[Federal Register Volume 65, Number 102 (Thursday, May 25, 2000)]
[Rules and Regulations]
[Pages 33772-33774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13070]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR 76-7291; FRL-6601-1]


Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Pursuant to procedures described in the January 19, 1989 
Federal Register, the Environmental Protection Agency (EPA or we) 
recently approved a minor State Implementation Plan (SIP) revision 
submitted by the Oregon Department of Environmental Quality (ODEQ). 
This submittal includes the following changes to the Oregon 
Administrative Rules (OAR) 340-028-0110 (Definitions): a revision of 
the definition of Volatile Organic Compounds (VOC), typographical 
corrections, updated reference dates, and the renumbering of several 
definitions. The VOC definition was revised to delist 
parachlorobenzotriflouride (PCBTF) and cyclic, branched, or linear 
completely methylated siloxanes from the definition of VOC. This 
document lists the revision we approved and incorporates the relevant 
material into the Code of Federal Regulations.

DATES: This rule is effective May 25, 2000.

ADDRESSES: Documents which are incorporated by reference are available 
for public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street SW, Washington, 
D.C. 20460. Copies of material submitted to EPA and other information 
supporting this action may be examined during normal business hours at 
the following locations: EPA, Region 10, Office of Air Quality (OAQ-
107), 1200 Sixth Avenue, Seattle, Washington 98101 and Oregon 
Department of Environmental Quality, 811 SW Sixth Avenue, Portland, 
Oregon 97204-1390.

FOR FURTHER INFORMATION CONTACT: Debra Suzuki, EPA, Office of Air 
Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, (206) 
553-0985.

SUPPLEMENTARY INFORMATION: We approved the following minor SIP revision 
request under section 110(a) of the Clean Air Act (Act):

----------------------------------------------------------------------------------------------------------------
                                                                                Date of
           State                            Subject matter                    submission       Date of  approval
----------------------------------------------------------------------------------------------------------------
OR.........................  Definitions: Revised the definition of VOC             12-3-98             6-16-99
                              (delist parachlorobenzotriflouride (PCBTF)
                              and cyclic, branched, or linear completely
                              methylated siloxanes) consistent with
                              changes in the federal definition, made
                              typographical corrections, updated
                              reference dates, and incorporated the
                              renumbering of several definitions.
----------------------------------------------------------------------------------------------------------------

    We took no action on the definitions relating to the Compliance 
Assurance Monitoring (CAM) Rule and on Tables 1 through 3. Please note 
that since these SIP revisions were adopted by the state, other 
modifications to Oregon's rules may have been adopted by the 
Environmental Quality Commission and submitted to EPA for approval 
(e.g. the rule recodification package). Approval of this SIP revision 
does not rescind any local rule amendments that were subsequently filed 
and submitted. We determined that this SIP revision complies with all 
applicable requirements of the Act and EPA policy and regulations 
concerning such revisions. Due to the minor nature of this revision, we 
concluded that conducting notice-and-comment rulemaking prior to 
approving this

[[Page 33773]]

revision would have been ``unnecessary and contrary to the public 
interest'', and therefore, was not required by the Administrative 
Procedure Act, 5 U.S.C. 553(b). This SIP approval became final and 
effective on the date of EPA approval listed above.

I. Administrative Requirements

A. Executive Order 12866

    A. Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule became effective on June 16, 1999.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 24, 2000. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

B. Oregon Notice Provision

    During EPA's review of a SIP revision involving Oregon's statutory 
authority, a problem was detected which affected the enforceability of 
point source permit limitations. EPA determined that, because the five-
day advance notice provision required by ORS 468.126(1) (1991) bars 
civil penalties from being imposed for certain permit violations, ORS 
468 fails to provide the adequate enforcement authority that a state 
must demonstrate to obtain SIP approval, as specified in section 110 of 
the Clean Air Act and 40 CFR 51.230. Accordingly, the requirement to 
provide such notice would preclude federal approval of a section 110 
SIP revision.
    To correct the problem the Governor of Oregon signed into law new 
legislation amending ORS 468.126 on September 3, 1993. This amendment 
added paragraph ORS 468.126(2)(e) which provides that the five-day 
advance notice required by ORS 468.126(1) does not apply if the notice 
requirement will disqualify a state program from federal approval or 
delegation. ODEQ responded to EPA's understanding of the application of 
ORS 468.126(2)(e) and agreed that, because federal statutory 
requirements preclude the use of the five-day advance notice provision, 
no advance notice will be required for violations of SIP requirements 
contained in permits.

C. Oregon Audit Privilege

    Another enforcement issue concerns Oregon's audit privilege and 
immunity law. Nothing in this action should be construed as making any 
determination or expressing any position regarding Oregon's Audit 
Privilege Act, ORS 468.963 enacted in 1993, or its impact upon any 
approved provision in the SIP, including the revision at issue here. 
The action taken herein does not express or imply any viewpoint on the 
question of whether there are legal deficiencies in this or any other 
Clean Air Act Program resulting from the effect of Oregon's audit 
privilege and immunity law. A state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on federal 
enforcement authorities. EPA may at any time invoke its authority under 
the Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by a state audit privilege or immunity law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Volatile organic compounds.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Oregon was approved by the Director of the Office of 
Federal Register on July 1, 1982.



[[Page 33774]]


    Dated: March 16, 2000.
Chuck Clarke,
Regional Administrator, Region 10.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart MM--Oregon

    2. Section 52.1970 is amended by adding paragraph (c) (131) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (131) On December 3, 1998, the Director of the Oregon Department of 
Environmental Quality (ODEQ) submitted a revision to the definition 
section of the Oregon Administrative Rules (OAR), as effective October 
14, 1998.
    (i) Incorporation by reference.
    (A) OAR 340-028-0110, as effective October 14, 1998, except for the 
following: (16) Capture system, (25) Continuous compliance 
determination method, (27) Control device, (29) Data, (39)(b) Emission 
Limitation and Emission Standard, (47) Exceedance, (48) Excursion, (55) 
Inherent process equipment, (67) Monitoring, (86) Pollutant-specific 
emissions unit, (88) Predictive emission monitoring system (PEMS), 
Table 1, Table 2, and Table 3.
    (B) Remove the following provision from the current incorporation 
by reference: OAR 340-028-0110, as effective October 6, 1995, except 
for Table 1, Table 2, and Table 3.

[FR Doc. 00-13070 Filed 5-24-00; 8:45 am]
BILLING CODE 6560-50-P