[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Proposed Rules]
[Pages 10448-10451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04073]
[[Page 10448]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2012-0761; FRL-9907-11-Region-8]
Approval and Promulgation of State Implementation Plan Revisions;
Revisions to the Air Pollution Control Rules; North Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by the
Governor of North Dakota on April 14, 2011. The revisions affect North
Dakota's air pollution control rules regarding general provisions,
ambient air quality standards (sulfur dioxide (SO2),
nitrogen dioxide (NOX), and lead), and permitting. EPA acted
separately on other provisions in the April 14, 2011 submittal related
to North Dakota's regulation of greenhouse gases (GHGs) under its
Prevention of Significant Deterioration (PSD) program. This action is
being taken under section 110 of the Clean Air Act.
DATES: Written comments must be received on or before March 27, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0761, 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 section if you are faxing
comments).
Mail: Director, Air Program, U.S. Environmental Protection
Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, U.S. Environmental
Protection Agency (EPA), Region 8, Mailcode 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-
2012-0761. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 http://www.regulations.gov or email. The http://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 http://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 http://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
at http://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 4:30 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Gail Fallon, Air Program, U.S.
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop
Street, Denver, Colorado, 80202-1129, (303) 312-6281,
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Background
III. Analysis of SIP Revisions
IV. Proposed Action
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, the following definitions apply:
(i) The words or initials Act or CAA mean or refer to the Federal
Clean Air Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials GHG mean or refer to greenhouse gases.
(iv) The initials NAAQS mean or refer to the National Ambient Air
Quality Standards.
(v) The initials NDAC mean or refer to North Dakota Administrative
Code.
(vi) The initials NDDH mean or refer to the North Dakota Department
of Health.
(vii) The initials NESHAP mean or refer to National Emissions
Standards for Hazardous Air Pollutants.
(viii) The initials NOX mean or refer to nitrogen oxides.
(ix) The initials NSPS mean or refer to New Source Performance
Standards.
(x) The initials NSR mean or refer to New Source Review.
(xi) The initials PM2.5 mean or refer to fine particulate matter.
(xii) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(xiii) The initials SAAQS mean or refer to State Ambient Air
Quality Standards.
(xiv) The initials SIP mean or refer to State Implementation Plan.
(xv) The initials SO2 mean or refer to sulfur dioxide.
(xvi) The words State or ND mean the State of North Dakota, unless
the context indicates otherwise.
I. General Information
A. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI
[[Page 10449]]
information in 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.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. Background
The Act requires states to follow certain procedures in developing
implementation plans and plan revisions for submission to EPA. Sections
110(a)(2) and 110(l) of the Act provide that each implementation plan
must be adopted after reasonable notice and public hearing.
To provide for public comment, the North Dakota Department of
Health (NDDH), after providing notice, held a public hearing on August
19, 2010 to consider the revisions to its Air Pollution Control Rules.
Following the public hearing, comment period, and legal review by the
North Dakota Attorney General's Office, NDDH adopted the revisions. The
revisions to the Air Pollution Control Rules became effective on April
1, 2011. The North Dakota Governor submitted the SIP revisions to us
with a letter dated April 14, 2011.
III. Analysis of SIP Revisions
We are proposing action on the April 14, 2011 submittal for SIP
revisions that involve the following chapters of the North Dakota
Administrative Code (NDAC): 33-15-01, ``General Provisions;'' 33-15-02,
``Ambient Air Quality Standards;'' and 33-15-14, ``Designated Air
Contaminant Sources, Permit to Construct, Minor Source Permit to
Operate, Title V permit to Operate.'' We previously acted on the
revisions to NDAC 33-15-15, ``Prevention of Significant Deterioration
of Air Quality'' in the April 14, 2011 submittal regarding regulation
of GHGs and fine particulate matter (PM2.5) under North
Dakota's PSD program in 2012 (77 FR 64734, October 23, 2012). The
following is our description and analysis of the revisions in this
proposed action which the State submitted to us for approval.
A. Chapter 33-15-01, NDAC, General Provisions
The State revised section 33-15-01-04.52 and cross-referenced and
incorporated by reference the version of 40 CFR 51.100(s) as it existed
on July 2, 2010 for purposes of defining ``volatile organic compounds''
(the prior date used was March 1, 2008). This change is minor and is
consistent with relevant CAA and regulatory requirements.
B. Chapter 33-15-02, NDAC, Ambient Air Quality Standards
In section 33-15-02-04.1, ``Particulates and Gases,'' the State
deleted the language, ``Except as provided in section 33-15-02-07 . .
.'' at EPA's request. We were concerned that the cross reference to
subsection 33-15-02-07.4 in 33-15-02-07, ``Concentrations of Air
Contaminants in the Ambient Air Restricted,'' gave discretion to the
state director to exempt, from ambient air quality standards, emissions
during malfunctions and maintenance shutdowns. We asked the State to
address our concern. The deletion of subsection 33-15-02-07.4 from 33-
15-02-07 and the deletion of the language cross referencing to it in
subsections 33-15-02-04.1, 33-15-02-07.1 and 33-15-02-07.2 addresses
our concern and is consistent with CAA requirements.
In section 33-15-02-07, ``Concentrations of Air Contaminants in the
Ambient Air Restricted,'' the State deleted subsection 33-15-02-07.3
and the cross references to this subsection in 33-15-02-07.1 and 33-15-
02-07.2. Prior to this revision, there was a 1-hour state ambient air
quality standard (SAAQS) for SO2 of 273 parts per billion
(ppb). There was no 1-hour SO2 national ambient air quality
standard (NAAQS) at that time. Because there were both a 24-hour and
annual SAAQS and NAAQS for SO2, coal conversion facilities
and petroleum refineries were exempt from the SAAQS per North Dakota
Century Code (NDCC) 23-25-03.2. North Dakota NDAC 33-15-02-07.3
clarified that these source categories only had to meet the NAAQS. The
State's rule revision eliminated the 1-hour SAAQS for SO2
and adopted the 1-hour NAAQS (75 ppb). The revision makes the
SO2 SAAQS and the NAAQS the same; NDAC 33-15-02-07.3 is thus
unnecessary. This revision is consistent with CAA and regulatory
requirements.
Also in section 33-15-02-07, Tables 1 and 2 were revised. Table 1,
``Ambient Air Quality Standards,'' that lists the State ambient air
quality standards was revised to add the new 2010 federal 1-hour
standards for NOX and SO2 and to amend the
standard for lead to the 2008 federal standard. Table 2, ``National
Ambient Air Quality Standards,'' includes the old federal standards for
SO2. The State initially proposed that Table 2 be deleted
and that the new federal SO2 standards be incorporated into
Table 1. We asked the State to retain the old federal SO2
standards for one year after designation of the new standard.\1\ The
State addressed our concerns by retaining the old primary
SO2 standards in Table 2, by adding the new primary
SO2 standards to Table 1, and by moving the secondary
SO2 standard from Table 2 to Table 1. The State added an
explanation after Table 2 regarding the federal requirement to retain
the standards for one year after designation. These revisions were made
to reflect the federal standards and are consistent with CAA and
regulatory requirements.
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\1\ Per revised 40 CFR 50.4, effective August 23, 2010 (75 FR
35520, June 22, 2010), ``[t]he SO2 NAAQS set forth in
this section will no longer apply to an area one year after the
effective date of the designation of that area, pursuant to section
107 of the Clean Air Act, for SO2 NAAQS set forth in
Sec. 50.17 . . .''
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C. Chapter 33-15-14, NDAC, Designated Air Contaminant Sources, Permit
To Construct, Minor Source Permit To Operate, Title V Permit To Operate
In Chapter 33-15-14, in addition to several housekeeping revisions,
the State made revisions to sections 33-15-14-01 and 33-15-14-02 with
the intent to change the permitting requirement for sources subject to
a new source performance standard (NSPS) or national emission standard
for
[[Page 10450]]
hazardous air pollutant (NESHAP). Previously, the SIP-approved minor
source permit rule required any source subject to a NSPS or NESHAP to
obtain a permit from the State regardless of the quantity of source
emissions. The State has changed the rule so the permit requirement
only applies to sources subject to a state-adopted NSPS or NESHAP. The
State made this change to avoid the burden of permitting the numerous
oil and gas facilities that became subject to the newly promulgated
federal NSPS at 40 CFR part 60, subpart OOOO (Standards of Performance
for Crude Oil and Natural Gas Production, Transmission and
Distribution). The effect of these revisions is the State, by not
adopting subpart OOOO into state law (and with no intention to adopt it
in the future) will not have to permit the sources subject to subpart
OOOO. Coupled with an existing exemption for oil and gas production
operations at subsection 33-15-14-02.13.o and the State's oil and gas
registration program at Chapter 33-15-20, the sources the State intends
to exclude from permitting include the multitude of small units, such
as tanks, engines, and other oil and gas production related units
normally subject to the State's minor source New Source Review (NSR)
program. State permitting requirements aside, national emissions
standards in any NSPS or NESHAP including 40 CFR part 60, subpart OOOO
still apply to the subject sources. The revisions related to NSPS and
NESHAP permitting result in a relaxation of North Dakota's SIP since
now a narrower subset of sources subject to NSPS and NESHAP
requirements (only those sources subject to NSPS and NESHAP
requirements that are adopted by the State) are subject to permitting.
While the State has not indicated any intention to return delegation of
any currently state-adopted NSPS or NESHAP requirements, EPA has
considered this possibility. Regarding the potential impacts to any
future relaxation related to such returned delegation, should this
occur, EPA will continue to work closely with the State to review these
requirements as well as the rest of its minor NSR program. Like other
states, EPA has some concerns with the stringency of North Dakota's
minor NSR program, and we acknowledge that there are ongoing
discussions with North Dakota to clarify and strengthen the State's
minor NSR program including addressing oil and gas production. North
Dakota approached this current SIP revision in a prospective manner,
revising its rules prior to EPA issuing the subpart OOOO requirements.
CAA section 110(l) requires a demonstration that a SIP revision
does not interfere with any requirement concerning attainment and that
a relaxation is sufficiently protective of air quality and other CAA
requirements in order for EPA to approve the relaxation. EPA conducted
such a demonstration for the permitting rule revision in the April 2011
submittal finding the revisions are not presently interfering with the
State's SIP control strategy or causing NAAQS violations in North
Dakota. Our demonstration is included in the docket for this action.
The specific revisions related to the minor source NSPS and NESHAP
permitting issue as well as other revisions to the minor source NSR
program are described below.
In section 33-15-14-01, ``Designated Air Contaminant Sources,'' the
State revised the list of sources ``capable of causing or contributing
to air pollution.'' The revised sections read as follows:
33-15-14-01.9. Any source for which an applicable federal
standard of performance (40 CFR 60) has been adopted in chapter 33-
15-12.
33-15-14-01.10. Any source for which an applicable national
emission standard for hazardous air pollutants (40 CFR 61) has been
adopted in chapter 33-15-13.
In section 33-15-14-02, ``Permit to construct,'' the State made the
following revisions:
In subsection 33-15-14-02.1, ``Permit to construct required,''
the State deleted the following language from the end of the first
paragraph, ``This requirement shall also apply to any source for
which a federal standard of performance has been promulgated prior
to such filing of an application for a permit to construct. A list
of sources for which a federal standard has been promulgated, and
the standards which apply to such sources, must be available at the
department's offices.'' The subsection now reads, ``No construction,
installation or establishment of a new stationary source within a
source category designated in section 33-15-14-01 may be commenced
unless the owner or operator thereof shall file an application for,
and receive, a permit to construct in accordance with this
chapter.''
In subsection 33-15-14-02.13, ``Exemptions,'' the State deleted
the following language from the end of the introductory sentence,
``and there is no applicable new source performance standard, or
national emission standard for hazardous air pollutants.'' This
subsection now reads, ``A permit to construct is not required for
the following stationary sources provided there is no federal
requirement for a permit or approval for construction or
operation.''
In subsection 33-15-14-02.13.o, the State made a revision
deleting an unnecessary subsection reference for the definition of
major source which we are approving. The subsection now reads, ``Oil
and gas production facilities as defined in chapter 33-15-20 which
are not a major source as defined in section 33-15-14-06.'' The
State is moving towards less precise numbering references, in some
cases, to simplify any future rule renumbering requirements. In
addition, under this provision, oil and gas production facilities
that are not major sources are exempted from review and permitting.
While EPA approved this provision in 1995, we do have concerns now
that the provision may need to be strengthened in order to conform
with the CAA and EPA's minor NSR regulations 40 CFR 51.150-51.164.
EPA has not reviewed the substance of this rule as part of this
action. The EPA is now merely approving the deletion of the
numbering cross reference submitted by the State. The current
version of the NDAC rule does not contain substantive changes from
the prior codification that we approved into the SIP. EPA
acknowledges that there are ongoing discussions with North Dakota to
address EPA's concerns with the rule language that EPA previously
approved into the North Dakota SIP. In a December 10, 2013 letter
from Terry O'Clair, Director of North Dakota's Division of Air
Quality to Gail Fallon, EPA Region 8, North Dakota committed to
provide clarification of the applicability of the oil and gas
production operations registration program and guidance. Because
this rule revision in the SIP only deletes a numbering cross
reference, we are proposing to approve this revision
Also in Chapter 33-15-14, the State made several housekeeping
revisions. A revision in subsection 1.12 is clarifying in nature and
replaced language about a source's emissions ``affecting'' state air
quality with language regarding a source that the State determined to
``cause or contribute to a violation'' of air quality standards. A
revision in subsection 1.15 added the word ``stationary'' to clarify
the State's intent to regulate only stationary sources under its
permitting program.\2\ The revised subsections read as follows:
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\2\ We acted previously on other revisions in the April 14, 2011
submittal, pertaining to the State's regulation of greenhouse gases.
Federal greenhouse gas requirements deal largely with mobile
sources. See our 2012 action, 77 FR 64734, October 23, 2012, for a
more detailed explanation.
33-15-14-01.12. Any source which is determined by the department
to cause or contribute to a violation of any SAAQS or violates the
other provisions of chapter 33-15-02.
33-15-14-01.15. Other stationary sources subject to a standard
or requirement under the Federal Clean Air Act as amended.
In section 33-15-14-03, ``Minor source permit to operate,'' the
State deleted exception language in subsection 33-15-14-03.1.c related
to the requirement for a minor source
[[Page 10451]]
permit to operate when a source is transitioning to a title V permit to
operate as well as language for fees related to such sources that meet
the title V applicability requirements. The subsection now reads,
``Sources that are subject to the title V permitting requirements of
section 33-15-14-06 are exempt from the requirements of this section.''
While the time frame related to the State issuing initial title V
permits has largely passed, in the event a minor source's emissions
grow to the extent that a title V permit becomes necessary, any
applicable requirements in the minor source permit to operate will
transition into the title V permit to operate. In such a case, until a
title V permit is issued, the minor source permit remains in effect.
The changes in Chapter 33-15-14 only affect the applicability of
certain permitting requirements contained in this Chapter. These
changes do not affect emission limits in the SIP or other requirements
that would affect ambient concentrations of criteria pollutants. These
changes are consistent with CAA and regulatory requirements.
IV. Proposed Action
EPA is proposing to approve revisions to the North Dakota SIP that
the Governor of North Dakota submitted with a letter dated April 14,
2011 and that were state-effective April 1, 2011. Specifically, EPA is
proposing to approve North Dakota's revisions to the following portions
of the North Dakota Administrative Code: Chapter 33-15-01, ``General
Provisions,'' section 33-15-01-04.52 ; Chapter 33-15-02, ``Ambient Air
Quality Standards,'' sections 33-15-02-04.1, 33-15-02-07.1, 33-15-02-
07.2, 33-15-02-07.3, 33-15-02-07.4, section 33-15-02, Tables 1 and 2.
EPA is proposing to approve Chapter 33-15-14, ``Designated Air
Contaminant Sources, Permit to Construct, Minor Source Permit to
Operate, Title V Permit to Operate,'' sections 33-15-14-01.9, 33-15-14-
01.10, 33-15-14-01.12, 33-15-14-01.15, 33-15-14-02.1, 33-15-14-02.13,
33-15-14-02.13.o, 33-15-14-03.1c with the understanding that the State
and EPA will continue discussions to clarify and strengthen the State's
current minor source program as it relates to oil and gas production
facilities. See section III of this action for a description of these
revisions. EPA acted previously on the revisions to Chapter 33-15-15,
``Prevention of Significant Deterioration of Air Quality,'' that were
also included in the April 14, 2011 submittal. See 77 FR 64734, October
23, 2012.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting 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 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
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Greenhouse
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 14, 2014.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2014-04073 Filed 2-24-14; 8:45 am]
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