Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25143

VI. Procedural Determinations

Executive Order 12866

This final rule is exempted from

review by the Office of Management and

Budget (OMB) under Executive Order

12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has

conducted the reviews required by

section 2 of Executive Order 12778

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, this rule meets the applicable

standards of subsections (a) and (b) of

that section. However, these standards

are not applicable to the actual language

of State regulatory programs and

program amendments since each such

program is drafted and promulgated by

a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and 30 CFR

730.11, 732.15, and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S. 601 et seq.). The State submittal

which is the subject of this rule is based

upon corresponding Federal regulations

for which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

corresponding Federal regulations.

List of Subjects in 30 CFR Part 935

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 4, 1995.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

regulations is amended as set forth

below:

PART 935—OHIO

1. The authority citation for Part 935

continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 935.15 is amended by

adding new paragraph (vvv) to read as

follows:

§ 935.15 Approval of regulatory program

amendments.

* * * * *

(vvv) The following amendment

(Combined Program Amendments 25R

and 56R) pertaining to the Ohio

regulatory program, as submitted to

OSM on July 19, 1994, and revised on

December 20, 1994, is approved,

effective May 11, 1995: Ohio Guidelines

for Evaluating Revegetation Success

§ 935.16 [Removed and reserved]

3. In § 935.16, paragraph (a) is

removed and reserved.

[FR Doc. 95–11649 Filed 5–10–95; 8:45 am]

BILLING CODE 4310–05–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 70

[MT–001; FRL–5206–2]

Clean Air Act Final Interim Approval of

Operating Permits Program; State of

Montana

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final interim approval.

SUMMARY: The EPA is promulgating final

interim approval of the Operating

Permits Program submitted by the State

of Montana 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.

EFFECTIVE DATE: June 12, 1995.

ADDRESSES: Copies of the State’s

submittal and other supporting

information used in developing the final

interim approval 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, 999 18th Street, suite 500,

Denver, Colorado 80202, (303) 294–

7539.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act

Amendments (sections 501–507 of the

Clean Air Act (‘‘the Act’’)), and

implementing regulations at 40 Code of

Federal Regulations (CFR) part 70 (part

70) require that States develop and

submit operating permits programs to

EPA by November 15, 1993, and that

EPA act to approve or disapprove each

program within one 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 two years. If EPA

has not fully approved a program by two

years after the November 15, 1993 date,

or by the end of an interim program, it

must establish and implement a Federal

program.

On February 14, 1995 EPA published

a Federal Register notice proposing

interim approval of the Operating

Permits Program for the State of

Montana (PROGRAM). See 60 FR 8335.

EPA received no adverse comments on

this proposed interim approval, and is

taking final action to promulgate interim

approval of the Montana PROGRAM.

II. Final Action and Implications

A. Analysis of State Submission

The Governor of Montana submitted

an administratively complete title V

Operating Permit Program (PROGRAM)

for the State of Montana on March 29,

1994. The Montana PROGRAM,

including the operating permit
25144 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

regulations (Sub-Chapter 20, sections

16.8.2001 through 16.8.2025, inclusive,

of the Administrative Rules of

Montana), substantially meets the

requirements of 40 CFR 70.2 and 70.3

with respect to applicability; 70.4, 70.5,

and 70.6 with respect to permit content

including operational flexibility; 70.5

with respect to complete application

forms and criteria which define

insignificant activities; 70.7 with respect

to public participation and minor

permit modifications; and 70.11 with

respect to requirements for enforcement

authority.

EPA’s comments noting deficiencies

in the Montana PROGRAM were sent to

the State in a letter dated October 3,

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. The

State committed to address the

PROGRAM deficiencies that require

corrective action prior to interim

PROGRAM approval in a letter dated

October 20, 1994. The State submitted

these corrective actions in letters dated

March 30 and April 5, 1995. EPA has

reviewed these corrective actions and

has determined them to be adequate to

allow for interim PROGRAM approval.

B. Final Action

The EPA is promulgating interim

approval of the Operating Permits

Program submitted by the State of

Montana on March 29, 1994. The State

must complete the following corrective

actions to receive full PROGRAM

approval: (1) Section 16.8.2002(1)(d) of

Sub-Chapter 20 is part of the definition

of administrative permit amendment

and allows for the department’s

discretion in determining whether or

not a change in monitoring or reporting

requirements would be as stringent as

current monitoring or reporting

requirements. This does not meet the

criteria of an administrative permit

amendment listed 40 CFR 70.7(d)(1)(iii),

which requires that only more frequent

monitoring or reporting requirements

can be processed through an

administrative permit amendment. Prior

to full PROGRAM approval, the State

must delete section 16.8.2002(1)(d) of

Sub-Chapter 20, which allows for the

department’s discretion in determining

whether or not a change in monitoring

or reporting requirements would be as

stringent as current monitoring or

reporting requirements. (2) Section

16.8.2002(1)(f) of Sub-Chapter 20 is part

of the definition of administrative

permit amendment and allows the State

to determine if other types of permit

changes not listed in the definition of

administrative permit amendment can

be incorporated into a permit through

the administrative permit amendment

process. This does not meet

requirements of 40 CFR 70.7(d)(1)(vi).

This provision must be changed prior to

full PROGRAM approval to allow the

Administrator of EPA (or EPA and the

State) to determine if changes not

included in the definition of

administrative permit amendment can

be processed through the administrative

permit amendment process. (3) The

definition of ‘‘insignificant emissions

unit’’ in section 16.8.2002(22)(a) of SubChapter 20 includes an emission

threshold of 15 tons per year of any

pollutant other than a hazardous air

pollutant. EPA does not consider this to

be a reasonable level from which to

exempt emissions units from title V

operating permit requirements. Prior to

full PROGRAM approval, the State must

lower the emissions cap for defining

‘‘insignificant emissions units’’ to assure

they will not encompass activities that

trigger applicable requirements. If the

State defines insignificant activity levels

greater than those suggested, a

demonstration must be made to show

why such levels are, in fact,

insignificant. (4) Section

16.8.2002(24)(a)(ii) of Sub-chapter 20

defines ‘‘non-Federally enforceable

requirement’’ to include any term

contained in a preconstruction permit

issued under Sub-Chapters 9, 11, 17, or

18 that is not Federally enforceable.

However, everything contained in a

preconstruction permit issued under

these Sub-Chapters (which currently

are, or soon will be, included in the

State’s SIP) is considered to be Federally

enforceable. Prior to full PROGRAM

approval this language must be revised

or deleted. (5) Section 16.8.2008 of SubChapter 20 that lists the permit content

requirements does not require a

severability clause consistent with

§ 70.6(a)(5) of the Federal permitting

regulation. Prior to full PROGRAM

approval, the State must include a

severability clause in Sub-Chapter 20

consistent with § 70.6(a)(5) of the

Federal permitting regulation. (6)

Section IX.C.2 of the checklist that was

part of the PROGRAM submittal

regarding the implementation of the

enhanced monitoring requirements of

section 114(a)(3) of the Act states that

there are no impediments to using any

monitoring data to determine

compliance and for direct enforcement.

However, the State has incorporated by

reference the Federal new source

performance standards (NSPS) and

national emissions standards for HAPs

(NESHAPs) in 40 CFR parts 60 and 61

into its SIP-approved regulations, which

provide that compliance can be

determined only by performance tests

(see 40 CFR 60.11(a) and 40 CFR

61.12(a)). Prior to full PROGRAM

approval, the State must provide an

Attorney General’s opinion verifying the

State’s authority to use any monitoring

data to determine compliance and for

direct enforcement. If the State does not

have such authority, then the State’s

SIP-approved regulations must be

revised prior to full PROGRAM

approval to provide authority to use any

monitoring data to determine

compliance and for direct enforcement.

(7) The Attorney General’s Opinion

regarding the State’s authority to

terminate permits is unclear. MCA 75–

2–211(1) and 217(1) refer to ‘‘issuance,

modification, suspension, revocation,

and renewal’’ of permits, but not

‘‘termination.’’ Prior to full PROGRAM

approval, the State must provide an

Attorney General’s interpretation that

Montana’s statutory authority extends to

‘‘terminating’’ permits. (8) The

PROGRAM submittal contained a letter

to Douglas M. Skie dated February 28,

1994 certifying the State’s authority to

implement section 112 of the Act. The

letter discusses the State’s authority to

require permit applications from

sources subject to section 112(j) of the

Act, but does not address the State’s

ability to make case-by-case MACT

determinations. Prior to full PROGRAM

approval, the State must certify its

ability to make case-by-case MACT

determinations pursuant to section

112(j) of the Act. (9) The State’s

February 28, 1994 letter to EPA also

discusses the State’s authority to

implement section 112(r) of the Act, but

does not address the State’s ability to

require annual certifications from part

70 sources as to whether their risk

management plans (RMPs) are being

properly implemented, or provide a

compliance schedule for sources that

fail to submit the required RMP. Prior to

full PROGRAM approval, the State must

certify its ability to require annual

certifications from part 70 sources

regarding proper implementation of

their RMPs and to provide a compliance

schedule for sources that fail to submit

the required RMP. (10) Section

16.8.2008(2)(a) allows the State to

terminate, or revoke and reissue,

permits for continuing and substantial

violations. This language may be too

limiting and may not provide full

authority needed to be consistent with

section 502(b)(5)(D) of the Act, which

requires that state permit programs have

authority to ‘‘terminate, modify, revoke

and reissue permits for cause.’’ The
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25145

State addressed this issue in its March

30, 1995 letter; however, EPA was

unable to determine whether Montana’s

PROGRAM is consistent in all respects

with section 502(b)(5)(D) of the Act.

Prior to full PROGRAM approval, the

State must either (a) clarify that it has

authority to terminate or revoke and

reissue permits in all circumstances in

which cause to do so exists or (b) amend

section 16.8.2008(2)(a) to eliminate any

provisions that may be construed to

limit ‘‘cause’’ in an unacceptable

manner.

Refer to the technical support

document accompanying this

rulemaking for a detailed explanation of

these PROGRAM deficiencies and the

required corrective actions.

The scope of Montana’s final interim

PROGRAM approval does not extend to

‘‘Indian Country,’’ as defined in 18

U.S.C. 1151, including the following

‘‘existing or former’’ Indian reservations

in the State: Northern Cheyenne, Rocky

Boys, Blackfeet, Crow, Flathead, Fort

Belknap, and Fort Peck Indian

Reservations. Before EPA would

approve the State’s 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

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 and that such

approval would constitute sound

administrative practice. This is a

complex and controversial issue, and

EPA does not wish to delay interim

approval of the State’s PROGRAM with

respect to undisputed sources while

EPA resolves this question.

In deferring final action on

PROGRAM approval for sources located

in ‘‘Indian Country,’’ EPA is not making

a determination that the State either has

adequate jurisdiction or lacks such

jurisdiction. Instead, EPA is deferring

judgment regarding this issue pending

EPA’s evaluation of the State’s analysis.

This interim PROGRAM approval,

which may not be renewed, extends

until June 11, 1997. During this interim

approval period, the State of Montana is

protected from sanctions, and EPA is

not obligated to promulgate, administer

and enforce a Federal operating permits

program in the state of Montana.

Permits issued under a program with

interim approval have full standing with

respect to part 70, and the one year time

period for submittal of permit

applications by subject sources begins

upon the effective date of this interim

approval, as does the three year time

period for processing the initial permit

applications.

If the State of Montana fails to submit

a complete corrective PROGRAM for

full approval by December 11, 1996,

EPA will start an 18-month clock for

mandatory sanctions. If the State of

Montana then fails to submit a

corrective PROGRAM that EPA finds

complete before the expiration of that

18-month period, EPA will be required

to apply one of the sanctions in section

179(b) of the Act, which will remain in

effect until EPA determines that the

State of Montana has corrected the

deficiency by submitting a complete

corrective PROGRAM. Moreover, if the

Administrator finds a lack of good faith

on the part of the State of Montana, both

sanctions under section 179(b) will

apply after the expiration of the 18-

month period until the Administrator

determines that the State of Montana

has come into compliance. In any case,

if, six months after application of the

first sanction, the State of Montana still

has not submitted a corrective

PROGRAM that EPA has found

complete, a second sanction will be

required.

If EPA disapproves the State of

Montana’s complete corrective

PROGRAM, EPA will be required to

apply one of the section 179(b)

sanctions on the date 18 months after

the effective date of the disapproval,

unless prior to that date the State of

Montana has submitted a revised

PROGRAM and EPA has determined

that it corrected the deficiencies that

prompted the disapproval. Moreover, if

the Administrator finds a lack of good

faith on the part of the State of Montana,

both sanctions under section 179(b)

shall apply after the expiration of the

18-month period until the

Administrator determines that the State

of Montana has come into compliance.

In all cases, if, six months after EPA

applies the first sanction, the State of

Montana has not submitted a revised

PROGRAM that EPA has determined

corrects the deficiencies, a second

sanction is required.

In addition, discretionary sanctions

may be applied where warranted any

time after the expiration of an interim

approval period if the State of Montana

has not timely submitted a complete

corrective PROGRAM or EPA has

disapproved its submitted corrective

PROGRAM. Moreover, if EPA has not

granted full approval to the Montana

PROGRAM by the expiration of this

interim approval and that expiration

occurs after November 15, 1995, EPA

must promulgate, administer and

enforce a Federal permits program for

the State of Montana upon interim

approval expiration.

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, the EPA is

promulgating approval under section

112(l)(5) and 40 CFR 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.

EPA is also finalizing its approval of

Montana’s preconstruction permit

program found in Sub-Chapter 11,

sections 16.8.1101 through 16.8.1120, of

the State’s regulations under the

authority of title V and part 70 solely for

the purpose of providing a mechanism

to implement section 112(g) during any

transition period between EPA’s

promulgation of a section 112(g) rule

and adoption by the State of rules to

implement section 112(g). However,

since this approval is for the single

purpose of providing a mechanism to

implement section 112(g) during any

transition period, the approval itself

will 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. The EPA is limiting the

duration of this approval to 12 months

following promulgation by EPA of the

final section 112(g) rule.

III. Administrative Requirements

A. Docket

Copies of the State’s submittal and

other information relied upon for the

final interim approval, including public

comments received and reviewed by

EPA on the proposal, are maintained in

a docket 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 final interim

approval. The docket is available for

public inspection at the location listed

under the ADDRESSES section of this

document.
25146 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

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.

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.

Dated: May 2, 1995.

Jack McGraw,

Acting Regional Administrator.

Part 70, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 70—[AMENDED]

1. The authority citation for part 70

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Appendix A to part 70 is amended

by adding the entry for Montana in

alphabetical order to read as follows:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permits Programs

* * * * *

Montana

(a) Montana Department of Health and

Environmental Sciences—Air Quality

Division: submitted on March 29, 1994;

effective on June 12, 1995; interim approval

expires June 11, 1997.

(b) [Reserved]

[FR Doc. 95–11677 Filed 5–10–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 81

[ID12–1–6992; FRL–5204–9]

Designation of Areas for Air Quality

Planning Purposes; Idaho; Designation

of a Portion of Shoshone County,

Idaho, to Nonattainment for Particulate

Matter (PM–10); Correction

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; correction.

SUMMARY: The City of Pinehurst in

Shoshone County, Idaho, was

designated nonattainment for PM–10 by

operation of law upon enactment of the

1990 Clean Air Act Amendments.

Effective January 20, 1994, EPA

approved the redesignation of an

additional area in Shoshone County,

adjacent to the City of Pinehurst, as

nonattainment for PM–10. See 58 FR

67334, 67339 (December 21, 1993) and

40 CFR 81.313 (codified air quality

designations for the State of Idaho). That

document included a legal description

of the expanded portion of the

nonattainment area (the ‘‘Pinehurst

expansion area’’). The legal description,

however, contained several

typographical errors and described the

area in a more complex manner than

necessary. This document corrects the

typographical errors and simplifies and

standardizes the legal description. This

document is not intended to, and does

not, change the area designated as

nonattainment in the December 21,

1993, Federal Register document, as

codified at 40 CFR 81.313. Rather, this

document is intended to make the

description of the Pinehurst expansion

area easier to understand.

EFFECTIVE DATE: This correction is

effective May 11, 1995.

FOR FURTHER INFORMATION CONTACT:

Doug Cole, EPA, Idaho Operations

Office, 1435 N. Orchard St., Boise, ID

83706, (208) 334–9555.

SUPPLEMENTARY INFORMATION: This

document makes three types of

correction to the legal description of the

Pinehurst expansion area. First, the

legal description of the Pinehurst

expansion area published at 58 FR

67339 and codified at 40 CFR 81.313

contained several typographical

omissions which are shown below in

bold and brackets:

That portion of Shoshone County

excluding the initial PM–10 [nonattainment

area]: Including the South half of Southeast

quarter of Section 31 of Range 2 east,

Township 49 [north]; South quarter of

Section 32 of Range 2 east, Township 49

north[;] Section 5 of Range 2 east, Township

48 north[;]-east half of Section 6 of Range 2

east, Township 48 north[;]west quarter of

Section 8 of Range 2 east, Township 48

North; and excluding that portion of

Shoshone County designated nonattainment

for PM–10 on November 15, 1990.

Specifically, three words and three

semi-colons were erroneously omitted

from the description. This document

corrects those errors.

Second, in the December 21, 1993,

Federal Register document and its later

codification at 40 CFR 81.313, the

Pinehurst expansion area was described

by first giving the legal description of

the expansion area and City of

Pinehurst and then excluding ‘‘the area

in Shoshone County which was

designated nonattainment for PM–10 on

November 15, 1990.’’ That area is, in

fact, the City of Pinehurst. In other

words, the Pinehurst expansion area

was essentially described as ‘‘the

Pinehurst expansion area plus the City

of Pinehurst, excluding the City of

Pinehurst.’’

Third, the legal description of the

Pinehurst expansion area as previously

published was further complicated by

the fact that the area was described

somewhat unconventionally as the

‘‘west quarter of Section 8, Range 2 east,

Township 48 north.’’ EPA is issuing this

correction document to simplify the

description and conform the description

to standard surveying conventions.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: April 28, 1995.

Chuck Clarke,

Regional Administrator.

PART 81—[AMENDED]

40 CFR part 81 is amended as follows:

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. Section 81.313 is amended by

revising the entry for ‘‘Shoshone

County’’ in the ‘‘Idaho PM–10

Nonattainment Areas’’ table to read as

follows:

§ 81.313 Idaho.

* * * * *