
their criminal statutes. Title V requires that States have appropriate
criminal authorities in order to obtain title V approval. See Section
502(b)(5)(E). EPA has interpreted this statutory provision in part 70
section 70.11 and must evaluate State programs for consistency with the
promulgated rule. In response to the commenter's concern that all
States should be treated similarly on this issue, EPA notes the
commenter's concern and agrees that evenhanded treatment is
appropriate. In conclusion, EPA continues to believe that ORS 468.959
poses a bar to full approval, but does allow for interim approval.
(ii) Corporate criminal liability. EPA received three comments
concerning EPA's interpretation of ORS 161.170, which addresses the
extent to which a corporation can be subject to criminal liability in
Oregon. Based on its initial review of the statute, EPA believed that,
in order for a corporation to be criminally liable for knowing
violations of permit terms and other applicable requirements under ORS
468.936, the State must show that the board of directors or a high
managerial agent ``engaged in, authorized, solicited, requested,
commanded or knowingly tolerated'' the conduct giving rise to the
violation. See ORS 161.170(1)(c). EPA's preliminary view was that the
Oregon statute imposed a greater burden of proof and degree of
knowledge or intent than Federal law, which requires only that the
crime be committed by an employee of the corporation and that the
employee was at the time performing that employee's duties for the
corporation. See 59 FR 47108.
One commenter responded that EPA's objection to ORS 161.170 was
inappropriate because EPA should not interfere with State criminal law
and that EPA already has sufficient authority to bring its own criminal
actions. Another commenter stated, without further elaboration, that
the burden of proof for criminal violations in Oregon is the same as
for federal crimes because, in both jurisdictions, the prosecution must
prove the existence of a crime beyond a reasonable doubt.
As explained above, EPA disagrees that the Clean Air Act does not
authorize EPA to require States to change their criminal laws to meet
the requirements for an approvable title V program and that Federal
criminal authority is sufficient in and of itself. Title V prohibits
EPA from approving a State title V program if the State does not have
appropriate criminal authority, so Congress obviously contemplated that
States with insufficient criminal authority would need to amend their
statutes. See Section 502(b)(5)(E). Moreover, as discussed above, if
Congress thought that Federal criminal enforcement authorities provided
sufficient deterrence, Congress would not have required that States
have appropriate criminal authorities in order to obtain title V
approval.
A third comment was submitted by the State, which included an
opinion letter from the Oregon Attorney General's office stating that
the Oregon standard under ORS 161.170(1)(a) is equivalent to the
Federal standard articulated by EPA in its September 14, 1994 Federal
Register notice. The Attorney General opined that ORS 161.170(1)(a),
like Federal law, adopts the principle of respondeat superior with the
additional requirement that the employee's conduct occur on behalf of
the corporation. In light of the most recent opinion letter submitted
by the Oregon Attorney General's office, EPA concludes that Oregon law
does not impose a different burden of proof or degree of knowledge or
intent for corporations than does Federal law. In its September 14,
1994, proposal, EPA had assumed that knowing violations of permits and
applicable requirements would fall under ORS 161.170(1)(c), which
requires proof that the employee's conduct was authorized or otherwise
condoned by the board of directors or a high managerial agent. The
Attorney General pointed out, however, that ORS 468.936, which
satisfies the general criminal authority required by 40 CFR
70.11(a)(3)(ii), is not defined as a felony under Oregon law, and is
therefore a ``violation.'' Accordingly, a corporation which violated
ORS 468.936 could be prosecuted under ORS 161.170(1)(a), which requires
only that the illegal conduct was engaged in by an agent of the
corporation acting within the scope of employment and on behalf of the
corporation. As noted by the Attorney General and by EPA in its
September 14, 1994 Federal Register notice, this is equivalent to the
Federal standard. In short, based on the opinion letter of the Attorney
General, EPA has determined that ORS 161.170 does not pose a bar to
full approval of Oregon's program.
g. Administrative Amendments. Two commenters disagreed that
Oregon's regulation authorizing administrative permit amendments, OAR
340-28-2230(1)(j), would allow the administrative amendment process to
be used to change the content of a permit. These commenters asserted
that this regulation would only allow the correction of minor
misinterpretations of an applicable requirement, which they felt was
appropriate. EPA objected to OAR 340-28-2230(1)(j) because, although
the regulation could be used appropriately as the commenter suggested,
the plain language of the rule would also allow the permitting
authority to add or delete an applicable requirement from the title V
permit without public participation if it determined the change was due
to a ``minor misinterpretation of an applicable requirement.'' EPA
maintains this position.
In response to EPA's concerns, however, Oregon repealed OAR 340-28-
2230(1)(j) on October 21, 1994. Thus, that provision is no longer
effective as a matter of State law and is not before EPA for
consideration at this time. Rather, OAR 340-28-2230, as amended by
Oregon on October 21, 1994, and submitted to EPA on November 15, 1994,
is currently before EPA for consideration and is fully approvable.
h. Variance Provision.
Two commenters objected to EPA's discussion of the Oregon variance
provisions, ORS 468A.075 and LRAPA Title 23, section 23-005. In the
September 14, 1994, Federal Register notice, EPA proposed to take no
action on these variance provisions because EPA believed they were
external to Oregon's title V program. EPA also stated, however, that a
variance granted by a permitting authority cannot modify a source's
obligations under a title V permit, even if the State variance
provision or the source-specific variance itself has been approved into
the State SIP, unless the variance is incorporated into the permit
through appropriate permit revision procedures. See 59 FR 47106. The
commenters argued that part 70 clearly recognizes that sources may not
be in compliance with all provisions of a title V permit and that State
variance provisions, such as Oregon's, are consistent with part 70, in
particular, 40 CFR 70.5(c)(8)(iii) and 70.6(c)(3). The commenters
further objected to any implication that a variance granted by the
State does not have any effect on a source's compliance requirements or
the extent to which a source can be subject to enforcement action.
EPA agrees with the commenters that part 70 recognizes that some
title V sources will not be in compliance with all terms of their title
V permits. Section 70.5(c)(8)(iii)(C) requires that a source that will
not be in compliance with all applicable requirements at the time of
permit issuance must submit a schedule of compliance and section
70.6(c)(3) requires the permitting authority to include such a
compliance schedule in the source's title V permit.
EPA disagrees, however, with the commenters' implicit assumption
that a compliance schedule is the same mechanism and has the same
effect as a variance. As the commenters recognize, a compliance
schedule included in a title V permit does not sanction noncompliance
with the underlying applicable requirement. See 40 CFR 70.5(c)(8)(C). A
variance properly granted under a State variance provision, and
approved by EPA as a revision to the SIP, however, changes the
underlying applicable requirement of the SIP. Because title V requires
that all applicable requirements be incorporated into a source's title
V permit, any change to an applicable requirement, such as EPA approval
of a variance as a SIP revision, must also be incorporated into the
source's title V permit through appropriate permit revision procedures.
Moreover, the commenters' concerns are premature at this time. As
the commenters acknowledge, EPA is not taking any action on Oregon's
variance provisions in this final action on Oregon's title V program.
Small Business Assistance Program Provisions
EPA proposed that, as a condition of obtaining full approval,
Oregon must ensure that no source subject to title V will be immune
from inspections or enforcement actions resulting from technical
assistance visits conducted under ORS 468A.330(4)(a). See 59 FR 47107-
47108. That provision states 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.''
One commenter objected to EPA's proposal on this issue, arguing
instead that ``EPA's current program for amnesty for small businesses
should be expanded to other sources which conduct voluntary compliance
audits'' and that such a revision would be consistent with
Congressional intent. The commenter's reference to ``EPA's current
program'' is apparently a reference to EPA's August 12, 1994, guidance
memorandum entitled ``Enforcement Response Policy for Treatment of
Information Obtained Through Clean Air Act Section 507 Small Business
Assistance Programs'' signed by Steven A. Herman (herein referred to as
the ``SBA Enforcement Guidance''). That document sets forth EPA's
position that State Small Business Assistance Programs which provide
small businesses voluntarily seeking compliance assistance a limited
period to correct violations observed or revealed as a result of such
assistance are approvable under Section 507 of the Act, provided the
State program contains certain conditions.
EPA disagrees that the Oregon statute is consistent with either
title V or the SBA Enforcement Guidance. Section 70.11(a) requires that
States be able to collect a penalty of up to $10,000 per day for each
violation in order to obtain title V approval. ORS 468A.330(4)(a) would
preclude Oregon from pursuing an enforcement action against a source if
the enforcement action ``resulted from'' a technical assistance visit
conducted under that provision. As discussed in EPA's proposal,
Oregon's statute does not simply give a source a limited period of time
in which to correct a violation observed during a technical assistance
visit, but forever shields a source from further inspections or
enforcement actions that ``result from'' a compliance assistance visit.
For example, if a State inspector discovered a violation during a
technical assistance visit and the source took no action to correct the
violation, ORS 468A.330(4)(a) would shield the source indefinitely from
further inspections or enforcement action unless the State had some
independent reason for visiting the source not related to the
information obtained during the technical assistance visit.
The Oregon Attorney General has opined that no title V source that
is a major source is eligible for assistance under ORS 468A.330(4)(a)
because Oregon limits its Small Business Assistance Program to sources
that meet the definition of ``small business stationary source'' under
Section 507(b)(1)(C) of the Act. If, however, a source was determined
to be a title V source as a result of a technical assistance visit, ORS
468A.330(4)(a) would preclude the Oregon permitting authorities from
pursing an enforcement action against that source for failure to obtain
a title V permit.
The Oregon statute also poses title V approval problems for nonmajor
sources that may later become subject to title V. In the SBA
Enforcement Guidance, EPA interpreted Section 507 of the Act to allow
States to grant non-major sources that meet the eligibility
requirements of Section 507(b)(1)(C) a limited opportunity to correct
violations observed during technical assistance visits. Even if EPA
were to extend this policy to apply to all sources that conduct
voluntary compliance audits, as the commenter urges, the amnesty
granted under Oregon's statute far exceeds that policy. In short, the
Oregon statute is inconsistent with the enforcement requirements of
part 70 , even as EPA has interpreted those requirements under Section
507 of the Act and in the SBA Enforcement Guidance, for certain nonmajor
sources. Accordingly, EPA maintains that ORS 468A.330(4)(a) bars
full approval of Oregon's title V program, but does not preclude
interim approval.
B. Options for Approval/Disapproval
EPA is promulgating interim approval of the operating permits
programs submitted by ODEQ and LRAPA.<SUP>6 ODEQ will be implementing
Oregon's title V program throughout the State, except within Lane
County and the exterior boundaries of Indian Reservations in Oregon.
LRAPA will be the title V permitting authority for title V sources in
Lane County, except for sources located within the exterior boundaries
of Indian Reservations.
\6\The scope of this action does not include the issuance of
permits or the enforcement of standards for sewage sludge
incinerators under Section 405 of the Clean Water Act, 42 USC 1345.
Delegation of sewage sludge incinerator permitting under the Clean
Water Act, if requested by the State, would be considered in a
separate administrative action (see 40 CFR Parts 122 and 501).
In order to receive full approval, the Oregon permitting
authorities must make the following changes:
Upset/Bypass as a Defense to Criminal Liability
Oregon must demonstrate to EPA's satisfaction that ORS 468.959,
which provides an affirmative defense to criminal liability for
violations that result from an ``upset'' or a ``bypass,'' as those
terms are defined in the Oregon statute, is consistent with 40 CFR
70.6(g). The affirmative defense under ORS 468.959 is 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)).
Small Business Assistance Program Provisions
Oregon must demonstrate to EPA's satisfaction that ORS
468A.330(4)(a) is consistent with the enforcement responsibilities of
40 CFR 70.11(a) and the SBA Enforcement Guidance. ORS 468A.330(4)(a)
does not simply give a source an opportunity to correct a violation
observed during a technical assistance visit before being subject to
enforcement action, but rather protects the source from follow-up
inspections or enforcement activities that ``result from'' observations
made during a technical assistance visit.
As a result of today's final interim approval of Oregon's part 70
programs, the requirement to submit a permit application to ODEQ or to
LRAPA applies to all part 70 sources, as defined in the approved
program within the State, except for any source of air pollution over
which a federally recognized Indian Tribe has jurisdiction. See 59 FR
55813, 55815-55818 (November 9, 1994).
This interim approval, which may not be renewed, extends until
January 2, 1997. During this interim approval period, the State is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a Federal operating permits program in the
State. Permits issued under a program with interim approval have full
standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If the State fails to submit a complete corrective program for full
approval by July 2, 1996, EPA will start an 18-month clock for
mandatory sanctions. If the State then fails to submit a corrective
program that EPA finds complete before the expiration of that 18-month
period, EPA will be required to apply one of the sanctions in section
179(b) of the Act, which will remain in effect until EPA determines
that the State has corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator finds a lack of good
faith on the part of the State, both sanctions under section 179(b)
will apply after the expiration of the 18-month period until the
Administrator determined that the State had come into compliance. In
any case, if, six months after application of the first sanction, the
State still has not submitted a corrective program that EPA has found
complete, a second sanction will be required.
If EPA disapproves the State's complete corrective program, EPA
will be required to apply one of the section 179(b) sanctions on the
date 18 months after the effective date of the disapproval, unless
prior to that date the State has submitted a revised program and EPA
has determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of the State, both sanctions under section 179(b) shall
apply after the expiration of the 18-month period until the
Administrator determines that the State has come into compliance. In
all cases, if, six months after EPA applies the first sanction, the
State has not submitted a revised program that EPA has determined
corrects the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
State has not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to the State program by the expiration of this
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a Federal permits program
for the State upon interim approval expiration.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval, including public comments on the
proposal received and reviewed by EPA, are contained in docket number
OR-V-100 maintained at the EPA Regional Office. The docket is an
organized and complete file of information submitted to, or otherwise
considered by, EPA in the development of this final interim approval.
The docket is available for public inspection at the location listed
under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental protection, Intergovernmental relations, Operating
permits, and Reporting and recordkeeping requirements.
Dated: November 15, 1994.
Chuck Clarke,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding a sentence at the end
of the introductory text and by adding the entry for Oregon in
alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * An approved State part 70 program applies to all part 70
sources, as defined in that approved program, within such State,
except for any source of air pollution over which a federally
recognized Indian Tribe has jurisdiction.
* * * *
Oregon
(a) Department of Environmental Quality (ODEQ): Submitted on
November 15, 1993, as amended November 15, 1994; effective on
January 3, 1995; interim approval expires January 2, 1997.
(b) Lane Regional Air Pollution Authority (LRAPA): submitted on
November 15, 1993, as amended November 15, 1994; effective on
January 3, 1995; interim approval expires January 2, 1997.
* * * *
[FR Doc. 94-29690 Filed 12-1-94; 8:45 am]
BILLING CODE 6560-50-P