Clean Air Act Full Approval of Operating Permit Program; State of North Dakota

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[ND-001a; FRL-6360-3]

Clean Air Act Full Approval of Operating Permit Program; State of

North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating full approval of the operating permit

program submitted by the State of North Dakota. North Dakota's

operating permit program was submitted for the purpose of meeting the

federal Clean Air Act directive that states develop, and submit to EPA,

programs for issuing operating permits to all major stationary sources

and to certain other sources within the states' jurisdiction.

DATES: This direct final rule is effective on August 16, 1999, without

further notice, unless EPA receives adverse comment by July 19, 1999.

If adverse comment is received, EPA will publish a timely withdrawal of

the direct final rule in the Federal Register and inform the public

that the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director,

Air and Radiation Program, Mail Code 8P-AR, Environmental Protection

Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver, Colorado

80202-2466. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

and Radiation Program, Environmental Protection Agency, Region VIII,

999 18th Street, Suite 500, Denver, Colorado, 80202-2466. Copies of the

State documents relevant to this action are available for public

inspection at the North Dakota State Department of Health, Division of

Environmental Engineering, 1200 Missouri Avenue, Bismarck, North Dakota

58504-5264.

FOR FURTHER INFORMATION CONTACT: Patricia Reisbeck, EPA, Region 8,

(303) 312-6435.

SUPPLEMENTARY INFORMATION:

I. Background

As required under Title V of the Clean Air Act (``the Act'') as

amended (42 U.S.C. 7401 et seq.), EPA has promulgated rules that define

the minimum elements of an approvable state operating permit program

and the corresponding standards and procedures by which EPA will

approve, oversee, and withdraw approval of state operating permit

programs (see 57 FR 32250 (July 21, 1992)). These rules are codified at

40 Code of Federal Regulations (CFR) part 70 (part 70). Title V directs

states to develop, and submit to EPA, programs for issuing operating

permits to all major stationary sources and to certain other sources.

The Act directs states to develop and submit operating permit

programs to EPA by November 15, 1993, and requires that EPA act to

approve or disapprove each program within 1 year after receiving the

submittal. The EPA's program review occurs pursuant to section 502 of

the Act (42 U.S.C. Sec. 7661a) and the part 70 regulations, which

together outline criteria for

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approval or disapproval. Where a program substantially, but not fully,

meets the requirements of part 70, EPA may grant the program interim

approval. If EPA has not fully approved a program by two years after

the November 15, 1993 date, or before the expiration of an interim

program approval, it must establish and implement a federal program.

The State of North Dakota was granted final interim approval of its

program on July 7, 1995 (see 60 FR 35335) and the program became

effective on August 7, 1995. Interim approval of the North Dakota

program expires on June 1, 2000.

II. Final Action

A. Analysis of State Submission

The Governor of North Dakota submitted an administratively complete

Title V operating permit program for the State of North Dakota on May

11, 1994. This program, including the operating permit regulations

(Chapter 33-15-14-06 of the North Dakota Administrative Code (NDAC)),

substantially met the requirements of part 70. EPA deemed the program

administratively complete in a letter to the Governor dated June 28,

1994. The program submittal included a legal opinion from the Attorney

General of North Dakota stating that the laws of the State provide

adequate legal authority to carry out all aspects of the program, and a

description of how the State would implement the program. The submittal

additionally contained evidence of proper adoption of the program

regulations, application and permit forms, and a permit fee

demonstration.

EPA's comments noting deficiencies in the North Dakota program were

sent to the State in a letter dated December 22, 1994. The deficiencies

were segregated into those that require corrective action prior to

interim program approval, and those that require corrective action

prior to full program approval. The State committed to address the

program deficiencies that require corrective action prior to interim

program approval in a letter dated January 5, 1995. The State submitted

these corrective actions in letters dated February 22, March 20, and

June 13, 1995. EPA reviewed these corrective actions and determined

them to be adequate to allow for interim program approval.

In letters dated September 28, 1998 from the Governor of North

Dakota and October 6, 1998 from the Chief of the Environmental Health

Section, North Dakota Department of Health, the State submitted

revisions to its Air Pollution Control Rules, including its operating

permit program regulations (Chapter 33-15-14-06) that were effective

January 1, 1996, September 1, 1997, and September 1, 1998. On March 11,

1999, the State submitted a copy of an amendment to section 23-25-10 of

the North Dakota Century Code (NDCC) related to air pollution

penalties. The effective date of the March 11, 1999 statutory amendment

is August 1, 1999. The revised program regulations and statutory

amendment adequately address the problems identified in the July 7,

1995 Federal Register notice as requiring corrective action prior to

full program approval. The State also submitted evidence of proper

adoption of the revisions to its program regulations.

Areas in the North Dakota program that were identified by EPA as

deficient and the State's corrective actions for full program approval

consist of the following:

(1) EPA required the State to revise NDAC Sec. 33-15-14-06.4.c to

lower the insignificant emission unit threshold for criteria pollutants

to more reasonable levels. The correction was completed in the revised

North Dakota Air Pollution Control Rules, effective January 1, 1996.

(2) EPA advised the State that, in order to implement NDAC Sec. 33-

15-14-06.5.a.(1)(c), the State must adopt specific provisions to

determine that an alternative emission limit is equivalent to a limit

in North Dakota's state implementation plan (SIP), and EPA must approve

the provisions as part of the SIP. Until a SIP revision could be

accomplished, EPA requested the State to delete the words ``or this

article'' from the first line of NDAC Sec. 33-15-14-06.5.a.(1)(c). This

request was met when the State revised the North Dakota Air Pollution

Control Rules, effective January 1, 1996.

(3) EPA required the State to revise NDAC Sec. 33-15-14-06.5.a.(11)

to allow changes in emissions provided that they are not modifications

under Title I of the Act and the changes do not exceed the emissions

allowed under the permit. This correction was completed in the revised

North Dakota Air Pollution Control Rules, effective January 1, 1996.

(4) EPA required the State to revise NDAC Sec. 33-15-14-06.5.f(1)

to read ``* * * the department shall include in a title V permit to

operate a provision stating that compliance with the conditions of the

permit shall be deemed compliance with any applicable requirements as

of the date of permit issuance. * * *'' This correction was completed

in the revised North Dakota Air Pollution Control Rules, effective

January 1, 1996.

(5) EPA required the State to delete ``or this article'' from NDAC

Sec. 33-15-14-06.5.a.(8), and ``this article'' from Sec. 33-15-14-

06.5.a.(10) and Sec. 33-15-14-06.6.e.(1)(a)[2], to clarify that, in

order to implement those provisions, the State must have an economic

incentive, marketable permits, or a generic emissions trading program

approved in its SIP. This correction was completed in the revised North

Dakota Air Pollution Control Rules, effective January 1, 1996.

(6) EPA required the State to augment the Attorney General's

opinion to show that the provisions for judicial review in North Dakota

Century Code (NDCC), Sections 28-32-14 and 15 and in NDAC Article 33-22

are the exclusive means for obtaining judicial review of the terms and

conditions of permits and that petitions for judicial review must be

filed within the 90-day periods discussed in 40 CFR 70.4(b)(3)(xii).

Or, if such an opinion could not be rendered, the State was required to

change its statutes or regulations to ensure that the requirements of

40 CFR 70.4(b)(3)(xii) are met. This correction was completed in

Section 33-15-14-06.8. of the revised North Dakota Air Pollution

Control Rules, effective September 1, 1998.

(7) The State was required to augment the Attorney General's

opinion to show how, under State law, applicants may obtain judicial

review in cases of State inaction, consistent with the requirements of

40 CFR 70.4(b)(3)(xi). Or, if such an opinion could not be rendered,

the State was required to change its statutes or regulations to ensure

that the requirements of 40 CFR 70.4(b)(3)(xi) are met. This correction

was completed in 33-15-14-06.8 of the revised North Dakota Air

Pollution Control Rules, effective September 1, 1998.

(8) EPA raised the issue that North Dakota's Title V program did

not appear to be consistent in all respects with 40 CFR 70.11, in

particular with the requirement of maximum fines of not less than

$10,000 per day per violation. Specifically, North Dakota's statutory

penalty provision for violation of air pollution control requirements

set the penalty at ``not more than ten thousand dollars (or

imprisonment for not more than six months, or both) for knowingly

making a false statement, representation or certification in any

application or report required under the state air pollution control

statute (chapter 23-25), or for falsifying, tampering with, or

knowingly rendering inaccurate any monitoring device or method'' (NDCC

Sec. 23-25-10.3). It was not clear that the penalty was authorized per

day of

[[Page 32435]]

violation. To address this ambiguity, North Dakota enacted amendments

to NDCC Sec. 23-25-10 to specifically prohibit the making of false

statements or the falsifying of monitoring device or methods required

to be maintained under the State statute or under any permit condition,

rule, order, limitation, or other applicable requirement implementing

the State statute. Section 23-25-10, as amended, states that, upon

conviction, a violator is subject to a fine of not more than ten

thousand dollars per day per violation or by imprisonment for not more

than six months, or both. The amended Section 23-25-10 is effective

August 1, 1999.

C. Final Action

The EPA is granting full approval of the North Dakota operating

permit program.

In the North Dakota Title V program submittal of May 11, 1994,

Section II.B. (Program Description: Organizational Structure) states

``At this time, the Department will operate the program for the entire

State, excluding Indian Reservations.'' In this notice, EPA is

approving North Dakota's part 70 program for all areas within the State

except the following: any sources of air pollution located in ``Indian

Country'' as defined in 18 U.S.C. 1151, including the Fort Berthold,

Fort Totten, Standing Rock, Sisseton and Turtle Mountain Indian

Reservations, or any other sources of air pollution over which an

Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-55818

(Nov. 9, 1994). The term ``Indian Tribe'' is defined under the Act as

``any Indian tribe, band, nation, or other organized group or

community, including any Alaska Native village, which is Federally

recognized as eligible for the special programs and services provided

by the United States to Indians because of their status as Indians.''

See section 302(r) of the Act; see also 59 FR 43955, 43962 (Aug. 25,

1994); 58 FR 54364 (Oct. 21, 1993).

The EPA is publishing this rule without prior proposal because the

State is currently implementing its part 70 program and the Agency

views this as a noncontroversial action and anticipates no adverse

comments. However, in the proposed rules section of this Federal

Register publication, EPA is publishing a separate document that will

serve as the proposal to grant full approval of the operating permit

program submitted by the State of North Dakota should adverse comments

be filed. This rule will be effective August 16, 1999, without further

notice unless the Agency receives adverse comments by July 19, 1999.

If the EPA receives such comments, then EPA will publish a timely

withdrawal in the Federal Register informing the public that the rule

will not take effect. All public comments received will then be

addressed in a subsequent final rule based on the proposed rule. The

EPA will not institute a second comment period on this action. Any

parties interested in commenting on this rule must do so at this time.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local,

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the Office of Management and Budget, in a separately

identified section of the preamble to the rule, a description of the

extent of EPA's prior consultation with representatives of affected

tribal governments, a summary of the nature of their concerns, and a

statement supporting the need to issue the regulation. In addition,

Executive Order 13084 requires EPA to develop an effective process

permitting elected officials and other representatives of Indian tribal

governments ``to provide meaningful and timely input in the development

of regulatory policies on matters that significantly or uniquely affect

their communities.'' Today's rule does not significantly or uniquely

affect the communities of Indian tribal governments. This action does

not involve or impose any requirements that affect Indian Tribes.

Accordingly, the requirements of section 3(b) of E.O. 13084 do not

apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

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 small governmental

jurisdictions.

This final rule will not have a significant impact on a substantial

number of small entities because part 70 approvals under section 502 of

the Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore,

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because this approval does not create any new requirements, I certify

that this action will not have a significant economic impact on a

substantial number of small entities.

F. 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 approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of Congress and to the Comptroller General of the United

States. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. section 804(2).

H. 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 August 16, 1999. 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).)

List of Subjects in 40 CFR Part 70

Environmental Protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

and Reporting and recordkeeping requirements.

Dated: June 2, 1999.

Carol Rushin,

Acting Regional Administrator, Region VIII.

40 CFR 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. In appendix A to part 70 the entry for North Dakota is amended

by adding paragraph (b) to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

North Dakota

* * * * *

(b) The North Dakota Department of Health, Environmental Health

Section, submitted an operating permits program on May 11, 1994;

interim approval effective on August 7, 1995; revised January 1, 1996,

September 1, 1997, September 1, 1998, and August 1, 1999; full approval

effective on August 16, 1999.

* * * * *

[FR Doc. 99-15269 Filed 6-16-99; 8:45 am]

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