[Federal Register Volume 79, Number 136 (Wednesday, July 16, 2014)]
[Proposed Rules]
[Pages 41473-41476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16739]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2014-0173; FRL-9913-71-Region 8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve 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 proposing to approve the removal of 
these subsections from the SIP because such removal is consistent with 
Clean Air Act (CAA) requirements. The removal will correct certain 
deficiencies related to the correct treatment of excess emissions from 
sources. EPA will address the remaining

[[Page 41474]]

revisions from North Dakota's January 23, 2013 submission in other 
actions.

DATES: Comments must be received on or before August 15, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2014-0173, 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 if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, U.S. Environmental 
Protection Agency (EPA), Region 8, Mail Code 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-
2014-0173 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, U.S. 
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 4:00 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Adam Clark, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-7104, [email protected].

SUPPLEMENTARY INFORMATION:

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

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit this information to EPA through www.regulations.gov or email. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI 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:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register, date, and 
page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    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

[[Page 41475]]

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.
    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 
33-15-05-01.2.a(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 basic 
enforceability.
    On June 30, 2011, the Sierra Club filed with the EPA Administrator 
a petition for rulemaking concerning states' treatment of excess 
emissions from sources during SSM events (the Petition).\1\ In the 
Petition, the Sierra Club identified existing SIP provisions in 39 
states that the Sierra Club considered inconsistent with the CAA, 
including provisions in the North Dakota SIP. Specifically, the Sierra 
Club argued that NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l) were 
contrary to the CAA because these provisions did not consider each 
instance of excess emissions a violation of the applicable standard, 
and because these provisions could be construed to preclude EPA and 
citizen enforcement.
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    \1\ The Petition is available in the docket for this action.
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    On February 22, 2013, EPA published a proposed rulemaking in which 
(among other things) we proposed to grant the Petition as it pertained 
to NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l). 78 FR 12460, 12531-
12532. We concurred with Sierra Club's assertion that both provisions 
are inconsistent with the requirements of the CAA. In our proposed 
rulemaking, we also proposed to find that NDAC 33-15-03-04.3 was 
inconsistent with the requirements of the CAA. We proposed to find that 
all three of these provisions (NDAC 33-15-03-04.3, NDAC 33-15-03-04.4 
and NDAC 33-15-05-01.2.a(l)) are substantially inadequate to meet CAA 
requirements, and concurrently proposed to issue a SIP call for all 
three provisions.
    On January 23, 2013, the Governor of North Dakota submitted to EPA 
SIP revisions that included the removal of both NDAC 33-15-03-04.4 and 
NDAC 33-15-05-01.2.a(l), as well as additional revisions to the North 
Dakota SIP. We will act on the remaining revisions from the January 23, 
2013 submittal (aside from NDAC 33-15-03-04.4 and NDAC 33-15-05-
01.2.a(l)) in separate rulemakings. The January 23, 2013 submittal did 
not revise NDAC 33-15-03-04.3.

III. North Dakota Revisions and EPA Analysis

    Under CAA section 107, states have the primary authority and 
responsibility to develop and implement SIPs that provide for 
attainment, maintenance, and enforcement of the National Ambient Air 
Quality Standards and meet other CAA requirements. Under CAA section 
110(k), EPA has the authority and responsibility to review state SIP 
submissions to assure that they meet all applicable requirements. CAA 
section 110(l) prohibits EPA from approving a SIP revision that (among 
other things) would interfere with any applicable requirement of the 
CAA.
    In this instance, the State has elected to revise its existing SIP 
by removing two previously approved provisions that created exemptions 
from otherwise applicable emission limits in the SIP. As noted, the 
State removed both NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l) from 
the North Dakota SIP in its January 23, 2013 submission.
    We consider the removal of these provisions sufficient to correct 
the inadequacies contained within them and to be consistent with the 
requirements of the CAA.\2\ As a result of their removal from the SIP, 
the improper exemptions from emissions limits contained within these 
provisions will no longer be available to sources. EPA's proposed 
approval of these two revisions is also consistent with CAA section 
110(l) because approval will not interfere with any applicable 
requirement of the CAA. Specifically, removal of the exemptions will 
not relax the existing emission limitations in the SIP and will in fact 
be more protective. Furthermore, these revisions will render the 
revised emission limitations consistent with the requirements of the 
CAA for SIP provisions by making them continuously applicable and more 
enforceable. Therefore, we are proposing to approve the removal of 
these provisions from the SIP.\3\
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    \2\ For a more in-depth discussion on the inadequacies of NDAC 
33-15-03-04.4 and NDAC 33-15-05-01.2.a(l), see our proposed SIP call 
at 78 FR 12531-12532, February 22, 2013.
    \3\ We note that if we finalize our proposed approval of the 
removal of these provisions from the SIP, it will have the effect of 
mooting our proposed SIP call regarding these provisions.
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IV. EPA's Proposed Action

    We are proposing to approve the 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 
January 23, 2013 SIP submission.

V. 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 
proposed action merely proposes to approve state law as meeting federal 
requirements and 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 USC 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 USC 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 USC 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,

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     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 proposed 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: June 24, 2014.
Shaun L. McGrath,
Regional Administrator.
[FR Doc. 2014-16739 Filed 7-15-14; 8:45 am]
BILLING CODE 6560-50-P