[Federal Register Volume 86, Number 35 (Wednesday, February 24, 2021)]
[Rules and Regulations]
[Pages 11131-11133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03267]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-R08-OAR-2020-0722; FRL-10019-27-Region 8]


Full Approval of Revised Clean Air Act Operating Permit Program; 
North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: With this direct final rule, the Environmental Protection 
Agency (EPA or the ``Agency'') is promulgating full approval of the 
revised and recodified North Dakota operating permit program for 
stationary sources subject to title V of the Clean Air Act (CAA or the 
``Act''). On August 6, 2018, North Dakota submitted a request for 
approval of its revisions to the North Dakota operating permit program 
(the ``title V program'') for stationary sources subject to title V of 
the CAA and recodification of the State's title V program under a new 
title of the North Dakota Administrative Code (NDAC). The EPA 
determined that the revised and recodified program substantially met 
the requirements of title V of the Act and Code of Federal Regulations 
(CFR) but was not fully approvable because the State law provisions for 
judicial review were not consistent with program requirements found in 
the CFR. Thus, EPA issued an interim approval of North Dakota's title V 
program. North Dakota has made the changes required for full program 
approval. Accordingly, the EPA is taking this action in accordance with 
the CAA and CFR title V program

[[Page 11132]]

approval requirements. This is a direct final action because the action 
is deemed noncontroversial and we do not expect adverse comments.

DATES: This direct final rule is effective on April 26, 2021 without 
further notice, unless the EPA receives adverse written comments on or 
before March 26, 2021. If adverse comments are received, the 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: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2020-0722. 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 
electronically in www.regulations.gov. To reduce the risk of COVID-19 
transmission, for this action we do not plan to offer hard copy review 
of the docket. Please email or call the person listed in the FOR 
FURTHER INFORMATION CONTACT section if you need to make alternative 
arrangements for access to the docket.

FOR FURTHER INFORMATION CONTACT: Gregory Lohrke, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6396, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Why is EPA using a direct final rule?

    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in the Proposed Rules section of today's 
Federal Register publication, the EPA is publishing a separate document 
that will serve as the proposal to fully approve North Dakota's title V 
program revisions if relevant adverse comments are filed.
    If the EPA receives adverse comments, the EPA will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. The 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.

II. Background

    Title V of the CAA as amended (42 U.S.C. 7401 et seq.) directs 
states to develop, and submit to the EPA, programs for issuing 
operating permits to all major stationary sources and to certain other 
sources.\1\ As required under title V, the EPA has promulgated 
regulations establishing the minimum elements of an approvable state 
title V program and defined the corresponding procedures by which the 
EPA will approve, oversee and, when necessary, withdraw approval of a 
state title V program.\2\ After review of the state's initial program 
submittal, the EPA may alternatively grant interim approval of a 
program which substantially meets the requirements of title V and part 
70 but which is not fully approvable. In the case of such an interim 
approval, the EPA will specify the changes that must be made before the 
program can receive full approval and the state shall resubmit the 
modified program before expiration of the interim approval.\3\
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    \1\ 42 U.S.C. 7661a.
    \2\ 40 CFR part 70.
    \3\ 42 U.S.C. 7661a(g); 40 CFR 70.4(e), (f), (i).
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    North Dakota first received interim approval of its title V program 
effective August 7, 1995 (60 FR 35335). North Dakota's program later 
received final, full approval effective on August 16, 1999 (64 FR 
32433). On August 6, 2018, the State of North Dakota submitted to the 
EPA a formal request for approval of title V program recodifications 
and revisions made to facilitate the transfer of permitting authority 
from the North Dakota Department of Health (NDDH) to a newly 
established North Dakota Department of Environmental Quality 
(NDDEQ).\4\ During North Dakota's review of the NDAC for recodification 
and submittal to the EPA for approval, North Dakota found limitations 
in state law provisions for judicial review in state courts. 
Accordingly, the Attorney General's Opinion that accompanied North 
Dakota's submission explained those limitations and committed to submit 
an addendum to the Opinion when the State adopted rules consistent with 
the full judicial review requirements in 40 CFR 70.4(b)(3)(x)-(xii).\5\ 
After review, the EPA found that the recodified and revised program 
substantially met the minimum requirements of the CAA and part 70, but 
that the EPA could not fully approve the program transfer until the 
State revised its rules to provide the full legal authority necessary 
for judicial review.\6\ Accordingly, the EPA promulgated an interim 
approval of North Dakota's title V program transfer effective March 15, 
2019. EPA stated that interim approval would expire on March 19, 2020, 
and required the State to submit changes to the program addressing the 
judicial review deficiencies no later than six months prior to the 
expiration of the interim approval.\7\ A subsequent action delayed the 
interim approval's effective date to April 30, 2019, which then delayed 
the expiration date to May 1, 2020.\8\ Accordingly, North Dakota's 
program revisions addressing the judicial review deficiencies were due 
no later than November 1, 2019.
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    \4\ 83 FR 53532 (Oct. 30, 2018).
    \5\ Id. at 54535.
    \6\ 84 FR 3108, 3109 (Feb. 11, 2019).
    \7\ Id.
    \8\ 84 FR 8260; see also 40 CFR part 70, appendix A.
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III. State Submittal

    In our action granting interim approval of North Dakota's title V 
program transfer, the EPA concluded that North Dakota's title V program 
transfer was not fully approvable due to a lack of full authority 
required for judicial review.\9\ The EPA explained that interim 
approval would allow North Dakota to make minor revisions to NDAC 
section 33.1-15-14-06.8 and update the State Attorney General's Opinion 
to reflect revised legal authorities.\10\ The EPA received an Addendum, 
dated December 12, 2018, to the August 16, 2018 State Attorney 
General's Opinion Operating Permits Program (August 16, 2018 Opinion), 
which states that the regulations regarding petitions for judicial 
review identified in the August 16, 2018 Opinion ``have been lawfully 
adopted and shall be fully effective by the time the program is 
approved.'' \11\ The State of North Dakota also submitted clean and 
redlined copies of the revised NDAC section 33.1-15-14-06.8 with the 
December 12, 2018 Addendum to the Opinion, which are available in the 
docket for this action. The revisions to NDAC section 33.1-15-14-06.8 
became effective on January 1, 2019.\12\
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    \9\ 83 FR 54536.
    \10\ Id.
    \11\ Margaret I. Olson, Assistant Attorney General, Addendum to 
August 16, 2018 Attorney General's Opinion Operating Permits 
Program, December 12, 2018.
    \12\ North Dakota Administrative Code, Supplement 371, January 
2019, https://www.legis.nd.gov/agency-rules/administrative-rules-supplement (last visited November 30, 2020).
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IV. Final Action

    The December 12, 2018 Addendum to North Dakota's Attorney General's 
Opinion, together with the August 16,

[[Page 11133]]

2018 Opinion, affirm that the State revised the title V program 
provisions for judicial review as codified in NDAC section 33.1-15-14-
6.8, effective as amended January 1, 2019. Therefore, North Dakota 
timely submitted revisions to address the deficiencies identified in 
our interim approval action within six months prior to the interim 
approval's expiration. Accordingly, the EPA finds that the North Dakota 
title V program fulfills all criteria for full final approval of the 
transfer. The EPA is now acting to fully approve the North Dakota title 
V program under 40 CFR part 70 and CAA section 502.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a state 
title V program submittal that complies with the provisions of the Act 
and applicable federal regulations. 42 U.S.C. 7661a(d); 40 CFR 70.1(c), 
70.4(i). Thus, in reviewing title V program submittals, the EPA's role 
is to approve state choices, provided they meet the criteria of the CAA 
and the criteria, standards and procedures defined in 40 CFR part 70. 
Accordingly, this action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because Operating Permits Program approvals are 
exempted under Executive Order 12866;
     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 (Public Law 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 action is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    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 action 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 April 26, 2021. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Air pollution control, Intergovernmental 
relations, Title V.

    Dated: February 11, 2021.
Debra Thomas,
Acting Regional Administrator, Region 8.
    40 CFR part 70 is amended as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

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 revising paragraph (d) to read as follows:

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

* * * * *

North Dakota

* * * * *
    (d) The State of North Dakota submitted on August 6, 2018, 
operating permit program revisions and a request to transfer 
authority to implement and enforce the operating permit program from 
the North Dakota Department of Health to the North Dakota Department 
of Environmental Quality. The recodified North Dakota title V 
operating permits program is codified in N.D. Admin. Code sections 
33.1-15-14-06, 33.1-15-23-04, and 33.1-15-21. North Dakota also 
submitted on August 16, 2018 the, ``Attorney General's Opinion 
Operating Permits Program,'' which was supplemented on December 12, 
2018, with an ``Addendum to August 16, 2018 Attorney General's 
Opinion Operating Permits Program,'' stating that the laws of the 
State provide adequate legal authority to carry out all aspects of 
the program. North Dakota also submitted revisions to state law 
effective January 1, 2019; full approval effective on April 26, 
2021.
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[FR Doc. 2021-03267 Filed 2-23-21; 8:45 am]
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