[Federal Register Volume 85, Number 55 (Friday, March 20, 2020)]
[Proposed Rules]
[Pages 16027-16029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05673]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2019-0689; FRL-10006-14-Region 8]
Approval and Promulgation of Air Quality Implementation Plans;
North Dakota; Revisions to Permitting Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In accordance with section 110 of the Clean Air Act (CAA), the
Environmental Protection Agency (EPA) is proposing to approve State
Implementation Plan (SIP) revisions submitted by North Dakota on May 2,
2019. The revisions contain amendments to the State's Ambient Air
Quality Standards, Permit to Construct, and Prevention of Significant
Deterioration (PSD) regulations.
DATES: Comments: Written comments must be received on or before April
20, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0689, 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 and Radiation
Division, 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: Kevin Leone, Air and Radiation
Division, EPA, Region 8, Mailcode 8P-ARD-QP, 1595 Wynkoop Street,
Denver, Colorado, 80202-1129, (303) 312-6227, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us'' or ``our'' is used, we mean the EPA.
I. Background
On May 2, 2019, the State of North Dakota submitted SIP revisions
containing amendments to N.D. Admin. Code Chapter 33.1-15 (Air
Pollution Control). The amendments address changes to the State's
Ambient Air
[[Page 16028]]
Quality Standard for ozone and update the State's PSD rules and permit-
to-construct rules. These revisions became effective as a matter of
State law on January 1, 2019. We are proposing to approve all of these
revisions, except for one provision described below that we are
addressing in a separate action, and another provision that we are
declining to act on in anticipation of a further State submittal.
II. Analysis of North Dakota's May 2, 2019 Submittal
A. Revisions to Chapter 33.1-15-15 (Prevention of Significant
Deterioration of Air Quality)
North Dakota's May 2, 2019 submittal includes updates to the
State's PSD regulations at 33.1-15-15-01.2. The current SIP-approved
North Dakota rule incorporates by reference 40 CFR 52.21 paragraphs
(a)(2) through (e), (h) through (r), (v), (w), (aa) and (bb), as of
July 1, 2015. Since that date, the EPA has promulgated revisions to 40
CFR 52.21, in response to the Utility Air Regulatory Group (UARG) v.
EPA decision addressing PSD permitting and greenhouse gas (GHG)
emissions.\1\ In UARG, the Supreme Court held that the EPA may not
treat GHGs as air pollutants for purposes of determining whether a
source is a major new source or modification 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 non-GHG pollutants
contain limits on GHG emissions based on the application of Best
Available Control Technology (BACT). In response to the UARG decision,
and to the subsequent Amended Judgment issued by the D.C. Circuit,\2\
in August 2015 the EPA revised the federal PSD rules to remove
provisions vacated by the court, including 40 CFR 52.21(b)(49)(v) and
40 CFR 51.166(b)(48)(v).\3\ The May 2, 2019 submittal updates the
State's incorporation by reference of 40 CFR 52.21 to reflect the
federal rule as of July 1, 2018, which encompasses the EPA's 2015
revisions removing the vacated provisions.
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\1\ 134 S. Ct. 2427 (2014) (UARG).
\2\ Coalition for Responsible Regulation v. EPA, 606 F. App'x 6,
7-8 (D.C. Cir. April 10, 2015).
\3\ See Final Rule, Prevention of Significant Deterioration and
Title V Permitting for Greenhouse Gases: Removal of Certain Vacated
Elements, 80 FR 50199 (August 19, 2015).
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North Dakota is also correcting the following typographical errors:
(1) In section 33.1-15-15-01.2, the reference to 40 CFR 52.21(23)(i) is
changed to 40 CFR 52.21(b)(23)(i); and (2) in section 33.1-15-15-01.2,
the reference to 40 CFR 52.21(k)(l)(l) is changed to 40 CFR
52.21(k)(l)(i). In addition, in section 33.1-15-15-01.2, the
``substitute language'' for 40 CFR 52.21(w)(l) is deleted. That is, the
State is removing previously approved language containing minor changes
to the federal regulation at 40 CFR 52.21(w)(1), with the result that
the federal regulation as written will be incorporated by reference
into the State rules.
This SIP submittal also includes an amendment to section 33-15-15-
01.2, addressing PSD modeling guidance by referring to 40 CFR part 51,
appendix W (Guideline on Air Quality Models) as it existed on July 1,
2018. This supersedes a comparable provision in North Dakota's January
28, 2013 SIP submittal that referenced appendix W as of January 1,
2012. The EPA has not yet acted on that provision in the 2013 submittal
and will not be taking action in it now that it has been superseded.\4\
We have proposed to act in a separate rulemaking on the 2019
submittal's provision amending section 33-15-15-01.2, as it relates to
updating the incorporation by reference date to July 1, 2018 to be
consistent with the current 40 CFR 52.21(l)(1) provision.\5\ Thus, we
will not be acting on that revision in this proposed rulemaking.
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\4\ The EPA has previously acted on all other portions of the
2013 submittal. See Final Rule, Approval and Promulgation of Air
Quality Implementation Plans; North Dakota; Revisions to Air
Pollution Control Rules, 81 FR 72716 (Oct. 21, 2016); Final Rule,
Approval and Promulgation of Air Quality Implementation Plans; North
Dakota; Revisions to Air Pollution Control Rules, 82 FR 46919 (Oct.
10, 2017); Final Rule, Approval and Promulgation of Air Quality
Implementation Plans; North Dakota; Revisions to Air Pollution
Control Rules, 84 FR 11646 (March 28, 2019).
\5\ Proposed rule, Air Quality State Implementation Plans;
Approvals and Promulgations: Infrastructure Requirements for the
2015 Ozone National Ambient Air Quality Standards; Colorado and
North Dakota, 84 FR 36516 (July 29, 2019).
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B. Revisions to Chapter 33-15-14 (Designated Air Contaminant Sources,
Permit To Construct, Minor Source Operating Permit, Title V Operating
Permit)
In its 2013 submittal, North Dakota amended chapter 33-15-14-02,
Permit to Construct, to include a general permit provision, and the EPA
approved this rule as part of the SIP.\6\ On November 11, 2016, the
State submitted an amended general permit regulation that included
public participation language required by EPA regulations at 40 CFR
51.161. Specifically, the revised State regulation required that ``a
proposed general permit, any changes to a general permit, and any
renewal of a general permit shall be subject to public comment''
following specified procedures.\7\ However, portions of section 6(a) of
this State regulation contain provisions related to ``director's
discretion'' that could allow revisions to SIP-approved emission limits
with limited public process, or without further approval by the EPA. In
light of those concerns, North Dakota committed to revise the reference
to ``subsection 6 of 33-15-14-02'' to ``subdivision 6.b of 33-15-14-
02'' in a future submittal.\8\ This revision included in North Dakota's
May 2, 2019 submittal revises 33.1-15-14-02.1.c by deleting the phrase
``subdivision 6'' and adding the phrase ``subdivision b of subsection
6.'' The EPA notes that ``subdivision b of subsection 6'' in section
33.1-15-14-02 refers to the same provision as ``subdivision 6.b'' of
that section. Accordingly, we are approving this revised version of the
State's regulation at 33.1-15-14-02 into the SIP.
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\6\ See 82 FR at 46919.
\7\ N.D. Admin. Code Sec. Sec. 33-15-14-02.1.c, 33-15-14-02.6.
\8\ Letter from Terry O'Clair, Director, Division of Air
Quality, North Dakota Department of Health to Monica Morales,
Director, EPA Region 8 Air Program (May 3, 2018). We note that the
North Dakota state legislature created the North Dakota Department
of Environmental Quality (NDEQ) in 2017. The EPA subsequently
approved changes to the North Dakota SIP to transfer authority to
implement and enforce the EPA-approved SIP from the North Dakota
Department of Health (NDDH) to the new NDEQ. Final Rule, Approval
and Promulgation of Implementation Plans; North Dakota; Revisions to
Infrastructure Requirements for All National Ambient Air Quality
Standards; Carbon Monoxide (CO); Lead (Pb); Nitrogen Dioxide (NO),
84 FR 1610 (Feb. 5, 2019). We also approved a recodification of the
State's previously approved Air Pollution Control Rules, which
changed the chapter number from 33 to 33.1. Id. The letter from Mr.
O'Clair references regulations according to the previous numbering
scheme. See also Final rule, Approvals Concerning Revisions to North
Dakota's Environmental Protection Programs; Delay of Effective
Dates, 84 FR 8260 (March 7, 2019).
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North Dakota is also correcting the following typographical errors
in section 33.1-15-14-02(1)(c): The reference to 33-15-13 is changed to
33.1-15-13; the reference to 33-15-15 is changed to 33.1-15-15; and the
reference to 33-15-22-03 is changed to 33.1-15-22-03.
C. Revisions to Chapter 33.1-15-02 (Ambient Air Quality Standards)
In 2015, the EPA promulgated a revised ozone National Ambient Air
Quality Standard (NAAQS) of 0.070 parts per million (ppm).\9\ When a
new or revised NAAQS is promulgated, the CAA requires each state to
submit a SIP revision to incorporate the new standard. In chapter 33.1-
15-02-07 (Concentrations of air contaminants in
[[Page 16029]]
the ambient air restricted), Table 1 (Ambient Air Quality Standards)
was revised to reflect the 2015 ozone NAAQS of 0.070 parts per million.
But the revision further states that ``[t]he standard is met when the
3-year average of the annual fourth-highest daily maximum 8-hour
average concentration at an ambient air quality monitoring site is less
than or equal to 0.075 ppm.'' The reference to .075 ppm is erroneous.
The EPA understands that North Dakota is currently addressing this
error and plans to submit a revised version of Table 1 to the EPA for
approval in the future. Accordingly, we are taking no action on the
revision to 33.1-15-02-07, Table 1 in this rulemaking.
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\9\ Final Rule, National Ambient Air Quality Standards for
Ozone, 80 FR 65292 (Oct. 26, 2015).
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III. Proposed Action
In this action, the EPA is proposing to approve SIP amendments to
North Dakota's Air Pollution Control Rules, shown in Table 1, submitted
by the State of North Dakota on May 2, 2019.
Table 1--List of North Dakota Amendments That the EPA is Proposing To
Approve
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Amended sections in the May 2, 2019 submittal proposed for approval
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33.1-15-14-02; 33.1-15-15-01.2.
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IV. Consideration of Section 110(l) of the CAA
Under section 110(l) of the CAA, the EPA cannot approve a SIP
revision if the revision would interfere with any applicable
requirements concerning attainment and reasonable further progress
(RFP) toward attainment of the NAAQS, or any other applicable
requirement of the Act. In addition, section 110(l) requires that each
revision to an implementation plan submitted by a state shall be
adopted by the state after reasonable notice and public hearing. The
North Dakota SIP revisions that the EPA proposes to approve do not
interfere with any applicable requirements of the Act. The revisions to
North Dakota's Control of Air Pollution regulations submitted on May 2,
2019, ensure that the State's PSD program is in compliance with federal
requirements. Therefore, CAA section 110(l) requirements are satisfied.
V. Incorporation by Reference
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 the amendments described in section III of this proposed
action. 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).
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, 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 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 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 Clean Air Act; 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, February 16, 1994).
In addition, the SIP is not proposed 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. 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 9, 2020.
Gregory Sopkin,
Regional Administrator, Region 8.
[FR Doc. 2020-05673 Filed 3-19-20; 8:45 am]
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