
[Federal Register: May 27, 2008 (Volume 73, Number 102)]
[Rules and Regulations]               
[Page 30308-30316]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my08-8]                         


[[Page 30308]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 60

[EPA-R08-OAR-2007-0617; FRL-8570-2]

 
Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan Revision for North Dakota; Revisions to the Air 
Pollution Control Rules and Alternative Monitoring Plan for Mandan 
Refinery; Delegation of Authority for New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation of authority.

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SUMMARY: EPA is taking direct final action approving revisions to the 
State Implementation Plan (SIP) as submitted by the Governor of North 
Dakota with a letter dated March 8, 2007. The revisions affect certain 
air pollution control rules regarding general provisions, open burning 
restrictions, permitting, and fugitive emissions. In addition, we are 
approving a revision to a chapter of the SIP regarding an alternative 
monitoring plan for the Tesoro Mandan Refinery. This action is being 
taken under section 110 of the Clean Air Act. EPA is also providing 
notice that on August 22, 2007, North Dakota was delegated authority to 
implement and enforce certain New Source Performance Standards as in 
effect on January 31, 2006.

DATES: This action is effective on July 28, 2008 without further 
notice, unless EPA receives adverse comment by June 26, 2008. 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. EPA-R08-
OAR-2007-0617, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: Platt.Amy@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT section if you are faxing 
comments).
     Mail: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. Such deliveries are only accepted Monday 
through Friday, 8 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-
2007-0617. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://
www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA, without 
going through http://www.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 the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm. 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 http://
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 http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
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 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Amy Platt, EPA Region 8, at (303) 312-
6449, or Platt.Amy@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
II. Background
III. Revisions in the March 8, 2007 Submittal That Are the Subject 
of This Document
IV. Delegation of Authority
V. Section 110(l)
VI. Final Action
VII. Statutory and Executive Order Review

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 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 
http://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.

[[Page 30309]]

    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. 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.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. 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 May 4, 
2006 to consider 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, 
NDDH adopted the revisions. The revisions to the Air Pollution Control 
Rules became effective on January 1, 2007 and the revision to the SIP 
chapter regarding an alternative monitoring plan for the Tesoro Mandan 
Refinery became effective on February 27, 2007. The North Dakota 
Governor submitted the SIP revisions to us with a letter dated March 8, 
2007.

III. Revisions in the March 8, 2007 Submittal That Are the Subject of 
This Document

    The revisions in the March 8, 2007 submittal to be addressed in 
this document pertain to certain portions of the North Dakota Air 
Pollution Control Rules regarding general provisions, open burning, 
permitting, and fugitive emissions. These revisions involve the 
following chapters of the North Dakota Administrative Code (N.D.A.C.): 
33-14-01 General Provisions; 33-15-04 Open Burning Restrictions; 33-15-
14 Designated Air Contaminant Sources, Permit to Construct, Minor 
Source Permit to Operate, Title V Permit to Operate (certain sections 
specific to permit to construct); and 33-15-17 Restriction of Fugitive 
Emissions. In addition, the March 8, 2007 submittal included a revision 
to SIP Chapter 8, Source Surveillance, to provide an alternative 
monitoring plan for the Tesoro Mandan Refinery.

A. Chapter 33-15-01, N.D.A.C., General Provisions

    Sections 33-15-01-04 and 33-15-01-05 were revised. In section 33-
15-01-04, the baseline date for the incorporation by reference of the 
Federal definition of ``volatile organic compounds,'' located at 40 CFR 
51.100(s), was updated to January 1, 2006. In section 33-15-01-05, a 
slight editorial change was made to the meaning of the abbreviation for 
PM10. These revisions were made to match Federal 
requirements and are approvable.

B. Chapter 33-15-04, N.D.A.C., Open Burning Restrictions

    Sections 33-15-04-01 and 33-15-04-02 were revised. Section 33-15-
04-01, Refuse Burning Restrictions, was revised to clarify that the 
burning of trade waste is not allowed. As defined in the General 
Provisions chapter (33-15-01-04, N.D.A.C.), trade waste means solid, 
liquid, or gaseous waste material resulting from construction or the 
conduct of any business, trade, or industry, or any demolition 
operation, including wood, wood containing preservatives, plastics, 
cartons, grease, oil, chemicals, and cinders.
    In section 33-15-04-02, Permissible Open Burning, a reference to 
the North Dakota Rural Fire Contingency Plan was removed since this 
document no longer exists. In addition, changes were made to limit 
approval of open burning to abate a fire hazard to the NDDH or its 
designee, as well as to require State and Federal agencies that conduct 
prescribed burning to submit an annual report upon request by NDDH. 
Finally, a notification requirement was replaced by a requirement that 
prohibits open burning when a burning ban is declared by State or local 
officials.
    These changes clarified existing rules, eliminated out-of-date 
references, and added reporting requirements for State and Federal 
prescribed burning. These revisions are approvable.

C. 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 Permit To Construct)

    In the Permit to Construct section, 33-15-14-02, subdivision 33-15-
14-02.13.c was revised. These revisions relate to certain sources that 
will now be exempt from requirements for a permit to construct. 
Specifically, an exemption was added for any internal combustion 
engine, or multiple engines at the same facility, with a total combined 
actual emission rate of 5 tons per year or less of any air contaminant 
for which an ambient air quality standard has been promulgated in 
section 33-15-02-04. Given that this revision reduces the stringency of 
the rule, EPA requested a demonstration that the revision will not 
interfere with attainment and maintenance of the National Ambient Air 
Quality Standards (NAAQS), Prevention of Significant Deterioration of 
Air Quality Increments (PSD Increments), or any other requirement of 
the Clean Air Act.
    In a July 7, 2006 letter from Terry O'Clair, NDDH, to Richard Long, 
EPA, NDDH provided results from a SCREEN3 \1\ modeling run which shows 
that a typical internal combustion engine emitting 5 tons a year of 
nitrogen dioxide (NO2) will not violate the NAAQS or PSD increments. 
Based on AP-42 emission factors for this type of engine, NO2 has the 
larger emission rate and would be the pollutant of concern, while CO 
and PM emission rates are much lower for such engines and would not be 
expected to threaten the NAAQS or PSD increments. As a result, EPA is 
satisfied that this revision will not adversely impact the NAAQS or PSD 
increments. Therefore, this revision is approvable.
---------------------------------------------------------------------------

    \1\ SCREEN3 is a single source Gaussian plume screening model 
which provides, among other things, maximum ground-level 
concentrations for point, area, flare, and volume sources.
---------------------------------------------------------------------------

    In addition, subdivision 33-15-14-02.13.o was revised to remove a 
reference to subdivision n of subsection 1 of section 33-15-14-06. 
Section 33-15-14-06, subsection 1, contains the State's definitions for 
the Title V operating permits program. The previous reference to 
subdivision n was to the definition of ``major source,'' and the 
purpose of the reference was to define oil and gas production 
facilities that either were or were not major sources. Now the 
definition of ``major

[[Page 30310]]

source'' is found at subdivision o. Rather than include a reference to 
a new subdivision letter that might change again, the State changed the 
reference to be at the more general subsection level. This was purely a 
housekeeping change and is approvable.

D. Chapter 33-15-17, N.D.A.C., Restriction of Fugitive Emissions

    A provision was added to section 33-15-17-02 to restrict fugitive 
particulate emissions that would have an adverse impact on visibility 
on any Class I Federal area. The NDDH made this revision to help 
prevent degradation of visibility in Theodore Roosevelt National Park 
and Lostwood Wilderness Area due to fugitive emissions. This revision 
is approvable.

E. SIP Chapter 8, ``Source Surveillance,'' Section 8.3.1, ``Continuous 
Opacity Monitoring for Fluid Bed Catalytic Cracking Units: Tesoro 
Refining and Marketing Co., Mandan Refinery''

    The Tesoro Refining and Marketing Company (Tesoro) currently 
operates a fluidized bed catalytic cracking unit (FCCU) at the Mandan 
Refinery. The refinery was constructed in the 1950s and is required to 
continuously monitor the opacity of emissions from the FCCU according 
to 40 CFR Part 51, Appendix P, and North Dakota SIP Chapter 8, Source 
Surveillance. In May 1977, the NDDH issued an order requiring the 
installation and operation of continuous opacity monitoring (COM) 
equipment for emissions from the FCCU, and the opacity has been 
continuously monitored since the compliance date of September 30, 1978.
    In 2001, Tesoro entered into a Consent Decree with EPA to settle 
allegations of noncompliance under the Prevention of Significant 
Deterioration Program. As part of this settlement, Tesoro was required 
to control SO2 emissions from the FCCU. Tesoro installed a 
wet scrubber and wet electrostatic precipitator (ESP) to comply with 
the terms of the Consent Decree. The large amount of moisture from the 
control system has made monitoring of the opacity of emissions using 
COM equipment infeasible. Specifically, water droplets contained in the 
flue gas could potentially result in the monitor overstating the true 
opacity. Therefore, Tesoro requested alternative monitoring procedures 
and requirements in accordance with 40 CFR Part 51, Appendix P, Section 
6.0. The NDDH and EPA agreed with Tesoro that such alternative 
monitoring procedures and requirements were warranted given that the 
excess moisture in the stack from the wet scrubber interferes with the 
COM and makes the COM data inaccurate.
    As a result, NDDH revised SIP Chapter 8, ``Source Surveillance,'' 
Section 8.3, ``Continuous Emission Monitoring Requirements for Existing 
Stationary Sources, including amendments to Permits to Operate and 
Department Order.'' The revision provided for a new Section 8.3.1, 
``Continuous Opacity Monitoring for Fluid Bed Catalytic Cracking Units: 
Tesoro Refining and Marketing Co., Mandan Refinery.'' This new section 
provides alternative monitoring procedures and requirements for the 
Tesoro Mandan refinery. Tesoro has demonstrated through Method 9 
measurements that the FCCU will easily comply with the visible 
emissions limit of 40% opacity when the scrubber flow rate is at least 
2511 gallons per minute (gpm). Therefore, the alternative monitoring 
plan requires that liquid flow through the wet scrubber at 2511 gpm, or 
more, on an hourly average basis. If the flow rate is less than 2511 
gpm, Tesoro must conduct a Method 9 test each day until the required 
flow rate is achieved.
    In addition, Section 8.3.1 contains, among other things, the 
following requirements:
    1. Tesoro must monitor the liquid flow rate through the wet gas 
scrubber on a continuous basis.
    2. Tesoro must keep records of the liquid flow rate on a continuous 
basis, and keep such records for at least five years.
    3. Tesoro must submit semi-annual deviations reports for the FCCU, 
listing any time period monitoring is not conducted as outlined in 
Section 8.3.1 and any time monitoring indicates the required flow rate 
is not attained. Tesoro must also submit an annual certification 
indicating compliance with the visible emissions limit.
    EPA interprets these provisions such that a failure to maintain a 
liquid flow rate through the wet scrubber of at least 2511 gpm, one-
hour average, is a violation of the SIP.
    This alternative monitoring plan was finalized between Tesoro and 
NDDH on February 27, 2007, and approved by the director of EPA Region 
8's Technical Enforcement Program in an August 24, 2007 letter from 
Cynthia Reynolds (on behalf of Martin Hestmark) to Ron W. Day, Tesoro 
Refining and Marketing Company. EPA is satisfied that this alternative 
monitoring plan will ensure Tesoro complies with the requirements of 40 
CFR 51.214 and 40 CFR Part 51, Appendix P, to continuously monitor 
opacity emissions and will be adequate to ensure Tesoro complies with 
the SIP opacity limits that apply to the FCCU at the Mandan Refinery. 
Accordingly, this approval ratifies the Region 8 Technical Enforcement 
Program's approval of the alternative monitoring procedures and 
requirements reflected in new Section 8.3.1 of the North Dakota SIP.

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 general 
provisions, open burning restrictions, and fugitive emissions 
provisions are consistent with Federal requirements, clarifying in 
nature, and will not interfere with requirements of the Act related to 
administrative or procedural provisions. Although the revision to the 
permitting provisions reduces the stringency of the rule, the State has 
adequately demonstrated through modeling that it will not adversely 
impact the NAAQS or PSD Increments. The revisions to SIP Chapter 8, 
regarding the alternative monitoring plan for Tesoro's Mandan refinery, 
adequately detail monitoring parameters, frequency of monitoring, wet 
gas scrubber flow rate requirements, recordkeeping, and reporting 
requirements to ensure that the refinery can comply with requirements 
to continuously monitor opacity emissions and will be adequate to 
ensure Tesoro complies with the SIP opacity limits that apply to the 
FCCU at the Mandan Refinery. Therefore, these revisions do not 
interfere with attainment or maintenance of the NAAQS or other 
applicable requirements of the Act.

V. Delegation of Authority

    With a July 17, 2007 letter, the Governor of North Dakota requested 
delegation of authority for revisions to the New Source Performance 
Standards (NSPS), promulgated in Chapter 33-15-12, N.D.A.C. On August 
22, 2007, delegation was given with the following letter:


Ref: 8P-AR

Terry O'Clair, Director, Division of Air Quality, Environmental 
Health Section, North Dakota Department of Health, 918 E. Divide 
Avenue, Bismarck, ND 58501-1947

Re: Delegation of Clean Air Act New Source Performance Standards


[[Page 30311]]


    Dear Mr. O'Clair: With Governor Hoeven's July 17, 2007 letter 
and your July 18, 2007 letter, the State of North Dakota submitted 
revisions to its Air Pollution Control Rules and requested, among 
other things, direct delegation to implement and enforce the Federal 
New Source Performance Standards (NSPS). Specifically, North Dakota 
Administrative Code Chapter 33-15-12, Standards of Performance of 
New Stationary Sources, was revised to update the citation for the 
incorporated Federal NSPS in 40 CFR Part 60 as those in effect on 
January 31, 2006, with the exception of subparts Eb, L, M, N, Na, P, 
Q, R, S, and BB, which have not been adopted by the State.
    Subsequent to States adopting NSPS regulations, EPA delegates 
the authority for the implementation and enforcement of those NSPS, 
so long as the States' regulations are equivalent to the Federal 
regulations. EPA reviewed the pertinent statutes and regulations of 
the State of North Dakota and determined that they provide an 
adequate and effective procedure for the implementation and 
enforcement of the NSPS by the State. Therefore, pursuant to Section 
111(c) of the Clean Air Act (Act), as amended, and 40 CFR Part 60, 
EPA hereby delegates its authority for the implementation and 
enforcement of the NSPS to the State of North Dakota as follows:
    (A) Responsibility for all sources located, or to be located, in 
the State of North Dakota subject to the standards of performance 
for new stationary sources promulgated in 40 CFR Part 60. The 
categories of new stationary sources covered by this delegation are 
all NSPS subparts in 40 CFR Part 60, as in effect on January 31, 
2006, with the exception of subparts Eb, L, M, N, Na, P, Q, R, S, 
and BB, which have not been adopted by the State. Note this 
delegation does not include the emission guidelines in subparts Cb, 
Cc, Cd, Ce, BBBB, DDDD, and HHHH. These subparts require state 
plans, which are approved under a separate process pursuant to 
Section 111(d) of the Act.
    (B) Not all authorities of NSPS can be delegated to States under 
Section 111(c) of the Act, as amended. The EPA Administrator retains 
authority to implement those sections of the NSPS that require: (1) 
Approving equivalency determinations and alternative test methods, 
(2) decision-making to ensure national consistency, and (3) EPA 
rulemaking in order to implement. Enclosed with this letter is a 
list of examples of sections in 40 CFR Part 60 related to the NSPS 
being delegated in this letter that cannot be delegated to the State 
of North Dakota. Please note that the enclosed list has been updated 
since our July 27, 2005 delegation of authority to implement and 
enforce the NSPS to the State of North Dakota.
    (C) The North Dakota Department of Health (NDDH) and EPA will 
continue a system of communication sufficient to guarantee that each 
office is always kept informed and current regarding compliance 
status of the subject sources and interpretation of the regulations.
    (D) Enforcement of the NSPS in the State will be the primary 
responsibility of the NDDH. If the NDDH determines that such 
enforcement is not feasible and so notifies EPA, or where the NDDH 
acts in a manner inconsistent with the terms of this delegation, EPA 
may exercise its concurrent enforcement authority pursuant to 
section 113 of the Act, as amended, with respect to sources within 
the State of North Dakota subject to NSPS.
    (E) The State of North Dakota will at no time grant a variance 
or waiver from compliance with NSPS regulations. Should NDDH grant 
such a variance or waiver, EPA will consider the source receiving 
such relief to be in violation of the applicable Federal regulation 
and initiate enforcement action against the source pursuant to 
section 113 of the Act. The granting of such relief by the NDDH 
shall also constitute grounds for revocation of the delegation by 
EPA.
    (F) If at any time there is a conflict between a State 
regulation and a Federal regulation (40 CFR Part 60), the Federal 
regulation must be applied if it is more stringent than that of the 
State. If the State does not have the authority to enforce the more 
stringent Federal regulation, this portion of the delegation may be 
revoked.
    (G) If the Regional Administrator determines that a State 
procedure for enforcing or implementing the NSPS is inadequate, or 
is not being effectively carried out, this delegation may be revoked 
in whole or part. Any such revocation shall be effective as of the 
date specified in a Notice of Revocation to the NDDH.
    (H) Acceptance of this delegation of presently promulgated NSPS 
does not commit the State of North Dakota to accept delegation of 
future standards and requirements. A new request for delegation will 
be required for any standards not included in the State's July 17, 
2007 letter.
    (I) Upon approval of the Regional Administrator of EPA Region 8, 
the Director of NDDH may sub-delegate his authority to implement and 
enforce the NSPS to local air pollution control authorities in the 
State when such authorities have demonstrated that they have 
equivalent or more stringent programs in force.
    (J) The State of North Dakota must require reporting of all 
excess emissions from any NSPS source in accordance with 40 CFR Part 
60.7(c).
    (K) Performance tests shall be scheduled and conducted in 
accordance with the procedures set forth in 40 CFR Part 60 unless 
alternate methods or procedures are approved by the EPA 
Administrator. Although the Administrator retains the exclusive 
right to approve equivalent and alternate test methods as specified 
in 40 CFR Part 60.8(b)(2) and (3), the State may approve minor 
changes in methodology provided these changes are reported to EPA 
Region 8. The Administrator also retains the right to change the 
opacity standard as specified in 40 CFR Part 60.11(e).
    (L) Determinations of applicability, such as those specified in 
40 CFR Part 60.5 and review of plans, as provided for in 40 CFR Part 
60.6, shall be consistent with those determinations already made and 
reviews conducted by the EPA.
    (M) Alternatives to continuous monitoring procedures or 
reporting requirements, as outlined in 40 CFR Part 60.13(i), may be 
approved by the State only if the specific NSPS grants that 
authority. Otherwise, EPA retains the authority to review and 
approve such alternatives.
    (N) If a source proposes to modify its operation or facility 
which may cause the source to be subject to NSPS requirements, the 
State shall notify EPA Region 8 and obtain a determination on the 
applicability of the NSPS regulations.
    (O) Information shall be made available to the public in 
accordance with 40 CFR Part 60.9. Any records, reports, or 
information provided to, or otherwise obtained by, the State in 
accordance with the provisions of these regulations shall be made 
available to the designated representatives of EPA upon request.
    (P) All reports required pursuant to the delegated NSPS should 
not be submitted to the EPA Region 8 office, but rather to the NDDH.
    (Q) As 40 CFR Part 60 is updated, North Dakota should revise its 
regulations accordingly and in a timely manner and submit to EPA 
requests for updates to its delegation of authority.
    EPA is approving North Dakota's request for NSPS delegation for 
all areas within the State except for the following: Lands within 
the exterior boundaries of the Fort Berthold, Fort Totten, Standing 
Rock and Turtle Mountain Indian Reservations; and any other areas 
which are ``Indian Country'' within the meaning of 18 U.S.C. 1151.
    Since this delegation is effective immediately, there is no need 
for the State to notify the EPA of its acceptance. Unless we receive 
written notice of objections from you within ten days of the date on 
which you receive this letter, the State of North Dakota will be 
deemed to accept all the terms of this delegation. To inform the 
public of this delegation, EPA will publish an information notice in 
the Federal Register in which this letter will appear in its 
entirety.
    If you have any questions on this matter, please contact me at 
(303) 312-6241 or Callie Videtich, Director of our Air and Radiation 
Program, at (303) 312-6434, or toll-free at 1-800-227-8917.
Sincerely,

Stephen S. Tuber

Assistant Regional Administrator
Office of Partnerships and
Regulatory Assistance
Enclosure
cc: Tom Bachman, NDDH

Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective 
Through January 31, 2006, to the State of North Dakota

[[Page 30312]]



   Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
------------------------------------------------------------------------
       40 CFR  subparts                        Section(s)
------------------------------------------------------------------------
A............................  60.8(b)(2) and (b)(3), and those sections
                                throughout the standards that reference
                                60.8(b)(2) and (b)(3); 60.11(b) and (e);
                                and 60.13(i).
Da...........................  60.47Da.
Db...........................  60.44b(f), 60.44b(g) and 60.49b(a)(4).
Dc...........................  60.48c(a)(4).
Ec...........................  60.56c(i), 60.8.
J............................  60.105(a)(13)(iii) and 60.106(i)(12).
Ka...........................  60.114a.
Kb...........................  60.111b(f)(4), 60.114b,
                                60.116b(e)(3)(iii), 60.116b(e)(3)(iv),
                                and 60.116b(f)(2)(iii).
O............................  60.153(e).
DD...........................  60.302(d)(3).
GG...........................  60.332(a)(4) and 60.335(b)(10)(ii).
VV...........................  60.482-1(c)(2) and 60.484.
WW...........................  60.493(b)(2)(i)(A) and 60.496(a)(1).
XX...........................  60.502(e)(6).
AAA..........................  60.531, 60.533, 60.534, 60.535,
                                60.536(i)(2), 60.537, 60.538(e), and
                                60.539.
BBB..........................  60.543(c)(2)(ii)(B).
DDD..........................  60.562-2(c).
GGG..........................  60.592(c).
III..........................  60.613(e).
JJJ..........................  60.623.
KKK..........................  60.634.
NNN..........................  60.663(f).
QQQ..........................  60.694.
RRR..........................  60.703(e).
SSS..........................  60.711(a)(16), 60.713(b)(1)(i) and (ii),
                                60.713(b)(5)(i), 60.713(d), 60.715(a)
                                and 60.716.
TTT..........................  60.723(b)(1), 60.723(b)(2)(i)(C),
                                60.723(b)(2)(iv), 60.724(e) and
                                60.725(b).
VVV..........................  60.743(a)(3)(v)(A) and (B), 60.743(e),
                                60.745(a) and 60.746.
WWW..........................  60.754(a)(5).
CCCC.........................  60.2030(c)(1) through (7).
------------------------------------------------------------------------

VI. Final Action

    EPA is approving revisions to the North Dakota SIP that involve 
certain portions of the North Dakota Air Pollution Control Rules 
regarding general provisions, open burning, permitting, and fugitive 
emissions, as submitted by the Governor of North Dakota with a letter 
dated March 8, 2007. Specifically, EPA approves revisions to the 
following portions of the North Dakota Administrative Code (N.D.A.C.): 
Chapter 33-15-01, General Provisions, sections 33-15-01-04 and 33-15-
01-05; Chapter 33-15-04, Open Burning Restrictions, sections 33-15-04-
01 and 33-15-04-02; Chapter 33-15-14, Designated Air Contaminant 
Sources, Permit to Construct, Minor Source Permit to Operate, Title V 
Permit to Operate, subsections 33-15-14-02.13.c. and 33-15-14-02.13.o. 
(certain sections specific to permit to construct); and Chapter 33-15-
17, Restriction of Fugitive Emissions, subsection 33-15-17-02. In 
addition, EPA approves revisions to North Dakota SIP Chapter 8, 
``Source Surveillance,'' also submitted by the Governor of North Dakota 
with his March 8, 2007 letter. Specifically EPA approves Section 8.3.1, 
``Continuous Opacity Monitoring for Fluid Bed Catalytic Cracking Units: 
Tesoro Refining and Marketing Co., Mandan Refinery.'' EPA is publishing 
this rule without prior proposal because the Agency views this as a 
noncontroversial amendment and anticipates no adverse comment. However, 
in the ``Proposed Rules'' section of today's Federal Register, 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 on July 28, 2008 without further notice unless EPA 
receives adverse comment by June 26, 2008. If EPA receives adverse 
comment, 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. 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, 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.

VII. Statutory and Executive Order Review

    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 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more

[[Page 30313]]

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 approves a state rule implementing a Federal 
standard.
    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 July 28, 2008. 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: May 7, 2008.
Carol Rushin,
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 to read as follows:
0
a. In the table in paragraph (c) by:
0
i. Revising the entries for ``33-15-01-04;'' ``33-15-01-5;'' ``33-15-
04-01;'' ``33-15-04-02;'' ``33-15-14-02;'' and ``33-15-17-02.''
0
ii. Adding entries in numerical order for ``33-15-04-02.1.b, 33-15-04-
02.1.e, 33-15-04-02.1.g, and 33-15-04-02.2.k;'' and ``33-15-14-02.13.c 
and 33-15-14-02.13.o.''
0
iii. Removing the entry for ``33-15-14-02.5, 33-15-14-02.13.c, and 33-
15-14-02.13.i(5)'' and adding in its place a new entry for ``33-15-14-
02.5 and 33-15-14-02.13.i(5).''
0
b. In paragraph (d) by revising the table.
0
c. In the table in paragraph (e) by revising the entry ``(1)'' and by 
adding entry ``(20)'' in numerical order.


Sec.  52.1820  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                        State of North Dakota Regulations
----------------------------------------------------------------------------------------------------------------
                                                             State      EPA approval date
        State citation               Title/subject      effective date   and citation \2\       Explanations
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
33-15-01-04...................  Definitions...........          1/1/07  5/27/08, [Insert   .....................
                                                                         Federal Register
                                                                         page number
                                                                         where the
                                                                         document
                                                                         begins.].
33-15-01-05...................  Abbreviations.........          1/1/07  5/27/08, [Insert   .....................
                                                                         Federal Register
                                                                         page number
                                                                         where the
                                                                         document
                                                                         begins.].

                                                  * * * * * * *
33-15-04-01...................  Refuse Burning                  1/1/07  5/27/08, [Insert   .....................
                                 Restrictions.                           Federal Register
                                                                         page number
                                                                         where the
                                                                         document
                                                                         begins.].

[[Page 30314]]


33-15-04-02...................  Permissible Open                1/1/96  4/21/97, 62 FR     Excluding subsections
                                 Burning.                                19224.             1.b, 1.e, 1.g, and
                                                                                            2.k which were
                                                                                            subsequently revised
                                                                                            and approved. See
                                                                                            below.
33-15-04-02.1.b, 33-15-04-      Permissible Open                1/1/07  5/27/08, [Insert   .....................
 02.1.e, m, 33-15-04-02.1.g,     Burning.                                Federal Register
 and 33-15-04-02.2.k.                                                    page number
                                                                         where the
                                                                         document
                                                                         begins.].

                                                  * * * * * * *
33-15-14-02...................  Permit to Construct...          3/1/94  8/21/95, 60 FR     Excluding subsections
                                                                         43396.             12, 3.c, 13.b.1, 5,
                                                                                            13.c, 13.i(5), 13.o,
                                                                                            and 19 (one
                                                                                            sentence) which were
                                                                                            subsequently revised
                                                                                            and approved. See
                                                                                            below.
                                                                                           See additional
                                                                                            interpretive
                                                                                            materials cited in
                                                                                            57 FR 28619, 6/26/
                                                                                            92, regarding the
                                                                                            State's commitment
                                                                                            to meet the
                                                                                            requirements of
                                                                                            EPA's ``Guideline on
                                                                                            Air Quality Models
                                                                                            (Revised).''

                                                  * * * * * * *
33-15-14-02.5 and 33-15-14-     Review of application--         3/1/03  8/8/05, 70 FR
 02.13.i(5).                     Standard for granting                   45539.
                                 permits to construct
                                 and Exemptions.
33-15-14-02.13.c and 33-15-14-  Exemptions............          1/1/07  5/27/08, [Insert   .....................
 02.13.o.                                                                Federal Register
                                                                         page number
                                                                         where the
                                                                         document
                                                                         begins.].

                                                  * * * * * * *
33-15-17-02...................  Restriction of                  1/1/07  5/27/08, [Insert
                                 fugitive particulate                    Federal Register
                                 emissions.                              page number
                                                                         where the
                                                                         document
                                                                         begins.].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\2\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

    (d) EPA-approved source-specific requirements.

----------------------------------------------------------------------------------------------------------------
                                                             State      EPA approval date
        Name of source           Nature of requirement  effective date   and citation \3\       Explanations
----------------------------------------------------------------------------------------------------------------
--Leland Olds Station Units 1   SIP Chapter 8, Section          5/6/77  10/17/77, 42 FR
 & 2.                            8.3, Continuous                         55471.
                                 Emission Monitoring
                                 Requirements for
                                 Existing Stationary
                                 Sources, including
                                 amendments to Permits
                                 to Operate and
                                 Department Order.
--Milton R. Young Unit 1......
--Heskett Station Units 1 & 2.
--Stanton Station Unit 1......
--American Crystal Sugar at
 Drayton.
--Tesoro Mandan Refinery......  SIP Chapter 8, Section         2/27/07  5/27/08, [Insert
                                 8.3.1, Continuous                       Federal Register
                                 Opacity Monitoring                      page number
                                 for Fluid Bed                           where the
                                 Catalytic Cracking                      document
                                 Units: Tesoro                           begins.] .
                                 Refining and
                                 Marketing Co., Mandan
                                 Refinery.
----------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

    (e) EPA-approved nonregulatory provisions.

[[Page 30315]]



----------------------------------------------------------------------------------------------------------------
                                      Applicable
    Name of nonregulatory SIP     geographic or non-    State submittal    EPA approval date     Explanations
            provision               attainment area    date/adopted date   and  citation \4\
----------------------------------------------------------------------------------------------------------------
(1) Implementation Plan for the   Statewide.........  Submitted: 1/24/72  5/31/72, 37 FR      Excluding
 Control of Air Pollution for                         Adopted: 1/24/72..   10842.              subsequent
 the State of North Dakota.                                                                    revisions, as
                                                                                               follows: Chapters
                                                                                               6, 11, and 12,
                                                                                               and Sections
                                                                                               2.11, 3.2.1, 3.7,
                                                                                               5.2.1, 6.10,
                                                                                               6.11, 6.13, 8.3,
                                                                                               and 8.3.1.
                                                                                               Revisions to
                                                                                               these non-
                                                                                               regulatory
                                                                                               provisions have
                                                                                               subsequently been
                                                                                               approved. See
                                                                                               below.
                                                      Clarification       With all
                                                       submitted: 6/14/    clarifications: 3/
                                                       73; 2/19/74; 6/26/  2/76, 41 FR 8956.
                                                       74; 11/21/74; 4/
                                                       23/75.
Chapters:
    1. Introduction.............
    2. Legal Authority..........
    3. Control Strategy.........
    4. Compliance Schedule......
    5. Prevention of Air
     Pollution Emergency
     Episodes.
    7. Review of New Sources and
     Modifications.
    8. Source Surveillance......
    9. Resources................
    10. Inter-governmental
     Cooperation.
    11. Rules and Regulations...
With subsequent revisions to the
 chapters as follows:

                                                  * * * * * * *
(20) Revisions to SIP Chapter 8,  ..................  Submitted: 3/8/07.  5/27/08, [Insert
 Section 8.3.1.                                                            Federal Register
                                                                           page number where
                                                                           the document
                                                                           begins.].
----------------------------------------------------------------------------------------------------------------
\4\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provisions.


0
40 CFR part 60 is amended to read as follows:

PART 60--[AMENDED]

0
3. The authority citation for part 60 continues to read as follows:

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

Subpart A--General Provisions

0
4. In Sec.  60.4, amend the table in paragraph (c) by revising the 
entries for subparts ``L,'' ``M,'' ``N,'' ``Na,'' ``P,'' ``Q,'' ``R,'' 
``S,'' and ``BB'' to read as follows:


Sec.  60.4  Addresses.

* * * * *
    (c) * * *

[[Page 30316]]



                 Delegation Status of New Source Performance Standards [(NSPS) for Region VIII]
----------------------------------------------------------------------------------------------------------------
                             Subpart                                CO      MT      ND      SD      UT      WY
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
L--Secondary Lead Smelters......................................     (*)     (*)  ......  ......     (*)     (*)
M--Secondary Brass and Bronze Production........................
Plants..........................................................     (*)     (*)  ......  ......     (*)     (*)
N--Primary Emissions from Basic Oxygen Process Furnaces (after 6/    (*)     (*)  ......  ......     (*)     (*)
 11/73).........................................................
Na--Secondary Emissions from Basic Oxygen Process Furnaces           (*)     (*)  ......  ......     (*)     (*)
 (after 1/20/83)................................................

                                                  * * * * * * *
P--Primary Copper Smelters......................................     (*)     (*)  ......  ......     (*)     (*)
Q--Primary Zinc Smelters........................................     (*)     (*)  ......  ......     (*)     (*)
R--Primary Lead Smelters........................................     (*)     (*)  ......  ......     (*)     (*)
S--Primary Aluminum Reduction Plants............................     (*)     (*)  ......  ......     (*)     (*)

                                                  * * * * * * *
BB--Kraft Pulp Mills............................................     (*)     (*)  ......  ......     (*)     (*)

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
(*) Indicates approval of State regulation.

* * * * *

[FR Doc. E8-11479 Filed 5-23-08; 8:45 am]

BILLING CODE 6560-50-P
