[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Proposed Rules]
[Pages 29457-29466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13667]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0558; FRL-9964-30-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2010 SO2 and 2012 PM2.5 National 
Ambient Air Quality Standards; North Dakota

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of North Dakota to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (Act or CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for sulfur dioxide 
(SO2) on June 2, 2010 (40 CFR 50.17) and fine particulate 
matter (PM2.5) on January 15, 2013 (78 FR 3086). Section 
110(a) of the CAA requires that each state submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by the EPA.

DATES: Written comments must be received on or before July 31, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0558 at www.regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from www.regulations.gov. The EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kate Gregory, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6175, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

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

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the 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 on a disk or CD-ROM that you mail to the 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 volume, 
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

    On June 2, 2010, the EPA promulgated a new NAAQS for 
SO2, establishing a new one-hour SO2 standard at 
a level of 75 parts per billion (ppb) based on the three-year average 
of the 99th percentile of 1-hour daily maximum concentrations. 
Additionally, the EPA revoked both the existing 24-hour and annual 
primary SO2 standards (75 FR 35520, June 22, 2010). 
Subsequently, on January 15, 2013, the EPA promulgated a new NAAQS for 
PM2.5, revising the annual PM2.5 NAAQS by 
lowering the level to 12.0 micrograms per cubic meter ([mu]g/m\3\). 
Additionally, the EPA retained the 24-hour PM2.5 standard at 
a level of 35 [mu]g/m\3\ and is revising the Air Quality Index (AQI) 
for PM2.5 to be consistent with the revised primary 
PM2.5 standards (78 FR 3086, January 15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance and enforcement of the NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for PM2.5, ozone, Pb, 
NO2, and SO2 already meet those requirements. The 
EPA highlighted this statutory requirement in an October 2, 2007, 
guidance document entitled ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2007 Memo). 
On September 25, 2009, the

[[Page 29458]]

EPA issued an additional guidance document pertaining to the 2006 
PM2.5 NAAQS entitled ``Guidance on SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS)'' 
(2009 Memo), followed by the October 14, 2011, ``Guidance on 
Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) 
for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)'' 
(2011 Memo). Most recently, the EPA issued ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).

III. What is the scope of this rulemaking?

    The EPA is acting upon the SIP submissions from North Dakota that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 SO2 and 2012 PM2.5 NAAQS. 
The requirement for states to make a SIP submission of this type arises 
out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submissions ``within three years (or such shorter period 
as the Administrator may prescribe) after the promulgation of a 
national primary ambient air quality standard (or any revision 
thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon the EPA taking any action other than promulgating a 
new or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of CAA sections 110(a)(1) 
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, the EPA uses the 
term to distinguish this particular type of SIP submission from 
submissions that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' 
submissions to address the nonattainment planning requirements of part 
D of title I of the CAA; ``regional haze SIP'' submissions required by 
the EPA rule to address the visibility protection requirements of CAA 
section 169A; and nonattainment new source review (NSR) permit program 
submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ The EPA therefore 
believes that while the timing requirement in section 110(a)(1) is 
unambiguous, some of the other statutory provisions are ambiguous. In 
particular, the EPA believes that the list of required elements for 
infrastructure SIP submissions provided in section 110(a)(2) contains 
ambiguities concerning what is required for inclusion in an 
infrastructure SIP submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which the 
EPA interprets the ambiguous portions of section 110(a)(1) and 
110(a)(2) are discussed at length in our notice of proposed rulemaking: 
Promulgation of State Implementation Plan Revisions; Infrastructure 
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 
Ozone, and 2010 NO2 National Ambient Air Quality Standards; 
South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope 
of this Rulemaking?''
    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and the 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by the EPA; and (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of the 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as 
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').
    As discussed below, CAA section 110(a)(2)(D)(i)(I) covers elements 
1 and 2 of ``interstate transport,'' while 110(a)(2)(D)(i)(II) covers 
interstate transport elements 3 and 4. The EPA is not addressing 
110(a)(2)(D)(i)(I) elements 1 and 2 for either the 2010 SO2 
or 2012 PM2.5 NAAQS as part of this action. These elements 
will be addressed in a separate action.

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section 110(a)(2) lists specific elements the SIP must 
contain or satisfy. These infrastructure elements include requirements 
such as modeling, monitoring and emissions inventories, which are 
designed to assure attainment and maintenance of the NAAQS. The 
elements that are the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three-year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and

[[Page 29459]]

submissions to satisfy them are not due within three years after 
promulgation of a new or revised NAAQS, but rather are due at the same 
time nonattainment area plan requirements are due under section 172. 
The two elements are: (1) Section 110(a)(2)(C) to the extent it refers 
to permit programs (known as ``nonattainment NSR'') required under part 
D, and (2) section 110(a)(2)(I), pertaining to the nonattainment 
planning requirements of part D. As a result, this action does not 
address infrastructure elements related to the nonattainment NSR 
portion of section 110(a)(2)(C) or related to 110(a)(2)(I). 
Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision 
on visibility as not being triggered by a new NAAQS because the 
visibility requirements in part C, title 1 of the CAA are not changed 
by a new NAAQS.

V. How did North Dakota address the infrastructure elements of sections 
110(a)(1) and (2)?

    The North Dakota Department of Health (the Department) submitted 
certifications of North Dakota's infrastructure SIP for the 2010 
SO2 NAAQS on March 7, 2013 and for the 2012 PM2.5 
NAAQS on August 23, 2015. Infrastructure SIPs were taken out for public 
notice and North Dakota provided an opportunity for public hearing, as 
indicated in each certification (available within this docket). North 
Dakota's infrastructure certifications demonstrate how the State, where 
applicable, has plans in place that meet the requirements of section 
110 for the 2010 SO2 and 2012 PM2.5 NAAQS. These 
plans reference the North Dakota Century Code (NDCC) and the North 
Dakota Air Pollution Control Rules (NDAC). These submittals are 
available within the electronic docket for today's proposed action at 
www.regulations.gov. The NDCC and NDAC referenced in the submittals are 
publicly available at http://www.legis.nd.gov/general-information/north-dakota-century-code and http://www.legis.nd.gov/cencode/t23c25.html. Air pollution control regulations and statutes that have 
been previously approved by the EPA and incorporated into the North 
Dakota SIP can be found at 40 CFR 52.1820.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    Multiple SIP approved State air quality regulations within the NDAC 
and cited in North Dakota's certifications provide enforceable emission 
limitations and other control measures, means of techniques, schedules 
for compliance, and other related matters necessary to meet the 
requirements of the CAA section 110(a)(2)(A) for the 2010 
SO2 and 2012 PM2.5 NAAQS, subject to the 
following clarifications.
    First, the EPA does not consider SIP requirements triggered by the 
nonattainment area mandates in part D of Title I of the CAA to be 
governed by the submission deadline of section 110(a)(1). Furthermore, 
North Dakota has no areas designated as nonattainment for the 2010 
SO2 or 2012 PM2.5 NAAQS. North Dakota's 
certifications (contained within this docket) generally listed 
provisions within its SIP which regulate pollutants through various 
programs, including major and minor source permit programs. This 
suffices, in the case of North Dakota, to meet the requirements of 
section 110(a)(2)(A) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
    Second, as previously discussed, the EPA is not proposing to 
approve or disapprove any existing state rules with regard to 
director's discretion or variance provisions. A number of states have 
such provisions which are contrary to the CAA and existing EPA guidance 
(52 FR 45109, Nov. 24, 1987), and the agency plans to take action in 
the future to address such state regulations. In the meantime, the EPA 
encourages any state having a director's discretion or variance 
provision which is contrary to the CAA and EPA guidance to take steps 
to correct the deficiency as soon as possible.
    Finally, in this action, the EPA is also not proposing to approve 
or disapprove any existing State provision with regard to excess 
emissions during SSM of operations at a facility. A number of states 
have SSM provisions which are contrary to the CAA and existing EPA 
guidance \2\ and the agency is addressing such state regulations 
separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to the EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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    Therefore, the EPA is proposing to approve North Dakota's 
infrastructure SIP for the 2010 SO2 and 2012 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(A) to include enforceable emission limitations and 
other control measures, means, or techniques to meet the applicable 
requirements of this element.
    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to ``provide for establishment and operation of 
appropriate devices, methods, systems, and procedures necessary'' to 
``(i) monitor, compile, and analyze data on ambient air quality, and 
(ii) upon request, make such data available to the Administrator.''
    The State's submissions cite regulatory documents included in 
Chapters 23-25-03, 23-25-03.2 and 23-25-03.10 of the NDCC. Provisions 
contained in 23-25-03 of the NDCC provide the legal authority and 
framework for the Department to require that permit applicants submit 
adequate monitoring data. Additionally, 23-25-03.10 of the NDCC enables 
the Department to impose reasonable conditions upon an approval to 
construct, modify, or operate, including ambient air quality 
monitoring. Additionally, the State of North Dakota submits data to the 
EPA's Air Quality System database in accordance with 40 CFR 58.16. 
Finally, North Dakota's 2016 Annual Monitoring Network Plan was 
approved through a letter dated December 5, 2016 (available within the 
docket). The State provides the EPA with prior notification when 
changes to its monitoring network or plan are being considered.
    We find that North Dakota's SIP and practices are adequate for the 
ambient air quality monitoring and data system requirements and 
therefore propose to approve the infrastructure SIP for the 2010 
SO2 and 2012 PM2.5 NAAQS for this element.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to ``include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
[NAAQS] are achieved, including a permit program as required in parts C 
and D.''
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs that are adequate to implement the 2010 
SO2 and 2012 PM2.5 NAAQS. As explained elsewhere 
in this action, the EPA is not evaluating nonattainment related 
provisions, such

[[Page 29460]]

as the nonattainment NSR program required by part D of the Act. The EPA 
is evaluating the State's PSD program as required by part C of the Act, 
and the State's minor NSR program as required by section 110(a)(2)(C).
Enforcement of Control Measures Requirement
    NDCC 23-25-10 and NDAC 33-15-01-17 allow the State to enforce 
applicable laws, regulations, and standards; to seek injunctive relief; 
and to provide authority to prevent construction, modification, or 
operation of any stationary source at any location where emissions from 
such source will prevent the attainment or maintenance of a national 
standard or interfere with prevention of significant deterioration 
requirements.
PSD Requirements
    With respect to Elements (C) and (J), the EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS demonstrating that the air agency has a complete PSD 
permitting program meeting the current requirements for all regulated 
NSR pollutants. The requirements of Element D(i)(II) prong 3 may also 
be satisfied by demonstrating the air agency has a complete PSD 
permitting program that applies to all regulated NSR pollutants. North 
Dakota has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    North Dakota implements the PSD program by, for the most part, 
incorporating by reference the federal PSD program as it existed on a 
specific date. The State periodically updates the PSD program by 
revising the date of incorporation by reference and submitting the 
change as a SIP revision. As a result, the SIP revisions generally 
reflect changes to PSD requirements that the EPA has promulgated prior 
to the revised date of incorporation by reference.
    On June 3, 2010 (75 FR 31291), we approved a North Dakota SIP 
revision that revised the date of incorporation by reference of the 
federal PSD program to August 1, 2007. That revision addressed the PSD 
requirements of the Phase 2 Ozone Implementation Rule promulgated in 
2005 (70 FR 71612). As a result, the approved North Dakota PSD program 
meets current requirements for ozone.
    Similarly, on October 23, 2012 (77 FR 64736), we approved a North 
Dakota SIP revision that revised the date of incorporation by reference 
of the federal PSD program to July 2, 2010. As explained in the notice 
for that action, that revision addressed the PSD requirements related 
to GHGs provided in EPA's June 3, 2010 ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (75 FR 
31514). The approved North Dakota PSD program thus also meets current 
requirements for GHGs.
    On June 23, 2014, the United States Supreme Court addressed the 
application of PSD permitting requirements to GHG emissions. Utility 
Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 
(2014). The Supreme Court held that the EPA may not treat GHGs as an 
air pollutant for purposes of determining whether a source is a major 
source required to obtain a PSD permit. The Court also held that the 
EPA could continue to require that PSD permits, otherwise required 
based on emissions of pollutants other than GHGs, (anyway sources) 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. 
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended 
judgment vacating the regulations that implemented Step 2 of the EPA's 
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations 
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers 
sources that are required to obtain a PSD permit based on emissions of 
pollutants other than GHGs. Step 2 applied to sources that emitted only 
GHGs above the thresholds triggering the requirement to obtain a PSD 
permit. The amended judgment preserves, without the need for additional 
rulemaking by the EPA, the application of the BACT requirement to GHG 
emissions from Step 1 or ``anyway sources.'' \3\ With respect to Step 2 
sources, the D.C. Circuit's amended judgment vacated the regulations at 
issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the 
extent they require a stationary source to obtain a PSD permit if 
greenhouse gases are the only pollutant (i) that the source emits or 
has the potential to emit above the applicable major source thresholds, 
or (ii) for which there is a significant emission increase from a 
modification.''
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    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition 
of ``anyway'' sources).
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    The EPA is planning to take additional steps to revise the federal 
PSD rules in light of the Supreme Court and subsequent D.C. Circuit 
opinion. Some states have begun to revise their existing SIP-approved 
PSD programs in light of these court decisions, and some states may 
prefer not to initiate this process until they have more information 
about the planned revisions to the EPA's PSD regulations. The EPA is 
not expecting states to have revised their PSD programs in anticipation 
of the EPA's planned actions to revise its PSD program rules in 
response to the court decisions.
    At present, the EPA has determined that North Dakota's SIP is 
sufficient to satisfy elements (C), (D)(i)(II) prong 3, and (J) with 
respect to GHGs because the PSD permitting program previously approved 
by the EPA into the SIP continues to require that PSD permits 
(otherwise required based on emissions of pollutants other than GHGs) 
contain limitations on GHG emissions based on the application of BACT. 
Although the approved North Dakota PSD permitting program may currently 
contain provisions that are no longer necessary in light of the Supreme 
Court decision, this does not render the infrastructure SIP submission 
inadequate to satisfy elements (C), (D)(i)(II) prong 3, and (J). The 
SIP contains the necessary PSD requirements at this time, and the 
application of those requirements is not impeded by the presence of 
other previously-approved provisions regarding the permitting of 
sources of GHGs that the EPA does not consider necessary at this time 
in light of the Supreme Court decision. Accordingly, the Supreme Court 
decision does not affect the EPA's proposed approval of North Dakota's 
infrastructure SIP as to the requirements of elements (C), (D)(i)(II) 
prong 3, and (J). Finally, we evaluate the PSD program with respect to 
current requirements for PM2.5. In particular, on May 16, 
2008, the EPA promulgated the rule, ``Implementation of the New Source 
Review Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (73 FR 28321) (2008 Implementation Rule). On 
October 20, 2010 the EPA promulgated the rule, ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). 
The EPA regards adoption of these PM2.5 rules as a necessary 
requirement when assessing a PSD program for the purposes of Element 
(C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a 
judgment that remanded

[[Page 29461]]

the EPA's 2007 and 2008 rules implementing the 1997 PM2.5 
NAAQS. The court ordered the EPA to ``repromulgate these rules pursuant 
to Subpart 4 consistent with this opinion.'' Id. at 437. Subpart 4 of 
part D, Title 1 of the CAA establishes additional provisions for 
particulate matter nonattainment areas.
    The 2008 Implementation Rule addressed by Natural Resources Defense 
Council, ``Implementation of New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5),'' (73 
FR 28321, May 16, 2008), promulgated NSR requirements for 
implementation of PM2.5 in nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the 
requirements of Subpart 4 only pertain to nonattainment areas, the EPA 
does not consider the portions of the 2008 Implementation Rule that 
address requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the court's opinion. Moreover, the EPA does not 
anticipate the need to revise any PSD requirements promulgated in the 
2008 Implementation Rule in order to comply with the court's decision. 
Accordingly, the EPA's proposed approval of North Dakota's 
infrastructure SIP as to Elements (C), (D)(i)(II) prong 3, and (J) with 
respect to the PSD requirements promulgated by the 2008 Ozone 
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation Rule also does not 
affect the EPA's action on the present infrastructure action. The EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in the 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA 
regards adoption of the PM2.5 increments as a necessary 
requirement when assessing a PSD program for the purposes of Element 
(C).
    As mentioned above, EPA previously approved a North Dakota SIP 
revision that revised the date of incorporation by reference of the 
federal PSD program to July 2, 2010 (77 FR 64736, Oct. 23, 2012). This 
SIP revision also addressed the requirements of the 2008 
PM2.5 NSR Implementation Rule. On January 1, 2012, the State 
submitted revisions to chapter 33-15-15-01.2, Scope, of the NDAC that 
adopted all elements of the 2010 PM2.5 Increment Rule by 
incorporating by reference the federal PSD program at 40 CFR part 52, 
section 21, as it existed on January 1, 2012. The submitted revisions 
make North Dakota's PSD program up to date with respect to current 
requirements for PM2.5. EPA approved the necessary portions 
of North Dakota's January 24, 2013 submission which incorporate the 
requirements of the 2010 PM2.5 Increment Rule on July 30, 
2013 (78 FR 45866). North Dakota's SIP-approved PSD program meets 
current requirements for PM2.5.
    Therefore, the EPA is proposing to approve North Dakota's 
infrastructure SIP for the 2010 SO2 and 2012 
PM2.5 NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a PSD permitting program in the SIP that covers 
the requirements for all regulated NSR pollutants as required by part C 
of the Act.
Minor NSR
    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program was originally 
approved by the EPA on August 21, 1995 (60 FR 43401). Since approval of 
the minor NSR program, the State and the EPA have relied on the program 
to assure that new and modified sources not captured by the major NSR 
permitting programs do not interfere with attainment and maintenance of 
the NAAQS.
    The EPA is proposing to approve North Dakota's infrastructure SIP 
for the 2010 SO2 and 2012 PM2.5 NAAQS with 
respect to the general requirement in section 110(a)(2)(C) to include a 
program in the SIP that regulates the enforcement, modification and 
construction of any stationary source as necessary to assure that the 
NAAQS are achieved.
    4. Interstate Transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) 
require each state to submit a SIP that prohibits emissions that will 
have certain adverse air quality effects in other states. CAA section 
110(a)(2)(D)(i) identifies four distinct elements related to the 
impacts of air pollutants transported across state lines. The two 
prongs under 110(a)(2)(D)(i)(I) require SIPs to contain adequate 
provisions to prohibit any source or other type of emissions activity 
within the state from emitting air pollutants that will contribute 
significantly to nonattainment in any other state with respect to any 
national primary or secondary NAAQS (prong 1), or interfere with 
maintenance by any other state with respect to the same NAAQS (prong 
2). The two elements under 110(a)(2)(D)(i)(II) require SIPs to contain 
adequate provisions to prohibit emissions that will interfere with 
measures required to be included in the applicable implementation plan 
for any other state under part C to prevent significant deterioration 
of air quality (prong 3) or to protect visibility (prong 4). In this 
action, the EPA is only addressing prongs 3 and 4 of CAA section 
110(a)(2)(D)(i). We will address prongs 1 and 2 for the 2010 
SO2 and 2012 PM2.5 NAAQS in a separate 
rulemaking.
A. Evaluation of Interference with Measures To Prevent Significant 
Deterioration (PSD)
    With regard to the PSD portion of section 110(a)(2)(D)(i)(II) 
(prong 3), this requirement may be met by a state's confirmation in an 
infrastructure SIP submission that new major sources and major 
modifications in the state are subject to a comprehensive EPA-approved 
PSD permitting program in the SIP that applies to all regulated NSR 
pollutants and that satisfies the requirements of the EPA's PSD 
implementation rules.\4\ As discussed in section VI.3 of this proposed 
action, North Dakota has such a PSD-permitting program.
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    \4\ See 2013 Guidance.
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    As stated in the 2013 Guidance, in-state sources not subject to PSD 
for any one or more of the pollutants subject to regulation under the 
CAA because they are in a nonattainment area for a NAAQS related to 
those particular pollutants may also have the potential to interfere 
with PSD in an attainment or unclassifiable area of another state. 
North Dakota does not contain any nonattainment areas. The 
consideration of nonattainment NSR for prong 3 is therefore not 
relevant as all major sources locating in the State are subject to PSD. 
As North Dakota's SIP meets structural PSD requirements for all 
regulated NSR pollutants, and North Dakota does not have any 
nonattainment areas, the EPA is proposing to approve the infrastructure

[[Page 29462]]

SIP submission as meeting the applicable requirements of prong 3 of 
section 110(a)(2)(D)(i) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
B. Evaluation of Interference With Measures To Protect Visibility
    The 2013 Guidance states that section 110(a)(2)(D)(i)(II)'s prong 4 
requirements can be satisfied by approved SIP provisions that the EPA 
has found to adequately address a state's contribution to visibility 
impairment in other states. The EPA interprets prong 4 to be pollutant-
specific, such that the infrastructure SIP submission need only address 
the potential for interference with protection of visibility caused by 
the pollutant (including precursors) to which the new or revised NAAQS 
applies. See 2013 Guidance at 33.
    The 2013 Guidance lays out two ways in which a state's 
infrastructure SIP submittal may satisfy prong 4. One way is through a 
state's confirmation in its infrastructure SIP submittal that it has an 
EPA-approved regional haze SIP in place that fully meets the 
requirements of 40 CFR 51.308 or 309. Alternatively, in the absence of 
a fully approved regional haze SIP, a state can make a demonstration in 
its infrastructure SIP submittal that emissions within its jurisdiction 
do not interfere with other states' plans to protect visibility. Such a 
submittal should point to measures in the SIP that limit visibility-
impairing pollutants and ensure that the resulting reductions conform 
to any mutually agreed emission reductions under the relevant regional 
haze regional planning organization (RPO) process.\5\
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    \5\ See 2013 Guidance at 34, and also 76 FR 22036 (April 20, 
2011) containing EPA's approval of the visibility requirement of 
110(a)(2)(D)(i)(II) based on a demonstration by Colorado that did 
not rely on the Colorado Regional Haze SIP.
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    Because of the often significant impacts on visibility from the 
interstate transport of pollutants, we interpret the provisions of CAA 
section 110(a)(2)(D)(i)(II) described above as requiring states to 
include in their SIPs measures to prohibit emissions that would 
interfere with the reasonable progress goals set under 40 CFR 51.308 or 
309 to protect Class I areas in other states. States working together 
through state-to-state consultations or a regional planning process are 
required to include in their regional haze SIPs all agreed upon 
measures or measures that will provide equivalent visibility 
improvement in the Class I areas of their neighbors. 40 CFR 
51.308(f)(2)(ii)(A). Given these requirements in the regional haze 
program we have concluded that a fully approved regional haze SIP 
satisfies the requirements of section 110(a)(2)(D)(i)(II) with respect 
to visibility.
    States worked through regional planning organizations (RPOs), such 
as the Western Regional Air Partnership (WRAP) in the case of North 
Dakota, to develop strategies to address regional haze. To help states 
in establishing reasonable progress goals, the RPOs modeled future 
visibility conditions. The modeling assumed emissions reductions from 
each state, based on extensive consultation among the states as to 
appropriate strategies for addressing haze. In setting reasonable 
progress goals, states generally relied on this modeling. As a result, 
we generally consider a SIP that ensures emission reductions 
commensurate with the assumptions underlying the reasonable progress 
goals to meet the visibility requirement of CAA section 
110(a)(2)(D)(i)(II).
    In its 2010 SO2 and 2012 PM2.5 infrastructure 
certifications, the State points to existing portions in the North 
Dakota SIP, specifically referencing the North Dakota Regional Haze SIP 
(NDAC 33-15-25), to certify that the State meets the visibility 
requirements of section 110(a)(2)(D)(i)(II). The State also references 
the PSD (NDAC 33-15-15) and Visibility Protection (NDAC 33-15-19) 
portions of its SIP, as well as the EPA's Regional Haze Federal 
implementation plan (FIP).\6\ For the 2012 PM2.5 
certification, the State also points to its five-year Progress Report 
for Regional Haze, submitted to the EPA in January 2015, which (per the 
State) ``indicates that the reasonable progress goals established in 
the SIP have been met (TRNP) or will likely be met (LWA),'' and that 
``the emissions reductions at EGUs required by the SIP. . . will be 
achieved or exceeded.'' \7\
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    \6\ The EPA's final action including a partial approval, partial 
disapproval and FIP of the North Dakota Regional Haze SIP was 
published in the Federal Register April 6, 2012 (77 FR 20894).
    \7\ The EPA notes that Theodore Roosevelt National Park (TRNP) 
and Lostwood Wilderness Area (LWA) are both located within North 
Dakota, and are therefore would not be included in a prong 4 
transport analysis. To date, the EPA has not taken any action on 
North Dakota's January 2015 Progress Report.
---------------------------------------------------------------------------

    In this action, we are proposing to find that the emissions 
reductions approved into North Dakota's Regional Haze SIP are 
sufficient to ensure that emissions from sources within the State do 
not interfere with the reasonable progress goals of Class I areas in 
nearby states. North Dakota participated in a regional planning process 
with the WRAP. In the regional planning process, North Dakota accepted 
and incorporated the WRAP-developed visibility modeling into its 
Regional Haze SIP, and the SIP included the controls and associated 
emission reductions assumed in the modeling.
    However, the EPA did not fully approve the North Dakota Regional 
Haze SIP, as we partially disapproved, among other elements, the 
State's selection of NOX Best Available Retrofit Technology 
(BART) controls for Great River Energy's Coal Creek Station. 77 FR 
20894 (April 6, 2012). As a result of our partial disapproval, North 
Dakota's SIP does not ensure the NOX emission reductions 
from Coal Creek Station that were assumed in the WRAP's visibility 
modeling, which nearby states relied on in setting their reasonable 
progress goals.\8\ This is relevant to the 2012 PM2.5 NAAQS, 
as NOX is a precursor for PM2.5. We note, 
however, that the North Dakota Regional Haze SIP also adopted 
reasonable progress NOX controls that were not included in 
the WRAP's modeling for Otter Tail Power Company's Coyote Station,\9\ 
as these controls were added as an amendment to the SIP over a year 
after the original SIP was submitted. See 77 FR 20944 (April 6, 2012). 
The EPA approved these controls into the North Dakota Regional Haze SIP 
as part of our April 6, 2012 final action. This SIP provision will 
reduce NOX emissions at Coyote Station by approximately 
4,213 tons per year, a larger decrease in emissions than the assumed 
NOX BART reductions for Coal Creek Station of approximately 
3,214 tons per year. See 76 FR 58603 and 58628 (September 21, 2011). As 
the Coal Creek and Coyote stations are roughly 32 miles apart, and the 
Coyote Station is about 15-20 miles closer than Coal Creek to the 
nearest out of state Class I areas, the visibility impacts from 
NOX emission reductions at Coyote on out-of-state Class I 
areas would be similar and potentially greater than those from Coal 
Creek.\10\ The State can rely on the Coyote reasonable progress 
reductions to demonstrate that emissions within the jurisdiction 
conform to the mutually-agreed regional haze reductions and associated 
reasonable progress goals because they are approved into the SIP.
---------------------------------------------------------------------------

    \8\ The EPA notes that we also disapproved and promulgated a FIP 
for the State's reasonable progress determination for Basin 
Electric's Antelope Valley Station.
    \9\ http://www.wrapair.org/forums/ssjf/pivot.html.
    \10\ Medicine Lake Wilderness, in Montana, is roughly 144 miles 
from Coyote and roughly 164 miles from Coal Creek. The Badlands/Sage 
Creek Wilderness in South Dakota is roughly 230 miles from Coyote 
and roughly 245 miles from Coal Creek.
---------------------------------------------------------------------------

    Because the reductions in North Dakota's approved Regional Haze SIP 
are greater than those assumed by the WRAP modeling, and it is 
reasonable to

[[Page 29463]]

find that the emission reductions provide the agreed upon visibility 
improvements in affected Class I areas, the EPA is proposing to find 
that North Dakota's SIP includes controls sufficient to address the 
relevant requirements related to impacts on Class I areas in other 
states for the 2012 PM2.5 NAAQS.
    With regard to the 2010 SO2 NAAQS, it is appropriate for 
the State to rely on the Regional Haze SIP approval for the purposes of 
prong 4, as the EPA approved all of the State's SO2 BART and 
reasonable progress determinations. The EPA is therefore proposing to 
find that North Dakota's SIP includes controls sufficient to address 
the relevant requirements related to impacts on Class I areas in other 
states for the 2010 SO2 NAAQS.
    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    Section 126(a) of the CAA requires notification to affected, nearby 
states of major proposed new (or modified) sources. Sections 126(b) and 
(c) pertain to petitions by affected states to the Administrator of the 
EPA (Administrator) regarding sources violating the ``interstate 
transport'' provisions of section 110(a)(2)(D)(i). Section 115 of the 
CAA similarly pertains to international transport of air pollution.
    With regard to section 126(a), North Dakota's SIP-approved PSD 
program requires notice of proposed new sources or modifications to 
states whose lands may be significantly affected by emissions from the 
source or modification (see NDAC 33-15-15-01.2(q)(2)(d)). This 
provision satisfies the notice requirement of section 126(a).
    North Dakota has no pending obligations under sections 126(c) or 
115(b); therefore, its SIP currently meets the requirements of those 
sections. In summary, the SIP meets the requirements of CAA section 
110(a)(2)(D)(ii) for the 2010 SO2 and 2012 PM2.5 
NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide ``necessary assurances that the state [. . .] will have 
adequate personnel, funding, and authority under State law to carry out 
[the SIP] (and is not prohibited by any provision of Federal or State 
law from carrying out the SIP or portion thereof).'' Section 
110(a)(2)(E)(ii) also requires each state to ``comply with the 
requirements respecting state boards'' under CAA section 128. Section 
110(a)(2)(E)(iii) requires states to provide ``necessary assurances 
that, where the State has relied on a local or regional government, 
agency, or instrumentality for the implementation of any [SIP] 
provision, the State has responsibility for ensuring adequate 
implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    NDCC 23-25-03 provides adequate authority for the State of North 
Dakota and the Department to carry out its SIP obligations with respect 
to the 2010 SO2 and 2012 PM2.5 NAAQS. The State 
receives section 103 and 105 grant funds through its Performance 
Partnership Grant from the EPA along with required state matching funds 
to provide funding necessary to carry out North Dakota's SIP 
requirements. North Dakota's resources meet the requirements of CAA 
section 110(a)(2)(E).
    With respect to section 110(a)(2)(E)(iii), the regulations cited by 
North Dakota in their certifications and verified through additional 
communication \11\ (NDCC 23-25-02(01), 33-15-04-02, 23-01-05(02), 23-
25-03(5), and 23-25-10) and contained within this docket also provide 
the necessary assurances that the State has responsibility for adequate 
implementation of SIP provisions. Therefore, we propose to approve 
North Dakota's SIP as meeting the requirements of section 
110(a)(2)(E)(i) and (E)(iii) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
---------------------------------------------------------------------------

    \11\ See Email from Tom Bachman ``Request for Clarifications_ND 
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13, 
2015, available within docket.
---------------------------------------------------------------------------

b. Sub-Element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
That provision contains two explicit requirements: (i) That any board 
or body which approves permits or enforcement orders under the CAA 
shall have at least a majority of members who represent the public 
interest and do not derive a significant portion of their income from 
persons subject to such permits and enforcement orders; and (ii) that 
any potential conflicts of interest by members of such board or body or 
the head of an executive agency with similar powers be adequately 
disclosed.
    On July 30, 2013 (78 FR 45866) the EPA approved revised language in 
North Dakota's SIP, chapter 2, section 15, Respecting Boards to include 
provisions for addressing conflict of interest requirements. Details on 
how this portion of chapter 2, section 15 rules meet the requirements 
of section 128 are provided in our May 13, 2013 proposal notice (78 FR 
27898). North Dakota's SIP continues to meet the requirements of 
section 110(a)(2)(E)(ii), and we propose to approve the infrastructure 
SIP for the 2010 SO2 and 2012 PM2.5 NAAQS for 
this element.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires: (i) ``the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources; (ii) periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources; and (iii) correlation of 
such reports by the State agency with any emission limitations or 
standards established pursuant to [the Act], which reports shall be 
available at reasonable times for public inspection.''
    Furthermore, North Dakota is required to submit emissions data to 
the EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is the EPA's central repository for air emissions data. The EPA 
published the Air Emissions Reporting Rule (AERR) on December 5, 2008, 
which modified the requirements for collecting and reporting air 
emissions data (73 FR 76539). The AERR shortened the time states had to 
report emissions data from 17 to 12 months, giving states one calendar-
year to submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and their associated precursors--nitrogen oxides, 
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. North Dakota made its latest 
update to the NEI on January 10 2017. The EPA compiles the emissions 
data, supplementing it where necessary, and releases it to the general 
public through the Web site https://www.epa.gov/air-emissions-inventories.
    Based on the analysis above, we propose to approve the North Dakota 
SIP as meeting the requirements of CAA

[[Page 29464]]

section 110(a)(2)(F) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303] and adequate contingency plans to implement such 
authority.''
    Under CAA section 303, the EPA Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment.\12\ If such action may not practicably assure prompt 
protection, then the Administrator has authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if the EPA subsequently 
files a civil suit.
---------------------------------------------------------------------------

    \12\ A discussion of the requirements for meeting CAA section 
303 is provided in our notice of proposed rulemaking: Promulgation 
of State Implementation Plan Revisions; Infrastructure Requirements 
for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 
2010 NO2 National Ambient Air Quality Standards; South 
Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State 
Submittals, 8. Emergency powers.''
---------------------------------------------------------------------------

    Chapter 23-25 of the NDCC provides relevant language and authority 
for ``Air Pollution Control.'' The purpose of this chapter is ``to 
achieve and maintain the best air quality possible'' and to ``protect 
human health, welfare and property, [and] prevent injury to plant and 
animal life'' (NDCC 23-25-01(2)). NDCC 23-25-01 defines ``air 
pollution'' as ``the presence in the outdoor atmosphere of one or more 
air contaminants in such quantities and duration as is or may be 
injurious to human health, welfare, or property, animal or plant life, 
or which unreasonably interferes with the enjoyment of life or 
property.'' As such, the chapter aims to protect all three areas 
required by section 303; human health, welfare, and environment. The 
``Air Pollution Control'' chapter provides general grants of authority 
to maintain actions in certain situations. We find these grants provide 
comparable authority to that provided in Section 303. Furthermore, the 
NDAC 33-15-01-15(1) makes it unlawful to ``permit or cause air 
pollution'' as defined in NDCC 23-25-01. A person causing or 
contributing to emissions that endanger public health, welfare, or the 
environment, would be causing ``air pollution'' within the meaning of 
North Dakota law, and would therefore be in violation of NDAC 33-15-01-
15(1). This could occur in either an emergency or non-emergency 
situation.\13\
---------------------------------------------------------------------------

    \13\ See Email from Tom Bachman ``Request for Clarifications_ND 
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13, 
2015, available within docket.
---------------------------------------------------------------------------

    NDCC 23-25-10(5) provides that ``the department has the authority 
to maintain an action in the name of the state against any person to 
enjoin any threatened or continuing violation of any provision of this 
chapter or any permit condition, rule, order, limitation, or other 
applicable requirement implementing this chapter.'' Under NDCC 23-25-
10(5), the Department has the authority to bring an action to enjoin a 
violation of NDCC 23-25 or its rules. The Department may seek a court 
order to restrain a source from causing or contributing to emissions 
that endanger public health, welfare, or the environment. In an 
emergency, this may take the form of an injunction or temporary 
restraining order (see NDCC 32-06-02).\14\ Therefore, the NDDH has the 
authority to seek judicial actions during emergency situations.
---------------------------------------------------------------------------

    \14\ See Email from Tom Bachman ``Request for Clarifications_ND 
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13, 
2015, available within docket.
---------------------------------------------------------------------------

    North Dakota's statutes also provide the NDDH with the authority to 
issue administrative orders and emergency rules to protect the public 
health, welfare, and the environment under certain circumstances. NDCC 
23-25-08, as cited in North Dakota's SIP submittals, authorizes that in 
the event of ``an emergency requiring immediate action to protect the 
public health and safety,'' the NDDH has the authority to ``issue an 
order reciting the existence of such emergency and requiring that such 
action be taken as is necessary'' to meet the emergency. The emergency 
order is effective immediately. Any person who violates the order is 
subject to enforcement, penalties, and injunctions under NDCC 23-25-10.
    Furthermore, as cited in North Dakota's SIP submittals, the NDDH 
has the authority to ``use an emergency adjudicative proceeding, in its 
discretion, in an emergency situation involving imminent peril to the 
public health, safety, or welfare'' (NDCC 28-32-32). Accordingly, ``in 
an emergency, the administrative agency may take action pursuant to a 
specific statute as is necessary to prevent or avoid imminent peril to 
the public health, safety, or welfare'' (NDCC-28-32-32.1). In the 
absence of a specific statute requiring other administrative action, 
``the administrative agency shall issue an order'' (NDCC 28-32-32(4)).
    Further supplemental authority is found in a broad provision, cited 
by the State in their SIP submittals, granting additional authority to 
the NDDH. The NDDH has the authority to ``[i]ssue such orders as may be 
necessary to effectuate the purposes'' of the ``Air Pollution Control'' 
chapter NDCC 23-25-03.5. These orders can be enforced ``by all 
appropriate administrative and judicial procedures'' (NDCC 23-25-03.5). 
Thus, this broad grant of authority includes the authority to issue 
administrative orders during air pollution emergencies which would 
disrupt protection of human health, welfare, and animal and plant life.
    The combination of NDCC and NDAC provisions discussed above provide 
for authority comparable to section 303 to immediately bring suit to 
restrain, issue emergency orders against, and use special rule adoption 
procedures for applicable emergencies to take prompt administrative 
action against, any person causing or contributing to air pollution 
that presents an imminent and substantial endangerment to public health 
or welfare, or the environment. We propose that they are sufficient to 
meet the authority requirement of CAA section 110(a)(2)(G).
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). This can be done by submitting a plan that meets the 
applicable requirements of 40 CFR part 51, subpart H for the relevant 
NAAQS if the NAAQS is covered by those regulations.
    Subpart H of 40 CFR part 51 requires states to classify regions and 
to develop contingency plans (also known as emergency episode plans) 
after ambient concentrations of certain criteria pollutants in an area 
have exceeded specified levels. For example, if ambient concentrations 
of nitrogen dioxide in an area have exceeded 0.06 ppm (annual 
arithmetic mean), then the area is classified as a Priority I region, 
and the state must develop a contingency plan that meets the 
requirements of sections 51.151 and 51.152. North Dakota has not 
monitored any values above the priority cut point for PM2.5.
    Prevention of air pollution emergency episodes is addressed in 
Section 5 of North Dakota's SIP and was approved on May 31, 1972 (37 FR 
10842). We find that North Dakota's air pollution emergency provisions 
establish stages of episode criteria (Section 5.2), provide for public 
announcement whenever any episode stage has been determined to exist 
(Section 5.3), and specify emission control actions to be taken at each 
episode stage (Section 5.5) consistent with the EPA emergency episode 
SIP requirements set forth at 40 CFR part 51, subpart H (prevention of 
air pollution emergency episode).

[[Page 29465]]

    Based on the above analysis, we propose approval of North Dakota's 
SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 
2010 SO2 and 2012 PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) ``[f]rom time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard[;] and (ii) 
except as provided in paragraph (3)(C), whenever the Administrator 
finds on the basis of information available to the Administrator that 
the [SIP] is substantially inadequate to attain the [NAAQS] which it 
implements or to otherwise comply with any additional requirements 
under this [Act].''
    Chapters 23-25-03.8 and 23-25-03.12 of the NDCC and section 1.14 of 
the North Dakota SIP, give the Department sufficient authority to meet 
the requirements of CAA section 110(a)(2)(H). Therefore, we propose to 
approve North Dakota's SIP as meeting the requirements of CAA section 
110(a)(2)(H).
    10. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to PSD of 
air quality and visibility protection).''
    The State has demonstrated it has the authority and rules in place 
through its certifications (contained within this docket) to provide a 
process of consultation with general purpose local governments, 
designated organizations of elected officials of local governments and 
any Federal Land Manager having authority over federal land to which 
the SIP applies, consistent with the requirements of CAA section 121. 
Furthermore, the EPA previously addressed the requirements of CAA 
section 127 for the North Dakota SIP and determined public notification 
requirements are appropriate (45 FR 53475, Aug. 12, 1980).
    As discussed above, the State has a SIP-approved PSD program that 
incorporates by reference the Federal program at 40 CFR 52.21. The EPA 
has further evaluated North Dakota's SIP approved PSD program in this 
proposed action under element (C) and determined the State has 
satisfied the requirements of element 110(a)(2)(C), as noted above. 
Therefore, the State has also satisfied the requirements of element 
110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility 
protection, the EPA recognizes states are subject to visibility and 
regional haze program requirements under part C of the Act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the North Dakota 
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 
2010 SO2 and 2012 PM2.5 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP to provide for: (i) ``the performance of such air quality 
modeling as the Administrator may prescribe for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
air pollutant for which the Administrator has established a [NAAQS]; 
and (ii) the submission, upon request, of data related to such air 
quality modeling to the Administrator.''
    North Dakota's PSD program requires estimates of ambient air 
concentrations be based on applicable air quality models specified in 
Appendix W of 40 CFR part 51, and incorporates by reference the 
provisions at 40 CFR 52.21(I)(2) requiring that modification or 
substitution of a model specified in Appendix W must be approved by the 
Administrator (see NDAC 33-15-14-02.4 and NDAC 33-15-15-01.2). Section 
7.7, Air Quality Modeling, of North Dakota's SIP commits the Department 
to performing air quality modeling to predict the impact of a source on 
air quality, and providing data to the EPA upon request. As a result, 
the SIP provides for such air quality modeling as the Administrator has 
prescribed. Therefore, we propose to approve the North Dakota SIP as 
meeting CAA section 110(a)(2)(K) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires ``the owner or 
operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under this [Act], a 
fee sufficient to cover[:] (i) The reasonable costs of reviewing and 
acting upon any application for such a permit[;] and (ii) if the owner 
or operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under [title] V.''
    NDAC 33-15-23 and NDCC 23-25-04.2, require applicants of 
construction permits to pay the costs for the Department to review and 
act on the permit applications. We also note that fees collected under 
North Dakota's approved title V permit program (64 FR 32433, Aug. 16, 
1999) are sufficient to implement and enforce the program. Therefore, 
we propose to approve the submissions as submitted by the State for the 
2010 SO2 and 2012 PM2.5 NAAQS.
    13. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to ``provide for consultation and 
participation [in SIP development] by local political subdivisions 
affected by [the SIP].''
    The nonregulatory provision in Chapter 10 of North Dakota's SIP, 
Intergovernmental Cooperation, meets the requirements of CAA section 
110(a)(2)(M). We propose to approve North Dakota's SIP as meeting these 
requirements for the 2010 SO2 and 2012 PM2.5 
NAAQS.

VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure 
elements for the 2010 SO2 and 2012 PM2.5 NAAQS 
from the State's certifications as shown in Table 1. Elements we 
propose no action on are reflected in Table 2.

Table 1--List of North Dakota Infrastructure Elements and Revisions That
                     the EPA Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
March 7, 2013 submittal--2010 SO2 NAAQS: (A), (B), (C), (D)(i)(II)
 prongs 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
August 23, 2015 submittal--2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II)
 prongs 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
------------------------------------------------------------------------


[[Page 29466]]


Table 2--List of North Dakota Infrastructure Elements and Revisions That
                the EPA Is Proposing To Take No Action On
------------------------------------------------------------------------
   Proposed for no action (Revision to be made in separate rulemaking
                                 action)
-------------------------------------------------------------------------
March 7, 2013 submittal--2010 SO2 NAAQS: (D)(i)(I) prongs 1 and 2.
August 23, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(I) prongs 1 and 2.
------------------------------------------------------------------------

VIII. 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, the 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; 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, Oct. 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, Aug. 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 the 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, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 14, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-13667 Filed 6-28-17; 8:45 am]
BILLING CODE 6560-50-P