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Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Rules and Regulations
approval requirements. This is a direct final action because the action is deemed noncontroversial and we do not expect adverse comments.
DATES: This direct final rule is effective on April 26, 2021 without further notice, unless the EPA receives adverse written comments on or before March 26, 2021. If adverse comments are received, the EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.
ADDRESSES: The EPA has established a docket for this action under Docket ID
No. EPAR08OAR20200722. All documents in the docket are listed in the www.regulations.gov index.
Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute.
Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically in www.regulations.gov.
To reduce the risk of COVID19
transmission, for this action we do not plan to offer hard copy review of the docket. Please email or call the person listed in the FOR FURTHER INFORMATION
CONTACT section if you need to make alternative arrangements for access to the docket.
FOR FURTHER INFORMATION CONTACT:
Gregory Lohrke, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD, 1595 Wynkoop Street, Denver, Colorado 802021129, 303 3126396, lohrke.gregory@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document we, us, and our means the EPA.

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I. Why is EPA using a direct final rule?
The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the Proposed Rules section of todays Federal Register publication, the EPA is publishing a separate document that will serve as the proposal to fully approve North Dakotas title V program revisions if relevant adverse comments are filed.
If the EPA receives adverse comments, the EPA will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on
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this action. Any parties interested in commenting must do so at this time.
II. Background Title V of the CAA as amended 42
U.S.C. 7401 et seq. directs states to develop, and submit to the EPA, programs for issuing operating permits to all major stationary sources and to certain other sources.1 As required under title V, the EPA has promulgated regulations establishing the minimum elements of an approvable state title V
program and defined the corresponding procedures by which the EPA will approve, oversee and, when necessary, withdraw approval of a state title V
program.2 After review of the states initial program submittal, the EPA may alternatively grant interim approval of a program which substantially meets the requirements of title V and part 70 but which is not fully approvable. In the case of such an interim approval, the EPA will specify the changes that must be made before the program can receive full approval and the state shall resubmit the modified program before expiration of the interim approval.3
North Dakota first received interim approval of its title V program effective August 7, 1995 60 FR 35335. North Dakotas program later received final, full approval effective on August 16, 1999 64 FR 32433. On August 6, 2018, the State of North Dakota submitted to the EPA a formal request for approval of title V program recodifications and revisions made to facilitate the transfer of permitting authority from the North Dakota Department of Health NDDH to a newly established North Dakota Department of Environmental Quality NDDEQ.4 During North Dakotas review of the NDAC for recodification and submittal to the EPA for approval, North Dakota found limitations in state law provisions for judicial review in state courts. Accordingly, the Attorney Generals Opinion that accompanied North Dakotas submission explained those limitations and committed to submit an addendum to the Opinion when the State adopted rules consistent with the full judicial review requirements in 40 CFR 70.4b3x xii.5 After review, the EPA found that the recodified and revised program substantially met the minimum requirements of the CAA and part 70, but that the EPA could not fully approve the program transfer until the State revised its rules to provide the full legal 1 42

U.S.C. 7661a.
CFR part 70.
3 42 U.S.C. 7661ag; 40 CFR 70.4e, f, i.
4 83 FR 53532 Oct. 30, 2018.
5 Id. at 54535.
2 40

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authority necessary for judicial review.6
Accordingly, the EPA promulgated an interim approval of North Dakotas title V program transfer effective March 15, 2019. EPA stated that interim approval would expire on March 19, 2020, and required the State to submit changes to the program addressing the judicial review deficiencies no later than six months prior to the expiration of the interim approval.7 A subsequent action delayed the interim approvals effective date to April 30, 2019, which then delayed the expiration date to May 1, 2020.8 Accordingly, North Dakotas program revisions addressing the judicial review deficiencies were due no later than November 1, 2019.
III. State Submittal In our action granting interim approval of North Dakotas title V
program transfer, the EPA concluded that North Dakotas title V program transfer was not fully approvable due to a lack of full authority required for judicial review.9 The EPA explained that interim approval would allow North Dakota to make minor revisions to NDAC section 33.1151406.8 and update the State Attorney Generals Opinion to reflect revised legal authorities.10 The EPA received an Addendum, dated December 12, 2018, to the August 16, 2018 State Attorney Generals Opinion Operating Permits Program August 16, 2018 Opinion, which states that the regulations regarding petitions for judicial review identified in the August 16, 2018
Opinion have been lawfully adopted and shall be fully effective by the time the program is approved. 11 The State of North Dakota also submitted clean and redlined copies of the revised NDAC section 33.1151406.8 with the December 12, 2018 Addendum to the Opinion, which are available in the docket for this action. The revisions to NDAC section 33.1151406.8 became effective on January 1, 2019.12
IV. Final Action The December 12, 2018 Addendum to North Dakotas Attorney Generals Opinion, together with the August 16, 6 84

FR 3108, 3109 Feb. 11, 2019.

7 Id.
8 84

FR 8260; see also 40 CFR part 70, appendix
A.
9 83

FR 54536.

10 Id.
11 Margaret I. Olson, Assistant Attorney General, Addendum to August 16, 2018 Attorney Generals Opinion Operating Permits Program, December 12, 2018.
12 North Dakota Administrative Code, Supplement 371, January 2019, https
www.legis.nd.gov/agency-rules/administrativerules-supplement last visited November 30, 2020.

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