Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 15483

department or agency that provided

Federal Financial assistance funds to

the recipient, except as provided in

paragraph (f)(2) of this section.

(2) HUD may provide by program

notice that:

(i) Reports are not required to be sent

to HUD if HUD is not the cognizant

agency for the recipient and if the report

meets all the following conditions: an

unqualified opinion was expressed on

the financial statements; the report

identified no material instances of

noncompliance; the report identified no

reportable condition or material

weakness in internal controls; the report

contains no schedule of findings and

questioned costs applicable to a HUD

program; the report identified no

potential illegal act which could result

in a criminal prosecution; and the report

contained no uncorrected significant

finding from a prior audit; and

(ii) Reports are required to be sent to

HUD in all cases where HUD is the

cognizant agency; however in those

cases where a report meets the

conditions specified in paragraph (f)(2)

of this section, the report shall be

accompanied by a transmittal letter

indicating that such conditions have

been met.

(3) Subrecipients shall submit copies

to recipients that provided them Federal

assistance funds.

(4) The reports shall be sent within 30

days after completion of the audit, but

no later than one year after the end of

the audit period, unless a longer period

is agreed to with the cognizant agency.

(5) If no report is required to be

submitted as provided in paragraph

(f)(2)(i) of this section, the recipient

must notify the appropriate HUD office

in writing that the report met the

conditions set forth in paragraph (f)(2)

of this section; indicate the report date,

fiscal year audited, and identifying

information on the independent auditor;

and attach a copy of the Schedule of

Federal Financial Assistance.

* * * * *

PART 45—NON-FEDERAL AUDIT

REQUIREMENTS FOR INSTITUTIONS

OF HIGHER EDUCATION AND OTHER

NONPROFIT INSTITUTIONS

3. The authority citation for part 45

continues to read as follows:

Authority: 42 U.S.C. 3535(d).

4. Section 45.4 is revised to read as

follows:

§ 45.4 Submission of reports.

(a) Except for the organizations

subject to the requirements set forth in

§ 45.1(c), the report shall be due within

30 days after the completion of the

audit, but the audit should be

completed and the report submitted not

later than 13 months after the end of the

recipient’s fiscal year unless a longer

period is agreed to with the cognizant or

oversight agency.

(b)(1) HUD may provide by program

notice that:

(i) Reports are not required to be sent

to HUD if HUD is not the cognizant

agency for the recipient and if the report

meets all the following conditions: an

unqualified opinion was expressed on

the financial statements; the report

identified no material instances of

noncompliance; the report identified no

reportable condition of material

weakness in internal controls; the report

contains no schedule of findings and

questions applicable to a HUD program;

the report identified no potential illegal

act which could result in criminal

prosecution; and the report contained

no uncorrected significant finding from

a prior audit; and

(ii) Reports are required to be sent to

HUD in all cases where HUD is the

cognizant agency; however in those

cases where a report meets the

conditions specified in paragraph (b)(1)

of this section, the report shall be

accompanied by a transmittal letter

indicating that such conditions have

been met.

(2) If no report is required to be

submitted as provided in paragraph

(b)(1)(i) of this section, the recipient

must notify the appropriate HUD office

in writing that report met the conditions

set forth in paragraph (b)(1) of this

section; indicate the report date, fiscal

year audited, and identifying

information on the independent auditor;

and attach a copy of the Schedule of

Federal Financial Assistance.

Dated: March 16, 1995.

Henry G. Cisneros,

Secretary.

[FR Doc. 95–7331 Filed 3–23–95; 8:45 am]

BILLING CODE 4210–32–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[DC 13–1–6552a; FRL–5177–7]

Approval and Promulgation of Air

Quality Implementation Plans; District

of Columbia; Disapproval of New

Source Review Regulations

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is disapproving a State

Implementation Plan (SIP) revision

submitted by the District of Columbia

pertaining to the regulation of major

new and major modified sources in the

District of Columbia. The intended

effect of this action is to disapprove the

District of Columbia regulations because

they do not meet the requirements of the

Clean Air Act. This action is being taken

under section 110 of the Clean Air Act.

DATES: This action will become effective

May 23, 1995 unless adverse comments

are received on or before April 24, 1995.

If the effective date is delayed, timely

notice will be published in the Federal

Register.

ADDRESSES: Comments may be mailed to

Marcia L. Spink, Associate Director, Air

Programs (3AT00), U.S. Environmental

Protection Agency, Region III, 841

Chestnut Building, Philadelphia,

Pennsylvania 19107. Copies of the

documents relevant to this action are

available for public inspection during

normal business hours at the Air,

Radiation, and Toxics Division, U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107 and

the District of Columbia Department of

Consumer and Regulatory Affairs, 2100

Martin Luther King Ave, SE.,

Washington, DC 20020.

FOR FURTHER INFORMATION CONTACT:

Cynthia H. Stahl, (215) 597–9337, at the

EPA Region III address.

SUPPLEMENTARY INFORMATION: On June

21, 1985 and October 22, 1993, the

District of Columbia submitted a formal

revision to its State Implementation

Plan (SIP). Only the portions of those

submittals pertaining to the permitting

of new sources is being addressed in

this rulemaking. The SIP submittal

being addressed consists of District of

Columbia Municipal Regulations

(DCMR) Title 20, Sections 199

(definitions—only those pertaining to

the permitting of new sources), 200,

201, 202 and 204 (permitting), and 299

(reference to the applicability of

definitions in Section 199).

The District of Columbia (the District)

is part of the Washington D.C. ozone

nonattainment area, which includes

portions of Maryland and Virginia.

Washington D.C. is a nonattainment

area classified as serious for ozone and

moderate for carbon monoxide and, as

such, is required to implement certain

requirements including those pertaining

to the permitting of major new and

major modified sources. The Clean Air

Act required that areas such as the

District submit adopted regulations

applying to the permitting of these

major sources by no later than

November 15, 1992. In addition, section

184 of the Clean Air Act requires that
15484 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

areas located in the ozone transport

region, of which the District is a part,

submit a new source review program

applicable to major new and major

modified sources. The Act defines major

sources in serious ozone nonattainment

areas as those with the potential to emit

greater than or equal to 50 tons per year

of VOC or NOx emissions. Therefore,

although section 184 requires that areas

in the ozone transport region (OTR)

define major sources as those with the

potential to emit greater than or equal to

50 TPY VOC or 100 TPY NOx

emissions, the more stringent major

source threshold of 50 TPY for serious

ozone nonattainment areas supersedes

the OTR requirement. The Act requires

that moderate carbon monoxide (CO)

nonattainment areas, such as the

District, control its new CO sources with

potential emissions greater than or equal

to 100 TPY and its major modified

sources where potential emissions were

increasing by greater than 40 TPY. On

July 6, 1993, EPA made a finding that

the District failed to submit the required

new source review regulations and

started the 18 month sanctions clock

under section 179 of the Act. On

October 22, 1993, the District submitted

the required regulations, which were

subsequently determined by EPA to be

complete and stopped the sanctions

clock.

Summary of SIP Revision

The District of Columbia submittals

include more than the required

construction permitting program for

major new and major modified sources

required under section 182 of the Act.

Sections 200, 201, 202, and 204 of the

DCMR regulations apply to both major

and minor sources and to sources

wishing to obtain construction or

operating permits. Section 299 is an

administrative section stating that the

definitions in Section 199 apply to

Chapter 2. Section 199 contains the

definitions applicable to all of the

District’s regulations. Those definitions

contained in Section 199 that apply to

the permitting program, and which are

the subject of this rulemaking action,

are: actual emissions, allowable

emissions, begin actual construction,

commence, complete, emissions unit,

federally enforceable, major

modification, major stationary source,

modification, necessary preconstruction

approvals or permits, net emissions

increase, new source, potential to emit,

shutdown, significant, and stationary

source.

The DC regulations at Sections 200,

201, 202, and 204 include a number of

deficiencies that make the submittal

unapprovable. The two most significant

flaws are the lack of public notice and

comment requirements for proposed

new sources, and the existence of a

provision in the regulation that would

allow the Mayor to grant temporary

permits on a month by month basis,

allowing circumvention of the entire

NSR regulation. The requirement for

providing public notice and comment

on all major new source and major

modified source permits is contained in

40 CFR part 51. The District’s regulation

does not provide such required public

notice and comment. These two flaws

alone are so significant as to warrant

disapproval of the District’s 1985 and

1993 NSR SIP submittals. The other

deficiencies include the lack of clarity

in requiring consistency of emission

offsets with the RFP baseline, the

determination of the amount of

emission offsets required (separate

summation of VOC and NOX emissions

for offset purposes), location of emission

offsets, timing of the enforceability of

the emission offsets, creditability of

emission offsets relative to other Clean

Air Act requirements, the definition of

stationary source as it pertains to

nonroad engines, a provision that allows

circumvention of the offset requirement

(Section 204.9), and the de minimis

provisions of section 182(c)(6).

The District’s regulations at Section

200.11 also include an exemption for

fuel-burning equipment, which has a

capacity of 5 million or less BTU per

hour (mmBTU/hr) of heat input and,

which uses for fuel only gaseous fuels

or distillate oils. This exemption is not

approvable because the Act, as amended

in 1990, requires that states with ozone

nonattainment areas control major

sources of nitrogen oxides (NOX) as well

as volatile organic compounds (VOCs).

In the District, a major source of VOC

or NOX is defined as that which has the

potential to emit 50 tons per year or

more. Fuel burning equipment are

sources of NOX emissions and while an

individual piece of equipment with a

capacity of 5 mmBTU/hr heat input

would likely not generate emissions

greater than 50 TPY potential emissions,

a group of such sources at a single

facility could generate emissions over

the major source size threshold. If the

District wishes to exempt any group of

NOX sources that would be considered

major, it must apply for and receive a

waiver under section 182(f) of the Act.

EPA’s guidance on the criteria for

approval of NOX exemptions under

section 182(f) is contained in EPA

documents including, ‘‘Guideline for

Determining the Applicability of

Nitrogen Oxide Requirements under

Section 182(f)’’, December 1993 and

subsequent memoranda. The District

has not made a petition under section

182(f) but even if it had, EPA could not

approve the exclusion of major NOX

sources from RACT requirements until

approval of such petition under section

182(f) were granted.

Several citations to the Clean Air Act

in Section 204 of the DCMR regulation

are incorrect. Any updated references to

the Act, as amended in 1990, should

reflect the appropriate provisions

pertaining to new source permitting

program requirements in sections 172,

173, and other relevant sections of the

Act.

The District regulations applicable to

major new and major modified sources

also do not contain the de minimis and

special modification provisions of

sections 182(c) (6), (7) and (8) of the Act.

These provisions apply to sources

locating in serious and severe ozone

nonattainment areas. Section 182(c)(6)

is a de minimis provision that requires

that a source undergoing modifications

determine whether those modifications

are major by summing its net emission

increases over a 5-year consecutive

period, including the calendar year in

which the increase occurred. If the sum

of the emission increases exceeds 25

TPY over that period, the modification

is considered major. Sections 182(c) (7)

and (8) apply to such sources that have

exceeded the 25 ton threshold but wish

to avoid the otherwise applicable new

source review requirements. Section

182(c)(7) would allow sources with

potential emissions of less than 100 TPY

to obtain 1.3 to 1 internal offsets to

avoid new source review, or else to

install best available control technology

(BACT) instead of LAER technology.

Section 182(c)(8) would allow sources

with potential emissions of more than

100 TPY to obtain 1.3 to 1 internal

offsets in order to avoid the installation

of LAER technology. The District must

adopt a regulation that reflects the

requirements of section 182(c)(6) but

may choose not to adopt the provisions

in sections 182(c) (7) and (8). The

consequence of simply adopting the de

minimis provisions of section 182(c)(6)

but not (c)(7) or (c)(8) is that the overall

effect would be to make the District

requirements more stringent than the

Act. Since the Act allows for state

regulations to be more stringent, this

would be acceptable to EPA.

The District regulations pertaining to

major new and major modified sources

also do not clearly require that VOC and

NOX emissions are to be summed

separately to determine applicability

and the required amount of emission

offsets. In addition, emission offsets are

not explicitly required to be federally
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 15485

enforceable prior to permit issuance.

The District must, at a minimum,

require that VOC and NOX emission

offsets be obtained for the same

pollutant and that these emission offsets

be made federally enforceable prior to

permit issuance. The separate

summation of VOC and NOX emissions

for offset purposes is a required

clarification. If the District elects not to

require the separate summation of VOC

and NOX emissions for applicability

purposes and does not permit the

netting of emissions in order to

determine NSR applicability, this would

be more stringent than the federal

requirements and would be considered

acceptable to EPA. If, however, the

District chooses to allow netting, a

separate summation of VOC and NOX

emissions for both applicability and

offset purposes is required. In addition,

Section 204.9 of the District’s regulation

appears to provide sources with the

ability to circumvent the offset

requirements in Section 204.4. The

District must delete this provision.

The District regulation is not limited

to a major new or major modified source

construction permit program. The

applicability of the District regulation

(Chapter 2) includes major source

operating permits and minor source

construction and operating permits.

This raises additional issues that do not

pertain to the required submittal under

section 182 or 184 of the Act. Submittal

of a major source operating permit

program or a minor source construction

and operating permit program is not a

requirement under section 182 or 184 of

the Act. Therefore, lack or disapproval

of such submittals will not result in

sanctions under section 179 pertaining

to failure to submit or adopt regulations

required under section 182 or 184.

Likewise, the District’s submittal of a

major source operating permit program

or a minor source construction or

operating permit does not fulfill the

District’s requirement to submit a NSR

program under sections 182 and 184 of

the Act. It is not and was not the

District’s intent to submit the Section

200–299 regulation to meet the

requirements of title V of the Act

pertaining to major source operating

permit programs. In fact, the District has

subsequently submitted a title V

operating permit program for EPA

approval. The submittal being acted on

today is being judged as to whether it

meets the requirements of sections 182

and 184 of title I of the Act, pertaining

to a major new and major modified

source construction permitting program,

not title V requirements. The title V

submittal is not the subject of today’s

rulemaking action. The effect of this

rulemaking action will be to disapprove,

also, the District regulation as it pertains

to a major source operating permit

program as the program submitted by

the District does not meet the

requirements of sections 182 and 184 of

the Act. EPA cannot approve a title V

operating permit program in lieu of a

new source review (major new and

major modified source construction)

program. EPA, however, encourages the

submittal of a minor source operating

permit program, separate from the major

source construction permit program,

which would establish federally

enforceable conditions for those sources

that wish to remain minor sources.

The effect of this rulemaking action

will be to disapprove, also, the District

regulation as it pertains to minor source

construction and operating permits

because it does not meet the

requirements of Part D of Subchapter I

of the Act. Submittal of a minor source

construction or operating permit

program does not correct the

deficiencies in the major source

construction permit program, required

under Part D of the Act. The submittal

addressed in this rulemaking contains

provisions pertaining to major and

minor source construction permits and

major and minor source operating

permits that are inextricably

intertwined. Since the District

regulation does not meet Part D

requirements, pertaining to a major

source construction permitting program,

EPA is proposing to disapprove the

entire submittal as it pertains to

permitting.

While the District may choose to

modify and submit a minor source

operating permit program (subject to the

criteria in the June 28, 1989 Federal

Register notice) for approval into the

SIP, such a submittal is not required

under section 182 or 184 of the Act and

the lack of submittal or lack of

corrections to this operating permit

program is not considered a deficiency

under section 182 or 184 of the Act. Any

subsequent submittal that the District

makes to correct the deficiencies in the

major source construction permit

program, which is a required submittal

under sections 182 and 184 of the Act,

must clearly delineate the program

requirements applicable to major new or

major modified sources applying for

construction permits versus permitting

requirements that may be applicable to

minor sources or sources applying for

operating permits.

The requirements for a new source

review construction permitting program

are contained in 40 CFR parts 51 and 52

and the Clean Air Act and are

summarized in the accompanying

technical support document. Any

subsequent submittal that the District

makes must meet the requirements of

the Act and 40 CFR parts 51 and 52 in

order to be approved into the District

SIP. EPA is in the process of updating

40 CFR parts 51 and 52 to reflect the

current requirements in the 1990 Clean

Air Act Amendments. Any future NSR

submittals from the District will be

judged against the federal requirements

in existence at the time of the submittal.

EPA is disapproving this SIP revision

without prior proposal because the

District’s regulations contain such

significant flaws that the Agency views

this as a clear-cut decision and

anticipates no adverse comments.

However, in a separate document in this

Federal Register publication, EPA is

proposing to disapprove the SIP

revision should adverse or critical

comments be filed. This action will be

effective May 23, 1995 unless, by April

24, 1995, adverse or critical comments

are received.

If EPA receives such comments, this

action will be withdrawn before the

effective date by publishing a

subsequent notice that will withdraw

the final action. All public comments

received will then be addressed in a

subsequent final rule based on this

action serving as a proposed rule. EPA

will not institute a second comment

period on this action. Any parties

interested in commenting on this action

should do so at this time. If no such

comments are received, the public is

advised that this action will be effective

on May 23, 1995.

Final Action

EPA is disapproving the District of

Columbia Municipal Regulations title

20, sections 200, 201, 202, 204 and 299

and the associated definitions in section

199, pertaining to the permitting of

sources. The accompanying technical

support document more fully explains

the rationale for EPA’s action.

EPA is disapproving the District’s

permitting regulation because it

contains deficiencies that do not meet

the requirements of section 182(a)(2)(C)

of the CAA, 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 set forth in section

179(b) unless the deficiency has been

corrected within 18 months of such

disapproval. Section 179(b) provides
15486 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

two sanctions available to the

Administrator: highway funding and

offsets. The 18 month period referred to

in section 179(a) will begin at the time

EPA publishes final notice of this

disapproval. Moreover, the final

disapproval triggers the federal

implementation plan (FIP) requirement

under section 110(c).

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.

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.

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action, pertaining to the

disapproval of the District of Columbia

Municipal Regulations Title 20,

Sections 200, 201, 202, 204, 299 and

associated definitions in Section 199,

must be filed in the United States Court

of Appeals for the appropriate circuit by

May 23, 1995. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule for the purposes of judicial

review nor does it extend the time

within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and

recordkeeping requirements, Sulfur

oxides.

Dated: February 17, 1995.

Stanley Laskowski,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart J—District of Columbia

2. Section 52.472 is amended by

adding paragraph (f) to read as follows:

§ 52.472 Approval status.

* * * * *

(f) Disapproval of revisions to the

District of Columbia State

Implementation Plan, District of

Columbia Municipal Regulations

(DCMR) Title 20, Sections 200, 201, 202,

204 and 299, pertaining to permitting of

sources, and associated definitions in

Section 199 submitted on June 21, 1985

and October 22, 1993 by the Mayor of

the District of Columbia (1985

submittal) and by the Administrator of

the District of Columbia Environmental

Regulation Administration (1993

submittal). The disapproved regulations

include those applicable to major new

and major modified sources wishing to

locate in the District. A new source

review program for such major sources

is required under sections 182 and 184

of the Clean Air Act. There are many

deficiencies in the DCMR permitting

regulations. Some of these deficiencies

are the lack of public notice and

comment procedures for new and

modified sources applying for

construction permits, the existence of a

provision that allows the Mayor to grant

indefinite 1-month temporary permits to

those sources whose permits he/she

determines have been delayed because

of his/her office, the inclusion of a

major source operating permit program,

the inclusion of a minor source

operating permit program that does not

meet Part D requirements of the Act, the

exemption of certain fuel burning

(nitrogen oxide emitting) sources,

incorrect citations of the Clean Air Act,

a provision that allows circumvention of

the offset requirement, and the lack of

the de minimis special modification

provisions required in serious and

severe ozone nonattainment areas

(section 182(c)(6) of the Clean Air Act).

[FR Doc. 95–7243 Filed 3–23–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 180

[PP 4F4318/R2118; FRL–4943–9]

RIN 2070–AB78

Beauveria Bassiana Strain GHA;

Exemption From the Requirement of a

Tolerance

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This rule establishes an

exemption from the requirement of a

tolerance for residues of Beauveria

bassiana Strain GHA in or on alfalfa,

corn, cotton, potatoes, rapeseed,

safflower, small grain crops, soybeans,

sugarbeets, sunflower, rangeland,

improved pastures, and in meat, milk,

or other animal products from livestock

grazed on treated rangeland or improved

pastures when applied to growing crops

in accordance with good agricultural

practices. Mycotech Corp. requested this

exemption.

EFFECTIVE DATE: March 10, 1995.

ADDRESSES: Written objections,

identified by the document control

number, [PP 4F4318/R2118], may be

submitted to: Hearing Clerk (1900),

Environmental Protection Agency, Rm.

M3708, 401 M St., SW., Washington, DC

20460. A copy of any objections and

hearing requests filed with the Hearing

Clerk should be identified by the

document control number and

submitted 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

copy of objections and hearing requests

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

Davis Hwy., Arlington, VA 22202. Fees

accompanying objections shall be

labeled ‘‘Tolerance Petition Fees’’ and