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Clean Air Act Proposed Interim Approval, or in the Alternative Proposed Disapproval, of Operating Permits Program; State of Montana
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 14, 1995]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[MT-001; FRL-5155-3]
Clean Air Act Proposed Interim Approval, or in the Alternative
Proposed Disapproval, of Operating Permits Program; State of Montana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
SUMMARY: The EPA proposes interim approval of the Operating Permits
Program submitted by the State of Montana for the purpose of complying
with Federal requirements for an approvable State program to issue
operating permits to all major stationary sources, and to certain other
sources. In the alternative, EPA proposes disapproval of the Montana
Operating Permits Program if the corrective actions necessary for final
interim PROGRAM approval are not completed and submitted to EPA prior
to the statutory deadline.
DATES: Comments on this proposed action must be received in writing by
March 16, 1995.
ADDRESSES: Comments should be addressed to Laura Farris at the Region 8
address. Copies of the State's submittal and other supporting
information used in developing the proposed rule are available for
inspection during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 8, 999 18th Street, suite 500,
Denver, Colorado 80202.
FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S.
Environmental Protection Agency, Region 8, Air Programs Branch, 999
18th Street, suite 500, Denver, Colorado 80202, (303) 294-7539.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the 1990 Clean Air Act Amendments
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has
promulgated rules which define the minimum elements of an approvable
State operating permits program and the corresponding standards and
procedures by which the EPA will approve, oversee, and withdraw
approval of State operating permits programs (see 57 FR 32250 (July 21,
1992)). These rules are codified at 40 Code of Federal Regulations
(CFR) part 70 (part 70). Title V requires States to develop, and submit
to EPA, programs for issuing these operating permits to all
[[Page 8336]] major stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. The EPA's
program review occurs pursuant to section 502 of the Act and the part
70 regulations, which together outline criteria for approval or
disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to 2 years. If EPA has not fully approved a program by 2
years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal program.
B. Federal Oversight and Sanctions
If EPA were to finalize this proposed interim approval, it would
extend for two years following the effective date of final interim
PROGRAM approval, and could not be renewed. During the interim approval
period, the State of Montana would be protected from sanctions, and EPA
would not be obligated to promulgate, administer and enforce a Federal
permits program for the State of Montana. Permits issued under a
program with interim approval have full standing with respect to part
70, and the 1-year time period for submittal of permit applications by
subject sources begins upon the effective date of interim approval, as
does the 3-year time period for processing the initial permit
applications.
Following final interim PROGRAM approval, if the State of Montana
failed to submit a complete corrective program for full approval by the
date 6 months before expiration of the interim approval, EPA would
start an 18-month clock for mandatory sanctions. If the State of
Montana then failed to submit a corrective program that EPA found
complete before the expiration of that 18-month period, EPA would be
required to apply one of the sanctions in section 179(b) of the Act,
which would remain in effect until EPA determined that the State of
Montana had corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator found a lack of good
faith on the part of the State of Montana, both sanctions under section
179(b) would apply after the expiration of the 18-month period until
the Administrator determined that the State of Montana had come into
compliance. In any case, if, six months after application of the first
sanction, the State of Montana still had not submitted a corrective
program that EPA found complete, a second sanction would be required.
If, following final interim PROGRAM approval, EPA were to
disapprove the State's complete corrective program, EPA would be
required to apply one of the section 179(b) sanctions on the date 18
months after the effective date of the disapproval, unless prior to
that date the State of Montana had submitted a revised program and EPA
had determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator found a lack of good faith
on the part of the State of Montana, both sanctions under section
179(b) would apply after the expiration of the 18-month period until
the Administrator determined that the State of Montana had come into
compliance. In all cases, if, six months after EPA applied the first
sanction, the State of Montana had not submitted a revised program that
EPA had determined corrected the deficiencies that prompted
disapproval, a second sanction would be required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a State has not
timely submitted a complete corrective program or EPA has disapproved a
submitted corrective program. Moreover, if EPA has not granted full
approval to a State program by the expiration of an interim approval
and that expiration occurs after November 15, 1995, EPA must
promulgate, administer and enforce a Federal permits program for that
State upon interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State Submission
Support Materials
The Governor of Montana submitted an administratively complete
title V Operating Permit Program (PROGRAM) for the State of Montana on
March 29, 1994. EPA deemed the PROGRAM administratively complete in a
letter to the Governor dated May 12, 1994. The PROGRAM submittal
includes a legal opinion from the Attorney General of Montana stating
that the laws of the State provide adequate legal authority to carry
out all aspects of the PROGRAM, and a description of how the State
intends to implement the PROGRAM. The submittal additionally contains
evidence of proper adoption of the PROGRAM regulations, permit
application forms, a data management system and a permit fee
demonstration.
Regulations and Program Implementation
The Montana PROGRAM, including the operating permit regulation
(Sub-Chapter 20, Secs. 16.8.2001 through 16.8.2025, inclusive, of the
Administrative Rules of Montana), substantially meets the requirements
of 40 CFR parts 70.2 and 70.3 with respect to applicability; parts
70.4, 70.5, and 70.6 with respect to permit content including
operational flexibility; part 70.5 with respect to complete application
forms and criteria which define insignificant activities; part 70.7
with respect to public participation and minor permit modifications;
and part 70.11 with respect to requirements for enforcement authority.
Section 16.8.2006(3) of Sub-Chapter 20 provides, in part, that
``Insignificant emission units need not be addressed in an application
for an air quality operating permit, except that the application must
include a list of such insignificant emission units and emissions from
insignificant emission units must be included in emission inventories
and are subject to assessment of permit fees.'' The term
``insignificant emissions unit'' is defined in Sec. 16.8.2002(22)(a) of
Sub-Chapter 20 as ``any activity or emissions unit located within a
source that (i) has a potential to emit less than 15 tons per year of
any pollutant, other than a hazardous air pollutant listed pursuant to
sec. 7412(b) of the FCAA or lead; (ii) has a potential to emit of less
than 500 pounds per year of lead; (iii) does not have a potential to
emit hazardous air pollutants listed pursuant to sec. 7412(b) in any
amount; and (iv) is not regulated by an applicable requirement.'' The
15 ton per year threshold is considered by EPA to be a PROGRAM
deficiency that must be addressed prior to full PROGRAM approval and is
discussed in more detail below.
Section 70.6(a)(3)(iii)(B) of EPA's operating permit regulations
provides that each permit shall require ``prompt reporting of
deviations from permit requirements, including those attributable to
upset conditions as defined in the permit, the probable cause of such
deviations, and any corrective actions or preventive measures taken.''
Under Sec. 16.8.2010(3)(c) of Sub-Chapter 20 of Montana's regulations,
reporting is considered ``prompt'' if made at least every six months as
part of the routine reporting requirements and, if applicable, in
accordance with the malfunction reporting requirements under
Sec. 16.8.705 of Subchapter 7, unless [[Page 8337]] otherwise specified
in an applicable requirement. However, EPA's position is that reporting
only once every six months is not sufficiently ``prompt'' to allow for
protection of public health and safety and to provide a forewarning of
potential problems. Usually, reporting within two to ten days should be
sufficient for these purposes, although with more serious permit
deviations, earlier reporting may be necessary. Only for sources with a
low level of excess emissions, would it be appropriate to allow more
than ten days to elapse before reporting. EPA may veto state permits
that do not require appropriately prompt reporting.
Montana has the authority to issue a variance from emission
limitations. The Clean Air Act of Montana, Section 75-2-212, Montana
Code Annotated (MCA), provides that the State may grant a variance if
``(a) the emissions occurring or proposed to occur do not constitute a
danger to public health or safety; and (b) compliance with the rules
from which exemption is sought would produce hardship without equal or
greater benefits to the public.'' EPA regards Montana's variance
provision as wholly external to the PROGRAM submitted for approval
under part 70, and consequently is proposing to take no action on this
provision of State law. The EPA has no authority to approve provisions
of State law, such as the variance provision referred to, which are
inconsistent with the Act. The EPA does not recognize the ability of a
permitting authority to grant relief from the duty to comply with a
Federally enforceable part 70 permit, except where such relief is
granted through procedures allowed by part 70. If the State uses its
variance provision strictly to establish a compliance schedule for a
non-complying source that will be incorporated into a title V permit,
then EPA would consider this an acceptable use of a variance provision.
However, the routine process for establishing a compliance schedule is
through appropriate enforcement action. The EPA reserves the right to
enforce the terms of the part 70 permit where the permitting authority
purports to grant relief from the duty to comply with a part 70 permit
in a manner inconsistent with part 70 procedures.
Comments noting deficiencies in the Montana PROGRAM were sent to
the State in a letter dated October 3, 1994. The deficiencies were
segregated into those that require corrective action prior to interim
PROGRAM approval, and those that require corrective action prior to
full PROGRAM approval. In a letter dated October 20, 1994 the State
committed to address the deficiencies that require corrective action
prior to interim PROGRAM approval by January 20, 1995.
Areas in which the Montana PROGRAM is deficient and require
corrective action prior to final interim PROGRAM approval are as
follows: (1) Section 16.8.2004(3) of Sub-Chapter 20 allows the State to
exempt sources from the requirement to obtain an air quality operating
permit by establishing Federally enforceable limitations which limit
the source's potential to emit. However, the State's rules do not
describe the process which will be used to create these limits. Prior
to interim PROGRAM approval, the State must clarify how Federally
enforceable limits will be created to limit a source's potential to
emit, and verify its authority to create such limits. If the State
plans to create Federally enforceable limits through title V operating
permits, such permits must go through all of the title V public
participation requirements, including affected State review, 45-day EPA
review period and EPA veto authority. (2) Section 16.8.2008(2)(j) of
Sub-Chapter 20 states that the State's decision regarding issuance,
renewal, revision, denial, revocation, reissuance, or termination of a
permit is not effective until 30 days have elapsed from the date of the
decision, and that the decision may be appealed to the board by filing
a request for hearing within 30 days after the date of the decision.
EPA interprets this language to mean that the 30-day period for making
appeals to the board would occur after EPA's 45-day review/approval
period for the proposed permit. If this is the case, any permits
appealed to the board that are changed must be submitted to EPA for
additional review. Prior to interim PROGRAM approval, the State must
clarify whether the appeal process on the State's decisions regarding
permit issuance, renewal, revision, denial, revocation, reissuance, or
termination occurs before or after EPA's 45-day review/approval period.
If the appeal process follows EPA's review/approval period, then
language must be added to the State's permitting regulation to ensure
that permits that are changed after appeal to the board are submitted
to EPA for additional review. (3) Section 16.8.2008(2)(a) allows the
State to terminate, or revoke and reissue, permits for continuing and
substantial violations, but does not provide the full authority under
section 502(b)(5)(D) of the Act which requires that state permit
programs have authority to ``terminate, modify, revoke and reissue
permits for cause.'' Prior to interim PROGRAM approval, the State must
clarify that it has the authority to ``terminate, modify, revoke and
reissue permits for cause'' pursuant to section 502(b)(5)(D) of the
Act. (4) Section 16.8.2021(1)(c) of Sub-Chapter 20 states that a
significant modification includes ``every significant relaxation of
permit reporting or recordkeeping terms or conditions.'' Section
70.7(e)(4)(i) of the Federal permitting regulation requires that any
relaxation of reporting or recordkeeping permit terms be processed as a
significant modification. Prior to interim PROGRAM approval, the State
must provide an Attorney General's opinion that the language in
Sec. 16.8.2021(1)(c) of Sub-Chapter 20 regarding significant
modifications will be interpreted as ``every relaxation of reporting or
recordkeeping permit terms'', and prior to full PROGRAM approval, the
word ``significant'' must be removed from this regulatory language.
Areas in which the Montana PROGRAM is deficient and require
corrective action prior to full PROGRAM approval are as follows: (1)
Section 16.8.2002(1)(d) of Sub-Chapter 20 is part of the definition of
administrative permit amendment and allows for the ``department's
discretion'' in determining whether or not a change in monitoring or
reporting requirements would be as stringent as current monitoring or
reporting requirements. Changes in monitoring or reporting requirements
must be processed through either the minor permit modification
procedures or the significant permit modification procedures, unless
the change requires more frequent monitoring or reporting, in which
case it can be processed through the administrative permit amendment
procedures. This portion of Montana's definition does not meet the
criteria of an administrative permit amendment listed in
Sec. 70.7(d)(1)(iii) of the Federal permitting regulation. Prior to
full PROGRAM approval, the State must delete Sec. 16.8.2002(1)(d) of
Sub-Chapter 20, which allows for the ``department's discretion'' in
determining whether or not a change in monitoring or reporting
requirements would be as stringent as current monitoring or reporting
requirements.
(2) Section 16.8.2002(1)(f) of Sub-Chapter 20 is part of the
definition of administrative permit amendment and allows the State to
determine if other types of permit changes not listed in the definition
of administrative permit amendment can be incorporated into a permit
through the administrative permit amendment process. Section
70.7(d)(1)(vi) of the Federal permitting [[Page 8338]] regulation
requires that such determinations be made by the Administrator of EPA
and be similar to those changes listed in Sec. 70.7(d)(1)(i)-(iv) of
the Federal permitting regulation. This provision must be changed prior
to full PROGRAM approval to allow the Administrator of EPA (or EPA and
the State) to determine if changes not included in the definition of
administrative permit amendment can be processed through the
administrative permit amendment process.
(3) The definition of ``insignificant emissions unit'' in
Sec. 16.8.2002(22)(a) of Sub-Chapter 20 includes an emission threshold
of 15 tons per year of any pollutant other than a hazardous air
pollutant. EPA does not consider this to be a reasonable level from
which to exempt emissions units from title V operating permit
requirements. For other State title V programs, EPA has proposed to
accept, as sufficient for full approval, emission levels for
insignificant activities of 2 tons per year of regulated air pollutants
and the lesser of 1000 pounds per year, section 112(g) de minimis
levels, or other title I significant modification levels for HAPs and
other toxics (40 CFR 52.21(b)(23)(i)). EPA believes that these levels
are sufficiently below applicability thresholds for most applicable
requirements to assure that no unit potentially subject to an
applicable requirement is left off a part 70 application and are
consistent with current permitting thresholds for the State under
consideration here. EPA is requesting comment on the appropriateness of
these emission levels for determining insignificant activities in this
State. This request for comment is not intended to restrict the ability
of the State to propose and EPA to approve other emission levels if the
State demonstrates that such alternative emission levels are
insignificant compared to the level of emissions from and types of
units that are permitted or subject to applicable requirements. Prior
to full PROGRAM approval, the State must lower the emissions cap for
defining ``insignificant emissions units'' to assure they will not
encompass activities that trigger applicable requirements. If the State
defines insignificant activity levels greater than those suggested, a
demonstration must be made to show why such levels are, in fact,
insignificant.
(4) Section 16.8.2002(24)(ii) of Sub-chapter 20 defines ``nonFederally
enforceable requirement'' to include any term contained in a
preconstruction permit issued under Sub-Chapters 9, 11, 17, or 18 that
is not Federally enforceable. However, everything contained in a
preconstruction permit issued under these Sub-Chapters (which currently
are, or soon will be, included in the State's SIP) is considered to be
Federally enforceable. Prior to full PROGRAM approval this language
must be revised or deleted.
(5) Section 16.8.2008 of Sub-Chapter 20 which lists the permit
content requirements does not require a severability clause consistent
with Sec. 70.6(a)(5) of the Federal permitting regulation. Prior to
full PROGRAM approval, the State must include a severability clause in
Sub-Chapter 20 consistent with Sec. 70.6(a)(5) of the Federal
permitting regulation.
(6) Section IX.C.2 of the checklist that was part of the PROGRAM
submittal regarding the implementation of the enhanced monitoring
requirements of section 114(a)(3) of the Act states that there are no
impediments to using any monitoring data to determine compliance and
for direct enforcement. However, the State has incorporated by
reference the Federal new source performance standards (NSPS) and
national emissions standards for HAPs (NESHAPs) in 40 CFR parts 60 and
61 into its SIP-approved regulations, which provide that compliance can
be determined only by performance tests (see 40 CFR 60.11(a) and 40 CFR
61.12(a)).
Prior to full PROGRAM approval, the State must provide an Attorney
General's opinion verifying the State's authority to use any monitoring
data to determine compliance and for direct enforcement. If the State
does not have such authority, then the State's SIP-approved regulations
must be revised prior to full PROGRAM approval to provide authority to
use any monitoring data to determine compliance and for direct
enforcement.
(7) The Attorney General's Opinion regarding the State's authority
to terminate permits is unclear. MCA 75-2-211(1) and 217(1) refer to
``issuance, modification, suspension, revocation, and renewal'' of
permits, but not ``termination.'' Prior to full PROGRAM approval, the
State must provide an Attorney General's interpretation that Montana's
statutory authority extends to ``terminating'' permits.
(8) The PROGRAM submittal contained a letter to Douglas M. Skie
dated February 28, 1994 certifying the State's authority to implement
section 112 of the Act. The letter discusses the State's authority to
require permit applications from sources subject to section 112(j) of
the Act, but does not address the State's ability to make case-by-case
MACT determinations. Prior to full PROGRAM approval, the State must
certify its ability to make case-by-case MACT determinations pursuant
to section 112(j) of the Act.
(9) The State's February 28, 1994 letter to EPA also discusses the
State's authority to implement section 112(r) of the Act, but does not
address the State's ability to require annual certifications from part
70 sources as to whether their risk management plans (RMPs) are being
properly implemented, or provide a compliance schedule for sources that
fail to submit the required RMP. Prior to full PROGRAM approval, the
State must certify its ability to require annual certifications from
part 70 sources regarding proper implementation of their RMPs and to
provide a compliance schedule for sources that fail to submit the
required RMP.
Refer to the Technical Support Document accompanying this
rulemaking for a detailed explanation of each comment and the
corrective actions required of the State.
Permit Fee Demonstration
The Montana PROGRAM includes a fee structure that collects in the
aggregate fees that are below the presumptive minimum set in part 70.
Therefore, it was necessary for the State to include a permit fee
demonstration in its PROGRAM submittal to demonstrate that the title V
fee structure would collect sufficient fees to cover the reasonable
direct and indirect costs of developing and administering the PROGRAM.
The permit fee demonstration included a workload analysis which
estimated the annual cost of running the PROGRAM to be $585,130 for
fiscal year 1994, increasing to $849,705 for fiscal year 1995. The fee
structure for fiscal year 1994, based on the previous year's emission
inventory, included a fee of $8.55 per ton for particulates, sulfur
dioxide and lead; $2.14 per ton for nitrogen oxides and volatile
organic compounds; with a minimum fee of $250 per source. These fees
are projected to increase to $11.75 and $2.94 per ton, respectively,
for fiscal year 1995, and the State anticipates adding a fee for HAPs
in the future. After careful review, the State has determined that
these fees would support the Montana PROGRAM costs as required by
section 70.9(a) of the Federal operating permitting regulation. Upon
review of the State's permit fee demonstration, the EPA noted the
following concerns:
(1) Although the State has the authority to assess and collect
annual permit fees in an amount sufficient to cover all reasonable
direct and indirect costs of the PROGRAM, the State Legislature must
appropriate the money [[Page 8339]] to operate the PROGRAM every
biennium. If an adequate appropriation is not made, and the State is
not able to fund all the costs of the PROGRAM, the EPA would be
required to disapprove or withdraw the part 70 program, impose
sanctions, and implement a Federal permitting program.
(2) EPA was unable to determine if sufficient fees will be
available to fund the PROGRAM due to deficiencies in the State's Permit
Fee Demonstration. The State agreed to address these deficiencies in a
letter to EPA dated October 20, 1994 and submit a revised Permit Fee
Demonstration to EPA prior to final interim PROGRAM approval.
Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation
Montana has demonstrated in its PROGRAM submittal adequate legal
authority to implement and enforce all section 112 requirements, with
the exception of the deficiencies noted above, through the title V
permit. This legal authority is contained in Montana's enabling
legislation and in regulatory provisions defining ``applicable
requirements'' and stating that the permit must incorporate all
applicable requirements. EPA has determined that this legal authority
is sufficient to allow Montana to issue permits that assure compliance
with all section 112 requirements, and to carry out all section 112
activities, contingent upon the State completing the above noted
corrective actions related to section 112.
For further rationale on this interpretation, please refer to the
Technical Support Document accompanying this rulemaking and the April
13, 1993 guidance memorandum titled ``Title V Program Approval Criteria
for Section 112 Activities,'' signed by John Seitz.
b. Implementation of 112(g) Upon Program Approval
As a condition of approval of the part 70 PROGRAM, Montana is
required to implement section 112(g) of the Act from the effective date
of the part 70 PROGRAM. Imposition of case-by-case determinations of
maximum achievable control technology (MACT) or offsets under section
112(g) will require the use of a mechanism for establishing Federally
enforceable restrictions on a source-specific basis. The EPA is
proposing to approve Montana's preconstruction permitting program found
in Sub-Chapter 11, Secs. 16.8.1101 through 16.8.1120, under the
authority of title V and part 70 solely for the purpose of implementing
section 112(g) during the transition period between title V approval
and adoption of a State rule implementing EPA's section 112(g)
regulations. EPA believes this approval is necessary so that Montana
has a mechanism in place to establish Federally enforceable
restrictions for section 112(g) purposes from the date of part 70
approval. Section 112(l) provides statutory authority for approval for
the use of State air programs to implement section 112(g). Title V and
section 112(g) provide authority for this limited approval because of
the direct linkage between implementation of section 112(g) and title
V. The scope of this approval is narrowly limited to section 112(g),
and does not confer or imply approval for purposes of any other
provision under the Act. If Montana does not wish to implement section
112(g) through its preconstruction permit program and can demonstrate
that an alternative means of implementing section 112(g) exists, the
EPA may, in the final action approving Montana's PROGRAM, approve the
alternative instead. To the extent Montana does not have the authority
to regulate HAPs through existing State law, the State may disallow new
construction or modifications during the transition period.
This approval is for an interim period only, until such time as the
State is able to adopt regulations consistent with any regulations
promulgated by EPA to implement section 112(g). Accordingly, EPA is
proposing to limit the duration of this approval to a reasonable time
following promulgation of section 112(g) regulations so that Montana,
acting expeditiously, will be able to adopt regulations consistent with
the section 112(g) regulations. The EPA is proposing here to limit the
duration of this approval to 12 months following promulgation by EPA of
section 112(g) regulations. Comment is solicited on whether 12 months
is an appropriate period considering Montana's procedures for adoption
of Federal regulations.
c. Program for Straight Delegation of Section 112 Standards
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 General Provisions Subpart A and standards as
promulgated by EPA as they apply to sources covered by the part 70
Program, as well as non-part 70 sources. Section 112(l)(5) requires
that the State's PROGRAM contain adequate authorities, adequate
resources for implementation, and an expeditious compliance schedule,
which are also requirements under part 70. Therefore, the EPA is also
proposing to grant approval under section 112(l)(5) and 40 CFR 63.91 of
the State's program for receiving delegation of section 112 standards
that are unchanged from the Federal standards as promulgated. Montana
has informed EPA that it intends to accept delegation of section 112
standards through incorporation by reference or case-by-case
rulemaking. This program applies to both existing and future standards.
The radionuclide NESHAP is a section 112 regulation and therefore,
also an applicable requirement under the State PROGRAM. Sources which
are currently defined as part 70 sources and emit radionuclides are
subject to Federal radionuclide standards. Additionally, sources which
are not currently part 70 sources may be defined as major sources under
forthcoming Federal radionuclide regulations. The EPA will work with
the State in the development of its radionuclide program to ensure that
permits are issued in a timely manner.
d. Program for Implementing Title IV of the Act
Montana's PROGRAM contains adequate authority to issue permits
which reflect the requirements of title IV of the Act, and commits to
adopt the rules and requirements promulgated by EPA to implement an
acid rain program through the title V permit.
B. Options for Approval/Disapproval and Implications
The EPA is proposing to grant interim approval to the operating
permits program submitted by the State of Montana on March 29, 1994. If
promulgated, the State must complete the following corrective actions,
as discussed above, to receive final interim PROGRAM approval: (1) The
State must clarify how the Federally enforceable limits allowed under
Sec. 16.8.2004(3) of Sub-Chapter 20 will be created to limit a source's
potential to emit, and verify its authority to create such limits. If
the State plans to create these Federally enforceable limits through
the title V PROGRAM, such permits must go through all of the title V
public participation requirements, including affected State review, 45-
day EPA review period and EPA veto authority; (2) The State must
clarify whether the appeal process in Sec. 16.8.2008(2)(j) of SubChapter
20 on the State's decisions regarding permit issuance, renewal,
revision, denial, revocation, reissuance, or termination occurs before
or after EPA's 45-day review/approval period. If the appeal process
follows EPA's review/approval period, then additional language must be
added to the State's [[Page 8340]] permitting regulation to ensure that
permits that are changed after appeal to the board are submitted to EPA
for additional review; (3) The State must clarify that it has the
authority to ``terminate, modify, revoke and reissue permits for
cause'' pursuant to section 502(b)(5)(D) of the Act; (4) The State must
provide an Attorney General's opinion that the language in
Sec. 16.8.2021(1)(c) of Sub-Chapter 20 regarding significant
modifications will be interpreted as ``every relaxation of reporting or
recordkeeping permit terms.''
The State must complete the following corrective actions, as
discussed above, to receive full PROGRAM approval: (1) The word
``significant'' must be removed from the language in
Sec. 16.8.2021(1)(c) of Sub-Chapter 20; (2) The State must delete
Sec. 16.8.2002(1)(d) of Sub-Chapter 20 that allows for the
``department's discretion'' in determining whether or not a change in
monitoring or reporting requirements would be as stringent as current
monitoring or reporting requirements; (3) Section 16.8.2002(1)(f) of
Sub-Chapter 20 must be changed to allow the Administrator of EPA (or
EPA and the State) to determine if changes not included in the
definition of ``administrative permit amendment'' can be processed
through the administrative permit amendment process; (4) The State must
lower the emissions cap for defining ``insignificant emissions units''
in Sec. 16.8.2002(22)(a) of Sub-Chapter 20 to assure they will not
encompass activities that trigger applicable requirements. If the State
defines insignificant activity levels greater than those suggested, a
demonstration must be made to show why such levels are, in fact,
insignificant; (5) The language in Sec. 16.8.2002(24)(ii) of SubChapter
20 which defines ``non-Federally enforceable requirement'' must
be revised or deleted to avoid the implication that terms contained in
a preconstruction permit issued under Sub-Chapters 9, 11, 17, or 18 are
not Federally enforceable; (6) The State must include a severability
clause in Sec. 16.8.2008 of Sub-Chapter 20 consistent with
Sec. 70.6(a)(5) of the Federal permitting regulation; (7) The State
must provide an Attorney General's opinion verifying the State's
authority to use any monitoring data to determine compliance and for
direct enforcement. If the State does not have such authority, then the
State's SIP-approved regulations must be revised to provide authority
to use any monitoring data to determine compliance and for direct
enforcement; (8) The State must provide an Attorney General's
interpretation that Montana's statutory authority under MCA 75-2-211(1)
and 217(1) extends to ``terminating'' permits; (9) The State must
certify its ability to make case-by-case MACT determinations for
sources subject to section 112(j) of the Act; (10) The State must
certify its ability to require annual certifications from part 70
sources regarding proper implementation of their section 112(r) RMPs
and to provide a compliance schedule for sources that fail to submit
the required RMP.
Evidence of these corrective actions for full PROGRAM approval must
be submitted to EPA within 18 months of EPA's interim approval of the
Montana PROGRAM.
The scope of Montana's part 70 PROGRAM that EPA proposes to approve
in this notice would apply to all part 70 sources (as defined in the
PROGRAM) within the State, except the following: any sources of air
pollution located in ``Indian Country,'' as defined in 18 U.S.C. 1151,
including the Northern Cheyenne, Rocky Boys, Blackfeet, Crow, Flathead,
Fort Belknap, and Fort Peck Indian Reservations, or any other sources
of air pollution over which an Indian Tribe has jurisdiction. See,
e.g., 59 FR 55813, 55815-18 (Nov. 9, 1994). The term ``Indian Tribe''
is defined under the Act as ``any Indian Tribe, band, nation, or other
organized group or community, including any Alaska Native village,
which is Federally recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians.'' See section 302(r) of the CAA; see also 59 FR
43955, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
In proposing not to extend the scope of Montana's part 70 PROGRAM
to sources located in ``Indian Country,'' EPA is not making a
determination that the State either has adequate jurisdiction or lacks
jurisdiction over such sources. Should the State of Montana choose to
seek program approval within ``Indian Country,'' it may do so without
prejudice. Before EPA would approve the State's part 70 PROGRAM for any
portion of ``Indian Country,'' EPA would have to be satisfied that the
State has authority, either pursuant to explicit Congressional
authorization or applicable principles of Federal Indian law, to
enforce its laws against existing and potential pollution sources
within any geographical area for which it seeks program approval, that
such approval would constitute sound administrative practice, and that
those sources are not subject to the jurisdiction of any Indian Tribe.
This interim approval, which may not be renewed, extends for a
period of up to 2 years. During the interim approval period, the State
is protected from sanctions for failure to have a program, and EPA is
not obligated to promulgate a Federal permits program in the State.
Permits issued under a program with interim approval have full standing
with respect to part 70, and the 1-year time period for submittal of
permit applications by subject sources begins upon interim approval, as
does the 3-year time period for processing the initial permit
applications.
The EPA is proposing to disapprove in the alternative the Montana
PROGRAM if the specified corrective actions for final interim PROGRAM
approval are not completed and submitted to EPA prior to EPA's
statutory deadline for acting on Montana's title V submittal. If
promulgated, this disapproval would constitute a disapproval under
section 502(d) of the Act (see generally 57 FR 32253-54). As provided
under section 502(d)(1) of the Act, Montana would have up to 180 days
from the date of EPA's notification of disapproval to the Governor of
Montana to revise and resubmit the PROGRAM.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, the EPA is also proposing to grant approval under
section 112(l)(5) of the Act and 40 CFR 63.91 of the State's program
for receiving delegation of section 112 standards that are unchanged
from Federal standards as promulgated. This program for delegations
applies to sources covered by the part 70 program as well as non part
70 sources.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the State's submittal and other information
relied upon for the proposed interim approval are contained in a docket
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the information submitted to, or otherwise
considered by, EPA in the development [[Page 8341]] of this proposed
interim approval. The principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by March 16, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 3, 1995.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 95-3659 Filed 2-13-95; 8:45 am]
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