Approval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standards; North Dakota, 22540-22549 [2012-9075]
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Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules
with 40 CFR Part 51, Appendix W
‘‘Guideline on Air Quality Models,’’ as
incorporated into the Tennessee SIP.
These standards demonstrate that
Tennessee has the authority to provide
relevant data for the purpose of
predicting the effect on ambient air
quality of the 8-hour ozone NAAQS.
Additionally, Tennessee supports a
regional effort to coordinate the
development of emissions inventories
and conduct regional modeling for
several NAAQS, including the 1997
8-hour ozone NAAQS, for the
Southeastern states. Taken as a whole,
Tennessee’s air quality regulations and
practices demonstrate that TDEC has the
authority to provide relevant data for
the purpose of predicting the effect on
ambient air quality of the 8-hour ozone
NAAQS. EPA has made the preliminary
determination that Tennessee’s SIP and
practices adequately demonstrate the
State’s ability to provide for air quality
and modeling, along with analysis of the
associated data, related to the 1997 8hour ozone NAAQS when necessary.
9. 110(a)(2)(L) Permitting fees: As
discussed above, Tennessee’s SIP
provides for the review of construction
permits. Permitting fees in Tennessee
are collected through the State’s
federally-approved title V fees program
and consistent with Chapter 1200–03–
26–.02, Permit-Related Fees, of the
Tennessee Code. EPA has made the
preliminary determination that
Tennessee’s SIP and practices
adequately provide for permitting fees
related to the 1997 8-hour ozone
NAAQS when necessary.
10. 110(a)(2)(M) Consultation/
participation by affected local entities:
Chapter 1200–3–9–.01(4)(k), Public
Participation, of the Tennessee SIP
requires that TDEC notify the public of
an application, preliminary
determination, the activity or activities
involved in the permit action, any
emissions change associated with any
permit modification, and the
opportunity for comment prior to
making a final permitting decision. By
way of example, TDEC has recently
worked closely with local political
subdivisions during the development of
its Transportation Conformity SIP,
Regional Haze Implementation Plan,
and Early Action Compacts. EPA has
made the preliminary determination
that Tennessee’s SIP and practices
adequately demonstrate consultation
with affected local entities related to the
1997 8-hour ozone NAAQS when
necessary.
V. Proposed Action
As described above, with the
exception of sub-element
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110(a)(2)(E)(ii), EPA is proposing to
determine that Tennessee’s
infrastructure submission, provided to
EPA on December 14, 2007, addressed
the required infrastructure elements for
the 1997 8-hour ozone NAAQS. EPA is
proposing to approve in part and
conditionally approve in part,
Tennessee’s SIP submission consistent
with section 110(k)(3) of the CAA.
As described above, with the
exception of sub-element
110(a)(2)(E)(ii), TDEC has addressed the
elements of the CAA 110(a)(1) and (2)
SIP requirements pursuant to EPA’s
October 2, 2007, guidance to ensure that
the 1997 8-hour ozone NAAQS are
implemented, enforced, and maintained
in Tennessee. With respect to
110(a)(2)(E)(ii) (referencing section 128
of the CAA), EPA is proposing to
conditionally approve Tennessee’s
infrastructure SIP. On March 28, 2012,
Tennessee submitted a letter requesting
conditional approval of 110(a)(2)(E)(ii).
In this letter, TDEC committed to adopt
specific enforceable measures into its
SIP and submit these revisions to EPA
within one year of EPA’s final
rulemaking to address the applicable
portions of section 128. EPA is also
proposing to approve Tennessee’s
infrastructure submission for the 1997
8-hour ozone NAAQS, with the
exception of sub-element 110(a)(2)(E)(ii)
because its December 14, 2007,
submission is consistent with section
110 of the CAA.
• 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 CAA; 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 proposed 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.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
See 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 CAA. 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’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• 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.);
List of Subjects in 40 CFR Part 52
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Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 29, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–9073 Filed 4–13–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0300; FRL–9659–3]
Approval and Promulgation of State
Implementation Plan Revisions;
Infrastructure Requirements for the
1997 8-Hour Ozone National Ambient
Air Quality Standards; North Dakota
Environmental Protection
Agency (EPA).
AGENCY:
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Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules
ACTION:
Proposed rule.
EPA is proposing to approve
and conditionally approve the State
Implementation Plan (SIP) submission
from the State of North Dakota to
demonstrate that the SIP meets the
requirements of section 110(a)(1) and (2)
of the Clean Air Act (CAA) for the
National Ambient Air Quality Standards
(NAAQS) promulgated for ozone on July
18, 1997. Section 110(a)(1) of the CAA
requires that each state, after a new or
revised NAAQS is promulgated, review
their SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’ of section 110(a)(2). The State
of North Dakota submitted revisions to
their Infrastructure SIP for the 1997
ozone NAAQS, dated April 6, 2009, as
well as a certification of their
infrastructure SIP for the 1997 ozone
NAAQS dated November 23, 2009.
DATES: Written comments must be
received on or before May 16, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2010–0300, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• Email: ayala.kathy@epa.gov.
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
• Mail: Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129.
• Hand Delivery: Director, Air
Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 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–2010–
0300. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at 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 www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
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SUMMARY:
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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 email
comment directly to EPA, without going
through www.regulations.gov your email
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 https://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 www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in 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:
Kathy Ayala, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 303–312–6142, ayala.
kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The words or initials Act or CAA mean
or refer to the Clean Air Act, unless the
context indicates otherwise.
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(ii) The initials DAQ mean or refer to
Division of Air Quality.
(iii) The words EPA, we, us or our mean
or refer to the United States Environmental
Protection Agency.
(iv) The initials FIP mean or refer to a
Federal Implementation Plan.
(v) The initials GHGs mean or refer to
greenhouse gases.
(vi) The initials NAAQS mean or refer to
national ambient air quality standards.
(vii) The initials NDAC mean or refer to
North Dakota Administrative Code.
(viii) The initials NDCC mean or refer to
North Dakota Century Code.
(ix) The initials NOX mean or refer to
nitrogen oxides.
(x) The initials NSR mean or refer to new
source review.
(xi) The initials PM2.5 mean or refer to
particulate matter with an aerodynamic
diameter of less than 2.5 micrometers (fine
particulate matter).
(xii) The initials ppm mean or refer to parts
per million.
(xiii) The initials PSD mean or refer to
Prevention of Significant Deterioration.
(xiv) The initials SIP mean or refer to State
Implementation Plan.
(xv) The initials SSM mean or refer to startup, shutdown, or malfunction.
Table of Contents
I. General Information
II. Background
III. Scope of Infrastructure SIPs
IV. How did the State of North Dakota
address the infrastructure elements of
sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my
comments for EPA?
1. Submitting Confidential Business
Information (CBI). Do not submit CBI to
EPA through https://www.regulations.gov
or email. Clearly mark the part or all of
the information that you claim to be
CBI. For CBI information on 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:
Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register, date, and page number);
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Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules
On July 18, 1997, EPA promulgated a
new NAAQS for ozone based on 8-hour
average concentrations. The 8-hour
averaging period replaced the previous
1-hour averaging period, and the level of
the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62
FR 38856). By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) are to be submitted by states within
three years after promulgation of a new
or revised standard. Section 110(a)(2)
provides basic requirements for SIPs,
including emissions inventories,
monitoring, and modeling, to assure
attainment and maintenance of the
standards. These requirements are set
out in several ‘‘infrastructure elements,’’
listed in section 110(a)(2).
Section 110(a) imposes the obligation
upon states to make a SIP submission to
EPA for a new or revised NAAQS, and
the contents of that submission may
vary depending upon the facts and
circumstances. In particular, the data
and analytical tools available at the time
the state develops and submits the SIP
for a new or revised NAAQS affects the
content of the submission. The contents
of such SIP submission may also vary
depending upon what provisions the
state’s existing SIP already contains. In
the case of the 1997 ozone NAAQS,
states typically have met the basic
program elements required in section
110(a)(2) through earlier SIP
submissions in connection with
previous NAAQS.
In a guidance issued on October 2,
2007, EPA noted that, to the extent an
existing SIP already meets the section
110(a)(2) requirements, states need only
certify that fact via a letter to EPA.1
On March 27, 2008, EPA published a
final rule entitled, ‘‘Completeness
Findings for Section 110(a) State
Implementation Plans for the 8-hour
Ozone NAAQS’’ (73 FR 16205). In the
rule, EPA made a finding for each state
that it had submitted or failed to submit
a complete SIP that provided the basic
program elements of section 110(a)(2)
necessary to implement the 1997 8-hour
ozone NAAQS. In this rule, EPA found
that North Dakota failed to submit the
relevant SIP. The findings of failure to
submit established a 24-month deadline
for EPA to promulgate a Federal
Implementation Plan (FIP) to address
the outstanding SIP elements unless,
prior to that time, North Dakota
submitted, and EPA approved, the
required SIP. However, the finding of
failure to submit did not impose
sanctions, set deadlines for imposing
sanctions, or set deadlines for imposing
sanctions as described in section 179 of
the CAA, because these findings do not
pertain to the elements contained in the
Title I part D plan for nonattainment
areas as required under section
110(a)(2)(l). Additionally, the finding of
failure to submit for the infrastructure
submittals are not SIP calls under
section 110(k)(5).
Section 110(a)(1) provides the
procedural and timing requirements for
SIP submissions after a new or revised
NAAQS is promulgated. Section
110(a)(2) lists specific elements the SIP
must contain or satisfy. These
infrastructure elements include
requirements such as modeling,
monitoring, and emissions inventories,
which are designed to assure attainment
and maintenance of the NAAQS. The
elements that are the subject of this
action are listed below.
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.
• 110(a)(2)(D)(ii): Interstate and
international pollution.
• 110(a)(2)(E): Adequate resources
and authority.
• 110(a)(2)(F): Stationary source
monitoring and reporting.
• 110(a)(2)(G): Emergency powers.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(J): Consultation with
government officials; public
notification; and prevention of
significant deterioration (PSD) and
visibility protection.
• 110(a)(2)(K): Air quality modeling/
data.
1 Memorandum from William T. Harnett,
Director, Air Quality Policy Division, ‘‘Guidance on
SIP Elements Required Under Sections 110(a)(1)
and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards’’ (Oct. 2,
2007).
Follow directions and organize your
comments;
Explain why you agree or disagree;
Suggest alternatives and substitute
language for your requested changes;
Describe any assumptions and
provide any technical information and/
or data that you used;
If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced;
Provide specific examples to illustrate
your concerns, and suggest alternatives;
Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats; and,
Make sure to submit your comments
by the comment period deadline
identified.
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II. Background
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• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
A detailed discussion of each of these
elements is contained in the next
section.
Two elements identified in section
110(a)(2) are not governed by the three
year submission deadline of section
110(a)(1) and are therefore not
addressed in this action. These elements
relate to part D of Title I of the CAA, and
submissions to satisfy them are not due
within three years after promulgation of
a new or revised NAAQS, but rather are
due at the same time nonattainment area
plan requirements are due under section
172. The two elements are: (i) Section
110(a)(2)(C) to the extent it refers to
permit programs (known as
‘‘nonattainment new source review
(NSR)’’) required under part D, and (ii)
section 110(a)(2)(I) pertaining to the
nonattainment planning requirements of
part D. As a result, this action does not
address infrastructure elements related
to the nonattainment NSR portion of
section 110(a)(2)(C) or related to
110(a)(2)(I).
This action also does not address the
‘‘interstate transport’’ requirements of
element 110(a)(2)(D)(i), or the visibility
protection requirements of element
110(a)(2)(J). EPA approved portions of
the state’s 110(a)(2)(D)(i) interstate
transport SIP for the 1997 ozone
NAAQS in separate prior actions (75 FR
31290; 75 FR 71023).
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and fine particulate matter (PM2.5)
NAAQS for various states across the
country. Commenters on EPA’s recent
proposals for some states raised
concerns about EPA statements that it
was not addressing certain substantive
issues in the context of acting on the
infrastructure SIP submissions.2 The
commenters specifically raised concerns
involving provisions in existing SIPs
and with EPA’s statements that it would
address two issues separately and not as
part of actions on the infrastructure SIP
submissions: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction (SSM) at sources, that may
2 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules
be contrary to the CAA and EPA’s
policies addressing such excess
emissions; and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the
issues separately: (i) Existing provisions
for minor source NSR programs that
may be inconsistent with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source NSR’’); and (ii)
existing provisions for PSD programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80,186
(December 31, 2002), as amended by 72
FR 32,526 (June 13, 2007) (‘‘NSR
Reform’’). In light of the comments, EPA
now believes that its statements in
various proposed actions on
infrastructure SIPs with respect to these
four individual issues should be
explained in greater depth with respect
to these issues.
EPA intended the statements in the
proposals concerning these four issues
merely to be informational, and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a reapproval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing state provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such state
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit reapproval of any existing
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provisions that relate to these four
substantive issues.
Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issue in the context of the infrastructure
SIPs. This was not EPA’s intention. To
the contrary, EPA only meant to convey
its awareness of the potential for certain
types of deficiencies in existing SIPs,
and to prevent any misunderstanding
that it was reapproving any such
existing provisions. EPA’s intention was
to convey its position that the statute
does not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements, however, we want to
explain more fully the Agency’s reasons
for concluding that these four potential
substantive issues in existing SIPs may
be addressed separately.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof)’’ and
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
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part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, NSR permitting program
submissions required to address the
requirements of part D, and a host of
other specific types of SIP submissions
that address other specific matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.3 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.4
Notwithstanding that section 110(a)(2)
states that ‘‘each’’ SIP submission must
meet the list of requirements therein,
EPA has long noted that this literal
reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).5 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
3 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
4 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each SIP contains adequate
provisions to prevent significant contribution to
nonattainment of the NAAQS in other states. This
provision contains numerous terms that require
substantial rulemaking by EPA in order to
determine such basic points as what constitutes
significant contribution. See, e.g., ‘‘Rule To Reduce
Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid
Rain Program; Revisions to the NOX SIP Call; Final
Rule,’’ 70 FR 25162 (May 12, 2005)(defining, among
other things, the phrase ‘‘contribute significantly to
nonattainment’’).
5 See, e.g., Id., 70 FR 25162, at 63–65 (May 12,
2005)(explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
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infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.6 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the SIP. Finally, EPA notes
that not every element of section
110(a)(2) would be relevant, or as
relevant, or relevant in the same way,
for each new or revised NAAQS and the
attendant infrastructure SIP submission
for that NAAQS. For example, the
monitoring requirements that might be
necessary for purposes of section
110(a)(2)(B) for one NAAQS could be
very different than what might be
necessary for a different pollutant. Thus,
the content of an infrastructure SIP
submission to meet this element from a
state might be very different for an
entirely new NAAQS, versus a minor
revision to an existing NAAQS.7
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirement applicable
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6 EPA
issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
7 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.8 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 9 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
8 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ‘‘2007
Guidance’’). EPA issued comparable guidance for
the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards (NAAQS),’’ from
William T, Harnett, Director Air Quality Policy
Division, to Regional Air Division Directors,
Regions I-X, dated September 25, 2009 (the ‘‘2009
Guidance’’).
9 Id., at page 2.
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A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 10 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
states to meet these requirements with
assistance from EPA Regions.’’ 11 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much
more specific recommendations. But for
other infrastructure SIP submittals, and
for certain elements of the submittals for
the 1997 PM2.5 NAAQS, EPA assumed
that each state would work with its
corresponding EPA regional office to
refine the scope of a state’s submittal
based on an assessment of how the
requirements of section 110(a)(2) should
reasonably apply to the basic structure
of the SIP for the NAAQS in question.
Significantly, the 2007 Guidance did
not explicitly refer to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance,
however, EPA did not indicate to states
that it intended to interpret these
provisions as requiring a substantive
submission to address these specific
issues in the context of the
infrastructure SIPs for these NAAQS.
Instead, EPA’s 2007 Guidance merely
indicated its belief that the states should
make submissions in which they
established that they have the basic SIP
structure necessary to implement,
maintain, and enforce the NAAQS. EPA
believes that states can establish that
they have the basic SIP structure,
notwithstanding that there may be
potential deficiencies within the
existing SIP. Thus, EPA’s proposals
mentioned these issues not because the
10 Id.,
at attachment A, page 1.
at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
11 Id.,
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Agency considers them issues that must
be addressed in the context of an
infrastructure SIP as required by section
110(a)(1) and (2), but rather because
EPA wanted to be clear that it considers
these potential existing SIP problems as
separate from the pending infrastructure
SIP actions.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a SIP is substantially
inadequate to attain or maintain the
NAAQS, to mitigate interstate transport,
or otherwise to comply with the CAA.12
Section 110(k)(6) authorizes EPA to
12 EPA has issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See,
‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21,639
(April 18, 2011).
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correct errors in past actions, such as
past approvals of SIP submissions.13
Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.14
IV. How did the State of North Dakota
address the infrastructure elements of
section 110(a)(1) and (2)?
1. Emission limits and other control
measures: Section 110(a)(2)(A) requires
SIPs to include enforceable emission
limitations and other control measures,
means, or techniques (including
economic incentives such as fees,
marketable permits, and auctions of
emissions rights), as well as schedules
and timetables for compliance as may be
necessary or appropriate to meet the
applicable requirements of this Act.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: North Dakota Century Code
(NDCC) 23–25–03.5–.8; NDCC 23–25–
03.12; NDCC 23–25–04.2; North Dakota
Administrative Code (NDAC) 33–15–07,
17, 20 (Control measures for VOC);
NDAC 33–15–23 (Fees).
b. EPA analysis: North Dakota’s SIP
meets the requirements of CAA section
110(a)(2)(A) for the 1997 ozone NAAQS,
subject to the following clarifications.
13 EPA has utilized this authority to correct errors
in past actions on SIP submissions related to PSD
programs. See, ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82,536 (Dec. 30, 2010). EPA has previously used its
authority under CAA 110(k)(6) to remove numerous
other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38,664 (July
25, 1996) and 62 FR 34,641 (June 27, 1997)
(corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062
(November 16, 2004) (corrections to California SIP);
and 74 FR 57,051 (November 3, 2009) (corrections
to Arizona and Nevada SIPs).
14 EPA has disapproved a SIP submission from
Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42,342 at
42,344 (July 21,2010) (proposed disapproval of
director’s discretion provisions); 76 FR 4540 (Jan.
26, 2011) (final disapproval of such provisions).
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First, this infrastructure element does
not require the submittal of regulations
or emission limitations developed
specifically for attaining the 1997 ozone
NAAQS, and North Dakota has no areas
designated as nonattainment for the
1997 ozone NAAQS. Nonetheless, the
North Dakota SIP contains provisions
for control of volatile organic
compounds, an ozone precursor (NDAC
33–15–07). North Dakota also regulates
emissions of ozone and its precursors
through its SIP-approved major and
minor source permitting programs (64
FR 32433, June 17, 1999; 71 FR 3764,
January 24, 2006). This suffices, in the
case of North Dakota, to meet the
requirements of section 110(a)(2)(A) for
the 1997 ozone NAAQS.
2. Ambient air quality monitoring/
data system: Section 110(a)(2)(B)
requires SIPs to provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to (i) monitor,
compile, and analyze data on ambient
air quality, and (ii) upon request, make
such data available to the
Administrator.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: NDCC 23–25–03.2; NDCC 23–
25–05; NDCC 23–15–14–02.9a; SIP
Sections 6.7 & 6.8.
b. EPA analysis: North Dakota’s air
monitoring programs and data systems
meet the requirements of CAA section
110(a)(2)(B) for the 1997 ozone NAAQS.
The North Dakota Division of Air
Quality’s (DAQ) 2011 Ambient Air
Annual Monitoring Network Plan was
approved by EPA Region 8 on January
12, 2011. In this action, EPA also
proposes approval of North Dakota’s
revised SIP chapter 6.8, ‘‘Annual
Network Review,’’ and revised SIP
chapter 6.11.3, ‘‘Air Quality
Surveillance: Ozone,’’ submitted April
6, 2009.
3. Program for enforcement of control
measures: Section 110(a)(2)(C) requires
SIPs to include a program to provide for
the enforcement of the measures
described in subparagraph (A), and
regulation of the modification and
construction of any stationary source
within the areas covered by the plan as
necessary to assure that NAAQS are
achieved, including a permit program as
required in parts C and D.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: Enforcement: NDCC 23–25–10;
NDCC 23–25–05; NDCC 33–15–01–17;
Permits: NDCC 23–25–03.6; NDCC 33–
15–14; NDCC 33–15–15; SIP Chapters 7
and 8.
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b. EPA analysis: As explained above,
in this action EPA is not evaluating nonattainment related provisions, such as
the nonattainment NSR program
required by part D of the Act. In
addition, North Dakota has no
nonattainment areas for the 1997 ozone
NAAQS, and is therefore, not required
at this point to have a corresponding
nonattainment NSR program. In this
action, EPA is evaluating the State’s
PSD program as required by part C of
the Act, and the State’s minor NSR
program as required by 110(a)(2)(C).
North Dakota’s PSD Program
North Dakota’s SIP-approved PSD
program incorporates by reference (with
certain exceptions) the federal PSD
program at 52.21 as of August 1, 2007.
As described in our notice of approval
of the most recent revision of the
program (75 FR 31290, June 3, 2010),
North Dakota’s PSD program met the
general requirements of CAA section
110(a)(2)(C) as of that date, as well as
the program requirement to treat
nitrogen oxides (NOX) as an ozone
precursor in accordance with the phase
2 implementation rule for the 1997
ozone NAAQS (72 FR 71612, November
29, 2005). North Dakota’s PSD program
therefore meets the requirements of
section 110(a)(2)(C) with regard to
implementation of the 1997 ozone
NAAQS.
We also consider the requirements for
PSD programs with respect to
greenhouse gases (GHGs). North
Dakota’s PSD program was not subject
to EPA’s rule, ‘‘Limitation of Approval
of Prevention of Significant
Deterioration Provisions Concerning
Greenhouse Gas Emitting-Sources in
State Implementation Plans’’ (‘‘PSD SIP
Narrowing Rule’’), 75 FR 82536 (Dec.
30, 2010). As explained in a
memorandum in the docket for that
action, North Dakota stated that it could
implement the current SIP-approved
PSD program with the thresholds for
GHGs set in EPA’s June 3, 2010
‘‘Prevention of Significant Deterioration
and Title V Greenhouse Gas Tailoring
Rule’’ (‘‘Tailoring Rule’’), 75 FR 31514.
It was therefore not necessary in the
PSD SIP Narrowing Rule to withdraw
approval of North Dakota’s PSD program
to the extent that it applied PSD
permitting to GHG emissions increases
from GHG-emitting sources below
Tailoring Rule thresholds. North Dakota
also stated its intent to revise its PSD
program to expressly adopt the
Tailoring Rule thresholds. North Dakota
revised its program correspondingly on
April 1, 2011 and submitted the SIP
revision to us on April 14, 2011. As a
result, North Dakota’s 2009 certification
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of adequacy of its PSD program remains
valid.
North Dakota’s April 14, 2011 SIP
submittal includes various updates to
the State’s PSD program. We are
reviewing this submittal and intend to
propose action on it in the near future.
We note that the submittal appears to
satisfy the requirements, with respect to
the State’s PSD program, of the rule
‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers
(PM2.5),’’ promulgated May 16, 2008 (73
FR 28321). However, we will only reach
a final conclusion on the adequacy of
the revisions when we act on them
through the separate rulemaking.
North Dakota’s Minor NSR Program
The State has a SIP-approved minor
NSR program, adopted under section
110(a)(2)(C) of the Act, which regulates
emissions of ozone and its precursors.
The State and EPA have relied on the
existing state minor NSR program to
assure that new and modified sources
not captured by the major NSR
permitting programs do not interfere
with attainment and maintenance of the
NAAQS.
In this action, EPA is proposing to
approve North Dakota’s infrastructure
SIP for the 1997 ozone NAAQS with
respect to the general requirement in
section 110(a)(2)(C) to include a
program in the SIP that regulates the
modification and construction of any
stationary source as necessary to assure
that the NAAQS are achieved. EPA is
not proposing to approve or disapprove
the State’s existing minor NSR program
itself to the extent that it is inconsistent
with EPA’s regulations governing this
program. A number of states may have
minor NSR provisions that are contrary
to the existing EPA regulations for this
program. EPA intends to work with
states to reconcile state minor NSR
programs with EPA’s regulatory
provisions for the program. The
statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing minor NSR
programs, and it may be time to revisit
the regulatory requirements for this
program to give the states an
appropriate level of flexibility to design
a program that meets their particular air
quality concerns, while assuring
reasonable consistency across the
country in protecting the NAAQS with
respect to new and modified minor
sources.
4. Interstate transport: Section
110(a)(2)(D)(i) requires SIPs to contain
adequate provisions prohibiting,
consistent with the provisions of this
title, any source or other type of
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emissions activity within the state from
emitting any air pollutant in amounts
which will (I) contribute significantly to
nonattainment in, or interfere with
maintenance by, any other state, with
respect to any such national primary or
secondary ambient air quality standard,
or (II) interfere with measures required
to be included in the applicable
implementation plan for any other state
under part C to prevent significant
deterioration of air quality or to protect
visibility.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: (i)(I): NDCC 23–25–03.6; NDCC
23–25–03.7; NDCC 33–25–03.12; SIP
Section 7.7 (submitted 4/09); (i)(II):
NDCC 23–25–03.4; NDCC 23–25–03.12;
SIP Section 7.8 (submitted 4/09).
b. EPA analysis: North Dakota
submitted SIP revisions to EPA April 6,
2009, which included revisions to the
State’s interstate transport SIP. EPA
approved portions of the State’s
110(a)(2)(D)(i) interstate transport SIP
for the 1997 ozone NAAQS in separate
actions (75 FR 31290; 75 FR 71023), and
has not yet completed action on the
remaining portion to meet the
requirement of 110(a)(2)(D)(i)(II)
regarding interference with measures to
protect visibility. EPA is taking no
action relevant to section 110(a)(2)(D)(i)
in this proposal.
5. Interstate and International
transport provisions: Section
110(a)(2)(D)(ii) requires that each SIP
shall contain adequate provisions
insuring compliance with applicable
requirements of sections 126 and 115
(relating to interstate and international
pollution abatement).
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: NDCC 23–25–03.12; SIP
Section 7.8 (submitted 4/09).
b. EPA Analysis: Section 126(a) of the
CAA requires notification to affected,
nearby states of major proposed new (or
modified) sources. Sections 126(b) and
(c) pertain to petitions by affected states
to the Administrator regarding sources
violating the ‘‘interstate transport’’
provisions of section 110(a)(2)(D)(i).
Section 115 of the CAA similarly
pertains to international transport of air
pollution.
With regard to section 126(a), North
Dakota’s SIP-approved PSD program
requires notice of proposed new sources
or modifications to states whose lands
may be significantly affected by
emissions from the source or
modification. This provision satisfies
the notice requirement of section 126(a).
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North Dakota has no pending
obligations under sections 126(c) or
115(b); therefore, its SIP currently meets
the requirements of those sections. The
SIP therefore meets the requirements of
110(a)(2)(D)(ii) for the 1997 ozone
NAAQS.
6. Adequate resources and authority:
Section 110(a)(2)(E) requires states to
provide (i) necessary assurances that the
state will have adequate personnel,
funding, and authority under state law
to carry out the SIP (and is not
prohibited by any provision of federal or
state law from carrying out the SIP or
portion thereof), (ii) requires that the
state comply with the requirements
respecting state boards under section
128, and (iii) necessary assurances that,
where the state has relied on a local or
regional government, agency, or
instrumentality for the implementation
of any SIP provision, the state has
responsibility for ensuring adequate
implementation of such SIP provision.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: (i): NDCC 23–25–04.2; NDAC
33–15–01–15; NDAC 33–15–23; SIP
Chapter 9; (ii): NDCC 23–25–02.1; SIP
Section 2.15 (submitted 4/09); (iii):
NDCC 23–25–02.1; SIP Section 2.7.
b. EPA analysis: North Dakota’s SIP
meets the requirements of section
110(a)(2)(E)(i) for the 1997 ozone
NAAQS. NDCC 23–25–03 provides
adequate authority for the State of North
Dakota to carry out its SIP obligations
with respect to the 1997 ozone NAAQS.
The State receives sections 103 and 105
grant funds through its Performance
Partnership Grant along with required
state matching funds to provide funding
necessary to carry out North Dakota’s
SIP requirements. North Dakota
submitted an updated version of SIP
Chapter 9, ‘‘Resources,’’ to EPA on April
6, 2009. In this action, EPA proposes to
approve the updated version of SIP
Chapter 9, and therefore finds that
North Dakota’s resources meet the
requirements of CAA section
110(a)(2)(E)(i).
With regard to section 110(a)(2)(E)(ii),
in its submittal North Dakota stated that
section 128 does not apply because the
State does not have a board or body that
approves permits or enforcement orders
under the CAA. We also note that the
North Dakota SIP currently does not
contain provisions addressing the
requirements of section 128 of the CAA.
Congress added section 128 in the
1977 amendments as the result of a
conference agreement. Titled ‘‘State
boards,’’ section 128 provides in
relevant part:
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(a) Not later than the date one year
after August 7, 1977, each applicable
implementation plan shall contain
requirements that—
(1) Any board or body which
approves permits or enforcement orders
under [this Act] shall have at least a
majority of members who represent the
public interest and do not derive any
significant portion of their income from
persons subject to permits or
enforcement orders under [this Act],
and
(2) Any potential conflicts of interest
by members of such board or body or
the head of an executive agency with
similar powers be adequately disclosed.
In 1978, we issued a guidance
memorandum recommending ways
states could meet the requirements of
section 128, including suggested
interpretations of certain terms in
section 128.15
In order to determine what
requirements the North Dakota SIP must
satisfy, we discuss various aspects of
section 128. We first note that, in the
conference report, the committee stated:
‘‘It is the responsibility of each state to
determine the specific requirements to
meet the general requirements of
[section 128].’’ 16 We think that this
legislative history indicates that
Congress intended states to have some
latitude in the specifics of implementing
section 128, so long as the
implementation is consistent with the
plain text of the section. We also note
that Congress explicitly provided in
section 128 that states could adopt more
stringent requirements. As a result, we
note three relevant considerations for
implementing section 128.
First, section 128 must be
implemented through SIP-approved,
federally enforceable provisions.
Section 128 explicitly mandates that
each SIP ‘‘shall contain requirements’’
that satisfy subsections 128(a)(1) and
128(a)(2). A mere narrative description
of state statutes or rules, or of a state’s
current or past practice in constituting
a board or body and in disclosing
potential conflicts of interest, is not a
requirement contained in the SIP and
therefore does not satisfy the plain text
of section 128.
Second, subsection 128(a)(1) applies
only to states that have a board or body
that is composed of multiple
individuals and that, among its duties,
approves permits or enforcement orders
15 Memorandum from David O. Bickart, Deputy
General Counsel, to Regional Air Directors,
Guidance to States for Meeting Conflict of Interest
Requirements of Section 128 (Mar. 2, 1978).
16 H.R. Rep. 95–564 (1977), reprinted in 3
Legislative History of the Clean Air Act
Amendments of 1977, 526–27 (1978).
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under the CAA. It does not apply in
states that have no such multi-member
board or body, and where instead a
single head of an agency approves
permits or enforcement orders under the
CAA. This flows from the text of section
128 itself, for two reasons. First, as
subsection 128(a)(1) refers to a majority
of members in the plural, we think it
reasonable to read subsection 128(a)(1)
as not creating any requirements for an
individual with sole authority for
approving a permit or enforcement
order under the CAA. Second,
subsection 128(a)(2) explicitly applies to
the head of an executive agency with
‘‘similar powers’’ to a board or body that
approves permits or enforcement orders
under the CAA, while subsection
128(a)(1) omits any reference to heads of
executive agencies. We infer that
subsection 128(a)(1) should not apply to
heads of executive agencies who
approve permits or enforcement orders.
Third, subsection 128(a)(2) applies to
all states, regardless of whether the state
has a multi-member board or body that
approves permits or enforcement orders
under the CAA. Although the title of
section 128 is ‘‘State boards,’’ the
language of subsection 128(a)(2)
explicitly applies where the head of an
executive agency, rather than a board or
body, approves permits or enforcement
orders. In instances where the head of
an executive agency delegates his or her
power to approve permits or
enforcement orders, or where statutory
authority to approve permits or
enforcement orders is nominally vested
in another state official, the requirement
to disclose adequately potential
conflicts of interest still applies. In other
words, EPA thinks that SIPs for all
states, regardless of whether a state
board or body approves permits or
enforcement orders under the CAA,
must contain adequate provisions for
disclosure of potential conflicts of
interest.
We propose to apply these
considerations to the North Dakota SIP.
North Dakota currently does not have a
multi-member board or body that
approves permits or enforcement orders
under the CAA. Instead, permits are
approved by the Director of DAQ, and
enforcement orders are approved by the
Section Chief of the Environmental
Health Section. Thus, we propose that
North Dakota currently is not subject to
the requirements of subsection
128(a)(1).
However, North Dakota is subject to
the requirements of section 128(a)(2),
and we therefore cannot approve the
certification, as originally submitted,
with respect to section 110(a)(2)(E)(ii).
North Dakota has informed us that the
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North Dakota Department of Health has
an ethics policy requiring (among other
things) internal disclosure of potential
conflicts of interest and recusal from the
matter raising the conflict. North Dakota
has committed to submit as a SIP
revision provisions reflecting this
policy, to the extent necessary to meet
the requirements of section 128, by July
31, 2013.17 Because recusal is more
stringent than the minimum disclosure
required by subsection 128(a)(2), we
propose that the policy, if submitted as
an enforceable SIP provision, will meet
the requirements of section 128. We
therefore propose to conditionally
approve North Dakota’s certification
with respect to the requirements of
section 128(a)(2).
Finally, with respect to section
110(a)(2)(E)(iii), North Dakota has not
assigned responsibility for carrying out
portions of the SIP to any local
government, agency, or other
instrumentality. North Dakota’s SIP
therefore meets the requirements for this
element.
7. Stationary source monitoring and
reporting: Section 110(a)(2)(F) requires
(i) the installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources, (ii) periodic reports
on the nature and amounts of emissions
and emissions-related data from such
sources, and (iii) correlation of such
reports by the state agency with any
emission limitations or standards
established pursuant to the Act, which
reports shall be available at reasonable
times for public inspection.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: (i): NDCC 23–25–03.10; NDAC
33–15–01.12.1; NDAC 33–15–14–02.9;
SIP Sections 8.2 and 8.3; (ii) NDAC 23–
25–03.10; NDCC 23–25–04.2; 33–15–14–
02.9.d; NDAC 33–15–01.12.1; (iii):
NDCC 23–25–03.10; NDCC 23–25–06;
NDCC 23–25–03.6; NDAC 33–15–01–
16.1; NDCC 23–25–04.2; SIP Section 8.2.
b. EPA analysis: NDCC section 23–25–
03.10 generally requires monitoring,
recordkeeping, and reporting for owners
and operators of regulated sources.
North Dakota’s SIP-approved minor
source and PSD programs provide for
monitoring, recordkeeping, and
reporting requirements for sources
subject to minor and major source
permitting. North Dakota’s SIP therefore
meets the requirements of section
110(a)(2)(F) for the 1997 ozone NAAQS.
17 North Dakota’s commitment letter is available
in the docket.
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8. Emergency powers: Section
110(a)(2)(G) requires states to provide
for authority to address activities
causing imminent and substantial
endangerment to public health,
including contingency plans to
implement the emergency episode
provisions in their SIPs.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: NDCC 23–25–03.5; NDCC 23–
25–03.12; NDCC 23–25–09.5; NDAC 33–
15–11; SIP Chapter 5.
b. EPA analysis: NDAC 33–15–11 and
SIP Chapter 5 provide the State with
general emergency authority comparable
to that in section 303 of the Act. North
Dakota has not monitored any values
above the priority cut point for ozone.
See 40 CFR 51.150(b)(5). The SIP
therefore meets the requirements of
110(a)(2)(G) for the 1997 ozone NAAQS.
9. Future SIP revisions: Section
110(a)(2)(H) requires that SIPs provide
for revision of such plan (i) from time
to time as may be necessary to take
account of revisions of such national
primary or secondary ambient air
quality standard or the availability of
improved or more expeditious methods
of attaining such standard, and (ii),
except as provided in paragraph (3)(C),
whenever the Administrator finds on
the basis of information available to the
Administrator that the SIP is
substantially inadequate to attain the
NAAQS which it implements or to
otherwise comply with any additional
requirements under this Act.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: (i): NDCC 23–25–03.7; NDCC
23–25–03.6; NDCC 23–25–03.8; SIP
Section 1.14 (submitted 4/09); (ii):
NDCC 23–25–03.6–.8; NDCC 23–25–
03.12; SIP Section 1.14 (submitted 4/
09).
b. EPA analysis: EPA is proposing to
approve Section 1.14 of the SIP
submitted to EPA April 6, 2009. Section
1.14 requires revision of the SIP in the
circumstances enumerated in section
110(a)(2)(H) of the CAA. NDCC section
23–25–03 provides adequate authority
for the Department of Health to carry
out such revisions. EPA therefore finds
that the State has sufficient authority to
meet the requirements of 110(a)(2)(H).
10. Nonattainment Area Plan or Plan
Revision under Part D: Section
110(a)(2)(I) requires that a SIP or SIP
revision for an area designated as a
nonattainment area must meet the
applicable requirements of part D of this
subchapter (relating to nonattainment
areas).
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a. EPA analysis for Section
110(a)(2)(I): As noted above, the specific
nonattainment area plan requirements
of section 110(a)(2)(I) are subject to the
timing requirement of section 172, not
the timing requirement of section
110(a)(1). This element is therefore not
applicable to this action. EPA will take
action on part D attainment plans
through a separate process.
11. Consultation with government
officials, public notification, PSD and
visibility protection: Section 110(a)(2)(J)
requires that each SIP meet the
applicable requirements of section 121
of this title (relating to consultation),
section 127 of this title (relating to
public notification), and part C of this
subchapter (relating to PSD of air
quality and visibility protection).
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: (section 121): NDCC 23–25–08
(Orders); NDCC 23–25–03.4 and .6;
NDAC 33–15–14 and 15; SIP Chapter
10; (section 127): SIP Section 6.9; NDCC
23–25–06.1; (PSD): NDCC 23–25–03.12;
NDAC 33–15–15; NDAC 33–15–19;
NDAC 33–15–25; NDAC 33–15–02–03.4.
b. EPA analysis: The State has
demonstrated that it has the authority
and rules in place to provide a process
of consultation with general purpose
local governments, designated
organizations of elected officials of local
governments and any Federal Land
Manager having authority over federal
land to which the SIP applies,
consistent with the requirements of
CAA section 121. EPA previously
approved portions of the North Dakota
SIP as meeting the requirements of CAA
section 127. (45 FR 53475, Aug. 12,
1980).
As discussed above, the State has a
SIP-approved PSD program that (for the
most part) incorporates by reference the
federal program at 40 CFR 52.21. EPA
has further evaluated North Dakota’s
SIP-approved PSD program in this
proposed action under IV.3, element
110(a)(2)(C).
Finally, with regard to the applicable
requirements for visibility protection,
EPA recognizes that states are subject to
visibility and regional haze program
requirements under part C of the Act. In
the event of the establishment of a new
NAAQS, however, the visibility and
regional haze program requirements
under part C do not change. Thus, we
find that there are no applicable
visibility requirements under section
110(a)(2)(J) when a new NAAQS
becomes effective. In conclusion, the
North Dakota SIP meets the
requirements of section 110(a)(2)(J) for
the 1997 ozone NAAQS.
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12. Air quality and modeling/data:
Section 110(a)(2)(K) requires that each
SIP provide for (i) the performance of
such air quality modeling as the
Administrator may prescribe for the
purpose of predicting the effect on
ambient air quality of any emissions of
any air pollutant for which the
Administrator has established a
NAAQS, and (ii) the submission, upon
request, of data related to such air
quality modeling to the Administrator.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: (i): NDCC 23–25–03.2 and .12;
SIP Section 7.7 (Submitted 4/09); (ii):
SIP Section 7.7 (Submitted 4/09); NDCC
23–23–06.1.
b. EPA analysis: North Dakota’s SIP
meets the requirements of CAA section
110(a)(2)(K) for the 1997 ozone NAAQS.
In particular, North Dakota’s PSD
program requires estimates of ambient
air concentrations be based on
applicable air quality models specified
in Appendix W of 40 CFR part 51, and
incorporates by reference the provision
at 40 CFR 52.21(l)(2) requiring that
modification or substitution of a model
specified in Appendix W must be
approved by the Administrator. EPA
also proposes to approve the addition of
SIP section 7.7, submitted April 6, 2009,
as meeting the requirements of this
section 110(a)(2)(K)(ii). As a result, the
SIP provides for such air quality
modeling as the Administrator has
prescribed.
13. Permitting fees: Section
110(a)(2)(L) requires SIPs to require the
owner or operator of each major
stationary source to pay to the
permitting authority, as a condition of
any permit required under this act, a fee
sufficient to cover (i) the reasonable
costs of reviewing and acting upon any
application for such a permit, and (ii) if
the owner or operator receives a permit
for such source, the reasonable costs of
implementing and enforcing the terms
and conditions of any such permit (not
including any court costs or other costs
associated with any enforcement
action), until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under title V.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: (i): NDCC 23–25–04.2; NDAC
33–15–23; (ii): NDAC 23–25–04.2;
NDAC 33–15–23.
b. EPA analysis: North Dakota’s
submittal meets the requirements of
CAA section 110(a)(2)(L) for the 1997
ozone NAAQS. Final approval of the
title V operating permit program became
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effective June 17, 1999(64 FR 32433). As
discussed in that approval, the State
demonstrated that the fees collected
were sufficient to administer the
program. In addition, the SIP contains
fee provisions for construction permits
(NDAC 33–15–23–02), including costs
of processing not covered by the
application fee. The SIP also contains
fee provisions for minor source
operating permits (NDAC 33–15–23–03).
14. Consultation/participation by
affected local entities: Section
110(a)(2)(M) requires states to provide
for consultation and participation in SIP
development by local political
subdivisions affected by the SIP.
a. North Dakota’s response to this
requirement: The State listed the
following provisions to meet this
element: NDCC 23–25–03.4; SIP Chapter
10.
b. EPA analysis: North Dakota’s
submittal meets the requirements of
CAA section 110(a)(2)(M) for the 1997
ozone NAAQS.
V. What action is EPA taking?
In this action, EPA is proposing to
approve in full the November 23, 2009
certification for the following section
110(a)(2) infrastructure elements for
North Dakota for the 1997 ozone
NAAQS: (A), (B), (C), (D)(ii), (E)(i),
(E)(iii), (F), (G), (H), (J), (K), (L), and (M).
EPA is proposing to conditionally
approve the November 23, 2009
certification for infrastructure element
110(a)(2)(E)(ii) for the 1997 ozone
NAAQS. EPA is taking no action on
infrastructure elements (D)(i), (I), and
the visibility protection requirement of
(J) for the 1997 ozone NAAQS. In this
action, EPA also proposes to approve
portions of North Dakota’s April 6, 2009
SIP submission. Specifically, EPA
proposes to approve North Dakota’s
revisions to SIP sections 6.8, 6.11.3, and
chapter 9, and the additions of SIP
sections 1.14 and 7.7.
VI. Statutory and Executive Order
Reviews
Under the CAA, 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 CAA. Accordingly, this proposed
action merely approves some state law
as meeting Federal requirements and
disapproves other state law because it
does not meet Federal requirements;
this proposed action does not impose
additional requirements beyond those
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22549
imposed by state law. For that reason,
this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• 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 CAA; 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, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: March 30, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012–9075 Filed 4–13–12; 8:45 am]
BILLING CODE 6560–50–P
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[Federal Register Volume 77, Number 73 (Monday, April 16, 2012)]
[Proposed Rules]
[Pages 22540-22549]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9075]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0300; FRL-9659-3]
Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standards; North Dakota
AGENCY: Environmental Protection Agency (EPA).
[[Page 22541]]
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve and conditionally approve the
State Implementation Plan (SIP) submission from the State of North
Dakota to demonstrate that the SIP meets the requirements of section
110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient
Air Quality Standards (NAAQS) promulgated for ozone on July 18, 1997.
Section 110(a)(1) of the CAA requires that each state, after a new or
revised NAAQS is promulgated, review their SIPs to ensure that they
meet the requirements of the ``infrastructure elements'' of section
110(a)(2). The State of North Dakota submitted revisions to their
Infrastructure SIP for the 1997 ozone NAAQS, dated April 6, 2009, as
well as a certification of their infrastructure SIP for the 1997 ozone
NAAQS dated November 23, 2009.
DATES: Written comments must be received on or before May 16, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0300, by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
Email: ayala.kathy@epa.gov.
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mail Code 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-
2010-0300. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 www.regulations.gov or email. The
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 email comment
directly to EPA, without going through www.regulations.gov your email
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 https://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
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in 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: Kathy Ayala, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142,
ayala.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
(ii) The initials DAQ mean or refer to Division of Air Quality.
(iii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iv) The initials FIP mean or refer to a Federal Implementation
Plan.
(v) The initials GHGs mean or refer to greenhouse gases.
(vi) The initials NAAQS mean or refer to national ambient air
quality standards.
(vii) The initials NDAC mean or refer to North Dakota
Administrative Code.
(viii) The initials NDCC mean or refer to North Dakota Century
Code.
(ix) The initials NOX mean or refer to nitrogen
oxides.
(x) The initials NSR mean or refer to new source review.
(xi) The initials PM2.5 mean or refer to particulate
matter with an aerodynamic diameter of less than 2.5 micrometers
(fine particulate matter).
(xii) The initials ppm mean or refer to parts per million.
(xiii) The initials PSD mean or refer to Prevention of
Significant Deterioration.
(xiv) The initials SIP mean or refer to State Implementation
Plan.
(xv) The initials SSM mean or refer to start-up, shutdown, or
malfunction.
Table of Contents
I. General Information
II. Background
III. Scope of Infrastructure SIPs
IV. How did the State of North Dakota address the infrastructure
elements of sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to EPA through https://www.regulations.gov or email. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information on 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:
Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register, date, and page number);
[[Page 22542]]
Follow directions and organize your comments;
Explain why you agree or disagree;
Suggest alternatives and substitute language for your requested
changes;
Describe any assumptions and provide any technical information and/
or data that you used;
If you estimate potential costs or burdens, explain how you arrived
at your estimate in sufficient detail to allow for it to be reproduced;
Provide specific examples to illustrate your concerns, and suggest
alternatives;
Explain your views as clearly as possible, avoiding the use of
profanity or personal threats; and,
Make sure to submit your comments by the comment period deadline
identified.
II. Background
On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the SIP for a new or revised NAAQS affects
the content of the submission. The contents of such SIP submission may
also vary depending upon what provisions the state's existing SIP
already contains. In the case of the 1997 ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous NAAQS.
In a guidance issued on October 2, 2007, EPA noted that, to the
extent an existing SIP already meets the section 110(a)(2)
requirements, states need only certify that fact via a letter to
EPA.\1\
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\1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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On March 27, 2008, EPA published a final rule entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a
finding for each state that it had submitted or failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In this
rule, EPA found that North Dakota failed to submit the relevant SIP.
The findings of failure to submit established a 24-month deadline for
EPA to promulgate a Federal Implementation Plan (FIP) to address the
outstanding SIP elements unless, prior to that time, North Dakota
submitted, and EPA approved, the required SIP. However, the finding of
failure to submit did not impose sanctions, set deadlines for imposing
sanctions, or set deadlines for imposing sanctions as described in
section 179 of the CAA, because these findings do not pertain to the
elements contained in the Title I part D plan for nonattainment areas
as required under section 110(a)(2)(l). Additionally, the finding of
failure to submit for the infrastructure submittals are not SIP calls
under section 110(k)(5).
Section 110(a)(1) provides the procedural and timing requirements
for SIP submissions after a new or revised NAAQS is promulgated.
Section 110(a)(2) lists specific elements the SIP must contain or
satisfy. These infrastructure elements include requirements such as
modeling, monitoring, and emissions inventories, which are designed to
assure attainment and maintenance of the NAAQS. The elements that are
the subject of this action are listed below.
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D)(ii): Interstate and international pollution.
110(a)(2)(E): Adequate resources and authority.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency powers.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(J): Consultation with government officials;
public notification; and prevention of significant deterioration (PSD)
and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
A detailed discussion of each of these elements is contained in the
next section.
Two elements identified in section 110(a)(2) are not governed by
the three year submission deadline of section 110(a)(1) and are
therefore not addressed in this action. These elements relate to part D
of Title I of the CAA, and submissions to satisfy them are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the same time nonattainment area plan requirements
are due under section 172. The two elements are: (i) Section
110(a)(2)(C) to the extent it refers to permit programs (known as
``nonattainment new source review (NSR)'') required under part D, and
(ii) section 110(a)(2)(I) pertaining to the nonattainment planning
requirements of part D. As a result, this action does not address
infrastructure elements related to the nonattainment NSR portion of
section 110(a)(2)(C) or related to 110(a)(2)(I).
This action also does not address the ``interstate transport''
requirements of element 110(a)(2)(D)(i), or the visibility protection
requirements of element 110(a)(2)(J). EPA approved portions of the
state's 110(a)(2)(D)(i) interstate transport SIP for the 1997 ozone
NAAQS in separate prior actions (75 FR 31290; 75 FR 71023).
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and fine
particulate matter (PM2.5) NAAQS for various states across
the country. Commenters on EPA's recent proposals for some states
raised concerns about EPA statements that it was not addressing certain
substantive issues in the context of acting on the infrastructure SIP
submissions.\2\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
(SSM) at sources, that may
[[Page 22543]]
be contrary to the CAA and EPA's policies addressing such excess
emissions; and (ii) existing provisions related to ``director's
variance'' or ``director's discretion'' that purport to permit
revisions to SIP approved emissions limits with limited public process
or without requiring further approval by EPA, that may be contrary to
the CAA (``director's discretion''). EPA notes that there are two other
substantive issues for which EPA likewise stated that it would address
the issues separately: (i) Existing provisions for minor source NSR
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source NSR'');
and (ii) existing provisions for PSD programs that may be inconsistent
with current requirements of EPA's ``Final NSR Improvement Rule,'' 67
FR 80,186 (December 31, 2002), as amended by 72 FR 32,526 (June 13,
2007) (``NSR Reform''). In light of the comments, EPA now believes that
its statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
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\2\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
state regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\3\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\4\
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\3\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\4\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states. This
provision contains numerous terms that require substantial
rulemaking by EPA in order to determine such basic points as what
constitutes significant contribution. See, e.g., ``Rule To Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule,'' 70 FR 25162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\5\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given
[[Page 22544]]
infrastructure SIP submission. Similarly, EPA has previously decided
that it could take action on different parts of the larger, general
``infrastructure SIP'' for a given NAAQS without concurrent action on
all subsections, such as section 110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter ``interstate transport''
provisions within section 110(a)(2) and worked with states to address
each of the four prongs of section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on different tracks with different
schedules.\6\ This illustrates that EPA may conclude that subdividing
the applicable requirements of section 110(a)(2) into separate SIP
actions may sometimes be appropriate for a given NAAQS where a specific
substantive action is necessitated, beyond a mere submission addressing
basic structural aspects of the SIP. Finally, EPA notes that not every
element of section 110(a)(2) would be relevant, or as relevant, or
relevant in the same way, for each new or revised NAAQS and the
attendant infrastructure SIP submission for that NAAQS. For example,
the monitoring requirements that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS could be very different than what
might be necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\7\
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\5\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12,
2005)(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\6\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\7\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\8\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \9\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \10\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable states to meet these requirements with assistance from EPA
Regions.'' \11\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the SIP for the NAAQS in question.
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\8\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
\9\ Id., at page 2.
\10\ Id., at attachment A, page 1.
\11\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the
[[Page 22545]]
Agency considers them issues that must be addressed in the context of
an infrastructure SIP as required by section 110(a)(1) and (2), but
rather because EPA wanted to be clear that it considers these potential
existing SIP problems as separate from the pending infrastructure SIP
actions.
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\12\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\13\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude the Agency's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action at a later time. For example,
although it may not be appropriate to require a state to eliminate all
existing inappropriate director's discretion provisions in the course
of acting on the infrastructure SIP, EPA believes that section
110(a)(2)(A) may be among the statutory bases that the Agency cites in
the course of addressing the issue in a subsequent action.\14\
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\12\ EPA has issued a SIP call to rectify a specific SIP
deficiency related to the SSM issue. See, ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
\13\ EPA has utilized this authority to correct errors in past
actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\14\ EPA has disapproved a SIP submission from Colorado on the
grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21,2010)
(proposed disapproval of director's discretion provisions); 76 FR
4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. How did the State of North Dakota address the infrastructure
elements of section 110(a)(1) and (2)?
1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of this Act.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: North Dakota Century
Code (NDCC) 23-25-03.5-.8; NDCC 23-25-03.12; NDCC 23-25-04.2; North
Dakota Administrative Code (NDAC) 33-15-07, 17, 20 (Control measures
for VOC); NDAC 33-15-23 (Fees).
b. EPA analysis: North Dakota's SIP meets the requirements of CAA
section 110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following
clarifications. First, this infrastructure element does not require the
submittal of regulations or emission limitations developed specifically
for attaining the 1997 ozone NAAQS, and North Dakota has no areas
designated as nonattainment for the 1997 ozone NAAQS. Nonetheless, the
North Dakota SIP contains provisions for control of volatile organic
compounds, an ozone precursor (NDAC 33-15-07). North Dakota also
regulates emissions of ozone and its precursors through its SIP-
approved major and minor source permitting programs (64 FR 32433, June
17, 1999; 71 FR 3764, January 24, 2006). This suffices, in the case of
North Dakota, to meet the requirements of section 110(a)(2)(A) for the
1997 ozone NAAQS.
2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to (i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon
request, make such data available to the Administrator.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.2; NDCC
23-25-05; NDCC 23-15-14-02.9a; SIP Sections 6.7 & 6.8.
b. EPA analysis: North Dakota's air monitoring programs and data
systems meet the requirements of CAA section 110(a)(2)(B) for the 1997
ozone NAAQS. The North Dakota Division of Air Quality's (DAQ) 2011
Ambient Air Annual Monitoring Network Plan was approved by EPA Region 8
on January 12, 2011. In this action, EPA also proposes approval of
North Dakota's revised SIP chapter 6.8, ``Annual Network Review,'' and
revised SIP chapter 6.11.3, ``Air Quality Surveillance: Ozone,''
submitted April 6, 2009.
3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure that
NAAQS are achieved, including a permit program as required in parts C
and D.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: Enforcement: NDCC 23-25-
10; NDCC 23-25-05; NDCC 33-15-01-17; Permits: NDCC 23-25-03.6; NDCC 33-
15-14; NDCC 33-15-15; SIP Chapters 7 and 8.
[[Page 22546]]
b. EPA analysis: As explained above, in this action EPA is not
evaluating non-attainment related provisions, such as the nonattainment
NSR program required by part D of the Act. In addition, North Dakota
has no nonattainment areas for the 1997 ozone NAAQS, and is therefore,
not required at this point to have a corresponding nonattainment NSR
program. In this action, EPA is evaluating the State's PSD program as
required by part C of the Act, and the State's minor NSR program as
required by 110(a)(2)(C).
North Dakota's PSD Program
North Dakota's SIP-approved PSD program incorporates by reference
(with certain exceptions) the federal PSD program at 52.21 as of August
1, 2007. As described in our notice of approval of the most recent
revision of the program (75 FR 31290, June 3, 2010), North Dakota's PSD
program met the general requirements of CAA section 110(a)(2)(C) as of
that date, as well as the program requirement to treat nitrogen oxides
(NOX) as an ozone precursor in accordance with the phase 2
implementation rule for the 1997 ozone NAAQS (72 FR 71612, November 29,
2005). North Dakota's PSD program therefore meets the requirements of
section 110(a)(2)(C) with regard to implementation of the 1997 ozone
NAAQS.
We also consider the requirements for PSD programs with respect to
greenhouse gases (GHGs). North Dakota's PSD program was not subject to
EPA's rule, ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans'' (``PSD SIP Narrowing Rule''), 75 FR 82536
(Dec. 30, 2010). As explained in a memorandum in the docket for that
action, North Dakota stated that it could implement the current SIP-
approved PSD program with the thresholds for GHGs set in EPA's June 3,
2010 ``Prevention of Significant Deterioration and Title V Greenhouse
Gas Tailoring Rule'' (``Tailoring Rule''), 75 FR 31514. It was
therefore not necessary in the PSD SIP Narrowing Rule to withdraw
approval of North Dakota's PSD program to the extent that it applied
PSD permitting to GHG emissions increases from GHG-emitting sources
below Tailoring Rule thresholds. North Dakota also stated its intent to
revise its PSD program to expressly adopt the Tailoring Rule
thresholds. North Dakota revised its program correspondingly on April
1, 2011 and submitted the SIP revision to us on April 14, 2011. As a
result, North Dakota's 2009 certification of adequacy of its PSD
program remains valid.
North Dakota's April 14, 2011 SIP submittal includes various
updates to the State's PSD program. We are reviewing this submittal and
intend to propose action on it in the near future. We note that the
submittal appears to satisfy the requirements, with respect to the
State's PSD program, of the rule ``Implementation of the New Source
Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5),'' promulgated May 16, 2008 (73 FR 28321). However,
we will only reach a final conclusion on the adequacy of the revisions
when we act on them through the separate rulemaking.
North Dakota's Minor NSR Program
The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act, which regulates emissions of ozone and
its precursors. The State and EPA have relied on the existing state
minor NSR program to assure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the NAAQS.
In this action, EPA is proposing to approve North Dakota's
infrastructure SIP for the 1997 ozone NAAQS with respect to the general
requirement in section 110(a)(2)(C) to include a program in the SIP
that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. EPA is not
proposing to approve or disapprove the State's existing minor NSR
program itself to the extent that it is inconsistent with EPA's
regulations governing this program. A number of states may have minor
NSR provisions that are contrary to the existing EPA regulations for
this program. EPA intends to work with states to reconcile state minor
NSR programs with EPA's regulatory provisions for the program. The
statutory requirements of section 110(a)(2)(C) provide for considerable
flexibility in designing minor NSR programs, and it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to
contain adequate provisions prohibiting, consistent with the provisions
of this title, any source or other type of emissions activity within
the state from emitting any air pollutant in amounts which will (I)
contribute significantly to nonattainment in, or interfere with
maintenance by, any other state, with respect to any such national
primary or secondary ambient air quality standard, or (II) interfere
with measures required to be included in the applicable implementation
plan for any other state under part C to prevent significant
deterioration of air quality or to protect visibility.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i)(I): NDCC 23-25-03.6;
NDCC 23-25-03.7; NDCC 33-25-03.12; SIP Section 7.7 (submitted 4/09);
(i)(II): NDCC 23-25-03.4; NDCC 23-25-03.12; SIP Section 7.8 (submitted
4/09).
b. EPA analysis: North Dakota submitted SIP revisions to EPA April
6, 2009, which included revisions to the State's interstate transport
SIP. EPA approved portions of the State's 110(a)(2)(D)(i) interstate
transport SIP for the 1997 ozone NAAQS in separate actions (75 FR
31290; 75 FR 71023), and has not yet completed action on the remaining
portion to meet the requirement of 110(a)(2)(D)(i)(II) regarding
interference with measures to protect visibility. EPA is taking no
action relevant to section 110(a)(2)(D)(i) in this proposal.
5. Interstate and International transport provisions: Section
110(a)(2)(D)(ii) requires that each SIP shall contain adequate
provisions insuring compliance with applicable requirements of sections
126 and 115 (relating to interstate and international pollution
abatement).
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.12; SIP
Section 7.8 (submitted 4/09).
b. EPA Analysis: Section 126(a) of the CAA requires notification to
affected, nearby states of major proposed new (or modified) sources.
Sections 126(b) and (c) pertain to petitions by affected states to the
Administrator regarding sources violating the ``interstate transport''
provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly
pertains to international transport of air pollution.
With regard to section 126(a), North Dakota's SIP-approved PSD
program requires notice of proposed new sources or modifications to
states whose lands may be significantly affected by emissions from the
source or modification. This provision satisfies the notice requirement
of section 126(a).
[[Page 22547]]
North Dakota has no pending obligations under sections 126(c) or
115(b); therefore, its SIP currently meets the requirements of those
sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii)
for the 1997 ozone NAAQS.
6. Adequate resources and authority: Section 110(a)(2)(E) requires
states to provide (i) necessary assurances that the state will have
adequate personnel, funding, and authority under state law to carry out
the SIP (and is not prohibited by any provision of federal or state law
from carrying out the SIP or portion thereof), (ii) requires that the
state comply with the requirements respecting state boards under
section 128, and (iii) necessary assurances that, where the state has
relied on a local or regional government, agency, or instrumentality
for the implementation of any SIP provision, the state has
responsibility for ensuring adequate implementation of such SIP
provision.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-04.2;
NDAC 33-15-01-15; NDAC 33-15-23; SIP Chapter 9; (ii): NDCC 23-25-02.1;
SIP Section 2.15 (submitted 4/09); (iii): NDCC 23-25-02.1; SIP Section
2.7.
b. EPA analysis: North Dakota's SIP meets the requirements of
section 110(a)(2)(E)(i) for the 1997 ozone NAAQS. NDCC 23-25-03
provides adequate authority for the State of North Dakota to carry out
its SIP obligations with respect to the 1997 ozone NAAQS. The State
receives sections 103 and 105 grant funds through its Performance
Partnership Grant along with required state matching funds to provide
funding necessary to carry out North Dakota's SIP requirements. North
Dakota submitted an updated version of SIP Chapter 9, ``Resources,'' to
EPA on April 6, 2009. In this action, EPA proposes to approve the
updated version of SIP Chapter 9, and therefore finds that North
Dakota's resources meet the requirements of CAA section
110(a)(2)(E)(i).
With regard to section 110(a)(2)(E)(ii), in its submittal North
Dakota stated that section 128 does not apply because the State does
not have a board or body that approves permits or enforcement orders
under the CAA. We also note that the North Dakota SIP currently does
not contain provisions addressing the requirements of section 128 of
the CAA.
Congress added section 128 in the 1977 amendments as the result of
a conference agreement. Titled ``State boards,'' section 128 provides
in relevant part:
(a) Not later than the date one year after August 7, 1977, each
applicable implementation plan shall contain requirements that--
(1) Any board or body which approves permits or enforcement orders
under [this Act] shall have at least a majority of members who
represent the public interest and do not derive any significant portion
of their income from persons subject to permits or enforcement orders
under [this Act], and
(2) Any potential conflicts of interest by members of such board or
body or the head of an executive agency with similar powers be
adequately disclosed.
In 1978, we issued a guidance memorandum recommending ways states could
meet the requirements of section 128, including suggested
interpretations of certain terms in section 128.\15\
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\15\ Memorandum from David O. Bickart, Deputy General Counsel,
to Regional Air Directors, Guidance to States for Meeting Conflict
of Interest Requirements of Section 128 (Mar. 2, 1978).
---------------------------------------------------------------------------
In order to determine what requirements the North Dakota SIP must
satisfy, we discuss various aspects of section 128. We first note that,
in the conference report, the committee stated: ``It is the
responsibility of each state to determine the specific requirements to
meet the general requirements of [section 128].'' \16\ We think that
this legislative history indicates that Congress intended states to
have some latitude in the specifics of implementing section 128, so
long as the implementation is consistent with the plain text of the
section. We also note that Congress explicitly provided in section 128
that states could adopt more stringent requirements. As a result, we
note three relevant considerations for implementing section 128.
---------------------------------------------------------------------------
\16\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------
First, section 128 must be implemented through SIP-approved,
federally enforceable provisions. Section 128 explicitly mandates that
each SIP ``shall contain requirements'' that satisfy subsections
128(a)(1) and 128(a)(2). A mere narrative description of state statutes
or rules, or of a state's current or past practice in constituting a
board or body and in disclosing potential conflicts of interest, is not
a requirement contained in the SIP and therefore does not satisfy the
plain text of section 128.
Second, subsection 128(a)(1) applies only to states that have a
board or body that is composed of multiple individuals and that, among
its duties, approves permits or enforcement orders under the CAA. It
does not apply in states that have no such multi-member board or body,
and where instead a single head of an agency approves permits or
enforcement orders under the CAA. This flows from the text of section
128 itself, for two reasons. First, as subsection 128(a)(1) refers to a
majority of members in the plural, we think it reasonable to read
subsection 128(a)(1) as not creating any requirements for an individual
with sole authority for approving a permit or enforcement order under
the CAA. Second, subsection 128(a)(2) explicitly applies to the head of
an executive agency with ``similar powers'' to a board or body that
approves permits or enforcement orders under the CAA, while subsection
128(a)(1) omits any reference to heads of executive agencies. We infer
that subsection 128(a)(1) should not apply to heads of executive
agencies who approve permits or enforcement orders.
Third, subsection 128(a)(2) applies to all states, regardless of
whether the state has a multi-member board or body that approves
permits or enforcement orders under the CAA. Although the title of
section 128 is ``State boards,'' the language of subsection 128(a)(2)
explicitly applies where the head of an executive agency, rather than a
board or body, approves permits or enforcement orders. In instances
where the head of an executive agency delegates his or her power to
approve permits or enforcement orders, or where statutory authority to
approve permits or enforcement orders is nominally vested in another
state official, the requirement to disclose adequately potential
conflicts of interest still applies. In other words, EPA thinks that
SIPs for all states, regardless of whether a state board or body
approves permits or enforcement orders under the CAA, must contain
adequate provisions for disclosure of potential conflicts of interest.
We propose to apply these considerations to the North Dakota SIP.
North Dakota currently does not have a multi-member board or body that
approves permits or enforcement orders under the CAA. Instead, permits
are approved by the Director of DAQ, and enforcement orders are
approved by the Section Chief of the Environmental Health Section.
Thus, we propose that North Dakota currently is not subject to the
requirements of subsection 128(a)(1).
However, North Dakota is subject to the requirements of section
128(a)(2), and we therefore cannot approve the certification, as
originally submitted, with respect to section 110(a)(2)(E)(ii). North
Dakota has informed us that the
[[Page 22548]]
North Dakota Department of Health has an ethics policy requiring (among
other things) internal disclosure of potential conflicts of interest
and recusal from the matter raising the conflict. North Dakota has
committed to submit as a SIP revision provisions reflecting this
policy, to the extent necessary to meet the requirements of section
128, by July 31, 2013.\17\ Because recusal is more stringent than the
minimum disclosure required by subsection 128(a)(2), we propose that
the policy, if submitted as an enforceable SIP provision, will meet the
requirements of section 128. We therefore propose to conditionally
approve North Dakota's certification with respect to the requirements
of section 128(a)(2).
---------------------------------------------------------------------------
\17\ North Dakota's commitment letter is available in the
docket.
---------------------------------------------------------------------------
Finally, with respect to section 110(a)(2)(E)(iii), North Dakota
has not assigned responsibility for carrying out portions of the SIP to
any local government, agency, or other instrumentality. North Dakota's
SIP therefore meets the requirements for this element.
7. Stationary source monitoring and reporting: Section 110(a)(2)(F)
requires (i) the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources, (ii) periodic reports on the nature and amounts of emissions
and emissions-related data from such sources, and (iii) correlation of
such reports by the state agency with any emission limitations or
standards established pursuant to the Act, which reports shall be
available at reasonable times for public inspection.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-03.10;
NDAC 33-15-01.12.1; NDAC 33-15-14-02.9; SIP Sections 8.2 and 8.3; (ii)
NDAC 23-25-03.10; NDCC 23-25-04.2; 33-15-14-02.9.d; NDAC 33-15-01.12.1;
(iii): NDCC 23-25-03.10; NDCC 23-25-06; NDCC 23-25-03.6; NDAC 33-15-01-
16.1; NDCC 23-25-04.2; SIP Section 8.2.
b. EPA analysis: NDCC section 23-25-03.10 generally requires
monitoring, recordkeeping, and reporting for owners and operators of
regulated sources. North Dakota's SIP-approved minor source and PSD
programs provide for monitoring, recordkeeping, and reporting
requirements for sources subject to minor and major source permitting.
North Dakota's SIP therefore meets the requirements of section
110(a)(2)(F) for the 1997 ozone NAAQS.
8. Emergency powers: Section 110(a)(2)(G) requires states to
provide for authority to address activities causing imminent and
substantial endangerment to public health, including contingency plans
to implement the emergency episode provisions in their SIPs.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.5; NDCC
23-25-03.12; NDCC 23-25-09.5; NDAC 33-15-11; SIP Chapter 5.
b. EPA analysis: NDAC 33-15-11 and SIP Chapter 5 provide the State
with general emergency authority comparable to that in section 303 of
the Act. North Dakota has not monitored any values above the priority
cut point for ozone. See 40 CFR 51.150(b)(5). The SIP therefore meets
the requirements of 110(a)(2)(G) for the 1997 ozone NAAQS.
9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan (i) from time to time as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii),
except as provided in paragraph (3)(C), whenever the Administrator
finds on the basis of information available to the Administrator that
the SIP is substantially inadequate to attain the NAAQS which it
implements or to otherwise comply with any additional requirements
under this Act.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-03.7;
NDCC 23-25-03.6; NDCC 23-25-03.8; SIP Section 1.14 (submitted 4/09);
(ii): NDCC 23-25-03.6-.8; NDCC 23-25-03.12; SIP Section 1.14 (submitted
4/09).
b. EPA analysis: EPA is proposing to approve Section 1.14 of the
SIP submitted to EPA April 6, 2009. Section 1.14 requires revision of
the SIP in the circumstances enumerated in section 110(a)(2)(H) of the
CAA. NDCC section 23-25-03 provides adequate authority for the
Department of Health to carry out such revisions. EPA therefore finds
that the State has sufficient authority to meet the requirements of
110(a)(2)(H).
10. Nonattainment Area Plan or Plan Revision under Part D: Section
110(a)(2)(I) requires that a SIP or SIP revision for an area designated
as a nonattainment area must meet the applicable requirements of part D
of this subchapter (relating to nonattainment areas).
a. EPA analysis for Section 110(a)(2)(I): As noted above, the
specific nonattainment area plan requirements of section 110(a)(2)(I)
are subject to the timing requirement of section 172, not the timing
requirement of section 110(a)(1). This element is therefore not
applicable to this action. EPA will take action on part D attainment
plans through a separate process.
11. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to PSD of
air quality and visibility protection).
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (section 121): NDCC 23-
25-08 (Orders); NDCC 23-25-03.4 and .6; NDAC 33-15-14 and 15; SIP
Chapter 10; (section 127): SIP Section 6.9; NDCC 23-25-06.1; (PSD):
NDCC 23-25-03.12; NDAC 33-15-15; NDAC 33-15-19; NDAC 33-15-25; NDAC 33-
15-02-03.4.
b. EPA analysis: The State has demonstrated that it has the
authority and rules in place to provide a process of consultation with
general purpose local governments, designated organizations of elected
officials of local governments and any Federal Land Manager having
authority over federal land to which the SIP applies, consistent with
the requirements of CAA section 121. EPA previously approved portions
of the North Dakota SIP as meeting the requirements of CAA section 127.
(45 FR 53475, Aug. 12, 1980).
As discussed above, the State has a SIP-approved PSD program that
(for the most part) incorporates by reference the federal program at 40
CFR 52.21. EPA has further evaluated North Dakota's SIP-approved PSD
program in this proposed action under IV.3, element 110(a)(2)(C).
Finally, with regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, the
North Dakota SIP meets the requirements of section 110(a)(2)(J) for the
1997 ozone NAAQS.
[[Page 22549]]
12. Air quality and modeling/data: Section 110(a)(2)(K) requires
that each SIP provide for (i) the performance of such air quality
modeling as the Administrator may prescribe for the purpose of
predicting the effect on ambient air quality of any emissions of any
air pollutant for which the Administrator has established a NAAQS, and
(ii) the submission, upon request, of data related to such air quality
modeling to the Administrator.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-03.2 and
.12; SIP Section 7.7 (Submitted 4/09); (ii): SIP Section 7.7 (Submitted
4/09); NDCC 23-23-06.1.
b. EPA analysis: North Dakota's SIP meets the requirements of CAA
section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, North
Dakota's PSD program requires estimates of ambient air concentrations
be based on applicable air quality models specified in Appendix W of 40
CFR part 51, and incorporates by reference the provision at 40 CFR
52.21(l)(2) requiring that modification or substitution of a model
specified in Appendix W must be approved by the Administrator. EPA also
proposes to approve the addition of SIP section 7.7, submitted April 6,
2009, as meeting the requirements of this section 110(a)(2)(K)(ii). As
a result, the SIP provides for such air quality modeling as the
Administrator has prescribed.
13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require
the owner or operator of each major stationary source to pay to the
permitting authority, as a condition of any permit required under this
act, a fee sufficient to cover (i) the reasonable costs of reviewing
and acting upon any application for such a permit, and (ii) if the
owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any
such permit (not including any court costs or other costs associated
with any enforcement action), until such fee requirement is superseded
with respect to such sources by the Administrator's approval of a fee
program under title V.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-04.2;
NDAC 33-15-23; (ii): NDAC 23-25-04.2; NDAC 33-15-23.
b. EPA analysis: North Dakota's submittal meets the requirements of
CAA section 110(a)(2)(L) for the 1997 ozone NAAQS. Final approval of
the title V operating permit program became effective June 17, 1999(64
FR 32433). As discussed in that approval, the State demonstrated that
the fees collected were sufficient to administer the program. In
addition, the SIP contains fee provisions for construction permits
(NDAC 33-15-23-02), including costs of processing not covered by the
application fee. The SIP also contains fee provisions for minor source
operating permits (NDAC 33-15-23-03).
14. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.
a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.4; SIP
Chapter 10.
b. EPA analysis: North Dakota's submittal meets the requirements of
CAA section 110(a)(2)(M) for the 1997 ozone NAAQS.
V. What action is EPA taking?
In this action, EPA is proposing to approve in full the November
23, 2009 certification for the following section 110(a)(2)
infrastructure elements for North Dakota for the 1997 ozone NAAQS: (A),
(B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and
(M). EPA is proposing to conditionally approve the November 23, 2009
certification for infrastructure element 110(a)(2)(E)(ii) for the 1997
ozone NAAQS. EPA is taking no action on infrastructure elements (D)(i),
(I), and the visibility protection requirement of (J) for the 1997
ozone NAAQS. In this action, EPA also proposes to approve portions of
North Dakota's April 6, 2009 SIP submission. Specifically, EPA proposes
to approve North Dakota's revisions to SIP sections 6.8, 6.11.3, and
chapter 9, and the additions of SIP sections 1.14 and 7.7.
VI. Statutory and Executive Order Reviews
Under the CAA, 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 CAA. Accordingly, this
proposed action merely approves some state law as meeting Federal
requirements and disapproves other state law because it does not meet
Federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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 CAA; 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, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: March 30, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012-9075 Filed 4-13-12; 8:45 am]
BILLING CODE 6560-50-P
