[Federal Register Volume 72, Number 138 (Thursday, July 19, 2007)]
[Rules and Regulations]
[Pages 39564-39566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14005]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0502, FRL-8441-9]


Approval and Promulgation of Air Quality Implementation; North 
Dakota; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of North Dakota. The revision, adopted by North 
Dakota on February 1, 2005, to Chapter 33-15-15 of the North Dakota 
Administrative Code (Prevention of Significant Deterioration of Air 
Quality), incorporates EPA's December 31, 2002 NSR Reforms. North 
Dakota submitted the request for approval of these rule revisions into 
the State Implementation Plan (SIP) on February 10, 2005. North Dakota 
has a federally-approved Prevention of Significant Deterioration (PSD) 
program for new and modified sources impacting attainment areas in the 
State. North Dakota is in attainment for all pollutants, and does not 
have a SIP-approved non-attainment permit program. This action is being 
taken under section 110 of the Clean Air Act.

DATES: Effective Date: This final rule is effective August 20, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2006-0502. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the Air 
and Radiation Program, Environmental Protection Agency (EPA), Region 8, 
1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if 
at all possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Carl Daly, Air and Radiation Program, 
U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202, (303) 312-6416, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. Background
III. Final Action
IV. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or North Dakota mean the State of North 
Dakota, unless the context indicates otherwise.

I. What Action Is EPA Taking?

    EPA is taking final action to approve revisions to the North Dakota 
SIP regarding North Dakota's PSD program. On December 18, 2006 (71 FR 
75687), EPA published a notice of proposed rulemaking (NPR) to approve 
North Dakota's revisions to their Prevention of Significant 
Deterioration regulations (Chapter 33-15-15) that incorporated EPA's 
December 31, 2002 NSR Reforms. The formal SIP revision was submitted by 
North Dakota on February 10, 2005. The December 18, 2006 NPR provides 
more detailed information about the North Dakota SIP revisions being 
approved today. The public comment period for the proposed action ended 
on January 17, 2007. No comments, adverse or otherwise, were received 
on EPA's proposed action.

II. Background

    On December 31, 2002, EPA published revisions to the federal PSD 
and non-attainment NSR regulations in 40 CFR parts 51 and 52 (67 FR 
80186). These revisions are commonly referred to as the ``NSR Reform'' 
regulations and became effective nationally in areas not covered by a 
SIP on March 3, 2003. These regulatory revisions included provisions 
for baseline emissions determinations, actual-to-future-actual 
methodology, plantwide applicability limits (PALs), clean units, and 
pollution control projects (PCPs). As stated in the December 31, 2002 
rulemaking, State and local permitting agencies must adopt and submit 
revisions to their part 51 permitting programs implementing the minimum 
program elements of that rulemaking no later than January 2, 2006 (67 
FR 80240). With the February 10, 2005 submittal, North Dakota requested 
approval of program revisions into the State Implementation Plan (SIP) 
that satisfy this requirement.
    On November 7, 2003, EPA published a reconsideration of the NSR 
Reform regulations that clarified two provisions in the regulations by 
including a definition of ''replacement unit'' and by clarifying that 
the plantwide applicability limitation (PAL) baseline calculation 
procedures for newly constructed units do not apply to modified units 
(68 FR 63021).
    On February 10, 2005, North Dakota submitted revisions to Chapter 
33-15-15 of the North Dakota Administrative Code (Prevention of 
Significant Deterioration of Air Quality). These revisions to Chapter 
33-15-15 were adopted by the North Dakota Department of Health on 
February 1, 2005; and repealed 33-15-15-01 (General provisions), added 
33-15-15-01.1 (Purpose) and 33-15-15-01.1 (Scope), and made reference 
and other non-substantive changes to 33-15-15-02 (Reclassification). 
North Dakota's Regulations for a PSD program for attainment areas were 
federally-approved and made a part of the SIP on November 2, 1979 (44 
FR 63103).
    On June 24, 2005, the United States Court of Appeals for the 
District of Columbia Circuit issued a ruling on challenges to the 
December 2002 NSR Reform revisions (State of New York et al. v. EPA, 
413 F.3d 3 (D.C. Cir. 2005)). Although the Court upheld most of EPA's 
rules, it vacated both the Clean Unit and the Pollution Control Project 
provisions and remanded back to EPA the recordkeeping provision at 40 
CFR 52.21(r)(6) that required a stationary source to keep records of 
projects when there was a ``reasonable possibility'' that

[[Page 39565]]

the project could result in a significant emissions increase.
    In an August 30, 2005 letter to EPA, North Dakota requested that 
EPA not take action on the clean unit and PCP provisions of the state 
rule and on the term ``reasonable possibility'' as they were 
incorporated by reference into the North Dakota Air Pollution Control 
Rules Chapter 33-15-15. North Dakota requested no action on these 
provisions because of the June 24, 2005 decision of the United States 
Court of Appeals for the District of Columbia Circuit. References to 
clean units and PCPs were subsequently removed by EPA from federal 
regulation on June 13, 2007 (see 72 FR 32526). North Dakota did 
withdraw their request for no action on the term ``reasonable 
possibility.'' North Dakota has also supplemented its February 10, 2005 
request in a November 2, 2005 submission that provided corrections to 
several typographical errors in Chapter 33-15-15. All of these 
documents are available for review as part of the Docket for this 
action.

III. Final Action

    EPA is taking final action to approve North Dakota's revisions to 
their Air Pollution Control Rules Chapter 33-15-15 (Prevention of 
Significant Deterioration of Air Quality), submitted by North Dakota on 
February 10, 2005, that relate to the State's PSD construction permit 
program. These revisions to Chapter 33-15-15 were adopted by the North 
Dakota Department of Health on February 1, 2005, and supersede and 
replace the previous SIP-approved Chapter 33-15-15 PSD Regulations.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 17, 2007. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: July 10, 2007.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ--North Dakota

0
2. In Sec.  52.1820 the table in paragraph (c) is amended by revising 
the entry under Chapter ``33-15-15'' to read as follows:


Sec.  52.1820  [Amended]

[[Page 39566]]



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                                                               State       EPA approval date
        State citation                Title/subject       effective date    and citation 1       Explanations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                         33-15-15 Prevention of Significant Deterioration of Air Quality
----------------------------------------------------------------------------------------------------------------
33-15-15-01...................  General Provisions                2/1/05  [Insert Federal
                                 (Repealed).                               Register page
                                                                           number where the
                                                                           document begins]
                                                                           7/19/07.
33-15-15-01.1.................  Purpose.................          2/1/05  [Insert Federal
                                                                           Register page
                                                                           number where the
                                                                           document begins]
                                                                           7/19/07.
33-15-15-01.2.................  Scope...................          2/1/05  [Insert Federal
                                                                           Register page
                                                                           number where the
                                                                           document begins]
                                                                           7/19/07.
33-15-15-02...................  Reclassification........          2/1/05  [Insert Federal
                                                                           Register page
                                                                           number where the
                                                                           document begins]
                                                                           7/19/07.
 
                                                  * * * * * * *
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1 In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

 [FR Doc. E7-14005 Filed 7-18-07; 8:45 am]
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