[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]



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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.

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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]]

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    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