Clean Air Act Proposed Interim Approval, or in the Alternative Proposed Disapproval, of Operating Permits Program; State of North Dakota

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]

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