[Federal Register: December 18, 2006 (Volume 71, Number 242)]
[Proposed Rules]
[Page 75687-75690]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de06-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2006-0502; FRL-8257-8]
Approval and Promulgation of Air Quality Implementation; North
Dakota; Revisions to New Source Review Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions adopted by North Dakota
on February 1, 2005 to Chapter 33-15-15 of the North Dakota
Administrative Code (Prevention of Significant Deterioration of Air
Quality) that incorporate EPA's December 31, 2002 NSR Reforms. North
Dakota submitted the request for approval of these rule revisions into
the State Implementation Plan (SIP) on February 10, 2005. North Dakota
has a federally-approved Prevention of Significant Deterioration (PSD)
program for new and modified sources impacting attainment areas in the
State. North Dakota is in attainment for all pollutants, and does not
have a SIP-approved non-attainment permit program.
On December 31, 2002, EPA published revisions to the Federal
Prevention of Significant Deterioration (PSD) and non-attainment NSR
regulations (67 FR 80186). These revisions are commonly referred to as
``NSR Reform'' regulations and became effective nationally in areas not
covered by a SIP on March 3, 2003. These regulatory revisions include
provisions for baseline emissions determinations, actual-to-future-
actual methodology, plantwide applicability limits (PALs), clean units,
and pollution control projects (PCPs). On November 7, 2003, EPA
published a reconsideration of the NSR Reform regulations that
clarified two provisions in the regulations (68 FR 63021). On June 24,
2005, the United States Court of Appeals for the District of Columbia
Circuit issued a ruling on challenges to the December 2002 NSR Reform
revisions (State of New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005).
Although the Court upheld most of EPA's rules, it vacated both the
Clean Unit and the Pollution Control Project provisions and remanded
back to EPA the ``reasonable possibility'' standard for when a source
must keep certain project-related records.
North Dakota is seeking approval at this time for its PSD
regulations to implement the NSR Reform provisions that have not been
vacated by the June 24, 2005, court decision.
DATES: Comments must be received on or before January 17, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2006-0502, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: long.richard@epa.gov and daly.carl@epa.gov.
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Richard R. Long, Director, Air and Radiation
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466.
[[Page 75688]]
Hand Delivery: Richard R. Long, Director, Air and
Radiation Program, Environmental Protection Agency (EPA), Region 8,
Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Such deliveries are only accepted Monday through Friday, 8 a.m.
to 4:55 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-
2006-0502. 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
in http://www.regulations.gov or in hard copy at the Air and Radiation
Program, Environmental Protection Agency (EPA), Region 8, 999 18th
Street, Suite 300, Denver, Colorado 80202-2466. 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: Carl Daly, Air and Radiation Program,
U.S. Environmental Protection Agency, Region 8, 999 18th Street, Suite
200, Denver, Colorado 80202, (303) 312-6416, daly.carl@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The 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 words State or North Dakota mean the State of North
Dakota, unless the context indicates otherwise.
Table of Contents
I. General Information
A. What Should I Consider as I Prepare My Comments for EPA?
II. What Is Being Addressed In This Document?
III. What Are The Changes That EPA Is Approving?
IV. What Action is EPA Taking Today?
V. Statutory and Executive Order Reviews
I. General Information
A. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit CBI to EPA through
http://www.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. What Is Being Addressed In This Document?
EPA is proposing to approve North Dakota's revisions to their Air
Pollution Control Rules Chapter 33-15-15 (Prevention of Significant
Deterioration of Air Quality), submitted by North Dakota on February
10, 2005, that relate to the PSD construction permit programs of the
State of North Dakota. These revisions to Chapter 33-15-15 were adopted
by the North Dakota Department of Health on February 1, 2005. North
Dakota's Regulations for a PSD program for attainment areas were
federally-approved and made a part of the SIP on November 2, 1979 (44
FR 63103).
On December 31, 2002, EPA published revisions to the Federal PSD
and non-attainment NSR regulations in 40 CFR Parts 51 and 52 (67 FR
80186). These revisions are commonly referred to as the ``NSR Reform''
regulations and became effective nationally in areas not covered by a
SIP on March 3, 2003. These regulatory revisions include provisions for
baseline emissions determinations, actual-to-future-actual methodology,
plantwide applicability limits (PALs), clean units, and pollution
control projects (PCPs). As stated in the December 31, 2002 rulemaking,
State and local permitting agencies must adopt and submit revisions to
their part 51 permitting programs implementing the minimum program
elements of that
[[Page 75689]]
rulemaking no later than January 2, 2006 (67 FR 80240). With the
February 10, 2005 submittal, North Dakota requested approval of program
revisions into the State Implementation Plan (SIP) that satisfy this
requirement.
On November 7, 2003, EPA published a reconsideration of the NSR
Reform regulations that clarified two provisions in the regulations by
including a definition of ``replacement unit'' and by clarifying that
the plantwide applicability limitation (PAL) baseline calculation
procedures for newly constructed units do not apply to modified units
(68 FR 63021).
On June 24, 2005, the United States Court of Appeals for the
District of Columbia Circuit issued a ruling on challenges to the
December 2002 NSR Reform revisions (State of New York et al. v. EPA,
413 F.3d 3 (D.C. Cir. 2005)). Although the Court upheld most of EPA's
rules, it vacated both the Clean Unit and the Pollution Control Project
provisions and remanded back to EPA the recordkeeping provision at 40
CFR 52.21(r)(6) that required a stationary source to keep records of
projects when there was a ``reasonable possibility'' that the project
could result in a significant emissions increase.
In an August 30, 2005 letter to EPA, North Dakota requested that
EPA not take action on the clean unit and PCP provisions of the State
rule and on the term ``reasonable possibility'' as they were
incorporated by reference into the North Dakota Air Pollution Control
Rules Chapter 33-15-15. North Dakota requested no action on these
provisions because of the June 24, 2005 United States Court of Appeals
for the District of Columbia Circuit's decision. North Dakota has since
withdrawn their request for no action on the term ``reasonable
possibility.'' North Dakota has also supplemented its February 10, 2005
request in a November 2, 2005 submission that provided corrections to
several typographical errors in Chapter 33-15-15. All of these
documents are available for review as part of the Docket for this
action.
III. What Are The Changes That EPA Is Approving?
EPA is proposing to approve a revision to North Dakota's SIP that
would incorporate by reference the Federal requirements found at 40 CFR
52.21 into the State's PSD program. The current revision to the North
Dakota Air Pollution Control Rules Chapter 33-15-15, which EPA is now
proposing to approve into the SIP, incorporates by reference the
provisions of 40 CFR 52.21 paragraphs (a)(2) through (f), (h) through
(r), and (v) through (bb) as they existed on October 1, 2003 with the
exceptions noted below. North Dakota did not incorporate by reference
those sections of the Federal rules that do not apply to state
activities or are reserved for the Administrator of the EPA, such as
the ``delegation of authority'' section found at 40 CFR 52.21(u) and
the ``plan disapproval'' section found in 40 CFR 52.21(a)(1). North
Dakota retained existing SIP language for ``reclassification'' at 33-
15-15-02. The reclassification provision at 40 CFR 52.21(g) was not
revised by the December 2002 NSR Reform rule, so it is acceptable that
North Dakota's existing SIP-approved reclassification provision remains
in the SIP.
In an August 30, 2005 letter to EPA, North Dakota requested that
EPA not take action on the Clean Unit and Pollution Control Project
provisions and on the term ``reasonable possibility'' as they were
incorporated by reference into Chapter 33-15-15. However, North Dakota
has since withdrawn its request for no action on the term ``reasonable
possibility'' used in Sec. 52.21(r)(6). Therefore, EPA is not taking
action at this time on the following provisions in Chapter 33-15-15: 40
CFR 52.21(x), 52.21(y), 52.21(z), 52.21(a)(2)(iv)(e), the second
sentence of 52.21(a)(2)(iv)(f), 52.21(a)(2)(vi), 52.21(b)(2)(iii)(h),
52.21(b)(3)(iii)(b), 52.21(b)(3)(vi)(d), 52.21(b)(32), and
52.21(b)(42).
The phrase ``reasonable possibility'' used in the Federal rule at
40 CFR 52.21(r)(6) limits the recordkeeping provisions to modifications
at facilities that use the actual-to-future-actual methodology to
calculate emissions changes and that may have a ``reasonable
possibility'' of a significant emissions increase. EPA has not yet
responded to the D.C. Circuit Court's remand of the recordkeeping
provisions of EPA's 2002 NSR Reform Rules. The North Dakota rule
contains recordkeeping requirements that are identical to the remanded
Federal rule. As a result, EPA's final decision with regard to the
remand may require EPA to take further action on this portion of North
Dakota's rules. At this time, however, North Dakota's recordkeeping
provisions are as stringent as the Federal requirements, and are
therefore, approvable.
The following provisions in 40 CFR 52.21 have been revised in North
Dakota Air Quality Rules Chapter 33-15-15 to either add language that
is currently contained in the North Dakota SIP or to add new language
to North Dakota's PSD program: 40 CFR 52.21(b)(3)(iii)(a),
52.21(b)(14), 52.21(b)(15), 52.21(b)(22), 52.21(b)(29), 52.21(b)(30),
52.21(b)(43), 52.21(b)(48)(ii), 52.21(b)(51), 52.21(b)(53),
52.21(b)(54), 52.21(d), 52.21(e), 52.21(h), 52.21(i), 52.21(k)(1),
52.21(l)(1), 52.21(m)(3), 52.21(o)(1), 52.21(p), 52.21(p)(6),
52.21(p)(7), 52.21(p)(8), 52.21(q), 52.21(r)(2), 52.21(v)(1),
52.21(v)(2)(iv)(a), 52.21(w)(1), and 52.21(aa)(15). EPA's review of
these revisions is contained in a Technical Support Document (TSD) for
this action. The TSD is available for review as part of the Docket for
this action.
The North Dakota ``incorporation by reference'' properly clarified
the circumstances in which the term ``Administrator,'' found throughout
the Federal rules, was to remain the EPA Administrator, and when it was
intended to refer to the ``North Dakota Department of Health,''
instead.
As noted above, on November 7, 2003, EPA published a
reconsideration of the NSR Reform regulations that added a definition
of ''replacement unit'' and clarified that the plantwide applicability
limitation (PAL) baseline calculation procedures for newly-constructed
units do not apply to modified units. Since North Dakota has
incorporated by reference the regulations in 40 CFR 52.21 ``as they
exist on October 1, 2003'' (North Dakota provision 33-15-15-01.2),
these clarifications are not proposed for approval at this time. EPA
has communicated to North Dakota that, at its earliest convenience, the
State should revise provision 33-15-15-01.2 (Scope) to specify that 40
CFR 52.21 as amended and promulgated on July 1, 2004, or later, is
incorporated by reference in order for these clarifications to become
part of the SIP.
The requirements included in North Dakota's PSD program, as
specified in Chapter 33-15-15, are substantively the same as the
Federal provisions, due to North Dakota's incorporation of the Federal
rules by reference. The revisions North Dakota made to 40 CFR 52.21
noted above were reviewed by EPA and found to be as stringent, or more
stringent, than the Federal rules. EPA has, therefore, determined that
the proposed revisions are consistent with the program requirements for
the preparation, adoption and submittal of implementation plans for the
Prevention of Significant Deterioration of Air Quality, as set forth at
40 CFR 51.166, and are approvable as part of the North Dakota SIP.
IV. What Action Is EPA Taking Today?
EPA is proposing to approve revisions to North Dakota Air Pollution
Control Rules, Chapter 33-15-15, Prevention of Significant
Deterioration of Air Quality. Per North Dakota's request, EPA is taking
no action on Clean Unit
[[Page 75690]]
Exemptions (40 CFR 52.21(x) and (y)) and Pollution Control Projects (40
CFR 52.21(z)).
V. Statutory and Executive Order Reviews
Executive Order 12866; Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' as that term
is defined in Executive Order 13211, this action is also not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001).
Regulatory Flexibility Act
This proposed action merely proposes to approve State law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by State law. Accordingly, the Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this rule proposes to approve pre-existing requirements
under State law and does not impose any additional enforceable duty
beyond that required by State law, it does not contain any unfunded
mandate or significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Order 13175 Consultation and Coordination With Indian Tribal
Governments
This proposed rule does not have tribal implications because it
will not have a substantial direct effect on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes, as specified by Executive Order
13175 (59 FR 22951, November 9, 2000).
Executive Order 13132 Federalism
This action does not have Federalism implications because it does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely proposes to approve a State rule implementing a
Federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act.
Executive Order 13045 Protection of Children From Environmental Health
and Safety Risks
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not ``economically
significant'' under Executive Order 12866.
National Technology Transfer Advancement Act
In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
Paperwork Reduction Act
This proposed rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 1, 2006.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.
[FR Doc. E6-21502 Filed 12-15-06; 8:45 am]
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