[Federal Register Volume 83, Number 210 (Tuesday, October 30, 2018)]
[Proposed Rules]
[Pages 54532-54543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23631]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60, 61, 63, 70 and 72

[EPA-R08-OAR-2018-0299; FRL-9985-72-Region 8]


Proposed Approval of Recodification and Revisions to State Air 
Pollution Control Rules; North Dakota; Proposed Interim Approval of 
Title V Program Recodification and Revisions; Proposed Approval of 
Recodification and Revisions To State Programs and Delegation of 
Authority To Implement and Enforce Clean Air Act Section 111 and 112 
Standards and Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the ``Agency'') 
has reviewed changes to the North Dakota Air Pollution Control Rules. 
Concluding review of those changes, the EPA is proposing interim 
approval of revisions to the North Dakota operating permit program for 
stationary sources subject to title V of the Clean Air Act (CAA or the 
``Act'') and recodification of the title V program under a new title of 
the North Dakota Administrative Code (NDAC). This document also 
proposes approval

[[Page 54533]]

of North Dakota's revision and recodification of the State's programs 
for implementing and enforcing delegated requirements under certain 
sections of the Act, and consequentially the means for the Agency's 
proposed approval of a revised delegation arrangement between the EPA 
and the State of North Dakota for transfer of authority to regulate 
sources under those sections. Upon final approval of this rulemaking 
action North Dakota will receive delegation of authority to implement 
and enforce CAA section 111 New Source Performance Standards (NSPS) and 
section 112 National Emission Standards for Hazardous Air Pollutants 
(NESHAP), including Maximum Achievable Control Technology (MACT) 
requirements within the state, excluding Indian country, exactly as the 
requirements were promulgated by EPA (i.e., ``straight delegation''). 
Straight delegation of sections 111 and 112 authorities does not 
include those authorities reserved by the EPA Administrator or 
otherwise reserved by the EPA, nor the authority to implement and 
enforce regulations not incorporated unchanged into state code, and 
does not include those regulations unincorporated by North Dakota and 
omitted from the State's request for delegation. Upon finalization of 
this rulemaking, North Dakota will also continue to be eligible for 
future automatic delegation of incorporated, unchanged federal 
requirements, without need for request of Agency approval on a case-by-
case basis. The proposed action effects the transfer of title V program 
administration and delegated authority to implement and enforce 
sections 111 and 112 requirements from the North Dakota Department of 
Health (NDDH) to the newly created North Dakota Department of 
Environmental Quality (NDDEQ or the ``Department''). The EPA is taking 
these actions pursuant to sections 501-506, 111 and 112 of the Act.

DATES: Written comments must be received on or before November 29, 
2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2018-0299 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
at www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 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: Gregory Lohrke, Air Program, EPA, 
Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-
1129; (303) 312-6396; [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background Information

    The North Dakota Century Code (NDCC) currently designates the NDDH 
as the primary state environmental agency (NDCC 23-01). The North 
Dakota health department's authority to administer and implement the 
North Dakota Air Pollution Control Rules is codified in NDAC Article 
33-15. On April 7, 2017, the Governor of North Dakota signed 
legislation to amend the NDCC for the creation of the NDDEQ and 
initiate the transfer of all authority, powers and duties of the NDDH 
related to environmental quality to the new Department.\1\ The 
migration of legal and implementation authority, from the NDDH and to 
the new Department, required North Dakota to revise the NDAC to codify 
the NDDEQ's source of legal, jurisdictional and enforcement authority, 
and to define the programs and regulations that the NDDEQ will 
implement. The creation of the NDDEQ also requires the State to seek 
EPA approval for the migration of these authorities and all amendments 
to related programs and agreements. On August 6, 2018, North Dakota, 
having recodified the state environmental regulations,\2\ submitted to 
the Acting Administrator a request for approval of the revision and 
transfer of the State's CAA programs as they will be administrated by 
the NDDEQ. Among the duties of the new NDDEQ is the implementation and 
enforcement of the North Dakota Operating Permits Program and programs 
implemented via that program including the Act's section 111 and 112 
standards and a program for implementation of Title IV of the Act, all 
of which the EPA had previously approved and delegated to the State in 
prior rulemaking actions. In these prior actions we determined that 
NDDH met, among other things, the relevant statutory and regulatory 
authority and the ability to implement and enforce the operating 
permits program.
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    \1\ North Dakota Session Laws 2017, Ch. 199. Sec.  1 (Senate 
Bill 2327).
    \2\ For reference here and throughout today's notice concerning 
the renumbering and recodification of NDCC and NDAC provisions 
relevant to the transfer of CAA authorities to the NDDEQ, see the 
general guidance document, ``Crosswalk on Recodifications of 
Relevant NDCC and NDAC Sections,'' available in the docket for 
today's notice.
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    After the EPA receives a program revision, the Administrator shall 
approve or disapprove program revisions based on the requirements of 
part 70 and the Act.\3\ In addition to the recodifications to the 
State's title V permitting program, the State's submittal includes 
recodifications of the programs for implementation and enforcement of 
delegated section 111 and 112 standards and requirements. The 
recodification and minor revisions to North Dakota's section 111 and 
112 programs also requires the EPA to determine whether to make minor 
revisions to the delegation arrangements concerning those programs. 
North Dakota's rules authorizing the NDDEQ to administer the State's 
environmental programs only become effective after the State receives 
the necessary federal approvals.\4\ North Dakota's operating

[[Page 54534]]

permit and source requirements become federally enforceable on the 
effective date of final approval of this rulemaking action.
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    \3\ 40 CFR 70.4(i)(2).
    \4\ EPA's proposed approval actions on North Dakota's submittal 
to transfer its Title V Program approval and its delegated authority 
for the NESHAP, MACT and NSPS from the North Dakota Department of 
Health to the North Dakota Department of Environmental Quality does 
not extend to Indian country as defined in 18 U.S.C. 1151. Indian 
country generally includes (1) lands within the exterior boundaries 
of the following Indian reservations located within North Dakota: 
The Fort Berthold Indian Reservation, the Spirit Lake Reservation, 
the Standing Rock Sioux Reservation, and the Turtle Mountain 
Reservation; (2) any land held in trust by the United States for an 
Indian tribe; and (3) any other areas that are ``Indian country'' 
within the meaning of 18 U.S.C. 1151. The EPA, or eligible Indian 
tribes, as appropriate, will retain responsibilities under CAA 
Sections 501-506, 111, and 112 for air quality in Indian country.
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II. Summary of North Dakota's Title V Program Recodification and 
Revisions

A. Introduction

    Title V of the 1990 CAA amendments directed the EPA to develop and 
promulgate rules that define the necessary elements of an approvable 
state operating permits program and the necessary standards and 
procedures by which the EPA will approve, oversee, and, when necessary, 
withdraw approval of a state's permitting authority under such 
programs. These operating permit program requirements are codified at 
40 CFR part 70 (part 70). Title V also directs states to develop and 
submit to the EPA approvable programs for the issuance of operating 
permits to all major stationary sources and to certain other sources 
within the state's jurisdiction. Part 70 includes the procedure for 
state requests to the EPA for approval of revisions to the state's 
operating permit program (Sec.  70.4(i)), and for EPA approvals of 
partial or complete transferal of permitting authority from one state 
agency to another (Sec.  70.4(i)(2)).
    North Dakota received interim approval of its operating permit 
program effective on August 7, 1995 (60 FR 35335). The State 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 all operating permit program 
recodifications and revisions, for transferal of permitting authority 
to the NDDEQ, along with requests for approvals of delegations of 
authority for other related programs under the Act (See sections III 
and IV of this notice).\5\ The submittal included a modified program 
description, documentation of rulemaking procedures followed, including 
public comment documentation, and copies of the relevant sections of 
recodified and revised state regulations.\6\ This submittal was 
supplemented on August 16, 2018, with an Attorney General's opinion 
describing the NDDEQ's legal authority to administer and enforce 
aspects of the operating permit program under part 70 and title V of 
the Act.\7\ North Dakota is not resubmitting the operating permit 
program, rather the State is only updating the numbering of its 
operating permits program and related amendments that have previously 
been approved by the EPA. Therefore, except for the minor changes to 
the regulations analyzed in Section II.B.4, this notice proposes action 
on the recodification and amendments as appropriate and consistent with 
the transfer of authority and change in name and does not re-approve 
the substantive State regulations.
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    \5\ The submittal package, ``Title V Permit to Operate, MACT, 
NESHAPs and NSPS Programs for Department of Environmental Quality, 
Division of Air Quality,'' is available for public review in the 
docket for today's notice.
    \6\ For purposes of cross-referencing a recodified provision of 
the NDAC air pollution control rules with its previous version, we 
note that the recodification followed a consistent scheme: All rules 
previously codified as 33-15-xx-xx are now codified as 33.1-15-xx-
xx. For example: All Title V Permit to Operate provisions previously 
codified under NDAC section 33-15-14-06 are now codified at 
corresponding subsections of NDAC section 33.1-15-14-06.
    \7\ The Attorney General's statement, ``Attorney General's 
Opinion Operating Permits Program,'' is available for public review 
in the docket for today's notice.
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B. Analysis of State Submittal

    The EPA finds the State of North Dakota's modified operating 
permits program submittal to be administratively complete for 
requesting approval of recodification and revisions to the State's 
program and the transfer of all authorities related to the permitting 
program to the newly created NDDEQ. This determination was made with 
reference to the criteria for administrative completeness found in 40 
CFR part 70. An accounting of specific, required submittal elements for 
revisions to state operating permit programs and transfers of authority 
to new state agencies are in 40 CFR 70.4(i)(2). This section specifies 
the submittal requirements for any state-initiated program revision as 
being: (1) A modified program description; (2) an Attorney General's 
statement; and (3) such other documents as EPA determines to be 
necessary (70.4(i)(2)(i)). Additional evaluation criteria specific to 
initial program submittals, used as supplemental criteria in the EPA's 
review of the necessary submittal elements, are found under Sec.  
70.4(b).
1. Program Description
    As required under 40 CFR 70.4(i)(2)(i), the State of North Dakota 
included in its request for approval of revisions to its operating 
permit program a description of how the NDDEQ intends to carry out its 
responsibilities under part 70 and title V of the CAA (see criteria for 
program descriptions at Sec.  70.4(b)(1)). The State's program 
description outlines both the basis for operating permit program 
implementation and the organizational structure of the NDDEQ's Division 
of Air Quality. The program description also includes job 
classification descriptions for all staff positions responsible for 
carrying out the operating permits program under the NDDEQ's air 
quality division. Implementation of the North Dakota title V program 
will be based on implementation authority granted by the relevant 
sections of NDAC article 33.1-15, as submitted to the EPA for 
review.\8\ The NDDEQ also provides that it will generate guidance and 
policy documents to clarify the bounds and details of this 
implementation authority.\9\ The Department's organizational structure 
is explained within the submittal in both narrative and graphical 
form.\10\ The Division is equivalent in form and substance to, and 
entirely replaces, the Environmental Section of the NDDH, which the EPA 
previously approved (64 FR 32433). The State has historically also 
demonstrated adequate resources and capabilities for implementation and 
enforcement of the State title V program, and identified no new 
divisions of relevant authorities created by the transfer of powers to 
the NDDEQ (Sec.  70.4(i)(2)). Therefore, we propose to approve the 
program description information as appropriate and consistent with the 
transfer of authority.
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    \8\ See submittal package document, ``Title V Permit to Operate, 
MACT, NESHAPs and NSPS Programs for Department of Environmental 
Quality, Division of Air Quality'' at section 1.A.
    \9\ Ibid.
    \10\ Ibid. at sections 1.B and 1.C.
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2. Attorney General's Statement
    Title 40 CFR 70.4(b)(3) enumerates the necessary elements of the 
Attorney General's statement required for program revisions covered by 
Sec.  70.4(i)(2)(i). These elements are necessary to ensure that the 
State operating permit authority receiving transfer of the title V 
program has the complete legal authority to carry out the requirements 
of a part 70 program. This includes, but is not limited to, the 
authority to: Issue permits and assure source compliance with each 
applicable requirement and requirement of part 70; incorporate 
monitoring, recordkeeping, reporting and compliance certification

[[Page 54535]]

requirements into permits; incorporate into permits all applicable 
requirements and part 70 requirements; terminate, modify, or revoke and 
reissue permits for cause; enforce permits, permit fee requirements, 
and the requirement to obtain a permit; make available to the public 
any permit application contents: Compliance plan, permit, and 
monitoring and compliance certification report; not issue a permit if 
the Administrator objects to its issuance in a timely manner or, if the 
permit has not already been issued, to public petitions to the EPA; and 
insure the opportunity for judicial review of permit actions under the 
conditions outlined in part 70 (40 CFR 70.4(b)(3)(i)-(xiii)).
    North Dakota's Attorney General's statement provides descriptions 
of the legal authority under the recodified laws and regulations of the 
State to carry out all aspects of an operating permits program, 
including the authority to carry out each of these preceding 
elements.\11\ The statement includes citations to the relevant State 
laws and regulations that grant these authorities, that provide the 
corresponding requirements of the Act and federal regulations of part 
70.
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    \11\ For purposes of representing the necessary elements of an 
acceptable Attorney General's opinion (Sec.  70.4(b)(3)(i)-(xiii)), 
and how the submitted Opinion presents those elements and 
demonstrates the State's legal authority through the recodified, 
relevant sections of its NDCC and NDAC, please reference the 
documents, ``Attorney General's Opinion Operating Permits Program,'' 
and, ``AG Opinion Review,'' found in the docket for today's notice.
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    During North Dakota's review of the NDAC for recodification and 
submittal to the EPA, the State discovered limitations on the 
opportunity for judicial review in State courts. The EPA regulation for 
state operating permit programs outlines the conditions and 
requirements for granting affected parties the opportunity to appeal 
for judicial review in state courts (40 CFR 70.4(b)(3)(x)-(xii)). The 
Attorney General's opinion explains that while State law provides for 
opportunity for judicial review for most of the requirements in 40 CFR 
70.4(b)(3)(x)-(xii), the provisions are overly limited. The opinion 
explains that the State intends to revise its rules to remedy the 
limitations on judicial review:

    Forthcoming Department rules will provide that if the final 
permit action being challenged is the Department's failure to take 
final action, a petition for judicial review may be filed at any 
time before the Department denies the permit or issues the final 
permit; and that where petitions for judicial review are based 
solely on grounds arising after the 30-day deadline for judicial 
review, such petitions may be filed no later than 30 days after the 
new grounds for review arise.\12\
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    \12\ Ibid.

    The statement concludes by explaining that ``an addendum to the 
opinion will be submitted once these rules are adopted.'' Therefore, 
while State law grants the Department authority to grant petitioners 
the right to some opportunities for judicial review, Department rules 
limit the full authority required under 40 CFR 70.4(b)(3)(x)-(xii) 
(NDCC Sec. Sec.  23.1-01-11, 23.1-06-04(1)(l), 28-32-42; NDAC Sec.  
33.1-15-14-06(8)). The EPA proposes to find that the Attorney General's 
statement is appropriate and consistent with the transfer of authority, 
except for the limitations on judicial review under title V and Sec.  
70.4(b)(3)(x)-(xii) described in the Attorney General's opinion. The 
effects of these limitations on the EPA's proposed action are discussed 
in section II.C of this document.
3. Supporting Documents
    The transfer of permitting program authorities to the newly created 
Department will be accompanied by a transfer of all related program 
operations as they have existed under the authority of the NDDH. Since 
the North Dakota title V program is reasonably assumed to operate in 
the future as it has since full program approval in 1999, the EPA asked 
for no additional supporting documents, such as would be required for 
initial program submittals under 40 CFR 70.4(b)(4)-(16), except for the 
relevant NDCC and NDAC sections as revised and recodified for program 
transfer. With the exception to the revisions needed to the regulations 
discussed in section II.B.4 of this notice, we propose to find that the 
recodified regulations are substantively equal to those the EPA 
previously approved for implementation and enforcement of the State's 
operating permit program, the structure and operations of the 
implementing authority can be assured to continue in a similar, 
adequate manner as they did under the NDDH, and the relevant NDCC and 
NDAC sections are appropriate and consistent with the transfer of 
authority.
4. Analysis of the State's Prior Unapproved Amendments to NDAC 33-15-
14-06
    Since the full approval of North Dakota's title V operating permit 
program in 1999 (64 FR 32433), the State has made several minor changes 
to the section of North Dakota regulations that provide the legal 
authority to implement and enforce such a program. North Dakota made 
most of these amendments to NDAC section 33-15-14-06 to bring its 
regulations into alignment with the federal part 70 operating permit 
program requirements as amended between 1999 and the present.\13\ The 
EPA proposes to approve the State's previously unconsidered program 
amendments as listed below for the following reasons:
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    \13\ For the purposes of cross-referencing pre-submittal 
revisions to NDAC 33-15-14-06 (title V program) with the 
recodification of those revisions under NDAC 33.1-15-14-06, and a 
comparison of how these revisions reflect the EPA's amendment of 40 
CFR part 70 during the years between initial, full approval of North 
Dakota's title V program and the present, please see the document, 
``Post-1999 Amendments to North Dakota Title V Program,'' in the 
docket for today's notice.
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     Under subsection 1 (``Definitions''), three paragraphs 
were added to reflect the EPA's amendments to 40 CFR 70.2. Two 
paragraphs add new definitions for ``Approved replicable methodology 
(ARM)'' \14\ and ``Alternative operating scenario (AOS),'' \15\ in 
accordance with the EPA's 2009 revisions to the part 70 regulations (74 
FR 51417). The third paragraph was added to account for the EPA's 2010 
addition of a definition for ``Subject to regulation'' \16\ to Sec.  
70.2 (75 FR 31513). The State made conforming amendments to its 
Definitions to incorporate these additions (e.g., when the new 
definition for AOS was added, by inserting 33-15-14-06.1.d, with all of 
the subsequent definitions amended to maintain alphabetical order: 33-
15-14-06.1.d became 33-15-14-06.1.e, and so forth). North Dakota has 
also amended the definition of ``Major source'' under this subsection 
to reflect the exact 2001 EPA revisions to the major source definition 
under 40 CFR 70.2 (66 FR 59161);
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    \14\ NDAC 33.1-15-14-06.1.f.
    \15\ 33.1-15-14-06.1.d.
    \16\ 33.1-15-14-06.1.cc.
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     Under subsection 4 (``Permit applications''), several 
paragraphs, along with specific language, were removed relating to the 
timeline for initial title V permit applications, which the State 
explains no longer apply to any source in North Dakota and are no 
longer necessary. Two paragraphs were added to specify requirements for 
a description and compliance schedule for source requirements 
associated with a proposed AOS, to be included in the compliance plan 
for all title V sources submitting operating permit applications 
(paragraphs 4.c.(8)(b)[4] and (c)[4]). The State made these additions, 
as well as limited revisions to various paragraphs (33-15-14-06.4.c(2), 
(3)(c) and (7)) under this subsection,\17\ to

[[Page 54536]]

accommodate permit applications from sources with an AOS after the 
EPA's 2009 revisions to part 70 regulations (74 FR 51417). The limited 
revisions to these three paragraphs were made to reflect the changed 
language of their federal regulation corollaries (40 CFR 70.5(c)(2), 
(3)(iii) and (7)) after the 2009 CFR revisions;
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    \17\ Docket item: ``Post-1999 Amendments to North Dakota Title V 
Program.''
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     Under subsection 5 (``Permit content''), North Dakota 
revised the language of paragraphs a.(1) and a.(9) to account for the 
EPA's revisions to various part 70 requirements attendant to the 
addition of definitions for ARM and AOS. These changes were made in 
accordance with the EPA's 2009 revisions to part 70 regulations (74 FR 
51417). These two paragraphs incorporate paragraphs 40 CFR 70.6(a)(1) 
and (a)(9), as revised in 2009 with minor terminology changes to 
accommodate reference to the North Dakota Program instead of a 
generalized state program. The State also revised language under 
paragraph c.(5)(c)[2] of this subsection to clarify and update 
compliance certification requirements in accordance with the EPA's 2014 
revisions to section 70.6 (79 FR 43661). This paragraph incorporates 40 
CFR 70.6(c)(5)(iii)(B), as revised in 2014 with minor terminology 
changes to accommodate reference to the North Dakota Program and the 
State's air quality control rules instead of a generalized state 
program and the CFR;
     Under subsection 8 (``Judicial review of title V permit to 
operate decisions''), the State added the subsection by adding 
paragraphs 8.a through 8.e to codify most of the legal authority to 
provide judicial review of permit decisions as required of state 
operating permit programs and described under section 70.4(b)(3)(x)-
(xii); and
     Under subsection 10 (``Compliance assurance monitoring''), 
North Dakota incorporated by reference the compliance assurance 
monitoring (CAM) regulations of 40 CFR part 64 with minor revisions to 
three definitions used in part 64 to insure the State's delegated 
implementation and enforcement authority regarding those regulations.
     Additionally, the EPA promulgated amendments to the part 
70 regulations that North Dakota has not adopted and the EPA proposes 
to find that is was not necessary for the State to adopt these 
amendments.\18\
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    \18\ A table of these EPA 40 CFR part 70 revisions and 
justification for North Dakota, not including the revisions in the 
State's operating permits program, may be found in the document, 
``EPA Amendments to Part 70 Not Adopted,'' included in the docket 
for this action.
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    North Dakota's revised title V program submittal includes all 
amendments to NDAC section 33-15-14-06 as they have been incorporated 
into the recodification of North Dakota's title V permitting 
regulations at NDAC 33.1-15-14-06. These amendments were made to either 
directly reflect the EPA's amendments to the federal part 70 
regulations during the years since North Dakota's full program approval 
(64 FR 32433) or as North Dakota-specific amendments. All of the 
State's amendments, except for those to NDAC subsection 33-15-14-06.8 
and its successor, the limitations of which are discussed in section 
II.B.2 of today's notice, are found to be approvable. Many of these 
changes were made to bring state regulations into accord with the EPA's 
changes to part 70 requirements over that time period. The remaining 
changes to NDAC 33-15-14-06 were not in response to modified federal 
regulations; however, the State's changes do not create an operating 
permits program any less stringent than is required under 40 CFR part 
70. We propose to find that all previously unapproved amendments to the 
North Dakota Program between full approval and the transfer of 
authority to the NDDEQ, as they have been recodified under NDAC 33.1-
15-14-06, are approvable for the purposes of part 70 program 
implementation and enforcement.
5. Transfer of the Acid Rain Program
    North Dakota's request for transfer of the title V operating permit 
program includes the request to transfer associated State 
responsibilities for the CAA title IV Acid Rain Program (40 CFR parts 
72, 75 and 76).\19\ 40 CFR 70.4(b)(3)(xiii) specifies that the attorney 
general's legal opinion ensure that the authority of the state 
permitting agency is not used to modify the acid rain program 
requirements. The EPA issued guidance to clarify the primary criteria 
for approval of state submittals to carry out the acid rain portion of 
the operating permits program.\20\ The Attorney General opinion assures 
that ``State law is consistent with, and cannot be used to modify, the 
Acid Rain Program requirements of 40 CFR part 72.'' \21\ NDCC 23.1-06-
04(1)(l); NDAC 33.1-15-21. Additionally, North Dakota's revised title V 
program submittal demonstrates adequate legal and regulatory authority 
to issue permits that reflect the requirements of title IV of the 
Act.\22\ North Dakota will continue to implement an acid rain program 
through the NDDEQ substantively equal to the program approved with the 
original interim title V program approval (See 60 FR 20945). Because of 
the substantively equal authorities and capabilities of the NDDH and 
the NDDEQ, North Dakota has reasonably assured the EPA of its ability 
to meet the requirements related to title IV of the Act, through the 
issuance and enforcement of title V operating permits. Therefore, we 
propose to approve the transfer of the acid rain program as appropriate 
and consistent with the transfer of authority.
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    \19\ Title V Permit to Operate, MACT, NESHAPs and NSPS Programs 
for Department of Environmental Quality, Division of Air Quality; 
see Governor's letter and section 1.B.
    \20\ EPA Memorandum, ``Title IV-Title V Interface Guidance for 
States,'' from Lydia Wegman, Deputy Director, Office of Air Quality 
Planning and Standards and Paul Stolpmann, Acting Director, Office 
of Atmospheric Programs, to EPA Air Division Directors, included in 
the docket for today's notice.
    \21\ Attorney General's Opinion Operating Permit Program, August 
16, 2018, p. 9.
    \22\ Ibid., and throughout.
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C. Proposed Action

    North Dakota's program meets the minimum requirements and otherwise 
substantially meets the part 70 requirements,\23\ but is not fully 
approvable because as described in section II.B.2 the Attorney General 
Opinion explains that the State's rules lack full authority required 
for judicial review.\24\ Therefore, the EPA proposes interim approval 
of the State's operating permit program under 40 CFR 70.4(d) and CAA 
section 502(g). An interim approval of North Dakota's operating permit 
program would solely be to allow the State to make minor revisions to 
NDAC 33.1-15-14-06.8, and update the Attorney General's opinion to 
reflect revised legal authorities, as a precursor to full approval of 
the State's operating permit program (See discussion in section II.B.2 
of this notice). The EPA will act as expeditiously as possible to 
finalize full approval of North Dakota's title V program once the 
revised State rules and Attorney General's opinion are submitted to the 
EPA. Proposed interim approval shall not be construed as approving any 
deviation from the implementation and enforcement requirements under 
part 70 or as an approval of a program less stringent than that 
described by part 70 requirements. Under section 70.4(d) the EPA 
proposes to set an expiration date for interim approval, not to exceed 
2 years after such an approval and non-

[[Page 54537]]

renewable upon expiration. If the EPA finalizes an interim approval of 
North Dakota's title V program, the interim approval's expiration date 
will be set for no later than January 1, 2021.
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    \23\ 40 CFR 70.4(d)(3).
    \24\ As explained in the Attorney General's Opinion, forthcoming 
State rules will remedy this limitation and an addendum to the 
opinion will be submitted once the rules are adopted.
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III. Delegation of NESHAP and MACT Requirements

A. Introduction

    Section 112 of the CAA authorizes the EPA to develop and 
periodically revise a list of all categories and subcategories of major 
sources and area sources of hazardous air pollutants (HAP). To reduce 
HAP emissions from these sources, this section of the Act also 
authorizes the EPA to promulgate federally enforceable NESHAP and MACT 
requirements for source categories. The NESHAP and MACT requirements 
are promulgated in parts 61 and 63 of title 40 of the CFR. Section 
112(l) of the Act provides a mechanism for approval of programs and 
delegation of authority to the states to implement and enforce these 
federal standards and requirements. A state's program may provide for 
partial or complete delegation of the Agency's authorities and 
responsibilities to implement and enforce section 112 standards and 
requirements, so long as those authorities are carried out by an 
approvable state program with standards and requirements no less 
stringent than those promulgated by the EPA. The regulations found in 
40 CFR part 63, subpart E establish procedures consistent with section 
112(l) for the approval of state rules, programs, or other 
requirements, as well as procedures for the delegation of authority to 
states to implement and enforce all section 112 federal rules as 
promulgated, without changes, after their incorporation into state code 
(40 CFR 63.91).
    North Dakota first received straight delegation of authority to 
implement and enforce NESHAP and MACT requirements on July 7, 1995 (60 
FR 35335) upon the parallel interim approvals of the State's section 
112 implementation and enforcement plan and the State's title V 
program.\25\ The EPA subsequently informed North Dakota of the 
procedures for NESHAP and MACT automatic delegation.\26\ An automatic 
delegation arrangement with a state allows for prospective approval of 
all delegations of authority to implement and enforce future section 
112 standards and requirements without case-by-case approval, so long 
as the standards and requirements are incorporated unchanged into state 
code. North Dakota was operating under an automatic delegation 
arrangement prior to recodification of the State's section 112 program 
and the planned transfer of authority to implement and enforce state 
environmental regulations from the NDDH to the NDDEQ.\27\
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    \25\ Appendix A to 40 CFR part 70. North Dakota (b).
    \26\ See letter addressed to Director Jeff Burgess, Division of 
Environmental Engineering, North Dakota Department of Health from 
Director Richard R. Long, EPA Region 8 Air and Radiation Program, 
May 16, 2000, ``Delegation Procedures for Section 112 
Requirements,'' in the docket for today's notice.
    \27\ Ibid.
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    The NDDH's planned transfer of authorities pursuant to State law to 
a new State agency required minor revisions and the recodification of 
State rules and its section 112 program for implementation and 
enforcement of NESHAP and MACT requirements. The recodification of the 
State's program requires the State provide the Agency with a copy of 
the revised authorities and a formal request for approval measured 
against the criteria for approval found under 40 CFR 63.91(d) and any 
additional relevant approval criteria in 40 CFR part 63, subpart E.
    In a letter dated August 6, 2018, North Dakota submitted to the EPA 
final revisions to the State's Air Pollution Control Rules pertaining 
to administration, implementation and enforcement of CAA section 112 
emissions standards and requirements by the new NDDEQ. This letter 
included a request to approve straight delegation of all NESHAP and 
MACT requirements incorporated unchanged into the recodified State 
regulations, and a submittal package justifying the approvability of 
the State's revised section 112 program. The EPA reviewed the State's 
program and recodified incorporations of federal requirements (NDAC 
chapters 33.1-15-12 and 33.1-15-22) for equivalency to the formerly 
approved implementation and enforcement program and former codification 
of federal requirements (NDAC chapters 33-15-12 and 33-15-22). The EPA 
also evaluated the submittal for approvability on the program's own 
merits as measured against the approval criteria found in subpart E of 
40 CFR part 63. Additionally, we evaluated North Dakota's request for 
section 112 program approval based on the nine elements in the EPA's 
1983 ``Good Practices Manual for Delegation of NSPS and NESHAPs'': (1) 
Emission limits consistent with Federal regulations; (2) test methods 
consistent with federal regulations; (3) reporting and monitoring 
requirements; (4) enforcement; (5) waiver procedures; (6) surveillance; 
(7) public notification and disclosure of information; (8) resources; 
and (9) reporting to EPA.28 29
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    \28\ For reference, this document may be found in the docket for 
today's notice.
    \29\ For a detailed demonstration of North Dakota's program 
adequacy following the program elements in the EPA's 1983 ``Good 
Practices Manual for Delegation of NSPS and NESHAPs,'' see the 
NESHAP and MACT Program Descriptions, included in the submittal 
document, ``Title V Permit to Operate, MACT, NESHAPs and NSPS 
Programs for Department of Environmental Quality, Division of Air 
Quality,'' please refer to section 2-3 (PDF pages 32-39), found in 
the docket for today's notice.
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B. Analysis of State Submittal

    Referring to a state's title V program final approval would 
normally satisfy the common approval criteria set forth for straight 
delegation of section 112 authorities to the state (40 CFR 
63.91(d)(3)). However, North Dakota's title V program also underwent 
recodification during the proposed transfer of authority to the NDDEQ 
and was revised since EPA's final approval. Notice of proposed 
rulemaking action on the recodifications and revisions to North 
Dakota's title V program is found in Section II of today's proposed 
rulemaking document. Due to the concurrent nature of the title V 
revisions and recodifications and section 112 program recodifications 
and of the EPA's simultaneous review of those revisions, the EPA 
evaluates the section 112 program recodifications against the criteria 
for stand-alone up-front completeness and approvability.
    The North Dakota request for section 112 program approval was 
measured for completeness against all up-front approval criteria found 
under 40 CFR 63.91(d). These criteria as they were fulfilled by the 
State of North Dakota are: (1) A written finding by the State Attorney 
General that the NDDEQ has the necessary legal authority to implement 
and enforce the State's rules and source requirements upon program 
approval and to assure compliance by all sources within the State of 
North Dakota with each applicable section 112 standard or requirement 
(Sec.  63.91(d)(3)(i)); \30\ (2) a copy of all NDCC and NDAC statutes 
and regulations relevant to the implementation and enforcement by the 
NDDEQ of section 112 standards and requirements upon final program 
approval (Sec.  63.91(d)(3)(ii)); \31\ (3) a narrative and graphical 
description of the NDDEQ, the agency's organization and the adequacy of 
its institutional

[[Page 54538]]

resources to implement and enforce all aspects of the section 112 
program upon approval (Sec.  63.91(d)(3)(iii)); \32\ (4) a schedule 
demonstrating immediate implementation of the section 112 program upon 
final approval (Sec.  63.91(d)(3)(iv)); and, (5) a plan for expeditious 
compliance by all affected sources subject to the NDDEQ section 112 
program upon final approval (Sec.  63.91(d)(3)(v)).
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    \30\ See submittal package document, ``Attorney General's 
Opinion.''
    \31\ See submittal package document, ``Title V Permit to 
Operate, MACT, NESHAPs and NSPS Programs for Department of 
Environmental Quality, Division of Air Quality'' at sections 6 and 
7.
    \32\ Ibid. at sections 2, 3 and 5.
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    North Dakota provides the required items of 40 CFR 63.91(d)(3), and 
so fulfills the section 112 program submittal criteria set out by that 
section and the EPA's 1983 Manual, as outlined below.
    1. With respect to the State's legal authority to implement and 
enforce a section 112 program in the manner required under Sec.  
63.91(d)(3)(i): Sections VI, VII, XIV and XXII of the Attorney 
General's Opinion provides reference to the statutory source of the 
State's implementation and enforcement authority for administering a 
section 112 program.\33\ As the transfer of authorities from the NDDH 
to the NDDEQ is almost exclusively a recodification of state laws and 
regulations, the EPA also refers to its previous determination that 
these legal authorities are adequate to carry out a section 112 program 
to determine that this legal authority is maintained by the NDDEQ.
---------------------------------------------------------------------------

    \33\ The NESHAP and MACT Program Descriptions in the submittal 
package document, ``Title V Permit to Operate, MACT, NESHAPs and 
NSPS Programs for Department of Environmental Quality, Division of 
Air Quality,'' Sections 2 and 3 include information that meets 
several program elements in the EPA's 1983 Best Practices Manual, 
including, program elements 1, 2, 3, 4, 5, and 7.
---------------------------------------------------------------------------

    2. Pursuant the requirement of Sec.  63.91(d)(3)(ii) that the 
submittal include a copy of all statutes, regulations, and requirements 
containing the appropriate provisions granting the authority to 
implement and enforce the state's section 112 program, including the 
related requirements in the EPA's 1983 Good Practices Manual (program 
elements 1-7) \34\ the State has included such a copy of all relevant, 
recodified statutes and regulations. As there were no substantive 
modifications to these authorizing statutes and regulations, the EPA 
refers to its previous determination in the 1995 title V interim 
program approval that the NDDEQ has adequate authority to implement and 
enforce a section 112 program, just as the NDDH had before these 
recodifications.
---------------------------------------------------------------------------

    \34\ See the NESHAP and MACT Program Descriptions in the 
submittal package document, ``Title V Permit to Operate, MACT, 
NESHAPs and NSPS Programs for Department of Environmental Quality, 
Division of Air Quality,'' Sections 1, 2 and 3.
---------------------------------------------------------------------------

    3. Pursuant the requirement of Sec.  63.91(d)(3)(iii) that the 
State show adequate resources to implement and enforce all aspects of a 
section 112 program, the State notes in its submittal that the NDDEQ 
will be funded and staffed at the same level as the Environmental 
Health Division of the NDDH which previously carried out all aspects of 
the section 112 program.\35\
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    \35\ See submittal package document, ``Title V Permit to 
Operate, MACT, NESHAPs and NSPS Programs for Department of 
Environmental Quality, Division of Air Quality'' at sections 1, 2, 
3, and 5.
---------------------------------------------------------------------------

    4. Pursuant to the requirements of Sec. Sec.  63.91(d)(3)(iv) and 
(v), which require a demonstration of planned expeditious 
implementation and enforcement of the section 112 program, the State's 
submittal quotes a specific provision of Senate Bill 2327 that 
specifies that all ``orders, determinations, and permits'' made by the 
NDDH before the transfer of authority remain in effect. The NESHAPs and 
MACT Program Descriptions provide additional details regarding program 
implementation. As there will be a continuity in the orders, 
determinations and permit conditions that compose the section 112 
program, there is no further need for implementation schedules or 
compliance plans as would be needed in an initial program approval. 
Pursuant to the EPA's 1983 Best Practices Manual program element for 
reporting to the EPA, the NESHAP and MACT Program Descriptions explain 
that the DEQ will report to the EPA as required by the Performance 
Partnership Agreement (PPA) \36\ and Appendix A to part 61 
(incorporated by reference in NDAC 33.1-15-13). The State's 
Descriptions further explain that the DEQ will work with the EPA to 
provide information on NESHAP and MACT sources that is requested by the 
EPA.
---------------------------------------------------------------------------

    \36\ See document titled, ``ND PPA 2018-2019,'' in the docket 
for today's notice.
---------------------------------------------------------------------------

C. What NESHAPs are we proposing to delegate?

    North Dakota's request included NESHAP in 40 CFR part 61 as they 
existed on July 2, 2010, and in 40 CFR part 63 as they existed through 
July 1, 2015.\37\ This proposed delegation affects only the 
implementation and enforcement authority for those standards which had 
been previously delegated to the State under the previously approved 
program, and which have now been incorporated unchanged into the 
State's revised air pollution control rules.
---------------------------------------------------------------------------

    \37\ See NDAC 33.1-15-13-01.1; 33.1-15-22-01.
---------------------------------------------------------------------------

    The NDDEQ would maintain primary responsibility for the enforcement 
of the delegated section 112 standards within the State. If the NDDEQ 
determines that such enforcement is not feasible and so notifies the 
EPA, or on the occasion of the NDDEQ acting in a manner incongruous 
with the terms of this delegation arrangement, the EPA may exercise its 
parallel enforcement authority pursuant section 113 of the CAA with 
respect to sources within North Dakota subject to the section 112 
hazardous air pollutant standards.
    Additionally, some portions of the NESHAP/MACT standards and the 
associated general provisions may not be delegated to a state. The EPA 
retains authority over those portions of the section 112 standards and 
associated general provisions which may not be delegated. In general, 
the EPA will delegate to a state the authority to make decisions which 
are not likely to be nationally significant or to alter the stringency 
of the underlying standard. Pursuant to this goal, the EPA has codified 
those part 63 general provisions which may, and may not, be delegated 
to a state in 40 CFR 63.91(g). The EPA's complete reasoning for 
defining those provisions which are and are not delegable may be found 
in EPA's July 10, 1998 memorandum \38\ or in the related Federal 
Register notice from January 12, 1999 (64 FR 1880). In addition, some 
portions of the section 112 requirements, by their own terms, may not 
be delegated to a state. The EPA Administrator retains authority of 
those sections of individual subparts that require: (1) Approving 
equivalency determinations and alternate test methods; (2) decision-
making to ensure national consistency; and (3) EPA rulemaking in order 
to implement. The document titled ``Delegation of CAA Authorities 
Overview'' in the docket for this proposal provides a list of example 
sections in 40 CFR parts 61 and 63 that may not be delegated. 
Additionally, this action does not propose delegation of any authority 
under section 112(r), the accidental release program. Accordingly, the 
EPA is retaining authority over those portions of the section 112 
requirements that cannot be delegated.
---------------------------------------------------------------------------

    \38\ Memorandum from John S. Seitz, Director, Office of Air 
Quality Planning and Standards, ``Delegation of 40 CFR part 63 
General Provisions Authorities to State and Local Air Pollution 
Control Agencies,'' available online at: (https://www3.epa.gov/airtoxics/112(l)/delauth9.pdf).
---------------------------------------------------------------------------

    If this delegation is finalized, all questions concerning 
implementation and enforcement of the excluded standards in the State 
of North Dakota

[[Page 54539]]

should be directed to the EPA Region 8 Office.

D. How will statutory and regulatory interpretations be made?

    If this NESHAP delegation is finalized, the State will obtain 
concurrence from the EPA on any matter involving the interpretation of 
section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that 
implementation or enforcement of these provisions have not been covered 
by prior EPA determinations or guidance.

E. What authority does the EPA have?

    The EPA retains the right, as provided by CAA section 112(l)(7) and 
40 CFR 63.90(d)(2), to enforce any applicable emission standard or 
requirement under section 112. In addition, the EPA may enforce any 
federally approved state rule, requirement, or program under 40 CFR 
63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make 
certain decisions under the General Provisions (subpart A) of parts 61 
and 63. In addition, the EPA may review and disapprove state 
determinations and subsequently require corrections. See 40 CFR 
63.91(g)(1)(ii). The EPA also has the authority to review a state's 
implementation and enforcement of approved rules or programs and to 
withdraw approval if we find inadequate implementation or enforcement. 
See 40 CFR 63.96. Furthermore, the Agency retains any authority in an 
individual emission standard that may not be delegated according to 
provisions of the standard.

F. What information must the State provide to the EPA?

    In addition to the information identified in the Performance 
Partnership Agreement, the State must provide any additional compliance 
related information to the EPA Region 8 Air Program within 45 days of a 
request under 40 CFR 63.96(a). In receiving delegation for specific 
General Provisions authorities, the State must submit to the EPA Region 
8 on a semi-annual basis, copies of determinations issued under these 
authorities. See 40 CFR 63.91(g)(1)(ii). For part 63 standards, these 
determinations include: Sec.  63.1, Applicability Determinations; Sec.  
63.6(e), Operation and Maintenance Requirements--Responsibility for 
Determining Compliance; Sec.  63.6(f), Compliance with Non-Opacity 
Standards--Responsibility for Determining Compliance; Sec.  63.6(h), 
Compliance with Opacity and Visible Emissions Standards--Responsibility 
for Determining Compliance; Sec.  63.7(c)(2)(i) and (d), Approval of 
Site-Specific Test Plans; Sec.  63.7(e)(2)(i), Approval of Minor 
Alternatives to Test Methods; Sec.  63.7(e)(2)(ii) and (f), Approval of 
Intermediate Alternatives to Test Methods; Sec.  63.7(e)(iii), Approval 
of Shorter Sampling Times and Volumes When Necessitated by Process 
Variables or Other Factors; Sec.  63.7(e)(2)(iv), (h)(2) and (3), 
Waiver of Performance Testing; Sec.  63.8(c)(1) and (e)(1), Approval of 
Site-Specific Performance Evaluation (Monitoring) Test Plans; Sec.  
63.8(f), Approval of Minor Alternatives to Monitoring; Sec.  63.8(f), 
Approval of Intermediate Alternatives to Monitoring; Sec.  63.9 and 
63.10, Approval of Adjustments to Time Periods for Submitting Reports; 
Sec.  63.10(f), Approval of Minor Alternatives to Recordkeeping and 
Reporting; and Sec.  63.7(a)(4), Extension of Performance Test 
Deadline.

G. What is the EPA's oversight role?

    The EPA oversees a state's decisions to ensure the delegated 
authorities are being adequately implemented and enforced. We will 
integrate oversight of the delegated authorities into the existing 
mechanisms and resources for oversight currently in place. If, during 
oversight, we determine that the State made decisions that decreased 
the stringency of the delegated standards, then the State shall be 
required to take corrective actions and the source(s) affected by the 
decisions will be notified, as required by 40 CFR 63.91(g)(1)(ii) and 
(b). We will initiate withdrawal of the program or rule if the 
corrective actions taken are insufficient.

H. Should sources submit notices to the EPA or the State?

    For the delegated NESHAP standards and authorities covered by this 
proposed action, if finalized, sources would submit all of the 
information required pursuant to the general provisions and the 
relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63) 
directly to the State. The State is the primary point of contact with 
respect to delegated NESHAPs. Sources do not need to send a copy to the 
EPA. The EPA Region 8 proposes to waive the requirement that 
notifications and reports for delegated standards be submitted to the 
EPA in addition to the State in accordance with 40 CFR 63.9(a)(4)(ii) 
and 63.10(a)(4)(ii).\39\ For those standards and authorities not 
delegated as discussed above, sources must continue to submit all 
appropriate information to the EPA.
---------------------------------------------------------------------------

    \39\ This waiver only extends to the submission of copies of 
notifications and reports; the EPA does not waive the requirements 
in delegated standards that require notifications and reports be 
submitted to an electronic database (e.g., 40 CFR part 63, subpart 
HHHHHHH).
---------------------------------------------------------------------------

I. How will unchanged authorities be delegated to the State in the 
future?

    As stated in previous NESHAP delegation actions, the EPA has 
approved North Dakota's mechanism of incorporation by reference of 
NESHAP standards into the State regulations, as they apply to both part 
70 and non-part 70 sources. See, e.g., the EPA's 2000 memo to Director 
Jeff Burgess, Division of Environmental Engineering, NDDH. All future 
section 112 requirements incorporated by reference (IBR) into the State 
rules will become effective on the date the requirement goes into 
effect according to the State's updated rules and regulations. In the 
case of future adoption of section 112 requirements, the EPA requests 
that North Dakota send notice of the its intention to receive 
delegation of the requirements within 60 days of the State's 
incorporation of those requirements into the State's rules and 
regulations. The notification should include an official copy of the 
regulation stamped, dated and signed by the appropriate official, with 
the date of adoption and the effective date in North Dakota. Within 30 
days of receipt of North Dakota's notification, the EPA will reply with 
an acknowledgment of the delegation and will change the relevant Region 
8 electronic delegations of authority table (found under the 
``Delegations of Authority'' link at: http://www2.epa.gov/region8/air-program) to reflect the new delegation of authority. If there is a 
change in the effective date for the section 112 requirement, North 
Dakota must notify the EPA as soon as possible. If the delay extends 
beyond the section 112 requirement compliance date, the EPA will 
implement and enforce the requirement until North Dakota has fully 
incorporated the requirement and the final effective date has passed.
    The State also has the option of receiving partial delegation of a 
section 112 requirement, and the option to cancel the delegation of 
authority to implement and enforce previously adopted requirements. 
Automatic partial delegation of severable portions of any standard 
requires that the state: (1) Clearly define the separable subcategory 
in the particular standard, or the specific separable subset of 
affected sources in the specific standard so that regulated sources and 
the public know who is the implementing and enforcing authority; and 
(2) the applicable portions of the federal standard must be adopted by 
IBR into the state regulations or rules with an additional, clear 
explanation of what

[[Page 54540]]

portions of the standard are not included in the standard's adoption 
into the State rule. If the State does not want to use automatic 
delegation for any of its previously adopted section 112 requirements, 
then the State may provide a list of those requirements which have been 
adopted and which the State wants to exclude from the delegation 
process to the EPA.

J. Proposed Action

    The EPA proposes to approve North Dakota's program for receiving 
delegated authority to implement and enforce emissions standards and 
other requirements for air pollutants subject to section 112 of the CAA 
as recodified by the State. The EPA also proposes approval of revisions 
to the section 112 automatic delegation arrangement between the EPA and 
the State of North Dakota to accommodate the transfer of environmental 
regulatory programs from the NDDH to the NDDEQ. The proposed approval 
of recodification of federal NESHAP and MACT requirements and legal 
authorities to implement and enforce section 112 requirements, and the 
recognition of the NDDEQ's ability to receive delegated federal 
authority to administer the State's section 112 program will affect the 
transfer from the NDDH to the NDDEQ of the authority to implement and 
enforce all incorporated, unchanged federal NESHAP and MACT 
requirements.

IV. Delegation of NSPS

A. Introduction

    Section 111 of the CAA authorizes the EPA to establish a list of 
source categories which contribute significantly to air pollution and 
authorizes the Agency to publish regulations establishing federal 
performance standards for new sources within such categories. Section 
111 performance standards for new sources are categorically referred to 
as NSPS and may individually be found in 40 CFR part 60.
    Section 111(c) of the Act establishes that the EPA may find a state 
program as ``adequate'' for purposes of implementing and enforcing the 
NSPS and delegate these authorities to the state. Delegation of 
authority confers upon the state primary implementation and enforcement 
responsibility; however, the EPA also retains concurrent authority to 
enforce the standards, and sole authority over those portions of the 
standards that may not be delegated. The usual method for establishing 
adequacy of a state's program is to verify both the existence of an 
approved state title V permitting program and that the part 60 federal 
NSPS requirements are IBR in the state's code. If these two program 
features can be positively verified, the state is considered capable of 
implementing and enforcing the section 111 standards and the state may 
request delegation of authority to administer the NSPS requirements for 
sources within the state. After section 111 program approval, a state 
and the EPA may reach an agreement to ``automatically'' delegate future 
NSPS requirements to the state, if the future requirements are IBR in 
the state's code. Automatic delegation arrangements allow the state to 
administer the NSPS as they are updated or introduced without need for 
case-by-case approvals from the EPA. North Dakota and the EPA currently 
maintain such an arrangement.
    The EPA last affirmed delegation of NSPS to North Dakota in a 
letter dated February 27, 2014,\40\ which was subsequently published 
for public notice in the Federal Register on October 9, 2014 (79 FR 
60993). Due to North Dakota's creation of the NDDEQ by act of 
legislature, and revision and recodification of portions of the NDCC 
and NDAC to grant the Department legal authority to implement and 
enforce the State's air pollution control rules, the EPA finds it 
necessary to revise the automatic delegation arrangement between the 
Agency and the State.
---------------------------------------------------------------------------

    \40\ See letter to Terry O'Clair, Director, Division of Air 
Quality, North Dakota Department of Health, ``Automatic Delegation 
of Clean Air Act (CAA) Section 111 Requirements,'' from Carl Daly, 
Director, Air Program, February 27, 2014.
---------------------------------------------------------------------------

    As North Dakota is seeking approval of the transfer of its title V 
program to the NDDEQ concurrent with the State's revisions to its 
section 111 program, the EPA requested that the State demonstrate the 
adequacy of its program and resources for implementing and enforcing 
NSPS requirements independent of a fully approved operating permits 
program. The EPA evaluated the State's section 111 program based on the 
minimum program elements recommended in the Agency's 1983 ``Good 
Practices Manual for Delegation of NSPS and NESHAPs.'' \41\ The 
requirements set forth by this document are a state's demonstrations 
of: (1) Emission limits consistent with federal regulations; (2) test 
methods consistent with federal regulations; (3) reporting and 
monitoring requirements; (4) enforcement authority against noncomplying 
sources; (5) waiver procedures; (6) a source surveillance program; (7) 
a protocol for public notification and information disclosure; (8) 
adequate program resources; and (9) a communication protocol between a 
state and the EPA. North Dakota has included in its request for section 
111 program approval a NSPS program description that seeks to 
demonstrate adequacy of the program with respect to each of the nine 
key program elements listed in this paragraph.
---------------------------------------------------------------------------

    \41\ For reference, this document may be found in the docket for 
today's notice.
---------------------------------------------------------------------------

B. Analysis of State Submittal

    The EPA reviewed North Dakota's section 111 program adequacy 
demonstration with reference to the ``Good Practices'' manual for NSPS 
delegations. The requirements of emission limits and test methods 
consistent with federal regulations, as well as the requirement of 
adequate source reporting and monitoring requirements, have been met 
with the IBR of federal NSPS requirements in the State air pollution 
control rules. The State updated all IBR citations as necessary. The 
EPA reviewed the State's incorporations and finds them substantively 
equivalent to incorporations as they existed at the time of the 2014 
approval of NSPS delegation of authority to the State during the NDDH's 
administration of North Dakota's environmental regulations.\42\ The 
State has made an adequate demonstration of enforcement authority in 
their program description and has provided a State Attorney General's 
opinion certifying the fullness of NDDEQ's enforcement authority and 
the adequacy of its source waiver and public notification and 
disclosure of information procedures. The EPA reviewed the relevant 
sections of State code related to enforcement and public notification, 
and finds them substantively equivalent to incorporations as they 
existed at the time the title V program received full approval. The 
State also made a sufficient demonstration of adequate program 
resources for the implementation and enforcement of the NSPS as they 
will have the same resources that were previously allocated by the 
State legislature that the EPA approved. The State's submittal also 
commits to reporting requirements under the Performance Partnership 
Agreement between the North Dakota and the EPA, as well as working with

[[Page 54541]]

the EPA to provide information to the Agency.\43\
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    \42\ For cross-referencing North Dakota's unchanged 
incorporations of federal NSPS requirements both before and after 
the transfer of authorities from the NDDH to the NDDEQ, see the 
document, ``North Dakota NSPS Recodifications,'' included in the 
docket for today's notice.
    \43\ For a detailed demonstration of North Dakota's program 
adequacy following the program elements in the EPA's 1983 ``Good 
Practices Manual for Delegation of NSPS and NESHAPs,'' see, ``NSPS 
Program Description,'' included in the submittal document, ``Title V 
Permit to Operate, MACT, NESHAPs and NSPS Programs for Department of 
Environmental Quality, Division of Air Quality,'' found in the 
docket for today's notice.
---------------------------------------------------------------------------

C. What NSPSs are we proposing to delegate?

    North Dakota's request included NSPS in 40 CFR part 60 as they 
existed through July 1, 2015.\44\ This proposed delegation affects only 
the implementation and enforcement authority for those standards which 
had been previously delegated to the State under the previously 
approved automatic delegation program, and which have now been 
incorporated unchanged into the State's revised air pollution control 
rules.
---------------------------------------------------------------------------

    \44\ NDAC 33.1-15-12-01.1.
---------------------------------------------------------------------------

    The NDDEQ would maintain primary responsibility for the enforcement 
of the delegated section 111 standards within the State. If the NDDEQ 
determines that such enforcement is not feasible and so notifies the 
EPA, or on the occasion of the NDDEQ acting in a manner incongruous 
with the terms of this delegation arrangement, the EPA may exercise its 
parallel enforcement authority pursuant section 113 of the CAA with 
respect to sources within North Dakota subject to the section 111 new 
source performance standards.
    There are some section 111 standards that may not be delegated to a 
state and which are not included in this automatic delegation 
arrangement. The emission guidelines (EG) found in 40 CFR part 60, 
subparts Cb, Cc, Cd, Ce, Cf, BBBB, DDDD, FFFF, and MMMM require states 
to develop implementation plans for `existing' facilities of certain 
source categories, which are then approved under a separate process 
pursuant to section 111(d) of the CAA.
    In addition, some portions of the section 111 standards and the 
associated general provisions of part 60, by their own terms, may not 
be delegated to a state. The EPA Administrator retains authority to 
implement those sanctions that require: (1) Approving equivalency 
determinations and alternate test methods; (2) decision making to 
ensure national consistency; and (3) EPA rulemaking in order to 
implement. 40 CFR 60.4(d) also contains certain NSPS authorities that 
are not delegated to state and local agencies. Additionally, the 
document titled ``INSERT'' in the docket for this proposal contains a 
list of example sections in 40 CFR part 60 that may not be delegated to 
a state. Accordingly, EPA retains authority over those portions of the 
CFR part 60 standards that may not be delegated.
    If this delegation is finalized, all questions concerning 
implementation and enforcement of the excluded standards in the State 
of North Dakota should be directed to the EPA Region 8 Office.

D. How will statutory and regulatory interpretations be made?

    If this NSPS delegation is finalized, the State will obtain 
concurrence from the EPA on any matter involving the interpretation of 
section 111 of the CAA or 40 CFR part 60 to the extent that 
implementation or enforcement of these provisions have not been covered 
by prior EPA determinations or guidance.

E. What authority does the EPA have?

    We retain the right, as provided by CAA section 111(c)(2), to 
enforce any applicable emission standard or requirement under section 
111. We also retain any authority in an individual standard that may 
not be delegated according to provisions of the standard and retain the 
authorities stated in the preceding delegation agreement.\45\ North 
Dakota first received approval to operate under an automatic delegation 
arrangement that was effective on December 8, 2014.\46\ (See 79 FR 
60993). The delegation tables as of now and how it would look if this 
proposal is finalized may be found in the docket for this action. The 
docket item ``Delegation of CAA Authorities Overview,'' also lists the 
authorities that cannot be delegated to any state or local agency.
---------------------------------------------------------------------------

    \45\ See the EPA's August 26, 2009 letter to Director Terry 
O'Clair, Division of Air Quality, North Dakota Department of Health, 
``Delegation of Clean Air Act New Source Performance Standards 
2009.''
    \46\ 79 FR 60993; October 9, 2014 (informing the public of EPA 
authorizing automatic delegation to North Dakota via letter from 
Carl Daly, Director Air Program, EPA Region 8, to Terry O'Clair, 
Director, Division of Air Quality, North Dakota Department of Health 
(February 27, 2014).
---------------------------------------------------------------------------

F. What information must the State provide to the EPA?

    The State must provide any information identified in the 
Performance Partnership Agreement to the EPA, in accordance with the 
terms of the Agreement.

G. What is the EPA's oversight role?

    The EPA oversees the State's decisions to ensure the delegated 
authorities are being adequately implemented and enforced. We will 
integrate oversight of the delegated authorities into the existing 
mechanisms and resources for oversight currently in place. We will 
initiate withdrawal of the program or rule if the corrective actions 
taken are insufficient.

H. Should sources submit notices to the EPA or the State?

    For the delegated NSPS standards and authorities covered by this 
proposed action, if finalized, sources would submit all of the 
information required pursuant to the general provisions and the 
relevant subparts of the delegated NSPS (40 CFR part 60) directly to 
the State. The State is the primary point of contact with respect to 
delegated NSPS. Sources do not need to send a copy to the EPA. For 
those standards and authorities not delegated as discussed above, 
sources must continue to submit all appropriate information to the EPA.

I. How will unchanged authorities be delegated to the State in the 
future?

    As stated in previous NSPS delegation actions, the EPA has approved 
North Dakota's mechanism of incorporation by reference of NSPS 
standards into the State regulations, as they apply to both part 70 and 
non-part 70 sources. See, e.g., 79 FR 60993. All future section 111 
requirements IBR into the State rules will become effective on the date 
the requirement goes into effect according to the State's updated rules 
and regulations. In the case of future adoption of section 111 
requirements, the EPA requests that North Dakota send notice of the 
State's intention to receive delegation of the requirements within 60 
days of its incorporation of those requirements into the State's rules 
and regulations. The notification should include an official copy of 
the regulation stamped, dated and signed by the appropriate official, 
with the date of adoption and the effective date in North Dakota. 
Within 30 days of receipt of North Dakota's notification, the EPA will 
reply with an acknowledgment of the delegation and will change the 
relevant Region 8 electronic delegations of authority table (found at: 
http://www2.epa.gov/region8/air-program) to reflect the new delegation 
of authority. If there is a change in the effective date for the 
section 111 requirement, North Dakota must notify the EPA as soon as 
possible. If the delay extends beyond the section 111 requirement 
compliance date, the EPA will implement and enforce the requirement 
until North Dakota has fully incorporated the requirement and the final 
effective date has passed.
    The State also has the option of receiving partial delegation of a 
section 111 requirement, and the option to cancel the delegation of 
authority to

[[Page 54542]]

implement and enforce previously adopted requirements. Automatic 
partial delegation of severable portions of any standard requires that 
the State: (1) Clearly define the separable subcategory in the 
particular standard, or the specific separable subset of affected 
sources in the specific standard so that regulated sources and the 
public know who is the implementing and enforcing authority; and (2) 
the applicable portions of the Federal standard must be adopted by IBR 
into the State regulations or rules with an additional, clear 
explanation of what portions of the standard are not included in the 
standard's adoption into the State rule. If the State does not want to 
use automatic delegation for any of its previously adopted section 111 
requirements, then the State may provide a list of those requirements 
which have been adopted and which the State wants to exclude from the 
delegation process to the EPA.

J. Proposed Action

    With this notice of proposed rulemaking, the EPA is providing 
public notice and opportunity for public comment on the Agency's 
intention to approve revisions to the State of North Dakota's section 
111 program for implementation and enforcement of NSPS requirements. 
The agency is also proposing straight delegation of all applicable 
implementation and enforcement authorities necessary to regulate 
section 111 sources covered by the relevant subparts of 40 CFR part 60 
incorporated unaltered into State code. This proposed delegation shall 
not be construed as extending to those part 60 subparts which cover 
existing sources that require EPA approval of a state plan that affects 
the implementation and enforcement of federal emissions guidelines for 
such source categories (section 111(d) sources); nor shall this 
proposed action be construed as delegating those authorities under 
section 111 of the Act and part 60 which are reserved by the 
Administrator of the EPA and not subject to delegation. The EPA is also 
proposing approval of revisions to the automatic delegation arrangement 
between the EPA and the State of North Dakota to accommodate the 
transfer of delegated NSPS implementation and enforcement from the NDDH 
to the NDDEQ.

V. Timing of Proposed Effective Dates

    All revisions to the title V operating permits program, and section 
111 and 112 programs would be federally enforceable as of the effective 
date of the EPA's approval of the respective revision and 
recodification of those programs, with the exception of the EPA's grant 
of interim approval of the part 70 program. The State plans to rely on 
the date when the EPA signs the final notice for purposes of notifying 
the state legislature that the EPA has approved these revisions, which 
will provide for the transfer authority from NDDH to NDDEQ to be 
effective under State law. Prior to the effective date of this 
approval, the State intends to take the necessary additional steps as 
specified in S.L. 2017, ch. 199, Section 1, to ensure that NDDEQ rules 
and the NDDEQ would become federally enforceable on the effective date 
of the EPA's approval. 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 the 
North Dakota Department of Health.

VI. Statutory and Executive Order Review

    Under the CAA, the Administrator is required to approve:
     A state permit 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 permit 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;
     A state program for receiving delegated authority to 
implement and enforce emission standards and other requirements for air 
pollutants subject to section 112 if such program complies with the 
provisions of the Act and applicable federal regulations. 42 U.S.C. 
7412(l); 40 CFR part 63, subpart E. Thus, in reviewing section 112 
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 parts 61 and 63; and
     A state program for receiving delegated authority to 
implement and enforce emission limitations for new stationary sources 
subject to section 111 if such program complies with the provisions of 
the Act and applicable federal regulations. 42 U.S.C 7411(c). Thus, in 
reviewing section 111 program submittals, the EPA's role is to approve 
state choices, provided they meet the criteria of the CAA and implement 
the requirements, standards and procedures defined in 40 CFR part 60.
    Accordingly, this action merely proposes to approve 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 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this 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 proposed 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).

List of Subjects in 40 CFR Parts 60, 61, 63, 70 and 72

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations,

[[Page 54543]]

Title V, New source performance standards, National emission standards 
for hazardous air pollutants, Maximum achievable control technology, 
Delegation of authority.

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

    Dated: October 24, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.
[FR Doc. 2018-23631 Filed 10-29-18; 8:45 am]
 BILLING CODE 6560-50-P


