Approval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5, 27898-27906 [2013-11289]
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12. 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. Montana’s response to this
requirement: The State’s submissions
for the 1997 and 2006 PM2.5
infrastructure requirements cite Section
75–2–112(2)(j) of the MT CAA which
requires the Department to ‘‘. . . advise,
consult, contract, and cooperate with
other agencies of the state, local
governments, industries, other states,
interstate and interlocal agencies, the
United States, and any interested
persons or groups; . . .’’
As a matter of practice, the
Department consults with the local
agencies when nec . . . essary to
implement a control plan for a
nonattainment area. The Department
also meets with county/local air
pollution control program staff and
discusses monitoring issues, including
monitoring for PM2.5, prior to making
decisions regarding monitoring needs,
monitor type, locations, and monitoring
schedules.
Parties affected by Department
actions, including local political
subdivisions, may petition the BER for
a hearing and address of their
grievances, see ARM 17.8.140 (66 FR
42427), 17.8.141 (66 FR 42427), and
17.8.142 (66 FR 42427).
b. EPA Analysis: Montana’s submittal
meets the requirements of CAA section
110(a)(2)(M) for the 1997 and 2006
PM2.5 NAAQS.
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VI. What action is EPA taking?
In this action, EPA is proposing to
approve the following infrastructure
elements for the 1997 and 2006 PM2.5
NAAQS: (A), (C) with respect to the
requirement to have a minor NSR
program that addresses PM2.5; (E)(i),
(E)(iii), (F), (G), (H), (J) with respect to
the requirements of sections 121 and
127, (K), (L), and (M). EPA is proposing
to disapprove the following
infrastructure elements for the 1997 and
2006 PM2.5 NAAQS: (E)(ii) concerning
requirements for state boards under
section 128; and elements (C) and (J)
with respect to the requirement to have
a PSD program that meets the
requirements of part C of Title I of the
Act. Finally, in this action, EPA is
taking no action on infrastructure
element (D) for the 1997 and 2006 PM2.5
NAAQS as that element will be acted on
separately.
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VII. Statutory and Executive Order
Reviews
costs on Tribal governments or preempt
Tribal law.
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
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Intergovernmental relations,
Greenhouse gases, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
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Dated: May 2, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013–11293 Filed 5–10–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2011–0726; FRL–9813–1]
Approval and Promulgation of State
Implementation Plan Revisions;
Infrastructure Requirements for the
1997 and 2006 PM2.5 National Ambient
Air Quality Standards; Prevention of
Significant Deterioration Requirements
for PM2.5 Increments and Major and
Minor Source Baseline Dates; State
Board Requirements; North Dakota
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to approve
the State Implementation Plan (SIP)
submission from the State of North
Dakota to demonstrate that the SIP
meets the infrastructure requirements of
the Clean Air Act (CAA) for the National
Ambient Air Quality Standards
(NAAQS) promulgated for particulate
matter less than or equal to 2.5
micrometers (mm) in diameter (PM2.5) on
July 18, 1997 and on October 17, 2006.
The CAA requires that each state, after
a new or revised NAAQS is
promulgated, review their SIP to ensure
that it meets the requirements of the
‘‘infrastructure elements’’ necessary to
implement the new or revised NAAQS.
On May 25, 2012, North Dakota
submitted a certification of their
infrastructure SIP for the 1997 PM2.5
NAAQS. On August 12, 2010 and May
22, 2012, North Dakota submitted
certifications of their infrastructure SIP
for the 2006 PM2.5 NAAQS. We are also
proposing to approve two submissions
from North Dakota that revise the SIP to
address particular infrastructure
elements. First, the State submitted
revisions to the North Dakota Air
Pollution Control Rules (NDAC) on
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Federal Register / Vol. 78, No. 92 / Monday, May 13, 2013 / Proposed Rules
January 24, 2013 that will update the
Prevention of Significant Deterioration
(PSD) program by adopting by reference
federal provisions as they exist as of
January 1, 2012, which reflect the
requirements of the 2010 PM2.5
Increment Rule. Second, on April 2,
2013, the State submitted revisions to
the section of the SIP concerning state
boards. EPA will act separately on
certain requirements of the CAA relating
to interstate transport of air pollution for
the 2006 PM2.5 NAAQS.
DATES: Written comments must be
received on or before June 12, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2011–1726, 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, 8:00 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–2011–
0726. 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
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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, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
(iv) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(v) The initials FIP mean or refer to a
Federal Implementation Plan.
(vi) The initials GHG mean or refer to
greenhouse gases.
(vii) The initials NAAQS mean or
refer to national ambient air quality
standards.
(viii) The initials NDAC mean or refer
to the North Dakota Air Pollution
Control Rules.
(ix) The initials NDCC mean or refer
to the North Dakota Century Code.
(x) The initials NOX mean or refer to
nitrogen oxides.
(xi) The initials NSR mean or refer to
new source review.
(xii) The initials PM mean or refer to
particulate matter.
(xiii) The initials PM2.5 mean or refer
to particulate matter with an
aerodynamic diameter of less than 2.5
micrometers (fine particulate matter).
(xiv) The initials ppm mean or refer
to parts per million.
(xv) The initials PSD mean or refer to
Prevention of Significant Deterioration.
(xvi) The initials SIP mean or refer to
State Implementation Plan.
(xvii) The initials SSM mean or refer
to start-up, shutdown, or malfunction.
FOR FURTHER INFORMATION CONTACT:
What should I consider as I prepare my
comments for EPA?
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 CBI mean or refer to
confidential business information.
(iii) The word Department means or
refers to the North Dakota Department of
Health.
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Table of Contents
I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required
under sections 110(a)(1) and (2)?
V. How did North Dakota address the
infrastructure elements of sections
110(a)(1) and (2)?
VI. What action is EPA taking?
VII. Statutory and Executive Order Reviews
I. General Information
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.
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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);
• 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
new NAAQS for particulate matter less
than or equal to 2.5 micrometers (mm) in
diameter (PM2.5). Two new PM2.5
standards were added, set at 15 mg/m3,
based on the 3-year average of annual
arithmetic mean PM2.5 concentration
from single or multiple communityoriented monitors, and 65 mg/m3, based
on the 3-year average of the 98th
percentile of 24-hour PM2.5
concentrations at each populationoriented monitor within an area. In
addition, the 24-hour PM10 standard
was revised to be based on the 99th
percentile of 24-hour PM10
concentration at each monitor within an
area (62 FR 38652).
On October 17, 2006 EPA
promulgated a revised NAAQS for
PM2.5, tightening the level of the 24hour PM2.5 standard to 35 mg/m3 and
retaining the level of the annual PM2.5
standard at 15 mg/m3. EPA also retained
the 24-hour PM10 standard and revoked
the annual PM10 standard (71 FR
61144).
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).
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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 submissions may also vary
depending upon what provisions the
state’s existing SIP already contains. In
the case of the 1997 and 2006 PM2.5
NAAQS, states typically have met the
basic program elements required in
section 110(a)(2) through earlier SIP
submissions in connection with
previous NAAQS.
III. What is the scope of this
rulemaking?
This rulemaking will not cover four
substantive issues that are not integral
to acting on a state’s infrastructure SIP
submission: (1) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (2) 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’’); (3) 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,
(4) existing provisions for PSD programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Instead, EPA has indicated
that it has other authority to address any
such existing SIP defects in other
rulemakings, as appropriate. A detailed
rationale for why these four substantive
issues are not part of the scope of
infrastructure SIP rulemakings can be
found in EPA’s July 13, 2011, final rule
entitled, ‘‘Infrastructure SIP
Requirements for the 1997 8-hour Ozone
and PM2.5 National Ambient Air Quality
Standards’’ in the section entitled,
‘‘What Is The Scope Of This Final
Rulemaking?’’ (see 76 FR 41075 at
41076—41079).
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IV. What infrastructure elements are
required under sections 110(a)(1) and
(2)?
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): Interstate transport.
• 110(a)(2)(E): Adequate authority,
conflict of interest, and oversight of
local governments and regional
agencies.
• 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 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. Element 110(a)(2)(D)(i)(I),
Interstate transport of pollutants which
contribute significantly to
nonattainment in, or interfere with
maintenance by, any other state will be
acted upon in a separate action.
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: (1) 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 (2)
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
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to the nonattainment NSR portion of
section 110(a)(2)(C) or related to
110(a)(2)(I).
V. How did North Dakota address the
infrastructure elements of sections
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 the Act.
a. North Dakota’s response to this
requirement: The State’s 1997 and 2006
PM2.5 submissions cite provisions of the
North Dakota Air Pollution Control
Rules (NDAC), Chapter 33–15, which
establishes control requirements for
particulate matter and PM2.5 precursors.
In addition, the State cites the North
Dakota Century Code (NDCC), Chapter
23–25, Air Pollution Control, in Section
23–25–03 which provides the general
authority to regulate sources of PM2.5.
b. EPA analysis: First, this
infrastructure element does not require
the submittal of regulations or emission
limitations developed specifically for
attaining the 1997 and 2006 PM2.5
NAAQS, and North Dakota has no areas
designated as nonattainment for the
1997 and 2006 PM2.5 NAAQS.
Nonetheless, the North Dakota SIP
contains provisions for control of
particulate matter (NDAC 33–15–05).
The State also regulates emissions of
PM2.5 and its precursors through the
SIP-approved PSD and minor NSR
programs. This suffices, in the case of
North Dakota, to meet the requirements
of section 110(a)(2)(A) for the 1997 and
2006 PM2.5 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’s 1997 and 2006
PM2.5 submissions cite the NDCC 23–
25–03 which provides the authority for
the North Dakota Department of Health
(Department) to conduct ambient air
monitoring. In addition, the State cites
the Annual Network Monitoring Plans
for 2009 and 2011 which provide for an
ambient air quality monitoring system
in the State.
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b. EPA analysis: North Dakota’s air
monitoring program and data systems
meet the requirements of CAA section
110(a)(2)(B) for the 1997 and 2006 PM2.5
NAAQS. The North Dakota Division of
Air Quality’s (DAQ) 2012 Ambient Air
Annual Monitoring Network Plan was
received by EPA on February 14, 2013
and approved on April 4, 2013. The
plan meets current requirements for
monitoring of PM2.5.
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’s 1997 and 2006
PM2.5 submissions cite the NDAC,
chapters 33–15–14–02 (Permit to
Construct), 33–15–15 (PSD), 33–15–14–
03 (Minor Source Permit to Operation),
and 33–15–14–06 (Title V Permit to
Operate). In addition the State cites
NDCC 23–25–03.6 and 23–25–04.1,
which authorizes the State permitting
programs.
b. EPA analysis: To generally meet the
requirements of section 110(a)(2)(C), the
State is required to have SIP-approved
PSD, nonattainment NSR, and minor
NSR permitting programs adequate to
implement the 1997 and 2006 PM2.5
NAAQS. 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. 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).
PSD Requirements
North Dakota has a SIP-approved PSD
program that meets the general
requirements of part C of the Act (51 FR
31125). To satisfy the particular
requirements of section 110(a)(2)(C),
states should have a PSD program that
applies to all regulated NSR pollutants,
including greenhouse gases (GHGs). See
40 CFR 51.166(b)(48) and (b)(49). The
PSD program should reflect current
requirements for these pollutants. In
particular, for three pollutants—ozone,
PM2.5, and GHGs—there are additional
regulatory requirements (set out in
portions of 40 CFR 51.166) that we
consider in evaluating North Dakota’s
PSD program. In the rulemakings in
which EPA revised the requirements in
40 CFR 51.166 for these pollutants, EPA
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also updated the federal PSD program at
40 CFR 52.21 accordingly. North Dakota
implements the PSD program by, for the
most part, incorporating by reference
the federal PSD program as it existed on
a specific date. The State periodically
updates the PSD program by revising
the date of incorporation by reference
and submitting the change as a SIP
revision. As a result, the SIP revisions
generally reflect changes to PSD
requirements that EPA has promulgated
prior to the revised date of
incorporation by reference.
In particular, on June 3, 2010 (75 FR
31291), we approved a North Dakota SIP
revision that revised the date of
incorporation by reference of the federal
PSD program to August 1, 2007. That
revision addressed the PSD
requirements of the Phase 2 Ozone
Implementation Rule promulgated in
2005 (70 FR 71612). As a result, the
approved North Dakota PSD program
meets current requirements for ozone.
Similarly, on October 23, 2012 (77 FR
64736), we approved a North Dakota SIP
revision that revised the date of
incorporation by reference of the federal
PSD program to July 2, 2010. As
explained in the notice for that action,
that revision addressed the PSD
requirements related to GHGs provided
in EPA’s June 3, 2010 ‘‘Prevention of
Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule’’ (75 FR
31514). The approved North Dakota PSD
program thus also meets current
requirements for GHGs.
For PM2.5, EPA has promulgated two
relevant rules. The first, promulgated in
2008, addresses (among other things)
treatment of PM2.5 precursors in PSD
programs. The second, promulgated in
2010, establishes (among other things)
increments for PM2.5. As we discuss
next, both rules have been the subject of
recent litigation.
On January 4, 2013, the U.S. Court of
Appeals, in Natural Resources Defense
Council v. EPA, 706 F.3d 428 (D.C. Cir.
2013), issued a judgment that remanded
EPA’s 2007 and 2008 rules
implementing the 1997 PM2.5 NAAQS.
The court ordered EPA to ‘‘repromulgate
these rules pursuant to Subpart 4
consistent with this opinion.’’ Id. at 437.
Subpart 4 of Part D, Title 1 of the CAA
establishes additional provisions for
particulate matter nonattainment areas.
The 2008 implementation rule
addressed by the court decision,
‘‘Implementation of New Source Review
(NSR) Program for Particulate Matter
Less Than 2.5 Micrometers (PM2.5),’’
(May 16, 2008, 73 FR 28321),
promulgated NSR requirements for
implementation of PM2.5 in
nonattainment areas (nonattainment
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NSR) and attainment/unclassifiable
areas (PSD). As the requirements of
Subpart 4 only pertain to nonattainment
areas, EPA does not consider the
portions of the 2008 rule that address
requirements for PM2.5 attainment and
unclassifiable areas to be affected by the
court’s opinion. Moreover, EPA does not
anticipate the need to revise any PSD
requirements promulgated in the 2008
rule in order to comply with the court’s
decision. Accordingly, EPA’s approval
of North Dakota’s infrastructure SIP as
to elements (C), (D)(i)(II), or (J) with
respect to the PSD requirements
promulgated by the 2008
implementation rule does not conflict
with the court’s opinion.
The court’s decision with respect to
the nonattainment NSR requirements
promulgated by the 2008
implementation rule also does not affect
EPA’s action on the present
infrastructure action. EPA interprets the
Act to exclude nonattainment area
requirements, including requirements
associated with a nonattainment NSR
program, from infrastructure SIP
submissions due 3 years after adoption
or revision of a NAAQS. Instead, these
elements are typically referred to as
nonattainment SIP or attainment plan
elements, which would be due by the
dates statutorily prescribed under
subpart 2 through 5 under part D,
extending as far as 10 years following
designations for some elements.
As mentioned above, EPA previously
approved a North Dakota SIP revision
that revised the date of incorporation by
reference of the federal PSD program to
July 2, 2010. This SIP revision also
addressed the requirements of the 2008
PM2.5 NSR implementation rule. See 77
FR 64736. The remaining PSD
requirement for PM2.5 is contained in
EPA’s October 20, 2010 rule,
‘‘Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than
2.5 Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC)’’ (75 FR 64864). EPA regards
adoption of the PM2.5 increments as a
necessary requirement when assessing a
PSD program for the purposes of
element (C).
The PM2.5 increments have not been
approved into North Dakota’s SIP, as the
last approved date of incorporation by
reference of the federal PSD program is
July 2, 2010, prior to promulgation of
the PM2.5 increments. The State of North
Dakota submitted revisions to chapter
33–15–15–01.2, Scope, of the NDAC on
January 24, 2013 that adopt the PM2.5
increments by incorporating by
reference the federal PSD program at 40
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CFR part 52, section 21, as it existed on
January 1, 2012.
We propose to approve portions of the
January 24, 2013 submittal that are
necessary to incorporate the increments
into the SIP. Specifically, we propose to
approve the incorporation by reference
of 40 CFR part 52, section 21,
paragraphs (b)(14)(i), (ii), (iii), (b)(15)(i),
(ii), and paragraph (c) as those
paragraphs existed on January 1, 2012.
These paragraphs provide the major
source baseline date, the minor source
baseline date, and the increments for
PM2.5. At this time we are not proposing
to act on any other portions of the
January 24, 2013 submittal, including
the incorporation by reference of SILs
and SMCs for PM2.5.
With the partial approval of the
January 24, 2013 submittal, the North
Dakota PSD program will meet current
requirements for all regulated NSR
pollutants. As a result, we also propose
to approve the North Dakota
infrastructure SIP for element (C) for the
1997 and 2006 PM2.5 NAAQS with
respect to PSD requirements.
Minor NSR
The State has a SIP-approved minor
NSR program, adopted under section
110(a)(2)(C) of the Act. The State and
EPA have relied on the State’s existing
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 and 2006 PM2.5 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 may be
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
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country in protecting the NAAQS with
respect to new and modified minor
sources.
4. Interstate Transport: Section
110(a)(2)(D)(i) is subdivided into four
‘‘prongs,’’ two under 110(a)(2)(D)(i)(I)
and two under 110(a)(2)(D)(i)(II). The
two prongs under 110(a)(2)(D)(i)(I)
require SIPs to contain adequate
provisions to prohibit emissions that
(prong 1) contribute significantly to
nonattainment in any other state with
respect to any such national primary or
secondary NAAQS, or (prong 2)
interfere with maintenance by any other
state with respect to the same NAAQS.
The two prongs under 110(a)(2)(D)(i)(II)
require SIPs to contain adequate
provisions to prohibit emissions that
interfere with measures required to be
included in the applicable
implementation plan for any other state
under part C (prong 3) to prevent
significant deterioration of air quality,
or (prong 4) to protect visibility. As
noted, we are not acting on the
requirements of section 110(a)(2)(D)(i)(I)
(prongs 1 and 2), or the visibility
requirement (prong 4) of section
110(a)(2)(D)(i)(II) in this proposed
rulemaking.
a. North Dakota’s response to this
requirement: The State’s 2006 PM2.5
submission 1 addressing interstate
transport cites NDAC chapters 33–15–15
(PSD), 33–15–19 (Visibility Protection),
33–15–25 (Regional Haze
Requirements), SIP Section 7.8
(Interstate Transport of Air Pollution),
and the North Dakota SIP for Regional
Haze (February 24, 2010). In addition,
the State cites NDCC 23–25–03 which
provides the authority for the
Department to conduct an air quality
control program.
b. EPA Analysis: With regard to the
PSD portion of section 110(a)(2)(D)(i)(II),
this requirement may be met by the
State’s confirmation in an infrastructure
SIP submission that new major sources
and major modifications in the State are
subject to a PSD program meeting all the
relevant requirements of part C of title
I of the CAA or (if the state contains a
nonattainment area for the relevant
pollutant) to a NNSR program that
implements the 2006 PM2.5 NAAQS. As
discussed in more detail with respect to
section 110(a)(2)(C), with approval of
the PM2.5 increments, North Dakota’s
SIP will contain a PSD program that
reflects the relevant PSD requirements.
Accordingly, in this action EPA is
proposing to approve the infrastructure
SIP submission as meeting the
1 EPA has already taken final action on prong 3
of section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS.
See 75 FR 31290.
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applicable requirements of prong 3 of
section 110(a)(2)(D)(i).
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 North Dakota PSD
rules provide for notifying neighboring
states whose land may be significantly
affected by emissions from a new or
modified source. NDAC 33–15–15–
01.2(q)(2)(d) states:
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NDAC–33–15–15–01.2(q)(2)(d)—Send a
copy of the notice required in subparagraph
c to the applicant, the United States
environmental protection agency
administrator, and to officials and agencies
having cognizance over the location where
the source or modification will be situated as
follows: The chief executive of the city and
county where the source or modification
would be located; any comprehensive
regional land use planning agency; and any
state, federal land manager, or Indian
governing body whose lands may be
significantly affected by emissions from the
source or modification.
Similar notification requirements are
provided for minor sources under
NDAC 33–15–14–02.6.b(4).
All PSD permit applications are
provided to EPA within thirty days of
receipt. This includes sources that could
affect air quality in Canada. The draft
PSD permits, the Air Quality Effects
Analyses and the final permits are also
submitted to EPA.
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 (see NDAC 33–15–15–
01.2(q)(2)(d)). This provision satisfies
the notice requirement of section 126(a).
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 and 2006
PM2.5 NAAQS.
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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)’’ 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’s 1997 and 2006
PM2.5 submissions cite the NDAC 33–
15–23 (regulatory mechanism for paying
fees), the NDCC 23–25–04.2 (statutory
for collecting fees), and the NDCC 23–
25–03 (authority to carry out the
requirements of the SIP). Resources for
the operation of the air pollution control
program are addressed in Section 9 of
the SIP (updated April 2009) and the
State references section 2.11 of the SIP
which addresses legal authority by the
Department to collect fees necessary to
implement the program.
b. EPA Analysis: North Dakota’s SIP
meets the requirements of section
110(a)(2)(E)(i) for the 1997 and 2006
PM2.5 NAAQS. The NDCC 23–25–04
provides adequate authority for the
State of North Dakota to carry out its SIP
obligations with respect to the 1997 and
2006 PM2.5 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.
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. State boards: Section 110(a)(2)(E)(ii)
requires that the state comply with the
requirements respecting state boards
under section 128.
a. North Dakota’s response to this
requirement: The State’s 1997 and 2006
PM2.5 submissions cite the NDCC 23–
01–05 (statutory duties of the State
Health Officer). In North Dakota there
are no boards or bodies that approve
permits or enforcement orders.
b. EPA Analysis:
On September 17, 2012, EPA
conditionally approved North Dakota’s
infrastructure SIP for 110(a)(2)(E)(ii) for
the 1997 ozone NAAQS (77 FR 57029).
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North Dakota committed to submit
within one year a SIP revision to
address the requirements of section 128
of the Act. On April 8, 2013, EPA
received a submittal from the State that
revises language in SIP chapter 2,
section 15, Respecting Boards to include
provisions for addressing conflict of
interest requirements. We propose to
approve that submittal and we
correspondingly propose to approve the
infrastructure SIP for 110(a)(2)(E)(ii) for
the 1997 and 2006 PM2.5 NAAQS.
Section 128 of the Act 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.
As explained in detail in our April 16,
2012 proposal (77 FR 22547) for North
Dakota’s infrastructure SIP for the 1997
ozone NAAQS, EPA interprets
subsection 128(a)(1) to apply only to
states that have a board or body with
multiple members that, among its
duties, approves permits or enforcement
orders under the Act. In North Dakota,
there is no such multi-member board or
body. As a result, North Dakota did not
need to submit any provisions to
address the requirements of section
128(a)(1).
However, EPA interprets subsection
128(a)(2) to apply to all states,
regardless of whether the state has a
multi-member board that approves
permits or enforcement orders. As a
result, 128(a)(2) applies to North Dakota,
and, as also explained in the April 16,
2012 proposal, must be met through
SIP-approved, federally enforceable
provisions.
North Dakota’s April 8, 2013
submittal fulfills the commitment made
as part of our previous conditional
approval for the 1997 ozone NAAQS.
The submittal provides disclosure
requirements that apply to any person
that approves permits or enforcement
orders under North Dakota’s
implementation of the CAA. Any such
person must disclose potential conflicts
of interest, including the cause of the
conflict, in writing to a superior.
Conflicts of interest are defined broadly
to include any divided loyalty, any
conflict between the duties of the
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person and the person’s self or other
interest, and any interest, influence, or
relationship that might conflict or even
appear to conflict with the best interests
of the Department of Health or the State,
or that might affect the person’s working
judgment or loyalty. For the same
reasons discussed in detail in our
September 17, 2012 notice, we propose
to find that these procedures provide
adequate disclosure of potential
conflicts of interest within the meaning
of subsection 128(a)(2).
In summary, EPA proposes to approve
North Dakota’s April 8, 2013 submittal
into the SIP to meet the requirements of
section 128 of the Act. We also propose
to approve North Dakota’s infrastructure
SIP with respect to the requirements of
Section 110(a)(2)(E)(ii) for the 1997 and
2006 PM2.5 NAAQS.
8. Stationary source monitoring
system: 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’s 1997 and 2006
PM2.5 submissions cite the NDAC 33–
15–14–02.9, NDAC 33–15–14–03.6, and
NDAC 33–15–14–06.5 which require
monitoring of emissions from stationary
sources. In addition, the State cites
NDCC 23–25–03 which provides the
statutory authority for monitoring.
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 and 2006 PM2.5
NAAQS.
9. 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’s 1997 and 2006
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PM2.5 submissions cite NDAC 33–15–11
(Prevention of Air Pollution Emergency
Episodes), which provides the means to
implement emergency air pollution
episode measures and is authorized by
NDCC 23–25–03. In addition, the State
cites NDCC 28–32–32 and NDCC 28–25–
08, which grant the Department
authority to take action in an
emergency.
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. In our
2009 guidance for infrastructure
requirements for the 2006 PM2.5
NAAQS, we suggested that states that
had monitored and recorded 24-hour
PM2.5 levels greater than 140.4 mg/m3,
using the most recent three years of
data, should develop emergency episode
plans for the areas with the monitored
values. We also suggested that, if these
levels had not been exceeded, states
could certify that they had adequate
general emergency authority to address
PM2.5 episodes. In this rulemaking, we
view these suggestions as still
appropriate in assessing North Dakota’s
SIP for this element. North Dakota has
not monitored any values above the
140.4 mg/m3 level for PM2.5 for the past
three years (e.g., 2009, 2010, and 2011).
Since this level was not exceeded in any
area of the state and the State has
demonstrated that it has appropriate
general emergency powers to address
PM2.5 related episodes, no specific
emergency episode plans are necessary
at this time. The SIP therefore meets the
requirements of 110(a)(2)(G) for the
1997 and 2006 PM2.5 NAAQS.
10. 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’s 1997 and 2006
PM2.5 submissions cite the NDCC 23–
25–03.8 which formulates and
promulgates emission control
requirements for the prevention,
abatement and control of air pollution
in the state. In addition, the State also
cites Section 3.5 of the SIP which
commits the Department to a revision of
the control strategy as needed.
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b. EPA analysis: EPA approved
relevant sections of the North Dakota
SIP submitted to EPA April 6, 2009 on
September 17, 2012 (77 FR 57029).
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).
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: Consultation with
government officials: The State’s 1997
and 2006 PM2.5 submissions cite the
public participation procedures in the
NDAC 33–15–14–02.6 for
preconstruction review for minor
sources. In addition, the State cites
paragraph (q) of NDAC 33–15–15–01.2
for sources subject to PSD review.
Consultation with Federal Land
Managers (FLMs) for PSD projects is
accomplished in accordance with 40
CFR 52.21 (p) which is incorporated by
reference into NDAC 33–15–15–01.2.
For enforcement orders, the
requirements of NDCC 23–25–08 and
NDCC 28–32 are followed. Consultation
with other government agencies is
addressed in Chapter 10 of the SIP.
Public notification: The State cites the
ND SIP Section 6.9 which commits the
Department to notification of the public
during ambient air quality standard
exceedances. The authority for this
notification is found in NDCC 23–25–
06. In addition, NDAC 33–15–11–03.1
requires the Department to notify the
public during air pollution emergencies.
PSD and visibility protection: The
State cites adoption of the Federal PSD
rule by reference as they exist on August
1, 2007 and July 2, 2012. The
Department is in the process of adopting
the PSD rules as they exist on July 1,
2012. This will incorporate all existing
requirements for PM2.5. The ‘‘Tailoring
Rule’’ for greenhouse gases has been
adopted into North Dakota PSD rules
(April 2011) and PSD applicants must
address applicable requirements for
greenhouse gases.
Additionally, the State has a SIP in
place to address visibility for major
source (PSD) permitting (NDAC 33–15–
15), specific visibility impairment
(RAVI), and plume blight (NDAC 33–
15–19).
b. EPA Analysis:
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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. These
revisions are located in chapter 33–15–
15–01.2 of the NDAC. EPA has further
evaluated North Dakota’s SIP-approved
PSD program in this proposed action
under IV.3, element 110(a)(2)(C). As
stated there, with the approval of the
PM2.5 increments into the North Dakota
SIP, the SIP-approved PSD program
meets all relevant requirements for the
1997 and 2006 PM2.5 NAAQS.
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 and 2006 PM2.5 NAAQS.
12. Air quality and modeling/data:
Section 110(a)(2)(K) requires that each
SIP provide for:
110(a)(2)(K) for the 1997 and 2006 PM2.5
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. 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’s 1997 and 2006
PM2.5 submissions cite NDAC 33–15–23
which establishes fees for processing
Permit to Construct applications, annual
operating fees for minor sources, and
fees for major sources under the Title V
Permit to Operate program. NDCC 23–
25–04.2 provides authority for the fees.
b. EPA Analysis: North Dakota’s
submittal meets the requirements of
CAA section 110(a)(2)(L) for the 1997
and 2006 PM2.5 NAAQS. Final approval
of the title V operating permit program
became effective June 17, 1999 (64 FR
(i) the performance of such air quality
32433). As discussed in that approval,
modeling as the Administrator may prescribe
the State demonstrated that the fees
for the purpose of predicting the effect on
collected were sufficient to administer
ambient air quality of any emissions of any
air pollutant for which the Administrator has the program. In addition, the SIP
established a [NAAQS], and
contains fee provisions for construction
(ii) the submission, upon request, of data
permits (NDAC 33–15–23–02),
related to such air quality modeling to the
including costs of processing not
Administrator.
covered by the application fee.
14. Consultation/participation by
a. North Dakota’s response to this
requirement: The State’s 1997 and 2006 affected local entities: Section
PM2.5 submissions cite Section 7.7 of the 110(a)(2)(M) requires states to provide
for consultation and participation in SIP
ND SIP which addresses air quality
modeling. Modeling for minor sources is development by local political
addressed in NDAC 33–15–14–02.4 and subdivisions affected by the SIP.
a. North Dakota’s response to this
modeling for major PSD sources in 40
requirement: The State’s 1997 and 2006
CFR 52.21(k), (l), (m), (n) and (o) as
PM2.5 submissions cite the ND SIP,
incorporated into NDAC 33–15–15–
Chapter 10 which addresses the
01.2. NDCC 23–25–03 provides
consultation process the Department
authority for requiring modeling.
b. EPA Analysis: North Dakota’s SIP
will use to coordinate with local
meets the requirements of CAA section
political subdivisions that are affected
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27905
by any SIP revisions, and NDCC 23–25–
03 which also requires consultation.
The State also cites NDCC 23–25–02.6
(public notice).
b. EPA Analysis: North Dakota’s
submittal meets the requirements of
CAA section 10(a)(2)(M) for the 1997
and 2006 PM2.5 NAAQS.
VI. What action is EPA taking?
In this action, EPA is proposing to
approve the following infrastructure
elements for the 1997 and 2006 PM2.5
NAAQS: (A), (B), (C) with respect to
minor NSR and PSD requirements,
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and
(M). We are proposing to approve
(D)(i)(II) with respect to PSD
requirements for the 2006 PM2.5
NAAQS. EPA is also proposing to
approve a portion of the State’s January
24, 2013 submittal revising the State’s
PSD program: specifically, the
incorporation by reference of 40 CFR
part 52, section 21, paragraphs
(b)(14)(i),(ii),(iii), (b)(15)(i),(ii), and
paragraph (c) as those paragraphs
existed on January 1, 2012.
Additionally, EPA is proposing to
approve the April 8, 2013 submittal of
revisions to Chapter 2, Section 2.15 into
the North Dakota SIP. Finally, EPA will
act separately on infrastructure element
(D)(i)(I) for the 2006 PM2.5 NAAQS.
VII. 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 USC 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
USC 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
USC 601 et seq.);
E:\FR\FM\13MYP1.SGM
13MYP1
27906
Federal Register / Vol. 78, No. 92 / Monday, May 13, 2013 / Proposed Rules
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Public Law 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 USC 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,
Greenhouse gases, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: May 2, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013–11289 Filed 5–10–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
emcdonald on DSK67QTVN1PROD with PROPOSALS
40 CFR Part 745
[EPA–HQ–OPPT–2010–0173; FRL–9385–6]
RIN 2070–AJ56
Lead; Renovation, Repair, and Painting
Program for Public and Commercial
Buildings; Notice of Public Meeting
and Reopening of Comment Period
Environmental Protection
Agency (EPA).
AGENCY:
VerDate Mar<15>2010
14:16 May 10, 2013
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Notice of public meeting and
reopening of comment period.
ACTION:
SUMMARY: In 2010, EPA issued an
advance notice of proposed rulemaking
(ANPRM) concerning renovation, repair,
and painting activities in public and
commercial buildings. EPA is in the
process of determining whether these
activities create lead-based paint
hazards, and, for those that do,
developing certification, training, and
work practice requirements as directed
by the Toxic Substances Control Act
(TSCA). This document announces a
public meeting on June 26, 2013, and
reopens the comment period for the
December 31, 2012 Federal Register
document to allow for additional data
and other information to be submitted
by the public and interested
stakeholders.
DATES: The public meeting will be held
on June 26, 2013, from 8:30 a.m. to
12:30 p.m. Requests to participate in the
meeting must be received on or before
June 3, 2013.
To request accommodation of a
disability, please contact the technical
person listed under FOR FURTHER
INFORMATON CONTACT, preferably at least
10 days prior to the meeting, to give
EPA as much time as possible to process
your request.
Comments must be received on or
before July 12, 2013. For additional
information on timeframes for
submission of comments, see Unit II. of
the SUPPLEMENTARY INFORMATION.
ADDRESSES: The meeting will be held at
the Environmental Protection Agency,
Room 1153, EPA East Bldg., 1200
Pennsylvania Ave. NW., Washington,
DC 20460.
Requests to participate in the meeting,
identified by docket identification (ID)
number EPA–HQ–OPPT–2010–0173,
must be submitted to the technical
person listed under FOR FURTHER
INFORMATION CONTACT.
Submit your comments, identified by
docket ID number EPA–HQ–OPPT–
2010–0173, by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute.
• Mail: Document Control Office
(7407M), Office of Pollution Prevention
and Toxics (OPPT), Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460–0001.
• Hand Delivery: To make special
arrangements for hand delivery or
PO 00000
Frm 00043
Fmt 4702
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delivery of boxed information, please
follow the instructions at https://
www.epa.gov/dockets/contacts.html.
Additional instructions on
commenting or visiting the docket,
along with more information about
dockets generally, is available at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For
technical information contact: Hans
Scheifele, National Program Chemicals
Division (7404T), Office of Pollution
Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460–0001;
telephone number: (202) 564–3122;
email address: scheifele.hans@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCAHotline@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This document is directed to the
public in general. However, you may be
potentially affected by this action if you
manage or perform renovations, repairs,
or painting activities on the exterior or
interior of public buildings or
commercial buildings. The following
list of North American Industrial
Classification System (NAICS) codes is
not intended to be exhaustive, but rather
provides a guide to help readers
determine whether this document
applies to them. Other types of entities
not listed may also be affected.
Potentially affected entities may
include:
• Building construction (NAICS code
236), e.g., commercial building
construction, industrial building
construction, commercial and
institutional building construction,
building finishing contractors, drywall
and insulation contractors, painting and
wall covering contractors, finish
carpentry contractors, other building
finishing contractors.
• Specialty trade contractors (NAICS
code 238), e.g., plumbing, heating, and
air-conditioning contractors; painting
and wall covering contractors; electrical
contractors; finish carpentry contractors;
drywall and insulation contractors;
siding contractors; tile and terrazzo
contractors; glass and glazing
contractors.
• Real estate (NAICS code 531), e.g.,
lessors of non-residential buildings and
dwellings, non-residential property
managers.
• Other general government support
(NAICS code 921), e.g., general services
E:\FR\FM\13MYP1.SGM
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Agencies
[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Proposed Rules]
[Pages 27898-27906]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11289]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2011-0726; FRL-9813-1]
Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 and 2006 PM2.5
National Ambient Air Quality Standards; Prevention of Significant
Deterioration Requirements for PM2.5 Increments and Major
and Minor Source Baseline Dates; State Board Requirements; North Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) submission from the State of North Dakota to demonstrate that the
SIP meets the infrastructure requirements of the Clean Air Act (CAA)
for the National Ambient Air Quality Standards (NAAQS) promulgated for
particulate matter less than or equal to 2.5 micrometers ([mu]m) in
diameter (PM2.5) on July 18, 1997 and on October 17, 2006.
The CAA requires that each state, after a new or revised NAAQS is
promulgated, review their SIP to ensure that it meets the requirements
of the ``infrastructure elements'' necessary to implement the new or
revised NAAQS. On May 25, 2012, North Dakota submitted a certification
of their infrastructure SIP for the 1997 PM2.5 NAAQS. On
August 12, 2010 and May 22, 2012, North Dakota submitted certifications
of their infrastructure SIP for the 2006 PM2.5 NAAQS. We are
also proposing to approve two submissions from North Dakota that revise
the SIP to address particular infrastructure elements. First, the State
submitted revisions to the North Dakota Air Pollution Control Rules
(NDAC) on
[[Page 27899]]
January 24, 2013 that will update the Prevention of Significant
Deterioration (PSD) program by adopting by reference federal provisions
as they exist as of January 1, 2012, which reflect the requirements of
the 2010 PM2.5 Increment Rule. Second, on April 2, 2013, the
State submitted revisions to the section of the SIP concerning state
boards. EPA will act separately on certain requirements of the CAA
relating to interstate transport of air pollution for the 2006
PM2.5 NAAQS.
DATES: Written comments must be received on or before June 12, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-1726, 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, 8:00 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-
2011-0726. 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, 8:00 a.m. to 4:00 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 CBI mean or refer to confidential business
information.
(iii) The word Department means or refers to the North Dakota
Department of Health.
(iv) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(v) The initials FIP mean or refer to a Federal Implementation
Plan.
(vi) The initials GHG mean or refer to greenhouse gases.
(vii) The initials NAAQS mean or refer to national ambient air
quality standards.
(viii) The initials NDAC mean or refer to the North Dakota Air
Pollution Control Rules.
(ix) The initials NDCC mean or refer to the North Dakota Century
Code.
(x) The initials NOX mean or refer to nitrogen oxides.
(xi) The initials NSR mean or refer to new source review.
(xii) The initials PM mean or refer to particulate matter.
(xiii) The initials PM2.5 mean or refer to particulate
matter with an aerodynamic diameter of less than 2.5 micrometers (fine
particulate matter).
(xiv) The initials ppm mean or refer to parts per million.
(xv) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(xvi) The initials SIP mean or refer to State Implementation Plan.
(xvii) The initials SSM mean or refer to start-up, shutdown, or
malfunction.
Table of Contents
I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required under sections
110(a)(1) and (2)?
V. How did North Dakota address the infrastructure elements of
sections 110(a)(1) and (2)?
VI. What action is EPA taking?
VII. 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.
[[Page 27900]]
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);
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 new NAAQS for particulate matter
less than or equal to 2.5 micrometers ([mu]m) in diameter
(PM2.5). Two new PM2.5 standards were added, set
at 15 [mu]g/m\3\, based on the 3-year average of annual arithmetic mean
PM2.5 concentration from single or multiple community-
oriented monitors, and 65 [mu]g/m\3\, based on the 3-year average of
the 98th percentile of 24-hour PM2.5 concentrations at each
population-oriented monitor within an area. In addition, the 24-hour
PM10 standard was revised to be based on the 99th percentile
of 24-hour PM10 concentration at each monitor within an area
(62 FR 38652).
On October 17, 2006 EPA promulgated a revised NAAQS for
PM2.5, tightening the level of the 24-hour PM2.5
standard to 35 [mu]g/m\3\ and retaining the level of the annual
PM2.5 standard at 15 [mu]g/m\3\. EPA also retained the 24-
hour PM10 standard and revoked the annual PM10
standard (71 FR 61144).
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 submissions may
also vary depending upon what provisions the state's existing SIP
already contains. In the case of the 1997 and 2006 PM2.5
NAAQS, states typically have met the basic program elements required in
section 110(a)(2) through earlier SIP submissions in connection with
previous NAAQS.
III. What is the scope of this rulemaking?
This rulemaking will not cover four substantive issues that are not
integral to acting on a state's infrastructure SIP submission: (1)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction at sources, that may be contrary to
the CAA and EPA's policies addressing such excess emissions (``SSM'');
(2) 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''); (3) 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, (4) existing provisions for PSD programs that may be
inconsistent with current requirements of EPA's ``Final NSR Improvement
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526
(June 13, 2007) (``NSR Reform''). Instead, EPA has indicated that it
has other authority to address any such existing SIP defects in other
rulemakings, as appropriate. A detailed rationale for why these four
substantive issues are not part of the scope of infrastructure SIP
rulemakings can be found in EPA's July 13, 2011, final rule entitled,
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' in the
section entitled, ``What Is The Scope Of This Final Rulemaking?'' (see
76 FR 41075 at 41076--41079).
IV. What infrastructure elements are required under sections 110(a)(1)
and (2)?
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): Interstate transport.
110(a)(2)(E): Adequate authority, conflict of interest,
and oversight of local governments and regional agencies.
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 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. Element 110(a)(2)(D)(i)(I), Interstate transport of
pollutants which contribute significantly to nonattainment in, or
interfere with maintenance by, any other state will be acted upon in a
separate action.
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: (1) 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
(2) 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
[[Page 27901]]
to the nonattainment NSR portion of section 110(a)(2)(C) or related to
110(a)(2)(I).
V. How did North Dakota address the infrastructure elements of sections
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 the Act.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite provisions of the North
Dakota Air Pollution Control Rules (NDAC), Chapter 33-15, which
establishes control requirements for particulate matter and
PM2.5 precursors. In addition, the State cites the North
Dakota Century Code (NDCC), Chapter 23-25, Air Pollution Control, in
Section 23-25-03 which provides the general authority to regulate
sources of PM2.5.
b. EPA analysis: First, this infrastructure element does not
require the submittal of regulations or emission limitations developed
specifically for attaining the 1997 and 2006 PM2.5 NAAQS,
and North Dakota has no areas designated as nonattainment for the 1997
and 2006 PM2.5 NAAQS. Nonetheless, the North Dakota SIP
contains provisions for control of particulate matter (NDAC 33-15-05).
The State also regulates emissions of PM2.5 and its
precursors through the SIP-approved PSD and minor NSR programs. This
suffices, in the case of North Dakota, to meet the requirements of
section 110(a)(2)(A) for the 1997 and 2006 PM2.5 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's 1997
and 2006 PM2.5 submissions cite the NDCC 23-25-03 which
provides the authority for the North Dakota Department of Health
(Department) to conduct ambient air monitoring. In addition, the State
cites the Annual Network Monitoring Plans for 2009 and 2011 which
provide for an ambient air quality monitoring system in the State.
b. EPA analysis: North Dakota's air monitoring program and data
systems meet the requirements of CAA section 110(a)(2)(B) for the 1997
and 2006 PM2.5 NAAQS. The North Dakota Division of Air
Quality's (DAQ) 2012 Ambient Air Annual Monitoring Network Plan was
received by EPA on February 14, 2013 and approved on April 4, 2013. The
plan meets current requirements for monitoring of PM2.5.
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's 1997
and 2006 PM2.5 submissions cite the NDAC, chapters 33-15-14-
02 (Permit to Construct), 33-15-15 (PSD), 33-15-14-03 (Minor Source
Permit to Operation), and 33-15-14-06 (Title V Permit to Operate). In
addition the State cites NDCC 23-25-03.6 and 23-25-04.1, which
authorizes the State permitting programs.
b. EPA analysis: To generally meet the requirements of section
110(a)(2)(C), the State is required to have SIP-approved PSD,
nonattainment NSR, and minor NSR permitting programs adequate to
implement the 1997 and 2006 PM2.5 NAAQS. 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.
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).
PSD Requirements
North Dakota has a SIP-approved PSD program that meets the general
requirements of part C of the Act (51 FR 31125). To satisfy the
particular requirements of section 110(a)(2)(C), states should have a
PSD program that applies to all regulated NSR pollutants, including
greenhouse gases (GHGs). See 40 CFR 51.166(b)(48) and (b)(49). The PSD
program should reflect current requirements for these pollutants. In
particular, for three pollutants--ozone, PM2.5, and GHGs--
there are additional regulatory requirements (set out in portions of 40
CFR 51.166) that we consider in evaluating North Dakota's PSD program.
In the rulemakings in which EPA revised the requirements in 40 CFR
51.166 for these pollutants, EPA also updated the federal PSD program
at 40 CFR 52.21 accordingly. North Dakota implements the PSD program
by, for the most part, incorporating by reference the federal PSD
program as it existed on a specific date. The State periodically
updates the PSD program by revising the date of incorporation by
reference and submitting the change as a SIP revision. As a result, the
SIP revisions generally reflect changes to PSD requirements that EPA
has promulgated prior to the revised date of incorporation by
reference.
In particular, on June 3, 2010 (75 FR 31291), we approved a North
Dakota SIP revision that revised the date of incorporation by reference
of the federal PSD program to August 1, 2007. That revision addressed
the PSD requirements of the Phase 2 Ozone Implementation Rule
promulgated in 2005 (70 FR 71612). As a result, the approved North
Dakota PSD program meets current requirements for ozone.
Similarly, on October 23, 2012 (77 FR 64736), we approved a North
Dakota SIP revision that revised the date of incorporation by reference
of the federal PSD program to July 2, 2010. As explained in the notice
for that action, that revision addressed the PSD requirements related
to GHGs provided in EPA's June 3, 2010 ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (75 FR
31514). The approved North Dakota PSD program thus also meets current
requirements for GHGs.
For PM2.5, EPA has promulgated two relevant rules. The
first, promulgated in 2008, addresses (among other things) treatment of
PM2.5 precursors in PSD programs. The second, promulgated in
2010, establishes (among other things) increments for PM2.5.
As we discuss next, both rules have been the subject of recent
litigation.
On January 4, 2013, the U.S. Court of Appeals, in Natural Resources
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a
judgment that remanded EPA's 2007 and 2008 rules implementing the 1997
PM2.5 NAAQS. The court ordered EPA to ``repromulgate these
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437.
Subpart 4 of Part D, Title 1 of the CAA establishes additional
provisions for particulate matter nonattainment areas.
The 2008 implementation rule addressed by the court decision,
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' (May 16, 2008,
73 FR 28321), promulgated NSR requirements for implementation of
PM2.5 in nonattainment areas (nonattainment
[[Page 27902]]
NSR) and attainment/unclassifiable areas (PSD). As the requirements of
Subpart 4 only pertain to nonattainment areas, EPA does not consider
the portions of the 2008 rule that address requirements for
PM2.5 attainment and unclassifiable areas to be affected by
the court's opinion. Moreover, EPA does not anticipate the need to
revise any PSD requirements promulgated in the 2008 rule in order to
comply with the court's decision. Accordingly, EPA's approval of North
Dakota's infrastructure SIP as to elements (C), (D)(i)(II), or (J) with
respect to the PSD requirements promulgated by the 2008 implementation
rule does not conflict with the court's opinion.
The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 implementation rule also does not
affect EPA's action on the present infrastructure action. EPA
interprets the Act to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due 3 years after adoption or
revision of a NAAQS. Instead, these elements are typically referred to
as nonattainment SIP or attainment plan elements, which would be due by
the dates statutorily prescribed under subpart 2 through 5 under part
D, extending as far as 10 years following designations for some
elements.
As mentioned above, EPA previously approved a North Dakota SIP
revision that revised the date of incorporation by reference of the
federal PSD program to July 2, 2010. This SIP revision also addressed
the requirements of the 2008 PM2.5 NSR implementation rule.
See 77 FR 64736. The remaining PSD requirement for PM2.5 is
contained in EPA's October 20, 2010 rule, ``Prevention of Significant
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards
adoption of the PM2.5 increments as a necessary requirement
when assessing a PSD program for the purposes of element (C).
The PM2.5 increments have not been approved into North
Dakota's SIP, as the last approved date of incorporation by reference
of the federal PSD program is July 2, 2010, prior to promulgation of
the PM2.5 increments. The State of North Dakota submitted
revisions to chapter 33-15-15-01.2, Scope, of the NDAC on January 24,
2013 that adopt the PM2.5 increments by incorporating by
reference the federal PSD program at 40 CFR part 52, section 21, as it
existed on January 1, 2012.
We propose to approve portions of the January 24, 2013 submittal
that are necessary to incorporate the increments into the SIP.
Specifically, we propose to approve the incorporation by reference of
40 CFR part 52, section 21, paragraphs (b)(14)(i), (ii), (iii),
(b)(15)(i), (ii), and paragraph (c) as those paragraphs existed on
January 1, 2012. These paragraphs provide the major source baseline
date, the minor source baseline date, and the increments for
PM2.5. At this time we are not proposing to act on any other
portions of the January 24, 2013 submittal, including the incorporation
by reference of SILs and SMCs for PM2.5.
With the partial approval of the January 24, 2013 submittal, the
North Dakota PSD program will meet current requirements for all
regulated NSR pollutants. As a result, we also propose to approve the
North Dakota infrastructure SIP for element (C) for the 1997 and 2006
PM2.5 NAAQS with respect to PSD requirements.
Minor NSR
The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act. The State and EPA have relied on the
State's existing 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 and 2006 PM2.5 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 may be
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) is subdivided into
four ``prongs,'' two under 110(a)(2)(D)(i)(I) and two under
110(a)(2)(D)(i)(II). The two prongs under 110(a)(2)(D)(i)(I) require
SIPs to contain adequate provisions to prohibit emissions that (prong
1) contribute significantly to nonattainment in any other state with
respect to any such national primary or secondary NAAQS, or (prong 2)
interfere with maintenance by any other state with respect to the same
NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs to contain
adequate provisions to prohibit emissions that interfere with measures
required to be included in the applicable implementation plan for any
other state under part C (prong 3) to prevent significant deterioration
of air quality, or (prong 4) to protect visibility. As noted, we are
not acting on the requirements of section 110(a)(2)(D)(i)(I) (prongs 1
and 2), or the visibility requirement (prong 4) of section
110(a)(2)(D)(i)(II) in this proposed rulemaking.
a. North Dakota's response to this requirement: The State's 2006
PM2.5 submission \1\ addressing interstate transport cites
NDAC chapters 33-15-15 (PSD), 33-15-19 (Visibility Protection), 33-15-
25 (Regional Haze Requirements), SIP Section 7.8 (Interstate Transport
of Air Pollution), and the North Dakota SIP for Regional Haze (February
24, 2010). In addition, the State cites NDCC 23-25-03 which provides
the authority for the Department to conduct an air quality control
program.
---------------------------------------------------------------------------
\1\ EPA has already taken final action on prong 3 of section
110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS. See 75 FR
31290.
---------------------------------------------------------------------------
b. EPA Analysis: With regard to the PSD portion of section
110(a)(2)(D)(i)(II), this requirement may be met by the State's
confirmation in an infrastructure SIP submission that new major sources
and major modifications in the State are subject to a PSD program
meeting all the relevant requirements of part C of title I of the CAA
or (if the state contains a nonattainment area for the relevant
pollutant) to a NNSR program that implements the 2006 PM2.5
NAAQS. As discussed in more detail with respect to section
110(a)(2)(C), with approval of the PM2.5 increments, North
Dakota's SIP will contain a PSD program that reflects the relevant PSD
requirements. Accordingly, in this action EPA is proposing to approve
the infrastructure SIP submission as meeting the
[[Page 27903]]
applicable requirements of prong 3 of section 110(a)(2)(D)(i).
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 North Dakota
PSD rules provide for notifying neighboring states whose land may be
significantly affected by emissions from a new or modified source. NDAC
33-15-15-01.2(q)(2)(d) states:
NDAC-33-15-15-01.2(q)(2)(d)--Send a copy of the notice required
in subparagraph c to the applicant, the United States environmental
protection agency administrator, and to officials and agencies
having cognizance over the location where the source or modification
will be situated as follows: The chief executive of the city and
county where the source or modification would be located; any
comprehensive regional land use planning agency; and any state,
federal land manager, or Indian governing body whose lands may be
significantly affected by emissions from the source or modification.
Similar notification requirements are provided for minor sources
under NDAC 33-15-14-02.6.b(4).
All PSD permit applications are provided to EPA within thirty days
of receipt. This includes sources that could affect air quality in
Canada. The draft PSD permits, the Air Quality Effects Analyses and the
final permits are also submitted to EPA.
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 (see NDAC 33-15-15-01.2(q)(2)(d)). This
provision satisfies the notice requirement of section 126(a).
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 and 2006 PM2.5 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)'' 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's 1997
and 2006 PM2.5 submissions cite the NDAC 33-15-23
(regulatory mechanism for paying fees), the NDCC 23-25-04.2 (statutory
for collecting fees), and the NDCC 23-25-03 (authority to carry out the
requirements of the SIP). Resources for the operation of the air
pollution control program are addressed in Section 9 of the SIP
(updated April 2009) and the State references section 2.11 of the SIP
which addresses legal authority by the Department to collect fees
necessary to implement the program.
b. EPA Analysis: North Dakota's SIP meets the requirements of
section 110(a)(2)(E)(i) for the 1997 and 2006 PM2.5 NAAQS.
The NDCC 23-25-04 provides adequate authority for the State of North
Dakota to carry out its SIP obligations with respect to the 1997 and
2006 PM2.5 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.
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. State boards: Section 110(a)(2)(E)(ii) requires that the state
comply with the requirements respecting state boards under section 128.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the NDCC 23-01-05 (statutory
duties of the State Health Officer). In North Dakota there are no
boards or bodies that approve permits or enforcement orders.
b. EPA Analysis:
On September 17, 2012, EPA conditionally approved North Dakota's
infrastructure SIP for 110(a)(2)(E)(ii) for the 1997 ozone NAAQS (77 FR
57029). North Dakota committed to submit within one year a SIP revision
to address the requirements of section 128 of the Act. On April 8,
2013, EPA received a submittal from the State that revises language in
SIP chapter 2, section 15, Respecting Boards to include provisions for
addressing conflict of interest requirements. We propose to approve
that submittal and we correspondingly propose to approve the
infrastructure SIP for 110(a)(2)(E)(ii) for the 1997 and 2006
PM2.5 NAAQS.
Section 128 of the Act 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.
As explained in detail in our April 16, 2012 proposal (77 FR 22547)
for North Dakota's infrastructure SIP for the 1997 ozone NAAQS, EPA
interprets subsection 128(a)(1) to apply only to states that have a
board or body with multiple members that, among its duties, approves
permits or enforcement orders under the Act. In North Dakota, there is
no such multi-member board or body. As a result, North Dakota did not
need to submit any provisions to address the requirements of section
128(a)(1).
However, EPA interprets subsection 128(a)(2) to apply to all
states, regardless of whether the state has a multi-member board that
approves permits or enforcement orders. As a result, 128(a)(2) applies
to North Dakota, and, as also explained in the April 16, 2012 proposal,
must be met through SIP-approved, federally enforceable provisions.
North Dakota's April 8, 2013 submittal fulfills the commitment made
as part of our previous conditional approval for the 1997 ozone NAAQS.
The submittal provides disclosure requirements that apply to any person
that approves permits or enforcement orders under North Dakota's
implementation of the CAA. Any such person must disclose potential
conflicts of interest, including the cause of the conflict, in writing
to a superior. Conflicts of interest are defined broadly to include any
divided loyalty, any conflict between the duties of the
[[Page 27904]]
person and the person's self or other interest, and any interest,
influence, or relationship that might conflict or even appear to
conflict with the best interests of the Department of Health or the
State, or that might affect the person's working judgment or loyalty.
For the same reasons discussed in detail in our September 17, 2012
notice, we propose to find that these procedures provide adequate
disclosure of potential conflicts of interest within the meaning of
subsection 128(a)(2).
In summary, EPA proposes to approve North Dakota's April 8, 2013
submittal into the SIP to meet the requirements of section 128 of the
Act. We also propose to approve North Dakota's infrastructure SIP with
respect to the requirements of Section 110(a)(2)(E)(ii) for the 1997
and 2006 PM2.5 NAAQS.
8. Stationary source monitoring system: 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's 1997
and 2006 PM2.5 submissions cite the NDAC 33-15-14-02.9, NDAC
33-15-14-03.6, and NDAC 33-15-14-06.5 which require monitoring of
emissions from stationary sources. In addition, the State cites NDCC
23-25-03 which provides the statutory authority for monitoring.
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 and 2006 PM2.5 NAAQS.
9. 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's 1997
and 2006 PM2.5 submissions cite NDAC 33-15-11 (Prevention of
Air Pollution Emergency Episodes), which provides the means to
implement emergency air pollution episode measures and is authorized by
NDCC 23-25-03. In addition, the State cites NDCC 28-32-32 and NDCC 28-
25-08, which grant the Department authority to take action in an
emergency.
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. In our 2009 guidance for infrastructure requirements for the
2006 PM2.5 NAAQS, we suggested that states that had
monitored and recorded 24-hour PM2.5 levels greater than
140.4 [micro]g/m\3\, using the most recent three years of data, should
develop emergency episode plans for the areas with the monitored
values. We also suggested that, if these levels had not been exceeded,
states could certify that they had adequate general emergency authority
to address PM2.5 episodes. In this rulemaking, we view these
suggestions as still appropriate in assessing North Dakota's SIP for
this element. North Dakota has not monitored any values above the 140.4
[micro]g/m\3\ level for PM2.5 for the past three years
(e.g., 2009, 2010, and 2011). Since this level was not exceeded in any
area of the state and the State has demonstrated that it has
appropriate general emergency powers to address PM2.5
related episodes, no specific emergency episode plans are necessary at
this time. The SIP therefore meets the requirements of 110(a)(2)(G) for
the 1997 and 2006 PM2.5 NAAQS.
10. 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's 1997
and 2006 PM2.5 submissions cite the NDCC 23-25-03.8 which
formulates and promulgates emission control requirements for the
prevention, abatement and control of air pollution in the state. In
addition, the State also cites Section 3.5 of the SIP which commits the
Department to a revision of the control strategy as needed.
b. EPA analysis: EPA approved relevant sections of the North Dakota
SIP submitted to EPA April 6, 2009 on September 17, 2012 (77 FR 57029).
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).
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: Consultation with
government officials: The State's 1997 and 2006 PM2.5
submissions cite the public participation procedures in the NDAC 33-15-
14-02.6 for preconstruction review for minor sources. In addition, the
State cites paragraph (q) of NDAC 33-15-15-01.2 for sources subject to
PSD review. Consultation with Federal Land Managers (FLMs) for PSD
projects is accomplished in accordance with 40 CFR 52.21 (p) which is
incorporated by reference into NDAC 33-15-15-01.2. For enforcement
orders, the requirements of NDCC 23-25-08 and NDCC 28-32 are followed.
Consultation with other government agencies is addressed in Chapter 10
of the SIP.
Public notification: The State cites the ND SIP Section 6.9 which
commits the Department to notification of the public during ambient air
quality standard exceedances. The authority for this notification is
found in NDCC 23-25-06. In addition, NDAC 33-15-11-03.1 requires the
Department to notify the public during air pollution emergencies.
PSD and visibility protection: The State cites adoption of the
Federal PSD rule by reference as they exist on August 1, 2007 and July
2, 2012. The Department is in the process of adopting the PSD rules as
they exist on July 1, 2012. This will incorporate all existing
requirements for PM2.5. The ``Tailoring Rule'' for
greenhouse gases has been adopted into North Dakota PSD rules (April
2011) and PSD applicants must address applicable requirements for
greenhouse gases.
Additionally, the State has a SIP in place to address visibility
for major source (PSD) permitting (NDAC 33-15-15), specific visibility
impairment (RAVI), and plume blight (NDAC 33-15-19).
b. EPA Analysis:
[[Page 27905]]
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. These revisions are located in chapter 33-15-15-01.2 of the
NDAC. EPA has further evaluated North Dakota's SIP-approved PSD program
in this proposed action under IV.3, element 110(a)(2)(C). As stated
there, with the approval of the PM2.5 increments into the
North Dakota SIP, the SIP-approved PSD program meets all relevant
requirements for the 1997 and 2006 PM2.5 NAAQS.
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 and 2006 PM2.5 NAAQS.
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's 1997
and 2006 PM2.5 submissions cite Section 7.7 of the ND SIP
which addresses air quality modeling. Modeling for minor sources is
addressed in NDAC 33-15-14-02.4 and modeling for major PSD sources in
40 CFR 52.21(k), (l), (m), (n) and (o) as incorporated into NDAC 33-15-
15-01.2. NDCC 23-25-03 provides authority for requiring modeling.
b. EPA Analysis: North Dakota's SIP meets the requirements of CAA
section 110(a)(2)(K) for the 1997 and 2006 PM2.5 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. 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's 1997
and 2006 PM2.5 submissions cite NDAC 33-15-23 which
establishes fees for processing Permit to Construct applications,
annual operating fees for minor sources, and fees for major sources
under the Title V Permit to Operate program. NDCC 23-25-04.2 provides
authority for the fees.
b. EPA Analysis: North Dakota's submittal meets the requirements of
CAA section 110(a)(2)(L) for the 1997 and 2006 PM2.5 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.
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's 1997
and 2006 PM2.5 submissions cite the ND SIP, Chapter 10 which
addresses the consultation process the Department will use to
coordinate with local political subdivisions that are affected by any
SIP revisions, and NDCC 23-25-03 which also requires consultation. The
State also cites NDCC 23-25-02.6 (public notice).
b. EPA Analysis: North Dakota's submittal meets the requirements of
CAA section 10(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS.
VI. What action is EPA taking?
In this action, EPA is proposing to approve the following
infrastructure elements for the 1997 and 2006 PM2.5 NAAQS:
(A), (B), (C) with respect to minor NSR and PSD requirements, (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M). We are proposing to approve
(D)(i)(II) with respect to PSD requirements for the 2006
PM2.5 NAAQS. EPA is also proposing to approve a portion of
the State's January 24, 2013 submittal revising the State's PSD
program: specifically, the incorporation by reference of 40 CFR part
52, section 21, paragraphs (b)(14)(i),(ii),(iii), (b)(15)(i),(ii), and
paragraph (c) as those paragraphs existed on January 1, 2012.
Additionally, EPA is proposing to approve the April 8, 2013 submittal
of revisions to Chapter 2, Section 2.15 into the North Dakota SIP.
Finally, EPA will act separately on infrastructure element (D)(i)(I)
for the 2006 PM2.5 NAAQS.
VII. 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 USC 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 USC 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 USC 601 et seq.);
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Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 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 USC 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, Greenhouse gases, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Dated: May 2, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013-11289 Filed 5-10-13; 8:45 am]
BILLING CODE 6560-50-P