[Federal Register Volume 60, Number 188 (Thursday, September 28, 1995)]
[Rules and Regulations]
[Pages 50105-50108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24036]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5305-5]


Clean Air Act Final Full Approval of Operating Permits Programs 
in Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating full approval of the operating permits 
program 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.

DATES: This action will be effective on November 27, 1995, unless 
adverse or critical comments are received by October 30, 1995. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Copies of Oregon's submittal and other supporting 
information used in developing the final full 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: David C. Bray, U.S. Environmental 
Protection Agency, 1200 Sixth Avenue, AT-082, Seattle, Washington 
98101, (206) 553-4253.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    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 (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 programs if the proposed revisions were not adopted and 
submitted prior to the statutory deadline. See 59 FR 47105 (Sept. 14, 
1994). The State adopted and submitted the revisions necessary to 
address the proposed disapproval items and, on December 2, 1994, EPA 
published final interim approval of the operating permits programs for 
ODEQ and LRAPA which identified two remaining deficiencies in Oregon's 
enforcement authorities. See 59 FR 68120 (December 2, 1994).
    EPA received a letter from ODEQ on June 30, 1995 addressing the two 
interim approval issues identified in the December 1994 Federal 
Register notice. EPA has reviewed the submittal and has determined that 
the Oregon programs now qualify for full approval. Accordingly, EPA is 
taking final action to promulgate full approval of the operating 
permits programs for ODEQ and LRAPA.

II. Final Action and Implications

A. Resolution of Interim Approval Issues

1. 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 Oregon statute. In the December 2, 1994, 
Federal Register notice, EPA stated that in order to receive full 
approval, Oregon must demonstrate to EPA's satisfaction that ORS 
468.959 is consistent with 40 CFR 70.6(g). That section establishes an 
affirmative defense to violations of technology-based standards due to 
an ``emergency'' provided certain specified procedures are met. EPA 
went on to state that the affirmative defense under ORS 468.959 
appeared to be broader than the affirmative defense under 40 CFR 
70.6(g) and therefore precluded full approval. See 59 FR 61827.
    In response to this issue, ODEQ submitted an opinion letter from 
the Oregon Attorney General describing the legislative history of ORS 
468.959 and opining that ORS 468.959 did not interfere with the 
enforcement requirements of part 70 (see Letter from Oregon Assistant 
Attorney General, Shelley McIntyre, to Phil Millam, May 22, 1995). The 
opinion letter notes that Oregon has enacted a regulation corresponding 
to the emergency provision of 40 CFR 70.6(g). See OAR 340-28-1430(1). 
The opinion letter states that ORS 468.959 is a completely different 
provision, which was patterned after the upset/bypass provisions under 
the Federal Clean Water Act and was enacted to provide two very narrow 
affirmative defenses to criminal liability under all of Oregon's 
environmental statutes for violations that the legislature considered 
either unavoidable or necessary to prevent more serious injury or 
damage.
    After further consideration of the relationship between the 
emergency provision of 40 CFR 70.6(g) and the enforcement requirements 
of 40 CFR 70.11, EPA agrees with the Oregon Attorney General that the 
appropriate question is whether ORS 468.959 impermissibly interferes 
with the enforcement requirements of 40 CFR 70.11. Based on EPA's 
review of ORS 468.959 and the Attorney General's opinion letter, EPA 
believes that the affirmative defense to criminal liability available 
in Oregon for violations due to an upset or bypass does not unduly 
interfere with the State's enforcement authorities required under 40 
CFR 70.11.
    ORS 468.959 allows a source to assert an affirmative defense to 
violations resulting from an ``upset''. An upset is defined under this 
statute as an exceptional and unexpected occurrence in which there is 
an unintentional and temporary violation because of factors beyond the 
reasonable control of the violator and is not caused by operational 
error, improperly designed facilities, lack of preventive maintenance 
or careless or improper operation. See ORS 468.959(2)(b). By defining 
an upset as an ``unintentional'' violation, Oregon has greatly limited 
the scope of that affirmative defense. The class of violations that 
would be ``unintentional'' and yet ``knowing,'' so as to subject the 
violator to criminal liability, should be extremely narrow. Compare ORS 
161.090(7) (definition of ``intentionally'') with ORS 161.090(8) 
(definition of ``knowingly'').
    In addition, the procedural requirements a source must meet in 
Oregon in order to be excused from criminal liability for violations 
due to upsets are substantially equivalent to the procedural 
requirements a source must meet to establish the affirmative defense of 
emergency under 40 CFR 70.6(g). EPA believes that these procedural 
safeguards further minimize the likelihood that ORS 468.959 will 

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interfere with the criminal enforcement authorities required by part 
70.
    With respect to the bypass provisions of ORS 468.959, a ``bypass'' 
is defined as a temporary discharge under circumstances in which the 
defendant reasonably believed that the discharge was necessary to 
prevent the loss of life, personal injury or severe property damage. 
See 468.959(2)(a). The Attorney General's opinion states that the 
affirmative defense to criminal liability for violations due to a 
``bypass'' is directly analogous to the criminal defense of necessity, 
which is available as a matter of Federal criminal common law. See U.S. 
v. Schoon, 971 F.2d 193, 195. The necessity defense ``justifies 
criminal acts to be taken to avert a greater harm, maximizing social 
welfare by allowing a crime to be committed where the social benefits 
of the crime outweigh the social costs of failing to commit the 
crime.'' Id. at 196. By limiting the affirmative defense of ``bypass'' 
to ``circumstances in which the defendant reasonably believed that the 
discharge was necessary to prevent the loss of life, personal injury, 
or severe property damage or to minimize environmental harm'', a 
defendant may avoid criminal liability under the Oregon statute for 
what would otherwise clearly be a knowing violation only in those 
limited situations where the violation will avert a more serious harm 
to society as a whole. As such, EPA believes that the Oregon 
affirmative defense to criminal liability for a ``bypass'' is 
substantially equivalent to the affirmative defense of necessity which 
would be available as a matter of Federal common law for criminal 
violations under the Clean Air Act. EPA does not believe that part 70 
was intended to preclude a State from providing sources with 
affirmative defenses that would be available as a matter of Federal law 
to Clean Air Act violations. See 40 CFR 70.11(b) (requiring that the 
degree of knowledge and burden of proof required under State law can be 
no greater than that required under the Clean Air Act).
    The Attorney General's opinion also points to the procedural 
requirements a source must meet to establish the affirmative defense of 
bypass as additional checks on the scope of that affirmative defense. 
In the determing that ORS 468.959 precluded full approval, EPA 
expressed concern that the statute appeared to 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 Attorney General 
explains that because the affirmative defense of bypass is available 
only if the source took appropriate corrective action as soon as 
reasonably possibly, it should not be necessary to have a bypass day 
after day.
    In summary, EPA believes that the Oregon statute providing an 
affirmative defense to criminal liability for violations due to an 
upset or bypass is sufficiently narrow so as not to interfere with the 
criminal enforcement requirements of 40 CFR 70.11. EPA notes that 40 
CFR 70.4(b)(7) requires a permitting authority with an approved title V 
program to submit at least annually information regarding the State's 
enforcement activities and 40 CFR 70.10(c)(iii) allows EPA to withdraw 
program approval where a permitting authority fails to enforce its 
title V program consistent with the requirements of part 70. To ensure 
that ORS 468.959 does not impermissibly impinge on the State's 
enforcement authority, EPA intends to monitor the Oregon enforcement 
programs closely during implementation.
2. Small Business Assistance Program Provisions
    The statute establishing the Oregon Small Business Program, ORS 
468A.330, 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 except where there is reasonable 
cause to believe that a clear and immediate danger to the public health 
and safety or to the environment exists. See ORS 468A.330(4)(a). In the 
Federal Register notice granting Oregon interim approval of its 
operating permits programs, EPA stated that, as a condition of full 
approval, 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). EPA explained that ORS 468A.330(4)(a) does not simply 
give a source an opportunity to correct a violation observed during 
onsite technical assistance before being subject to enforcement action, 
but rather protects the source from follow-up inspections or 
enforcement activities that ``result from'' observations made during 
onsite technical assistance.'' 59 FR 61827. EPA therefore concluded 
that the Oregon statute interfered with the State's enforcement 
requirements under 40 CFR 70.11.
    In discussing ORS 468.330(4)(a), EPA noted that EPA had issued a 
guidance memorandum dated August 12, 1994, 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''). 
This guidance document sets forth EPA's enforcement response policy on 
the treatment of violations detected during compliance assistance 
visits under State Small Business Assistance Programs. The SBA 
Enforcement Guidance endorses State Small Business Assistance Programs 
that either (1) allow sources that voluntarily seek compliance 
assistance a limited period to correct violations observed or revealed 
as a result of compliance assistance or (2) if the State Small Business 
Assistance program is independent of the delegated State air 
enforcement program, keep confidential information that identifies the 
names and locations of specific small businesses with violations 
revealed through compliance assistance. It therefore interprets section 
507 of the Clean Air Act as creating a limited exception to the 
enforcement requirements of title V and part 70 for those sources that 
qualify for assistance under section 507 of the Act.
    In granting the Oregon operating permits programs interim approval, 
EPA determined that ORS 468.330(4)(a) did not meet the requirements of 
the SBA Enforcement Guidance because the Oregon statute permanently 
shields a source from inspections or enforcement actions resulting from 
observations during onsite technical assistance, rather than granting a 
limited correction period. See 59 FR 61826. Since that time, Oregon has 
submitted a guidance document entitled ``Air Quality Guidance: 
Restriction of Information Obtained by the AQ Small Business Assistance 
Program'' (hereinafter, ``Oregon's SBAP Confidentiality Guidance''). 
This document requires Oregon's Small Business Assistance Program to be 
operated independently from Oregon's air program enforcement efforts, 
and requires the Small Business Assistance Program to restrict access 
by Oregon air enforcement staff to information regarding violations 
detected through onsite technical assistance visits to small 
businesses. EPA has reviewed Oregon's SBAP Confidentiality Guidance and 
believes that it meets the conditions that apply to States choosing the 
confidentiality option under the SBA Enforcement Guidance. See 60 FR 
46071 (September 5, 1995). EPA also believes that this document 
sufficiently minimizes the risk that ORS 468A.330(4)(a) will interfere 
with the State's enforcement 

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responsibilities under part 70 and allows full approval of the Oregon 
program. Because Oregon's air enforcement staff will not have access to 
information regarding violations detected during onsite technical 
assistance, Oregon sources should not be successful in arguing that 
inspections and enforcement actions initiated by air enforcement staff 
``resulted from'' onsite technical assistance. Again, EPA intends to 
monitor the Oregon enforcement programs closely during implementation 
to ensure that ORS 468A.330(4)(a) does not interfere with the State's 
enforcement efforts against title V sources and will consider 
withdrawal of program approval if sources are successful in raising ORS 
468A.330(4)(a) as a defense to title V enforcement actions.

B. Scope of Approval

    The scope of the part 70 program approved in this notice for ODEQ 
and LRAPA applies to all title V sources (as defined in the approved 
program) within the State of Oregon and Lane County, respectively, 
except for sources within the exterior boundaries of Indian 
Reservations in Oregon. See 59 FR 61827.

III. Administrative Requirements

A. Docket

    Copies of the State's supplemental submittal and other information 
relied upon for this direct final action are contained in the Oregon 
Title V docket maintained at the EPA Regional Office, docket number 
ORV100. The docket is an organized and complete file of all the 
information submitted to, or otherwise considered by, EPA in the 
development of this final action. The docket is available for public 
inspection at the location listed under the ADDRESSES section of this 
document.

B. Direct Final Rulemaking

    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to fully approve the ODEQ and 
LRAPA operating permits programs should adverse or critical comments be 
filed. This action will be effective November 27, 1995, unless, within 
30 days of its publication, adverse or critical comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent notice that will withdraw 
the final action. All public comments received will be addressed in a 
subsequent final rule based on this action serving as a proposed rule. 
EPA will not institute a second comment period on this action. Any 
parties interested in commenting on this action should do so at this 
time. If no such comments are received, the public is advised that this 
action will be effective November 27, 1995.

C. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

D. 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.

E. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated costs to State, local, or 
tribal governments in the aggregate; or to the private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated today does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

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: September 19, 1995.
Jane S. Moore,
Acting Regional Administrator.

    Part 70, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 70--[AMENDED]

    1. 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 revising the entry for 
Oregon to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Oregon

    (a) Oregon Department of Environmental Quality: submitted on 
November 15, 1993, as amended on November 15, 1994, and June 30, 
1995; full approval effective on November 27, 1995.
    (b) Lane Regional Air Pollution Authority: submitted on November 
15, 1993, as amended on November 15, 1994, and June 30, 1995; full 
approval effective on November 27, 1995.
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[FR Doc. 95-24036 Filed 9-27-95; 8:45 am]
BILLING CODE 6560-50-P