[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Proposed Rules]
[Pages 47515-47521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22490]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 69

[AD-FRL-5291-2]


Proposed Conditional Special Exemption From Requirements of the 
Clean Air Act for the Territory of American Samoa, the Commonwealth of 
the Northern Mariana Islands, and the Territory of Guam

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed actions.

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SUMMARY: The Governors of the Territory of American Samoa (American 
Samoa), the Commonwealth of the Northern Mariana Islands (CNMI), and 
the Territory of Guam (Guam) each submitted a petition under section 
325(a) of the Clean Air Act (the Act) for a waiver from title V of the 
Act. Title V requires that states, including the petitioners, adopt and 
submit to EPA a title V operating permits program for major sources and 
certain other stationary sources. Title V also requires that sources 
located in areas that do not adopt a state title V permitting program 
obtain a federal permit from the US EPA. Section 325(a) allows American 
Samoa, CNMI, and Guam to petition for an exemption from certain Clean 
Air Act requirements.
    The EPA received petitions requesting an exemption from title V of 
the CAA from American Samoa on November 18, 1994, from CNMI on July 14, 
1994, and Guam on November 21, 1994. This document describes the 
petition submitted by each agency, EPA's analysis, and EPA's proposed 
action on each petition. The EPA is proposing to grant conditional 
waivers from the requirement that American Samoa and CNMI adopt and 
submit title V operating permit programs. The EPA proposes to require 
the implementation of alternative programs to protect local air quality 
as a condition of these waivers. The EPA is proposing to grant Guam a 
three-year extension of the deadlines in title V. The EPA is also 
proposing to exempt sources from the requirement to obtain a federal 
title V permit during the period of the waivers, except for certain 
major sources of hazardous air pollutants. While this proposal 
addresses all three petitions, EPA's action is based on a separate 
evaluation of each petition.

DATES: Comments on these proposed actions must be received in writing 
by October 13, 1995.

ADDRESSES: Comments should be addressed to Norm Lovelace at the address 
indicated. Copies of the petitions and other supporting information, 
including air quality modeling, used in developing the proposed interim 
approval are available for inspection during normal business hours at 
the following location: Office of Pacific Islands and Native American 
Programs, US EPA Region IX, 75 Hawthorne Street, San Francisco, 
California 94105.

FOR FURTHER INFORMATION CONTACT: Norm Lovelace (telephone 415/744-1599, 
fax 415/744-1604), Chief, Office of Pacific Islands and Native American 
Programs, or Ed Pike (telephone 415/744-1248), Operating Permits 
Section, Air and Toxics Division, at US EPA-Region IX, 75 Hawthorne 
Street, San Francisco, California 94105. Comments should be addressed 
to Norm Lovelace, mailcode E-4.

[[Page 47516]]


I. Background

    Title V of the Act requires states to develop and submit operating 
permit programs by November 15, 1993. EPA has promulgated certain 
minimum requirements (57 FR 32250 (July 21, 1992)) that are codified at 
40 Code of Federal Regulations (CFR) part 70. States must develop 
programs for issuing permits that contain monitoring and compliance 
terms and conditions that ensure sources comply with all applicable 
federal air regulations, and the permit issuance process must include 
public participation and EPA oversight. EPA is required to impose 
sanctions on any state, including the petitioners (see 40 CFR 70.2 
definition of ``state''), that has not submitted a complete title V 
permit program. For any state that does not have an approved program by 
November 15, 1995, the EPA must promulgate, administer, and enforce a 
federal air permit program.
    Section 325(a) of the Act allows the petitioners to request that 
the Administrator of EPA waive requirements of the Clean Air Act other 
than section 112 (Hazardous Air Pollutant or HAPs) requirements or any 
requirement under section 110 or part D of subchapter 1 that would be 
necessary to attain or maintain a national primary ambient air quality 
standard. The petitioners request a waiver from title V and do not 
request a waiver from any requirements under section 112 of the Act, 
including requirements that are triggered by the approval of a title V 
permit program. In addition, the petitions for American Samoa and CNMI 
commit to implementing alternative programs to protect ambient air 
quality, including the national ambient air quality standards.
    Section 325(a) also specifies the criteria for approving 
exemptions: ``Such exemption may be granted if the Administrator finds 
that compliance with such requirement is not feasible or is 
unreasonable due to unique geographical, meteorological, or economic 
factors of such territory, or such other local factors as the 
Administrator deems significant.'' EPA's determinations are based on 
whether the petitions meet these criteria. Although EPA is publishing 
its proposed action on the petitions in a single rulemaking, each 
action is considered a separate decision and can be considered 
independently. If significant comments are received pertaining to a 
specific petition, EPA may take final action on each petition 
independently.

II. Analysis and Proposed Action

A. American Samoa

1. Description of Petition and Supporting Documents
    The Governor of American Samoa submitted the Government's petition 
on November 28, 1994. The petition consists of the following sections: 
1) a description of the waiver request and geographical and political 
conditions; 2) a description of American Samoa's commitment to ensure 
attainment and maintenance of national ambient air quality standards; 
3) a commitment to work with EPA to ensure that the hazardous air 
pollutant program under Section 112 of CAA is administered and enforced 
on American Samoa; 4) a description of the unique local economic burden 
that the title V operating permit program would create; and 5) other 
unique geographical, meteorological, and local factors that support the 
petition. The supporting information includes: 1) maps of American 
Samoa; 2) an emissions inventory for American Samoa; 3) screening 
analysis of ambient air quality impacts on American Samoa; 4) economic 
analysis of an operating permit program on American Samoa; and 5) 
newspaper articles illustrating the financial difficulties of the 
American Samoa Government (ASG).
2. Analysis of the Petition
    EPA believes that the unique local circumstances presented in the 
petition satisfy the criteria in section 325(a) for granting an 
exemption from title V of the CAA. EPA also believes that the 
petition's proposed mitigating air quality program is appropriate for 
American Samoa and would result in air quality benefits equivalent to a 
title V program.
    The petition makes a convincing argument that a title V operating 
permit program would have a unique negative economic impact on American 
Samoa. Implementing this program would be economically unreasonable for 
the American Samoa Government (ASG) and the general public due to 
extremely limited local resources. Only five sources have potential 
emissions exceeding the major source level (40 CFR 70.2) and would be 
subject to the program. If ASG imposed fees based on emissions as 
required by part 70, the two power plants run by the American Samoa 
Power Authority (ASPA), a semi-autonomous government utility agency, 
would incur most of these costs. Projected costs to be incurred by ASPA 
would likely be passed to its electrical consumers, which include 
private industry, the public and the American Samoa Government. 
Increased power bills to the latter two consumers would strain already 
limited resources. Per capita income is only $3,039 (compared to 
$14,420 for the mainland United States) and the population is only 
49,000. The ASG has had major financial difficulties over the past 
years, and as the major consumer of power it has unpaid power bills of 
over $2 million.
    The petition estimates that the total regulatory and compliance 
costs of the program would be $143,000. The relative economic impact of 
these fees would be high compared to the limited economic resources of 
American Samoa. Given the limited number of sources, the limitations of 
the ASEPA staff, the more pressing environmental priorities of American 
Samoa (such as safe drinking water and solid waste disposal), and the 
fact that the major costs will be borne by an area with limited 
economic resources, EPA believes that it is appropriate for ASG to 
focus its limited resources on an alternative permitting program, which 
could be expected to achieve equivalent environmental benefits. EPA 
believes that these economic resource constraints support American 
Samoa's position that the title V program is unreasonable in American 
Samoa and justify a more narrowly focused program.
3. Alternative Air Quality Program Proposed by American Samoa
    American Samoa proposes an air quality program to address potential 
exceedances of the National Ambient Air Quality Standards (NAAQS). This 
program more appropriately addresses unique meteorological 
circumstances and the protection of local air quality. While the title 
V program is expected to increase compliance with emission limits, 
other mechanisms (such as source-specific SIP limits or direct 
enforcement of federal standards) may be a practical and effective 
means of controlling air pollution on American Samoa. In addition, no 
major sources of air toxics are identified in the petition. Major 
source of air toxics may require case-by-case title V permitting review 
for implementation of a current or future section 112 standard.
    Screening model results submitted with the petition indicate that 
sulfur dioxide (SO2) NAAQS exceedances may occur in the Pago Pago 
Harbor area. In the petition, American Samoa commits to ensuring that 
primary ambient air quality standards in the Pago Pago Harbor area are 
met. American Samoa will collect meteorological data and undertake 
additional refined air 

[[Page 47517]]
modeling of the Pago Pago Harbor area. American Samoa will also require 
sources impacting the Pago Pago Harbor area to implement physical and 
operational changes if necessary to assure compliance with the NAAQS. 
EPA agrees with American Samoa that possible emission control 
strategies for correcting any sulfur dioxide NAAQS exceedances include, 
but are not limited to, a reduction in the sulfur content of the fuel 
burned, the addition of scrubbers or other control devices, a reduction 
in the hours of operation for some units, or a combination thereof. EPA 
also believes that amendments to American Samoa's State Implementation 
Plan (SIP) are the most practical method of imposing any controls and 
compliance methods that are necessary.
    EPA believes that American Samoa's proposed mitigating air quality 
program, which is tailored to prevent and remedy potential air quality 
violations, will achieve equivalent benefits for air quality and is 
more appropriate than the title V program due to the geographic 
isolation, economic circumstances, and the limited number of sources in 
American Samoa. Furthermore, because the few sources in American Samoa 
do not appear to compete with mainland sources, the exempted sources 
will not gain a competitive advantage over sources subject to title V.
4. Conditional Waiver
    EPA is proposing to exempt American Samoa from the requirement to 
develop a part 70 permitting program and sources on American Samoa from 
the requirement to apply for a part 71 permit (except when specifically 
required by EPA), provided that the following conditions are met. EPA 
is proposing that American Samoa collect complete meteorological data 
and complete a refined air quality modeling analysis within two years 
of the effective date of this rulemaking. EPA is also proposing that 
American Samoa require affected sources to implement changes necessary 
to ensure NAAQS achievement in a timely manner if the modeling 
demonstrates a violation of the NAAQS. EPA believes that a period of 
five years, which is three years from the completion of modeling by 
American Samoa, will allow sufficient time to implement strategies to 
meet the NAAQS if exceedances have occurred.
    EPA is also proposing that American Samoa implement an alternative 
local operating permit program. The permitting program will ensure that 
the emission limits used to verify compliance with the NAAQS are met. 
At a minimum, the program should meet the guidelines established in the 
June 29, 1989 Federal Register for federally enforceable operating 
permit programs. These guidelines are more flexible than the title V 
guidelines but ensure that permits are federally enforceable on a 
practical and legal basis. The permits should include applicable Clean 
Air Act requirements, adequate compliance measures, and allow for 
public participation. In addition, this alternative program can be used 
to implement other air quality requirements.
    EPA proposes to reopen the waiver if these conditions are not met 
or if EPA determines that implementation of a title V permitting 
program is necessary to ensure compliance with applicable Clean Air Act 
requirements and protect air quality.

B. CNMI

1. Description of Petition and Supporting Documents
    The Governor of CNMI submitted the petition to EPA on July 14, 
1994. The petition consists of a 15-page narrative and supporting 
information. The narrative portion of the petition is organized into 
sections which describe: (1) the purpose of the petition; (2) unique 
local geographical, meteorological, and economic factors; (3) major air 
emission sources and sources of hazardous air pollutants emissions in 
CNMI; and (4) information on the existing CNMI permitting regulations, 
which CNMI suggests as an alternative mitigating program. CNMI also 
submitted copies of local statutes and regulations, maps of CNMI, 
emissions information, and cost estimates for the title V program as 
supporting information.
2. Analysis of the Petition
    EPA believes that the unique local circumstances presented in the 
petition satisfy the criteria in section 325(a) for granting an 
exemption from title V of the CAA. CNMI's petition states that title V 
is overly burdensome due to local circumstances and proposes a 
mitigating local permit program. The petition describes unique local 
factors that make the economic burden of implementing the title V 
permitting program greater for CNMI than for most state air agencies. 
CNMI's population (43,345) is far smaller than mainland state agencies. 
In addition, per capita income ($7,200) in CNMI is only half that of 
the United States. Therefore, the economic resources available to 
address air quality problems are much more limited than the resources 
available in areas under the jurisdiction of mainland state air quality 
agencies.
    The CNMI petition states that Clean Air Act programs, particularly 
title V, are not necessary because ambient air quality is not impacted 
by emissions from stationary sources on CNMI, and that an alternative 
local program is sufficient to protect air quality. EPA air quality 
modeling conducted to evaluate this claim predicted violations of the 
National Ambient Air Quality Standards (NAAQS). However, EPA's analysis 
also shows that the alternative permitting program described by CNMI 
would address exceedances of the NAAQS as effectively as a title V 
program. CNMI's emission inventory shows that emissions result almost 
exclusively from internal combustion engines, and EPA believes that 
options other than case-by-case title V permitting of these sources 
(such as a SIP rule with specific control and compliance measures) 
would be appropriate for controlling these sources due to their 
similarity. In addition, none of the sources identified in the petition 
are identified as a major air toxics source that may require case-by-
case permitting review for implementation of a current or future 
section 112 standard.
3. Air Quality Modeling
    EPA performed screening level modeling on the main Commonwealth 
Utilities Company (CUC) power plant on Saipan, the main island in the 
CNMI and the island with the largest emission sources, to assess 
potential air quality problems on Saipan. EPA's SCREEN2 model predicts 
significant violations of the sulfur dioxide (SO2) three-hour and 
24-hour NAAQS due to low stack heights, high sulfur fuel, and the lack 
of control equipment. The model also indicates that violations of the 
eight-hour carbon monoxide (CO) and the annual nitrogen oxide 
(NOX) NAAQS may occur. United States Air Force meteorological data 
indicate that a significant percent of the predicted violations will 
impact onshore areas of the island.
    The SCREEN2 model does not use detailed site specific 
meteorological data. CNMI could choose to perform additional modeling 
using site specific meteorological data. EPA does not believe that the 
concentrations of air pollutants predicted under the SCREEN2 model 
would change enough using refined modeling to show compliance with the 
NAAQS. However, EPA believes that additional modeling may help verify 
the extent of the predicted SOX NAAQS exceedances and the 
effectiveness of different strategies for achieving compliance with the 


[[Page 47518]]
NAAQS. CNMI may choose to use the existing SCREEN2 modeling results or 
conduct additional refined modeling.
4. Alternative Permitting Program Proposed by CNMI
    The CNMI proposed an alternative program to address sources of air 
pollution based on its current regulations and several proposed 
changes. CNMI updated the petition on October 20, 1994, by submitting 
the currently effective CNMI Air Pollution Control Regulations (CNMI 
Regulations). The CNMI Regulations (part V.A) require the registration 
of certain new and existing sources. The Director of the Division of 
Environmental Quality may allow the construction or modification of a 
major new source if the source will not endanger the attainment or 
maintenance of NAAQS or violate the allowable air quality increments in 
40 CFR 52.21 (c) and (d) (CNMI Regulations part V.E). EPA interprets 
these rules to prohibit the air quality violations predicted by the 
screening model. EPA is conditioning the waiver to require that CNMI 
fully implement and enforce these currently effective regulations, 
including provisions that require sources built after the effective 
date of the regulations to apply physical and operational controls to 
assure that NAAQS and PSD increments are not exceeded.
    The CNMI petition also proposed revisions to the CNMI program that 
would provide elements of an operating permit program similar to the 
title V permitting program. On February 17, 1995, CNMI committed to 
obtain additional authority to enforce permits and provide public 
process if required by EPA. The petition also stated that CNMI could 
modify the program to include all applicable Clean Air Act requirements 
in the program and require monitoring and/or recordkeeping requirements 
to ensure that sources comply with their emission limits. Therefore, 
EPA is proposing that the CNMI adopt these elements in the alternative 
operating permit program and submit the adopted regulations as a 
revision to CNMI's SIP as a condition to granting the waiver. The CNMI 
petition stated that CNMI could collect fees to fund the permitting 
program, but did not commit to collecting these resources. EPA believes 
that CNMI should have the flexibility to determine appropriate funding 
mechanisms, but that sufficient resources must be available to fund an 
alternate program.
5. Conditional Waiver
    EPA is proposing to exempt CNMI from the requirement to develop a 
part 70 permitting program and sources on CNMI from the requirement to 
apply for a part 71 permit (unless specifically required by EPA) on the 
condition that CNMI implement the alternative permitting program. This 
would require that CNMI implement existing air quality regulations 
addressing potential existing violations of air quality standards.
    EPA is proposing that CNMI may conduct any additional modeling it 
believes is necessary to yield more site-specific ambient emission 
estimates. EPA is proposing a 1-year deadline for the completion of any 
such modeling. CNMI's petition does not address what meterological data 
is available, but EPA will consider any new information or comments 
that address whether additional time would be necessary to collect 
meterological data or whether existing sources of meterological data 
are acceptable in the final rulemaking.
    EPA is also proposing that CNMI submit a State Implementation Plan 
(SIP) to address any confirmed violations within two years of the 
effective date of the waiver, and ensure compliance with the NAAQS 
within four years of the effective date of this waiver. In addition, 
EPA is proposing that CNMI fully adopt enhancements to its existing 
operating permit program and implement the alternative operating permit 
program within two years of the effective date of the waiver and submit 
these requirements as revisions to its SIP rules.
    EPA will reopen the waiver if these conditions are not met or if 
EPA determines that implementation of a title V permitting program is 
necessary to ensure compliance with applicable Clean Air Act 
requirements and protect air quality. If EPA determines that any area 
will not meet the NAAQS, as determined under CAA section 110, within 
four years of the effective date of the waiver, EPA will redesignate 
that area non-attainment and require the appropriate attainment plans.

C. Guam

1. Description of Petition and Supporting Documents
    The Governor of Guam submitted a petition to EPA on November 18, 
1994. The petition consists of a 12-page narrative and 5 supporting 
exhibits. The narrative portion of the petition is organized into 
sections which describe: 1) the petition, the type of waiver requested, 
and the basis for the petition; 2) compliance with primary ambient air 
quality standards; 3) compliance with Section 112 of the CAA; 4) the 
local economic effect of a title V operating permit program; and, 5) 
additional unique geographical, meteorological, and local factors. The 
supporting information includes: 1) a map of Guam; 2) an emissions 
inventory; 3) source profiles and estimates of their actual and 
potential emissions; and, 4) an economic analysis of an operating 
permit program on Guam.
2. Analysis of Guam's Petition
    EPA believes that the unique local circumstances presented in the 
petition justify an extension of the deadlines in title V but do not 
warrant a permanent exemption from title V of the Act. Guam's petition 
requests a waiver based on several factors. The petition states that 
implementing title V would be a burden for Guam and that Guam currently 
lacks the technical resources to implement the program. In addition, 
the petition states that title V is not necessary to ensure compliance 
with air quality standards.
    EPA agrees that Guam needs additional technical resources to 
implement a title V permitting program and believes a three-year 
extension in the deadline to adopt a title V program would allow the 
Guam Environmental Protection Agency (GEPA) to secure additional 
training and technical resources. In addition, an extension would allow 
Guam the option of saving resources by adopting the federal operating 
permit rule (currently proposed at 60 FR 20804; to be codified at 40 
CFR part 71) by reference or by using a state or local rule as a 
guideline rather than developing their own permitting rule. EPA 
believes that three years will allow GEPA sufficient time to acquire 
the technical resources to develop and implement a title V permitting 
program.
    While the petition states that imposing a title V permit program 
would impose an economic burden, the data does not support this 
assertion. Although businesses on Guam are unlikely to relocate due to 
these fees, title V fees could have an impact on small businesses. 
However, EPA believes that part 70 gives Guam flexibility to assess 
different fees to different sources based on the expected economic 
burden. The petition also states that per capita income in Guam is less 
than per capita income on the mainland United States ($9,928 versus 
$14,420 in 1990 dollars). EPA does not believe that the title V 
permitting program would have a noticeable economic impact on citizens. 
For instance, Guam's petition estimates that 

[[Page 47519]]
title V costs to residential and local government electric users is 
$183,000 (assuming the local utility increase rates to cover 100% of 
its permit fees and other permit costs) for a population of 133,000. 
For these reasons, EPA does not believe that implementation of a title 
V permitting program on Guam is economically infeasible.
    In addition, many significant sources of air pollution are located 
on Guam. The petition identified 14 title V sources with actual 
emissions in excess of 100 tons per year and 55 sources with actual 
emissions of up to 85 tons per year, some of which may be subject to 
title V because they have a potential to emit exceeding the major 
source levels (see 40 CFR part 70.2). Guam has more title V sources 
than the other two petitioners and more title V sources than most State 
and local agencies in EPA Region IX. Air emissions on Guam result 
mainly from equipment needed to generate electric power, including 
boilers, fuel-oil storage tanks, diesel engines and combustion 
turbines. According to Guam's petition, the major pollutant emitted in 
1993 was SOx, with 12,500 tons from the largest source and 5,570 from 
the second largest source. The total emissions inventory of 30,490 tons 
per year was larger than the other areas requesting a waiver and larger 
than 32 of the 40 State and local agencies in EPA Region IX that have 
completed emissions inventories for their title V sources. EPA believes 
that the large point sources on Guam, including major air toxics 
sources, that would be subject to a title V program have a greater 
impact on local air quality than sources on American Samoa and CNMI.
3. Alternative Air Quality Program
    Title V is intended to implement Clear Air Act programs that are 
designed to protect air quality. Guam's petition does not commit to or 
propose an alternative operating permit or compliance program that 
would ensure that air quality protections, such as air toxics controls 
and emission limits for criteria pollutants, are achieved. Therefore, 
it is not clear from the petition what procedures Guam would institute 
to ensure that Clean Air Act objectives are achieved.
4. Conditional Extension
    EPA is proposing to grant Guam an extension of the deadline for 
developing and submitting a title V permitting program for three years 
from the effective date of this rulemaking action, but not later than 
November 15, 1998, which is five years beyond the statutory deadline 
for submitting a complete title V permitting program. The Clean Air Act 
originally gave state and local agencies three years to develop and 
submit operating permit programs, and EPA believes that this time 
period is sufficient for Guam to acquire sufficient technical resources 
and to utilize EPA's part 71 regulation or develop its own program 
using an approved state or local program as a model.
    EPA is also granting title V sources on Guam a waiver from the 
effective date of the part 71 permit program until five years from the 
effective date of this rulemaking action, but not later than November 
15, 2000, providing that Guam submits a timely and complete permitting 
program. This two year difference between the deadline for submitting a 
timely and complete title V program and the effective date of the part 
71 program will allow EPA time to review Guam's program and allow Guam 
an opportunity to correct any incomplete areas of their program or any 
approval issues in their program. If a timely and complete program is 
not submitted by Guam, the part 71 program will be effective three 
years after the effective date of this rulemaking, or November 15, 
1998, whichever is earlier. As proposed, the part 71 regulation 
requires that sources submit permit applications within one year of the 
effective date unless EPA establishes an earlier submittal date. For 
more information, see the part 71 proposal at 60 FR 20804 (April 27, 
1995).

D. Hazardous Air Pollutant Requirements for American Samoa, CNMI, and 
Guam

1. Effective Date of Requirements Triggered by Title V
    The Act prohibits section 325 waivers from section 112 
requirements, and the petitioners do not request a waiver from section 
112 requirements. This notice does not waive any requirements under 
section 112 of the Act, including case-by-case Maximum Achievable 
Control Technology (MACT) determinations under sections 112(g) and 
112(j) of the Act. New and modified major HAP sources must apply MACT 
under section 112(g) if EPA has not promulgated an applicable National 
Emission Standard for Hazardous Air Pollutants (NESHAP; NESHAPs 
promulgated after the 1990 Amendments to the Act are also commonly 
referred to as MACT standards) for the source category. Existing major 
HAP sources must apply for a title V permit containing MACT under 
section 112(j) if EPA misses a NESHAP deadline for their source 
category by 18 months (59 FR 26429). These two requirements are, in the 
absence of a section 325 waiver, triggered by the effective date of a 
title V program.
    EPA is proposing to grant the waivers on the condition that these 
section 112 requirements will be implemented from the effective date of 
the waiver. Therefore, EPA is proposing that the effective date of this 
waiver constitute the effective date of a title V program for American 
Samoa, CNMI and Guam for the purposes of triggering section 112(g) and 
112(j) requirements. While no sources subject to the requirements of 
the 112(g) and 112(j) have yet been identified, this condition will 
ensure that sources built or identified in the future will be subject 
to these hazardous air pollutant reductions.
2. Implementation of Section 112 requirements
    EPA will issue part 71 permits to any source subject to the 112(g) 
and 112(j) programs in American Samoa, CNMI, and Guam under today's 
proposal. Sources that are required to apply for a 112(g) or 112(j) 
determination would be required to submit a complete part 71 
application to EPA and EPA would issue a permit that includes 112(g) 
and 112(j) requirements under the part 71 regulations. While the final 
part 71 rule has not yet been promulgated, EPA is not aware of any 
sources that would be subject to this provision in the near future and 
anticipates that the part 71 rule (see 60 FR 20804 for proposal) will 
be finalized before any sources become subject. For instance, EPA 
expects that the 112(j) provisions will not be effective before 1997. 
In addition, EPA has stated in its February 14, 1995 interpretive 
notice (60 FR 8333) that the requirements of 112(g) are not effective 
until EPA promulgates a final 112(g) rule. EPA anticipates that the 
part 71 rule will be promulgated before any case-by-case determinations 
in American Samoa, CNMI or Guam are necessary. EPA will consider any 
comments received on the appropriate mechanism for implementing case-
by-case MACT determinations, and is specifically soliciting comments on 
the appropriate mechanism for implementing case-by-case MACT if 
promulgation of the part 71 rulemaking is delayed. EPA requests 
information on any source that may be subject to section 112(g) in the 
next two years in case the part 71 promulgation date is delayed past 
the effective date of this waiver and the promulgation of the 112(g) 
rule.
    EPA is currently considering whether major sources of air toxics 
subject to EPA MACT standards should also be subject to permitting 
under part 71 in 

[[Page 47520]]
the absence of a approved local title V program. Future MACT standards 
may utilize title V permits (i.e. a part 70 or part 71 permit) to 
establish specific compliance requirements or to allow operators 
flexible options for meeting emission limits. EPA is also considering 
whether title V permits are necessary to implement section 129(e) 
municipal waste incinerator standards (see proposals at 59 FR 48198-
48228 (NSPS) and 48228-48258 (state programs for existing sources)), 
which cover both criteria pollutants and hazardous air pollutants. The 
proposal does not currently require these sources to obtain title V 
permits. EPA will consider any comments on this issue and determine in 
the final rulemaking whether proper implementation of the section 112 
and section 129(e) standards require the permitting of subject sources 
under title V.
    Other section 112 requirements, such as 112(d) MACT standards, 
automatically apply to all subject sources in American Samoa, CNMI, and 
Guam and are enforceable by EPA. EPA will develop appropriate 
mechanisms with the petitioners to identify subject sources and ensure 
that sources comply with the standards. The petitioners have 
demonstrated that they currently lack the technical resources to 
develop a title V program, and EPA believes that greater technical 
resources will be necessary to determine case-by-case MACT limits for 
HAPs. If the petitioners develop the necessary technical resources and 
meet other specified criteria, they may apply for delegation of the 
section 112(g) and 112(j) programs by developing a title V program or 
applying under section 112(l) of the Act (58 FR 62262 (November 16, 
1993)).

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of these proposed 
waivers. Copies of the petitions, modeling data, and other information 
relied upon for the proposed approval are contained in a docket 
maintained at the EPA Regional Office. The docket is an organized and 
complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of this proposed interim 
approval. The principal purposes of the docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and
    (2) to serve as the record in case of judicial review. The EPA will 
consider any comments received by October 13, 1995.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.
C. Regulatory Flexibility Act

    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.

D. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the waiver proposed today 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 waivers requested 
by the petitioners to reduce the cost of implementing the Clean Air 
Act. 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 69

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Nitrogen oxides, 
Operating permits, Reporting and recordkeeping requirements, Sulfur 
dioxide, Volatile organic compounds.

    Dated: August 25, 1995.
Felicia Marcus,
Regional Administrator.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 69--[AMENDED]

    1. The authority citation for part 69 continues to read as follows:

    Authority: Sec. 325, Clean Air Act, as amended (42 U.S.C. 7625-
1).

Subpart A--Guam

    2. Subpart A is amended by adding Sec. 69.13 to read as follows:


Sec. 69.13  Title V extension.

    (a) The Administrator of the EPA grants the Territory of Guam an 
extension until three years from [the effective date of the final 
rule], but no later than November 15, 1998, from the requirement to 
develop a title V permit program by November 15, 1993. The 
Administrator of the EPA grants all title V sources located in Guam a 
waiver, except as described in paragraph (b) of this section, from the 
requirement to apply for and obtain a part 71 permit. The part 71 
waiver shall expire on the earlier of three years from the earlier of 
[the effective date of the final rule], or November 15, 1998. If Guam 
does not submit a complete permit program, as defined in 40 CFR part 
70, by the expiration date of the waiver, then 40 CFR part 71 shall 
become effective for all subject sources in Guam on that date. 40 CFR 
part 71 shall become effective for all sources on Guam two years from 
the expiration of the waiver if Guam submits a timely and complete 
program but does not have an approved program on that date.
    (b) All section 112 requirements shall be implemented during the 
period of the waiver. Sections 112 (g) and (j) of the Act shall apply 
to all sources on Guam during the term of this waiver, and any subject 
source shall submit a timely part 71 permit application to EPA 
requesting a case-by-case 112(g) or 112(j) MACT determination. In 
addition, Guam will develop a Memorandum of Understanding with EPA to 
identify sources of hazardous air pollutants (HAPs).

Subpart B--American Samoa

    3. Subpart B is amended by adding Sec. 69.22 to read as follows:


Sec. 69.22  Title V waiver.

    (a) The Administrator of the EPA grants the Territory of American 
Samoa an exemption from the requirement to 

[[Page 47521]]
develop, implement, and submit for approval a title V operating permit 
program and grants title V sources located in American Samoa an 
exemption from the requirement to apply for and obtain a part 71 permit 
except as described in paragraph (a)(3) of this section. This waiver is 
subject to the following conditions:
    (1) American Samoa shall implement the following program to protect 
attainment of National Ambient Air Quality Standards as a condition of 
the waiver:
    (i) American Samoa shall collect complete meteorological data and 
complete refined air quality modeling for the Pago Pago Harbor and 
submit such data and modeling results to EPA within two years of 
[effective date of the final rule].
    (ii) American Samoa shall address any NAAQS exceedances discovered 
through the modeling results with a State Implementation Plan (SIP) 
that ensure compliance with the NAAQS within the earlier of three years 
from the date such results are submitted to EPA and five years from 
[the effective date of the final rule]. This plan shall be submitted by 
three years from [the effective date of the final rule].
    (2) American Samoa shall develop, implement, and submit to EPA for 
approval an alternative permit program that meets the requirements 
specified in EPA's June 28, 1989 guidelines.\1\ The program must be 
submitted within two years of [effective date of the final rule] and 
include the following elements:

    \1\ These guidelines were published in the Federal Register on 
June 28, 1989 at 54 FR 27282.
---------------------------------------------------------------------------

    (i) Permit content:
    (A) Permits must contain and ensure compliance with all applicable 
federal requirements, as defined under section 40 CFR 70.2; and
    (B) Contain monitoring, recordkeeping and reporting requirements 
sufficient to assure compliance with applicable federal requirements;
    (ii) The collection of fees from permitted sources or other 
revenues in an amount that will pay for the cost of operation of such a 
program;
    (iii) Public notice and a 30-day public comment on each major 
source permit, including an opportunity for EPA review;
    (iv) Civil and criminal penalties up to $10,000 per day per 
violation; and
    (v) A schedule for issuing permits to all major sources, as defined 
under 40 CFR 70.2, within three years of EPA approval of the alternate 
operating program.
    (3) All section 112 requirements shall be implemented during the 
period of the waiver. Sections 112(g) and (j) of the Act shall apply to 
all sources on American Samoa during the term of this waiver, and any 
subject source shall submit a timely part 71 permit application to EPA 
requesting a case-by-case 112(g) or 112(j) MACT determination. American 
Samoa shall develop a Memorandum of Understanding with EPA to identify 
sources of hazardous air pollutants (HAPs).
    (b) EPA may modify or revoke this waiver for cause, and shall 
reopen the waiver if the conditions under paragraph (a) of this section 
are not met.

Subpart C--Commonwealth of the Northern Mariana Islands

    4. Subpart C is amended by adding Sec. 69.32 to read as follows:


Sec. 69.32  Title V exemption.

    (a) The Administrator of the EPA grants the Commonwealth of the 
Northern Mariana Islands an exemption from the requirement to develop, 
implement, and submit for approval a title V operating permit program 
and grants title V sources located in CNMI an exemption from the 
requirement to apply for and obtain a part 71 permit except as 
described in paragraph (a)(3) of this section. This waiver is subject 
to the following conditions:
    (1) CNMI shall implement the following program to protect 
attainment of National Ambient Air Quality Standards as a condition of 
the waiver:
    (i) CNMI shall enforce its January 19, 1987 Air Pollution Control 
(APC) regulations, including the requirement that all new or modified 
sources comply with the NAAQS and Prevention of Significant 
Deterioration (PSD) increments.
    (ii) CNMI may conduct air emissions modeling, using EPA guidelines, 
for power plants located on Saipan to assess EPA's preliminary 
determination of non-compliance with the SOx NAAQS. CNMI shall complete 
and submit any additional modeling to EPA within one year from [the 
effective date of the final rule] to determine whether existing power 
plants cause or contribute to violation of the NAAQS and PSD increments 
in the APC and 40 CFR 52.21.
    (iii) If CNMI's additional modeling demonstrates non-attainment 
with NAAQS based on EPA guidelines, or if CNMI elects to accept EPA's 
preliminary determination that the NAAQS have been exceeded, CNMI shall 
submit a revised State Implementation Plan that ensures compliance with 
the NAAQS. The Plan shall be submitted within one year from [the 
effective date of the final rule] or, if CNMI elects to conduct 
additional modeling, within two years of [the effective date of the 
final rule]. CNMI shall take appropriate corrective actions through the 
SIP to demonstrate compliance with applicable NAAQS within four years 
from [the effective date of the final rule].
    (2) CNMI shall develop, implement, and submit to EPA for approval 
into CNMI's SIP an alternative permit program that meets the 
requirements specified in EPA's June 28, 1989 guidelines. The program 
shall be submitted within two years of [the effective date of the final 
rule] and include the following elements:
    (i) Permit content requirements:
    (A) Permits must contain and ensure compliance with all applicable 
federal requirements, as defined under section 40 CFR 70.2; and
    (B) Contain monitoring, recordkeeping and reporting requirements 
sufficient to assure compliance with applicable federal requirements;
    (ii) The collection of fees from permitted sources or other 
revenues in an amount that will pay for the cost of operation of such a 
program;
    (iii) Public notice and a 30-day public comment on each major 
source permit, including an opportunity for EPA review;
    (iv) Civil and criminal penalties up to $10,000 per day per 
violation; and
    (v) A schedule for issuing permits to all major sources, as defined 
under 40 CFR 70.2, within three years of EPA approval of the alternate 
operating program.
    (3) All section 112 requirements shall be implemented during the 
period of the waiver. Sections 112 (g) and (j) of the Act shall apply 
to all sources on CNMI during the term of this waiver and all subject 
sources shall submit a timely application for a part 71 permit. CNMI 
shall develop a Memorandum of Understanding with EPA to identify 
sources of hazardous air pollutants (HAPs).
    (b) EPA may modify or revoke this waiver for cause, and shall 
reopen the waiver if the conditions under paragraph a are not met. This 
exemption from requirements of title V of the Act shall continue until 
modified or terminated through rulemaking procedures.

[FR Doc. 95-22490 Filed 9-12-95; 8:45 am]
BILLING CODE 6560-50-P