[Federal Register Volume 70, Number 151 (Monday, August 8, 2005)]
[Rules and Regulations]
[Pages 45539-45542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15609]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME Docket Number R08-OAR-2005-ND-0001; FRL-7942-4]


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: Direct final rule.

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SUMMARY: EPA is taking direct final action approving certain revisions 
to the State Implementation Plan (SIP) as submitted by the Governor of 
North Dakota with a letter dated April 11, 2003. The revisions affect 
certain portions of air pollution control rules regarding permitting 
and prevention of significant deterioration. This action is being taken 
under section 110 of the Clean Air Act.

DATES: This rule is effective on October 7, 2005, without further 
notice, unless EPA receives adverse comment by September 7, 2005. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. R08-OAR-
2005-ND-0001, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rmepub/index.jsp. 
Regional Materials in EDOCKET (RME), EPA's electronic public docket and 
comment system for regional actions, is EPA's preferred method for 
receiving comments. Follow the on-line instructions for submitting 
comments.
     E-mail: [email protected] and [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Richard R. Long, Director, Air and Radiation 
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.
     Hand Delivery: Richard R. Long, Director, Air and 
Radiation Program, Environmental Protection Agency (EPA), Region 8, 
Mailcode 8P-AR, 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. Special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. R08-OAR-2005-
ND-0001. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available at http://docket.epa.gov/rmepub/index.jsp, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA's Regional Materials in EDOCKET and 
Federal regulations.gov Web site are ``anonymous access'' systems, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through EDOCKET or 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. 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. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional information about EPA's public docket visit EDOCKET online 
or see the Federal Register of May 31, 2002 (67 FR 38102). For 
additional instructions on submitting comments, go to section I. 
General Information of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the Regional 
Materials in EDOCKET index at http://docket.epa.gov/rmepub/index.jsp. 
Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in Regional Materials in EDOCKET or in 
hard copy at the Air and Radiation Program, Environmental Protection 
Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 
80202-2466. EPA requests that if at all possible, you contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection 
Agency, Region 8, (303) 312-6449, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background
III. Revisions in the April 11, 2003 Submittal That are the Subject 
of this Document
IV. Section 110(l)

[[Page 45540]]

V. Final Action
VI. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or ND mean the State of North Dakota, unless 
the context indicates otherwise.
    (v) The initials PSD mean prevention of significant deterioration 
of air quality.
    (vi) The initials NDDH mean or refer to the North Dakota Department 
of Health.

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
Regional Materials in EDOCKET, regulations.gov or e-mail. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD ROM that you mail to EPA, 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 claimed as CBI. In 
addition to one complete version of the comment that includes 
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 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    I. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    II. Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    III. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    IV. Describe any assumptions and provide any technical information 
and/or data that you used.
    V. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    VI. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    VII. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    VIII. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    The Act requires States to follow certain procedures in developing 
implementation plans and plan revisions for submission to us. Sections 
110(a)(2) and 110(l) of the Act provide that each implementation plan 
must be adopted after reasonable notice and public hearing.
    To provide for public comment, the North Dakota Department of 
Health (NDDH), after providing notice, held a public hearing on April 
19, 2002 to address the revisions to the State Implementation Plan 
(SIP) and Air Pollution Control Rules. Following the public hearing, 
comment period, and legal review by the North Dakota Attorney General's 
Office, the North Dakota State Health Council adopted the revisions, 
which became effective on March 1, 2003. The North Dakota Governor 
submitted the SIP revisions to us with a letter dated April 11, 2003.
    On October 21, 2004, EPA published a notice of final rulemaking for 
the State of North Dakota (see 69 FR 61762). In that final rulemaking, 
we approved portions of the SIP revision submitted by the Governor of 
North Dakota on April 11, 2003. The portions of the SIP revision that 
we approved affected the North Dakota Air Pollution Control Rules 
regarding general provisions and emissions of particulate matter and 
sulfur compounds.
    As we discussed in our October 21, 2004 notice of final rulemaking, 
we were handling separately the revisions in the April 11, 2003 
submittal addressing North Dakota Air Pollution Control Rules Section 
33-15-01-13, regarding shutdown and malfunction of an installation, 
certain portions of Chapter 33-15-14, regarding construction and minor 
source permitting, and certain portions of Chapter 33-15-15, regarding 
prevention of significant deterioration.

III. Revisions in the April 11, 2003 Submittal That Are the Subject of 
This Document

    The revisions in the April 11, 2003 submittal to be addressed in 
this document pertain to certain portions of the North Dakota Air 
Pollution Control Rules regarding construction and minor source 
permitting and prevention of significant deterioration, which involve 
sections of the following chapters of the North Dakota Administrative 
Code (N.D.A.C.): 33-15-14 Designated Air Contaminant Sources, Permit to 
Construct, Minor Source Permit to Operate, Title V Permit to Operate 
(certain sections specific to construction and minor source permitting) 
and 33-15-15 (Prevention of Significant Deterioration of Air Quality).

A. Chapter 33-15-14, N.D.A.C., Designated Air Contaminant Sources, 
Permit to Construct, Minor Source Permit to Operate, Title V Permit to 
Operate (certain sections specific to construction and minor source 
permitting)

    In the Permit to Construct section, 33-15-14-02, subsection 33-15-
14-02.5, Review of application--Standard for granting permits to 
construct, was revised to increase the amount of time the NDDH is 
allowed to make its preliminary determinations on a Permit to Construct 
application. The increase was from 30 days to 90 days. In addition, a 
revision was made to the provision regarding the preliminary 
determination on whether the proposed project will provide all known 
available and reasonable methods of emission control. ``All known'' was 
changed to ``necessary.'' The NDDH was concerned that ``all known'' 
could have been interpreted to require the absolute best control 
technology available (i.e., Lowest Achievable Emission Rate or LAER) 
even though emission limits in the other rules of the SIP may require 
something less. Since it was never NDDH's intent to establish 
additional emission control requirements (especially LAER) in the 
Permit to Construct section that would supersede those in the rest of 
the SIP, this revision was made to clarify that the emission control 
methodology proposed must be sufficient to comply with the applicable 
rules but not more than the applicable requirements dictate.
    Subdivision 33-15-14-02.13.i, paragraph 5, was revised to clarify 
that petroleum liquid storage tanks that are subject to air pollution 
control requirements under the State's New Source Performance Standards 
(NSPS) Program, Chapter 33-15-12, are not exempt from getting a permit 
to construct.
    In the Minor Source Permit to Operate section, 33-15-14-03, 
subsection 33-15-14-03.4, Performance testing, was revised to 
incorporate performance and emissions testing requirements previously 
located at 33-15-14-03.11.

[[Page 45541]]

As a result, subsection 33-15-14-03.11 was deleted.
    In subsection 33-15-14-03.5, Action on applications, subparagraph 
33-15-14-03.5.a(1)(d), was revised to eliminate the requirement for 
delivery of a copy of the proposed minor source permit to operate and 
public notice to the chief executive officer of the city and county 
where the source is located and the Regional Planning Agency. Regional 
Planning Agencies will continue to get notice of preconstruction 
permits and counties will continue to get notice of federally 
enforceable minor source permits to operate since the State sends a 
copy to the County Auditor. Therefore, this revision results in a 
change in process but without any substantive impacts.
    The changes to subsection 33-15-14-03.5 also clarified that lands 
will be considered to be ``significantly affected'' by a source's 
emissions if the source is located within 50 kilometers of such land. 
While a source seeking a federally enforceable minor source permit to 
operate may cause localized air quality degradation near the source, 
these impacts diminish rapidly with increasing distance from the 
source. Therefore, EPA believes this clarification is reasonable since 
it is extremely unlikely that minor sources would have a significant 
impact beyond 50 km.
    The revisions discussed above are clarifying or procedural in 
nature; therefore, these revisions are approvable.
    Finally, in the Permit to Construct section, 33-15-14-02, 
Subsection 33-15-14-02.13, Exemptions, subdivision 33-15-14-02.13.c was 
revised to amend an exemption for internal combustion engines. The 
change exempts internal combustion engines with a maximum rating of 
less than 1000 brake horsepower which operate less than 500 hours in a 
year from the construction permitting requirements provided they are 
not ``utility units'' as defined in the State's Acid Rain Program, 
Chapter 33-15-21. This revision was made primarily for emergency 
generators. The State believes that almost all the engines that fall 
into this exemption category are diesel engines or natural gas fired. 
Therefore, using the appropriate AP-42 emission factors, they estimated 
that the most one of these engines will emit (i.e., operating at 1000 
horsepower for 500 hours/year) is 8 tons/year of any pollutant. Even 
though these units are exempt from the preconstruction permitting 
requirements, they must still comply with any other applicable 
requirements in the permitting rules. Also, if any such unit is located 
at a major source, it will be included in the Title V permit.
    The engines covered by this exemption will produce only a minimal 
increase in emissions. Since the ambient levels are well below the 
NAAQS, EPA concludes that this revision will not interfere with 
attainment or maintenance of the NAAQS or any other applicable 
requirement of the Act and is, therefore, approvable.

B. Chapter 33-15-15, N.D.A.C., Prevention of Significant Deterioration 
(PSD) of Air Quality

    In subsection 33-15-15-01.1, Definitions, the subparagraph 
regarding major modifications (33-15-15-01.1.x(2)(d)) was revised. The 
revision clarifies that a physical change or change in the method of 
operation does not include an increase in the hours of operation or in 
the production rate, unless such change would be prohibited under any 
federally enforceable permit conditions established under the 
requirements of the PSD program (Chapter 33-15-15) or the Permit to 
Construct and Permit to Operate requirements of Chapter 33-15-14. This 
revision became effective at the State level on March 1, 2003, to make 
the regulations consistent with the Federal PSD requirements in effect 
at that time, as found in 40 CFR 51.24(b)(2)(iii)(f) and 
52.21(b)(2)(iii)(f). This revision is still consistent with the new PSD 
requirements found in 40 CFR 51.166 and 52.21, as promulgated on 
December 31, 2002. Therefore, this revision is approvable.
    In addition, subsection 33-15-15-01.4, Review of New Major 
Stationary Sources and Major Modifications, subparagraph 33-15-15-
01.4.h(3), regarding source information, was updated to delete a 
reference to an outdated, obsolete State document regarding Best 
Available Control Technology (BACT). This revision is editorial in 
nature and is approvable.

IV. 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. There are no 
nonattainment areas in North Dakota. The revisions to the permitting 
provisions and PSD rules, except as discussed below, were either 
clarifying or procedural in nature, will not affect emissions, and will 
not interfere with requirements of the Act related to administrative or 
procedural provisions. Therefore, these revisions do not interfere with 
attainment or maintenance of the NAAQS or other applicable requirements 
of the Act.
    The State believes that the exemption for internal combustion 
engines in 33-15-14-02.13 applies mostly to emergency type generators 
that are diesel or natural gas fired. Using appropriate AP-42 emission 
factors, they demonstrated that the most one of these engines will emit 
(i.e., operating at 1000 horsepower for 500 hours/year) is 8 tons/year 
of any pollutant. Therefore, the engines covered by this exemption will 
produce only a minimal increase in emissions. Since ambient levels are 
well below the NAAQS, EPA concludes that this revision will not 
interfere with attainment or maintenance of the NAAQS or any other 
applicable requirement of the Act.
    Finally, the revision to the subparagraph 33-15-15-01.1.x(2)(d) of 
the PSD chapter was required by EPA to be consistent with Federal PSD 
requirements previously found in 40 CFR 51.24(b)(2)(iii)(f) and 40 CFR 
52.21(b)(2)(iii)(f) and now located in 40 CFR 51.166 and 40 CFR 52.21. 
Therefore, the revision does not interfere with the attainment or 
maintenance of the NAAQS, or other applicable requirements of the Act, 
but provides some enhancement.

V. Final Action

    We reviewed the adequacy of these certain revisions submitted by 
the North Dakota Governor with a letter dated April 11, 2003, and find 
them approvable.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the ``Proposed Rules'' section of today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective October 7, 2005, 
without further notice unless the Agency receives adverse comments by 
September 7, 2005. If the EPA receives adverse comments, EPA will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. EPA will address all public 
comments 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 must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph,

[[Page 45542]]

or section of this rule and if that provision may be severed from the 
remainder of the rule, EPA may adopt as final those provisions of the 
rule that are not the subject of an adverse comment.

VI. 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 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 October 7, 2005. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 14, 2005.
Max H. Dodson,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ--North Dakota

0
2. Section 52.1820 is amended by adding paragraph (c)(34) to read as 
follows:


Sec.  52.1820  Identification of plan.

* * * * *
    (c) * * *
    (34) Certain revisions to the North Dakota State Implementation 
Plan and Air Pollution Control Rules as submitted by the Governor with 
a letter dated April 11, 2003. The revisions affect portions of North 
Dakota Administrative Code (N.D.A.C.) regarding construction and minor 
source permitting and prevention of significant deterioration of air 
quality.
    (i) Incorporation by reference.
    (A) Revisions to the North Dakota Air Pollution Control Rules as 
follows:
    (1) Chapter 33-15-14, N.D.A.C., Designated Air Contaminant Sources, 
Permit to Construct, Minor Source Permit to Operate, Title V Permit to 
Operate, subsections 33-15-14-02.5, 33-15-14-02.13.c, 33-15-14-
02.13.i(5), 33-15-14-03.4, 33-15-14-03.5.a(1)(d), and 33-15-14-03.11, 
effective March 1, 2003.
    (2) Chapter 33-15-15, N.D.A.C., Prevention of Significant 
Deterioration of Air Quality, subsections 33-15-15-01.1.x(2)(d) and 33-
15-15-01.4.h(3), effective March 1, 2003.

[FR Doc. 05-15609 Filed 8-5-05; 8:45 am]
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