[Federal Register Volume 68, Number 40 (Friday, February 28, 2003)]
[Rules and Regulations]
[Pages 9565-9567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4770]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ND-001-0007; FRL-7453-4]


Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan Revision for North Dakota; Revisions to the Air 
Pollution Control Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA approves revisions to the State Implementation Plan (SIP) 
submitted by the Governor of North Dakota with a letter dated June 21, 
2001. The revisions affect air pollution control rules regarding 
general provisions, emissions of particulate matter and fugitives, 
exclusions from Title V permit to operate requirements, and prevention 
of significant deterioration. EPA will handle separately direct 
delegation requests for emission standards for hazardous air pollutants 
for source categories and the State's Acid Rain Program. This action is 
being taken under section 110 of the Clean Air Act.

EFFECTIVE DATE: This final rule is effective March 31, 2003.

ADDRESSES: 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 300, Denver, Colorado 80202-2405. Copies of the Incorporation by 
Reference material at the Air and Radiation Docket and Information 
Center, U.S. Environmental Protection Agency, Room B-108 (Mail Code 
6102T), 1301 Constitution Ave., NW., Washington, DC 20460. Copies of 
the State documents relevant to this action are available at the North 
Dakota Department of Health, Division of Environmental Engineering, 
1200 Missouri Avenue, Bismarck, North Dakota, 58504-5264.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection 
Agency, Region VIII, (303) 312-6449.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' are used, we mean EPA.

I. Background

    On October 7, 2002 (67 FR 62432), EPA published a notice of 
proposed rulemaking (NPR) for the State of North Dakota. The NPR 
proposed approval of revisions to the State Implementation Plan (SIP) 
submitted by the Governor of North Dakota with a letter dated June 21, 
2001. The revisions affect air pollution control rules regarding 
general provisions, emissions of particulate matter and fugitives, 
exclusions from Title V permit to operate requirements, and prevention 
of significant deterioration. As indicated in the NPR, the submittal 
also included direct delegation requests for emission standards for 
hazardous air pollutants for source categories and the State's Acid 
Rain Program, which we will handle separately.
    The revisions being addressed in this document involve the 
following chapters of the North Dakota Administrative Code (N.D.A.C.): 
33-15-01 General Provisions; 33-15-05 Emissions of Particulate Matter 
Restricted; 33-15-14 Designated Air Contaminant Sources, Permit to 
Construct, Minor Source Permit to Operate, Title V Permit to Operate 
(subsection specific to exclusions from Title V permit to operate 
requirements only); 33-15-15 Prevention of Significant Deterioration; 
and 33-15-17 Restriction of Fugitive Emissions. For a detailed 
description of the revisions, please refer to our October 7, 2002 NPR 
(62 FR 62432).
    A brief summary of the revisions is as follows. In the General 
Provisions chapter, the definition for ``public nuisance'' was removed 
and changes were made to clarify reporting requirements when stack 
testing for air contaminant emissions. In the Emissions of Particulate 
Matter Restricted chapter, the State incorporated reference information 
from the Federal rules. Also, the State repealed its requirements for 
existing infectious waste incinerators because these requirements are 
now addressed in the State's plan for the control of emissions from 
existing hospital/medical/infectious waste incinerators, which was 
approved by EPA in a May 13, 1999 Federal Register document (64 FR 
25831). In the Restriction of Fugitive Emissions chapter, the State 
deleted a reference to nuisances and replaced it with a requirement 
that a source cannot cause air pollution as defined in the general 
provisions chapter (the State believes that its definition of ``air 
pollution'' covers nuisances). The above changes are consistent with 
Federal requirements and, therefore, are approvable.
    In the Designated Air Contaminant Sources, Permit to Construct, 
Minor Source Permit to Operate, Title V Permit to Operate chapter, a 
new subsection entitled ``Source Exclusions from Title V Permit to 
Operate Requirements'' was added to provide an exemption from the

[[Page 9566]]

Title V permitting requirements for certain gasoline service stations, 
bulk gasoline plants, coating sources, printing, publishing and 
packaging operations, degreasers using volatile organic solvents, and 
hot mix asphalt plants. This exclusionary rule creates generic 
potential-to-emit (PTE) limits for specific source categories, and 
thereby clarifies which of the sources within the specific categories 
are minor with respect to the Title V operating permit requirements. 
The rule does not exclude these certain sources from North Dakota's 
construction or minor source operating permit programs. We are 
approving this new subsection, 33-15-14-07, under section 110 of the 
Clean Air Act, which allows us to approve preconstruction permit 
programs and rules and non-title V operating permit programs and rules.
    In the Prevention of Significant Deterioration (PSD) chapter, the 
definition of ``significant'' was updated to match the Federal 
definition. In addition, a provision was removed that required the 
North Dakota Department of Health (NDDH) to consult with an impacted 
state prior to approving a PSD source permit application that will 
consume more than half of the available increment in the other state. 
These revisions are consistent with Federal requirements and, 
therefore, are approvable.

II. Response to Comments

    We received adverse comments from the Dakota Resource Council, 
submitted in a letter dated November 6, 2002, regarding our proposed 
approval of the revisions to the North Dakota PSD rule (NDAC 33-15-15). 
Specifically, the commenter disagrees with our approval of the repeal 
of the provision that required NDDH to consult with an impacted state 
prior to approving a PSD source permit application that will consume 
more than half of the available increment in the other state. It is the 
commenter's belief that removal of this provision relaxes the SIP and 
is in conflict with section 110(a)(2)(D)(i)(II) of the Clean Air Act, 
which requires SIPs to include provisions prohibiting any source within 
a state from emitting any air pollutant which will interfere with 
measures to prevent significant deterioration of air quality in any 
other state's applicable implementation plan. The commenter believes 
that we must not approve the removal of this provision without the 
State demonstrating that there are other provisions in the North Dakota 
SIP that ensure that sources in North Dakota will not interfere with 
other states' plans to prevent significant deterioration of air 
quality.
    We agree with the need for such a demonstration from the State and 
specifically requested it during our review of these revisions in draft 
form. In a November 28, 2000, letter from Jeffrey L. Burgess, NDDH, to 
Dick Long, EPA Region VIII, the State provided such assurances. 
Specifically, the State indicated that its PSD rules contain all of the 
notification requirements in the Federal rules (see 40 CFR 51.166 and 
40 CFR 52.21), including notification during the public comment period 
to an affected state (see North Dakota Administrative Code (NDAC) 33-
15-15-01.5.b.). Although there is no longer a consultation requirement, 
there are still requirements under North Dakota's PSD program for the 
NDDH to provide notice to any state, Federal Land Manager, or Indian 
governing body whose lands may be significantly affected by emissions 
from a proposed source or modification (see NDAC 33-15-15-01.5.b(4)). 
This notification usually takes the form of a copy of the public 
notice, a copy of the related analyses, and a copy of the draft permit. 
The affected parties then have the opportunity during the public 
comment period to provide comments to the NDDH. The deletion of the 
language regarding consultation with an affected state was made to make 
the State rules more consistent with Federal requirements (40 CFR 
51.166 and 40 CFR 52.21 do not include this requirement).
    Since the revisions to this chapter are consistent with Federal 
requirements, and the State has demonstrated that there are other 
provisions in the SIP to ensure that sources in North Dakota will not 
interfere with other states' plans to prevent significant deterioration 
of air quality, we believe the revisions are approvable.

III. Section 110(l)

    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the National Ambient Air Quality Standards 
(NAAQS) or any other applicable requirements of the Act. The North 
Dakota SIP revisions that are the subject of this document do not 
interfere with the maintenance of the NAAQS or any other applicable 
requirements of the Act. The SIP revision amends the State's General 
Provisions and Methods of Measurement and these changes are consistent 
with Federal requirements and rules. The repeal of requirements for 
existing infectious waste incinerators does not interfere with the 
maintenance of the NAAQS or any other applicable requirements of the 
Act because these requirements are addressed in the State's plan for 
the control of emissions from existing hospital/medical/ infectious 
waste incinerators, which was approved by EPA in a May 13, 1999 Federal 
Register document (64 FR 25831). The new rules that provide for source 
exclusions from the title V permit to operate requirements are 
consistent with EPA's authority to approve exclusionary rules under 
section 110 of the Clean Air Act and the rules do not interfere with 
the maintenance of the NAAQS or any other applicable requirements of 
the Act because they are consistent with the April 14, 1998, EPA 
guidance from John Seitz, Director of the Office of Air Quality 
Planning and Standards, entitled ``Potential to Emit (PTE) Guidance for 
Specific Source Categories.'' The update to the State's PSD rules 
mirror the Federal rules. Finally, the State's removal of the term 
``nuisance'' does not interfere with the maintenance of the NAAQS or 
any other applicable requirements of the Act since nuisances can still 
be addressed under the State's definition of ``air pollution.''

IV. Final Action

    EPA is approving North Dakota's SIP revision, as submitted by the 
Governor with a letter dated June 21, 2001. The revisions in the June 
21, 2001 submittal which are being approved in this document involve 
sections of the following chapters of the North Dakota Administrative 
Code: 33-15-01 General Provisions; 33-15-05 Emissions of Particulate 
Matter Restricted; 33-15-14 Designated Air Contaminant Sources, Permit 
to Construct, Minor Source Permit to Operate, Title V Permit to Operate 
(specifically, subsection 33-15-14-07, Source Exclusions from Title V 
Permit to Operate Requirements); 33-15-15 Prevention of Significant 
Deterioration; and 33-15-17 Restriction of Fugitive Emissions. The June 
21, 2001 submittal also included requests for direct delegation of 
Chapter 33-15-21, Acid Rain Program and Chapter 33-15-22, Emission 
Standards for Hazardous Air Pollutants for Source Categories, which are 
being handled separately.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For

[[Page 9567]]

this reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 the 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 April 29, 2003. 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: February 11, 2003.
Max H. Dodson,
Acting Regional Administrator, Region 8.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ--North Dakota

    2. Section 52.1820 is amended by adding paragraph (c)(32) to read 
as follows:


Sec.  52.1820  Identification of plan.

* * * * *
    (c) * * *
    (32) The Governor of North Dakota submitted revisions to the North 
Dakota State Implementation Plan and Air Pollution Control Rules with a 
letter dated June 21, 2001. The revisions address air pollution control 
rules regarding general provisions, emissions of particulate matter and 
fugitives, exclusions from Title V permit to operate requirements, and 
prevention of significant deterioration.
    (i) Incorporation by reference.
    (A) Revisions to the Air Pollution Control Rules as follows: 
General Provisions 33-15-01-04, 33-15-01-12, and 33-15-01-15; Emissions 
of Particulate Matter Restricted 33-15-05-04.1; Designated Air 
Contaminant Sources, Permit to Construct, Minor Source Permit to 
Operate, Title V Permit to Operate 33-15-14-02.13.b.1, 33-15-14-03.1.c, 
and 33-15-14-07; Prevention of Significant Deterioration of Air Quality 
33-15-15-01.1.hh and 33-15-15-01.2; and Restriction of Fugitive 
Emissions 33-15-17-01, effective June 1, 2001.
    (B) Revisions to the Air Pollution Control Rules as follows: 
Emissions of Particulate Matter Restricted 33-15-05-03.1, repealed 
effective July 12, 2000.

[FR Doc. 03-4770 Filed 2-27-03; 8:45 am]
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