[Federal Register Volume 68, Number 180 (Wednesday, September 17, 2003)]
[Rules and Regulations]
[Pages 54374-54377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23751]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[No. R803NDT5REV; FRL-7560-5]


Clean Air Act Approval of Revisions To the Operating Permits 
Program in North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving, as a revision to North Dakota's title V air 
operating permits program, a proposed amendment to North Dakota's 
definition of ``major source'' in response to recent amendments to the 
definition of ``major source'' in the operating permit regulations.

DATES: This direct final rule is effective on November 17, 2003, 
without further notice, unless EPA receives adverse written comments by 
October 17, 2003. If EPA receives such comments, it 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 submitted by mail to Richard R. 
Long, Director, Air and Radiation Program, Mailcode 8P-AR, 
Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 
300, Denver, Colorado 80202-2466. Comments may also be submitted 
electronically, or through hand delivery/courier. Please follow the 
detailed instructions described in (Part (I)(B)(1)(i) through (iii)) of 
the Supplementary Information section.

FOR FURTHER INFORMATION CONTACT: Kathleen Paser, Air and Radiation 
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 
8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, 303-312-
6526, [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under R803NDT5REV. The official public file consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. Although a part of the 
official docket, the public rulemaking file does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. The official public rulemaking 
file is the collection of materials that is available for public 
viewing at the Air and Radiation Program, EPA Region 8, 999 18th 
Street, Suite 300, Denver, CO. EPA requests that if at all possible, 
you contact the contact listed in the For Further Information Contact 
section to schedule your inspection. You may view the public rulemaking 
file at the

[[Page 54375]]

Regional Office Monday through Friday, 8 a.m. to 4 p.m., excluding 
federal Holidays.
    2. Copies of the State's submittal are also available for public 
inspection during normal business hours, by appointment at the State 
Air Agency. Copies of the 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 58506.
    3. Electronic Access. You may access this Federal Register document 
electronically through the Regulation.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking No. R803NDT5REV'' in the 
subject line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail). Please 
send any comments to [email protected] and [email protected] 
and include in the text ``Public comment on proposed rulemaking No. 
R803NDT5REV'' in the subject line. EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly 
without going through Regulations.gov, EPA's e-mail system 
automatically captures your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the comment that is placed in the official public docket.
    ii. Regulation.gov. Your use of Regulation.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then select 
Environmental Protection Agency at the top of the page and use the go 
button. The list of current EPA actions available for comment will be 
listed. Please follow the online instructions for submitting comments. 
The system is an ``anonymous access'' system, which means EPA will not 
know your identity, e-mail address, or other contact information unless 
you provide it in the body of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: Richard R. Long, Director, Air 
and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency 
(EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Please include the text ``Public comment on proposed rulemaking 
No. R803CISWI'' in the subject line on the first page of your comment
    3. By Hand Delivery or Courier. Deliver your comments to: Richard 
R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, 
Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 
300, Denver, Colorado 80202-2466. Such deliveries are only accepted 
Monday through Friday, 8 a.m. to 4:55 p.m., excluding federal Holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR Part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the For Further Information Contact section.

II. Background

    North Dakota has proposed to revise the definition of ``major 
source'' in response to recent amendments to the definition of ``major 
source'' in part 70. See 66 FR 59161 (November 27, 2001). EPA made two 
changes from the 1992 rule regarding when non-Hazardous Air Pollutant 
(HAP) fugitive emissions are included in determining major source 
status. The 1992 rule required that non-HAP fugitive emissions be 
counted for all industrial facilities in source categories covered by 
New Source Performance Standards (NSPS) or National Emission Standards 
for Hazardous Air Pollutants (NESHAP) standards, but only with regard 
to pollutants specifically regulated for the source category. The final 
amendment to part 70 changed this requirement: (1) To address only 
source categories covered by NSPS or NESHAP standards promulgated after 
August 7, 1980; and

[[Page 54376]]

(2) to delete the limitation that only pollutants specifically 
regulated by the standard be included. Consistent with this amendment, 
North Dakota is proposing to revise its rule to correspond with the 
part 70 definition of ``major source.'' In doing so, North Dakota's 
rules are as stringent as part 70. Therefore, North Dakota's proposed 
change in the definition of ``major source'' is approvable.

III. Final Action

    EPA is approving, as a revision to North Dakota's title V air 
operating permits program, NDAC 33-15-14-06, the proposed amendment to 
the definition of ``major source.'' Consistent with EPA's action 
granting North Dakota's full approval, this approval extends to all 
areas within the State except the following: Any sources 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 Reservation, or any other sources of air pollution over which an 
Indian Tribe has jurisdiction. See e.g., 59 FR 55813, 55815--55818 
(November 9, 1994). The term ``Indian Tribe'' is defined under the 
Clean Air Act (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 (August 25, 1994); 58 FR 54364 (October 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 the Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to approve North Dakota's proposed amendment to 
their title V air operating permits program. This rule will be 
effective November 17, 2003 without further notice unless the Agency 
receives adverse comments by October 17, 2003.
    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.

IV. 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 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 (Public Law 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 title V operating permit program 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 title V operating permit 
program submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a title V 
operating permit program submission, to use VCS in place of a title V 
operating permit program 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 November 17, 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 70

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


[[Page 54377]]


    Dated: September 3, 2003.
Robert E. Roberts,
Regional Administrator, Region 8.

0
40 CFR part 70, chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

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

0
2. In appendix A to part 70 the entry for North Dakota is amended by 
adding paragraph (c) to read as follows:

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

* * * * *

North Dakota

* * * * *
    (c) The North Dakota Department of Health, Environmental Health 
Section submitted the following program revisions on May 1, 2003: 
NDAC 33-15-14-06.1(o)(2)(aa), effective November 17, 2003.
* * * * *
[FR Doc. 03-23751 Filed 9-16-03; 8:45 am]
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