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

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

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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

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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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