Approval and Promulgation of Air Quality Implementation Plans; North Dakota; Revisions to the Air Pollution Control Rules, 68317-68322 [2011-28527]

Download as PDF Federal Register / Vol. 76, No. 214 / Friday, November 4, 2011 / Rules and Regulations 2. Add a temporary § 100.T07–0942 to read as follows: ■ jlentini on DSK4TPTVN1PROD with RULES § 100.T07–0942 Special Local Regulations; Key West World Championship, Atlantic Ocean; Key West, FL. (a) Regulated Areas. The following regulated areas are established as special local regulations. All coordinates are North American Datum 1983. (1) Race Area. All waters of the Atlantic Ocean located southwest of Key West encompassed within an imaginary line connecting the following points: Starting at Point 1 in position 24°32′08″ N, 81°50′19″ W; thence east to Point 2 in position 24°32′23″ N, 81°48′58″ W; thence northeast to Point 3 in position 24°33′14″ N, 81°48′47″ W; thence northeast to Point 4 in position 24°33′54″ N, 81°48′22″ W; thence west to Point 5 in position 24°33′54″ N, 81°48′25″ W; thence southwest back to origin. All persons and vessels, except those persons and vessels participating in the high-speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within the race area. (2) Buffer Zone. All waters of the Atlantic Ocean located southwest of Key West encompassed within an imaginary line connecting the following points: Starting at Point 1 in position 24°33′26″ N, 81°49′02″ W; thence southwest to Point 2 in position 24°32′22″ N, 81°50′39″ W; thence south to Point 3 in position 24°31′53″ N, 81°50′39″ W; thence northeast to Point 4 in position 24°32′06″ N, 81°48′35″ W thence northwest to back to origin. All persons and vessels except those persons and vessels enforcing the buffer zone are prohibited from entering, transiting through, anchoring in, or remaining within the buffer zone. (3) Spectator Area 1. All waters of the Atlantic Ocean located southwest of Key West encompassed within an imaginary line connecting the following points: Starting at Point 1 in position 24°33′26″ N, 81°49′02″ W; thence northeast to Point 2 in position 24°33′36″ N, 81°48′49″ W; thence northwest to Point 3 in position 24°33′39″ N, 81°49′26″ W; thence southwest to Point 4 in position 24°33′24″ N, 81°49′28″ W; thence northeast back to origin. All vessels are prohibited from anchoring in spectator area 1. On-scene designated representatives will direct spectator vessels to spectator area 1. (4) Spectator Area 2. All waters of the Atlantic Ocean located southwest of Key West encompassed within an imaginary line connecting the following points: Starting at Point 1 in position 24°33′41″ N, 81°48′44″ W; thence northeast to VerDate Mar<15>2010 16:20 Nov 03, 2011 Jkt 226001 Point 2 in position 24°33′55″ N, 81°48′34″ W; thence southwest to Point 3 in position 24°33′52″ N, 81°48′42″ W; thence southwest back to origin. All vessels are prohibited from anchoring in spectator area 2. On-scene designated representatives will direct spectator vessels to spectator area 2. (b) Definition. The term ‘‘designated representative’’ means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Key West in the enforcement of the regulated areas. (c) Regulations. (1) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated areas may contact the Captain of the Port Key West by telephone at (305) 292–8727, or a designated representative via VHF radio on channel 16, to seek authorization. If authorization to enter, transit through, anchor in, or remain within any of the regulated areas is granted by the Captain of the Port Key West or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Key West or a designated representative. (2) The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives. (d) Effective Date and Enforcement Periods. This rule is effective from 9 a.m. on November 9, 2011 through 5 p.m. on November 13, 2011. This rule will be enforced daily from 9 a.m. until 5 p.m. on November 9, 2011; November 11, 2011; and November 13, 2011. Dated: October 18, 2011. Pat DeQuattro, Captain, U.S. Coast Guard, Captain of the Port Key West. [FR Doc. 2011–28587 Filed 11–3–11; 8:45 am] BILLING CODE 9110–04–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R08–OAR–2009–0556; FRL–9486–2] Approval and Promulgation of Air Quality Implementation Plans; North Dakota; Revisions to the Air Pollution Control Rules Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 68317 EPA is approving revisions to the North Dakota State Implementation Plan (SIP) 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 making administrative corrections to the regulatory text for 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. EPA proposed approval of these rules on May 5, 2011 and received no adverse comments. This action is being taken under section 110 of the Clean Air Act (CAA). DATES: This action is effective on December 5, 2011. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA–R08–OAR– 2009–0556. All documents in the docket are listed on the https:// www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through https:// www.regulations.gov or in hard copy at EPA Region 8, Air Quality Planning Unit (8P–AR), 1595 Wynkoop Street, Denver, Colorado 80202. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Air Program, Mailcode 8P– AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202–1129, (303) 312–7814, or ostendorf.jody@epa.gov. SUPPLEMENTARY INFORMATION: SUMMARY: 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 E:\FR\FM\04NOR1.SGM 04NOR1 68318 Federal Register / Vol. 76, No. 214 / Friday, November 4, 2011 / Rules and Regulations 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. II. Analysis of SIP Revisions Table of Contents A. Chapter 33–15–01, N.D.A.C., General Provisions I. Background II. Analysis of SIP Revisions III. Corrections to Regulatory Text IV. Response to Comments V. Section 110(l) VI. Final Action VII. Statutory and Executive Order Reviews jlentini on DSK4TPTVN1PROD with RULES I. 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 III, below. VerDate Mar<15>2010 16:20 Nov 03, 2011 Jkt 226001 The SIP revisions in the April 6, 2009 submittal that we are acting 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. 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 the 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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. 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 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. E:\FR\FM\04NOR1.SGM 04NOR1 jlentini on DSK4TPTVN1PROD with RULES Federal Register / Vol. 76, No. 214 / Friday, November 4, 2011 / Rules and Regulations the information submitted by the source on a case-by-case basis to determine whether to pursue an enforcement action and that North Dakota may elect not to pursue an 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 an 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 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 VerDate Mar<15>2010 16:20 Nov 03, 2011 Jkt 226001 68319 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. 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. 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 PM 2.5 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 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 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. III. 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- E:\FR\FM\04NOR1.SGM 04NOR1 68320 Federal Register / Vol. 76, No. 214 / Friday, November 4, 2011 / Rules and Regulations 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 of 4/06/09. We are also revising part of the explanation for item (21) without changing its meaning. Therefore, we are correcting the identification of plan table in 40 CFR 52.1820(e) accordingly. IV. Response to Comments EPA did not receive any adverse comments on our May 5, 2011 proposal. 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 II, above, most of the revisions we are approving 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 approving are minor and will not interfere with attainment or reasonable further progress toward attainment of the NAAQS 3 or any other CAA requirements. jlentini on DSK4TPTVN1PROD with RULES VI. Final Action EPA is approving revisions to the North Dakota SIP that the Governor of North Dakota submitted with a letter dated April 6, 2009 and that were State2 As of the date of signature of this action, the official, published version of 40 CFR 52.1820 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 unofficial electronic CFR on the GPOAccess Web site: https://ecfr.gpoaccess.gov/cgi/t/text/text-idx? c=ecfr&sid=4d2eed6d6a2a14bd914c123a19f553c 3&rgn=div8& view=text&node=40:4.0.1.1.1.16.1.1&idno=40. 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 16:20 Nov 03, 2011 Jkt 226001 effective April 1, 2009. Specifically, EPA is approving 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 II of this action, above, for a description of these revisions. In addition, EPA is making administrative corrections to the regulatory text for North Dakota that will appear in the Code of Federal Regulations. Specifically, we are changing the identification of plan table that will appear at 40 CFR 52.1820(e) as follows: a. We are changing 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 are changing the submittal dates for items (21) and (22) in the table to read, ‘‘4/06/09,’’ and revising part of the explanation for item (21) without changing its meaning. See section III 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 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 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); PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 • 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, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds, Incorporation by reference. Dated: October 25, 2011. James B. Martin, Regional Administrator, Region 8. 40 CFR part 52 is amended to read as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. E:\FR\FM\04NOR1.SGM 04NOR1 68321 Federal Register / Vol. 76, No. 214 / Friday, November 4, 2011 / Rules and Regulations Table 1;’’ ‘‘33–15–05–03.2;’’ ‘‘33–15–14– ■ b. In paragraph (e) by revising the table entries for ‘‘(1)’’, ‘‘(21)’’, and 01;’’ and ‘‘33–15–23–03;’’ and by ‘‘(22).’’ removing the entry for ‘‘33–15–14– 01.1’’. Subpart JJ—North Dakota 2. Section 52.1820 is amended as follows: ■ a. In paragraph (c) by revising the table entries for ‘‘33–15–01–04;’’ ‘‘33– 15–01–05;’’ ‘‘33–15–01–13,’’ ‘‘33–15–02, ■ § 52.1820 * Identification of plan. * * (c) * * * * * STATE OF NORTH DAKOTA REGULATIONS State effective date State citation Title/subject * 33–15–01–04 .................... * * Definitions ......................... * 4/1/09 33–15–01–05 .................... Abbreviations .................... * 33–15–01–13 .................... EPA approval date and citation 1 Explanations 4/1/09 * * [Insert Federal Register page number the document begins.]. [Insert Federal Register page number the document begins.]. * 11/4/11, where 11/4/11, where * * Shutdown and malfunction of an installation—Requirement for notification. * 4/1/09 * * 11/4/11, [Insert Federal Register page number where the document begins.]. * * 33–15–02, Table 1 ........... * * Ambient Air Quality Standards. * 4/1/09 * * 11/4/11, [Insert Federal Register page number where the document begins.]. * * 33–15–05–03.2 ................. * * Refuse incinerators .......... * 4/1/09 * * 11/4/11, [Insert Federal Register page number where the document begins.]. * * 33–15–14–01 .................... * * Designated air contaminant sources. * 8/1/95 * * 11/4/11, [Insert Federal Register page number where the document begins.]. * * 33–15–23–03 .................... * * Minor source permit to operate fees. * 4/1/09 * * 11/4/11, [Insert Federal Register page number where the document begins.]. * * * * * * * * 1 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) * * * Name of nonregulatory SIP provision (1) Implementation Plan for the Control of Air Pollution for the State of North Dakota. jlentini on DSK4TPTVN1PROD with RULES Chapters: 1. Introduction ....... Applicable geographic or non-attainment area State submittal date/ adopted date EPA approval date and citation 3 Statewide .......... Submitted: 1/24/72; Adopted: 1/24/72. 5/31/72, 37 FR 10842 ........................... Clarification submitted: 6/14/73, 2/19/74, 6/ 26/74, 11/21/74, 4/ 23/75. Explanations 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. Revisions to these non-regulatory provisions have subsequently been approved. See below. With all clarifications: 3/ 2/76, 41 FR 8956. 2. Legal Authority. 3. Control Strategy. 4. Compliance Schedule. 5. Prevention of Air Pollution Emergency Episodes. VerDate Mar<15>2010 16:20 Nov 03, 2011 Jkt 226001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\04NOR1.SGM 04NOR1 68322 Federal Register / Vol. 76, No. 214 / Friday, November 4, 2011 / Rules and Regulations Name of nonregulatory SIP provision Applicable geographic or non-attainment area State submittal date/ adopted date EPA approval date and citation 3 Explanations * * Includes portions of Subsection 7.8.1 as indicated below: 7.8.1.A, ‘‘Overview,’’ the language of Subsection 7.8.1.B, ‘‘Nonattainment and Maintenance Area Impact,’’ that specifically addresses the ‘‘significant contribution to nonattainment’’ requirement of CAA Section 110(a)(2)(D)(i), and all of 7.8.1.C. Includes portions of Subsection 7.8.1.B, ‘‘Nonattainment and Maintenance Area Impact,’’ that specifically address the ‘‘interference with maintenance’’ requirement of CAA Section 110(a)(2)(D)(i). 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: * (21) Section 7.8, Interstate Transport of Air Pollution (only 7.8.1.A, portions of 7.8.1.B, and 7.8.1.C, see explanation). * Statewide .......... * Submitted: 4/6/09; Adopted: 4/01/09. * * 6/3/10, 75 FR 31290 ... (22) Section 7.8, Interstate Transport of Air Pollution (only portion of 7.8.1.B). Statewide .......... Submitted: 4/6/09; Adopted: 4/01/09. 11/22/10, 75 FR 71023 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. [FR Doc. 2011–28527 Filed 11–1–11; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 65 [Docket ID FEMA–2011–0002; Internal Agency Docket No. FEMA–B–1225] Changes in Flood Elevation Determinations Federal Emergency Management Agency, DHS. ACTION: Interim rule. AGENCY: This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents. DATES: These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities. jlentini on DSK4TPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 16:20 Nov 03, 2011 Jkt 226001 From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Deputy Federal Insurance and Mitigation Administrator reconsider the changes. The modified BFEs may be changed during the 90-day period. ADDRESSES: The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email) Luis.Rodriguez3@fema.dhs.gov. SUPPLEMENTARY INFORMATION: The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided. Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65. For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals. The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP). These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4. National Environmental Policy Act. This interim rule is categorically E:\FR\FM\04NOR1.SGM 04NOR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 214 (Friday, November 4, 2011)]
[Rules and Regulations]
[Pages 68317-68322]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28527]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2009-0556; FRL-9486-2]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the North Dakota State
Implementation Plan (SIP) 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 making administrative corrections to the regulatory
text for 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. EPA proposed approval of these rules on May 5, 2011 and
received no adverse comments. This action is being taken under section
110 of the Clean Air Act (CAA).

DATES: This action is effective on December 5, 2011.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R08-OAR-2009-0556. All documents in the docket
are listed on the https://www.regulations.gov Web site. Although listed
in the index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through https://www.regulations.gov or
in hard copy at EPA Region 8, Air Quality Planning Unit (8P-AR), 1595
Wynkoop Street, Denver, Colorado 80202. EPA requests that if at all
possible, you contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your inspection. The Regional Office's
official hours of business are Monday through Friday, 8:30 to 4:30,
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Air Program, Mailcode
8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-7814, or ostendorf.jody@epa.gov.

SUPPLEMENTARY INFORMATION:

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

[[Page 68318]]

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.

Table of Contents

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

I. 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 III, below.

II. Analysis of SIP Revisions

The SIP revisions in the April 6, 2009 submittal that we are acting
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 the 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

[[Page 68319]]

the information submitted by the source on a case-by-case basis to
determine whether to pursue an enforcement action and that North Dakota
may elect not to pursue an 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 an 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 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 PM 2.5 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.

III. 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-

[[Page 68320]]

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 of 4/06/09. We are also
revising part of the explanation for item (21) without changing its
meaning. Therefore, we are correcting the identification of plan table
in 40 CFR 52.1820(e) accordingly.
---------------------------------------------------------------------------

\2\ As of the date of signature of this action, the official,
published version of 40 CFR 52.1820 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 unofficial
electronic CFR on the GPOAccess Web site: https://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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IV. Response to Comments

EPA did not receive any adverse comments on our May 5, 2011
proposal.

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 II, above, most of the revisions we are approving
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 approving 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. Final Action

EPA is approving 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
approving 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
II of this action, above, for a description of these revisions.
In addition, EPA is making administrative corrections to the
regulatory text for North Dakota that will appear in the Code of
Federal Regulations. Specifically, we are changing the identification
of plan table that will appear at 40 CFR 52.1820(e) as follows:
a. We are changing 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 are changing the submittal dates for items (21) and (22) in
the table to read, ``4/06/09,'' and revising part of the explanation
for item (21) without changing its meaning.
See section III 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 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 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, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate matter,
Reporting and recordkeeping requirements, Volatile organic compounds,
Incorporation by reference.

Dated: October 25, 2011.
James B. Martin,
Regional Administrator, Region 8.

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.

[[Page 68321]]

Subpart JJ--North Dakota

0
2. Section 52.1820 is amended as follows:
0
a. In paragraph (c) by revising the table entries for ``33-15-01-04;''
``33-15-01-05;'' ``33-15-01-13,'' ``33-15-02, Table 1;'' ``33-15-05-
03.2;'' ``33-15-14-01;'' and ``33-15-23-03;'' and by removing the entry
for ``33-15-14-01.1''.
0
b. In paragraph (e) by revising the table entries for ``(1)'',
``(21)'', and ``(22).''

Sec. 52.1820 Identification of plan.

* * * * *
(c) * * *

State of North Dakota Regulations
----------------------------------------------------------------------------------------------------------------
State EPA approval date and
State citation Title/subject effective date citation \1\ Explanations
----------------------------------------------------------------------------------------------------------------

* * * * * * *
33-15-01-04.................... Definitions....... 4/1/09 11/4/11, [Insert
Federal Register page
number where the
document begins.].
33-15-01-05.................... Abbreviations..... 4/1/09 11/4/11, [Insert
Federal Register page
number where the
document begins.].

* * * * * * *
33-15-01-13.................... Shutdown and 4/1/09 11/4/11, [Insert
malfunction of an Federal Register page
installation--Req number where the
uirement for document begins.].
notification.

* * * * * * *
33-15-02, Table 1.............. Ambient Air 4/1/09 11/4/11, [Insert
Quality Standards. Federal Register page
number where the
document begins.].

* * * * * * *
33-15-05-03.2.................. Refuse 4/1/09 11/4/11, [Insert
incinerators. Federal Register page
number where the
document begins.].

* * * * * * *
33-15-14-01.................... Designated air 8/1/95 11/4/11, [Insert
contaminant Federal Register page
sources. number where the
document begins.].

* * * * * * *
33-15-23-03.................... Minor source 4/1/09 11/4/11, [Insert
permit to operate Federal Register page
fees. number where the
document begins.].

* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ 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) * * *

----------------------------------------------------------------------------------------------------------------
Applicable State submittal EPA approval
Name of nonregulatory SIP geographic or non- date/adopted date and Explanations
provision attainment area date citation \3\
----------------------------------------------------------------------------------------------------------------
(1) Implementation Plan for Statewide............ Submitted: 1/24/ 5/31/72, 37 FR Excluding subsequent
the Control of Air Pollution 72; Adopted: 1/ 10842. revisions, as
for the State of North Dakota. 24/72. 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.
Revisions to these
non-regulatory
provisions have
subsequently been
approved. See below.
Chapters:
1. Introduction........... ..................... Clarification With all
submitted: 6/14/ clarifications:
73, 2/19/74, 6/ 3/2/76, 41 FR
26/74, 11/21/ 8956.
74, 4/23/75.
2. Legal Authority........
3. Control Strategy.......
4. Compliance Schedule....
5. Prevention of Air
Pollution Emergency
Episodes.

[[Page 68322]]

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:

* * * * * * *
(21) Section 7.8, Interstate Statewide............ Submitted: 4/6/ 6/3/10, 75 FR Includes portions of
Transport of Air Pollution 09; Adopted: 4/ 31290. Subsection 7.8.1 as
(only 7.8.1.A, portions of 01/09. indicated below:
7.8.1.B, and 7.8.1.C, see 7.8.1.A,
explanation). ``Overview,'' the
language of
Subsection 7.8.1.B,
``Nonattainment and
Maintenance Area
Impact,'' that
specifically
addresses the
``significant
contribution to
nonattainment''
requirement of CAA
Section
110(a)(2)(D)(i), and
all of 7.8.1.C.
(22) Section 7.8, Interstate Statewide............ Submitted: 4/6/ 11/22/10, 75 FR Includes portions of
Transport of Air Pollution 09; Adopted: 4/ 71023. Subsection 7.8.1.B,
(only portion of 7.8.1.B). 01/09. ``Nonattainment and
Maintenance Area
Impact,'' that
specifically address
the ``interference
with maintenance''
requirement of CAA
Section
110(a)(2)(D)(i).
----------------------------------------------------------------------------------------------------------------
\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.

[FR Doc. 2011-28527 Filed 11-1-11; 8:45 am]
BILLING CODE 6560-50-P

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