2011-10995. Approval and Promulgation of Air Quality Implementation Plans; North Dakota; Revisions to the Air Pollution Control Rules

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve revisions to the North Dakota State Implementation Plan that the Governor of North Dakota submitted with a letter dated April 6, 2009. The revisions affect North Dakota's air pollution control rules regarding general provisions (including rules regarding shutdowns and malfunctions), ambient air quality standards, emissions of particulate matter, permitting, and fees. In addition, EPA is proposing administrative corrections to the regulatory text for North Dakota that will be codified in the Code of Federal Regulations; we made errors in the identification of plan table when we approved the North Dakota State Implementation Plan revisions for Interstate Transport of pollution, which the Governor also submitted on April 6, 2009. This action is being taken under section 110 of the Clean Air Act.

DATES:

Comments must be received on or before June 6, 2011 .

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2009-0556, by one of the following methods:

• http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone] (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT section if you are faxing comments).
• Mail: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
• Hand Delivery: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2009-0556. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm. For additional instructions on submitting comments, go to Section I, “General Information,” of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Gail Fallon, EPA Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, CO 80202-1129, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information

II. Background

III. Analysis of SIP Revisions

IV. Corrections to Regulatory Text

V. Section 110(l)

VI. Proposed Action

VII. Statutory and Executive Order Reviews

Definitions

For the purpose of this document, the following definitions apply:

(i) The words or initials Act or CAA mean or refer to the Federal Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The initials NAAQS mean or refer to the National Ambient Air Quality Standards.

(v) The words State or ND mean the State of North Dakota, unless the context indicates otherwise.

(vi) The initials NDDH mean or refer to the North Dakota Department of Health.

I. General Information

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

1. Submitting CBI. Do not submit this information to EPA through http://regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

d. Describe any assumptions and provide any technical information and/or data that you used.

e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

II. Background

The Act requires States to follow certain procedures in developing implementation plans and plan revisions for submission to us. Sections 110(a)(2) and 110(l) of the Act provide that each implementation plan must be adopted after reasonable notice and public hearing.

To provide for public comment, the North Dakota Department of Health (NDDH), after providing notice, held a public hearing on October 7, 2008 to consider the revisions to the Air Pollution Control Rules. Following the public hearing, comment period, and legal review by the North Dakota Attorney General's Office, NDDH adopted the revisions. The revisions to the Air Pollution Control Rules became effective on April 1, 2009. The North Dakota Governor submitted the SIP revisions to us with a letter dated April 6, 2009. This submittal also included (1) SIP revisions to address Interstate Transport requirements related to the 1997 8-hour ozone and PM_2.5 NAAQS, which we acted on in 2010 (75 FR 31290, June 3, 2010, and 75 FR 71023, November 22, 2010), and (2) SIP revisions (commonly referred to as “infrastructure” requirements) to address implementation of current NAAQS for PM₁₀, PM_2.5, and ozone, which we will be acting on separately. In our June 3, 2010 and November 22, 2010 actions on North Dakota's Interstate Transport SIP revisions, we made errors in the identification of plan table located in 40 CFR 52.1820(e). We describe these errors in section IV, below.

III. Analysis of SIP Revisions

The SIP revisions in the April 6, 2009 submittal that we are proposing to act on in this document involve the following chapters of the North Dakota Administrative Code (N.D.A.C.): 33-15-01, “General Provisions;” 33-15-02, “Ambient Air Quality Standards;” 33-15-05, “Emissions of Particulate Matter Restricted;” 33-15-14, “Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate;” and 33-15-23, “Fees.” The following is our description and analysis of the revisions.

A. Chapter 33-15-01, N.D.A.C., General Provisions

The State revised sections 33-15-01-04, 33-15-01-05, and 33-15-01-13 and submitted the entire revised sections to us for approval. In section 33-15-01-04, the State made the following changes: (1) The State revised the definition of “air contaminant” to add the words, “emitted to the ambient air” to the end of definition; (2) the State added definitions for “excess emissions” and “PM_2.5;” (3) the State re-numbered the definitions to account for the addition of new definitions; and (4) the State cross-referenced and incorporated by reference the version of 40 CFR 51.100(s) as it existed on March 1, 2008 for purposes of defining “volatile organic compounds” (the prior date used was January 1, 2006). These changes are minor and are consistent with relevant CAA and regulatory requirements.

In section 33-15-01-05, the State added abbreviations for PM and PM_2.5. These revisions are minor and are consistent with the CAA.

The State made several revisions to 33-15-01-13, “Shutdown and Malfunction of an Installation—Requirement for notification.” In 33-15-01-13.1, “Maintenance shutdowns,” the State adopted new subdivision f, which reads, “Nothing in this subsection shall in any manner be construed as authorizing or legalizing the emission of air contaminants in excess of the rate allowed by this article or a permit issued pursuant to this article.” Previously, we had been concerned that the language of 33-15-01-13.1 could be construed as exempting from enforcement excess emissions during shutdown of air pollution control equipment for scheduled maintenance. EPA's interpretation is that the CAA requires that all periods of excess emissions, regardless of cause, be treated as violations and that automatic exemptions from emissions limits are not appropriate.^[1] Subdivision f clarifies that excess emissions are not authorized during maintenance shutdowns. Subdivision f is consistent with CAA requirements.

In 33-15-01-13.2, “Malfunctions,” the State removed certain language and added other language. In 33-15-01-13.2.a, the State removed language indicating that the State could permit the continued operation of an installation during a malfunction resulting in a violation of an emissions limit. We were concerned that this language could be construed to exempt excess emissions caused by malfunctions when the State granted permission to continue operations. EPA's interpretation is that such an exemption would be inconsistent with the CAA. The removal of the language is consistent with CAA requirements.

The State added 33-15-01-13.2.c to 33-15-01-13.2. This new subdivision c identifies procedures sources and the State will follow with respect to unavoidable malfunctions. Where a source believes that excess emissions have resulted from an unavoidable malfunction, the source must submit a written report to the State that includes evidence relevant to six criteria specified in the rule. The report must be submitted within thirty days of the end of the calendar quarter in which the malfunction occurred or within thirty days of a written request by North Dakota, whichever is sooner. The rule provides that North Dakota will evaluate the information submitted by the source on a case-by-case basis to determine whether to pursue enforcement action and that North Dakota may elect not to pursue enforcement action after considering whether excess emissions resulted from an unavoidable equipment malfunction. The rule also provides that the burden of proof is on the source to provide sufficient information to demonstrate that an unavoidable equipment malfunction occurred.

Under EPA's interpretations of the CAA as set forth in the 1982, 1983, and 1999 Memoranda, if a state in its SIP chooses to address violations that occur as a result of claimed malfunctions, the state may take two approaches. The first, the “enforcement discretion” approach, allows a state director to refrain from taking enforcement action for a violation if certain criteria are met. The second, the “affirmative defense” approach, allows a source to avoid penalties if it can prove that certain conditions are met. North Dakota's 33-15-01-13.2.c follows the enforcement discretion approach.

We have evaluated North Dakota's enforcement discretion provisions for excess emissions caused by unavoidable equipment malfunctions and find that they are consistent with EPA's interpretations of the CAA as described in the memoranda above. In particular, the criteria specified in 33-15-01-13.2.c that the State will consider in deciding whether to pursue an enforcement action generally parallel the criteria outlined in the 1982 and 1983 Memoranda.

As noted in footnote 1, above, the 1999 Memorandum also discusses a point not explicitly addressed in North Dakota's new rule—i.e., EPA will not approve SIP revisions that recognize or appear to recognize a state's decision not to pursue enforcement as barring enforcement action by EPA or citizens. Rule 33-15-01-13.2.c only addresses the State's exercise of its enforcement discretion and contains no language suggesting that a State decision not to pursue an enforcement action for a particular violation bars EPA or citizens from taking an enforcement action. Therefore, EPA interprets the rule, consistent with EPA's interpretations of the CAA, as not barring EPA and citizen enforcement of violations of applicable requirements when the State declines enforcement.

In 33-15-01-13.3, “Continuous emission monitoring system failures,” the State removed the phrase, “acceptable to the department,” from the text, “When a failure of a continuous emission monitoring system occurs, an alternative method, acceptable to the department, for measuring or estimating emissions must be undertaken as soon as possible.” Following this sentence, the State added a new sentence that reads as follows: “The owner or operator of a source that uses an alternative method shall have the burden of demonstrating that the method is accurate.” We had asked the State to remove the language “acceptable to the department” from the rule and find that the new language is consistent with CAA requirements.

In previous rulemakings, we referenced an April 11, 2003 submission of revisions to 33-15-01-13 and indicated that we would act on that submission at a later date. See 69 FR 61762, October 21, 2004; 70 FR 45539, October 8, 2005; and 71 FR 3764, January 24, 2006. However, in an August 17, 2009 letter, North Dakota advised EPA that the April 11, 2003 submission erroneously indicated there had been revisions to 33-15-01-13.1.d, and that in fact the cited revisions to 33-15-01-13.1.d had not been adopted and were not submitted to EPA with the Governor's April 11, 2003 letter. Therefore, there are no remaining revisions from the April 11, 2003 submittal awaiting EPA's action.

B. Chapter 33-15-02, N.D.A.C., Ambient Air Quality Standards

Table 1 was revised to amend the PM₁₀ and ozone standards and to add the 2006 PM_2.5 standard. These revisions were made to reflect the Federal standards and are consistent with CAA requirements.

C. Chapter 33-15-05, N.D.A.C., Emissions of Particulate Matter Restricted

The State removed section 33-15-05-03.2.2.d., which provided that the State could approve continued operation of a trash incinerator during a malfunction of combustion equipment, emission control equipment, monitoring equipment, or waste charging equipment. We were concerned that section 33-15-05-03.2.2.d could be construed to exempt excess emissions at trash incinerators caused by malfunctions when the State granted permission to the source to continue operations. EPA's interpretation is that such an exemption would be inconsistent with the CAA. We asked the State to address our concern. The removal of section 33-15-05-03.2.2.d addresses our concern and is consistent with CAA requirements. The SIP will no longer provide a potential exemption to trash incinerators operating during malfunctions based on State approval of continued operation during such periods. Instead, malfunctions at trash incinerators would be treated the same as malfunctions at other sources subject to SIP requirements—i.e., the source would need to follow the procedures contained in section 33-15-01-13.2.

D. Chapter 33-15-14, N.D.A.C., Designated Air Contaminant Sources, Permit To Construct, Minor Source Permit To Operate, Title V Permit To Operate

In section 33-15-14-01, “Designated Air Contaminant Sources,” the State revised the list of sources “capable of causing or contributing to air pollution.” Specifically, the State added the word “major” to 33-15-14-01.14 so that it now reads as follows: “Any major source to which a national emission standard for hazardous air pollutants for source categories (40 CFR 63) would apply.” This change only affects the applicability of certain permitting requirements contained in Chapter 33-15-14. It does not affect emission limits in the SIP or other requirements that would affect ambient concentrations of criteria pollutants. It also does not affect the applicability of 40 CFR part 63 requirements. This change is consistent with CAA requirements.

E. Chapter 33-15-23, N.D.A.C., Fees

The State revised section 33-15-23-03, “Minor source permit to operate fees.” The State simplified the definition of a “designated” source. (The rule establishes a fee for designated sources.) The State also expanded the exemption from fees for State government facilities to include local government facilities. This latter revision simply codified the State's standing practice of not collecting fees from local governments. In addition, the State made a minor change to the due date for sources to submit the annual permit fee; the fee is now due within 60 days following the date of the State's fee notice rather than within 60 days of receipt of the fee notice. These are minor clarifying changes that do not impact compliance with CAA requirements.

IV. Corrections to Regulatory Text

On June 3, 2010 and November 22, 2010 we published final rules approving portions of the revised North Dakota SIP for Interstate Transport of Pollution for the 1997 PM_2.5 and 8-Hour Ozone NAAQS. See 75 FR 31290 and 75 FR 71023. When we published those rules, we included regulatory text that was incorrect. Specifically, we made errors in the “Identification of plan” table contained in 40 CFR 52.1820(e), “EPA-approved nonregulatory provisions.” As published in our November 22, 2010 action (which augmented and revised the table contained in our June 3, 2010 action), the first portion of the explanation for item (1) in the table read as follows: “Excluding subsequent revisions, as follows: Chapters 1, 2, 6, 7, 9, 11, and 12; Sections 2.11, 3.7, 6.8, 6.10, 6.11, 6.13, 7.7, and 8.3; subsections 7.8.1.B., 7.8.1.D., and 8.3.1.” ^[2] It should have read, “Excluding subsequent revisions, as follows: Chapters 6, 11, and 12; Sections 2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; and Subsections 3.2.1, 5.2.1, 7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.” We also incorrectly listed the submittal date for items (21) and (22) in the table as 4/09/09 instead of 4/06/09. Therefore, we are proposing to correct the identification of plan table in 40 CFR 52.1820(e) accordingly.

V. Section 110(l)

Under section 110(l) of the CAA, EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the NAAQS or any other applicable requirement of the Act. As described in section III, above, most of the revisions we are proposing to approve conform the North Dakota SIP to relevant CAA requirements. In particular, the State revised shutdown and malfunction provisions to comport with CAA requirements. The other changes we are proposing to approve are minor and will not interfere with attainment or reasonable further progress toward attainment of the NAAQS ^[3] or any other CAA requirements.

VI. Proposed Action

EPA is proposing to approve revisions to the North Dakota SIP that the Governor of North Dakota submitted with a letter dated April 6, 2009 and that were State-effective April 1, 2009. Specifically, EPA is proposing to approve North Dakota's revisions to the following portions of the North Dakota Administrative Code: Chapter 33-15-01, “General Provisions,” sections 33-15-01-04, 33-15-01-05, and 33-15-01-13; Chapter 33-15-02, “Ambient Air Quality Standards,” section 33-15-02, Table 1; Chapter 33-15-05, “Emissions of Particulate Matter Restricted,” subsection 33-15-05-03.2.2; Chapter 33-15-14, “Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate,” subsection 33-15-14-01.14; and Chapter 33-15-23, “Fees,” section 33-15-23-03. See section III of this action, above, for a description of these revisions.

In addition, EPA is proposing administrative corrections to the regulatory text for North Dakota that will appear in the Code of Federal Regulations. Specifically, we are proposing to change the identification of plan table that will appear at 40 CFR 52.1820(e) as follows:

a. We will change the first portion of the explanation for item (1) in the table to read, “Excluding subsequent revisions, as follows: Chapters 6, 11, and 12; Sections 2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; and Subsections 3.2.1, 5.2.1, 7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.”

b. We will change the submittal dates for items (21) and (22) in the table to read, “4/06/09.”

See section IV of this action, above, for further information regarding these corrections.

VII. Statutory and Executive Order Reviews

Under the Clean Air Act, 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 Clean Air Act. Accordingly, this proposed action merely approves 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” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 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 Clean Air Act; 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: April 27, 2011.

Judith Wong,

Acting Regional Administrator, Region 8.

Footnotes

1.  This interpretation has been expressed in several documents. Most relevant to this action are the following: Memorandum dated September 28, 1982, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation, entitled “Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions” (the 1982 Memorandum); a clarification to that memorandum from Kathleen M. Bennett issued on February 15, 1983 (the 1983 Memorandum); and a memorandum dated September 20, 1999 entitled “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,” from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation (the 1999 Memorandum). As explained in these memoranda, because excess emissions might aggravate air quality so as to prevent attainment and maintenance of the NAAQS and compliance with other CAA requirements, EPA views all periods of excess emissions as violations of the applicable emission limitation. Therefore, EPA will disapprove SIP revisions that automatically exempt from enforcement excess emissions claimed to result from an equipment malfunction. In addition, as made explicit in the 1999 Memorandum, EPA will disapprove SIP revisions that give discretion to a state director to determine whether an instance of excess emissions is a violation of an emission limitation, because such a determination could bar EPA and citizens from enforcing applicable requirements.

2.  The most recent version of the CFR was current as of July 1, 2010 and does not reflect the regulatory language contained in our November 22, 2010 action. The regulatory language as contained in our November 22, 2010 action does appear in the electronic CFR on the GPOAccess website: http://ecfr.gpoaccess.gov/​cgi/​t/​text/​text-idx?​c=​ecfr&​sid=​4d2eed6d6a2a14bd914c123a19f553c3&​rgn=​div8&​view=​text&​node=​40:4.0.1.1.1.16.1.1&​idno=​40.

3.  North Dakota has no nonattainment areas. Thus, CAA part D requirements, including the requirement to make reasonable further progress toward attainment, do not apply in North Dakota.