Air Plan Approval; North Dakota; Revisions to Permitting Rules; and Correction, 14049-14058 [2023-04427]

Download as PDF Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11. FAA Order JO 7400.11 is published annually and becomes effective on September 15. Regulatory Notices and Analyses The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial, and unlikely to result in adverse or negative comments. It, therefore: (1) is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5– 6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment ddrumheller on DSK120RN23PROD with RULES1 In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: ■ Authority: 49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389. 16:34 Mar 06, 2023 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022, is amended as follows: ■ Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. * * * * * AWP CA E5 Tulare, CA [New] Mefford Field Airport, CA (lat. 36°9′24″ N, long. 119°19′36″ W) That airspace extending upward from 700 feet above the surface within 1.8 miles each side of the 142° bearing from the airport extending to 6.4 miles southeast of the airport, and within 1.8 miles each side of the 322° bearing from the airport extending to 6.4 miles northwest of the airport. Issued in Des Moines, Washington, on February 27, 2023. B.G. Chew, Acting Group Manager, Operations Support Group, Western Service Center. [FR Doc. 2023–04586 Filed 3–6–23; 8:45 am] BILLING CODE 4910–13–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 Environmental Review VerDate Sep<11>2014 § 71.1 Jkt 259001 [EPA–R08–OAR–2021–0005; FRL–8683–02– R8] Air Plan Approval; North Dakota; Revisions to Permitting Rules; and Correction Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: In accordance with the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is taking final action to approve State Implementation Plan (SIP) revisions submitted by North Dakota on August 3, 2020. The revisions contain amendments to the State’s Ambient Air Quality Standards, Permit to Construct, and Prevention of Significant Deterioration (PSD) regulations. In addition, we are correcting the citation to a revision to North Dakota Administrative Code (NDAC) section 33.1–15–20–04.4. In our proposal, we provided the incorrect citation to section 33.1–15–20–04.3. DATES: This final rule is effective on April 6, 2023. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R08–OAR–2021–0005. All documents in the docket are listed on SUMMARY: PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 14049 the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https:// www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air and Radiation Division, EPA, Region 8, Mailcode 8P– AR, 1595 Wynkoop Street, Denver, Colorado 80202–1129, telephone number: (303) 312–6227, email address: leone.kevin@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ means the EPA. I. Background The EPA is taking final action to approve the SIP amendments to the North Dakota Administrative Code (NDAC), which North Dakota submitted to EPA on August 3, 2020. These amendments to the NDAC are found in Article 33.1–15 (Air Pollution Control) and include revisions to Chapter 33.1– 15–01 (General Provisions), Chapter 33.1–15–02 (Ambient Air Quality Standards, Table 1), Chapter 33.1–15–03 (Restriction of Emission of Visible Air Contaminants), Chapter 33.1–15–14 (Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V to Operate), Chapter 33.1–15–15 (Prevention of Significant Deterioration of Air Quality), Chapter 33.1–15–19 (Visibility Protection), and Chapter 33.1–15–20 (Control of Emissions from Oil and Gas Well Production Facilities). Revisions to Chapter 33.1–15–25 (Regional Haze Requirements) were acted on in a separate rulemaking.1 North Dakota is also revising Chapter 2 Section 2.15 (Respecting Boards) located in North Dakota’s EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures. In addition to taking final action approving North Dakota’s revisions, we are also correcting an error in citation we made in our proposal for the revision to section 33.1–15–10–04.4. In our Federal Register document 86 FR 41413, appearing on page 41415 in 1 The EPA approved North Dakota’s rule revisions to chapter 33.1–15–25 (regional haze) on June 8, 2021 (86 FR 30387). E:\FR\FM\07MRR1.SGM 07MRR1 14050 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES1 section G, subchapter 2, second asterisk, section 33.1–15–20–04.3 should have read section 33.1–15–20–04.4. We consider this error to be a typographical error, which we believe did not have a deleterious effect on the public’s ability to comment on the substance of the revision. This is supported by the fact that the revision description in our proposal with the incorrect citation matches the description of the revision in North Dakota’s SIP submittal containing the correct citation to section 33.1–15.20–04.4 which was made available in our docket. In addition, we drew a comment on the provision with the commenter providing the correct citation to section 33.1–15–.20–04.4. Our August 21, 2021, proposed rulemaking contains a detailed summary of the SIP revisions in question and explains the bases for our proposed approval.2 We invited comment on all aspects of our proposal, and provided a 30-day comment period, which was extended and ended on October 4, 2021.3 II. Response to Comments We received comments from the Center for Biological Diversity on October 4, 2021. The comments focused on the four revisions to chapter 33.1– 15–20 titled ‘‘Control of Emissions from Oil and Gas Well Production Facilities.’’ 4 The four revisions will be discussed in more detail in the responses. The summary of the comments and our responses are provided below. The full text received from the commenter is included in the docket associated with this action. Comment: Minor sources have the potential to impact the National Ambient Air Quality Standards (NAAQS) and threaten public health. Emissions from the oil and gas industry include a number of pollutants that are linked to serious health effects. The Dakota Resource Council has documented oil and gas pollution’s impacts on North Dakota’s families. According to the ‘‘North Dakota Oil and Gas Threat Map,’’ the area of highest oil and gas also has the highest negative health impacts. This area includes environmental justice communities both on North Dakota state land and the Fort Berthold Reservation. Considering the adverse impacts already experienced by these communities, EPA must work 2 See 86 FR 41413. published a correction to the proposed rule and extended the comment period due to an incorrect docket citation. See 86 FR 49500 (Sept. 3, 2021). 4 Chapter 33.1–15–20 is also commonly referred to as the oil and gas registration rule. 3 We VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 with the State to meaningfully strengthen the SIP provisions, using science and available cost-effective measures to control the criteria and hazardous air pollutants to deliver environmental justice to the Fort Berthold and other impacted communities. Response: As an agency, we strive to incorporate environmental justice considerations into our actions and decisions to the extent possible. As explained in more detail below, we do not expect negative environmental consequences, nor do we expect disproportionate human health or environmental effects on environmental justice communities because the revisions being proposed include both revisions that are administrative in nature and revisions that are not expected to result in an increase in emissions of air contaminants that could impact the environment. Comment: The revisions proposed to section 33.1–15–20–04.3 are not administrative in nature. The State’s proposed change to section 33.1–15–20– 04.3 amends the pollutants covered by the rule from volatile organic compound gases to organic compound gases. This change is substantive. While there is a definition for volatile organic compounds, there is no definition for ‘organic compound gases’ and it is unclear what group of gases this phrase references. Response: We do not agree with commenter’s assessment that the two revisions to North Dakota’s section 33.1–15–20–04.3 are substantive. North Dakota made two revisions to chapter 33.1–15–20–04.3. First, the term ‘‘volatile’’ was removed prior to ‘‘organic compound gas(es) and vapor(s)’’ from the provision so that it now reads, ‘‘Any organic gases and vapors may be subject to controls specified in chapter 33.1–15–07.’’ Chapter 33.1–15.07 addresses control of organic compounds emissions. Chapter 33.1–15–07 uses the term ‘‘volatile organic compound’’ but does not use the term ‘‘volatile organic compound vapor and gas [emphasis added].’’ Section 33.1–15–07–02 specifically addresses ‘‘gases and vapors’’ and in particular ‘‘organic compound gases and vapors’’ but does not use the term ‘‘volatile organic compound gas(es) and vapor(s).’’ Because North Dakota uses the terms ‘‘volatile organic compound’’ and ‘‘organic compound gases and vapors’’ in chapter 33.1–15–07 and not ‘‘volatile organic compound gas(es) and vapor(s),’’ it is reasonable to assume that the edits North Dakota proposed is to correct an error in the language of the regulation whereby North Dakota PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 incorrectly referred to ‘‘volatile organic compound gas and vapor’’ when it meant ‘‘organic compound gases and vapors’’ so that chapter 33.1–15–07 aligns with section 33.1–15–20–4.3 which the provision references. Therefore, we characterized this change in our proposal as administrative since the edits to section 33.1–15–20–4.3 reflect a desire to align language between section 33.1–15–20–4.3 and chapter 33.1–15–07 for ‘‘organic compound gases and vapors.’’ The commenter is correct that the Air Pollution Control Regulations (Article 33.1–15) does not define what organic compound gases and vapors are, but the Air Pollution Control Regulations do control the emissions of organic compounds including organic compound gases and vapors as found in chapter 33.1–15–07. Without the proposed revision to chapter 33.1–15– 20–4.3 by North Dakota, it is possible that it would not be clear to the public that organic compound gases and vapors under chapter 33.1–15–20–4.3 may be also subject to chapter 33.1–15–07 and in particular with section 33.1–15–07– 02 of chapter 33.1–15–07 which specifically regulates organic compound gases and vapors. That is why EPA proposed approval under a rationale that this change was administrative in nature which clarified chapter 33.1–15– 20.4.3 to align with its corollary chapter 33.1–15–07. The second revision to chapter 33.1– 15–20–4.3 is the pluralizing of gases and vapors by adding ‘‘es’’ and ‘‘s’’ to gas and vapor. Pluralizing a word is considered purely administrative in nature since the only impact is that we are changing gas and vapor from singular to plural which does not impact the meaning of the terms ‘‘gas’’ and ‘‘vapor.’’ Comment: We believe that the revisions proposed to section 33.1–15– 20–04.4 are not administrative in nature. Section 33.1–15–20–4.4 requires routine inspections and maintenance of certain listed equipment ‘‘used for gas containing hydrogen sulfide (H2S).’’ The proposed revision would apparently expand the rule to cover routine inspection and maintenance of equipment regardless of the type of pollutants emitted. This would mean the rule covers all pollutants emitted at a production facility, not just H2S. This would be an improvement of air quality if the rule were enforceable, but we don’t believe the rule is enforceable since there are no required recordkeeping and reporting requirements for this provision. In addition, the definition of production facility found in section 33.1–15–20– E:\FR\FM\07MRR1.SGM 07MRR1 ddrumheller on DSK120RN23PROD with RULES1 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations 01.2 is more expansive than the list of equipment covered by the current rule for routine inspection and maintenance. Expanding the coverage of a vague rule is not an administrative change. Response: We agree with the commenter that the proposed change to section 33.1–15–20–04.4 is not administrative in nature. Previously section 33.1–15–20–04.4, provided that ‘‘Routine inspections and maintenance of tanks, hatches, compressors, vent lines, pressure relief valves, packing elements and couplings must be conducted to minimize emissions from equipment used for gas containing hydrogen sulfide (H2S) . . .’’ North Dakota’s revision to section 33.1–15– 20–04.4 removes the phrase ‘‘used for gas containing hydrogen sulfide (H2S)’’ and replaces it with ‘‘production facility’’ so that the provision now reads as follows: ‘‘routine inspections and maintenance of tanks, hatches, compressors, vent lines, pressure relief valves, packing elements, and couplings must be conducted to minimize emissions from equipment at a production facility. Tank hatches must hold a positive working pressure or must be repaired or replaced.’’ Chapter 33.1–15–20–01 provides the definition of ‘‘production facility’’ to include’’ all equipment, wells, flow lines, separators, treaters, tanks, flares, gathering lines, and auxiliary nontransportation-related equipment used in the exploration, development, or subsequent production or handling of oil and gas from an oil or gas well or wells which are located on one or more contiguous or adjacent surface properties, and are under the control of the same person (or persons under common control).’’ By changing to requiring routine inspections of equipment to minimize emissions at a production facility, North Dakota is also requiring routine inspections to minimize emissions of volatile organic compounds and carbon monoxide as well as hydrogen sulfide since those are the expected air contaminants from an oil and gas production facility. This revision strengthens this provision and does not weaken the SIP since it expands the equipment that are subject to this regulation. The commenter is also correct that the definition of production facility as spelled out in the definition section found in chapter 33.1–15–20– 01–2.n is more expansive than the prior term ‘‘equipment used for gas containing hydrogen sulfide’’ in this section. Chapter 33.1–15–20–01–2.n defines ‘‘production facility’’ as ‘‘all equipment, wells, flow lines, separators, treaters, tanks, flares, gathering lines and auxiliary nontransportation-related VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 equipment used in exploration, development, or subsequent production or handling of oil and gas from an oil and gas well or wells which are located on one or more contiguous or adjacent surface properties, and are under the control of the same person (or persons under common control).’’ By expanding the definition of equipment at oil and gas facilities that emit air contaminants, and not necessarily hydrogen sulfide, this expands the equipment that is subject to routine inspection to include oil storage tanks, control flares at storage tanks, casing head gas, generators, tank and heaters, and valves and flanges. Because the revision to section 33.1–15– 20–04.4 expands the equipment subject to inspection and maintenance, we are expecting better running equipment and prevention of unplanned emissions of air contaminants. Thus, we believe the revision to section 33.1–15–20–4.4 is more stringent than the previous iteration. As to the comment that this chapter is not enforceable because it does not have required recordkeeping and reporting requirements, the commenter is correct that section 33.1–15–20–4.3 does not contain recordkeeping and reporting requirements. Both the proposed revision and the previous version of section 33.1–15–20–4.3 do not address recordkeeping and reporting requirements. Recordkeeping and reporting requirements are provided in North Dakota’s chapter 33.1–15–20–02, and North Dakota did not submit, and we are not acting on revisions to chapter 33.1–15–20–02.5 Therefore, we cannot agree with commenters statement that chapter 33.1–15–20–4.3 is not enforceable because there is no required recordkeeping and reporting requirements since the recordkeeping and reporting requirements are found in chapter 33.1–15–20–02 and they have not been revised since their prior approval in 2019. As to the commenter’s comment about the enforceability of this requirement, enforcement of North Dakota’s Air Pollution Control regulation including chapter 33.1–15–20 Control of Emissions from Oil and Gas Well Production Facilities are administered by chapter 33.1–15–01 General Provisions. Specifically, section 33.1– 15–01–17 regulates enforcement of North Dakota’s Air Pollution Regulations including chapter 33.1–15– 20. For this rulemaking, North Dakota did not submit nor are we acting on North Dakota’s section 33.1–15–01–17 5 We approved North Dakota’s chapter 33.1–15– 20.02 recordkeeping and reporting requirements in 2019. See 84 FR 1610 (Feb. 5, 2019) PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 14051 addressing enforcement of North Dakota’s Air Pollution Regulations. Comment: Expanding coverage of section 33.1–15–20–4.2 to cover all air contaminants as opposed to just sulfur dioxide (SO2) for flare stack height requirements is not a basis for approval as EPA suggests in its proposal. Neither EPA’s nor the State’s proposal discloses what other air contaminants are covered and what-if any-stack height rules apply to the expanded list of all air contaminants. In addition, EPA’s proposed approval of these revisions do not apply EPA’s stack height requirements for new sources under New Source Review (NSR). In light of the broad applicability of the registration rule revisions that not only include oil and gas wells, EPA must ensure that the stack height requirements apply to the sources that are exempt from the NSR permit process, which EPA has not done. We also think that the proposed rule revision expands the coverage of the rule to more pollutants and more emitting units and source of emissions which contradicts the permitting requirements to determine what constitutes the stationary source. The outcome is that the proposed rule allows the owner/operator of a unit covered by the rule to subdivide what should be aggregated into a major source into many smaller units and escape major source permitting. Response: We do not agree with commenter’s statement that expanding coverage for flare stack height requirements in section 33.1–15–20–4.2 to cover all air contaminants versus covering just SO2 should not be a basis for approval. Generally, we consider expanding regulatory coverage to address all air contaminants to be more protective than the previous iteration of the requirement. In our case, North Dakota submitted revisions to section 33.1–15–20–4.2 (requirements for control of production facility emissions) replacing ‘‘sulfur dioxide’’ with ‘‘air contaminants.’’ Section 33.1–15–20–4.2 now reads ‘‘each flare used for combusting gas at a production facility must be equipped and operated with an automatic igniter or a continuous burning pilot which must be maintained and operated in good working order. This is required even if the flare is used for emergency purposes only. A continuous burning pilot is required if this department determines that an automatic ignition system is ineffective due to production characteristics. The flare stack must be of sufficient height to allow for adequate dispersion of air contaminants as necessary to meet the requirements of this article.’’ E:\FR\FM\07MRR1.SGM 07MRR1 ddrumheller on DSK120RN23PROD with RULES1 14052 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations The commenter is correct that section 33.1–15–20–04.2 does not spell out what air contaminants are covered under this section but ‘‘air contaminants’’ are defined in the Air Pollution Control general provisions definitions section found in section 33.1–15–01–4.2. The general provisions definitions in section 33.1–15–01 are applicable to all of chapter 33.1–15 including section 33.1–15–01–4.2. Under the NDAC section 33.1–15–01– 4.2, ‘‘’air contaminant’ is defined as ‘‘any solid, liquid, gas, or odorous substance or any combination thereof emitted to the ambient air.’’ As to the commenter’s concerns that the revision doesn’t provide clarity on what stack height rules apply to the expanded list of air contaminants, we do not believe that North Dakota’s replacement of ‘‘hydrogen sulfide’’ with ‘‘air contaminants’’ for flare stack height requirements impacts the clarity of the proposed revision to section 33.1–15– 20–4.2. The original language reads ‘‘flare stack must be of sufficient height to allow for adequate dispersion of hydrogen sulfide as necessary to meet the requirement of this article.’’ The revised language now reads ‘‘flare stack must be of sufficient height to allow for adequate dispersion of air contaminants as necessary to meet the requirements of this article.’’ The rule revision is not regulating additional criteria pollutants because there is no change in the pollutants being emitted. The rule revision is rather clarifying that the rule applies to all pollutants, not just hydrogen sulfide. Thus, there are no new emissions sources to be evaluated and the flare stack height is not impacted from the revision to section 33.1–15–20–4.2. The commenter is correct that this revision relating to flare stacks does not apply to EPA’s stack height requirements for new sources under NSR. This is not an issue because stack height requirements for new sources under NSR are governed by chapter 33– 15–18. In addition, stack height requirements for new sources under NSR specifically state that stack height requirements do not apply to flare stacks. This is true both for the federal NSR program and North Dakota’s federally approved NSR program.6 The commenter appears to confuse the stack height requirements under NSR and flare stacks. We do not agree with the commenter that the rule revision to section 33.1– 6 See 40 CFR 51.118 and NDAC section 33.1–15– 18 for the federal requirements for stack height (not including flare stacks) and North Dakota’s corollary provision. VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 15–20–4.2 expanding the coverage of the stack height requirements to all pollutants under the flare rule contradicts permitting requirements to determine what constitutes a stationary source or that the proposed rule allows the owner/operator of a unit covered by the rule to subdivide what should be aggregated into a major source into many smaller units and escape major source permitting. The commenter is correct that the revision to section 33.1– 15–20–4.2 expanding to all pollutants will mean that more emitting units and source of emissions will be subject to section 33.1–15–20–4.2. However, it is not clear how the commenter connects being subject to section 33.1–15–20–4.2 results in North Dakota’s stationary source requirements being circumvented or escaping major source requirements. North Dakota’s stationary source and permitting requirements are governed by chapter 33.1–15–14 titled ‘‘Designated Air Sources, Permit to Construct, Minor Source Permit to Operate, and Title V to operate.’’ Specifically, section 33.1–15–14– 06.1.bb defines ‘‘stationary sources’’ for permitting purposes as ‘‘any building, structure, facility, or installation that emits or may emit any regulated air contaminant or any contaminant listed under section 112(b) of the federal Clean Air Act.’’ In addition, section 33.1–15– 14–06.1.q defines ‘‘major source’’ for permitting purposes as the same definition of ‘‘major source’’ under title V of the CAA. North Dakota did not submit revisions to section 33.1–15–14– 06, nor did EPA propose to act on section 33.1–15–14–06 in this action. We fail to see how the revision to section 33.1–15–20–4.2, which requires a flare stack to be of sufficient height to allow for adequate dispersion of all air contaminants versus just flare stacks that emit hydrogen sulfide, revises the permitting requirements for stationary sources and major source permitting found in Chapter 33.1–15–14. Comment: EPA’s proposed approval of the State’s revisions to chapter 33.1– 15–20, also known as the oil and registration rule 7 did not include a CAA section 110(l) demonstration. Expanding control measures to cover additional equipment and all pollutants triggers section 110(l) review because the registration rule is a stationary source per section 110(i). Section 110(i) requires that SIP requirements for stationary sources must undergo the SIP revision process, which in turn requires EPA to determine that the requirement in section 110(l) is met, including noninterference with attainment and maintenance of the NAAQS. PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 Response: In accordance with CAA Section 110(l), EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. CAA 110(l) does not require a state to conduct a 110(l) analysis for every action; rather, CAA 110(l) requires that the Administer shall not approve a revision to a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. The EPA evaluated North Dakota’s submittal containing the four revisions to chapter 33.1–15–20 (one revision to section 33.1–15–20–4.2, two revisions to section 33.1–15–20–4.3, and one revision to section 33.15–20–4.4) on which we received comments for interference with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. North Dakota proposed a revision to section 33.1–15–20–4.2 which North Dakota expanded flare stack height requirements to include ‘‘adequate dispersion of air contaminants as necessary to meet the requirements of this article.’’ Section 33.1–15–20–4.2 was formerly limited to stack height for adequate dispersion of hydrogen sulfide. The rule revision is not regulating additional criteria pollutants because there is no change in the pollutants being emitted, rather, it is clarifying that the rule applies to all pollutants, not just hydrogen sulfide. Thus, there are no new emissions sources to be evaluated, and the commenter has not identified a specific emissions increase that would require a 110(l) evaluation. The rule continues to specify that the stack must be designed with sufficient height to allow for adequate dispersion of all air contaminants. Thus, we do not believe that the revision to section 33.1–15–20– 4.2 will interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. North Dakota proposed two revisions to section 33.1–15–20–4.3. First, North Dakota removed the term ‘‘volatile’’ when referencing ‘‘organic compound gas and vapor.’’ North Dakota removed the term ‘‘volatile’’ to align with the language in chapter 33.1–15–07 since section 33.1–15–20–4.3 specifically references chapter 33.1–15–07. Section 33.1–15–20–4.3 states that ‘‘any organic compound gases and vapors may be subject to controls as specified in chapter 33.1–15–07. Secondly, North E:\FR\FM\07MRR1.SGM 07MRR1 ddrumheller on DSK120RN23PROD with RULES1 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations Dakota pluralized gas‘‘es’’ and vapor‘‘s’’ in section 33.1–15–20–4.3. As explained in more detail in our previous response, we consider the deletion of ‘‘volatile’’ aligning the two corollary provisions of section 33.1–15–20–4.3 and chapter 33.1–15–07 as well as the pluralization of gas and vapor to be administrative in nature and thus, we do not anticipate impacts to applicable requirements concerning attainment and reasonable further progress, or any other applicable requirement under the CAA. North Dakota also proposed a revision to chapter 33.1–15–20–4.4 in which the term ‘‘used for gas containing hydrogen sulfide’’ was replaced with ‘‘at a production facility’’ for routine inspections and maintenance of tanks, hatches, compressors, vent lines, pressure relief valves, packing elements and couplings . . . to minimize emissions from equipment at a production facility. We do not expect to see an increase in emissions of any pollutant or interfere with attainment and reasonable further progress requirements because increased routine inspection and maintenance increases the opportunity to identify and fix and/ or prevent fugitive emissions and does not add to the emissions. It is strictly part of keeping equipment in working order in order for a facility to comply with CAA requirements. Thus, we do not believe that the revisions to section 33.1–15–20–4.4 will interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. In addition to the sections revised by North Dakota indicating no interference with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA, all counties in North Dakota are designated as attainment for all criteria pollutants under the CAA. The rule revision is administrative in that it addresses permitting for potential new sources in the future. The rule revision itself does not approve any increases in actual emissions, and thus there are no specific increases in emissions to be addressed for interstate transport. Moreover, this rule does not affect the already existing legally and practicably enforceable requirements that facilities are already routinely achieving through the installation and operation of control equipment for health, safety and market purposes. This rule also does not exempt these facilities from other potentially applicable regulatory or permitting requirements. Because of these factors, EPA expects the revisions to North Dakota’s chapter 33.1–15–20 VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 will not interfere with any applicable CAA requirement, including attainment. Comment: EPA’s proposed approval of North Dakota’s revisions to chapter 33.1–15–20 do not comply with 40 CFR 51.160(f). 40 CFR 51.160(f) requires that a state SIP must discuss the air quality data and the dispersion or other air quality modeling used to review new sources and modification pursuant to the requirements in 40 CFR 51.160– 51.166. 40 CFR 51.160(f) applies to all sources covered by the NSR program, including the oil and gas wells/facilities subject to the revisions to North Dakota’s registration rule. Contrary to EPA’s regulation, the State’s registration rule SIP amendments did not discuss what air quality data and dispersion or other modeling data the State used and relied on in developing the revisions. We included Tier 3 NO2 modeling at the SandRidge Exploration and Production LLC’s Bighorn Pad facility showed concentrations over six times the onehour NO2 NAAQS. Furthermore, the registration rule does not contain any provisions for the State to consider air quality data and the dispersion or other air quality modeling information in implementing the registration rule. Response: We do not agree with the commenter that we are not meeting the requirements of 40 CFR 51.160(f) for air data and the dispersion or other air quality modeling used to review new sources and modification pursuant to the requirements in 40 CFR 51.160– 51.166. 40. 40 CFR 51.160–51.166 addresses the requirements for review of new sources and modifications. Specifically, 40 CFR 51.160 provides that a state must submit a plan that contains legally enforceable procedures to enable the state to determine whether the construction or modification of a facility will result interference with attainment or maintenance of a national standard. In addition, 40 CFR 51.160 provides that the state must have procedures for the submission of the owner or operator of the facility to be constructed or modified including the requirement (found in 40 CFR 51.160(f)), as commenter stated, that the state SIP must discuss the type of air quality data and modeling required in the state permit application procedures for construction or modification of a source. North Dakota’s plan for the review of new sources and modifications is found in chapter 33.1–15–14. Specifically, North Dakota’s section 33.1–15–14–02 spells out the State’s requirements for permit to construct and alterations to sources. Section 33.1–15–14–02 was PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 14053 approved in a prior action by EPA.8 In this rulemaking, we are finalizing approval of North Dakota’s proposed revision to section 33.1–15–14–02.4a in which North Dakota incorporated by reference the PSD modeling guidance requirements found in 40 CFR part 51, appendix W (Guideline on Air Quality Models). This aligns with the requirements set out in 40 CFR 51.160(f)(1) of the air quality modeling requirement for new sources and modifications. In addition, the existing section 33.1–15–14–02.4b aligns with 40 CFR 51.160(f)(2). Thus, the requirements of 40 CFR 51.160(f) are being met by North Dakota’s section 33.1–15–14–02. The commenter confuses the requirement of 40 CFR 51.160(f) to require each SIP revision to contain air quality data and modeling when in fact 40 CFR 51.160(f) requires a state to have procedures in place discussing the type of air quality data and modeling required in the state permit application procedures for construction or modification of a source which North Dakota does in section 33.1–15–14. Comment: There is no demonstration that the revisions to North Dakota’s chapter 33.1–15–20 are protective of the PSD increments. Under 40 CFR 51.166(a)(1), a state’s SIP must contain emission limitations and such other measures as may be necessary to prevent significant deterioration of air quality. If a SIP revision would result in increased air quality deterioration over any baseline concentration, the plan revision should include a demonstration that it will not cause or contribute to a violation of the applicable increments. The State’s SIP submittal expands the pollutants to include SO2, NO2, and PM, however, there is no demonstration of the effectiveness of the controls. Lacking these details and the required elements for enforceability, it is reasonable to assume that emissions from the oil and gas wells/facilities that are registered under the rule will increase air quality deterioration over the baseline concentration. Therefore, the SIP revision is required to include a demonstration that it will not cause or contribute to a violation of the applicable increments. The State’s SIP submittal did not include this. Response: We do not agree with the commenter that it is reasonable to assume the four revisions to North Dakota’s chapter 33.1–15–20 will increase air quality deterioration over the baseline concentration. We discuss in detail in our response to the 110(l) demonstration comment that we do not 8 See E:\FR\FM\07MRR1.SGM 85 FR 38079 (Jun. 25, 2020). 07MRR1 ddrumheller on DSK120RN23PROD with RULES1 14054 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations expect that the revisions to chapter 33.1–15–20 will result in an increase in emissions and thus does not trigger a demonstration that revisions will not cause or contribute to a violation of the applicable increment as spelled out in 40 CFR 51.166(a)(2).9 Thus, we do not need to demonstrate the effectiveness of controls for the revisions to section 33.1–15–20–4.2, section 33.1–15–20– 4.3, and section 33.1–15–20–4.4. The commenter also points to the perceived lack of enforceability of chapter 33.1–15–20. In our previous response to an enforceability comment, we pointed to chapter 33–15–01–17 which provides the enforcement provisions for Article 33.1–15 including chapter 33.1–15–20. Chapter 33–15–01– 17 are not impacted by North Dakota’s revisions to chapter 33.1–15–20. The enforcement of those revisions remains under section 33.1–15–01–17. Comment: North Dakota’s proposed revisions are not practically enforceable. The requirements for enforceability of a minor NSR program is found at 40 CFR 51.160 which requires that state SIPs include the authority to prevent the construction of a facility or modification that will cause a violation of applicable portions of the control strategy or interfere with attainment or maintenance of a NAAQS. The expanded coverage of the registration rule provisions, which are integrated into the registration rule and rely on self-registration by owners/operator, lack authority for the State to prevent construction or modification. North Dakota’s SIP amendments lack a technically accurate limitation and also lacks a time period for the limitation. There are no methods specified in the SIP amendments for the owners and operators to determine compliance and no requirement to keep records. The rule does not specify any consequences for enforcement. In addition, the SIP revisions and SIP submittal lacks provisions that demonstrate how the state complies with these requirements. The SIP amendments leave it entirely up to the owner/operator of the oil and gas well/facility to decide whether, when and how to conduct an inspection. The amendments lack clarity on how swiftly maintenance must be performed, whether the root cause of maintenance must be determined and identification and implementation of measures to reduce maintenance. Furthermore, the inspections/maintenance work practice 9 Commenter cites 40 CFR 51.166(a)(1) which addresses the original submitted PSD SIP requirements. 40 CFR 51.166(a)(2) addresses requirements for revisions to a PSD SIP. VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 requirement is only conducted to minimize emissions. Given the nature of fugitive emissions from oil and gas operations, the rule should require more than just minimizing emissions. There should be ongoing requirements for inspection and repair. Additionally, there are no requirements that the owners/operators make records of the testing, inspections, and retain them. This is contrary to the requirements in 40 CFR 51.211 which requires legally enforceable procedures for requiring owners or operators of stationary source to maintain records and periodically report to the State. The rule revisions lack information on the nature and amount of emissions from the stationary sources as well as other information as may be necessary to enable the State to determine whether the sources are in compliance with applicable portions of the control strategy. The rule revisions lack provisions for calculating compliance on a 12-month rolling average and against the applicable shortterm NAAQS limits. The public has no means to know what is going on regarding implementation of this rule and thus is barred from use of the CAA’s citizen suits provisions. The revisions to the rule also lack provisions for the State to request additional information about the operations. The revisions to the rule also lack provisions that provide that oil and gas wells/facilities with emissions that exceed the major source emissions threshold constitute violations of permitting and SIP requirements. Lacking all these provisions means there is no way to determine compliance and ensure that the NAAQS and other requirements of the CAA are protected. Response: The commenter confuses the chapter 33–15–20 revisions (oil and gas registration requirements) with other provisions of the NSR program. Chapter 33–15–20 is silent as to compliance, recordkeeping, and enforcement since the provisions that address all facilities including oil and gas facilities is found in North Dakota’s federally approved NSR program. As stated previously, North Dakota’s overall NSR program including compliance is codified in Chapters 33–15–14 and 33–15–15 and are modeled after the federal NSR program found in 40 CFR 51.160– 51.166. Recordkeeping is codified in North Dakota’s chapter 33.1–15–20.02. Enforcement requirements that the revisions are subject to are codified in 33–15–01–17. Compliance, recordkeeping, and enforcement requirements that are applicable to section 33.1–15–20 are not being PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 proposed for revision.10 Therefore, these comments on compliance, recordkeeping, and enforcement are outside the scope of the revisions we are acting on in this rulemaking. Comment: North Dakota’s revisions to chapter 33.1–15–20 allow minor sources to avoid the requirements of 40 CFR 51.160(d). 40 CFR 51.160(d) requires a SIP to include procedures that if an owner or operator receives approval to construct or modify a source, the owner or operator must still comply with applicable portions of the control strategy. The revisions to the chapter 33.1–15–20 lack language that requires that an owner or operator to comply with the applicable portions of the existing SIP control strategies. Response: We do not agree with commenter that the revisions to chapter 33.1–15–20 allow minor sources to avoid the requirements of 40 CFR 51.160(d). 40 CFR 51.160(d) requires the state program for review of new sources and modifications include procedures that approval of any construction or modification must not affect the responsibility to the owner or operator with the applicable portions of the control strategy. North Dakota adopted the provisions of 40 CFR 51.160(d) within NDAC section 33.1–15–14– 02.10.a. Section 33.1–15–14–02.10.a states that ‘‘the issuance of a permit to construct for any source does not affect the responsibility of an owner or operator to comply with applicable portions of a control strategy affecting the source.’’ We approved chapter 33.1– 15–14–02 on June 25, 2020.11 Chapter 33.1–15–20 does not contain provisions of 40 CFR 51.160(d) either before or after North Dakota’s revisions to this chapter since it is provided in chapter 33.1–15–14–02 and chapter 33.1–15– 14–02 is applicable to all facilities including oil and gas facilities. Comment: The SIP revisions do not comply with the regional haze requirements. EPA’s regional haze 10 While we proposed approval of four revisions to chapter 33.1–15–15 in this rulemaking, the revisions did not modify and compliance requirements. The proposed revisions: (1) Updated the incorporation by reference of federal PSD requirements; (2) expanded administrator to include ’’or the administrator’s authorized representative;’’(3) added the requirement that when the state goes out to comment under this chapter that the state must also provide notice on the department’s website; and (4) adds language that draft permit to construct are also required to be published during the public comment period for a permit. The proposed changes to chapter 33.1–15– 15 did not receive comment. In addition, we proposed no changes to chapter 33–15–14. See our proposal for a more detailed explanation of the North Dakota revisions that were proposed for approval, and we are now finalizing approval at 86 FR 41413 (Aug. 2, 2021). 11 See 85 FR 38079. E:\FR\FM\07MRR1.SGM 07MRR1 ddrumheller on DSK120RN23PROD with RULES1 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations program requires states to design and implement programs to curb hazecausing emissions within their state. Emissions from the oil and gas wells and associated equipment impact visibility. The CAA does not provide an off-ramp from the reasonable progress four-factor analysis for sources that would rely on the proposed amendments to North Dakota’s registration program. EPA’s proposed action to approve the changes to North Dakota registration regulations did not take into consideration all requirements of the CAA, including the long-term strategy for regional haze. EPA must not make decisions in isolation, set aside distinct requirements or delay their implementation. North Dakota’s proposed SIP amendments should not be approved by EPA as they would replace the State’s responsibility under the CAA to conduct the required reasonable progress four factor analysis for the oil and gas sources. Response: This comment addresses provisions that were not affected by the revisions approved in this action and is beyond the scope of this rulemaking. This rulemaking does not address revisions to North Dakota’s regional haze requirements. Our proposed rulemaking explicitly stated that the regional haze requirements had been addressed in a prior rulemaking. In that prior rulemaking, the EPA approved North Dakota’s rule revisions to chapter 33.1–15–25 (regional haze) on June 8, 2021 (86 FR 30387). The commenter does not demonstrate that the changes approved in this action will allow oil and gas sources to increase emissions to a degree that influences the effectiveness of North Dakota’s regional haze regulations. Comment: North Dakota’s submittal lacked information required for EPA to process the SIP. Specifically, North Dakota’s SIP submittal lacked the following technical support required by appendix V of 40 CFR part 51: (1) identification of all regulated pollutants affected by the revisions; (2) identification of the locations of affected sources including the EPA attainment/ nonattainment designations of the locations and the status of the attainment plan for the affected areas; (3) quantification of the changes in plan allowable emissions from the affected sources; estimates of changes in current actual emissions from affected sources; (4) state’s demonstration that the NAAQS, PSD increments, and visibility, are protected if the plan revisions are approved and implemented; (5) modeling information to support the proposed revision; (6) evidence that the plan contains emission limitations, VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 work practice standards and recordkeeping/reporting requirements, where necessary, to ensure emission levels; and (7) compliance/enforcement strategies, including how compliance will be determined in practice. With the missing required technical support, it was inappropriate for EPA to proceed with evaluating an incomplete SIP submission and propose approval. Response: We disagree with the comment that the submittal lacked information required for EPA to process the SIP under appendix V of 40 CFR part 51. As explained in our prior responses, the revisions consist of those that are administrative in nature as well as revisions that do not lead to an increase in emissions. Thus, the additional technical documentation related to an increase in emissions that the commenter is seeking is not required. CAA section 110(k) provides a twostep process for EPA’s review of SIP submittals. First, within six months of receiving a SIP submission, EPA must make a threshold ‘‘completeness determination’’ to determine whether the SIP contains certain ‘‘minimum criteria’’ designated by EPA as ‘‘the information necessary to . . . determine whether the plan submission complies with the provisions of the CAA.’’ 12 These minimum criteria are listed in 40 CFR part 51, appendix V.13 There is no requirement in the CAA or EPA’s regulations that EPA document its completeness review prior to proposing to approve a SIP revision. To the contrary, if EPA fails to make the completeness determination within six months, the SIP submission is deemed complete by operation of law.14 Here, EPA received North Dakota’s SIP submittal on July 28, 2020. EPA did not make a formal completeness determination within six months; thus, the SIP submittal was deemed complete by operation of law and constitutes an official submission.15 North Dakota’s authority to adopt the SIP is addressed in the Opinion issued by the North Dakota Office of Attorney General and submitted with the SIP revision.16 U.S.C. 7410(k)(1)(A), (B). CFR part 51, appendix V. 14 42 U.S.C. 7410(k)(1)(C); 40 CFR part 51, appendix V, § 1.2. 15 40 CFR part 51, appendix V, § 1.2 (‘‘A determination of completeness under this paragraph means that the submission is an official submission for purposes of § 51.103.’’) 16 Letter dated July 28, 2020, from Doug Burgum, Governor, North Dakota, to Gregory Sopkin, Regional Administrator, EPA Region 8, Subject: Revisions to North Dakota Regional Haze SIP for control of air pollution; North Dakota, Final Revisions to Implementation Plan for Control of Air Pollution, Amendment No. 2 to North Dakota State 14055 In the second step of the two-step process, EPA evaluates SIP submittals for compliance with substantive requirements.17 Here, the relevant provisions 18 are section 33.1–15–20–4.2 (which expanded the definition of flare stack height to air contaminants when it was previously limited to hydrogen sulfide), section 33.1–15–20–4.3 (which edited the provision to match language in chapter 33.1–15–07 which the section refers to by removing the term ‘‘volatile’’ from the term ‘‘organic compound gas(es) and vapor(s)), section 33.1–15– 20–4.3 pluralized the terms ‘‘vapor’’ and ‘‘gas’’ to reference both volatile and nonvolatile gases, and section 33.1–15–20– 4.4 (which expanded inspections and routine maintenance to minimize all emissions from oil and gas equipment). EPA explained in the proposed rule and in our responses above how North Dakota’s SIP revision complies with these substantive requirements of the CAA including how the enforceability of the chapter 33.1–15–20 has not been impacted much less weakened by North Dakota’s four revisions to chapter 33.1– 15–20. Thus, the commenters’ assertions that North Dakota’s SIP revision to chapter 33.1–15–20 was inadequate because it lacked appendix V criteria and that EPA’s proposal was inadequate because it lacked an appendix V completeness determination are without merit. Comment: Executive Order 12898 requires federal agencies to achieve environmental justice through identification and addressing disproportionate high and adverse human health or environmental effects of its programs. Executive Order 14008 addresses climate change while implementing environmental justice. Contrary to the requirements of Executive Order 12898 and 14008, EPA’s proposal fails to integrate the Executive Orders 12898 and 14008. EPA must not approve SIP amendments that lack clarity and enforceability, fail to meet the requirements of the CAA and EPA’s regulations, and relax protections for the impacted environmental justice communities. 12 42 13 40 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 Implementation Plan First Planning Period for Regional Haze (July 2020) (Amendment No. 2) at 121. 17 See NRDC v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995). 18 We drew adverse comments on chapter 33.1– 15–20. Control of Emissions from oil and gas well production facilities and are limiting are response to that provision. We did review all the submitted rule revisions by North Dakota and found that they meet the requirements of CAA 110(k). Since we did not receive adverse comments on these other revisions, we are not speaking in detail about these other revisions in our responses. E:\FR\FM\07MRR1.SGM 07MRR1 14056 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations Response: This action is finalizing approval of North Dakota’s revisions to the State’s Air Pollution Control regulations. In particular, we drew comments on the approvability of revisions to chapter 33.1–15–20 in which North Dakota proposed four revisions. As explained in more detail in the previous responses, two of the revisions expanded the coverage of what is regulated under chapter 33.1–15–20 19 and two revisions were administrative in nature.20 Our previous responses also address how the clarity and enforceability of the regulations have not been impacted by the revisions and how North Dakota’s revisions to chapter 33.1–15–20 meet the requirements of the CAA. We do not agree that the revisions which expand coverage to all air contaminants for flare stack height, routine inspection and maintenance of oil and gas facility equipment, as well as revisions the clarify language to align with its referring chapter relax protections for impacted environmental justice communities. In fact, we believe it will have the opposite effect. Executive Order 12898 and Executive Order 14008 does direct the agency to identify and address environmental justice and the disproportionate impacts on impacted communities in federal actions. However, the rule being approved in this action does not weaken any part of the existing oil and gas registration program and therefore is not expected to adversely impact communities with environmental justice concerns. ddrumheller on DSK120RN23PROD with RULES1 III. Final Action As outlined in our proposed rulemaking, the EPA is taking final action to approve the addition of new and revised rules to Article 33.1–15 (Air Pollution Control), as submitted on August 3, 2020. Specifically, we are taking final action to approve the following revisions: Revisions to Chapter 33.1–15–01 (General Provisions)—section 33.1–15– 01–01; section 33.1–15–01–01–04; section 33.1–15–01–01–05 Revisions to Chapter 33.1–15–02 (Ambient Air Quality Standards)—, Table 1; Revisions 19 Section 33.1–15–20–4.2 expanded the definition of flare stack height to air contaminants when it was previously limited to hydrogen sulfide. Section 33.1–15–20–4.4 expanded routine inspections and maintenance of oil and gas equipment to include minimization of all air contaminants at a production facility and not just hydrogen sulfide. 20 Section 33.1–15–20–4.3 removed the term ‘‘volatile’’ from the term ‘‘organic compound vapor and gas(es)’’ so that it aligned with the referring terms in chapter 33.1–15–07. Section 33.1–15–20– 4.3 also pluralized the terms ‘‘vapor’’ and ‘‘gas’’ to reference both volatile and non-volatile gases. VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 to Chapter 33.1–15–03 (Restriction of Emission of Visible Air Contaminants); Revisions to Chapter 33.1–15–14 (Designation of Air Contaminant Sources; Permit to Construct, Title V Permit to Operate)—section 33.1–15– 14–1.1; section 33.1–15–14–02; Revisions to Chapter 33.1–15–15 (Prevention of Significant Deterioration of Air Quality)—section 33.1–15–15– 1.2; Revisions to Chapter 33.1–15–19 (Visibility Protection)—section 33.1–15– 19–1.1; section 33.1–15–19–1.2; Revisions to Chapter 33.1–15–20 (Control of Emissions from Oil and Gas Well Production Facilities)—section 33.1–15–20–4.2; section 33.1–15–20– 4.3; section 33.1–15–20–4.4; Revisions to Section 2.15 (Respecting Boards). In addition to taking final action approving North Dakota’s revisions, we are also correcting an error in citation we made in our proposal for the revision to section 33.1–15–10–04.4. In FR document 86 FR 41413, appearing on page 41415 in section G, subchapter 2, second asterisk, section 33.1–15–20– 04.3 should read section 33.1–15–20– 04.4. IV. Incorporation by Reference In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of certain amendments to the NDAC, as listed in section III. Final Action of this preamble, which regulate the State’s Ambient Air Quality Standards, Permit to Construct, and PSD. 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). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA’s approval, and will be incorporated by reference in the next update to the SIP compilation.21 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). 21 62 PO 00000 FR 27968 (May 22, 1997). Frm 00010 Fmt 4700 Sfmt 4700 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 approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ 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); • 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 the 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 the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. The 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). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must E:\FR\FM\07MRR1.SGM 07MRR1 14057 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 8, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does Rule No. List of Subjects in 40 CFR Part 52 Dated: February 28, 2023. KC Becker, Regional Administrator, Region 8. For the reasons set forth in the preamble words of issuance 40 CFR part 52 is amended to read as follows: State effective date PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart JJ—North Dakota Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds. Rule title EPA effective date 2. In § 52.1820: a. In the table in paragraph (c), revise the entries ‘‘33.1–15–01–01’’, ‘‘33.1–15– 01–04’’, ‘‘33.1–15–01–05’’, ‘‘Table 1’’, ‘‘33.1–15–14–01.1’’, ‘‘33.1–15–14–02’’, ‘‘33.1–15–15–01.2’’, ‘‘33.1–15–19–01’’, and ‘‘33.1–15–20–04’’. ■ b. In the table in paragraph (e), revise the entry ‘‘Section 2.15’’. The revisions read as follows: ■ ■ § 52.1820 * Identification of plan. * * (c) * * * * * Final rule citation/date Comments * * * 33.1–15–01–01 .................... Purpose ................................ * 7/1/2020 * 4/6/2023 * [insert Federal Register citation], 3/7/2023. * * * * 33.1–15–01–04 .................... Definitions ............................ * 7/1/2020 * 4/6/2023 * 33.1–15–01–05 .................... 7/1/2020 4/6/2023 * [insert Federal Register citation], 3/7/2023. [insert Federal Register citation], 3/7/2023. * * * Table 1 ................................. Ambient Air Quality Standards. * 7/1/2020 * 4/6/2023 * [insert Federal Register citation], 3/7/2023. * * * * 33.1–15–14–01.1 ................. Definitions ............................ * 7/1/2020 * 4/6/2023 * 33.1–15–14–02 .................... Permit to Construct .............. 7/1/2020 4/6/2023 * [insert Federal Register citation], 3/7/2023. [insert Federal Register citation], 3/7/2023. * * * 33.1–15–15–01.2 ................. Scope ................................... * 7/1/2020 * 4/6/2023 * [insert Federal Register citation], 3/7/2023. * * * * 33.1–15–19–01 .................... General Provisions ............... * 7/1/2020 * 4/6/2023 * [insert Federal Register citation], 3/7/2023. * * * * 33.1–15–20–04 .................... Requirements for control of production facility emissions. * 7/1/2020 * 4/6/2023 * [insert Federal Register citation], 3/7/2023. * * ddrumheller on DSK120RN23PROD with RULES1 it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). * * Abbreviations ....................... * * VerDate Sep<11>2014 * * * 16:34 Mar 06, 2023 * * * (e) * * * Jkt 259001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\07MRR1.SGM 07MRR1 * 14058 Federal Register / Vol. 88, No. 44 / Tuesday, March 7, 2023 / Rules and Regulations Rule No. * State effective date Rule title * * EPA effective date * Final rule citation/date * * Comments * Chapter 2. Legal Authority * * * Section 2.15 ......................... Respecting Boards ............... * * * [FR Doc. 2023–04427 Filed 3–6–23; 8:45 am] BILLING CODE 6560–50–P GENERAL SERVICES ADMINISTRATION 41 CFR Part 102–73 [FMR Case 2021–102–1; Docket No. GSA– FMR–2021–0020; Sequence No. 1] RIN 3090–AK42 Federal Management Regulation; Real Estate Acquisition Office of Government-wide Policy (OGP), General Services Administration (GSA). ACTION: Final rule. AGENCY: GSA is finalizing an amendment to the Federal Management Regulation (FMR) part regarding real property acquisition to clarify the policies for entering into lease agreements for high-security space in accordance with the Secure Federal Leases from Espionage And Suspicious Entanglements Act, also referred to as the Secure Federal LEASEs Act. DATES: Effective: April 6, 2023. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Mr. Chris Coneeney, Director, Real Property Policy Division, Office of Governmentwide Policy, at 202–208–2956 or chris.coneeney@gsa.gov. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202– 501–4755 or GSARegSec@gsa.gov. Please cite FMR Case 2021–102–1. SUPPLEMENTARY INFORMATION: SUMMARY: ddrumheller on DSK120RN23PROD with RULES1 I. Background GSA published a proposed rule at 86 FR 71604 on December 17, 2021, to implement section [4] of the Secure Federal Leases from Espionage And Suspicious Entanglements Act, also referred to as the Secure Federal LEASEs Act, Public Law 116–276, 134 Stat. 3362 (2020) (the ‘‘Act’’), which VerDate Sep<11>2014 16:34 Mar 06, 2023 Jkt 259001 * 7/1/2020 * * 4/6/2023 * requires the disclosure of ownership information to Federal lessees leasing high-security space to enable the lessee to mitigate potential national security risks. The Act was signed into law on December 31, 2020 (available at https:// www.congress.gov/116/plaws/publ276/ PLAW-116publ276.pdf). The Act imposes disclosure requirements regarding the foreign ownership and control, particularly ‘‘immediate owner,’’ ‘‘highest level owner’’ and ‘‘beneficial ownership,’’ of prospective lessors of ‘‘high-security leased space’’ (i.e., property leased to the Federal Government having a security level of III or higher). GSA implemented section 3 and section 5 of the Act through the interim rule General Services Administration Acquisition Regulation (GSAR) Case 2021–G527 (86 FR 34966) (available at https:// www.federalregister.gov/documents/ 2021/07/01/2021-14161/generalservices-administration-acquisitionregulation-immediate-and-highest-levelowner-for). The requirements of the statute are applicable to Federal lessees, defined by the Act as leases by the U.S. General Services Administration (GSA), the Architect of the Capitol, ‘‘or the head of any Federal agency, other than the Department of Defense, that has independent statutory leasing authority.’’ The Act is not applicable to the Department of Defense (DOD) or to the intelligence community. Section 2876 of the FY 2018 National Defense Authorization Act (Pub. L. 115–91) already provides DOD similar authority to obtain ownership information with respect to its high-security leased space. The Act addresses national security risks identified in the U.S. Government Accountability Office (GAO) report, ‘‘GSA Should Inform Tenant Agencies When Leasing High-Security Space from Foreign Owners,’’ dated January 2017 (GAO–17–195) (available at https:// www.gao.gov/assets/gao-17-195.pdf). This report found certain high-security Federal agencies were in buildings PO 00000 Frm 00012 Fmt 4700 * [Insert Federal Register citation], 3/7/2023. Sfmt 4700 * * * owned or controlled by foreign entities. According to the report, most Federal tenants were unaware the spaces GAO identified were subject to foreign ownership or control, exposing these agencies to the heightened risk of surreptitious physical or cyber espionage by foreign actors. The report also noted GAO could not identify the owners of approximately one-third of the Federal Government’s high-security leases because such ownership information was unavailable for those buildings. This final rule addresses the following specific requirements in Section 4 of the Act: • Identification of beneficial ownership information. • Development of a governmentwide plan for identifying all immediate, highest-level, and beneficial owners of high-security leased space. • Submission of a corresponding report to Congress. This final rule addresses the annual submission of ownership disclosures to GSA from agencies operating under either independent statutory leasing authority or a grant of delegated leasing authority from GSA. What is a ‘‘Beneficial Owner’’? Unlike the direct control–based immediate owner and highest-level owner, the Act defines the term ‘‘beneficial owner’’ to include any person that, through a contract, arrangement, understanding, relationship, or otherwise, exercises control over the covered entity or has a substantial interest in or receives substantial economic benefits from the assets of the covered entity, with some exceptions. The Act is one of several recent examples of congressional concern about foreign ownership and control and congressional action in the world of government contracting to help address potential national security concerns. See, e.g., FY 2021 National Defense Authorization Act (NDAA) (Pub. L. 116– 283), § 819, Modifications to Mitigating E:\FR\FM\07MRR1.SGM 07MRR1

Agencies

[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Rules and Regulations]
[Pages 14049-14058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04427]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2021-0005; FRL-8683-02-R8]


Air Plan Approval; North Dakota; Revisions to Permitting Rules; 
and Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In accordance with the Clean Air Act (CAA), the Environmental 
Protection Agency (EPA) is taking final action to approve State 
Implementation Plan (SIP) revisions submitted by North Dakota on August 
3, 2020. The revisions contain amendments to the State's Ambient Air 
Quality Standards, Permit to Construct, and Prevention of Significant 
Deterioration (PSD) regulations. In addition, we are correcting the 
citation to a revision to North Dakota Administrative Code (NDAC) 
section 33.1-15-20-04.4. In our proposal, we provided the incorrect 
citation to section 33.1-15-20-04.3.

DATES: This final rule is effective on April 6, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2021-0005. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air and Radiation 
Division, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-6227, email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The EPA is taking final action to approve the SIP amendments to the 
North Dakota Administrative Code (NDAC), which North Dakota submitted 
to EPA on August 3, 2020. These amendments to the NDAC are found in 
Article 33.1-15 (Air Pollution Control) and include revisions to 
Chapter 33.1-15-01 (General Provisions), Chapter 33.1-15-02 (Ambient 
Air Quality Standards, Table 1), Chapter 33.1-15-03 (Restriction of 
Emission of Visible Air Contaminants), Chapter 33.1-15-14 (Designated 
Air Contaminant Sources, Permit to Construct, Minor Source Permit to 
Operate, Title V to Operate), Chapter 33.1-15-15 (Prevention of 
Significant Deterioration of Air Quality), Chapter 33.1-15-19 
(Visibility Protection), and Chapter 33.1-15-20 (Control of Emissions 
from Oil and Gas Well Production Facilities). Revisions to Chapter 
33.1-15-25 (Regional Haze Requirements) were acted on in a separate 
rulemaking.\1\ North Dakota is also revising Chapter 2 Section 2.15 
(Respecting Boards) located in North Dakota's EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures.
---------------------------------------------------------------------------

    \1\ The EPA approved North Dakota's rule revisions to chapter 
33.1-15-25 (regional haze) on June 8, 2021 (86 FR 30387).
---------------------------------------------------------------------------

    In addition to taking final action approving North Dakota's 
revisions, we are also correcting an error in citation we made in our 
proposal for the revision to section 33.1-15-10-04.4. In our Federal 
Register document 86 FR 41413, appearing on page 41415 in

[[Page 14050]]

section G, subchapter 2, second asterisk, section 33.1-15-20-04.3 
should have read section 33.1-15-20-04.4. We consider this error to be 
a typographical error, which we believe did not have a deleterious 
effect on the public's ability to comment on the substance of the 
revision. This is supported by the fact that the revision description 
in our proposal with the incorrect citation matches the description of 
the revision in North Dakota's SIP submittal containing the correct 
citation to section 33.1-15.20-04.4 which was made available in our 
docket. In addition, we drew a comment on the provision with the 
commenter providing the correct citation to section 33.1-15-.20-04.4.
    Our August 21, 2021, proposed rulemaking contains a detailed 
summary of the SIP revisions in question and explains the bases for our 
proposed approval.\2\ We invited comment on all aspects of our 
proposal, and provided a 30-day comment period, which was extended and 
ended on October 4, 2021.\3\
---------------------------------------------------------------------------

    \2\ See 86 FR 41413.
    \3\ We published a correction to the proposed rule and extended 
the comment period due to an incorrect docket citation. See 86 FR 
49500 (Sept. 3, 2021).
---------------------------------------------------------------------------

II. Response to Comments

    We received comments from the Center for Biological Diversity on 
October 4, 2021. The comments focused on the four revisions to chapter 
33.1-15-20 titled ``Control of Emissions from Oil and Gas Well 
Production Facilities.'' \4\ The four revisions will be discussed in 
more detail in the responses.
---------------------------------------------------------------------------

    \4\ Chapter 33.1-15-20 is also commonly referred to as the oil 
and gas registration rule.
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    The summary of the comments and our responses are provided below. 
The full text received from the commenter is included in the docket 
associated with this action.
    Comment: Minor sources have the potential to impact the National 
Ambient Air Quality Standards (NAAQS) and threaten public health. 
Emissions from the oil and gas industry include a number of pollutants 
that are linked to serious health effects. The Dakota Resource Council 
has documented oil and gas pollution's impacts on North Dakota's 
families. According to the ``North Dakota Oil and Gas Threat Map,'' the 
area of highest oil and gas also has the highest negative health 
impacts. This area includes environmental justice communities both on 
North Dakota state land and the Fort Berthold Reservation. Considering 
the adverse impacts already experienced by these communities, EPA must 
work with the State to meaningfully strengthen the SIP provisions, 
using science and available cost-effective measures to control the 
criteria and hazardous air pollutants to deliver environmental justice 
to the Fort Berthold and other impacted communities.
    Response: As an agency, we strive to incorporate environmental 
justice considerations into our actions and decisions to the extent 
possible. As explained in more detail below, we do not expect negative 
environmental consequences, nor do we expect disproportionate human 
health or environmental effects on environmental justice communities 
because the revisions being proposed include both revisions that are 
administrative in nature and revisions that are not expected to result 
in an increase in emissions of air contaminants that could impact the 
environment.
    Comment: The revisions proposed to section 33.1-15-20-04.3 are not 
administrative in nature. The State's proposed change to section 33.1-
15-20-04.3 amends the pollutants covered by the rule from volatile 
organic compound gases to organic compound gases. This change is 
substantive. While there is a definition for volatile organic 
compounds, there is no definition for `organic compound gases' and it 
is unclear what group of gases this phrase references.
    Response: We do not agree with commenter's assessment that the two 
revisions to North Dakota's section 33.1-15-20-04.3 are substantive. 
North Dakota made two revisions to chapter 33.1-15-20-04.3. First, the 
term ``volatile'' was removed prior to ``organic compound gas(es) and 
vapor(s)'' from the provision so that it now reads, ``Any organic gases 
and vapors may be subject to controls specified in chapter 33.1-15-
07.'' Chapter 33.1-15.07 addresses control of organic compounds 
emissions. Chapter 33.1-15-07 uses the term ``volatile organic 
compound'' but does not use the term ``volatile organic compound vapor 
and gas [emphasis added].'' Section 33.1-15-07-02 specifically 
addresses ``gases and vapors'' and in particular ``organic compound 
gases and vapors'' but does not use the term ``volatile organic 
compound gas(es) and vapor(s).'' Because North Dakota uses the terms 
``volatile organic compound'' and ``organic compound gases and vapors'' 
in chapter 33.1-15-07 and not ``volatile organic compound gas(es) and 
vapor(s),'' it is reasonable to assume that the edits North Dakota 
proposed is to correct an error in the language of the regulation 
whereby North Dakota incorrectly referred to ``volatile organic 
compound gas and vapor'' when it meant ``organic compound gases and 
vapors'' so that chapter 33.1-15-07 aligns with section 33.1-15-20-4.3 
which the provision references. Therefore, we characterized this change 
in our proposal as administrative since the edits to section 33.1-15-
20-4.3 reflect a desire to align language between section 33.1-15-20-
4.3 and chapter 33.1-15-07 for ``organic compound gases and vapors.''
    The commenter is correct that the Air Pollution Control Regulations 
(Article 33.1-15) does not define what organic compound gases and 
vapors are, but the Air Pollution Control Regulations do control the 
emissions of organic compounds including organic compound gases and 
vapors as found in chapter 33.1-15-07. Without the proposed revision to 
chapter 33.1-15-20-4.3 by North Dakota, it is possible that it would 
not be clear to the public that organic compound gases and vapors under 
chapter 33.1-15-20-4.3 may be also subject to chapter 33.1-15-07 and in 
particular with section 33.1-15-07-02 of chapter 33.1-15-07 which 
specifically regulates organic compound gases and vapors. That is why 
EPA proposed approval under a rationale that this change was 
administrative in nature which clarified chapter 33.1-15-20.4.3 to 
align with its corollary chapter 33.1-15-07.
    The second revision to chapter 33.1-15-20-4.3 is the pluralizing of 
gases and vapors by adding ``es'' and ``s'' to gas and vapor. 
Pluralizing a word is considered purely administrative in nature since 
the only impact is that we are changing gas and vapor from singular to 
plural which does not impact the meaning of the terms ``gas'' and 
``vapor.''
    Comment: We believe that the revisions proposed to section 33.1-15-
20-04.4 are not administrative in nature. Section 33.1-15-20-4.4 
requires routine inspections and maintenance of certain listed 
equipment ``used for gas containing hydrogen sulfide 
(H2S).'' The proposed revision would apparently expand the 
rule to cover routine inspection and maintenance of equipment 
regardless of the type of pollutants emitted. This would mean the rule 
covers all pollutants emitted at a production facility, not just 
H2S. This would be an improvement of air quality if the rule 
were enforceable, but we don't believe the rule is enforceable since 
there are no required recordkeeping and reporting requirements for this 
provision. In addition, the definition of production facility found in 
section 33.1-15-20-

[[Page 14051]]

01.2 is more expansive than the list of equipment covered by the 
current rule for routine inspection and maintenance. Expanding the 
coverage of a vague rule is not an administrative change.
    Response: We agree with the commenter that the proposed change to 
section 33.1-15-20-04.4 is not administrative in nature. Previously 
section 33.1-15-20-04.4, provided that ``Routine inspections and 
maintenance of tanks, hatches, compressors, vent lines, pressure relief 
valves, packing elements and couplings must be conducted to minimize 
emissions from equipment used for gas containing hydrogen sulfide 
(H2S) . . .'' North Dakota's revision to section 33.1-15-20-
04.4 removes the phrase ``used for gas containing hydrogen sulfide 
(H2S)'' and replaces it with ``production facility'' so that 
the provision now reads as follows: ``routine inspections and 
maintenance of tanks, hatches, compressors, vent lines, pressure relief 
valves, packing elements, and couplings must be conducted to minimize 
emissions from equipment at a production facility. Tank hatches must 
hold a positive working pressure or must be repaired or replaced.'' 
Chapter 33.1-15-20-01 provides the definition of ``production 
facility'' to include'' all equipment, wells, flow lines, separators, 
treaters, tanks, flares, gathering lines, and auxiliary 
nontransportation-related equipment used in the exploration, 
development, or subsequent production or handling of oil and gas from 
an oil or gas well or wells which are located on one or more contiguous 
or adjacent surface properties, and are under the control of the same 
person (or persons under common control).''
    By changing to requiring routine inspections of equipment to 
minimize emissions at a production facility, North Dakota is also 
requiring routine inspections to minimize emissions of volatile organic 
compounds and carbon monoxide as well as hydrogen sulfide since those 
are the expected air contaminants from an oil and gas production 
facility. This revision strengthens this provision and does not weaken 
the SIP since it expands the equipment that are subject to this 
regulation. The commenter is also correct that the definition of 
production facility as spelled out in the definition section found in 
chapter 33.1-15-20-01-2.n is more expansive than the prior term 
``equipment used for gas containing hydrogen sulfide'' in this section. 
Chapter 33.1-15-20-01-2.n defines ``production facility'' as ``all 
equipment, wells, flow lines, separators, treaters, tanks, flares, 
gathering lines and auxiliary nontransportation-related equipment used 
in exploration, development, or subsequent production or handling of 
oil and gas from an oil and gas well or wells which are located on one 
or more contiguous or adjacent surface properties, and are under the 
control of the same person (or persons under common control).'' By 
expanding the definition of equipment at oil and gas facilities that 
emit air contaminants, and not necessarily hydrogen sulfide, this 
expands the equipment that is subject to routine inspection to include 
oil storage tanks, control flares at storage tanks, casing head gas, 
generators, tank and heaters, and valves and flanges. Because the 
revision to section 33.1-15-20-04.4 expands the equipment subject to 
inspection and maintenance, we are expecting better running equipment 
and prevention of unplanned emissions of air contaminants. Thus, we 
believe the revision to section 33.1-15-20-4.4 is more stringent than 
the previous iteration.
    As to the comment that this chapter is not enforceable because it 
does not have required recordkeeping and reporting requirements, the 
commenter is correct that section 33.1-15-20-4.3 does not contain 
recordkeeping and reporting requirements. Both the proposed revision 
and the previous version of section 33.1-15-20-4.3 do not address 
recordkeeping and reporting requirements. Recordkeeping and reporting 
requirements are provided in North Dakota's chapter 33.1-15-20-02, and 
North Dakota did not submit, and we are not acting on revisions to 
chapter 33.1-15-20-02.\5\ Therefore, we cannot agree with commenters 
statement that chapter 33.1-15-20-4.3 is not enforceable because there 
is no required recordkeeping and reporting requirements since the 
recordkeeping and reporting requirements are found in chapter 33.1-15-
20-02 and they have not been revised since their prior approval in 
2019.
---------------------------------------------------------------------------

    \5\ We approved North Dakota's chapter 33.1-15-20.02 
recordkeeping and reporting requirements in 2019. See 84 FR 1610 
(Feb. 5, 2019)
---------------------------------------------------------------------------

    As to the commenter's comment about the enforceability of this 
requirement, enforcement of North Dakota's Air Pollution Control 
regulation including chapter 33.1-15-20 Control of Emissions from Oil 
and Gas Well Production Facilities are administered by chapter 33.1-15-
01 General Provisions. Specifically, section 33.1-15-01-17 regulates 
enforcement of North Dakota's Air Pollution Regulations including 
chapter 33.1-15-20. For this rulemaking, North Dakota did not submit 
nor are we acting on North Dakota's section 33.1-15-01-17 addressing 
enforcement of North Dakota's Air Pollution Regulations.
    Comment: Expanding coverage of section 33.1-15-20-4.2 to cover all 
air contaminants as opposed to just sulfur dioxide (SO2) for 
flare stack height requirements is not a basis for approval as EPA 
suggests in its proposal. Neither EPA's nor the State's proposal 
discloses what other air contaminants are covered and what-if any-stack 
height rules apply to the expanded list of all air contaminants.
    In addition, EPA's proposed approval of these revisions do not 
apply EPA's stack height requirements for new sources under New Source 
Review (NSR). In light of the broad applicability of the registration 
rule revisions that not only include oil and gas wells, EPA must ensure 
that the stack height requirements apply to the sources that are exempt 
from the NSR permit process, which EPA has not done.
    We also think that the proposed rule revision expands the coverage 
of the rule to more pollutants and more emitting units and source of 
emissions which contradicts the permitting requirements to determine 
what constitutes the stationary source. The outcome is that the 
proposed rule allows the owner/operator of a unit covered by the rule 
to subdivide what should be aggregated into a major source into many 
smaller units and escape major source permitting.
    Response: We do not agree with commenter's statement that expanding 
coverage for flare stack height requirements in section 33.1-15-20-4.2 
to cover all air contaminants versus covering just SO2 
should not be a basis for approval. Generally, we consider expanding 
regulatory coverage to address all air contaminants to be more 
protective than the previous iteration of the requirement. In our case, 
North Dakota submitted revisions to section 33.1-15-20-4.2 
(requirements for control of production facility emissions) replacing 
``sulfur dioxide'' with ``air contaminants.'' Section 33.1-15-20-4.2 
now reads ``each flare used for combusting gas at a production facility 
must be equipped and operated with an automatic igniter or a continuous 
burning pilot which must be maintained and operated in good working 
order. This is required even if the flare is used for emergency 
purposes only. A continuous burning pilot is required if this 
department determines that an automatic ignition system is ineffective 
due to production characteristics. The flare stack must be of 
sufficient height to allow for adequate dispersion of air contaminants 
as necessary to meet the requirements of this article.''

[[Page 14052]]

    The commenter is correct that section 33.1-15-20-04.2 does not 
spell out what air contaminants are covered under this section but 
``air contaminants'' are defined in the Air Pollution Control general 
provisions definitions section found in section 33.1-15-01-4.2. The 
general provisions definitions in section 33.1-15-01 are applicable to 
all of chapter 33.1-15 including section 33.1-15-01-4.2. Under the NDAC 
section 33.1-15-01-4.2, ``'air contaminant' is defined as ``any solid, 
liquid, gas, or odorous substance or any combination thereof emitted to 
the ambient air.''
    As to the commenter's concerns that the revision doesn't provide 
clarity on what stack height rules apply to the expanded list of air 
contaminants, we do not believe that North Dakota's replacement of 
``hydrogen sulfide'' with ``air contaminants'' for flare stack height 
requirements impacts the clarity of the proposed revision to section 
33.1-15-20-4.2. The original language reads ``flare stack must be of 
sufficient height to allow for adequate dispersion of hydrogen sulfide 
as necessary to meet the requirement of this article.'' The revised 
language now reads ``flare stack must be of sufficient height to allow 
for adequate dispersion of air contaminants as necessary to meet the 
requirements of this article.'' The rule revision is not regulating 
additional criteria pollutants because there is no change in the 
pollutants being emitted. The rule revision is rather clarifying that 
the rule applies to all pollutants, not just hydrogen sulfide. Thus, 
there are no new emissions sources to be evaluated and the flare stack 
height is not impacted from the revision to section 33.1-15-20-4.2.
    The commenter is correct that this revision relating to flare 
stacks does not apply to EPA's stack height requirements for new 
sources under NSR. This is not an issue because stack height 
requirements for new sources under NSR are governed by chapter 33-15-
18. In addition, stack height requirements for new sources under NSR 
specifically state that stack height requirements do not apply to flare 
stacks. This is true both for the federal NSR program and North 
Dakota's federally approved NSR program.\6\ The commenter appears to 
confuse the stack height requirements under NSR and flare stacks.
---------------------------------------------------------------------------

    \6\ See 40 CFR 51.118 and NDAC section 33.1-15-18 for the 
federal requirements for stack height (not including flare stacks) 
and North Dakota's corollary provision.
---------------------------------------------------------------------------

    We do not agree with the commenter that the rule revision to 
section 33.1-15-20-4.2 expanding the coverage of the stack height 
requirements to all pollutants under the flare rule contradicts 
permitting requirements to determine what constitutes a stationary 
source or that the proposed rule allows the owner/operator of a unit 
covered by the rule to subdivide what should be aggregated into a major 
source into many smaller units and escape major source permitting. The 
commenter is correct that the revision to section 33.1-15-20-4.2 
expanding to all pollutants will mean that more emitting units and 
source of emissions will be subject to section 33.1-15-20-4.2. However, 
it is not clear how the commenter connects being subject to section 
33.1-15-20-4.2 results in North Dakota's stationary source requirements 
being circumvented or escaping major source requirements. North 
Dakota's stationary source and permitting requirements are governed by 
chapter 33.1-15-14 titled ``Designated Air Sources, Permit to 
Construct, Minor Source Permit to Operate, and Title V to operate.'' 
Specifically, section 33.1-15-14-06.1.bb defines ``stationary sources'' 
for permitting purposes as ``any building, structure, facility, or 
installation that emits or may emit any regulated air contaminant or 
any contaminant listed under section 112(b) of the federal Clean Air 
Act.'' In addition, section 33.1-15-14-06.1.q defines ``major source'' 
for permitting purposes as the same definition of ``major source'' 
under title V of the CAA. North Dakota did not submit revisions to 
section 33.1-15-14-06, nor did EPA propose to act on section 33.1-15-
14-06 in this action. We fail to see how the revision to section 33.1-
15-20-4.2, which requires a flare stack to be of sufficient height to 
allow for adequate dispersion of all air contaminants versus just flare 
stacks that emit hydrogen sulfide, revises the permitting requirements 
for stationary sources and major source permitting found in Chapter 
33.1-15-14.
    Comment: EPA's proposed approval of the State's revisions to 
chapter 33.1-15-20, also known as the oil and registration rule \7\ did 
not include a CAA section 110(l) demonstration. Expanding control 
measures to cover additional equipment and all pollutants triggers 
section 110(l) review because the registration rule is a stationary 
source per section 110(i). Section 110(i) requires that SIP 
requirements for stationary sources must undergo the SIP revision 
process, which in turn requires EPA to determine that the requirement 
in section 110(l) is met, including non-interference with attainment 
and maintenance of the NAAQS.
    Response: In accordance with CAA Section 110(l), EPA cannot approve 
a SIP revision if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of the CAA. CAA 110(l) does not 
require a state to conduct a 110(l) analysis for every action; rather, 
CAA 110(l) requires that the Administer shall not approve a revision to 
a plan if the revision would interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the Act. The EPA evaluated North Dakota's 
submittal containing the four revisions to chapter 33.1-15-20 (one 
revision to section 33.1-15-20-4.2, two revisions to section 33.1-15-
20-4.3, and one revision to section 33.15-20-4.4) on which we received 
comments for interference with any applicable requirement concerning 
attainment and reasonable further progress, or any other applicable 
requirement of the CAA.
    North Dakota proposed a revision to section 33.1-15-20-4.2 which 
North Dakota expanded flare stack height requirements to include 
``adequate dispersion of air contaminants as necessary to meet the 
requirements of this article.'' Section 33.1-15-20-4.2 was formerly 
limited to stack height for adequate dispersion of hydrogen sulfide. 
The rule revision is not regulating additional criteria pollutants 
because there is no change in the pollutants being emitted, rather, it 
is clarifying that the rule applies to all pollutants, not just 
hydrogen sulfide. Thus, there are no new emissions sources to be 
evaluated, and the commenter has not identified a specific emissions 
increase that would require a 110(l) evaluation. The rule continues to 
specify that the stack must be designed with sufficient height to allow 
for adequate dispersion of all air contaminants. Thus, we do not 
believe that the revision to section 33.1-15-20-4.2 will interfere with 
any applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the CAA.
    North Dakota proposed two revisions to section 33.1-15-20-4.3. 
First, North Dakota removed the term ``volatile'' when referencing 
``organic compound gas and vapor.'' North Dakota removed the term 
``volatile'' to align with the language in chapter 33.1-15-07 since 
section 33.1-15-20-4.3 specifically references chapter 33.1-15-07. 
Section 33.1-15-20-4.3 states that ``any organic compound gases and 
vapors may be subject to controls as specified in chapter 33.1-15-07. 
Secondly, North

[[Page 14053]]

Dakota pluralized gas``es'' and vapor``s'' in section 33.1-15-20-4.3. 
As explained in more detail in our previous response, we consider the 
deletion of ``volatile'' aligning the two corollary provisions of 
section 33.1-15-20-4.3 and chapter 33.1-15-07 as well as the 
pluralization of gas and vapor to be administrative in nature and thus, 
we do not anticipate impacts to applicable requirements concerning 
attainment and reasonable further progress, or any other applicable 
requirement under the CAA.
    North Dakota also proposed a revision to chapter 33.1-15-20-4.4 in 
which the term ``used for gas containing hydrogen sulfide'' was 
replaced with ``at a production facility'' for routine inspections and 
maintenance of tanks, hatches, compressors, vent lines, pressure relief 
valves, packing elements and couplings . . . to minimize emissions from 
equipment at a production facility. We do not expect to see an increase 
in emissions of any pollutant or interfere with attainment and 
reasonable further progress requirements because increased routine 
inspection and maintenance increases the opportunity to identify and 
fix and/or prevent fugitive emissions and does not add to the 
emissions. It is strictly part of keeping equipment in working order in 
order for a facility to comply with CAA requirements. Thus, we do not 
believe that the revisions to section 33.1-15-20-4.4 will interfere 
with any applicable requirement concerning attainment and reasonable 
further progress, or any other applicable requirement of the CAA.
    In addition to the sections revised by North Dakota indicating no 
interference with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
CAA, all counties in North Dakota are designated as attainment for all 
criteria pollutants under the CAA. The rule revision is administrative 
in that it addresses permitting for potential new sources in the 
future. The rule revision itself does not approve any increases in 
actual emissions, and thus there are no specific increases in emissions 
to be addressed for interstate transport. Moreover, this rule does not 
affect the already existing legally and practicably enforceable 
requirements that facilities are already routinely achieving through 
the installation and operation of control equipment for health, safety 
and market purposes. This rule also does not exempt these facilities 
from other potentially applicable regulatory or permitting 
requirements. Because of these factors, EPA expects the revisions to 
North Dakota's chapter 33.1-15-20 will not interfere with any 
applicable CAA requirement, including attainment.
    Comment: EPA's proposed approval of North Dakota's revisions to 
chapter 33.1-15-20 do not comply with 40 CFR 51.160(f). 40 CFR 
51.160(f) requires that a state SIP must discuss the air quality data 
and the dispersion or other air quality modeling used to review new 
sources and modification pursuant to the requirements in 40 CFR 51.160-
51.166. 40 CFR 51.160(f) applies to all sources covered by the NSR 
program, including the oil and gas wells/facilities subject to the 
revisions to North Dakota's registration rule. Contrary to EPA's 
regulation, the State's registration rule SIP amendments did not 
discuss what air quality data and dispersion or other modeling data the 
State used and relied on in developing the revisions. We included Tier 
3 NO2 modeling at the SandRidge Exploration and Production 
LLC's Bighorn Pad facility showed concentrations over six times the 
one-hour NO2 NAAQS. Furthermore, the registration rule does 
not contain any provisions for the State to consider air quality data 
and the dispersion or other air quality modeling information in 
implementing the registration rule.
    Response: We do not agree with the commenter that we are not 
meeting the requirements of 40 CFR 51.160(f) for air data and the 
dispersion or other air quality modeling used to review new sources and 
modification pursuant to the requirements in 40 CFR 51.160-51.166. 40. 
40 CFR 51.160-51.166 addresses the requirements for review of new 
sources and modifications. Specifically, 40 CFR 51.160 provides that a 
state must submit a plan that contains legally enforceable procedures 
to enable the state to determine whether the construction or 
modification of a facility will result interference with attainment or 
maintenance of a national standard. In addition, 40 CFR 51.160 provides 
that the state must have procedures for the submission of the owner or 
operator of the facility to be constructed or modified including the 
requirement (found in 40 CFR 51.160(f)), as commenter stated, that the 
state SIP must discuss the type of air quality data and modeling 
required in the state permit application procedures for construction or 
modification of a source.
    North Dakota's plan for the review of new sources and modifications 
is found in chapter 33.1-15-14. Specifically, North Dakota's section 
33.1-15-14-02 spells out the State's requirements for permit to 
construct and alterations to sources. Section 33.1-15-14-02 was 
approved in a prior action by EPA.\8\ In this rulemaking, we are 
finalizing approval of North Dakota's proposed revision to section 
33.1-15-14-02.4a in which North Dakota incorporated by reference the 
PSD modeling guidance requirements found in 40 CFR part 51, appendix W 
(Guideline on Air Quality Models). This aligns with the requirements 
set out in 40 CFR 51.160(f)(1) of the air quality modeling requirement 
for new sources and modifications. In addition, the existing section 
33.1-15-14-02.4b aligns with 40 CFR 51.160(f)(2). Thus, the 
requirements of 40 CFR 51.160(f) are being met by North Dakota's 
section 33.1-15-14-02.
---------------------------------------------------------------------------

    \8\ See 85 FR 38079 (Jun. 25, 2020).
---------------------------------------------------------------------------

    The commenter confuses the requirement of 40 CFR 51.160(f) to 
require each SIP revision to contain air quality data and modeling when 
in fact 40 CFR 51.160(f) requires a state to have procedures in place 
discussing the type of air quality data and modeling required in the 
state permit application procedures for construction or modification of 
a source which North Dakota does in section 33.1-15-14.
    Comment: There is no demonstration that the revisions to North 
Dakota's chapter 33.1-15-20 are protective of the PSD increments. Under 
40 CFR 51.166(a)(1), a state's SIP must contain emission limitations 
and such other measures as may be necessary to prevent significant 
deterioration of air quality. If a SIP revision would result in 
increased air quality deterioration over any baseline concentration, 
the plan revision should include a demonstration that it will not cause 
or contribute to a violation of the applicable increments. The State's 
SIP submittal expands the pollutants to include SO2, 
NO2, and PM, however, there is no demonstration of the 
effectiveness of the controls. Lacking these details and the required 
elements for enforceability, it is reasonable to assume that emissions 
from the oil and gas wells/facilities that are registered under the 
rule will increase air quality deterioration over the baseline 
concentration. Therefore, the SIP revision is required to include a 
demonstration that it will not cause or contribute to a violation of 
the applicable increments. The State's SIP submittal did not include 
this.
    Response: We do not agree with the commenter that it is reasonable 
to assume the four revisions to North Dakota's chapter 33.1-15-20 will 
increase air quality deterioration over the baseline concentration. We 
discuss in detail in our response to the 110(l) demonstration comment 
that we do not

[[Page 14054]]

expect that the revisions to chapter 33.1-15-20 will result in an 
increase in emissions and thus does not trigger a demonstration that 
revisions will not cause or contribute to a violation of the applicable 
increment as spelled out in 40 CFR 51.166(a)(2).\9\ Thus, we do not 
need to demonstrate the effectiveness of controls for the revisions to 
section 33.1-15-20-4.2, section 33.1-15-20-4.3, and section 33.1-15-20-
4.4.
---------------------------------------------------------------------------

    \9\ Commenter cites 40 CFR 51.166(a)(1) which addresses the 
original submitted PSD SIP requirements. 40 CFR 51.166(a)(2) 
addresses requirements for revisions to a PSD SIP.
---------------------------------------------------------------------------

    The commenter also points to the perceived lack of enforceability 
of chapter 33.1-15-20. In our previous response to an enforceability 
comment, we pointed to chapter 33-15-01-17 which provides the 
enforcement provisions for Article 33.1-15 including chapter 33.1-15-
20. Chapter 33-15-01-17 are not impacted by North Dakota's revisions to 
chapter 33.1-15-20. The enforcement of those revisions remains under 
section 33.1-15-01-17.
    Comment: North Dakota's proposed revisions are not practically 
enforceable. The requirements for enforceability of a minor NSR program 
is found at 40 CFR 51.160 which requires that state SIPs include the 
authority to prevent the construction of a facility or modification 
that will cause a violation of applicable portions of the control 
strategy or interfere with attainment or maintenance of a NAAQS. The 
expanded coverage of the registration rule provisions, which are 
integrated into the registration rule and rely on self-registration by 
owners/operator, lack authority for the State to prevent construction 
or modification. North Dakota's SIP amendments lack a technically 
accurate limitation and also lacks a time period for the limitation. 
There are no methods specified in the SIP amendments for the owners and 
operators to determine compliance and no requirement to keep records. 
The rule does not specify any consequences for enforcement. In 
addition, the SIP revisions and SIP submittal lacks provisions that 
demonstrate how the state complies with these requirements. The SIP 
amendments leave it entirely up to the owner/operator of the oil and 
gas well/facility to decide whether, when and how to conduct an 
inspection. The amendments lack clarity on how swiftly maintenance must 
be performed, whether the root cause of maintenance must be determined 
and identification and implementation of measures to reduce 
maintenance. Furthermore, the inspections/maintenance work practice 
requirement is only conducted to minimize emissions. Given the nature 
of fugitive emissions from oil and gas operations, the rule should 
require more than just minimizing emissions. There should be ongoing 
requirements for inspection and repair. Additionally, there are no 
requirements that the owners/operators make records of the testing, 
inspections, and retain them. This is contrary to the requirements in 
40 CFR 51.211 which requires legally enforceable procedures for 
requiring owners or operators of stationary source to maintain records 
and periodically report to the State. The rule revisions lack 
information on the nature and amount of emissions from the stationary 
sources as well as other information as may be necessary to enable the 
State to determine whether the sources are in compliance with 
applicable portions of the control strategy. The rule revisions lack 
provisions for calculating compliance on a 12-month rolling average and 
against the applicable short-term NAAQS limits. The public has no means 
to know what is going on regarding implementation of this rule and thus 
is barred from use of the CAA's citizen suits provisions. The revisions 
to the rule also lack provisions for the State to request additional 
information about the operations. The revisions to the rule also lack 
provisions that provide that oil and gas wells/facilities with 
emissions that exceed the major source emissions threshold constitute 
violations of permitting and SIP requirements. Lacking all these 
provisions means there is no way to determine compliance and ensure 
that the NAAQS and other requirements of the CAA are protected.
    Response: The commenter confuses the chapter 33-15-20 revisions 
(oil and gas registration requirements) with other provisions of the 
NSR program. Chapter 33-15-20 is silent as to compliance, 
recordkeeping, and enforcement since the provisions that address all 
facilities including oil and gas facilities is found in North Dakota's 
federally approved NSR program. As stated previously, North Dakota's 
overall NSR program including compliance is codified in Chapters 33-15-
14 and 33-15-15 and are modeled after the federal NSR program found in 
40 CFR 51.160-51.166. Recordkeeping is codified in North Dakota's 
chapter 33.1-15-20.02. Enforcement requirements that the revisions are 
subject to are codified in 33-15-01-17. Compliance, recordkeeping, and 
enforcement requirements that are applicable to section 33.1-15-20 are 
not being proposed for revision.\10\ Therefore, these comments on 
compliance, recordkeeping, and enforcement are outside the scope of the 
revisions we are acting on in this rulemaking.
---------------------------------------------------------------------------

    \10\ While we proposed approval of four revisions to chapter 
33.1-15-15 in this rulemaking, the revisions did not modify and 
compliance requirements. The proposed revisions: (1) Updated the 
incorporation by reference of federal PSD requirements; (2) expanded 
administrator to include ''or the administrator's authorized 
representative;''(3) added the requirement that when the state goes 
out to comment under this chapter that the state must also provide 
notice on the department's website; and (4) adds language that draft 
permit to construct are also required to be published during the 
public comment period for a permit. The proposed changes to chapter 
33.1-15-15 did not receive comment. In addition, we proposed no 
changes to chapter 33-15-14. See our proposal for a more detailed 
explanation of the North Dakota revisions that were proposed for 
approval, and we are now finalizing approval at 86 FR 41413 (Aug. 2, 
2021).
---------------------------------------------------------------------------

    Comment: North Dakota's revisions to chapter 33.1-15-20 allow minor 
sources to avoid the requirements of 40 CFR 51.160(d). 40 CFR 51.160(d) 
requires a SIP to include procedures that if an owner or operator 
receives approval to construct or modify a source, the owner or 
operator must still comply with applicable portions of the control 
strategy. The revisions to the chapter 33.1-15-20 lack language that 
requires that an owner or operator to comply with the applicable 
portions of the existing SIP control strategies.
    Response: We do not agree with commenter that the revisions to 
chapter 33.1-15-20 allow minor sources to avoid the requirements of 40 
CFR 51.160(d). 40 CFR 51.160(d) requires the state program for review 
of new sources and modifications include procedures that approval of 
any construction or modification must not affect the responsibility to 
the owner or operator with the applicable portions of the control 
strategy. North Dakota adopted the provisions of 40 CFR 51.160(d) 
within NDAC section 33.1-15-14-02.10.a. Section 33.1-15-14-02.10.a 
states that ``the issuance of a permit to construct for any source does 
not affect the responsibility of an owner or operator to comply with 
applicable portions of a control strategy affecting the source.'' We 
approved chapter 33.1-15-14-02 on June 25, 2020.\11\ Chapter 33.1-15-20 
does not contain provisions of 40 CFR 51.160(d) either before or after 
North Dakota's revisions to this chapter since it is provided in 
chapter 33.1-15-14-02 and chapter 33.1-15-14-02 is applicable to all 
facilities including oil and gas facilities.
---------------------------------------------------------------------------

    \11\ See 85 FR 38079.
---------------------------------------------------------------------------

    Comment: The SIP revisions do not comply with the regional haze 
requirements. EPA's regional haze

[[Page 14055]]

program requires states to design and implement programs to curb haze-
causing emissions within their state. Emissions from the oil and gas 
wells and associated equipment impact visibility. The CAA does not 
provide an off-ramp from the reasonable progress four-factor analysis 
for sources that would rely on the proposed amendments to North 
Dakota's registration program. EPA's proposed action to approve the 
changes to North Dakota registration regulations did not take into 
consideration all requirements of the CAA, including the long-term 
strategy for regional haze. EPA must not make decisions in isolation, 
set aside distinct requirements or delay their implementation. North 
Dakota's proposed SIP amendments should not be approved by EPA as they 
would replace the State's responsibility under the CAA to conduct the 
required reasonable progress four factor analysis for the oil and gas 
sources.
    Response: This comment addresses provisions that were not affected 
by the revisions approved in this action and is beyond the scope of 
this rulemaking. This rulemaking does not address revisions to North 
Dakota's regional haze requirements. Our proposed rulemaking explicitly 
stated that the regional haze requirements had been addressed in a 
prior rulemaking. In that prior rulemaking, the EPA approved North 
Dakota's rule revisions to chapter 33.1-15-25 (regional haze) on June 
8, 2021 (86 FR 30387). The commenter does not demonstrate that the 
changes approved in this action will allow oil and gas sources to 
increase emissions to a degree that influences the effectiveness of 
North Dakota's regional haze regulations.
    Comment: North Dakota's submittal lacked information required for 
EPA to process the SIP. Specifically, North Dakota's SIP submittal 
lacked the following technical support required by appendix V of 40 CFR 
part 51: (1) identification of all regulated pollutants affected by the 
revisions; (2) identification of the locations of affected sources 
including the EPA attainment/nonattainment designations of the 
locations and the status of the attainment plan for the affected areas; 
(3) quantification of the changes in plan allowable emissions from the 
affected sources; estimates of changes in current actual emissions from 
affected sources; (4) state's demonstration that the NAAQS, PSD 
increments, and visibility, are protected if the plan revisions are 
approved and implemented; (5) modeling information to support the 
proposed revision; (6) evidence that the plan contains emission 
limitations, work practice standards and recordkeeping/reporting 
requirements, where necessary, to ensure emission levels; and (7) 
compliance/enforcement strategies, including how compliance will be 
determined in practice. With the missing required technical support, it 
was inappropriate for EPA to proceed with evaluating an incomplete SIP 
submission and propose approval.
    Response: We disagree with the comment that the submittal lacked 
information required for EPA to process the SIP under appendix V of 40 
CFR part 51. As explained in our prior responses, the revisions consist 
of those that are administrative in nature as well as revisions that do 
not lead to an increase in emissions. Thus, the additional technical 
documentation related to an increase in emissions that the commenter is 
seeking is not required.
    CAA section 110(k) provides a two-step process for EPA's review of 
SIP submittals. First, within six months of receiving a SIP submission, 
EPA must make a threshold ``completeness determination'' to determine 
whether the SIP contains certain ``minimum criteria'' designated by EPA 
as ``the information necessary to . . . determine whether the plan 
submission complies with the provisions of the CAA.'' \12\ These 
minimum criteria are listed in 40 CFR part 51, appendix V.\13\ There is 
no requirement in the CAA or EPA's regulations that EPA document its 
completeness review prior to proposing to approve a SIP revision. To 
the contrary, if EPA fails to make the completeness determination 
within six months, the SIP submission is deemed complete by operation 
of law.\14\ Here, EPA received North Dakota's SIP submittal on July 28, 
2020. EPA did not make a formal completeness determination within six 
months; thus, the SIP submittal was deemed complete by operation of law 
and constitutes an official submission.\15\ North Dakota's authority to 
adopt the SIP is addressed in the Opinion issued by the North Dakota 
Office of Attorney General and submitted with the SIP revision.\16\
---------------------------------------------------------------------------

    \12\ 42 U.S.C. 7410(k)(1)(A), (B).
    \13\ 40 CFR part 51, appendix V.
    \14\ 42 U.S.C. 7410(k)(1)(C); 40 CFR part 51, appendix V, Sec.  
1.2.
    \15\ 40 CFR part 51, appendix V, Sec.  1.2 (``A determination of 
completeness under this paragraph means that the submission is an 
official submission for purposes of Sec.  51.103.'')
    \16\ Letter dated July 28, 2020, from Doug Burgum, Governor, 
North Dakota, to Gregory Sopkin, Regional Administrator, EPA Region 
8, Subject: Revisions to North Dakota Regional Haze SIP for control 
of air pollution; North Dakota, Final Revisions to Implementation 
Plan for Control of Air Pollution, Amendment No. 2 to North Dakota 
State Implementation Plan First Planning Period for Regional Haze 
(July 2020) (Amendment No. 2) at 121.
---------------------------------------------------------------------------

    In the second step of the two-step process, EPA evaluates SIP 
submittals for compliance with substantive requirements.\17\ Here, the 
relevant provisions \18\ are section 33.1-15-20-4.2 (which expanded the 
definition of flare stack height to air contaminants when it was 
previously limited to hydrogen sulfide), section 33.1-15-20-4.3 (which 
edited the provision to match language in chapter 33.1-15-07 which the 
section refers to by removing the term ``volatile'' from the term 
``organic compound gas(es) and vapor(s)), section 33.1-15-20-4.3 
pluralized the terms ``vapor'' and ``gas'' to reference both volatile 
and non-volatile gases, and section 33.1-15-20-4.4 (which expanded 
inspections and routine maintenance to minimize all emissions from oil 
and gas equipment). EPA explained in the proposed rule and in our 
responses above how North Dakota's SIP revision complies with these 
substantive requirements of the CAA including how the enforceability of 
the chapter 33.1-15-20 has not been impacted much less weakened by 
North Dakota's four revisions to chapter 33.1-15-20. Thus, the 
commenters' assertions that North Dakota's SIP revision to chapter 
33.1-15-20 was inadequate because it lacked appendix V criteria and 
that EPA's proposal was inadequate because it lacked an appendix V 
completeness determination are without merit.
---------------------------------------------------------------------------

    \17\ See NRDC v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995).
    \18\ We drew adverse comments on chapter 33.1-15-20. Control of 
Emissions from oil and gas well production facilities and are 
limiting are response to that provision. We did review all the 
submitted rule revisions by North Dakota and found that they meet 
the requirements of CAA 110(k). Since we did not receive adverse 
comments on these other revisions, we are not speaking in detail 
about these other revisions in our responses.
---------------------------------------------------------------------------

    Comment: Executive Order 12898 requires federal agencies to achieve 
environmental justice through identification and addressing 
disproportionate high and adverse human health or environmental effects 
of its programs. Executive Order 14008 addresses climate change while 
implementing environmental justice. Contrary to the requirements of 
Executive Order 12898 and 14008, EPA's proposal fails to integrate the 
Executive Orders 12898 and 14008. EPA must not approve SIP amendments 
that lack clarity and enforceability, fail to meet the requirements of 
the CAA and EPA's regulations, and relax protections for the impacted 
environmental justice communities.

[[Page 14056]]

    Response: This action is finalizing approval of North Dakota's 
revisions to the State's Air Pollution Control regulations. In 
particular, we drew comments on the approvability of revisions to 
chapter 33.1-15-20 in which North Dakota proposed four revisions. As 
explained in more detail in the previous responses, two of the 
revisions expanded the coverage of what is regulated under chapter 
33.1-15-20 \19\ and two revisions were administrative in nature.\20\ 
Our previous responses also address how the clarity and enforceability 
of the regulations have not been impacted by the revisions and how 
North Dakota's revisions to chapter 33.1-15-20 meet the requirements of 
the CAA. We do not agree that the revisions which expand coverage to 
all air contaminants for flare stack height, routine inspection and 
maintenance of oil and gas facility equipment, as well as revisions the 
clarify language to align with its referring chapter relax protections 
for impacted environmental justice communities. In fact, we believe it 
will have the opposite effect. Executive Order 12898 and Executive 
Order 14008 does direct the agency to identify and address 
environmental justice and the disproportionate impacts on impacted 
communities in federal actions. However, the rule being approved in 
this action does not weaken any part of the existing oil and gas 
registration program and therefore is not expected to adversely impact 
communities with environmental justice concerns.
---------------------------------------------------------------------------

    \19\ Section 33.1-15-20-4.2 expanded the definition of flare 
stack height to air contaminants when it was previously limited to 
hydrogen sulfide. Section 33.1-15-20-4.4 expanded routine 
inspections and maintenance of oil and gas equipment to include 
minimization of all air contaminants at a production facility and 
not just hydrogen sulfide.
    \20\ Section 33.1-15-20-4.3 removed the term ``volatile'' from 
the term ``organic compound vapor and gas(es)'' so that it aligned 
with the referring terms in chapter 33.1-15-07. Section 33.1-15-20-
4.3 also pluralized the terms ``vapor'' and ``gas'' to reference 
both volatile and non-volatile gases.
---------------------------------------------------------------------------

III. Final Action

    As outlined in our proposed rulemaking, the EPA is taking final 
action to approve the addition of new and revised rules to Article 
33.1-15 (Air Pollution Control), as submitted on August 3, 2020.
    Specifically, we are taking final action to approve the following 
revisions: Revisions to Chapter 33.1-15-01 (General Provisions)--
section 33.1-15-01-01; section 33.1-15-01-01-04; section 33.1-15-01-01-
05 Revisions to Chapter 33.1-15-02 (Ambient Air Quality Standards)--, 
Table 1; Revisions to Chapter 33.1-15-03 (Restriction of Emission of 
Visible Air Contaminants); Revisions to Chapter 33.1-15-14 (Designation 
of Air Contaminant Sources; Permit to Construct, Title V Permit to 
Operate)--section 33.1-15-14-1.1; section 33.1-15-14-02; Revisions to 
Chapter 33.1-15-15 (Prevention of Significant Deterioration of Air 
Quality)--section 33.1-15-15-1.2; Revisions to Chapter 33.1-15-19 
(Visibility Protection)--section 33.1-15-19-1.1; section 33.1-15-19-
1.2; Revisions to Chapter 33.1-15-20 (Control of Emissions from Oil and 
Gas Well Production Facilities)--section 33.1-15-20-4.2; section 33.1-
15-20-4.3; section 33.1-15-20-4.4; Revisions to Section 2.15 
(Respecting Boards).
    In addition to taking final action approving North Dakota's 
revisions, we are also correcting an error in citation we made in our 
proposal for the revision to section 33.1-15-10-04.4. In FR document 86 
FR 41413, appearing on page 41415 in section G, subchapter 2, second 
asterisk, section 33.1-15-20-04.3 should read section 33.1-15-20-04.4.

IV. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, the EPA is finalizing the incorporation by reference of 
certain amendments to the NDAC, as listed in section III. Final Action 
of this preamble, which regulate the State's Ambient Air Quality 
Standards, Permit to Construct, and PSD. 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). Therefore, these materials have 
been approved by the EPA for inclusion in the SIP, have been 
incorporated by reference by the EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of the EPA's approval, and will 
be incorporated by reference in the next update to the SIP 
compilation.\21\
---------------------------------------------------------------------------

    \21\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------

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 approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' 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);
     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 the 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 the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. The 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must

[[Page 14057]]

submit a rule report, which includes a copy of the rule, to each House 
of the Congress and to the Comptroller General of the United States. 
The EPA will submit a report containing this action and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. A major rule cannot take effect until 
60 days after it is published in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 8, 2023. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: February 28, 2023.
KC Becker,
Regional Administrator, Region 8.

    For the reasons set forth in the preamble words of issuance 40 CFR 
part 52 is amended to read as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart JJ--North Dakota

0
2. In Sec.  52.1820:
0
a. In the table in paragraph (c), revise the entries ``33.1-15-01-01'', 
``33.1-15-01-04'', ``33.1-15-01-05'', ``Table 1'', ``33.1-15-14-01.1'', 
``33.1-15-14-02'', ``33.1-15-15-01.2'', ``33.1-15-19-01'', and ``33.1-
15-20-04''.
0
b. In the table in paragraph (e), revise the entry ``Section 2.15''.
    The revisions read as follows:


Sec.  52.1820  Identification of plan.

* * * * *
    (c) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      State       EPA effective
               Rule No.                       Rule title         effective date       date       Final rule citation/date             Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
33.1-15-01-01........................  Purpose.................        7/1/2020        4/6/2023  [insert Federal Register
                                                                                                  citation], 3/7/2023.
 
                                                                      * * * * * * *
33.1-15-01-04........................  Definitions.............        7/1/2020        4/6/2023  [insert Federal Register
                                                                                                  citation], 3/7/2023.
33.1-15-01-05........................  Abbreviations...........        7/1/2020        4/6/2023  [insert Federal Register
                                                                                                  citation], 3/7/2023.
 
                                                                      * * * * * * *
Table 1..............................  Ambient Air Quality             7/1/2020        4/6/2023  [insert Federal Register
                                        Standards.                                                citation], 3/7/2023.
 
                                                                      * * * * * * *
33.1-15-14-01.1......................  Definitions.............        7/1/2020        4/6/2023  [insert Federal Register
                                                                                                  citation], 3/7/2023.
33.1-15-14-02........................  Permit to Construct.....        7/1/2020        4/6/2023  [insert Federal Register
                                                                                                  citation], 3/7/2023.
 
                                                                      * * * * * * *
33.1-15-15-01.2......................  Scope...................        7/1/2020        4/6/2023  [insert Federal Register
                                                                                                  citation], 3/7/2023.
 
                                                                      * * * * * * *
33.1-15-19-01........................  General Provisions......        7/1/2020        4/6/2023  [insert Federal Register
                                                                                                  citation], 3/7/2023.
 
                                                                      * * * * * * *
33.1-15-20-04........................  Requirements for control        7/1/2020        4/6/2023  [insert Federal Register
                                        of production facility                                    citation], 3/7/2023.
                                        emissions.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

[[Page 14058]]



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                                                                      State       EPA effective
               Rule No.                       Rule title         effective date       date       Final rule citation/date             Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
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                                                               Chapter 2. Legal Authority
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Section 2.15.........................  Respecting Boards.......        7/1/2020        4/6/2023  [Insert Federal Register
                                                                                                  citation], 3/7/2023.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2023-04427 Filed 3-6-23; 8:45 am]
BILLING CODE 6560-50-P
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