[Federal Register Volume 59, Number 177 (Wednesday, September 14, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-22721] [[Page Unknown]] [Federal Register: September 14, 1994] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [AD-FRL-5070-3] Clean Air Act Proposed Interim Approval, or in the Alternative Proposed Disapproval, of Operating Permits Program; Oregon Department of Environmental Quality, Lane Regional Air Pollution Authority AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed interim approval. ----------------------------------------------------------------------- SUMMARY: EPA proposes interim approval of the Operating Permits Programs submitted by the Oregon Department of Environmental Quality (ODEQ) and Lane Regional Air Pollution Authority (LRAPA) for the purpose of complying with Federal requirements which mandate that States develop, and submit to EPA, programs for issuing operating permits to all major stationary sources, and to certain other sources, provided certain proposed revisions to Oregon rules are 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 proposes disapproval of the Oregon programs if the proposed revisions are not adopted and submitted prior to the statutory deadline. DATES: Comments on this proposed action must be received in writing by October 14, 1994. ADDRESSES: Comments should be addressed to Anne Dalrymple at the Region 10 address indicated. Copies of the State's submittal and other supporting information used in developing the proposed action are available for inspection during normal business hours at the following location: U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. FOR FURTHER INFORMATION CONTACT: Anne Dalrymple, (206) 553-0199. SUPPLEMENTARY INFORMATION: I. Background and Purpose A. Background As required under title V of the Clean Air Act (Act) as amended (1990), EPA promulgated rules defining the minimum elements of an approvable State operating permits program and the corresponding standards and procedures by which the EPA will approve, oversee, and withdraw approval of State operating permits programs (see 57 FR 32250 (July 21, 1992)). These rules are codified at title 40 Code of Federal Regulations (CFR) part 70. Title V requires States to develop, and submit to EPA, programs for issuing these operating permits to all major stationary sources and to certain other sources. The Act requires that States develop and submit these programs to EPA by November 15, 1993, and that EPA approve or disapprove each program within one year after receiving the submittal. The EPA's program review occurs pursuant to section 502 of the Act and part 70 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. B. Federal Oversight and Sanctions The EPA must apply sanctions to a State for which 18 months have passed since EPA disapproved the program. In addition, discretionary sanctions may be applied any time during the 18-month period following the date required for program submittal or program revision. If the State has no approved program 2 years after the date required for submission of the program, EPA will impose additional sanctions, where applicable, and EPA must promulgate, administer, and enforce a Federal permits program for the State. The EPA has the authority to collect reasonable fees from the permittees to cover the costs of administering the program. II. Proposed Action and Implications A. Analysis of State Submission 1. Support Materials The program submitted by the State of Oregon includes submissions by ODEQ, LRAPA and the Oregon Attorney General. Collectively, these submissions meet the requirements of 40 CFR part 70, Sec. 70.4 for complete program submittal including a letter of submittal from Oregon's Governor requesting approval, complete program descriptions, the legal opinions of the Attorney General and the independent legal counsel for LRAPA, and fully adopted implementing regulations. An implementation agreement is currently being developed between the Oregon agencies and EPA. The Oregon state operating permit regulations found within the Oregon Administrative Rules (OAR), Chapter 340, Division 28, including proposed rule revisions, and the authorizing statutes substantially meet the requirements of 40 CFR part 70, Sec. Sec. 70.2 and 70.3 for applicability, Sec. Sec. 70.4, 70.5, and 70.6 for permit content including operational flexibility, Sec. 70.7 for public participation and minor permit modifications, Sec. 70.8 for permit review by EPA and affected States, Sec. 70.5 for criteria which define insignificant activities, Sec. 70.11 for requirements for enforcement authority, and Sec. 70.5 for complete application forms. The full program submittal, the proposed revisions to OAR Chapter 340, Division 28, and the Technical Support Document are available for review for more detailed information. 2. Regulations and Program Implementation a. Program Implementation The Oregon 1991 Legislature enacted Oregon Revised Statute (ORS) 468A.300-330, which gave ODEQ authority to promulgate regulations establishing a title V program, to collect interim fees and to develop a Small Business Assistance Program. The 1993 Legislature also passed statutes enhancing civil and criminal enforcement authority (Senate Bill 912) and authorizing collection of emissions fees to fully fund the title V program (Senate Bill 86). The Oregon Environmental Quality Commission (EQC) adopted rules implementing the title V program which are published at OAR Chapter 340, Division 28 (Stationary Source Air Pollution Control and Permitting Procedures), and OAR Chapter 340, Division 32 (Hazardous Air Pollutants), and became effective September 24, 1993. On July 11, 1994, ODEQ proposed for public comment revisions to OAR Chapter 340, Division 28. ODEQ has informed EPA that final rule revisions will be submitted to the EQC for consideration on October 21, 1994, and if adopted, would be submitted to EPA as a revision to Oregon's current program prior to EPA's statutory deadline for acting on Oregon's title V submittal. b. Scope of the Program ODEQ will be implementing Oregon's title V program throughout the State of Oregon, except for Lane County. ODEQ will implement the title V program under the following authority: ORS 468 et seq. and ORS 468A et seq., OAR Chapter 340, Division 28 (Stationary Source Air Pollution Control and Permitting Procedures), and OAR Chapter 340, Division 32 (Hazardous Air Pollutants). OAR Chapter 340, Division 28 contains regulations pertaining to both title V and non-title V sources. Therefore, this notice proposes to approve certain regulations within Division 28 as part of Oregon's title V program. The Technical Support Document identifies the regulations approved in this rulemaking. The remainder of Division 28 will be approved or disapproved as part of the Oregon State Implementation Plan in a separate rulemaking. As explained more fully below, EPA intends to approve portions of OAR Chapter 340 Division 32 in a separate Federal Register notice under section 112(l) of the Act. LRAPA will be the local title V permitting authority with jurisdiction over title V sources in Lane County, Oregon. ORS 468A.135 gives LRAPA authority to enforce Oregon's title V rules or adopt their own more stringent rules. LRAPA has not adopted its own title V rules, so it will enforce OAR 340-28 et seq. The Oregon permitting authorities have not made an affirmative showing of legal authority to regulate sources within the exterior boundaries of Indian Reservations in Oregon under the Clean Air Act. Therefore, interim approval of the Oregon operating permits programs will not extend to lands within the exterior boundaries of Indian Reservations.1 Title V sources located within the exterior boundaries of Indian Reservations in Oregon will be subject to the Federal operating permit program, to be promulgated at 40 CFR part 71, or subject to the operating program of any Tribe delegated such authority under section 301(d) of the Act. --------------------------------------------------------------------------- \1\This is not a determination that the Oregon permitting authorities do not have jurisdiction over sources within the exterior boundaries of Indian Reservations in Oregon. However, no such showing has been made at the time of this proposed notice. --------------------------------------------------------------------------- c. Variance Provisions ORS 468A.075 allows the Oregon Environmental Quality Commission (EQC) discretion to grant relief from compliance with State rules and regulations under certain conditions. Section 23-005 of LRAPA's rules contains a variance provision modeled closely after ORS 468A.075. The EPA regards ORS 468A.075 and LRAPA section 23-005 as wholly external to the program submitted for approval under part 70, and consequently proposes to take no action on these provisions of State and local law in this rulemaking. The EPA does not recognize the ability of a permitting authority to grant relief from the duty to comply with a federally enforceable part 70 permit, except where such relief is granted through procedures allowed by part 70. In other words, a variance does not affect the title V source until the title V permit is modified pursuant to the procedures in part 70. EPA reserves the right the enforce the terms of the part 70 permit where the permitting authority purports to grant relief from the duty to comply with a part 70 permit in a manner inconsistent with part 70 procedures. A part 70 permit may also incorporate, via part 70 permit issuance or modification procedures, the schedule of compliance set forth in a variance. However, EPA reserves the right to pursue enforcement of applicable requirements notwithstanding the existence of a compliance schedule in a permit to operate. This is consistent with 40 CFR 70.5(c)(8)(iii)(C), which states that a schedule of compliance ``shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based.'' d. Environmental Audit Report Privilege ORS 468.963 contains a limited ``Environmental Audit Report Privilege,'' which prevents, with certain exceptions, the admission of voluntary, internal environmental audit reports as evidence in any civil, criminal or administrative proceeding. It is not clear at this time what effect, if any, this privilege might have on title V enforcement actions. EPA is currently establishing a national position regarding EPA approval of environmental programs in States which adopt statutes that confer an evidentiary privilege for environmental audit reports. The EPA regards ORS 468.963 as wholly external to the program submitted for approval under part 70, and consequently proposes to take no action on this provision of State law in this rulemaking. If, during program implementation, EPA determines that this provisions interferes with Oregon's enforcement responsibilities under part 70, EPA will consider this grounds for withdrawing program approval in accordance with 40 CFR 70.10(c). 3. Permit Fee Demonstration Program costs for ODEQ and LRAPA will be covered through a three- part fee system composed of an emission fee, a base fee and user fees. The emission fee is set at $25 per ton, adjusted for inflation by the percentage, if any, by which the Consumer Price Index (CPI) exceeds the CPI for the calendar year 1989 if the Oregon EQC determines by rule the increased fee is necessary to cover all reasonable direct and indirect costs of implementing the Federal operating permit program. All sources subject to the title V program will also pay a base fee of $2,500 per year. User fees will be charged to sources to cover the costs of specific program activities requested by the source. ODEQ estimates that the total amount collected will be approximately $50 per ton and will exceed $4 million per year in the first year of program implementation. The Oregon submittal includes an adequate demonstration that the fees collected by each agency will cover the direct and indirect costs of implementing and enforcing the Federal operating permit program. Furthermore, each agency has committed in its submittal to review its fee schedule annually and to increase fees, as necessary, to reflect actual program implementation costs. 4. Provisions Implementing the Requirements of Other Titles of the Act a. Authority and Commitments for Section 112 Implementation Oregon permitting authorities are constitutionally prohibited from implementing or enforcing Federal applicable regulations, but must either adopt the Federal requirements as State regulations or include them in a State-issued permit pursuant to OAR 340-28-640(3). ODEQ and LRAPA have broad legal authority to adopt regulations necessary to implement any and all section 112 requirements and have adopted OAR Chapter 340, Division 32 rules in order to regulate the list of hazardous air pollutants (HAPs) under section 112(b). Division 32 requires the Environmental Quality Commission to adopt and enforce Maximum Achievable Control Technology (MACT) standards for major sources and Generally Achievable Control Technology (GACT) standards for area sources as they are promulgated by EPA. Division 32 also establishes a voluntary early reductions program for HAPs and contains accidental release provisions. EPA has determined that this broad statutory and regulatory authority is adequate for the Oregon permitting authorities to implement all section 112 requirements provided they expeditiously adopt appropriate implementing regulations as new Federal regulations are promulgated. EPA regards the commitments of the Oregon permitting authorities as an acknowledgement of their obligation to adopt regulations necessary to issue permits that assure compliance with section 112 applicable requirements. Should an Oregon permitting authority fail to adopt regulations necessary to maintain adequate legal authority to issue timely permits, or fail to include in permits pursuant to OAR 340-28-640(3) Federal applicable requirements that have not been adopted by ODEQ, EPA will consider this grounds for withdrawing approval of such permitting authority's program in accordance with the provisions of 40 CFR 70.10(c). For further discussion of this determination, please refer to April 13, 1993 guidance memorandum entitled ``Title V Program Approval Criteria for Section 112 Activities,'' signed by John Seitz. b. Implementation of Section 112(g) Upon Program Approval After the effective date of the Oregon operating permit programs, no new major source or major modification to an existing major source may be constructed unless it has been subject to a case-by-case determination of maximum achievable control technology (MACT) or offsets by a permitting authority pursuant to section 112(g) of the Federal Clean Air Act. The results of such case-by-case determination of MACT or offsets must be federally-enforceable by the time construction begins on the new source or modification. The Oregon permitting authorities have committed to adopting and submitting regulations which implement the requirements of section 112(g) of the Act as expeditiously as possible after EPA promulgates its regulations to implement section 112(g) of the Act. However, the EPA regulations, and hence the Oregon regulations, for implementing section 112(g) will not be adopted until some time after the effective date of the Oregon operating permits program. In order to allow the continued construction of new major sources and major modifications after the effective date of the Oregon title V program, EPA has established a transition policy for permitting sources in the interim period between the effective date of a title V operating permits program and the adoption of State rules implementing EPA's forthcoming section 112(g) regulations. Because EPA has not yet promulgated regulations to implement section 112(g) of the Act, EPA has determined it has authority to approve many existing State air toxics permitting regulations under section 112(l) of the Act solely for the purpose of implementing section 112(g) during this interim period. Oregon administrative rules Chapter 340, Division 32 contain air toxics permitting regulations which require new and modified major sources of hazardous air pollutants to obtain a permit prior to construction. Furthermore, these regulations require such new and modified major sources to utilize MACT. On August 3, 1994, Oregon submitted these rules to EPA for approval as an interim permitting program for implementing section 112(g) of the Act. Approval by EPA of these rules would provide Oregon permitting authorities with a mechanism for establishing federally-enforceable emission limitations and other restrictions to implement section 112(g). EPA intends to propose approval of the Oregon air toxics permitting rules in the near future in a separate rulemaking pursuant to section 112(l) of the Act. The scope of the proposed approval of Oregon's air toxic permitting regulations will be narrowly limited to section 112(g) and will not confer or imply approval for purposes of any other provision under the Act. Furthermore, such approval would be for an interim period only, and would require the Oregon permitting authorities to expeditiously adopt regulations consistent with regulations promulgated by EPA to implement section 112(g) of the Act. c. Program for Delegation of Section 112 Standards State law prohibits Oregon permitting authorities from adopting prospective Federal regulations. As such, EPA can only delegate section 112 standards to the State after such standards are either adopted as State regulations or included in State-issued permits pursuant to OAR 340-28-640(3). As noted above, the Oregon permitting authorities submitted OAR Chapter 340, Division 32 regulations (including regulations which adopt all of the current applicable National Emission Standards for Hazardous Air Pollutants in 40 CFR part 612) to EPA for approval under section 112(l) of the Act on August 3, 1994. Since the adopted regulations and the requests for approval include additional sources to those subject to title V, EPA will be acting on these requests under separate rulemaking pursuant to the provisions of 40 CFR part 63. --------------------------------------------------------------------------- \2\ The Oregon Environmental Quality Council has adopted subpart I of the radionuclide NESHAP as applicable only to sources subject to title V. ODEQ and LRAPA will only implement and enforce this NESHAP for sources required to have title V permits pursuant to OAR 340-28-2100, et seq. --------------------------------------------------------------------------- d. Commitments for Title IV Implementation ODEQ and LRAPA each have made commitments to adopt and submit to EPA by January 1, 1995 a program implementing title IV of the Federal Clean Air Act. This commitment is supported by adequate legal authority (see ORS 468.020, ORS 468A.310, and OAR 340-28-2100(2)). B. Options for Program Approval and Implications 1. Proposed Interim Approval EPA is proposing to grant interim approval to the operating permits program submitted by the ODEQ and LRAPA on November 15, 1993. If promulgated, the ODEQ and LRAPA must make the following changes to receive full approval: a. Small Business Assistance Program Provisions The statute establishing Oregon's Small Business Assistance (SBA) Program, ORS 468A.330, also addresses enforcement against sources for violations observed during on-site technical assistance visits. ORS 468A.330(4)(a) provides 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.'3' Oregon's statute appears not simply to give a source an opportunity to correct a violation observed during a technical assistance visit before being subject to enforcement action, but rather appears to protect the source from followup inspections or enforcement activities that result from observations made during a technical assistance visit. In that respect, ORS 468A.330(4)(a) appears to be inconsistent with the enforcement responsibilities of 40 CFR 70.11(a)(3). --------------------------------------------------------------------------- \3\The statute does not prohibit enforcement actions if there is reasonable cause to believe that violation causes a clear and immediate danger to public health or safety or the environment. In order to obtain full approval, Oregon must ensure that no title V source, whether a major source or a minor source, will be absolutely immune from inspections and enforcement actions resulting from technical assistance visits. Interim approval is possible, however, because ORS 468.140 provides Oregon with general civil penalty authority that is in all other respects consistent with the --------------------------------------------------------------------------- requirements of 40 CFR 70.11(a)(3) (see 40 CFR 70.4(d)(3)(vii)). b. Necessary Criminal Authority i. 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 statute. This affirmative defense appears to be broader than the affirmative defense under part 70 for emissions in excess of a technology-based emissions limitation caused by an ``emergency'' (see 40 CFR 70.6(g)). For example, 40 CFR 70.6(g) requires a source to prove that excess emissions were not caused by improperly designed control equipment, lack of preventative maintenance, careless or improper operation or operator error. Under ORS 468.959, however, a source is not required to make a similar showing in order to claim the affirmative defense of excess emissions due to a ``bypass.'' ORS 468.959 also does not provide that the burden of proving that an upset or bypass occurred is on the violator. Oregon must ensure that this statute is consistent with 40 CFR 70.6(g). ii. Criminal Liability of Corporations ORS 161.170 addresses the extent to which a corporation can be subject to criminal liability. Under that statute, a corporation is subject to criminal liability only in one of three circumstances: (1) The conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of employment and on behalf of the corporation and the offense is a misdemeanor or a violation or the offense is one defined by a statute that clearly indicates a legislative intent to impose criminal liability on a corporation; (2) the conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or (3) the conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or knowingly tolerated by the board of directors or by a high managerial agent acting within the scope of employment and in behalf of the corporation. The first two circumstances appear to be inapplicable in the case of statutes which impose criminal liability for knowing air violations, because these offenses are felonies and do not involve the discharge of a specific duty of affirmative performance imposed on corporations by law. A corporation could be subject to criminal liability under the third category, but only if the board of directors or a high managerial agent ``engaged in, authorized, solicited, requested, commanded or knowingly tolerated'' the conduct constituting the offense. Part 70 requires that the burden of proof and degree of knowledge or intent required under State law for civil and criminal liability be no greater than that required for civil and criminal liability under the Clean Air Act (see 40 CFR 70.11(b)). Under the Clean Air Act, the government must prove only that the crime was committed by an employee of the corporation and the employee at that time was performing that employee's duties for the corporation, even though the acts charged may not have been specifically authorized by the corporation. See United States v. Hilton Hotels Corp., 467 F. 2d 1000 (9th Cir. 1973); United States v. Twentieth Century Fox Film Corp., 882 F. Supp. 656, 660 (2nd Cir., 1989); United States v. Cadillac Overall Supply Co., 568 F. 2d 1078, 1090 (5th Cir. 1978). By requiring the State to prove that the board of directors or a high managerial agent ``engaged in, authorized, solicited, requested, commanded or knowingly tolerated'' the conduct constituting the offense, Oregon law appears to impose both a higher degree of knowledge or intent (at a minimum, the State must prove ``knowing toleration'' by the board or a high managerial agent) and a higher burden of proof (the State must prove the additional element of participation or knowing toleration by the board or high managerial agent). Oregon must ensure that the degree of knowledge or intent and the burden of proof required for imposing criminal liability on a corporation in Oregon do not exceed that required for imposing criminal liability under the Clean Air Act. c. Definition of Title I Modification OAR 340-28-110(118) defines ``Title I modification'' in such a was as to only include ``major modifications'' subject to parts C and D of title I of the Act, changes subject to section 111 of the Act, and modifications under section 112 of the Act. EPA believes the phrase ``modification under any provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) is best interpreted to mean any change at a source that would trigger permitting authority review under regulations approved or promulgated under title I of the Act. This would include State preconstruction review programs approved by EPA as part of the State implementation plan (SIP) under section 110(a)(2)(C) of the Act and regulations addressing source changes that trigger National Emission Standards for Hazardous Air Pollutants (NESHAP) established pursuant to section 112 of the Act prior to the 1990 amendments. Therefore, EPA proposes that, to receive full approval, Oregon must revise OAR 340-28-110(118) to include any determination established through a minor source pre-construction permit as well as changes reviewed under 40 CFR 61.15. EPA expects to revise its criteria for interim approval in 40 CFR 70.4(d) prior to final action on this proposal to grant interim approval to Oregon so that interim approval may be granted to State programs like Oregon's that include a narrower definition of ``title I modification.'' As noted, EPA believes the better interpretation of ``title I modifications'' would preclude granting full approval to the Oregon program. However, in the proposal to revise part 70, EPA will be taking comment on whether the criteria in 40 CFR 70.7(e)(2)(i)(A), including the phrase ``modification under any provision of title I,'' should be interpreted in a manner that would allow changes reviewed under programs approved pursuant to section 110(a)(2)(C) of the Act and changes that trigger the application of NESHAP established prior to the 1990 Amendments to be eligible for processing through minor modification procedures. Should EPA adopt this alternative interpretation, the current definition of ``title I modification'' in the Oregon programs would be fully consistent with part 70. 2. Proposed Approval or, in the Alternative, Proposed Interim Approval In reviewing Oregon's title V submittal, EPA found several minor inconsistencies between the requirements of 40 CFR part 70 and Oregon's program. EPA also was unable to find in Oregon's program several minor authorities required by part 70. To rectify these deficiencies Oregon has proposed revisions to several provisions of OAR 340, Division 28. These revisions were proposed for public comment on July 11, 1994. ODEQ has advised EPA that final rule revisions will be submitted to the EQC for consideration on October 21, 1994, and if adopted, would be submitted to EPA as a revision to Oregon's current program prior to EPA's statutory deadline for acting on Oregon's title V submittal. If adopted without any substantial changes, these provisions of Oregon's revised rules will meet the requirements of part 70. EPA is therefore proposing to fully approve the Oregon program with respect to the provisions discussed in detail below, contingent upon the revisions being adopted and submitted without substantial changes from the proposed revisions. However, if any of the revisions are not adopted and submitted, then these items will also be a basis for interim approval, (i.e. in addition to the items referred to in section II.B.1 above.) In such event, the required changes must be adopted and submitted prior to the expiration of the interim approval period. In accordance with 40 CFR 70.4(e)(2), if the adopted revisions are substantially different from what has been proposed, EPA will consider the submittal to represent a material change to the program and shall extend the review period accordingly in order to repropose action on the Oregon title V program. a. Timeframe for Acting on Early Reduction Applications 40 CFR 70.4(b)(11)(iii) requires a permitting authority to act on any permit application that includes an early reduction application under section 112(i)(5) of the Act within nine months of receipt of a complete application. The current Oregon regulations do not contain such a provision, but rather, would allow the permitting authority the full 18 months to act on such an application. The proposed revision to OAR 340-28-2200(1)(d) corrects this deficiency. EPA therefore proposes to fully approve this provision of the Oregon program contingent upon the final adoption and submission of the revised OAR 340-28-2200(1)(d). b. Definition of ``Prompt'' for Reporting of Deviations 40 CFR 70.6(a)(3)(iii)(B) requires the permitting authority to define ``prompt'' in its permit program regulations for purposes of reporting deviation from permit requirements. The current Oregon regulations only require ``prompt'' reporting, but do not define what would be considered to be ``prompt.'' The proposed revision to OAR 340- 28-2130(3)(c)(B) corrects this deficiency by defining prompt to be within seven days of the deviation. c. Criteria for General Permits 40 CFR 70.6(d) allows permitting authorities to issue a ``general permit'' covering numerous similar sources. The current Oregon regulations purport to allow the Oregon permitting authorities to issue general permits covering any and all source categories, but only include adequate criteria for issuing permits to existing major sources of hazardous air pollutants. Oregon has indicated that it was the State's intent to currently limit its program to just such sources. The proposed revision to OAR 340-28-2170(a) corrects this deficiency by clarifying that ``general permits'' can only be issued to certain categories of major sources of hazardous air pollutants. d. ''Anti-Tampering'' Provisions State law does not currently demonstrate necessary criminal authority to recover fines against any person who knowingly renders inaccurate any required monitoring device or method as required by under 40 CFR 70.11(a)(3)(iii). However, Oregon has proposed a new provision at OAR 340-28-2130(3)(a)(E) which, if adopted, would prohibit any person from rendering inaccurate any required monitoring device or method. Under ORS 468.936, a knowing violation of any applicable requirement, including proposed OAR 340-28-2130(3)(a)(E), would be subject to a criminal fine in the maximum amount of not less that $10,000 per day per violation. 3. Proposed Approval or, in the Alternative, Proposed Disapproval In reviewing Oregon's title V submittal, EPA found several significant inconsistencies between the requirements of 40 CFR part 70 and Oregon's program. To rectify these deficiencies Oregon has proposed revisions to several provisions of OAR 340, Division 28. These revisions were proposed for public comment on July 11, 1994. ODEQ has advised EPA that final rule revisions will be submitted to the EQC for consideration on October 21, 1994, and if adopted, would be submitted to EPA as a revision to Oregon's current program prior to EPA's statutory deadline for acting on Oregon's title V submittal. If adopted without any substantial changes, these provisions of Oregon's revised rules will meet the requirements of part 70. EPA is therefore proposing to fully approve the Oregon program with respect to the provisions discussed in detail below, contingent upon the revisions being adopted and submitted without substantial changes from the proposed revisions. However, if any of the revisions are not adopted and submitted, EPA proposes to disapprove Oregon's program in the final action. In accordance with 40 CFR 70.4(e)(2), if the adopted revisions are substantially different than what has been proposed, EPA will consider the submittal to represent a material change to the program and shall extend the review period accordingly in order to repropose action on the Oregon title V program. a. Categorically Insignificant Activities The current Oregon definition of ``categorically insignificant activities,'' OAR 340-28-110(15), contains broad descriptions of activities for which complete information need not be included in title V permit applications. However, many of these activities are subject to applicable requirements and the effect of the definition would be to prevent proper incorporation of applicable requirements into title V permits. EPA, therefore, believes that it would have to disapprove the Oregon title V program as it currently exists because the State could not ensure that permits would include all requirements applicable to emission units at a title V source. 40 CFR 70.5(c) requires permit applications to include sufficient information to determine the applicability of, or to impose, any applicable requirement. The title V permit must ensure that the source complies with all applicable requirements, and, as such, the owner or operator cannot omit any information from a permit application that is necessary to determine or impose an applicable requirement. The Oregon permit application rule, OAR 340-28-2120(3)(c)(E), requires the application to list all categorically insignificant activities but does not require the source to provide sufficient information to determine whether there are requirements applicable to any of the listed activities. Therefore, the definition of ``categorically insignificant activities'' must either be changed to insure that the rule does not apply to any activity for which there are applicable requirements or the list of ``categorically insignificant activities'' must be revised so that it does not include an activity which is subject to an applicable requirement, or the Oregon rules must require the application to provide sufficient information to determine whether there are requirements applicable to any of the listed activities and the permit will specifically include the regulations applicable to categorically insignificant activities. In response to EPA's preliminary review and findings with respect to this issue, Oregon has proposed revisions to its definition of ``categorically insignificant activities'' and to OAR 340-28-2110(7) and 340-28-2120(3). Proposed OAR 340-28-2110(7) requires that all emissions from insignificant activities, including categorically insignificant activities and aggregate insignificant emissions, must be included in the determination of the applicability of any requirement. Proposed OAR 340-28-2120(3) clarifies that an application may not omit information needed to determine the applicability of, or to impose, any applicable requirement, including those requirements that apply to categorically insignificant activities. Therefore, under the proposed revisions, all applicable requirements will be included in the permit, regardless of whether an activity is classified as a ``categorically insignificant activity.'' The proposed revision to the definition of ``categorically insignificant activities,'' plus changes to the provisions for permit applications and applicability, and the existing permit content provisions, together meet the requirements of part 70. EPA is therefore proposing to fully approve the Oregon program with respect to this issue if the revised definition of ``categorically insignificant activities'' and proposed revisions to OAR 340-28-2110(7) and OAR 340- 28-2120(3) are adopted and submitted without substantial changes from the proposed revisions. The Oregon proposed rule revisions also delete the definitions of ``Exempt Insignificant Mixture Usage,'' OAR 340-28-110(41), ``Non- exempt Insignificant Mixture Usage,'' OAR 340-28-110(63), and ``Insignificant Mixture,'' OAR 340-28-110(53) and references to these terms throughout OAR Division 28. Proposed OAR 340-28-2110(3)(c)(E) revises and replaces the concept of ``insignificant mixtures,'' which is to be deleted by the proposed revision to OAR Division 28. EPA is therefore proposing to fully approve the Oregon program if these proposed revisions are adopted and submitted without substantial changes. b. Use of Title I Permits to Modify Title V Permits Section 502(b)(10) of the Act, 40 CFR 70.4(b)(12), (14) and (15) and 40 CFR 70.7(a)(1) require that, with certain exceptions, the permit revision provisions of the approved permitting program be used to modify or change the provisions of a title V permit. However, current Oregon regulations allow a permitting authority to effectively change the provisions of a title V permit using the minor new source review provisions of the state implementation plan. These new source review provisions cannot substitute for the title V permit revision process because they do not provide for adequate public notice, affected State review, or an opportunity for EPA review and objection as required by 40 CFR 70.7(a)(1). EPA believes that it would have to disapprove the current Oregon permit program because the Oregon regulations do not ensure that any new or modified source operates in compliance with its title V permit until the title V permit is revised in accordance with the procedures for permit modifications. The proposed revision to the current OAR 340-28-2110(7) (renumbered to OAR 340-28-2110(8)) corrects this deficiency. c. Administrative Permit Amendments As discussed above, only the permit revision provisions of the approved permitting program can be used to modify or change the provisions of a title V permit. However, the current Oregon regulations, OAR 340-28-2230(1)(j), allow for the use of administrative amendments to change the applicable requirements included in a permit. Again, EPA believes that it would have to disapprove the current Oregon program because it would allow permitting authorities to change the content of a title V permit without following adequate procedures. The proposed revision to 340-28-2230(1) deletes subparagraph (j) which corrects this deficiency. 4. Proposed Approval or, in the Alternative, Proposed Disapproval Section 502(a) of the Act allows EPA to exempt, by rule, one or more source categories from the requirements of title V, provided that EPA may not exempt any major source from such requirements. 40 CFR 70.3(b)(1) allows states to temporarily exempt from the requirements of title V certain categories of sources which are not major sources. The current Oregon regulations are consistent with the requirements of 40 CFR 70.3(b)(1) and EPA is proposing to fully approve these provisions of the Oregon program. Oregon has proposed to adopt ``prohibitory rules'' for several source categories which, when approved into the Oregon state implementation plan, would establish federally-enforceable limits on a source's potential to emit. Sources which choose to be subject to one of these ``prohibitory rules'' would no longer qualify as a major source and would therefore not be subject to the requirements of title V. In conjunction with the proposal to adopt these ``prohibitory rules,'' Oregon has proposed revisions to the applicability provisions of its permit program (OAR 340-28-2110(4)) to add additional source category exemptions. These revisions were proposed for public comment on July 11, 1994. ODEQ has advised EPA that final rule revisions will be submitted to the EQC for consideration on October 21, 1994, and if adopted, would be submitted to EPA as a revision to Oregon's current program prior to EPA's statutory deadline for acting on Oregon's title V submittal. EPA believes that, if the proposed revisions are adopted, it would have to disapprove the Oregon program because it would inappropriately exempt certain title V sources from the requirements of title V. These exemptions exceed those allowed by EPA's regulations because they would exempt four categories of sources from the requirements of title V even if EPA does not approve the ``prohibitory rules'' so as to make them federally enforceable. Furthermore, the proposed revisions would exempt sources within the four categories even if such sources were subject to standards promulgated pursuant to sections 111 or 112 of the Act. As discussed above, if these proposed revisions are adopted, the provisions of Oregon's revised rules will fail to meet the requirements of part 70. EPA is therefore proposing, as an alternative to full approval of the current rules, to disapprove the Oregon program with respect to these provisions if the revisions are adopted and submitted as proposed. If revisions to the applicability provisions of the Oregon rules are adopted but are substantially different than what has been proposed, EPA will consider the submittal to represent a material change to the program and shall extend the review period accordingly in order to repropose action on the Oregon title V program. Interim approval of the Oregon operating permit programs, which may not be renewed, extends for a period of up to two years. During the interim approval period, the State is protected from sanctions for failure to have a program, and EPA is not obligated to promulgate a Federal permits program in the State. Permits issued under a program with interim approval have full standing with respect to part 70. In addition, the one year deadline for submittal of permit applications by subject sources and the three year time period for processing all initial permit applications begins upon publication of the final action on this proposed interim approval. The EPA is proposing to disapprove in the alternative the operating permits program submitted by the ODEQ and LRAPA. If promulgated, this disapproval would constitute a disapproval under section 502(d) of the Act (see generally 57 FR 32253-54). As provided under section 502(d)(1) of the Act, Oregon would have up to 180 days from the date of EPA's notification of disapproval to the Governor of Oregon to revise and resubmit the program. III. Administrative Requirements A. Request for Public Comments The EPA is requesting comments on all aspects of this proposed interim approval and, in the alternative, proposed disapproval. Copies of the State's submittal and other information relied upon for this action are contained in a docket maintained at the EPA Regional Office. The docket is a file of information submitted to, or otherwise considered by, EPA in the development of this proposed rulemaking. The principal purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the rulemaking process; and (2) to serve as the record in case of judicial review. The EPA will consider any comments received by October 14, 1994. B. Executive Order 12866 The Office of Management and Budget has exempted this regulatory action from Executive Order 12866 review. C. Regulatory Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysisassessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. Operating permit program approvals under section 502(g) of the Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the Federal operating permits program approval does not impose any new requirements, I certify that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Act forbids EPA to base its actions concerning operating permits programs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2). If EPA's final action is a disapproval, it will not affect any existing State requirements applicable to small entities. Federal disapproval of the State submittal does not affect its State- enforceability. Moreover, EPA's disapproval of the submittal does not impose a new Federal requirement. Therefore, EPA certifies that any proposed disapproval action would not have a significant impact on a substantial number of small entities because it does not remove existing State requirements nor does it substitute a new Federal requirement. IV. Miscellaneous A. Proposed Interim Approval Proposal for interim approval of the program. List of Subjects in 40 CFR Part 70 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401-7671q. Dated: September 1, 1994. Jane S. Moore, Acting Regional Administrator. [FR Doc. 94-22721 Filed 9-13-94; 8:45 am] BILLING CODE 6560-50-F