[Federal Register Volume 79, Number 204 (Wednesday, October 22, 2014)]
[Rules and Regulations]
[Pages 63045-63047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24996]



40 CFR Part 52

[EPA-R08-OAR-2014-0173; FRL-9918-21-Region 8]

Approval and Promulgation of Implementation Plans; North Dakota; 
Revisions to the Air Pollution Control Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving changes to North Dakota's State 
Implementation Plan (SIP). On January 23, 2013, the Governor of North 
Dakota submitted to EPA revisions to several chapters of the North 
Dakota SIP. These revisions included the removal of subsections 33-15-
03-04.4 and 33-15-05-01.2.a(l) of the North Dakota Administrative Code 
(NDAC). In this action, EPA is approving the removal of these 
subsections from the SIP because it is consistent with Clean Air Act 
(CAA) requirements. The State's submission corrects certain 
deficiencies related to the treatment of excess emissions from sources. 
EPA will address the remaining revisions from North Dakota's January 
23, 2013 submission in other actions.

DATES: This final rule is effective November 21, 2014.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R08-OAR-2014-0173. 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 
St., 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.

Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-7104, [email protected].



    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 words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.

[[Page 63046]]

    (iii) The initials NDAC mean or refer to the North Dakota 
Administrative Code.
    (iv) The initials SIP mean or refer to state implementation 
    (v) The initials SSM mean or refer to startup, shutdown, and 
    (vi) The words State or North Dakota mean the State of North 
Dakota, unless the context indicates otherwise.

I. Background

    On January 23, 2013, the Governor of North Dakota submitted to EPA 
SIP revisions that would remove both NDAC 33-15-03-04.4 and NDAC 33-15-
05-01.2.a(l) from the North Dakota SIP; the submission also contained 
other revisions to the North Dakota SIP. On July 16, 2014 (79 FR 
41473), we proposed approval of the removal of subsections NDAC 33-15-
03-04.4 and NDAC 33-15-05-01.2.a(l) from the North Dakota SIP, but we 
did not propose to take any action on the remaining revisions from the 
January 23, 2013 submittal.
    In our proposed rule, we explained that, in accordance with the 
requirements of CAA section 110(a)(2)(A), SIPs must contain enforceable 
emission limitations and, in accordance with the definition of 
``emission limitations'' in CAA section 302(k), such emission 
limitations must be continuous. In addition, under CAA section 304(a), 
any person may bring a civil action against any person alleged to have 
violated (if there is evidence that the alleged violation has been 
repeated) or to be in violation of an ``emission standard or 
limitation'' under the CAA. For the purposes of section 304, ``emission 
standard or limitation'' is defined in section 304(f) and includes SIP 
emission limitations. Thus, SIP emission limitations can be enforced in 
a section 304 action and so must be capable of enforcement. SIP 
provisions that create exemptions such that excess emissions during 
startup, shutdown, malfunctions (SSM) and other conditions are not 
violations of the applicable emission limitations are inconsistent with 
these fundamental requirements of the CAA with respect to emission 
limitations in SIPs.
    For these reasons, we proposed to approve the State's removal of 
subsections NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l) from the 
North Dakota SIP. In particular, NDAC 33-15-03-04.4 created exemptions 
from a number of cross-referenced opacity limits ``where the limits 
specified in this article cannot be met because of operations and 
processes such as, but not limited to, oil field service and drilling 
operations, but only so long as it is not technically feasible to meet 
said specifications.'' NDAC 33-15-05-01.2a(1) created an implicit 
exemption from particulate matter emissions limits for ``temporary 
operational breakdowns or cleaning of air pollution equipment'' if the 
source met certain conditions. Because these provisions contemplated 
outright exemptions from the otherwise applicable SIP emission limits, 
they were inconsistent with CAA requirements. In addition, NDAC 33-15-
03-04.4 had inherent ambiguities that called into question its 
    The State's removal of these provisions is sufficient to correct 
the inadequacies the provisions created and is consistent with the 
requirements of the CAA. As a result of their removal from the SIP, the 
improper exemptions from emissions limitations contained within these 
provisions will no longer be available to sources. Therefore, the 
emissions limitations will become continuous and more enforceable.

II. Response to Comments

    The comment period for our June 16, 2014 proposal was open for 30 
days. We received three brief comments on the proposed action. The 
Sierra Club submitted a comment in support of the proposed action, and 
two individuals submitted comments regarding other matters that are 
entirely unrelated to the proposed action. We acknowledge the 
supportive comment. We are not responding to the other comments on 
subjects unrelated to our proposal.

III. EPA's Final Action

    We are approving the State's removal of NDAC 33-15-03-04.4 and NDAC 
33-15-05-01.2.a(l) from the North Dakota SIP, as reflected in the 
State's January 23, 2013 SIP submission. This approval corrects the 
deficiencies contained in these provisions, as noted above, in our June 
16, 2014 proposed rule, and in EPA's February 22, 2013 proposed SSM SIP 
Call (78 FR 12531). Based on this final approval, EPA notes that these 
two deficiencies in the North Dakota SIP identified in the proposed SSM 
SIP call have now been correctly resolved. Thus, EPA's final action on 
the SSM SIP call should not need to address these two deficiencies. We 
also note that a third deficient provision, NDAC 33-15-03-04.3, was 
identified in the February 22, 2013 proposed SSM SIP call; however, the 
January 23, 2013 submission did not revise NDAC 33-15-03-04.3. Finally, 
we are not taking action today on the remaining portions of the January 
23, 2013 submission.

IV. Statutory and Executive Orders Review

    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 state law as meeting federal requirements 
and does not impose additional requirements beyond those imposed by 
state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 

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Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 22, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 

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

    Dated: October 2, 2014.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
    40 CFR part 52 is amended as follows:


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

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

Subpart JJ--North Dakota

2. In Sec.  52.1820, the table in paragraph (c) is amended by revising 
the entries for ``33-15-03-04'' and ``33-15-05-01'' to read as follows:

Sec.  52.1820  Identification of plan.

* * * * *
    (c) * * *

                                        State of North Dakota Regulations
                                                        State      EPA Approval date and
      State citation            Title/Subject      effective date       citation \1\           Explanations
                                                  * * * * * * *
                                33-15-03 Restrictions of Visible Air Contaminants
                                                  * * * * * * *
33-15-03-04...............  Exceptions...........          1/1/13  10/22/14, [Insert
                                                                    Federal Register
                                                  * * * * * * *
                               33-15-05 Emissions of Particulate Matter Restricted
33-15-05-01...............  Restrictions of                1/1/13  10/22/14 [Insert
                             emissions of                           Federal Register
                             particulate matter                     citation].
                             from industrial
                                                  * * * * * * *
\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.

* * * * *
[FR Doc. 2014-24996 Filed 10-21-14; 8:45 am]