

[Federal Register: December 18, 2006 (Volume 71, Number 242)]
[Proposed Rules]               
[Page 75687-75690]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de06-15]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0502; FRL-8257-8]

 
Approval and Promulgation of Air Quality Implementation; North 
Dakota; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions adopted by North Dakota 
on February 1, 2005 to Chapter 33-15-15 of the North Dakota 
Administrative Code (Prevention of Significant Deterioration of Air 
Quality) that incorporate EPA's December 31, 2002 NSR Reforms. North 
Dakota submitted the request for approval of these rule revisions into 
the State Implementation Plan (SIP) on February 10, 2005. North Dakota 
has a federally-approved Prevention of Significant Deterioration (PSD) 
program for new and modified sources impacting attainment areas in the 
State. North Dakota is in attainment for all pollutants, and does not 
have a SIP-approved non-attainment permit program.
    On December 31, 2002, EPA published revisions to the Federal 
Prevention of Significant Deterioration (PSD) and non-attainment NSR 
regulations (67 FR 80186). These revisions are commonly referred to as 
``NSR Reform'' regulations and became effective nationally in areas not 
covered by a SIP on March 3, 2003. These regulatory revisions include 
provisions for baseline emissions determinations, actual-to-future-
actual methodology, plantwide applicability limits (PALs), clean units, 
and pollution control projects (PCPs). On November 7, 2003, EPA 
published a reconsideration of the NSR Reform regulations that 
clarified two provisions in the regulations (68 FR 63021). On June 24, 
2005, the United States Court of Appeals for the District of Columbia 
Circuit issued a ruling on challenges to the December 2002 NSR Reform 
revisions (State of New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). 
Although the Court upheld most of EPA's rules, it vacated both the 
Clean Unit and the Pollution Control Project provisions and remanded 
back to EPA the ``reasonable possibility'' standard for when a source 
must keep certain project-related records.
    North Dakota is seeking approval at this time for its PSD 
regulations to implement the NSR Reform provisions that have not been 
vacated by the June 24, 2005, court decision.

DATES: Comments must be received on or before January 17, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2006-0502, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 

instructions for submitting comments.
     E-mail: long.richard@epa.gov and daly.carl@epa.gov.

     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Richard R. Long, Director, Air and Radiation 
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466.

[[Page 75688]]

     Hand Delivery: Richard R. Long, Director, Air and 
Radiation Program, Environmental Protection Agency (EPA), Region 8, 
Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Such deliveries are only accepted Monday through Friday, 8 a.m. 
to 4:55 p.m., excluding Federal holidays. Special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2006-0502. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through http://www.regulations.gov 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 

instructions on submitting comments, go to Section I. General 
Information of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
http://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 http://www.regulations.gov or in hard copy at the Air and Radiation 

Program, Environmental Protection Agency (EPA), Region 8, 999 18th 
Street, Suite 300, Denver, Colorado 80202-2466. 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 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Carl Daly, Air and Radiation Program, 
U.S. Environmental Protection Agency, Region 8, 999 18th Street, Suite 
200, Denver, Colorado 80202, (303) 312-6416, daly.carl@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or North Dakota mean the State of North 
Dakota, unless the context indicates otherwise.

Table of Contents

I. General Information
    A. What Should I Consider as I Prepare My Comments for EPA?
II. What Is Being Addressed In This Document?
III. What Are The Changes That EPA Is Approving?
IV. What Action is EPA Taking Today?
V. Statutory and Executive Order Reviews

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit CBI to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to 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:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What Is Being Addressed In This Document?

    EPA is proposing to approve North Dakota's revisions to their Air 
Pollution Control Rules Chapter 33-15-15 (Prevention of Significant 
Deterioration of Air Quality), submitted by North Dakota on February 
10, 2005, that relate to the PSD construction permit programs of the 
State of North Dakota. These revisions to Chapter 33-15-15 were adopted 
by the North Dakota Department of Health on February 1, 2005. North 
Dakota's Regulations for a PSD program for attainment areas were 
federally-approved and made a part of the SIP on November 2, 1979 (44 
FR 63103).
    On December 31, 2002, EPA published revisions to the Federal PSD 
and non-attainment NSR regulations in 40 CFR Parts 51 and 52 (67 FR 
80186). These revisions are commonly referred to as the ``NSR Reform'' 
regulations and became effective nationally in areas not covered by a 
SIP on March 3, 2003. These regulatory revisions include provisions for 
baseline emissions determinations, actual-to-future-actual methodology, 
plantwide applicability limits (PALs), clean units, and pollution 
control projects (PCPs). As stated in the December 31, 2002 rulemaking, 
State and local permitting agencies must adopt and submit revisions to 
their part 51 permitting programs implementing the minimum program 
elements of that

[[Page 75689]]

rulemaking no later than January 2, 2006 (67 FR 80240). With the 
February 10, 2005 submittal, North Dakota requested approval of program 
revisions into the State Implementation Plan (SIP) that satisfy this 
requirement.
    On November 7, 2003, EPA published a reconsideration of the NSR 
Reform regulations that clarified two provisions in the regulations by 
including a definition of ``replacement unit'' and by clarifying that 
the plantwide applicability limitation (PAL) baseline calculation 
procedures for newly constructed units do not apply to modified units 
(68 FR 63021).
    On June 24, 2005, the United States Court of Appeals for the 
District of Columbia Circuit issued a ruling on challenges to the 
December 2002 NSR Reform revisions (State of New York et al. v. EPA, 
413 F.3d 3 (D.C. Cir. 2005)). Although the Court upheld most of EPA's 
rules, it vacated both the Clean Unit and the Pollution Control Project 
provisions and remanded back to EPA the recordkeeping provision at 40 
CFR 52.21(r)(6) that required a stationary source to keep records of 
projects when there was a ``reasonable possibility'' that the project 
could result in a significant emissions increase.
    In an August 30, 2005 letter to EPA, North Dakota requested that 
EPA not take action on the clean unit and PCP provisions of the State 
rule and on the term ``reasonable possibility'' as they were 
incorporated by reference into the North Dakota Air Pollution Control 
Rules Chapter 33-15-15. North Dakota requested no action on these 
provisions because of the June 24, 2005 United States Court of Appeals 
for the District of Columbia Circuit's decision. North Dakota has since 
withdrawn their request for no action on the term ``reasonable 
possibility.'' North Dakota has also supplemented its February 10, 2005 
request in a November 2, 2005 submission that provided corrections to 
several typographical errors in Chapter 33-15-15. All of these 
documents are available for review as part of the Docket for this 
action.

III. What Are The Changes That EPA Is Approving?

    EPA is proposing to approve a revision to North Dakota's SIP that 
would incorporate by reference the Federal requirements found at 40 CFR 
52.21 into the State's PSD program. The current revision to the North 
Dakota Air Pollution Control Rules Chapter 33-15-15, which EPA is now 
proposing to approve into the SIP, incorporates by reference the 
provisions of 40 CFR 52.21 paragraphs (a)(2) through (f), (h) through 
(r), and (v) through (bb) as they existed on October 1, 2003 with the 
exceptions noted below. North Dakota did not incorporate by reference 
those sections of the Federal rules that do not apply to state 
activities or are reserved for the Administrator of the EPA, such as 
the ``delegation of authority'' section found at 40 CFR 52.21(u) and 
the ``plan disapproval'' section found in 40 CFR 52.21(a)(1). North 
Dakota retained existing SIP language for ``reclassification'' at 33-
15-15-02. The reclassification provision at 40 CFR 52.21(g) was not 
revised by the December 2002 NSR Reform rule, so it is acceptable that 
North Dakota's existing SIP-approved reclassification provision remains 
in the SIP.
    In an August 30, 2005 letter to EPA, North Dakota requested that 
EPA not take action on the Clean Unit and Pollution Control Project 
provisions and on the term ``reasonable possibility'' as they were 
incorporated by reference into Chapter 33-15-15. However, North Dakota 
has since withdrawn its request for no action on the term ``reasonable 
possibility'' used in Sec.  52.21(r)(6). Therefore, EPA is not taking 
action at this time on the following provisions in Chapter 33-15-15: 40 
CFR 52.21(x), 52.21(y), 52.21(z), 52.21(a)(2)(iv)(e), the second 
sentence of 52.21(a)(2)(iv)(f), 52.21(a)(2)(vi), 52.21(b)(2)(iii)(h), 
52.21(b)(3)(iii)(b), 52.21(b)(3)(vi)(d), 52.21(b)(32), and 
52.21(b)(42).
    The phrase ``reasonable possibility'' used in the Federal rule at 
40 CFR 52.21(r)(6) limits the recordkeeping provisions to modifications 
at facilities that use the actual-to-future-actual methodology to 
calculate emissions changes and that may have a ``reasonable 
possibility'' of a significant emissions increase. EPA has not yet 
responded to the D.C. Circuit Court's remand of the recordkeeping 
provisions of EPA's 2002 NSR Reform Rules. The North Dakota rule 
contains recordkeeping requirements that are identical to the remanded 
Federal rule. As a result, EPA's final decision with regard to the 
remand may require EPA to take further action on this portion of North 
Dakota's rules. At this time, however, North Dakota's recordkeeping 
provisions are as stringent as the Federal requirements, and are 
therefore, approvable.
    The following provisions in 40 CFR 52.21 have been revised in North 
Dakota Air Quality Rules Chapter 33-15-15 to either add language that 
is currently contained in the North Dakota SIP or to add new language 
to North Dakota's PSD program: 40 CFR 52.21(b)(3)(iii)(a), 
52.21(b)(14), 52.21(b)(15), 52.21(b)(22), 52.21(b)(29), 52.21(b)(30), 
52.21(b)(43), 52.21(b)(48)(ii), 52.21(b)(51), 52.21(b)(53), 
52.21(b)(54), 52.21(d), 52.21(e), 52.21(h), 52.21(i), 52.21(k)(1), 
52.21(l)(1), 52.21(m)(3), 52.21(o)(1), 52.21(p), 52.21(p)(6), 
52.21(p)(7), 52.21(p)(8), 52.21(q), 52.21(r)(2), 52.21(v)(1), 
52.21(v)(2)(iv)(a), 52.21(w)(1), and 52.21(aa)(15). EPA's review of 
these revisions is contained in a Technical Support Document (TSD) for 
this action. The TSD is available for review as part of the Docket for 
this action.
    The North Dakota ``incorporation by reference'' properly clarified 
the circumstances in which the term ``Administrator,'' found throughout 
the Federal rules, was to remain the EPA Administrator, and when it was 
intended to refer to the ``North Dakota Department of Health,'' 
instead.
    As noted above, on November 7, 2003, EPA published a 
reconsideration of the NSR Reform regulations that added a definition 
of ''replacement unit'' and clarified that the plantwide applicability 
limitation (PAL) baseline calculation procedures for newly-constructed 
units do not apply to modified units. Since North Dakota has 
incorporated by reference the regulations in 40 CFR 52.21 ``as they 
exist on October 1, 2003'' (North Dakota provision 33-15-15-01.2), 
these clarifications are not proposed for approval at this time. EPA 
has communicated to North Dakota that, at its earliest convenience, the 
State should revise provision 33-15-15-01.2 (Scope) to specify that 40 
CFR 52.21 as amended and promulgated on July 1, 2004, or later, is 
incorporated by reference in order for these clarifications to become 
part of the SIP.
    The requirements included in North Dakota's PSD program, as 
specified in Chapter 33-15-15, are substantively the same as the 
Federal provisions, due to North Dakota's incorporation of the Federal 
rules by reference. The revisions North Dakota made to 40 CFR 52.21 
noted above were reviewed by EPA and found to be as stringent, or more 
stringent, than the Federal rules. EPA has, therefore, determined that 
the proposed revisions are consistent with the program requirements for 
the preparation, adoption and submittal of implementation plans for the 
Prevention of Significant Deterioration of Air Quality, as set forth at 
40 CFR 51.166, and are approvable as part of the North Dakota SIP.

IV. What Action Is EPA Taking Today?

    EPA is proposing to approve revisions to North Dakota Air Pollution 
Control Rules, Chapter 33-15-15, Prevention of Significant 
Deterioration of Air Quality. Per North Dakota's request, EPA is taking 
no action on Clean Unit

[[Page 75690]]

Exemptions (40 CFR 52.21(x) and (y)) and Pollution Control Projects (40 
CFR 52.21(z)).

V. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' as that term 
is defined in Executive Order 13211, this action is also not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001).

Regulatory Flexibility Act

    This proposed action merely proposes to approve State law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by State law. Accordingly, the Administrator 
certifies that this proposed rule will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule proposes to approve pre-existing requirements 
under State law and does not impose any additional enforceable duty 
beyond that required by State law, it 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).

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule does not have tribal implications because it 
will not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175 (59 FR 22951, November 9, 2000).

Executive Order 13132 Federalism

    This action does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely proposes to approve a State rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act.

Executive Order 13045 Protection of Children From Environmental Health 
and Safety Risks

    This proposed rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not ``economically 
significant'' under Executive Order 12866.

National Technology Transfer Advancement Act

    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

    This proposed rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
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: December 1, 2006.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.
[FR Doc. E6-21502 Filed 12-15-06; 8:45 am]

BILLING CODE 6560-50-P
