[Federal Register Volume 62, Number 55 (Friday, March 21, 1997)]
[Proposed Rules]
[Pages 13748-13753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7219]
[[Page 13747]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 71
Federal Operating Permits Program; Proposed Rule
Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 /
Proposed Rules
[[Page 13748]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 71
[FRL-5800-3]
RIN 2060-AG90
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of opportunity for public hearing.
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SUMMARY: The EPA is proposing a new approach for issuing Federal
operating permits to covered stationary sources in Indian country,
pursuant to title V of the Clean Air Act as amended in 1990 (Act).
Consistent with EPA's Indian Policy, the Agency will protect air
quality by administering a Federal operating permits program in areas
lacking an EPA-approved or adequately administered Tribal operating
permits program. Implementation of today's proposal would benefit the
environment by assuring that the benefits of title V, such as increased
compliance and resulting decreases in emissions, would extend to every
part of Indian country.
DATES: Comments. Comments on the proposed regulations must be received
by EPA's Air Docket on or before May 5, 1997.
Public Hearing. A public hearing is scheduled for 10:00 a.m., on
April 21, 1997, at the address listed under ADDRESSES. Requests to
present oral testimony must be received by April 7, 1997, and the
hearing may be canceled if no speakers have requested time to present
their comments by that date. Written comments in lieu of, or in
addition to, testimony are encouraged.
ADDRESSES: Comments. Comments should be mailed (in duplicate if
possible) to: EPA Air Docket (Mail Code 6102), Attention: Docket Number
A-93-51, Room M-1500, Waterside Mall, 401 M Street, SW, Washington, DC
20460.
Public Hearing. The public hearing will be held in the Waterside
Mall auditorium at the U.S. Environmental Protection Agency, 401 M
Street, SW, Washington, DC 20460.
Persons interested in attending the hearing or wishing to present
oral testimony should contact Ms. Pat Finch in writing at the U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Information Transfer and Program Integration Division, Mail
Drop 12, Research Triangle Park, North Carolina 27711.
Docket. Supporting information used in developing the proposed rule
is contained in Docket Number A-93-51. The docket is available for
public inspection and copying between 8:30 a.m. and 3:30 p.m. Monday
through Friday, at EPA's Air Docket, Room M-1500, Waterside Mall, 401 M
Street, SW, Washington, DC 20460. A reasonable fee may be charged for
copying.
FOR FURTHER INFORMATION CONTACT: Candace Carraway (telephone 919-541-
3189), U.S. Environmental Protection Agency, Office of Air Quality
Planning and Standards, Information Transfer and Program Integration
Division, Mail Drop 12, Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Comments. The EPA is unlikely to be able to extend the public
comment period. Two paper copies of each set of comments are requested.
If possible, comments should be sent in both paper and computerized
form. Comments generated on computer should be sent on an IBM-
compatible diskette and clearly labeled. Computer files created with
the WordPerfect 5.1 software package should be sent as is. Files
created on other software packages should be saved in an
``unformatted'' mode for easy retrieval into WordPerfect. Comments
should refer to specific page numbers of today's proposal whenever
possible.
Regulated entities. Entities potentially regulated by this proposed
action are sources (1) That are located in Indian country; and (2) that
are major sources, affected sources under title IV of the Act (acid
rain sources), solid waste incineration units required to obtain a
permit under section 129 of the Act, and those area sources subject to
a standard under section 111 or 112 of the Act which have not been
exempted or deferred from title V permitting requirements. Regulated
categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
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Industry located in Indian country Major sources under title I or
section 112 of the Act; affected
sources under title IV of the Act
(acid rain sources); solid waste
incineration units required to
obtain a permit under section 129
of the Act; area sources subject to
standards under section 111 or 112
of the Act that are not exempted or
deferred from permitting
requirements under title V.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
proposed action. This table lists the types of entities that EPA is now
aware could potentially be regulated by this action. Other types of
entities not listed in the table could also be regulated. To determine
whether your facility is regulated by this action, you should carefully
examine the applicability criteria in Sec. 71.3(a) of the rule, the
definition of ``Indian country'' in Sec. 71.2 of the rule, and
Sec. 71.4 of the rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section or the
EPA Regional Office that is administering the part 71 permit program
for the State or area in which the relevant source or facility is
located.
Outline. The contents of today's preamble are listed in the
following outline:
I. Background and Purpose
II. Proposal Summary
III. Federal Authority to Implement Title V in Indian Country
IV. Proposed Changes to Regulatory Language
V. Administrative Requirements
A. Docket
B. Executive Order 12866
C. Regulatory Flexibility Act Compliance
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
I. Background and Purpose
Title V of the Act as amended in 1990 (42 U.S.C. 7661 et seq.)
requires that EPA develop regulations that set minimum standards for
State operating permits programs. Those regulations, codified in part
70 of chapter I of title 40 of the Code of Federal Regulations, were
originally promulgated on July 21, 1992 (57 FR 32250). Title V also
requires that EPA promulgate, administer, and enforce a Federal
operating permits program when a State has defaulted on its obligation
to submit an approvable program within the timeframe set by title V or
on its obligation to adequately administer and enforce an EPA-approved
program. On April 27, 1995, EPA proposed regulations (60 FR 20804)
(hereinafter ``1995 proposal'') setting forth the procedures and terms
under which the Agency will administer a Federal
[[Page 13749]]
operating permit program in a State or in areas over which States do
not have jurisdiction. The final rule was published on July 1, 1996 (61
FR 34202) and will be codified at 40 CFR part 71. The regulations
authorize EPA to issue permits when a State, local, or Tribal agency
has not developed, administered, or enforced an acceptable permits
program or has not issued permits that comply with the applicable
requirements of the Act.
Indian Tribes are not required to develop operating permits
programs, though EPA encourages Tribes to do so. The EPA expects that
most Tribes will not develop title V operating permit programs, in part
due to the resources required to develop a program and in part because
for some Tribes it will not be practicable to develop a permits program
for relatively few sources. Within Indian country, EPA believes it is
appropriate that EPA promulgate, administer, and enforce a part 71
Federal operating permits program for stationary sources until Tribes
receive approval to administer their own operating permits programs.
In the 1995 proposal, EPA stated its intention to implement part 71
programs to ensure coverage of Tribal areas which EPA proposed to
define as ``those lands over which an Indian Tribe has authority under
the Clean Air Act to regulate air quality.'' The final part 71 rule did
not include provisions relating to the boundaries of part 71 programs
in Tribal areas, pending resolution of jurisdictional issues involving
Tribes and States that were raised in a proposed rule that specified
provisions of the Act for which EPA believes it is appropriate to treat
Indian Tribes in the same manner as States, pursuant to section
301(d)(2). See 59 FR 43956 (August 25, 1994) (``Indian Tribes: Air
Quality Planning and Management,'' hereinafter ``proposed Tribal
authority rule'').
The EPA now believes that the 1995 proposal's definition of
``Tribal area,'' that is to say, the Indian lands where EPA would
exercise authority to implement a Federal permit program, was
inappropriate. The proposal was based on the interpretation of Tribal
jurisdiction under the Act in the proposed Tribal authority rule. The
approach of the 1995 proposal would have required Tribes to establish
their jurisdiction over an area before EPA could implement a Federal
program for the area. While in many cases this would not present a
problem, EPA believes it is more consistent with the Act that EPA
administer part 71 programs for all areas of Indian country without
requiring any jurisdictional showing on the part of the Tribe.
Furthermore, in proposing that EPA implement part 71 throughout Indian
country, today's notice is consistent with the Agency's Indian Policy,
which provides that EPA generally will administer environmental
programs on reservation lands until a Tribe assumes regulatory
responsibility. See, e.g., EPA's 1984 Policy for the Administration of
Environmental Programs on Indian Reservations, reaffirmed by EPA
Administrator Browner in 1994.
II. Proposal Summary
The EPA's approach for issuing operating permits in Tribal areas
outlined in the April 1995 proposal was modeled on the jurisdictional
provisions of the proposed Tribal authority rule. In the proposed
Tribal authority rule, EPA proposed to interpret the Act as granting to
Tribes, that are approved by EPA to administer programs under the Act
in the same manner as States, authority over all air resources within
the exterior boundaries of an Indian reservation. This would enable
Tribal-approved programs under the Act to address conduct on all lands,
including non-Indian owned fee lands, within the exterior boundaries of
a reservation. The proposed Tribal authority rule would also authorize
an eligible Tribe to develop and implement programs under the Act for
off-reservation lands that are determined to be within a Tribe's own
authority to regulate under relevant principles of Federal Indian law,
generally up to the limits of Indian country, as defined at 18 U.S.C.
1151. The rationale for this proposed interpretation of Tribal
jurisdiction to administer programs under the Act is set out in detail
in the proposed Tribal authority rule. See 59 FR 43956, 43958-43961
(August 25, 1994).
In the 1995 proposal, EPA noted that when EPA is acting in the
place of a Tribe under the Act, pursuant to Federal implementation
authority, the responsibilities that would otherwise fall to the Tribe
would accrue instead to EPA. Thus, under the 1995 proposal, EPA would
have authority to implement a part 71 program for any lands within the
exterior boundaries of a reservation and for any off-reservation land
over which a Tribe has demonstrated its own authority under Federal
Indian law. Today's notice makes it clear that EPA's implementation of
part 71 programs in Indian country is based on EPA's overarching
authority to protect air quality within Indian country, not solely on
its authority to act in the stead of an Indian Tribe.
The 1995 proposal used the term ``Tribal area'' to refer to the
areas over which Tribes and EPA had jurisdiction. One of the commenters
on the 1995 proposal recommended that the definition of ``Tribal area''
encompass Indian country, as defined in 18 U.S.C. 1151, noting that
this term is used in the context of several other EPA environmental
programs. As provided in 18 U.S.C. 1151:
[T]he term ``Indian country,'' as used in this chapter, means
(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a State, and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same.
Although a detailed analysis of the cases that have interpreted
this definition is beyond the scope of this notice, it should be noted
that the definition of Indian country would encompass the land referred
to in the 1995 proposal as ``Tribal area,'' but would not require a
jurisdictional showing on the part of the Tribe. Indian country
includes all of the territory within an Indian reservation (even land
owned by non-Indians) and incorporates ``dependent Indian communities''
and allotments held in trust regardless of whether they are located
within a recognized reservation.
Based on recent Supreme Court case law, EPA has construed the term
``reservation'' to incorporate trust land that has been validly set
apart for use by a Tribe, even though that land has not been formally
designated as a ``reservation.'' See 56 FR at 64881 (December 12,
1991); see also Oklahoma Tax Commission v. Citizen Band Potawatomi
Indian Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991). The EPA will be
guided by relevant case law in interpreting the scope of
``reservation'' under the Act.
The 1995 proposal was designed to authorize EPA to directly
implement an operating permits program where there was a void in
program coverage, thus assuring program coverage coast to coast.
However, the proposal inadvertently created a potential void in
coverage, in that it would authorize EPA to administer an operating
permits program only where the Tribe had made a jurisdictional showing.
This raised the possibility that neither EPA, the Tribe, nor the State
would be implementing an
[[Page 13750]]
operating permits program in a given geographic area. The EPA believes
that to avoid this result, EPA should exercise its authority throughout
Indian country. Thus, consistent with the Agency's Indian Policy, EPA
will administer title V programs within Indian country unless a part 70
program has been given full or interim approval. In addition, EPA
believes there is no reason to impose on Tribes the burden of making a
jurisdictional showing prior to EPA administering a Federal program.
The EPA solicits comment on this approach to describing its exercise of
authority to issue operating permits under the Federal operating
permits program.
III. Federal Authority to Implement Title V in Indian Country
Today, EPA is proposing to implement the Federal title V operating
permit program throughout Indian country. As discussed in the proposed
Tribal authority rule, EPA is authorized to protect air quality by
directly implementing provisions of the Act throughout Indian country
(59 FR 43956, 43958-43960 (August 25, 1994)). The EPA's authority is
based in part on the general purpose of the Act, which is national in
scope. As stated in section 101(b)(1) of the Act, Congress intended to
``protect and enhance the quality of the Nation's air resources so as
to promote the public health and welfare and the productive capacity of
its population'' (emphasis added). It is clear that Congress intended
for the Act to be a ``general statute applying to all persons to
include Indians and their property interests.'' See Phillips Petroleum
Co. v. United States EPA, 803 F.2d 545, 553-558 (10th Cir. 1986)
(holding that the Safe Drinking Water Act applied to Indian Tribes and
lands by virtue of being a nationally applicable statute).
Section 301(a) of the Act delegates to EPA broad authority to issue
such regulations as are necessary to carry out the functions of the
Act. Further, several provisions of the Act call for Federal issuance
of a program where, for example, a State fails to adopt a program,
adopts an inadequate program, or fails to adequately implement a
required program. See, e.g., sections 110(c) and 502 (d), (e), (i) of
the Act. It follows that Congress intended that EPA would similarly
have broad legal authority in instances when Tribes choose not to
develop a program, fail to adopt an adequate program, or fail to
adequately implement an air program authorized under section 301(d). In
addition, section 301(d)(4) of the Act empowers the Administrator to
directly administer Act requirements so as to achieve the appropriate
purpose, where Tribal implementation of those requirements is
inappropriate or administratively infeasible. These provisions of the
Act evince Congressional intent to authorize EPA to directly implement
programs under the Act in Indian country until Tribes submit approvable
programs. 1
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\1\ The EPA's interpretation of section 301(d) is also supported
by the legislative history--S. Rep.101-228 (December 20, 1989), page
80 (noting that section 301(d) of the Act authorizes EPA to
implement Act provisions throughout ``Indian country'' where there
is no tribal program).
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The EPA believes that under the Act, Congress intended to allow
eligible Tribes to implement programs under the Act generally up to the
limits of Indian country and to authorize EPA to implement the Act in
Indian country where a Tribe does not have an approved program. The Act
authorizes EPA to treat a Tribe in the same manner as a State for the
regulation of ``air resources within the exterior boundaries of the
reservation or other areas within the tribe's jurisdiction'' (section
301(d)(2)(B) (emphasis added)). The EPA believes that this statutory
provision, viewed within the overall framework of the Act, reflects a
territorial view of Tribal jurisdiction and authorizes a Tribal role
for all air resources within the exterior boundaries of Indian
reservations without distinguishing among various categories of on-
reservation land. In the proposed Tribal authority rule, EPA stated its
proposed interpretation that the Act grants to Tribes approved by EPA
to administer programs under the Act in the same manner as States
authority over all air resources within the exterior boundaries of a
reservation for such programs (59 FR at 43958). In addition, based on
section 301(d)(2)(B) of the Act, EPA proposed that a Tribe may also be
able to implement its air quality programs on off-reservation lands
which are within its jurisdiction under Federal Indian law, generally
up to the limits of ``Indian country,'' as defined in 18 U.S.C. 1151;
id. at 43960.
The EPA is proposing to interpret the Act as generally authorizing
EPA to implement the title V program even in areas of Indian country
where a State previously may have been able to demonstrate
jurisdiction. However, the EPA will not administer and enforce a part
71 program in Indian country when an operating permits program for the
area which meets the requirements of part 70 of this chapter has been
granted full or interim approval unless such approval is later
withdrawn. The EPA believes that the provisions of the Act discussed
above evince a Congressional preference that implementation of the Act
in Indian country be carried out by either EPA or the Tribes. Even
where a State has asserted jurisdiction over an area located in Indian
country under color of a statement of general authorization in another
Federal statute, the Act would nonetheless generally authorize EPA to
implement a title V program in such areas. See Adkins v. Arnold, 235
U.S. 417, 420; 59 L. Ed. 294, 295; 35 S. Ct. 118 (1914) (noting that
``later in time'' statutes should take precedence).
Today's notice is consistent with long-standing EPA policy that the
Agency will administer environmental programs in Indian country until a
Tribe assumes regulatory responsibility. See, e.g., EPA's 1984 Policy
for the Administration of Environmental Programs on Indian
Reservations, reaffirmed by EPA Administrator Browner in 1994.
Where there is a dispute as to whether a particular area is Indian
country, EPA will run the title V program in that area until the
dispute is satisfactorily resolved. A Tribal or State government that
wishes to dispute whether an area is or is not within Indian country
should submit to the appropriate Regional Administrator sufficient
information that demonstrates to EPA's satisfaction that there is a
dispute. The EPA solicits comment on this approach.
IV. Proposed Changes to Regulatory Language
The EPA today proposes to add a definition of the term ``Indian
country'' based on the term as defined in 18 U.S.C. 1151. The EPA notes
that although the definition of Indian country appears in a criminal
code, it has been extended to civil judicial and regulatory
jurisdiction (DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2
(1975); 40 CFR 144.3).
In addition, EPA proposes to delete the definition of ``Tribal
area'' because EPA believes it is more consistent with other
environmental regulations to define EPA's jurisdiction in terms of
``Indian country.'' The use of both terms may create confusion as well.
Accordingly, EPA proposes to revise several regulatory provisions that
include the term ``Tribal area,'' including the definition of
``affected State'' in Sec. 71.1, Sec. 71.4(a), Sec. 71.4(b),
Sec. 71.4(b)(2) through (b)(4), Sec. 71.4(f), Sec. 71.4(h)-(j),
Sec. 71.8(a), and Sec. 71.8(d).
In addition, EPA proposes several regulatory changes that result
from the new approach that are different than the 1995 proposal.
Briefly summarized, these changes include the following. First,
proposed Sec. 71.4(b)(1) that referred to Tribal assertion of
jurisdiction would
[[Page 13751]]
not be finalized and would be deleted in its entirety since a Tribe's
assertion of jurisdiction is not a relevant consideration under today's
proposal. Instead, proposed Sec. 71.4(b) would establish EPA's
authority to administer the part 71 program within Indian country
irrespective of whether the Tribe established its jurisdiction over the
area. Second, consistent with the Agency's policy with respect to
administering environmental programs in Indian country, EPA would not
solicit comment on the boundaries of the program through a rulemaking.
See, e.g., 40 CFR 144.3, 147.60(a) (EPA administers Underground
Injection Control program on ``Indian lands,'' defined equivalent to
``Indian country.'' Rather, disputes over whether a specific source was
subject to the part 71 program would be resolved in the context of
permitting the source. Therefore, provisions from the April 1995
proposal that would have required EPA to notify appropriate
governmental entities of the proposed geographic boundaries of the
program are inappropriate and will be withdrawn. The EPA solicits
comments on this approach.
The EPA believes that most sources in Indian country are located
within reservation boundaries and that these sources should not find it
difficult to determine that they are subject to the part 71 program.
The Agency will rely on boundaries as determined by the Bureau of
Indian Affairs which will provide maps of reservations upon request.
The EPA recognizes that some sources may be uncertain as to whether
they are located within Indian country. Sources that are unsure of
whether they are located in Indian country should consult the
appropriate EPA Regional office. Prior to the effective date of the
part 71 program in Indian country, the EPA will undertake outreach
efforts to notify sources that they are subject to the program, in much
the same way as States have notified sources that they believed were
subject to the part 70 program. However, EPA may fail to identify some
sources within Indian country. Even as to those sources, EPA reiterates
that it is the source's responsibility to ascertain whether or not it
is subject to the part 71 program.
The Agency will publish in the Federal Register a notice of the
effective date of the part 71 program in Indian country as required by
Sec. 71.4(g), even where the default effective date of November 15,
1997 has not been changed for a given area within Indian country. The
Agency solicits comments on what additional information this notice
should contain that would be helpful to sources.
The EPA solicits comments on whether EPA should take additional
steps to provide notice to sources that they are located in Indian
country and, if so, what those steps would be. At this time, the Agency
does not believe there is value in publishing maps and boundaries of
reservations because the Agency will rely on the boundaries recognized
by the Bureau of Indian Affairs which are available upon request from
that Agency.
In addition, EPA is adding language to clarify Sec. 71.4(b). The
EPA intended that this section would not only authorize early
implementation of the part 71 program (in advance of the November 15,
1997 default effective date for the program), but would also clarify
that EPA will administer the program unless a part 70 program has been
given full or interim approval. Given that the 1995 proposed language
is less than clear on this point, the current proposal at section 71.4
explains that EPA will administer the program in Indian country.
V. Administrative Requirements
A. Docket
The docket for this regulatory action is A-93-51. All the documents
referenced in this preamble fall into one of two categories. They are
either reference materials that are considered to be generally
available to the public, or they are memoranda and reports prepared
specifically for this rulemaking. Both types of documents can be found
in Docket Number A-93-51.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant'' regulatory action as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan program or the rights and obligation of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
Pursuant to the terms of Executive Order 12866, it has been
determined that this proposed rule is not a ``significant'' regulatory
action because it does not raise any of the issues associated with
``significant'' regulatory actions. The proposal would have a
negligible effect on the economy and would not create any
inconsistencies with other actions by other agencies, alter any
budgetary impacts, or raise any novel legal or policy issues. This
proposal would affect EPA's approach to permitting sources in Indian
country, assuring that all title V sources located in Indian country
will be subject to title V permitting requirements. For these reasons,
this action was not submitted to OMB for review.
C. Regulatory Flexibility Act Compliance
The Regulatory Flexibility Act (5 U.S.C. 601) requires EPA to
consider potential impacts of proposed regulations on small entities.
If a preliminary analysis indicates that a proposed regulation would
have a significant adverse economic impact on a substantial number of
small entities, then a regulatory flexibility analysis must be
prepared.
The original part 70 rule and the recently proposed revisions to
part 70 were determined to not have a significant adverse impact on a
substantial number of small entities. See 57 FR 32250, 32294 (July 21,
1992), and 60 FR 45530, 45563 (August 31, 1995). Similarly, a
regulatory flexibility screening analysis of the part 71 rule revealed
that the rule would not have a significant adverse impact on a
substantial number of small entities, since few small entities would be
subject to part 71 permitting requirements as a result of the rule's
deferral of the requirement to obtain a permit for nonmajor sources.
See 61 FR 34202, 34227 (July 1, 1996).
The prior screening analyses for the part 70 and part 71 rule was
done on a nationwide basis without regard to whether sources were
located within Indian country and are, therefore, applicable to sources
in Indian country. Accordingly, EPA believes that the screening
analyses are valid for purposes of today's proposal. And since the
screening analyses for the prior rules found that the part 70 and 71
rules as a whole would not have a significant impact on a substantial
number of small entities, today's rule, which may affect a much smaller
number of entities than
[[Page 13752]]
affected by the earlier rules, also will not have a significant impact
on a substantial number of small entities. The reasons for this
conclusion are discussed in more detail below.
At this time, no nonmajor sources are required by part 71 to obtain
an operating permit. The Agency has also issued several policy
memoranda explaining or providing mechanisms for sources to become
``synthetic minors'' whereby the source is recognized for not emitting
pollutants in major quantities. The sources thereby avoid the
requirement to obtain a part 71 permit.
Because of the deferral of permitting requirements for nonmajor
sources, today's proposal would affect only a small number of sources.
Although firm figures on the number of title V sources in Indian
country are not available, preliminary estimates suggest that there may
be only approximately 100 major sources, and 450 nonmajor sources (for
which permitting requirements would be deferred).
Consequently, I hereby certify that today's proposed rule would not
have a significant impact on a substantial number of small entities.
D. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements currently contained in the part 71
requirements published July 1, 1996 (61 FR 34202) under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned
OMB control number 2060-0336. The additional information collection
requirements in this proposed rule have been submitted for approval to
the OMB. An Information Collection Request (ICR) document has been
prepared by EPA (ICR No. 1713.03) and a copy may be obtained from Sandy
Farmer, Regulatory Information Division; U.S. Environmental Protection
Agency (2137); 401 M St., SW., Washington, DC 20460 or by calling (202)
260-2740.
The information is planned to be collected to enable EPA to carry
out its obligations under the Act to determine which sources in Indian
country are subject to the Federal Operating Permits Program and what
requirements should be included in permits for sources subject to the
program. Responses to the collection of information will be mandatory
under Sec. 71.5(a) which requires owners or operators of sources
subject to the program to submit a timely and complete permit
application and under Secs. 71.6 (a) and (c) which require that permits
include requirements related to recordkeeping and reporting. As
provided in 42 U.S.C. 7661(e), sources may assert a business
confidentiality claim for the information collected under section
114(c) of the Act.
Today's proposal would impose information collection request
requirements on approximately 100 sources in Indian country. On a per
source basis, the burden would be identical to the burden for sources
currently subject to part 71 requirements. In the current Information
Collection Request (ICR) document for the part 71 rule, EPA estimates
that the annual burden per source is 329 hours, and the annual burden
to the Federal government is 243 hours per source. Therefore, the
impact of today's proposal would be that sources will incur an
additional 32,900 burden hours per year, and EPA will incur an
additional 24,300 burden hours per year. The total annualized cost
would be $18,425 per source or $1,842,500.
Today's rule imposes no burden on State and local agencies. Burden
means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information; processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An Agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations are
listed in 40 CFR part 9 and 48 CFR Chapter 15.
E. Unfunded Mandates Reform Act
Today's action imposes no costs on State, local, and Tribal
governments. It changes the Agency's approach to issuing permits to
sources in Indian country and eliminates the requirement that Indian
Tribes establish their jurisdiction prior to EPA administering the
Federal operating permits program in Indian country.
The EPA has estimated in the ICR document that the Federal
operating permits program rule promulgated in July 1996 would cost the
private sector $37.9 million per year. See 61 FR 34202, 34228 (July 1,
1996). In the ICR, EPA estimates costs based on sources that would be
subject to part 71 permitting requirements in eight States, but
overestimates the number of these sources for purposes of simplifying
the analysis. See 61 FR 34202, 34227 (July 1, 1996). The overestimate
of the number of sources is nearly as large as the number of new
sources covered in today's proposal. Consequently, EPA believes today's
proposal would increase the direct cost of the part 71 rule for
industry to $38.3 million. This estimate is based on the average cost
of compliance per source and the number of sources in Indian country
that were not accounted for in the original estimate. The EPA has
determined that today's action does not contain a Federal mandate that
may result in expenditures of $100 million or more for State, local,
and Tribal governments, in the aggregate, or the private sector, in any
1 year. Therefore, the Agency concludes that it is not required by
section 202 of the Unfunded Mandates Reform Act of 1995 to provide a
written statement to accompany this regulatory action.
List of Subjects 40 CFR Part 71
Environmental protection, Operating permits, Indian Tribes.
Dated: March 17, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as set forth
below.
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
2. Section 71.2 is proposed to be amended by revising paragraphs
(1) and (2) of the definition of ``Affected State'' and by adding the
definition of ``Indian country'' as follows:
Sec. 71.2 Definitions.
* * * * *
Affected States are:
(1) All States and areas within Indian country subject to a part 70
or part 71 program and that are contiguous to the State or the area
within Indian country in which the permit, permit modification, or
permit renewal is being proposed; or that are within 50 miles of the
permitted source. A Tribe shall be treated in the same manner as a
State under this paragraph (1) only if EPA has
[[Page 13753]]
determined that the Tribe is an eligible Tribe.
(2) The State or area within Indian country subject to a part 70 or
part 71 program in which a part 71 permit, permit modification, or
permit renewal is being proposed. A Tribe shall be treated in the same
manner as a State under this paragraph (2) only if EPA has determined
that the Tribe is an eligible Tribe.
* * * * *
Indian country means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
* * * * *
2. Section 71.4 is proposed to be amended by revising paragraph (a)
introductory text, revising paragraph (b), revising paragraph (f),
revising paragraph (h), revising paragraph (i) introductory text, and
revising the first sentence of paragraph (j), to read as follows:
Sec. 71.4 Program implementation.
(a) Part 71 programs for States. The Administrator will administer
and enforce a full or partial operating permits program for a State
(excluding Indian country) in the following situations:
* * * * *
(b) Part 71 programs for Indian country. By November 15, 1997, the
Administrator will administer and enforce an operating permits program
in Indian country, as defined in Sec. 71.2, when an operating permits
program for the area which meets the requirements of part 70 of this
chapter has not been granted full or interim approval by the
Administrator. The Administrator may administer an operating permits
program in Indian country in advance of that date.
(1) [Reserved].
(2) The effective date of a part 71 program in Indian country shall
be November 15, 1997.
(3) Notwithstanding paragraph (b)(2) of this section, the
Administrator, in consultation with the governing body of the affected
Indian Tribe, may adopt an earlier effective date.
(4) Notwithstanding paragraph (i)(2) of this section, within 2
years of the effective date of the part 71 program in Indian country,
the Administrator shall take final action on permit applications from
part 71 sources that are submitted within the first full year after the
effective date of the part 71 program.
* * * * *
(f) Use of selected provisions of this part. The Administrator may
utilize any or all of the provisions of this part to administer the
permitting process for individual sources or take action on individual
permits, or may adopt, through rulemaking, portions of a State or
Tribal program in combination with provisions of this part to
administer a Federal program for the State or in Indian country in
substitution of or addition to the Federal program otherwise required
by this part.
* * * * *
(h) Effect of limited deficiency in the State or Tribal program.
The Administrator may administer and enforce a part 71 program in a
State or within Indian country even if only limited deficiencies exist
either in the initial program submittal for a State or eligible Tribe
under part 70 of this chapter or in an existing State or Tribal program
that has been approved under part 70 of this chapter.
(i) Transition plan for initial permits issuance. If a full or
partial part 71 program becomes effective in a State or within Indian
country prior to the issuance of part 70 permits to all part 70 sources
under an existing program that has been approved under part 70 of this
chapter, the Administrator shall take final action on initial permit
applications for all part 71 sources in accordance with the following
transition plan.
* * * * *
(j) Delegation of part 71 program. The Administrator may promulgate
a part 71 program in a State or Indian country and delegate part of the
responsibility for administering the part 71 program to the State or
eligible Tribe in accordance with the provisions of Sec. 71.10;
however, delegation of a part of a program will not constitute any type
of approval of a State or Tribal operating permits program under part
70 of this chapter. * * *
* * * * *
3. Section 71.8 is proposed to be amended by revising the first
sentence of paragraph (a) and revising paragraph (d) as follows:
Sec. 71.8 Affected State review.
(a) Notice of draft permits. When a part 71 operating permits
program becomes effective in a State or within Indian country, the
permitting authority shall provide notice of each draft permit to any
affected State, as defined in Sec. 71.2 on or before the time that the
permitting authority provides this notice to the public pursuant to
Sec. 71.7 or 71.11(d) except to the extent Sec. 71.7(e) (1) or (2)
requires the timing of the notice to be different. * * *
* * * * *
(d) Notice provided to Indian Tribes. The permitting authority
shall provide notice of each draft permit to any federally recognized
Indian Tribe in an area contiguous to the jurisdiction in which the
part 71 permit is proposed or is within 50 miles of the permitted
source and whose air quality may be affected by the permitting action.
[FR Doc. 97-7219 Filed 3-20-97; 8:45 am]
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