[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32433-32436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15269]
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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
[[Page 32434]]
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,
[[Page 32436]]
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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