[Federal Register Volume 85, Number 55 (Friday, March 20, 2020)]
[Proposed Rules]
[Pages 16027-16029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05673]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0689; FRL-10006-14-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
North Dakota; Revisions to Permitting Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In accordance with section 110 of the Clean Air Act (CAA), the 
Environmental Protection Agency (EPA) is proposing to approve State 
Implementation Plan (SIP) revisions submitted by North Dakota on May 2, 
2019. The revisions contain amendments to the State's Ambient Air 
Quality Standards, Permit to Construct, and Prevention of Significant 
Deterioration (PSD) regulations.

DATES: Comments: Written comments must be received on or before April 
20, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0689, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
www.regulations.gov. The EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation 
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:00 a.m. 
to 4:00 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air and Radiation 
Division, EPA, Region 8, Mailcode 8P-ARD-QP, 1595 Wynkoop Street, 
Denver, Colorado, 80202-1129, (303) 312-6227, leone.kevin@epa.gov.

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

I. Background

    On May 2, 2019, the State of North Dakota submitted SIP revisions 
containing amendments to N.D. Admin. Code Chapter 33.1-15 (Air 
Pollution Control). The amendments address changes to the State's 
Ambient Air

[[Page 16028]]

Quality Standard for ozone and update the State's PSD rules and permit-
to-construct rules. These revisions became effective as a matter of 
State law on January 1, 2019. We are proposing to approve all of these 
revisions, except for one provision described below that we are 
addressing in a separate action, and another provision that we are 
declining to act on in anticipation of a further State submittal.

II. Analysis of North Dakota's May 2, 2019 Submittal

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

    North Dakota's May 2, 2019 submittal includes updates to the 
State's PSD regulations at 33.1-15-15-01.2. The current SIP-approved 
North Dakota rule incorporates by reference 40 CFR 52.21 paragraphs 
(a)(2) through (e), (h) through (r), (v), (w), (aa) and (bb), as of 
July 1, 2015. Since that date, the EPA has promulgated revisions to 40 
CFR 52.21, in response to the Utility Air Regulatory Group (UARG) v. 
EPA decision addressing PSD permitting and greenhouse gas (GHG) 
emissions.\1\ In UARG, the Supreme Court held that the EPA may not 
treat GHGs as air pollutants for purposes of determining whether a 
source is a major new source or modification required to obtain a PSD 
permit. The Court also held that the EPA could continue to require that 
PSD permits otherwise required based on emissions of non-GHG pollutants 
contain limits on GHG emissions based on the application of Best 
Available Control Technology (BACT). In response to the UARG decision, 
and to the subsequent Amended Judgment issued by the D.C. Circuit,\2\ 
in August 2015 the EPA revised the federal PSD rules to remove 
provisions vacated by the court, including 40 CFR 52.21(b)(49)(v) and 
40 CFR 51.166(b)(48)(v).\3\ The May 2, 2019 submittal updates the 
State's incorporation by reference of 40 CFR 52.21 to reflect the 
federal rule as of July 1, 2018, which encompasses the EPA's 2015 
revisions removing the vacated provisions.
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    \1\ 134 S. Ct. 2427 (2014) (UARG).
    \2\ Coalition for Responsible Regulation v. EPA, 606 F. App'x 6, 
7-8 (D.C. Cir. April 10, 2015).
    \3\ See Final Rule, Prevention of Significant Deterioration and 
Title V Permitting for Greenhouse Gases: Removal of Certain Vacated 
Elements, 80 FR 50199 (August 19, 2015).
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    North Dakota is also correcting the following typographical errors: 
(1) In section 33.1-15-15-01.2, the reference to 40 CFR 52.21(23)(i) is 
changed to 40 CFR 52.21(b)(23)(i); and (2) in section 33.1-15-15-01.2, 
the reference to 40 CFR 52.21(k)(l)(l) is changed to 40 CFR 
52.21(k)(l)(i). In addition, in section 33.1-15-15-01.2, the 
``substitute language'' for 40 CFR 52.21(w)(l) is deleted. That is, the 
State is removing previously approved language containing minor changes 
to the federal regulation at 40 CFR 52.21(w)(1), with the result that 
the federal regulation as written will be incorporated by reference 
into the State rules.
    This SIP submittal also includes an amendment to section 33-15-15-
01.2, addressing PSD modeling guidance by referring to 40 CFR part 51, 
appendix W (Guideline on Air Quality Models) as it existed on July 1, 
2018. This supersedes a comparable provision in North Dakota's January 
28, 2013 SIP submittal that referenced appendix W as of January 1, 
2012. The EPA has not yet acted on that provision in the 2013 submittal 
and will not be taking action in it now that it has been superseded.\4\ 
We have proposed to act in a separate rulemaking on the 2019 
submittal's provision amending section 33-15-15-01.2, as it relates to 
updating the incorporation by reference date to July 1, 2018 to be 
consistent with the current 40 CFR 52.21(l)(1) provision.\5\ Thus, we 
will not be acting on that revision in this proposed rulemaking.
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    \4\ The EPA has previously acted on all other portions of the 
2013 submittal. See Final Rule, Approval and Promulgation of Air 
Quality Implementation Plans; North Dakota; Revisions to Air 
Pollution Control Rules, 81 FR 72716 (Oct. 21, 2016); Final Rule, 
Approval and Promulgation of Air Quality Implementation Plans; North 
Dakota; Revisions to Air Pollution Control Rules, 82 FR 46919 (Oct. 
10, 2017); Final Rule, Approval and Promulgation of Air Quality 
Implementation Plans; North Dakota; Revisions to Air Pollution 
Control Rules, 84 FR 11646 (March 28, 2019).
    \5\ Proposed rule, Air Quality State Implementation Plans; 
Approvals and Promulgations: Infrastructure Requirements for the 
2015 Ozone National Ambient Air Quality Standards; Colorado and 
North Dakota, 84 FR 36516 (July 29, 2019).
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B. Revisions to Chapter 33-15-14 (Designated Air Contaminant Sources, 
Permit To Construct, Minor Source Operating Permit, Title V Operating 
Permit)

    In its 2013 submittal, North Dakota amended chapter 33-15-14-02, 
Permit to Construct, to include a general permit provision, and the EPA 
approved this rule as part of the SIP.\6\ On November 11, 2016, the 
State submitted an amended general permit regulation that included 
public participation language required by EPA regulations at 40 CFR 
51.161. Specifically, the revised State regulation required that ``a 
proposed general permit, any changes to a general permit, and any 
renewal of a general permit shall be subject to public comment'' 
following specified procedures.\7\ However, portions of section 6(a) of 
this State regulation contain provisions related to ``director's 
discretion'' that could allow revisions to SIP-approved emission limits 
with limited public process, or without further approval by the EPA. In 
light of those concerns, North Dakota committed to revise the reference 
to ``subsection 6 of 33-15-14-02'' to ``subdivision 6.b of 33-15-14-
02'' in a future submittal.\8\ This revision included in North Dakota's 
May 2, 2019 submittal revises 33.1-15-14-02.1.c by deleting the phrase 
``subdivision 6'' and adding the phrase ``subdivision b of subsection 
6.'' The EPA notes that ``subdivision b of subsection 6'' in section 
33.1-15-14-02 refers to the same provision as ``subdivision 6.b'' of 
that section. Accordingly, we are approving this revised version of the 
State's regulation at 33.1-15-14-02 into the SIP.
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    \6\ See 82 FR at 46919.
    \7\ N.D. Admin. Code Sec. Sec.  33-15-14-02.1.c, 33-15-14-02.6.
    \8\ Letter from Terry O'Clair, Director, Division of Air 
Quality, North Dakota Department of Health to Monica Morales, 
Director, EPA Region 8 Air Program (May 3, 2018). We note that the 
North Dakota state legislature created the North Dakota Department 
of Environmental Quality (NDEQ) in 2017. The EPA subsequently 
approved changes to the North Dakota SIP to transfer authority to 
implement and enforce the EPA-approved SIP from the North Dakota 
Department of Health (NDDH) to the new NDEQ. Final Rule, Approval 
and Promulgation of Implementation Plans; North Dakota; Revisions to 
Infrastructure Requirements for All National Ambient Air Quality 
Standards; Carbon Monoxide (CO); Lead (Pb); Nitrogen Dioxide (NO), 
84 FR 1610 (Feb. 5, 2019). We also approved a recodification of the 
State's previously approved Air Pollution Control Rules, which 
changed the chapter number from 33 to 33.1. Id. The letter from Mr. 
O'Clair references regulations according to the previous numbering 
scheme. See also Final rule, Approvals Concerning Revisions to North 
Dakota's Environmental Protection Programs; Delay of Effective 
Dates, 84 FR 8260 (March 7, 2019).
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    North Dakota is also correcting the following typographical errors 
in section 33.1-15-14-02(1)(c): The reference to 33-15-13 is changed to 
33.1-15-13; the reference to 33-15-15 is changed to 33.1-15-15; and the 
reference to 33-15-22-03 is changed to 33.1-15-22-03.

C. Revisions to Chapter 33.1-15-02 (Ambient Air Quality Standards)

    In 2015, the EPA promulgated a revised ozone National Ambient Air 
Quality Standard (NAAQS) of 0.070 parts per million (ppm).\9\ When a 
new or revised NAAQS is promulgated, the CAA requires each state to 
submit a SIP revision to incorporate the new standard. In chapter 33.1-
15-02-07 (Concentrations of air contaminants in

[[Page 16029]]

the ambient air restricted), Table 1 (Ambient Air Quality Standards) 
was revised to reflect the 2015 ozone NAAQS of 0.070 parts per million. 
But the revision further states that ``[t]he standard is met when the 
3-year average of the annual fourth-highest daily maximum 8-hour 
average concentration at an ambient air quality monitoring site is less 
than or equal to 0.075 ppm.'' The reference to .075 ppm is erroneous. 
The EPA understands that North Dakota is currently addressing this 
error and plans to submit a revised version of Table 1 to the EPA for 
approval in the future. Accordingly, we are taking no action on the 
revision to 33.1-15-02-07, Table 1 in this rulemaking.
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    \9\ Final Rule, National Ambient Air Quality Standards for 
Ozone, 80 FR 65292 (Oct. 26, 2015).
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III. Proposed Action

    In this action, the EPA is proposing to approve SIP amendments to 
North Dakota's Air Pollution Control Rules, shown in Table 1, submitted 
by the State of North Dakota on May 2, 2019.

  Table 1--List of North Dakota Amendments That the EPA is Proposing To
                                 Approve
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   Amended sections in the May 2, 2019 submittal proposed for approval
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33.1-15-14-02; 33.1-15-15-01.2.
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IV. Consideration of Section 110(l) of the CAA

    Under section 110(l) of the CAA, the EPA cannot approve a SIP 
revision if the revision would interfere with any applicable 
requirements concerning attainment and reasonable further progress 
(RFP) toward attainment of the NAAQS, or any other applicable 
requirement of the Act. In addition, section 110(l) requires that each 
revision to an implementation plan submitted by a state shall be 
adopted by the state after reasonable notice and public hearing. The 
North Dakota SIP revisions that the EPA proposes to approve do not 
interfere with any applicable requirements of the Act. The revisions to 
North Dakota's Control of Air Pollution regulations submitted on May 2, 
2019, ensure that the State's PSD program is in compliance with federal 
requirements. Therefore, CAA section 110(l) requirements are satisfied.

V. Incorporation by Reference

    The EPA is proposing to include in a final EPA rule regulatory text 
that includes incorporation by reference. In accordance with 
requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the amendments described in section III of this proposed 
action. The EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 8 
Office (please contact the person identified in the For Further 
Information Contact section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not proposed to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. The rule does not have 
tribal implications and will not impose substantial direct costs on 
tribal governments or preempt tribal law as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Sulfur oxides.

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

    Dated: March 9, 2020.
Gregory Sopkin,
Regional Administrator, Region 8.
[FR Doc. 2020-05673 Filed 3-19-20; 8:45 am]
BILLING CODE 6560-50-P


