[Federal Register Volume 77, Number 205 (Tuesday, October 23, 2012)]
[Rules and Regulations]
[Pages 64734-64737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25667]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0299, FRL-9742-3]


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: Final rule.

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SUMMARY: EPA is approving 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 approving the revision because the Agency 
has determined 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: This action is effective on November 23, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R08-OAR-2012-0299. All documents in the docket 
are listed at http://www.regulations.gov. Although listed in the index, 
some information may not be publicly available, i.e., Confidential 
Business Information 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 http://www.regulations.gov or 
in hard copy at EPA Region 8, Air Quality Planning Unit (8P-AR), 1595 
Wynkoop Street, Denver, Colorado 80202. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
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 finalizing in today's notice?
II. What is the background for the PSD SIP final approval 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 SIP revision?
IV. Response to Comments
V. Final Action
VI. Statutory and Executive Order Reviews

I. What action is EPA finalizing 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 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.'' On July 13, 2012, EPA proposed approval of North Dakota's April 
18, 2011 SIP submittal for incorporation into the SIP (77 FR 41343). We 
did not propose approval of ND's Title V operating permit program 
revision, which is handled separately because the Title V program is 
not part of the SIP. In today's notice, pursuant to section 110 of the 
CAA, EPA is approving the SIP revisions into the North Dakota 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 
final rulemaking, EPA is not taking action on those submittals; EPA 
will act on them in a separate rulemaking.

II. What is the background for the PSD SIP final approval 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 final 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

[[Page 64735]]

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 final 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 
final 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.'' 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 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 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 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 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

[[Page 64736]]

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 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 
revision and has determined that it is consistent with the Tailoring 
Rule and PM2.5 NSR Implementation Rule.

IV. Response to Comments

    EPA did not receive comments on our July 13, 2012 Federal Register 
notice proposing approval of North Dakota's SIP revision relating to 
regulation of GHGs and fine particulate matter under the North Dakota 
PSD program.

V. Final Action

    Pursuant to section 110 of the CAA, EPA is approving 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 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 final 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 determined that this SIP 
revision is approvable.

VI. 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 
final action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this final action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
final 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

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

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

    Dated: October 3, 2012.
James B. Martin,
Regional Administrator, Region 8.

    Therefore, 40 CFR chapter I is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. Section 52.1820 in paragraph (c) is amended by revising the table 
entry for ``33-15-15-01.2'' to read as follows


Sec.  52.1820  Identification of plan.

* * * * *
    (c) * * *

[[Page 64737]]



                                        State of North Dakota Regulations
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                                                                State      EPA approval date and
          State citation                Title/subject      effective date       citation \1\       Explanations
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                                                  * * * * * * *
33-15-15-01.2....................  Prevention of                 10/27/10  [9/27/12, Insert       ..............
                                    Significant                             Federal Register
                                    Deterioration of Air                    page number where
                                    Quality, Scope.                         the document
                                                                            begins.]
 
                                                  * * * * * * *
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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.


    Authority: 42 U.S.C. 7401 et seq.
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[FR Doc. 2012-25667 Filed 10-22-12; 8:45 am]
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