[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Notices]
[Pages 22531-22532]
[FR Doc No: 2022-08096]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL OP-OFA-012]

Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General
Information<PHONE_NUMBER> or https://www.epa.gov/nepa.

Weekly receipt of Environmental Impact Statements (EIS)
Filed April 4, 2022 10 a.m. EST Through April 11, 2022 10 a.m. EST
Pursuant to 40 CFR 1506.9.

Notice

    Section 309(a) of the Clean Air Act requires that EPA make public
its comments on EISs issued by other Federal agencies. EPA's comment
letters on EISs are available at: https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

EIS No. 20220049, Final, FHWA, NY, Interstate 81 Viaduct Project,
Review Period Ends: 05/16/2022, Contact: Richard J. Marquis 518-431-
4127.
EIS No. 20220050, Final, FERC, LA, Hackberry Storage Project, Review
Period Ends: 05/16/2022, Contact: Office of External Affairs 866-208-
3372.
EIS No. 20220051, Draft Supplement, USACE, LA, West Shore Lake
Pontchartrain Hurricane and Storm Damage Risk Reduction Study, Comment
Period Ends: 05/31/2022, Contact: Landon D. Parr<PHONE_NUMBER>.
EIS No. 20220052, Draft, FHWA, IN, Mid-States Corridor Tier 1, Comment
Period Ends: 05/31/2022, Contact: Michelle Allen<PHONE_NUMBER>.

EIS No. 20220053, Final, MARAD, CA, Port of Long Beach Pier B On-Dock
Rail Support Project, Contact: Alan J. Finio<PHONE_NUMBER>.

    Under 49 U.S.C. 304a(b), MARAD has issued a single document that
consists of a final environmental impact statement (FEIS) and record of
decision (ROD). Therefore, the 30-day wait/review period under NEPA
does not apply to this action.

Amended Notice

EIS No. 20220021, Draft, USFS, AK, Mendenhall Glacier Visitor Facility
Improvements, Comment Period Ends: 05/09/2022, Contact: Monique Nelson
907-209-4090. Revision to FR Notice Published 03/04/2022; Extending the
Comment Period from 04/18/2022 to 05/09/2022.
EIS No. 20220035, Draft, NOAA, OR, Western Oregon State Forests Habitat
Conservation Plan, Comment Period Ends: 06/01/2022, Contact: Michelle
McMullin<PHONE_NUMBER>. Revision to FR Notice Published 03/18/2022;
Extending the Comment Period from 05/17/2022 to 06/01/2022.

    Dated: April 11, 2022.
Cindy S. Barger,
Director, NEPA Compliance Division, Office of Federal Activities.
[FR Doc. 2022-08096 Filed 4-14-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: May 27, 2008 (Volume 73, Number 102)]
[Rules and Regulations]
[Page 30308-30316]
[DOCID:fr27my08-8]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 60

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation of authority.

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

DATES: This action is effective on July 28, 2008 without further
notice, unless EPA receives adverse comment by June 26, 2008. If
adverse comment is received, EPA will publish a timely withdrawal of
the direct final rule in the Federal Register informing the public that
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-0617, by one of the following methods:
     http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER> (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT section if you are faxing
comments).
     Mail: Callie Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. Such deliveries are only accepted Monday
through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-0617. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA, without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm. For additional instructions on submitting
comments, go to section I. General Information of the SUPPLEMENTARY
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Amy Platt, EPA Region 8, at (303) 312-
6449, or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

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

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or ND mean the State of North Dakota, unless
the context indicates otherwise.
    (v) The initials NDDH mean or refer to the North Dakota Department
of Health.

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
http://regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.

    2. Tips for Preparing Your Comments. When submitting comments,
remember to:
    a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline
identified.

II. Background

    The Act requires States to follow certain procedures in developing
implementation plans and plan revisions for submission to us. Sections
110(a)(2) and 110(l) of the Act provide that each implementation plan
must be adopted after reasonable notice and public hearing.
    To provide for public comment, the North Dakota Department of
Health (NDDH), after providing notice, held a public hearing on May 4,
2006 to consider the revisions to the State Implementation Plan (SIP)
and Air Pollution Control Rules. Following the public hearing, comment
period, and legal review by the North Dakota Attorney General's Office,
NDDH adopted the revisions. The revisions to the Air Pollution Control
Rules became effective on January 1, 2007 and the revision to the SIP
chapter regarding an alternative monitoring plan for the Tesoro Mandan
Refinery became effective on February 27, 2007. The North Dakota
Governor submitted the SIP revisions to us with a letter dated March 8,
2007.

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

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

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

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

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

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

C. Chapter 33-15-14, N.D.A.C., Designated Air Contaminant Sources,
Permit To Construct, Minor Source Permit To Operate, Title V Permit To
Operate (Certain Sections Specific To Permit To Construct)

    In the Permit to Construct section, 33-15-14-02, subdivision 33-15-
14-02.13.c was revised. These revisions relate to certain sources that
will now be exempt from requirements for a permit to construct.
Specifically, an exemption was added for any internal combustion
engine, or multiple engines at the same facility, with a total combined
actual emission rate of 5 tons per year or less of any air contaminant
for which an ambient air quality standard has been promulgated in
section 33-15-02-04. Given that this revision reduces the stringency of
the rule, EPA requested a demonstration that the revision will not
interfere with attainment and maintenance of the National Ambient Air
Quality Standards (NAAQS), Prevention of Significant Deterioration of
Air Quality Increments (PSD Increments), or any other requirement of
the Clean Air Act.
    In a July 7, 2006 letter from Terry O'Clair, NDDH, to Richard Long,
EPA, NDDH provided results from a SCREEN3 \1\ modeling run which shows
that a typical internal combustion engine emitting 5 tons a year of
nitrogen dioxide (NO2) will not violate the NAAQS or PSD increments.
Based on AP-42 emission factors for this type of engine, NO2 has the
larger emission rate and would be the pollutant of concern, while CO
and PM emission rates are much lower for such engines and would not be
expected to threaten the NAAQS or PSD increments. As a result, EPA is
satisfied that this revision will not adversely impact the NAAQS or PSD
increments. Therefore, this revision is approvable.
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    \1\ SCREEN3 is a single source Gaussian plume screening model
which provides, among other things, maximum ground-level
concentrations for point, area, flare, and volume sources.
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    In addition, subdivision 33-15-14-02.13.o was revised to remove a
reference to subdivision n of subsection 1 of section 33-15-14-06.
Section 33-15-14-06, subsection 1, contains the State's definitions for
the Title V operating permits program. The previous reference to
subdivision n was to the definition of ``major source,'' and the
purpose of the reference was to define oil and gas production
facilities that either were or were not major sources. Now the
definition of ``major

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

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

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

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

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

IV. Section 110(l)

    Section 110(l) of the Clean Air Act states that a SIP revision
cannot be approved if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
towards attainment of the National Ambient Air Quality Standards
(NAAQS) or any other applicable requirements of the Act. There are no
nonattainment areas in North Dakota. The revisions to the general
provisions, open burning restrictions, and fugitive emissions
provisions are consistent with Federal requirements, clarifying in
nature, and will not interfere with requirements of the Act related to
administrative or procedural provisions. Although the revision to the
permitting provisions reduces the stringency of the rule, the State has
adequately demonstrated through modeling that it will not adversely
impact the NAAQS or PSD Increments. The revisions to SIP Chapter 8,
regarding the alternative monitoring plan for Tesoro's Mandan refinery,
adequately detail monitoring parameters, frequency of monitoring, wet
gas scrubber flow rate requirements, recordkeeping, and reporting
requirements to ensure that the refinery can comply with requirements
to continuously monitor opacity emissions and will be adequate to
ensure Tesoro complies with the SIP opacity limits that apply to the
FCCU at the Mandan Refinery. Therefore, these revisions do not
interfere with attainment or maintenance of the NAAQS or other
applicable requirements of the Act.

V. Delegation of Authority

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

Ref: 8P-AR

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

Re: Delegation of Clean Air Act New Source Performance Standards

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

Stephen S. Tuber

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

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

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

VI. Final Action

    EPA is approving revisions to the North Dakota SIP that involve
certain portions of the North Dakota Air Pollution Control Rules
regarding general provisions, open burning, permitting, and fugitive
emissions, as submitted by the Governor of North Dakota with a letter
dated March 8, 2007. Specifically, EPA approves revisions to the
following portions of the North Dakota Administrative Code (N.D.A.C.):
Chapter 33-15-01, General Provisions, sections 33-15-01-04 and 33-15-
01-05; Chapter 33-15-04, Open Burning Restrictions, sections 33-15-04-
01 and 33-15-04-02; Chapter 33-15-14, Designated Air Contaminant
Sources, Permit to Construct, Minor Source Permit to Operate, Title V
Permit to Operate, subsections 33-15-14-02.13.c. and 33-15-14-02.13.o.
(certain sections specific to permit to construct); and Chapter 33-15-
17, Restriction of Fugitive Emissions, subsection 33-15-17-02. In
addition, EPA approves revisions to North Dakota SIP Chapter 8,
``Source Surveillance,'' also submitted by the Governor of North Dakota
with his March 8, 2007 letter. Specifically EPA approves Section 8.3.1,
``Continuous Opacity Monitoring for Fluid Bed Catalytic Cracking Units:
Tesoro Refining and Marketing Co., Mandan Refinery.'' EPA is publishing
this rule without prior proposal because the Agency views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the ``Proposed Rules'' section of today's Federal Register, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed. This rule will
be effective on July 28, 2008 without further notice unless EPA
receives adverse comment by June 26, 2008. If EPA receives adverse
comment, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting must do so at this time.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.

VII. Statutory and Executive Order Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more

Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000). This action also
does not have Federalism implications because it does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
action merely approves a state rule implementing a Federal standard,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal
standard.
    In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 28, 2008. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 7, 2008.
Carol Rushin,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ--North Dakota

0
2. Section 52.1820 is amended to read as follows:
0
a. In the table in paragraph (c) by:
0
i. Revising the entries for ``33-15-01-04;'' ``33-15-01-5;'' ``33-15-
04-01;'' ``33-15-04-02;'' ``33-15-14-02;'' and ``33-15-17-02.''
0
ii. Adding entries in numerical order for ``33-15-04-02.1.b, 33-15-04-
02.1.e, 33-15-04-02.1.g, and 33-15-04-02.2.k;'' and ``33-15-14-02.13.c
and 33-15-14-02.13.o.''
0
iii. Removing the entry for ``33-15-14-02.5, 33-15-14-02.13.c, and 33-
15-14-02.13.i(5)'' and adding in its place a new entry for ``33-15-14-
02.5 and 33-15-14-02.13.i(5).''
0
b. In paragraph (d) by revising the table.
0
c. In the table in paragraph (e) by revising the entry ``(1)'' and by
adding entry ``(20)'' in numerical order.

Sec.  52.1820  Identification of plan.

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

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

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

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

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

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

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

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

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

    (d) EPA-approved source-specific requirements.

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

    (e) EPA-approved nonregulatory provisions.

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

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

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

PART 60--[AMENDED]

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

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

Subpart A--General Provisions

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

Sec.  60.4  Addresses.

* * * * *
    (c) * * *

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

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

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

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

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

* * * * *

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

BILLING CODE 6560-50-P


February 6, 2006

Ms. Deborah Edwards

Public Information and Records Integrity Branch

Office of Pesticide Programs

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460-0001

Re:	Azinphos Methyl Ecological Risk Assessment, Grower Impact
Assessments; Notice of 	Availability; Docket Identification Number
EPA-HQ-OPP-2005-0061

The U.S. Apple Association (USApple) is the national trade association
representing all segments of the apple industry.  Members include 36
state apple associations representing 7,500 apple growers throughout the
country, as well as over 300 individual firms involved in the apple
business.  We appreciate this opportunity to comment on the critical
need to maintain the use of azinphos methyl on apples.

Introduction

The U.S. Environmental Protection Agency’s (EPA) ecological risk
assessment conclusions are based on a highly conservative analysis that
is likely to overstate the ecological risk from azinphos methyl use.
The use of such a conservative analysis has the potential to harm apple
growers because growers rely on azinphos methyl for dependable and cost
effective insect control.  Without azinphos methyl, growers will lose
significant revenue, incur more fruit rejections from processors and
become less competitive at home and abroad.

USApple’s comments regarding EPA’s apple impact assessment are based
on input from university entomologists, crop consultants and growers.
USApple has attached documents and analysis received from technical
experts regarding the apple impact assessment.  This input clearly
demonstrates that apple growers will be forced to bear an unreasonable
economic burden if the azinphos methyl use is revoked.  In light of the
conservative nature of the ecological risk assessment and the great need
for this tool, USApple requests that EPA maintain the azinphos methyl
use.

Ecological Risks are Overestimated

EPA’s azinphos methyl ecological risk assessment identifies potential
risks from the use of azinphos methyl using a mathematical model.  This
model provides risk outputs based on a construct of theoretical
assumptions about how azinphos methyl might find its way into the
environment.  In this particular case, USApple believes the model
defines an overly conservative scenario that greatly exaggerates the
risk from azinphos methyl use.

Specifically, the spray drift model assumes that wind is always blowing
in the direction of its hypothetical farm pond at the highest allowable
wind velocity, the vegetation cover is sparse and the drift value is
multiplied by three.  The water model calculates loading of the
pesticide in the pond assuming that all orchards are composed of soils
with high runoff potential.  Additionally, the water model counts
pesticide runoff carried by water into the pond, counting only the
pesticide deposition and not the water.

This model compounds the pesticide loading scenario by restricting
natural out flow of the pond.  Also, it does not count the run off
reduction from the 25 foot buffer which is required on the azinphos
methyl label, and it does not include the run off reduction from a
vegetative buffer between the pond and the hypothetical farm field.
This assumption contradicts the real scenario in apple production.
These assumptions reflect the most conservative scenario for azinphos
methyl use, not a realistic scenario.

While such an approach may have its analytical benefits, USApple
believes it is important to keep in mind that the model outputs are
theoretical, and because they rely on exaggerated hypothetical
assumptions not based on real world information, they likely
overestimate the ecological risk from azinphos methyl.  The model used
by the agency would best be described as a screening tool, not a literal
gauge for risk.  As such, EPA should be cognizant of the model’s
limitations when weighing the risks and benefits of azinphos methyl use.

Model Assumptions Contradict Monitoring Data

EPA’s modeling scenario utilizes data that are inconsistent with
monitoring data measuring real azinphos methyl concentrations in water
bodies across the United States.  In its Pennsylvania air blast modeling
scenario EPA generates a concentration of 15.1 parts per billion (ppb)
and 9.9 ppb for its Oregon air blast scenario.  However, STORET and U.S.
Geological Survey (USGS) monitoring data indicate azinphos methyl
concentrations are mostly 1 ppb or less, with two peak values of less
than 4 ppb between 1990 and 2005.  After 2001, the highest
concentrations from actual monitoring data were 0.75 ppb in Oregon and
less than 0.05 ppb in Pennsylvania.

Additionally, EPA’s ecological risk assessment fails to provide the
full context when discussing azinphos methyl detections in Washington
state.  While stating on pages 39-40 that azinphos methyl was detected
in a high percentage of samples collected by USGS in 1999 and 2000, the
agency does not mention that more than 95 percent of the detections were
below 0.1 ppb.  The assessment also omits USGS data that would reflect
significant usage changes resulting from azinphos methyl label changes
in 2002 and 2003.  USGS data indicate that between 2001 and 2004 in
Washington state there were 408 azinphos methyl samples with a maximum
value of 0.18 ppb with only 7 samples with concentrations above 0.05
ppb.

The weight of the evidence from available monitoring data indicates that
azinphos methyl concentrations are significantly lower than the
hypothetical values used in the ecological risk model to calculate
ecological impacts from azinphos methyl.  Additionally, the monitoring
data indicate that these values have continued to decline as EPA has
imposed greater restrictions on azinphos methyl use.  These factors are
strong indicators that EPA’s model overestimates the ecological risk,
since real measurements of azinphos methyl are significantly lower than
the hypothetical values used in the model.

Finally, the absence of recent adverse ecological incidences indicates
that previous label modifications have been effective in reducing the
ecological impact of azinphos methyl use.  The dearth of such incidents
also suggests that EPA’s theoretical risk model overstates the real
risk from azinphos methyl use.  As an example, most previous incidents
were caused by uses on cotton or sugarcane which are no longer labeled
for use.  Additionally, there have been no reported incidents since
2001.

Benefits Assessment - Western United States

Washington State University’s Dr. Jay F. Brunner provided USApple an
analysis of EPA’s apple impact assessment for Washington state.  This
analysis is attached for your review.  Brunner provides general comments
regarding the spectrum of pests controlled by azinphos methyl, the use
of mating disruption in Washington, alternative insecticides for codling
moth control and a discussion of assumptions regarding scenarios used to
evaluate the potential impact of the loss of azinphos methyl.  Brunner
makes the following points in his analysis:

EPA’s phosmet substitution scenario and its alternative chemicals
scenario are possible scenarios, but the mating disruption scenario
would not a viable alternative for western growers, since it would be
generally ineffective in controlling codling moth.

EPA’s insecticide cost estimates are too low.

EPA should use application rates that provide effective control in its
analysis, not average rates from a national survey.

EPA should include an additional cost of $20 per acre in its cost
calculation to account for additional applications of alternative crop
protection materials.

Processors are as strict in rejecting fruit damaged by worms as fresh
packers.

Orchards with high codling moth populations are difficult to control
with phosmet, mating disruption or alternative chemicals.

Long term use of neonicotinyl insecticides are likely to increase spider
mite populations and could require greater miticide applications.

While novaluron use could reduce the cost of leafroller control,
preliminary evidence suggests it will also disrupt biological spider
mite control.

EPA’s alternative chemical scenario should include yield losses
because the azinphos methyl alternatives require much more precise
timing and coverage.  Growers will need an adaptive period to learn how
to use the new alternatives and avoid failures caused by imprecise
timing or inadequate coverage.

Benefits Assessment – New York

Cornell University entomologist Dr. Arthur M. Agnello provided USApple
with a summary of EPA’s grower impact assessment, which is attached.
Agnello makes the following points in his summary:

Unlike other apple growing regions across the United States, codling
moth is not the primary target pest for azinphos methyl applications in
New York.

Mating disruption is rarely used in New York, since more than one insect
pest species is present in orchards, which would require more than one
type of pheromone dispenser.  Mating disruption is still under
evaluation in New York and would not be considered a likely grower
response if azinphos methyl use were revoked.  Additionally, mating
disruption would not control plum curculio or apple maggot.

Novaluron is not currently registered in New York.

Phosmet substitution for azinphos methyl is a reasonable scenario in New
York and some growers are already substituting phosmet for azinphos
methyl, because of its efficacy on the plum curculio and apple maggot
and restrictions on the use of azinphos methyl.

Substituting alternative chemicals for azinphos methyl would provide
adequate efficacy, but cost 2.9-3.3. times more than azinphos methyl
programs.

A four year U.S. Department of Agriculture Risk Avoidance and Mitigation
Program project conducted in six eastern states demonstrated that
reduced risk pesticides provide equivalent control when compared to
conventional programs, but they cost 45-130 percent more to implement.

Benefits Assessment – Pennsylvania

Pennsylvania State University entomologists Drs. Greg Krawczyk and Larry
A. Hull and North Carolina State University entomologist Dr. James
Walgenbach provided a summary regarding the impact of the loss of
azinphos methyl on apple growers in the mid-Atlantic and Appalachian
apple growing regions.  Krawczyk makes the following points in his
analysis which is attached:

Damage from codling moth, oriental fruit moth, European apple sawfly,
plum curculio and apple maggot have caused processors to reject nearly
3,000 truck loads of apples since 1998.  Processors reject entire truck
loads of apples if a single live insect larva is found during
inspections.

Azinphos methyl is also used to control obliquebanded leafroller, tufted
apple bud moth, red banded leafroller and other insects.  However, EPA
does not include the additional cost that would be incurred to control
these insects if azinphos methyl were no longer available for use on
apples.

Under EPA scenario I, Pennsylvania growers could probably substitute one
azinphos methyl application with a single application of phosmet, but at
a much higher rate and at an increased cost of $54-$75 per acre.
Additional fruit damage would also be expected.

Under scenario II, growers would incur additional costs of approximately
$90 per acre.

Scenario III would result in greater costs of approximately $80 per acre
to control codling moth, but the additional costs to control other
insects are not included and not counted in the EPA analysis.

Additional necessary orchard monitoring and management costs are not
included in EPA’s alternative chemical scenario.

Significant grower education will be needed for growers to effectively
use alternative chemicals which require precise timing and better
application.

Benefits Assessment – Michigan

Michigan State University entomologist Dr. Larry Gut provided a summary
of four years of research on the use of organophosphate (OP) replacement
chemicals in apple production.  Gut makes the following points in his
summary which is attached:

The use of OP alternative chemicals provided equivalent efficacy as
compared to OPs and other chemicals.  However, the cost of the
alternative chemical program was 2-3.1 times higher and grower revenue
was reduced by approximately $255 per acre.

The reduction in revenue does not include the additional costs for
monitoring and management that would be necessary under the alternative
program.

Gut estimates Michigan growers would lose more than $10 million in
revenue each year if the cost of monitoring and management are included.
 Total Michigan revenue from apple production in 2004 was $90 million.

Benefits Assessment – California

Agricultural pest management consultant Michael A. Devencenzi provided
USApple a summary of his observations regarding EPA’s apple impact
assessment.  Devencenzi makes the following points which are attached:

Substituting phosmet for azinphos methyl according to scenario I would
not provide adequate codling moth control, since phosmet’s 10 day
active residual period is less than azinphos methyl’s 21 day active
residual period.  A more realistic scenario would substitute six
applications of phosmet, but cost $184.20 more than the one azinphos
methyl application.

Acetamiprid is not sufficiently efficacious in controlling codling moth
in California, especially with high populations of codling moth.
Preliminary thiacloprid trials indicate that it performs poorly within
high population situations, and the 30 day preharvest interval is a
concern for growers trying to control codling moth hatching during
harvest.

Novaluron is not currently registered in California.

The cost for azinphos methyl alternatives are more expensive, and do not
provide the same level of control

One application of azinphos methyl would not be insufficient when used
with mating disruption.  Growers using mating disruption presently use
three applications of azinphos methyl.

Mating disruption does not work on small orchards and they are
susceptible to codling moth infestation from host species in the
vicinity of apple orchards.

Organic growers sustain 20 percent losses while using mating disruption,
three applications of spinosad and 9 granulosis virus applications.

Azinphos methyl is currently irreplaceable.

Summary – Benefits Assessment

EPA’s scenarios provide a structure to analyze the potential impact of
the loss of azinphos methyl.  While some of these scenarios are
plausible responses and possibly adequate scenarios to control the apple
insect pests, they are not economically feasible and they do not capture
the complex set of changes that would be set in motion by the loss of
such a critical element in the current biological system.  The current
system is in a delicate balance.  Disrupting the system will lead to a
series of predictable and unpredictable events.  While the United
States’ most renowned experts in apple insect control have provided
their best predictions of the loss of azinphos methyl, every outcome
regarding its potential loss is not presently known.

Growers are concerned that the loss of azinphos methyl will lead to the
emergence of unanticipated secondary pests, which will be difficult to
control with available alternatives, or resistance will develop among
remaining alternatives.   Early experience with the alternative reduced
risk pesticides suggests that mite populations may be stimulated by
their use, while entomologists explore the possibility of cross
resistance between neonicotinyl pesticides and organophosphates.

The control system outlined in EPA’s scenario II would require
significant adjustment by growers, since the alternatives work
differently; require more precise application timing and better
application coverage.  During this adjustment phase failures are likely.
 However, EPA does not include quality and yield losses in its
assessment for this scenario.

Alternate row middle application methods, which are prevalent in the
Appalachian region, may not provide sufficient chemical coverage for
proper efficacy.  As a result, application costs are likely to increase
because growers will need more time to make applications to the same
amount of acreage.

Processor Rejections

Apple growers are expected to deliver perfect fruit to its customers, so
growers must do whatever is necessary to ensure their fruit is delivered
without insect damage.  While it is generally accepted that fresh market
fruit must meet this standard it is mistakenly assumed that processors
accept apples with worm damage.

Processors do not accept worm damage because they are required by the
Food and Drug Administration (FDA) to meet strict standards for
wholesomeness when processing apple products.  Processors must minimize
the amount of insect damage in their products to meet consumer demand
for pure and wholesome products and to meet FDA standards.  To comply
with these strict standards processors reject entire truck loads of
apples if even one larva is found in an inspection.

Export Market Demands

The apple industry exports nearly a quarter of its fresh market
production to markets around the world.  In some markets, strict
phytosanitary protocols govern the standards for the presence of certain
quarantine pests.  Taiwan, the apple industry’s third largest apple
market allows only three codling moth larvae detections each year.  All
apples exported from California and Washington must meet this standard
to prohibit the introduction of codling moth in Taiwan.  In 2004, the
U.S. apple industry exported 2.3 million cartons of apples to Taiwan.

Last year, three codling moth larvae were detected by early December
resulting in the loss of the Taiwan market for the balance of the 2004
crop season.  The loss of the Taiwan market caused Fuji apple prices to
drop from an over supply of Fuji apples in the U.S. domestic market.
Taiwan has detected two codling moth larvae this season.  An additional
detection will lead to the loss of the Taiwan market again this season.

Azinphos methyl is a dependable and economical tool to control codling
moth.  The loss of this important tool will lead to disruptions in the
current system, make it more difficult to control codling moth and
potentially jeopardize the industry’s access to the Taiwan apple
market.

Additionally, new alternatives such as the neonicotinyl pesticides are
unlikely to acquire CODEX maximum residue levels (MRLs) which are needed
in some export markets.  Without CODEX MRLs some markets would be off
limits to U.S. exporters if the chemical were used by apple growers.

Import Threats and International Competitiveness

The People’s Republic of China has petitioned the U.S. Department of
Agriculture (USDA) for access to the U.S. apple market.  USDA’s Animal
and Plant Health Inspection Service (APHIS) is in the early stages of a
review process that could ultimately permit imports of fresh apples from
China.  The general absence of regulations or regulatory requirements
along with China’s low labor costs makes China a formidable
competitor.  In 1995, China’s exports of apple juice concentrate to
the United States were infinitesimal.  In 2004, China was the dominate
supplier of apple juice concentrate in the United States with a 57
percent market share.

Other apple producing countries continue to put pressure on U.S.
producers domestically and in export markets around the world.  The loss
of azinphos methyl in this environment of intense competition will make
U.S. apple producers less competitive and vulnerable to erosion of U.S.
market share here and abroad.

Economic Vulnerability

Available statistics do not provide an accurate picture of profitability
in the apple industry.  However, knowledgeable experts in the apple
industry report that growers are not thriving economically.  Lighter
apple crops in 2002 and 2003 boosted prices, and provided a respite to
the desperate economic situation the apple industry faced from 1996
through 2001.

Over the last two years apple production has increased while the apple
industry has coped with export impediments in Mexico and Taiwan.  More
apple marketing firms have recently gone out of business and growers are
under greater and greater economic stress.  Margins for processing apple
growers are razor thin and urban sprawl continues to put greater
pressure on growers to sell barely profitable orchard operations.

A decision by EPA to revoke the use of azinphos methyl on apples will
accelerate the loss of orchard operations and harm apple growers.  It is
likely that growers will not have the means to profitably control
insects without azinphos methyl.  Their only choice will be to reduce
acreage, thus reducing supply or to abandon their orchards.  Processing
apple growers will find it particularly difficult to afford EPA’s
Scenario II, since margins for processing apples are small.  Many
growers would be much more likely to rely on pyrithroids and other more
economic alternatives.  This response will eventually lead to greater
miticide applications and future resistance problems with pyrithroids
and miticides.

Without azinphos methyl, growers will be forced to adopt the more
expensive options which will further reduce revenue.  Some of these
growers, and possibly a significant number, will choose to sell their
orchards to developers for housing developments.  Much of the apple
acreage in New York’s Hudson Valley, Maryland, Pennsylvania, West
Virginia, Virginia, Michigan and New England is under pressure for
commercial development.  Loss of azinphos methyl will certainly
accelerate the conversion of orchard landscapes to tract housing and
shopping malls in these regions.

This scenario is a stark reality for apple growers who are present day
stewards of orchard operations that have been their family’s
businesses for generations.  Abandoning that tradition would cause
individual families considerable distress.  USApple suggests that EPA
should consider this outcome and find a way to factor it in to its
decision to maintain or revoke the apple use.

USApple appreciates this opportunity to provide EPA with information
regarding the use of azinphos methyl on apples.

Please contact me by telephone at<PHONE_NUMBER> or via e-mail at
HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>if you
have questions or need additional information.

Sincerely yours,

James R. Cranney, Jr.

Vice President

cc:		USApple Board of Trustees

Attachments: 	Agnello

		Brunner

		Devencenzi

		Krawczyk

		Gut

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703 442-8850

800 781-4443

fax<PHONE_NUMBER>

Web site www.usapple.org

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