[Federal Register Volume 77, Number 205 (Tuesday, October 23, 2012)]
[Rules and Regulations]
[Pages 64734-64737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25667]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2012-0299, FRL-9742-3]
Approval and Promulgation of Implementation Plans; North Dakota:
Prevention of Significant Deterioration; Greenhouse Gas Permitting
Authority and Tailoring Rule; PM2.5 NSR Implementation Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a revision to the North Dakota State
Implementation Plan (SIP) relating to regulation of Greenhouse Gases
(GHGs) and fine particulate matter (PM2.5) under North
Dakota's Prevention of Significant Deterioration (PSD) program. This
revision was submitted by the North Dakota Department of Health
Division of Air Quality (ND DOH DAQ) to EPA on April 18, 2011. It is
intended to align North Dakota's regulations with the ``PSD and Title V
Greenhouse Gas Tailoring Final Rule'' and the final rule for
``Implementation of the New Source Review (NSR) Program for
PM2.5.'' EPA is approving the revision because the Agency
has determined that the SIP revision, already adopted by North Dakota
as a final effective rule, is in accordance with the Clean Air Act (CAA
or Act) and EPA regulations regarding PSD permitting for GHGs and
PM2.5.
DATES: This action is effective on November 23, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R08-OAR-2012-0299. All documents in the docket
are listed at http://www.regulations.gov. Although listed in the index,
some information may not be publicly available, i.e., Confidential
Business Information 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 http://www.regulations.gov or
in hard copy at EPA Region 8, Air Quality Planning Unit (8P-AR), 1595
Wynkoop Street, Denver, Colorado 80202. EPA requests that if at all
possible, you contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your inspection. The Regional Office's
official hours of business are Monday through Friday, 8:30 to 4:30,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Air Program, Mailcode
8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
St., Denver, Colorado 80202-1129, (303) 312-7814,
[email protected].
SUPPLEMENTARY INFORMATION: Information is organized as follows:
Table of Contents
I. What action is EPA finalizing in today's notice?
II. What is the background for the PSD SIP final approval by EPA in
today's notice?
A. GHG-Related Actions
B. PM2.5-Related Actions
C. North Dakota's Actions
III. What is EPA's analysis of North Dakota's SIP revision?
IV. Response to Comments
V. Final Action
VI. Statutory and Executive Order Reviews
I. What action is EPA finalizing in today's notice?
On April 18, 2011, ND DOH submitted a request to EPA to approve
revisions to the state's SIP and Title V program to incorporate recent
rule amendments adopted by the ND DOH DAQ. These adopted rules became
effective in the North Dakota Administrative Code on that date. Among
other things, the amendments establish thresholds for GHG emissions in
North Dakota's PSD and Title V regulations at the same emissions
thresholds and in the same time-frames as those specified by EPA in the
``PSD and Title V Greenhouse Gas Tailoring Final Rule'' (75 FR 31514,
June 3, 2010), hereinafter referred to as the ``Tailoring Rule,''
ensuring that smaller GHG sources emitting less than these thresholds
will not be subject to permitting requirements for GHGs that they emit.
The requested revisions to the SIP will clarify the applicable
thresholds in the North Dakota SIP and incorporate state rule changes
adopted at the state level into the federally-approved SIP.
The revisions to the SIP also address requirements for PSD programs
with regard to emissions of PM2.5. These requirements were
specified by EPA in the rule, ``Implementation of the New Source Review
(NSR) Program for Particulate Matter Less Than 2.5 Micrometers
PM2.5 (PM2.5)'' (73 FR 28321, May 16, 2008),
hereinafter referred to as the ``PM2.5 NSR Implementation
Rule.'' On July 13, 2012, EPA proposed approval of North Dakota's April
18, 2011 SIP submittal for incorporation into the SIP (77 FR 41343). We
did not propose approval of ND's Title V operating permit program
revision, which is handled separately because the Title V program is
not part of the SIP. In today's notice, pursuant to section 110 of the
CAA, EPA is approving the SIP revisions into the North Dakota SIP.
North Dakota also submitted revisions to the General Provisions
(Section 33-15-01-04), Ambient Air Quality Standards (Sections 33-15-
02-04.1 and 33-15-02-07, and Tables 1 and 2), and Designated Air
Contaminant Sources, Permit to Construct, Minor Source Permit to
Operate, Title V Permit to Operate (Sections 33-15-14-01.9, 10, 12 and
15, 33-15-14-02.1, 33-15-14-02.13 and 33-15-14-03.1.c). In today's
final rulemaking, EPA is not taking action on those submittals; EPA
will act on them in a separate rulemaking.
II. What is the background for the PSD SIP final approval by EPA in
today's notice?
This section briefly summarizes EPA's recent GHG and
PM2.5-related actions that provide the background for
today's final action. More detailed discussion of the background is
found in the preambles for those actions. In particular, for GHGs the
background is contained in the PSD SIP Narrowing
[[Page 64735]]
Rule,\1\ and in the preambles to the actions cited therein.
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\1\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December
30, 2010).
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A. GHG-Related Actions
EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's final action on
the North Dakota SIP. Four of these actions include, as they are
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and
the ``Tailoring Rule.'' Taken together and in conjunction with the CAA,
these actions established regulatory requirements for GHGs emitted from
new motor vehicles and new motor vehicle engines; determined that such
regulations, when they took effect on January 2, 2011, subjected GHGs
emitted from stationary sources to PSD requirements; and limited the
applicability of PSD requirements to GHG sources on a phased-in basis.
EPA took this last action in the Tailoring Rule, which, more
specifically, established appropriate GHG emission thresholds for
determining the applicability of PSD requirements to GHG-emitting
sources.
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\2\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\3\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (Apr. 2,
2010).
\4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
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PSD is implemented through the SIP system. In December 2010, EPA
promulgated several rules to implement the new GHG PSD SIP program.
Recognizing that some states had approved SIP PSD programs that did not
apply PSD to GHGs, EPA issued a SIP Call and, for some of these states,
a Federal Implementation Plan (FIP).\5\ Recognizing that other states
had approved SIP PSD programs that do apply PSD to GHGs, but that do so
for sources that emit as little as 100 or 250 tons per year (tpy) of
GHG, and that do not limit PSD applicability to GHGs to the higher
thresholds in the Tailoring Rule, EPA issued the PSD SIP Narrowing
Rule. Under that rule, EPA withdrew its approval of the affected SIPs
to the extent those SIPs covered GHG-emitting sources below the
Tailoring Rule thresholds. EPA based its action primarily on the
``error correction'' provisions of CAA section 110(k)(6).
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\5\ Specifically, by action dated December 13, 2010, EPA
finalized a ``SIP Call'' that would require those states with SIPs
that have approved PSD programs but do not authorize PSD permitting
for GHGs to submit a SIP revision providing such authority. ``Action
To Ensure Authority To Issue Permits Under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR
77698 (December 13, 2010). EPA made findings of failure to submit in
some states which were unable to submit the required SIP revision by
their deadlines, and finalized FIPs for such states. See, e.g.
``Action To Ensure Authority To Issue Permits Under the Prevention
of Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Failure To Submit State Implementation Plan
Revisions Required for Greenhouse Gases,'' 75 FR 81874 (December 29,
2010); ``Action To Ensure Authority To Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan,'' 75 FR 82246
(December 30, 2010). Because North Dakota's SIP already authorized
North Dakota to regulate GHGs at the Tailoring Rule thresholds once
GHGs became subject to PSD requirements on January 2, 2011, North
Dakota is not subject to the SIP Call or FIP.
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B. PM2.5-Related Actions
On May 16, 2008, EPA issued final rules governing the
implementation of the New Source Review (NSR) program for particulate
matter less than 2.5 micrometers in diameter (PM2.5), also
known as fine particles. The PM2.5 NSR Implementation Rule
finalized several NSR program requirements for sources that emit
PM2.5 and other pollutants that contribute to
PM2.5, including; pollutants that contribute to
PM2.5 that are subject to NSR regulations, major source
thresholds, significant emissions rates, interpollutant offset trading,
revised SIP submittal deadlines and timing of implementation of the
rule. The rule requires PSD permits to address directly emitted
PM2.5 as well as pollutants responsible for secondary
formation of PM2.5 as follows:
Sulfur dioxide (SO2)--regulated as a
PM2.5 precursor
Nitrogen oxides (NOx)--regulated as a PM2.5
precursor unless a state demonstrates that NOx emissions are not a
significant contributor to the formation of PM2.5 for an
area in the state.
Volatile organic compounds (VOC)--not regulated as a
PM2.5 precursor unless a state demonstrates that VOC
emissions are a significant contributor to the formation of
PM2.5 for an area in the state.
C. North Dakota's Actions
On June 21, 2010, North Dakota provided a letter to EPA, in
accordance with a request to all states from EPA in the Tailoring Rule,
with confirmation that the State of North Dakota has the authority to
regulate GHGs in its existing SIP-approved PSD program at the Tailoring
Rule thresholds. The letter also confirmed North Dakota's intent to
amend its air quality rules for the PSD program for GHGs to explicitly
match the thresholds set in the Tailoring Rule. See the docket for this
final rulemaking for a copy of North Dakota's letter.
The rulemaking docket includes a Dec. 14, 2010 memo from EPA Region
8 that documents communications between EPA and the State of North
Dakota, with regard to the question of whether the state believed that
it needed the PSD SIP Narrowing Rule. The state's 60-day response
letter to EPA, dated June 21, 2010, stated, in part, ``The Department
believes it has existing authority to issue both PSD and Title V
permits for sources of greenhouse gases based on the applicability
thresholds specified in the tailoring rule.'' Therefore, the state
believed the narrowing rule was unnecessary for North Dakota. As a
result, North Dakota was not subject to the PSD SIP Narrowing Rule.
III. What is EPA's analysis of North Dakota's SIP revision?
On April 18, 2011, ND DOH DAQ submitted a revision of its
regulations to EPA for processing and approval into the SIP. This SIP
revision explicitly adopts the GHG emission thresholds for PSD
applicability set forth in EPA's Tailoring Rule. EPA's approval of
North Dakota's SIP revision will incorporate the revisions of the North
Dakota regulations into the Federally-approved SIP. Doing so will
clarify the applicable thresholds in the North Dakota SIP.
The SIP revision establishes thresholds for determining which
stationary sources and modification projects become subject to
permitting requirements for GHG emissions under North Dakota's PSD
program. Specifically, North Dakota's SIP revision includes changes--
which are already state effective--to North Dakota's Administrative
Code, revising chapter 33-15-15 ``Prevention of Significant
Deterioration of Air Quality,'' subsection 33-15-15-01.2 ``Scope.''
In subsection 33-15-15-01.2, North Dakota implements the PSD
program by, for the most part, incorporating by reference the federal
PSD program at 40 CFR 52.21. Under the current SIP, the federal PSD
program is incorporated as it existed on August 1, 2007. Under the SIP
revision, the federal PSD program as it existed on July 2, 2010 is
incorporated by reference. This includes revisions to the federal PSD
program that were
[[Page 64736]]
published as a final rule in the Federal Register by this date but had
not yet been published in the Code of Federal Regulations (CFR). The
Tailoring Rule, including the necessary revisions to the federal PSD
program, was published as a final rule in the Federal Register on June
3, 2010, and on July 1, 2010, the Tailoring Rule revisions to 40 CFR
52.21 were noted in the published version of the CFR. The SIP revision
therefore incorporates the PSD requirements of the Tailoring Rule.
Similarly, the revision incorporates, for the most part, the PSD
requirements of the PM2.5 NSR Implementation Rule
(promulgated May 16, 2011) as reflected in 40 CFR 52.21, with one
exception. North Dakota has modified the language in the definition of
``regulated NSR pollutant'' at 40 CFR 52.21(b)(5) regarding
PM2.5 precursor presumptions. The modification explicitly
establishes that nitrogen oxides are a precursor to PM2.5
and that volatile organic compounds are not a precursor to
PM2.5. In other words, the State has not attempted to
demonstrate that nitrogen oxides are not a significant contributor to
ambient PM2.5 concentrations or that volatile organic
compounds are a significant contributor to ambient PM2.5
concentrations. This approach is consistent with the PM2.5
NSR Implementation Rule. Finally, as a result of the updated
incorporation by reference, North Dakota has also adopted the clarified
definition of ``reasonable possibility'' promulgated by EPA on December
21, 2007 (72 FR 72607).
North Dakota removed language that had previously been added to 40
CFR 52.21(o)(1) for two reasons: To make this requirement entirely
consistent with federal rules and to provide flexibility to use current
methodologies recommended by Federal Land Managers. Chapter 33-15-19 is
still applicable to major sources or major modifications under PSD;
however, the revised PSD rules in Chapter 33-15-15 do not bind North
Dakota to Chapter 33-15-19 for the visibility analysis.
North Dakota is currently a SIP-approved state for the PSD program,
and has previously incorporated EPA's 2002 NSR reform revisions for PSD
into its SIP. See 72 FR 39564 (July 19, 2007). The changes to North
Dakota's PSD program regulations are substantively the same as the
federal provisions amended in EPA's Tailoring Rule and PM2.5
NSR Implementation Rule. As part of its review of North Dakota's
submittal, EPA performed a line-by-line review of North Dakota's
revision and has determined that it is consistent with the Tailoring
Rule and PM2.5 NSR Implementation Rule.
IV. Response to Comments
EPA did not receive comments on our July 13, 2012 Federal Register
notice proposing approval of North Dakota's SIP revision relating to
regulation of GHGs and fine particulate matter under the North Dakota
PSD program.
V. Final Action
Pursuant to section 110 of the CAA, EPA is approving North Dakota's
April 18, 2011 revisions to the North Dakota SIP, relating to PSD
requirements for GHG- and PM2.5-emitting sources.
Specifically, North Dakota's SIP revision establishes appropriate
emissions thresholds for determining PSD applicability to new and
modified GHG-emitting sources in accordance with EPA's Tailoring Rule.
The final SIP revision also satisfies PSD requirements for treatment of
PM2.5 in accordance with EPA's PM2.5 NSR
Implementation Rule. As a result, EPA has determined that this SIP
revision is approvable.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
final action merely approves some state law as meeting federal
requirements and disapproves other state law because it does not meet
federal requirements; this final action does not impose additional
requirements beyond those imposed by state law. For that reason, this
final action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Incorporation by reference, Environmental protection, Air pollution
control, Intergovernmental relations, and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 3, 2012.
James B. Martin,
Regional Administrator, Region 8.
Therefore, 40 CFR chapter I is amended 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. Section 52.1820 in paragraph (c) is amended by revising the table
entry for ``33-15-15-01.2'' to read as follows
Sec. 52.1820 Identification of plan.
* * * * *
(c) * * *
[[Page 64737]]
State of North Dakota Regulations
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State EPA approval date and
State citation Title/subject effective date citation \1\ Explanations
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33-15-15-01.2.................... Prevention of 10/27/10 [9/27/12, Insert ..............
Significant Federal Register
Deterioration of Air page number where
Quality, Scope. the document
begins.]
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\1\ 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.
Authority: 42 U.S.C. 7401 et seq.
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[FR Doc. 2012-25667 Filed 10-22-12; 8:45 am]
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