Approval and Promulgation of Air Quality Implementation Plans; North Dakota; Revisions to the Air Pollution Control Rules, 25652-25656 [2011-10995]

Download as PDF emcdonald on DSK2BSOYB1PROD with PROPOSALS 25652 Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Proposed Rules preparation, college completion, and a ‘‘First in the World’’ competition. For those unable to attend one of the policy roundtable discussions, we will also accept written comments and suggestions on the topics discussed at the roundtable. The Department intends to use these roundtable discussions to inform our postsecondary education policies in three key areas—teacher preparation, college completion, and the proposed ‘‘First in the World’’ grant competition, proposed in the President’s fiscal year (FY) 2012 budget under the Fund for the Improvement of Postsecondary Education (FIPSE). The three roundtable discussions at each of the four locations announced above will each focus on one of these areas. The first topic will be the design and implementation plans for teacher preparation programs. We will discuss: (1) The proposed Presidential Teaching Fellows program along with the already authorized Honorable Augustus F. Hawkins Centers for Excellence program (subpart 2, part B, title II of the HEA) for which the Administration has requested funding; (2) ways in which the Department can streamline institutional reporting requirements; and (3) State identification of low-performing teacher preparation programs pursuant to sections 205 and 207 of the HEA. A second topic will be college completion, with a focus on obtaining information about State-level reform efforts that show the most promise for increasing college completion. We will also discuss the College Completion Incentive Grants program, proposed in the President’s fiscal year (FY) 2012 budget, which would encourage States to make systemic reforms in their higher education systems to increase the number of students who complete a postsecondary degree or certificate program and also reward institutions within those States that increase their completion rates. The third topic will be possible priorities and structure for the (FIPSE) ‘‘First in the World’’ competition. The purpose of this discussion is to obtain information about institutional reform efforts that show the most promise for increasing college completion, expanding institutional capacity, and improving quality of student outcomes. This input will be used to inform the development of competitive preferences and invitational priorities and the structure of the FIPSE ‘‘First in the World’’ competition. While the Department is inviting representatives of students, families, teachers, teacher educators, college access professionals, and college VerDate Mar<15>2010 19:33 May 04, 2011 Jkt 223001 success practitioners to participate in these roundtable discussions, the roundtable discussions will also be open to the public, with opportunities to provide public comment. Individuals desiring to participate in the roundtable discussions must register by sending an email to HigherEducationRoundtable. 2011@ed.gov. The email should include the name of the participant and his or her affiliation, and identify which policy roundtable discussion she or he would like to participate in, and at which location. We will attempt to accommodate each participant’s preference but, if we are unable to do so, we will make the determination based on the time and date the email was received. The Department will notify each registrant by email of the specific location and roundtable discussion he or she was selected to participate in. An individual may only participate in one roundtable discussion per location. If we receive more registrations than we are able to accommodate, the Department reserves the right to reject the registration of an entity or individual that is affiliated with an entity or individual that is already scheduled to participate in the same roundtable discussion, and to select among registrants to ensure that a broad range of entities and individuals are allowed to present. We will accept walk-in participants on a first-come first-served basis beginning at 8:30 a.m. on the day of each roundtable discussion at the Department’s on-site registration table. The public hearing/roundtable sites are accessible to individuals with disabilities. Individuals needing an auxiliary aid or service to participate in the hearing or a roundtable discussion (e.g., interpreting service, assistive listening device, or materials in alternative format), should notify the contact person identified for information about hearings listed under FOR FURTHER INFORMATION CONTACT in this document in advance of the scheduled hearing date. Although we will attempt to meet any request we receive, we may not be able to make available the requested auxiliary aid or service if we do not have sufficient time to arrange it. Schedule for Negotiations We anticipate that any negotiated rulemaking committees established after these public hearings will begin negotiations in August or September 2011, with each committee meeting for up to three sessions of approximately three days at roughly monthly intervals. The committees will meet in the Washington, DC area. The dates and PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 locations of these meetings will be announced in a subsequent document in the Federal Register, and will be posted on the Department’s Web site at: http://www2.ed.gov/policy/highered/ reg/hearulemaking/2011/hearings.html. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: http://www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: http:// www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Program Authority: 20 U.S.C. 1022– 1022h, 1098a. Dated: April 28, 2011. Eduardo M. Ochoa, Assistant Secretary for Postsecondary Education. [FR Doc. 2011–10909 Filed 5–4–11; 8:45 am] BILLING CODE 4000–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R08–OAR–2009–0556; FRL–9302–3] Approval and Promulgation of Air Quality Implementation Plans; North Dakota; Revisions to the Air Pollution Control Rules Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing to approve revisions to the North Dakota State Implementation Plan that the Governor of North Dakota submitted with a letter dated April 6, 2009. The revisions affect North Dakota’s air pollution control rules regarding general provisions (including rules regarding shutdowns and malfunctions), ambient air quality standards, emissions of particulate matter, permitting, and fees. In addition, EPA is proposing administrative corrections to the regulatory text for SUMMARY: E:\FR\FM\05MYP1.SGM 05MYP1 emcdonald on DSK2BSOYB1PROD with PROPOSALS Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Proposed Rules North Dakota that will be codified in the Code of Federal Regulations; we made errors in the identification of plan table when we approved the North Dakota State Implementation Plan revisions for Interstate Transport of pollution, which the Governor also submitted on April 6, 2009. This action is being taken under section 110 of the Clean Air Act. DATES: Comments must be received on or before June 6, 2011. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R08– OAR–2009–0556, by one of the following methods: • http://www.regulations.gov. Follow the on-line instructions for submitting comments. • E-mail: Fallon.Gail@epa.gov. • Fax: (303) 312–6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT section if you are faxing comments). • Mail: 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–2009– 0556. 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 VerDate Mar<15>2010 19:33 May 04, 2011 Jkt 223001 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 at 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: Gail Fallon, EPA Region 8, Mailcode 8P–AR, 1595 Wynkoop Street, Denver, CO 80202–1129, (303) 312–6281, Fallon.Gail@epa.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. General Information II. Background III. Analysis of SIP Revisions IV. Corrections to Regulatory Text V. Section 110(l) VI. Proposed Action VII. Statutory and Executive Order Reviews Definitions For the purpose of this document, the following definitions apply: (i) The words or initials Act or CAA mean or refer to the Federal 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. PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 25653 (iii) The initials SIP mean or refer to State Implementation Plan. (iv) The initials NAAQS mean or refer to the National Ambient Air Quality Standards. (v) The words State or ND mean the State of North Dakota, unless the context indicates otherwise. (vi) 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. E:\FR\FM\05MYP1.SGM 05MYP1 25654 Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Proposed Rules 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 October 7, 2008 to consider the revisions to the 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 April 1, 2009. The North Dakota Governor submitted the SIP revisions to us with a letter dated April 6, 2009. This submittal also included (1) SIP revisions to address Interstate Transport requirements related to the 1997 8-hour ozone and PM2.5 NAAQS, which we acted on in 2010 (75 FR 31290, June 3, 2010, and 75 FR 71023, November 22, 2010), and (2) SIP revisions (commonly referred to as ‘‘infrastructure’’ requirements) to address implementation of current NAAQS for PM10, PM2.5, and ozone, which we will be acting on separately. In our June 3, 2010 and November 22, 2010 actions on North Dakota’s Interstate Transport SIP revisions, we made errors in the identification of plan table located in 40 CFR 52.1820(e). We describe these errors in section IV, below. emcdonald on DSK2BSOYB1PROD with PROPOSALS III. Analysis of SIP Revisions The SIP revisions in the April 6, 2009 submittal that we are proposing to act on in this document involve the following chapters of the North Dakota Administrative Code (N.D.A.C.): 33–15– 01, ‘‘General Provisions;’’ 33–15–02, ‘‘Ambient Air Quality Standards;’’ 33– 15–05, ‘‘Emissions of Particulate Matter Restricted;’’ 33–15–14, ‘‘Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate;’’ and 33–15–23, ‘‘Fees.’’ The following is our description and analysis of the revisions. A. Chapter 33–15–01, N.D.A.C., General Provisions The State revised sections 33–15–01– 04, 33–15–01–05, and 33–15–01–13 and submitted the entire revised sections to us for approval. In section 33–15–01–04, the State made the following changes: (1) The State revised the definition of VerDate Mar<15>2010 19:33 May 04, 2011 Jkt 223001 ‘‘air contaminant’’ to add the words, ‘‘emitted to the ambient air’’ to the end of definition; (2) the State added definitions for ‘‘excess emissions’’ and ‘‘PM2.5;’’ (3) the State re-numbered the definitions to account for the addition of new definitions; and (4) the State crossreferenced and incorporated by reference the version of 40 CFR 51.100(s) as it existed on March 1, 2008 for purposes of defining ‘‘volatile organic compounds’’ (the prior date used was January 1, 2006). These changes are minor and are consistent with relevant CAA and regulatory requirements. In section 33–15–01–05, the State added abbreviations for PM and PM2.5. These revisions are minor and are consistent with the CAA. The State made several revisions to 33–15–01–13, ‘‘Shutdown and Malfunction of an Installation— Requirement for notification.’’ In 33–15– 01–13.1, ‘‘Maintenance shutdowns,’’ the State adopted new subdivision f, which reads, ‘‘Nothing in this subsection shall in any manner be construed as authorizing or legalizing the emission of air contaminants in excess of the rate allowed by this article or a permit issued pursuant to this article.’’ Previously, we had been concerned that the language of 33–15–01–13.1 could be construed as exempting from enforcement excess emissions during shutdown of air pollution control equipment for scheduled maintenance. EPA’s interpretation is that the CAA requires that all periods of excess emissions, regardless of cause, be treated as violations and that automatic exemptions from emissions limits are not appropriate.1 Subdivision f clarifies 1 This interpretation has been expressed in several documents. Most relevant to this action are the following: Memorandum dated September 28, 1982, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation, entitled ‘‘Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions’’ (the 1982 Memorandum); a clarification to that memorandum from Kathleen M. Bennett issued on February 15, 1983 (the 1983 Memorandum); and a memorandum dated September 20, 1999 entitled ‘‘State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,’’ from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation (the 1999 Memorandum). As explained in these memoranda, because excess emissions might aggravate air quality so as to prevent attainment and maintenance of the NAAQS and compliance with other CAA requirements, EPA views all periods of excess emissions as violations of the applicable emission limitation. Therefore, EPA will disapprove SIP revisions that automatically exempt from enforcement excess emissions claimed to result from an equipment malfunction. In addition, as made explicit in the 1999 Memorandum, EPA will disapprove SIP PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 that excess emissions are not authorized during maintenance shutdowns. Subdivision f is consistent with CAA requirements. In 33–15–01–13.2, ‘‘Malfunctions,’’ the State removed certain language and added other language. In 33–15–01– 13.2.a, the State removed language indicating that the State could permit the continued operation of an installation during a malfunction resulting in a violation of an emissions limit. We were concerned that this language could be construed to exempt excess emissions caused by malfunctions when the State granted permission to continue operations. EPA’s interpretation is that such an exemption would be inconsistent with the CAA. The removal of the language is consistent with CAA requirements. The State added 33–15–01–13.2.c to 33–15–01–13.2. This new subdivision c identifies procedures sources and the State will follow with respect to unavoidable malfunctions. Where a source believes that excess emissions have resulted from an unavoidable malfunction, the source must submit a written report to the State that includes evidence relevant to six criteria specified in the rule. The report must be submitted within thirty days of the end of the calendar quarter in which the malfunction occurred or within thirty days of a written request by North Dakota, whichever is sooner. The rule provides that North Dakota will evaluate the information submitted by the source on a case-by-case basis to determine whether to pursue enforcement action and that North Dakota may elect not to pursue enforcement action after considering whether excess emissions resulted from an unavoidable equipment malfunction. The rule also provides that the burden of proof is on the source to provide sufficient information to demonstrate that an unavoidable equipment malfunction occurred. Under EPA’s interpretations of the CAA as set forth in the 1982, 1983, and 1999 Memoranda, if a state in its SIP chooses to address violations that occur as a result of claimed malfunctions, the state may take two approaches. The first, the ‘‘enforcement discretion’’ approach, allows a state director to refrain from taking enforcement action for a violation if certain criteria are met. The second, the ‘‘affirmative defense’’ approach, allows a source to avoid penalties if it can prove that certain revisions that give discretion to a state director to determine whether an instance of excess emissions is a violation of an emission limitation, because such a determination could bar EPA and citizens from enforcing applicable requirements. E:\FR\FM\05MYP1.SGM 05MYP1 emcdonald on DSK2BSOYB1PROD with PROPOSALS Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Proposed Rules conditions are met. North Dakota’s 33– 15–01–13.2.c follows the enforcement discretion approach. We have evaluated North Dakota’s enforcement discretion provisions for excess emissions caused by unavoidable equipment malfunctions and find that they are consistent with EPA’s interpretations of the CAA as described in the memoranda above. In particular, the criteria specified in 33–15–01–13.2.c that the State will consider in deciding whether to pursue an enforcement action generally parallel the criteria outlined in the 1982 and 1983 Memoranda. As noted in footnote 1, above, the 1999 Memorandum also discusses a point not explicitly addressed in North Dakota’s new rule—i.e., EPA will not approve SIP revisions that recognize or appear to recognize a state’s decision not to pursue enforcement as barring enforcement action by EPA or citizens. Rule 33–15–01–13.2.c only addresses the State’s exercise of its enforcement discretion and contains no language suggesting that a State decision not to pursue an enforcement action for a particular violation bars EPA or citizens from taking an enforcement action. Therefore, EPA interprets the rule, consistent with EPA’s interpretations of the CAA, as not barring EPA and citizen enforcement of violations of applicable requirements when the State declines enforcement. In 33–15–01–13.3, ‘‘Continuous emission monitoring system failures,’’ the State removed the phrase, ‘‘acceptable to the department,’’ from the text, ‘‘When a failure of a continuous emission monitoring system occurs, an alternative method, acceptable to the department, for measuring or estimating emissions must be undertaken as soon as possible.’’ Following this sentence, the State added a new sentence that reads as follows: ‘‘The owner or operator of a source that uses an alternative method shall have the burden of demonstrating that the method is accurate.’’ We had asked the State to remove the language ‘‘acceptable to the department’’ from the rule and find that the new language is consistent with CAA requirements. In previous rulemakings, we referenced an April 11, 2003 submission of revisions to 33–15–01–13 and indicated that we would act on that submission at a later date. See 69 FR 61762, October 21, 2004; 70 FR 45539, October 8, 2005; and 71 FR 3764, January 24, 2006. However, in an August 17, 2009 letter, North Dakota advised EPA that the April 11, 2003 submission erroneously indicated there had been revisions to 33–15–01–13.1.d, VerDate Mar<15>2010 19:33 May 04, 2011 Jkt 223001 25655 and that in fact the cited revisions to 33–15–01–13.1.d had not been adopted and were not submitted to EPA with the Governor’s April 11, 2003 letter. Therefore, there are no remaining revisions from the April 11, 2003 submittal awaiting EPA’s action. 15–14. It does not affect emission limits in the SIP or other requirements that would affect ambient concentrations of criteria pollutants. It also does not affect the applicability of 40 CFR part 63 requirements. This change is consistent with CAA requirements. B. Chapter 33–15–02, N.D.A.C., Ambient Air Quality Standards Table 1 was revised to amend the PM10 and ozone standards and to add the 2006 PM2.5 standard. These revisions were made to reflect the Federal standards and are consistent with CAA requirements. E. Chapter 33–15–23, N.D.A.C., Fees The State revised section 33–15–23– 03, ‘‘Minor source permit to operate fees.’’ The State simplified the definition of a ‘‘designated’’ source. (The rule establishes a fee for designated sources.) The State also expanded the exemption from fees for State government facilities to include local government facilities. This latter revision simply codified the State’s standing practice of not collecting fees from local governments. In addition, the State made a minor change to the due date for sources to submit the annual permit fee; the fee is now due within 60 days following the date of the State’s fee notice rather than within 60 days of receipt of the fee notice. These are minor clarifying changes that do not impact compliance with CAA requirements. C. Chapter 33–15–05, N.D.A.C., Emissions of Particulate Matter Restricted The State removed section 33–15–05– 03.2.2.d., which provided that the State could approve continued operation of a trash incinerator during a malfunction of combustion equipment, emission control equipment, monitoring equipment, or waste charging equipment. We were concerned that section 33–15–05–03.2.2.d could be construed to exempt excess emissions at trash incinerators caused by malfunctions when the State granted permission to the source to continue operations. EPA’s interpretation is that such an exemption would be inconsistent with the CAA. We asked the State to address our concern. The removal of section 33–15–05–03.2.2.d addresses our concern and is consistent with CAA requirements. The SIP will no longer provide a potential exemption to trash incinerators operating during malfunctions based on State approval of continued operation during such periods. Instead, malfunctions at trash incinerators would be treated the same as malfunctions at other sources subject to SIP requirements—i.e., the source would need to follow the procedures contained in section 33–15–01–13.2. D. 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 In section 33–15–14–01, ‘‘Designated Air Contaminant Sources,’’ the State revised the list of sources ‘‘capable of causing or contributing to air pollution.’’ Specifically, the State added the word ‘‘major’’ to 33–15–14–01.14 so that it now reads as follows: ‘‘Any major source to which a national emission standard for hazardous air pollutants for source categories (40 CFR 63) would apply.’’ This change only affects the applicability of certain permitting requirements contained in Chapter 33– PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 IV. Corrections to Regulatory Text On June 3, 2010 and November 22, 2010 we published final rules approving portions of the revised North Dakota SIP for Interstate Transport of Pollution for the 1997 PM2.5 and 8–Hour Ozone NAAQS. See 75 FR 31290 and 75 FR 71023. When we published those rules, we included regulatory text that was incorrect. Specifically, we made errors in the ‘‘Identification of plan’’ table contained in 40 CFR 52.1820(e), ‘‘EPAapproved nonregulatory provisions.’’ As published in our November 22, 2010 action (which augmented and revised the table contained in our June 3, 2010 action), the first portion of the explanation for item (1) in the table read as follows: ‘‘Excluding subsequent revisions, as follows: Chapters 1, 2, 6, 7, 9, 11, and 12; Sections 2.11, 3.7, 6.8, 6.10, 6.11, 6.13, 7.7, and 8.3; subsections 7.8.1.B., 7.8.1.D., and 8.3.1.’’ 2 It should have read, ‘‘Excluding subsequent revisions, as follows: Chapters 6, 11, and 12; Sections 2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; and Subsections 3.2.1, 5.2.1, 7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.’’ We also incorrectly listed the submittal date for items (21) and (22) in the table as 4/09/09 instead 2 The most recent version of the CFR was current as of July 1, 2010 and does not reflect the regulatory language contained in our November 22, 2010 action. The regulatory language as contained in our November 22, 2010 action does appear in the electronic CFR on the GPOAccess website: http:// ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid= 4d2eed6d6a2a14bd914c123a19f553c3&rgn=div8& view=text&node=40:4.0.1.1.1.16.1.1&idno=40. E:\FR\FM\05MYP1.SGM 05MYP1 25656 Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Proposed Rules of 4/06/09. Therefore, we are proposing to correct the identification of plan table in 40 CFR 52.1820(e) accordingly. emcdonald on DSK2BSOYB1PROD with PROPOSALS V. Section 110(l) Under section 110(l) of the CAA, EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the NAAQS or any other applicable requirement of the Act. As described in section III, above, most of the revisions we are proposing to approve conform the North Dakota SIP to relevant CAA requirements. In particular, the State revised shutdown and malfunction provisions to comport with CAA requirements. The other changes we are proposing to approve are minor and will not interfere with attainment or reasonable further progress toward attainment of the NAAQS 3 or any other CAA requirements. VI. Proposed Action EPA is proposing to approve revisions to the North Dakota SIP that the Governor of North Dakota submitted with a letter dated April 6, 2009 and that were State-effective April 1, 2009. Specifically, EPA is proposing to approve North Dakota’s revisions to the following portions of the North Dakota Administrative Code: Chapter 33–15– 01, ‘‘General Provisions,’’ sections 33– 15–01–04, 33–15–01–05, and 33–15–01– 13; Chapter 33–15–02, ‘‘Ambient Air Quality Standards,’’ section 33–15–02, Table 1; Chapter 33–15–05, ‘‘Emissions of Particulate Matter Restricted,’’ subsection 33–15–05–03.2.2; Chapter 33–15–14, ‘‘Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate,’’ subsection 33–15–14– 01.14; and Chapter 33–15–23, ‘‘Fees,’’ section 33–15–23–03. See section III of this action, above, for a description of these revisions. In addition, EPA is proposing administrative corrections to the regulatory text for North Dakota that will appear in the Code of Federal Regulations. Specifically, we are proposing to change the identification of plan table that will appear at 40 CFR 52.1820(e) as follows: a. We will change the first portion of the explanation for item (1) in the table to read, ‘‘Excluding subsequent revisions, as follows: Chapters 6, 11, and 12; Sections 2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; and Subsections 3.2.1, 3 North Dakota has no nonattainment areas. Thus, CAA part D requirements, including the requirement to make reasonable further progress toward attainment, do not apply in North Dakota. VerDate Mar<15>2010 19:33 May 04, 2011 Jkt 223001 5.2.1, 7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.’’ b. We will change the submittal dates for items (21) and (22) in the table to read, ‘‘4/06/09.’’ See section IV of this action, above, for further information regarding these corrections. VII. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action: • Is not a ‘‘significant regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: April 27, 2011. Judith Wong, Acting Regional Administrator, Region 8. [FR Doc. 2011–10995 Filed 5–4–11; 8:45 am] BILLING CODE 6560–50–P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 1809 RIN 2700–AD54 Responsibility; Suspension and Debarment National Aeronautics and Space Administration. ACTION: Proposed rule with request for comments. AGENCY: NASA is revising the NASA FAR Supplement (NFS) to update internal processing procedures related to suspension and debarment. Although the procedures do not impact the public and will not be codified in the Code of Federal Regulations, one related change does impact the public and that is a new requirement for contracting officers to notify prospective contractors if they are found to be non-responsible. Notification provides the prospective contractor with the opportunity to take corrective action prior to future solicitations. SUMMARY: Interested parties should submit comments to NASA at the address below on or before July 5, 2011 to be considered in formulation of the final rule. DATES: Interested parties may submit comments, identified by RIN number 2700–AD54, using either of the following methods: (1) Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking ADDRESSES: E:\FR\FM\05MYP1.SGM 05MYP1

Agencies

[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Proposed Rules]
[Pages 25652-25656]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10995]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2009-0556; FRL-9302-3]


Approval and Promulgation of Air Quality Implementation Plans; 
North Dakota; Revisions to the Air Pollution Control Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the North Dakota 
State Implementation Plan that the Governor of North Dakota submitted 
with a letter dated April 6, 2009. The revisions affect North Dakota's 
air pollution control rules regarding general provisions (including 
rules regarding shutdowns and malfunctions), ambient air quality 
standards, emissions of particulate matter, permitting, and fees. In 
addition, EPA is proposing administrative corrections to the regulatory 
text for

[[Page 25653]]

North Dakota that will be codified in the Code of Federal Regulations; 
we made errors in the identification of plan table when we approved the 
North Dakota State Implementation Plan revisions for Interstate 
Transport of pollution, which the Governor also submitted on April 6, 
2009. This action is being taken under section 110 of the Clean Air 
Act.

DATES: Comments must be received on or before June 6, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2009-0556, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: Fallon.Gail@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT section if you are faxing 
comments).
     Mail: 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-
2009-0556. 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 
at 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: Gail Fallon, EPA Region 8, Mailcode 
8P-AR, 1595 Wynkoop Street, Denver, CO 80202-1129, (303) 312-6281, 
Fallon.Gail@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background
III. Analysis of SIP Revisions
IV. Corrections to Regulatory Text
V. Section 110(l)
VI. Proposed Action
VII. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, the following definitions apply:
    (i) The words or initials Act or CAA mean or refer to the Federal 
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 initials NAAQS mean or refer to the National Ambient Air 
Quality Standards.
    (v) The words State or ND mean the State of North Dakota, unless 
the context indicates otherwise.
    (vi) 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.

[[Page 25654]]

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 October 
7, 2008 to consider the revisions to the 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 April 
1, 2009. The North Dakota Governor submitted the SIP revisions to us 
with a letter dated April 6, 2009. This submittal also included (1) SIP 
revisions to address Interstate Transport requirements related to the 
1997 8-hour ozone and PM2.5 NAAQS, which we acted on in 2010 
(75 FR 31290, June 3, 2010, and 75 FR 71023, November 22, 2010), and 
(2) SIP revisions (commonly referred to as ``infrastructure'' 
requirements) to address implementation of current NAAQS for 
PM10, PM2.5, and ozone, which we will be acting 
on separately. In our June 3, 2010 and November 22, 2010 actions on 
North Dakota's Interstate Transport SIP revisions, we made errors in 
the identification of plan table located in 40 CFR 52.1820(e). We 
describe these errors in section IV, below.

III. Analysis of SIP Revisions

    The SIP revisions in the April 6, 2009 submittal that we are 
proposing to act on in this document involve the following chapters of 
the North Dakota Administrative Code (N.D.A.C.): 33-15-01, ``General 
Provisions;'' 33-15-02, ``Ambient Air Quality Standards;'' 33-15-05, 
``Emissions of Particulate Matter Restricted;'' 33-15-14, ``Designated 
Air Contaminant Sources, Permit to Construct, Minor Source Permit to 
Operate, Title V Permit to Operate;'' and 33-15-23, ``Fees.'' The 
following is our description and analysis of the revisions.

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

    The State revised sections 33-15-01-04, 33-15-01-05, and 33-15-01-
13 and submitted the entire revised sections to us for approval. In 
section 33-15-01-04, the State made the following changes: (1) The 
State revised the definition of ``air contaminant'' to add the words, 
``emitted to the ambient air'' to the end of definition; (2) the State 
added definitions for ``excess emissions'' and ``PM2.5;'' 
(3) the State re-numbered the definitions to account for the addition 
of new definitions; and (4) the State cross-referenced and incorporated 
by reference the version of 40 CFR 51.100(s) as it existed on March 1, 
2008 for purposes of defining ``volatile organic compounds'' (the prior 
date used was January 1, 2006). These changes are minor and are 
consistent with relevant CAA and regulatory requirements.
    In section 33-15-01-05, the State added abbreviations for PM and 
PM2.5. These revisions are minor and are consistent with the 
CAA.
    The State made several revisions to 33-15-01-13, ``Shutdown and 
Malfunction of an Installation--Requirement for notification.'' In 33-
15-01-13.1, ``Maintenance shutdowns,'' the State adopted new 
subdivision f, which reads, ``Nothing in this subsection shall in any 
manner be construed as authorizing or legalizing the emission of air 
contaminants in excess of the rate allowed by this article or a permit 
issued pursuant to this article.'' Previously, we had been concerned 
that the language of 33-15-01-13.1 could be construed as exempting from 
enforcement excess emissions during shutdown of air pollution control 
equipment for scheduled maintenance. EPA's interpretation is that the 
CAA requires that all periods of excess emissions, regardless of cause, 
be treated as violations and that automatic exemptions from emissions 
limits are not appropriate.\1\ Subdivision f clarifies that excess 
emissions are not authorized during maintenance shutdowns. Subdivision 
f is consistent with CAA requirements.
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    \1\ This interpretation has been expressed in several documents. 
Most relevant to this action are the following: Memorandum dated 
September 28, 1982, from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation, entitled ``Policy on 
Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions'' (the 1982 Memorandum); a clarification to that 
memorandum from Kathleen M. Bennett issued on February 15, 1983 (the 
1983 Memorandum); and a memorandum dated September 20, 1999 entitled 
``State Implementation Plans: Policy Regarding Excess Emissions 
During Malfunctions, Startup, and Shutdown,'' from Steven A. Herman, 
Assistant Administrator for Enforcement and Compliance Assurance, 
and Robert Perciasepe, Assistant Administrator for Air and Radiation 
(the 1999 Memorandum). As explained in these memoranda, because 
excess emissions might aggravate air quality so as to prevent 
attainment and maintenance of the NAAQS and compliance with other 
CAA requirements, EPA views all periods of excess emissions as 
violations of the applicable emission limitation. Therefore, EPA 
will disapprove SIP revisions that automatically exempt from 
enforcement excess emissions claimed to result from an equipment 
malfunction. In addition, as made explicit in the 1999 Memorandum, 
EPA will disapprove SIP revisions that give discretion to a state 
director to determine whether an instance of excess emissions is a 
violation of an emission limitation, because such a determination 
could bar EPA and citizens from enforcing applicable requirements.
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    In 33-15-01-13.2, ``Malfunctions,'' the State removed certain 
language and added other language. In 33-15-01-13.2.a, the State 
removed language indicating that the State could permit the continued 
operation of an installation during a malfunction resulting in a 
violation of an emissions limit. We were concerned that this language 
could be construed to exempt excess emissions caused by malfunctions 
when the State granted permission to continue operations. EPA's 
interpretation is that such an exemption would be inconsistent with the 
CAA. The removal of the language is consistent with CAA requirements.
    The State added 33-15-01-13.2.c to 33-15-01-13.2. This new 
subdivision c identifies procedures sources and the State will follow 
with respect to unavoidable malfunctions. Where a source believes that 
excess emissions have resulted from an unavoidable malfunction, the 
source must submit a written report to the State that includes evidence 
relevant to six criteria specified in the rule. The report must be 
submitted within thirty days of the end of the calendar quarter in 
which the malfunction occurred or within thirty days of a written 
request by North Dakota, whichever is sooner. The rule provides that 
North Dakota will evaluate the information submitted by the source on a 
case-by-case basis to determine whether to pursue enforcement action 
and that North Dakota may elect not to pursue enforcement action after 
considering whether excess emissions resulted from an unavoidable 
equipment malfunction. The rule also provides that the burden of proof 
is on the source to provide sufficient information to demonstrate that 
an unavoidable equipment malfunction occurred.
    Under EPA's interpretations of the CAA as set forth in the 1982, 
1983, and 1999 Memoranda, if a state in its SIP chooses to address 
violations that occur as a result of claimed malfunctions, the state 
may take two approaches. The first, the ``enforcement discretion'' 
approach, allows a state director to refrain from taking enforcement 
action for a violation if certain criteria are met. The second, the 
``affirmative defense'' approach, allows a source to avoid penalties if 
it can prove that certain

[[Page 25655]]

conditions are met. North Dakota's 33-15-01-13.2.c follows the 
enforcement discretion approach.
    We have evaluated North Dakota's enforcement discretion provisions 
for excess emissions caused by unavoidable equipment malfunctions and 
find that they are consistent with EPA's interpretations of the CAA as 
described in the memoranda above. In particular, the criteria specified 
in 33-15-01-13.2.c that the State will consider in deciding whether to 
pursue an enforcement action generally parallel the criteria outlined 
in the 1982 and 1983 Memoranda.
    As noted in footnote 1, above, the 1999 Memorandum also discusses a 
point not explicitly addressed in North Dakota's new rule--i.e., EPA 
will not approve SIP revisions that recognize or appear to recognize a 
state's decision not to pursue enforcement as barring enforcement 
action by EPA or citizens. Rule 33-15-01-13.2.c only addresses the 
State's exercise of its enforcement discretion and contains no language 
suggesting that a State decision not to pursue an enforcement action 
for a particular violation bars EPA or citizens from taking an 
enforcement action. Therefore, EPA interprets the rule, consistent with 
EPA's interpretations of the CAA, as not barring EPA and citizen 
enforcement of violations of applicable requirements when the State 
declines enforcement.
    In 33-15-01-13.3, ``Continuous emission monitoring system 
failures,'' the State removed the phrase, ``acceptable to the 
department,'' from the text, ``When a failure of a continuous emission 
monitoring system occurs, an alternative method, acceptable to the 
department, for measuring or estimating emissions must be undertaken as 
soon as possible.'' Following this sentence, the State added a new 
sentence that reads as follows: ``The owner or operator of a source 
that uses an alternative method shall have the burden of demonstrating 
that the method is accurate.'' We had asked the State to remove the 
language ``acceptable to the department'' from the rule and find that 
the new language is consistent with CAA requirements.
    In previous rulemakings, we referenced an April 11, 2003 submission 
of revisions to 33-15-01-13 and indicated that we would act on that 
submission at a later date. See 69 FR 61762, October 21, 2004; 70 FR 
45539, October 8, 2005; and 71 FR 3764, January 24, 2006. However, in 
an August 17, 2009 letter, North Dakota advised EPA that the April 11, 
2003 submission erroneously indicated there had been revisions to 33-
15-01-13.1.d, and that in fact the cited revisions to 33-15-01-13.1.d 
had not been adopted and were not submitted to EPA with the Governor's 
April 11, 2003 letter. Therefore, there are no remaining revisions from 
the April 11, 2003 submittal awaiting EPA's action.

B. Chapter 33-15-02, N.D.A.C., Ambient Air Quality Standards

    Table 1 was revised to amend the PM10 and ozone 
standards and to add the 2006 PM2.5 standard. These 
revisions were made to reflect the Federal standards and are consistent 
with CAA requirements.

C. Chapter 33-15-05, N.D.A.C., Emissions of Particulate Matter 
Restricted

    The State removed section 33-15-05-03.2.2.d., which provided that 
the State could approve continued operation of a trash incinerator 
during a malfunction of combustion equipment, emission control 
equipment, monitoring equipment, or waste charging equipment. We were 
concerned that section 33-15-05-03.2.2.d could be construed to exempt 
excess emissions at trash incinerators caused by malfunctions when the 
State granted permission to the source to continue operations. EPA's 
interpretation is that such an exemption would be inconsistent with the 
CAA. We asked the State to address our concern. The removal of section 
33-15-05-03.2.2.d addresses our concern and is consistent with CAA 
requirements. The SIP will no longer provide a potential exemption to 
trash incinerators operating during malfunctions based on State 
approval of continued operation during such periods. Instead, 
malfunctions at trash incinerators would be treated the same as 
malfunctions at other sources subject to SIP requirements--i.e., the 
source would need to follow the procedures contained in section 33-15-
01-13.2.

D. 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

    In section 33-15-14-01, ``Designated Air Contaminant Sources,'' the 
State revised the list of sources ``capable of causing or contributing 
to air pollution.'' Specifically, the State added the word ``major'' to 
33-15-14-01.14 so that it now reads as follows: ``Any major source to 
which a national emission standard for hazardous air pollutants for 
source categories (40 CFR 63) would apply.'' This change only affects 
the applicability of certain permitting requirements contained in 
Chapter 33-15-14. It does not affect emission limits in the SIP or 
other requirements that would affect ambient concentrations of criteria 
pollutants. It also does not affect the applicability of 40 CFR part 63 
requirements. This change is consistent with CAA requirements.

E. Chapter 33-15-23, N.D.A.C., Fees

    The State revised section 33-15-23-03, ``Minor source permit to 
operate fees.'' The State simplified the definition of a ``designated'' 
source. (The rule establishes a fee for designated sources.) The State 
also expanded the exemption from fees for State government facilities 
to include local government facilities. This latter revision simply 
codified the State's standing practice of not collecting fees from 
local governments. In addition, the State made a minor change to the 
due date for sources to submit the annual permit fee; the fee is now 
due within 60 days following the date of the State's fee notice rather 
than within 60 days of receipt of the fee notice. These are minor 
clarifying changes that do not impact compliance with CAA requirements.

IV. Corrections to Regulatory Text

    On June 3, 2010 and November 22, 2010 we published final rules 
approving portions of the revised North Dakota SIP for Interstate 
Transport of Pollution for the 1997 PM2.5 and 8-Hour Ozone 
NAAQS. See 75 FR 31290 and 75 FR 71023. When we published those rules, 
we included regulatory text that was incorrect. Specifically, we made 
errors in the ``Identification of plan'' table contained in 40 CFR 
52.1820(e), ``EPA-approved nonregulatory provisions.'' As published in 
our November 22, 2010 action (which augmented and revised the table 
contained in our June 3, 2010 action), the first portion of the 
explanation for item (1) in the table read as follows: ``Excluding 
subsequent revisions, as follows: Chapters 1, 2, 6, 7, 9, 11, and 12; 
Sections 2.11, 3.7, 6.8, 6.10, 6.11, 6.13, 7.7, and 8.3; subsections 
7.8.1.B., 7.8.1.D., and 8.3.1.'' \2\ It should have read, ``Excluding 
subsequent revisions, as follows: Chapters 6, 11, and 12; Sections 
2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; and Subsections 3.2.1, 5.2.1, 
7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.'' We also incorrectly listed the 
submittal date for items (21) and (22) in the table as 4/09/09 instead

[[Page 25656]]

of 4/06/09. Therefore, we are proposing to correct the identification 
of plan table in 40 CFR 52.1820(e) accordingly.
---------------------------------------------------------------------------

    \2\ The most recent version of the CFR was current as of July 1, 
2010 and does not reflect the regulatory language contained in our 
November 22, 2010 action. The regulatory language as contained in 
our November 22, 2010 action does appear in the electronic CFR on 
the GPOAccess website: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=4d2eed6d6a2a14bd914c123a19f553c3&rgn=div8&view=text&node=40:4.0.1.1.1.16.1.1&idno=40.
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V. Section 110(l)

    Under section 110(l) of the CAA, EPA cannot approve a SIP revision 
if the revision would interfere with any applicable requirement 
concerning attainment and reasonable further progress toward attainment 
of the NAAQS or any other applicable requirement of the Act. As 
described in section III, above, most of the revisions we are proposing 
to approve conform the North Dakota SIP to relevant CAA requirements. 
In particular, the State revised shutdown and malfunction provisions to 
comport with CAA requirements. The other changes we are proposing to 
approve are minor and will not interfere with attainment or reasonable 
further progress toward attainment of the NAAQS \3\ or any other CAA 
requirements.
---------------------------------------------------------------------------

    \3\ North Dakota has no nonattainment areas. Thus, CAA part D 
requirements, including the requirement to make reasonable further 
progress toward attainment, do not apply in North Dakota.
---------------------------------------------------------------------------

VI. Proposed Action

    EPA is proposing to approve revisions to the North Dakota SIP that 
the Governor of North Dakota submitted with a letter dated April 6, 
2009 and that were State-effective April 1, 2009. Specifically, EPA is 
proposing to approve North Dakota's revisions to the following portions 
of the North Dakota Administrative Code: Chapter 33-15-01, ``General 
Provisions,'' sections 33-15-01-04, 33-15-01-05, and 33-15-01-13; 
Chapter 33-15-02, ``Ambient Air Quality Standards,'' section 33-15-02, 
Table 1; Chapter 33-15-05, ``Emissions of Particulate Matter 
Restricted,'' subsection 33-15-05-03.2.2; Chapter 33-15-14, 
``Designated Air Contaminant Sources, Permit to Construct, Minor Source 
Permit to Operate, Title V Permit to Operate,'' subsection 33-15-14-
01.14; and Chapter 33-15-23, ``Fees,'' section 33-15-23-03. See section 
III of this action, above, for a description of these revisions.
    In addition, EPA is proposing administrative corrections to the 
regulatory text for North Dakota that will appear in the Code of 
Federal Regulations. Specifically, we are proposing to change the 
identification of plan table that will appear at 40 CFR 52.1820(e) as 
follows:
    a. We will change the first portion of the explanation for item (1) 
in the table to read, ``Excluding subsequent revisions, as follows: 
Chapters 6, 11, and 12; Sections 2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; 
and Subsections 3.2.1, 5.2.1, 7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.''
    b. We will change the submittal dates for items (21) and (22) in 
the table to read, ``4/06/09.''
    See section IV of this action, above, for further information 
regarding these corrections.

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves State law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' under the terms 
of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: April 27, 2011.
Judith Wong,
Acting Regional Administrator, Region 8.
[FR Doc. 2011-10995 Filed 5-4-11; 8:45 am]
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