Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8335

such equipment would be required to

install new source technology and

offsets would not be available.

Similarly, the April 1, 1994 proposal

contained two alternative definitions of

major source ‘‘reconstruction.’’ The

alternative definitions are similar in

that, for each, the replacement of

components, where the cost of the

replacement components is greater than

50 percent of the capital cost of

‘‘constructing a major source,’’ would

trigger reconstruction requirements. The

alternatives differ in that one alternative

treats the entire plant site as the basis

for comparison, while the other

alternative treats a major-emitting

‘‘emission unit’’ as the basis for

comparison.

The ambiguities surrounding the term

‘‘construction’’ have potentially

significant impacts on the nature and

scope of the Federal program,

particularly in a transition period

during which the modification

provisions of section 112(g) are delayed.

While there are likely to be few

constructions of ‘‘greenfield’’ facilities

emitting major amounts of HAPs prior

to promulgation of the section 112(g)

rule, there will be a far greater number

of additions of major-emitting units at

existing major source plant sites. Until

the issue of whether these additions

constitute a ‘‘construction’’ is clarified

through rulemaking, there will be

uncertainty as to how these additions

must be treated as a matter of Federal

law. For similar reasons, the scope of

the section 112(g) requirements for

‘‘reconstructions’’ will continue to be in

doubt until the section 112(g) rule is

promulgated.

These implementation difficulties

demonstrate that, as is the case for the

section 112(g) modification provisions,

rulemaking is needed to provide the

degree of certainty EPA believes was

intended by Congress regarding the

applicability of the provisions for major

source construction and reconstruction.

For this reason, EPA believes it would

be unreasonable to require the

implementation of the section 112(g)

provisions relating to construction and

reconstruction prior to completion of

the rulemaking.

F. Additional Clarifications

The EPA’s interpretation, announced

today, regarding the timing for

implementation of section 112(g),

applies to every title V program that has

been or will be approved prior to

promulgation of a Federal rule

implementing section 112(g). The

interpretation concerns the effective

date of a Federal requirement set forth

in the Act. In this sense, this

interpretation need not be addressed in

individual title V approvals. The EPA

has indicated in a number of title V

approval actions that the State would

use its existing SIP-approved

preconstruction review program to

implement section 112(g) during the

transition period. However, there have

been no approvals of State programs

designed specifically to implement

section 112(g). Therefore, there is no

need to revisit any EPA rulemaking

action in order to implement today’s

notice.

This interpretation should not require

significant changes to any title V

program submittal. Each State program

reviewed by EPA to date has included

a general commitment to implement

section 112(g), in accordance with the

EPA regulations and/or guidance, upon

approval of their title V program.

However, those commitments were

fashioned broadly enough to

accommodate today’s announced

interpretation, and so no program

revisions should be necessary for those

States.

The EPA is aware of concerns that

States may need additional time

following the promulgation of the

section 112(g) rule before they can begin

implementing section 112(g). The EPA

believes the statute may be read to allow

for an additional period of delay so that

States may adopt conforming rules if it

would otherwise be impossible for

States to implement the program.

However, the EPA has not determined

whether additional time will in fact be

needed. If it is decided that additional

time should be provided before the

provisions of section 112(g) become

effective, the EPA will so provide in the

final section 112(g) rulemaking.

Finally, certain States have already

promulgated regulations designed to

implement section 112(g). The EPA

wishes to emphasize that nothing in this

notice is intended to preclude or

discourage States from implementing a

program similar to section 112(g) as a

matter of State law prior to

promulgation by the EPA of the section

112(g) guidance.

Dated: February 8, 1995.

Carol M. Browner,

Administrator.

[FR Doc. 95–3661 Filed 2–13–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[MT–001; FRL–5155–3]

Clean Air Act Proposed Interim

Approval, or in the Alternative

Proposed Disapproval, of Operating

Permits Program; State of Montana

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

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. In

the alternative, EPA proposes

disapproval of the Montana Operating

Permits Program if the corrective actions

necessary for final interim PROGRAM

approval are not completed and

submitted to EPA prior to the statutory

deadline.

DATES: Comments on this proposed

action must be received in writing by

March 16, 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
8336 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules

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 PROGRAM approval, and

could not be renewed. During the

interim approval period, the State of

Montana would be protected from

sanctions, and EPA would not be

obligated to promulgate, administer and

enforce a Federal permits program for

the State of Montana. 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 PROGRAM

approval, if the State of Montana 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 of Montana then failed to submit

a corrective program that EPA found

complete before the expiration of that

18-month period, EPA would be

required to apply one of the sanctions

in section 179(b) of the Act, which

would remain in effect until EPA

determined that the State of Montana

had corrected the deficiency by

submitting a complete corrective

program. Moreover, if the Administrator

found a lack of good faith on the part

of the State of Montana, both sanctions

under section 179(b) would apply after

the expiration of the 18-month period

until the Administrator determined that

the State of Montana had come into

compliance. In any case, if, six months

after application of the first sanction,

the State of Montana still had not

submitted a corrective program that EPA

found complete, a second sanction

would be required.

If, following final interim PROGRAM

approval, EPA were to disapprove the

State’s complete corrective program,

EPA would 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 had submitted a

revised program and EPA had

determined that it corrected the

deficiencies that prompted the

disapproval. Moreover, if the

Administrator found a lack of good faith

on the part of the State of Montana, both

sanctions under section 179(b) would

apply after the expiration of the 18-

month period until the Administrator

determined that the State of Montana

had come into compliance. In all cases,

if, six months after EPA applied the first

sanction, the State of Montana had not

submitted a revised program that EPA

had determined corrected the

deficiencies that prompted disapproval,

a second sanction would be required.

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 Montana submitted

an administratively complete title V

Operating Permit Program (PROGRAM)

for the State of Montana on March 29,

1994. EPA deemed the PROGRAM

administratively complete in a letter to

the Governor dated May 12, 1994. The

PROGRAM submittal includes a legal

opinion from the Attorney General of

Montana 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 permit fee demonstration.

2. Regulations and Program

Implementation

The Montana PROGRAM, including

the operating permit regulation (SubChapter 20, §§ 16.8.2001 through

16.8.2025, inclusive, of the

Administrative Rules of Montana),

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.

Section 16.8.2006(3) of Sub-Chapter

20 provides, in part, that ‘‘Insignificant

emission units need not be addressed in

an application for an air quality

operating permit, except that the

application must include a list of such

insignificant emission units and

emissions from insignificant emission

units must be included in emission

inventories and are subject to

assessment of permit fees.’’ The term

‘‘insignificant emissions unit’’ is

defined in § 16.8.2002(22)(a) of SubChapter 20 as ‘‘any activity or emissions

unit located within a source that (i) has

a potential to emit less than 15 tons per

year of any pollutant, other than a

hazardous air pollutant listed pursuant

to sec. 7412(b) of the FCAA or lead; (ii)

has a potential to emit of less than 500

pounds per year of lead; (iii) does not

have a potential to emit hazardous air

pollutants listed pursuant to sec.

7412(b) in any amount; and (iv) is not

regulated by an applicable

requirement.’’ The 15 ton per year

threshold is considered by EPA to be a

PROGRAM deficiency that must be

addressed prior to full PROGRAM

approval and is discussed in more detail

below.

Section 70.6(a)(3)(iii)(B) of EPA’s

operating permit regulations provides

that each permit shall require ‘‘prompt

reporting of deviations from permit

requirements, including those

attributable to upset conditions as

defined in the permit, the probable

cause of such deviations, and any

corrective actions or preventive

measures taken.’’ Under

§ 16.8.2010(3)(c) of Sub-Chapter 20 of

Montana’s regulations, reporting is

considered ‘‘prompt’’ if made at least

every six months as part of the routine

reporting requirements and, if

applicable, in accordance with the

malfunction reporting requirements

under § 16.8.705 of Subchapter 7, unless
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8337

otherwise specified in an applicable

requirement. However, EPA’s position is

that reporting only once every six

months is not sufficiently ‘‘prompt’’ to

allow for protection of public health and

safety and to provide a forewarning of

potential problems. Usually, reporting

within two to ten days should be

sufficient for these purposes, although

with more serious permit deviations,

earlier reporting may be necessary. Only

for sources with a low level of excess

emissions, would it be appropriate to

allow more than ten days to elapse

before reporting. EPA may veto state

permits that do not require

appropriately prompt reporting.

Montana has the authority to issue a

variance from emission limitations. The

Clean Air Act of Montana, Section 75–

2–212, Montana Code Annotated

(MCA), provides that the State may

grant a variance if ‘‘(a) the emissions

occurring or proposed to occur do not

constitute a danger to public health or

safety; and (b) compliance with the

rules from which exemption is sought

would produce hardship without equal

or greater benefits to the public.’’ EPA

regards Montana’s variance provision as

wholly external to the PROGRAM

submitted for approval under part 70,

and consequently is proposing to take

no action on this provision of State law.

The EPA has no authority to approve

provisions of State law, such as the

variance provision 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. If the

State uses its variance provision strictly

to establish a compliance schedule for a

non-complying source that will be

incorporated into a title V permit, then

EPA would consider this an acceptable

use of a variance provision. However,

the routine process for establishing a

compliance schedule is through

appropriate enforcement action. 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

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. In a letter

dated October 20, 1994 the State

committed to address the deficiencies

that require corrective action prior to

interim PROGRAM approval by January

20, 1995.

Areas in which the Montana

PROGRAM is deficient and require

corrective action prior to final interim

PROGRAM approval are as follows: (1)

Section 16.8.2004(3) of Sub-Chapter 20

allows the State to exempt sources from

the requirement to obtain an air quality

operating permit by establishing

Federally enforceable limitations which

limit the source’s potential to emit.

However, the State’s rules do not

describe the process which will be used

to create these limits. Prior to interim

PROGRAM approval, the State must

clarify how Federally enforceable limits

will be created to limit a source’s

potential to emit, and verify its

authority to create such limits. If the

State plans to create Federally

enforceable limits through title V

operating permits, such permits must go

through all of the title V public

participation requirements, including

affected State review, 45-day EPA

review period and EPA veto authority.

(2) Section 16.8.2008(2)(j) of SubChapter 20 states that the State’s

decision regarding issuance, renewal,

revision, denial, revocation, reissuance,

or termination of a permit is not

effective until 30 days have elapsed

from the date of the decision, and that

the decision may be appealed to the

board by filing a request for hearing

within 30 days after the date of the

decision. EPA interprets this language to

mean that the 30-day period for making

appeals to the board would occur after

EPA’s 45-day review/approval period

for the proposed permit. If this is the

case, any permits appealed to the board

that are changed must be submitted to

EPA for additional review. Prior to

interim PROGRAM approval, the State

must clarify whether the appeal process

on the State’s decisions regarding

permit issuance, renewal, revision,

denial, revocation, reissuance, or

termination occurs before or after EPA’s

45-day review/approval period. If the

appeal process follows EPA’s review/

approval period, then language must be

added to the State’s permitting

regulation to ensure that permits that

are changed after appeal to the board are

submitted to EPA for additional review.

(3) Section 16.8.2008(2)(a) allows the

State to terminate, or revoke and

reissue, permits for continuing and

substantial violations, but does not

provide the full authority under 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.’’ Prior to

interim PROGRAM approval, the State

must clarify that it has the authority to

‘‘terminate, modify, revoke and reissue

permits for cause’’ pursuant to section

502(b)(5)(D) of the Act. (4) Section

16.8.2021(1)(c) of Sub-Chapter 20 states

that a significant modification includes

‘‘every significant relaxation of permit

reporting or recordkeeping terms or

conditions.’’ Section 70.7(e)(4)(i) of the

Federal permitting regulation requires

that any relaxation of reporting or

recordkeeping permit terms be

processed as a significant modification.

Prior to interim PROGRAM approval,

the State must provide an Attorney

General’s opinion that the language in

§ 16.8.2021(1)(c) of Sub-Chapter 20

regarding significant modifications will

be interpreted as ‘‘every relaxation of

reporting or recordkeeping permit

terms’’, and prior to full PROGRAM

approval, the word ‘‘significant’’ must

be removed from this regulatory

language.

Areas in which the Montana

PROGRAM is deficient and require

corrective action prior to full

PROGRAM approval are as follows: (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.

Changes in monitoring or reporting

requirements must be processed through

either the minor permit modification

procedures or the significant permit

modification procedures, unless the

change requires more frequent

monitoring or reporting, in which case

it can be processed through the

administrative permit amendment

procedures. This portion of Montana’s

definition does not meet the criteria of

an administrative permit amendment

listed in § 70.7(d)(1)(iii) of the Federal

permitting regulation. Prior to full

PROGRAM approval, the State must

delete § 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 SubChapter 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. Section

70.7(d)(1)(vi) of the Federal permitting
8338 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules

regulation requires that such

determinations be made by the

Administrator of EPA and be similar to

those changes listed in § 70.7(d)(1)(i)-

(iv) of the Federal permitting regulation.

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 § 16.8.2002(22)(a) of

Sub-Chapter 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. For

other State title V programs, EPA has

proposed to accept, as sufficient for full

approval, emission levels for

insignificant activities of 2 tons per year

of regulated air pollutants and the lesser

of 1000 pounds per year, section 112(g)

de minimis levels, or other title I

significant modification levels for HAPs

and other toxics (40 CFR

52.21(b)(23)(i)). EPA believes that these

levels are sufficiently below

applicability thresholds for most

applicable requirements to assure that

no unit potentially subject to an

applicable requirement is left off a part

70 application and are consistent with

current permitting thresholds for the

State under consideration here. EPA is

requesting comment on the

appropriateness of these emission levels

for determining insignificant activities

in this State. This request for comment

is not intended to restrict the ability of

the State to propose and EPA to approve

other emission levels if the State

demonstrates that such alternative

emission levels are insignificant

compared to the level of emissions from

and types of units that are permitted or

subject to applicable 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)(ii) of Subchapter 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 Sub-Chapter

20 which 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 SIPapproved 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 caseby-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.

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. Permit Fee Demonstration

The Montana 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 permit fee demonstration in

its PROGRAM submittal to demonstrate

that the title V fee structure would

collect sufficient fees to cover the

reasonable direct and indirect costs of

developing and administering the

PROGRAM. The permit fee

demonstration included a workload

analysis which estimated the annual

cost of running the PROGRAM to be

$585,130 for fiscal year 1994, increasing

to $849,705 for fiscal year 1995. The fee

structure for fiscal year 1994, based on

the previous year’s emission inventory,

included a fee of $8.55 per ton for

particulates, sulfur dioxide and lead;

$2.14 per ton for nitrogen oxides and

volatile organic compounds; with a

minimum fee of $250 per source. These

fees are projected to increase to $11.75

and $2.94 per ton, respectively, for

fiscal year 1995, and the State

anticipates adding a fee for HAPs in the

future. After careful review, the State

has determined that these fees would

support the Montana PROGRAM costs

as required by section 70.9(a) of the

Federal operating permitting regulation.

Upon review of the State’s permit fee

demonstration, the EPA noted the

following concerns:

(1) Although the State has the

authority to assess and collect annual

permit fees in an amount sufficient to

cover all reasonable direct and indirect

costs of the PROGRAM, the State

Legislature must appropriate the money
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8339

to operate the PROGRAM every

biennium. If an adequate appropriation

is not made, and the State is not able to

fund all the costs of the PROGRAM, the

EPA would be required to disapprove or

withdraw the part 70 program, impose

sanctions, and implement a Federal

permitting program.

(2) EPA was unable to determine if

sufficient fees will be available to fund

the PROGRAM due to deficiencies in

the State’s Permit Fee Demonstration.

The State agreed to address these

deficiencies in a letter to EPA dated

October 20, 1994 and submit a revised

Permit Fee Demonstration to EPA prior

to final interim PROGRAM approval.

4. Provisions Implementing the

Requirements of Other Titles of the Act

a. Authority and/or Commitments for

Section 112 Implementation

Montana has demonstrated in its

PROGRAM submittal adequate legal

authority to implement and enforce all

section 112 requirements, with the

exception of the deficiencies noted

above, through the title V permit. This

legal authority is contained in

Montana’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 Montana to issue

permits that assure compliance with all

section 112 requirements, and to carry

out all section 112 activities, contingent

upon the State completing the above

noted corrective actions related to

section 112.

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.

b. Implementation of 112(g) Upon

Program Approval

As a condition of approval of the part

70 PROGRAM, Montana is required to

implement section 112(g) of the Act

from the effective date of the part 70

PROGRAM. Imposition of case-by-case

determinations of maximum achievable

control technology (MACT) or offsets

under section 112(g) will require the use

of a mechanism for establishing

Federally enforceable restrictions on a

source-specific basis. The EPA is

proposing to approve Montana’s

preconstruction permitting program

found in Sub-Chapter 11, §§ 16.8.1101

through 16.8.1120, under the authority

of title V and part 70 solely for the

purpose of implementing section 112(g)

during the transition period between

title V approval and adoption of a State

rule implementing EPA’s section 112(g)

regulations. EPA believes this approval

is necessary so that Montana has a

mechanism in place to establish

Federally enforceable restrictions for

section 112(g) purposes from the date of

part 70 approval. Section 112(l)

provides statutory authority for

approval for the use of State air

programs to implement section 112(g).

Title V and section 112(g) provide

authority for this limited approval

because of the direct linkage between

implementation of section 112(g) and

title V. The scope of this approval is

narrowly limited to section 112(g), and

does not confer or imply approval for

purposes of any other provision under

the Act. If Montana does not wish to

implement section 112(g) through its

preconstruction permit program and can

demonstrate that an alternative means of

implementing section 112(g) exists, the

EPA may, in the final action approving

Montana’s PROGRAM, approve the

alternative instead. To the extent

Montana does not have the authority to

regulate HAPs through existing State

law, the State may disallow new

construction or modifications during the

transition period.

This approval is for an interim period

only, until such time as the State is able

to adopt regulations consistent with any

regulations promulgated by EPA to

implement section 112(g). Accordingly,

EPA is proposing to limit the duration

of this approval to a reasonable time

following promulgation of section

112(g) regulations so that Montana,

acting expeditiously, will be able to

adopt regulations consistent with the

section 112(g) regulations. The EPA is

proposing here to limit the duration of

this approval to 12 months following

promulgation by EPA of section 112(g)

regulations. Comment is solicited on

whether 12 months is an appropriate

period considering Montana’s

procedures for adoption of Federal

regulations.

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 section 112

General Provisions Subpart A and

standards as promulgated by EPA as

they apply to sources covered by the

part 70 Program, 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,

the EPA is also proposing to grant

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 the

Federal standards as promulgated.

Montana has informed EPA that it

intends to accept delegation of section

112 standards through incorporation by

reference or case-by-case rulemaking.

This program applies to both existing

and future standards.

The radionuclide NESHAP is a

section 112 regulation and therefore,

also an applicable requirement under

the State PROGRAM. Sources which are

currently defined as part 70 sources and

emit radionuclides are subject to

Federal radionuclide standards.

Additionally, sources which are not

currently part 70 sources may be

defined as major sources under

forthcoming Federal radionuclide

regulations. The EPA will work with the

State in the development of its

radionuclide program to ensure that

permits are issued in a timely manner.

d. Program for Implementing Title IV

of the Act

Montana’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

Montana on March 29, 1994. If

promulgated, the State must complete

the following corrective actions, as

discussed above, to receive final interim

PROGRAM approval: (1) The State must

clarify how the Federally enforceable

limits allowed under § 16.8.2004(3) of

Sub-Chapter 20 will be created to limit

a source’s potential to emit, and verify

its authority to create such limits. If the

State plans to create these Federally

enforceable limits through the title V

PROGRAM, such permits must go

through all of the title V public

participation requirements, including

affected State review, 45-day EPA

review period and EPA veto authority;

(2) The State must clarify whether the

appeal process in § 16.8.2008(2)(j) of

Sub-Chapter 20 on the State’s decisions

regarding permit issuance, renewal,

revision, denial, revocation, reissuance,

or termination occurs before or after

EPA’s 45-day review/approval period. If

the appeal process follows EPA’s

review/approval period, then additional

language must be added to the State’s
8340 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules

permitting regulation to ensure that

permits that are changed after appeal to

the board are submitted to EPA for

additional review; (3) The State must

clarify that it has the authority to

‘‘terminate, modify, revoke and reissue

permits for cause’’ pursuant to section

502(b)(5)(D) of the Act; (4) The State

must provide an Attorney General’s

opinion that the language in

§ 16.8.2021(1)(c) of Sub-Chapter 20

regarding significant modifications will

be interpreted as ‘‘every relaxation of

reporting or recordkeeping permit

terms.’’

The State must complete the

following corrective actions, as

discussed above, to receive full

PROGRAM approval: (1) The word

‘‘significant’’ must be removed from the

language in § 16.8.2021(1)(c) of SubChapter 20; (2) The State must delete

§ 16.8.2002(1)(d) of Sub-Chapter 20 that

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;

(3) Section 16.8.2002(1)(f) of SubChapter 20 must be changed 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; (4) The State must lower the

emissions cap for defining

‘‘insignificant emissions units’’ in

§ 16.8.2002(22)(a) of Sub-Chapter 20 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; (5) The language in

§ 16.8.2002(24)(ii) of Sub-Chapter 20

which defines ‘‘non-Federally

enforceable requirement’’ must be

revised or deleted to avoid the

implication that terms contained in a

preconstruction permit issued under

Sub-Chapters 9, 11, 17, or 18 are not

Federally enforceable; (6) The State

must include a severability clause in

§ 16.8.2008 of Sub-Chapter 20 consistent

with § 70.6(a)(5) of the Federal

permitting regulation; (7) 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 to provide

authority to use any monitoring data to

determine compliance and for direct

enforcement; (8) The State must provide

an Attorney General’s interpretation that

Montana’s statutory authority under

MCA 75–2–211(1) and 217(1) extends to

‘‘terminating’’ permits; (9) The State

must certify its ability to make case-bycase MACT determinations for sources

subject to section 112(j) of the Act; (10)

The State must certify its ability to

require annual certifications from part

70 sources regarding proper

implementation of their section 112(r)

RMPs and to provide a compliance

schedule for sources that fail to submit

the required RMP.

Evidence of these corrective actions

for full PROGRAM approval must be

submitted to EPA within 18 months of

EPA’s interim approval of the Montana

PROGRAM.

The scope of Montana’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

Northern Cheyenne, Rocky Boys,

Blackfeet, Crow, Flathead, Fort Belknap,

and Fort Peck 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 Montana’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

Montana 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

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.

The EPA is proposing to disapprove

in the alternative the Montana

PROGRAM if the specified corrective

actions for final interim PROGRAM

approval are not completed and

submitted to EPA prior to EPA’s

statutory deadline for acting on

Montana’s title V submittal. If

promulgated, this disapproval would

constitute a disapproval under section

502(d) of the Act (see generally 57 FR

32253–54). As provided under section

502(d)(1) of the Act, Montana would

have up to 180 days from the date of

EPA’s notification of disapproval to the

Governor of Montana to revise and

resubmit the PROGRAM.

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 also

proposing to grant approval under

section 112(l)(5) of the Act 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 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
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8341

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 March 16,

1995.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s actions under section 502

of the Act do not create any new

requirements, but simply address

operating permits programs submitted

to satisfy the requirements of 40 CFR

part 70. Because this action does not

impose any new requirements, it does

not have a significant impact on a

substantial number of small entities.

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. 7401–7671q.

Dated: February 3, 1995.

Jack W. McGraw,

Acting Regional Administrator.

[FR Doc. 95–3659 Filed 2–13–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 80

[AMS–FRL–5154–7]

RIN 2060–AD71

Regulation of Fuels and Fuel

Additives: Standards for Deposit

Control Gasoline Additives

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Reopening of comment period.

SUMMARY: Section 211(l) of the Clean Air

Act requires the Environmental

Protection Agency to establish

specifications for deposit control

detergent additives. On November 22,

1993, the Environmental Protection

Agency issued a notice of proposed

rulemaking for standards for deposit

control detergent additives. On October

15, 1994, EPA promulgated a final

regulation (published in the Federal

Register on November 1, 1994 (59 FR

54678)), with an interim program for

detergent additives, which will be

replaced by a full certification detergent

program in a subsequent action.

On December 28, 1994 (59 FR 66860),

EPA issued a supplemental notice

reopening the comment period for the

final detergent additive certification

program and requesting comment on

issues related to the final detergent

additive certification program. This

document extends the public comment

period for the supplemental notice.

DATES: The comment period for the

supplemental notice will be extended

from the original closing date of January

27, 1995 to February 21, 1995.

ADDRESSES: Comments on this

document should be submitted in

duplicate to: EPA Air Docket Section

(LE–131); Attention: Public Docket No.

A–91–77; Room M–1500, 401 M Street

S.W., Washington, DC 20460. (Phone

202–260–7548; FAX 202–260–4000).

This docket is open for public

inspection from 8:00 a.m. until 4:00

p.m. except on government holidays. As

provided in 40 CFR part 2, a reasonable

fee may be charged for copying docket

materials.

Electronic copies of this and other

documents related to this rulemaking

are available through the Office of Air

Quality Planning and Standards

(OAQPS) Technology Transfer Network

Bulletin Board System (TTNBBS).

FOR FURTHER INFORMATION CONTACT: For

general information and information

related to technical issues contact: Mr.

Jeffery A. Herzog, U.S. EPA (RDSD–12),

Regulation Development and Support

Division, 2565 Plymouth Road, Ann

Arbor, MI 48105; Telephone: (313) 668–

4227, FAX: (313) 741–7816. For

information on enforcement related

issues contact: Judith Lubow, U.S. EPA,

Office of Enforcement and Compliance

Assurance, Western Field Office, 12345

West Alameda Parkway, Suite 300,

Lakewood, CO 80228; Telephone: (303)

969–6483, FAX: (303) 966–6490.

List of Subjects in 40 CFR Part 80

Environmental protection, Fuel

additives, Gasoline detergent additives,

Gasoline motor vehicle pollution,

Penalties, Reporting and recordkeeping

requirements.

Dated: February 7, 1995.

Richard D. Wilson,

Acting Assistant Administrator for Air and

Radiation.

[FR Doc. 95–3603 Filed 2–13–95; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 90

[PR Docket No. 93–144 and PP Docket No.

93–253; DA 95–67]

Facilitation of Future Development of

SMR Systems in the 800 MHz

Frequency Band; Implementation of

Section 309(j) of the Communications

Act—Competitive Bidding, 800 MHz

SMR

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule; extension of

time.

SUMMARY: On November 4, 1994, the

Commission released a Further Notice

of Proposed Rule Making, FCC 94–271,

concerning establishment of a flexible

regulatory scheme and competitive

bidding procedures for Specialized

Mobile Radio (SMR) systems in the 800

MHz band.

Based on the number of initial

comments received and the variety of

views expressed in this proceeding, this

Order extends the deadline for reply

comments from January 20 to March 1,

1995. The intended effect of this action

is to provide members of the SMR

industry with an opportunity to further

evaluate, discuss, and attempt to reach

consensus regarding the proposals

presented and issues addressed both in

the Further Notice of Proposed Rule

Making and the initial comments

submitted in this proceeding.

DATES: Reply comments must be filed

on or before March 1, 1995.

ADDRESSES: Federal Commission, 1919

M Street, NW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

D’wana R. Speight, Legal Branch,

Commercial Radio Division, Wireless

Telecommunications Bureau, (202) 418–

0620.

SUPPLEMENTARY INFORMATION:

Order Extending Reply Comment

Period

Adopted: January 18, 1995

Released: January 18, 1995

By the Acting Chief, Commercial

Radio Division:

1. We have received requests from the

American Mobile Telecommunications

Association, Inc. (‘‘AMTA’’), Personal

Communications Industry Association

(‘‘PCIA’’), and SMR WON for an

extension of time for filing Reply

Comments in response to the Further

Notice of Proposed Rule Making on this