Approval and Promulgation of State Implementation Plans; North Dakota; Revisions to Infrastructure Requirements for All National Ambient Air Quality Standards; Carbon Monoxide (CO); Lead (Pb); Nitrogen Dioxide (NO2, 50865-50867 [2018-21948]
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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2018–0616; FRL–9984–79–
Region 8]
Approval and Promulgation of State
Implementation Plans; North Dakota;
Revisions to Infrastructure
Requirements for All National Ambient
Air Quality Standards; Carbon
Monoxide (CO); Lead (Pb); Nitrogen
Dioxide (NO2); Ozone (O3); Particle
Pollution (PM2.5, PM10); Sulfur Dioxide
(SO2); Recodification
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the North Dakota State
Implementation Plan (SIP) for all
National Ambient Air Quality Standards
(NAAQS) for the purposes of
transferring authority from the North
Dakota Department of Health (NDDH) to
the North Dakota Department of
Environmental Quality (NDDEQ). We
are also proposing to approve the
related recodification of the portions of
North Dakota’s Air Pollution Rules that
have been previously approved into the
SIP. The EPA is taking this action
pursuant to section 110 of the Clean Air
Act (CAA).
DATES: Written comments must be
received on or before November 9, 2018.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2018–0616, to the Federal
Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.regulations.gov. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
generally not consider comments or
comment contents located outside of the
primary submission (i.e., on the web,
cloud, or other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
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making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
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. The 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: Kate
Gregory, Air Program, EPA, Region 8,
Mailcode 8P–AR, 1595 Wynkoop Street,
Denver, Colorado 80202–1129, (303)
312–6175, gregory.kate@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
I. Background
The North Dakota state legislature
created a new NDDEQ in 2017.1 The
NDDEQ will assume all the duties and
responsibilities of the NDDH’s
Environmental Health Section. To
accommodate the new NDDEQ, the
North Dakota Air Pollution Control Law
was recodified in the North Dakota
Century Code (NDCC) as NDCC 23.1–06
and the Air Pollution Rules were
recodified in the North Dakota
Administrative Code (NDAC) as NDAC
33.1–15.
Among the duties of the new NDDEQ
is the implementation and enforcement
of North Dakota’s SIP. The basic
requirements for a state agency with
respect to its authority and ability to
implement and enforce a SIP are
provided in the ‘‘infrastructure’’
elements of CAA section 110(a)(2). After
the promulgation of a new or revised
NAAQS, states must submit an
‘‘infrastructure’’ SIP to address the
relevant elements of section 110(a)(2).
The EPA has issued guidance to states
on how to meet these elements in their
infrastructure SIP submissions, and the
guidance specifically identifies
1 North
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50865
elements for which states should show
they have the proper authority.2
Prior to the creation of NDDEQ, the
NDDH submitted several infrastructure
SIP revisions to address the
promulgation and revision of various
NAAQS. The EPA approved these in
several actions and by approving these
actions, we determined that NDDH met,
among other things, the relevant
requirements in section 110(a)(2) with
respect to NDDH’s authority and ability
to implement and enforce North
Dakota’s SIP.3
On August 6, 2018, the state
submitted a revision to their prior
infrastructure SIPs to address the
transfer of authority from the NDDH
Environmental Health Section to the
NDDEQ. The state also submitted the
recodified Air Pollution Rules that had
been previously adopted into the SIP.
The state held a public hearing
regarding the transfer of authority on
June 5, 2018.4 No comments were
received during both the public hearing
and the public comment period
regarding the proposed changes.
II. The EPA’s Evaluation
North Dakota’s SIP submittal
addresses the transfer of authority as
follows. First, the submittal identifies
the citations to the NDCC and NDAC
contained in previous infrastructure SIP
submittals that the EPA has approved.
The submittal provides a crosswalk with
references to the recodified NDCC and
NDAC to show the new location of these
authorities.5 The submittal also quotes a
specific provision of Senate Bill 2327
that provides, among other things, that
all ‘‘orders, determinations, and
permits’’ made by NDDH before the
transfer of authority remain in effect.
Finally, the submittal notes that NDDEQ
will be funded and staffed at the same
level as the Environmental Health
Division in NDDH previously was.
For purposes of the transfer of
authority, we note the following
elements of section 110(a)(2) as
particularly relevant:
• 110(a)(2)(B): Authority to operate
an ambient air quality monitoring
network;
2 Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2), September
2013. For additional details on the EPA’s general
interpretation of the requirements under sections
110(a)(1) and 110(a)(2) and approach to review of
infrastructure SIPs, please see 82 FR 29457, 29458–
59 (June 29, 2017).
3 See, for example, 82 FR 46681 (October 6, 2017),
80 FR 60540 (October 7, 2015), 78 FR 45866 (July
30, 2013).
4 ND iSIP Revision Submission, p.17.
5 A version of this crosswalk created by the EPA
is also provided in the docket for this rulemaking.
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• 110(a)(2)(C): Authority to enforce
the SIP;
• 110(a)(2)(C): Authority to regulate
the modification and construction of
stationary sources to assure the NAAQS
are achieved (known as minor new
source review);
• 110(a)(2)(C): Authority to
implement a permit program as required
in part C of title I of the Act (known as
prevention of significant deterioration);
• 110(a)(2)(E)(i): Adequate personnel,
funding, and authority to carry out the
implementation plan;
• 110(a)(2)(F): Authority to require
installation, maintenance, and
replacement of monitoring equipment
by stationary sources; to require
periodic reporting on emissions from
such sources; and to correlate such
reports with emission limitations;
• 110(a)(2)(G): Authority comparable
to that in CAA section 303 (emergency
authority to restrain pollution
presenting an imminent and substantial
endangerment);
• 110(a)(2)(H): Authority to revise the
SIP as necessary;
• 110(a)(2)(J): Authority to provide
public notification as required under
CAA section 127;
• 110(a)(2)(K): Authority to require
such air quality modeling as prescribed
by the Administrator and to submit
modeling data on request to the
Administrator; and
• 110(a)(2)(L): Authority to require
permitting fees.
These elements are described in detail
in the 2013 guidance cited above. As the
recodification of the NDCC and NDAC
leave the substance of the relevant
provisions cited in the submittal
unmodified, the reasons that we have
previously approved NDDH as having
sufficient legal authority to address each
of these and other infrastructure
elements continue to apply. Please see
the previous approval notices for details
of those reasons, which we propose to
adopt in this action.
With respect to enforcement and
implementation of permits and
enforcement orders that were previously
issued under the SIP by NDDH, we
propose that the language in Senate Bill
3727 quoted in the SIP submittal
adequately addresses the authority of
NDDEQ to continue to enforce and
implement those permits and
enforcement orders. Finally, as we have
previously approved the state’s
infrastructure SIP as containing the
necessary assurances that NDDH had
adequate personnel and funding, and
NDDEQ will continue at the same levels
of personnel and funding, we propose
that the requirements in 110(a)(2)(E)(i)
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regarding personnel and funding are
met.
As part of the SIP submittal, in
Section VI, the state provided an
opinion from the North Dakota Attorney
General. The opinion addresses the
fundamental SIP legal authorities
enumerated in 40 CFR 51.230, which
consists of authority to:
• Adopt emission standards,
limitations, and other control measures
as necessary for attainment and
maintenance of the NAAQS;
• Enforce SIP provisions, including
seeking injunctive relief;
• Abate emission on an emergency
basis to prevent substantial
endangerment;
• Prevent construction, modification,
or operation of a facility that may result
in emissions that prevent attainment
and maintenance of the NAAQS;
• Obtain information necessary to
determine compliance with the SIP,
including authority to require
recordkeeping, make inspections, and
conduct tests; and
• Require owners or operators of
stationary sources to install, maintain,
and operate monitoring devices and
make periodic reports to the state on
emissions from the sources.
The Attorney General’s opinion cites
the specific provisions of state law that
provide these fundamental authorities.
Based on this opinion, and the revisions
to the state’s infrastructure SIP
discussed above, the EPA proposes to
approve the transfer of authority
embodied in the state’s submittal.
Finally, Section IV of the submittal
contains the recodified Air Pollution
Rules that have been previously
approved into North Dakota’s SIP.6
North Dakota’s submittal indicates that
the state is not resubmitting the entire
SIP. Instead, the state is only updating
the numbering of the provisions that
have previously been approved into the
SIP, as well as replacing the obsolete
references to the NDDH with references
to the NDDEQ. In this case, our review
is limited to the renumbering and name
change, and not the substance of the
rules.7 We therefore propose to approve
the recodification and change in name
as appropriate and consistent with the
transfer of authority. Our proposed
approval is limited to the recodification
and change in name and does not re6 For purposes of cross-referencing a recodified
provision with its previous version, we note that
the recodification followed a consistent scheme: All
rules previously codified as 33–15–xx–xx are now
codified as 33.1–15–xx–xx.
7 See ‘‘Review of State Regulation
Recodification,’’ Memorandum from Johnnie L.
Pearson to Air Branch Chiefs, Regions I–X, Feb. 12,
1990.
PO 00000
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Fmt 4702
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approve the substantive rules in North
Dakota’s SIP.
All revisions to the North Dakota SIP
would be federally enforceable as of the
effective date of the EPA’s approval of
this submission. The state plans to rely
on the date when the EPA signs the final
notice for purposes of notifying the state
legislature that the EPA has approved
these revisions, which will provide for
the transfer authority from NDDH to
NDDEQ to be effective under state law.
Prior to the effective date of this
approval, the state intends to take the
necessary additional steps as specified
in S.L. 2017, ch. 199, Section 1, to
ensure that NDDEQ rules and the
NDDEQ would become federally
enforceable on the effective date of the
EPA’s approval. Unless and until the
NDDEQ rules and agency become fully
effective under federal law, for purposes
of federal law the EPA recognizes the
state’s program as currently approved
under the NDDH.
III. Proposed Action
We are proposing to approve the
August 18, 2018 revisions to the North
Dakota infrastructure SIP, for all
NAAQS, for the purposes of the transfer
of authority from NDDH to the NDDEQ.
We are also proposing to approve the
corresponding recodification of the
entire SIP.
IV. Incorporation by Reference
In this document, the EPA is
proposing to include regulatory text in
an EPA final rule that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is proposing to
incorporate by reference the NDDEQ
rules discussed in section II of this
preamble. The EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 8 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting federal requirements and does
not impose additional requirements
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beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• 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, the SIP is not approved to
apply on any Indian reservation land or
in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
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recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 3, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.
[FR Doc. 2018–21948 Filed 10–9–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2018–0022; FRL–9985–25–
Region 10]
Air Plan Approval; Oregon; Removal of
Obsolete Regulations
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing removal of
the outdated rules in the Code of
Federal Regulations (CFR) for the State
of Oregon because they are duplicative
or obsolete. Removal of such material
from the air program subparts is
designed to improve cost effectiveness
and usability of the CFR. The EPA is
also proposing to make non-substantive
revisions to reflect updated citations
and correct a typographical error. This
proposed action makes no substantive
changes to the Oregon State
Implementation Plan and imposes no
new requirements.
DATES: Written comments must be
received on or before November 9, 2018.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2018–0022 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
SUMMARY:
PO 00000
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50867
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Christi Duboiski, EPA Region 10, at
(360) 753–9081, or duboiski.christi@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, wherever
‘‘we’’, ‘‘us’’ or ‘‘our’’ is used, it is
intended to refer to the EPA.
I. Introduction
This action is being taken pursuant to
Executive Order 13563—Improving
Regulation and Regulatory Review. It is
intended to reduce the number of pages
in the Code of Federal Regulations
(CFR) by identifying those rules in 40
CFR part 52, subpart MM, for the State
of Oregon that are duplicative or
obsolete. One aspect of the EPA’s
proposed action removes historical
information found in the ‘‘Approval of
plans’’ section in 40 CFR 52.1973,
‘‘Original Identification of plan’’ section
in 40 CFR 52.1974, ‘‘Content of
approved State submitted
implementation plan’’ section in 40 CFR
52.1977, and ‘‘Control Strategy: Ozone’’
section in 40 CFR 52.1982. These rules
no longer have any use or legal effect
because they have been superseded by
subsequently approved state
implementation plan (SIP) revisions or
they are no longer necessary because the
EPA previously promulgated
administrative rule actions to replace
these sections with summary tables in
40 CFR 52.1970 (78 FR 74012, December
10, 2013). These summary tables
describe the regulations, source-specific
actions, and non-regulatory
requirements that comprise the SIP.
II. Removal of Duplicative or Obsolete
Rules and Non-Substantive Changes to
Certain Rules
The EPA reviewed the following
regulations and found that they should
be removed or revised for the reasons
set forth as follows:
A. Section 52.1973
Approval of Plans
As discussed above, this section is no
longer necessary because the EPA
replaced the historical information
contained in this section with summary
tables in § 52.1970 (78 FR 74012,
December 10, 2013). The EPA reviewed
§ 52.1973 to verify that all relevant
historical information in this section is
contained in § 52.1970. The EPA is
therefore proposing to remove
§ 52.1973.
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Agencies
[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)]
[Proposed Rules]
[Pages 50865-50867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21948]
[[Page 50865]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2018-0616; FRL-9984-79-Region 8]
Approval and Promulgation of State Implementation Plans; North
Dakota; Revisions to Infrastructure Requirements for All National
Ambient Air Quality Standards; Carbon Monoxide (CO); Lead (Pb);
Nitrogen Dioxide (NO2); Ozone (O3); Particle Pollution (PM2.5, PM10);
Sulfur Dioxide (SO2); Recodification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the North Dakota State Implementation Plan (SIP)
for all National Ambient Air Quality Standards (NAAQS) for the purposes
of transferring authority from the North Dakota Department of Health
(NDDH) to the North Dakota Department of Environmental Quality (NDDEQ).
We are also proposing to approve the related recodification of the
portions of North Dakota's Air Pollution Rules that have been
previously approved into the SIP. The EPA is taking this action
pursuant to section 110 of the Clean Air Act (CAA).
DATES: Written comments must be received on or before November 9, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2018-0616, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.regulations.gov. The EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
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. The 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: Kate Gregory, Air Program, EPA, Region
8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129,
(303) 312-6175, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
The North Dakota state legislature created a new NDDEQ in 2017.\1\
The NDDEQ will assume all the duties and responsibilities of the NDDH's
Environmental Health Section. To accommodate the new NDDEQ, the North
Dakota Air Pollution Control Law was recodified in the North Dakota
Century Code (NDCC) as NDCC 23.1-06 and the Air Pollution Rules were
recodified in the North Dakota Administrative Code (NDAC) as NDAC 33.1-
15.
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\1\ North Dakota Senate Bill 2327.
---------------------------------------------------------------------------
Among the duties of the new NDDEQ is the implementation and
enforcement of North Dakota's SIP. The basic requirements for a state
agency with respect to its authority and ability to implement and
enforce a SIP are provided in the ``infrastructure'' elements of CAA
section 110(a)(2). After the promulgation of a new or revised NAAQS,
states must submit an ``infrastructure'' SIP to address the relevant
elements of section 110(a)(2). The EPA has issued guidance to states on
how to meet these elements in their infrastructure SIP submissions, and
the guidance specifically identifies elements for which states should
show they have the proper authority.\2\
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\2\ Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),
September 2013. For additional details on the EPA's general
interpretation of the requirements under sections 110(a)(1) and
110(a)(2) and approach to review of infrastructure SIPs, please see
82 FR 29457, 29458-59 (June 29, 2017).
---------------------------------------------------------------------------
Prior to the creation of NDDEQ, the NDDH submitted several
infrastructure SIP revisions to address the promulgation and revision
of various NAAQS. The EPA approved these in several actions and by
approving these actions, we determined that NDDH met, among other
things, the relevant requirements in section 110(a)(2) with respect to
NDDH's authority and ability to implement and enforce North Dakota's
SIP.\3\
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\3\ See, for example, 82 FR 46681 (October 6, 2017), 80 FR 60540
(October 7, 2015), 78 FR 45866 (July 30, 2013).
---------------------------------------------------------------------------
On August 6, 2018, the state submitted a revision to their prior
infrastructure SIPs to address the transfer of authority from the NDDH
Environmental Health Section to the NDDEQ. The state also submitted the
recodified Air Pollution Rules that had been previously adopted into
the SIP. The state held a public hearing regarding the transfer of
authority on June 5, 2018.\4\ No comments were received during both the
public hearing and the public comment period regarding the proposed
changes.
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\4\ ND iSIP Revision Submission, p.17.
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II. The EPA's Evaluation
North Dakota's SIP submittal addresses the transfer of authority as
follows. First, the submittal identifies the citations to the NDCC and
NDAC contained in previous infrastructure SIP submittals that the EPA
has approved. The submittal provides a crosswalk with references to the
recodified NDCC and NDAC to show the new location of these
authorities.\5\ The submittal also quotes a specific provision of
Senate Bill 2327 that provides, among other things, that all ``orders,
determinations, and permits'' made by NDDH before the transfer of
authority remain in effect. Finally, the submittal notes that NDDEQ
will be funded and staffed at the same level as the Environmental
Health Division in NDDH previously was.
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\5\ A version of this crosswalk created by the EPA is also
provided in the docket for this rulemaking.
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For purposes of the transfer of authority, we note the following
elements of section 110(a)(2) as particularly relevant:
110(a)(2)(B): Authority to operate an ambient air quality
monitoring network;
[[Page 50866]]
110(a)(2)(C): Authority to enforce the SIP;
110(a)(2)(C): Authority to regulate the modification and
construction of stationary sources to assure the NAAQS are achieved
(known as minor new source review);
110(a)(2)(C): Authority to implement a permit program as
required in part C of title I of the Act (known as prevention of
significant deterioration);
110(a)(2)(E)(i): Adequate personnel, funding, and
authority to carry out the implementation plan;
110(a)(2)(F): Authority to require installation,
maintenance, and replacement of monitoring equipment by stationary
sources; to require periodic reporting on emissions from such sources;
and to correlate such reports with emission limitations;
110(a)(2)(G): Authority comparable to that in CAA section
303 (emergency authority to restrain pollution presenting an imminent
and substantial endangerment);
110(a)(2)(H): Authority to revise the SIP as necessary;
110(a)(2)(J): Authority to provide public notification as
required under CAA section 127;
110(a)(2)(K): Authority to require such air quality
modeling as prescribed by the Administrator and to submit modeling data
on request to the Administrator; and
110(a)(2)(L): Authority to require permitting fees.
These elements are described in detail in the 2013 guidance cited
above. As the recodification of the NDCC and NDAC leave the substance
of the relevant provisions cited in the submittal unmodified, the
reasons that we have previously approved NDDH as having sufficient
legal authority to address each of these and other infrastructure
elements continue to apply. Please see the previous approval notices
for details of those reasons, which we propose to adopt in this action.
With respect to enforcement and implementation of permits and
enforcement orders that were previously issued under the SIP by NDDH,
we propose that the language in Senate Bill 3727 quoted in the SIP
submittal adequately addresses the authority of NDDEQ to continue to
enforce and implement those permits and enforcement orders. Finally, as
we have previously approved the state's infrastructure SIP as
containing the necessary assurances that NDDH had adequate personnel
and funding, and NDDEQ will continue at the same levels of personnel
and funding, we propose that the requirements in 110(a)(2)(E)(i)
regarding personnel and funding are met.
As part of the SIP submittal, in Section VI, the state provided an
opinion from the North Dakota Attorney General. The opinion addresses
the fundamental SIP legal authorities enumerated in 40 CFR 51.230,
which consists of authority to:
Adopt emission standards, limitations, and other control
measures as necessary for attainment and maintenance of the NAAQS;
Enforce SIP provisions, including seeking injunctive
relief;
Abate emission on an emergency basis to prevent
substantial endangerment;
Prevent construction, modification, or operation of a
facility that may result in emissions that prevent attainment and
maintenance of the NAAQS;
Obtain information necessary to determine compliance with
the SIP, including authority to require recordkeeping, make
inspections, and conduct tests; and
Require owners or operators of stationary sources to
install, maintain, and operate monitoring devices and make periodic
reports to the state on emissions from the sources.
The Attorney General's opinion cites the specific provisions of
state law that provide these fundamental authorities. Based on this
opinion, and the revisions to the state's infrastructure SIP discussed
above, the EPA proposes to approve the transfer of authority embodied
in the state's submittal.
Finally, Section IV of the submittal contains the recodified Air
Pollution Rules that have been previously approved into North Dakota's
SIP.\6\ North Dakota's submittal indicates that the state is not
resubmitting the entire SIP. Instead, the state is only updating the
numbering of the provisions that have previously been approved into the
SIP, as well as replacing the obsolete references to the NDDH with
references to the NDDEQ. In this case, our review is limited to the
renumbering and name change, and not the substance of the rules.\7\ We
therefore propose to approve the recodification and change in name as
appropriate and consistent with the transfer of authority. Our proposed
approval is limited to the recodification and change in name and does
not re-approve the substantive rules in North Dakota's SIP.
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\6\ For purposes of cross-referencing a recodified provision
with its previous version, we note that the recodification followed
a consistent scheme: All rules previously codified as 33-15-xx-xx
are now codified as 33.1-15-xx-xx.
\7\ See ``Review of State Regulation Recodification,''
Memorandum from Johnnie L. Pearson to Air Branch Chiefs, Regions I-
X, Feb. 12, 1990.
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All revisions to the North Dakota SIP would be federally
enforceable as of the effective date of the EPA's approval of this
submission. The state plans to rely on the date when the EPA signs the
final notice for purposes of notifying the state legislature that the
EPA has approved these revisions, which will provide for the transfer
authority from NDDH to NDDEQ to be effective under state law. Prior to
the effective date of this approval, the state intends to take the
necessary additional steps as specified in S.L. 2017, ch. 199, Section
1, to ensure that NDDEQ rules and the NDDEQ would become federally
enforceable on the effective date of the EPA's approval. Unless and
until the NDDEQ rules and agency become fully effective under federal
law, for purposes of federal law the EPA recognizes the state's program
as currently approved under the NDDH.
III. Proposed Action
We are proposing to approve the August 18, 2018 revisions to the
North Dakota infrastructure SIP, for all NAAQS, for the purposes of the
transfer of authority from NDDH to the NDDEQ. We are also proposing to
approve the corresponding recodification of the entire SIP.
IV. Incorporation by Reference
In this document, the EPA is proposing to include regulatory text
in an EPA final rule that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference the NDDEQ rules discussed in section II of
this preamble. The EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and at the
EPA Region 8 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting federal
requirements and does not impose additional requirements
[[Page 50867]]
beyond those imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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, the SIP is not approved to apply on any Indian reservation
land or in any other area where EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
proposed rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 3, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.
[FR Doc. 2018-21948 Filed 10-9-18; 8:45 am]
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