[Federal Register Volume 64, Number 168 (Tuesday, August 31, 1999)]
[Rules and Regulations]
[Pages 47395-47401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22177]
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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]
BILLING CODE 6560-50-M
