[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Proposed Rules]
[Pages 27898-27906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11289]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2011-0726; FRL-9813-1]
Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 and 2006 PM2.5
National Ambient Air Quality Standards; Prevention of Significant
Deterioration Requirements for PM2.5 Increments and Major
and Minor Source Baseline Dates; State Board Requirements; North Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) submission from the State of North Dakota to demonstrate that the
SIP meets the infrastructure requirements of the Clean Air Act (CAA)
for the National Ambient Air Quality Standards (NAAQS) promulgated for
particulate matter less than or equal to 2.5 micrometers ([mu]m) in
diameter (PM2.5) on July 18, 1997 and on October 17, 2006.
The CAA requires that each state, after a new or revised NAAQS is
promulgated, review their SIP to ensure that it meets the requirements
of the ``infrastructure elements'' necessary to implement the new or
revised NAAQS. On May 25, 2012, North Dakota submitted a certification
of their infrastructure SIP for the 1997 PM2.5 NAAQS. On
August 12, 2010 and May 22, 2012, North Dakota submitted certifications
of their infrastructure SIP for the 2006 PM2.5 NAAQS. We are
also proposing to approve two submissions from North Dakota that revise
the SIP to address particular infrastructure elements. First, the State
submitted revisions to the North Dakota Air Pollution Control Rules
(NDAC) on
[[Page 27899]]
January 24, 2013 that will update the Prevention of Significant
Deterioration (PSD) program by adopting by reference federal provisions
as they exist as of January 1, 2012, which reflect the requirements of
the 2010 PM2.5 Increment Rule. Second, on April 2, 2013, the
State submitted revisions to the section of the SIP concerning state
boards. EPA will act separately on certain requirements of the CAA
relating to interstate transport of air pollution for the 2006
PM2.5 NAAQS.
DATES: Written comments must be received on or before June 12, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-1726, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
Email: [email protected]
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0726. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA, without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to section I, General
Information, of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6142,
[email protected].
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The initials CBI mean or refer to confidential business
information.
(iii) The word Department means or refers to the North Dakota
Department of Health.
(iv) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(v) The initials FIP mean or refer to a Federal Implementation
Plan.
(vi) The initials GHG mean or refer to greenhouse gases.
(vii) The initials NAAQS mean or refer to national ambient air
quality standards.
(viii) The initials NDAC mean or refer to the North Dakota Air
Pollution Control Rules.
(ix) The initials NDCC mean or refer to the North Dakota Century
Code.
(x) The initials NOX mean or refer to nitrogen oxides.
(xi) The initials NSR mean or refer to new source review.
(xii) The initials PM mean or refer to particulate matter.
(xiii) The initials PM2.5 mean or refer to particulate
matter with an aerodynamic diameter of less than 2.5 micrometers (fine
particulate matter).
(xiv) The initials ppm mean or refer to parts per million.
(xv) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(xvi) The initials SIP mean or refer to State Implementation Plan.
(xvii) The initials SSM mean or refer to start-up, shutdown, or
malfunction.
Table of Contents
I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required under sections
110(a)(1) and (2)?
V. How did North Dakota address the infrastructure elements of
sections 110(a)(1) and (2)?
VI. What action is EPA taking?
VII. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to EPA through http://www.regulations.gov or email. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information on a disk or CD ROM that you mail to EPA, mark the
outside of the disk or CD ROM as CBI and then identify electronically
within the disk or CD ROM the specific information that is claimed as
CBI. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
[[Page 27900]]
2. Tips for preparing your comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register, date, and
page number);
Follow directions and organize your comments;
Explain why you agree or disagree;
Suggest alternatives and substitute language for your
requested changes;
Describe any assumptions and provide any technical
information and/or data that you used;
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced;
Provide specific examples to illustrate your concerns, and
suggest alternatives;
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats; and,
Make sure to submit your comments by the comment period
deadline identified.
II. Background
On July 18, 1997, EPA promulgated new NAAQS for particulate matter
less than or equal to 2.5 micrometers ([mu]m) in diameter
(PM2.5). Two new PM2.5 standards were added, set
at 15 [mu]g/m\3\, based on the 3-year average of annual arithmetic mean
PM2.5 concentration from single or multiple community-
oriented monitors, and 65 [mu]g/m\3\, based on the 3-year average of
the 98th percentile of 24-hour PM2.5 concentrations at each
population-oriented monitor within an area. In addition, the 24-hour
PM10 standard was revised to be based on the 99th percentile
of 24-hour PM10 concentration at each monitor within an area
(62 FR 38652).
On October 17, 2006 EPA promulgated a revised NAAQS for
PM2.5, tightening the level of the 24-hour PM2.5
standard to 35 [mu]g/m\3\ and retaining the level of the annual
PM2.5 standard at 15 [mu]g/m\3\. EPA also retained the 24-
hour PM10 standard and revoked the annual PM10
standard (71 FR 61144).
By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) are to be submitted by states within three years after promulgation
of a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the SIP for a new or revised NAAQS affects
the content of the submission. The contents of such SIP submissions may
also vary depending upon what provisions the state's existing SIP
already contains. In the case of the 1997 and 2006 PM2.5
NAAQS, states typically have met the basic program elements required in
section 110(a)(2) through earlier SIP submissions in connection with
previous NAAQS.
III. What is the scope of this rulemaking?
This rulemaking will not cover four substantive issues that are not
integral to acting on a state's infrastructure SIP submission: (1)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction at sources, that may be contrary to
the CAA and EPA's policies addressing such excess emissions (``SSM'');
(2) existing provisions related to ``director's variance'' or
``director's discretion'' that purport to permit revisions to SIP
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(``director's discretion''); (3) existing provisions for minor source
NSR programs that may be inconsistent with the requirements of the CAA
and EPA's regulations that pertain to such programs (``minor source
NSR''); and, (4) existing provisions for PSD programs that may be
inconsistent with current requirements of EPA's ``Final NSR Improvement
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526
(June 13, 2007) (``NSR Reform''). Instead, EPA has indicated that it
has other authority to address any such existing SIP defects in other
rulemakings, as appropriate. A detailed rationale for why these four
substantive issues are not part of the scope of infrastructure SIP
rulemakings can be found in EPA's July 13, 2011, final rule entitled,
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' in the
section entitled, ``What Is The Scope Of This Final Rulemaking?'' (see
76 FR 41075 at 41076--41079).
IV. What infrastructure elements are required under sections 110(a)(1)
and (2)?
Section 110(a)(1) provides the procedural and timing requirements
for SIP submissions after a new or revised NAAQS is promulgated.
Section 110(a)(2) lists specific elements the SIP must contain or
satisfy. These infrastructure elements include requirements such as
modeling, monitoring, and emissions inventories, which are designed to
assure attainment and maintenance of the NAAQS. The elements that are
the subject of this action are listed below.
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.
110(a)(2)(E): Adequate authority, conflict of interest,
and oversight of local governments and regional agencies.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency powers.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
A detailed discussion of each of these elements is contained in the
next section. Element 110(a)(2)(D)(i)(I), Interstate transport of
pollutants which contribute significantly to nonattainment in, or
interfere with maintenance by, any other state will be acted upon in a
separate action.
Two elements identified in section 110(a)(2) are not governed by
the three year submission deadline of section 110(a)(1) and are
therefore not addressed in this action. These elements relate to part D
of Title I of the CAA, and submissions to satisfy them are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the same time nonattainment area plan requirements
are due under section 172. The two elements are: (1) Section
110(a)(2)(C) to the extent it refers to permit programs (known as
``nonattainment new source review (NSR)'') required under part D, and
(2) section 110(a)(2)(I), pertaining to the nonattainment planning
requirements of part D. As a result, this action does not address
infrastructure elements related
[[Page 27901]]
to the nonattainment NSR portion of section 110(a)(2)(C) or related to
110(a)(2)(I).
V. How did North Dakota address the infrastructure elements of sections
110(a)(1) and (2)?
1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of the Act.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite provisions of the North
Dakota Air Pollution Control Rules (NDAC), Chapter 33-15, which
establishes control requirements for particulate matter and
PM2.5 precursors. In addition, the State cites the North
Dakota Century Code (NDCC), Chapter 23-25, Air Pollution Control, in
Section 23-25-03 which provides the general authority to regulate
sources of PM2.5.
b. EPA analysis: First, this infrastructure element does not
require the submittal of regulations or emission limitations developed
specifically for attaining the 1997 and 2006 PM2.5 NAAQS,
and North Dakota has no areas designated as nonattainment for the 1997
and 2006 PM2.5 NAAQS. Nonetheless, the North Dakota SIP
contains provisions for control of particulate matter (NDAC 33-15-05).
The State also regulates emissions of PM2.5 and its
precursors through the SIP-approved PSD and minor NSR programs. This
suffices, in the case of North Dakota, to meet the requirements of
section 110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS.
2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to ``(i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon
request, make such data available to the Administrator.''
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the NDCC 23-25-03 which
provides the authority for the North Dakota Department of Health
(Department) to conduct ambient air monitoring. In addition, the State
cites the Annual Network Monitoring Plans for 2009 and 2011 which
provide for an ambient air quality monitoring system in the State.
b. EPA analysis: North Dakota's air monitoring program and data
systems meet the requirements of CAA section 110(a)(2)(B) for the 1997
and 2006 PM2.5 NAAQS. The North Dakota Division of Air
Quality's (DAQ) 2012 Ambient Air Annual Monitoring Network Plan was
received by EPA on February 14, 2013 and approved on April 4, 2013. The
plan meets current requirements for monitoring of PM2.5.
3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure that
NAAQS are achieved, including a permit program as required in parts C
and D.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the NDAC, chapters 33-15-14-
02 (Permit to Construct), 33-15-15 (PSD), 33-15-14-03 (Minor Source
Permit to Operation), and 33-15-14-06 (Title V Permit to Operate). In
addition the State cites NDCC 23-25-03.6 and 23-25-04.1, which
authorizes the State permitting programs.
b. EPA analysis: To generally meet the requirements of section
110(a)(2)(C), the State is required to have SIP-approved PSD,
nonattainment NSR, and minor NSR permitting programs adequate to
implement the 1997 and 2006 PM2.5 NAAQS. As explained above,
in this action EPA is not evaluating nonattainment related provisions,
such as the nonattainment NSR program required by part D of the Act.
EPA is evaluating the State's PSD program as required by part C of the
Act, and the State's minor NSR program as required by 110(a)(2)(C).
PSD Requirements
North Dakota has a SIP-approved PSD program that meets the general
requirements of part C of the Act (51 FR 31125). To satisfy the
particular requirements of section 110(a)(2)(C), states should have a
PSD program that applies to all regulated NSR pollutants, including
greenhouse gases (GHGs). See 40 CFR 51.166(b)(48) and (b)(49). The PSD
program should reflect current requirements for these pollutants. In
particular, for three pollutants--ozone, PM2.5, and GHGs--
there are additional regulatory requirements (set out in portions of 40
CFR 51.166) that we consider in evaluating North Dakota's PSD program.
In the rulemakings in which EPA revised the requirements in 40 CFR
51.166 for these pollutants, EPA also updated the federal PSD program
at 40 CFR 52.21 accordingly. North Dakota implements the PSD program
by, for the most part, incorporating by reference the federal PSD
program as it existed on a specific date. The State periodically
updates the PSD program by revising the date of incorporation by
reference and submitting the change as a SIP revision. As a result, the
SIP revisions generally reflect changes to PSD requirements that EPA
has promulgated prior to the revised date of incorporation by
reference.
In particular, on June 3, 2010 (75 FR 31291), we approved a North
Dakota SIP revision that revised the date of incorporation by reference
of the federal PSD program to August 1, 2007. That revision addressed
the PSD requirements of the Phase 2 Ozone Implementation Rule
promulgated in 2005 (70 FR 71612). As a result, the approved North
Dakota PSD program meets current requirements for ozone.
Similarly, on October 23, 2012 (77 FR 64736), we approved a North
Dakota SIP revision that revised the date of incorporation by reference
of the federal PSD program to July 2, 2010. As explained in the notice
for that action, that revision addressed the PSD requirements related
to GHGs provided in EPA's June 3, 2010 ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (75 FR
31514). The approved North Dakota PSD program thus also meets current
requirements for GHGs.
For PM2.5, EPA has promulgated two relevant rules. The
first, promulgated in 2008, addresses (among other things) treatment of
PM2.5 precursors in PSD programs. The second, promulgated in
2010, establishes (among other things) increments for PM2.5.
As we discuss next, both rules have been the subject of recent
litigation.
On January 4, 2013, the U.S. Court of Appeals, in Natural Resources
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a
judgment that remanded EPA's 2007 and 2008 rules implementing the 1997
PM2.5 NAAQS. The court ordered EPA to ``repromulgate these
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437.
Subpart 4 of Part D, Title 1 of the CAA establishes additional
provisions for particulate matter nonattainment areas.
The 2008 implementation rule addressed by the court decision,
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' (May 16, 2008,
73 FR 28321), promulgated NSR requirements for implementation of
PM2.5 in nonattainment areas (nonattainment
[[Page 27902]]
NSR) and attainment/unclassifiable areas (PSD). As the requirements of
Subpart 4 only pertain to nonattainment areas, EPA does not consider
the portions of the 2008 rule that address requirements for
PM2.5 attainment and unclassifiable areas to be affected by
the court's opinion. Moreover, EPA does not anticipate the need to
revise any PSD requirements promulgated in the 2008 rule in order to
comply with the court's decision. Accordingly, EPA's approval of North
Dakota's infrastructure SIP as to elements (C), (D)(i)(II), or (J) with
respect to the PSD requirements promulgated by the 2008 implementation
rule does not conflict with the court's opinion.
The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 implementation rule also does not
affect EPA's action on the present infrastructure action. EPA
interprets the Act to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due 3 years after adoption or
revision of a NAAQS. Instead, these elements are typically referred to
as nonattainment SIP or attainment plan elements, which would be due by
the dates statutorily prescribed under subpart 2 through 5 under part
D, extending as far as 10 years following designations for some
elements.
As mentioned above, EPA previously approved a North Dakota SIP
revision that revised the date of incorporation by reference of the
federal PSD program to July 2, 2010. This SIP revision also addressed
the requirements of the 2008 PM2.5 NSR implementation rule.
See 77 FR 64736. The remaining PSD requirement for PM2.5 is
contained in EPA's October 20, 2010 rule, ``Prevention of Significant
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards
adoption of the PM2.5 increments as a necessary requirement
when assessing a PSD program for the purposes of element (C).
The PM2.5 increments have not been approved into North
Dakota's SIP, as the last approved date of incorporation by reference
of the federal PSD program is July 2, 2010, prior to promulgation of
the PM2.5 increments. The State of North Dakota submitted
revisions to chapter 33-15-15-01.2, Scope, of the NDAC on January 24,
2013 that adopt the PM2.5 increments by incorporating by
reference the federal PSD program at 40 CFR part 52, section 21, as it
existed on January 1, 2012.
We propose to approve portions of the January 24, 2013 submittal
that are necessary to incorporate the increments into the SIP.
Specifically, we propose to approve the incorporation by reference of
40 CFR part 52, section 21, paragraphs (b)(14)(i), (ii), (iii),
(b)(15)(i), (ii), and paragraph (c) as those paragraphs existed on
January 1, 2012. These paragraphs provide the major source baseline
date, the minor source baseline date, and the increments for
PM2.5. At this time we are not proposing to act on any other
portions of the January 24, 2013 submittal, including the incorporation
by reference of SILs and SMCs for PM2.5.
With the partial approval of the January 24, 2013 submittal, the
North Dakota PSD program will meet current requirements for all
regulated NSR pollutants. As a result, we also propose to approve the
North Dakota infrastructure SIP for element (C) for the 1997 and 2006
PM2.5 NAAQS with respect to PSD requirements.
Minor NSR
The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act. The State and EPA have relied on the
State's existing minor NSR program to assure that new and modified
sources not captured by the major NSR permitting programs do not
interfere with attainment and maintenance of the NAAQS.
In this action, EPA is proposing to approve North Dakota's
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS with
respect to the general requirement in section 110(a)(2)(C) to include a
program in the SIP that regulates the modification and construction of
any stationary source as necessary to assure that the NAAQS are
achieved. EPA is not proposing to approve or disapprove the State's
existing minor NSR program itself to the extent that it may be
inconsistent with EPA's regulations governing this program. A number of
states may have minor NSR provisions that are contrary to the existing
EPA regulations for this program. EPA intends to work with states to
reconcile state minor NSR programs with EPA's regulatory provisions for
the program. The statutory requirements of section 110(a)(2)(C) provide
for considerable flexibility in designing minor NSR programs, and it
may be time to revisit the regulatory requirements for this program to
give the states an appropriate level of flexibility to design a program
that meets their particular air quality concerns, while assuring
reasonable consistency across the country in protecting the NAAQS with
respect to new and modified minor sources.
4. Interstate Transport: Section 110(a)(2)(D)(i) is subdivided into
four ``prongs,'' two under 110(a)(2)(D)(i)(I) and two under
110(a)(2)(D)(i)(II). The two prongs under 110(a)(2)(D)(i)(I) require
SIPs to contain adequate provisions to prohibit emissions that (prong
1) contribute significantly to nonattainment in any other state with
respect to any such national primary or secondary NAAQS, or (prong 2)
interfere with maintenance by any other state with respect to the same
NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs to contain
adequate provisions to prohibit emissions that interfere with measures
required to be included in the applicable implementation plan for any
other state under part C (prong 3) to prevent significant deterioration
of air quality, or (prong 4) to protect visibility. As noted, we are
not acting on the requirements of section 110(a)(2)(D)(i)(I) (prongs 1
and 2), or the visibility requirement (prong 4) of section
110(a)(2)(D)(i)(II) in this proposed rulemaking.
a. North Dakota's response to this requirement: The State's 2006
PM2.5 submission \1\ addressing interstate transport cites
NDAC chapters 33-15-15 (PSD), 33-15-19 (Visibility Protection), 33-15-
25 (Regional Haze Requirements), SIP Section 7.8 (Interstate Transport
of Air Pollution), and the North Dakota SIP for Regional Haze (February
24, 2010). In addition, the State cites NDCC 23-25-03 which provides
the authority for the Department to conduct an air quality control
program.
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\1\ EPA has already taken final action on prong 3 of section
110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS. See 75 FR
31290.
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b. EPA Analysis: With regard to the PSD portion of section
110(a)(2)(D)(i)(II), this requirement may be met by the State's
confirmation in an infrastructure SIP submission that new major sources
and major modifications in the State are subject to a PSD program
meeting all the relevant requirements of part C of title I of the CAA
or (if the state contains a nonattainment area for the relevant
pollutant) to a NNSR program that implements the 2006 PM2.5
NAAQS. As discussed in more detail with respect to section
110(a)(2)(C), with approval of the PM2.5 increments, North
Dakota's SIP will contain a PSD program that reflects the relevant PSD
requirements. Accordingly, in this action EPA is proposing to approve
the infrastructure SIP submission as meeting the
[[Page 27903]]
applicable requirements of prong 3 of section 110(a)(2)(D)(i).
5. Interstate and International transport provisions: Section
110(a)(2)(D)(ii) requires that each SIP shall contain adequate
provisions insuring compliance with applicable requirements of sections
126 and 115 (relating to interstate and international pollution
abatement).
a. North Dakota's response to this requirement: The North Dakota
PSD rules provide for notifying neighboring states whose land may be
significantly affected by emissions from a new or modified source. NDAC
33-15-15-01.2(q)(2)(d) states:
NDAC-33-15-15-01.2(q)(2)(d)--Send a copy of the notice required
in subparagraph c to the applicant, the United States environmental
protection agency administrator, and to officials and agencies
having cognizance over the location where the source or modification
will be situated as follows: The chief executive of the city and
county where the source or modification would be located; any
comprehensive regional land use planning agency; and any state,
federal land manager, or Indian governing body whose lands may be
significantly affected by emissions from the source or modification.
Similar notification requirements are provided for minor sources
under NDAC 33-15-14-02.6.b(4).
All PSD permit applications are provided to EPA within thirty days
of receipt. This includes sources that could affect air quality in
Canada. The draft PSD permits, the Air Quality Effects Analyses and the
final permits are also submitted to EPA.
b. EPA Analysis: Section 126(a) of the CAA requires notification to
affected, nearby states of major proposed new (or modified) sources.
Sections 126(b) and (c) pertain to petitions by affected states to the
Administrator regarding sources violating the ``interstate transport''
provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly
pertains to international transport of air pollution.
With regard to section 126(a), North Dakota's SIP-approved PSD
program requires notice of proposed new sources or modifications to
states whose lands may be significantly affected by emissions from the
source or modification (see NDAC 33-15-15-01.2(q)(2)(d)). This
provision satisfies the notice requirement of section 126(a).
North Dakota has no pending obligations under sections 126(c) or
115(b); therefore, its SIP currently meets the requirements of those
sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii)
for the 1997 and 2006 PM2.5 NAAQS.
6. Adequate resources and authority: Section 110(a)(2)(E) requires
states to provide ``(i) necessary assurances that the state will have
adequate personnel, funding, and authority under state law to carry out
the SIP (and is not prohibited by any provision of federal or state law
from carrying out the SIP or portion thereof)'' and ``(iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
SIP provision, the state has responsibility for ensuring adequate
implementation of such SIP provision.''
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the NDAC 33-15-23
(regulatory mechanism for paying fees), the NDCC 23-25-04.2 (statutory
for collecting fees), and the NDCC 23-25-03 (authority to carry out the
requirements of the SIP). Resources for the operation of the air
pollution control program are addressed in Section 9 of the SIP
(updated April 2009) and the State references section 2.11 of the SIP
which addresses legal authority by the Department to collect fees
necessary to implement the program.
b. EPA Analysis: North Dakota's SIP meets the requirements of
section 110(a)(2)(E)(i) for the 1997 and 2006 PM2.5 NAAQS.
The NDCC 23-25-04 provides adequate authority for the State of North
Dakota to carry out its SIP obligations with respect to the 1997 and
2006 PM2.5 NAAQS. The State receives sections 103 and 105
grant funds through its Performance Partnership Grant along with
required state matching funds to provide funding necessary to carry out
North Dakota's SIP requirements.
Finally, with respect to section 110(a)(2)(E)(iii), North Dakota
has not assigned responsibility for carrying out portions of the SIP to
any local government, agency, or other instrumentality. North Dakota's
SIP therefore meets the requirements for this element.
7. State boards: Section 110(a)(2)(E)(ii) requires that the state
comply with the requirements respecting state boards under section 128.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the NDCC 23-01-05 (statutory
duties of the State Health Officer). In North Dakota there are no
boards or bodies that approve permits or enforcement orders.
b. EPA Analysis:
On September 17, 2012, EPA conditionally approved North Dakota's
infrastructure SIP for 110(a)(2)(E)(ii) for the 1997 ozone NAAQS (77 FR
57029). North Dakota committed to submit within one year a SIP revision
to address the requirements of section 128 of the Act. On April 8,
2013, EPA received a submittal from the State that revises language in
SIP chapter 2, section 15, Respecting Boards to include provisions for
addressing conflict of interest requirements. We propose to approve
that submittal and we correspondingly propose to approve the
infrastructure SIP for 110(a)(2)(E)(ii) for the 1997 and 2006
PM2.5 NAAQS.
Section 128 of the Act provides in relevant part:
(a) Not later than the date one year after August 7, 1977, each
applicable implementation plan shall contain requirements that--
(1) Any board or body which approves permits or enforcement
orders under [this Act] shall have at least a majority of members
who represent the public interest and do not derive any significant
portion of their income from persons subject to permits or
enforcement orders under [this Act], and
(2) Any potential conflicts of interest by members of such board
or body or the head of an executive agency with similar powers be
adequately disclosed.
As explained in detail in our April 16, 2012 proposal (77 FR 22547)
for North Dakota's infrastructure SIP for the 1997 ozone NAAQS, EPA
interprets subsection 128(a)(1) to apply only to states that have a
board or body with multiple members that, among its duties, approves
permits or enforcement orders under the Act. In North Dakota, there is
no such multi-member board or body. As a result, North Dakota did not
need to submit any provisions to address the requirements of section
128(a)(1).
However, EPA interprets subsection 128(a)(2) to apply to all
states, regardless of whether the state has a multi-member board that
approves permits or enforcement orders. As a result, 128(a)(2) applies
to North Dakota, and, as also explained in the April 16, 2012 proposal,
must be met through SIP-approved, federally enforceable provisions.
North Dakota's April 8, 2013 submittal fulfills the commitment made
as part of our previous conditional approval for the 1997 ozone NAAQS.
The submittal provides disclosure requirements that apply to any person
that approves permits or enforcement orders under North Dakota's
implementation of the CAA. Any such person must disclose potential
conflicts of interest, including the cause of the conflict, in writing
to a superior. Conflicts of interest are defined broadly to include any
divided loyalty, any conflict between the duties of the
[[Page 27904]]
person and the person's self or other interest, and any interest,
influence, or relationship that might conflict or even appear to
conflict with the best interests of the Department of Health or the
State, or that might affect the person's working judgment or loyalty.
For the same reasons discussed in detail in our September 17, 2012
notice, we propose to find that these procedures provide adequate
disclosure of potential conflicts of interest within the meaning of
subsection 128(a)(2).
In summary, EPA proposes to approve North Dakota's April 8, 2013
submittal into the SIP to meet the requirements of section 128 of the
Act. We also propose to approve North Dakota's infrastructure SIP with
respect to the requirements of Section 110(a)(2)(E)(ii) for the 1997
and 2006 PM2.5 NAAQS.
8. Stationary source monitoring system: Section 110(a)(2)(F)
requires ``(i) the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources, (ii) periodic reports on the nature and amounts of emissions
and emissions-related data from such sources, and (iii) correlation of
such reports by the state agency with any emission limitations or
standards established pursuant to the Act, which reports shall be
available at reasonable times for public inspection.''
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the NDAC 33-15-14-02.9, NDAC
33-15-14-03.6, and NDAC 33-15-14-06.5 which require monitoring of
emissions from stationary sources. In addition, the State cites NDCC
23-25-03 which provides the statutory authority for monitoring.
b. EPA Analysis: NDCC section 23-25-03.10 generally requires
monitoring, recordkeeping, and reporting for owners and operators of
regulated sources. North Dakota's SIP-approved minor source and PSD
programs provide for monitoring, recordkeeping, and reporting
requirements for sources subject to minor and major source permitting.
North Dakota's SIP therefore meets the requirements of section
110(a)(2)(F) for the 1997 and 2006 PM2.5 NAAQS.
9. Emergency powers: Section 110(a)(2)(G) requires states to
provide for authority to address activities causing imminent and
substantial endangerment to public health, including contingency plans
to implement the emergency episode provisions in their SIPs.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite NDAC 33-15-11 (Prevention of
Air Pollution Emergency Episodes), which provides the means to
implement emergency air pollution episode measures and is authorized by
NDCC 23-25-03. In addition, the State cites NDCC 28-32-32 and NDCC 28-
25-08, which grant the Department authority to take action in an
emergency.
b. EPA analysis: NDAC 33-15-11 and SIP Chapter 5 provide the State
with general emergency authority comparable to that in section 303 of
the Act. In our 2009 guidance for infrastructure requirements for the
2006 PM2.5 NAAQS, we suggested that states that had
monitored and recorded 24-hour PM2.5 levels greater than
140.4 [micro]g/m\3\, using the most recent three years of data, should
develop emergency episode plans for the areas with the monitored
values. We also suggested that, if these levels had not been exceeded,
states could certify that they had adequate general emergency authority
to address PM2.5 episodes. In this rulemaking, we view these
suggestions as still appropriate in assessing North Dakota's SIP for
this element. North Dakota has not monitored any values above the 140.4
[micro]g/m\3\ level for PM2.5 for the past three years
(e.g., 2009, 2010, and 2011). Since this level was not exceeded in any
area of the state and the State has demonstrated that it has
appropriate general emergency powers to address PM2.5
related episodes, no specific emergency episode plans are necessary at
this time. The SIP therefore meets the requirements of 110(a)(2)(G) for
the 1997 and 2006 PM2.5 NAAQS.
10. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan:
(i) from time to time as may be necessary to take account of
revisions of such national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods
of attaining such standard, and
(ii) except as provided in paragraph (3)(C), whenever the
Administrator finds on the basis of information available to the
Administrator that the [SIP] is substantially inadequate to attain
the [NAAQS] which it implements or to otherwise comply with any
additional requirements under this [Act].
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the NDCC 23-25-03.8 which
formulates and promulgates emission control requirements for the
prevention, abatement and control of air pollution in the state. In
addition, the State also cites Section 3.5 of the SIP which commits the
Department to a revision of the control strategy as needed.
b. EPA analysis: EPA approved relevant sections of the North Dakota
SIP submitted to EPA April 6, 2009 on September 17, 2012 (77 FR 57029).
NDCC section 23-25-03 provides adequate authority for the Department of
Health to carry out such revisions. EPA therefore finds that the State
has sufficient authority to meet the requirements of 110(a)(2)(H).
11. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP ``meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to PSD of
air quality and visibility protection).''
a. North Dakota's response to this requirement: Consultation with
government officials: The State's 1997 and 2006 PM2.5
submissions cite the public participation procedures in the NDAC 33-15-
14-02.6 for preconstruction review for minor sources. In addition, the
State cites paragraph (q) of NDAC 33-15-15-01.2 for sources subject to
PSD review. Consultation with Federal Land Managers (FLMs) for PSD
projects is accomplished in accordance with 40 CFR 52.21 (p) which is
incorporated by reference into NDAC 33-15-15-01.2. For enforcement
orders, the requirements of NDCC 23-25-08 and NDCC 28-32 are followed.
Consultation with other government agencies is addressed in Chapter 10
of the SIP.
Public notification: The State cites the ND SIP Section 6.9 which
commits the Department to notification of the public during ambient air
quality standard exceedances. The authority for this notification is
found in NDCC 23-25-06. In addition, NDAC 33-15-11-03.1 requires the
Department to notify the public during air pollution emergencies.
PSD and visibility protection: The State cites adoption of the
Federal PSD rule by reference as they exist on August 1, 2007 and July
2, 2012. The Department is in the process of adopting the PSD rules as
they exist on July 1, 2012. This will incorporate all existing
requirements for PM2.5. The ``Tailoring Rule'' for
greenhouse gases has been adopted into North Dakota PSD rules (April
2011) and PSD applicants must address applicable requirements for
greenhouse gases.
Additionally, the State has a SIP in place to address visibility
for major source (PSD) permitting (NDAC 33-15-15), specific visibility
impairment (RAVI), and plume blight (NDAC 33-15-19).
b. EPA Analysis:
[[Page 27905]]
The State has demonstrated that it has the authority and rules in
place to provide a process of consultation with general purpose local
governments, designated organizations of elected officials of local
governments and any Federal Land Manager having authority over federal
land to which the SIP applies, consistent with the requirements of CAA
section 121. EPA previously approved portions of the North Dakota SIP
as meeting the requirements of CAA section 127 (45 FR 53475, Aug. 12,
1980).
As discussed above, the State has a SIP-approved PSD program that
(for the most part) incorporates by reference the federal program at 40
CFR 52.21. These revisions are located in chapter 33-15-15-01.2 of the
NDAC. EPA has further evaluated North Dakota's SIP-approved PSD program
in this proposed action under IV.3, element 110(a)(2)(C). As stated
there, with the approval of the PM2.5 increments into the
North Dakota SIP, the SIP-approved PSD program meets all relevant
requirements for the 1997 and 2006 PM2.5 NAAQS.
Finally, with regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, the
North Dakota SIP meets the requirements of section 110(a)(2)(J) for the
1997 and 2006 PM2.5 NAAQS.
12. Air quality and modeling/data: Section 110(a)(2)(K) requires
that each SIP provide for:
(i) the performance of such air quality modeling as the
Administrator may prescribe for the purpose of predicting the effect
on ambient air quality of any emissions of any air pollutant for
which the Administrator has established a [NAAQS], and
(ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite Section 7.7 of the ND SIP
which addresses air quality modeling. Modeling for minor sources is
addressed in NDAC 33-15-14-02.4 and modeling for major PSD sources in
40 CFR 52.21(k), (l), (m), (n) and (o) as incorporated into NDAC 33-15-
15-01.2. NDCC 23-25-03 provides authority for requiring modeling.
b. EPA Analysis: North Dakota's SIP meets the requirements of CAA
section 110(a)(2)(K) for the 1997 and 2006 PM2.5 NAAQS. In
particular, North Dakota's PSD program requires estimates of ambient
air concentrations be based on applicable air quality models specified
in Appendix W of 40 CFR part 51, and incorporates by reference the
provision at 40 CFR 52.21(l)(2) requiring that modification or
substitution of a model specified in Appendix W must be approved by the
Administrator. As a result, the SIP provides for such air quality
modeling as the Administrator has prescribed.
13. Permitting fees: Section 110(a)(2)(L) requires SIPs to:
require the owner or operator of each major stationary source to
pay to the permitting authority, as a condition of any permit
required under this act, a fee sufficient to cover--
(i) the reasonable costs of reviewing and acting upon any
application for such a permit, and
(ii) if the owner or operator receives a permit for such source,
the reasonable costs of implementing and enforcing the terms and
conditions of any such permit (not including any court costs or
other costs associated with any enforcement action),
until such fee requirement is superseded with respect to such
sources by the Administrator's approval of a fee program under
[title] V.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite NDAC 33-15-23 which
establishes fees for processing Permit to Construct applications,
annual operating fees for minor sources, and fees for major sources
under the Title V Permit to Operate program. NDCC 23-25-04.2 provides
authority for the fees.
b. EPA Analysis: North Dakota's submittal meets the requirements of
CAA section 110(a)(2)(L) for the 1997 and 2006 PM2.5 NAAQS.
Final approval of the title V operating permit program became effective
June 17, 1999 (64 FR 32433). As discussed in that approval, the State
demonstrated that the fees collected were sufficient to administer the
program. In addition, the SIP contains fee provisions for construction
permits (NDAC 33-15-23-02), including costs of processing not covered
by the application fee.
14. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.
a. North Dakota's response to this requirement: The State's 1997
and 2006 PM2.5 submissions cite the ND SIP, Chapter 10 which
addresses the consultation process the Department will use to
coordinate with local political subdivisions that are affected by any
SIP revisions, and NDCC 23-25-03 which also requires consultation. The
State also cites NDCC 23-25-02.6 (public notice).
b. EPA Analysis: North Dakota's submittal meets the requirements of
CAA section 10(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS.
VI. What action is EPA taking?
In this action, EPA is proposing to approve the following
infrastructure elements for the 1997 and 2006 PM2.5 NAAQS:
(A), (B), (C) with respect to minor NSR and PSD requirements, (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M). We are proposing to approve
(D)(i)(II) with respect to PSD requirements for the 2006
PM2.5 NAAQS. EPA is also proposing to approve a portion of
the State's January 24, 2013 submittal revising the State's PSD
program: specifically, the incorporation by reference of 40 CFR part
52, section 21, paragraphs (b)(14)(i),(ii),(iii), (b)(15)(i),(ii), and
paragraph (c) as those paragraphs existed on January 1, 2012.
Additionally, EPA is proposing to approve the April 8, 2013 submittal
of revisions to Chapter 2, Section 2.15 into the North Dakota SIP.
Finally, EPA will act separately on infrastructure element (D)(i)(I)
for the 2006 PM2.5 NAAQS.
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations (42 USC 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting federal
requirements and disapproves other state law because it does not meet
federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 USC 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 USC 601 et seq.);
[[Page 27906]]
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 USC 272
note) because application of those requirements would be inconsistent
with the CAA; and,
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Dated: May 2, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013-11289 Filed 5-10-13; 8:45 am]
BILLING CODE 6560-50-P