Proposed Conditional Special Exemption From Requirements of the Clean Air Act for the Territory of American Samoa, the Commonwealth of the Northern Mariana Islands, and the Territory of Guam

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 69

[AD-FRL-5291-2]

Proposed Conditional Special Exemption From Requirements of the

Clean Air Act for the Territory of American Samoa, the Commonwealth of

the Northern Mariana Islands, and the Territory of Guam

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed actions.

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SUMMARY: The Governors of the Territory of American Samoa (American

Samoa), the Commonwealth of the Northern Mariana Islands (CNMI), and

the Territory of Guam (Guam) each submitted a petition under section

325(a) of the Clean Air Act (the Act) for a waiver from title V of the

Act. Title V requires that states, including the petitioners, adopt and

submit to EPA a title V operating permits program for major sources and

certain other stationary sources. Title V also requires that sources

located in areas that do not adopt a state title V permitting program

obtain a federal permit from the US EPA. Section 325(a) allows American

Samoa, CNMI, and Guam to petition for an exemption from certain Clean

Air Act requirements.

The EPA received petitions requesting an exemption from title V of

the CAA from American Samoa on November 18, 1994, from CNMI on July 14,

1994, and Guam on November 21, 1994. This document describes the

petition submitted by each agency, EPA's analysis, and EPA's proposed

action on each petition. The EPA is proposing to grant conditional

waivers from the requirement that American Samoa and CNMI adopt and

submit title V operating permit programs. The EPA proposes to require

the implementation of alternative programs to protect local air quality

as a condition of these waivers. The EPA is proposing to grant Guam a

three-year extension of the deadlines in title V. The EPA is also

proposing to exempt sources from the requirement to obtain a federal

title V permit during the period of the waivers, except for certain

major sources of hazardous air pollutants. While this proposal

addresses all three petitions, EPA's action is based on a separate

evaluation of each petition.

DATES: Comments on these proposed actions must be received in writing

by October 13, 1995.

ADDRESSES: Comments should be addressed to Norm Lovelace at the address

indicated. Copies of the petitions and other supporting information,

including air quality modeling, used in developing the proposed interim

approval are available for inspection during normal business hours at

the following location: Office of Pacific Islands and Native American

Programs, US EPA Region IX, 75 Hawthorne Street, San Francisco,

California 94105.

FOR FURTHER INFORMATION CONTACT: Norm Lovelace (telephone 415/744-1599,

fax 415/744-1604), Chief, Office of Pacific Islands and Native American

Programs, or Ed Pike (telephone 415/744-1248), Operating Permits

Section, Air and Toxics Division, at US EPA-Region IX, 75 Hawthorne

Street, San Francisco, California 94105. Comments should be addressed

to Norm Lovelace, mailcode E-4.

[[Page 47516]]

I. Background

Title V of the Act requires states to develop and submit operating

permit programs by November 15, 1993. EPA has promulgated certain

minimum requirements (57 FR 32250 (July 21, 1992)) that are codified at

40 Code of Federal Regulations (CFR) part 70. States must develop

programs for issuing permits that contain monitoring and compliance

terms and conditions that ensure sources comply with all applicable

federal air regulations, and the permit issuance process must include

public participation and EPA oversight. EPA is required to impose

sanctions on any state, including the petitioners (see 40 CFR 70.2

definition of ``state''), that has not submitted a complete title V

permit program. For any state that does not have an approved program by

November 15, 1995, the EPA must promulgate, administer, and enforce a

federal air permit program.

Section 325(a) of the Act allows the petitioners to request that

the Administrator of EPA waive requirements of the Clean Air Act other

than section 112 (Hazardous Air Pollutant or HAPs) requirements or any

requirement under section 110 or part D of subchapter 1 that would be

necessary to attain or maintain a national primary ambient air quality

standard. The petitioners request a waiver from title V and do not

request a waiver from any requirements under section 112 of the Act,

including requirements that are triggered by the approval of a title V

permit program. In addition, the petitions for American Samoa and CNMI

commit to implementing alternative programs to protect ambient air

quality, including the national ambient air quality standards.

Section 325(a) also specifies the criteria for approving

exemptions: ``Such exemption may be granted if the Administrator finds

that compliance with such requirement is not feasible or is

unreasonable due to unique geographical, meteorological, or economic

factors of such territory, or such other local factors as the

Administrator deems significant.'' EPA's determinations are based on

whether the petitions meet these criteria. Although EPA is publishing

its proposed action on the petitions in a single rulemaking, each

action is considered a separate decision and can be considered

independently. If significant comments are received pertaining to a

specific petition, EPA may take final action on each petition

independently.

II. Analysis and Proposed Action

A. American Samoa

1. Description of Petition and Supporting Documents

The Governor of American Samoa submitted the Government's petition

on November 28, 1994. The petition consists of the following sections:

1) a description of the waiver request and geographical and political

conditions; 2) a description of American Samoa's commitment to ensure

attainment and maintenance of national ambient air quality standards;

3) a commitment to work with EPA to ensure that the hazardous air

pollutant program under Section 112 of CAA is administered and enforced

on American Samoa; 4) a description of the unique local economic burden

that the title V operating permit program would create; and 5) other

unique geographical, meteorological, and local factors that support the

petition. The supporting information includes: 1) maps of American

Samoa; 2) an emissions inventory for American Samoa; 3) screening

analysis of ambient air quality impacts on American Samoa; 4) economic

analysis of an operating permit program on American Samoa; and 5)

newspaper articles illustrating the financial difficulties of the

American Samoa Government (ASG).

2. Analysis of the Petition

EPA believes that the unique local circumstances presented in the

petition satisfy the criteria in section 325(a) for granting an

exemption from title V of the CAA. EPA also believes that the

petition's proposed mitigating air quality program is appropriate for

American Samoa and would result in air quality benefits equivalent to a

title V program.

The petition makes a convincing argument that a title V operating

permit program would have a unique negative economic impact on American

Samoa. Implementing this program would be economically unreasonable for

the American Samoa Government (ASG) and the general public due to

extremely limited local resources. Only five sources have potential

emissions exceeding the major source level (40 CFR 70.2) and would be

subject to the program. If ASG imposed fees based on emissions as

required by part 70, the two power plants run by the American Samoa

Power Authority (ASPA), a semi-autonomous government utility agency,

would incur most of these costs. Projected costs to be incurred by ASPA

would likely be passed to its electrical consumers, which include

private industry, the public and the American Samoa Government.

Increased power bills to the latter two consumers would strain already

limited resources. Per capita income is only $3,039 (compared to

$14,420 for the mainland United States) and the population is only

49,000. The ASG has had major financial difficulties over the past

years, and as the major consumer of power it has unpaid power bills of

over $2 million.

The petition estimates that the total regulatory and compliance

costs of the program would be $143,000. The relative economic impact of

these fees would be high compared to the limited economic resources of

American Samoa. Given the limited number of sources, the limitations of

the ASEPA staff, the more pressing environmental priorities of American

Samoa (such as safe drinking water and solid waste disposal), and the

fact that the major costs will be borne by an area with limited

economic resources, EPA believes that it is appropriate for ASG to

focus its limited resources on an alternative permitting program, which

could be expected to achieve equivalent environmental benefits. EPA

believes that these economic resource constraints support American

Samoa's position that the title V program is unreasonable in American

Samoa and justify a more narrowly focused program.

3. Alternative Air Quality Program Proposed by American Samoa

American Samoa proposes an air quality program to address potential

exceedances of the National Ambient Air Quality Standards (NAAQS). This

program more appropriately addresses unique meteorological

circumstances and the protection of local air quality. While the title

V program is expected to increase compliance with emission limits,

other mechanisms (such as source-specific SIP limits or direct

enforcement of federal standards) may be a practical and effective

means of controlling air pollution on American Samoa. In addition, no

major sources of air toxics are identified in the petition. Major

source of air toxics may require case-by-case title V permitting review

for implementation of a current or future section 112 standard.

Screening model results submitted with the petition indicate that

sulfur dioxide (SO2) NAAQS exceedances may occur in the Pago Pago

Harbor area. In the petition, American Samoa commits to ensuring that

primary ambient air quality standards in the Pago Pago Harbor area are

met. American Samoa will collect meteorological data and undertake

additional refined air

[[Page 47517]]

modeling of the Pago Pago Harbor area. American Samoa will also require

sources impacting the Pago Pago Harbor area to implement physical and

operational changes if necessary to assure compliance with the NAAQS.

EPA agrees with American Samoa that possible emission control

strategies for correcting any sulfur dioxide NAAQS exceedances include,

but are not limited to, a reduction in the sulfur content of the fuel

burned, the addition of scrubbers or other control devices, a reduction

in the hours of operation for some units, or a combination thereof. EPA

also believes that amendments to American Samoa's State Implementation

Plan (SIP) are the most practical method of imposing any controls and

compliance methods that are necessary.

EPA believes that American Samoa's proposed mitigating air quality

program, which is tailored to prevent and remedy potential air quality

violations, will achieve equivalent benefits for air quality and is

more appropriate than the title V program due to the geographic

isolation, economic circumstances, and the limited number of sources in

American Samoa. Furthermore, because the few sources in American Samoa

do not appear to compete with mainland sources, the exempted sources

will not gain a competitive advantage over sources subject to title V.

4. Conditional Waiver

EPA is proposing to exempt American Samoa from the requirement to

develop a part 70 permitting program and sources on American Samoa from

the requirement to apply for a part 71 permit (except when specifically

required by EPA), provided that the following conditions are met. EPA

is proposing that American Samoa collect complete meteorological data

and complete a refined air quality modeling analysis within two years

of the effective date of this rulemaking. EPA is also proposing that

American Samoa require affected sources to implement changes necessary

to ensure NAAQS achievement in a timely manner if the modeling

demonstrates a violation of the NAAQS. EPA believes that a period of

five years, which is three years from the completion of modeling by

American Samoa, will allow sufficient time to implement strategies to

meet the NAAQS if exceedances have occurred.

EPA is also proposing that American Samoa implement an alternative

local operating permit program. The permitting program will ensure that

the emission limits used to verify compliance with the NAAQS are met.

At a minimum, the program should meet the guidelines established in the

June 29, 1989 Federal Register for federally enforceable operating

permit programs. These guidelines are more flexible than the title V

guidelines but ensure that permits are federally enforceable on a

practical and legal basis. The permits should include applicable Clean

Air Act requirements, adequate compliance measures, and allow for

public participation. In addition, this alternative program can be used

to implement other air quality requirements.

EPA proposes to reopen the waiver if these conditions are not met

or if EPA determines that implementation of a title V permitting

program is necessary to ensure compliance with applicable Clean Air Act

requirements and protect air quality.

B. CNMI

1. Description of Petition and Supporting Documents

The Governor of CNMI submitted the petition to EPA on July 14,

1994. The petition consists of a 15-page narrative and supporting

information. The narrative portion of the petition is organized into

sections which describe: (1) the purpose of the petition; (2) unique

local geographical, meteorological, and economic factors; (3) major air

emission sources and sources of hazardous air pollutants emissions in

CNMI; and (4) information on the existing CNMI permitting regulations,

which CNMI suggests as an alternative mitigating program. CNMI also

submitted copies of local statutes and regulations, maps of CNMI,

emissions information, and cost estimates for the title V program as

supporting information.

2. Analysis of the Petition

EPA believes that the unique local circumstances presented in the

petition satisfy the criteria in section 325(a) for granting an

exemption from title V of the CAA. CNMI's petition states that title V

is overly burdensome due to local circumstances and proposes a

mitigating local permit program. The petition describes unique local

factors that make the economic burden of implementing the title V

permitting program greater for CNMI than for most state air agencies.

CNMI's population (43,345) is far smaller than mainland state agencies.

In addition, per capita income ($7,200) in CNMI is only half that of

the United States. Therefore, the economic resources available to

address air quality problems are much more limited than the resources

available in areas under the jurisdiction of mainland state air quality

agencies.

The CNMI petition states that Clean Air Act programs, particularly

title V, are not necessary because ambient air quality is not impacted

by emissions from stationary sources on CNMI, and that an alternative

local program is sufficient to protect air quality. EPA air quality

modeling conducted to evaluate this claim predicted violations of the

National Ambient Air Quality Standards (NAAQS). However, EPA's analysis

also shows that the alternative permitting program described by CNMI

would address exceedances of the NAAQS as effectively as a title V

program. CNMI's emission inventory shows that emissions result almost

exclusively from internal combustion engines, and EPA believes that

options other than case-by-case title V permitting of these sources

(such as a SIP rule with specific control and compliance measures)

would be appropriate for controlling these sources due to their

similarity. In addition, none of the sources identified in the petition

are identified as a major air toxics source that may require case-by-

case permitting review for implementation of a current or future

section 112 standard.

3. Air Quality Modeling

EPA performed screening level modeling on the main Commonwealth

Utilities Company (CUC) power plant on Saipan, the main island in the

CNMI and the island with the largest emission sources, to assess

potential air quality problems on Saipan. EPA's SCREEN2 model predicts

significant violations of the sulfur dioxide (SO2) three-hour and

24-hour NAAQS due to low stack heights, high sulfur fuel, and the lack

of control equipment. The model also indicates that violations of the

eight-hour carbon monoxide (CO) and the annual nitrogen oxide

(NOX) NAAQS may occur. United States Air Force meteorological data

indicate that a significant percent of the predicted violations will

impact onshore areas of the island.

The SCREEN2 model does not use detailed site specific

meteorological data. CNMI could choose to perform additional modeling

using site specific meteorological data. EPA does not believe that the

concentrations of air pollutants predicted under the SCREEN2 model

would change enough using refined modeling to show compliance with the

NAAQS. However, EPA believes that additional modeling may help verify

the extent of the predicted SOX NAAQS exceedances and the

effectiveness of different strategies for achieving compliance with the

[[Page 47518]]

NAAQS. CNMI may choose to use the existing SCREEN2 modeling results or

conduct additional refined modeling.

4. Alternative Permitting Program Proposed by CNMI

The CNMI proposed an alternative program to address sources of air

pollution based on its current regulations and several proposed

changes. CNMI updated the petition on October 20, 1994, by submitting

the currently effective CNMI Air Pollution Control Regulations (CNMI

Regulations). The CNMI Regulations (part V.A) require the registration

of certain new and existing sources. The Director of the Division of

Environmental Quality may allow the construction or modification of a

major new source if the source will not endanger the attainment or

maintenance of NAAQS or violate the allowable air quality increments in

40 CFR 52.21 (c) and (d) (CNMI Regulations part V.E). EPA interprets

these rules to prohibit the air quality violations predicted by the

screening model. EPA is conditioning the waiver to require that CNMI

fully implement and enforce these currently effective regulations,

including provisions that require sources built after the effective

date of the regulations to apply physical and operational controls to

assure that NAAQS and PSD increments are not exceeded.

The CNMI petition also proposed revisions to the CNMI program that

would provide elements of an operating permit program similar to the

title V permitting program. On February 17, 1995, CNMI committed to

obtain additional authority to enforce permits and provide public

process if required by EPA. The petition also stated that CNMI could

modify the program to include all applicable Clean Air Act requirements

in the program and require monitoring and/or recordkeeping requirements

to ensure that sources comply with their emission limits. Therefore,

EPA is proposing that the CNMI adopt these elements in the alternative

operating permit program and submit the adopted regulations as a

revision to CNMI's SIP as a condition to granting the waiver. The CNMI

petition stated that CNMI could collect fees to fund the permitting

program, but did not commit to collecting these resources. EPA believes

that CNMI should have the flexibility to determine appropriate funding

mechanisms, but that sufficient resources must be available to fund an

alternate program.

5. Conditional Waiver

EPA is proposing to exempt CNMI from the requirement to develop a

part 70 permitting program and sources on CNMI from the requirement to

apply for a part 71 permit (unless specifically required by EPA) on the

condition that CNMI implement the alternative permitting program. This

would require that CNMI implement existing air quality regulations

addressing potential existing violations of air quality standards.

EPA is proposing that CNMI may conduct any additional modeling it

believes is necessary to yield more site-specific ambient emission

estimates. EPA is proposing a 1-year deadline for the completion of any

such modeling. CNMI's petition does not address what meterological data

is available, but EPA will consider any new information or comments

that address whether additional time would be necessary to collect

meterological data or whether existing sources of meterological data

are acceptable in the final rulemaking.

EPA is also proposing that CNMI submit a State Implementation Plan

(SIP) to address any confirmed violations within two years of the

effective date of the waiver, and ensure compliance with the NAAQS

within four years of the effective date of this waiver. In addition,

EPA is proposing that CNMI fully adopt enhancements to its existing

operating permit program and implement the alternative operating permit

program within two years of the effective date of the waiver and submit

these requirements as revisions to its SIP rules.

EPA will reopen the waiver if these conditions are not met or if

EPA determines that implementation of a title V permitting program is

necessary to ensure compliance with applicable Clean Air Act

requirements and protect air quality. If EPA determines that any area

will not meet the NAAQS, as determined under CAA section 110, within

four years of the effective date of the waiver, EPA will redesignate

that area non-attainment and require the appropriate attainment plans.

C. Guam

1. Description of Petition and Supporting Documents

The Governor of Guam submitted a petition to EPA on November 18,

1994. The petition consists of a 12-page narrative and 5 supporting

exhibits. The narrative portion of the petition is organized into

sections which describe: 1) the petition, the type of waiver requested,

and the basis for the petition; 2) compliance with primary ambient air

quality standards; 3) compliance with Section 112 of the CAA; 4) the

local economic effect of a title V operating permit program; and, 5)

additional unique geographical, meteorological, and local factors. The

supporting information includes: 1) a map of Guam; 2) an emissions

inventory; 3) source profiles and estimates of their actual and

potential emissions; and, 4) an economic analysis of an operating

permit program on Guam.

2. Analysis of Guam's Petition

EPA believes that the unique local circumstances presented in the

petition justify an extension of the deadlines in title V but do not

warrant a permanent exemption from title V of the Act. Guam's petition

requests a waiver based on several factors. The petition states that

implementing title V would be a burden for Guam and that Guam currently

lacks the technical resources to implement the program. In addition,

the petition states that title V is not necessary to ensure compliance

with air quality standards.

EPA agrees that Guam needs additional technical resources to

implement a title V permitting program and believes a three-year

extension in the deadline to adopt a title V program would allow the

Guam Environmental Protection Agency (GEPA) to secure additional

training and technical resources. In addition, an extension would allow

Guam the option of saving resources by adopting the federal operating

permit rule (currently proposed at 60 FR 20804; to be codified at 40

CFR part 71) by reference or by using a state or local rule as a

guideline rather than developing their own permitting rule. EPA

believes that three years will allow GEPA sufficient time to acquire

the technical resources to develop and implement a title V permitting

program.

While the petition states that imposing a title V permit program

would impose an economic burden, the data does not support this

assertion. Although businesses on Guam are unlikely to relocate due to

these fees, title V fees could have an impact on small businesses.

However, EPA believes that part 70 gives Guam flexibility to assess

different fees to different sources based on the expected economic

burden. The petition also states that per capita income in Guam is less

than per capita income on the mainland United States ($9,928 versus

$14,420 in 1990 dollars). EPA does not believe that the title V

permitting program would have a noticeable economic impact on citizens.

For instance, Guam's petition estimates that

[[Page 47519]]

title V costs to residential and local government electric users is

$183,000 (assuming the local utility increase rates to cover 100% of

its permit fees and other permit costs) for a population of 133,000.

For these reasons, EPA does not believe that implementation of a title

V permitting program on Guam is economically infeasible.

In addition, many significant sources of air pollution are located

on Guam. The petition identified 14 title V sources with actual

emissions in excess of 100 tons per year and 55 sources with actual

emissions of up to 85 tons per year, some of which may be subject to

title V because they have a potential to emit exceeding the major

source levels (see 40 CFR part 70.2). Guam has more title V sources

than the other two petitioners and more title V sources than most State

and local agencies in EPA Region IX. Air emissions on Guam result

mainly from equipment needed to generate electric power, including

boilers, fuel-oil storage tanks, diesel engines and combustion

turbines. According to Guam's petition, the major pollutant emitted in

1993 was SOx, with 12,500 tons from the largest source and 5,570 from

the second largest source. The total emissions inventory of 30,490 tons

per year was larger than the other areas requesting a waiver and larger

than 32 of the 40 State and local agencies in EPA Region IX that have

completed emissions inventories for their title V sources. EPA believes

that the large point sources on Guam, including major air toxics

sources, that would be subject to a title V program have a greater

impact on local air quality than sources on American Samoa and CNMI.

3. Alternative Air Quality Program

Title V is intended to implement Clear Air Act programs that are

designed to protect air quality. Guam's petition does not commit to or

propose an alternative operating permit or compliance program that

would ensure that air quality protections, such as air toxics controls

and emission limits for criteria pollutants, are achieved. Therefore,

it is not clear from the petition what procedures Guam would institute

to ensure that Clean Air Act objectives are achieved.

4. Conditional Extension

EPA is proposing to grant Guam an extension of the deadline for

developing and submitting a title V permitting program for three years

from the effective date of this rulemaking action, but not later than

November 15, 1998, which is five years beyond the statutory deadline

for submitting a complete title V permitting program. The Clean Air Act

originally gave state and local agencies three years to develop and

submit operating permit programs, and EPA believes that this time

period is sufficient for Guam to acquire sufficient technical resources

and to utilize EPA's part 71 regulation or develop its own program

using an approved state or local program as a model.

EPA is also granting title V sources on Guam a waiver from the

effective date of the part 71 permit program until five years from the

effective date of this rulemaking action, but not later than November

15, 2000, providing that Guam submits a timely and complete permitting

program. This two year difference between the deadline for submitting a

timely and complete title V program and the effective date of the part

71 program will allow EPA time to review Guam's program and allow Guam

an opportunity to correct any incomplete areas of their program or any

approval issues in their program. If a timely and complete program is

not submitted by Guam, the part 71 program will be effective three

years after the effective date of this rulemaking, or November 15,

1998, whichever is earlier. As proposed, the part 71 regulation

requires that sources submit permit applications within one year of the

effective date unless EPA establishes an earlier submittal date. For

more information, see the part 71 proposal at 60 FR 20804 (April 27,

1995).

D. Hazardous Air Pollutant Requirements for American Samoa, CNMI, and

Guam

1. Effective Date of Requirements Triggered by Title V

The Act prohibits section 325 waivers from section 112

requirements, and the petitioners do not request a waiver from section

112 requirements. This notice does not waive any requirements under

section 112 of the Act, including case-by-case Maximum Achievable

Control Technology (MACT) determinations under sections 112(g) and

112(j) of the Act. New and modified major HAP sources must apply MACT

under section 112(g) if EPA has not promulgated an applicable National

Emission Standard for Hazardous Air Pollutants (NESHAP; NESHAPs

promulgated after the 1990 Amendments to the Act are also commonly

referred to as MACT standards) for the source category. Existing major

HAP sources must apply for a title V permit containing MACT under

section 112(j) if EPA misses a NESHAP deadline for their source

category by 18 months (59 FR 26429). These two requirements are, in the

absence of a section 325 waiver, triggered by the effective date of a

title V program.

EPA is proposing to grant the waivers on the condition that these

section 112 requirements will be implemented from the effective date of

the waiver. Therefore, EPA is proposing that the effective date of this

waiver constitute the effective date of a title V program for American

Samoa, CNMI and Guam for the purposes of triggering section 112(g) and

112(j) requirements. While no sources subject to the requirements of

the 112(g) and 112(j) have yet been identified, this condition will

ensure that sources built or identified in the future will be subject

to these hazardous air pollutant reductions.

2. Implementation of Section 112 requirements

EPA will issue part 71 permits to any source subject to the 112(g)

and 112(j) programs in American Samoa, CNMI, and Guam under today's

proposal. Sources that are required to apply for a 112(g) or 112(j)

determination would be required to submit a complete part 71

application to EPA and EPA would issue a permit that includes 112(g)

and 112(j) requirements under the part 71 regulations. While the final

part 71 rule has not yet been promulgated, EPA is not aware of any

sources that would be subject to this provision in the near future and

anticipates that the part 71 rule (see 60 FR 20804 for proposal) will

be finalized before any sources become subject. For instance, EPA

expects that the 112(j) provisions will not be effective before 1997.

In addition, EPA has stated in its February 14, 1995 interpretive

notice (60 FR 8333) that the requirements of 112(g) are not effective

until EPA promulgates a final 112(g) rule. EPA anticipates that the

part 71 rule will be promulgated before any case-by-case determinations

in American Samoa, CNMI or Guam are necessary. EPA will consider any

comments received on the appropriate mechanism for implementing case-

by-case MACT determinations, and is specifically soliciting comments on

the appropriate mechanism for implementing case-by-case MACT if

promulgation of the part 71 rulemaking is delayed. EPA requests

information on any source that may be subject to section 112(g) in the

next two years in case the part 71 promulgation date is delayed past

the effective date of this waiver and the promulgation of the 112(g)

rule.

EPA is currently considering whether major sources of air toxics

subject to EPA MACT standards should also be subject to permitting

under part 71 in

[[Page 47520]]

the absence of a approved local title V program. Future MACT standards

may utilize title V permits (i.e. a part 70 or part 71 permit) to

establish specific compliance requirements or to allow operators

flexible options for meeting emission limits. EPA is also considering

whether title V permits are necessary to implement section 129(e)

municipal waste incinerator standards (see proposals at 59 FR 48198-

48228 (NSPS) and 48228-48258 (state programs for existing sources)),

which cover both criteria pollutants and hazardous air pollutants. The

proposal does not currently require these sources to obtain title V

permits. EPA will consider any comments on this issue and determine in

the final rulemaking whether proper implementation of the section 112

and section 129(e) standards require the permitting of subject sources

under title V.

Other section 112 requirements, such as 112(d) MACT standards,

automatically apply to all subject sources in American Samoa, CNMI, and

Guam and are enforceable by EPA. EPA will develop appropriate

mechanisms with the petitioners to identify subject sources and ensure

that sources comply with the standards. The petitioners have

demonstrated that they currently lack the technical resources to

develop a title V program, and EPA believes that greater technical

resources will be necessary to determine case-by-case MACT limits for

HAPs. If the petitioners develop the necessary technical resources and

meet other specified criteria, they may apply for delegation of the

section 112(g) and 112(j) programs by developing a title V program or

applying under section 112(l) of the Act (58 FR 62262 (November 16,

1993)).

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on all aspects of these proposed

waivers. Copies of the petitions, modeling data, and other information

relied upon for the proposed 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 October 13, 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, it does not have a

significant impact on a substantial number of small entities.

D. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the waiver proposed today does not include

a federal mandate that may result in estimated costs of $100 million or

more to either state, local, or tribal governments in the aggregate, or

to the private sector. This federal action approves waivers requested

by the petitioners to reduce the cost of implementing the Clean Air

Act. Accordingly, no additional costs to state, local, or tribal

governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 69

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Nitrogen oxides,

Operating permits, Reporting and recordkeeping requirements, Sulfur

dioxide, Volatile organic compounds.

Dated: August 25, 1995.

Felicia Marcus,

Regional Administrator.

Chapter I, title 40 of the Code of Federal Regulations is amended

as follows:

PART 69--[AMENDED]

1. The authority citation for part 69 continues to read as follows:

Authority: Sec. 325, Clean Air Act, as amended (42 U.S.C. 7625-

1).

Subpart A--Guam

2. Subpart A is amended by adding Sec. 69.13 to read as follows:

Sec. 69.13 Title V extension.

(a) The Administrator of the EPA grants the Territory of Guam an

extension until three years from [the effective date of the final

rule], but no later than November 15, 1998, from the requirement to

develop a title V permit program by November 15, 1993. The

Administrator of the EPA grants all title V sources located in Guam a

waiver, except as described in paragraph (b) of this section, from the

requirement to apply for and obtain a part 71 permit. The part 71

waiver shall expire on the earlier of three years from the earlier of

[the effective date of the final rule], or November 15, 1998. If Guam

does not submit a complete permit program, as defined in 40 CFR part

70, by the expiration date of the waiver, then 40 CFR part 71 shall

become effective for all subject sources in Guam on that date. 40 CFR

part 71 shall become effective for all sources on Guam two years from

the expiration of the waiver if Guam submits a timely and complete

program but does not have an approved program on that date.

(b) All section 112 requirements shall be implemented during the

period of the waiver. Sections 112 (g) and (j) of the Act shall apply

to all sources on Guam during the term of this waiver, and any subject

source shall submit a timely part 71 permit application to EPA

requesting a case-by-case 112(g) or 112(j) MACT determination. In

addition, Guam will develop a Memorandum of Understanding with EPA to

identify sources of hazardous air pollutants (HAPs).

Subpart B--American Samoa

3. Subpart B is amended by adding Sec. 69.22 to read as follows:

Sec. 69.22 Title V waiver.

(a) The Administrator of the EPA grants the Territory of American

Samoa an exemption from the requirement to

[[Page 47521]]

develop, implement, and submit for approval a title V operating permit

program and grants title V sources located in American Samoa an

exemption from the requirement to apply for and obtain a part 71 permit

except as described in paragraph (a)(3) of this section. This waiver is

subject to the following conditions:

(1) American Samoa shall implement the following program to protect

attainment of National Ambient Air Quality Standards as a condition of

the waiver:

(i) American Samoa shall collect complete meteorological data and

complete refined air quality modeling for the Pago Pago Harbor and

submit such data and modeling results to EPA within two years of

[effective date of the final rule].

(ii) American Samoa shall address any NAAQS exceedances discovered

through the modeling results with a State Implementation Plan (SIP)

that ensure compliance with the NAAQS within the earlier of three years

from the date such results are submitted to EPA and five years from

[the effective date of the final rule]. This plan shall be submitted by

three years from [the effective date of the final rule].

(2) American Samoa shall develop, implement, and submit to EPA for

approval an alternative permit program that meets the requirements

specified in EPA's June 28, 1989 guidelines.\1\ The program must be

submitted within two years of [effective date of the final rule] and

include the following elements:

\1\ These guidelines were published in the Federal Register on

June 28, 1989 at 54 FR 27282.

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(i) Permit content:

(A) Permits must contain and ensure compliance with all applicable

federal requirements, as defined under section 40 CFR 70.2; and

(B) Contain monitoring, recordkeeping and reporting requirements

sufficient to assure compliance with applicable federal requirements;

(ii) The collection of fees from permitted sources or other

revenues in an amount that will pay for the cost of operation of such a

program;

(iii) Public notice and a 30-day public comment on each major

source permit, including an opportunity for EPA review;

(iv) Civil and criminal penalties up to $10,000 per day per

violation; and

(v) A schedule for issuing permits to all major sources, as defined

under 40 CFR 70.2, within three years of EPA approval of the alternate

operating program.

(3) All section 112 requirements shall be implemented during the

period of the waiver. Sections 112(g) and (j) of the Act shall apply to

all sources on American Samoa during the term of this waiver, and any

subject source shall submit a timely part 71 permit application to EPA

requesting a case-by-case 112(g) or 112(j) MACT determination. American

Samoa shall develop a Memorandum of Understanding with EPA to identify

sources of hazardous air pollutants (HAPs).

(b) EPA may modify or revoke this waiver for cause, and shall

reopen the waiver if the conditions under paragraph (a) of this section

are not met.

Subpart C--Commonwealth of the Northern Mariana Islands

4. Subpart C is amended by adding Sec. 69.32 to read as follows:

Sec. 69.32 Title V exemption.

(a) The Administrator of the EPA grants the Commonwealth of the

Northern Mariana Islands an exemption from the requirement to develop,

implement, and submit for approval a title V operating permit program

and grants title V sources located in CNMI an exemption from the

requirement to apply for and obtain a part 71 permit except as

described in paragraph (a)(3) of this section. This waiver is subject

to the following conditions:

(1) CNMI shall implement the following program to protect

attainment of National Ambient Air Quality Standards as a condition of

the waiver:

(i) CNMI shall enforce its January 19, 1987 Air Pollution Control

(APC) regulations, including the requirement that all new or modified

sources comply with the NAAQS and Prevention of Significant

Deterioration (PSD) increments.

(ii) CNMI may conduct air emissions modeling, using EPA guidelines,

for power plants located on Saipan to assess EPA's preliminary

determination of non-compliance with the SOx NAAQS. CNMI shall complete

and submit any additional modeling to EPA within one year from [the

effective date of the final rule] to determine whether existing power

plants cause or contribute to violation of the NAAQS and PSD increments

in the APC and 40 CFR 52.21.

(iii) If CNMI's additional modeling demonstrates non-attainment

with NAAQS based on EPA guidelines, or if CNMI elects to accept EPA's

preliminary determination that the NAAQS have been exceeded, CNMI shall

submit a revised State Implementation Plan that ensures compliance with

the NAAQS. The Plan shall be submitted within one year from [the

effective date of the final rule] or, if CNMI elects to conduct

additional modeling, within two years of [the effective date of the

final rule]. CNMI shall take appropriate corrective actions through the

SIP to demonstrate compliance with applicable NAAQS within four years

from [the effective date of the final rule].

(2) CNMI shall develop, implement, and submit to EPA for approval

into CNMI's SIP an alternative permit program that meets the

requirements specified in EPA's June 28, 1989 guidelines. The program

shall be submitted within two years of [the effective date of the final

rule] and include the following elements:

(i) Permit content requirements:

(A) Permits must contain and ensure compliance with all applicable

federal requirements, as defined under section 40 CFR 70.2; and

(B) Contain monitoring, recordkeeping and reporting requirements

sufficient to assure compliance with applicable federal requirements;

(ii) The collection of fees from permitted sources or other

revenues in an amount that will pay for the cost of operation of such a

program;

(iii) Public notice and a 30-day public comment on each major

source permit, including an opportunity for EPA review;

(iv) Civil and criminal penalties up to $10,000 per day per

violation; and

(v) A schedule for issuing permits to all major sources, as defined

under 40 CFR 70.2, within three years of EPA approval of the alternate

operating program.

(3) All section 112 requirements shall be implemented during the

period of the waiver. Sections 112 (g) and (j) of the Act shall apply

to all sources on CNMI during the term of this waiver and all subject

sources shall submit a timely application for a part 71 permit. CNMI

shall develop a Memorandum of Understanding with EPA to identify

sources of hazardous air pollutants (HAPs).

(b) EPA may modify or revoke this waiver for cause, and shall

reopen the waiver if the conditions under paragraph a are not met. This

exemption from requirements of title V of the Act shall continue until

modified or terminated through rulemaking procedures.

[FR Doc. 95-22490 Filed 9-12-95; 8:45 am]

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