[Federal Register Volume 60, Number 161 (Monday, August 21, 1995)]
[Rules and Regulations]
[Pages 43396-43402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20601]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 61
[ND6-1-6534a, ND2-1-6064a; FRL-5261-6]
Clean Air Act Approval and Promulgation of State Implementation
Plan for North Dakota; Revisions to the Air Pollution Control Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA approves the State implementation plan (SIP) revisions
submitted by the State of North Dakota with letters dated June 26,
1990, June 30, 1992, and April 29, 1994. The revisions address air
pollution control rules regarding general provisions; emissions of
particulate matter and organic compounds; new source performance
standards (NSPS); national emission standards for hazardous air
pollutants (NESHAPs); construction and operating permit programs;
prevention of significant deterioration (PSD) of air quality; and
control of emissions from oil and gas well production facilities. The
April 29, 1994 submittal also addressed the following two issues which
will be acted on in separate documents: Revisions to the PSD rules with
respect to PM10 increments; and revisions to the visibility
monitoring chapter of the SIP. Further, EPA is approving the State's
construction permit and federally enforceable State operating permit
(FESOP) programs under section 112(l) of the amended Clean Air Act
(Act) for the purposes of creating federally enforceable permit
conditions for sources of hazardous air pollutants (HAPs).
DATES: This final rule is effective on October 20, 1995, unless
comments are received in writing by September 20, 1995. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Copies of the State's submittal and other information are
available for inspection during normal business hours at the following
locations: Air Programs Branch, Environmental Protection Agency, Region
VIII, 999 18th Street, suite 500, Denver, Colorado 80202-2405; North
Dakota State Department of Health and Consolidated Laboratories,
Environmental Health Section, 1200 Missouri Avenue, Bismarck, North
Dakota, 58502-5520; and The Air and Radiation Docket and Information
Center, 401 M Street SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection
Agency, Region VIII, (303) 293-1769.
SUPPLEMENTARY INFORMATION:
I. Background
The State submitted various revisions to its air pollution control
rules with letters to EPA dated June 26, 1990, June 30, 1992, and April
29, 1994. These revisions were necessary to make the rules consistent
with Federal requirements. Portions of the 1990 and 1992 submittals
were acted on previously (see 56 FR 12848, March 28, 1991; 56 FR 28322,
June 20, 1991; 57 FR 28619, June 26, 1992; 58 FR 5294, January 21,
1993; and 58 FR 54041, October 20, 1993).
II. This Action
A. Analysis of State Submissions
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing. Section 110(l) of the Act similarly provides that each
revision to an implementation plan submitted by a State under the Act
must be adopted by such State after reasonable notice and public
hearing.
EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action [see section 110(k)(1)
and 57 FR 13565]. EPA's completeness criteria for SIP submittals are
set out at 40 CFR part 51, appendix V. EPA attempts to make
completeness determinations within 60 days of receiving a submission.
However, a submittal is deemed complete by operation of law if a
completeness determination is not made by EPA six months after receipt
of the submission.
[[Page 43397]]
To entertain public comment, the State of North Dakota, after
providing adequate notice, held public hearings on January 3, 1990,
October 16, 1991, and September 28, 1993 to address the respective
revisions to the SIP and Air Pollution Control Rules. Following the
public hearings, the North Dakota State Health Council adopted the
respective rule revisions.
The Governor of North Dakota submitted revisions to the SIP with
letters dated June 26, 1990, June 30, 1992, and April 29, 1994. The SIP
revisions were reviewed by EPA to determine completeness in accordance
with the completeness criteria set out at 40 CFR part 51, appendix V.
The submittals were found to be complete and letters dated October 22,
1990, August 27, 1992, and June 22, 1994 were forwarded to the Governor
indicating the completeness of the respective submittals and the next
steps to be taken in the review process.
2. June 26, 1990 Revisions
The June 26, 1990 submittal addresses North Dakota Air Pollution
Control Rules involving general provisions, ambient air quality
standards, emissions of particulate matter, control of pesticides,
NSPS, NESHAPs, permitting, PSD, and emissions from oil and gas well
production facilities. Most of the revisions were approved in separate
Federal Register notices (see 56 FR 12848, March 28, 1991; 56 FR 28322,
June 20, 1991; 57 FR 28619, June 26, 1992). However, one section of the
June 26, 1990 submittal was not addressed in those approvals. That
section was 33-15-13-02 regarding revised asbestos NESHAP regulations.
The 1990 asbestos regulation revision was superseded by the State's
revised asbestos NESHAP rules in the April 29, 1994 submittal, which
EPA has determined to be consistent with Federal requirements and
approvable.
3. June 30, 1992 Revisions
Portions of the June 30, 1992 submittal involving revisions to the
State's rules regarding emissions of sulfur compounds, NSPS, and
NESHAPs (excluding asbestos) were approved in the Federal Register on
January 21, 1993 (see 58 FR 5294) and October 20, 1993 (see 58 FR
54041). The remaining portions are being addressed in this document and
involve the following sections of the North Dakota Air Pollution
Control Rules: 33-15-01 General Provisions; 33-15-05 Emissions of
Particulate Matter Restricted; 33-15-07 Control of Organic Compounds
Emissions; 33-15-13 Emission Standards for Hazardous Air Pollutants
(specifically, the section regarding the asbestos NESHAP); 33-15-15
Prevention of Significant Deterioration of Air Quality; and 33-15-20
Control of Emissions from Oil and Gas Well Production Facilities.
a. Chapter 33-15-01 General Provisions. The definition of volatile
organic compound (VOC) was updated. This VOC definition is superseded
by the State's April 29, 1994 submittal, which included a revised VOC
definition that EPA has determined to be approvable. Also, in the 1992
submittal, administrative information was updated to reflect the
Department's new telephone number. These administrative revisions are
minor and approvable.
b. Chapter 33-15-05 Emissions of Particulate Matter Restricted.
Provisions were removed which allowed the State discretion in approving
alternatives to using multiple chamber incinerators for the burning of
refuse, per EPA's request. Also, language was added to specify a
testing methodology for determining particulate emissions that have a
diameter of 10 microns or less. These revisions are consistent with
Federal requirements and therefore, approvable.
c. Chapter 33-15-07 Control of Organic Compounds Emissions.
Revisions made to this chapter include the following:
(i) All references to ``volatile organic liquids'' were changed to
read ``volatile organic compounds.''
(ii) ``Volatile organic liquid-water separator'' has been changed
to read ``volatile organic compounds-water separator,'' and the term
was defined.
(iii) Several other definitions were corrected or clarified.
(iv) The provision was eliminated that allowed the State discretion
in approving alternatives to using the appropriate rotating pumps and
compressors to handle volatile organic compounds, per EPA's request.
(v) To be more specific regarding intent, language was changed to
read ``The emissions from all devices designed for incinerating,
flaring, or treating waste organic compound gases and vapors shall
result in compliance with Chapters 2 and 16 of this article,'' i.e.,
compliance with the ambient air quality standards.
These revisions strengthen this rule and, therefore, are
approvable.
d. Chapter 33-15-13 Emission Standards for Hazardous Air
Pollutants. Section 33-15-13-02, regarding emission standards for
asbestos, was revised. These revisions are superseded by the State's
most recent asbestos NESHAP revisions contained in the April 29, 1994
submittal (see below), which EPA has determined to be approvable.
e. Chapter 33-15-15 Prevention of Significant Deterioration of Air
Quality. The definition of ``volatile organic compounds'' was added to
match EPA's definition. The definition excludes the compounds
identified by EPA as ``negligibly photochemical reactive'' from the
requirements of this chapter since EPA has determined that they are not
considered significant precursors to ozone. Other minor changes were
made to make the State rule consistent with the Federal rule. These
revisions are consistent with Federal requirements and, therefore, are
approvable.
f. Chapter 33-15-20 Control of Emissions From Oil and Gas Well
Production Facilities. A definition for ``continuous burning pilot''
was added and the reporting requirements were clarified. The provision
was removed which allowed the State discretion in approving alternative
methods of calculation for determining PSD applicability for sulfur
dioxide, per EPA's request. These revisions are consistent with Federal
requirements and therefore, approvable.
4. April 29, 1994 Revisions
The April 29, 1994 submittal addresses visibility monitoring
requirements outlined in Chapter 6 of the SIP. However, in a January
26, 1995 letter from Dana Mount, North Dakota Division of Environmental
Engineering, to Douglas Skie, EPA, the State indicated that a
superseding SIP revision regarding visibility monitoring would be
forthcoming and requested that EPA take no action at this time on its
April 1994 visibility monitoring revisions. Accordingly, EPA declines
to take action on the visibility monitoring revisions included in North
Dakota's April 29, 1994 submittal.
The April 29, 1994 submittal also addresses the following chapters
of the North Dakota Air Pollution Control Rules: 33-15-01 General
Provisions; 33-15-12 Standards of Performance for New Stationary
Sources; 33-15-13 Emission Standards for Hazardous Air Pollutants; 33-
15-14 Designated Air Contaminant Sources, Permit to Construct, Minor
Source Permit to Operate; and 33-15-15 Prevention of Significant
Deterioration of Air Quality. The revisions to Chapter 33-15-15 will be
addressed in a separate action.
a. Chapter 33-15-01 General Provisions. Under Subsection 33-15-01-
04, a definition of ``federally enforceable'' was added and the
definition of ``volatile organic compounds'' was modified to match the
Federal definition in 40 CFR 51.100.
[[Page 43398]]
These revisions are consistent with Federal requirements and therefore,
approvable.
b. Chapter 33-15-12 Standards of Performance for New Stationary
Sources; Chapter 33-15-13 Emission Standards for Hazardous Air
Pollutants. The revisions to 33-15-12 and 33-15-13 incorporate by
reference the Federal NSPS in 40 CFR part 60 and the Federal NESHAPs in
40 CFR part 61, as in effect on May 1, 1993, with the exception of 40
CFR part 61, subparts B, H, I, K, Q, R, T, and W (i.e., radionuclides).
The State's asbestos rules were updated to reflect the Federal asbestos
rule in effect on May 1, 1993, as found in 40 CFR part 61, subpart M.
EPA has reviewed the State's revised NSPS and NESHAPs regulations and
determined that they are consistent with the Federal regulations, and,
therefore, approvable.
c. 33-15-14 Designated Air Contaminant Sources, Permit to
Construct, Minor Source Permit to Operate, Title V Permit to Operate.
Section 33-15-14-01 was modified to list several new designated air
pollution source categories. New categories include the following: (1)
Chemical process facilities involving cresylic acids, phenol, or
polymer manufacturing and coating operations; (2) metallurgical
facilities involving electrolytic plating operations; (3) mineral
products facilities involving calciners and dryers; (4) wood processing
facilities involving sawmills or wood products manufacturing; (5)
municipal waste combustors; (6) stationary gas turbines; (7) lead acid
battery manufacturing; and (8) hydrocarbon contaminated soil
remediation projects. Also, a new section of definitions was added.
The construction permit section of this chapter, 33-15-14-02, was
amended to clarify that initiation of certain activities that do not
require a construction permit are at the owner's or operator's own
risk. This section was also amended to require a construction permit if
a change at a facility would increase the ambient concentration of a
contaminant by a specified amount. However, certain scenarios at
existing sources were listed that would not be considered a change in
the method of operation, e.g., trading of emissions within a facility
provided that the trades have been identified and approved in a permit
to operate and the total facility emissions do not exceed the facility
emissions cap established in the permit to operate. A construction
permit would not be required under such scenarios.
The revisions to sections 33-15-14-01 and 33-15-14-02 are
consistent with Federal requirements and, therefore, approvable.
This submittal also contained revisions to the minor source permit
to operate section of this chapter, 33-15-14-03. On June 28, 1989, EPA
published criteria for approving and incorporating into the SIP
regulatory programs for the issuance of federally enforceable State
operating permits (FESOPs) (see 54 FR 27282). Permits issued pursuant
to an operating permit program, which has been approved into the SIP as
meeting these criteria may be considered federally enforceable. EPA has
encouraged States to develop such FESOP programs in conjunction with
title V operating permit programs to enable sources to limit their
potential to emit to below the title V applicability thresholds. (See
the September 18, 1992 guidance document entitled, ``Limitation of
Potential to Emit with Respect to Title V Applicability Thresholds,''
from John Calcagni, Director, Air Quality Management Division, Office
of Air Quality Planning and Standards (OAQPS), Office of Air and
Radiation, U.S. EPA.) On November 3, 1993, EPA announced in a guidance
document entitled, ``Approaches to Creating Federally Enforceable
Emissions Limits,'' from John S. Seitz, Director, OAQPS, that this
mechanism could be extended to create federally enforceable limits for
emissions of HAPs if the program were approved pursuant to section
112(l) of the Act. (See Section II.A.5. of this document for further
details on EPA's Section 112(l) approval of North Dakota's FESOP
program.)
North Dakota adopted revisions to its minor source operating permit
requirements in Section 33-15-14-03 of the State's rules to meet the
criteria of the June 29, 1989 Federal Register notice. That Federal
Register notice establishes five criteria which must be met in order
for EPA to approve a state operating permit program into the SIP: (1)
The program must be submitted to and approved by EPA; (2) the program
must impose a legal obligation on the operating permit holders to
comply with the terms and conditions of the permit, and permits that do
not conform with the criteria outlined in the June 28, 1989 Federal
Register notice or EPA's underlying regulations shall be deemed not
federally enforceable; (3) any permit issued under the program must
contain terms and conditions that are at least as stringent as any
requirements contained in the SIP, enforceable under the SIP, or any
section 112 or other CAA requirement, and may not allow for the waiver
of any CAA requirement; (4) any permit issued under the program must
contain conditions that are permanent, quantifiable, and enforceable as
a practical matter; and (5) any permit that is intended to be federally
enforceable must be issued subject to public participation and must be
provided to EPA in proposed form on a timely basis.
EPA has reviewed North Dakota's FESOP program and has determined
that it meets the requirements outlined in the June 28, 1989 Federal
Register notice. (See the Technical Support Document associated with
this action for further information.) Thus, EPA is approving North
Dakota's FESOP program. Permits that conform to the State's rules and
that are enforceable as a practical matter will be considered federally
enforceable. Note that in this action EPA is approving North Dakota's
minor source operating permit program, but not the 40 CFR part 70
operating permit program in Chapter 33-15-14-06 of the State rules
(which will be acted on separately).
5. Approval of North Dakota's Construction Permit and FESOP Programs
Under Section 112(l) of the Act
In this action, EPA is also approving North Dakota's construction
permit and FESOP programs in Chapters 33-15-14-02 and 33-15-14-03 of
the State's rules, respectively, under section 112(l) of the Act for
the purpose of creating federally enforceable limits on the potential
to emit of HAPs listed pursuant to section 112(b) of the Act. Approval
under section 112(l) is necessary to allow the State to create
federally enforceable limits on the potential to emit of HAPs, because
SIP approval of these permitting programs only extends to the control
of HAPs which are photochemically reactive organic compounds or
particulate matter. Federally enforceable limits on photochemically
reactive organic compounds or particulate matter may have the
incidental effect of limiting certain HAPs.1 As a legal matter, no
additional program approval by EPA is required in order for these
``criteria'' pollutant limits to be recognized as federally
enforceable. However, section 112 of the Act provides the underlying
authority for controlling all HAPs emissions.
\1\ EPA issued guidance addressing the technical aspects of how
these criteria pollutant limits may be recognized for purposes of
limiting a source's potential to emit of HAPs to below section 112
major source levels. Please refer to EPA's January 25, 1995
memorandum from John S. Seitz and Robert I. Van Heuvelen entitled
``Options for Limiting the Potential to Emit (PTE) of a Stationary
Source under Section 112 and Title V of the Clean Air Act,''
available at the EPA office listed at the beginning of this
document.
[[Page 43399]]
---------------------------------------------------------------------------
Both the State's construction permit and FESOP programs apply to
any ``air contaminant sources,'' and ``air contaminant'' is defined in
the State's rules as ``any solid, liquid, gas, or odorous substance or
any combination thereof.'' The State has defined ``air contaminant'' in
such a broad manner that it includes HAPs. Consequently, the State's
construction permit and FESOP programs provide authority for the State
to issue permits to sources of HAPs.
The criteria which are used in approving minor source construction
permit programs are located in 40 CFR 51.160-164. North Dakota's
construction permit program was originally approved as meeting the
criteria currently in 40 CFR 51.160-163 on May 26, 1977 (42 FR 26977)
and as meeting the criteria in 40 CFR 51.164 on November 14, 1988 (53
FR 45673). The Technical Support Document (TSD) accompanying this
section 112(l) approval details how North Dakota's construction permit
rules in 33-15-14-02 meet these Federal criteria for approvability.
EPA believes the most significant criteria for creating federally
enforceable limits through construction permits are the criteria
outlined in 40 CFR 51.160-162. Further, as discussed in EPA's January
25, 1995 memorandum from John S. Seitz, Director of the Office of Air
Quality Planning and Standards, and Robert I. Van Heuvelen, Director of
the Office of Regulatory Enforcement, entitled ``Options for Limiting
the Potential to Emit (PTE) of a Stationary Source Under Section 112
and Title V of the Clean Air Act,'' in order for EPA to consider any
construction permit terms federally enforceable, such permit conditions
must be enforceable as a practical matter. North Dakota's construction
permit program will allow the State to issue permits that are
enforceable as a practical matter. Thus, any permits issued in
accordance with North Dakota's construction permit program that are
practically enforceable would be considered federally enforceable.
EPA believes that the five approval criteria for approving FESOP
programs into the SIP, as specified in the June 28, 1989 Federal
Register notice, are also appropriate for evaluating and approving the
programs under section 112(l). The requirements outlined in the June
28, 1989 notice need not be unique to criteria pollutants since the
reason that the notice does not address HAPs is simply that it was
written prior to the 1990 Amendments to section 112. Hence, the
criteria discussed above in Section II.A.4.c. of this document are
applicable to FESOP program approvals under section 112(l) of the Act.
In addition to a construction permit program meeting the criteria
outlined in 40 CFR 51.160-164 and a FESOP program meeting the criteria
outlined in the June 28, 1989 Federal Register notice, a permitting
program that addresses HAPs must meet the statutory criteria for
approval under section 112(l)(5). Section 112(l) allows EPA to approve
a program only if it: (1) Contains adequate authority to assure
compliance with any section 112 standards or requirements; (2) provides
for adequate resources; (3) provides for an expeditious schedule for
assuring compliance with section 112 requirements; and (4) is otherwise
likely to satisfy the objectives of the Act.
EPA plans to codify the approval criteria for programs limiting
potential to emit of HAPs through amendments to subpart E of 40 CFR
part 63, the regulations promulgated to implement section 112(l) of the
Act. (See 58 FR 62262, November 26, 1993.) EPA believes it has the
authority under section 112(l) to approve programs to limit the
potential to emit HAPs directly under section 112(l) prior to this
revision to subpart E of 40 CFR part 63. Given the timing problems
posed by impending deadlines under section 112 and title V, EPA
believes it is reasonable to read section 112(l) to allow for approval
of programs to limit potential to emit prior to promulgation of a rule
specifically addressing this issue. Therefore, EPA is approving North
Dakota's construction permit and FESOP programs now so that North
Dakota may begin to issue federally enforceable ``synthetic minor''
permits as soon as possible. EPA also plans to codify programs approved
under section 112(l) without further rulemaking once the revisions to
Subpart E are promulgated.
As discussed above, EPA believes North Dakota's construction permit
and FESOP programs meet the applicable Federal criteria for approval of
such programs in the SIP. Section 33-15-14-02, i.e., North Dakota's
construction permit program, has been previously approved in the SIP,
and EPA is approving Section 33-15-14-03, i.e., North Dakota's FESOP
program in this Federal Register. In addition, North Dakota's
construction permit and FESOP programs meet the statutory criteria for
approval under section 112(l)(5), as outlined in the following
discussion.
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes North Dakota's construction permit and FESOP
programs contain adequate authority to assure compliance with section
112 requirements since the third criterion of the June 28, 1989 Federal
Register notice is met by both permitting programs, i.e., because the
programs do not provide for waiving any section 112 requirement.
Sources that become minor through a permit issued pursuant to these
programs would still be required to meet section 112 requirements
applicable to non-major sources.
Regarding the requirement for adequate resources, EPA believes the
State has demonstrated that it can provide for adequate resources to
implement and enforce the programs through the fees it charges both for
minor source permits to construct and permits to operate. See sections
33-15-14-02.12 and 33-15-14-03.10 of the State rules. EPA will monitor
the State's implementation of these programs to assure that adequate
resources continue to be available.
EPA also believes that North Dakota's construction permit and FESOP
programs provide for an expeditious schedule for assuring compliance
with section 112 requirements. These programs will be used to allow a
source to establish a voluntary limit on potential to emit so as to
avoid being subject to a Federal requirement applicable on a particular
date. Nothing in the State's programs would allow a source to avoid or
delay compliance with the Federal requirement if it fails to obtain the
appropriate federally enforceable limit by the relevant deadline.
Finally, EPA believes it is consistent with the intent of the
section 112 and the Act for States to provide a mechanism through which
sources may avoid classification as a major source by obtaining a
federally enforceable limit on potential to emit.
Accordingly, EPA finds that both North Dakota's construction permit
program and its FESOP program satisfy the applicable criteria for
establishing federally enforceable limitations on potential to emit
both criteria and hazardous air pollutants. Therefore, EPA is approving
North Dakota's construction permit and FESOP programs in Sections 33-
15-14-02 and 33-15-14-03 of the State's rules, respectively, under
section 112(l) of the Act.
III. Final Action
EPA is approving North Dakota's SIP revision, as submitted by the
Governor with a letter on April 29, 1994. This submittal addressed
revisions to the following North Dakota Air Pollution Control Rules:
33-15-01 General
[[Page 43400]]
Provisions; 33-15-12 Standards of Performance for New Stationary
Sources; 33-15-13 Emission Standards for Hazardous Air Pollutants; and
33-15-14 Designated Air Contaminant Sources, Permit to Construct, Minor
Source Permit to Operate. However, EPA is declining to take action at
this time on the revisions to North Dakota Air Pollution Control Rule
33-15-15, regarding prevention of significant deterioration of air
quality, and Chapter 6 of the SIP, regarding visibility monitoring
requirements. These chapters will be addressed in separate documents.
Further, EPA is approving, under section 112(l) of the Act, North
Dakota's construction permit and FESOP programs, as outlined in
Sections 33-15-14-02 and 33-15-14-03 of the State's rules,
respectively, for the purposes of creating federally enforceable permit
conditions on HAPs.
EPA is also approving portions of the State's June 30, 1992
submittal, which were not acted on previously. Specifically, EPA is
approving revisions to the following sections of the North Dakota Air
Pollution Control Rules: 33-15-01 General Provisions; 33-15-05
Emissions of Particulate Matter Restricted; 33-15-07 Control of Organic
Compounds Emissions; 33-15-13 Emission Standards for Hazardous Air
Pollutants (specifically, section 33-15-13-02 regarding the asbestos
NESHAP); 33-15-15 Prevention of Significant Deterioration of Air
Quality; and 33-15-20 Control of Emissions from Oil and Gas Well
Production Facilities. Further, EPA is approving the portion of the
State's June 26, 1990 submittal, which was not acted on previously,
regarding revised asbestos NESHAP regulations (specifically, section
33-15-13-02 of the North Dakota Air Pollution Control Rules). Some of
these rule revisions were superseded by the revised rules included in
the State's April 29, 1994 submittal, as discussed in this document.
This approval provides the State with the authority for
implementation and enforcement of all Federal NSPS and NESHAPs (except
40 CFR part 61, subparts B, H, I, K, Q, R, T, and W, pertaining to
radionuclides) promulgated as of May 1, 1993. However, the State's NSPS
and NESHAP authorities do not include those authorities which cannot be
delegated to the states, as defined in 40 CFR parts 60 and 61. EPA will
be updating the 40 CFR part 60 table of NSPS delegations at a later
date.
Note that in this action EPA is approving North Dakota's minor
source operating permit program, but not the 40 CFR part 70 operating
permit program in section 33-15-14-6 of the State rules (which will be
acted on separately). Minor source operating permits issued by the
State that conform to the State's rules will be considered federally
enforceable. Consequently, the rulemaking authorizes North Dakota to
issue FESOPs commencing immediately upon the effective date of this
rule, which will be October 20, 1995, unless in the meantime EPA defers
or rescinds the effective date at a commenter's request.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document published elsewhere
in this Federal Register, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. Under the procedures
established in the May 10, 1994 Federal Register (59 FR 24054), this
action will be effective October 20, 1995, unless, by September 20,
1995, adverse or critical comments are received.
If such comments are received, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective on October 20, 1995.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
Approvals of SIP submittals under section 110 and subchapter I,
part D of the Clean Air Act do not create any new requirements, but
simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP-approval does not impose any new
requirements, I certify that it does not have a significant impact on
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Clean Air Act, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Section 110 of the
Clean Air Act. These rules may bind State, local and tribal governments
to perform certain actions and also require the private sector to
perform certain duties. The rules being approved by this action will
impose no new requirements since such sources are already subject to
these regulations under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, result
from this action. EPA has also determined that this final action does
not include a mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 20, 1995. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review must be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
[[Page 43401]]
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Reporting and recordkeeping
requirements, and Volatile organic compounds.
40 CFR Part 61
Air pollution control, Arsenic, Asbestos, Benzene, Beryllium,
Hazardous substances, Mercury, and Vinyl chloride.
Dated: July 14, 1995.
Jack W. McGraw,
Acting Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart JJ--North Dakota
2. Section 52.1820 is amended by adding paragraph (c)(26) to read
as follows:
Sec. 52.1820 Identification of plan.
* * * * *
(c) * * *
(26) The Governor of North Dakota submitted revisions to the North
Dakota State Implementation Plan and Air Pollution Control Rules with
letters dated June 26, 1990, June 30, 1992, and April 29, 1994. The
revisions address air pollution control rules regarding general
provisions; emissions of particulate matter and organic compounds; new
source performance standards (NSPS); national emission standards for
hazardous air pollutants (NESHAPs); federally enforceable State
operating permits (FESOPs); prevention of significant deterioration of
air quality; and control of emissions from oil and gas well production
facilities.
(i) Incorporation by reference.
(A) Revisions to the Air Pollution Control Rules as follows:
Emissions of Particulate Matter Restricted 33-15-05-02, 33-15-05-03,
and 33-15-05-04; Control of Organic Compound Emissions 33-15-07;
Prevention of Significant Deterioration of Air Quality 33-15-15-01; and
Control of Emissions from Oil and Gas Well Production Facilities 33-15-
20-01, 33-15-20-02, and 33-15-20-03, effective June 1, 1992.
(B) Revisions to the Air Pollution Control Rules as follows:
General Provisions 33-15-01-04 and 33-15-01-13; Standards of
Performance for New Stationary Sources 33-15-12; and Emission Standards
for Hazardous Air Pollutants 33-15-13, effective June 1, 1992 and March
1, 1994.
(C) Revisions to the Air Pollution Control Rules as follows:
Designated Air Contaminant Sources, Permit to Construct, Minor Source
Permit to Operate, Title V Permit to Operate, 33-15-14-01 through 33-
15-14-05, effective March 1, 1994.
3. Section 52.1834 is added to subpart JJ to read as follows:
Sec. 52.1834 Minor source permit to operate program.
Emission limitations and related provisions, which, in accordance
with Rule 33-15-14-03, are established as federally enforceable
conditions in North Dakota minor source operating permits, shall be
enforceable by EPA. EPA reserves the right to deem permit conditions
not federally enforceable. Such a determination will be made according
to appropriate procedures and will be based upon the permit, permit
approval procedures, or permit requirements which do not conform with
the operating permit program requirements of EPA's underlying
regulations.
PART 61--[AMENDED]
1. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401, 7412, 7414, 7416, 7601.
Subpart A--General Provisions
2. Section 61.04(c) is amended by revising the table to read as
follows:
Sec. 61.04 Address.
* * * * *
(c) * * *
Region VIII.--Delegation Status of National Emission Standards for Hazardous Air Pollutants \1\
----------------------------------------------------------------------------------------------------------------
Subpart CO MT \2\ ND \2\ SD \2\ UT \2\ WY
----------------------------------------------------------------------------------------------------------------
A General Provisions............................... * * * * *
B Radon Emissions from Underground Uranium Mines... ........ ........ ........ ........ *
C Beryllium........................................ * * * ........ *
D Beryllium Rocket Motor Firing.................... * * * ........ *
E Mercury.......................................... * * * * *
F Vinyl Chloride................................... * * * ........ *
H Emissions of Radionuclides other than Radon from
Department of Energy Facilities.................... ........ ........ ........ ........ ........
I Radionuclide Emissions from Facilities Licensed
by the Nuclear Regulatory Commission and Federal
Facilities not covered by Subpart H................
J Equipment Leaks (Fugitive Emission Sources) of
Benzene............................................ * * * ........ *
K Radionuclide Emissions from Elemental Phosphorus
Plants............................................. ........ ........ ........ ........ ........
L Benzene Emissions from Coke By-Product Recovery
Plants............................................. ........ * * ........ *
M Asbestos......................................... * * * * * *\3\
N Inorganic Arsenic Emissions from Glass
Manufacturing Plants............................... ........ * * ........ *
O Inorganic Arsenic Emissions from Primary Copper
Smelters........................................... ........ * * ........ *
P Inorganic Arsenic Emissions from Arsenic Trioxide
and Metallic Arsenic Production Facilities......... ........ * * ........ *
Q Radon Emissions from Department of Energy
Facilities......................................... ........ ........ ........ ........ *
R Radon Emission from Phosphogypsum Stacks......... ........ ........ ........ ........ *
T Radon Emissions from the Disposal of Uranium Mill
Tailings........................................... ........ ........ ........ ........ *
V Equipment Leaks (Fugitive Emission Sources)...... ........ * * ........ *
W Radon Emissions from Operating Mill Tailings..... ........ ........ ........ ........ *
Y Benzene Emissions from Benzene Storage Vessels... ........ * * ........ *
BB Benzene Emission from Benzene Transfer
Operations......................................... ........ * * ........ *
[[Page 43402]]
FF Benzene Waste Operations........................ ........ * * ........ *
----------------------------------------------------------------------------------------------------------------
*Indicates approval of delegation of subpart to state.
\1\ Authorities which may not be delegated include 40 CFR 61.04(b), 61.12(d)(1), 61.13(h)(1)(ii), 61.112(c),
61.164(a)(2), 61.164(a)(3), 61.172(b)(2)(ii)(B), 61.172(b)(2)(ii)(C), 61.174 (a)(2), 61.174(a)(3), 61.242-
1(c)(2), 61.244, and all authorities listed as not delegable in each subpart under Delegation of Authority.
\2\ Indicates approval of National Emission Standards for Hazardous Air Pollutants as part of the State
Implementation Plan (SIP) with the exception of the radionuclide NESHAP Subparts B, Q, R, T, W which were
approved through Section 112(l) of the Clean Air Act.
\3\ Delegation only for asbestos demolition, renovation, spraying, manufacturing, and fabricating operations,
insulating materials, waste disposal for demolition, renovation, spraying, manufacturing and fabricating
operations, inactive waste disposal sites for manufacturing and fabricating operations, and operations that
convert asbestos-containing waste material into nonasbestos (asbestos-free) material.
[FR Doc. 95-20601 Filed 8-18-95; 8:45 am]
BILLING CODE 6560-50-P
