[Federal Register Volume 84, Number 45 (Thursday, March 7, 2019)]
[Rules and Regulations]
[Pages 8260-8262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03869]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52, 60, 61, 63, 70, 271, and 281

[EPA-R08-OAR-2018-0616 EPA-R08-OAR-2018-0299 EPA-R08-RCRA-2018-0084 and 
EPA-R08-UST-2018-0728; FRL9990-24]


Approvals Concerning Revisions to North Dakota's Environmental 
Protection Programs; Delay of Effective Dates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; delay of effective dates.

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SUMMARY: Due to unforeseen delays resulting from the lapse in 
appropriations for the Environmental Protection Agency (EPA), the EPA's 
final approvals concerning revisions to North Dakota's environmental 
protection programs that have the effect of transferring authority from 
the North Dakota Department of Health (NDDH) to the newly-created North 
Dakota Department of Environmental Quality (NDDEQ) are delayed until 
April 30, 2019. This action delays the effective dates of the four 
relevant rules, published in the Federal Register between December 19, 
2018 and February 11, 2019.

DATES: The rule is effective April 30, 2019. The effective dates of the 
rules published at 83 FR 65101 (December 19, 2018), 83 FR 65104 
(December 19, 2018), 84 FR 1610 (February 5, 2019), and 84 FR 3108 
(February 11, 2019), are delayed until April 30, 2019. See 
SUPPLEMENTARY INFORMATION for details.

FOR FURTHER INFORMATION CONTACT: Mai Denawa, Office of Regional 
Counsel, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-
1129; telephone number: 303-312-6514; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Due to unforeseen delays that the lapse in 
appropriations has caused, the effective dates for the rules listed in 
the table below are revised to April 30, 2019. These actions relate to 
the EPA's final approvals concerning revisions to North Dakota's 
environmental protection programs that have the effect of transferring 
authority to implement and enforce previously EPA-authorized/approved/
delegated/codified environmental protection programs from the North 
Dakota Department of Health (NDDH) to the newly-created North Dakota 
Department of Environmental Quality (NDDEQ). However, because EPA has 
not issued final approvals for all the relevant environmental programs 
to the NDDEQ, EPA is delaying the effective dates of the approvals that 
have been finalized to allow for the transfer of all the programs to be 
synchronized, allowing them to become effective without creating 
uncertainty in the State entity that has EPA approval to implement 
North Dakota's environmental programs.
    The North Dakota legislature enacted North Dakota Senate Bill 2327 
(S.L. 2017, ch. 199, Section 1) in 2017 to create the new NDDEQ. This 
law requires that the transfer of authority from NDDH to NDDEQ will 
only occur if the State has obtained all approvals from EPA to ensure 
that the State will continue to meet federal requirements for the 
respective environmental programs. For the programs described in the 
below table (as well as the underground injection control program under 
the Safe Drinking Water Act) that require notice and comment in the 
Federal Register as part of the approval process for the revision, the 
State is relying on the date that EPA signs the final notice as the 
required ``approval'' under S.L. 2017, ch. 1. 199, Section 1. Once EPA 
approves revisions to all relevant environmental programs, the State 
intends to take the necessary additional steps as specified in S.L. 
2017, ch. 199, Section 1, to ensure that the transfer in authority 
would be effective under State law. EPA sought to ensure that NDDEQ 
rules and the NDDEQ would become effective under State law prior to the 
effective date of EPA's approvals. Otherwise, EPA would in effect 
approve an agency that did not yet exist. Additionally, to prevent a 
gap in an EPA-approved program while the transfer occurs for the 
programs in the below table, our final notices noted that unless and 
until the NDDEQ rules and agency become fully effective under federal 
law, for purposes of federal law the EPA recognizes the State's program 
as currently approved under NDDH. See 84 FR 1610 (February 5, 2019); 84 
FR 3108 (February 11, 2019); 83 FR 65101 (December 19, 2018); 83 FR 
65104 (December 19, 2018). Based on this process and our subsequent 
conversations with the State, EPA had initially determined that our 
approval of the revised programs in the below table should become fully 
effective under federal law on March 15, 2019.
    However, the lapse in appropriations has caused unforeseen delays 
in completing issuance of the remaining necessary approvals. 
Specifically, the underground injection control (UIC) program under the 
SDWA is still pending final rule signature and review, though a 
proposed rule has been published and the comment period has closed. (83 
FR 62536, December 4, 2018). EPA is delaying the effective date of the 
approvals in the below table because the March 15 effective date is no 
longer feasible.

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                                                                                     Original      New effective
    Federal Register citation       CFR part affected             Title           effective date       date
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84 FR 1610, February 5, 2019 9...  Part 52............  Approval and                   3/15/2019       4/30/2019
                                                         Promulgation of
                                                         Implementation Plans;
                                                         North Dakota; Revisions
                                                         to Infrastructure
                                                         Requirements for All
                                                         National Ambient Air
                                                         Quality Standards;
                                                         Carbon Monoxide (CO);
                                                         Lead (Pb); Nitrogen
                                                         Dioxide (NO2); Ozone
                                                         (O3); Particle
                                                         Pollution (PM2.5,
                                                         PM10); Sulfur Dioxide
                                                         (SO2); Recodification.
84 FR 3108, February 11, 2019....  Parts 60, 61, 63,    Approval of                    3/15/2019       4/30/2019
                                    70.                  Recodification and
                                                         Revisions to State Air
                                                         Pollution Control
                                                         Rules; North Dakota;
                                                         Interim Approval of
                                                         Title V Program
                                                         Recodification and
                                                         Revisions; Approval of
                                                         Recodification and
                                                         Revisions to State
                                                         Programs and Delegation
                                                         of Authority To
                                                         Implement and Enforce
                                                         Clean Air Act Sections
                                                         111 and 112 Standards
                                                         and Requirements.

[[Page 8261]]

 
83 FR 65101, December 19, 2018...  Part 271...........  North Dakota: Final            3/15/2019       4/30/2019
                                                         Authorization of State
                                                         Hazardous Waste
                                                         Management Program
                                                         Revisions.
83 FR 65104, December 19, 2018...  Part 281...........  North Dakota: Final            3/15/2019       4/30/2019
                                                         Approval of State
                                                         Underground Storage
                                                         Tank Program Revisions.
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    The Agency's implementation of this action without opportunity for 
public comment is based on the good cause exception in 5 U.S.C. 
553(b)(B). Section 553(b)(B) of the Administrative Procedure Act 
provides that, when an agency for good cause finds ``that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest,'' an agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for making this rule final without prior proposal 
and opportunity for comment because notice and public procedure are 
impracticable and unnecessary. This rule will extend the effective date 
of the final EPA approvals to ensure that the timing of these approvals 
and DEQ's transfer comports with the above-described State and EPA 
requirements. Issuing this extension in final form is urgent because 
without it, the EPA approvals would go into effect well in advance of 
the time that the State transfer of authority occurs. This would create 
uncertainty about which entity would be implementing North Dakota's 
environmental programs during the period between March 15 and North 
Dakota's transfer of authority. The urgency arises because the lapse in 
appropriations caused delays that were outside EPA's control. Thus, 
prior notice and comment was impracticable.
    Further, notice and comment are unnecessary because the effect of 
this rule is inconsequential to the regulated communities' rights and 
responsibilities under the various programs covered by the approvals, 
as it does not significantly change the substantive obligations that 
regulated entities must comply with. Rather, this notice affects the 
timing of which entity--the NDDH or the NDDEQ--will implement North 
Dakota's environmental programs. As described in our notices, we found 
that the NDDEQ will have adequate resources to implement these 
programs. Thus, there should not be any consequences to the regulated 
community in terms of changed times to, for example, process permit 
applications.
    In addition, it is unnecessary to provide an additional opportunity 
for comment as the reasoning for setting an effective date on the basis 
of when the State transfer of authority would occur was fully described 
in the approval actions and did not receive any public comment. 
Although we are extending the effective date to April 30, 2019, the 
reasoning for setting an effective date in conjunction with the State 
transfer of authority continues to apply. The Agency therefore finds 
that there is good cause under 5 U.S.C. 553(b)(B) to forego prior 
notice and comment.
    This action is effective immediately upon publication under 5 
U.S.C. 553(d). Section 553(d) of the Administrative Procedure Act 
(``APA'') provides that final rules shall not become effective until 30 
days after publication in the Federal Register, ``except . . . as 
otherwise provided by the agency for good cause,'' among other 
exceptions. The purpose of this provision is to ``give affected parties 
a reasonable time to adjust their behavior before the final rule takes 
effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996); 
see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 
1977) (quoting legislative history). Thus, in determining whether good 
cause exists to waive the 30-day delay, an agency should ``balance the 
necessity for immediate implementation against principles of 
fundamental fairness which require that all affected persons be 
afforded a reasonable amount of time to prepare for the effective date 
of its ruling.'' Gavrilovic, 551 F.2d at 1105. There is a necessity for 
immediate implementation of this rule because as described above--both 
due to the State processes that are statutorily-prescribed, and the 
delays in completing EPA's approvals due to the lapse in 
appropriations--EPA's failure to amend the effective date would create 
uncertainty in the State entity that would implement the State's 
environmental programs on or after March 15. If the March 15 effective 
date was not amended, NDDEQ would become the EPA-approved entity to 
implement the programs described in the table above, yet NDDEQ would 
not yet exist. Further, as previously discussed, this action will 
affect the timing of which State entity will implement North Dakota's 
environmental programs. Accordingly, this final rule will not require 
affected persons to take action or change behavior to come into 
compliance within the next 30 days. Furthermore, EPA believes that 
making the rule effective upon publication will allow the EPA to 
recognize the authorized/approved/delegated/codified program under DEQ 
as applicable law without further delay. For these reasons, the EPA 
finds that good cause exists under section 553(d)(3) to make this rule 
effective immediately upon publication.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Greenhouse 
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 61

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, National emission standards for 
hazardous air pollutants, Delegation of authority.

40 CFR Part 70

    Environmental protection, Air pollution control, Intergovernmental 
relations, Operating permit program, State acid rain program, Title V.

    Dated: February 26, 2019.
Debra H. Thomas,
Acting Regional Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR Parts 
52, 61, and 70 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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


Sec.  52.1820  [Amended]

0
2. In Sec.  52.1820(c), remove ``3/15/2019'' everywhere it appears and 
add in its place ``4/30/2019''.

[[Page 8262]]

PART 61--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

0
3. The authority citation for part 61 continues to read as follows:

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


Sec.  61.04  [Amended]

0
4. In Sec.  61.04(c)(8), remove ``March 15, 2019'' and add in its place 
``April 30, 2019'' and remove ``December 17, 2018'' and add in its 
place ``February 26, 2019''.

PART 70--STATE OPERATING PERMIT PROGRAMS

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

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

Appendix A to Part 70 [Amended]

0
6. In appendix A to part 70, the entry for North Dakota paragraph (d), 
remove ``March 15, 2019'' and add in its place ``April 30, 2019'' and 
remove ``March 19, 2020'' and add in its place ``May 1, 2020''.

[FR Doc. 2019-03869 Filed 3-6-19; 8:45 am]
 BILLING CODE 6560-50-P