[Federal Register Volume 59, Number 216 (Wednesday, November 9, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-27683] [[Page Unknown]] [Federal Register: November 9, 1994] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [AD-FRL-5103-8] Clean Air Act Final Interim Approval of Operating Permits Programs in Washington AGENCY: Environmental Protection Agency (EPA). ACTION: Final interim approval. ----------------------------------------------------------------------- SUMMARY: EPA is promulgating interim approval of the operating permits program submitted by the State of Washington for the purpose of complying with Federal requirements for an approvable State program to issue operating permits to all major stationary sources and to certain other sources. The Washington program includes submittals by the Washington Department of Ecology (Ecology), the Washington Energy Facility Site Evaluation Council (EFSEC), and seven local air authorities: the Benton-Franklin Counties Clean Air Authority (BFCCAA), the Northwest Air Pollution Authority (NWAPA), the Olympic Air Pollution Control Authority (OAPCA), the Puget Sound Air Pollution Control Agency (PSAPCA), the Spokane County Air Pollution Control Authority (SCAPCA), the Southwest Air Pollution Control Authority (SWAPCA), and the Yakima County Clean Air Authority (YCCAA). EFFECTIVE DATE: December 9, 1994. ADDRESSES: Copies of Washington's submittal and other supporting information used in developing the final interim approval are available for inspection during normal business hours at the following location: U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle, Washington. FOR FURTHER INFORMATION CONTACT: Elizabeth Waddell, U.S. Environmental Protection Agency, 1200 Sixth Avenue, AT-082, Seattle, Washington 98101, (206) 553-4303 SUPPLEMENTARY INFORMATION: I. Background and Purpose Introduction Title V of the Clean Air Act Amendments of 1990 (sections 501-507 of the Clean Air Act (``the Act'')) and implementing regulations at 40 Code of Federal Regulations (CFR) part 70, require that States develop and submit operating permits programs to EPA by November 15, 1993, and that EPA act to approve or disapprove each program within one year after receiving the submittal. EPA's program review occurs pursuant to Section 502 of the Act and the Part 70 regulations, which together outline criteria for approval or disapproval. Where a program substantially, but not fully, meets the requirements of Part 70, EPA may grant the program interim approval for a period of up to two years. If EPA has not fully approved a program by two years after the November 15, 1993 date, or by the end of an interim program, it must establish and implement a Federal program. On August 18, 1994, EPA proposed interim approval of the operating permits program for Ecology, EFSEC, NWAPA, OAPCA, PSAPCA, SCAPCA, and SWAPCA. The same Federal Register notice proposed disapproval of the programs for BFCCAA and YCCAA and, in the alternative, interim approval of these programs if certain regulatory changes were made before EPA took final action on the proposal. See 59 FR 42552 (Aug. 18, 1994). EPA received eleven public comments on the proposal. In this notice EPA is taking final action on its proposal to promulgate interim approval of the operating permits program for Ecology, EFSEC, and all seven local air authorities in Washington (collectively, ``the local air authorities''). II. Final Action and Implications A. Analysis of State Submission and Response to Public Comments Both BFCCAA and YCCAA made the regulatory changes necessary to receive interim approval. The board of directors of BFCCAA repealed BFCCAA Reg. 1, Secs. 4.01, 4.02, 4.04, 4.05, 4.06, and 4.07 on August 18, 1994. The revised regulations were submitted to the Washington State register and became effective on September 23, 1994. On September 14, 1994, the board of directors of YCCAA repealed YCCAA Reg. 1, Secs. 6.02, 6.04, 6.05, 6.07, and 6.08; revised YCCAA Reg. 1, Sec. 12.01 to provide that the identified provisions of the Washington State Administrative Code are incorporated by reference unless the YCCAA regulation is more stringent; Revised YCCAA Reg. 1, Sec. 12.02 so that the identified provisions of Federal law are incorporated by reference. The revised regulations were submitted to the Washington State register and became effective on October 22, 1994. The revised regulations for BFCCAA and YCCAA were submitted by the State of Washington on September 29, 1994 as an amendment to the Washington Title V program. EPA received eleven public comments on the proposed interim approval of the Washington program, including comments from the Washington Department of Ecology and the Puyallup Tribe of Indians. No commenters objected to approval of the Washington permit program, although one commenter requested that the program not be approved before November 15, 1994 because of the substantial time needed to complete permit applications. 1. Insignificant Emissions Units Most of the commenters stated that the insignificant emissions units provisions of the State operating permit regulation (WAC 173-401- 200(16) and 173-401-530) should be granted full approval rather than interim approval. These commenters disagreed with EPA's interpretation that no unit for which there is an applicable requirement could be defined as ``insignificant.'' They further stated that such an interpretation would prevent Washington and most other States from granting any relief for insignificant emission units, which they argue is inconsistent with the intent of Part 70. The result would be that all emissions, regardless of size and environmental impact, would be subject to all Part 70 requirements, including periodic monitoring, reporting, recordkeeping and compliance certification. Permit applications would have to describe emissions from all units and responsible officials would be required to conduct extensive due diligence efforts in order to certify the compliance of emission units that emit very small quantities of pollutants. Commenters emphasized that this was an unreasonable regulatory burden that would result in excessive paperwork and would likely decrease the ability of permitting agencies to effectively enforce Title V permits because inspectors would have to read through numerous pages of specifications and requirements to determine which emission units actually have permit conditions. EPA maintains, however, that Title V and the Part 70 rules preclude the exemption of emission units as ``insignificant'' when such units are subject to an applicable requirement. Section 504(a) of the Act requires that ``each permit issued under this title shall include enforceable emission limitations and standards, a schedule of compliance, a requirement that the permittee submit to the permitting authority, no less often than every 6 months, the results of any required monitoring, and such other conditions as are necessary to assure compliance with applicable requirements of the Act, including the requirements of the applicable implementation plan.'' (emphasis added). Section 70.6(a)(1) provides that each permit shall include ``emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance.'' Furthermore, Sec. 70.6(c)(1) requires that each permit shall contain ``compliance, certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit.'' The fact that an emission unit may emit only small quantities of pollutants does not provide a basis to exempt it from the fundamental statutory requirement that the permit specifically include, and ensure compliance with, all applicable requirements. EPA understands the implementation concerns expressed by the commenters but disagrees that the Part 70 permit requirements need be unduly burdensome for these smaller emission units with only generally applicable requirements. For example, the requirement to ``describe'' emissions of regulated pollutants in a permit application is not a requirement to quantify those emissions. These smaller units can be aggregated and described in very general terms (e.g. all valves and flanges not otherwise specified). Furthermore, the requirement to include in a permit compliance certification, test, monitoring, reporting, and recordkeeping sufficient to assure compliance with the terms and conditions of the permit does not impose the same level of rigor with respect to small emission units that do not require extensive testing or monitoring in order to determine compliance with the applicable requirements. Several commenters also stated it was unreasonable and inappropriate to require Washington to change its provisions for insignificant emission units at this time because this issue is part of ongoing litigation over the part 70 rules and may be revised. EPA acknowledges that it may be both burdensome and confusing if the Part 70 rules on insignificant emission units are changed and Ecology is required to revise its rules twice, once to meet EPA's current objection and later if part 70 is revised. EPA has no legal mechanism, however, to either grant a longer interim approval period or to grant full approval under the current part 70 rules based on a possibility that the part 70 regulations may change as a result of notice and comment rulemaking sometime in the future. 2. Definition of Title I Modification In its August 18, 1994 Federal Register notice proposing interim approval for the Washington program, EPA advised the State that it would be required to revise its definition of the term ``title I modification'' to obtain full EPA approval: Revise WAC 173-401-200(33), the definition of ``Title I modification,'' to include any modification permitted through a minor source preconstruction permit. The EPA believes the phrase ``modification under an[y] provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) is best interpreted to mean literally any change at a source that would trigger permitting authority review under regulations approved or promulgated under Title I of the Act. This would include State preconstruction review programs approved by EPA as part of the State Implementation Plan under section 110(a)(2)(C) of the Clean Air Act and regulations addressing source changes that trigger the application of NESHAP established pursuant to section 112 of the Act prior to the 1990 amendments. The EPA intends to revise its criteria for interim approval in 40 CFR 70.4(d) prior to taking final action on this proposal to grant Washington interim approval so that interim approval may be granted to State programs like Washington's that currently allow a more narrow definition of Title I modification. (59 FR 42557). On August 29, 1994, EPA proposed revisions to the interim approval criteria in 40 CFR 70.4(d) to, among other things, allow State programs with a more narrow definition of ``title I modification'' to receive interim approval (59 FR 44572). The Agency also solicited public comment on the proper interpretation of ``title I modifications'' (59 FR 44573). The Agency stated that if, after considering the public comments, it continues to believe that the phrase ``title I modifications'' should be interpreted as including minor NSR changes, it would revise the interim approval criteria as needed to grant states that adopted a narrower definition interim approval. In response to EPA's proposed interim approval of the Washington program, several commenters questioned whether the State's adoption of a narrower ``title I modification'' definition justified anything other than full approval. These commenters asserted that Washington's current definition is the correct one under the existing regulations and the Clean Air Act and that a broader interpretation including minor NSR would be wholly unworkable. One commenter, the National Environmental Development Association/ Clean Air Regulatory Project (NEDA/CARP), further contended that EPA was using the August 29, 1994 proposed rule to effectively require revision of a State operating permits program that was otherwise consistent with current Part 70 and that such an approach was unauthorized, not supported by the Clean Air Act or Part 70, and poor public policy. NEDA/CARP also suggested that EPA's August 18, 1994 proposal to require Washington to adopt a broader interpretation of ``title I modification'' to obtain full approval indicated that the Agency does not intend to consider public comment on the August 29, 1994 proposal that solicits comments on the proper interpretation of ``title I modifications.'' As noted in the August 18, 1994 Federal Register notice, proposing interim approval of Washington's operating permit program, EPA intended to finalize its revisions to the interim approval criteria under 40 CFR 70.4(d) before taking final action on part 70 programs submitted by the States. However, that is no longer possible. Publication of the proposed revisions was delayed until August 29, 1994, and EPA received several requests to extend the public comment period.1 Given the importance of the issues in that rulemaking to States, sources and the public, but mindful of the need to take action quickly, EPA agreed to extend the comment period until October 28, 1994 (see 59 FR 52122 (October 14, 1994)). Consequently, final action to revise the interim approval criteria will not occur before the deadline for EPA action on State programs, such as Washington's, that were submitted on or before November 15, 1993.2 --------------------------------------------------------------------------- \1\EPA originally established a 30-day public comment period for the August 29, 1994 proposal. In response to several requests for extension, however, EPA agreed to allow an additional thirty days for public comments. See 59 FR 52122 (October 14, 1994). \2\Section 502(d) requires, in relevant part, that ``[n]ot later than 1 year after receiving a program, and after notice and opportunity for public comment, the Administrator shall approve or disapprove such program, in whole or in part.'' --------------------------------------------------------------------------- EPA believes it would be inappropriate to delay action on Washington's program, perhaps for several months, until final action is taken on the interim approval revisions. EPA also believes it would be inappropriate to grant interim approval to Washington on this issue before final action is taken to revise the current interim approval criteria of 40 CFR 70.4(b) to provide a legal basis for such an interim approval. Until the revision to the interim approval criteria is promulgated, EPA's choices are to either fully approve or disapprove the narrower ``title I modification'' definition in States such as Washington. For the reasons set forth below, EPA believes that disapproving such programs at this time solely because of this issue would be inappropriate. First, EPA has not yet conclusively determined that a narrower definition of ``title I modifications'' is incorrect and thus a basis for disapproval (or even interim approval). The Agency has received numerous comments on this issue as a result of the August 29, 1994 Federal Register notice, and EPA cannot and will not make a final decision on this issue until it has evaluated all of the comments. Second, EPA believes that the Washington program should not be disapproved because EPA itself has not yet been able to resolve this issue through rulemaking. Moreover, disapproving programs from States such as Washington that submitted their programs to EPA on or before the November 15, 1993 statutory deadline could lead to the perverse result that these States would receive disapprovals, while States which were late in submitting programs could take advantage of revised interim approval criteria if and when these criteria become final. In effect, States would be severely penalized for having made timely program submissions to EPA. Finally, disapproval of a State program for a potential problem that primarily affects permit revision procedures would delay the issuance of Part 70 permits, hampering State/Federal efforts to improve environmental protection through the operating permits system. For the reasons mentioned above, EPA is approving the Washington program's use of a narrower definition of ``title I modifications'' at this time.3 However, should EPA in the interim approval criteria rulemaking make a final determination that such a narrow definition of ``title I modification'' is incorrect and that a revision of the interim approval criteria is warranted, the Agency will propose further action on Washington's program so that the State's definition of ``title I modifications'' could become grounds for interim approval.4 A State program like Washington's that receives full approval of its narrower ``title I modification'' definition pending completion of EPA's rulemaking must ultimately be placed on an equal footing with States that receive interim approval in later months under any revised interim approval criteria because of the same issue. Converting the full approval on this issue to an interim approval after EPA completes its rulemaking will avoid this inequity. EPA anticipates that an action to convert the full approval on the ``title I modification'' issue to an interim approval would be effected through an additional rulemaking, so as to ensure that there is adequate notice of the change in approval status. --------------------------------------------------------------------------- \3\For similar reasons, the EPA will not construe 40 CFR 70.7(e)(2)(i)(A)(3) to prohibit Washington from allowing minor NSR changes to be processed as minor permit modifications. See 59 FR 44573-44574. \4\State programs with a narrower ``title I modifications'' definition that are acted upon by EPA after an Agency decision that such a narrower definition is inappropriate would be considered deficient, but would be eligible for interim approval under revised 40 CFR 70.4(b). --------------------------------------------------------------------------- 3. Section 112(g) Modifications One commenter stated that EPA has proceeded in a confusing and unauthorized fashion by proposing a construction ban on section 112(g) modifications and that EPA should not delegate section 112(g) authority until it completes its own rulemaking. EPA did not propose a construction ban but simply noted the provision of section 112(g)(2) of the Act which prohibits the modification, construction, or reconstruction of a source after the date of approval of a Title V program unless maximum achievable control technology (MACT), determined on a case-by-case basis if necessary, is met. Although section 112(g)(1) requires the Administrator to publish guidance with respect to the implementation of section 112(g), the plain meaning of section 112(g)(2) is that it takes effect on the effective date of the Title V program in any State. EPA has acknowledged that States may encounter difficulties implementing section 112(g) prior to the promulgation of final EPA regulations (see June 28, 1994 guidance memorandum entitled ``Guidance for Implementation of Section 112(g)'' signed by John Seitz). EPA has issued guidance, in the form of a proposed rule implementing 112(g), which may be used to determine whether a physical or operational change at a source is not a modification either because it is below de minimis levels or because it has been offset by a decrease of more hazardous emissions (see 59 FR 15004 (April 1, 1994)). EPA believes the proposed rule provides sufficient guidance to permitting authorities and sources until such time as EPA's section 112(g) rulemaking is finalized. Although EPA does not have a program designed specifically to implement section 112(g), Washington does have a preconstruction review program that could serve as a procedural vehicle for rendering federally enforceable a case-by-case MACT or offset determination. Although the scope of Washington's program may not cover every situation where a section 112(g) modification, construction, or reconstruction may occur, it would cover most circumstances. In order to provide a federally-recognized mechanism to implement section 112(g) on an interim basis until final EPA regulations are promulgated, EPA intends to propose approval of Washington's preconstruction review program in a separate Federal Register notice. Final approval of Washington's preconstruction review program, and not this final approval of its Title V operating permit program, would represent EPA's delegation of section 112(g) authority to the State. 4. Limitations on Potential To Emit One commenter objected to EPA's requirement that OAPCA revise its definition of ``potential to emit'' to include only those limitations on a source's capacity to emit that are federally enforceable, arguing that it requires local authorities to ignore their own and other State- enforceable limitations. The cited definition appears in OAPCA Reg. 1, Art. 6, which addresses the operating permit program. As such, the definition of potential to emit must be consistent with the Part 70 rules which require, for the purposes of the Title V operating permit program, that all limits on potential to emit be federally enforceable. EPA does not place any restrictions on a local authority's use of non-Federally enforceable emission limits on non-Title V sources or on establishing additional, non-federally enforceable emission limits on Title V sources. However, in order for such limitations to be recognized for purposes of the Federal Clean Air Act, they must be enforceable by EPA and by citizens under the Act. 5. Scope of the Program--Tribal Lands EPA proposed to exclude from the Washington Title V program, Title V sources located on any trust or restricted lands within the Puyallup 1873 Survey Area or any other lands within the exterior reservation boundaries of a Federally-recognized Indian Tribe because Ecology did not establish that it had jurisdiction over sources on these lands. EPA proposed to apply the Ecology and PSAPCA Title V program to non-trust lands within the 1873 Survey Area of the Puyallup Reservation because Ecology and PSAPCA submitted legal analysis demonstrating their authority to administer environmental laws on these lands. See 59 FR at 42554. Ecology and PSAPCA presented legal analysis based on the Washington Indian (Puyallup) Land Claims Settlement, which expressly allocates jurisdiction according to a settlement agreement between the Tribe, Federal, State and local governments and certain private property owners. 25 U.S.C. 1773-1773j. The settlement agreement, in turn, gives Federal, State and local governments exclusive jurisdiction for the administration of environmental laws on all non-trust lands within the 1873 Survey Area and gives the Federal government and the Tribe exclusive jurisdiction for the administration of environmental laws on all trust and restricted lands within the Area. The Puyallup Tribe of Indians commented that EPA correctly applied the settlement agreement in its proposed determination not to approve the application of Washington's Title V program to trust and restricted lands within the 1873 Survey Area. The Tribe also commented that Washington's request for authority over non-trust lands within the Survey Area was consistent with the settlement agreement. In today's action, EPA finalizes its proposed determination that the Washington Title V program apply to Title V sources located on non- trust lands within the Survey Area. During the public comment period, Ecology commented ``that [it] has requisite authority to enforce and run the Air Operating Permits Program on tribal lands.'' Ecology's comments do not appear to challenge EPA's proposed allocation of jurisdiction over the Puyallup Reservation. Rather, Ecology appears to contend that EPA has erred in proposing to exclude application of the State's Title V program to Title V sources within the exterior reservation boundaries of all other Federally-recognized Tribes located within the State. In support of this contention, Ecology generally asserts that Ecology has ``necessary jurisdiction to regulate Title V sources throughout the state.'' Ecology also appears to be alleging that, at a minimum, it has authority over non-Indian owned Title V sources on non- Indian owned fee lands within reservations. Ecology states that the law presumes it has authority over such sources and that the legal opinion accompanying its Title V program submittal should be interpreted to apply consistently at least to all fee lands within the exterior boundaries of the State. Ecology comments that ``[c]ourts have only found for tribal jurisdiction when the weight of tribal interests is great enough'' and that ``[s]everal potential major sources owned by non-[I]ndians with no tribal relationships can be found in the State on fee lands within reservations.'' To obtain Title V program approval a State must demonstrate that it has adequate authority to issue permits and assure compliance by all sources required to have permits under Title V with each applicable requirement under the Act. See Section 502(b)(5) of the Act; 40 CFR 70.4(b)(3)(i). The authority must include: A legal opinion from the Attorney General from the State or the attorney for those State, local, or interstate air pollution control agencies that have independent counsel, stating that the laws of the State, locality, or interstate compact provide adequate authority to carry out all aspects of the program. This statement shall include citations to the specific stat[ut]es, administrative regulations, and, where appropriate, judicial decisions that demonstrate adequate authority. 40 CFR 70.4(b)(3). Thus, the Act requires States to support their Title V program submittals with a specific showing of adequate legal authority over all regulated sources, including sources located on lands within Indian reservations. EPA concludes that Ecology has not adequately demonstrated authority to regulate Title V sources owned by Tribal members or located on their territory or trust lands. Ecology's inability to reach into Indian country and apply environmental regulation to Tribal members, their territory or trust lands is not a new issue. Ecology previously asserted regulatory jurisdiction over Tribal lands in a submittal to EPA under the Resource Conservation and Recovery Act program. EPA declined to apply the program to waste-related activities on Tribal lands and its decision was upheld on judicial review. See Washington Department of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985). The court's conclusion was informed by ``well-settled principles of Indian law'' including the principle that ``States are generally precluded from exercising jurisdiction over Indians in Indian country unless Congress has clearly expressed an intention to permit it.'' Washington Department of Ecology, 752 F.2d at 1469-1479 (citations omitted); see also United States v. Mazurie, 419 U.S. 544, 556 (1975) (the inherent sovereign authority of Indian Tribes extends ``over both their members and their territory''); Montana v. United States, 450 U.S. 544, 556-557 (1981) (Tribes generally have extensive authority to regulate activities on lands that are held by the United States in trust for the Tribe). Washington has also asserted jurisdiction over underground injection activities on Indian lands under the Safe Drinking Water Act, claiming its laws are applicable throughout the borders of the State. EPA concluded that Washington could not regulate these activities on Indian lands because it had failed to demonstrate that its authority to regulate was not preempted by Federal law, and that the State regulation would not infringe on Tribal self-government. 53 FR 43080- 43081-43082 (Oct. 25, 1988); see White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); California v. Cabazon Band of Mission Indians, 408 U.S. 202 (1987). Ecology contends that EPA should nevertheless presume that Ecology at least has authority over non-Indian owned Title V sources on fee lands within the exterior boundaries of Federally-recognized Indian reservations. EPA concludes that Ecology has also failed to adequately demonstrate authority over Title V sources located on fee lands within reservations. EPA's regulations require specific evidence of legal authority. Adequate authority is especially necessary in these circumstances where, as set out below, Supreme Court case law recognizes inherent sovereign Tribal authority to regulate activities on fee lands where the conduct may have a serious and substantial impact on Tribal health or welfare, air pollution activities generally pose serious health risks, EPA has proposed to interpret the Tribal authority provisions of the Act as granting Tribes authority over air pollution activities on fee lands within reservations, and Federal Indian law and policies direct EPA to treat Tribes as sovereigns and to consider Tribal interests in taking Federal actions that affect Tribes. The Supreme Court has indicated that a Tribe ``may * * * retain inherent power to exercise civil authority over the conduct of non- Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the * * * health or welfare of the tribe.'' Montana, 450 U.S. at 566. A Tribe's inherent authority must be determined on a case-by-case basis, considering whether the conduct being regulated has a direct effect on the health or welfare of the Tribe substantial enough to support the Tribe's jurisdiction over non- Indians. See Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989). The case law addressing a Tribe's authority over non-members on non-Indian owned fee lands within the exterior boundaries of a reservation must be viewed in light of the concerns presented by air pollution activities and, importantly, the 1990 Amendments to the Act. In 1990, Congress broadly addressed Tribal authority under the Act, adding sections 110(o) and 301(d) to the Act.\5\ Section 301(d)(2) of the Act authorizes EPA to issue regulations specifying those provisions of the Act for which it is appropriate ``to treat Indian Tribes as States.'' Further, it addresses the potential jurisdictional scope of Tribal programs under the Act, authorizing EPA to treat Tribes in the same manner as States for ``the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction.'' Section 301(d)(2)(B) of the Act. In addition, section 110(o) provides that Tribal implementation plans under the Act ``shall become applicable to all areas * * * located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation.'' --------------------------------------------------------------------------- \5\In the 1977 Amendments to the Act, Congress gave Tribes authority to redesignate ``[l]ands within the exterior boundaries of reservations'' for purposes of the Prevention of Significant Deterioration of Air Quality program. Section 164(c) of the Act. --------------------------------------------------------------------------- EPA has proposed to interpret these and other provisions of the Act as granting Tribes--approved by EPA to administer Clean Air Act programs in the same manner as States--authority over all air resources within the exterior boundaries of a reservation for such programs. EPA has explained that ``[t]his grant of authority by Congress would enable such Tribes to address conduct on all lands, including non-Indian owned fee lands, within the exterior boundaries of a reservation.'' 59 FR 43956, 43958-43960 (Aug. 25, 1994) (legal rationale). Further, EPA observed that even without this proposed grant of authority, Indian Tribes would very likely have inherent authority over all activities within reservation boundaries, including non-Indian owned activities on fee lands, that are subject to regulation under the Act. The high mobility of air pollutants, resulting area-wide effects and the seriousness of such impacts would all tend to support such inherent Tribal authority. See 59 FR 43958, n. 5; see also 56 FR 64876 at 64877-64879 (Dec. 12, 1991). In fact, Congress relied on the serious harm posed by air pollution in adopting the Act. Congress found that ``the growth in the amount and complexity of air pollution * * * has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and deterioration of property and hazards to air and ground transportation.'' Section 101(a)(2) of the Act; see also, e.g., H.R. Rep. No. 490, 101st Cong. 2d Sess. (1990); S.Rep. No. 228, 101st Cong., 1st Sess. (1989). Ecology advances various reasons why it makes ``practical sense'' for EPA to allow Ecology to regulate all Title V sources throughout the State, including those within reservation boundaries. For example, Ecology contends that: (1) Ecology is more protective of air quality than minimum Federal standards require and therefore regulation by EPA or the Tribe in lieu of the State would represent backsliding to minimum Federal standards and may give reservation residents inequitable protection; (2) The nature of air pollution transport and impacts renders it undesirable to have different regulatory bodies within the State and within reservations; (3) Non-Indian populations will be impacted because of the proximity of trust and fee lands as well as the proximity of reservation lands and non-reservation populations; and (4) The State is well-situated to regulate all Title V sources, having extensive experience with air quality protection and a comprehensive, effective program. These arguments do not provide adequate evidence to conclude that Washington's program should apply to Title V sources within the exterior reservation boundaries of Federally-recognized Indian Tribes or, in particular, non-Indian activities on fee lands. As indicated previously, the legal test for determining whether a Tribe has inherent sovereign authority over non-Indian activities centers on the conduct at issue. That the State may effectively regulate the conduct in lieu of a Tribe does not defeat Tribal sovereign interests. Otherwise, inherent Tribal sovereignty would be determined not by the Tribal interests at stake but by a State's willingness to infringe upon Tribal domain. Nor does the fact that Ecology has adopted requirements more stringent than the federal minimum support Ecology's claim of authority. Ecology's policy choices about the nature and desirability of State-wide air quality management cannot displace any inherent authority Tribes may have or any authority that Congress may have granted to Tribes under the Clean Air Act. Tribes may very well have inherent sovereign authority over air pollution activities on fee lands and may exercise that authority to regulate more stringently than Federal law requires. In addition, the adoption of sections 301(d) and 110(o) of the Act evince Congressional intent to allow Tribes to implement Clean Air Act programs in the same manner as States. Congress gave EPA the responsibility of identifying the programs under the Act for which such treatment is appropriate. EPA's proposed Clean Air Act Tribal authority rule provides that Tribes, like States, will retain authority under the Act to impose requirements that are more stringent than Federal standards. 59 FR 43967. At the same time, Congress and EPA recognize that it may take time for Tribes to develop the air quality management expertise that States have amassed for 20 years. Nevertheless, Tribes must demonstrate adequate capability before EPA will authorize them to implement a Clean Air Act program. In reviewing tribal programs, EPA was directed by Congress to assure that the Tribe is ``capable * * * of carrying out the functions to be exercised in a manner consistent with the terms and purposes of [the Act] and all applicable regulations.'' Section 301(d)(2)(C) of the Act. Further, EPA will fill gaps in air quality protection in the interim period before tribal Clean Air Act programs are approved, as necessary to ensure that reservation air quality is adequately protected. 59 FR at 43960-43961. Ecology also relies on the legal opinion submitted with its Title V program stating that it applies consistently at least to all fee lands within the State. The opinion relied on by Ecology, however, does not specifically address or analyze the legal basis for application of the Title V program to sources on fee lands within the exterior reservation boundaries of Federally-recognized Tribes. Ecology submitted a specific, sound legal analysis to support its authority over the non- trust lands within the Puyallup 1873 Survey Area. Ecology now requests, without specific legal analysis, that EPA give Ecology authority over all Title V sources on all other Federally-recognized Indian reservations. EPA is guided by Federal and Agency Tribal policy in making decisions affecting Tribes. Washington Department of Ecology, 752 F.2d at 1471 & n. 5. As outlined below, these policies direct EPA to treat Tribes as sovereign governments not as subdivisions of States. On January 24, 1983, the President issued a Federal Indian Policy stressing two related themes: (1) That the Federal government will pursue the principle of Indian ``self-government'' and (2) that it will work directly with Tribal governments on a ``government-to-government'' basis. An April 29, 1994 Presidential Memorandum reiterated that the rights of sovereign Tribal governments must be fully respected. 59 FR 22951 (May 4, 1994). EPA's Tribal policies commit to certain principles, including the following: EPA recognizes Tribal Governments as sovereign entities with primary authority and responsibility for the reservation populace. Accordingly, EPA will work directly with Tribal Governments as the independent authority for reservation affairs, and not as the political subdivisions of States or other governmental units. * * * * * In keeping with the principal of Indian self-government, the Agency will view Tribal Governments as the appropriate non-Federal parties for making decisions and carrying out program responsibilities affecting Indian reservations, their environments, and the health and welfare of the reservation populace. Just as EPA's deliberations and activities have traditionally involved interests and/or participation of State Governments, EPA will look directly to Tribal Governments to play this lead role for matters affecting reservation environments. November 8, 1984 ``EPA Policy for the Administration of Environmental Programs on Indian Reservations''; Policy Reaffirmed by Administrator Carol M. Browner in a Memorandum issued on March 14, 1994. The United States also has a unique fiduciary relationship with Tribes, and EPA must consider Tribal interests in its actions. Nance v. EPA, 645 F.2d 701, 710 (9th Cir. 1981), cert. denied, Crow Tribe of Indians v. EPA, 454 U.S. 1081 (1981). Taken together, Federal law and policy counsel that it would be inappropriate for EPA to approve a State program covering activities within reservation boundaries without an adequately demonstrated legal basis. For the foregoing reasons, EPA concludes that, except for the non- trust lands identified within the 1873 Survey Area of the Puyallup reservation, Ecology has not adequately demonstrated that it has authority over Title V sources located on lands within the exterior reservation boundaries of Federally-recognized Tribes. In sum, Ecology relies on a general legal opinion and associated assertion that its authority should apply throughout the State, an undocumented claim that several potential major sources owned by non-Indians with no ``tribal relationships'' can be found in the State on fee lands within reservations, and several practical reasons why EPA should allow Washington's Title V program to regulate Title V sources within reservations and at least on fee lands within reservations. Title V plainly requires a specific demonstration of authority over regulated sources. Based on the Clean Air Act and Federal Indian law and policies, EPA concludes that Ecology has not adequately supported the application of its Title V program to reservations generally or to fee lands within reservation boundaries. 6. Criminal Authorities Ecology has also commented that the State currently has sufficient legal authority to recover criminal fines for false material statements and tampering with monitoring devices, as required by 40 CFR 70.11(a)(3)(iii). EPA disagrees. Ecology has submitted no additional authority to support this assertion. Instead, Ecology relies on the June 7, 1994, opinion of the Washington Attorney General, which EPA reviewed and considered before proposing interim approval of the Washington operating permits program in part because Washington law did not contain these necessary criminal authorities. As previously stated, EPA does not believe that the authorities discussed in the Attorney General's opinion are as broad as the authorities required by 40 CFR 70.11(a)(3)(iii) [see 59 FR 42552 (August 18, 1994)]. Therefore, EPA maintains its position that in order to receive full approval, Ecology must revise RCW 70.94.430 to incorporate the criminal authorities required by 40 CFR 70.11(a)(3)(iii). B. Options for Approval/Disapproval EPA is promulgating interim approval of the operating permits programs submitted by Ecology, EFSEC and the local air authorities on November 1, 1993.\6\ In order to receive full approval, the Washington permitting authorities must make the following changes:\7\ --------------------------------------------------------------------------- \6\The scope of this action does not include the issuance of permits or the enforcement of standards for sewage sludge incinerators under Section 405 of the Clean Water Act, 42 USC 1345. Delegation of sewage sludge incinerator permitting under the Clean Water Act, if requested by the State, would be considered in a separate administrative action (see 40 CFR Parts 122 and 501). \7\All changes required for Ecology to receive full approval must be made before EFSEC or any local air authority may receive full approval. In addition, in order to receive full approval, EFSEC and each local air authority must make such changes to their regulations as are necessary under applicable State and local law to incorporate into their respective regulations all required changes to Ecology's operating permits program. --------------------------------------------------------------------------- Ecology (1) Revise RCW 70.94.430(1) to provide for maximum criminal penalties of not less than $10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii). (2) Revise RCW 70.94.430 to allow the imposition of criminal penalties against any person who knowingly makes any false material statement, representation or certification in any form, in any notice or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (3) Revise RCW 70.94.430 to allow the imposition of criminal penalties against any person who knowingly renders inaccurate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (4) Delete WAC 173-401-735(3) entirely or revise it so that it refers to RCW 34.05.570(4)(b), rather than RCW 7.16.360. (5) Revise WAC 173-401-530(2) to define an emissions unit as insignificant only if it is subject to no federally enforceable applicable requirement and delete the last sentence in WAC 173-401- 200(16) (``These units and activities are exempt from permit program requirements except as provided in WAC 173-401-530.''). EFSEC No additional changes are necessary for the EFSEC operating permits program to receive full approval other than those that may be necessary under applicable State and local law to incorporate into EFSEC's regulations all changes to the State operating permits program required for full approval. BFCCAA No additional changes are necessary for the BFCCAA operating permits program to receive full approval other than those that may be necessary under applicable State and local law to incorporate into BFCCAA's regulations all changes to the State operating permits program required for full approval. NWAPA (1) Revise NWAPA Section 132.1 to provide for maximum criminal penalties of not less than $10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii). (2) Revise NWAPA Section 132 to allow the imposition of criminal penalties against any person who knowingly makes any false material statement, representation or certification in any form, in any notice or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (3) Revise NWAPA Section 132 to allow the imposition of criminal penalties against any person who knowingly renders inaccurate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (4) Revise NWAPA Sec. 133.1 to provide for maximum civil penalties of not less than $10,000 per day per violation in the case of violations of multiple standards by a specific emissions unit, as required by 40 CFR 70.11(a)(3). PSAPCA (1) Revise PSAPCA Reg. I, Sec. 3.13(a) to provide for maximum criminal penalties of not less than $10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii). (2) Revise PSAPCA Reg. I, Sec. 3.13 to allow the imposition of criminal penalties against any person who knowingly makes any false material statement, representation or certification in any form, in any notice or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (3) Revise PSAPCA Reg. I, Sec. 3.13 to allow the imposition of criminal penalties against any person who knowingly renders inaccurate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. OAPCA (1) Revise OAPCA Reg. 1, Sec. 3.27(b)(1) to provide for maximum criminal penalties of not less than $10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii). (2) Revise OAPCA Reg. 1, Sec. 3.27(b) to allow the imposition of criminal penalties against any person who knowingly makes any false material statement, representation or certification in any form, in any notice or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (3) Revise OAPCA Reg. 1, Sec. 3.27(b) to allow the imposition of criminal penalties against any person who knowingly renders inaccurate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (4) Revise the definition of ``potential to emit'' in OAPCA Reg. 1, Sec. 6.00 to provide that any physical or operational limitation on the capacity of a source to emit a pollutant shall be treated as part of its design only if the limitation is federally enforceable (see 40 CFR 70.2 (definition of potential to emit)). SCAPCA (1) Revise SCAPCA Reg. I, Sec. 2.04(B) to eliminate the limitation on the control officer's authority to request criminal penalties to cases in which a violator has failed to correct the violation after a ``reasonable and/or required period of time.'' (2) Revise SCAPCA Reg. I, Sec. 2.11(A)(1) to provide for maximum criminal penalties of not less than $10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii). (3) Revise SCAPCA Reg. I, Sec. 2.11(A) to allow the imposition of criminal penalties against any person who knowingly makes any false material statement, representation or certification in any form, in any notice or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. (4) Revise SCAPCA Reg. I, Sec. 2.11(A) to allow the imposition of criminal penalties against any person who knowingly renders inaccurate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation. SWAPCA No changes in the SWAPCA operating permits program are necessary to receive full approval other than those that may be necessary under applicable State and local law to incorporate into SWAPCA's regulations all required changes to Ecology's operating permits program. YCCAA Revise YCCAA Reg. I, Sec. 2.01, to delete the requirement that violations be ``knowing.'' Part 70 prohibits a permitting authority from including a mental state as an element of proof for civil violations (see 40 CFR 70.11(a)(i)). This interim approval, which may not be renewed, extends until November 9, 1996. During this interim approval period, the State is protected from sanctions and EPA is not obligated to promulgate a Federal permits program in the State. Permits issued during the interim approval period of Washington's operating permits program have full standing with respect to Part 70. In addition, the 180 day time period under State law for submittal of permit applications by subject sources and the three-year time period for processing initial permit applications begin upon interim approval. If the State fails to submit a complete corrective program for full approval by May 9, 1996, EPA will start an 18-month clock for mandatory sanctions. If the State fails to submit a corrective program that EPA finds complete before the expiration of that 18-month period, EPA must apply sanctions. If EPA disapproves a State's corrective program, and the State has not submitted a subsequent corrective program that EPA determines corrects the deficiencies of the disapproved program within 18 months after the disapproval, then EPA must apply sanctions. In both cases, if the State has not corrected the deficiency within six months after EPA applies the first sanction, a second sanction is required. In addition, discretionary sanctions may be applied where warranted any time after the end of the interim approval period if the State has failed to submit a complete corrective program or after EPA disapproves a submitted corrective program. If the EPA has not granted full approval to the State program by November 9, 1996, EPA must promulgate, administer, and enforce a Federal permits program for Washington upon expiration of the interim approval. III. Administrative Requirements A. Docket Copies of the State's submittal and other information relied upon for the final interim approval, including public comments on the proposal received and reviewed by EPA, are maintained in the docket at the EPA Regional Office. The docket is an organized and complete file of information submitted to, or otherwise considered by, EPA in the development of this final interim approval. The docket is available for public inspection at the location listed under the ADDRESSES section of this document. B. Executive Order 12866 The Office of Management and Budget has exempted this action from Executive Order 12866 review. C. Regulatory Flexibility Act EPA's actions under section 502 of the Act do not create any new requirements, but simply address operating permits programs submitted to satisfy the requirements of 40 CFR part 70. Because this action does not impose any new requirements, it does not have a significant impact on a substantial number of small entities. List of Subjects in 40 CFR Part 70 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements. Dated: October 28, 1994. Chuck Clark, Regional Administrator. Part 70, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 70--[AMENDED] 1. The authority citation for part 70 continues to read as follows: Authority: 42 U.S.C. 7401, et seq. 2. Part 70 is amended by adding a new appendix A as follows: Appendix A to Part 70--Approval Status of State and Local Operating Permits Programs This appendix provides information on the approval status of State and Local operating Permit Programs. Washington. (a) Department of Ecology (Ecology): submitted on November 1, 1993; effective on December 9, 1994; interim approval expires November 9, 1996. (b) Energy Facility Site Evaluation Council (EFSEC): submitted on November 1, 1993; effective on December 9, 1994; interim approval expires November 9, 1996. (c) Benton-Franklin Counties Clean Air Authority (BFCCAA): submitted on November 1, 1993 and amended on September 29, 1994; effective on December 9, 1994; interim approval expires November 9, 1996. (d) Northwest Air Pollution Authority (NWAPA): submitted on November 1, 1993; effective on December 9, 1994; interim approval expires November 9, 1996. (e) Olympic Air Pollution Control Authority (OAPCA): submitted on November 1, 1993; effective on December 9, 1994; interim approval expires November 9, 1996. (f) Puget Sound Air Pollution Control Agency (PSAPCA): submitted on November 1, 1993; effective on December 9, 1994; interim approval expires November 9, 1996. (g) Southwest Air Pollution Control Authority (SWAPCA): submitted on November 1, 1993; effective on December 9, 1994; interim approval expires November 9, 1996. (h) Spokane County Air Pollution Control Authority (SCAPCA): submitted on November 1, 1993; effective on December 9, 1994; interim approval expires November 9, 1996. (i) Yakima County Clean Air Authority (YCCAA): submitted on November 1, 1993 and amended on September 29, 1994; effective on December 9, 1994; interim approval expires November 9, 1996. [FR Doc. 94-27683 Filed 11-8-94; 8:45 am] BILLING CODE 6560-50-P