[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
[[Page 50108]]
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.
* * * * *
[FR Doc. 95-24036 Filed 9-27-95; 8:45 am]
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