Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules and Regulations 34733

For the reasons set out in the

preamble, 33 CFR Part 334 is amended

as follows:

PART 334—DANGER ZONE AND

RESTRICTED AREA REGULATIONS

1. The authority citation for Part 334

continues to read as follows:

Authority: 40 Stat. 266 (33 U.S.C. 1) and

40 Stat. 892 (33 U.S.C. 3).

2. Section 334.360 is amended by

revising paragraphs (a) and (b)(1) to read

as follows:

§ 334.360 Chesapeake Bay off Fort

Monroe, Virginia; restricted area, U.S. Naval

Base and Naval Surface Weapons Center.

(a) The area. Beginning at latitude

37°01′03′′, longitude 076°17′52′′; thence

to latitude 37°01′00′′, longitude

076°16′11′′; thence to latitude 36°59′43′′,

longitude 076°16′11′′; thence to latitude

36°59′18′′, longitude 076°17′52′′; thence

to latitude 37°00′05′′, longitude

076°18′18′′; thence north along the

seawall to the point of beginning.

(b) The regulations. (1) Anchoring,

trawling, fishing and dragging are

prohibited in the restricted area, and no

object, either attached to a vessel or

otherwise, shall be placed on or near the

bottom unless authorized by the Facility

Manager, Naval Surface Warfare Center,

Dahlgren Division Coastal Systems

Station Detachment, Fort Monroe,

Virginia.

* * * * *

3. Section 334.530 is amended by

revising paragraph (b)(2) to read as

follows:

§ 334.530 Canaveral Harbor adjacent to the

Navy Pier at Port Canaveral, Fla.; restricted

area.

* * * * *

(b) * * *

(2) The area will be closed when a red

square flag (bravo), and depending on

the status of the hazardous operation,

either an amber or red beacon, steady

burning or rotating, day or night, when

displayed from any of the three berths

along the wharf.

* * * * *

4. Section 334.1340 is amended by

redesignating paragraphs (a)(3) and

(a)(4) as paragraphs (a)(1) and (a)(2),

respectively, revising the heading of

newly designated paragraph (a)(2), and

revising paragraph (c) to read as follows:

§ 334.1340 Pacific Ocean, Hawaii; danger

zones.

(a) Danger zones. (1) * * *

(2) Submerged unexploded ordnance

danger zone, Kahoolawe Island, Hawaii.

* * *

* * * * *

(c) Enforcing agency. The regulations

in this section shall be enforced by

Commander, Naval Base, Pearl Harbor,

Hawaii 96860–5020, and such agencies

as he/she may designated.

Dated: June 19, 1996.

Stanley G. Genega,

Major General, U.S. Army, Director of Civil

Works.

[FR Doc. 96–16850 Filed 7–2–96; 8:45 am]

BILLING CODE 3710–92–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 70

[AD-FRL–5530–4]

Title V Clean Air Act Final Interim

Approval of Operating Permits

Program; Maryland

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final Interim Approval.

SUMMARY: EPA is promulgating interim

approval of the operating permits

program submitted by Maryland for the

purpose of complying with federal

requirements for an approvable program

to issue operating permits to all major

stationary sources, and to certain other

sources. Maryland has substantially, but

not fully, met the requirements for an

operating permits program set out in

title V of the Clean Air Act (CAA) and

40 CFR part 70. Upon the effective date

of this program approval, those sources

must comply with Maryland’s

regulatory requirements to submit an

application for an operating permit

pursuant to the state’s submittal

schedule.

EFFECTIVE DATE: August 2, 1996.

ADDRESSES: Copies of Maryland’s

submittal and other supporting

information used in developing the final

interim approval are available for

inspection during normal business

hours at the following location: Air,

Radiation, and Toxics Division, U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, PA 19107.

FOR FURTHER INFORMATION CONTACT: Lisa

M. Donahue, (3AT23), Air, Radiation

and Toxics Division, U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, PA 19107, (215) 566–

2062, donahue.lisa@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Title V of the 1990 CAA Amendments

(sections 501–507 of CAA), and

implementing regulations at 40 Code of

Federal Regulations (CFR) part 70

require that states seeking to administer

a title V operating permits program

develop and submit a program to EPA

by November 15, 1993, and that EPA act

to approve or disapprove each program

within 1 year after receiving the

submittal. 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 of an operating permits

program submittal. 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 November

15, 1995, or by the expiration of the

interim approval period, it must

establish and implement a federal

program.

EPA compiled a technical support

document (TSD), associated with the

proposal, which contains a detailed

analysis of the operating permits

program. On October 30, 1995, EPA

proposed interim approval of the

operating permits program for

Maryland, and requested comments on

that proposal. (See 60 FR 55231). In this

document EPA is taking final action to

promulgate interim approval of the

operating permits program for

Maryland.

II. Analysis of State Submission

On May 9, 1995, Maryland submitted

an operating permits program to satisfy

the requirements of the CAA and 40

CFR part 70 and the submittal was

found to be administratively complete

pursuant to 40 CFR 70.4(e)(1). The

submittal was supplemented by

additional material on June 9, 1995.

EPA reviewed the program against the

criteria for approval in section 502 of

the CAA and the part 70 regulations.

EPA determined, as fully described in

the notice of proposed interim approval

of the state’s operating permits program

(see 60 FR 55231 (October 30, 1995))

and the TSD for this action, that

Maryland’s operating permits program

substantially meets the requirements of

the CAA and part 70.

III. Response to Public Comments

EPA received several comments

during the public comment period.

Additional comments to clarify

comments submitted during the

comment period were submitted after

the expiration of the public comment

period. These comments and EPA’s

responses are grouped into four

categories. All comments are contained
34734 Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules and Regulations

in the docket at the address noted in the

ADDRESSES section above.

A. Judicial Standing

Comment 1: One commenter

expressed the belief that EPA was

overstepping its authority in proposing

that Maryland amend the Maryland

Environmental Standing Act (MESA) to

afford non-state residents and

organizations the same standing rights

as other ‘‘persons’’ as defined in MESA.

Citing the 10th amendment to the U.S.

Constitution, the commenter argues that

the regulation of state courts is clearly

a right reserved to the states and that the

Maryland common law ‘‘specific

interest or property right’’ test of harm

is a reasonable criteria for determining

standing in a state court that EPA

should not seek to alter.

EPA Response to comment 1: EPA

does not agree that Maryland’s common

law standing requirements fully meet

the standards of title V. Moreover, EPA

does not believe that section 502(b)(6) of

the CAA, and the requirements of 40

CFR 70.4(b)(3)(x) regarding the

necessary opportunity for judicial

review of permit actions represent an

unconstitutional invasion of state

sovereignty or a coercion of state

legislative or regulatory action since,

under title V, states are required to

amend their standing laws only if they

wish to obtain EPA approval under the

CAA. If a state elects not to participate

in implementing title V, it is free to

make that choice. EPA’s position has

been upheld recently at both the Federal

District Court and Appellate Court

levels. See, State of Missouri and Mel

Carnahan v. U.S., et al, No.

4:94CV01288 ELF, 1996 U.S. Dist. Lexis

3215 (E.D. Mo. Feb. 5, 1996). See also,

Commonwealth of Virginia v. Carol

Browner, et al., No. 95–1052, 1996 U.S.

App. Lexis 5334 (4th Cir. Mar. 26,

1996).

Comment 2: Two commenters,

including the Maryland Department of

the Environment (MDE), expressed

disagreement with EPA’s evaluation that

title V standing criteria must meet the

minimum requirements of Article III of

the U.S. Constitution. One of these

commenters disagreed with EPA’s

conclusion that MESA consequently

provides an inadequate opportunity for

judicial review of part 70 permits.

EPA Response to comment 2: Section

502(b)(6) states that every approvable

permit program must provide the

applicant and ‘‘any person who

participated in the public comment

process’’ with the opportunity for

judicial review of the final permit action

in state court. The same opportunity

must also be afforded to any other

person who could obtain judicial review

of the action under any applicable state

law. EPA believes that for a state title V

operating permits program to be

approved by EPA, that program must

provide access to judicial review to any

party who participated in the public

comment process and who at a

minimum meets the threshold standing

requirements of Article III of the U.S.

Constitution.

EPA’s interpretation is consistent

with the language, structure, and

legislative history of the Act, under

which it is clear that affected members

of the public must have an opportunity

for judicial review of permit actions to

ensure an adequate and meaningful

opportunity for public participation in

the permit process. See, Chafee-Baucus

Statement of Senate Managers, S. 1630,

the Clean Air Act Amendments of 1990,

reprinted in 136 Cong. Rec. S169941

(daily ed. October 27, 1990). The

legislative history, together with the

expansive language of section 502(b)(6),

demonstrates the clear intent of the

Congress to provide citizens a broad

opportunity for judicial review.

EPA’s position regarding the Article

III standard recently was affirmed by the

U.S. Court of Appeals for the Fourth

Circuit in Commonwealth of Virginia v.

Carol M. Browner, et al., No. 95–1052,

1996 U.S. App. Lexis 5334 (4th Cir. Mar.

26, 1996). The Fourth Circuit Court of

Appeals therein held that:

Here, EPA resolved the slight tension

within § 502(b)(6) by interpreting the section

to require that states, at a minimum, extend

judicial review rights to participants in the

state public comment process who satisfy the

standard for Article III standing. This

resolution is both authorized by Congress

and reasonable, and therefore we must reject

Virginia’s alternative interpretation.

Commonwealth v. Browner, 1996 U.S.

App. Lexis 5334 at 25–26.

Certain parties, including non-state

residents and organizations not doing

business in Maryland, do not fall within

MESA’s definition of ‘‘person’’ and

cannot take advantage of the standing

provisions of MESA. These parties are

required to establish standing for

judicial review under the Maryland

common law of standing. While

Maryland’s program submittal provides

adequate standing for state residents

and organizations doing business in

Maryland and thus substantially meets

the standing requirements of title V of

the CAA and 40 CFR part 70, EPA has

concluded that Maryland standing

requirements are somewhat less

favorable than the standing

requirements of Article III with respect

to non-state residents and organizations

not doing business in Maryland. In

order to fully meet the standing

requirements for judicial review

required by CAA section 502(b)(6) and

40 CFR 70.4(b)(3)(x), MESA must be

amended to accord such non-state

residents and organizations the same

standing to challenge part 70 permit

decisions as other ‘‘persons’’ defined in

MESA, or, in the alternative, other

appropriate legislative action must be

taken to ensure that standing

requirements for such organizations are

not more restrictive than the minimum

requirements of Article III of the U.S.

Constitution as they apply to federal

courts.

Comment 3: One commenter argues

that judicial review under the Maryland

Administrative Processes Act (APA) is

unavailable in Maryland for a part 70

permit and the scope of review under

MESA is much narrower than that

afforded under the APA. The

commenter further asserts that MESA

does not abrogate the existing

requirement of exhaustion of remedies,

expresses due process concerns inherent

under Maryland APA standing

principles and questions whether MESA

can serve as the ‘‘primary avenue’’ for

third parties to obtain judicial review of

part 70 permits issued by MDE. A

second commenter generally asserted

the belief that Maryland’s permit

program effectively precludes citizen

suits under all circumstances and is

deficient in its citizen suit ‘‘standing’’

provisions.

EPA Response to comment 3: The

Maryland Attorney General

acknowledges that in order to obtain

judicial review under the APA, a party

must show that the party has been

‘‘aggrieved’’. The Maryland Attorney

General recognizes that MESA cannot be

used for this purpose and that MESA

does not provide standing for a direct

judicial review of permit actions under

Maryland’s APA. See, Medical Waste

Associates, Inc. v. Maryland Waste

Coalition, Inc., 327 Md. 596, 612 A.2d

241 (1992). Citing Medical Waste, the

Maryland Attorney General concludes

that MESA cannot be used by a plaintiff

organization to create standing rights

that the organization otherwise would

not have to obtain judicial review of a

contested case decision under the APA.

However, the Maryland Attorney

General concludes that the decision in

Medical Waste has relevance to the

scope of review available under MESA

only with respect to MDE permits that

are subject to contested case hearings.

The Maryland Attorney General states

that part 70 operating permits will not

be subject to contested case proceedings

and that Medical Waste should not be

seen as controlling with respect to part
Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules and Regulations 34735

70 permits, especially where MDE has

specified that MESA is the appropriate

mechanism for obtaining judicial review

of such permits.

The Maryland Attorney General

acknowledges that the nature and scope

of review that is available with respect

to part 70 operating permits will depend

on the issues raised by the petitioner

and on the type of action brought.

However, the Maryland Attorney

General notes that the Maryland Court

of Appeals, in discussing the type of

review available in an adjudicative type

of permit review proceeding, has stated

that:

Consequently, such an administrative

proceeding, even if not subject to judicial

review under the APA, would be subject to

judicial review, of essentially the same scope,

in an action for mandamus, certiorari,

injunction, or declaratory judgment.

Medical Waste, 327 Md. at 610.

The Maryland Attorney General

further asserts that, in the absence of an

express provision for review, actions for

declaratory or injunctive relief, as well

as mandamus, are available to persons

challenging state permit issuance. The

Maryland Attorney General notes that a

reviewing court essentially may provide

the same remedies that a person could

obtain from judicial review under the

APA and that MESA, therefore, should

provide the basis for judicial review of

any part 70 permit in which MDE fails

correctly to apply applicable CAA

requirements that pertain to the source

covered under the permit. As to the

issue of exhaustion of remedies, neither

title V nor 40 CFR part 70 prohibit an

administrative remedy exhaustion

requirement.

On the basis of the Maryland Attorney

General’s Opinion, it appears that

review of essentially equivalent scope as

direct judicial review is available in

administrative proceedings such as

permit issuances or denials, even if not

subject to direct review under the

Maryland APA. Nevertheless, Maryland

could avoid the risk of any future

Maryland judicial decision interpreting

MESA or Maryland’s common law of

standing in such a manner as potentially

to compromise Maryland’s part 70

approval status if Maryland were to

amend its state APA to provide directly

for the opportunity for judicial review of

permit actions in state court, consistent

with CAA section 502(b)(6) and 40 CFR

70.4(b)(3)(x).

Comment 4: One commenter opines

that Maryland part 70 regulations

should be able to provide expressly for

standing consistent with existing

Federal law through an adoption of the

Federal definition of standing, as

Maryland has done with state

regulations promulgated under the

Federal Surface Mining Control and

Reclamation Act.

EPA Response to comment 4: EPA

believes that the commenter may have

identified one of several potential

alternatives available to Maryland to

meet fully the requirements of CAA

section 502(b)(6) and 40 CFR

70.4(b)(3)(x). However, EPA does not

believe that Maryland must select this

particular alternative in order to

maintain part 70 approval status.

Comment 5: One commenter notes

that the Maryland APA requirement that

a party be ‘‘aggrieved’’ mirrors general

common law standing principles

applicable to judicial review of

administrative decisions, but asserts

that Maryland imposes a ‘‘special

interest’’ requirement whereby a party

‘‘ordinarily must’’ show that his

personal property rights are specially

affected in a way different from the

general public in order to have common

law standing. The commenter states that

Maryland’s ‘‘special interest’’

requirement differs significantly from

the ‘‘general interest’’ requirement

under the Federal rule and that the

Court of Special Appeals of Maryland

has virtually excluded anyone but an

adjoining property holder from meeting

the ‘‘special harm’’ requirement of

standing.

EPA Response to comment 5: No

Maryland appellate decision has

articulated those ‘‘interests’’ which are

sufficient to establish standing on the

part of an individual in an

environmental permit case. In the event

that a Maryland judicial decision having

precedential effect is issued in the

future which makes Maryland common

law standing requirements more

stringent than Article III standing

requirements, EPA will take appropriate

action under 40 CFR 70.10(c) (‘‘Criteria

for Withdrawal of State Programs’’).

Comment 6: One commenter asserts

that MESA places major limitations

upon when and where a private citizen

may initiate an action and that judicial

application of MESA renders nugatory

MESA’s supposedly broad standing

requirements.

EPA Response to comment 6: While it

is clear that MESA confers standing on

any individual citizen residing ‘‘in the

county or Baltimore City where the

action is brought’’, no reported

Maryland appellate decision has

interpreted the additional standard set

forth in MESA which confers standing

on any individual citizen able to

‘‘demonstrate that the alleged condition,

activity, or failure complained of affects

the environment where he resides.’’ In

the event that a Maryland judicial

decision having precedential effect is

issued in the future which makes

MESA’s standing requirements more

stringent than Article III standing

requirements, EPA will take appropriate

action under 40 CFR 70.10(c).

Comment 7: One commenter notes

that organizational standing under

Maryland common law is significantly

more restrictive than under Federal law

in that the organization’s members must

meet the ‘‘special harm’’ test and the

organization itself must have its own

‘‘property’’ interest, separate and

distinct from that of its members and

the public at large.

EPA Response to comment 7: EPA has

identified the commenter’s concerns as

an interim approval issue and agrees

that Maryland standing requirements

are somewhat less favorable than the

standing requirements of Article III with

respect to organizations not doing

business in Maryland. See, 60 FR 55231,

55233. The federal courts interpret

Article III to provide standing for

organizations in actions brought to

protect the interests of their members,

provided certain conditions are met.

See, Chesapeake Bay Foundation v.

Bethlehem Steel Corp., 608 F.Supp. 440

(D. Md. 1985). Under the Maryland

common law of standing, an

organization must have an interest of its

own, separate and distinct from that of

its individual members, in order to

establish standing. Medical Waste

Associates, Inc. v. Maryland Waste

Coalition, 327 Md. 596 (1992). However,

the Maryland Attorney General notes

that if at least one plaintiff in an action

for review of a permit establishes

standing, the Maryland courts will not

ordinarily inquire as to whether other

plaintiffs have standing. Therefore, an

organization doing business outside of

Maryland may be able to participate in

a permit challenge on behalf of its

individual members if other parties

having the requisite standing also join

as plaintiffs in the action.

Maryland’s program submittal

substantially meets the standing

requirements of title V of the CAA and

40 CFR part 70. However, in order to

meet fully the requirements of section

502(b)(6) of the CAA and 40 CFR

70.4(b)(3)(x), MESA must be amended to

accord non-state residents and

organizations not doing business in

Maryland the same standing to

challenge part 70 permit decisions as

other ‘‘persons’’ as defined in MESA, or,

in the alternative, other appropriate

legislative action must be taken to

ensure that standing requirements for

such organizations are not more

restrictive than the minimum
34736 Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules and Regulations

requirements of Article III of the U.S.

Constitution as they apply to federal

courts.

Comment 8: One commenter

questions where the Maryland Attorney

General finds support for the

proposition that Maryland would

recognize a non-economic interest as

sufficient for standing purposes. The

commenter considers it clear that

Maryland recognizes only an

individual’s ‘‘health or property’’

interest and that not one single case

allows recreational, environmental or

aesthetic interests as being sufficient to

constitute the type of special interest

needed to establish standing under

Maryland common law (i.e., non-MESA)

standing.

EPA Response to comment 8: There

are no reported cases in Maryland that

would preclude a non-economic interest

(such as a recreational, conservational

or aesthetic interest) from constituting

the type of specific interest needed to

establish standing under Maryland

common law. If a Maryland judicial

decision having precedential effect is

issued in the future limiting the special

interest required for standing to

economic interests, then the Maryland

standing requirement would become

more stringent than Article III standing

requirements. See e.g., Commonwealth

of Virginia v. Carol M. Browner, et al.,

No. 95–1052, 1996 U.S. App. Lexis 5334

(plaintiff need not show ‘‘pecuniary’’

harm to have Article III standing; injury

to health or to aesthetic, environmental,

or recreational interests will suffice).

See, also, United States v. Students

Challenging Regulatory Agency

Procedures (SCRAP), 412 U.S. 669, 686–

87 (1973); Sierra Club v. Morton, 405

U.S. 727, 734 (1972). EPA would then

take appropriate action under 40 CFR

70.10(c).

Comment 9: One commenter asked

that EPA disapprove the Maryland part

70 Permit Program and take the first

steps to institute discretionary

sanctions.

EPA Response to comment 9:

Maryland’s part 70 Permit Program

submittal does not meet fully the

requirements of title V of the CAA and

40 CFR part 70 and full approval by

EPA is inappropriate. However,

Maryland’s part 70 Permit Program

submittal substantially meets the

requirements of title V of the CAA and

40 CFR part 70 and interim approval is

appropriate. During the interim

approval period, which may extend for

up to 2 years, Maryland is protected

from sanctions for failure to have a fully

approved title V, part 70 program. EPA

may apply discretionary sanctions,

where warranted, any time after the end

of an interim approval period if

Maryland has not timely submitted a

complete corrective program or EPA has

disapproved a submitted corrective

program.

B. Programmatic Issues

Comment 10: A commenter disagreed

with EPA’s statement that any

relaxation of a compliance plan or

schedule must be processed as a

significant permit modification. The

commenter believes that Maryland

should be allowed discretion to process

insubstantial changes to a compliance

plan or schedule as either

administrative or minor permit

revisions, and cites an example. The

commenter believes that it is

inappropriate to require a significant

permit modification for a one month

delay in meeting a compliance

milestone, when the state can assure

that the source is acting in good faith

and that the delay is beyond the

source’s control. The commenter

believes that this provision of the

regulation (Code of Maryland

Regulations (COMAR) 26.11.03.14.C)

should be approved as currently

written.

EPA Response to Comment 10: EPA

agrees with the comment and revises its

position, removing the requirement to

revise COMAR 26.11.03.14C as set out

in the proposed interim approval notice.

COMAR 26.11.03.14C does not prohibit

MDE from considering a change to a

compliance plan as a significant permit

modification. Rather, it provides an

additional requirement for changes to

compliance plans. Whereas sources may

make changes addressed in

administrative permit amendments (see

COMAR 26.11.03.15F) or minor permit

modifications (with some exceptions,

see COMAR 26.11.03.16G) before MDE

completes its amendment or

modification, changes to compliance

plans may not be made until they have

been approved in writing. The criteria

for determining the type of permit

modification that is required in any

particular instance are set out at

COMAR 26.11.03.14–19. In keeping

with these criteria, Maryland has the

discretion to treat ‘‘insubstantial’’

changes as administrative or minor

permit modifications, as appropriate.

Comment 11: A commenter expressed

support for MDE’s plan to place fee

revenues from the title V program into

a segregated portion of the Air and

Radiation Management and

Administration’s budget. Maryland’s

title V program allows surplus funds

from previous years to be carried over

to the following year and used solely for

the part 70 permit program. The

commenter recommended that the funds

be placed in an interest bearing account,

and credited to sources, according to the

proportion of the total of all emission

fees which were paid by the source in

a timely manner.

EPA Response to Comment 11: Part 70

requires that states establish a fee

schedule that results in revenues

sufficient to cover the permit program

costs. Part 70 does not specify how

surplus funds from one year should be

carried over to fund the next year, and

does not require that funds be placed in

an interest bearing account and credited

to sources. Maryland has discretion to

manage surplus funds as the state

determines is appropriate, provided that

the funds are used solely for title V

purposes and in accordance with the

provisions of part 70. The state is also

required under part 70.9(d) to provide

periodic accounting updates

demonstrating how fee revenues are

used solely to cover the costs of

implementing the title V program.

Comment 12: A commenter requested

that EPA encourage Maryland to adopt

a ‘‘trivial activities’’ list and set up a

process for approving trivial activities

on a case by case basis, as provided for

in the EPA’s ‘‘White Paper for

Streamlined Development of Part 70

Permit Applications.’’

EPA Response to Comment 12: As

discussed in the ‘‘White Paper for

Streamlined Development Part 70

Permit Applications’’, dated July 10,

1995, EPA believes that, in addition to

the insignificant activity provisions of

part 70.5(c), part 70.5 allows permitting

authorities to recognize certain activities

as being clearly trivial (i.e., emissions

units and activities which do not in any

way implicate applicable requirements)

and that such trivial activities can be

omitted from the permit application

even if not included on a list of

insignificant activities approved in a

state’s part 70 program. Permitting

authorities may, on a case-by-case basis

and without EPA approval, exempt

additional activities which are clearly

trivial. However, additional exemptions,

to the extent that the activities they

cover are not clearly trivial, still need to

be approved by EPA before being added

to state lists of insignificant activities.

While part 70.5 has been interpreted to

allow flexibility for the determination of

trivial activities, EPA will defer to

Maryland to determine whether similar

flexibility exists under its own permit

application provisions. EPA believes

that it is appropriate to have such

determinations made in the first

instance at the state level as the decision

of whether any particular item should

be on a state’s trivial list may depend on
Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules and Regulations 34737

state-specific factors, such as whether

the activity is subject to state-only

requirements or specific requirements of

the SIP.

Comment 13: A commenter urged

EPA to allow the state to provide more

time for facilities to submit permit

applications. Maryland requires

facilities to submit permit applications

on a staggered basis within 4, 6 or 8

months after the effective date of EPA’s

approval of the title V program. The

commenter is concerned that pending

rulemakings for the title V program and

monitoring requirements are needed to

determine what will be required in a

title V permit application and permit.

Further, the commenter requested EPA

to develop a national standard for

permit application forms, so that no one

company or state would have a greater

or lesser burden in completing its

permit application.

EPA Response to Comment 13:

Section 503(c) of the CAA requires that

any person required to have a permit

shall submit to the permitting authority

a permit application and compliance

plan not later than 12 months after the

date on which the source becomes

subject to the program, or such earlier

date as the permitting authority may

establish. This requirement is

established by regulation at 40 CFR part

70.5(a)(1). EPA has no authority to allow

states to extend the time frame for

sources to submit permit applications

beyond the required 12 months. The

CAA and part 70 provide states

discretion to establish earlier due dates

for sources to submit permit

applications. Many states, including

Maryland, have done so, particularly so

that they will be able to meet the

requirement for issuing one-third of

permits within the first year of title V

program approval. EPA supports states’

decisions to establish earlier due dates

for permit applications and believes that

Maryland’s approach is reasonable.

EPA’s pending rulemakings

pertaining to the title V program and

monitoring requirements do not have an

impact on the information that sources

must include in permit applications.

Sources subject to Maryland’s title V

program, once approved, will be subject

to the requirements for permit

applications found in Maryland’s

regulations (primarily COMAR

26.11.03.02, 26.11.03.03, and

26.11.03.04).

EPA does not agree that a national

standardized permit application form

should be established. Part 70.5(c)

requires the state to provide a standard

application form(s) and provides that

the permitting authority may use its

discretion in developing application

forms that best meet program needs and

administrative efficiency. Part 70.5(c)

specifies the minimum types of

information that must be included in

permit applications.

C. Decision for ‘‘Interim’’ Approval

Comment 14: One general comment

raised with respect to several of the

proposed interim approval issues

questions why such program

deficiencies warrant interim approval

status. Although this same comment

was submitted with respect to several of

the proposed interim approval issues,

EPA will respond to this comment

generally in this rulemaking action.

EPA Response to comment 14: The

part 70 regulations define the minimum

elements required by the CAA for

approval of state operating permit

programs. Section 70.4(d) authorizes

EPA to grant interim approval in

situations where a state’s program

substantially meets the requirements of

part 70, but is not fully approvable. In

reviewing Maryland’s operating permit

regulations, several instances in which

the impact of seemingly ‘‘small’’

deficiencies such as vague or awkward

language, misplaced, misreferenced or

mislabeled provisions prevents EPA

from being able to determine that the

requirements of part 70 are fully met.

EPA identified such deficiencies as

‘‘interim approval issues’’ which

Maryland must revise, modify or

otherwise clarify to fully meet part 70’s

requirements. To the extent that EPA’s

concerns can be satisfied through other

mechanisms, regulatory revision may

not be necessary.

Comment 15: Commenters also have

questioned the propriety of EPA’s

proposal to grant interim approval

status to Maryland’s title V Program in

light of recognized deficiencies in the

Program’s standing requirements for

judicial review and have previously

suggested that EPA may be applying

inconsistent approval standards and an

inconsistent level of review and

comment among the various state and

local jurisdictions seeking operating

permit program approvals under title V

of the CAA.

EPA Response to comment 15: EPA

believes that MESA provides adequate

standing for judicial review to Maryland

residents and corporations, and any

partnership, organization, association or

legal entity doing business in the state,

all of whom are defined as ‘‘persons’’

therein. EPA further believes that the

substantial majority of challenges to

state permit actions will be brought by

resident individuals and organizations

doing business within the state and who

will have standing for judicial review

pursuant to MESA. EPA recognizes that

non-state residents must establish

standing pursuant to Maryland common

law, which requires a ‘‘specific interest

or property right’’ such that the party

will suffer harm that is different in kind

from that suffered from the general

public. However, there are no reported

cases in Maryland that would preclude

non-economic interests such as

recreational, conservational or aesthetic

interests from constituting the type of

specific interest needed for standing. In

the event that a Maryland decision

having precedential effect subsequently

limits the special interest required for

standing to economic interests, or

otherwise makes the Maryland standing

requirements more stringent that Article

III standing requirements, EPA has

previously stated its intent to take

appropriate action under 40 CFR

70.10(c). EPA also acknowledges, as an

interim approval issue, that Maryland

standing requirements are somewhat

less favorable than the standing

requirements of Article III with respect

to organizations not doing business in

Maryland and that Maryland must

accord non-state residents and

organizations not doing business in the

state the same standing rights to

challenge part 70 permit decisions as

other ‘‘persons’’ as defined in MESA. In

the interim, an organization doing

business outside Maryland still may be

able to participate in a permit challenge

on behalf of its individual members if it

joins other plaintiffs who already have

the requisite standing in the action, as

Maryland courts will not ordinarily

inquire as to whether other plaintiffs

have standing.

For these reasons, EPA believes that

Maryland’s program currently provides

the requisite standing for judicial review

to the broad majority of prospective

plaintiffs in part 70 state permit actions

and substantially meets the

requirements of part 70. EPA further

believes that Maryland’s program meets

each of the minimum requirements of

40 CFR 70.4(d)(3), such that interim

approval should be granted to

Maryland’s title V Program.

EPA has applied consistent review,

comment and approval standards among

the various jurisdictions seeking

approval of operating permit programs

under title V of the CAA. EPA evaluates

each program separately to determine if

it meets the requirements of 40 CFR part

70 and has not proposed approval for

any state operating permits program that

does not substantially meet the

requirements for standing for judicial

review as required by section 502(b)(6)

of the Act and 40 CFR 70.4(b)(3)(x).
34738 Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules and Regulations

Some commenters have questioned

the consistency of EPA’s review,

comment and approval standards with

respect to the issue of standing for

judicial review because EPA proposes to

grant interim approval status to

Maryland’s title V Program after

acknowledging certain deficiencies in

Maryland’s program submittal. These

commenters note that EPA previously

denied approval of the Commonwealth

of Virginia’s Program upon finding that

limitations on judicial review in

Virginia did not meet the minimum

threshold standing requirements of

Article III.

On the basis of five disapproval

issues, including the issue of standing

for judicial review, EPA determined that

Virginia’s operating program submittal

did not substantially meet the

requirements of part 70 and, therefore,

was not eligible for interim approval.

(See 59 FR 62324 (December 5, 1994)).

On the issue of standing for judicial

review, EPA took particular note that

section 10.1–1318(B) of the Code of

Virginia extends the right to seek

judicial review only to persons who

have suffered ‘‘actual, threatened, or

imminent injury * * * ’’ where ‘‘such

injury is an invasion of an immediate,

legally protected, pecuniary and

substantial interest which is concrete

and particularized * * * ’’ and found

that the limitations on judicial review in

Virginia did not meet the minimum

threshold standing requirements of

Article II of the U.S. Constitution and

did not meet the minimum program

approval criteria under title V. (See 59

FR 31183, 31184 (June 17, 1994)).

The strict limitations on judicial

review which are contained in

Virginia’s program submittal are in

sharp contrast to the comparatively

minor limitations on judicial review

contained in Maryland’s operating

program submittal (as described above).

Because Maryland’s program submittal

confers general standing privileges on

all state residents and organizations

doing business in the state (i.e., the

broad majority of potential plaintiffs),

and for the additional reasons explained

above, EPA believes that Maryland’s

program submittal substantially meets

the standing requirements of title V of

the CAA and 40 CFR part 70. EPA

further believes that such a finding is

factually appropriate and is consistent

with applicable approval standards and

prior EPA program evaluations.

D. Part 70 Supplemental Rule

Comment 16: A commenter expressed

support for EPA’s supplemental

proposed rule for the title V program

(See 60 FR 45530, August 31, 1995)

which would provide states the

flexibility to match the level of review

of permit revisions to the environmental

significance of the operational change.

EPA Response to Comment 16: This

comment does not pertain to EPA’s

proposed interim approval action for

Maryland’s title V program. EPA’s

approval action for Maryland is based

on 40 CFR part 70 as promulgated on

July 21, 1992. Once EPA promulgates

final revisions to the part 70 program,

the state will be required to amend its

title V program to reflect the changes.

FINAL ACTION: EPA is promulgating

interim approval of the operating

permits program submitted by Maryland

on May 9, 1995, and supplemented on

June 9, 1995. Maryland must make the

changes identified in the notice of

proposed rulemaking, with the

exception noted in Comment 10 above,

in order to fully meet the requirements

of the July 21, 1992 version of part 70

(See 60 FR 55231, October 30, 1995).

The scope of Maryland’s part 70

program approved in this action applies

to all part 70 sources (as defined in the

approved program) within Maryland,

except any 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 43956, 43962

(Aug. 25, 1994); 58 FR 54364 (Oct. 21,

1993).

This interim approval extends until

August 3, 1998. During this interim

approval period, Maryland is protected

from sanctions for failure to have a fully

approved title V, part 70 program, and

EPA is not obligated to promulgate,

administer and enforce a federal

operating permits program in Maryland.

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 this interim

approval, as does the 3-year time period

for processing the initial permit

applications.

If Maryland fails to submit a complete

corrective program for full approval by

February 3, 1998, EPA will start an 18-

month clock for mandatory sanctions. If

Maryland then fails to submit a

corrective program that EPA finds

complete before the expiration of that

18-month period, EPA will be required

to apply one of the sanctions in section

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

effect until EPA determines that

Maryland has corrected the deficiency

by submitting a complete corrective

program. Moreover, if the Administrator

finds a lack of good faith on the part of

Maryland, both sanctions under section

179(b) will apply after the expiration of

the 18-month period until the

Administrator determined that

Maryland had come into compliance. In

any case, if, six months after application

of the first sanction, Maryland still has

not submitted a corrective program that

EPA has found complete, a second

sanction will be required.

If EPA disapproves Maryland’s

complete corrective program, EPA will

be required to apply one of the section

179(b) sanctions on the date 18 months

after the effective date of the

disapproval, unless prior to the date on

which the sanction would be applied

Maryland has submitted a revised

program and EPA has determined that it

corrected the deficiencies that prompted

the disapproval. Moreover, if the

Administrator finds a lack of good faith

on the part of Maryland, both sanctions

under section 179(b) shall apply after

the expiration of the 18-month period

until the Administrator determines that

Maryland has come into compliance. In

all cases, if, six months after EPA

applies the first sanction, Maryland has

not submitted a revised program that

EPA has determined corrects the

deficiencies, a second sanction is

required.

In addition, discretionary sanctions

may be applied where warranted any

time after the expiration of an interim

approval period if Maryland has not

timely submitted a complete corrective

program or EPA has disapproved its

submitted corrective program.

Moreover, if EPA has not granted full

approval to Maryland’s program by the

expiration of the interim approval

period, EPA must promulgate,

administer and enforce a federal permits

program for Maryland upon the date the

interim approval period expires.

Requirements for approval, specified

in 40 CFR 70.4(b), encompass the CAA’s

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

promulgating approval under section

112(l)(5) and 40 CFR 63.91 of

Maryland’s program for receiving
Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules and Regulations 34739

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.

Additionally, EPA is promulgating

approval of Maryland’s operating

permits program, under the authority of

title V and part 70 for the purpose of

implementing section 112(g) to the

extent necessary during the transition

period between promulgation of the

federal section 112(g) rule and adoption

of any necessary state rules to

implement EPA’s section 112(g)

regulations. However, since this

approval is for the purpose of providing

a mechanism to implement section

112(g) during the transition period, the

approval of the operating permits

program for this purpose will be

without effect if EPA decides in the

final section 112(g) rule that sources are

not subject to the requirements of the

rule until state regulations are adopted.

Although section 112(l) generally

provides the authority for approval of

state air toxics programs, 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. Unless the

federal section 112(g) rule establishes a

specific time frame for the adoption of

state rules, the duration of this approval

is limited to 18 months following

promulgation by EPA of section 112(g)

regulations, to provide the state with

adequate time to adopt regulations

consistent with federal requirements.

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

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 to grant interim approval of

Maryland’s operating permits program

pursuant to title V of the CAA and 40

CFR part 70 does not impose any new

requirements, it does not have a

significant impact on a substantial

number of small entities.

EPA has determined that this action,

promulgating interim approval of

Maryland’s operating permits program,

does not include a federal mandate that

may result in estimated costs of $100

million or more to either state, local, or

tribal governments in the aggregate, or

to the private sector. This federal action

approves pre-existing requirements

under state or local law, and imposes no

new federal requirements. Accordingly,

no additional costs to state, local, or

tribal governments, or to the private

sector result from this action.

List of Subjects in 40 CFR Part 70

Environmental Protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Operating permits, and

Reporting and recordkeeping

requirements.

Dated: June 19, 1996.

W. Michael McCabe,

Regional Administrator.

Part 70, title 40 of the Code of Federal

Regulations is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70

continues to read as follows:

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

2. Appendix A to part 70 is amended

by adding the entry for Maryland in

alphabetical order to read as follows:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permits Programs

* * * * *

Maryland

(a) Maryland Department of the

Environment: submitted on May 9,

1995; interim approval effective on

August 2, 1996; interim approval

expires August 3, 1998.

(b) Reserved

* * * * *

[FR Doc. 96–17020 Filed 7–3–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 180

[OPP–300420A; FRL–5381–5]

RIN 2070–AB78

Potassium Citrate; Tolerance

Exemption

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This document establishes an

exemption from the requirement of a

tolerance for residues of potassium

citrate (CAS Reg. No. 866–84–2), when

used as an inert ingredient (chelating

agent and pH control) in pesticide

formulations applied to growing crops,

raw agricultural commodities after

harvest and animals. This regulation

was requested by Monsanto Company

and Zeneca Ag Products, pursuant to

the Federal Food, Drug, and Cosmetic

Act (FFDCA).

EFFECTIVE DATE: This regulation

becomes effective July 3, 1996.

ADDRESSES: Written objections,

identified by the document control

number, [OPP–300420A] 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 request

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

Davis Hwy., Arlington, VA 22202. Fees

accompanying objections shall be

labeled ‘‘Tolerance Petition Fees’’ and

forwarded to: EPA Headquarters

Accounting Operations Branch, OPP

(Tolerance Fees), P.O. Box 360277M,

Pittsburgh, PA 15251.

A copy of objections and hearing

requests filed with the Hearing Clerk

may also be submitted electronically by

sending electronic mail (e-mail) to: oppdocket@epamail.epa.gov. Copies of

objections and hearing requests must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption. Copies of objections and

hearing requests will also be accepted

on disks in WordPerfect in 5.1 file

format or ASCII file format. All copies

of objections and hearing requests in

electronic form must be identified by

the docket number [OPP–300420A]. No

‘‘Confidential Business Information’’

(CBI) should be submitted through email. Electronic comments on this

proposed rule may be filed online at

many Federal Depository Libraries.

Additional information on electronic

submissions can be found below in this

document.

FOR FURTHER INFORMATION CONTACT: By

mail: Amelia M. Acierto, Registration

Support Branch, Registration Division

(7505W), Office of Pesticide Programs,

Environmental Protection Agency, 401

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

Office location and telephone number:

Westfield Building North, 6th Fl., 2800

Crystal Drive, Arlington, VA 22202,

(703) 308–8375; e-mail:

acierto.amelia@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: In the

Federal Register of April 10, 1996 (61

FR 15915), EPA issued a proposed rule

(FRL–5361–2) gave notice that

Monsanto Company, 700 14th Street,

NW., Washington, DC 20005 had

submitted pesticide petition (PP)

6E4607 and Zeneca Ag Products, 1800

Concord Pike, Wilmington, DE 19850–

5458 had submitted pesticide petition

(PP) 6E4637 to EPA requesting that the