Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules 2917

accompanying technical support

document.

Through the first two proposal

options, EPA is proposing a limited

approval of Chapters 129.91 through

129.95 and the associated definitions in

Chapter 121 which was submitted on

February 10, 1994, including the

corrective revision submitted on May 3,

1994.

As noted, EPA’s preliminary review of

this submittal indicates that the

Pennsylvania generic VOC and NOx

RACT regulation submitted on February

10, 1994 and the corrective revision

submitted on May 3, 1994 should be

approved/disapproved in a limited

fashion, under the rationale for option

#1; to strengthen the Pennsylvania SIP

and to allow Pennsylvania to correct the

deficiencies in the RACT regulation

cited above. EPA has proposed three

actions and is specifically soliciting

comment on these actions and the

rationale provided as the basis for each

of those actions. Public comments on

the issues discussed in this notice or on

other relevant matters will be

considered before taking final action.

Interested parties may participate in the

Federal rulemaking procedure by

submitting written comments to the

EPA Regional office listed in the

ADDRESSES section of this notice.

Under the limited approval/limited

disapproval options, EPA has identified

certain deficiencies which prevent

granting full approval of this rule under

section 110(k)(3) and Part D. Also,

because the submitted rule is not

composed of separable parts which meet

all the applicable requirements of the

CAA, EPA cannot grant partial approval

of the rule(s) under section 110(k)(3).

However, EPA may grant a limited

approval of the submitted rule(s) under

section 110(k)(3) in light of EPA’s

authority pursuant to section 301(a) to

adopt regulations necessary to further

air quality by strengthening the SIP. The

approval is limited because EPA’s

action also contains a simultaneous

limited disapproval, due to the fact that

the rule does not meet the section 182

and 184 requirements of Part D because

of the noted deficiencies. Thus, in order

to strengthen the SIP, EPA is proposing

a limited approval of Pennsylvania’s

submitted Chapters 129.91 through

192.95 and associated definitions in

Chapter 121 under section 110(k)(3) and

301(a) of the CAA.

At the same time, EPA is also

proposing a limited disapproval of this

rule because it contains deficiencies,

and, as such, the rule does not fully

meet the requirements of Part D of the

Act. Under section 179(a)(2), if the

Administrator disapproves a submission

under section 110(k) for an area

designated nonattainment, based on the

submission’s failure to meet one or more

of the elements required by the Act, the

Administrator must apply one of the

sanctions as discussed above.

Except to the extent that EPA

proposes to use this rulemaking as a

vehicle to announce an agency policy

on generic RACT submittals, nothing in

this action should be construed as

permitting or allowing or establishing a

precedent for any future request for

revision to any state implementation

plan. Each request for revision to the

state implementation plan shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under sections 110 and

301, and subchapter I, part D of the CAA

do not create any new requirements but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

CAA, preparation of a flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

EPA’s disapproval of the State request

under section 110 and subchapter I, part

D of the CAA does not affect any

existing requirements applicable to

small entities. Any pre-existing federal

requirements remain in place after this

disapproval. Federal disapproval of the

state submittal does not affect its stateenforceability. Moreover, EPA’s

disapproval of the submittal does not

impose any new Federal requirements.

Therefore, EPA certifies that this

disapproval action does not have a

significant impact on a substantial

number of small entities because it does

not remove existing requirements and

impose any new Federal requirements.

This action has been classified as a

Table 2 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by an October 4,

1993 memorandum from Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation. The OMB has

exempted this regulatory action from

E.O. 12866 review.

The Administrator’s decision to

approve or disapprove the Pennsylvania

SIP revisions, pertaining to the VOC and

NOX RACT regulations, will be based on

whether it meets the requirements of

section 110(a)(2)(A)–(K) and part D of

the Clean Air Act, as amended, and EPA

regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements.

Authority: 42 U.S.C. 7401–7671q.

Dated: October 27, 1994.

W.T. Wisniewski,

Acting Regional Administrator, Region III.

[FR Doc. 95–822 Filed 1–11–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[SD–001; FRL–5137–4]

Clean Air Act Proposed Interim

Approval of Operating Permits

Program; State of South Dakota

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed interim approval.

SUMMARY: EPA proposes interim

approval of the Operating Permits

Program submitted by the State of South

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.

DATES: Comments on this proposed

action must be received in writing by

February 13, 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 this

proposed rule are available for

inspection during normal business

hours at the following location: U.S.

Environmental Protection Agency,
2918 Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules

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

CFR 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. Based on material changes to

the State’s submission that consisted of

regulations changes adopted by the

State on November 17, 1994, EPA is

extending the review period for an

additional 3 months. EPA will act to

approve or disapprove the submission

by April 11, 1995. 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 South Dakota’s

designee, Robert E. Roberts, Secretary of

the Department of Environment and

Natural Resources, submitted the State

of South Dakota Title V Operating

Permit Program (PROGRAM) to EPA on

November 12, 1993. Amendments to the

PROGRAM requested by EPA were

received on January 11, 1994. EPA

deemed the PROGRAM administratively

and technically complete in a letter to

the Governor’s designee dated January

14, 1994. The PROGRAM submittal

includes a legal opinion from the

Attorney General of South 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, a permit fee

demonstration and a memorandum of

agreement which defines how the

PROGRAM will be administered by the

State and reviewed by EPA.

2. Regulations and Program

Implementation

The South Dakota PROGRAM,

including the operating permit

regulation (Administrative Rules of

South Dakota (ARSD), Article 74:36, Air

Pollution Control Program),

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

(no insignificant activities were

identified in the PROGRAM); § 70.7

with respect to public participation and

minor permit modifications; and § 70.11

with respect to requirements for

enforcement authority.

South Dakota has the authority to

issue variances from requirements

imposed by State law. Section 34A–1–

24 of the South Dakota Codified Laws

(SDCL) allows the Board of Minerals

and Environment, the permitting board,

discretion to grant relief from

compliance with State rules and

regulations governing the quality,

nature, duration or extent of emissions.

Succeeding sections of the SDCL specify

under what circumstances a variance

may be granted or denied. In its review

of South Dakota’s PROGRAM, EPA has

previously taken the position that, in

order to gain full approval for its

PROGRAM, South Dakota would have

to amend SDCL 34A–1–24 to make it

clear that variances may not be granted

to part 70 sources. EPA has reevaluated

its position on this issue. Although EPA

would support such an amendment to

SDCL 34A–1–24, EPA has not required

other states to change similar statutory

variance provisions. Thus, EPA believes

it would not be appropriate to require

South Dakota to amend SDCL 34A–1–24

before full PROGRAM approval is

granted. EPA’s reasoning is as follows:

EPA regards SDCL 34A–1–24 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.

EPA has no authority to approve

provisions of State law, such as the

variance provision referred to, which
Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules 2919

are inconsistent with part 70. 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. 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.

Part 70 of the operating permit

regulations requires prompt reporting of

deviations from the permit

requirements. Section 70.6(a)(3)(iii)(B)

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 this is a distinct reporting

obligation under § 70.6(a)(3)(iii)(A).

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. The

South Dakota PROGRAM will define

prompt reporting of deviations in each

permit consistent with the applicable

requirements.

There are certain provisions of South

Dakota’s operating permit regulation for

which EPA feels it is appropriate to

offer clarification to ensure that they are

interpreted to be consistent with part

70. These are as follows: (1) The

definition of ‘‘federally enforceable’’

which appears at ARSD 74:36:01:01(28)

reads as follows:

‘‘Federally enforceable,’’ all limits and

conditions that are enforceable by the

administrator of EPA pursuant to federal law.

These limits and conditions include those

requirements developed pursuant to this

article, those appearing in 40 CFR 60 and 61

(July 1, 1993), requirements within the state

implementation plan and permit

requirements established pursuant to this

article or 40 CFR 51 Subpart I (July 1, 1993).

The use of this term does not impede the

Department’s authority under state law to

enforce these limits and conditions.

This definition could be significant

for determining whether a source is

subject to the part 70 PROGRAM. Thus,

the second sentence of the above

definition cannot and should not be

read to expand on the first sentence of

the definition. For example,

requirements developed pursuant to

ARSD Article 74:36 might be, but

wouldn’t necessarily be, Federally

enforceable. EPA’s interpretation is that

the requirements delineated in the

second sentence of the definition are

only Federally enforceable if they are

enforceable by the administrator of EPA

pursuant to federal law.

(2) The second sentence of ARSD

74:36:01:08(1) reads as follows:

Emissions from any oil exploration or

production well and its associated

equipment and emissions from any

pipeline compressor or pump station

may not be aggregated with emissions

from other similar units, whether or not

such units are in a contiguous area or

under common control, to determine

whether such units or stations are major

sources.

To be consistent with part 70, this

sentence must be read as only being

applicable to a determination of

whether a source is major under section

112 of the Act. This language cannot be

applied when determining whether a

source is major under other sections of

the Act.

Comments noting deficiencies in the

South Dakota PROGRAM were sent to

the State in a letter dated July 8, 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 August 18, 1994, the State

committed to complete the regulatory

process to correct both interim and full

PROGRAM approval deficiencies

related to its PROGRAM regulations,

and submit these changes to EPA by

approximately December 15, 1994. EPA

responded in a letter dated October 3,

1994 that they would review all of the

State’s corrective actions. However,

these corrective actions would be

considered a material change to the

PROGRAM and the date for final

interim approval would be extended.

The State adopted the regulatory

changes on November 17, 1994, which

EPA has reviewed and has determined

to be adequate to allow for interim

approval.

One remaining issue noted in EPA’s

July 8, 1994 letter that require corrective

action prior to full PROGRAM approval

is as follows: The PROGRAM submittal

contained an Attorney General’s

opinion which stated that South

Dakota’s criminal enforcement

authorities are not equivalent to those

required in part 70.11. The State’s

criminal enforcement statute only

allows for a maximum penalty of $1,000

for failure to obtain a permit and $500

for violation of a permit condition. The

State must adopt legislation consistent

with § 70.11 prior to receiving full

PROGRAM approval to allow for a

maximum criminal fine of not less than

$10,000 per day per violation for

knowing violation of operating permit

requirements, including making a false

statement and tampering with a

monitoring device.

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 State of South Dakota established

an initial fee for regulated air pollutants

below the presumptive minimum set in

title V, section 502 and part 70, and was

required to submit a detailed permit fee

demonstration as part of its PROGRAM

submittal. The basis of this fee

demonstration included a workload

analysis, which estimated the annual

cost of running the PROGRAM in fiscal

year (FY) 1995 to be $438,215; a fee

structure based on the estimated direct

and indirect costs of the PROGRAM, the

number of part 70 sources permitted,

and the actual emissions for the

previous year. The fees established for

FY 1995 are as follows: rock crushers

will be charged a flat fee of $250.00; an

annual administrative fee will be

assessed to all major sources (based on

actual emissions of each source for one

calendar year), excluding rock crushers,

consisting of $100.00 for sources

emitting less than 50 tons per year,

$500.00 for sources emitting 50 to less

than 100 tons per year, and $1,000.00

for sources emitting 100 tons per year or

greater; and an air emission fee will be

assessed to all major sources (excluding

rock crushers) of $6.10 per ton per year

based on emissions from calendar year

1992 (the State will not use the 4,000

tons per year per pollutant emissions

cap allowed by Act). This fee structure

will be reevaluated each year. After

careful review, the State of South

Dakota has determined that these fees

would support the South Dakota

PROGRAM costs as required by 40 CFR

70.9(a).

4. Provisions Implementing the

Requirements of Other Titles of the Act

a. Authority and/or commitments for

section 112 implementation South

Dakota has demonstrated in its
2920 Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules

PROGRAM submittal adequate legal

authority to implement and enforce all

section 112 requirements through the

title V permit. This legal authority is

contained in South 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 South Dakota to issue

permits that assure compliance with all

section 112 requirements. EPA is

interpreting the above legal authority to

mean that South Dakota is able 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.

b. Implementation of 112(g) upon

program approval. As a condition of

approval of the part 70 PROGRAM,

South Dakota 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 South Dakota’s

combined preconstruction/operating

permit program found in section

74:36:05 of the State’s regulations under

the authority of title V and part 70 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. South Dakota

has combined their preconstruction

permitting regulations and their part 70

permitting regulations for all new part

70 sources, except those sources subject

to prevention of significant deterioration

(PSD) or nonattainment new source

review (NSR) permitting. South Dakota

will require sources subject to section

112(g) to obtain a title V permit prior to

construction, thereby creating a

Federally enforceable limit. EPA

believes this approval is necessary so

that South Dakota 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), and 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. If South Dakota does

not wish to implement section 112(g)

through these authorities and can

demonstrate that an alternative means of

implementing section 112(g) exists, EPA

may, in the final action approving South

Dakota’s PROGRAM, approve the

alternative instead. To the extent South

Dakota does not have the authority to

regulate HAPs through existing State

law, the State may disallow

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 South Dakota,

acting expeditiously, will be able to

adopt regulations consistent with the

section 112(g) regulations. 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 South Dakota’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

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.

South 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 but is

limited to sources covered by the part

70 program.

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 South 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. South 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. Proposed Action

EPA is proposing to grant interim

approval to the operating permits

program submitted by the State of South

Dakota on November 12, 1993. If

promulgated, the State must make the

following change, as discussed in detail

above, to receive full PROGRAM

approval: The State must adopt

legislation consistent with § 70.11 prior

to receiving full PROGRAM approval to

allow for a maximum criminal fine of

not less than $10,000 per day per

violation for knowing violation of

operating permit requirements,

including making a false statement and

tampering with a monitoring device.

Evidence of this statutory change

must be submitted to EPA within 18

months of EPA’s interim approval of the

South Dakota PROGRAM.

Today’s proposal to give interim

approval to the State’s part 70

PROGRAM 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:

1. Cheyenne River; 2. Crow Creek; 3.

Flandreau; 4. Lower Brule; 5. Pine

Ridge; 6. Rosebud; 7. Sisseton; 8.

Standing Rock; and 9. Yankton.

The State has asserted it has

jurisdiction to enforce a part 70

PROGRAM within some or all of these

‘‘existing or former’’ Indian reservations

and has provided an analysis of such

jurisdiction. EPA is in the process of

evaluating the State’s analysis and will

issue a supplemental notice regarding

this issue in the future. 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 and that such

approval would constitute sound

administrative practice. This is a

complex and controversial issue, and
Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules 2921

EPA does not wish to delay interim

approval of the State’s part 70

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 approval, which may not

be renewed, extends for a period of up

to two 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

one-year time period for submittal of

permit applications by subject sources

begins upon interim approval, as does

the three-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 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 only applies to sources

covered by the part 70 program.

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 February 13,

1995.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

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: December 29, 1994.

Jack W. McGraw,

Acting Regional Administrator.

[FR Doc. 95–700 Filed 1–11–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 180

[OPP–300374; FRL–4924–9]

RIN 2070–AC18

3,5-Bis(6-Isocyanatohexyl)-2H-1,3,5-

Oxadiazine-2,4,6-(3H,5H)-Trione,

Polymer with Diethylenetriamine;

Tolerance Exemption

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: This document proposes to

establish an exemption from the

requirement of a tolerance for residues

of 3,5-bis(6-isocyanatohexyl)-2H-1,3,5-

oxadiazine-2,4,6-(3H,5H)-trione,

polymer with diethylenetriamine (CAS

Reg. No. 87823-33-4), when used as an

inert ingredient (encapsulating agent) in

pesticide formulations applied to

growing crops. Miles, Inc., requested

this proposed regulation.

DATES: Written comments, identified by

the document control number [OPP–

300374], must be received on or before

February 13, 1995.

ADDRESSES: By mail, submit written

comments to Public Response and

Program Resources Branch, Field

Operations Division (7506C), Office of

Pesticide Programs, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. In person, bring

comments to: Rm. 1132, CM #2, 1921

Jefferson Davis Hwy., Arlington, VA

22202.

Information submitted as a comment

concerning this document may be

claimed confidential by marking any

part or all of that information as

‘‘Confidential Business Information’’

(CBI). Information so marked will not be

disclosed except in accordance with

procedures set forth in 40 CFR part 2.

A copy of the comment that does not

contain CBI must be submitted for

inclusion in the public record.

Information not marked confidential

will be included in the public docket by

EPA without prior notice. All written

comments will be available for public

inspection in Rm. 1132 at the address

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

Monday through Friday, excluding legal

holidays.

FOR FURTHER INFORMATION CONTACT:

Connie Welch, Registration Support

Branch, Registration Division (7505W),

Environmental Protection Agency, 401

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

Office location and telephone number:

2800 Crystal Drive, North Tower, 6th

Floor, Arlington, VA 22202, (703) 308–

8470.

SUPPLEMENTARY INFORMATION: Miles,

Inc., 8400 Hawthorn Road, P.O. Box

4913, Kansas City, MO 64120–0013,

submitted pesticide petition (PP)

4E4416 to EPA requesting that the

Administrator, pursuant to section

408(e) of the Federal Food, Drug, and

Cosmetic Act (FFDCA) (21 U.S.C.

346a(e)), propose to amend 40 CFR

180.1001(d) by establishing an

exemption from the requirement of a

tolerance for residues of 3,5-bis(6-

isocyanatohexyl)-2H-1,3,5-oxadiazine2,4,6-(3H,5H)-trione, polymer with

diethylenetriamine (CAS Reg. No.

87823–33–4), when used as an inert

ingredient (encapsulating agent) in

pesticide formulations applied to

growing crops under 40 CFR

180.1001(d).

Inert ingredients are all ingredients

that are not active ingredients as defined

in 40 CFR 153.125, and include, but are

not limited to, the following types of

ingredients (except when they have a

pesticidal efficacy of their own):

solvents such as alcohols and

hydrocarbons; surfactants such as

polyoxyethylene polymers and fatty

acids; carriers such as clay and

diatomaceous earth; thickeners such as

carrageenan and modified cellulose;

wetting, spreading, and dispersing

agents; propellants in aerosol