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 Part 52

[ND8-1-7233a & ND-001-0001a; FRL-5812-3]

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.

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

submitted by the State of North Dakota with letters dated August 15,

1995 and January 9, 1996. The revisions address air pollution control

rules regarding general provisions; open burning; emissions of

particulate matter, certain settleable acids and alkaline substances,

and fugitives; air pollution emergency episodes; new source performance

standards (NSPS); national emission standards for hazardous air

pollutants (NESHAPs); and the minor source construction and operating

permit programs. The State's January 9, 1996 submittal also revised SIP

Chapter 6, Air Quality Surveillance, to identify current activities

regarding visibility monitoring. In addition, these submittals included

revisions involving the Title V Operating Permits Program, the Acid

Rain Program, the restriction of sulfur compound emissions, and

emission standards for hazardous air pollutants for source categories,

which

[[Page 19225]]

will be handled separately. Finally, EPA is correcting an incorporation

by reference error that was made by EPA in an October 20, 1993

rulemaking regarding the State's regulation for sulfur compounds.

DATES: This final rule is effective on June 20, 1997 unless comments

are received in writing by May 21, 1997. 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 Program, 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) 312-6449.

SUPPLEMENTARY INFORMATION:

I. Background

The Governor of North Dakota submitted various revisions to the

State's air pollution control rules with letters to EPA dated August

15, 1995 and January 9, 1996. These revisions were necessary, for the

most part, to make the rules consistent with Federal requirements or

for clarification purposes. The January 9, 1996 submittal also revised

SIP Chapter 6, Air Quality Surveillance, in order to identify current

activities regarding visibility monitoring and to withdraw an April 24,

1994 revision to the same chapter.

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.

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

providing adequate notice, held public hearings on December 1, 1994 and

July 25, 1995 to address revisions to the SIP and Air Pollution Control

Rules. Following the public hearings, public comment period, and

completion of legal review by the North Dakota Attorney General's

Office, the North Dakota State Health Council adopted the revisions,

which became effective on August 1, 1995 and January 1, 1996,

respectively.

The Governor of North Dakota submitted the revisions to the SIP

with letters dated August 15, 1995 and January 9, 1996. 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 September

28, 1995 and February 13, 1996 were forwarded to the Governor

indicating the completeness of the respective submittals and the next

steps to be taken in the review process.

2. August 15, 1995 Revisions

The August 15, 1995 submittal addresses North Dakota Air Pollution

Control Rules involving general provisions, emissions of particulate

matter, prevention of air pollution emergency episodes, NESHAPs (40 CFR

Part 61), minor source permitting and fees, Title V Operating Permits

Program, and the Acid Rain Program. The revisions regarding the Title V

Operating Permits Program and the Acid Rain Program were handled

separately. The August 15, 1995 submittal also included a request for

Clean Air Act Section 112(l) delegation of the 40 CFR Part 63 NESHAPs.

This request was addressed in an October 17, 1995 letter from William

P. Yellowtail, EPA, to Francis J. Schwindt, North Dakota Department of

Health.

The remaining portions of the August 15, 1995 submittal 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; 33-15-11

Prevention of Air Pollution Emergency Episodes; 33-15-13 Emission

Standards for Hazardous Air Pollutants; 33-15-14 Designated Air

Contaminant Sources, Permit to Construct, Minor Source Permit to

Operate, Title V Permit to Operate (sections specific to minor

sources); and 33-15-23 Fees.

a. Chapter 33-15-01 General Provisions

This chapter was revised to include several definitions for various

types of waste material, including definitions for ``infectious

waste,'' ``refuse,'' and ``trash.'' The new definitions parallel

definitions found in other North Dakota environmental regulations,

including solid waste, hazardous waste, and radiological rules. These

revisions are approvable.

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

Section 3, Incinerators, of this chapter was eliminated and

replaced with three new sections regarding infectious waste

incinerators, refuse incinerators, and other waste incinerators.

Section 33-15-05-03.1., regarding infectious waste incinerators,

requires owners of existing infectious waste incinerators to maintain

records, provide training to the operators of the incinerators, and to

correct malfunctions before resuming incineration. New infectious waste

incinerators (burning less than 10,000 pounds of infectious waste per

week) will be required to meet a 10% opacity limit and be designed to

maintain a temperature of 1800 deg.F in the secondary chamber with a

residence time of at least one second. A presumptive minimum stack

height of 40 feet will also be required. Recordkeeping, monitoring,

operator training, and reporting requirements are also included in the

regulation.

New large infectious waste incinerators (burning 10,000 pounds or

more of infectious waste per week) will be required to meet all the

requirements for smaller infectious waste incinerators plus standards

for particulate matter, hydrogen chloride, carbon monoxide, and

dioxins/furans. Recordkeeping, reporting, operator training, and

performance testing are also required.

Section 33-15-05-03.2., regarding refuse incinerators, prohibits

the burning of any recyclable material when a recycling option is

reasonably available. This prohibition goes into effect one year after

the promulgation of the rule. The regulations also require owners/

operators of incinerators that burn trash to upgrade their units to

standards established for new units within two years of promulgation of

the

[[Page 19226]]

rule. New trash incinerators are required to meet a 10% opacity limit

and be designed to have a minimum temperature of 1500 deg.F and \1/2\

second retention time in the secondary chamber. A presumptive minimum

stack height of 40 feet is included in the rule, as well as monitoring

requirements and waste charging limitations.

Section 33-15-05-03.3., regarding other waste incinerators,

requires new salvage incinerators to meet the same requirements as new

infectious waste incinerators. This section also gives the State the

authority to establish unit specific requirements for air curtain

destructors, industrial waste and special waste incinerators, and

crematoriums.

These revisions are approvable. Please note that EPA intends to

promulgate a medical waste incinerator NSPS in the near future. Should

the State's infectious waste incinerator rule be less stringent than

the forthcoming medical waste incinerator NSPS, the State will need to

revise its rule and the SIP accordingly.

c. Chapter 33-15-11 Prevention of Air Pollution Emergency Episodes

Changes to this chapter were made to make it consistent with the

new definitions in Chapter 33-15-01 regarding industrial waste. These

revisions are minor and approvable.

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

The changes to this chapter include updating the date for Federal

regulations in 40 CFR Part 61 to be incorporated by reference and to

incorporate for the first time 40 CFR part 61, subpart I (to regulate

radionuclide emissions from facilities licensed by the Nuclear

Regulatory Commission (NRC) and other Federal facilities not covered by

subpart H of 40 CFR Part 61). The revision to update the incorporation

by reference date is approvable.

However, on December 30, 1996, EPA rescinded subpart I as it

applies to NRC or NRC Agreement State licensed facilities other than

commercial nuclear power plants. EPA determined that the NRC regulatory

program for licensed facilities other than commercial nuclear power

plants protects public health with an ample margin of safety, the same

level of protection that would be afforded by continued implementation

of subpart I. Therefore, EPA rescinded subpart I to eliminate

overlapping regulation of these emissions. See 61 FR 68972-68981. As a

result, EPA cannot incorporate subpart I into the North Dakota SIP, as

requested.

e. Chapter 33-15-14 Designated Air Contaminant Sources, Permit To

Construct, Minor Source Permit To Operate, Title V Permit To Operate

Changes to this chapter were made to make it consistent with the

new definitions in Chapter 33-15-01 regarding incinerators. Further

changes to this chapter involve the removal of the sections which

establish Permit to Construct and Minor Source Permit to Operate fees

(33-15-14-02.12. and 33-15-14-03.10.). These sections were moved to a

new chapter, 33-15-23, Fees. These revisions are approvable. The

revisions regarding the Title V permit to operate (section 33-15-14-06)

will be handled separately.

f. Chapter 33-15-23 Fees

A new chapter was developed to address fees that are charged to

sources under the Air Pollution Control Program. These fees were

originally included in Chapter 33-15-14. The provisions in Chapter 33-

15-14 were relocated to this new chapter with a few minor revisions.

These revisions are approvable since they are basically what was

approved in the SIP previously in Chapter 33-15-14. The sections

regarding major source permit to operate fees (33-14-23-04) and phase I

substitution units (33-15-23-05) will be handled separately.

3. January 9, 1996 Revisions

The January 9, 1996 submittal addresses visibility monitoring

requirements outlined in Chapter 6 of the SIP. With this submittal, the

State formally withdraws an April 1994 submittal of Section 6.12 of the

SIP and replaces it with a new Section 6.13, which identifies current

activities regarding visibility monitoring.

In addition, the January 9, 1996 submittal included revisions to

Chapter 33-15-06, Emissions of Sulfur Compounds Restricted, and

requests for direct delegation of revisions to Chapter 33-15-14,

Designated Air Contaminant Sources, Permit to Construct, Minor Source

Permit to Operate, Title V Permit to Operate (section specific to Title

V Permit to Operate) and Chapter 33-15-22, Emission Standards for

Hazardous Air Pollutants for Source Categories, (40 CFR Part 63

NESHAPs). These revisions and requests will be handled separately.

Finally, the January 9, 1996 submittal addresses the following

chapters of the North Dakota Air Pollution Control Rules, which will be

addressed in this document: 33-15-01 General Provisions; 33-15-04 Open

Burning Restrictions; 33-15-09 Emissions of Certain Settleable Acids

and Alkaline Substances Restricted; 33-15-12 Standards of Performance

for New Stationary Sources; 33-15-13 Emission Standards for Hazardous

Air Pollutants; 33-15-14-01.1 Designated Air Contaminant Sources,

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

Operate (section specific to definitions); and 33-15-17 Restriction of

Fugitive Emissions.

a. Chapter 6 Air Quality Surveillance

In April 1994, Section 6.12 of the SIP was submitted to EPA to

indicate that visibility monitoring was not necessary due to a lack of

visibility impairment and a database indicating stable conditions. In

late 1994 and early 1995, there was a resurgence of activity in the oil

fields in Western North Dakota. Therefore, the State requested that EPA

take no action on Section 6.12 at that time. A new Section 6.13 was

developed to identify current activities regarding visibility

monitoring, and it was included in the January 1996 submittal. Section

6.12 was withdrawn.

An increase in oil drilling activities in 1995 prompted the

National Park Service to revisit the idea of establishing visibility

monitoring sites at the Class I areas in North Dakota. The State plans

to enter into a memorandum of understanding with the National Park

Service to proceed with establishing visibility monitoring at Theodore

Roosevelt National Park. This arrangement is acceptable to EPA.

b. Chapter 33-15-01 General Provisions

Under Subsection 33-15-01-04, the definition of volatile organic

compounds (VOC) was revised to match the Federal definition. At the

date of this submittal, the State's revision was consistent with

Federal requirements, and therefore, is being approved as submitted on

January 9, 1996.

However, on October 8, 1996, EPA published a revised definition of

VOC (61 FR 52850), which became effective on November 7, 1996. EPA's

definition excludes perchloroethylene (perc) from the definition of VOC

on the basis that it is of negligible reactivity and does not

contribute to tropospheric ozone formation. The definition submitted to

EPA in January 1996 does not exclude this compound. Therefore, this

State definition of VOC provides for the regulation of a compound

(perc) which is not considered a VOC by EPA. In light of EPA's most

recent definition of VOC, EPA will not enforce against sources for

failure to control the emission of compounds exempt from the Federal

VOC definition. North Dakota is advised of EPA's most recent VOC

definition

[[Page 19227]]

and future SIP revisions should reflect it accordingly.

c. Chapter 33-15-04 Open Burning Restrictions

The revisions to this chapter involve applying several new and, in

some cases, more restrictive conditions to all permissible open burning

and revising the applicability for open burning of household refuse.

The revisions allow open burning of household refuse only when no

collection and disposal service is required by a municipality or other

government entity. The revisions also limit material to be burned to

that of one family instead of three households (as previously allowed).

These revisions are approvable.

d. Chapter 33-15-09 Emission of Certain Settleable Acids and Alkaline

Substances Restricted

This chapter was deleted in its entirety. These rules had been in

North Dakota's Air Pollution Control Rules for over 20 years without

ever being utilized. The method of sampling was considered archaic and

no longer used by the State. Further, many Federal regulations, such as

NSPS and the Acid Rain Rules, were developed after the adoption of

Chapter 33-15-09 and address sources that emit acidic or alkaline

substances. In addition, the State's Air Toxics Program has been used

to address emissions of such substances. Chapter 33-15-09 was obsolete

and, therefore, the deletion of it is approvable.

e. 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, 1995, with the exception of 40 CFR part 61,

subparts B, H, K, Q, R, T, and W (i.e., radionuclides). Again, as

discussed above in section II.A.2.d., EPA cannot act on the State's

request to incorporate by reference subpart I since it has been

rescinded.

Major revisions were made in Chapter 33-15-13, Section 02, Emission

Standard for Asbestos. Substantive changes were made to the sections

dealing with definitions and asbestos abatement licensing and

certification.

Revisions to the asbestos rules were necessary due to EPA's

promulgation of changes to 40 CFR Part 763, Appendix C to Subpart E,

the Asbestos Model Accreditation Plan (MAP). On February 3, 1994, EPA

issued the interim final rule to revise the MAP in response to

requirements detailed in the Asbestos School Hazard Abatement

Reauthorization Act of 1990 (ASHARA). Among other things, the revised

MAP includes the following: (1) requires that individuals must be

accredited to work with asbestos in schools and public and commercial

buildings and clarifies the types of work activities which are

applicable; (2) increases the minimum number of hours of training for

asbestos abatement workers and contractor/supervisors; (3)

distinguishes between the training requirements for each of the five

disciplines; (4) expands the project designer curriculum; (5) alters

requirements for training certificates; (6) establishes new enforcement

criteria and procedures for withdrawing licenses and certificates; (7)

adds new definitions; and (8) adds recordkeeping requirements for

training providers. By far the most significant change to the MAP was

the requirement for certification of all persons performing asbestos

abatement in public and commercial buildings. The interim rule was

finalized and became effective on October 4, 1994.

The State revised its asbestos rules to be consistent with the new

MAP and all references to the MAP were amended to cite the revised plan

date (i.e., February 3, 1994). In addition, several minor corrections

and clarifications were made to the rule.

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

(including the asbestos rules) and determined that they are approvable,

with the exception of the incorporation of 40 CFR part 61, subpart I,

as in effect on May 1, 1995. EPA cannot act on subpart I because it was

rescinded on December 30, 1996 (see II.A.2.d. above and 61 FR 68972-

68981).

f. 33-15-14 Designated Air Contaminant Sources, Permit To Construct,

Minor Source Permit to Operate, Title V Permit To Operate

Minor modifications were made to Section 33-15-14-01.1,

Definitions, in order to be consistent with Federal regulations. These

revisions, therefore, are approvable.

As mentioned above, this submittal also included revisions to North

Dakota's Title V Permit to Operate Program, which will be handled

separately.

g. 33-15-17 Restriction of Fugitive Emissions

Section 33-15-17-02.1 was deleted. This section had established a

standard and monitoring methodology for the difference between upwind

and downwind concentrations of total suspended particulate (TSP). The

State believed the standard to be outdated since neither the State nor

industry monitors for it anymore. Further, a source could have actually

exceeded the PM10 National Ambient Air Quality Standard (NAAQS)

but still have been in compliance with this fugitive dust provision

(i.e., the TSP standard was meaningless for protecting the PM10

NAAQS). In addition, the State and industry operate a network of

PM10 samplers in North Dakota, and the results of sampling

indicate compliance with the PM10 NAAQS. As a result, the State

believes the deletion of this provision does not negatively impact the

NAAQS, and EPA believes, therefore, that the deletion of this fugitive

dust provision is approvable.

III. Correction of Incorporation by Reference Error

In an October 20, 1993 rulemaking, EPA approved revisions to the

North Dakota Administrative Code, Chapter 33-15-06, Emissions of Sulfur

Compounds Restricted, which became effective on June 1, 1992. (See 58

FR 54043, 40 CFR 52.1820(c)(24)(i)(A).) However, in the material that

EPA sent to The Air and Radiation Docket and Information Center for

incorporation by reference into the SIP, EPA only incorporated those

provisions of Chapter 33-15-06 that were different from the previous

version of Chapter 33-15-06 approved by EPA. However, the entire

chapter should have been incorporated into the SIP because it had been

recodified by the State since the previous SIP approval of that chapter

by EPA. Consequently, EPA is correcting its error by resubmitting

Chapter 33-15-06, as effective on June 1, 1992, to The Air and

Radiation Docket and Information Center for incorporation into the SIP

in its entirety.

IV. Final Action

EPA is taking the following actions on North Dakota's SIP

revisions, as submitted by the Governor with letters dated August 15,

1995 and January 9, 1996. EPA approves the revisions in the August 15,

1995 submittal concerning the following North Dakota Air Pollution

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

Particulate Matter Restricted; 33-15-11 Prevention of Air Pollution

Emergency Episodes; 33-15-13 Emission Standards for Hazardous Air

Pollutants; 33-15-14 Designated Air Contaminant Sources, Permit to

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

(sections specific to minor sources); and

[[Page 19228]]

33-15-23 Fees. Revisions regarding the Title V Operating Permits

Program and the Acid Rain Program were handled separately. The August

15, 1995 submittal also included a request for Clean Air Act Section

112(l) delegation of the 40 CFR Part 63 NESHAPs. This request was

addressed in an October 17, 1995 letter from William P. Yellowtail,

EPA, to Francis J. Schwindt, North Dakota Department of Health.

EPA approves revisions in the January 9, 1996 submittal which

address revisions to the following North Dakota Air Pollution Control

Rules: 33-15-01 General Provisions; 33 15-04 Open Burning Restrictions;

33-15-09 Emissions of Certain Settleable Acids and Alkaline Substances

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

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

15-14-01.1 Designated Air Contaminant Sources, Permit to Construct,

Minor Source Permit to Operate, Title V Permit to Operate (section

specific to definitions); and 33-15-17 Restriction of Fugitive

Emissions. EPA also approves visibility monitoring requirements

outlined in Chapter 6 of the SIP. With this submittal, the State

formally withdraws an April 1994 submittal of Section 6.12 of the SIP

and replaces it with a new Section 6.13, which identifies current

activities regarding visibility monitoring.

In addition, the January 9, 1996 submittal included revisions to

Chapter 33-15-06, Emissions of Sulfur Compounds Restricted, and

requests for direct delegation of revisions to Chapter 33-15-14,

Designated Air Contaminant Sources, Permit to Construct, Minor Source

Permit to Operate, Title V Permit to Operate (section specific to Title

V Permit to Operate) and Chapter 33-15-22, Emission Standards for

Hazardous Air Pollutants for Source Categories, (40 CFR Part 63

NESHAPs). These revisions and requests will be handled separately.

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, K, Q, R, T, and W, pertaining to

radionuclides) promulgated as of May 1, 1995. However, the State's NSPS

and NESHAPs authorities do not include those authorities which cannot

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

In addition, EPA cannot act on the State's request to incorporate

by reference 40 CFR part 61, subpart I (regarding radionuclide

emissions from facilities licensed by the NRC and other Federal

facilities not covered by subpart H) because EPA rescinded subpart I

(see 61 FR 68972-68981, December 30, 1996) subsequent to the State's

adoption of these revisions.

Finally, EPA is correcting an incorporation by reference error by

resubmitting Chapter 33-15-06, Emissions of Sulfur Compounds

Restricted, to The Air and Radiation Docket and Information Center for

incorporation into the SIP in its entirety.

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 in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective June 20, 1997 unless, by May 21, 1997, adverse or critical

comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent notice that will withdraw

the final action. All public comments received will 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 June 20, 1997.

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.

V. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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.

SIP approvals 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 any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the CAA, preparation of a 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).

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

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

aggregate, or to the private sector. This Federal action proposes to

approve pre-existing requirements under State or local law, and imposes

no new Federal requirements. Accordingly, no additional costs to State,

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

this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory

[[Page 19229]]

Enforcement Fairness Act of 1996, EPA submitted a report containing

this rule and other required information to the U.S. Senate, the U.S.

House of Representatives and the Comptroller General of the General

Accounting Office prior to publication of this rule in today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

804(2).

E. Petitions for Judicial Review

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 June 20, 1997. 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 may 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).)

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements, Sulfur oxides, Volatile organic

compounds.

Dated: April 7, 1997.

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)(29) to read

as follows:

Sec. 52.1820 Identification of plan.

* * * * *

(c) * * *

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

Dakota State Implementation Plan and Air Pollution Control Rules with

letters dated August 15, 1995 and January 9, 1996. The revisions

address air pollution control rules regarding general provisions; open

burning; emissions of particulate matter, certain settleable acids and

alkaline substances, and fugitives; air pollution emergency episodes;

new source performance standards (NSPS); national emission standards

for hazardous air pollutants (NESHAPs); and the minor source

construction and operating permit programs. The State's January 9, 1996

submittal also revised SIP Chapter 6, Air Quality Surveillance, to

identify current activities regarding visibility monitoring.

(i) Incorporation by reference.

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

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

03.1., 33-15-05-03.2., and 33-15-05-03.3.; Prevention of Air Pollution

Emergency Episodes 33-15-11 Tables 6 and 7; and Fees 33-15-23-01, 33-

15-23-02, and 33-15-23-03, effective August 1, 1995.

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

General Provisions 33-15-01-04; Emission Standards for Hazardous Air

Pollutants 33-15-13, except 33-15-13-01-2., Subpart I; Designated Air

Contaminant Sources, Permit to Construct, Minor Source Permit to

Operate, Title V Permit to Operate 33-15-14-01, 33-15-14-01.1., 33-15-

14-02.12., and 33-15-14-03.10.; effective August 1, 1995 and January 1,

1996.

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

Burning Restrictions 33-15-04; Emissions of Certain Settleable Acids

and Alkaline Substances Restricted 33-15-09; Standards of Performance

for New Stationary Sources 33-15-12; and Restriction of Fugitive

Emissions 33-15-17-01 and 33-15-17-02, effective January 1, 1996.

[FR Doc. 97-10126 Filed 4-18-97; 8:45 am]

BILLING CODE 6560-50-P