[Federal Register Volume 60, Number 82 (Friday, April 28, 1995)]
[Proposed Rules]
[Pages 20941-20946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10504]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[ND-001; FRL-5199-8]


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

AGENCY: Environmental protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: The EPA proposes interim approval of the Operating Permits 
Program submitted by the State of North Dakota for the purpose of 
complying with Federal requirements for an approvable State program to 
issue operating permits to all major stationary sources, and to certain 
other sources. In the alternative, EPA proposes disapproval of the 
North Dakota Operating Permits Program if the corrective action 
necessary for final interim PROGRAM approval is not 
[[Page 20942]] completed and submitted to EPA prior to the statutory 
deadline.

DATES: Comments on this proposed action must be received in writing by 
May 30, 1995.

ADDRESSES: Comments should be addressed to Laura Farris at the Region 8 
address. Copies of the State's submittal and other supporting 
information used in developing the proposed rule are available for 
inspection during normal business hours at the following location: U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, suite 500, 
Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT:
Laura Farris, 8ART-AP, U.S. Environmental Protection Agency, Region 8, 
Air Programs Branch, 999 18th Street, suite 500, Denver, Colorado 
80202, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under title V of the 1990 Clean Air Act Amendments 
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has 
promulgated rules which define the minimum elements of an approvable 
State operating permits program and the corresponding standards and 
procedures by which the EPA will approve, oversee, and withdraw 
approval of State operating permits programs (see 57 FR 32250 (July 21, 
1992)). These rules are codified at 40 Code of Federal Regulations 
(CFR) part 70 (part 70). Title V requires States to develop, and submit 
to EPA, programs for issuing these operating permits to all major 
stationary sources and to certain other sources.
    The Act requires that States develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within 1 year after receiving the submittal. The EPA's 
program review occurs pursuant to section 502 of the Act and the part 
70 regulations, which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of part 70, EPA may grant the program interim approval for 
a period of up to 2 years. If EPA has not fully approved a program by 2 
years after the November 15, 1993 date, or by the end of an interim 
program, it must establish and implement a Federal program.

B. Federal Oversight and Sanctions

    If EPA were to finalize this proposed interim approval, it would 
extend for two years following the effective date of final interim 
approval, and could not be renewed. During the interim approval period, 
the State would be protected from sanctions, and EPA would not be 
obligated to promulgate, administer and enforce a Federal permits 
program for the State. Permits issued under a program with interim 
approval have full standing with respect to part 70, and the 1-year 
time period for submittal of permit applications by subject sources 
begins upon the effective date of interim approval, as does the 3-year 
time period for processing the initial permit applications.
    Following final interim approval, if the State failed to submit a 
complete corrective program for full approval by the date 6 months 
before expiration of the interim approval, EPA would start an 18-month 
clock for mandatory sanctions. If the State then failed to submit a 
corrective program that EPA found complete before the expiration of 
that 18-month period, EPA would apply sanctions as required by section 
502(d)(2) of the Act, which would remain in effect until EPA determined 
that the State had corrected the deficiency by submitting a complete 
corrective program.
    If, following final interim approval, EPA were to disapprove the 
State's complete corrective program, EPA would be required under 
section 502(d)(2) to apply sanctions on the date 18 months after the 
effective date of the disapproval, unless prior to that date the State 
had submitted a revised program and EPA had determined that it 
corrected the deficiencies that prompted the disapproval.
    In addition, discretionary sanctions may be applied where warranted 
any time after the end of an interim approval period if a state has not 
timely submitted a complete corrective program or EPA has disapproved a 
submitted corrective program. Moreover, if EPA has not granted full 
approval to a state program by the expiration of an interim approval 
and that expiration occurs after November 15, 1995, EPA must 
promulgate, administer and enforce a Federal permits program for that 
state upon interim approval expiration.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials
    The Governor of North Dakota submitted an administratively complete 
title V Operating Permit Program (PROGRAM) for the State of North 
Dakota on April 28, 1994. EPA deemed the PROGRAM administratively 
complete in a letter to the Governor dated June 28, 1994. The PROGRAM 
submittal includes a legal opinion from the Attorney General of North 
Dakota stating that the laws of the State provide adequate legal 
authority to carry out all aspects of the PROGRAM, and a description of 
how the State intends to implement the PROGRAM. The submittal 
additionally contains evidence of proper adoption of the PROGRAM 
regulations, permit application forms, a data management system and a 
fee adequacy demonstration.
2. Regulations and Program Implementation
    The North Dakota PROGRAM, including the operating permit regulation 
(Article 33-15, Section 33-15-14-06, of the North Dakota Administrative 
Code--Air Pollution Control Rules (NDAC)), substantially meets the 
requirements of 40 CFR parts 70.2 and 70.3 with respect to 
applicability; parts 70.4, 70.5, and 70.6 with respect to permit 
content including operational flexibility; part 70.5 with respect to 
complete application forms and criteria which define insignificant 
activities; part 70.7 with respect to public participation and minor 
permit modifications; and part 70.11 with respect to requirements for 
enforcement authority.
    Sub-section 33-15-14-06.4.c of the NDAC defines the emissions units 
or activities that sources do not have to include in their operating 
permit application (insignificant activities). This definition includes 
an emission threshold of 5 tons per year (tpy) for particulates, 10 tpy 
for sulfur dioxide, 2.5 tpy for hydrogen sulfide, 25 tpy for carbon 
monoxide, 10 tpy for nitrogen oxides, 10 tpy for ozone, 2.5 tpy for 
reduced sulfur compounds and 10 tpy for volatile organic compounds (see 
PROGRAM deficiencies below). This provision also states that the 
applicant may not omit information needed to determine applicable 
requirements or to evaluate the fee amount required. These emission 
thresholds do not apply to hazardous air pollutants (HAPs) listed in 
section 112(b) of the Act. However, in a letter from the State to EPA 
dated October 18, 1994, the State discussed several proposed changes to 
their PROGRAM submittal. One of the proposed changes would establish an 
insignificant activities emission threshold of 0.5 tpy for HAPs, which 
is an acceptable level.
    Part 70 of the operating permits regulations requires prompt 
reporting of deviations from the permit requirements. Section 
70.6(a)(3)(iii)(B) [[Page 20943]] of the Federal permitting regulation 
requires the permitting authority to define ``prompt'' in relation to 
the degree and type of deviation likely to occur and the applicable 
requirements. Although the permit program regulations should define 
``prompt'' for purposes of administrative efficiency and clarity, an 
acceptable alternative is to define ``prompt'' in each individual 
permit. The EPA believes that ``prompt'' should generally be defined as 
requiring reporting within two to ten days of the deviation. Two to ten 
days is sufficient time in most cases to protect public health and 
safety as well as to provide a forewarning of potential problems. For 
sources with a low level of excess emissions, a longer time period may 
be acceptable. However, prompt reporting must be more frequent than the 
semiannual reporting requirement, given that this is a distinct 
reporting obligation under section 70.6(a)(3)(iii)(A) of the Federal 
permitting regulation. Where ``prompt'' is defined in the individual 
permit but not in the program regulations, EPA may veto permits that do 
not contain sufficiently prompt reporting of deviations. Sub-section 
33-15-14-06.5.a(3)(c)[2] of the NDAC states that ``prompt'' will be 
defined in the permit consistent with chapter 33-15-01 of the NDAC, 
``General Provisions'', and the applicable requirements.
    North Dakota has the authority to issue a variance from air 
pollution control requirements imposed by State law (See North Dakota 
Century Code 23-25-03.11 and North Dakota Administrative Code 33-15-01-
07.) The EPA regards these provisions as wholly external to the PROGRAM 
submitted for approval under part 70, and consequently is proposing to 
take no action on these provisions of State law. The EPA has no 
authority to approve provisions of State law, such as the variance 
provisions referred to, which are inconsistent with the Act. The EPA 
does not recognize the ability of a permitting authority to grant 
relief from the duty to comply with a federally enforceable part 70 
permit, except where such relief is granted through procedures allowed 
by part 70. The EPA reserves the right to enforce the terms of the part 
70 permit where the permitting authority purports to grant relief from 
the duty to comply with a part 70 permit in a manner inconsistent with 
part 70 procedures.
    Comments noting deficiencies in the North Dakota PROGRAM were sent 
to the State in a letter dated December 22, 1994. The deficiencies were 
segregated into those that require corrective action prior to interim 
PROGRAM approval, and those that require corrective action prior to 
full PROGRAM approval. In a letter dated January 5, 1995, the State 
committed to finalize and submit to EPA by February 15, 1995 all 
corrective actions required for interim PROGRAM approval. The State 
submitted these corrective actions in letters dated February 22, 1995, 
and March 20, 1995. EPA has reviewed these corrective actions and has 
determined them to be adequate to allow for interim PROGRAM approval 
with the following exception: Section IX of the PROGRAM submittal 
(Implementation of other Titles of the Act), part B.4 (Implementation 
Schedule) does not address case-by-case MACT under section 112(j) of 
the Act. The PROGRAM should require permit applications from sources 
subject to section 112(j) of the Act within 18 months after EPA fails 
to promulgate a MACT standard. Prior to final interim PROGRAM approval, 
the State must address how it will implement section 112(j) of the Act. 
The State's February 22, 1995 letter stated that it is currently in the 
process of adopting rules for implementation of section 112(j) of the 
Act which were promulgated under 40 CFR part 63, subpart B. These 
rules, which are being adopted by reference, are expected to be 
finalized by June, 1995. EPA must receive the final, adopted copy of 
these rules and determine them to be adequate before proceeding with 
final interim PROGRAM approval.
    Areas in which the North Dakota PROGRAM is deficient and requires 
corrective action prior to full PROGRAM approval are as follows: (1) 
EPA believes that the insignificant emission levels listed in sub-
section 33-15-14-06.4.c of the NDAC for various air contaminants are 
too high (emission levels are set at approximately 25% of the PSD major 
modification significant levels). It is possible that the total 
emissions from such ``insignificant'' emissions units may indeed be 
greater than the major modification significance levels or even greater 
than the major source threshold. EPA has issued informal guidance 
stating that a State's emissions caps for defining insignificant 
activities should generally be no more than 1-2 tons per year for 
criteria pollutants. Prior to full PROGRAM approval, the State must 
revise sub-section 33-15-14-06.4.c of the NDAC to lower the 
insignificant emissions unit threshold for criteria pollutants to more 
reasonable levels. (2) Sub-section 33-15-14-06.5.a.(1)(c) of the NDAC 
states, ``Where the state implementation plan [SIP] or this article 
allows a determination of an alternative emission limit at a title V 
source, equivalent to that contained in the plan, to be made in the 
permit issuance, renewal, or significant modification process * * *.'' 
In order to implement this provision, the State must adopt specific 
provisions which detail how to determine that an alternative mission 
limit is equivalent to that in the SIP, and EPA must approve the 
provisions as part of the SIP. Until this can be accomplished, and 
prior to full PROGRAM approval, the State must delete the words ``or 
this article'' from the first line of sub-section 33-15-14-
06.5.a.(1)(c) of the NDAC. (3) Sub-section 33-15-14-06.5.a.(11) of the 
NDAC does not include the requirements of 40 CFR 70.4(b)(12). 
Specifically, prior to full PROGRAM approval, sub-section 33-15-14-
06.5.a(11) of the NDAC must be revised to state that changes in 
emissions are allowed by this sub-section provided that they are not 
modifications under title I of the Act and the changes do not exceed 
the emissions allowed under the permit. (4) Sub-section 33-15-14-
06.5.f.(1) of the NDAC states that ``* * * as of the date of permit 
issuance, the source is considered to be in compliance with any 
applicable requirements * * *.'' EPA's permit shield provision in 40 
CFR 70.6(f) requires such considerations to be dependent on compliance 
with the conditions of the permit. Thus, prior to full PROGRAM 
approval, the State must revise sub-section 33-15-14-06.5.f.(1) of the 
NDAC to read ``* * * the department shall include in a title V permit 
to operate a provision stating that compliance with the conditions of 
the permit shall be deemed compliance with any applicable requirements 
as of the date of permit issuance * * *.'' (5) Subsection 33-15-14-
06.5.a.(8) of the NDAC states that, ``No permit revision shall be 
required, under any approved economic incentives, marketable permits, 
emissions trading and other similar programs or processes for changes 
that are provided for in the permit and the state implementation plan 
or this article.'' Sub-sections 33-15-14-06.5.a.(10) and 33-15-14-
06.6.e.(1)(a)[2] of the NDAC are related. Currently, the State does not 
have an economic incentives, marketable permits or generic emissions 
trading program approved in its SIP, and these provisions cannot be 
implemented by the State. Prior to full PROGRAM approval, the State 
must delete ``or this article'' from sub-section 33-15-14-06.5.a(8) of 
the NDAC, and ``this article'' from sub-sections 33-15-14-06.5.a.(10) 
[[Page 20944]] and 33-15-14-06.6.e.(1)(a)[2] of the NDAC to clarify 
that, in order to implement these provisions, the State must have an 
economic incentives, marketable permits or generic emissions trading 
program approved in its SIP. (6) Section IV of the PROGRAM submittal 
(Attorney General's Legal Opinion), part XX (Limitations on Judicial 
Review), does not cite to relevant State laws or regulations or to 
State case law, and, instead of discussing the provisions of North 
Dakota laws, largely discusses Federal regulations. The opinion should 
discuss and reference North Dakota law which ensures that the 
provisions for judicial review in North Dakota Century Code (N.D.C.C.) 
Chapter 28-23-14 and 15 and in NDAC Article 33-22 are the exclusive 
means for obtaining judicial review of the terms and conditions of 
permits and that petitions for judicial review must be filed within the 
90-day periods discussed in 40 CFR 70.4(b)(3)(xii), Prior to full 
PROGRAM approval, the State must augment the Attorney General's 
opinion, providing discussion of and citation to case law, statutes, 
and regulations which address the requirements of 40 CFR 
70.4(b)(3)(xii), or, if such an opinion cannot be rendered, the State 
must change its statutes and/or regulations to ensure that the 
requirements of 40 CFR 70.4(b)(3)(xii) are met. (7) Section IV of the 
PROGRAM submittal (Attorney General's Legal Opinion), part XVII (Final 
Agency Action on Permits), indicates that under State law, ``final 
permit action'' includes the failure of the State to take final action 
on an application for a permit, permit renewal, or permit revision 
within the time specified in the regulations. It also indicates that 
the State's failure to take final action within 90 days of receipt of 
an application for a minor permit modification (or 180 days for minor 
modifications subject to group processing) is subject to judicial 
review. For support of these assertions, the opinion cites to N.D.C.C. 
28-32 and NDAC Article 33-22. EPA could not determine whether these 
provisions support a right to judicial review in cases where the State 
fails to act in a timely way on a permit application. Prior to full 
PROGRAM approval, the State must augment the Attorney General's 
opinion, providing discussion of and citation to case law and/or 
specific statutory or regulatory provisions which provide for judicial 
review in cases of State inaction, consistent with the requirements of 
40 CFR 70.4(b)(3)(xi), or if such an opinion cannot be rendered, the 
State must change its statutes and/or regulations to ensure that the 
requirements of 40 CFR 70.4(b)(3)(xi) are met. (8) Section IV of the 
PROGRAM submittal (Attorney General's Legal Opinion), part XIV 
(Enforcement of Permits Program Requirements), states that State law 
provides civil and criminal enforcement authority consistent with 40 
CFR 70.11. EPA was unable to determine from the opinion whether North 
Dakota's PROGRAM is consistent in all respects with 40 CFR 70.11, and 
in particular with the requirement for maximum fines of not less than 
$10,000 per day per violation. Prior to full PROGRAM approval, the 
State must augment the Attorney General's opinion, providing citation 
to and discussion of case law indicating that the PROGRAM meets the 
penalty requirements contained in 40 CFR 70.11, or, if such an opinion 
cannot be rendered, the State must change its statutes and/or 
regulations to ensure that the requirements of 40 CFR 70.11 are met.
    Refer to the technical support document accompanying this 
rulemaking for a detailed explanation of each comment and the 
corrective actions required of the State.
3. Fee Adequacy Demonstration
    The North Dakota PROGRAM includes a fee structure that collects in 
the aggregate fees that are below the presumptive minimum set in part 
70. Therefore, it was necessary for the State to include a fee adequacy 
demonstration in their PROGRAM submittal to demonstrate that the 
State's title V fee structure would collect sufficient fees to cover 
the reasonable direct and indirect costs of developing and 
administering the PROGRAM. The fee adequacy demonstration included a 
four year workload analysis and a cash flow analysis. The fee structure 
for fiscal year 1995 includes a fee of $10 per ton with a cap of 
$100,000 per source. These fees are projected to increase to $14.42 per 
ton with a cap of $109,000 per source by fiscal year 1998. After 
careful review, the State has determined that these fees would support 
the North Dakota PROGRAM costs as required by section 70.9(a) of the 
Federal operating permitting regulation.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation
    North Dakota has demonstrated in its PROGRAM submittal adequate 
legal authority to implement and enforce all section 112 requirements 
through the title V permit. This legal authority is contained in North 
Dakota's enabling legislation and in regulatory provisions defining 
``applicable requirements'' and stating that the permit must 
incorporate all applicable requirements. EPA has determined that this 
legal authority is sufficient to allow North Dakota to issue permits 
that assure compliance with all section 112 requirements, and to carry 
out all section 112 activities, with the exception noted in section 
II.A.2 above. Therefore, contingent upon the State completing the above 
noted corrective action, EPA will consider that the State of North 
Dakota's legal authority is sufficient to allow the State to issue 
permits that assure compliance with all section 112 requirements, and 
to carry out all section 112 activities. For further rationale on this 
interpretation, please refer to the Technical Support Document 
accompanying this rulemaking and the April 13, 1993 guidance memorandum 
titled ``Title V Program Approval Criteria for Section 112 
Activities,'' signed by John Seitz, Director of the Office of Air 
Quality Planning and Standards.
b. Implementation of 112(g)
    On February 14, 1995 EPA published an interpretive notice (see 60 
FR 8333) that postpones the effective date of section 112(g) until 
after EPA has promulgated a rule addressing that provision. The section 
112(g) interpretive notice explains that EPA is still considering 
whether the effective date of section 112(g) should be delayed beyond 
the date of promulgation of the Federal rule so as to allow states time 
to adopt rules implementing the Federal rule, and that EPA will provide 
for any such additional delay in the final section 112(g) rulemaking. 
Unless and until EPA provides for such an additional postponement of 
section 112(g), North Dakota must be able to implement section 112(g) 
during the period between promulgation of the Federal section 112(g) 
rule and adoption of implementing State regulations. EPA believes that 
North Dakota can utilize its construction review program to serve as a 
procedural vehicle for implementing section 112(g) and making these 
requirements Federally enforceable between promulgation of the Federal 
section 112(g) rule and adoption of implementing State regulations. For 
this reason, EPA is proposing to approve North Dakota's construction 
permitting program found in section 33-15-14-02 of the State's 
regulations under the authority of title V and part 70 solely for the 
purpose of implementing section 112(g) during the transition period to 
meet the requirements of section 112(g). Since the approval would be 
for the single purpose of providing a [[Page 20945]] mechanism to 
implement section 112(g) during the transition period, the approval 
would be without effect if EPA decides in the final section 112(g) rule 
that sources are not subject to the requirements of the rule until 
State regulations are adopted. Also, since the approval would be for 
the limited purpose of allowing the State sufficient time to adopt 
regulations, EPA proposes to limit the duration of the approval to 12 
months following promulgation by EPA of its section 112(g) rule. North 
Dakota's construction permitting program allows permit requirements to 
be established for all air contaminants (which is defined in section 
33-15-01-04 of the NDAC and includes all of the hazardous air 
pollutants (HAPs) listed in section 112(b) of the Act).
c. Program for Straight Delegation of Section 112 Standards
    Requirements for approval, specified in 40 CFR Sec. 70.4(b), 
encompass section 112(l)(5) requirements for approval of a program for 
delegation of the provisions of 40 CFR part 63, Subpart A, and section 
112 standards promulgated by EPA as they apply to part 70 sources, as 
well as non-part 70 sources. Section 112(l)(5) requires that the 
State's program contain adequate authorities, adequate resources for 
implementation, and an expeditious compliance schedule, which are also 
requirements under part 70. Therefore, EPA is also proposing to grant 
approval under section 112(l)(5) and 40 CFR part 63.91 of the State's 
program for receiving delegation of section 112 standards that are 
unchanged from the Federal standards as promulgated. North Dakota has 
informed EPA that it intends to accept delegation of section 112 
standards through incorporation by reference. This program applies to 
both existing and future standards.
    The radionuclide national emission standard for HAPs (NESHAP) is a 
section 112 regulation and an applicable requirement under the State 
PROGRAM. Currently the State of North Dakota has no part 70 sources 
which emit radionuclides. However, sources which are not currently part 
70 sources may be defined as major and become part 70 sources under 
forthcoming Federal radionuclide regulations. In that event, the State 
will be responsible for issuing part 70 permits to those sources.
d. Program for Implementing Title IV of the Act
    North Dakota's PROGRAM contains adequate authority to issue permits 
which reflect the requirements of title IV of the Act, and commits to 
adopt the rules and requirements promulgated by EPA to implement an 
acid rain program through the title V permit.

B. Options for Approval/Disapproval and Implications

    The EPA is proposing to grant interim approval to the operating 
permits program submitted by the State of North Dakota on April 28, 
1994. If promulgated, the State must complete the following corrective 
action, as discussed above, to receive final interim PROGRAM approval: 
Adopt rules for implementation of section 112(j) of the Act which were 
promulgated under 40 CFR part 63, subpart B.
    The State must complete the following corrective actions, as 
discussed above, to receive full PROGRAM approval: (1) The State must 
revise sub-section 33-15-14-06.4.c of the NDAC to lower the 
insignificant emissions unit threshold for criteria pollutants to more 
reasonable levels. (2) In order to implement sub-section 33-15-14-
06.5.a.(1)(c) of the NDAC, the State must adopt specific provisions 
which detail how to determine that an alternative emission limit is 
equivalent to that in the SIP, and EPA must approve the provisions as 
part of the SIP. Until this can be accomplished, the State must delete 
the words ``or this article'' from the first line of sub-section 33-15-
14-06.5.a(1)(c) of the NDAC. (3) Sub-section 33-15-14-06.5.a.(11) of 
the NDAC must be revised to state that changes in emissions are allowed 
by this sub-section provided that they are not modifications under 
title I of the Act and the changes do not exceed the emissions allowed 
under the permit. (4) The State must revise sub-section 33-15-14-
06.5.f.(1) of the NDAC to read ``* * * the department shall include in 
a title V permit to operate a provision stating that compliance with 
the conditions of the permit shall be deemed compliance with any 
applicable requirements as of the date of permit issuance * * *.'' (5) 
The State must delete ``or this article'' from sub-section 33-15-14-
06.5.a.(8) of the NDAC, and ``this article'' from sub-sections 33-15-
14-06.5.a.(10) and 33-15-14-06.6.e.(1)(a)[2] of the NDAC to clarify 
that, in order to implement these provisions, the State must have an 
economic incentives, marketable permits or generic emissions trading 
program approved in its SIP. (6) The State must augment the Attorney 
General's opinion, providing discussion of and citation to case law, 
statutes, and regulations which address the requirements of 40 CFR 
70.4(b)(3)(xii), or, if such an opinion cannot be rendered, the State 
must change its statutes and/or regulations to ensure that the 
requirements of 40 CFR 70.4(b)(3)(xii) are met. (7) The State must 
augment the Attorney General's opinion, providing discussion of and 
citation to case law and/or specific statutory or regulatory provisions 
which provide for judicial review in cases of State inaction, 
consistent with the requirements of 40 CFR 70.4(b)(3)(xi), or, if such 
an opinion cannot be rendered, the State must change its statutes and/
or regulations to ensure that the requirements of 40 CFR 70.4(b)(3)(xi) 
are met. (8) The State augment the Attorney General's opinion, 
providing citation to and discussion of case law indicating that the 
PROGRAM meets the penalty requirements contained in 40 CFR 70.11, or, 
if such an opinion cannot be rendered, the State must change its 
statutes and/or regulations to ensure that the requirements of 40 CFR 
70.11 are met.
    Evidence of these corrective actions for full PROGRAM approval must 
be submitted to EPA within 18 months of EPA's interim approval of the 
North Dakota PROGRAM.
    The scope of North Dakota's part 70 PROGRAM that EPA proposes to 
approve in this notice would apply to all part 70 sources (as defined 
in the PROGRAM) within the State, except the following: any sources of 
air pollution located in ``Indian Country,'' as defined in 18 U.S.C. 
1151, including the Fort Berthold, Fort Totten, Standing Rock, Sisseton 
and Turtle Mountain Indian Reservations, or any other sources of air 
pollution over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 
55813, 55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined 
under the Act as ``any Indian Tribe, band, nation, or other organized 
group or community, including any Alaska Native village, which is 
Federally recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.'' See section 302(r) of the CAA; see also 59 FR 43955, 43962 
(Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
    In proposing not to extend the scope of North Dakota's part 70 
PROGRAM to sources located in ``Indian Country,'' EPA is not making a 
determination that the State either has adequate jurisdiction or lacks 
jurisdiction over such sources. Should the State of North Dakota choose 
to seek program approval within ``Indian Country,'' it may do so 
without prejudice. Before EPA would approve the State's part 70 PROGRAM 
for any portion of ``Indian Country,'' EPA would have to be satisfied 
that the State has authority, either pursuant to explicit Congressional 
authorization or [[Page 20946]] applicable principles of Federal Indian 
law, to enforce its laws against existing and potential pollution 
sources within any geographical area for which it seeks program 
approval, that such approval would constitute sound administrative 
practice, and that those sources are not subject to the jurisdiction of 
any Indian Tribe.
    This interim approval, which may not be renewed, extends for a 
period of up to 2 years. During the interim approval period, the State 
is protected from sanctions for failure to have a program, and EPA is 
not obligated to promulgate a Federal permits program in the State. 
Permits issued under a program with interim approval have full standing 
with respect to Part 70, and the 1-year time period for submittal of 
permit applications by subject sources begins upon interim approval, as 
does the 3-year time period for processing the initial permit 
applications.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of section 112 standards as promulgated by EPA as they apply to part 70 
sources. Section 112(l)(5) requires that the State's program contain 
adequate authorities, adequate resources for implementation, and an 
expeditious compliance schedule, which are also requirements under part 
70. Therefore, EPA is also proposing to grant approval under section 
112(l)(5) and 40 CFR part 63.91 of the State's program for receiving 
delegation of section 112 standards that are unchanged from Federal 
standards as promulgated. This program for delegations applies to 
sources covered by the part 70 program, as well as non-part 70 sources.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
interim approval. Copies of the State's submittal and other information 
relied upon for the proposed interim approval are contained in a docket 
maintained at the EPA Regional Office. The docket is an organized and 
complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of this proposed interim 
approval. The principal purposes of the docket are:
    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and
    (2) To serve as the record in case of judicial review. The EPA will 
consider any comments received by May 30, 1995.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR Part 70. Because this 
action does not impose any new requirements, its does not have a 
significant impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-76719.

    Dated: April 19, 1995.
William P. Yellowtail,
Regional Administrator.
[FR Doc. 95-10504 Filed 4-27-95; 8:45 am]
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