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###### Environmental Protection Agency

          - 40 CFR Part 52 
          - [OR-77-7292-a; FRL-6582-9] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Direct final rule. 

# SUMMARY:

                        EPA Region 10 is approving Oregon's reasonably available control technology (RACT) rule amendments for volatile organic compounds (VOC) as revision to the state implementation plan (SIP). These amendments were submitted to EPA on December 7, 1998 and were adopted by the Oregon Environmental Quality Commission on September 17, 1998 to be effective on                               ( print page 29957)                            October 12, 1998. After publishing public notices in newspapers of general circulation, Oregon Department of Environmental Quality (ODEQ) held public hearings on July 15, 1998 in Corvallis, and on July 16, 1998 in Portland. The ODEQ did not receive any written or oral public comments affecting the proposed RACT rule amendments.                     

# DATES:

                        This direct final rule is effective on July 10, 2000 without further notice, unless EPA receives adverse comment by June 9, 2000. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the                         **Federal Register**                         and inform the public that the rule will not take effect.                     

# ADDRESSES:

Written comments must be submitted to Mr. Mahbubul Islam, Environmental Scientist, Office of Air Quality, EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101. Copies of the technical support document are available for public review at the EPA Region 10 office during normal business hours. Copies of documents relative to this action are available for public inspection during normal business hours at the following locations. The interested persons wishing to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. Oregon Department of Environmental Quality, Air Quality Division, 811 SW Sixth Avenue, Portland, OR 97204-1390. Telephone: (503) 229-5696. Documents which are incorporated by reference are available for public inspection at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 410 M Street, SW, Washington, DC 20460. 

# FOR FURTHER INFORMATION CONTACT:

Mr. Mahbubul Islam, Environmental Scientist, Office of Air Quality, EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101, Telephone: (206) 553-6985. 

# SUPPLEMENTARY INFORMATION:

## I. What Is RACT? 

RACT is the lowest emission limitation that a particular source or source category is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. The Portland ozone maintenance plan relies on RACT as a emission reduction strategy to maintain compliance with the standard for the next ten years. This rule addresses changes to RACT for existing sources of VOC's in Portland, Salem, and Medford areas. 

There are two types of RACT which are applicable to sources: categorical and source-specific. The categorical RACT applies to a group of sources which have similar operations. The non categorical or source-specific RACT is applicable to sources which do not fit into one of the established RACT categories but have potential to emit in excess of 100 ton VOC's per year before considering any add-on controls. 

## II. What Does This Rule Making Affect? 

This rule making is needed to change the applicability of non-categorical RACT which is based on the definition of potential to emit (PTE). The revised rule makes the Oregon's definition of PTE consistent with the federal definition. The PTE for a source is now defined as the maximum emission capacity of a stationary source based on its physical and operational design without any add-on controls. In April 1997, the ODEQ proposed and adopted this new definition of PTE as a temporary rule as a part of the Portland ozone maintenance plan. The current rule will make the temporary rule permanent. Prior to the temporary rule, credits were given for any add-on control technology when PTE was calculated to determine applicability of the RACT requirements. The new rule requires an analysis based on pre-control conditions. 

This rule approves a change in permit processing for the gasoline dispensing facilities. Currently, stage I and stage II permits are issued on an annual basis with annual fee collection. The new rule will allow permits to be issued for 10 years and fees to be collected on a biennial basis. This does not affect the requirements of the permit or the amount of permit fees, only the duration and frequency of collection. The change was necessary to reduce ODEQ's staff workload by decreasing the frequency of permit issuance and fee collection, and providing greater clarity and consistency in implementation. 

In this rule, the vapor balance requirement for stage I/II sources is changed from a throughput of 10,000 gallons (30 day rolling average) to a capacity of 1500 gallons. This change was needed to maintain consistency and keep sources from alternating from being subject to the rules to not being subject to the rules based on their monthly throughput. The change exempts existing small (less than 1500 gallon) tanks from the submerged fill and vapor balance requirements. The new tanks of the same size are exempt from the vapor balance requirement only. This change could in theory allow small facilities to avoid control requirements, but in reality sources having such a small capacity do not exist. Also, the changes are not a relaxation of the existing rules, because gas dispensing facilities that have monthly throughput in excess of 10,000 gallons also have storage tanks which are larger than 1500 gallons. Thus, the same control requirement that is currently subject to the 10,000 gallon throughput trigger will be subject to the 1500 gallon capacity trigger. 

This rule also contains a number of housekeeping, numbering and language changes, to reduce redundancy and ensure consistency. The revised language in the rules is intended to improve clarity and avoid confusion. The sections of the Oregon rules affected or modified in this rule making package are as follows: OAR 340-022-0100 through 340-022-0130; OAR 340-022-0170 through 340-022-0180; OAR 340-022-0300 through 340-022-0403; (RACT rules). 

## III. Administrative Requirements 

### Executive Orders

                    A. Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR                           ( print page 29958)                        19885, April 23, 1997), because it is not economically significant.                 

                    In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*).                 

                    The Congressional Review Act, 5 U.S.C. 801*et seq.,*                     as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the                     **Federal Register**                    . A major rule cannot take effect until 60 days after it is published in the                     **Federal Register**                    . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 10, 2000 unless EPA receives adverse written comments by July 9, 2000.                 

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 10, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) 

### B. Oregon Notice Provision 

During EPA's review of a SIP revision involving Oregon's statutory authority, a problem was detected which affected the enforceability of point source permit limitations. EPA determined that, because the five-day advance notice provision required by ORS 468.126(1) (1991) bars civil penalties from being imposed for certain permit violations, ORS 468 fails to provide the adequate enforcement authority that a state must demonstrate to obtain SIP approval, as specified in section 110 of the Clean Air Act and 40 CFR 51.230. Accordingly, the requirement to provide such notice would preclude federal approval of a section 110 SIP revision. 

To correct the problem the Governor of Oregon signed into law new legislation amending ORS 468.126 on September 3, 1993. This amendment added paragraph ORS 468.126(2)(e) which provides that the five-day advance notice required by ORS 468.126(1) does not apply if the notice requirement will disqualify a state program from federal approval or delegation. ODEQ responded to EPA's understanding of the application of ORS 468.126(2)(e) and agreed that, because federal statutory requirements preclude the use of the five-day advance notice provision, no advance notice will be required for violations of SIP requirements contained in permits. 

### C. Oregon Audit Privilege 

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

# List of Subjects 40 CFR Part 52

      - Environmental protection
      - Air pollution control
      - Carbon monoxide
      - Hydrocarbons
      - Incorporation by reference
      - Intergovernmental relations
      - Lead
      - Nitrogen dioxide
      - Ozone
      - Particulate matter
      - Reporting and recordkeeping requirements
      - Sulfur oxides
      - Volatile organic compounds

Dated: March 1, 2000. 

Chuck Findley,

Acting Regional Administrator, Region 10. 

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

# PART 52—[AMENDED] 

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

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

# Subpart MM—Oregon 

2. Section 52.1970 is amended by adding paragraph (c)(130) to read as follows: 

§ 52.1970 

* * * * *

(c) * * * 

(130) The Environmental Protection Agency (EPA) approves various amendments to the Oregon State RACT rules for volatile organic compounds which are contained in a submittal to EPA, dated December 7, 1998. 

(i) Incorporation by reference. 

(A) EPA is approving the revised Oregon Regulations, as effective October 12, 1998: OAR 340-022-0100; OAR 340-022-0102; OAR 340-022-0104; OAR 340-022-0106; OAR 340-022-0107; OAR 340-022-110; OAR 340-022-0120; OAR 340-022-0125; OAR 340-022-0130; OAR 340-022-0170; OAR 340-022-0175; OAR 340-022-0180; OAR 340-022-0300; OAR 340-022-0400; OAR 340-022-0401; and OAR 340-022-0402. 

(B) EPA is repealing/removing the following provision from the current incorporation by reference: OAR 340-022-0403, as effective August 14, 1996.

3. Section 52.1972 is amended by revising the section to read as follows: 

§ 52.1972 

                            With the exceptions set forth in this subpart, the Administrator approves                                   ( print page 29959)                                Oregon's plan for the attainment and maintenancce of the national standards under section 110 of the Clean Air Act.                        

[FR Doc. 00-11671 Filed 5-9-00; 8:45 am] 

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