[Federal Register Volume 77, Number 180 (Monday, September 17, 2012)]
[Rules and Regulations]
[Pages 57029-57032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22771]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0300; FRL-9715-1]
Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standards; North Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is in part approving and in part conditionally approving
two State Implementation Plan (SIP) submissions made by the State of
North Dakota. The SIP submissions demonstrate that North Dakota's SIP
meets the requirements of section 110(a)(1) and (2) of the Clean Air
Act (CAA) for the National Ambient Air Quality Standards (NAAQS)
promulgated for ozone on July 18, 1997. Section 110(a)(1) of the CAA
requires that each state, after a new or revised NAAQS is promulgated,
review their SIPs to ensure that they meet the requirements of the
``infrastructure elements'' of section 110(a)(2). The State of North
Dakota submitted revisions to their Infrastructure SIP for the 1997
ozone NAAQS, dated April 6, 2009, as well as a certification of the
adequacy of their infrastructure SIP for the 1997 ozone NAAQS, dated
November 23, 2009. This action is being taken under section 110 of the
Clean Air Act.
DATES: Effective Date: This final rule is effective October 17, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2010-0300. All documents in the docket are listed on
the www.regulations.gov Web site. 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 either
electronically through www.regulations.gov or in hard copy at the Air
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. EPA requests that if at all
possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6142,
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background for This Action
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The initials DAQ mean or refer to Division of Air Quality.
(iii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iv) The initials GHGs mean or refer to greenhouse gases.
(v) The initials NAAQS mean or refer to national ambient air
quality standards.
(vi) The initials NDAC mean or refer to North Dakota Administrative
Code.
(vii) The initials NDCC mean or refer to North Dakota Century Code.
(viii) The initials NOX mean or refer to nitrogen
oxides.
(ix) The initials NSR mean or refer to new source review.
(x) The initials PM2.5 mean or refer to particulate
matter with an aerodynamic diameter of less than 2.5 micrometers (fine
particulate matter).
(xi) The initials ppm mean or refer to parts per million.
(xii) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(xiii) The initials SIP mean or refer to State Implementation Plan.
(xiv) The initials SSM mean or refer to start-up, shutdown, or
malfunction.
I. Background for This Action
On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time a state
develops and submits its SIP for a new or revised NAAQS affects the
content of the submission. The contents of such SIP submissions may
also vary depending upon what provisions a state's existing SIP already
contains. In the case of the 1997 ozone NAAQS, states typically have
met the basic program elements required in section 110(a)(2) through
earlier SIP submissions in connection with previous NAAQS. In a
guidance issued on October 2, 2007, EPA noted that, to the extent an
existing SIP already meets the section 110(a)(2) requirements, states
need only to certify that fact via a letter to EPA.\1\ North Dakota
submitted
[[Page 57030]]
revisions to its SIP on April 6, 2009, which are being approved and are
included in the state's infrastructure checklist and certification,
dated November 23, 2009, that its infrastructure SIP requirements are
met for the 1997 ozone NAAQS.
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\1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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On April 16, 2012 EPA published a notice of proposed rulemaking
(NPR) for the State of North Dakota. The NPR proposed approval of
elements (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J),
(K), (L), and (M) and conditional approval of element 110(a)(2)(E)(ii).
In the NPR, we discussed our reasons for our proposed approval and
conditional approval. We are completing our proposed action for the
reasons given in the NPR. However, we find it appropriate to further
explain our conditional approval for element 110(a)(2)(E)(ii).
In the NPR, we noted the link between element 110(a)(2)(E)(ii) and
section 128 of the CAA. We then presented three considerations for
implementing section 128 and applied these considerations to North
Dakota's situation. We concluded that North Dakota, as a state without
a board or body that approves permits or enforcement orders under the
Act, was not subject to the requirements of section 128(a)(1), and was
obliged to submit a SIP revision to meet the requirements of section
128(a)(2). We briefly described procedures that North Dakota has
committed to submit as a SIP revision, procedures which were detailed
in North Dakota's commitment letter in the docket, and we then briefly
stated that, due to a requirement for recusal, the procedures were more
stringent than the minimum requirements of 128(a)(2). As a result, we
proposed conditional approval of North Dakota's infrastructure SIP for
element 110(a)(2)(E)(ii) for the 1997 ozone NAAQS.
In this notice, EPA completes that conditional approval, and finds
it appropriate to further explain how the elements of North Dakota's
procedures satisfy the requirement for adequate disclosure of potential
conflicts of interest. This explanation is not intended to imply that
any other, different approaches would or would not meet the
requirements of section 128(a)(2). Thus, EPA corrects our statements in
the proposal to the extent they imply that North Dakota's procedures
necessarily exceed the minimum requirements of section 128(a)(2), but
we do not change the conclusion that the procedures meet these
requirements.
Turning to our explanation, we first note that the set of persons
to which the SIP revision will apply is adequate. As explained in our
proposal, in a situation such as North Dakota's, in which there is no
board or body that approves permits or enforcement orders under the
Act, section 128(a)(2) then applies to the ``head of an executive
agency with similar powers,'' that is, the head of an executive agency
that approves permits or enforcement orders under the Act. As further
explained in our proposal, this requirement should extend to any lower
officer of an executive agency who is delegated authority by the head
of the executive agency to approve permits or enforcement orders, or
who is directly vested with this authority by statute. North Dakota has
committed to, in its SIP revision, making the procedures applicable to
any person in the State agency who approves permits or enforcement
actions under North Dakota's implementation of the Act. This is
sufficiently broad to include such lower officers.
Second, the North Dakota procedures address an adequately broad set
of potential conflicts of interest. Under the procedures, a conflict of
interest is defined as the conflict between the duties of the person
subject to the procedure and the self-interest or other interests of
the person. The procedures additionally state that persons subject to
it must avoid any interest, influence, or relationship that might
conflict or appear to conflict with the best interests of the state
agency or the state, or that might affect the person's working judgment
or loyalty. Because the procedures are not limited to the self-interest
of the person but also include other interests, influences, and
relationships, they extend beyond the minimum case where the person's
own financial interest would create a conflict. In addition, because
the procedures apply to interests, influences, and relationships that
might appear to create a conflict or might affect the person's working
judgment or loyalty, they are not dependent on a subjective standard as
to whether a particular individual would actually have their working
judgment or loyalty affected.
Third, the mechanics of the North Dakota procedures are adequate.
The disclosure must be in writing and identify the potential conflict
and its cause. The disclosure must be provided to a superior, and the
person subject to the conflict must remove themselves from any
negotiations, deliberations, or decisions involving the conflict. Thus,
the conflict is adequately memorialized, an appropriate party is made
aware of the conflict and a resolution of the conflict (e.g., recusal)
is reached.
Finally, the purpose of the North Dakota procedures adequately
relates to the purpose of section 128 as a whole. The overall purpose
of section 128 appears to be that final decisions on permits or
enforcement orders are not unduly influenced. However, as explained
above, section 128(a)(1) does not apply in North Dakota's case. In such
a case, it is reasonable for the state, as an alternative approach to
meet the overall purpose of section 128 (and not the particular
requirements of section 128(a)(1)), to require recusal in addition to
disclosure. EPA therefore concludes that the SIP revision that North
Dakota has committed to submit meets the requirements of section
128(a)(2) and that the North Dakota infrastructure SIP for the 1997
ozone NAAQS should be conditionally approved for section
110(a)(2)(E)(ii).
In this action, EPA also completes our proposed approval of
portions of North Dakota's April 6, 2009 SIP submission. Specifically,
EPA approves into the North Dakota SIP revisions sections 6.8, 6.11.3,
and chapter 9, Air Pollution Control Rules of the State of North
Dakota, and the addition of sections 1.14 and 7.7 to the Air Pollution
Control Rules of the State of North Dakota.
II. Response to Comments
EPA did not receive comments regarding our proposed rule for action
on North Dakota's SIP submittals.
III. Final Action
In this action, EPA is approving in full the following section
110(a)(2) infrastructure elements for North Dakota for the 1997 ozone
NAAQS: (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J),
(K), (L), and (M).
In this action, EPA is conditionally approving section
110(a)(2)(E)(ii) for the 1997 ozone NAAQS and will fully approve this
element if North Dakota takes the action detailed in the State's March
8, 2012 commitment letter, including submission of a SIP revision as
described within the commitment letter, within one year after the
publication date of this final action. If, however, North Dakota does
not submit the SIP revisions specified in its commitment letter within
one year after the publication date of this final action, EPA's
conditional approval will automatically revert to disapproval of the
infrastructure SIP for section 110(a)(2)(E)(ii) for the 1997 ozone
NAAQS.
In this action, EPA also approves into the North Dakota SIP
revisions to sections 6.8 (Annual Network Review), 6.11.3 (Air Quality
Surveillance: Ozone), and chapter 9 (Resources), Air
[[Page 57031]]
Pollution Control Rules of the State of North Dakota, and the addition
of sections 1.14 (Revisions to the Implementation Plan), and 7.7 (Air
Quality Modeling) to the Air Pollution Control Rules of the State of
North Dakota.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule
implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission; to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 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 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. EPA will submit a report containing this
rule 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.
section 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 November 16, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: July 31, 2012.
James B. Martin,
Regional Administrator, Region 8.
PART 52 [AMENDED]
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. Section 52.1820 in paragraph (e) is amended by:
0
a. Revising table entry ``(1)''; and
0
b. Adding to the table entries ``(26),'' ``(27),'' ``(28),'' ``(29),''
and ``(30),'' in numerical order.
The revisions and additions read as follows:
Sec. 52.1820 Identification of plan.
* * * * *
(e) * * *
[[Page 57032]]
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Applicable
Name of nonregulatory SIP geographic or non- State submittal EPA approved date Explanations
provision attainment area date/adopted date and citation \3\
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(1) Implementation Plan for the Statewide......... Submitted: 1/24/ 5/31/72, 37 FR Excluding
Control of Air Pollution for 72; Adopted: 1/24/ 10842. subsequent
the State of North Dakota. 72. revisions, as
follows: Chapters
1, 6, 7, 9, 11,
and 12; Sections
1.14, 2.11, 3.7,
6.8, 6.10, 6.11,
6.13, 7.7, and
8.3; and
Subsections
3.2.1, 5.2.1,
6.11.3, 7.8.1.A,
7.8.1.B, 7.8.1.C,
and 8.3.1.
Revisions to
these non-
regulatory
provisions have
subsequently been
approved. See
below.
Chapters:
1. Introduction.
2. Legal Authority.
3. Control Strategy.
4. Compliance Schedule.
5. Prevention of Air
Pollution Emergency
Episodes.
6. Air Quality Surveillance.
7. Review of New Sources and
Modifications.
8. Source Surveillance.
9. Resources.
10. Intergovernmental
Cooperation.
11. Rules and Regulations.
With subsequent revisions to the
chapters as follows:
* * * * * * *
(26) Revisions to SIP Chapter 6, Statewide......... Submitted: 4/6/09; 9/17/12, [INSERT ..................
Section 6.8, Annual Network Adopted: 4/1/09. FR CITATION].
Review.
(27) Revisions to SIP Chapter 6, Statewide......... Submitted: 4/6/09; 9/17/12, [INSERT ..................
Section 6.11.3, Air Quality Adopted: 4/1/09. FR CITATION].
Surveillance: Ozone.
(28) Revisions to SIP Chapter 9, Statewide......... Submitted: 4/6/09; 9/17/12, [INSERT ..................
Resources. Adopted: 4/1/09. FR CITATION].
(29) Revisions to SIP Chapter 1, Statewide......... Submitted: 4/6/09; 9/17/12, [INSERT ..................
Section 1.14, Revisions to the Adopted: 4/1/09. FR CITATION].
Implementation Plan.
(30) Revisions to SIP Chapter 7, Statewide......... Submitted: 4/6/09; 9/17/12, [INSERT ..................
Section 7.7, Air Quality Adopted: 4/1/09. FR CITATION].
Modeling.
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\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
Federal Register notice cited in this column for the particular provision.
0
3. Section 52.1833 is added to read as follows:
Sec. 52.1833 Section 110(a)(2) infrastructure requirements.
On November 23, 2009, Tom Bachman, Senior Environmental Engineer,
North Dakota Department of Health, submitted a completeness criteria
checklist which provides the State of North Dakota's SIP provisions
which meet the requirements of CAA Section 110(a)(1) and (2). The
following elements are approved for the 1997 ozone NAAQS: (A), (B),
(C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M).
The following element is conditionally approved for the 1997 ozone
NAAQS: (E)(ii).
[FR Doc. 2012-22771 Filed 9-14-12; 8:45 am]
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