[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)]
[Proposed Rules]
[Pages 50865-50867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21948]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2018-0616; FRL-9984-79-Region 8]


Approval and Promulgation of State Implementation Plans; North 
Dakota; Revisions to Infrastructure Requirements for All National 
Ambient Air Quality Standards; Carbon Monoxide (CO); Lead (Pb); 
Nitrogen Dioxide (NO2); Ozone (O3); Particle Pollution (PM2.5, PM10); 
Sulfur Dioxide (SO2); Recodification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the North Dakota State Implementation Plan (SIP) 
for all National Ambient Air Quality Standards (NAAQS) for the purposes 
of transferring authority from the North Dakota Department of Health 
(NDDH) to the North Dakota Department of Environmental Quality (NDDEQ). 
We are also proposing to approve the related recodification of the 
portions of North Dakota's Air Pollution Rules that have been 
previously approved into the SIP. The EPA is taking this action 
pursuant to section 110 of the Clean Air Act (CAA).

DATES: Written comments must be received on or before November 9, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2018-0616, to the Federal Rulemaking Portal: https://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.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. The 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: Kate Gregory, Air Program, EPA, Region 
8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, 
(303) 312-6175, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    The North Dakota state legislature created a new NDDEQ in 2017.\1\ 
The NDDEQ will assume all the duties and responsibilities of the NDDH's 
Environmental Health Section. To accommodate the new NDDEQ, the North 
Dakota Air Pollution Control Law was recodified in the North Dakota 
Century Code (NDCC) as NDCC 23.1-06 and the Air Pollution Rules were 
recodified in the North Dakota Administrative Code (NDAC) as NDAC 33.1-
15.
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    \1\ North Dakota Senate Bill 2327.
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    Among the duties of the new NDDEQ is the implementation and 
enforcement of North Dakota's SIP. The basic requirements for a state 
agency with respect to its authority and ability to implement and 
enforce a SIP are provided in the ``infrastructure'' elements of CAA 
section 110(a)(2). After the promulgation of a new or revised NAAQS, 
states must submit an ``infrastructure'' SIP to address the relevant 
elements of section 110(a)(2). The EPA has issued guidance to states on 
how to meet these elements in their infrastructure SIP submissions, and 
the guidance specifically identifies elements for which states should 
show they have the proper authority.\2\
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    \2\ Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2), 
September 2013. For additional details on the EPA's general 
interpretation of the requirements under sections 110(a)(1) and 
110(a)(2) and approach to review of infrastructure SIPs, please see 
82 FR 29457, 29458-59 (June 29, 2017).
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    Prior to the creation of NDDEQ, the NDDH submitted several 
infrastructure SIP revisions to address the promulgation and revision 
of various NAAQS. The EPA approved these in several actions and by 
approving these actions, we determined that NDDH met, among other 
things, the relevant requirements in section 110(a)(2) with respect to 
NDDH's authority and ability to implement and enforce North Dakota's 
SIP.\3\
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    \3\ See, for example, 82 FR 46681 (October 6, 2017), 80 FR 60540 
(October 7, 2015), 78 FR 45866 (July 30, 2013).
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    On August 6, 2018, the state submitted a revision to their prior 
infrastructure SIPs to address the transfer of authority from the NDDH 
Environmental Health Section to the NDDEQ. The state also submitted the 
recodified Air Pollution Rules that had been previously adopted into 
the SIP. The state held a public hearing regarding the transfer of 
authority on June 5, 2018.\4\ No comments were received during both the 
public hearing and the public comment period regarding the proposed 
changes.
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    \4\ ND iSIP Revision Submission, p.17.
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II. The EPA's Evaluation

    North Dakota's SIP submittal addresses the transfer of authority as 
follows. First, the submittal identifies the citations to the NDCC and 
NDAC contained in previous infrastructure SIP submittals that the EPA 
has approved. The submittal provides a crosswalk with references to the 
recodified NDCC and NDAC to show the new location of these 
authorities.\5\ The submittal also quotes a specific provision of 
Senate Bill 2327 that provides, among other things, that all ``orders, 
determinations, and permits'' made by NDDH before the transfer of 
authority remain in effect. Finally, the submittal notes that NDDEQ 
will be funded and staffed at the same level as the Environmental 
Health Division in NDDH previously was.
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    \5\ A version of this crosswalk created by the EPA is also 
provided in the docket for this rulemaking.
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    For purposes of the transfer of authority, we note the following 
elements of section 110(a)(2) as particularly relevant:
     110(a)(2)(B): Authority to operate an ambient air quality 
monitoring network;

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     110(a)(2)(C): Authority to enforce the SIP;
     110(a)(2)(C): Authority to regulate the modification and 
construction of stationary sources to assure the NAAQS are achieved 
(known as minor new source review);
     110(a)(2)(C): Authority to implement a permit program as 
required in part C of title I of the Act (known as prevention of 
significant deterioration);
     110(a)(2)(E)(i): Adequate personnel, funding, and 
authority to carry out the implementation plan;
     110(a)(2)(F): Authority to require installation, 
maintenance, and replacement of monitoring equipment by stationary 
sources; to require periodic reporting on emissions from such sources; 
and to correlate such reports with emission limitations;
     110(a)(2)(G): Authority comparable to that in CAA section 
303 (emergency authority to restrain pollution presenting an imminent 
and substantial endangerment);
     110(a)(2)(H): Authority to revise the SIP as necessary;
     110(a)(2)(J): Authority to provide public notification as 
required under CAA section 127;
     110(a)(2)(K): Authority to require such air quality 
modeling as prescribed by the Administrator and to submit modeling data 
on request to the Administrator; and
     110(a)(2)(L): Authority to require permitting fees.

These elements are described in detail in the 2013 guidance cited 
above. As the recodification of the NDCC and NDAC leave the substance 
of the relevant provisions cited in the submittal unmodified, the 
reasons that we have previously approved NDDH as having sufficient 
legal authority to address each of these and other infrastructure 
elements continue to apply. Please see the previous approval notices 
for details of those reasons, which we propose to adopt in this action.
    With respect to enforcement and implementation of permits and 
enforcement orders that were previously issued under the SIP by NDDH, 
we propose that the language in Senate Bill 3727 quoted in the SIP 
submittal adequately addresses the authority of NDDEQ to continue to 
enforce and implement those permits and enforcement orders. Finally, as 
we have previously approved the state's infrastructure SIP as 
containing the necessary assurances that NDDH had adequate personnel 
and funding, and NDDEQ will continue at the same levels of personnel 
and funding, we propose that the requirements in 110(a)(2)(E)(i) 
regarding personnel and funding are met.
    As part of the SIP submittal, in Section VI, the state provided an 
opinion from the North Dakota Attorney General. The opinion addresses 
the fundamental SIP legal authorities enumerated in 40 CFR 51.230, 
which consists of authority to:
     Adopt emission standards, limitations, and other control 
measures as necessary for attainment and maintenance of the NAAQS;
     Enforce SIP provisions, including seeking injunctive 
relief;
     Abate emission on an emergency basis to prevent 
substantial endangerment;
     Prevent construction, modification, or operation of a 
facility that may result in emissions that prevent attainment and 
maintenance of the NAAQS;
     Obtain information necessary to determine compliance with 
the SIP, including authority to require recordkeeping, make 
inspections, and conduct tests; and
     Require owners or operators of stationary sources to 
install, maintain, and operate monitoring devices and make periodic 
reports to the state on emissions from the sources.
    The Attorney General's opinion cites the specific provisions of 
state law that provide these fundamental authorities. Based on this 
opinion, and the revisions to the state's infrastructure SIP discussed 
above, the EPA proposes to approve the transfer of authority embodied 
in the state's submittal.
    Finally, Section IV of the submittal contains the recodified Air 
Pollution Rules that have been previously approved into North Dakota's 
SIP.\6\ North Dakota's submittal indicates that the state is not 
resubmitting the entire SIP. Instead, the state is only updating the 
numbering of the provisions that have previously been approved into the 
SIP, as well as replacing the obsolete references to the NDDH with 
references to the NDDEQ. In this case, our review is limited to the 
renumbering and name change, and not the substance of the rules.\7\ We 
therefore propose to approve the recodification and change in name as 
appropriate and consistent with the transfer of authority. Our proposed 
approval is limited to the recodification and change in name and does 
not re-approve the substantive rules in North Dakota's SIP.
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    \6\ For purposes of cross-referencing a recodified provision 
with its previous version, we note that the recodification followed 
a consistent scheme: All rules previously codified as 33-15-xx-xx 
are now codified as 33.1-15-xx-xx.
    \7\ See ``Review of State Regulation Recodification,'' 
Memorandum from Johnnie L. Pearson to Air Branch Chiefs, Regions I-
X, Feb. 12, 1990.
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    All revisions to the North Dakota SIP would be federally 
enforceable as of the effective date of the EPA's approval of this 
submission. The state plans to rely on the date when the EPA signs the 
final notice for purposes of notifying the state legislature that the 
EPA has approved these revisions, which will provide for the transfer 
authority from NDDH to NDDEQ to be effective under state law. Prior to 
the effective date of this approval, the state intends to take the 
necessary additional steps as specified in S.L. 2017, ch. 199, Section 
1, to ensure that NDDEQ rules and the NDDEQ would become federally 
enforceable on the effective date of the EPA's approval. Unless and 
until the NDDEQ rules and agency become fully effective under federal 
law, for purposes of federal law the EPA recognizes the state's program 
as currently approved under the NDDH.

III. Proposed Action

    We are proposing to approve the August 18, 2018 revisions to the 
North Dakota infrastructure SIP, for all NAAQS, for the purposes of the 
transfer of authority from NDDH to the NDDEQ. We are also proposing to 
approve the corresponding recodification of the entire SIP.

IV. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the NDDEQ rules discussed in section II of 
this preamble. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 8 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting federal 
requirements and does not impose additional requirements

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beyond those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, 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 
proposed 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, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

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

    Dated: October 3, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.
[FR Doc. 2018-21948 Filed 10-9-18; 8:45 am]
 BILLING CODE 6560-50-P