
[Federal Register Volume 80, Number 135 (Wednesday, July 15, 2015)]
[Proposed Rules]
[Pages 41450-41460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17380]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0974, FRL-9930-42-Region-8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2008 Lead, 2008 Ozone, and 2010 
NO[bdi2] National Ambient Air Quality Standards; North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of North Dakota to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (Act or CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, 
lead (Pb) on October 15, 2008 and nitrogen dioxide (NO2) on 
January 22, 2010. EPA is also proposing to approve element 4 of CAA 
section 110(a)(2)(D)(i)(II) for the 2006 fine particulate matter 
(PM2.5) NAAQS. Section 110(a) of the CAA requires that each 
state submit a SIP for the implementation, maintenance, and enforcement 
of each NAAQS promulgated by EPA.

DATES: Written comments must be received on or before August 14, 2015.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification Number EPA-R08-OAR-2012-0974. All documents in 
the docket are listed on the http://www.regulations.gov Web site. 
Although listed in the index, some information may not be publicly 
available, i.e., Confidential Business Information or other information 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in the hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at EPA Region 8, Office of 
Partnership and Regulatory Assistance, Air Program, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The EPA requests that you contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. The Regional Office's official hours 
of business are Monday through Friday, 8:00 a.m.-4:00 p.m., excluding 
federal holidays. An electronic copy of the State's SIP compilation is 
also available at http://www.epa.gov/region8/air/sip.html.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6563, 
fulton.abby@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or email. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on 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:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, 
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On March 12, 2008, EPA promulgated a new NAAQS for ozone, revising 
the levels of the primary and secondary 8-

[[Page 41451]]

hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 
FR 16436). Subsequently, on October 15, 2008, EPA revised the level of 
the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter 
([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964). On January 22, 2010, EPA 
promulgated a new 1-hour primary NAAQS for NO2 at a level of 
100 parts per billion (ppb) while retaining the annual standard of 53 
ppb. The 2010 NO2 NAAQS is expressed as the three year 
average of the 98th percentile of the annual distribution of daily 
maximum 1-hour average concentrations. The secondary NO2 
NAAQS remains unchanged at 53 ppb (75 FR 6474, Feb. 9, 2010).
    EPA promulgated a revised NAAQS for PM2.5 on October 17, 
2006, tightening the level of the 24-hour standard to 35 [micro]g/m\3\ 
and retaining the level of the annual PM2.5 standard at 15 
[micro]g/m\3\. EPA approved element 110(a)(2)(D)(i)(I) (discussed 
below) of North Dakota's infrastructure SIP for this NAAQS on July 29, 
2013 (78 FR 45457). EPA approved all other infrastructure elements 
(aside from element 110(a)(2)(D)(i)(II) regarding visibility) of North 
Dakota's 2006 PM2.5 infrastructure SIP on July 30, 2013 (78 
FR 45866). We are acting on the visibility element in this action.
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for ozone, Pb, and NO2 already meet 
those requirements. EPA highlighted this statutory requirement in an 
October 2, 2007, guidance document entitled ``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'' (2007 Memo). 
On September 25, 2009, EPA issued an additional guidance document 
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011, 
``Guidance on Infrastructure SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance 
on Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).

III. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from North Dakota that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2008 ozone, 2008 Pb, and 2010 NO2 NAAQS. 
The requirement for states to make a SIP submission of this type arises 
out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submissions ``within 3 years (or such shorter period as 
the Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA taking 
any action other than promulgating a new or revised NAAQS. Section 
110(a)(2) includes a list of specific elements that ``[e]ach such 
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA; ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A; and 
nonattainment new source review (NSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which EPA 
interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) 
are discussed at length in our notice of proposed rulemaking: 
Promulgation of State Implementation Plan Revisions; Infrastructure 
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 
Ozone, and 2010 NO2 National Ambient Air Quality Standards; South 
Dakota (79 FR 71040 Dec. 1, 2014) under ``III. What is the Scope of 
this Rulemaking?''
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for Prevention of Significant Deterioration (PSD) programs 
that may be inconsistent with current requirements of EPA's ``Final NSR 
Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as amended by 72 FR 
32526, June 13, 2007. (``NSR Reform'').

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section

[[Page 41452]]

110(a)(2) lists specific elements the SIP must contain or satisfy. 
These infrastructure elements include requirements such as modeling, 
monitoring, and emissions inventories, which are designed to assure 
attainment and maintenance of the NAAQS. The elements that are the 
subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

A detailed discussion of each of these elements is contained in the 
next section.

    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (1) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment NSR'') required under part D, and (2) section 
110(a)(2)(I), pertaining to the nonattainment planning requirements of 
part D. As a result, this action does not address infrastructure 
elements related to the nonattainment NSR portion of section 
110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, EPA interprets 
the CAA section 110(a)(2)(J) provision on visibility as not being 
triggered by a new NAAQS because the visibility requirements in part C, 
title 1 of the CAA are not changed by a new NAAQS.

V. How did North Dakota address the infrastructure elements of sections 
110(a)(1) and (2)?

    The North Dakota Department of Health (Department or NDDH) 
submitted certification of North Dakota's infrastructure SIP for the 
2008 Pb NAAQS on May 25, 2012, and joint certifications for the 2008 
ozone and the 2010 NO2 NAAQS on March 7, 2013. North 
Dakota's infrastructure certifications demonstrate how the State, where 
applicable, has plans in place that meet the requirements of section 
110 for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. These 
plans reference the current North Dakota Air Pollution Control Rules 
(NDAC) and North Dakota Century Code (NDCC). These submittals are 
available within the electronic docket for today's proposed action at 
www.regulations.gov. The NDAC and NDCC referenced in the submittals are 
publicly available at https://www.ndhealth.gov/aq/AirRules.htm and 
http://www.legis.nd.gov/general-information/north-dakota-century-code. 
North Dakota's SIP, air pollution control regulations, and statutes 
that have been previously approved by EPA and incorporated into the 
North Dakota SIP can be found at 40 CFR 52.1820.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    Multiple SIP-approved State air quality regulations within the NDAC 
and cited in North Dakota's certifications provide enforceable emission 
limitations and other control measures, means of techniques, schedules 
for compliance, and other related matters necessary to meet the 
requirements of the CAA section 110(a)(2)(A) for the 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS, subject to the following 
clarifications.
    First, this infrastructure element does not require the submittal 
of regulations or emission limitations developed specifically for 
attaining the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. 
Furthermore, North Dakota has no areas designated as nonattainment for 
the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. 
North Dakota's certifications (contained within this docket) generally 
listed provisions within its SIP which regulate pollutants through 
various programs, including major and minor source permit programs. 
This suffices, in the case of North Dakota, to meet the requirements of 
section 110(a)(2)(A) for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
    Second, as previously discussed, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. A number of states, including North 
Dakota, have such provisions which are contrary to the CAA and existing 
EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency plans to take 
action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing state provision with regard to excess emissions 
during SSM of operations at a facility. A number of states, including 
North Dakota, have SSM provisions which are contrary to the CAA and 
existing EPA guidance \2\ and the agency is addressing such state 
regulations separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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    Therefore, EPA is proposing to approve North Dakota's 
infrastructure SIP for the 2008 Pb, 2008 ozone, and 2010 NO2 
NAAQS with respect to the general requirement in section 110(a)(2)(A) 
to include enforceable emission limitations and other control measures, 
means, or techniques to meet the applicable requirements of this 
element.
    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to ``(i) monitor, 
compile, and analyze data on ambient air quality, and (ii) upon 
request, make such data available to the Administrator.''
    Ambient monitoring is covered in Chapter 6 of the North Dakota SIP. 
It provides for the design and operation of a monitoring network, 
reporting of data obtained from the monitors, and annual network review 
including notification to

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EPA of any changes, and public notification of exceedances of NAAQS. 
EPA approved North Dakota's Division of Air Quality's (DAQ) 2013 
Ambient Air Monitoring Network Plan for the 2008 Pb, 2008 ozone, and 
2010 NO2 NAAQS on April 2, 2015. North Dakota's air 
monitoring programs and data systems meet the requirements of CAA 
section 110(a)(2)(B) for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs adequate to implement 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS. As explained elsewhere in this 
action, EPA is not evaluating nonattainment related provisions, such as 
the nonattainment NSR program required by part D of the Act. EPA is 
evaluating the State's PSD program as required by part C of the Act, 
and the State's minor NSR program as required by 110(a)(2)(C).

PSD Requirements

    With respect to elements (C) and (J), EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS that demonstrates that the air agency has a complete 
PSD permitting program meeting the current requirements for all 
regulated NSR pollutants. The requirements of element (D)(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
North Dakota has shown that it currently has a PSD program in place 
that covers all regulated NSR pollutants, including greenhouse gases 
(GHGs).
    North Dakota implements the PSD program by, for the most part, 
incorporating by reference the federal PSD program as it existed on a 
specific date. The State periodically updates the PSD program by 
revising the date of incorporation by reference and submitting the 
change as a SIP revision. As a result, the SIP revisions generally 
reflect changes to PSD requirements that EPA has promulgated prior to 
the revised date of incorporation by reference.
    On June 3, 2010 (75 FR 31291), we approved a North Dakota SIP 
revision that revised the date of incorporation by reference of the 
federal PSD program to August 1, 2007. That revision addressed the PSD 
requirements of the Phase 2 Ozone Implementation Rule promulgated in 
2005 (70 FR 71612). As a result, the approved North Dakota PSD program 
meets current requirements for ozone.
    Similarly, on October 23, 2012 (77 FR 64736), we approved a North 
Dakota SIP revision that revised the date of incorporation by reference 
of the federal PSD program to July 2, 2010. As explained in the notice 
for that action, that revision addressed the PSD requirements related 
to GHGs provided in EPA's June 3, 2010 ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (75 FR 
31514). The approved North Dakota PSD program thus also meets current 
requirements for GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions, Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat 
GHGs as an air pollutant for purposes of determining whether a source 
is a major source required to obtain a PSD permit. The Supreme Court 
also said that EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT). In order to act consistently with 
its understanding of the Court's decision pending further judicial 
action to effectuate the decision, EPA is not continuing to apply EPA 
regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
EPA is not applying the requirement that a state's SIP-approved PSD 
program require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g., 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision. The 
timing and content of subsequent EPA actions with respect to EPA 
regulations and state PSD program approvals are expected to be informed 
by additional legal process before the United States Court of Appeals 
for the District of Columbia Circuit. At this juncture, EPA is not 
expecting states to have revised their PSD programs for purposes of 
infrastructure SIP submissions and is only evaluating such submissions 
to assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    At present, EPA has determined that North Dakota's SIP is 
sufficient to satisfy elements (C), (D)(i)(II), and (J) with respect to 
GHGs because the PSD permitting program previously approved by EPA into 
the SIP continues to require that PSD permits (otherwise required based 
on emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT. Although the approved North 
Dakota PSD permitting program may currently contain provisions that are 
no longer necessary in light of the Supreme Court decision, this does 
not render the infrastructure SIP submission inadequate to satisfy 
elements (C), (D)(i)(II), and (J). The SIP contains the necessary PSD 
requirements at this time, and the application of those requirements is 
not impeded by the presence of other previously-approved provisions 
regarding the permitting of sources of GHGs that EPA does not consider 
necessary at this time in light of the Supreme Court decision. 
Accordingly, the Supreme Court decision does not affect EPA's proposed 
approval of North Dakota's infrastructure SIP as to the requirements of 
elements (C), (D)(i)(II), and (J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, EPA 
promulgated the rule, ``Implementation of the New Source Review Program 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)'' 
(73 FR 28321) and on October 20, 2010 EPA promulgated the rule, 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
(75 FR 64864). EPA regards adoption of these PM2.5 rules as 
a necessary requirement when assessing a PSD program for the purposes 
of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment 
that remanded EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The court ordered

[[Page 41454]]

EPA to ``repromulgate these rules pursuant to Subpart 4 consistent with 
this opinion.'' Id. at 437. Subpart 4 of part D, Title 1 of the CAA 
establishes additional provisions for particulate matter nonattainment 
areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, EPA does not consider the portions 
of the 2008 Implementation rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected by 
the court's opinion. Moreover, EPA does not anticipate the need to 
revise any PSD requirements promulgated in the 2008 Implementation rule 
in order to comply with the court's decision. Accordingly, EPA's 
proposed approval of North Dakota's infrastructure SIP as to elements C 
or J with respect to the PSD requirements promulgated by the 2008 
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect EPA's action on the present infrastructure action. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards 
adoption of the PM2.5 increments as a necessary requirement 
when assessing a PSD program for the purposes of element (C).
    As mentioned above, EPA previously approved a North Dakota SIP 
revision that revised the date of incorporation by reference of the 
federal PSD program to July 2, 2010 (77 FR 64736, Oct. 23, 2012). This 
SIP revision also addressed the requirements of the 2008 
PM2.5 NSR Implementation Rule. On January 1, 2012, the State 
submitted revisions to chapter 33-15-15-01.2, Scope, of the NDAC that 
adopted all elements of the 2010 PM2.5 Increment Rule by 
incorporating by reference the federal PSD program at 40 CFR part 52, 
section 21, as it existed on January 1, 2012. The submitted revisions 
make North Dakota's PSD program up to date with respect to current 
requirements for PM2.5. EPA approved the necessary portions 
of North Dakota's January 24, 2013 submission which incorporate the 
requirements of the 2010 PM2.5 Increment Rule on July 30, 
2013 (78 FR 45866). North Dakota's SIP-approved PSD program meets 
current requirements for PM2.5. EPA therefore is proposing 
to approve North Dakota's SIP for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a PSD permit program in the SIP as required by 
part C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program was originally 
approved by EPA on August 21, 1995 (60 FR 43401). Since approval of the 
minor NSR program, the State and EPA have relied on the program to 
assure that new and modified sources not captured by the major NSR 
permitting programs do not interfere with attainment and maintenance of 
the NAAQS.
    EPA is proposing to approve North Dakota's infrastructure SIP for 
the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS with respect to 
the general requirement in section 110(a)(2)(C) to include a program in 
the SIP that regulates the enforcement, modification and construction 
of any stationary source as necessary to assure that the NAAQS are 
achieved.
    4. Interstate Transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) 
require each state to submit a SIP that prohibits emissions that will 
have certain adverse air quality effects in other states. CAA section 
110(a)(2)(D)(i) identifies four distinct elements related to the 
impacts of air pollutants transported across state lines. The two 
elements under 110(a)(2)(D)(i)(I) require SIPs to contain adequate 
provisions to prohibit any source or other type of emissions activity 
within the state from emitting air pollutants that will (element 1) 
contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS, and (element 
2) interfere with maintenance by any other state with respect to the 
same NAAQS. The two elements under 110(a)(2)(D)(i)(II) require SIPs to 
contain adequate provisions to prohibit emissions that will interfere 
with measures required to be included in the applicable implementation 
plan for any other state under part C (element 3) to prevent 
significant deterioration of air quality or (element 4) to protect 
visibility. In this action, EPA is addressing all four elements of CAA 
section 110(a)(2)(D)(i).
    EPA is addressing the 2008 Pb and 2010 NO2 NAAQS with 
regard to elements 1 (significant contribution) and 2 (interference 
with maintenance). EPA is addressing elements 3 (interference with PSD) 
and 4 (interference with visibility protection) of 110(a)(2)(D)(i) with 
regard to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS, and 
element 4 of 110(a)(2)(D)(i) with regard to the 2006 PM2.5 
NAAQS. We are not addressing elements 1 and 2 for the 2008 ozone NAAQS 
in this action. These elements will be addressed in a later rulemaking.

A. Evaluation of Significant Contribution to Nonattainment and 
Interference With Maintenance

2008 Pb NAAQS
    North Dakota's analysis of potential interstate transport for the 
2008 Pb NAAQS includes considerations of Pb emissions at sources near 
the State's borders and the distance of Pb sources in North Dakota to 
the nearest nonattainment area. The State's analysis is available in 
the docket for this action.
    As noted in our 2011 Memo, there is a sharp decrease in Pb 
concentrations, at least in the coarse fraction, as the distance from a 
Pb source increases. For this reason, EPA found that the ``requirements 
of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through 
a state's assessment as to whether or not emissions from Pb sources 
located in close proximity to their state borders have emissions that 
impact the neighboring state such that they contribute significantly to 
nonattainment or interfere with maintenance in that state.'' \3\ In 
that guidance document, EPA further specified that any source appeared 
unlikely to contribute significantly to nonattainment unless it was 
located less than 2 miles from a state border and emitted at least 0.5 
tons per year of Pb.

[[Page 41455]]

North Dakota's 110(a)(2)(D)(i)(I) analysis specifically noted that 
there are no sources in the State that meet both of these criteria. EPA 
concurs with the State's analysis and conclusion that no North Dakota 
sources have the combination of Pb emission levels and proximity to 
nearby nonattainment or maintenance areas to contribute significantly 
to nonattainment in or interfere with maintenance by other states for 
this NAAQS. North Dakota's SIP is therefore adequate to ensure that 
such impacts do not occur. We are proposing to approve North Dakota's 
submission in that its SIP meets the requirements of section 
110(a)(2)(D)(i) for the 2008 Pb NAAQS.
---------------------------------------------------------------------------

    \3\ 2011 Memo, at pg 8.
---------------------------------------------------------------------------

2010 NO2 NAAQS
    North Dakota's 2010 NO2 transport analysis for element 1 
of 110(a)(2)(D)(i) notes that there are no designated nonattainment 
areas for the 2010 NO2 NAAQS. The State asserts that, 
because there are no nonattainment areas for this NAAQS, North Dakota 
does not significantly contribute to nonattainment.
    North Dakota's analysis for element 2 of 110(a)(2)(D)(i) considered 
the distance to the South Coast Air Basin in California, the only 
NO2 maintenance area in the U.S., as well as the low 
monitored NO2 values in North Dakota and the historically 
decreasing NO2 emission levels in the State. North Dakota 
also noted that it anticipated further decreases in NOX 
emissions going forward, specifically noting the decreases resulting 
from the State's regional haze SIP. The State's analysis is available 
in the docket for this action. EPA concurs with the technical 
components of North Dakota's 2010 NO2 transport analyses for 
both elements 1 and 2, but clarifies that element 1 is not specific to 
designated nonattainment areas. In addition to the factors considered 
in the State's analysis, EPA also notes that the highest monitored 
NO2 design values in each state bordering or near North 
Dakota are significantly below the NAAQS (see Table 2, below). This 
fact further supports the State's contention that significant 
contribution to nonattainment or interference with maintenance of the 
NO2 NAAQS from North Dakota is very unlikely based on the 
lack of relatively nearby areas with high NO2. This is 
especially relevant for element 2 (interference with maintenance), 
because in addition to the lack of nonattainment areas, there are also 
no areas near the State approaching violation of the 2010 
NO2 NAAQS which might therefore have difficulty with 
maintenance of the standard.

         Table 2--Highest Monitored 2010 NO2 NAAQS Design Values
------------------------------------------------------------------------
                                      2011-2013 design      % of NAAQS
               State                        value            (100 ppb)
------------------------------------------------------------------------
Minnesota.........................  46 ppb..............              46
Montana...........................  46 ppb \4\..........              46
South Dakota......................  37 ppb..............              37
Wyoming...........................  35 ppb..............              35
------------------------------------------------------------------------
* Source: http://www.epa.gov/airtrends/values.html.

In addition to the monitored levels of NO2 in states near 
North Dakota being well below the NAAQS, North Dakota's highest design 
value from 2011-2013 was also significantly below this NAAQS (37 
ppb).\5\
---------------------------------------------------------------------------

    \4\ Montana's maximum design value was calculated using EPA's 
AirData Web site, at http://www.epa.gov/airquality/airdata/ad_rep_mon.html.
    \5\ http://www.epa.gov/airtrends/values.html.

    Based on all of these factors, EPA concurs with the State's 
conclusion that North Dakota does not contribute significantly to 
nonattainment or interfere with maintenance of the 2010 NO2 
NAAQS in other states. EPA is therefore proposing to determine that 
North Dakota's SIP includes adequate provisions to prohibit sources or 
other emission activities within the State from emitting NO2 
in amounts that will contribute significantly to nonattainment in or 
interfere with maintenance by any other state with respect specifically 
to the NO2 NAAQS.

B. Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)

    With regard to the PSD portion of section 110(a)(2)(D)(i)(II), this 
requirement may be met by a state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to a comprehensive EPA-approved PSD permitting 
program in the SIP that applies to all regulated NSR pollutants and 
that satisfies the requirements of EPA's PSD implementation rule(s).\6\ 
As discussed in section VI.3 of this proposed action, North Dakota has 
such a PSD-permitting program.
---------------------------------------------------------------------------

    \6\ See 2013 Memo.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for 
any one or more of the pollutants subject to regulation under the CAA 
because they are in a nonattainment area for a NAAQS related to those 
particular pollutants may also have the potential to interfere with PSD 
in an attainment or unclassifiable area of another state. North Dakota 
does not contain any nonattainment areas. The consideration of 
nonattainment NSR for element 3 is therefore not relevant as all major 
sources locating in the State are subject to PSD. As North Dakota's SIP 
meets structural PSD requirements for all regulated NSR pollutants, and 
does not have any nonattainment areas, EPA is proposing to approve the 
infrastructure SIP submission as meeting the applicable requirements of 
element 3 of section 110(a)(2)(D)(i) for the 2008 Ozone, 2008 Pb and 
2010 NO2 NAAQS.

C. Evaluation of Interference With Measures To Protect Visibility

    The determination of whether the CAA section 110(a)(2)(D)(i)(II) 
requirement for visibility is satisfied is closely connected to EPA's 
Regional Haze (RH) program. Under the RH program, each state with a 
Class I area is required to submit a SIP with reasonable progress goals 
for each such area that provides for an improvement in visibility for 
the most impaired days and ensures no degradation of the best days. CAA 
Sec.  169A.
    Because of the often significant impacts on visibility from the 
interstate transport of pollutants, we interpret the provisions of CAA 
section 110(a)(2)(D)(i)(II) described above as requiring states to 
include in their SIPs measures to prohibit emissions that would 
interfere with the reasonable progress goals set to protect Class I 
areas in other states. This is consistent with the requirements in the 
RH program which explicitly require each state to address its share of 
the emission reductions needed to meet the reasonable progress goals 
for

[[Page 41456]]

surrounding Class I areas. 64 FR 35714, 35735 (July 1, 1999). States 
working together through a regional planning process are required to 
address an agreed upon share of their contribution to visibility 
impairment in the Class I areas of their neighbors. Given these 
requirements in the RH program we have concluded that a fully approved 
RH SIP satisfies the requirements of section 110(a)(2)(D)(i)(II) with 
respect to visibility.
    In the absence of a fully approved RH SIP, a state can still make a 
demonstration that its SIP satisfies the visibility requirements of 
section 110(a)(2)(D)(i)(II).\7\ States worked through regional planning 
organizations (RPOs), such as the Western Regional Air Partnership 
(WRAP) in the case of North Dakota, to develop strategies to address 
RH. To help states in establishing reasonable progress goals, the RPOs 
modeled future visibility conditions. The modeling assumed emissions 
reductions from each state, based on extensive consultation among the 
states as to appropriate strategies for addressing haze. In setting 
reasonable progress goals, states generally relied on this modeling. As 
a result, we generally consider a SIP that ensures emission reductions 
commensurate with the assumptions underlying the reasonable progress 
goals to meet the visibility requirement of CAA section 
110(a)(2)(D)(i)(II).
---------------------------------------------------------------------------

    \7\ See 2013 Memo at 34. See also 76 FR 22036 (April 20, 2011) 
(EPA's approval of the visibility requirement of 110(a)(2)(D)(i)(II) 
based on a demonstration by Colorado that did not rely on the 
Colorado Regional Haze SIP).
---------------------------------------------------------------------------

    In its 2006 PM2.5, 2008 ozone, 2008 Pb and 2010 
NO2 infrastructure certifications, North Dakota points to 
existing portions in the North Dakota SIP, specifically referencing the 
North Dakota RH SIP, to certify that the State meets the visibility 
requirements of section 110(a)(2)(D)(i). For the 2006 PM2.5, 
2008 ozone, 2008 Pb and 2010 NO2 NAAQS, the State also 
references the PSD (NDAC 33-15-15) and Visibility Protection (NDAC 33-
15-19) portions of its SIP, as well as EPA's RH federal implementation 
plan (FIP).\8\ While Pb emissions have less impact on visibility, North 
Dakota addressed Pb no differently than other NAAQS in its 2008 Pb 
certification. Regardless, EPA noted in the 2013 Memo that ``Pb-related 
visibility impacts were found to be insignificant,'' and that 
``significant impacts from Pb emissions from stationary sources are 
expected to be limited to short distances from the source.'' \9\ As 
stated earlier in this section, North Dakota does not have any Pb 
sources near bordering states.
---------------------------------------------------------------------------

    \8\ EPA's final action including a partial approval, partial 
disapproval and FIP of the North Dakota RH SIP was published in the 
Federal Register April 6, 2012 (77 FR 20894).
    \9\ See 2013 Memo at 33-34.
---------------------------------------------------------------------------

    In this action, we are proposing to find that the emissions 
reductions approved into North Dakota's RH SIP are sufficient to ensure 
that emissions from sources within the State do not interfere with the 
reasonable progress goals of nearby states. North Dakota participated 
in a regional planning process with the WRAP. In the regional planning 
process, North Dakota accepted and incorporated the WRAP-developed 
visibility modeling into its RH SIP, and the SIP included the controls 
assumed in the modeling.
    EPA did not fully approve the North Dakota RH SIP, as we partially 
disapproved, among other elements, the State's selection of 
NOX Best Available Retrofit Technology (BART) controls for 
Great River Energy's Coal Creek Station. 77 FR 20894 (April 6, 2012). 
As a result of our partial disapproval, North Dakota's SIP does not 
ensure NOX emission reductions from Coal Creek Station, 
emission reductions which were assumed in the WRAP's visibility 
modeling that was relied on in setting reasonable progress goals in 
nearby states.\10\ We note, however, that the North Dakota RH SIP also 
adopted NOX controls that were not included in the WRAP's 
modeling for Otter Tail Power Company's Coyote Station. EPA approved 
these controls into the North Dakota RH SIP as part of our April 6, 
2012 final action. The SIP provision will reduce NOX 
emissions at Coyote Station by approximately 4,213 tons per year, a 
larger decrease in emissions than the assumed NOX BART 
reductions for Coal Creek Station of approximately 3,200 tons per year. 
As Coal Creek and Coyote Stations are roughly 32 miles apart, a 
relatively short distance, the visibility impacts from NOX 
emission reductions at either source on out-of-state Class I areas 
would be similar.
---------------------------------------------------------------------------

    \10\ EPA notes that we also disapproved and promulgated a FIP 
for the State's reasonable progress determination for Basin 
Electric's Antelope Valley Station.
---------------------------------------------------------------------------

    Because the reductions in North Dakota's approved RH SIP are 
greater than those assumed by the WRAP modeling, EPA is proposing to 
find that North Dakota's SIP includes controls sufficient to address 
the relevant requirements related to impacts on Class I areas in other 
states.
    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    Section 126(a) of the CAA requires notification to affected, nearby 
states of major proposed new (or modified) sources. Sections 126(b) and 
(c) pertain to petitions by affected states to the Administrator of the 
EPA (Administrator) regarding sources violating the ``interstate 
transport'' provisions of section 110(a)(2)(D)(i). Section 115 of the 
CAA similarly pertains to international transport of air pollution.
    With regard to section 126(a), North Dakota's SIP-approved PSD 
program requires notice of proposed new sources or modifications to 
states whose lands may be significantly affected by emissions from the 
source or modification (see NDAC 33-15-15-01.2(q)(2)(d)). This 
provision satisfies the notice requirement of section 126(a).
    North Dakota has no pending obligations under sections 126(c) or 
115(b); therefore, its SIP currently meets the requirements of those 
sections. In summary, the SIP meets the requirements of CAA section 
110(a)(2)(D)(ii) for the 2008 ozone, 2008 Pb and 2010 NO2 
NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide necessary assurances that the State will have adequate 
personnel, funding, and authority under state law to carry out the SIP 
(and is not prohibited by any provision of federal or state law from 
carrying out the SIP or portion thereof). Section 110(a)(2)(E)(ii) also 
requires each state to comply with the requirements respecting state 
boards under CAA section 128. Section 110(a)(2)(E)(iii) requires states 
to ``provide necessary assurances that, where the State has relied on a 
local or regional government, agency, or instrumentality for the 
implementation of any [SIP] provision, the State has responsibility for 
ensuring adequate implementation of such [SIP] provision.''
    a. Sub-elements (i) and (iii): Adequate personnel, funding, and 
legal authority under state law to carry out its SIP, and related 
issues.
    NDCC 23-25-03 provides adequate authority for the State of North 
Dakota and the Department to carry out its SIP obligations with respect 
to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. 
The State receives section 103 and 105 grant funds through its 
Performance Partnership Grant from EPA along with

[[Page 41457]]

required state matching funds to provide funding necessary to carry out 
North Dakota's SIP requirements. North Dakota's resources meet the 
requirements of CAA section 110(a)(2)(E).
    With respect to section 110(a)(2)(E)(iii), the regulations cited by 
North Dakota in their certifications and verified through additional 
communication \11\ (NDCC 23-25-02(01), 33-15-04-02, 23-01-05(02), 23-
25-03(5), and 23-25-10) and contained within this docket also provide 
the necessary assurances that the State has responsibility for adequate 
implementation of SIP provisions by local governments. Therefore, we 
propose to approve North Dakota's SIP as meeting the requirements of 
section 110(a)(2)(E)(i) and (E)(iii) for the 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS.
---------------------------------------------------------------------------

    \11\ See Email from Tom Bachman ``Request for Clarificaitons_ND 
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13, 2015, 
available within docket.
---------------------------------------------------------------------------

    b. Sub-element (ii): State boards.
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
That provision contains two explicit requirements: (i) That any board 
or body which approves permits or enforcement orders under the CAA 
shall have at least a majority of members who represent the public 
interest and do not derive a significant portion of their income from 
persons subject to such permits and enforcement orders; and (ii) that 
any potential conflicts of interest by members of such board or body or 
the head of an executive agency with similar powers be adequately 
disclosed.
    On July 30, 2013 (78 FR 45866) EPA approved revised language in 
North Dakota's SIP, chapter 2, section 15, Respecting Boards to include 
provisions for addressing conflict of interest requirements. Details on 
how this portion of chapter 2, section 15 rules meet the requirements 
of section 128 are provided in our May 13, 2013 proposal notice (78 FR 
27898). North Dakota's SIP continues to meet the requirements of 
section 110(a)(2)(E)(ii), and we propose to approve the infrastructure 
SIP for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS for this 
element.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires: (i) The installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources; (ii) Periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources; and (iii) Correlation of 
such reports by the state agency with any emission limitations or 
standards established pursuant to the Act, which reports shall be 
available at reasonable times for public inspection.
    The North Dakota statutory provisions listed in the State's 
certifications (NDCC 23-25-03) and contained within this docket provide 
authority to establish a program for measurement and testing of 
sources, including requirements for sampling and testing. North 
Dakota's SIP-approved minor source and PSD programs provide for 
monitoring, recordkeeping, and reporting requirements for sources 
subject to minor and major source permitting. The State cites several 
regulations (NDAC 33-15-14-02.9, 33-15-14-03.6, 33-15-14-06.5 and 
contained within this docket) requiring monitoring of emissions from 
stationary sources, recordkeeping and reporting of emissions, and 
monitoring date. Source surveillance is also addressed in Chapter 8 of 
the SIP. This chapter provides for the permitting of sources, 
inspection of the sources, recordkeeping and reporting by sources, and 
compliance determinations. Section 8.2 of the SIP commits the 
Department to the correlation of data with the applicable requirements. 
All reports are available for public inspection in accordance with NDAC 
33-15-01-16.1.
    Additionally, North Dakota is required to submit emissions data to 
the EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is the EPA's central repository for air emissions data. The EPA 
published the Air Emissions Reporting Rule (AERR) on December 5, 2008, 
which modified the requirements for collecting and reporting air 
emissions data (73 FR 76539). The AERR shortened the time states had to 
report emissions data from 17 to 12 months, giving states one calendar 
year to submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and their associated precursors--nitrogen oxides, 
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. North Dakota made its latest 
update to the NEI on October 23, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the North Dakota 
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303] and adequate contingency plans to implement such 
authority.''
    Under CAA section 303, the EPA Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment.\12\ If such action may not practicably assure prompt 
protection, then the Administrator has authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if EPA subsequently files 
a civil suit.
---------------------------------------------------------------------------

    \12\ A discussion of the requirements for meeting CAA section 
303 is provided in our notice of proposed rulemaking: Promulgation 
of State Implementation Plan Revisions; Infrastructure Requirements 
for the 1997 and 2006 p.m.2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 
National Ambient Air Quality Standards; South Dakota (79 FR 71040, 
Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8. Emergency 
powers.''
---------------------------------------------------------------------------

    Chapter 23-25 of the NDCC provides relevant language and authority 
for ``Air Pollution Control.'' The purpose of this chapter is ``to 
achieve and maintain the best air quality possible'' and to ``protect 
human health, welfare and property, [and] prevent injury to plant and 
animal life'' (NDCC 23-25-01(2)). NDCC 23-25-01 defines ``air 
pollution'' as ``the presence in the outdoor atmosphere of one or more 
air contaminants in such quantities and duration as is or may be 
injurious to human health, welfare, or property, animal or plant life, 
or which unreasonably interferes with the enjoyment of life or 
property.'' As such, the chapter aims to protect all three areas 
required by section 303; human health, welfare, and environment. The 
``Air Pollution Control'' chapter provides general grants of authority 
to maintain actions in certain situations. We find these grants provide 
comparable authority to that provided in Section 303. Furthermore, the 
NDAC 33-15-01-15(1) makes it unlawful to ``permit or cause air 
pollution'' as defined in NDCC 23-25-01. A person causing or 
contributing to emissions that endanger public health, welfare, or the 
environment, would be causing ``air pollution'' within the meaning of 
North Dakota law, and would therefore be in

[[Page 41458]]

violation of NDAC 33-15-01-15(1). This could occur in either an 
emergency or non-emergency situation.\13\
---------------------------------------------------------------------------

    \13\ See Email from Tom Bachman ``Request for Clarifications_ND 
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13, 2015, 
available within docket.
---------------------------------------------------------------------------

    NDCC 23-25-10(5) provides that ``the department has the authority 
to maintain an action in the name of the state against any person to 
enjoin any threatened or continuing violation of any provision of this 
chapter or any permit condition, rule, order, limitation, or other 
applicable requirement implementing this chapter.'' Under NDCC 23-25-
10(5), the Department has the authority to bring an action to enjoin a 
violation of NDCC 23-25 or its rules. The Department may seek a court 
order to restrain a source from causing or contributing to emissions 
that endanger public health, welfare, or the environment. In an 
emergency, this may take the form of an injunction or temporary 
restraining order (see NDCC 32-06-02).\14\ Therefore, the NDDH has the 
authority to seek judicial actions during emergency situations.
---------------------------------------------------------------------------

    \14\ See Email from Tom Bachman ``Request for Clarifications_ND 
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13, 
2015, available within docket.
---------------------------------------------------------------------------

    North Dakota's statutes also provide the NDDH with the authority to 
issue administrative orders and emergency rules to protect the public 
health, welfare, and the environment under certain circumstances. NDCC 
23-25-08, as cited in North Dakota's SIP submittals, authorizes that in 
the event of ``an emergency requiring immediate action to protect the 
public health and safety,'' the NDDH has the authority to ``issue an 
order reciting the existence of such emergency and requiring that such 
action be taken as is necessary'' to meet the emergency. The emergency 
order is effective immediately. Any person who violates the order is 
subject to enforcement, penalties, and injunctions under NDCC 23-25-10.
    Furthermore, as cited in North Dakota's SIP submittals, the NDDH 
has the authority to ``use an emergency adjudicative proceeding, in its 
discretion, in an emergency situation involving imminent peril to the 
public health, safety, or welfare'' (NDCC 28-32-32). Accordingly, ``in 
an emergency, the administrative agency may take action pursuant to a 
specific statute as is necessary to prevent or avoid imminent peril to 
the public health, safety, or welfare'' (NDCC-28-32-32.1). In the 
absence of a specific statute requiring other administrative action, 
``the administrative agency shall issue an order'' (NDCC 28-32-32(4)).
    Further supplemental authority is found in a broad provision, cited 
by the State in their SIP submittals, granting additional authority to 
the NDDH. The NDDH has the authority to ``[i]ssue such orders as may be 
necessary to effectuate the purposes'' of the ``Air Pollution Control'' 
chapter NDCC 23-25-03.5. These orders can be enforced ``by all 
appropriate administrative and judicial procedures'' (NDCC 23-25-03.5). 
Thus, this broad grant of authority includes the authority to issue 
administrative orders during air pollution emergencies which would 
disrupt protection of human health, welfare, and animal and plant life.
    The combination of NDCC and NDAC provisions discussed above provide 
for authority comparable to section 303 to immediately bring suit to 
restrain, issue emergency orders against, and use special rule adoption 
procedures for applicable emergencies to take prompt administrative 
action against, any person causing or contributing to air pollution 
that presents an imminent and substantial endangerment to public health 
or welfare, or the environment. We propose that they are sufficient to 
meet the authority requirement of CAA section 110(a)(2)(G).
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). This can be done by submitting a plan that meets the 
applicable requirements of 40 CFR part 51, subpart H for the relevant 
NAAQS if the NAAQS is covered by those regulations.
    Subpart H of 40 CFR part 51 requires states to classify regions and 
to develop contingency plans (also known as emergency episode plans) 
after ambient concentrations of certain criteria pollutants in an area 
have exceeded specified levels. For example, if ambient concentrations 
of nitrogen dioxide in an area have exceeded 0.06 ppm (annual 
arithmetic mean), then the area is classified as a Priority I region, 
and the state must develop a contingency plan that meets the 
requirements of sections 51.151 and 51.152. North Dakota has not 
monitored any values above the priority cut point for ozone or 
NO2.
    Prevention of air pollution emergency episodes is addressed in 
Section 5 of North Dakota's SIP and was approved on May 31, 1972 (37 FR 
10842). We find that North Dakota's air pollution emergency provisions 
establish stages of episode criteria (Section 5.2), provide for public 
announcement whenever any episode stage has been determined to exist 
(Section 5.3), and specify emission control actions to be taken at each 
episode stage (Section 5.5) consistent with the EPA emergency episode 
SIP requirements set forth at 40 CFR part 51, subpart H (prevention of 
air pollution emergency episode) for ozone and NO2.
    As noted in the October 14, 2011 guidance,\15\ based on EPA's 
experience to date with the Pb NAAQS and designating Pb nonattainment 
areas, EPA expects that an emergency episode associated with Pb 
emissions would be unlikely and, if it were to occur, would be the 
result of a malfunction or other emergency situation at a relatively 
large source of Pb. Accordingly, EPA believes the central components of 
a contingency plan would be to reduce emissions from the source at 
issue and communicate with the public as needed. We note that 40 CFR 
part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do 
not apply to Pb.
---------------------------------------------------------------------------

    \15\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for 
the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).'' 
Steve Page, OAQPS Director, October 14, 2011, at p. 13.
---------------------------------------------------------------------------

    Based on the above analysis, we propose approval of North Dakota's 
SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) From time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard; and (ii), 
except as provided in paragraph (3)(C), whenever the Administrator 
finds on the basis of information available to the Administrator that 
the SIP is substantially inadequate to attain the NAAQS which it 
implements or to otherwise comply with any additional requirements 
under this [Act].
    EPA approved relevant sections of the North Dakota SIP on September 
17, 2012 (77 FR 57029). North Dakota's statutory provision at NDCC 23-
25-03 provides adequate authority for the Department to carry out such 
revisions. Therefore, we propose to approve North Dakota's SIP as 
meeting the requirements of CAA section 110(a)(2)(H).
    10. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this

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subchapter (relating to PSD of air quality and visibility 
protection).''
    The State has demonstrated it has the authority and rules in place 
through its certifications (contained within this docket) to provide a 
process of consultation with general purpose local governments, 
designated organizations of elected officials of local governments and 
any Federal Land Manager having authority over federal land to which 
the SIP applies, consistent with the requirements of CAA section 121. 
Furthermore, EPA previously addressed the requirements of CAA section 
127 for the North Dakota SIP and determined public notification 
requirements are appropriate (45 FR 53475, Aug. 12, 1980).
    As discussed above, the State has a SIP-approved PSD program that 
incorporates by reference the federal program at 40 CFR 52.21. EPA has 
further evaluated North Dakota's SIP approved PSD program in this 
proposed action under element (C) and determined the State has 
satisfied the requirements of element 110(a)(2)(C), as noted above. 
Therefore, the State has also satisfied the requirements of element 
110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes states are subject to visibility and 
regional haze program requirements under part C of the Act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the North Dakota 
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP provide for: (i) The performance of such air quality modeling 
as the Administrator may prescribe for the purpose of predicting the 
effect on ambient air quality of any emissions of any air pollutant for 
which the Administrator has established a NAAQS; and (ii) the 
submission, upon request, of data related to such air quality modeling 
to the Administrator.
    North Dakota's PSD program requires estimates of ambient air 
concentrations be based on applicable air quality models specified in 
Appendix W of 40 CFR part 51, and incorporates by reference the 
provisions at 40 CFR 52.21(I)(2) requiring that modification or 
substitution of a model specified in Appendix W must be approved by the 
Administrator. Section 7.7, Air Quality Modeling, of North Dakota's SIP 
commits the Department to performing air quality modeling to predict 
the impact of a source on air quality, and providing data to EPA upon 
request. As a result, the SIP provides for such air quality modeling as 
the Administrator has prescribed. Therefore, we propose to approve the 
North Dakota SIP as meeting the CAA section 110(a)(2)(K) for the 2008 
Pb, 2008 ozone, and 2010 NO2 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires the owner or 
operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under this act, a fee 
sufficient to cover: (i) The reasonable costs of reviewing and acting 
upon any application for such a permit; and (ii) if the owner or 
operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under title V.
    The State cites the SIP approved fee provisions for construction 
permits (NDAC 33-15-23-02 approved at 62 FR 19224, April 21, 1997), 
which include costs of processing not covered by the application fee. 
We also note that all the State SIPs we are proposing to approve in 
this action cite the regulation that provides for collection of 
permitting fees under North Dakota's approved title V permit program 
(64 FR 32433, June 17, 1999). As discussed in that approval, the State 
demonstrated that the fees collected were sufficient to administer the 
program.
    Therefore, based on the State's experience in relying on the funds 
collected through application and processing fees at NDAC 33-15-23, and 
the use of title V fees to implement and enforce PSD permits once they 
are incorporated into title V permits, we propose to approve the 
submissions as supplemented by the State for the 2008 Pb, 2008 ozone, 
and 2010 NO2 NAAQS.
    13. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    The statutory provisions cited in North Dakota's SIP submittals 
(NDCC 23-25-03 and 23-25-02, contained within this docket) meet the 
requirements of CAA section 110(a)(2)(M), so we propose to approve 
North Dakota's SIP as meeting these requirements for the 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS.

VII. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS: (A), (B), (C) with respect to minor NSR and PSD 
requirements, (D)(i)(II) elements 3 and 4, (D)(ii), (E), (F), (G), (H), 
(J), (K), (L), and (M). EPA proposes to approve element 4 of 
110(a)(2)(D)(i)(II) for the 2006 PM2.5 NAAQS. Finally, EPA 
proposes approval of D(i)(I) elements 1 and 2 for the 2008 Pb, and 2010 
NO2 NAAQS. EPA will act separately on infrastructure element 
(D)(i)(I), interstate transport, for the 2008 ozone NAAQS.

VIII. Statutory and Executive Orders Review

    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, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action 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 Order 
12866 (58 FR 51735, Oct. 4, 1993);
     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, Aug. 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);

[[Page 41460]]

     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, Feb. 16, 1994).
    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 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, 
Incorporation by reference, Intergovernmental relations, Greenhouse 
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: June 25, 2015.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2015-17380 Filed 7-14-15; 8:45 am]
 BILLING CODE 6560-50-P


