[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Rules and Regulations]
[Pages 79317-79319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31269]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-R08-OAR-2013-0330, FRL-9904-88-Region 8]


Approval of Request for Delegation of Authority for Prevention of 
Accidental Release, North Dakota Department of Agriculture

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve North Dakota Department of Agriculture's (NDDA's) 
request for partial delegation of the Risk Management Program (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'') in the state of North Dakota. EPA retains 
authority for the RM Program for all other regulated chemicals which 
may be present at these facilities and for the RM Program generally in 
North Dakota for all other facilities.

DATES: This final rule is effective January 29, 2014.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2013-0330. All documents in the docket are 
listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information (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 through www.regulations.gov or in hard 
copy at the Preparedness Program, Environmental Protection Agency 
(EPA), Region 8 (8EPR-ER), 1595 Wynkoop Street, Denver, Colorado 80202-
1129. The 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 
Coordinator, Emergency Response and Preparedness Program, U.S. 
Environmental Protection Agency (EPA), Region 8 (8EPR-ER), 1595 Wynkoop 
Street, Denver, Colorado 80202-1129, (303) 312-6235, 
[email protected].

SUPPLEMENTARY INFORMATION: 

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 NDCC mean North Dakota Century Code
    (viii) The initials NDAC mean North Dakota Administrative Code

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On June 20, 1996, the EPA promulgated the 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, 
June 20, 1996). 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 the 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

[[Page 79318]]

and the public to improve accident prevention and emergency response 
practices.
    Section 112(l) of the CAA and 40 CFR part 63, Subpart E authorize 
the 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. Under 40 CFR 63.95(b), the State's Part 68 
program shall contain the following elements, consistent with the 
procedures in section 63.91, 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 section CFR 
68.200;
     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;
     Procedures for reviewing RMPs and providing technical 
assistance to stationary sources including small businesses; and
     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. For additional details regarding these 
requirements, refer to our proposal notice cited above.
    The NDDA has a program in place for regulation of anhydrous ammonia 
facilities under authority of North Dakota Century Code (NDCC) 19-20.2 
and 19-20.3 and promulgated in North Dakota Administrative Code (NDAC) 
7-12-03-03, which addresses RM Program requirements and adopts 40 CFR 
Part 68 requirements by reference.
    NDCC 19-20.2 provides general authority for the NDDA to license and 
regulate anhydrous ammonia facilities with a capacity exceeding six 
thousand gallons, engineering requirements for tanks, valve fittings, 
and other equipment, and 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 the 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 the 
NDDA to issue cease and desist orders, revoke or suspend facility 
licenses, and issue civil penalties.
    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 RM 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 RM 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 RM Program requirements.
    The 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''). After a thorough review (as described in detail in our 
proposal notice) of North Dakota's partial delegation request, the 
pertinent statutes and regulations, and after appropriate public notice 
of the proposed delegation, Region 8 finds 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. As approved, North Dakota has 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. The EPA will retain the RM 
Program for all other regulated chemicals which may be present at these 
facilities. See 40 CFR 68.130. For additional information, please see 
the proposed rule, ``Approval of North Dakota Request for Partial 
Delegation of Prevention of Accidental Release, Clean Air Act Section 
112(r) Program'' EPA-R08-OAR-2013-0330, 78 FR 66321 (Nov. 5, 2013).

II. Response to Comments

    We received no comments on our proposed approval of NDDA's request 
for delegation.

III. Final Action

    The EPA is 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 as defined by NDAC 7-12-03-03. This delegation will extend 
to agricultural anhydrous ammonia facilities in North Dakota that are 
sources subject to the accidental release prevention regulations in 40 
CFR Part 68,\1\ with the exception of sources in Indian country as 
defined by 18 U.S.C. 1151.
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    \1\ EPA notes that under 40 CFR 68.125, ammonia used as an 
agricultural nutrient, when held by farmers, is exempt from all 
provisions of part 68.
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    If the EPA determines that NDDA's procedures for enforcing or 
implementing the 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 out in 40 CFR 
63.96(b). In instances where there is a conflict between a NDDA 
interpretation and a Federal interpretation of applicable regulations 
in 40 CFR part 68, the Federal interpretation must be applied if it is 
more stringent than that of the NDDA. The Administrator retains the 
specific authorities under 40 CFR 68.120 regarding the petition process 
for modifying the list of regulated substances identified in 40 CFR 
68.130.\2\ Although the NDDA has primary authority and responsibility 
to implement and enforce the chemical accident prevention provisions 
for agricultural anhydrous ammonia, nothing shall preclude, limit, or 
interfere with the authority of the EPA to exercise its enforcement, 
investigatory, and information gathering authorities concerning this 
part of the Act.
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    \2\ Accordingly, the NDDA rules do not incorporate by reference 
40 CFR 68.120.
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IV. 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 CAA and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR 
52.02(a)). Thus, in reviewing delegation requests, the EPA's role is to 
review and approve state programs provided that they meet the criteria 
of the CAA. Accordingly,

[[Page 79319]]

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 the 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 the EPA notes that it will not impose 
substantial direct costs on Tribal governments or preempt Tribal law.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 28, 2014. 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, pertaining to the approval of the NDDA's delegation of 
authority for the chemical accident prevention provisions (CAA section 
112), may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 63

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

    Dated: December 13, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.

    40 CFR part 63 is amended as follows:

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

0
2. Section 63.99 is amended by adding paragraph (a)(35) to read as 
follows:


Sec.  63.99  Delegated Federal authorities.

    (a) * * *
    (35) North Dakota. The North Dakota Department of Agriculture is 
delegated the authority to implement and enforce the provisions of 40 
CFR part 68 at 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 within North Dakota and that 
are subject to the requirements of 40 CFR part 68, in accordance with 
the final rule, dated December 30, 2013.
[FR Doc. 2013-31269 Filed 12-27-13; 8:45 am]
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