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

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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.

* * * * *

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

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