Clean Air Act Approval and Promulgation of Air Quality Implementation Plan Revision for North Dakota; Revisions to the Air Pollution Control Rules; Delegation of Authority for New Source Performance Standards

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 60

[ND-001-0006a; FRL-6426-5]

Clean Air Act Approval and Promulgation of Air Quality

Implementation Plan Revision for North Dakota; Revisions to the Air

Pollution Control Rules; Delegation of Authority for New Source

Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation of authority.

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SUMMARY: EPA approves revisions to the State Implementation Plan (SIP)

submitted by the Governor of North Dakota with a letter dated September

28, 1998. The revisions affect air pollution control rules regarding

general

[[Page 47396]]

provisions, the State SO2 ambient air quality standard,

emissions of particulate matter and organic compounds, and permits to

construct. EPA will handle separately the revisions to the Title V

operating permit program, a direct delegation request for emission

standards for hazardous air pollutants for source categories, and the

State's plan for hospital, medical, and infectious waste incinerators.

Finally, EPA is providing notice that on May 7, 1999, North Dakota

was delegated authority to implement and enforce the New Source

Performance Standards (NSPS) in 40 CFR part 60, as of November 1, 1997,

(excluding subpart Eb).

DATES: This direct final rule is effective on November 1, 1999 without

further notice, unless EPA receives adverse comment by September 30,

1999. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register informing

the public that the rule will not take effect.

ADDRESSES: Mail written comments to Richard R. Long, Director, Air and

Radiation Program, Mailcode 8P-AR, Environmental Protection Agency,

Region VIII, 999 18th Street, suite 500, Denver, Colorado, 80202-2405.

Documents relevant to this action can be perused during normal business

hours at the Air and Radiation Program, Environmental Protection

Agency, Region VIII, 999 18th Street, suite 500, Denver, Colorado,

80202-2405. Copies of the incorporation by reference material are

available at the Air and Radiation Docket and Information Center,

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460. Copies of the State documents relevant to this action are

available at the North Dakota Department of Health, Division of

Environmental Engineering, 1200 Missouri Avenue, Bismarck, North

Dakota, 58504-5264.

FOR FURTHER INFORMATION CONTACT:

Amy Platt, Environmental Protection Agency, Region VIII, (303) 312-

6449.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''

``us,'' or ``our'' are used we mean EPA.

I. Background

In response to a petition by the Lignite Energy Council, the North

Dakota Legislature adopted Senate Bill No. 2356 in the spring of 1997.

This bill created a new section in chapter 23-25 of the North Dakota

Century Code which, among other things, prohibits the adoption of

ambient air quality rules or standards for sulfur dioxide that affect

coal conversion facilities or petroleum refineries that are more strict

than federal rules or standards under the Clean Air Act. As a result,

the North Dakota Department of Health revised Chapter 33-15-02, Ambient

Air Quality Standards, of the North Dakota Administrative Code

(N.D.A.C.), to, among other things, exempt coal conversion facilities

and petroleum refineries from the North Dakota ambient air quality

standards (AAQS) for sulfur dioxide (SO2), which are more

stringent than the National Ambient Air Quality Standards (NAAQS) for

SO2. The revision is considered a relaxation. Because of the

change in State law, coal conversion facilities and petroleum

refineries will no longer be limited by the North Dakota AAQS and will

not be allowed to emit SO2 up to the NAAQs, unless limited

by Prevention of Significant Deterioration (PSD) increment. The

September 28, 1998 SIP revision addresses, among other things, this

rule revision.

II. Analysis of State Submission

A. Procedural Background

The Act requires States to follow certain procedures in developing

implementation plans and plan revisions for submission to EPA. Sections

110(a)(2) and 110(1) of the Act provide that each implementation plan a

State submits must be adopted after reasonable notice and public

hearing.

We also must determine whether a submittal is complete and

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

the Act and 57 FR 13565). EPA's completeness criteria for SIP

submittals can be found in 40 CFR part 51 appendix V. EPA attempts to

determine completeness within 60 days of receiving a submission.

However, the law considers a submittal complete if we don't determine

completeness within six months after we receive it.

To provide for public comment, the North Dakota Department of

Health (NDDOH), after providing adequate notice, held a public hearing

on May 7, 1998 to address the revisions to the SIP and Air Pollution

Control Rules. Following the public hearing, public comment period, and

legal review by the North Dakota Attorney General's Office, the North

Dakota State Health Council adopted the rule revisions, which became

effective on September 1, 1998.

The Governor of North Dakota submitted the SIP revisions to EPA

with a letter dated September 28, 1998. We reviewed them to determine

completeness under the completeness criteria in 40 CFR part 51,

appendix V. We found the submittal complete and so notified the

Governor in a letter dated December 3, 1998. That letter also described

the next steps to be taken in our review.

B. September 28, 1998 Revisions

As noted above, we will handle separately the revisions in the

September 28, 1998 submittal regarding Chapter 33-15-14 (section

specific to the Title V operating permit program), a direct delegation

request for North Dakota Air Pollution Control Rules Chapter 33-15-22,

regarding emission standards for hazardous air pollutants for source

categories, as well as the State's plan for hospital, medical, and

infectious waste incinerators. The submittal also included a direct

delegation request for standards of performance for new stationary

sources (see below). Finally, the submittal addressed revisions to

general provisions, the State SO2 ambient air quality

standard, emissions of particulate matter and organic compounds, and

the permit to construct program, which involve the following chapters

of the N.D.A.C. to be addressed in this document: 33-15-01 General

Provisions; 33-15-02 Ambient Air Quality Standards; 33-15-05 Emissions

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

Emissions; and 33-15-14 Designated Air Contaminant Source, Permit to

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

(subsection specific to permit to construct only).

1. Chapter 33-15-01, N.D.A.C., General Provisions

Definitions for ``coal conversion facility'' and ``petroleum

refinery'' were added to this chapter. This chapter was also revised to

update the definition of volatile organic compounds (``VOCs'') in 33-

15-01-04.51 to match the Federal definition as published by EPA on

April 9, 1998 (63 FR 17331). These revisions are consistent with

Federal requirements, and therefore, approvable.

2. Chapter 33-15-02, N.D.A.C., Ambient Air Quality Standards

In section 33-15-02-07, Concentrations of Air Contaminants in the

Ambient Air Restricted, two new subsections were added. The new

subsection 3 allows coal conversion facilities and petroleum refineries

to emit sulfur dioxide up to the National Ambient Air Quality Standards

(NAAQS). This subsection also reiterates that affected facilities must

still comply with the Prevention of

[[Page 47397]]

Significant Deterioration (PSD) increments. The new subsection 4 allows

facilities that experience a malfunction, or that need to shut down air

pollution control equipment for maintenance, to emit sulfur dioxide in

quantities that may exceed the 1-hour and 24-hour State Ambient Air

Quality Standards (AAQS), but not to exceed the NAAQS. These revisions

are a relaxation of requirements for affected sources because the NAAQS

are less stringent than the State standards.

In addition, Table 2 was added to this chapter. Table 2 lists the

NAAQS for sulfur dioxide.

In a March 28, 1997 letter from Richard Long, EPA, to Dana Mount,

North Dakota Department of Health (NDDOH), EPA requested more

information from the State regarding the implementation of Senate Bill

No. 2356, which had recently been adopted by the State legislature and

signed by the Governor. This bill prohibits the NDDOH from adopting

sulfur dioxide ambient air quality standards affecting coal conversion

facilities or petroleum refineries that are more strict than federal

standards. The bill also provides for retroactive application, thus

affecting earlier permitting decisions by NDDOH. EPA requested

information to support a demonstration that the NAAQS and PSD

increments would be protected in light of this change in State

standards. In a series of letters from the NDDOH dated April 10 and

November 17, 1997, and March 23, June 10, and December 1, 1998, the

State provided EPA with adequate technical support information to

demonstrate that the NAAQS and PSD increments would be protected.

a. State's Technical Support Information. According to NDDOH,

Senate Bill No. 2356 allows existing and new coal conversion facilities

and petroleum refineries to emit sulfur dioxide in amounts that could

raise ambient concentrations up to the NAAQS. The sources would,

however, have to comply with all other applicable requirements of the

State Implementation Plan (SIP), including PSD increment. Note that the

new law only applies to nine existing facilities (seven power plants,

one coal gasification plant, and one petroleum refinery). For

facilities that indicate a desire to increase their allowable emission

rates based on this legislation, the State intends to review associated

PSD increment consumption and NAAQS impacts. The State does not believe

any increase in emissions from these facilities will endanger the NAAQS

because air quality in North Dakota is good based on moniotring

conducted around the State, and ambient SO2 levels are well

below both the State AAQS and the NAAQS.

At EPA's request, the State outlined how it intended to implement

the requirements of SB2356 in a November 17, 1997 letter from William

Delmore, North Dakota Assistant Attorney General, to Terry Lukas, EPA.

The State provided a list of existing sources which are subject to

Senate Bill No. 2356, a proposed rule amendment, and SIP revision

schedule. The State proposed to revised two chapters of its Air

Pollution Control Rules to implement SB2356, namely Chapters 33-15-01,

General Provisions, and 33-15-02, Ambient Air Quality Standard. In

Chapter 33-15-01, the NDDOH proposed definitions for ``coal conversion

facility'' and ``petroleum refinery.'' In Chapter 33-15-02, the NDDOH

proposed to include the substantive requirements of SB2356. The State

also declared its intent to enforce compliance with these revisions.

Upon review of Mr. Delmore's November 17, 1997 letter, EPA provided

further guidance to the State regarding the necessary demonstration to

show that the revisions would ensure protection of the NAAQS and PSD

increments in light of the change in applicability of the State AAQS

mandated by Senate Bill No. 2356. In a January 8, 1998 letter, EPA

indicated that the requirement for making such a demonstration could

not be fulfilled at the time of SIP revision because the effect of the

relaxation on ambient air quality would depend on future permitting

actions. Therefore, the demonstration would have to be built into the

revised SIP so that EPA could consider approval of the revision.

EPA provided wording changes to the proposed regulatory language to

ensure that emissions would not be permitted in any manner or amount

that would cause or contribute to a violation of the NAAQS or PSD

increments and to require a demonstration through modeling, with

opportunity for EPA review, that a revised emission limit would not

cause or contribute to a violation of the NAAQS, PSD increments, or any

other requirement under the Federal Clean Air Act.

EPA also instructed the State to provide additional information as

technical support documentation which would be necessary for EPA to

consider approval of the final SIP revision, as follows:

--General modeling requirements that sources will have to meet if

they seek to raise their emissions limits as a result of this change

in applicability of the State AAQS. These general modeling

requirements should follow the requirements contained in EPA's

Guidedline on Air Quality Modeling (40 CFR part 51, appendix W) and

should include consideration of cumulative impacts.

--An explanation of how the State intends to determine ``that any

source * * * causes a verifiable ambient air quality standard

violation which is attributable to the source * * * for compliance

purposes, as indicated in Mr. Delmore's November 17, 1997 letter.

In a March 23, 1998 letter, the NDDOH provided its draft SIP

revision to EPA for review and comment prior to public hearing. This

draft SIP revision included, among other things, the proposed

regulatory revisions for implementing SB2356.

With an April 29, 1998 comment letter for public hearing, EPA noted

that, for the most part, our concerns about the proposed revisions as

described in Mr. Delmore's November 17, 1997 letter had been addressed.

The State addressed our suggested language changes by incorporating

them into Chapter 33-15-02, Ambient Air Quality Standards, and Chapter

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

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

related to alterations to a source under the permit to construct

section--see II.B.5. below). The State believed it was reasonable to

address our concerns through Chapter 33-15-14 (as well as Chapter 33-

15-02) because any request for an increase in emissions will have to go

through the State's permit process.

EPA also requested additional information related to how to model

different source categories subject to different SO2

standards (State AAQS vs. NAAQS) in the same airshed, i.e., which

standard would apply.

In a June 10, 1998 letter from Dana Mount, NDDOH, to Richard Long,

EPA, the State responded to our public hearing comments and provided

some of the technical support documentation necessary. The State

indicated that all modeling would be conducted in accordance with the

``Guideline on Air Quality Models'' published by EPA. With respect to

modeling different source categories subject to different

SO2 standards in the same airshed, the State addressed the

following scenarios:

Existing source subject to State standard and new source subject

to the NAAOS--A new source subject to the NAAQS will be permitted as

long as modeling results indicate that the new source plus all

existing sources do not cause or contribute to a violation of the

NAAQS or PSD increments.

[[Page 47398]]

Existing source subject to the NAAQS and a new source subject to

the State standard--The new source will be permitted as long as it

does not cause or contribute to a violation of the State AAQS or PSD

increments. If modeling for this source plus all existing sources

predicts a violation of the State standard or PSD increments, the

new facility will not be permitted if it significantly contributes

to these violations. If the new source would not significantly

contribute to these violations, then it will be permitted. (However,

a SIP revision will be required to address the predicted increment

violation. See 40 CFR 51.166(a)(3).)

Existing source subject to the NAAQS seeking to increase its

emission limit in an air shed with existing sources subject to the

State standard--The existing NAAQS source will be allowed to

increase its emissions as long as the modeling (which includes all

sources) does not predict a violation of the NAAQS or PSD

increments.

As the State's final piece of technical support documentation, a

December 1, 1998 letter from Dana Mount, NDDOH, to Richard Long, EPA,

summarized the State's approach to enforcement of its revised

SO2 standard. In the event that data from the state-wide

ambient air quality monitoring network indicates an exceedance of the

SO2 standard, that data will be used along with dispersion

modeling to determine what source or sources contributed to the

exceedance. Both ambient monitoring and dispersion modeling will be

used as the primary tools to determine corrective actions or

enforcement activity. Dispersion modeling also will be used in the case

of suspected exceedances to determine the necessity of establishing

monitoring sites at locations of prime impact.

b. EPA's Rationale for Approving Change. EPA believes that we can

approve this change in applicability of more stringent State standards

because the NAAQS, PSD increments, and other Clean Air Act programs

appear to be protected, based on the information provided by the State

in the letters discussed above and the State's incorporation of EPA's

suggested regulatory language. The protective features of this SIP

revision and the State's policy for implementing it are as follows:

i. Demonstration is built into the SIP revision through

regulatory language to ensure that the NAAQS, PSD increments, and

other Clean Air Act requirements are protected. (See Chapter 33-15-

02-07. 3 and 4 and Chapter 33-15-14-02.3c)

ii. Sources that seek to raise their emissions limits as a

result of this change in applicability of the State AAQS will have

to meet modeling requirements that follow EPA's Guideline on Air

Quality Modeling (40 CFR part 51, appendix W) and will have to

include consideration of cumulative impacts.

iii. Both ambient monitoring and dispersion modeling will be

used to determine corrective actions or enforcement activity in the

event that monitoring data indicates an exceedance of the

SO2 standard. Dispersion modeling also will be used in

the case of suspected exceedances to determine the need for new

monitoring sites at locations or prime impact.

For a more detailed discussion of EPA's rationable for approving

this revision, please refer to the Technical Support Document (TSD)

accompanying this action.

3. Chapter 33-15-05, N.D.A.C., Emissions of Particulate Matter

Restricted

The State deleted its requirements for new infectious waste

incinerators since the units will be covered by the requirements in

Chapter 33-15-12, Subpart Ec, Standards of performance for hospital/

medical/infectious waste incinerators for which construction is

commenced after June 20, 1996. This change was made to avoid

duplication of Federal rules; however, the State considers it a

relaxation of State rules.

The State has been delegated authority to implement and enforce the

Federal New Source Performance Standard (NSPS) for hospital/medical/

infectious waste incinerators (HMIWI) for which construction is

commenced after June 20, 1996 (subpart Ec--see below), and also has

received approval of its State Plan to implement the Emission

Guidelines for existing HMIWI (see 64 FR 25831, May 13, 1999). Given

that the State is implementing that NSPS and State Plan, any change in

particulate matter emissions requirements for affected sources in North

Dakota is of a de minimus nature. Thus, EPA believes the overall impact

of this revision, if any, is minor, and therefore, approvable.

4. Chapter 33-15-07, N.D.A.C., Control of Organic Compounds Emissions

This revision is an administrative correction to the ``Scope''

section to correct the reference to Chapter 1 of the rules. It is minor

in nature and approvable.

5. Chapter 33-15-14, N.D.A.C., Designated Air Contaminant Sources,

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

Operate (Revisions Specific to Permit To Construct Section)

Subsection 33-15-14-02.3.c, regarding alterations to a source under

the permit to construct section, was added to clarify that any owner or

operator of a source who requests an increase in the source's sulfur

dioxide emission rate pursuant to Chapter 33-15-02-07.3 (see II.B.2

above) must demonstrate through a dispersion modeling analysis that the

revised allowable emissions will not cause or contribute to a violation

of the NAAQS, PSD increments, or any other Federal Clean Air Act

requirements. The revision also provides for public and EPA review of

such requests.

This language was added at EPA's request to ensure that the NAAQS,

PSD increments, or any other Federal Clean Air Act requirements would

be protected in light of the change in applicability of the State

SO2 AAQS, as discussed in section II.B.2 above. This

revision is approvable.

C. Delegation of Authority for NSPS

With the September 28, 1998 submittal, North Dakota requested

delegation of authority for implementation and enforcement of the NSPS

(40 CFR part 60, subpart Ec) for hospital/medical/infectious waste

incinerators pursuant to section 111(c) of the Clean Air Act, 42 U.S.C.

7411(c), as amended. On May 7, 1999, delegation was given with the

following letter:

Ref: 8P-AR

Honorable Edward T. Schafer,

Goveror of North Dakota, State Capitol, Bismarck, North Dakota

58505-0001.

Re: Delegation of Clean Air Act New Source Performance Standards

Dear Governor Schafer: In a September 28, 1998, letter from you

and an October 6, 1998, letter from Francis Schwindt, North Dakota

Department of Health, the State of North Dakota requested delegation

of authority for revisions to the New Source Performance Standards

(NSPS), promulgated in Chapter 33-15-12 of the North Dakota

Administrative Code. The State's NSPS regulations incorporate by

reference the Federal NSPS in 40 CFR Part 60 as in effect on

November 1, 1997, with the exception of subpart Eb, which the State

has not adopted. In the above-mentioned letters, the State requests

authority for implementation and enforcement of the NSPS through the

delegation of authority process pursuant to section 111(c) of the

Clean Air Act, 42 U.S.C. Sec. 7411(c), as amended.

Subsequent to States adopting NSPS regulations, EPA delegates

the authority for the implementation and enforcement of those

standards, so long as the State's regulations are not less stringent

than the Federal regulations. EPA has reviewed the pertinent

statutes and regulations of the State of North Dakota and has

determined that they provide an adequate and effective procedure for

the implementation and enforcement of the NSPS by the State of North

Dakota. Therefore, pursuant to Section 111(c) of the Clean Air Act

(Act), as amended, and 40 CFR Part 60, EPA hereby delegates its

authority for the implementation and enforcement of one NSPS to the

State of North Dakota as follows:

(A) Responsibility for all sources located, or to be located, in

the State of North Dakota

[[Page 47399]]

subject to the standards of performance for new stationary sources

promulgated in 40 CFR Part 60 as in effect on November 1, 1997, with

the exception of subpart Eb, which the State has not adopted. The

additional category of new stationary sources covered by this

delegation is hospital/medical/infectious waste incinerators for

which construction is commenced after June 20, 1996 (subpart Ec).

(B) Not all authorities of NSPS can be delegated to states under

Section 111(c) of the Act, as amended. The EPA Administrator retains

authority to implement those sections of the NSPS that require: (1)

approving equivalency determinations and alternative test methods,

(2) decision making to ensure national consistency, and (3) EPA

rulemaking to implement. Therefore, in delegating to North Dakota

the implementation and enforcement authority for Subpart Ec, the

following authorities shall be retained by the EPA Administrator and

not transferred to the State: (1) the requirements of Sec. 60.56c(i)

establishing operating parameters when using controls other than

those listed in Sec. 60.56c(d); and (2) alternative methods of

demonstrating compliance under Sec. 60.8. For the other NSPS

categories previously delegated to the State, our May 28, 1998,

delegation letter lists those sections which can't be delegated to

the State.

(C) As 40 CFR Part 60 is updated, North Dakota should revise its

regulations accordingly and in a timely manner and submit to EPA

requests for updates to its delegated authority.

This delegation is based upon and is a continuation of the

conditions stated in EPA's original delegation letter of August 30,

1976, to the Honorable Arthur A. Link, then Governor of North

Dakota, except that condition 5, relating to Federal facilities, has

been voided by the Clean Air Act Amendments of 1977. It is also

important to note that EPA retains concurrent enforcement authority,

as stated in condition 2. In addition, if at any time there is a

conflict between a State and a Federal NSPS regulation, the Federal

regulation must be applied if it is more stringent than that of the

State, as stated in condition 7. A copy of the August 30, 1976,

letter was published in the notices section of the Federal Register

on October 13, 1976 (41 FR 44884), along with the associated

rulemaking notifying the public that certain reports and

applications required from operators of new and modified sources

shall be submitted to the State of North Dakota (41 FR 44859).

Copies of the Federal Register notices are enclosed for your

convenience.

Since this delegation is effective immediately, there is no need

for the State to notify the EPA of its acceptance. Unless we receive

written notice of objection from you within ten days of the date on

which you receive this letter, the State of North Dakota will be

deemed to have accepted all the terms of this delegation. An

information notice will be published in the Federal Register in the

near future informing the public of this delegation, in which this

letter will appear in its entirety.

If you have any questions on this matter, please call me, or

have your staff contact Richard Long, Director of our Air and

Radiation Program, at 303-312-6005.

Sincerely yours,

William P. Yellowtail,

Regional Administrator.

Enclosures

cc: Francis Schwindt, ND Department of Health; Dana Mount, ND

Department of Health

III. Final Action

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

Governor with a letter dated September 28, 1998. The revisions in the

September 28, 1998 submittal which are being approved in this document

involve the following chapters of the North Dakota Administrative Code:

33-15-01 General Provisions; 33-15-02 Ambient Air Quality Standards;

33-15-05 Emissions of Particulate Matter Restricted; 33-15-07 Control

of Organic Compounds Emissions; and 33-15-14 Designated Air Contaminant

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

Permit to Operate (revisions specific to the Permit to Construct

program only).

In addition, the September 28, 1998 submittal included revisions to

Chapter 33-15-14, N.D.A.C., 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 program), the State's

111(d) plan for existing hospital/medical/infectious waste

incinerators, and a request for direct delegation of Chapter 33-15-22,

N.D.A.C., Emission Standards for Hazardous Air Pollutants for Source

Categories, all of which are being handled separately.

Finally, as requested by the State with its September 28, 1998

submittal, EPA is providing notice that it granted delegation of

authority to North Dakota on May 7, 1999, to implement and enforce the

NSPS promulgated in 40 CFR part 60, promulgated as of November 1, 1997

(except subpart Eb, which the State has not adopted). However, the

State's NSPS authorities do not include those authorities which cannot

be delegated to the states, as defined in 40 CFR part 60.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. The State requested this action. However, in the

``Proposed Rules'' section of today's Federal Register publication, EPA

is publishing a separate document that will serve as the proposal to

approve the SIP revision if adverse comments should be filed. This rule

will be effective November 1, 1999 without further notice unless the

Agency receives adverse comments by September 30, 1999. If the EPA

receives adverse comments, EPA will publish a timely withdrawal in the

Federal Register informing the public that the rule will not take

effect. EPA will address all public comments 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 must do so

at this time.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Executive Order 12875: Enhancing the Intergovernmental Partnership

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, Executive Order 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, Executive Order 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 rules does not impose any enforceable duties on these

entities. This rule has the effect of making existing, state-

enforceable requirements federally enforceable. Accordingly, the

requirements of section 1(a) of Executive Order 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),

[[Page 47400]]

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.

EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This rule is not subject to E.O. 13045

because it approves a state rule implementing a Federal standard.

D. Executive Order 13084

Executive Order 13084: Consultation with Coordination With Indian

Tribal Governments

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects 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, Executive Order 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 rule does not create a

mandate on tribal governments. Accordingly, the requirements of section

3(b) of Executive Order 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 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

create any new requirements, I certify that this action will not have

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, 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).

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. 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 November 1, 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

40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements, Sulfur oxides, and Volatile organic

compounds.

40 CFR Part 60

Environmental protection, Air pollution control, Aluminum, Ammonium

sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal,

Copper, Dry cleaners, Electric power plants, Fertilizers, Fluoride,

Gasoline, Glass and glass products, Grains, Graphic arts industry,

Household appliances, Insulation, Intergovernmental relations, Iron,

Lead, Lime, Metallic and nonmetallic mineral processing plants, Metals,

Motor vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide,

Paper and paper products industry, Particulate matter,

[[Page 47401]]

Paving and roofing materials, Petroleum, Phosphate, Plastics materials

and synthetics, Reporting and recordkeeping requirements, Sewage

disposal, Steel, Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment

and disposal, Wool, and Zinc.

Dated: August 5, 1999.

Jack W. McGraw,

Acting Regional Administrator,

Region VIII.

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 et seq.

Subpart JJ--North Dakota

2. Section 52.1820 is amended by adding paragraph (c)(31) to read

as follows:

Sec. 52.1820 Identification of plan.

* * * * *

(c) * * *

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

Dakota State Implementation Plan and Air Pollution Control Rules with a

letter dated September 28, 1998. The revisions address air pollution

control rules regarding general provisions, ambient air quality

standards, emissions of particulate matter and organic compounds, and

the permit to construct program.

(i) Incorporation by reference.

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

General Provisions 33-15-01-04.6-52; Ambient Air Quality Standards 33-

15-02-04, 33-15-02-0.3, 33-15-02-07.4, and Table 2; Emissions of

Particulate Matter Restricted 33-15-05-03.1; Control of Organic

Compound Emissions 33-15-07-01.1; and Designated Air Contaminant

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

Permit to Operate 33-15-14-02.3.c, effective September 1, 1998.

(ii) Additional material.

(A) An April 10, 1997 letter from Dana Mount, North Dakota

Department of Health, to Richard Long, EPA, to provide technical

support documentation regarding the impact of SB2356 on sulfur dioxide

emission limits for existing and new coal conversion facilities and

petroleum refineries.

(B) A November 17, 1997 letter from William Delmore, North Dakota

Assistant Attorney General, to Terry Lukas, EPA, to propose how the

North Dakota Department of Health will implement the requirements of

SB2356.

(c) A June 10, 1998 letter from Dana Mount, North Dakota Department

of Health, to Richard Long, EPA, to provide technical support

documentation regarding the revisions to Chapter 33-15-02, Ambient Air

Quality Standards, and Chapter 33-15-14, Designated Air Contaminant

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

Permit to Operate (revisions specific to the permit to construct

section only).

(D) A December 1, 1998 letter from Dana Mount, North Dakota

Department of Health, to Richard Long, EPA, to provide technical

support documentation regarding how the State will enforce the revised

sulfur dioxide standards in Chapter 33-15-02.

PART 60--[AMENDED]

1. The authority citation for part 60 continues to read as follows:

Authority: 42 U.S.C. 7401, 7411, 7414, 7416, and 7601 as amended

by the Clean Air Act Amendments of 1990, Pub. L. 101-549, 104 Stat.

2399 (November 15, 1990; 402, 409, 415 of the Clean Air Act as

amended, 104 Stat. 2399, unless otherwise noted).

Subpart A--General Provisions

2. In section 60.4 the table entitled ``Delegation Status of New

Source Performance Standards ((NSPS) for Region VIII)'' is amended by

adding the entry for ``Ec--Hospital/Medical/Infectious Waste

Incinerators'' in alphabetical order to read as follows:

Sec. 60.4 Address.

* * * * *

(c) * * *

Delegation Status of New Source Performance Standards

[(NSPS) for Region VIII]

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

Subpart CO MT \1\ ND SD \1\ UT \1\ WY

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

* * * * * * *

Ec--Hospital/Medical/Infectious .................. .................. (*)...............

Waste Incinerators.

* * * * * * *

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

* Indicates approval of State regulation.

\1\ Indicates approval of New Source Performance Standards as part of the State Implementation Plan (SIP).

[FR Doc. 99-22177 Filed 8-30-99; 8:45 am]

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