[Federal Register Volume 87, Number 106 (Thursday, June 2, 2022)]
[Proposed Rules]
[Pages 33461-33463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11584]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2022-0359; FRL-9886-01-R8]


Air Plan Approval; North Dakota; Removal of Exemptions to Visible 
Air Emissions Restrictions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision it received on 
November 11, 2016, submitted by the State of North Dakota, through the 
North Dakota Department of Health (NDDH). The revision was submitted by 
North Dakota in response to a finding of substantial inadequacy and SIP 
call published on June 12, 2015, for a provision in the North Dakota 
SIP related to excess emissions during startup, shutdown, and 
malfunction (SSM) events. EPA is proposing approval of the SIP revision 
and proposing to determine that this SIP revision corrects the 
deficiency identified in the June 12, 2015, SIP call.

DATES: Comments must be received on or before July 5, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2022-0359 at https://

[[Page 33462]]

www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
regulations.gov. EPA may publish any comment received to its public 
docket. Do not electronically submit any information you consider to be 
Confidential Business Information (CBI) or other information, the 
disclosure of which 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. 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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-6728, email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or 
``our'' is used, it refers to EPA.

Table of Contents

I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review

I. Background

    On February 22, 2013, EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the Clean Air Act (CAA) with regard to excess emission events.\1\ For 
each SIP provision that EPA determined to be inconsistent with the CAA, 
EPA proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016. In the 2015 SSM Action, EPA issued a SIP 
call for the North Dakota SIP, since EPA found that provision 33-15-03-
04.3, located in the State's SIP, is inconsistent with the CAA and the 
2015 SSM Policy because it allows for discretionary exemptions from 
otherwise applicable emission limitations through a State official's 
unilateral exercise of discretionary authority that is insufficiently 
bounded. As noted in a previous footnote, shortly after North Dakota 
proposed the November 11, 2016 SIP revision, the State created a new 
environmental agency, the North Dakota Department of Environmental 
Quality (NDDEQ), and North Dakota's Air Pollution rules were recodified 
under the NDAC as 33.1-15 instead of 33-15.\2\ Therefore, from here on 
in this document, EPA will refer to provision 33-15-03.04.3 as 33.1-
15.03-04.3.
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    \2\ In 2017, the North Dakota State legislature created the 
NDDEQ that assumed all the duties and responsibilities of the NDDH's 
Environmental Health Section. To accommodate the new NDDEQ, the 
North Dakota Air Pollution Control Law was recodified in the North 
Dakota Century Code (NDCC) as NDCC 23.1-06 and the Air Pollution 
Rules were recodified in the North Dakota Administrative Code (NDAC) 
as NDAC 33.1-15.
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    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\3\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific State SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to North Dakota in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw particular SIP calls through future 
agency actions.
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    \3\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\5\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
Agency takes action on SIP submissions, including North Dakota's 
November 11, 2016 SIP submittal provided in response to the 2015 SIP 
call.
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    \4\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \5\ 80 FR 33985.
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    With regard to the North Dakota SIP, EPA proposes to approve the 
removal of provision 33.1-15-03-04.3 from Article 33.1-15-03, 
Restriction of Emission of Visible Air Contaminants.\6\ This provision 
was among those that EPA determined were inconsistent with the CAA in 
the 2015 SSM SIP Action. Provision 33.1-15-03-04.3 stated that the 
otherwise applicable emission

[[Page 33463]]

limitations for opacity in several other listed regulations do not 
apply ``where an applicable opacity standard is established for a 
specific source.'' In the 2015 SSM SIP Action, EPA determined that this 
provision allowed a State official to modify the opacity limits in a 
permit or other document to allow emissions in excess of the otherwise 
applicable SIP limitations. The detailed rationale for issuing the SIP 
call to North Dakota can be found in the 2015 SSM SIP Action. In its 
November 11, 2016 SIP submission, North Dakota is requesting that EPA 
revise the North Dakota SIP by removing 33.1-15-03-04.3 in its 
entirety, thereby removing this provision from the State's SIP.
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    \6\ The North Dakota State Health Council adopted the amendments 
removing provision 33-15-03-0.3 on February 24, 2016 (effective July 
1, 2016).
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II. Analysis of SIP Submission

    EPA is proposing to approve North Dakota's November 11, 2016 SIP 
revision requesting the removal of provision 33.1-15-03-04.3 from the 
State's SIP. We consider the removal of this provision sufficient to 
correct the inadequacies that EPA's 2015 SSM SIP Action identified in 
the North Dakota SIP.\7\ As a result of the removal from the SIP, the 
impermissible discretionary exemptions from emissions limitations 
contained within this provision will no longer be available to sources. 
As explained in the 2015 SSM SIP Action (80 FR at 33848), the removal 
of an exemption is an appropriate way to address the inadequacy. EPA's 
proposed approval of this revision is consistent with CAA section 
110(l) because approval will not interfere with any applicable 
requirement of the CAA. Specifically, by removing the discretionary 
exemptions created by 33.1-15-03-04.3, the SIP is now more protective. 
Therefore, we are proposing to approve the removal of this provision 
from the SIP. Because removal of this provision would fully address the 
inadequacies that the 2015 SSM SIP Action identified in the North 
Dakota SIP, this proposed action, if finalized, will satisfy North 
Dakota's obligations pursuant to EPA's 2015 SSM SIP Action.
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    \7\ For a more in-depth discussion on the inadequacies of 33-15-
03-04.3, see our proposed 2015 SSM SIP Action, 78 FR 12459, 12531-
32.
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III. Proposed Action

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is 
proposing to approve North Dakota's November 11, 2016 SIP submission 
requesting removal of 33.1-15-03-04.3 from the State SIP. We are 
proposing approval of the SIP revision because we have determined that 
it is consistent with the requirements for SIP provisions under the 
CAA. EPA is further proposing to determine that such SIP revision 
corrects the deficiency identified in the June 12, 2015, SIP call. EPA 
is not reopening the 2015 SSM SIP Action and is only taking comment on 
whether this SIP revision is consistent with CAA requirements and 
whether it addresses the substantial inadequacy in the specific North 
Dakota SIP provision (33.1-15-03-04.3) identified in the 2015 SSM SIP 
Action. EPA has previously taken action on other parts of the North 
Dakota November 11, 2016 SIP submittal and therefore these other 
elements have not been addressed in this action nor will EPA be taking 
comments on those topics at this time.\8\
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    \8\ See 83 FR 22227, May 14, 2018 (proposed rule) and 84 FR 
11646, March 28, 2019 (final rule).
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IV. Incorporation by Reference

    In this document, EPA is proposing to remove in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to remove the 
incorporation by reference of ``33.1-15-03-04.3'' in 40 CFR 52.1820, as 
described in Section II of this preamble. EPA has made, and will 
continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 8 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 removal of State law not meeting 
Federal requirements and does not impose additional requirements beyond 
those already 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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the proposed rule does not have tribal implications and will 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: May 24, 2022.
K.C. Becker,
Regional Administrator, Region 8.
[FR Doc. 2022-11584 Filed 6-1-22; 8:45 am]
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