[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19224-19229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10126]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ND8-1-7233a & ND-001-0001a; FRL-5812-3]


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 certain State implementation plan (SIP) revisions 
submitted by the State of North Dakota with letters dated August 15, 
1995 and January 9, 1996. The revisions address air pollution control 
rules regarding general provisions; open burning; emissions of 
particulate matter, certain settleable acids and alkaline substances, 
and fugitives; air pollution emergency episodes; new source performance 
standards (NSPS); national emission standards for hazardous air 
pollutants (NESHAPs); and the minor source construction and operating 
permit programs. The State's January 9, 1996 submittal also revised SIP 
Chapter 6, Air Quality Surveillance, to identify current activities 
regarding visibility monitoring. In addition, these submittals included 
revisions involving the Title V Operating Permits Program, the Acid 
Rain Program, the restriction of sulfur compound emissions, and 
emission standards for hazardous air pollutants for source categories, 
which

[[Page 19225]]

will be handled separately. Finally, EPA is correcting an incorporation 
by reference error that was made by EPA in an October 20, 1993 
rulemaking regarding the State's regulation for sulfur compounds.

DATES: This final rule is effective on June 20, 1997 unless comments 
are received in writing by May 21, 1997. 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 Program, 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) 312-6449.

SUPPLEMENTARY INFORMATION:

I. Background

    The Governor of North Dakota submitted various revisions to the 
State's air pollution control rules with letters to EPA dated August 
15, 1995 and January 9, 1996. These revisions were necessary, for the 
most part, to make the rules consistent with Federal requirements or 
for clarification purposes. The January 9, 1996 submittal also revised 
SIP Chapter 6, Air Quality Surveillance, in order to identify current 
activities regarding visibility monitoring and to withdraw an April 24, 
1994 revision to the same chapter.

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.
    To entertain public comment, the State of North Dakota, after 
providing adequate notice, held public hearings on December 1, 1994 and 
July 25, 1995 to address revisions to the SIP and Air Pollution Control 
Rules. Following the public hearings, public comment period, and 
completion of legal review by the North Dakota Attorney General's 
Office, the North Dakota State Health Council adopted the revisions, 
which became effective on August 1, 1995 and January 1, 1996, 
respectively.
    The Governor of North Dakota submitted the revisions to the SIP 
with letters dated August 15, 1995 and January 9, 1996. 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 September 
28, 1995 and February 13, 1996 were forwarded to the Governor 
indicating the completeness of the respective submittals and the next 
steps to be taken in the review process.
2. August 15, 1995 Revisions
    The August 15, 1995 submittal addresses North Dakota Air Pollution 
Control Rules involving general provisions, emissions of particulate 
matter, prevention of air pollution emergency episodes, NESHAPs (40 CFR 
Part 61), minor source permitting and fees, Title V Operating Permits 
Program, and the Acid Rain Program. The revisions regarding the Title V 
Operating Permits Program and the Acid Rain Program were handled 
separately. The August 15, 1995 submittal also included a request for 
Clean Air Act Section 112(l) delegation of the 40 CFR Part 63 NESHAPs. 
This request was addressed in an October 17, 1995 letter from William 
P. Yellowtail, EPA, to Francis J. Schwindt, North Dakota Department of 
Health.
    The remaining portions of the August 15, 1995 submittal 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; 33-15-11 
Prevention of Air Pollution Emergency Episodes; 33-15-13 Emission 
Standards for Hazardous Air Pollutants; 33-15-14 Designated Air 
Contaminant Sources, Permit to Construct, Minor Source Permit to 
Operate, Title V Permit to Operate (sections specific to minor 
sources); and 33-15-23 Fees.
a. Chapter 33-15-01  General Provisions
    This chapter was revised to include several definitions for various 
types of waste material, including definitions for ``infectious 
waste,'' ``refuse,'' and ``trash.'' The new definitions parallel 
definitions found in other North Dakota environmental regulations, 
including solid waste, hazardous waste, and radiological rules. These 
revisions are approvable.
b. Chapter 33-15-05  Emissions of Particulate Matter Restricted
    Section 3, Incinerators, of this chapter was eliminated and 
replaced with three new sections regarding infectious waste 
incinerators, refuse incinerators, and other waste incinerators. 
Section 33-15-05-03.1., regarding infectious waste incinerators, 
requires owners of existing infectious waste incinerators to maintain 
records, provide training to the operators of the incinerators, and to 
correct malfunctions before resuming incineration. New infectious waste 
incinerators (burning less than 10,000 pounds of infectious waste per 
week) will be required to meet a 10% opacity limit and be designed to 
maintain a temperature of 1800  deg.F in the secondary chamber with a 
residence time of at least one second. A presumptive minimum stack 
height of 40 feet will also be required. Recordkeeping, monitoring, 
operator training, and reporting requirements are also included in the 
regulation.
    New large infectious waste incinerators (burning 10,000 pounds or 
more of infectious waste per week) will be required to meet all the 
requirements for smaller infectious waste incinerators plus standards 
for particulate matter, hydrogen chloride, carbon monoxide, and 
dioxins/furans. Recordkeeping, reporting, operator training, and 
performance testing are also required.
    Section 33-15-05-03.2., regarding refuse incinerators, prohibits 
the burning of any recyclable material when a recycling option is 
reasonably available. This prohibition goes into effect one year after 
the promulgation of the rule. The regulations also require owners/
operators of incinerators that burn trash to upgrade their units to 
standards established for new units within two years of promulgation of 
the

[[Page 19226]]

rule. New trash incinerators are required to meet a 10% opacity limit 
and be designed to have a minimum temperature of 1500  deg.F and \1/2\ 
second retention time in the secondary chamber. A presumptive minimum 
stack height of 40 feet is included in the rule, as well as monitoring 
requirements and waste charging limitations.
    Section 33-15-05-03.3., regarding other waste incinerators, 
requires new salvage incinerators to meet the same requirements as new 
infectious waste incinerators. This section also gives the State the 
authority to establish unit specific requirements for air curtain 
destructors, industrial waste and special waste incinerators, and 
crematoriums.
    These revisions are approvable. Please note that EPA intends to 
promulgate a medical waste incinerator NSPS in the near future. Should 
the State's infectious waste incinerator rule be less stringent than 
the forthcoming medical waste incinerator NSPS, the State will need to 
revise its rule and the SIP accordingly.
c. Chapter 33-15-11  Prevention of Air Pollution Emergency Episodes
    Changes to this chapter were made to make it consistent with the 
new definitions in Chapter 33-15-01 regarding industrial waste. These 
revisions are minor and approvable.
d. Chapter 33-15-13  Emission Standards for Hazardous Air Pollutants
    The changes to this chapter include updating the date for Federal 
regulations in 40 CFR Part 61 to be incorporated by reference and to 
incorporate for the first time 40 CFR part 61, subpart I (to regulate 
radionuclide emissions from facilities licensed by the Nuclear 
Regulatory Commission (NRC) and other Federal facilities not covered by 
subpart H of 40 CFR Part 61). The revision to update the incorporation 
by reference date is approvable.
    However, on December 30, 1996, EPA rescinded subpart I as it 
applies to NRC or NRC Agreement State licensed facilities other than 
commercial nuclear power plants. EPA determined that the NRC regulatory 
program for licensed facilities other than commercial nuclear power 
plants protects public health with an ample margin of safety, the same 
level of protection that would be afforded by continued implementation 
of subpart I. Therefore, EPA rescinded subpart I to eliminate 
overlapping regulation of these emissions. See 61 FR 68972-68981. As a 
result, EPA cannot incorporate subpart I into the North Dakota SIP, as 
requested.
e. Chapter 33-15-14  Designated Air Contaminant Sources, Permit To 
Construct, Minor Source Permit To Operate, Title V Permit To Operate
    Changes to this chapter were made to make it consistent with the 
new definitions in Chapter 33-15-01 regarding incinerators. Further 
changes to this chapter involve the removal of the sections which 
establish Permit to Construct and Minor Source Permit to Operate fees 
(33-15-14-02.12. and 33-15-14-03.10.). These sections were moved to a 
new chapter, 33-15-23, Fees. These revisions are approvable. The 
revisions regarding the Title V permit to operate (section 33-15-14-06) 
will be handled separately.
f. Chapter 33-15-23  Fees
    A new chapter was developed to address fees that are charged to 
sources under the Air Pollution Control Program. These fees were 
originally included in Chapter 33-15-14. The provisions in Chapter 33-
15-14 were relocated to this new chapter with a few minor revisions. 
These revisions are approvable since they are basically what was 
approved in the SIP previously in Chapter 33-15-14. The sections 
regarding major source permit to operate fees (33-14-23-04) and phase I 
substitution units (33-15-23-05) will be handled separately.
3. January 9, 1996 Revisions
    The January 9, 1996 submittal addresses visibility monitoring 
requirements outlined in Chapter 6 of the SIP. With this submittal, the 
State formally withdraws an April 1994 submittal of Section 6.12 of the 
SIP and replaces it with a new Section 6.13, which identifies current 
activities regarding visibility monitoring.
    In addition, the January 9, 1996 submittal included revisions to 
Chapter 33-15-06, Emissions of Sulfur Compounds Restricted, and 
requests for direct delegation of revisions to Chapter 33-15-14, 
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) and Chapter 33-15-22, Emission Standards for 
Hazardous Air Pollutants for Source Categories, (40 CFR Part 63 
NESHAPs). These revisions and requests will be handled separately.
    Finally, the January 9, 1996 submittal addresses the following 
chapters of the North Dakota Air Pollution Control Rules, which will be 
addressed in this document: 33-15-01 General Provisions; 33-15-04 Open 
Burning Restrictions; 33-15-09 Emissions of Certain Settleable Acids 
and Alkaline Substances Restricted; 33-15-12 Standards of Performance 
for New Stationary Sources; 33-15-13 Emission Standards for Hazardous 
Air Pollutants; 33-15-14-01.1 Designated Air Contaminant Sources, 
Permit to Construct, Minor Source Permit to Operate, Title V Permit to 
Operate (section specific to definitions); and 33-15-17 Restriction of 
Fugitive Emissions.
a. Chapter 6  Air Quality Surveillance
    In April 1994, Section 6.12 of the SIP was submitted to EPA to 
indicate that visibility monitoring was not necessary due to a lack of 
visibility impairment and a database indicating stable conditions. In 
late 1994 and early 1995, there was a resurgence of activity in the oil 
fields in Western North Dakota. Therefore, the State requested that EPA 
take no action on Section 6.12 at that time. A new Section 6.13 was 
developed to identify current activities regarding visibility 
monitoring, and it was included in the January 1996 submittal. Section 
6.12 was withdrawn.
    An increase in oil drilling activities in 1995 prompted the 
National Park Service to revisit the idea of establishing visibility 
monitoring sites at the Class I areas in North Dakota. The State plans 
to enter into a memorandum of understanding with the National Park 
Service to proceed with establishing visibility monitoring at Theodore 
Roosevelt National Park. This arrangement is acceptable to EPA.
b. Chapter 33-15-01  General Provisions
    Under Subsection 33-15-01-04, the definition of volatile organic 
compounds (VOC) was revised to match the Federal definition. At the 
date of this submittal, the State's revision was consistent with 
Federal requirements, and therefore, is being approved as submitted on 
January 9, 1996.
    However, on October 8, 1996, EPA published a revised definition of 
VOC (61 FR 52850), which became effective on November 7, 1996. EPA's 
definition excludes perchloroethylene (perc) from the definition of VOC 
on the basis that it is of negligible reactivity and does not 
contribute to tropospheric ozone formation. The definition submitted to 
EPA in January 1996 does not exclude this compound. Therefore, this 
State definition of VOC provides for the regulation of a compound 
(perc) which is not considered a VOC by EPA. In light of EPA's most 
recent definition of VOC, EPA will not enforce against sources for 
failure to control the emission of compounds exempt from the Federal 
VOC definition. North Dakota is advised of EPA's most recent VOC 
definition

[[Page 19227]]

and future SIP revisions should reflect it accordingly.
c. Chapter 33-15-04  Open Burning Restrictions
    The revisions to this chapter involve applying several new and, in 
some cases, more restrictive conditions to all permissible open burning 
and revising the applicability for open burning of household refuse. 
The revisions allow open burning of household refuse only when no 
collection and disposal service is required by a municipality or other 
government entity. The revisions also limit material to be burned to 
that of one family instead of three households (as previously allowed). 
These revisions are approvable.
d. Chapter 33-15-09  Emission of Certain Settleable Acids and Alkaline 
Substances Restricted
    This chapter was deleted in its entirety. These rules had been in 
North Dakota's Air Pollution Control Rules for over 20 years without 
ever being utilized. The method of sampling was considered archaic and 
no longer used by the State. Further, many Federal regulations, such as 
NSPS and the Acid Rain Rules, were developed after the adoption of 
Chapter 33-15-09 and address sources that emit acidic or alkaline 
substances. In addition, the State's Air Toxics Program has been used 
to address emissions of such substances. Chapter 33-15-09 was obsolete 
and, therefore, the deletion of it is approvable.
e. 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, 1995, with the exception of 40 CFR part 61, 
subparts B, H, K, Q, R, T, and W (i.e., radionuclides). Again, as 
discussed above in section II.A.2.d., EPA cannot act on the State's 
request to incorporate by reference subpart I since it has been 
rescinded.
    Major revisions were made in Chapter 33-15-13, Section 02, Emission 
Standard for Asbestos. Substantive changes were made to the sections 
dealing with definitions and asbestos abatement licensing and 
certification.
    Revisions to the asbestos rules were necessary due to EPA's 
promulgation of changes to 40 CFR Part 763, Appendix C to Subpart E, 
the Asbestos Model Accreditation Plan (MAP). On February 3, 1994, EPA 
issued the interim final rule to revise the MAP in response to 
requirements detailed in the Asbestos School Hazard Abatement 
Reauthorization Act of 1990 (ASHARA). Among other things, the revised 
MAP includes the following: (1) requires that individuals must be 
accredited to work with asbestos in schools and public and commercial 
buildings and clarifies the types of work activities which are 
applicable; (2) increases the minimum number of hours of training for 
asbestos abatement workers and contractor/supervisors; (3) 
distinguishes between the training requirements for each of the five 
disciplines; (4) expands the project designer curriculum; (5) alters 
requirements for training certificates; (6) establishes new enforcement 
criteria and procedures for withdrawing licenses and certificates; (7) 
adds new definitions; and (8) adds recordkeeping requirements for 
training providers. By far the most significant change to the MAP was 
the requirement for certification of all persons performing asbestos 
abatement in public and commercial buildings. The interim rule was 
finalized and became effective on October 4, 1994.
    The State revised its asbestos rules to be consistent with the new 
MAP and all references to the MAP were amended to cite the revised plan 
date (i.e., February 3, 1994). In addition, several minor corrections 
and clarifications were made to the rule.
    EPA has reviewed the State's revised NSPS and NESHAPs regulations 
(including the asbestos rules) and determined that they are approvable, 
with the exception of the incorporation of 40 CFR part 61, subpart I, 
as in effect on May 1, 1995. EPA cannot act on subpart I because it was 
rescinded on December 30, 1996 (see II.A.2.d. above and 61 FR 68972-
68981).
f. 33-15-14  Designated Air Contaminant Sources, Permit To Construct, 
Minor Source Permit to Operate, Title V Permit To Operate
    Minor modifications were made to Section 33-15-14-01.1, 
Definitions, in order to be consistent with Federal regulations. These 
revisions, therefore, are approvable.
    As mentioned above, this submittal also included revisions to North 
Dakota's Title V Permit to Operate Program, which will be handled 
separately.
g. 33-15-17  Restriction of Fugitive Emissions
    Section 33-15-17-02.1 was deleted. This section had established a 
standard and monitoring methodology for the difference between upwind 
and downwind concentrations of total suspended particulate (TSP). The 
State believed the standard to be outdated since neither the State nor 
industry monitors for it anymore. Further, a source could have actually 
exceeded the PM10 National Ambient Air Quality Standard (NAAQS) 
but still have been in compliance with this fugitive dust provision 
(i.e., the TSP standard was meaningless for protecting the PM10 
NAAQS). In addition, the State and industry operate a network of 
PM10 samplers in North Dakota, and the results of sampling 
indicate compliance with the PM10 NAAQS. As a result, the State 
believes the deletion of this provision does not negatively impact the 
NAAQS, and EPA believes, therefore, that the deletion of this fugitive 
dust provision is approvable.

III. Correction of Incorporation by Reference Error

    In an October 20, 1993 rulemaking, EPA approved revisions to the 
North Dakota Administrative Code, Chapter 33-15-06, Emissions of Sulfur 
Compounds Restricted, which became effective on June 1, 1992. (See 58 
FR 54043, 40 CFR 52.1820(c)(24)(i)(A).) However, in the material that 
EPA sent to The Air and Radiation Docket and Information Center for 
incorporation by reference into the SIP, EPA only incorporated those 
provisions of Chapter 33-15-06 that were different from the previous 
version of Chapter 33-15-06 approved by EPA. However, the entire 
chapter should have been incorporated into the SIP because it had been 
recodified by the State since the previous SIP approval of that chapter 
by EPA. Consequently, EPA is correcting its error by resubmitting 
Chapter 33-15-06, as effective on June 1, 1992, to The Air and 
Radiation Docket and Information Center for incorporation into the SIP 
in its entirety.

IV. Final Action

    EPA is taking the following actions on North Dakota's SIP 
revisions, as submitted by the Governor with letters dated August 15, 
1995 and January 9, 1996. EPA approves the revisions in the August 15, 
1995 submittal concerning the following North Dakota Air Pollution 
Control Rules: 33-15-01 General Provisions; 33-15-05 Emissions of 
Particulate Matter Restricted; 33-15-11 Prevention of Air Pollution 
Emergency Episodes; 33-15-13 Emission Standards for Hazardous Air 
Pollutants; 33-15-14 Designated Air Contaminant Sources, Permit to 
Construct, Minor Source Permit to Operate, Title V Permit to Operate 
(sections specific to minor sources); and

[[Page 19228]]

33-15-23 Fees. Revisions regarding the Title V Operating Permits 
Program and the Acid Rain Program were handled separately. The August 
15, 1995 submittal also included a request for Clean Air Act Section 
112(l) delegation of the 40 CFR Part 63 NESHAPs. This request was 
addressed in an October 17, 1995 letter from William P. Yellowtail, 
EPA, to Francis J. Schwindt, North Dakota Department of Health.
    EPA approves revisions in the January 9, 1996 submittal which 
address revisions to the following North Dakota Air Pollution Control 
Rules: 33-15-01 General Provisions; 33 15-04 Open Burning Restrictions; 
33-15-09 Emissions of Certain Settleable Acids and Alkaline Substances 
Restricted; 33-15-12 Standards of Performance for New Stationary 
Sources; 33-15-13 Emission Standards for Hazardous Air Pollutants; 33-
15-14-01.1 Designated Air Contaminant Sources, Permit to Construct, 
Minor Source Permit to Operate, Title V Permit to Operate (section 
specific to definitions); and 33-15-17 Restriction of Fugitive 
Emissions. EPA also approves visibility monitoring requirements 
outlined in Chapter 6 of the SIP. With this submittal, the State 
formally withdraws an April 1994 submittal of Section 6.12 of the SIP 
and replaces it with a new Section 6.13, which identifies current 
activities regarding visibility monitoring.
    In addition, the January 9, 1996 submittal included revisions to 
Chapter 33-15-06, Emissions of Sulfur Compounds Restricted, and 
requests for direct delegation of revisions to Chapter 33-15-14, 
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) and Chapter 33-15-22, Emission Standards for 
Hazardous Air Pollutants for Source Categories, (40 CFR Part 63 
NESHAPs). These revisions and requests will be handled separately.
    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, K, Q, R, T, and W, pertaining to 
radionuclides) promulgated as of May 1, 1995. However, the State's NSPS 
and NESHAPs authorities do not include those authorities which cannot 
be delegated to the states, as defined in 40 CFR parts 60 and 61.
    In addition, EPA cannot act on the State's request to incorporate 
by reference 40 CFR part 61, subpart I (regarding radionuclide 
emissions from facilities licensed by the NRC and other Federal 
facilities not covered by subpart H) because EPA rescinded subpart I 
(see 61 FR 68972-68981, December 30, 1996) subsequent to the State's 
adoption of these revisions.
    Finally, EPA is correcting an incorporation by reference error by 
resubmitting Chapter 33-15-06, Emissions of Sulfur Compounds 
Restricted, to The Air and Radiation Docket and Information Center for 
incorporation into the SIP in its entirety.
    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 in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective June 20, 1997 unless, by May 21, 1997, adverse or critical 
comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent notice that will withdraw 
the final action. All public comments received will 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 June 20, 1997.
    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.

V. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    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.
    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 impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the CAA, 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).

C. 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 proposes to 
approve pre-existing requirements under State or local law, and imposes 
no new Federal requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory

[[Page 19229]]

Enforcement Fairness Act of 1996, EPA submitted 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 General 
Accounting Office prior to publication of this rule in today's Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

E. 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 June 20, 1997. 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).)
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

    Dated: April 7, 1997.
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)(29) to read 
as follows:


Sec. 52.1820  Identification of plan.

* * * * *
    (c) * * *
    (29) The Governor of North Dakota submitted revisions to the North 
Dakota State Implementation Plan and Air Pollution Control Rules with 
letters dated August 15, 1995 and January 9, 1996. The revisions 
address air pollution control rules regarding general provisions; open 
burning; emissions of particulate matter, certain settleable acids and 
alkaline substances, and fugitives; air pollution emergency episodes; 
new source performance standards (NSPS); national emission standards 
for hazardous air pollutants (NESHAPs); and the minor source 
construction and operating permit programs. The State's January 9, 1996 
submittal also revised SIP Chapter 6, Air Quality Surveillance, to 
identify current activities regarding visibility monitoring.
    (i) Incorporation by reference.
    (A) Revisions to the Air Pollution Control Rules as follows: 
Emissions of Particulate Matter Restricted 33-15-05-03., 33-15-05-
03.1., 33-15-05-03.2., and 33-15-05-03.3.; Prevention of Air Pollution 
Emergency Episodes 33-15-11 Tables 6 and 7; and Fees 33-15-23-01, 33-
15-23-02, and 33-15-23-03, effective August 1, 1995.
    (B) Revisions to the Air Pollution Control Rules as follows: 
General Provisions 33-15-01-04; Emission Standards for Hazardous Air 
Pollutants 33-15-13, except 33-15-13-01-2., Subpart I; Designated Air 
Contaminant Sources, Permit to Construct, Minor Source Permit to 
Operate, Title V Permit to Operate 33-15-14-01, 33-15-14-01.1., 33-15-
14-02.12., and 33-15-14-03.10.; effective August 1, 1995 and January 1, 
1996.
    (C) Revisions to the Air Pollution Control Rules as follows: Open 
Burning Restrictions 33-15-04; Emissions of Certain Settleable Acids 
and Alkaline Substances Restricted 33-15-09; Standards of Performance 
for New Stationary Sources 33-15-12; and Restriction of Fugitive 
Emissions 33-15-17-01 and 33-15-17-02, effective January 1, 1996.

[FR Doc. 97-10126 Filed 4-18-97; 8:45 am]
BILLING CODE 6560-50-P