[Federal Register Volume 77, Number 135 (Friday, July 13, 2012)]
[Proposed Rules]
[Pages 41343-41346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17141]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0299, FRL-9700-2]


Approval and Promulgation of Implementation Plans; North Dakota: 
Prevention of Significant Deterioration; Greenhouse Gas Permitting 
Authority and Tailoring Rule; PM2.5 NSR Implementation Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision to the North Dakota 
State Implementation Plan (SIP) relating to regulation of Greenhouse 
Gases (GHGs) and fine particulate matter (PM2.5) under North 
Dakota's Prevention of Significant Deterioration (PSD) program. This 
revision was submitted by the North Dakota Department of Health 
Division of Air Quality (ND DOH DAQ) to EPA on April 18, 2011. It is 
intended to align North Dakota's regulations with the ``PSD and Title V 
Greenhouse Gas Tailoring Final Rule'' and the final rule for 
``Implementation of the New Source Review (NSR) Program for 
PM2.5.'' EPA is proposing to approve the revision because 
the Agency has made the preliminary determination that the SIP 
revision, already adopted by North Dakota as a final effective rule, is 
in accordance with the Clean Air Act (CAA or Act) and EPA regulations 
regarding PSD permitting for GHGs and PM2.5.

DATES: Comments must be received on or before August 13, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0299, by one of the following methods:
     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: Carl Daly, Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop St., 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop St., 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-
2012-0299. 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 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.

FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Air Program, Mailcode 
8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
St., Denver, Colorado 80202-1129, (303) 312-7814, 
[email protected].

SUPPLEMENTARY INFORMATION: Information is organized as follows:

Table of Contents

I. What action is EPA proposing in today's notice?
II. What is the background for the PSD SIP approval proposed by EPA 
in today's notice?
    A. GHG-Related Actions
    B. PM2.5-Related Actions
    C. North Dakota's Actions
III. What is EPA's analysis of North Dakota's proposed SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing in today's notice?

    On April 18, 2011, ND DOH submitted a request to EPA to approve 
revisions to the State's SIP and Title V program to incorporate recent 
rule amendments adopted by the ND DOH DAQ. These adopted rules became 
effective in the North Dakota Administrative Code on that date. Among 
other things, the amendments establish thresholds for GHG emissions in 
North Dakota's PSD and Title V regulations at the same emissions 
thresholds and in the same time-frames as those specified by EPA in the 
``PSD and Title V Greenhouse Gas Tailoring Final Rule'' (75 FR 31514, 
June 3, 2010), hereinafter referred to as the ``Tailoring Rule,'' 
ensuring that smaller GHG sources emitting less than these thresholds 
will not be subject to permitting requirements for GHGs that they emit. 
The requested revisions to the SIP will clarify the applicable 
thresholds in the North Dakota SIP and incorporate state rule changes 
adopted at the state level into the federally-approved SIP.
    The revisions to the SIP also address requirements for PSD programs 
with regard to emissions of PM2.5. These requirements were 
specified by EPA in

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the rule, ``Implementation of the New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers PM2.5 
(PM2.5)'' (73 FR 28321, May 16, 2008), hereinafter referred 
to as the ``PM2.5 NSR Implementation Rule.'' In today's 
notice, pursuant to section 110 of the CAA, EPA is proposing to approve 
these revisions into the North Dakota SIP. Approval of Title V program 
revisions is handled separately because the Title V program is not part 
of the SIP.
    North Dakota also submitted revisions to the General Provisions 
(Section 33-15-01-04), Ambient Air Quality Standards (Sections 33-15-
02-04.1 and 33-15-02-07, and Tables 1 and 2), and Designated Air 
Contaminant Sources, Permit to Construct, Minor Source Permit to 
Operate, Title V Permit to Operate (Sections 33-15-14-01.9, 10, 12 and 
15, 33-15-14-02.1, 33-15-14-02.13 and 33-15-14-03.1.c). In today's 
proposed rulemaking, EPA is not proposing to take action on those 
submittals. EPA will consider those provisions and any proposed or 
final actions in a rulemaking separate from today's proposed 
rulemaking.

II. What is the background for the PSD SIP approval proposed by EPA in 
today's notice?

    This section briefly summarizes EPA's recent GHG and 
PM2.5-related actions that provide the background for 
today's proposed action. More detailed discussion of the background is 
found in the preambles for those actions. In particular, for GHGs the 
background is contained in the PSD SIP Narrowing Rule,\1\ and in the 
preambles to the actions cited therein.
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    \1\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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A. GHG-Related Actions

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's proposed action on 
the North Dakota SIP. Four of these actions include, as they are 
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson 
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and 
the ``Tailoring Rule.'' Taken together and in conjunction with the CAA, 
these actions established regulatory requirements for GHGs emitted from 
new motor vehicles and new motor vehicle engines; determined that such 
regulations, when they took effect on January 2, 2011, subjected GHGs 
emitted from stationary sources to PSD requirements; and limited the 
applicability of PSD requirements to GHG sources on a phased-in basis. 
EPA took this last action in the Tailoring Rule, which, more 
specifically, established appropriate GHG emission thresholds for 
determining the applicability of PSD requirements to GHG-emitting 
sources.
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    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \3\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (Apr. 2, 
2010).
    \4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
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    PSD is implemented through the SIP system. In December 2010, EPA 
promulgated several rules to implement the new GHG PSD SIP program. 
Recognizing that some states had approved SIP PSD programs that did not 
apply PSD to GHGs, EPA issued a SIP Call and, for some of these states, 
a Federal Implementation Plan (FIP).\5\ Recognizing that other states 
had approved SIP PSD programs that do apply PSD to GHGs, but that do so 
for sources that emit as little as 100 or 250 tons per year (tpy) of 
GHG, and that do not limit PSD applicability to GHGs to the higher 
thresholds in the Tailoring Rule, EPA issued the PSD SIP Narrowing 
Rule. Under that rule, EPA withdrew its approval of the affected SIPs 
to the extent those SIPs covered GHG-emitting sources below the 
Tailoring Rule thresholds. EPA based its action primarily on the 
``error correction'' provisions of CAA section 110(k)(6).
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    \5\ Specifically, by action dated December 13, 2010, EPA 
finalized a ``SIP Call'' that would require those states with SIPs 
that have approved PSD programs but do not authorize PSD permitting 
for GHGs to submit a SIP revision providing such authority. ``Action 
To Ensure Authority To Issue Permits Under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR 
77698 (December 13, 2010). EPA made findings of failure to submit in 
some states which were unable to submit the required SIP revision by 
their deadlines, and finalized FIPs for such states. See, e.g. 
``Action To Ensure Authority To Issue Permits Under the Prevention 
of Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Failure To Submit State Implementation Plan 
Revisions Required for Greenhouse Gases,'' 75 FR 81874 (December 29, 
2010); ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan,'' 75 FR 82246 
(December 30, 2010). Because North Dakota's SIP already authorized 
North Dakota to regulate GHGs at the Tailoring Rule thresholds once 
GHGs became subject to PSD requirements on January 2, 2011, North 
Dakota is not subject to the SIP Call or FIP.
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B. PM2.5-Related Actions

    On May 16, 2008, EPA issued final rules governing the 
implementation of the New Source Review (NSR) program for particulate 
matter less than 2.5 micrometers in diameter (PM2.5), also 
known as fine particles. The PM2.5 NSR Implementation Rule 
finalized several NSR program requirements for sources that emit 
PM2.5 and other pollutants that contribute to 
PM2.5, including; pollutants that contribute to 
PM2.5 that are subject to NSR regulations, major source 
thresholds, significant emissions rates, interpollutant offset trading, 
revised SIP submittal deadlines and timing of implementation of the 
rule. The rule requires PSD permits to address directly emitted 
PM2.5 as well as pollutants responsible for secondary 
formation of PM2.5 as follows:

 Sulfur dioxide (SO2)--regulated as a 
PM2.5 precursor
 Nitrogen oxides (NOX)--regulated as a 
PM2.5 precursor unless a state demonstrates that 
NOX emissions are not a significant contributor to the 
formation of PM2.5 for an area in the state
 Volatile organic compounds (VOC)--not regulated as a 
PM2.5 precursor unless a state demonstrates that VOC 
emissions are a significant contributor to the formation of 
PM2.5 for an area in the state

C. North Dakota's Actions

    On June 21, 2010, North Dakota provided a letter to EPA, in 
accordance with a request to all states from EPA in the Tailoring Rule, 
with confirmation that the State of North Dakota has the authority to 
regulate GHGs in its existing SIP-approved PSD program at the Tailoring 
Rule thresholds. The letter also confirmed North Dakota's intent to 
amend its air quality rules for the PSD program for GHGs to explicitly 
match the thresholds set in the Tailoring Rule. See the docket for this 
proposed rulemaking for a copy of North Dakota's letter.
    The rulemaking docket includes a Dec. 14, 2010 memo from EPA Region 
8 that documents communications between EPA and the State of North 
Dakota, with regard to the question of whether the state believed that 
it needed the PSD SIP Narrowing Rule. The state's 60-day response 
letter to EPA, dated June 21, 2010, stated, in part, ``The Department 
believes it has existing authority to issue both PSD and Title V 
permits for sources of greenhouse gases based on the applicability 
thresholds specified in the tailoring rule.''

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Therefore, the state believed the narrowing rule was unnecessary for 
North Dakota. As a result, North Dakota was not subject to the PSD SIP 
Narrowing Rule.

III. What is EPA's analysis of North Dakota's proposed SIP revision?

    On April 18, 2011, ND DOH DAQ submitted a revision of its 
regulations to EPA for processing and approval into the SIP. This SIP 
revision explicitly adopts the GHG emission thresholds for PSD 
applicability set forth in EPA's Tailoring Rule. EPA's approval of 
North Dakota's SIP revision will incorporate the revisions of the North 
Dakota regulations into the Federally-approved SIP. Doing so will 
clarify the applicable thresholds in the North Dakota SIP.
    The proposed SIP revision establishes thresholds for determining 
which stationary sources and modification projects become subject to 
permitting requirements for GHG emissions under North Dakota's PSD 
program. Specifically, North Dakota's proposed SIP revision includes 
changes--which are already state effective--to North Dakota's 
Administrative Code, revising chapter 33-15-15 ``Prevention of 
Significant Deterioration of Air Quality,'' subsection 33-15-15-01.2 
``Scope.''
    In subsection 33-15-15-01.2, North Dakota implements the PSD 
program by, for the most part, incorporating by reference the federal 
PSD program at 40 CFR 52.21. Under the current SIP, the federal PSD 
program is incorporated as it existed on August 1, 2007. Under the 
proposed SIP revision, the federal PSD program as it existed on July 2, 
2010 is incorporated by reference. This includes revisions to the 
federal PSD program that were published as a final rule in the Federal 
Register by this date but had not yet been published in the Code of 
Federal Regulations (CFR). The Tailoring Rule, including the necessary 
revisions to the federal PSD program, was published as a final rule in 
the Federal Register on June 3, 2010, and on July 1, 2010, the 
Tailoring Rule revisions to 40 CFR 52.21 were noted in the published 
version of the CFR. The proposed SIP revision therefore incorporates 
the PSD requirements of the Tailoring Rule.
    Similarly, the revision incorporates, for the most part, the PSD 
requirements of the PM2.5 NSR Implementation Rule 
(promulgated May 16, 2011) as reflected in 40 CFR 52.21, with one 
exception. North Dakota has modified the language in the definition of 
``regulated NSR pollutant'' at 40 CFR 52.21(b)(5) regarding 
PM2.5 precursor presumptions. The modification explicitly 
establishes that nitrogen oxides are a precursor to PM2.5 
and that volatile organic compounds are not a precursor to 
PM2.5. In other words, the State has not attempted to 
demonstrate that nitrogen oxides are not a significant contributor to 
ambient PM2.5 concentrations or that volatile organic 
compounds are a significant contributor to ambient PM2.5 
concentrations. This approach is consistent with the PM2.5 
NSR Implementation Rule. Finally, as a result of the updated 
incorporation by reference, North Dakota has also adopted the clarified 
definition of ``reasonable possibility'' promulgated by EPA on December 
21, 2007 (72 FR 72607).
    North Dakota removed language that had previously been added to 40 
CFR 52.21(o)(1) for two reasons: to make this requirement entirely 
consistent with federal rules and to provide flexibility to use current 
methodologies recommended by Federal Land Managers. Chapter 33-15-19 is 
still applicable to major sources or major modifications under PSD; 
however, the revised PSD rules in Chapter 33-15-15 do not bind North 
Dakota to Chapter 33-15-19 for the visibility analysis.
    North Dakota is currently a SIP-approved state for the PSD program, 
and has previously incorporated EPA's 2002 NSR reform revisions for PSD 
into its SIP. See 72 FR 39564 (July 19, 2007). The changes to North 
Dakota's PSD program regulations are substantively the same as the 
federal provisions amended in EPA's Tailoring Rule and PM2.5 
NSR Implementation Rule. As part of its review of North Dakota's 
submittal, EPA performed a line-by-line review of North Dakota's 
proposed revision and has preliminarily determined that it is 
consistent with the Tailoring Rule and PM2.5 NSR 
Implementation Rule.

IV. Proposed Action

    Pursuant to section 110 of the CAA, EPA is proposing to approve 
North Dakota's April 18, 2011 revisions to the North Dakota SIP, 
relating to PSD requirements for GHG- and PM2.5-emitting 
sources. Specifically, North Dakota's proposed SIP revision establishes 
appropriate emissions thresholds for determining PSD applicability to 
new and modified GHG-emitting sources in accordance with EPA's 
Tailoring Rule. The proposed SIP revision also satisfies PSD 
requirements for treatment of PM2.5 in accordance with EPA's 
PM2.5 NSR Implementation Rule. As a result, EPA has made the 
preliminary determination that this SIP revision is approvable.

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 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 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

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costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, and Reporting and recordkeeping requirements.

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

    Dated: July 3, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012-17141 Filed 7-12-12; 8:45 am]
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