Approvals Concerning Revisions to North Dakota's Environmental Protection Programs; Delay of Effective Dates
| Published date | 07 March 2019 |
| Citation | 84 FR 8260 |
| Record Number | 2019-03869 |
| Section | Rules and Regulations |
| Court | Environmental Protection Agency |
Federal Register, Volume 84 Issue 45 (Thursday, March 7, 2019)
[Federal Register Volume 84, Number 45 (Thursday, March 7, 2019)]
[Rules and Regulations]
[Pages 8260-8262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03869]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52, 60, 61, 63, 70, 271, and 281
[EPA-R08-OAR-2018-0616 EPA-R08-OAR-2018-0299 EPA-R08-RCRA-2018-0084 and
EPA-R08-UST-2018-0728; FRL9990-24]
Approvals Concerning Revisions to North Dakota's Environmental
Protection Programs; Delay of Effective Dates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; delay of effective dates.
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SUMMARY: Due to unforeseen delays resulting from the lapse in
appropriations for the Environmental Protection Agency (EPA), the EPA's
final approvals concerning revisions to North Dakota's environmental
protection programs that have the effect of transferring authority from
the North Dakota Department of Health (NDDH) to the newly-created North
Dakota Department of Environmental Quality (NDDEQ) are delayed until
April 30, 2019. This action delays the effective dates of the four
relevant rules, published in the Federal Register between December 19,
2018 and February 11, 2019.
DATES: The rule is effective April 30, 2019. The effective dates of the
rules published at 83 FR 65101 (December 19, 2018), 83 FR 65104
(December 19, 2018), 84 FR 1610 (February 5, 2019), and 84 FR 3108
(February 11, 2019), are delayed until April 30, 2019. See
SUPPLEMENTARY INFORMATION for details.
FOR FURTHER INFORMATION CONTACT: Mai Denawa, Office of Regional
Counsel, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-
1129; telephone number: 303-312-6514; email address:
denawa.mai@epa.gov.
SUPPLEMENTARY INFORMATION: Due to unforeseen delays that the lapse in
appropriations has caused, the effective dates for the rules listed in
the table below are revised to April 30, 2019. These actions relate to
the EPA's final approvals concerning revisions to North Dakota's
environmental protection programs that have the effect of transferring
authority to implement and enforce previously EPA-authorized/approved/
delegated/codified environmental protection programs from the North
Dakota Department of Health (NDDH) to the newly-created North Dakota
Department of Environmental Quality (NDDEQ). However, because EPA has
not issued final approvals for all the relevant environmental programs
to the NDDEQ, EPA is delaying the effective dates of the approvals that
have been finalized to allow for the transfer of all the programs to be
synchronized, allowing them to become effective without creating
uncertainty in the State entity that has EPA approval to implement
North Dakota's environmental programs.
The North Dakota legislature enacted North Dakota Senate Bill 2327
(S.L. 2017, ch. 199, Section 1) in 2017 to create the new NDDEQ. This
law requires that the transfer of authority from NDDH to NDDEQ will
only occur if the State has obtained all approvals from EPA to ensure
that the State will continue to meet federal requirements for the
respective environmental programs. For the programs described in the
below table (as well as the underground injection control program under
the Safe Drinking Water Act) that require notice and comment in the
Federal Register as part of the approval process for the revision, the
State is relying on the date that EPA signs the final notice as the
required ``approval'' under S.L. 2017, ch. 1. 199, Section 1. Once EPA
approves revisions to all relevant environmental programs, the State
intends to take the necessary additional steps as specified in S.L.
2017, ch. 199, Section 1, to ensure that the transfer in authority
would be effective under State law. EPA sought to ensure that NDDEQ
rules and the NDDEQ would become effective under State law prior to the
effective date of EPA's approvals. Otherwise, EPA would in effect
approve an agency that did not yet exist. Additionally, to prevent a
gap in an EPA-approved program while the transfer occurs for the
programs in the below table, our final notices noted that unless and
until the NDDEQ rules and agency become fully effective under federal
law, for purposes of federal law the EPA recognizes the State's program
as currently approved under NDDH. See 84 FR 1610 (February 5, 2019); 84
FR 3108 (February 11, 2019); 83 FR 65101 (December 19, 2018); 83 FR
65104 (December 19, 2018). Based on this process and our subsequent
conversations with the State, EPA had initially determined that our
approval of the revised programs in the below table should become fully
effective under federal law on March 15, 2019.
However, the lapse in appropriations has caused unforeseen delays
in completing issuance of the remaining necessary approvals.
Specifically, the underground injection control (UIC) program under the
SDWA is still pending final rule signature and review, though a
proposed rule has been published and the comment period has closed. (83
FR 62536, December 4, 2018). EPA is delaying the effective date of the
approvals in the below table because the March 15 effective date is no
longer feasible.
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Original New effective
Federal Register citation CFR part affected Title effective date date
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84 FR 1610, February 5, 2019 9... Part 52............ Approval and 3/15/2019 4/30/2019
Promulgation of
Implementation Plans;
North Dakota; Revisions
to Infrastructure
Requirements for All
National Ambient Air
Quality Standards;
Carbon Monoxide (CO);
Lead (Pb); Nitrogen
Dioxide (NO2); Ozone
(O3); Particle
Pollution (PM2.5,
PM10); Sulfur Dioxide
(SO2); Recodification.
84 FR 3108, February 11, 2019.... Parts 60, 61, 63, Approval of 3/15/2019 4/30/2019
70. Recodification and
Revisions to State Air
Pollution Control
Rules; North Dakota;
Interim Approval of
Title V Program
Recodification and
Revisions; Approval of
Recodification and
Revisions to State
Programs and Delegation
of Authority To
Implement and Enforce
Clean Air Act Sections
111 and 112 Standards
and Requirements.
[[Page 8261]]
83 FR 65101, December 19, 2018... Part 271........... North Dakota: Final 3/15/2019 4/30/2019
Authorization of State
Hazardous Waste
Management Program
Revisions.
83 FR 65104, December 19, 2018... Part 281........... North Dakota: Final 3/15/2019 4/30/2019
Approval of State
Underground Storage
Tank Program Revisions.
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The Agency's implementation of this action without opportunity for
public comment is based on the good cause exception in 5 U.S.C.
553(b)(B). Section 553(b)(B) of the Administrative Procedure Act
provides that, when an agency for good cause finds ``that notice and
public procedure thereon are impracticable, unnecessary, or contrary to
the public interest,'' an agency may issue a rule without providing
notice and an opportunity for public comment. EPA has determined that
there is good cause for making this rule final without prior proposal
and opportunity for comment because notice and public procedure are
impracticable and unnecessary. This rule will extend the effective date
of the final EPA approvals to ensure that the timing of these approvals
and DEQ's transfer comports with the above-described State and EPA
requirements. Issuing this extension in final form is urgent because
without it, the EPA approvals would go into effect well in advance of
the time that the State transfer of authority occurs. This would create
uncertainty about which entity would be implementing North Dakota's
environmental programs during the period between March 15 and North
Dakota's transfer of authority. The urgency arises because the lapse in
appropriations caused delays that were outside EPA's control. Thus,
prior notice and comment was impracticable.
Further, notice and comment are unnecessary because the effect of
this rule is inconsequential to the regulated communities' rights and
responsibilities under the various programs covered by the approvals,
as it does not significantly change the substantive obligations that
regulated entities must comply with. Rather, this notice affects the
timing of which entity--the NDDH or the NDDEQ--will implement North
Dakota's environmental programs. As described in our notices, we found
that the NDDEQ will have adequate resources to implement these
programs. Thus, there should not be any consequences to the regulated
community in terms of changed times to, for example, process permit
applications.
In addition, it is unnecessary to provide an additional opportunity
for comment as the reasoning for setting an effective date on the basis
of when the State transfer of authority would occur was fully described
in the approval actions and did not receive any public comment.
Although we are extending the effective date to April 30, 2019, the
reasoning for setting an effective date in conjunction with the State
transfer of authority continues to apply. The Agency therefore finds
that there is good cause under 5 U.S.C. 553(b)(B) to forego prior
notice and comment.
This action is effective immediately upon publication under 5
U.S.C. 553(d). Section 553(d) of the Administrative Procedure Act
(``APA'') provides that final rules shall not become effective until 30
days after publication in the Federal Register, ``except . . . as
otherwise provided by the agency for good cause,'' among other
exceptions. The purpose of this provision is to ``give affected parties
a reasonable time to adjust their behavior before the final rule takes
effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996);
see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir.
1977) (quoting legislative history). Thus, in determining whether good
cause exists to waive the 30-day delay, an agency should ``balance the
necessity for immediate implementation against principles of
fundamental fairness which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective date
of its ruling.'' Gavrilovic, 551 F.2d at 1105. There is a necessity for
immediate implementation of this rule because as described above--both
due to the State processes that are statutorily-prescribed, and the
delays in completing EPA's approvals due to the lapse in
appropriations--EPA's failure to amend the effective date would create
uncertainty in the State entity that would implement the State's
environmental programs on or after March 15. If the March 15 effective
date was not amended, NDDEQ would become the EPA-approved entity to
implement the programs described in the table above, yet NDDEQ would
not yet exist. Further, as previously discussed, this action will
affect the timing of which State entity will implement North Dakota's
environmental programs. Accordingly, this final rule will not require
affected persons to take action or change behavior to come into
compliance within the next 30 days. Furthermore, EPA believes that
making the rule effective upon publication will allow the EPA to
recognize the authorized/approved/delegated/codified program under DEQ
as applicable law without further delay. For these reasons, the EPA
finds that good cause exists under section 553(d)(3) to make this rule
effective immediately upon publication.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Greenhouse
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR Part 61
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, National emission standards for
hazardous air pollutants, Delegation of authority.
40 CFR Part 70
Environmental protection, Air pollution control, Intergovernmental
relations, Operating permit program, State acid rain program, Title V.
Dated: February 26, 2019.
Debra H. Thomas,
Acting Regional Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR Parts
52, 61, and 70 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Sec. 52.1820 [Amended]
0
2. In Sec. 52.1820(c), remove ``3/15/2019'' everywhere it appears and
add in its place ``4/30/2019''.
[[Page 8262]]
PART 61--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
0
3. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Sec. 61.04 [Amended]
0
4. In Sec. 61.04(c)(8), remove ``March 15, 2019'' and add in its place
``April 30, 2019'' and remove ``December 17, 2018'' and add in its
place ``February 26, 2019''.
PART 70--STATE OPERATING PERMIT PROGRAMS
0
5. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Appendix A to Part 70 [Amended]
0
6. In appendix A to part 70, the entry for North Dakota paragraph (d),
remove ``March 15, 2019'' and add in its place ``April 30, 2019'' and
remove ``March 19, 2020'' and add in its place ``May 1, 2020''.
[FR Doc. 2019-03869 Filed 3-6-19; 8:45 am]
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