Clean Air Act Approval and Promulgation of State Implementation Plan for North Dakota; Revisions to the Air Pollution Control Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 61

[ND6-1-6534a, ND2-1-6064a; FRL-5261-6]

Clean Air Act Approval and Promulgation of State Implementation

Plan for North Dakota; Revisions to the Air Pollution Control Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA approves the State implementation plan (SIP) revisions

submitted by the State of North Dakota with letters dated June 26,

1990, June 30, 1992, and April 29, 1994. The revisions address air

pollution control rules regarding general provisions; emissions of

particulate matter and organic compounds; new source performance

standards (NSPS); national emission standards for hazardous air

pollutants (NESHAPs); construction and operating permit programs;

prevention of significant deterioration (PSD) of air quality; and

control of emissions from oil and gas well production facilities. The

April 29, 1994 submittal also addressed the following two issues which

will be acted on in separate documents: Revisions to the PSD rules with

respect to PM10 increments; and revisions to the visibility

monitoring chapter of the SIP. Further, EPA is approving the State's

construction permit and federally enforceable State operating permit

(FESOP) programs under section 112(l) of the amended Clean Air Act

(Act) for the purposes of creating federally enforceable permit

conditions for sources of hazardous air pollutants (HAPs).

DATES: This final rule is effective on October 20, 1995, unless

comments are received in writing by September 20, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Copies of the State's submittal and other information are

available for inspection during normal business hours at the following

locations: Air Programs Branch, Environmental Protection Agency, Region

VIII, 999 18th Street, suite 500, Denver, Colorado 80202-2405; North

Dakota State Department of Health and Consolidated Laboratories,

Environmental Health Section, 1200 Missouri Avenue, Bismarck, North

Dakota, 58502-5520; and The Air and Radiation Docket and Information

Center, 401 M Street SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection

Agency, Region VIII, (303) 293-1769.

SUPPLEMENTARY INFORMATION:

I. Background

The State submitted various revisions to its air pollution control

rules with letters to EPA dated June 26, 1990, June 30, 1992, and April

29, 1994. These revisions were necessary to make the rules consistent

with Federal requirements. Portions of the 1990 and 1992 submittals

were acted on previously (see 56 FR 12848, March 28, 1991; 56 FR 28322,

June 20, 1991; 57 FR 28619, June 26, 1992; 58 FR 5294, January 21,

1993; and 58 FR 54041, October 20, 1993).

II. This Action

A. Analysis of State Submissions

1. Procedural Background

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing. Section 110(l) of the Act similarly provides that each

revision to an implementation plan submitted by a State under the Act

must be adopted by such State after reasonable notice and public

hearing.

EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action [see section 110(k)(1)

and 57 FR 13565]. EPA's completeness criteria for SIP submittals are

set out at 40 CFR part 51, appendix V. EPA attempts to make

completeness determinations within 60 days of receiving a submission.

However, a submittal is deemed complete by operation of law if a

completeness determination is not made by EPA six months after receipt

of the submission.

[[Page 43397]]

To entertain public comment, the State of North Dakota, after

providing adequate notice, held public hearings on January 3, 1990,

October 16, 1991, and September 28, 1993 to address the respective

revisions to the SIP and Air Pollution Control Rules. Following the

public hearings, the North Dakota State Health Council adopted the

respective rule revisions.

The Governor of North Dakota submitted revisions to the SIP with

letters dated June 26, 1990, June 30, 1992, and April 29, 1994. The SIP

revisions were reviewed by EPA to determine completeness in accordance

with the completeness criteria set out at 40 CFR part 51, appendix V.

The submittals were found to be complete and letters dated October 22,

1990, August 27, 1992, and June 22, 1994 were forwarded to the Governor

indicating the completeness of the respective submittals and the next

steps to be taken in the review process.

2. June 26, 1990 Revisions

The June 26, 1990 submittal addresses North Dakota Air Pollution

Control Rules involving general provisions, ambient air quality

standards, emissions of particulate matter, control of pesticides,

NSPS, NESHAPs, permitting, PSD, and emissions from oil and gas well

production facilities. Most of the revisions were approved in separate

Federal Register notices (see 56 FR 12848, March 28, 1991; 56 FR 28322,

June 20, 1991; 57 FR 28619, June 26, 1992). However, one section of the

June 26, 1990 submittal was not addressed in those approvals. That

section was 33-15-13-02 regarding revised asbestos NESHAP regulations.

The 1990 asbestos regulation revision was superseded by the State's

revised asbestos NESHAP rules in the April 29, 1994 submittal, which

EPA has determined to be consistent with Federal requirements and

approvable.

3. June 30, 1992 Revisions

Portions of the June 30, 1992 submittal involving revisions to the

State's rules regarding emissions of sulfur compounds, NSPS, and

NESHAPs (excluding asbestos) were approved in the Federal Register on

January 21, 1993 (see 58 FR 5294) and October 20, 1993 (see 58 FR

54041). The remaining portions are being addressed in this document and

involve the following sections of the North Dakota Air Pollution

Control Rules: 33-15-01 General Provisions; 33-15-05 Emissions of

Particulate Matter Restricted; 33-15-07 Control of Organic Compounds

Emissions; 33-15-13 Emission Standards for Hazardous Air Pollutants

(specifically, the section regarding the asbestos NESHAP); 33-15-15

Prevention of Significant Deterioration of Air Quality; and 33-15-20

Control of Emissions from Oil and Gas Well Production Facilities.

a. Chapter 33-15-01 General Provisions. The definition of volatile

organic compound (VOC) was updated. This VOC definition is superseded

by the State's April 29, 1994 submittal, which included a revised VOC

definition that EPA has determined to be approvable. Also, in the 1992

submittal, administrative information was updated to reflect the

Department's new telephone number. These administrative revisions are

minor and approvable.

b. Chapter 33-15-05 Emissions of Particulate Matter Restricted.

Provisions were removed which allowed the State discretion in approving

alternatives to using multiple chamber incinerators for the burning of

refuse, per EPA's request. Also, language was added to specify a

testing methodology for determining particulate emissions that have a

diameter of 10 microns or less. These revisions are consistent with

Federal requirements and therefore, approvable.

c. Chapter 33-15-07 Control of Organic Compounds Emissions.

Revisions made to this chapter include the following:

(i) All references to ``volatile organic liquids'' were changed to

read ``volatile organic compounds.''

(ii) ``Volatile organic liquid-water separator'' has been changed

to read ``volatile organic compounds-water separator,'' and the term

was defined.

(iii) Several other definitions were corrected or clarified.

(iv) The provision was eliminated that allowed the State discretion

in approving alternatives to using the appropriate rotating pumps and

compressors to handle volatile organic compounds, per EPA's request.

(v) To be more specific regarding intent, language was changed to

read ``The emissions from all devices designed for incinerating,

flaring, or treating waste organic compound gases and vapors shall

result in compliance with Chapters 2 and 16 of this article,'' i.e.,

compliance with the ambient air quality standards.

These revisions strengthen this rule and, therefore, are

approvable.

d. Chapter 33-15-13 Emission Standards for Hazardous Air

Pollutants. Section 33-15-13-02, regarding emission standards for

asbestos, was revised. These revisions are superseded by the State's

most recent asbestos NESHAP revisions contained in the April 29, 1994

submittal (see below), which EPA has determined to be approvable.

e. Chapter 33-15-15 Prevention of Significant Deterioration of Air

Quality. The definition of ``volatile organic compounds'' was added to

match EPA's definition. The definition excludes the compounds

identified by EPA as ``negligibly photochemical reactive'' from the

requirements of this chapter since EPA has determined that they are not

considered significant precursors to ozone. Other minor changes were

made to make the State rule consistent with the Federal rule. These

revisions are consistent with Federal requirements and, therefore, are

approvable.

f. Chapter 33-15-20 Control of Emissions From Oil and Gas Well

Production Facilities. A definition for ``continuous burning pilot''

was added and the reporting requirements were clarified. The provision

was removed which allowed the State discretion in approving alternative

methods of calculation for determining PSD applicability for sulfur

dioxide, per EPA's request. These revisions are consistent with Federal

requirements and therefore, approvable.

4. April 29, 1994 Revisions

The April 29, 1994 submittal addresses visibility monitoring

requirements outlined in Chapter 6 of the SIP. However, in a January

26, 1995 letter from Dana Mount, North Dakota Division of Environmental

Engineering, to Douglas Skie, EPA, the State indicated that a

superseding SIP revision regarding visibility monitoring would be

forthcoming and requested that EPA take no action at this time on its

April 1994 visibility monitoring revisions. Accordingly, EPA declines

to take action on the visibility monitoring revisions included in North

Dakota's April 29, 1994 submittal.

The April 29, 1994 submittal also addresses the following chapters

of the North Dakota Air Pollution Control Rules: 33-15-01 General

Provisions; 33-15-12 Standards of Performance for New Stationary

Sources; 33-15-13 Emission Standards for Hazardous Air Pollutants; 33-

15-14 Designated Air Contaminant Sources, Permit to Construct, Minor

Source Permit to Operate; and 33-15-15 Prevention of Significant

Deterioration of Air Quality. The revisions to Chapter 33-15-15 will be

addressed in a separate action.

a. Chapter 33-15-01 General Provisions. Under Subsection 33-15-01-

04, a definition of ``federally enforceable'' was added and the

definition of ``volatile organic compounds'' was modified to match the

Federal definition in 40 CFR 51.100.

[[Page 43398]]

These revisions are consistent with Federal requirements and therefore,

approvable.

b. Chapter 33-15-12 Standards of Performance for New Stationary

Sources; Chapter 33-15-13 Emission Standards for Hazardous Air

Pollutants. The revisions to 33-15-12 and 33-15-13 incorporate by

reference the Federal NSPS in 40 CFR part 60 and the Federal NESHAPs in

40 CFR part 61, as in effect on May 1, 1993, with the exception of 40

CFR part 61, subparts B, H, I, K, Q, R, T, and W (i.e., radionuclides).

The State's asbestos rules were updated to reflect the Federal asbestos

rule in effect on May 1, 1993, as found in 40 CFR part 61, subpart M.

EPA has reviewed the State's revised NSPS and NESHAPs regulations and

determined that they are consistent with the Federal regulations, and,

therefore, approvable.

c. 33-15-14 Designated Air Contaminant Sources, Permit to

Construct, Minor Source Permit to Operate, Title V Permit to Operate.

Section 33-15-14-01 was modified to list several new designated air

pollution source categories. New categories include the following: (1)

Chemical process facilities involving cresylic acids, phenol, or

polymer manufacturing and coating operations; (2) metallurgical

facilities involving electrolytic plating operations; (3) mineral

products facilities involving calciners and dryers; (4) wood processing

facilities involving sawmills or wood products manufacturing; (5)

municipal waste combustors; (6) stationary gas turbines; (7) lead acid

battery manufacturing; and (8) hydrocarbon contaminated soil

remediation projects. Also, a new section of definitions was added.

The construction permit section of this chapter, 33-15-14-02, was

amended to clarify that initiation of certain activities that do not

require a construction permit are at the owner's or operator's own

risk. This section was also amended to require a construction permit if

a change at a facility would increase the ambient concentration of a

contaminant by a specified amount. However, certain scenarios at

existing sources were listed that would not be considered a change in

the method of operation, e.g., trading of emissions within a facility

provided that the trades have been identified and approved in a permit

to operate and the total facility emissions do not exceed the facility

emissions cap established in the permit to operate. A construction

permit would not be required under such scenarios.

The revisions to sections 33-15-14-01 and 33-15-14-02 are

consistent with Federal requirements and, therefore, approvable.

This submittal also contained revisions to the minor source permit

to operate section of this chapter, 33-15-14-03. On June 28, 1989, EPA

published criteria for approving and incorporating into the SIP

regulatory programs for the issuance of federally enforceable State

operating permits (FESOPs) (see 54 FR 27282). Permits issued pursuant

to an operating permit program, which has been approved into the SIP as

meeting these criteria may be considered federally enforceable. EPA has

encouraged States to develop such FESOP programs in conjunction with

title V operating permit programs to enable sources to limit their

potential to emit to below the title V applicability thresholds. (See

the September 18, 1992 guidance document entitled, ``Limitation of

Potential to Emit with Respect to Title V Applicability Thresholds,''

from John Calcagni, Director, Air Quality Management Division, Office

of Air Quality Planning and Standards (OAQPS), Office of Air and

Radiation, U.S. EPA.) On November 3, 1993, EPA announced in a guidance

document entitled, ``Approaches to Creating Federally Enforceable

Emissions Limits,'' from John S. Seitz, Director, OAQPS, that this

mechanism could be extended to create federally enforceable limits for

emissions of HAPs if the program were approved pursuant to section

112(l) of the Act. (See Section II.A.5. of this document for further

details on EPA's Section 112(l) approval of North Dakota's FESOP

program.)

North Dakota adopted revisions to its minor source operating permit

requirements in Section 33-15-14-03 of the State's rules to meet the

criteria of the June 29, 1989 Federal Register notice. That Federal

Register notice establishes five criteria which must be met in order

for EPA to approve a state operating permit program into the SIP: (1)

The program must be submitted to and approved by EPA; (2) the program

must impose a legal obligation on the operating permit holders to

comply with the terms and conditions of the permit, and permits that do

not conform with the criteria outlined in the June 28, 1989 Federal

Register notice or EPA's underlying regulations shall be deemed not

federally enforceable; (3) any permit issued under the program must

contain terms and conditions that are at least as stringent as any

requirements contained in the SIP, enforceable under the SIP, or any

section 112 or other CAA requirement, and may not allow for the waiver

of any CAA requirement; (4) any permit issued under the program must

contain conditions that are permanent, quantifiable, and enforceable as

a practical matter; and (5) any permit that is intended to be federally

enforceable must be issued subject to public participation and must be

provided to EPA in proposed form on a timely basis.

EPA has reviewed North Dakota's FESOP program and has determined

that it meets the requirements outlined in the June 28, 1989 Federal

Register notice. (See the Technical Support Document associated with

this action for further information.) Thus, EPA is approving North

Dakota's FESOP program. Permits that conform to the State's rules and

that are enforceable as a practical matter will be considered federally

enforceable. Note that in this action EPA is approving North Dakota's

minor source operating permit program, but not the 40 CFR part 70

operating permit program in Chapter 33-15-14-06 of the State rules

(which will be acted on separately).

5. Approval of North Dakota's Construction Permit and FESOP Programs

Under Section 112(l) of the Act

In this action, EPA is also approving North Dakota's construction

permit and FESOP programs in Chapters 33-15-14-02 and 33-15-14-03 of

the State's rules, respectively, under section 112(l) of the Act for

the purpose of creating federally enforceable limits on the potential

to emit of HAPs listed pursuant to section 112(b) of the Act. Approval

under section 112(l) is necessary to allow the State to create

federally enforceable limits on the potential to emit of HAPs, because

SIP approval of these permitting programs only extends to the control

of HAPs which are photochemically reactive organic compounds or

particulate matter. Federally enforceable limits on photochemically

reactive organic compounds or particulate matter may have the

incidental effect of limiting certain HAPs.1 As a legal matter, no

additional program approval by EPA is required in order for these

``criteria'' pollutant limits to be recognized as federally

enforceable. However, section 112 of the Act provides the underlying

authority for controlling all HAPs emissions.

\1\ EPA issued guidance addressing the technical aspects of how

these criteria pollutant limits may be recognized for purposes of

limiting a source's potential to emit of HAPs to below section 112

major source levels. Please refer to EPA's January 25, 1995

memorandum from John S. Seitz and Robert I. Van Heuvelen entitled

``Options for Limiting the Potential to Emit (PTE) of a Stationary

Source under Section 112 and Title V of the Clean Air Act,''

available at the EPA office listed at the beginning of this

document.

[[Page 43399]]

---------------------------------------------------------------------------

Both the State's construction permit and FESOP programs apply to

any ``air contaminant sources,'' and ``air contaminant'' is defined in

the State's rules as ``any solid, liquid, gas, or odorous substance or

any combination thereof.'' The State has defined ``air contaminant'' in

such a broad manner that it includes HAPs. Consequently, the State's

construction permit and FESOP programs provide authority for the State

to issue permits to sources of HAPs.

The criteria which are used in approving minor source construction

permit programs are located in 40 CFR 51.160-164. North Dakota's

construction permit program was originally approved as meeting the

criteria currently in 40 CFR 51.160-163 on May 26, 1977 (42 FR 26977)

and as meeting the criteria in 40 CFR 51.164 on November 14, 1988 (53

FR 45673). The Technical Support Document (TSD) accompanying this

section 112(l) approval details how North Dakota's construction permit

rules in 33-15-14-02 meet these Federal criteria for approvability.

EPA believes the most significant criteria for creating federally

enforceable limits through construction permits are the criteria

outlined in 40 CFR 51.160-162. Further, as discussed in EPA's January

25, 1995 memorandum from John S. Seitz, Director of the Office of Air

Quality Planning and Standards, and Robert I. Van Heuvelen, Director of

the Office of Regulatory Enforcement, entitled ``Options for Limiting

the Potential to Emit (PTE) of a Stationary Source Under Section 112

and Title V of the Clean Air Act,'' in order for EPA to consider any

construction permit terms federally enforceable, such permit conditions

must be enforceable as a practical matter. North Dakota's construction

permit program will allow the State to issue permits that are

enforceable as a practical matter. Thus, any permits issued in

accordance with North Dakota's construction permit program that are

practically enforceable would be considered federally enforceable.

EPA believes that the five approval criteria for approving FESOP

programs into the SIP, as specified in the June 28, 1989 Federal

Register notice, are also appropriate for evaluating and approving the

programs under section 112(l). The requirements outlined in the June

28, 1989 notice need not be unique to criteria pollutants since the

reason that the notice does not address HAPs is simply that it was

written prior to the 1990 Amendments to section 112. Hence, the

criteria discussed above in Section II.A.4.c. of this document are

applicable to FESOP program approvals under section 112(l) of the Act.

In addition to a construction permit program meeting the criteria

outlined in 40 CFR 51.160-164 and a FESOP program meeting the criteria

outlined in the June 28, 1989 Federal Register notice, a permitting

program that addresses HAPs must meet the statutory criteria for

approval under section 112(l)(5). Section 112(l) allows EPA to approve

a program only if it: (1) Contains adequate authority to assure

compliance with any section 112 standards or requirements; (2) provides

for adequate resources; (3) provides for an expeditious schedule for

assuring compliance with section 112 requirements; and (4) is otherwise

likely to satisfy the objectives of the Act.

EPA plans to codify the approval criteria for programs limiting

potential to emit of HAPs through amendments to subpart E of 40 CFR

part 63, the regulations promulgated to implement section 112(l) of the

Act. (See 58 FR 62262, November 26, 1993.) EPA believes it has the

authority under section 112(l) to approve programs to limit the

potential to emit HAPs directly under section 112(l) prior to this

revision to subpart E of 40 CFR part 63. Given the timing problems

posed by impending deadlines under section 112 and title V, EPA

believes it is reasonable to read section 112(l) to allow for approval

of programs to limit potential to emit prior to promulgation of a rule

specifically addressing this issue. Therefore, EPA is approving North

Dakota's construction permit and FESOP programs now so that North

Dakota may begin to issue federally enforceable ``synthetic minor''

permits as soon as possible. EPA also plans to codify programs approved

under section 112(l) without further rulemaking once the revisions to

Subpart E are promulgated.

As discussed above, EPA believes North Dakota's construction permit

and FESOP programs meet the applicable Federal criteria for approval of

such programs in the SIP. Section 33-15-14-02, i.e., North Dakota's

construction permit program, has been previously approved in the SIP,

and EPA is approving Section 33-15-14-03, i.e., North Dakota's FESOP

program in this Federal Register. In addition, North Dakota's

construction permit and FESOP programs meet the statutory criteria for

approval under section 112(l)(5), as outlined in the following

discussion.

Regarding the statutory criteria of section 112(l)(5) referred to

above, EPA believes North Dakota's construction permit and FESOP

programs contain adequate authority to assure compliance with section

112 requirements since the third criterion of the June 28, 1989 Federal

Register notice is met by both permitting programs, i.e., because the

programs do not provide for waiving any section 112 requirement.

Sources that become minor through a permit issued pursuant to these

programs would still be required to meet section 112 requirements

applicable to non-major sources.

Regarding the requirement for adequate resources, EPA believes the

State has demonstrated that it can provide for adequate resources to

implement and enforce the programs through the fees it charges both for

minor source permits to construct and permits to operate. See sections

33-15-14-02.12 and 33-15-14-03.10 of the State rules. EPA will monitor

the State's implementation of these programs to assure that adequate

resources continue to be available.

EPA also believes that North Dakota's construction permit and FESOP

programs provide for an expeditious schedule for assuring compliance

with section 112 requirements. These programs will be used to allow a

source to establish a voluntary limit on potential to emit so as to

avoid being subject to a Federal requirement applicable on a particular

date. Nothing in the State's programs would allow a source to avoid or

delay compliance with the Federal requirement if it fails to obtain the

appropriate federally enforceable limit by the relevant deadline.

Finally, EPA believes it is consistent with the intent of the

section 112 and the Act for States to provide a mechanism through which

sources may avoid classification as a major source by obtaining a

federally enforceable limit on potential to emit.

Accordingly, EPA finds that both North Dakota's construction permit

program and its FESOP program satisfy the applicable criteria for

establishing federally enforceable limitations on potential to emit

both criteria and hazardous air pollutants. Therefore, EPA is approving

North Dakota's construction permit and FESOP programs in Sections 33-

15-14-02 and 33-15-14-03 of the State's rules, respectively, under

section 112(l) of the Act.

III. Final Action

EPA is approving North Dakota's SIP revision, as submitted by the

Governor with a letter on April 29, 1994. This submittal addressed

revisions to the following North Dakota Air Pollution Control Rules:

33-15-01 General

[[Page 43400]]

Provisions; 33-15-12 Standards of Performance for New Stationary

Sources; 33-15-13 Emission Standards for Hazardous Air Pollutants; and

33-15-14 Designated Air Contaminant Sources, Permit to Construct, Minor

Source Permit to Operate. However, EPA is declining to take action at

this time on the revisions to North Dakota Air Pollution Control Rule

33-15-15, regarding prevention of significant deterioration of air

quality, and Chapter 6 of the SIP, regarding visibility monitoring

requirements. These chapters will be addressed in separate documents.

Further, EPA is approving, under section 112(l) of the Act, North

Dakota's construction permit and FESOP programs, as outlined in

Sections 33-15-14-02 and 33-15-14-03 of the State's rules,

respectively, for the purposes of creating federally enforceable permit

conditions on HAPs.

EPA is also approving portions of the State's June 30, 1992

submittal, which were not acted on previously. Specifically, EPA is

approving revisions to the following sections of the North Dakota Air

Pollution Control Rules: 33-15-01 General Provisions; 33-15-05

Emissions of Particulate Matter Restricted; 33-15-07 Control of Organic

Compounds Emissions; 33-15-13 Emission Standards for Hazardous Air

Pollutants (specifically, section 33-15-13-02 regarding the asbestos

NESHAP); 33-15-15 Prevention of Significant Deterioration of Air

Quality; and 33-15-20 Control of Emissions from Oil and Gas Well

Production Facilities. Further, EPA is approving the portion of the

State's June 26, 1990 submittal, which was not acted on previously,

regarding revised asbestos NESHAP regulations (specifically, section

33-15-13-02 of the North Dakota Air Pollution Control Rules). Some of

these rule revisions were superseded by the revised rules included in

the State's April 29, 1994 submittal, as discussed in this document.

This approval provides the State with the authority for

implementation and enforcement of all Federal NSPS and NESHAPs (except

40 CFR part 61, subparts B, H, I, K, Q, R, T, and W, pertaining to

radionuclides) promulgated as of May 1, 1993. However, the State's NSPS

and NESHAP authorities do not include those authorities which cannot be

delegated to the states, as defined in 40 CFR parts 60 and 61. EPA will

be updating the 40 CFR part 60 table of NSPS delegations at a later

date.

Note that in this action EPA is approving North Dakota's minor

source operating permit program, but not the 40 CFR part 70 operating

permit program in section 33-15-14-6 of the State rules (which will be

acted on separately). Minor source operating permits issued by the

State that conform to the State's rules will be considered federally

enforceable. Consequently, the rulemaking authorizes North Dakota to

issue FESOPs commencing immediately upon the effective date of this

rule, which will be October 20, 1995, unless in the meantime EPA defers

or rescinds the effective date at a commenter's request.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document published elsewhere

in this Federal Register, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. Under the procedures

established in the May 10, 1994 Federal Register (59 FR 24054), this

action will be effective October 20, 1995, unless, by September 20,

1995, adverse or critical comments are received.

If such comments are received, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on October 20, 1995.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

Approvals of SIP submittals under section 110 and subchapter I,

part D of the Clean Air Act do not create any new requirements, but

simply approve requirements that the State is already imposing.

Therefore, because the Federal SIP-approval does not impose any new

requirements, I certify that it does not have a significant impact on

small entities affected. Moreover, due to the nature of the Federal-

State relationship under the Clean Air Act, preparation of a regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under Section 110 of the

Clean Air Act. These rules may bind State, local and tribal governments

to perform certain actions and also require the private sector to

perform certain duties. The rules being approved by this action will

impose no new requirements since such sources are already subject to

these regulations under State law. Accordingly, no additional costs to

State, local, or tribal governments, or to the private sector, result

from this action. EPA has also determined that this final action does

not include a mandate that may result in estimated costs of $100

million or more to State, local, or tribal governments in the aggregate

or to the private sector.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by October 20, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review must be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements (see section 307(b)(2)).

[[Page 43401]]

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter, Reporting and recordkeeping

requirements, and Volatile organic compounds.

40 CFR Part 61

Air pollution control, Arsenic, Asbestos, Benzene, Beryllium,

Hazardous substances, Mercury, and Vinyl chloride.

Dated: July 14, 1995.

Jack W. McGraw,

Acting Regional Administrator.

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

as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart JJ--North Dakota

2. Section 52.1820 is amended by adding paragraph (c)(26) to read

as follows:

Sec. 52.1820 Identification of plan.

* * * * *

(c) * * *

(26) The Governor of North Dakota submitted revisions to the North

Dakota State Implementation Plan and Air Pollution Control Rules with

letters dated June 26, 1990, June 30, 1992, and April 29, 1994. The

revisions address air pollution control rules regarding general

provisions; emissions of particulate matter and organic compounds; new

source performance standards (NSPS); national emission standards for

hazardous air pollutants (NESHAPs); federally enforceable State

operating permits (FESOPs); prevention of significant deterioration of

air quality; and control of emissions from oil and gas well production

facilities.

(i) Incorporation by reference.

(A) Revisions to the Air Pollution Control Rules as follows:

Emissions of Particulate Matter Restricted 33-15-05-02, 33-15-05-03,

and 33-15-05-04; Control of Organic Compound Emissions 33-15-07;

Prevention of Significant Deterioration of Air Quality 33-15-15-01; and

Control of Emissions from Oil and Gas Well Production Facilities 33-15-

20-01, 33-15-20-02, and 33-15-20-03, effective June 1, 1992.

(B) Revisions to the Air Pollution Control Rules as follows:

General Provisions 33-15-01-04 and 33-15-01-13; Standards of

Performance for New Stationary Sources 33-15-12; and Emission Standards

for Hazardous Air Pollutants 33-15-13, effective June 1, 1992 and March

1, 1994.

(C) Revisions to the Air Pollution Control Rules as follows:

Designated Air Contaminant Sources, Permit to Construct, Minor Source

Permit to Operate, Title V Permit to Operate, 33-15-14-01 through 33-

15-14-05, effective March 1, 1994.

3. Section 52.1834 is added to subpart JJ to read as follows:

Sec. 52.1834 Minor source permit to operate program.

Emission limitations and related provisions, which, in accordance

with Rule 33-15-14-03, are established as federally enforceable

conditions in North Dakota minor source operating permits, shall be

enforceable by EPA. EPA reserves the right to deem permit conditions

not federally enforceable. Such a determination will be made according

to appropriate procedures and will be based upon the permit, permit

approval procedures, or permit requirements which do not conform with

the operating permit program requirements of EPA's underlying

regulations.

PART 61--[AMENDED]

1. The authority citation for part 61 continues to read as follows:

Authority: 42 U.S.C. 7401, 7412, 7414, 7416, 7601.

Subpart A--General Provisions

2. Section 61.04(c) is amended by revising the table to read as

follows:

Sec. 61.04 Address.

* * * * *

(c) * * *

Region VIII.--Delegation Status of National Emission Standards for Hazardous Air Pollutants \1\

----------------------------------------------------------------------------------------------------------------

Subpart CO MT \2\ ND \2\ SD \2\ UT \2\ WY

----------------------------------------------------------------------------------------------------------------

A General Provisions............................... * * * * *

B Radon Emissions from Underground Uranium Mines... ........ ........ ........ ........ *

C Beryllium........................................ * * * ........ *

D Beryllium Rocket Motor Firing.................... * * * ........ *

E Mercury.......................................... * * * * *

F Vinyl Chloride................................... * * * ........ *

H Emissions of Radionuclides other than Radon from

Department of Energy Facilities.................... ........ ........ ........ ........ ........

I Radionuclide Emissions from Facilities Licensed

by the Nuclear Regulatory Commission and Federal

Facilities not covered by Subpart H................

J Equipment Leaks (Fugitive Emission Sources) of

Benzene............................................ * * * ........ *

K Radionuclide Emissions from Elemental Phosphorus

Plants............................................. ........ ........ ........ ........ ........

L Benzene Emissions from Coke By-Product Recovery

Plants............................................. ........ * * ........ *

M Asbestos......................................... * * * * * *\3\

N Inorganic Arsenic Emissions from Glass

Manufacturing Plants............................... ........ * * ........ *

O Inorganic Arsenic Emissions from Primary Copper

Smelters........................................... ........ * * ........ *

P Inorganic Arsenic Emissions from Arsenic Trioxide

and Metallic Arsenic Production Facilities......... ........ * * ........ *

Q Radon Emissions from Department of Energy

Facilities......................................... ........ ........ ........ ........ *

R Radon Emission from Phosphogypsum Stacks......... ........ ........ ........ ........ *

T Radon Emissions from the Disposal of Uranium Mill

Tailings........................................... ........ ........ ........ ........ *

V Equipment Leaks (Fugitive Emission Sources)...... ........ * * ........ *

W Radon Emissions from Operating Mill Tailings..... ........ ........ ........ ........ *

Y Benzene Emissions from Benzene Storage Vessels... ........ * * ........ *

BB Benzene Emission from Benzene Transfer

Operations......................................... ........ * * ........ *

[[Page 43402]]

FF Benzene Waste Operations........................ ........ * * ........ *

----------------------------------------------------------------------------------------------------------------

*Indicates approval of delegation of subpart to state.

\1\ Authorities which may not be delegated include 40 CFR 61.04(b), 61.12(d)(1), 61.13(h)(1)(ii), 61.112(c),

61.164(a)(2), 61.164(a)(3), 61.172(b)(2)(ii)(B), 61.172(b)(2)(ii)(C), 61.174 (a)(2), 61.174(a)(3), 61.242-

1(c)(2), 61.244, and all authorities listed as not delegable in each subpart under Delegation of Authority.

\2\ Indicates approval of National Emission Standards for Hazardous Air Pollutants as part of the State

Implementation Plan (SIP) with the exception of the radionuclide NESHAP Subparts B, Q, R, T, W which were

approved through Section 112(l) of the Clean Air Act.

\3\ Delegation only for asbestos demolition, renovation, spraying, manufacturing, and fabricating operations,

insulating materials, waste disposal for demolition, renovation, spraying, manufacturing and fabricating

operations, inactive waste disposal sites for manufacturing and fabricating operations, and operations that

convert asbestos-containing waste material into nonasbestos (asbestos-free) material.

[FR Doc. 95-20601 Filed 8-18-95; 8:45 am]

BILLING CODE 6560-50-P