[Federal Register Volume 67, Number 111 (Monday, June 10, 2002)]
[Rules and Regulations]
[Pages 39630-39632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13972]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-7223-5]


Clean Air Act Approval of Revisions to Operating Permits Program 
in Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving, as a revision to Oregon's title V air 
operating permits program, a 1999 statute addressing the State's 
requirements for judicial standing to challenge State-issued title V 
permits. In a Notice of Deficiency published on November 30, 1998 (63 
FR 65783), EPA notified Oregon of EPA's finding that the State's 
requirements for judicial standing did not meet minimum Federal 
requirements for program approval. This program revision resolves the 
deficiency identified in the Notice of Deficiency. EPA is also 
approving, as a revision to Oregon's title V air operating permits 
program, changes to Oregon's title V regulations made in 1999 that 
reorganize and renumber the regulations and increase title V fees.

DATES: This direct final rule will be effective August 9, 2002, unless 
EPA receives adverse comment by July 10, 2002. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Written comments should be mailed to Denise Baker, 
Environmental Protection Specialist, Office of Air Quality, Mailcode 
OAQ-107, U.S. Environmental Protection Agency, Region 10, 1200 Sixth 
Avenue, Seattle, Washington 98101. Copies of Oregon's submittal, and 
other supporting information used in developing this action, are 
available for inspection during normal business hours at the U.S. 
Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle, 
Washington 98101. Interested persons wanting to examine these documents 
should make an appointment with the appropriate office at least 24 
hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Denise Baker, Office of Air Quality, 
Mailcode, OAQ-107, U.S. Environmental Protection Agency, Region 10, 
1200 Sixth Avenue, Seattle, Washington 98101, (206) 553-8087.

SUPPLEMENTARY INFORMATION:

I. Background

    The Clean Air Act (CAA) Amendments of 1990 required all State and 
local permitting authorities to develop operating permits programs that 
meet the requirements of 40 CFR part 70. EPA gave full approval to 
Oregon's title V operating permits program in 1995. See 60 FR 50106 
(September 28, 1995).

A. Representational Standing

    Among the requirements that States must meet for full approval of a 
title V operating permits program 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 part 70 regulations. 40 
CFR 70.4(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. See Commonwealth of Virginia v. Browner, 
80 F.3rd 869 (4th Cir., 1996) (holding EPA's interpretation as ``both 
authorized by Congress and reasonable'').
    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.''
    At the time EPA gave Oregon full approval to Oregon's operating 
permits program in 1995, EPA had determined that Oregon's requirements 
for judicial review met the requirements of title V and part 70 with 
respect to 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 Oregon 
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, including title V permits. 
Based on this 1996 judicial decision restricting access to judicial 
review of title V permits, EPA determined that Oregon's program no 
longer met the program approval requirements of title V and 40 CFR part 
70.
    Part 70 provides that EPA may withdraw a part 70 program approval, 
in whole or in part, whenever the approved program no longer complies 
with the requirements of part 70 and the permitting authority fails to 
take corrective action. 40 CFR 70.10(c)(1). This section goes on to 
list a number of potential bases for program withdrawal, including the 
case where a court has struck down or limited State authorities to 
administer the program. 40 CFR 70.10(c)(1)(I)(B). Section 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 EPA and that the document be published in 
the Federal Register. 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). 
Section 70.10(b)(3) provides that if a State has not corrected the 
deficiency within 18 months of the finding of deficiency, EPA will 
apply the sanctions under section 179(b) of the Act, in accordance with 
section 179(a) of the Act. Upon EPA action, the sanctions will go into 
effect unless the State has corrected the deficiencies identified in 
the notice within 18 months.\1\ In addition, section 70.10(b)(4) 
provides that, if the State has not corrected the deficiency within 18 
months after the date of notice of deficiency, EPA must promulgate,

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administer, and enforce a whole or partial program within 2 years of 
the date of the finding.
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    \1\ EPA is developing an Order of Sanctions rule to determine 
which sanction applies at the end of this 18 month period.
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    In a Notice of Deficiency published on November 30, 1998 (63 FR 
65783), EPA notified Oregon of EPA's finding that the State's 
requirements for judicial standing did not meet minimum Federal 
requirements for program approval. In response to the Notice of 
Deficiency, the Oregon Legislature enacted Oregon Laws 1999, chapter 
511 (HB 2180), during the 1999 legislative session. That provision, 
codified at Oregon Revised Statute (ORS) 468.067, states that an 
association or organization has standing to seek judicial review of any 
final order issued in a title V permit proceeding if: (a) one or more 
members is adversely affected or aggrieved by the order; (b) the 
interests that the association or organization seeks to protect are 
germane to the purpose of the group; and (c) the nature of the claim 
and requested relief do not require that the adversely affected or 
aggrieved members of the association or organization participate in the 
judicial review proceedings. Oregon submitted this statute as a 
revision to its title V program on March 15, 2000, less than 16 months 
after EPA issued the Notice of Deficiency. The qualifications in the 
Oregon statute parallel Federal law on representational standing. 
Therefore, EPA has determined that the statutory change meets the 
requirements of title V and part 70 and adequately addresses the 
deficiency identified in the Notice of Deficiency.

B. 1999 Reorganization and Renumbering of Title V Regulations

    In its March 15, 2000, submittal, Oregon also transmitted to EPA 
revisions to Oregon's air quality regulations promulgated in 1999 
relating to Oregon's title V program and asked that EPA approve these 
revisions as a revision to Oregon's title V program. The 1999 revisions 
to Oregon's regulations reorganize and renumber all of Oregon's air 
quality regulations in order to increase the efficiency of Oregon's air 
quality permitting and compliance process. These revisions are 
nonsubstantive in nature. EPA is therefore proposing to approve these 
revisions as a revision to Oregon's title V air operating permits 
program.

C. 1999 Changes to Title V Fee Provisions

    Oregon's March 15, 2000, submittal also transmitted to EPA 
revisions to Oregon's air quality regulations promulgated in 1999 
relating to fees for title V sources. The 1999 revisions increase 
Oregon's title V operating permit program fees by the Consumer Price 
Index. In addition, at the time EPA granted Oregon full approval, only 
major sources were required to obtain title V permits, and Oregon 
therefore required only major sources to pay title V fees. Since that 
time, certain non-major sources (landfills) are required to obtain 
title V permits. Oregon has therefore revised its fee rules to allow 
Oregon to assess title V fees to all sources required to obtain title V 
permits. EPA is approving these 1999 revisions to Oregon's rules for 
assessing title V fees as meeting the requirements of part 70.

D. Oregon Environmental Audit Statute

    EPA did not initially take action on Oregon's March 15, 2000, 
submittal because of EPA's concern that Oregon's Audit Privilege Act, 
Oregon Revised Statute 468.963 (1993), interfered with Oregon's ability 
to meet federal requirements for approval of EPA programs, including 
title V. During the 2001 Legislative Session, Oregon Legislature passed 
House Bill 3536, which amended ORS 468.963 to ensure that Audit 
Privilege Law does not apply to criminal investigations or proceedings. 
These statutory amendments became effective January 1, 2002. With these 
amendments, the Oregon Audit Privilege law no longer interferes with 
the State's ability to meet the Federal requirements of title V.

II. Final Action

    EPA is approving, as a revision to Oregon's title V air operating 
permits program, ORS 468.067, a 1999 statute addressing the State's 
requirements for representational standing to challenge State-issued 
title V permits in judicial proceedings. EPA has determined that the 
statutory change made by Oregon in 1999 meets the representational 
standing requirements of title V and part 70 and adequately addresses 
the deficiency identified in the Notice of Deficiency published on 
November 30, 1998 (63 FR 65783). EPA is also approving, as a revision 
to Oregon's title V air operating permits program, changes to Oregon's 
title V regulations made in 1999 that reorganize and renumber the 
regulations and increase title V fees.
    Consistent with EPA's action granting Oregon full approval, 60 FR 
50107, this approval does not extend to ``Indian Country'', as defined 
in 18 U.S.C. 151. See 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR 
42552, 42554 (August 18, 1994).

III. Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (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.). This rule does not contain any unfunded 
mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it approves pre-existing requirements under 
State law and does not impose any additional enforceable duties beyond 
that required by State law.
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This action also does not have Federalism 
implications because it 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, 
``Federalism'' (64 FR 43255, August 10, 1999). The action merely 
approves existing requirements under State law, and does not alter the 
relationship or the distribution of power and responsibilities between 
the State and the Federal government established in the Clean Air Act. 
This action, also, is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001), because it 
is not a significantly regulatory action under Executive Order 12866. 
This action will not impose any collection of information subject to 
the provisions of

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the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those 
previously approved and assigned OMB control number 2060-0243. For 
additional information concerning these requirements, see 40 CFR part 
70. An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    In reviewing State operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. 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 State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program 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.
    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 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).
    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 August 9, 2002. 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 CAA section 307(b)(2).

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: May 22, 2002.
Elbert Moore,
Acting Regional Administrator, Region 10.

    40 CFR 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. In appendix A to Part 70, the entry for Oregon is amended by 
revising paragraph (a) 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; revisions submitted on 
March 15, 2000; approval of revisions effective on August 9, 2002.
* * * * *

[FR Doc. 02-13972 Filed 6-7-02; 8:45 am]
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