[Federal Register Volume 86, Number 145 (Monday, August 2, 2021)]
[Proposed Rules]
[Pages 41413-41416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16093]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2021-0433; FRL-8683-01-R8]


Approval and Promulgation of Implementation Plans; North Dakota; 
Revisions To Permitting Regulations Unrelated to Regional Haze

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 August 
3, 2020. The revisions contain amendments to the State's Air Pollution 
Control Regulations and to the State's Legal Authority.

DATES: Written comments must be received on or before September 1, 
2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2021-0433, 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

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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 electronically in 
www.regulations.gov. To reduce the risk of COVID-19 transmission, for 
this action we do not plan to offer hard copy review of the docket. 
Please email or call the person listed in the FOR FURTHER INFORMATION 
CONTACT section if you need to make alternative arrangements for access 
to the docket.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-312-6227, email 
address: [email protected].

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

I. Background

    On August 3, 2020, the State of North Dakota submitted SIP 
revisions containing amendments to North Dakota Administrative Code 
(NDAC), Article 33.1-15 (Air Pollution Control) located in North 
Dakota's EPA-Approved Regulations. Article 33.1-15 consists of 25 
chapters numbered from 33.1-15-01 through 33.1-15-25. Revisions to 
33.1-15-25 (Regional Haze Requirements) were acted on in a separate 
rulemaking.\1\ North Dakota is also revising section 2.15 (Respecting 
Boards) located in North Dakota's EPA Approved Nonregulatory Provisions 
and Quasi-Regulatory Measures. These revisions became effective as a 
matter of State law on July 1, 2020. We are proposing to approve these 
revisions, except for the previously approved regional haze provisions.
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    \1\ The EPA approved North Dakota's rule revisions to chapter 
33.1-15-25 (regional haze) on June 8, 2021 (86 FR 30387).
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II. The EPA's Evaluation

A. Revisions to Chapter 33.1-15-01 (General Provisions)

(1) Section 33.1-15-01-01 (Purpose)
    * Line 3--A semicolon is added after the word ``property.''
    This revision is approvable, as it is administrative in nature.
(2) Section 33.1-15-01-04 (Definitions)
    * In Section 33.1-15-01-04-04.45, a comma is added after 
``emission.''
    This revision is approvable, as it is administrative in nature.
    * In Section 33.1-15-01-04-04.52, the date for incorporation by 
reference for the definition of ``volatile organic compounds'' (VOC's) 
is changes from July 1, 2015 to July 1, 2019.
    This revision is approvable, as it keeps North Dakota's definition 
current with the federal definition of VOCs. North Dakota's regulation 
located in section 33.1-15-01-04-04.52 states:

    ``Volatile Organic Compounds'' means the definition of volatile 
organic compounds in 40 Code of Federal Regulations 51.100(s) as it 
exists on July 1, 2015, which is incorporated by reference.''

    This revision reflects the current EPA definition of VOCs in 40 CFR 
51.100(s), which was last revised by the EPA on November 28, 2018 (83 
FR 61127). In addition, North Dakota incorporates by reference 40 CFR 
52.21 for their Prevention of Significant Deterioration (PSD) 
regulations. The definition of VOCs located in 40 CFR 52.21(a)(30) 
states:

    ``Volatile organic compounds (VOC) is as defined in 40 CFR 
51.100(s) of this chapter.''

    As such, this revision also keeps North Dakota's PSD regulation of 
VOCs current with the federal definition of VOCs.
(3) Section 33.1-15-01-05 (Abbreviations)
    * For the abbreviation of Abbreviation of PM10, the 
words ``a nominal'' are added.
    This revision is approvable, as it is administrative in nature.

B. Revisions to Chapter 33.1-15-02 (Ambient Air Quality Standards, 
Table 1)

(1) Table 1
    * In Table 1, for fine particulates (PM2.5) the 
determination of compliance is being clarified by adding the phrase 
``three-year average'' to the annual standard and the phrase ``three-
year average of the annual'' is added to the 24-hour standard.
    These revisions are approvable, as this language corresponds with 
the language found in 40 CFR part 50, appendix N (Interpretation of the 
National Ambient Air Quality Standards for PM2.5.). Appendix 
N states the data handling necessary for determining when the National 
Ambient Air Quality Standards (NAAQS) for PM2.5 are met, 
specifically for the primary and secondary annual and 24-hour 
PM2.5 NAAQS specified in 40 CFR 50.7, 50.13 and 50.18.
    Appendix N states that there are two separate design values (DVs) 
for determining compliance with the NAAQS. Design values are the 3-year 
average NAAQS metrics which are compared to the NAAQS levels to 
determine which monitoring site meets or does not meet the NAAQS. 
Appendix N specifies two separate DVs:
    (1) The 3-year average of PM2.5 annual mean mass 
concentrations for each monitoring site; and
    (2) The 3-year average of annual 98th percentile 24-hour average.
(2) Table 1
    * In Table 1, North Dakota is revising its maximum permissible 
concentration for ozone from 0.075 parts per million (ppm) to 0.070 
ppm.
    This revision is approvable. In 2015, the EPA promulgated a revised 
ozone NAAQS of 0.070 parts per million (ppm). (See Final Rule, National 
Ambient Air Quality Standard for Ozone, 80 FR 65292, October 26, 2015.) 
This rulemaking revised the maximum permissible concentration for ozone 
to 0.070 ppm. When a new or revised NAAQS is promulgated, the CAA 
requires each state to submit a SIP revision to incorporate the new 
standard. North Dakota revised Table 1 to reflect the 2015 ozone NAAQS 
of 0.070 ppm.

C. Revisions to Chapter 33.1-15-03 (Restriction of Emission of Visible 
Air Contaminants)

    * The title of the chapter is being revised to remove an ``m'' from 
``emissions.''
    This revision is approvable, as it is administrative in nature.

D. Revisions to Chapter 33.1-15-14 (Designated Air Contaminant Sources, 
Permit To Construct, Minor Source Permit To Operate, Title V Permit To 
Operate)

(1) Section 33.1-15-14-01.1.2h
    * In paragraph 33.1-15-14-01.1.2h, the word ``onsite'' is added 
twice.
    This revision is approvable as it is administrative in nature.

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(2) Section 33.1-15-14-02.4a
    * In subdivision 33.1-15-14-02.4a, the date for incorporation by 
reference of PSD modeling guidance by referring to 40 CFR part 51, 
appendix W (Guideline on Air Quality Models) as it existed on July 1, 
2019, and the reference to the North Dakota Modeling Guidance is 
deleted.
    This revision is approvable, as the State is adopting federal 
guidelines for determining the effects on ambient air quality related 
to an application for a permit to construct, and this revision deletes 
the State's own guidance on air quality modeling.
(3) Chapter 33-15-14-02.5
    * In subsection 33.1-15-14-02.5, line 2, the word ``an'' is added 
before application.
    This revision is approvable, as it is administrative in nature.
(4) Chapter 33.1-15-14-02.5a
    * In the subdivision 33.1-15-14-02.5a, the significant impact level 
(SIL) for annual PM2.5 emissions is revised to 0.2 
micrograms per cubic meter, and a SIL for 8-hour ozone of 2.0 
micrograms per cubic meter is added.
    These revisions are approvable. On October 20, 2010, the EPA 
promulgated a final rulemaking titled ``Prevention of Significant 
Deterioration (PSD) for Particulate Matter Less than 2.5 micrometers--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentrations (SMCs),'' (75 FR 64864). This rulemaking revised the SIL 
for the annual PM2.5 to 0.3 micrograms per cubic meter for 
Class II and Class III areas, and 0.06 micrograms per cubic meter for 
Class I areas.
    However, on December 17, 2010, the Sierra Club petitioned the Court 
to review the 2010 PM2.5 SILs and SMC final rule. On January 
22, 2013, the Court granted a request from the EPA to vacate and remand 
to the EPA portions of the PSD regulations (40 CFR 51.166(k)(2) and 
52.21(k)(2)) establishing the SILs for PM2.5 so that the EPA 
could reconcile the inconsistency between the regulatory text and 
certain statements in the preamble to the 2010 final rule. Sierra Club 
v. EPA, 705 F.3d 458, 463-64 (D.C. Cir. 2013). As a result, on December 
9, 2013, EPA issued a final rule that removes the PM2.5 SILs 
from EPA's PSD regulations (PM2.5 Vacated Elements 
rulemaking). On April 17, 2018, the EPA issued a guidance memo titled 
``Guidance on Significant Impact Levels for Ozone and Fine Particles in 
the Prevention of Significant Deterioration Permitting Program'' (See 
docket), which provided guidance on compliance demonstration tools for 
use with ozone and PM2.5 in the PSD program. This guidance 
can be used to identify a SIL for each ozone and PM2.5 
NAAQS. Permitting authorities may use these values to help determine 
whether a proposed PSD source causes or contributes to a violation of 
the corresponding NAAQS. The guidance recommends a SIL of 0.2 
micrograms per cubic meter for annual PM2.5 and a SIL of 1.0 
parts per billion (pbb) for 8-hour ozone. North Dakota's new SIL for 8-
hour ozone is 2.0 micrograms per cubic meter, which converts to one pbb 
(see docket for conversion).
(5) Chapter 33.1-15-14-02.8
    * In subsection 33.1-15-14-02.8, line 3, the word ``or'' is being 
changed to ``and.''
    This revision is approvable, as it is requiring an affirmative 
review of the requirements in both subsection 5(a) and 5(b) of this 
subsection before granting a permit to construct, as opposed to one or 
the other. Subsection 5(a) and 5(b) contain requirements pertaining to 
the department's review of an application for a permit to construct.

E. Revisions to Chapter 33.1-15-15 (Prevention of Significant 
Deterioration of Air Quality)

(1) Chapter 33.1-15-01.2
    * In section 33.1-15-01.2, the date for incorporation by reference 
is updated to July 1, 2019. In addition, the phrase ``or the 
administrator's authorized representative'' is added.
    This revision is approvable, as it expands the definition of 
``administrator of the United States environmental protection agency'' 
to include ``or the administrator's authorized representative.''
(2) Chapter 33.1-15-01.2(q)
    * In section 33.1-15-01.2(q), public participation, paragraph 
(q)(2)(c) is being revised to add the phrase ``and by a notice on the 
department's website.''
    This phrase is approvable, as it is in compliance with the 
requirements in 40 CFR 52.21(q), which states:
    ``The administrator shall follow the applicable procedures of 40 
CFR part 124 in processing applications under this section.''
    40 CFR part 124(xi)(2)(iii) outlines the requirements as it relates 
to publishing PSD permits for the duration of the public comment 
period. 40 CFR part 124(xi)(2)(iii)(B) states:
    ``The director shall notify the public . . . for the duration of 
the public comment period, on a public website identified by the 
director.''
(3) Chapter 33.1-15-01.2(q)
    * In section 33.1-15-01.2(q), public participation, paragraph 
(q)(2)(c) is being revised to add the phrase ``draft permit to 
construct.''
    This phrase is approvable, as it strengthens the requirement as to 
what is to be published during the public comment period.

F. Revisions to Chapter 33.1-15-19 (Visibility Protection)

    * In section 33.1-15-19-01.1 and 33.1-15-19-01.2, line 2, the 
reference to subsection 33.1-15-15-01 is corrected by adding ``.2.''
    This revision is approvable, as it is administrative in nature.

G. Revisions to Chapter 33.1-15-20 (Control of Emissions From Oil and 
Gas Well Production Facilities)

(1) Chapter 33.1-15-20-04.2
    * In section 33.1-15-20-04.2, the paragraph is revised to indicate 
that all flares at a production facility, not just those combusting gas 
containing hydrogen sulfide, must be maintained and operated in good 
working order. On the last line, ``sulfur dioxide'' is replaced with 
``air contaminants as.''
    This revision is approvable, as it expands the amount of flares 
which must be maintained and operated in good working order.
(2) Section 33.1-15-20-04.3
    * In section 33.1-15-20-04.3, the word ``volatile'' is removed to 
be consistent with Chapter 33.1-15-07, and the words ``gas'' and 
``vapor'' are pluralized.
    This revision is approvable, as it is administrative in nature.
    * In section 33.1-15-20-04.3, the reference to gas containing 
hydrogen sulfide is removed and replaced with ``at production 
facility.''
    This revision is approvable, as it is administrative in nature.

H. Revisions to Section 2.15 (Respecting Boards)

    * North Dakota is also revising section 2.15 (Respecting Boards) 
located in North Dakota's EPA Approved Nonregulatory Provisions and 
Quasi-Regulatory Measures.
    This revision is approvable. Section 128 of the CAA requires SIPs 
to contain requirements for Boards that approve permits and/or 
enforcement actions and conflict of interest requirements for state 
personnel and Boards. North Dakota's initial submittal of these 
requirements was approved by the EPA on July 20, 2013 (78 FR 45866). 
When the North Dakota Department of Environmental

[[Page 41416]]

Quality (DEQ) transitioned from the North Dakota Department of Public 
Health, their Conflict of Interest requirements changed. This revision 
updates section 2.15 of the SIP to match the current DEQ requirements.

III. Proposed Action

    For the reasons described in section II of this proposed 
rulemaking, the EPA is proposing to approve North Dakota's August 3, 
2020, submittal revisions to NDAC, Article 33.1-15 (Air Pollution 
Control) except for revisions to 33.1-15-25 (Regional Haze 
Requirements) which were addressed in a separate rulemaking. The EPA is 
also proposing to approve North Dakota's revisions to section 2.15 
(Respecting Boards) located in North Dakota's EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures. Our action is 
based on an evaluation of North Dakota's revisions against the 
requirements of CAA section 110(a)(2)(c) and regulatory requirements 
under 40 CFR 51.160-164 and 40 CFR 51.166.

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 revisions described in section II. 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 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);
     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: July 22, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-16093 Filed 7-30-21; 8:45 am]
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