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


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[ND-001a; FRL-6360-3]


Clean Air Act Full Approval of Operating Permit Program; State of 
North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating full approval of the operating permit 
program submitted by the State of North Dakota. North Dakota's 
operating permit program was submitted for the purpose of meeting the 
federal Clean Air Act directive that states develop, and submit to EPA, 
programs for issuing operating permits to all major stationary sources 
and to certain other sources within the states' jurisdiction.

DATES: This direct final rule is effective on August 16, 1999, without 
further notice, unless EPA receives adverse comment by July 19, 1999. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mail Code 8P-AR, Environmental Protection 
Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver, Colorado 
80202-2466. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
and Radiation Program, Environmental Protection Agency, Region VIII, 
999 18th Street, Suite 500, Denver, Colorado, 80202-2466. Copies of the 
State documents relevant to this action are available for public 
inspection at the North Dakota State Department of Health, Division of 
Environmental Engineering, 1200 Missouri Avenue, Bismarck, North Dakota 
58504-5264.

FOR FURTHER INFORMATION CONTACT: Patricia Reisbeck, EPA, Region 8, 
(303) 312-6435.

SUPPLEMENTARY INFORMATION:

I. Background

    As required under Title V of the Clean Air Act (``the Act'') as 
amended (42 U.S.C. 7401 et seq.), EPA has promulgated rules that define 
the minimum elements of an approvable state operating permit program 
and the corresponding standards and procedures by which EPA will 
approve, oversee, and withdraw approval of state operating permit 
programs (see 57 FR 32250 (July 21, 1992)). These rules are codified at 
40 Code of Federal Regulations (CFR) part 70 (part 70). Title V directs 
states to develop, and submit to EPA, programs for issuing operating 
permits to all major stationary sources and to certain other sources.
    The Act directs states to develop and submit operating permit 
programs to EPA by November 15, 1993, and requires that EPA act to 
approve or disapprove each program within 1 year after receiving the 
submittal. The EPA's program review occurs pursuant to section 502 of 
the Act (42 U.S.C. Sec. 7661a) and the part 70 regulations, which 
together outline criteria for

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approval or disapproval. Where a program substantially, but not fully, 
meets the requirements of part 70, EPA may grant the program interim 
approval. If EPA has not fully approved a program by two years after 
the November 15, 1993 date, or before the expiration of an interim 
program approval, it must establish and implement a federal program. 
The State of North Dakota was granted final interim approval of its 
program on July 7, 1995 (see 60 FR 35335) and the program became 
effective on August 7, 1995. Interim approval of the North Dakota 
program expires on June 1, 2000.

II. Final Action

A. Analysis of State Submission

    The Governor of North Dakota submitted an administratively complete 
Title V operating permit program for the State of North Dakota on May 
11, 1994. This program, including the operating permit regulations 
(Chapter 33-15-14-06 of the North Dakota Administrative Code (NDAC)), 
substantially met the requirements of part 70. EPA deemed the program 
administratively complete in a letter to the Governor dated June 28, 
1994. The program submittal included a legal opinion from the Attorney 
General of North Dakota stating that the laws of the State provide 
adequate legal authority to carry out all aspects of the program, and a 
description of how the State would implement the program. The submittal 
additionally contained evidence of proper adoption of the program 
regulations, application and permit forms, and a permit fee 
demonstration.
    EPA's comments noting deficiencies in the North Dakota program were 
sent to the State in a letter dated December 22, 1994. The deficiencies 
were segregated into those that require corrective action prior to 
interim program approval, and those that require corrective action 
prior to full program approval. The State committed to address the 
program deficiencies that require corrective action prior to interim 
program approval in a letter dated January 5, 1995. The State submitted 
these corrective actions in letters dated February 22, March 20, and 
June 13, 1995. EPA reviewed these corrective actions and determined 
them to be adequate to allow for interim program approval.
    In letters dated September 28, 1998 from the Governor of North 
Dakota and October 6, 1998 from the Chief of the Environmental Health 
Section, North Dakota Department of Health, the State submitted 
revisions to its Air Pollution Control Rules, including its operating 
permit program regulations (Chapter 33-15-14-06) that were effective 
January 1, 1996, September 1, 1997, and September 1, 1998. On March 11, 
1999, the State submitted a copy of an amendment to section 23-25-10 of 
the North Dakota Century Code (NDCC) related to air pollution 
penalties. The effective date of the March 11, 1999 statutory amendment 
is August 1, 1999. The revised program regulations and statutory 
amendment adequately address the problems identified in the July 7, 
1995 Federal Register notice as requiring corrective action prior to 
full program approval. The State also submitted evidence of proper 
adoption of the revisions to its program regulations.
    Areas in the North Dakota program that were identified by EPA as 
deficient and the State's corrective actions for full program approval 
consist of the following:
    (1) EPA required the State to revise NDAC Sec. 33-15-14-06.4.c to 
lower the insignificant emission unit threshold for criteria pollutants 
to more reasonable levels. The correction was completed in the revised 
North Dakota Air Pollution Control Rules, effective January 1, 1996.
    (2) EPA advised the State that, in order to implement NDAC Sec. 33-
15-14-06.5.a.(1)(c), the State must adopt specific provisions to 
determine that an alternative emission limit is equivalent to a limit 
in North Dakota's state implementation plan (SIP), and EPA must approve 
the provisions as part of the SIP. Until a SIP revision could be 
accomplished, EPA requested the State to delete the words ``or this 
article'' from the first line of NDAC Sec. 33-15-14-06.5.a.(1)(c). This 
request was met when the State revised the North Dakota Air Pollution 
Control Rules, effective January 1, 1996.
    (3) EPA required the State to revise NDAC Sec. 33-15-14-06.5.a.(11) 
to allow changes in emissions provided that they are not modifications 
under Title I of the Act and the changes do not exceed the emissions 
allowed under the permit. This correction was completed in the revised 
North Dakota Air Pollution Control Rules, effective January 1, 1996.
    (4) EPA required the State to revise NDAC Sec. 33-15-14-06.5.f(1) 
to read ``* * * the department shall include in a title V permit to 
operate a provision stating that compliance with the conditions of the 
permit shall be deemed compliance with any applicable requirements as 
of the date of permit issuance. * * *'' This correction was completed 
in the revised North Dakota Air Pollution Control Rules, effective 
January 1, 1996.
    (5) EPA required the State to delete ``or this article'' from NDAC 
Sec. 33-15-14-06.5.a.(8), and ``this article'' from Sec. 33-15-14-
06.5.a.(10) and Sec. 33-15-14-06.6.e.(1)(a)[2], to clarify that, in 
order to implement those provisions, the State must have an economic 
incentive, marketable permits, or a generic emissions trading program 
approved in its SIP. This correction was completed in the revised North 
Dakota Air Pollution Control Rules, effective January 1, 1996.
    (6) EPA required the State to augment the Attorney General's 
opinion to show that the provisions for judicial review in North Dakota 
Century Code (NDCC), Sections 28-32-14 and 15 and in NDAC Article 33-22 
are the exclusive means for obtaining judicial review of the terms and 
conditions of permits and that petitions for judicial review must be 
filed within the 90-day periods discussed in 40 CFR 70.4(b)(3)(xii). 
Or, if such an opinion could not be rendered, the State was required to 
change its statutes or regulations to ensure that the requirements of 
40 CFR 70.4(b)(3)(xii) are met. This correction was completed in 
Section 33-15-14-06.8. of the revised North Dakota Air Pollution 
Control Rules, effective September 1, 1998.
    (7) The State was required to augment the Attorney General's 
opinion to show how, under State law, applicants may obtain judicial 
review in cases of State inaction, consistent with the requirements of 
40 CFR 70.4(b)(3)(xi). Or, if such an opinion could not be rendered, 
the State was required to change its statutes or regulations to ensure 
that the requirements of 40 CFR 70.4(b)(3)(xi) are met. This correction 
was completed in 33-15-14-06.8 of the revised North Dakota Air 
Pollution Control Rules, effective September 1, 1998.
    (8) EPA raised the issue that North Dakota's Title V program did 
not appear to be consistent in all respects with 40 CFR 70.11, in 
particular with the requirement of maximum fines of not less than 
$10,000 per day per violation. Specifically, North Dakota's statutory 
penalty provision for violation of air pollution control requirements 
set the penalty at ``not more than ten thousand dollars (or 
imprisonment for not more than six months, or both) for knowingly 
making a false statement, representation or certification in any 
application or report required under the state air pollution control 
statute (chapter 23-25), or for falsifying, tampering with, or 
knowingly rendering inaccurate any monitoring device or method'' (NDCC 
Sec. 23-25-10.3). It was not clear that the penalty was authorized per 
day of

[[Page 32435]]

violation. To address this ambiguity, North Dakota enacted amendments 
to NDCC Sec. 23-25-10 to specifically prohibit the making of false 
statements or the falsifying of monitoring device or methods required 
to be maintained under the State statute or under any permit condition, 
rule, order, limitation, or other applicable requirement implementing 
the State statute. Section 23-25-10, as amended, states that, upon 
conviction, a violator is subject to a fine of not more than ten 
thousand dollars per day per violation or by imprisonment for not more 
than six months, or both. The amended Section 23-25-10 is effective 
August 1, 1999.

C. Final Action

    The EPA is granting full approval of the North Dakota operating 
permit program.
    In the North Dakota Title V program submittal of May 11, 1994, 
Section II.B. (Program Description: Organizational Structure) states 
``At this time, the Department will operate the program for the entire 
State, excluding Indian Reservations.'' In this notice, EPA is 
approving North Dakota's part 70 program for all areas within the State 
except the following: any sources of air pollution located in ``Indian 
Country'' as defined in 18 U.S.C. 1151, including the Fort Berthold, 
Fort Totten, Standing Rock, Sisseton and Turtle Mountain Indian 
Reservations, or any other sources of air pollution over which an 
Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-55818 
(Nov. 9, 1994). The term ``Indian Tribe'' is defined under the Act as 
``any Indian tribe, band, nation, or other organized group or 
community, including any Alaska Native village, which is Federally 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.'' 
See section 302(r) of the Act; see also 59 FR 43955, 43962 (Aug. 25, 
1994); 58 FR 54364 (Oct. 21, 1993).
    The EPA is publishing this rule without prior proposal because the 
State is currently implementing its part 70 program and the Agency 
views this as a noncontroversial action and anticipates no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to grant full approval of the operating permit 
program submitted by the State of North Dakota should adverse comments 
be filed. This rule will be effective August 16, 1999, without further 
notice unless the Agency receives adverse comments by July 19, 1999.
    If the EPA receives such comments, then EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. All public comments received will then be 
addressed in a subsequent final rule based on the proposed rule. The 
EPA will not institute a second comment period on this action. Any 
parties interested in commenting on this rule must do so at this time.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, E.O. 12875 requires EPA to provide to the Office of 
Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. This action does 
not involve or impose any requirements that affect Indian Tribes. 
Accordingly, the requirements of section 3(b) of E.O. 13084 do not 
apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because part 70 approvals under section 502 of 
the Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore,

[[Page 32436]]

because this approval does not create any new requirements, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either state, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. section 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 16, 1999. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 70

    Environmental Protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
and Reporting and recordkeeping requirements.

    Dated: June 2, 1999.
Carol Rushin,
Acting Regional Administrator, Region VIII.

    40 CFR part 70, chapter I, title 40 of the Code of Federal 
Regulations is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

    2. In appendix A to part 70 the entry for North Dakota is amended 
by adding paragraph (b) to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
North Dakota
* * * * *
    (b) The North Dakota Department of Health, Environmental Health 
Section, submitted an operating permits program on May 11, 1994; 
interim approval effective on August 7, 1995; revised January 1, 1996, 
September 1, 1997, September 1, 1998, and August 1, 1999; full approval 
effective on August 16, 1999.
* * * * *
[FR Doc. 99-15269 Filed 6-16-99; 8:45 am]
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