[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Notices]
[Pages 65783-65785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31800]


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ENVIRONMENTAL PROTECTION AGENCY

[AD-FRL-6195-1]


Notice of Deficiency For Clean Air Act Operating Permits Program 
in Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of deficiency.

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SUMMARY: Pursuant to its authority at 40 CFR 70.10(b)(1), EPA is 
publishing this Notice of Deficiency for the State of Oregon's Clean 
Air Act Title V Operating Permits Program. The Notice of Deficiency is 
based upon EPA's finding that the State's requirements for judicial 
standing to challenge State-issued Title V permits does not meet 
minimum federal requirements for program approval. Publication of this 
Notice is a prerequisite for withdrawal of the State's Title V program 
approval, but does not effect such a withdrawal. Withdrawal of program 
approval, if necessary, will be accomplished through subsequent 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Adan Schwartz, U.S. Environmental 
Protection Agency, 1200 Sixth Avenue, ORC-158, Seattle, Washington 
98101, (206) 553-0015.

I. Description of Action

    EPA is publishing a Notice of Deficiency for the Clean Air Act (CAA 
or Act) Title V program for the state of Oregon. This document is being 
published to satisfy 40 CFR 70.10(b)(1), which provides that EPA shall 
publish in the Federal Register a notice of any determination that a 
Title V permitting authority is not adequately administering or 
enforcing a part 70 program. The deficiency being noticed relates to 
Oregon's requirements for obtaining judicial review of Title V 
operating permit actions. A recent decision by the Oregon Supreme Court 
held that organizations do not have standing to represent their members 
in challenging State-issued environmental permits. Because of this 
restriction on access to judicial review, the State's program no longer 
meets the program approval requirements of Title V and 40 CFR part 70.
    Title V of the Act provides for the approval of state programs for 
the issuance of operating permits that incorporate the applicable 
requirements of the Act. State permitting authorities must submit 
programs to EPA that meet certain minimum criteria, and EPA must 
disapprove a program that fails to meet

[[Page 65784]]

these criteria. Among these criteria is a requirement that the state 
program include procedures for ``judicial review in State court of the 
final permit action by the applicant, any person who participated in 
the public comment process, and any other person who could obtain 
judicial review of that action under applicable law.'' CAA section 
502(b)(6). This requirement is echoed in the operating permit program 
approval regulations promulgated at 40 CFR part 70. See 
Sec. 170.4(b)(3)(x).
    EPA has interpreted this requirement to mean that a state must 
provide the same opportunity for judicial review of Title V permitting 
actions as would be available in federal court under Article III of the 
U.S. Constitution. This interpretation has been upheld as ``both 
authorized by Congress and reasonable.'' Commonwealth of Virginia v. 
Browner, 80 F.3rd 869 (4th Cir., 1996).
    Article III generally requires that, to obtain judicial review, a 
person must suffer an actual or threatened injury. However, an 
organization that does not suffer actual or threatened injury to itself 
may obtain judicial review on behalf of its members when (1) the 
members would otherwise have standing to sue in their own right, (2) 
the interests the organization seeks to protect are germane to its 
purpose, and (3) neither the claim asserted, nor the relief requested, 
requires the participation of individual members in the lawsuit. In 
such a case, the organization itself need not show actual or threatened 
injury. See Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 
341-345 (1977). This exception to the Article III requirement for 
actual or threatened injury is known as ``representational standing.''
    On July 18, 1996, the Oregon Supreme Court issued a decision in 
Local 290, Plumbers and Pipefitters v. Oregon Department of 
Environmental Quality, 323 Or. 559, 919 P. 2d 1168 (``Local 290''). 
Interpreting the language of the state Administrative Procedures Act 
(APA), the Court held that this statute requires that the person 
seeking judicial review under that statute must be aggrieved (which, 
under Oregon law, is roughly synonymous with having suffered actual or 
threatened injury), and that representational standing is therefore not 
allowed. The Oregon APA governs judicial review for all State 
environmental permits.
    On August 1, 1996, EPA received a petition from a coalition of 
Oregon environmental groups requesting that EPA withdraw approval of 
the State's CAA Title V and Clean Water Act National Pollutant 
Discharge Elimination System (NPDES) programs on the basis that these 
programs no longer met federal minimum requirements in light of Local 
290. EPA subsequently received a written opinion from the Oregon 
Department of Justice, dated October 21, 1996, addressing the question 
of whether the Local 290 decision renders the Oregon programs deficient 
from the standpoint of federal approval. On January 14, 1997, the EPA 
Region 10 Administrator wrote the Director of the Oregon Department of 
Environmental Quality informing him that EPA was reviewing the petition 
for withdrawal. On April 21, 1997, the Regional Administrator again 
wrote to the Director of ODEQ, informing him that EPA had reviewed the 
Local 290 decision, and had reached a preliminary conclusion that the 
decision rendered the State's Title V program deficient. After noting 
that Local 290 appears to preclude an organization from suing on behalf 
of its members unless the organization itself is aggrieved, the letter 
inquires whether the State could offer a different opinion regarding 
the effect of this decision. To date, EPA has not received a formal 
response to this inquiry.
    EPA at this time concludes that the Local 290 decision should be 
interpreted to mean that representational standing is not allowed under 
the State APA. The only analysis of this issue from the state that EPA 
knows of is the October 21, 1996, opinion from an Assistant Attorney 
General for the Oregon Department of Justice. While not taking issue 
with the apparent holding of Local 290, the opinion questions whether 
Title V does in fact require a state program to provide for 
representational standing. Subsequent to receiving this opinion, EPA 
has reviewed the question and has again concluded that representational 
standing is a requirement for Title V approval.
    The Oregon Department of Justice opinion also suggests, but does 
not strongly assert, that Oregon state regulations approved by EPA 
pursuant to Title V may obviate the effect of Local 290, because these 
regulations provide that any person who submitted comments during the 
public comment period on a permit is ``adversely affected or 
aggrieved'' for the purpose of intervening in a contested case hearing 
under the Oregon APA. See Oregon Administrative Rules Secs. 340-28-
2300(4) and 340-28-2290. The apparent inference is that a party 
(including an organization representing its members) would be 
considered ``adversely affected or aggrieved'' in state court merely by 
virtue of the fact that its submittal of comments gave it standing to 
intervene in a contested case hearing.
    EPA does not believe that this regulatory provision removes the 
barrier to judicial review created by Local 290. First, CAA section 
502(b)(6) requires that a state provide an opportunity for judicial 
review to the permittee or to any person who participated in the public 
comment period. This requirement is not satisfied by merely allowing 
persons to intervene in a proceeding commenced by the permittee. 
Second, the State regulation nominally addresses only contested case 
hearings. The opinion does not explain why a party's standing within 
the administrative adjudicatory forum would necessarily carry over to 
State judicial courts. In EPA's opinion, the inference that a party 
qualifying as ``adversely affected or aggrieved'' in this manner for 
purposes of a contested case hearing would necessarily have standing in 
State court is particularly weak given that the State regulation was 
promulgated prior to Local 290 and uses the same ``adversely affected 
or aggrieved'' language employed by the APA provision at issue in the 
Local 290 decision. In summary, EPA is not convinced that this or any 
other existing Oregon regulation obviates the effect of Local 290 for 
purposes of State court review of Title V permitting decisions.
    As noted above, the barriers to standing created by Local 290 apply 
to all environmental permits for which judicial review is governed by 
the State APA. This includes permits issued pursuant to the State's 
NPDES program. This decision requires interpretation of the recently 
promulgated regulation addressing standing for judicial review in state 
NPDES programs, codified at 40 CFR 123.30. See 61 FR 20972 (May 8, 
1996). EPA plans to hold a public hearing on this issue if 
representational standing is not restored for NPDES permits during the 
next Oregon legislative session. The primary purpose of this hearing 
would be to gather information regarding the extent to which Local 290 
interferes with public participation in the permitting process. 
Gathering this information would enable EPA to make a more informed 
decision regarding whether to proceed with NPDES program withdrawal. 
For the present, EPA notes that restoring representational standing to 
challenge State NPDES permits will obviate the need for further inquiry 
into whether Local 290 poses a problem for continued EPA approval of 
the State's NPDES program.
    40 CFR 70.10(c)(1) provides that EPA may withdraw a part 70 program 
approval, in whole or in part, whenever

[[Page 65785]]

the approved program no longer complies with the requirements of part 
70. This section goes on to list a number of potential bases for 
program withdrawal, including the case where the permitting authority's 
legal authority no longer meets the requirements of part 70 because a 
court has struck down or limited state authorities to administer the 
program. 40 CFR 70.10(c)(1)(I)(B).
    40 CFR 70.10(b) sets forth the procedures for program withdrawal, 
and requires as a prerequisite to withdrawal that the permitting 
authority be notified of any finding of deficiency by the Administrator 
and that the document be published in the Federal Register. Today's 
document satisfies this requirement and constitutes a finding of 
program deficiency. If the permitting authority has not taken 
``significant action to assure adequate administration and enforcement 
of the program'' within 90 days after publication of a notice of 
deficiency, EPA may withdraw the state program, apply any of the 
sanctions specified in section 179(b) of the Act, or promulgate, 
administer, and enforce a federal Title V program. 40 CFR 70.10(b)(2). 
Part 70.10(b)(4) provides that, if the state has not corrected the 
deficiency within 18 months after the date of finding of deficiency, 
EPA must promulgate, administer, and enforce a whole or partial program 
within 2 years of the date of the finding.
    This document is not a proposal to withdraw the State's Title V 
program. Consistent with part 70.10(b)(2), EPA will wait at least 90 
days, at which point it will determine whether the State has taken 
significant action to correct the deficiency. Any proposal to withdraw 
approval of the State's Title V program will occur after the end of the 
90-day period.

II. Administrative Requirements

    As noted above, publication of this notice of deficiency does not 
effect a withdrawal of the State's Title V program. Program withdrawal, 
if necessary, will be accomplished through a subsequent notice-and-
comment rulemaking. This action does not impose any enforceable duty or 
contain any unfunded mandate as described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with 
State, local, and tribal government officials as specified by Executive 
Order 12875 (58 FR 58093, October 28, 1993) or Executive Order 13084 
(63 FR 27655, May 10, 1998), or involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994). The Office of Management and 
Budget has exempted this action from review under Executive Order 12866 
(58 FR 51735, October 4, 1993). Because this action is not subject to 
notice-and-comment requirements under the Administrative Procedure Act 
or any other statute, it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This action does not contain any information collections subject to OMB 
approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
    This action is a Notice of Deficiency and does not constitute a 
rule; therefore Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks does not apply. For the 
same reason, section 112(d) of the National Technology Transfer 
Advancement Act of 1995 also does not apply.

    Dated: November 20, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-31800 Filed 11-27-98; 8:45 am]
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