[Federal Register Volume 82, Number 144 (Friday, July 28, 2017)]
[Proposed Rules]
[Pages 35153-35155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15978]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2017-0019; FRL-9965-37-Region 8]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 
approval of State Implementation Plan (SIP) revisions received from the 
State of North Dakota on January 28, 2013, and April 22, 2014. The 
revisions are to Article 33-15 ``Air Pollution Control'' rules of the 
North Dakota Administrative Code. The revisions include amendments to 
add EPA Reference Method 22 to determine compliance with a visible 
emissions limit, add significance levels for PM2.5, modify 
existing significance levels for NO2 and SO2 and 
remove the significance level for PM10. This action is being 
taken under section 110 of the Clean Air Act (CAA).

DATES: Written comments must be received on or before August 28, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2017-0019 at http://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: Jaslyn Dobrahner, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6252, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    What should I consider as I prepare my comments for EPA?
    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the EPA through http://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

[[Page 35154]]

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

    On January 28, 2013, the State of North Dakota submitted a SIP 
revision containing amendments to Article 33-15 Air Pollution Control 
rules. We approved some of these revisions on October 21, 2016 (81 FR 
72716). The remaining amendments include the following: A new rule that 
would give the State authority to issue general permits, revisions to 
significance levels and a revision to the prevention of significant 
deterioration (PSD) rules. This action addresses the revisions to 
significance levels. We will address the new general permit rule and 
the revision to the PSD rules in a separate action. The North Dakota 
State Health Council adopted the amendments on August 14, 2012 
(effective January 1, 2013).
    On April 22, 2014, the State of North Dakota submitted a SIP 
revision containing amendments to Article 33-15 Air Pollution Control 
rules. We approved some of these revisions on October 21, 2016 (81 FR 
72716). The remaining amendment adds EPA Reference Method 22 for 
determining opacity for limits expressed as zero percent opacity. The 
North Dakota State Health Council adopted the amendments on February 
11, 2014 (effective April 1, 2014).

III. EPA's Review of the State of North Dakota's January 28, 2013 and 
April 22, 2014 Submittals

    We evaluated North Dakota's January 28, 2013, and April 22, 2014 
submittals regarding revisions to the State's Air Pollution Control 
rules as described in section II. We propose to approve all of the 
revisions under consideration in this proposed rulemaking.

A. January 28, 2013 SIP Submittal

    We propose to approve PM2.5 concentration levels (0.3 
[mu]g/m\3\ annual and 1.2 [mu]g/m\3\ 24-hour averaging time) the State 
added to 33-15-14-02.5.a in their January 2013 submittal. These 
PM2.5 values are the same as those in 40 CFR 51.165(b)(2) 
and are used in the same manner, i.e., a source ``will be considered to 
cause or contribute to a violation of an ambient air quality standard'' 
when such source ``would, at a minimum, exceed the [listed] 
significance levels at any locality that does not or would not meet the 
applicable ambient standard.'' We also propose to approve revised 
significance levels for SO2 and NO2 (one-hour 
averaging time) contained in the State's January 2013 revisions to 33-
15-14-02.5.a (SO2 one-hour significance level revised from 
25 to 7.8 [mu]g/m\3\ and NO2 one-hour significance level 
revised from 25 to 7.5 [mu]g/m\3\). These revised SO2 and 
NO2 one-hour significance levels, although not listed in 40 
CFR 51.165(b)(2), are consistent with our recommendations in guidance 
documents 1 2 and strengthen the SIP. We note that the state 
regulation does not provide that a source with an impact below any of 
these significance levels is deemed to have demonstrated that it does 
not cause or contribute to a violation of the NAAQS. Thus, the rules 
that the EPA proposes to approve do not have an effect like those in 40 
CFR 51.166(k)(2) and 52.21(k)(2) that were vacated and remanded by the 
U.S. Circuit Court of Appeals (Sierra Club v. EPA, 705 F.3d 458, 466 
(D.C. Cir. 2013)).
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    \1\ U.S. EPA Memo, General Guidance for Implementing the 1-hour 
SO2 National Ambient Air Quality Standard in Prevention of 
Significant Deterioration Permits, Including an Interim 1-hour SO2 
Significant Impact Level, August 23, 2010.
    \2\ U.S. EPA Memo, General Guidance for Implementing the 1-hour 
NO2 National Ambient Air Quality Standard in Prevention of 
Significant Deterioration Permits, Including an Interim 1-hour NO2 
Significant Impact Level, June 28, 2010.
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    Our proposed approval of the revisions to the State's significance 
levels at 33-15-14-02.5.a extends only to the use of these significance 
levels for the purpose stated in 40 CFR 51.165(b)(2). That is to 
determine that a major source or major modification will be considered 
to cause or contribute to a violation of a NAAQS when such source or 
modification would, at a minimum, exceed a significance level at any 
locality that does not or would not meet the applicable national 
standard.
    In this same section, the State also removed the annual 
PM10 significance level in 33-15-14-02.5.a. The annual 
PM10 NAAQS was revoked in 2006 (71 FR 61144). North Dakota 
does not currently have any nonattainment areas for the annual 
PM10 NAAQS. Thus, we propose to approve this revision.

B. April 22, 2014 SIP Submittal

    The State's April 22, 2014 SIP submittal explains that the State 
added the EPA Reference Method 22 to the SIP,\3\ which the State will 
use to determine compliance with a visible emissions limit specified in 
a permit issued as zero percent opacity except for a certain frequency.
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    \3\ State of North Dakota SIP Submittal Package (April 22, 
2014), at PDF page 10.
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    In 33-15-03-05, Method of Measurement, the State added EPA 
Reference Method 22 of Appendix A (``Visual Determination of Fugitive 
Emissions from Material Sources and Smoke Emissions from Flares'') 
adopted by reference in chapter 33-15-12, Standards of Performance for 
New Stationary Sources. This test method is used to determine the 
frequency of fugitive emissions from stationary sources and the 
frequency of visible smoke emissions from flares. Chapter 33-15-12 of 
the State's rules incorporates by reference 40 CFR part 60, appendix A, 
Test Methods as of July 1, 2015. The State's new rule specifies that 
Method 22 is applicable when ``a visible emission limit is specified in 
a permit issued in accordance with this article as zero percent opacity 
except for certain frequency''. 33-15-03-05.2. The ``frequency'' of 
fugitive emissions refers to the length of time that fugitive emissions 
will be visible over a specified time interval (i.e., one minute every 
30 minutes, five minutes in two hours, etc.). Thus, a permit may 
specify zero percent opacity except for a certain frequency or length 
of time fugitive emissions may be observed over a specified time 
interval. The State's SIP rule does not make any substantive changes to 
Method 22, it merely incorporates the method into the SIP and allows it 
to be used to demonstrate compliance for sources that are subject to 
Article 15, ``Air Pollution Control Rules.'' We propose to approve of 
the State's incorporation of Method 22 from

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40 CFR part 60, appendix A into the SIP because this allows for use of 
an EPA test method when specified in a permit issued in Article 15. 
Method 22 can be used for a variety of purposes, including 
determination of fugitive (non-stack) emissions and visible emissions 
from stationary sources (stacks) depending on the applicable emission 
standards \4\ and State permit requirements.
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    \4\ U.S. EPA Question and Answer Document. EPA Method 22--Visual 
Determination of Fugitive Emissions. https://www3.epa.gov/ttn/atw/area/method22qa.doc.
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IV. What action is the EPA taking?

    For the reasons expressed in III.A and III.B, the EPA is proposing 
to approve the following revisions, shown in Table 1, to the State's 
Air Pollution Control rules.

  Table 1--List of North Dakota Revisions that the EPA is Proposing to
                                 Approve
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   Revised sections in January 28, 2013 and April 22, 2014 submissions
                          proposed for approval
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January 28, 2013 submittal: 33-15-14-02.5.a
April 22, 2014 submittal: 33-15-03-05.2
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V. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference North Dakota Administrative Code as described in section IV. 
of this preamble. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and/or at the 
EPA Region 8 Office (please contact the person identified in the ``For 
Further Information Contact'' section of this preamble for more 
information).

VI. 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, 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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where 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: July 13, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-15978 Filed 7-27-17; 8:45 am]
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