[Federal Register Volume 60, Number 82 (Friday, April 28, 1995)]
[Proposed Rules]
[Pages 20941-20946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10504]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[ND-001; FRL-5199-8]
Clean Air Act Proposed Interim Approval, or in the Alternative
Proposed Disapproval, of Operating Permits Program; State of North
Dakota
AGENCY: Environmental protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes interim approval of the Operating Permits
Program submitted by the State of North Dakota 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. In the alternative, EPA proposes disapproval of the
North Dakota Operating Permits Program if the corrective action
necessary for final interim PROGRAM approval is not
[[Page 20942]] completed and submitted to EPA prior to the statutory
deadline.
DATES: Comments on this proposed action must be received in writing by
May 30, 1995.
ADDRESSES: Comments should be addressed to Laura Farris at the Region 8
address. Copies of the State's submittal and other supporting
information used in developing the proposed rule are available for
inspection during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 8, 999 18th Street, suite 500,
Denver, Colorado 80202.
FOR FURTHER INFORMATION CONTACT:
Laura Farris, 8ART-AP, U.S. Environmental Protection Agency, Region 8,
Air Programs Branch, 999 18th Street, suite 500, Denver, Colorado
80202, (303) 294-7539.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the 1990 Clean Air Act Amendments
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has
promulgated rules which define 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 40 Code of Federal Regulations
(CFR) part 70 (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 act to approve or disapprove
each program within 1 year after receiving the submittal. The 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 2 years. If EPA has not fully approved a program by 2
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
If EPA were to finalize this proposed interim approval, it would
extend for two years following the effective date of final interim
approval, and could not be renewed. During the interim approval period,
the State would be protected from sanctions, and EPA would not be
obligated to promulgate, administer and enforce a Federal permits
program for the State. Permits issued under a program with interim
approval have full standing with respect to part 70, and the 1-year
time period for submittal of permit applications by subject sources
begins upon the effective date of interim approval, as does the 3-year
time period for processing the initial permit applications.
Following final interim approval, if the State failed to submit a
complete corrective program for full approval by the date 6 months
before expiration of the interim approval, EPA would start an 18-month
clock for mandatory sanctions. If the State then failed to submit a
corrective program that EPA found complete before the expiration of
that 18-month period, EPA would apply sanctions as required by section
502(d)(2) of the Act, which would remain in effect until EPA determined
that the State had corrected the deficiency by submitting a complete
corrective program.
If, following final interim approval, EPA were to disapprove the
State's complete corrective program, EPA would be required under
section 502(d)(2) to apply sanctions on the date 18 months after the
effective date of the disapproval, unless prior to that date the State
had submitted a revised program and EPA had determined that it
corrected the deficiencies that prompted the disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a state has not
timely submitted a complete corrective program or EPA has disapproved a
submitted corrective program. Moreover, if EPA has not granted full
approval to a state program by the expiration of an interim approval
and that expiration occurs after November 15, 1995, EPA must
promulgate, administer and enforce a Federal permits program for that
state upon interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
The Governor of North Dakota submitted an administratively complete
title V Operating Permit Program (PROGRAM) for the State of North
Dakota on April 28, 1994. EPA deemed the PROGRAM administratively
complete in a letter to the Governor dated June 28, 1994. The PROGRAM
submittal includes a legal opinion from the Attorney General of North
Dakota stating that the laws of the State provide adequate legal
authority to carry out all aspects of the PROGRAM, and a description of
how the State intends to implement the PROGRAM. The submittal
additionally contains evidence of proper adoption of the PROGRAM
regulations, permit application forms, a data management system and a
fee adequacy demonstration.
2. Regulations and Program Implementation
The North Dakota PROGRAM, including the operating permit regulation
(Article 33-15, Section 33-15-14-06, of the North Dakota Administrative
Code--Air Pollution Control Rules (NDAC)), substantially meets the
requirements of 40 CFR parts 70.2 and 70.3 with respect to
applicability; parts 70.4, 70.5, and 70.6 with respect to permit
content including operational flexibility; part 70.5 with respect to
complete application forms and criteria which define insignificant
activities; part 70.7 with respect to public participation and minor
permit modifications; and part 70.11 with respect to requirements for
enforcement authority.
Sub-section 33-15-14-06.4.c of the NDAC defines the emissions units
or activities that sources do not have to include in their operating
permit application (insignificant activities). This definition includes
an emission threshold of 5 tons per year (tpy) for particulates, 10 tpy
for sulfur dioxide, 2.5 tpy for hydrogen sulfide, 25 tpy for carbon
monoxide, 10 tpy for nitrogen oxides, 10 tpy for ozone, 2.5 tpy for
reduced sulfur compounds and 10 tpy for volatile organic compounds (see
PROGRAM deficiencies below). This provision also states that the
applicant may not omit information needed to determine applicable
requirements or to evaluate the fee amount required. These emission
thresholds do not apply to hazardous air pollutants (HAPs) listed in
section 112(b) of the Act. However, in a letter from the State to EPA
dated October 18, 1994, the State discussed several proposed changes to
their PROGRAM submittal. One of the proposed changes would establish an
insignificant activities emission threshold of 0.5 tpy for HAPs, which
is an acceptable level.
Part 70 of the operating permits regulations requires prompt
reporting of deviations from the permit requirements. Section
70.6(a)(3)(iii)(B) [[Page 20943]] of the Federal permitting regulation
requires the permitting authority to define ``prompt'' in relation to
the degree and type of deviation likely to occur and the applicable
requirements. Although the permit program regulations should define
``prompt'' for purposes of administrative efficiency and clarity, an
acceptable alternative is to define ``prompt'' in each individual
permit. The EPA believes that ``prompt'' should generally be defined as
requiring reporting within two to ten days of the deviation. Two to ten
days is sufficient time in most cases to protect public health and
safety as well as to provide a forewarning of potential problems. For
sources with a low level of excess emissions, a longer time period may
be acceptable. However, prompt reporting must be more frequent than the
semiannual reporting requirement, given that this is a distinct
reporting obligation under section 70.6(a)(3)(iii)(A) of the Federal
permitting regulation. Where ``prompt'' is defined in the individual
permit but not in the program regulations, EPA may veto permits that do
not contain sufficiently prompt reporting of deviations. Sub-section
33-15-14-06.5.a(3)(c)[2] of the NDAC states that ``prompt'' will be
defined in the permit consistent with chapter 33-15-01 of the NDAC,
``General Provisions'', and the applicable requirements.
North Dakota has the authority to issue a variance from air
pollution control requirements imposed by State law (See North Dakota
Century Code 23-25-03.11 and North Dakota Administrative Code 33-15-01-
07.) The EPA regards these provisions as wholly external to the PROGRAM
submitted for approval under part 70, and consequently is proposing to
take no action on these provisions of State law. The EPA has no
authority to approve provisions of State law, such as the variance
provisions referred to, which are inconsistent with the Act. 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. The EPA reserves the right to 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.
Comments noting deficiencies in the North Dakota PROGRAM were sent
to the State in a letter dated December 22, 1994. The deficiencies were
segregated into those that require corrective action prior to interim
PROGRAM approval, and those that require corrective action prior to
full PROGRAM approval. In a letter dated January 5, 1995, the State
committed to finalize and submit to EPA by February 15, 1995 all
corrective actions required for interim PROGRAM approval. The State
submitted these corrective actions in letters dated February 22, 1995,
and March 20, 1995. EPA has reviewed these corrective actions and has
determined them to be adequate to allow for interim PROGRAM approval
with the following exception: Section IX of the PROGRAM submittal
(Implementation of other Titles of the Act), part B.4 (Implementation
Schedule) does not address case-by-case MACT under section 112(j) of
the Act. The PROGRAM should require permit applications from sources
subject to section 112(j) of the Act within 18 months after EPA fails
to promulgate a MACT standard. Prior to final interim PROGRAM approval,
the State must address how it will implement section 112(j) of the Act.
The State's February 22, 1995 letter stated that it is currently in the
process of adopting rules for implementation of section 112(j) of the
Act which were promulgated under 40 CFR part 63, subpart B. These
rules, which are being adopted by reference, are expected to be
finalized by June, 1995. EPA must receive the final, adopted copy of
these rules and determine them to be adequate before proceeding with
final interim PROGRAM approval.
Areas in which the North Dakota PROGRAM is deficient and requires
corrective action prior to full PROGRAM approval are as follows: (1)
EPA believes that the insignificant emission levels listed in sub-
section 33-15-14-06.4.c of the NDAC for various air contaminants are
too high (emission levels are set at approximately 25% of the PSD major
modification significant levels). It is possible that the total
emissions from such ``insignificant'' emissions units may indeed be
greater than the major modification significance levels or even greater
than the major source threshold. EPA has issued informal guidance
stating that a State's emissions caps for defining insignificant
activities should generally be no more than 1-2 tons per year for
criteria pollutants. Prior to full PROGRAM approval, the State must
revise sub-section 33-15-14-06.4.c of the NDAC to lower the
insignificant emissions unit threshold for criteria pollutants to more
reasonable levels. (2) Sub-section 33-15-14-06.5.a.(1)(c) of the NDAC
states, ``Where the state implementation plan [SIP] or this article
allows a determination of an alternative emission limit at a title V
source, equivalent to that contained in the plan, to be made in the
permit issuance, renewal, or significant modification process * * *.''
In order to implement this provision, the State must adopt specific
provisions which detail how to determine that an alternative mission
limit is equivalent to that in the SIP, and EPA must approve the
provisions as part of the SIP. Until this can be accomplished, and
prior to full PROGRAM approval, the State must delete the words ``or
this article'' from the first line of sub-section 33-15-14-
06.5.a.(1)(c) of the NDAC. (3) Sub-section 33-15-14-06.5.a.(11) of the
NDAC does not include the requirements of 40 CFR 70.4(b)(12).
Specifically, prior to full PROGRAM approval, sub-section 33-15-14-
06.5.a(11) of the NDAC must be revised to state that changes in
emissions are allowed by this sub-section provided that they are not
modifications under title I of the Act and the changes do not exceed
the emissions allowed under the permit. (4) Sub-section 33-15-14-
06.5.f.(1) of the NDAC states that ``* * * as of the date of permit
issuance, the source is considered to be in compliance with any
applicable requirements * * *.'' EPA's permit shield provision in 40
CFR 70.6(f) requires such considerations to be dependent on compliance
with the conditions of the permit. Thus, prior to full PROGRAM
approval, the State must revise sub-section 33-15-14-06.5.f.(1) of the
NDAC to read ``* * * the department shall include in a title V permit
to operate a provision stating that compliance with the conditions of
the permit shall be deemed compliance with any applicable requirements
as of the date of permit issuance * * *.'' (5) Subsection 33-15-14-
06.5.a.(8) of the NDAC states that, ``No permit revision shall be
required, under any approved economic incentives, marketable permits,
emissions trading and other similar programs or processes for changes
that are provided for in the permit and the state implementation plan
or this article.'' Sub-sections 33-15-14-06.5.a.(10) and 33-15-14-
06.6.e.(1)(a)[2] of the NDAC are related. Currently, the State does not
have an economic incentives, marketable permits or generic emissions
trading program approved in its SIP, and these provisions cannot be
implemented by the State. Prior to full PROGRAM approval, the State
must delete ``or this article'' from sub-section 33-15-14-06.5.a(8) of
the NDAC, and ``this article'' from sub-sections 33-15-14-06.5.a.(10)
[[Page 20944]] and 33-15-14-06.6.e.(1)(a)[2] of the NDAC to clarify
that, in order to implement these provisions, the State must have an
economic incentives, marketable permits or generic emissions trading
program approved in its SIP. (6) Section IV of the PROGRAM submittal
(Attorney General's Legal Opinion), part XX (Limitations on Judicial
Review), does not cite to relevant State laws or regulations or to
State case law, and, instead of discussing the provisions of North
Dakota laws, largely discusses Federal regulations. The opinion should
discuss and reference North Dakota law which ensures that the
provisions for judicial review in North Dakota Century Code (N.D.C.C.)
Chapter 28-23-14 and 15 and in NDAC Article 33-22 are the exclusive
means for obtaining judicial review of the terms and conditions of
permits and that petitions for judicial review must be filed within the
90-day periods discussed in 40 CFR 70.4(b)(3)(xii), Prior to full
PROGRAM approval, the State must augment the Attorney General's
opinion, providing discussion of and citation to case law, statutes,
and regulations which address the requirements of 40 CFR
70.4(b)(3)(xii), or, if such an opinion cannot be rendered, the State
must change its statutes and/or regulations to ensure that the
requirements of 40 CFR 70.4(b)(3)(xii) are met. (7) Section IV of the
PROGRAM submittal (Attorney General's Legal Opinion), part XVII (Final
Agency Action on Permits), indicates that under State law, ``final
permit action'' includes the failure of the State to take final action
on an application for a permit, permit renewal, or permit revision
within the time specified in the regulations. It also indicates that
the State's failure to take final action within 90 days of receipt of
an application for a minor permit modification (or 180 days for minor
modifications subject to group processing) is subject to judicial
review. For support of these assertions, the opinion cites to N.D.C.C.
28-32 and NDAC Article 33-22. EPA could not determine whether these
provisions support a right to judicial review in cases where the State
fails to act in a timely way on a permit application. Prior to full
PROGRAM approval, the State must augment the Attorney General's
opinion, providing discussion of and citation to case law and/or
specific statutory or regulatory provisions which provide for judicial
review in cases of State inaction, consistent with the requirements of
40 CFR 70.4(b)(3)(xi), or if such an opinion cannot be rendered, the
State must change its statutes and/or regulations to ensure that the
requirements of 40 CFR 70.4(b)(3)(xi) are met. (8) Section IV of the
PROGRAM submittal (Attorney General's Legal Opinion), part XIV
(Enforcement of Permits Program Requirements), states that State law
provides civil and criminal enforcement authority consistent with 40
CFR 70.11. EPA was unable to determine from the opinion whether North
Dakota's PROGRAM is consistent in all respects with 40 CFR 70.11, and
in particular with the requirement for maximum fines of not less than
$10,000 per day per violation. Prior to full PROGRAM approval, the
State must augment the Attorney General's opinion, providing citation
to and discussion of case law indicating that the PROGRAM meets the
penalty requirements contained in 40 CFR 70.11, or, if such an opinion
cannot be rendered, the State must change its statutes and/or
regulations to ensure that the requirements of 40 CFR 70.11 are met.
Refer to the technical support document accompanying this
rulemaking for a detailed explanation of each comment and the
corrective actions required of the State.
3. Fee Adequacy Demonstration
The North Dakota PROGRAM includes a fee structure that collects in
the aggregate fees that are below the presumptive minimum set in part
70. Therefore, it was necessary for the State to include a fee adequacy
demonstration in their PROGRAM submittal to demonstrate that the
State's title V fee structure would collect sufficient fees to cover
the reasonable direct and indirect costs of developing and
administering the PROGRAM. The fee adequacy demonstration included a
four year workload analysis and a cash flow analysis. The fee structure
for fiscal year 1995 includes a fee of $10 per ton with a cap of
$100,000 per source. These fees are projected to increase to $14.42 per
ton with a cap of $109,000 per source by fiscal year 1998. After
careful review, the State has determined that these fees would support
the North Dakota PROGRAM costs as required by section 70.9(a) of the
Federal operating permitting regulation.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation
North Dakota has demonstrated in its PROGRAM submittal adequate
legal authority to implement and enforce all section 112 requirements
through the title V permit. This legal authority is contained in North
Dakota's enabling legislation and in regulatory provisions defining
``applicable requirements'' and stating that the permit must
incorporate all applicable requirements. EPA has determined that this
legal authority is sufficient to allow North Dakota to issue permits
that assure compliance with all section 112 requirements, and to carry
out all section 112 activities, with the exception noted in section
II.A.2 above. Therefore, contingent upon the State completing the above
noted corrective action, EPA will consider that the State of North
Dakota's legal authority is sufficient to allow the State to issue
permits that assure compliance with all section 112 requirements, and
to carry out all section 112 activities. For further rationale on this
interpretation, please refer to the Technical Support Document
accompanying this rulemaking and the April 13, 1993 guidance memorandum
titled ``Title V Program Approval Criteria for Section 112
Activities,'' signed by John Seitz, Director of the Office of Air
Quality Planning and Standards.
b. Implementation of 112(g)
On February 14, 1995 EPA published an interpretive notice (see 60
FR 8333) that postpones the effective date of section 112(g) until
after EPA has promulgated a rule addressing that provision. The section
112(g) interpretive notice explains that EPA is still considering
whether the effective date of section 112(g) should be delayed beyond
the date of promulgation of the Federal rule so as to allow states time
to adopt rules implementing the Federal rule, and that EPA will provide
for any such additional delay in the final section 112(g) rulemaking.
Unless and until EPA provides for such an additional postponement of
section 112(g), North Dakota must be able to implement section 112(g)
during the period between promulgation of the Federal section 112(g)
rule and adoption of implementing State regulations. EPA believes that
North Dakota can utilize its construction review program to serve as a
procedural vehicle for implementing section 112(g) and making these
requirements Federally enforceable between promulgation of the Federal
section 112(g) rule and adoption of implementing State regulations. For
this reason, EPA is proposing to approve North Dakota's construction
permitting program found in section 33-15-14-02 of the State's
regulations under the authority of title V and part 70 solely for the
purpose of implementing section 112(g) during the transition period to
meet the requirements of section 112(g). Since the approval would be
for the single purpose of providing a [[Page 20945]] mechanism to
implement section 112(g) during the transition period, the approval
would be without effect if EPA decides in the final section 112(g) rule
that sources are not subject to the requirements of the rule until
State regulations are adopted. Also, since the approval would be for
the limited purpose of allowing the State sufficient time to adopt
regulations, EPA proposes to limit the duration of the approval to 12
months following promulgation by EPA of its section 112(g) rule. North
Dakota's construction permitting program allows permit requirements to
be established for all air contaminants (which is defined in section
33-15-01-04 of the NDAC and includes all of the hazardous air
pollutants (HAPs) listed in section 112(b) of the Act).
c. Program for Straight Delegation of Section 112 Standards
Requirements for approval, specified in 40 CFR Sec. 70.4(b),
encompass section 112(l)(5) requirements for approval of a program for
delegation of the provisions of 40 CFR part 63, Subpart A, and section
112 standards promulgated by EPA as they apply to part 70 sources, as
well as non-part 70 sources. Section 112(l)(5) requires that the
State's program contain adequate authorities, adequate resources for
implementation, and an expeditious compliance schedule, which are also
requirements under part 70. Therefore, EPA is also proposing to grant
approval under section 112(l)(5) and 40 CFR part 63.91 of the State's
program for receiving delegation of section 112 standards that are
unchanged from the Federal standards as promulgated. North Dakota has
informed EPA that it intends to accept delegation of section 112
standards through incorporation by reference. This program applies to
both existing and future standards.
The radionuclide national emission standard for HAPs (NESHAP) is a
section 112 regulation and an applicable requirement under the State
PROGRAM. Currently the State of North Dakota has no part 70 sources
which emit radionuclides. However, sources which are not currently part
70 sources may be defined as major and become part 70 sources under
forthcoming Federal radionuclide regulations. In that event, the State
will be responsible for issuing part 70 permits to those sources.
d. Program for Implementing Title IV of the Act
North Dakota's PROGRAM contains adequate authority to issue permits
which reflect the requirements of title IV of the Act, and commits to
adopt the rules and requirements promulgated by EPA to implement an
acid rain program through the title V permit.
B. Options for Approval/Disapproval and Implications
The EPA is proposing to grant interim approval to the operating
permits program submitted by the State of North Dakota on April 28,
1994. If promulgated, the State must complete the following corrective
action, as discussed above, to receive final interim PROGRAM approval:
Adopt rules for implementation of section 112(j) of the Act which were
promulgated under 40 CFR part 63, subpart B.
The State must complete the following corrective actions, as
discussed above, to receive full PROGRAM approval: (1) The State must
revise sub-section 33-15-14-06.4.c of the NDAC to lower the
insignificant emissions unit threshold for criteria pollutants to more
reasonable levels. (2) In order to implement sub-section 33-15-14-
06.5.a.(1)(c) of the NDAC, the State must adopt specific provisions
which detail how to determine that an alternative emission limit is
equivalent to that in the SIP, and EPA must approve the provisions as
part of the SIP. Until this can be accomplished, the State must delete
the words ``or this article'' from the first line of sub-section 33-15-
14-06.5.a(1)(c) of the NDAC. (3) Sub-section 33-15-14-06.5.a.(11) of
the NDAC must be revised to state that changes in emissions are allowed
by this sub-section provided that they are not modifications under
title I of the Act and the changes do not exceed the emissions allowed
under the permit. (4) The State must revise sub-section 33-15-14-
06.5.f.(1) of the NDAC to read ``* * * the department shall include in
a title V permit to operate a provision stating that compliance with
the conditions of the permit shall be deemed compliance with any
applicable requirements as of the date of permit issuance * * *.'' (5)
The State must delete ``or this article'' from sub-section 33-15-14-
06.5.a.(8) of the NDAC, and ``this article'' from sub-sections 33-15-
14-06.5.a.(10) and 33-15-14-06.6.e.(1)(a)[2] of the NDAC to clarify
that, in order to implement these provisions, the State must have an
economic incentives, marketable permits or generic emissions trading
program approved in its SIP. (6) The State must augment the Attorney
General's opinion, providing discussion of and citation to case law,
statutes, and regulations which address the requirements of 40 CFR
70.4(b)(3)(xii), or, if such an opinion cannot be rendered, the State
must change its statutes and/or regulations to ensure that the
requirements of 40 CFR 70.4(b)(3)(xii) are met. (7) The State must
augment the Attorney General's opinion, providing discussion of and
citation to case law and/or specific statutory or regulatory provisions
which provide for judicial review in cases of State inaction,
consistent with the requirements of 40 CFR 70.4(b)(3)(xi), or, if such
an opinion cannot be rendered, the State must change its statutes and/
or regulations to ensure that the requirements of 40 CFR 70.4(b)(3)(xi)
are met. (8) The State augment the Attorney General's opinion,
providing citation to and discussion of case law indicating that the
PROGRAM meets the penalty requirements contained in 40 CFR 70.11, or,
if such an opinion cannot be rendered, the State must change its
statutes and/or regulations to ensure that the requirements of 40 CFR
70.11 are met.
Evidence of these corrective actions for full PROGRAM approval must
be submitted to EPA within 18 months of EPA's interim approval of the
North Dakota PROGRAM.
The scope of North Dakota's part 70 PROGRAM that EPA proposes to
approve in this notice would apply to all part 70 sources (as defined
in the PROGRAM) within the State, except the following: any sources of
air pollution located in ``Indian Country,'' as defined in 18 U.S.C.
1151, including the Fort Berthold, Fort Totten, Standing Rock, Sisseton
and Turtle Mountain Indian Reservations, or any other sources of air
pollution over which an Indian Tribe has jurisdiction. See, e.g., 59 FR
55813, 55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined
under the Act as ``any Indian Tribe, band, nation, or other organized
group or community, including any Alaska Native village, which is
Federally recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.'' See section 302(r) of the CAA; see also 59 FR 43955, 43962
(Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
In proposing not to extend the scope of North Dakota's part 70
PROGRAM to sources located in ``Indian Country,'' EPA is not making a
determination that the State either has adequate jurisdiction or lacks
jurisdiction over such sources. Should the State of North Dakota choose
to seek program approval within ``Indian Country,'' it may do so
without prejudice. Before EPA would approve the State's part 70 PROGRAM
for any portion of ``Indian Country,'' EPA would have to be satisfied
that the State has authority, either pursuant to explicit Congressional
authorization or [[Page 20946]] applicable principles of Federal Indian
law, to enforce its laws against existing and potential pollution
sources within any geographical area for which it seeks program
approval, that such approval would constitute sound administrative
practice, and that those sources are not subject to the jurisdiction of
any Indian Tribe.
This interim approval, which may not be renewed, extends for a
period of up to 2 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, and the 1-year time period for submittal of
permit applications by subject sources begins upon interim approval, as
does the 3-year time period for processing the initial permit
applications.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, EPA is also proposing to grant approval under section
112(l)(5) and 40 CFR part 63.91 of the State's program for receiving
delegation of section 112 standards that are unchanged from Federal
standards as promulgated. This program for delegations applies to
sources covered by the part 70 program, as well as non-part 70 sources.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the State's submittal and other information
relied upon for the proposed interim approval are contained in a docket
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the information submitted to, or otherwise
considered by, EPA in the development of this proposed interim
approval. 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 approval
process, and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by May 30, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The 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, its does not have a
significant impact on a substantial number of small entities.
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. 7401-76719.
Dated: April 19, 1995.
William P. Yellowtail,
Regional Administrator.
[FR Doc. 95-10504 Filed 4-27-95; 8:45 am]
BILLING CODE 6560-50-P
