
[Federal Register Volume 77, Number 180 (Monday, September 17, 2012)]
[Rules and Regulations]
[Pages 57029-57032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22771]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0300; FRL-9715-1]


Approval and Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient 
Air Quality Standards; North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is in part approving and in part conditionally approving 
two State Implementation Plan (SIP) submissions made by the State of 
North Dakota. The SIP submissions demonstrate that North Dakota's SIP 
meets the requirements of section 110(a)(1) and (2) of the Clean Air 
Act (CAA) for the National Ambient Air Quality Standards (NAAQS) 
promulgated for ozone on July 18, 1997. Section 110(a)(1) of the CAA 
requires that each state, after a new or revised NAAQS is promulgated, 
review their SIPs to ensure that they meet the requirements of the 
``infrastructure elements'' of section 110(a)(2). The State of North 
Dakota submitted revisions to their Infrastructure SIP for the 1997 
ozone NAAQS, dated April 6, 2009, as well as a certification of the 
adequacy of their infrastructure SIP for the 1997 ozone NAAQS, dated 
November 23, 2009. This action is being taken under section 110 of the 
Clean Air Act.

DATES: Effective Date: This final rule is effective October 17, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2010-0300. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the Air 
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. 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: Kathy Ayala, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6142, 
ayala.kathy@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background for This Action
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

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 initials DAQ mean or refer to Division of Air Quality.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials GHGs mean or refer to greenhouse gases.
    (v) The initials NAAQS mean or refer to national ambient air 
quality standards.
    (vi) The initials NDAC mean or refer to North Dakota Administrative 
Code.
    (vii) The initials NDCC mean or refer to North Dakota Century Code.
    (viii) The initials NOX mean or refer to nitrogen 
oxides.
    (ix) The initials NSR mean or refer to new source review.
    (x) The initials PM2.5 mean or refer to particulate 
matter with an aerodynamic diameter of less than 2.5 micrometers (fine 
particulate matter).
    (xi) The initials ppm mean or refer to parts per million.
    (xii) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
    (xiii) The initials SIP mean or refer to State Implementation Plan.
    (xiv) The initials SSM mean or refer to start-up, shutdown, or 
malfunction.

I. Background for This Action

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 
statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 
are to be submitted by states within three years after promulgation of 
a new or revised standard. Section 110(a)(2) provides basic 
requirements for SIPs, including emissions inventories, monitoring, and 
modeling, to assure attainment and maintenance of the standards. These 
requirements are set out in several ``infrastructure elements,'' listed 
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, and the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time a state 
develops and submits its SIP for a new or revised NAAQS affects the 
content of the submission. The contents of such SIP submissions may 
also vary depending upon what provisions a state's existing SIP already 
contains. In the case of the 1997 ozone NAAQS, states typically have 
met the basic program elements required in section 110(a)(2) through 
earlier SIP submissions in connection with previous NAAQS. In a 
guidance issued on October 2, 2007, EPA noted that, to the extent an 
existing SIP already meets the section 110(a)(2) requirements, states 
need only to certify that fact via a letter to EPA.\1\ North Dakota 
submitted

[[Page 57030]]

revisions to its SIP on April 6, 2009, which are being approved and are 
included in the state's infrastructure checklist and certification, 
dated November 23, 2009, that its infrastructure SIP requirements are 
met for the 1997 ozone NAAQS.
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    \1\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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    On April 16, 2012 EPA published a notice of proposed rulemaking 
(NPR) for the State of North Dakota. The NPR proposed approval of 
elements (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), 
(K), (L), and (M) and conditional approval of element 110(a)(2)(E)(ii). 
In the NPR, we discussed our reasons for our proposed approval and 
conditional approval. We are completing our proposed action for the 
reasons given in the NPR. However, we find it appropriate to further 
explain our conditional approval for element 110(a)(2)(E)(ii).
    In the NPR, we noted the link between element 110(a)(2)(E)(ii) and 
section 128 of the CAA. We then presented three considerations for 
implementing section 128 and applied these considerations to North 
Dakota's situation. We concluded that North Dakota, as a state without 
a board or body that approves permits or enforcement orders under the 
Act, was not subject to the requirements of section 128(a)(1), and was 
obliged to submit a SIP revision to meet the requirements of section 
128(a)(2). We briefly described procedures that North Dakota has 
committed to submit as a SIP revision, procedures which were detailed 
in North Dakota's commitment letter in the docket, and we then briefly 
stated that, due to a requirement for recusal, the procedures were more 
stringent than the minimum requirements of 128(a)(2). As a result, we 
proposed conditional approval of North Dakota's infrastructure SIP for 
element 110(a)(2)(E)(ii) for the 1997 ozone NAAQS.
    In this notice, EPA completes that conditional approval, and finds 
it appropriate to further explain how the elements of North Dakota's 
procedures satisfy the requirement for adequate disclosure of potential 
conflicts of interest. This explanation is not intended to imply that 
any other, different approaches would or would not meet the 
requirements of section 128(a)(2). Thus, EPA corrects our statements in 
the proposal to the extent they imply that North Dakota's procedures 
necessarily exceed the minimum requirements of section 128(a)(2), but 
we do not change the conclusion that the procedures meet these 
requirements.
    Turning to our explanation, we first note that the set of persons 
to which the SIP revision will apply is adequate. As explained in our 
proposal, in a situation such as North Dakota's, in which there is no 
board or body that approves permits or enforcement orders under the 
Act, section 128(a)(2) then applies to the ``head of an executive 
agency with similar powers,'' that is, the head of an executive agency 
that approves permits or enforcement orders under the Act. As further 
explained in our proposal, this requirement should extend to any lower 
officer of an executive agency who is delegated authority by the head 
of the executive agency to approve permits or enforcement orders, or 
who is directly vested with this authority by statute. North Dakota has 
committed to, in its SIP revision, making the procedures applicable to 
any person in the State agency who approves permits or enforcement 
actions under North Dakota's implementation of the Act. This is 
sufficiently broad to include such lower officers.
    Second, the North Dakota procedures address an adequately broad set 
of potential conflicts of interest. Under the procedures, a conflict of 
interest is defined as the conflict between the duties of the person 
subject to the procedure and the self-interest or other interests of 
the person. The procedures additionally state that persons subject to 
it must avoid any interest, influence, or relationship that might 
conflict or appear to conflict with the best interests of the state 
agency or the state, or that might affect the person's working judgment 
or loyalty. Because the procedures are not limited to the self-interest 
of the person but also include other interests, influences, and 
relationships, they extend beyond the minimum case where the person's 
own financial interest would create a conflict. In addition, because 
the procedures apply to interests, influences, and relationships that 
might appear to create a conflict or might affect the person's working 
judgment or loyalty, they are not dependent on a subjective standard as 
to whether a particular individual would actually have their working 
judgment or loyalty affected.
    Third, the mechanics of the North Dakota procedures are adequate. 
The disclosure must be in writing and identify the potential conflict 
and its cause. The disclosure must be provided to a superior, and the 
person subject to the conflict must remove themselves from any 
negotiations, deliberations, or decisions involving the conflict. Thus, 
the conflict is adequately memorialized, an appropriate party is made 
aware of the conflict and a resolution of the conflict (e.g., recusal) 
is reached.
    Finally, the purpose of the North Dakota procedures adequately 
relates to the purpose of section 128 as a whole. The overall purpose 
of section 128 appears to be that final decisions on permits or 
enforcement orders are not unduly influenced. However, as explained 
above, section 128(a)(1) does not apply in North Dakota's case. In such 
a case, it is reasonable for the state, as an alternative approach to 
meet the overall purpose of section 128 (and not the particular 
requirements of section 128(a)(1)), to require recusal in addition to 
disclosure. EPA therefore concludes that the SIP revision that North 
Dakota has committed to submit meets the requirements of section 
128(a)(2) and that the North Dakota infrastructure SIP for the 1997 
ozone NAAQS should be conditionally approved for section 
110(a)(2)(E)(ii).
    In this action, EPA also completes our proposed approval of 
portions of North Dakota's April 6, 2009 SIP submission. Specifically, 
EPA approves into the North Dakota SIP revisions sections 6.8, 6.11.3, 
and chapter 9, Air Pollution Control Rules of the State of North 
Dakota, and the addition of sections 1.14 and 7.7 to the Air Pollution 
Control Rules of the State of North Dakota.

II. Response to Comments

    EPA did not receive comments regarding our proposed rule for action 
on North Dakota's SIP submittals.

III. Final Action

    In this action, EPA is approving in full the following section 
110(a)(2) infrastructure elements for North Dakota for the 1997 ozone 
NAAQS: (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), 
(K), (L), and (M).
    In this action, EPA is conditionally approving section 
110(a)(2)(E)(ii) for the 1997 ozone NAAQS and will fully approve this 
element if North Dakota takes the action detailed in the State's March 
8, 2012 commitment letter, including submission of a SIP revision as 
described within the commitment letter, within one year after the 
publication date of this final action. If, however, North Dakota does 
not submit the SIP revisions specified in its commitment letter within 
one year after the publication date of this final action, EPA's 
conditional approval will automatically revert to disapproval of the 
infrastructure SIP for section 110(a)(2)(E)(ii) for the 1997 ozone 
NAAQS.
    In this action, EPA also approves into the North Dakota SIP 
revisions to sections 6.8 (Annual Network Review), 6.11.3 (Air Quality 
Surveillance: Ozone), and chapter 9 (Resources), Air

[[Page 57031]]

Pollution Control Rules of the State of North Dakota, and the addition 
of sections 1.14 (Revisions to the Implementation Plan), and 7.7 (Air 
Quality Modeling) to the Air Pollution Control Rules of the State of 
North Dakota.

IV. Statutory and Executive Order Reviews

    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. For this 
reason, 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). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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.). Because 
this rule approves 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).
    This rule also 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 (65 
FR 67249, November 9, 2000). This action also 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 approves 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. This 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 approves a state rule 
implementing a Federal standard.
    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. This 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.).
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 16, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 31, 2012.
James B. Martin,
Regional Administrator, Region 8.

PART 52 [AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart JJ--North Dakota

0
2. Section 52.1820 in paragraph (e) is amended by:
0
a. Revising table entry ``(1)''; and
0
b. Adding to the table entries ``(26),'' ``(27),'' ``(28),'' ``(29),'' 
and ``(30),'' in numerical order.
    The revisions and additions read as follows:


Sec.  52.1820  Identification of plan.

* * * * *
    (e) * * *

[[Page 57032]]



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                                      Applicable
    Name of nonregulatory SIP     geographic or non-    State submittal    EPA approved date     Explanations
            provision               attainment area    date/adopted date   and citation \3\
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(1) Implementation Plan for the   Statewide.........  Submitted: 1/24/    5/31/72, 37 FR      Excluding
 Control of Air Pollution for                          72; Adopted: 1/24/  10842.              subsequent
 the State of North Dakota.                            72.                                     revisions, as
                                                                                               follows: Chapters
                                                                                               1, 6, 7, 9, 11,
                                                                                               and 12; Sections
                                                                                               1.14, 2.11, 3.7,
                                                                                               6.8, 6.10, 6.11,
                                                                                               6.13, 7.7, and
                                                                                               8.3; and
                                                                                               Subsections
                                                                                               3.2.1, 5.2.1,
                                                                                               6.11.3, 7.8.1.A,
                                                                                               7.8.1.B, 7.8.1.C,
                                                                                               and 8.3.1.
                                                                                               Revisions to
                                                                                               these non-
                                                                                               regulatory
                                                                                               provisions have
                                                                                               subsequently been
                                                                                               approved. See
                                                                                               below.
Chapters:
    1. Introduction.
    2. Legal Authority.
    3. Control Strategy.
    4. Compliance Schedule.
    5. Prevention of Air
     Pollution Emergency
     Episodes.
    6. Air Quality Surveillance.
    7. Review of New Sources and
     Modifications.
    8. Source Surveillance.
    9. Resources.
    10. Intergovernmental
     Cooperation.
    11. Rules and Regulations.
With subsequent revisions to the
 chapters as follows:
 
                                                  * * * * * * *
(26) Revisions to SIP Chapter 6,  Statewide.........  Submitted: 4/6/09;  9/17/12, [INSERT    ..................
 Section 6.8, Annual Network                           Adopted: 4/1/09.    FR CITATION].
 Review.
(27) Revisions to SIP Chapter 6,  Statewide.........  Submitted: 4/6/09;  9/17/12, [INSERT    ..................
 Section 6.11.3, Air Quality                           Adopted: 4/1/09.    FR CITATION].
 Surveillance: Ozone.
(28) Revisions to SIP Chapter 9,  Statewide.........  Submitted: 4/6/09;  9/17/12, [INSERT    ..................
 Resources.                                            Adopted: 4/1/09.    FR CITATION].
(29) Revisions to SIP Chapter 1,  Statewide.........  Submitted: 4/6/09;  9/17/12, [INSERT    ..................
 Section 1.14, Revisions to the                        Adopted: 4/1/09.    FR CITATION].
 Implementation Plan.
(30) Revisions to SIP Chapter 7,  Statewide.........  Submitted: 4/6/09;  9/17/12, [INSERT    ..................
 Section 7.7, Air Quality                              Adopted: 4/1/09.    FR CITATION].
 Modeling.
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\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.


0
3. Section 52.1833 is added to read as follows:


Sec.  52.1833  Section 110(a)(2) infrastructure requirements.

    On November 23, 2009, Tom Bachman, Senior Environmental Engineer, 
North Dakota Department of Health, submitted a completeness criteria 
checklist which provides the State of North Dakota's SIP provisions 
which meet the requirements of CAA Section 110(a)(1) and (2). The 
following elements are approved for the 1997 ozone NAAQS: (A), (B), 
(C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M). 
The following element is conditionally approved for the 1997 ozone 
NAAQS: (E)(ii).

[FR Doc. 2012-22771 Filed 9-14-12; 8:45 am]
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