[Federal Register Volume 78, Number 214 (Tuesday, November 5, 2013)]
[Proposed Rules]
[Pages 66321-66325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26356]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-R08-OAR-2013-0330, FRL-9902-46-Region 8]


Approval of North Dakota Request for Partial Delegation of 
Prevention of Accidental Release, Clean Air Act Section 112(r) Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Under Clean Air Act (CAA) Section 112(l), EPA may approve 
State or local rules or programs to be implemented and enforced in 
place of certain otherwise applicable Federal rules, emissions 
standards, or requirements. On September 13, 2012, the State of North 
Dakota, Department of Agriculture (NDDA), requested partial delegation 
of the CAA section 112(r)(7) Risk Management Program (RM Program) for 
agricultural anhydrous ammonia facilities. The September 13, 2012 
request was supplemented by the NDAA on February 26, 2013, and April 
11, 2013. EPA has preliminarily determined that NDDA's request meets 
CAA requirements for partial delegation, and EPA is proposing to 
approve the request.

DATES: Comments must be received on or before December 5, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0330, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Fax: (303) 312-7203 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Brent Truskowski, Acting RMP Coordinator, Emergency 
Response and Preparedness Program, U.S. Environmental Protection Agency 
(EPA), Region 8, Mailcode 8EPR-ER, 1595 Wynkoop St., Denver, Colorado 
80202-1129.
     Hand Delivery: Brent Truskowski, Acting RMP Coordinator, 
Emergency Response and Preparedness Program, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8EPR-ER, 1595 Wynkoop St., 
Denver, Colorado 80202-1129. Such deliveries are only accepted Monday 
through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. 
Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2014-0330. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, 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 www.regulations.gov or email. The 
www.regulations.gov Web site is an anonymous access system, 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 email comment 
directly to EPA, without going through www.regulations.gov your email 
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 the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Preparedness Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., 
Denver, Colorado 80202-1129. 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, 8:00 a.m. to 4:00 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Brent Truskowski, Acting RMP

[[Page 66322]]

Coordinator, Emergency Response and Preparedness Program, Mailcode 
8EPR-ER, U.S. Environmental Protection Agency (EPA), Region 8, 1595 
Wynkoop St., Denver, Colorado 80202-1129, (303) 312-6235, 
[email protected].

SUPPLEMENTARY INFORMATION: Information is organized as follows:

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 word and initials RM Program means Risk Management 
Program.
    (iii) The initials NDDA mean North Dakota Department of 
Agriculture.
    (iv) The initials RMP mean Risk Management Plan.
    (v) The initials CFR mean Code of Federal Regulations.
    (vi) The initials FR mean Federal Register.
    (vii) The initials CAS mean Chemical Abstract Service.
    (viii) The initials NDCC mean North Dakota Century Code.
    (ix) The initials NDAC mean North Dakota Administrative Code.
    (x) The initials MOU mean Memorandum of Understanding.

Table of Contents

I. What action is EPA proposing in today's notice?
II. Background
    A. Risk Management Program Background
    B. Delegation of Section 112 Programs
    C. North Dakota's Request for Delegation
III. EPA's Analysis of NDDA's Submittal
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing in today's notice?

    On June 20, 1996, EPA promulgated Risk Management Program (RM 
Program) regulations (40 CFR part 68) which were mandated under the 
accidental release prevention provisions of section 112(r)(7) of the 
CAA. 61 FR 31668. These regulations require owners and operators of 
stationary sources subject to the regulations to submit risk management 
plans (RMPs) to a central location specified by EPA. These regulations 
also encourage sources to reduce the probability of accidentally 
releasing substances that have the potential to cause harm to public 
health and the environment, and stimulate dialogue between industry and 
the public to improve accident prevention and emergency response 
practices.
    The North Dakota Department of Agriculture (NDAA) has requested 
partial delegation of the RM Program for facilities with an anhydrous 
ammonia storage capacity of ten thousand pounds or more that is 
intended to be used as fertilizer or in the manufacturing of a 
fertilizer (``agricultural anhydrous ammonia facilities''). EPA is 
proposing to approve this request and to partially delegate the RM 
Program for agricultural anhydrous ammonia facilities to the State of 
North Dakota. EPA would retain authority for the RM Program for all 
other regulated chemicals which may be present at these facilities. See 
40 CFR 68.130.
    After a thorough review of North Dakota's partial delegation 
request, and the pertinent statutes and regulations, Region 8 proposes 
to find that such a delegation is appropriate in that North Dakota has 
satisfied the criteria in 40 CFR 63.91 and 63.95 by demonstrating it 
has adequate and effective authorities, resources, and procedures in 
place for implementation and enforcement of agricultural anhydrous 
ammonia facilities subject to the RM Program. If approved, North Dakota 
will have the primary authority and responsibility to carry out 
elements of the RM Program for agricultural anhydrous ammonia 
facilities within the State, including on-site inspections, 
recordkeeping reviews, audits, compliance assistance and outreach, and 
non-criminal enforcement. EPA will retain authority for implementing 
the RM Program for all other chemicals at these facilities, and for the 
RM Program generally in North Dakota for all other facilities.

II. Background

A. Risk Management Program Background

    On January 31, 1994 (59 FR 4493), EPA promulgated (along with 
various other provisions) the ``List of Regulated Substances and 
Thresholds for Accidental Release Prevention and Risk Management 
Programs for Chemical Accident Release Prevention.'' See 40 CFR 68.130. 
The list, known as Tables 1 to 4 in section 68.130, sets forth the list 
of regulated substances and thresholds under CAA Section 112(r). 
Anhydrous ammonia is a regulated substance under section 112(r) based 
on a mandate from Congress and its subsequent inclusion on the list in 
Tables 1 and 2 in section 68.130. Tables 1 and 2 are identical lists of 
toxic chemicals arranged alphabetically in Table 1 and by Chemical 
Abstract Service (CAS) number in Table 2.
    Part 68 also sets forth the requirements for owners or operators of 
stationary sources concerning the prevention of accidental releases. 
The regulations address the safe design, operation, and maintenance of 
covered processes and emergency response to accidental releases that 
may occur. The regulations also include requirements for the 
development and submission of RMPs by regulated sources. The RMP is 
required to include information about the regulated stationary source 
and about the source's hazard assessment, prevention program, and 
emergency response program.

B. Delegation of Section 112 Programs

    Section 112(l) of the CAA and 40 CFR part 63, subpart E authorize 
EPA to approve state rules and programs to be implemented and enforced 
in place of certain CAA requirements, including the RM Program set 
forth at 40 CFR part 68. EPA promulgated 40 CFR part 63, subpart E on 
November 26, 1993 (58 FR 62262) and subsequently amended these 
regulations on September 14, 2000 (65 FR 55810).
    Under 40 CFR 63.91(a), a state must satisfy requirements under 40 
CFR 63.91(d) to obtain delegation of a section 112 program. If the 
state adopts federal rules unchanged, then only the criteria in 40 CFR 
63.91(d) are required, except for delegation of the RM Program for 
which the provisions of 40 CFR 63.95 must also be met. See 40 CFR 
63.91(a)(1) and (a)(4).
    Under 40 CFR 63.91(d), the state may either reference approval of a 
Title V program or directly satisfy the requirements in (d)(3)(i)-(v). 
These requirements include:
     A written finding by the State Attorney General that the 
state has the necessary legal authority to implement and enforce the 
program and to assure compliance;
     Copies of the state's statutes and regulations granting 
authority to implement the program;
     A demonstration that the state has adequate resources to 
implement and enforce the program;
     A schedule demonstrating expeditious implementation of the 
program; and
     A plan that assures expeditious compliance, including a 
complete description of the state's compliance tracking and enforcement 
program.

If a State's legal authorities substantially meet the requirements 
above (set out in detail in 40 CFR 63.91(d)(3)(i)), but are not fully 
approvable, EPA may grant partial approval with the State's consent and 
the EPA will continue to implement those authorities that are not 
approved. See 40 CFR 63.91(f).
    Under 40 CFR 63.95(b), the State's part 68 program shall contain 
the following elements, consistent with the procedures in Sec.  63.91, 
for at least the

[[Page 66323]]

chemicals listed in 40 CFR part 68, subpart F, that an approvable State 
Accidental Release Prevention program is regulating:
     A demonstration of the state's authority and resources to 
implement and enforce regulations that are no less stringent than the 
regulations of 40 CFR part 68, subparts A through G and 40 CFR 68.200; 
and
     A requirement that any source subject to the State's part 
68 program submit a RMP that reports at least the same information in 
the same format as required under part 68, subpart G; \1\
---------------------------------------------------------------------------

    \1\ Under 40 CFR 63.95(b)(2), a State's RM Program may require 
reporting of information not required by the Federal program, and 
these requirements (like any other additional State requirements) 
will become federally enforceable upon approval. In this case, NDDA 
has directly adopted by reference the Federal program in part 68, 
including the reporting requirements of subpart G.
---------------------------------------------------------------------------

     Procedures for reviewing RMPs and providing technical 
assistance to stationary sources including small businesses.
     A demonstration of the State's authority to enforce all 
part 68 requirements must be made, including an auditing strategy that 
complies with section 68.220.

For a program that covers all of the federally-listed chemicals (a 
``complete program'') or a program covering less than all of the 
federally-listed chemicals (a ``partial program'') the State must take 
delegation of the full part 68 program for the federally-listed 
chemicals it regulates.

C. North Dakota's Request for Delegation

    In late 2009 and early 2010, NDDA initiated conversations with EPA 
Region 8 regarding the procedure for receiving partial delegation of 
the RM Program for agricultural anhydrous ammonia facilities. EPA 
provided NDDA information regarding the delegation process through 
various email correspondence, phone conversations and meetings. On 
February 17, 2011, EPA Region 8 sent NDDA a letter formally recognizing 
NDDA's interest in receiving partial delegation of the RM program, and 
describing the basic requirements for the NDDA to request and receive 
partial delegation of the RM Program.
    NDDA has in place a program for regulation of certain aspects of 
anhydrous ammonia facilities, but this program does not address RM 
Program requirements. North Dakota Century Code (NDCC) 19-20.2 provides 
general authority for NDDA to license and regulate anhydrous ammonia 
facilities with a capacity exceeding six thousand gallons. NDCC 19-20.2 
contains engineering requirements for tanks, valve fittings, and other 
equipment to ensure that tanks and appurtenances are structurally sound 
and properly maintained. NDCC 19-20.2 also includes siting requirements 
that specify minimum distances between anhydrous ammonia storage tanks 
and adjoining property lines, residences, places of public assembly, 
and institutional residences. NDCC 19-20.2 also provides NDDA authority 
to enter any public or private premises to inspect equipment and 
respond to complaints. If violations are found, NDCC 19-20.2 allows 
NDDA to issue cease and desist orders, revoke or suspend facility 
licenses, and issue civil penalties.
    On April 18, 2011, the North Dakota Legislative Assembly enacted 
House Bill 1321, which created NDCC 19-20.3. NDCC 19-20.3 was enacted 
in anticipation of NDDA requesting and assuming partial delegation for 
the RM Program for agricultural anhydrous ammonia facilities. NDCC 19-
20.3 became effective April 1, 2013. NDCC 19-20.3-01 gives the 
Agriculture Commissioner authority to determine compliance with the RM 
Program requirements set forth in 40 CFR part 68 by providing the 
Commissioner authority to:
    1. Request information from any person that sells, stores, or 
handles anhydrous ammonia for agricultural purposes, and is required to 
comply with the risk management program requirements.
    2. Conduct inspections of any person that sells, stores, or handles 
anhydrous ammonia for agricultural purposes, and is required to comply 
with the risk management program requirements.
    3. Obtain and review RMPs required under 40 CFR part 68, and other 
records applicable to any person that sells, stores, or handles 
anhydrous ammonia for agricultural purposes, and is required to comply 
with the risk management program requirements.
    NDCC 19-20.3 also provides the Agriculture Commissioner with 
enforcement authority when RM Program violations are identified. 
Specifically, NDCC 19-20.3-02 states that the Commissioner may:
    1. Bring an action to enjoin a violation or a threatened violation;
    2. Issue a cease and desist order; and
    3. Impose a civil penalty through an administrative hearing in an 
amount not exceeding ten thousand dollars per day for each violation.
    On September 13, 2012, NDDA submitted to EPA a request to receive 
partial delegation of authority to implement and enforce the RM 
Program. This request included the following documents (which are 
included in the docket for this action):
     A summary of the State's anhydrous ammonia regulatory 
authority and general components of a proposed RMP enforcement program;
     A copy of NDCC 19-20.2;
     A copy of NDCC 19-20.3;
     A letter from the North Dakota Attorney General asserting 
authority of the Agriculture Commissioner to enforce the RM Program;
     A proposed Memorandum of Understanding (MOU) between NDDA 
and the EPA;
     A proposed RMP enforcement response policy;
     A proposed administrative rule for incorporating by 
reference 40 CFR part 68 into North Dakota's regulations (NDAC 7-12-
03).
    EPA reviewed the information provided with the request for partial 
delegation, and requested further information in December 2012. In 
addition, EPA responded to NDDA's request on December 13, 2012, 
acknowledging the receipt of the request for partial delegation, and 
describing the steps required by EPA to delegate the RM Program to 
NDDA.
    On February 26, 2013, NDDA submitted further information in 
response to EPA's request. The response provided EPA with a revised 
letter from the Attorney General addressing specific questions and 
concerns raised by EPA and a revised summary of North Dakota's 
regulatory authority and general components of the proposed enforcement 
program. The response indicated that North Dakota was amending a 
portion of its previous request and excluding the criminal enforcement 
authority required under 40 CFR 70.11(a)(3)(ii) and (iii) from its 
partial delegation request. The response discussed the status of North 
Dakota's rulemaking process to incorporate the RM Program into its 
regulations. The response also described how the requirements of 40 CFR 
63.95(b)(3) and (b)(4) would be met, as well as a description of how 
EPA concerns regarding the proposed MOU were met.\2\
---------------------------------------------------------------------------

    \2\ The MOU between EPA and the NDDA, while not a delegation 
requirement, is intended to ensure regular communication between the 
two Agencies to ensure effective enforcement of the RM program by 
NDDA. The purposes of the MOU are to promote the identification and 
coordination of the section 112(r)(7) RM Program compliance and 
enforcement activities pertaining to agricultural bulk anhydrous 
ammonia facilities, to describe both parties' mutual understanding 
of compliance responsibilities, and to avoid replication and 
duplication of efforts while discharging the parties' respective 
duties. By November 30 of each year, North Dakota plans to provide 
EPA Region 8 with an end of year report that summarizes North 
Dakota's RM Program regulatory activities for the previous federal 
fiscal year. The report is expected to include information on the 
number of RM Program inspections conducted, number and types of 
violations identified, notable cases, description of the enforcement 
actions taken, number and description of RM Program compliance 
assistance activities, and other information related to RM Program 
enforcement. The MOU ensures ongoing communication regarding NDDA 
enforcement of the RM Program by NDDA providing EPA with an 
enforcement targeting scheme at the beginning of each federal fiscal 
year. The targeting scheme is expected to identify facilities 
scheduled for initial or follow-up inspection for the upcoming 
federal fiscal year and priority areas for regulation. NDDA will 
also notify EPA of accidents at regulated facilities that cause 
environmental damage, personal injury, property damage, or involve 
releases of 100 lbs or more. EPA and NDDA plan to share facility and 
chemical data base information, progress reports, and results of 
inspections to the extent that the information is not confidential.

---------------------------------------------------------------------------

[[Page 66324]]

    On April 1, 2013, North Dakota incorporated by reference into its 
regulations the provisions of 40 CFR part 68 \3\ as published on June 
30, 2011, with only one adjustment. See NDAC 7-12-03. This adjustment 
clarifies North Dakota is incorporating 40 CFR part 68 only insofar as 
it applies to agricultural anhydrous ammonia facilities. NDAC 7-12-03-
02.
---------------------------------------------------------------------------

    \3\ Consistent with 40 CFR 63.95(b), North Dakota did not 
incorporate the following sections into its regulations: 40 CFR 
68.120 (Petition Process), 40 CFR 68.210 (Availability of 
Information to the Public), and 40 CFR 68.215 (Permit Content and 
Air Permitting Authority or Designated Agency Requirements).
---------------------------------------------------------------------------

    EPA reviewed the additional information provided by North Dakota 
and requested additional information on proposed enforcement tracking. 
On April 18, 2013, NDDA provided EPA with a ``Revised Summary of North 
Dakota's Anhydrous Ammonia Regulatory Authority and General Components 
of a Proposed RMP Enforcement Program.'' On June 3, 2013, EPA Region 8 
determined that the delegation package was complete, and sent NDDA a 
letter confirming the determination.

III. EPA's Analysis of NDDA's Submittal

    Based on NDDA's partial delegation request, and applicable laws and 
regulations, EPA is proposing to approve the request as it appears NDDA 
has satisfied the relevant criteria of 40 CFR 63.91 and 63.95. EPA is 
treating NDDA's request as a request for straight partial delegation 
under 40 CFR 63.91(a)(1), (4) and (f), since North Dakota has 
incorporated by reference the RM Program in 40 CFR part 68 as described 
above.
    In accordance with 40 CFR 63.91(d)(3)(i), the North Dakota 
Assistant Attorney General submitted a written finding of NDDA's 
authority to implement and enforce the RM Program for agricultural 
anhydrous ammonia facilities.\4\ The Assistant Attorney General 
supplemented this finding to clarify that the NDDA does not have the 
criminal enforcement authority specified in section 70.11(a)(3)(ii) and 
(iii). As a result, North Dakota has not requested delegation of that 
criminal enforcement authority. With respect to the remaining 
requirements, North Dakota demonstrated the appropriate authority for 
section 70.11(a)(1) (ability to enjoin activity in violation of a 
permit that is presenting an imminent and substantial endangerment to 
the public health or welfare, or the environment), section 70.11(a)(2) 
(ability to enjoin violation of any program requirement), and section 
70.11(a)(3)(i) (ability to assess civil penalties up to $10,000 per day 
of violation).
---------------------------------------------------------------------------

    \4\ North Dakota originally relied on authority under NDCC 19-
20.2 for its adoption of the RM Program. NDCC 19-20.2 defined 
anhydrous ammonia storage facility as a bulk anhydrous ammonia 
storage facility with a capacity exceeding six thousand gallons. 40 
CFR 68.130 sets a threshold quantity for accidental release 
prevention at ten thousand pounds, or approximately one thousand 
nine hundred forty gallons. EPA discussed this gap in potential 
coverage with the State. The Attorney General's supplemental finding 
identified NDDA's general rulemaking authority along with the grant 
of authority under NDCC 19-20.3 as appropriate authority for 
adoption of the RM Program for agricultural anhydrous ammonia 
facilities with the appropriate threshold.
---------------------------------------------------------------------------

    The Assistant Attorney General also determined that NDDA had 
adequate authority to assure compliance with the RM Program for sources 
subject to these provisions. As explained above, NDCC 19-20.3 provides 
NDDA with authority to request information from and conduct inspections 
of such sources, as required by 40 CFR 63.91(d)(3)(i)(B) and (C).
    In accordance with 40 CFR 63.91(d)(3)(ii)-(v), NDDA submitted 
copies of the appropriate provisions of State statutes and regulations, 
documentation of adequate resources to implement and enforce the RM 
Program, and a schedule and plan to assure expeditious implementation 
and compliance by all sources, including a description of the State's 
compliance tracking and enforcement program (including inspection 
strategies). With respect to adequate resources and expeditious 
implementation, the NDDA currently has three employees devoted almost 
entirely to program implementation. With respect to expeditious 
compliance, NDDA already conducts inspections of anhydrous ammonia 
facilities once every five years to ensure compliance with NDCC 19-
20.2. There are currently 368 licensed facilities in the State, which 
requires NDDA to inspect approximately 70 facilities each year. NDDA 
will conduct RM Program compliance inspections and audits while 
conducting inspections for the engineering requirements found in NDCC 
19-20.2.\5\
---------------------------------------------------------------------------

    \5\ As discussed above, NDCC 19-20.3 gives the Agriculture 
Commissioner the authority to conduct inspections and access records 
necessary to verify compliance with the RM Program. NDCC 19-20.3 
also provides the legal authority for the NDDA to access, review and 
audit RMPs from regulated persons.
---------------------------------------------------------------------------

    In accordance with 40 CFR 63.95(b)(1), NDDA submitted information 
which demonstrates that it has the authority and resources to implement 
and enforce regulations that are no less stringent than the regulations 
in 40 CFR part 68, subparts A through G and section 68.200, and a 
requirement that subject sources submit a RMP that reports at least the 
same information in the same format to the same location as required 
under 40 CFR part 68, subpart G. As required by 40 CFR 63.95(b)(3)-(4), 
NDDA submitted documentation that it has adequate procedures for 
reviewing RMPs, providing technical assistance to stationary sources, 
including small businesses, and auditing RMPs in a manner consistent 
with 40 CFR 68.220. In particular, NDDA will review and audit RMPs as 
part of the inspections described above. The NDDA also anticipates 
providing technical assistance, including outreach and education, by 
conducting annual safety and compliance meetings with regulated persons 
as a tool to increase awareness of the RM Program requirements and 
improving compliance.
    If this proposal is finalized, NDDA will have primary authority and 
responsibility to implement and enforce (with the exception of criminal 
enforcement) the RM Program for agricultural anhydrous ammonia 
facilities. However, nothing shall preclude, limit, or interfere with 
the authority of EPA to exercise its outreach and compliance 
assistance, enforcement, investigatory, and information gathering 
authorities concerning this part of the Act. If EPA determines that 
NDDA's procedures for enforcing or implementing the 40 CFR part 63 or 
40 CFR part 68 requirements are inadequate, or are not being 
effectively carried out, this delegation may be revoked in whole or in 
part in accordance with the procedures set forth in 40 CFR 63.96(b).
    In addition, this delegation to NDDA will not extend to sources or 
activities located in Indian country, as defined in 18 U.S.C. 1151. 
Under this definition,

[[Page 66325]]

EPA treats as reservations, trust lands validly set aside for the use 
of a Tribe even if the trust lands have not been formally designated as 
a reservation. Consistent with previous federal program approvals or 
delegations, EPA will continue to implement the RM Program in Indian 
country because NDDA has not demonstrated authority over sources and 
activities located within the exterior boundaries of Indian 
reservations and other areas in Indian country.

IV. Proposed Action

    EPA proposes approving NDDA's request for partial delegation of 
authority to implement and enforce (with the exception of criminal 
enforcement) the RM Program for agricultural anhydrous ammonia 
facilities. NDDA has incorporated by reference Federal requirements set 
forth in 40 CFR part 68 in NDAC 7-12-03 and regulates agricultural 
anhydrous ammonia facilities through this authority as well as its 
authority in NDCC 19-20.2 and 19-20.3. This partial delegation will 
extend to agricultural anhydrous ammonia facilities which are sources 
subject to the accidental release prevention regulations in 40 CFR part 
68, with the exception of sources in Indian country.

V. Statutory and Executive Order Reviews

    Under the CAA, the Regional Administrator is authorized to approve 
program delegation when that program complies with the provisions of 
the Clean Air Act and applicable federal regulations (42 U.S.C. 
7410(k), 40 CFR 52.02(a)). Thus, in reviewing delegation requests, 
EPA's role is to review and approve state programs provided that they 
meet the criteria of the CAA. Accordingly, this proposed action merely 
approves a state program and does not impose additional requirements 
beyond those imposed by state law. For that reason, this proposed 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the State program is not approved to regulate in Indian country 
located in North Dakota, and EPA notes that it will not impose 
substantial direct costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 63

    Environmental protection, Risk management program, Air pollution 
control, Hazardous substances, Chemicals, Intergovernmental relations.

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

    Dated: October 22, 2013.
Shaun L. McGrath,
Regional Administrator, U.S. EPA Region 8.
[FR Doc. 2013-26356 Filed 11-4-13; 8:45 am]
BILLING CODE 6560-50-P