Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Proposed Rules 20941

§ 51.360 Waivers and compliance via

diagnostic inspection.

The program may allow the issuance

of a waiver, which is a form of

compliance with the program

requirements that allows a motorist to

comply without meeting the applicable

test standards, as long as the prescribed

criteria described below are met.

(a) * * *

(1) Waivers shall be issued only after

a vehicle has failed a retest performed

after all qualifying repairs have been

completed. Qualifying repairs include

repairs of primary emission control

components performed within 60 days

of the test date.

* * * * *

(5) General repairs shall be performed

by a recognized repair technician (i.e.,

one professionally engaged in vehicle

repair, employed by a going concern

whose purpose is vehicle repair, or

possessing nationally recognized

certification for emission-related

diagnosis and repair) in order to qualify

for a waiver. I/M programs may allow

repairs of primary emission control

components performed by nontechnicians (e.g., owners) to apply

toward the waiver limit.

(6) In basic programs, a minimum of

$75 for pre-81 vehicles and $200 for

1981 and newer vehicles shall be spent

in order to qualify for a waiver. These

model year cutoffs and the associated

dollar limits must be in full effect no

later than January 1, 1998. Prior to

January 1, 1998, states may adopt any

minimum expenditure commensurate

with the waiver rate committed to for

the purposes of modeling compliance

with the basic I/M performance

standard.

(7) Beginning on January 1, 1998,

enhanced I/M programs shall require

the motorist to make an expenditure of

at least $450 in repairs to qualify for a

waiver. The I/M program shall provide

that the $450 minimum expenditure

shall be adjusted in January of each year

by the percentage, if any, by which the

Consumer Price Index for the preceding

calendar year differs from the Consumer

Price Index of 1989. Prior to January 1,

1998, states may adopt any minimum

expenditure commensurate with the

waiver rate committed to for the

purposes of modeling compliance with

the relevant enhanced I/M performance

standard.

* * * * *

(ii) The revision of the Consumer

Price Index which is most consistent

with the Consumer Price Index for

calendar year 1989 shall be used. The

first Consumer Price Index adjustment

to the minimum $450 waiver

expenditure shall go into effect on

January 1, 1998.

* * * * *

(9) A time extension, not to exceed

the period of the inspection frequency,

may be granted to obtain needed repairs

on a vehicle in the case of economic

hardship when waiver requirements

have not been met. After having

received a time extension, a vehicle

must fully pass the applicable test

standards before becoming eligible for

another time extension. The extension

for a vehicle shall be tracked and

reported by the program.

(b) Compliance via diagnostic

inspection. Vehicles subject to a

transient IM240 emission test at the

cutpoints established in §§ 51.351 (f)(7)

and (g)(7) of this subpart may be issued

a certificate of compliance without

meeting the prescribed emission

cutpoints, if, after failing a retest on

emissions, a complete, documented

physical and functional diagnosis and

inspection performed by the I/M agency

or a contractor to the I/M agency show

that no additional emission-related

repairs are needed. Any such exemption

policy and procedures shall be subject

to approval by the Administrator.

* * * * *

4. Section 51.372 is amended by

revising paragraph (c) introductory text,

(c)(3) and (c)(4), and paragraph (e) to

read as follows:

§ 51.372. State implementation plan

submissions.

* * * * *

(c) Redesignation requests. Any

nonattainment area that EPA determines

would otherwise qualify for

redesignation from nonattainment to

attainment shall receive full approval of

a State Implementation Plan (SIP)

submittal under Sections 182(a)(2)(B) or

182(b)(4) if the submittal contains the

following elements:

* * * * *

(3) A contingency measure consisting

of a commitment by the Governor or the

Governor’s designee to adopt or

consider adopting regulations to

implement an I/M program to correct a

violation of the ozone or CO standard or

other air quality problem, in accordance

with the provisions of the maintenance

plan.

(4) A commitment that includes an

enforceable schedule for adoption and

implementation of the I/M program, and

appropriate milestones. The schedule

shall include the date for submission of

a SIP meeting all of the requirements of

this subpart. Schedule milestones shall

be listed in months from the date EPA

notifies the state that it is in violation

of the ozone or CO standard or any

earlier date specified in the state plan.

Unless the state, in accordance with the

provisions of the maintenance plan,

chooses not to implement I/M, it must

submit a SIP revision containing an I/M

program no more than 18 months after

notification by EPA.

* * * * *

(e) SIP submittals to correct

violations. SIP submissions required

pursuant to a violation of the ambient

ozone or CO standard (as discussed in

§ 51.372(c)) shall address all of the

requirements of this subpart. The SIP

shall demonstrate that performance

standards in either § 51.351 or § 51.352

shall be met using an evaluation date

(rounded to the nearest January for

carbon monoxide and July for

hydrocarbons) seven years after the date

EPA notifies the state that it is in

violation of the ozone or CO standard or

any earlier date specified in the state

plan. Emission standards for vehicles

subject to an IM240 test may be phased

in during the program but full standards

must be in effect for at least one

complete test cycle before the end of the

5-year period. All other requirements

shall take effect in within 24 months of

the date EPA notifies the state that it is

in violation of the ozone or CO standard

or any earlier date specified in the state

plan. The phase-in allowances of

§ 51.373(c) of this subpart shall not

apply.

[FR Doc. 95–10505 Filed 4–27–95; 8:45 am]

BILLING CODE 6560–50–P

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.

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
20942 Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Proposed Rules

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)
Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Proposed Rules 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 subsection 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) Subsection 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)
20944 Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Proposed Rules

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
Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Proposed Rules 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 § 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
20946 Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Proposed Rules

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 nonpart 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

40 CFR Parts 180, 185 and 186

[PP 1F3992, 2F4109, 2F4114, 7F3488,

7F3560, 9F3770, FAP 7H3560 and 7H5543/

P615; FRL–4951–9]

RIN 2070–AC18

Pesticide Tolerances for LambdaCyhalothrin

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to establish

time-limited tolerances with an

expiration date of November 15, 1997,

for residues of the synthetic pyrethroid

lambda-cyhalothrin in or on the raw

agricultural commodities (RACs)

soybeans, wheat, forage, hay, straw,

grain dust; sweet corn; sunflower, seeds

and forage; sorghum grain and dust;

corn (grain field and pop); corn fodder

and forage; peanuts; meat, fat, and meat

byproducts (mbyp) and eggs of poultry

and increase tolerances in milk, fat,

meat and mbyp of cattle, goats, hogs,

horses and sheep; and in or on the

processed food/feed items corn grain

flour, sunflower hulls, sunflower oil,

and wheat bran. Zeneca Ag Products,

Inc., and Coopers Animal Health, Inc.,

submitted petitions to EPA under the

Federal Food, Drug and Cosmetic Act

(FFDCA) proposing tolerances and

regulations to establish maximum

permissible levels for residues of the

insecticide.

DATES: Comments, identified by the

document control numbers, [PP 1F3992,

2F4109, 2F4114, 7F3488, 7F3560,

9F3770, FAP 7H3560 and 7H5543/

P615], must be received on or before

May 30, 1995.

ADDRESSES: By mail, submit written

comments to: Public Response and

Program Resources Branch, Field

Operations Division (7506C), Office of

Pesticide Programs, Environmental

Protection Agency, Rm. M3708, 401 M

St., SW., Washington, DC 20460. In

person, bring comments to: Rm. 1132,

CM #2, 1921 Jefferson Davis Hwy.,

Arlington, VA 22202.

Information submitted as a comment

concerning this document may be

claimed confidential by marking any

part or all of that information

as‘‘Confidential Business Information’’

(CBI). Information so marked will not be

disclosed except in accordance with

procedures set forth in 40 CFR part 2.

A copy of the comment that does not

contain CBI must be submitted for

inclusion in the public record.

Information not marked confidential

may be disclosed publicly by EPA

without prior notice. All written

comments will be available for public

inspection in Rm. 1132 at the address

given above, from 8 a.m. to 4 p.m.,

Monday through Friday, excluding legal

holidays.

Comments and data may also be

submitted electronically by sending

electronic mail (e-mail) to: oppdocket@epamail.epa.gov. Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

Comments and data will also be

accepted on disks in WordPerfect in 5.1

file format or ASCII file format. All

comments and data in electronic form

must be identified by the docket number

[1F3992, 2F4109, 2F4114, 7F3488,

7F3560, 9F3770, FAP 7H3560 and

7H5543/P615]. No CBI should be

submitted through e-mail. Electronic

comments on this proposed rule may be

filed online at many Federal Depository

Libraries. Additional information on

electronic submissions can be found

below in this document.

FOR FURTHER INFORMATION CONTACT: By

mail: George T. LaRocca, Product

Manager (PM) 13, Registration Division

(7505C), Office of Pesticide Programs,

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460.

Office location and telephone number:

Second Floor, Crystal Mall #2, 1921

Jefferson Davis Hwy., Arlington, VA

22202, (703)-305-6100; e-mail:

larocca.george@epamail.epa.gov.