ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 71
[FRL - ]
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of opportunity for public
hearing.
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.
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.
DATES: Comments. Comments on the proposed regulations must
be received by EPA's Air Docket on or before [45 days after
publication in the Federal Register].
Public Hearing. A public hearing is scheduled for
10:00 a.m., on [30 days after publication in the Federal
Register] at the address listed below. Requests to present
oral testimony must be received by [15 days after
publication in the Federal Register], 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. 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.
ADDRESSES: 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. 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.
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, D.C. 20460. A reasonable fee may be charged
for copying.
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
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
section 71.3(a) of the rule, the definition of "Indian
country" in section 71.2 of the rule, and section 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. Reference Documents
B. Office of Management and Budget (OMB) Review
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 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 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.
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 section 71.1, section 71.4(a),
section 71.4(b), sections 71.4(b)(2)-(4), section 71.4(f),
section 71.4(h)-(j), section 71.8(a), and section 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 section 71.4(b)(1)
that referred to Tribal assertion of jurisdiction would 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
section 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 section 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 section
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 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 OMB. An Information
Collection Request (ICR) document has been prepared by EPA
(ICR Number 1713.03) and a copy may be obtained from Sandy
Farmer, Regulatory Information Division, U.S. Environmental
Protection Agency (2137), 401 M Street, S.W., 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 section 71.5(a) which requires owners or operators of
sources subject to the program to submit a timely and
complete permit application, and under sections 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.
The Agency requests comments on the need for this
information, the accuracy of the provided burden estimates,
and any suggested methods for minimizing respondent burden,
including through the use of automated collection
techniques. Send comments on the ICR to the Director,
Regulatory Information Division, U.S. Environmental
Protection Agency (2136), 401 M Street, S.W., Washington, DC
20460, and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th Street,
N.W., Washington, DC 20503, marked "Attention Desk Office
for EPA." Include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after [insert date of publication in
the Federal Register], a comment to OMB is best assured of
having its full effect if OMB receives it by [insert date 30
days after publication in the Federal Register]. The final
rule will respond to any OMB or public comments on the
information collection requirements contained in this
proposal.
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
Operating permits, Indian Tribes.
Date Carol M. Browner
Administrator
Billing Code: 6560-50-P
For the reasons set out in the preamble, title 40,
chapter I of the Code of Federal Regulations is 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:
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 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 paragraph (j),
to read as follows:
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 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 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:
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 71.2 on or before the time that the permitting
authority provides this notice to the public pursuant to
71.7 or 71.11(d) except to the extent 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.
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