22540 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules 

with 40 CFR Part 51, Appendix W 

‘‘Guideline on Air Quality Models,’’ as 

incorporated into the Tennessee SIP. 

These standards demonstrate that 

Tennessee has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 8-hour ozone NAAQS. 

Additionally, Tennessee supports a 

regional effort to coordinate the 

development of emissions inventories 

and conduct regional modeling for 

several NAAQS, including the 1997 

8-hour ozone NAAQS, for the 

Southeastern states. Taken as a whole, 

Tennessee’s air quality regulations and 

practices demonstrate that TDEC has the 

authority to provide relevant data for 

the purpose of predicting the effect on 

ambient air quality of the 8-hour ozone 

NAAQS. EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate the 

State’s ability to provide for air quality 

and modeling, along with analysis of the 

associated data, related to the 1997 8- 

hour ozone NAAQS when necessary. 

9. 110(a)(2)(L) Permitting fees: As 

discussed above, Tennessee’s SIP 

provides for the review of construction 

permits. Permitting fees in Tennessee 

are collected through the State’s 

federally-approved title V fees program 

and consistent with Chapter 1200–03– 

26–.02, Permit-Related Fees, of the 

Tennessee Code. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices 

adequately provide for permitting fees 

related to the 1997 8-hour ozone 

NAAQS when necessary. 

10. 110(a)(2)(M) Consultation/ 

participation by affected local entities: 

Chapter 1200–3–9–.01(4)(k), Public 

Participation, of the Tennessee SIP 

requires that TDEC notify the public of 

an application, preliminary 

determination, the activity or activities 

involved in the permit action, any 

emissions change associated with any 

permit modification, and the 

opportunity for comment prior to 

making a final permitting decision. By 

way of example, TDEC has recently 

worked closely with local political 

subdivisions during the development of 

its Transportation Conformity SIP, 

Regional Haze Implementation Plan, 

and Early Action Compacts. EPA has 

made the preliminary determination 

that Tennessee’s SIP and practices 

adequately demonstrate consultation 

with affected local entities related to the 

1997 8-hour ozone NAAQS when 

necessary. 

V. Proposed Action 

As described above, with the 

exception of sub-element 

110(a)(2)(E)(ii), EPA is proposing to 

determine that Tennessee’s 

infrastructure submission, provided to 

EPA on December 14, 2007, addressed 

the required infrastructure elements for 

the 1997 8-hour ozone NAAQS. EPA is 

proposing to approve in part and 

conditionally approve in part, 

Tennessee’s SIP submission consistent 

with section 110(k)(3) of the CAA. 

As described above, with the 

exception of sub-element 

110(a)(2)(E)(ii), TDEC has addressed the 

elements of the CAA 110(a)(1) and (2) 

SIP requirements pursuant to EPA’s 

October 2, 2007, guidance to ensure that 

the 1997 8-hour ozone NAAQS are 

implemented, enforced, and maintained 

in Tennessee. With respect to 

110(a)(2)(E)(ii) (referencing section 128 

of the CAA), EPA is proposing to 

conditionally approve Tennessee’s 

infrastructure SIP. On March 28, 2012, 

Tennessee submitted a letter requesting 

conditional approval of 110(a)(2)(E)(ii). 

In this letter, TDEC committed to adopt 

specific enforceable measures into its 

SIP and submit these revisions to EPA 

within one year of EPA’s final 

rulemaking to address the applicable 

portions of section 128. EPA is also 

proposing to approve Tennessee’s 

infrastructure submission for the 1997 

8-hour ozone NAAQS, with the 

exception of sub-element 110(a)(2)(E)(ii) 

because its December 14, 2007, 

submission is consistent with section 

110 of the CAA. 

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. 

See 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 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 Order 12866 (58 FR 51735, 

October 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, 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, this proposed 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, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: March 29, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–9073 Filed 4–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0300; FRL–9659–3] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standards; North Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 


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ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

and conditionally approve the State 

Implementation Plan (SIP) submission 

from the State of North Dakota to 

demonstrate that the SIP meets the 

requirements of section 110(a)(1) and (2) 

of the Clean Air Act (CAA) for the 

National Ambient Air Quality Standards 

(NAAQS) promulgated for ozone on July 

18, 1997. Section 110(a)(1) of the CAA 

requires that each state, after a new or 

revised NAAQS is promulgated, review 

their SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’ of section 110(a)(2). The State 

of North Dakota submitted revisions to 

their Infrastructure SIP for the 1997 

ozone NAAQS, dated April 6, 2009, as 

well as a certification of their 

infrastructure SIP for the 1997 ozone 

NAAQS dated November 23, 2009. 

DATES: Written comments must be 

received on or before May 16, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2010–0300, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: ayala.kathy@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Director, Air Program, 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 

• Hand Delivery: Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mail Code 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–2010– 

0300. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 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 www.regulations.gov 

or email. The 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 email 

comment directly to EPA, without going 

through www.regulations.gov your email 

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 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 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: 

Kathy Ayala, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–6142, ayala.

kathy@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 initials DAQ mean or refer to 

Division of Air Quality. 

(iii) The words EPA, we, us or our mean 

or refer to the United States Environmental 

Protection Agency. 

(iv) The initials FIP mean or refer to a 

Federal Implementation Plan. 

(v) The initials GHGs mean or refer to 

greenhouse gases. 

(vi) The initials NAAQS mean or refer to 

national ambient air quality standards. 

(vii) The initials NDAC mean or refer to 

North Dakota Administrative Code. 

(viii) The initials NDCC mean or refer to 

North Dakota Century Code. 

(ix) The initials NOX mean or refer to 

nitrogen oxides. 

(x) The initials NSR mean or refer to new 

source review. 

(xi) The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 2.5 micrometers (fine 

particulate matter). 

(xii) The initials ppm mean or refer to parts 

per million. 

(xiii) The initials PSD mean or refer to 

Prevention of Significant Deterioration. 

(xiv) The initials SIP mean or refer to State 

Implementation Plan. 

(xv) The initials SSM mean or refer to startup, shutdown, or malfunction. 

Table of Contents 

I. General Information 

II. Background 

III. Scope of Infrastructure SIPs 

IV. How did the State of North Dakota 

address the infrastructure elements of 

sections 110(a)(1) and (2)? 

V. What action is EPA taking? 

VI. Statutory and Executive Order Reviews 

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, date, and page number); 


emcdonald on DSK29S0YB1PROD with PROPOSALS
22542 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules 

1Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, ‘‘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’’ (Oct. 2, 

2007). 

2See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

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 July 18, 1997, EPA promulgated a 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm (62 

FR 38856). By statute, SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) are to be submitted by states within 

three years after promulgation of a new 

or revised standard. Section 110(a)(2) 

provides basic requirements for SIPs, 

including emissions inventories, 

monitoring, and modeling, to assure 

attainment and maintenance of the 

standards. These requirements are set 

out in several ‘‘infrastructure elements,’’ 

listed in section 110(a)(2). 

Section 110(a) imposes the obligation 

upon states to make a SIP submission to 

EPA for a new or revised NAAQS, and 

the contents of that submission may 

vary depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

the state develops and submits the SIP 

for a new or revised NAAQS affects the 

content of the submission. The contents 

of such SIP submission may also vary 

depending upon what provisions the 

state’s existing SIP already contains. In 

the case of the 1997 ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. 

In a guidance issued on October 2, 

2007, EPA noted that, to the extent an 

existing SIP already meets the section 

110(a)(2) requirements, states need only 

certify that fact via a letter to EPA.1

On March 27, 2008, EPA published a 

final rule entitled, ‘‘Completeness 

Findings for Section 110(a) State 

Implementation Plans for the 8-hour 

Ozone NAAQS’’ (73 FR 16205). In the 

rule, EPA made a finding for each state 

that it had submitted or failed to submit 

a complete SIP that provided the basic 

program elements of section 110(a)(2) 

necessary to implement the 1997 8-hour 

ozone NAAQS. In this rule, EPA found 

that North Dakota failed to submit the 

relevant SIP. The findings of failure to 

submit established a 24-month deadline 

for EPA to promulgate a Federal 

Implementation Plan (FIP) to address 

the outstanding SIP elements unless, 

prior to that time, North Dakota 

submitted, and EPA approved, the 

required SIP. However, the finding of 

failure to submit did not impose 

sanctions, set deadlines for imposing 

sanctions, or set deadlines for imposing 

sanctions as described in section 179 of 

the CAA, because these findings do not 

pertain to the elements contained in the 

Title I part D plan for nonattainment 

areas as required under section 

110(a)(2)(l). Additionally, the finding of 

failure to submit for the infrastructure 

submittals are not SIP calls under 

section 110(k)(5). 

Section 110(a)(1) provides the 

procedural and timing requirements for 

SIP submissions after a new or revised 

NAAQS is promulgated. Section 

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)(ii): Interstate and 

international pollution. 

• 110(a)(2)(E): Adequate resources 

and authority. 

• 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 prevention of 

significant deterioration (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: (i) Section 

110(a)(2)(C) to the extent it refers to 

permit programs (known as 

‘‘nonattainment new source review 

(NSR)’’) required under part D, and (ii) 

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). 

This action also does not address the 

‘‘interstate transport’’ requirements of 

element 110(a)(2)(D)(i), or the visibility 

protection requirements of element 

110(a)(2)(J). EPA approved portions of 

the state’s 110(a)(2)(D)(i) interstate 

transport SIP for the 1997 ozone 

NAAQS in separate prior actions (75 FR 

31290; 75 FR 71023). 

III. Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and fine particulate matter (PM2.5) 

NAAQS for various states across the 

country. Commenters on EPA’s recent 

proposals for some states raised 

concerns about EPA statements that it 

was not addressing certain substantive 

issues in the context of acting on the 

infrastructure SIP submissions.2 The 

commenters specifically raised concerns 

involving provisions in existing SIPs 

and with EPA’s statements that it would 

address two issues separately and not as 

part of actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction (SSM) at sources, that may 


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3For example, section 110(a)(2)(E) 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 substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

4For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each SIP contains adequate 

provisions to prevent significant contribution to 

nonattainment of the NAAQS in other states. This 

provision contains numerous terms that require 

substantial rulemaking by EPA in order to 

determine such basic points as what constitutes 

significant contribution. See, e.g., ‘‘Rule To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to the NOX SIP Call; Final 

Rule,’’ 70 FR 25162 (May 12, 2005)(defining, among 

other things, the phrase ‘‘contribute significantly to 

nonattainment’’). 

5See, e.g., Id., 70 FR 25162, at 63–65 (May 12, 

2005)(explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (‘‘director’s discretion’’). 

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) Existing provisions 

for minor source NSR programs that 

may be inconsistent with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source NSR’’); and (ii) 

existing provisions for PSD programs 

that may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80,186 

(December 31, 2002), as amended by 72 

FR 32,526 (June 13, 2007) (‘‘NSR 

Reform’’). In light of the comments, EPA 

now believes that its statements in 

various proposed actions on 

infrastructure SIPs with respect to these 

four individual issues should be 

explained in greater depth with respect 

to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such state 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issue in the context of the infrastructure 

SIPs. This was not EPA’s intention. To 

the contrary, EPA only meant to convey 

its awareness of the potential for certain 

types of deficiencies in existing SIPs, 

and to prevent any misunderstanding 

that it was reapproving any such 

existing provisions. EPA’s intention was 

to convey its position that the statute 

does not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements, however, we want to 

explain more fully the Agency’s reasons 

for concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘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 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, NSR permitting program 

submissions required to address the 

requirements of part D, and a host of 

other specific types of SIP submissions 

that address other specific matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, 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 provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.3 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.4

Notwithstanding that section 110(a)(2) 

states that ‘‘each’’ SIP submission must 

meet the list of requirements therein, 

EPA has long noted that this literal 

reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).5 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 


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6EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

7For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

8See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I-X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). EPA issued comparable guidance for 

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),’’ from 

William T, Harnett, Director Air Quality Policy 

Division, to Regional Air Division Directors, 

Regions I-X, dated September 25, 2009 (the ‘‘2009 

Guidance’’). 

9 Id., at page 2. 

10 Id., at attachment A, page 1. 

11 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.6 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the SIP. Finally, EPA notes 

that not every element of section 

110(a)(2) would be relevant, or as 

relevant, or relevant in the same way, 

for each new or revised NAAQS and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.7

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirement applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.8 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 9 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 10 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

states to meet these requirements with 

assistance from EPA Regions.’’ 11 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each state would work with its 

corresponding EPA regional office to 

refine the scope of a state’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the SIP for the NAAQS in question. 

Significantly, the 2007 Guidance did 

not explicitly refer to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance, 

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s proposals 

mentioned these issues not because the 


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12EPA has issued a SIP call to rectify a specific 

SIP deficiency related to the SSM issue. See, 

‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21,639 

(April 18, 2011). 

13EPA has utilized this authority to correct errors 

in past actions on SIP submissions related to PSD 

programs. See, ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82,536 (Dec. 30, 2010). EPA has previously used its 

authority under CAA 110(k)(6) to remove numerous 

other SIP provisions that the Agency determined it 

had approved in error. See, e.g., 61 FR 38,664 (July 

25, 1996) and 62 FR 34,641 (June 27, 1997) 

(corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67,062 

(November 16, 2004) (corrections to California SIP); 

and 74 FR 57,051 (November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

14EPA has disapproved a SIP submission from 

Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42,342 at 

42,344 (July 21,2010) (proposed disapproval of 

director’s discretion provisions); 76 FR 4540 (Jan. 

26, 2011) (final disapproval of such provisions). 

Agency considers them issues that must 

be addressed in the context of an 

infrastructure SIP as required by section 

110(a)(1) and (2), but rather because 

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a SIP is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or otherwise to comply with the CAA.12

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.13

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.14

IV. How did the State of North Dakota 

address the infrastructure elements of 

section 110(a)(1) and (2)? 

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. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: North Dakota Century Code 

(NDCC) 23–25–03.5–.8; NDCC 23–25– 

03.12; NDCC 23–25–04.2; North Dakota 

Administrative Code (NDAC) 33–15–07, 

17, 20 (Control measures for VOC); 

NDAC 33–15–23 (Fees). 

b. EPA analysis: North Dakota’s SIP 

meets the requirements of CAA section 

110(a)(2)(A) for the 1997 ozone 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 1997 ozone 

NAAQS, and North Dakota has no areas 

designated as nonattainment for the 

1997 ozone NAAQS. Nonetheless, the 

North Dakota SIP contains provisions 

for control of volatile organic 

compounds, an ozone precursor (NDAC 

33–15–07). North Dakota also regulates 

emissions of ozone and its precursors 

through its SIP-approved major and 

minor source permitting programs (64 

FR 32433, June 17, 1999; 71 FR 3764, 

January 24, 2006). This suffices, in the 

case of North Dakota, to meet the 

requirements of section 110(a)(2)(A) for 

the 1997 ozone NAAQS. 

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. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: NDCC 23–25–03.2; NDCC 23– 

25–05; NDCC 23–15–14–02.9a; SIP 

Sections 6.7 & 6.8. 

b. EPA analysis: North Dakota’s air 

monitoring programs and data systems 

meet the requirements of CAA section 

110(a)(2)(B) for the 1997 ozone NAAQS. 

The North Dakota Division of Air 

Quality’s (DAQ) 2011 Ambient Air 

Annual Monitoring Network Plan was 

approved by EPA Region 8 on January 

12, 2011. In this action, EPA also 

proposes approval of North Dakota’s 

revised SIP chapter 6.8, ‘‘Annual 

Network Review,’’ and revised SIP 

chapter 6.11.3, ‘‘Air Quality 

Surveillance: Ozone,’’ submitted April 

6, 2009. 

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 that NAAQS are 

achieved, including a permit program as 

required in parts C and D. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: Enforcement: NDCC 23–25–10; 

NDCC 23–25–05; NDCC 33–15–01–17; 

Permits: NDCC 23–25–03.6; NDCC 33– 

15–14; NDCC 33–15–15; SIP Chapters 7 

and 8. 


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b. EPA analysis: As explained above, 

in this action EPA is not evaluating nonattainment related provisions, such as 

the nonattainment NSR program 

required by part D of the Act. In 

addition, North Dakota has no 

nonattainment areas for the 1997 ozone 

NAAQS, and is therefore, not required 

at this point to have a corresponding 

nonattainment NSR program. In this 

action, 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). 

North Dakota’s PSD Program 

North Dakota’s SIP-approved PSD 

program incorporates by reference (with 

certain exceptions) the federal PSD 

program at 52.21 as of August 1, 2007. 

As described in our notice of approval 

of the most recent revision of the 

program (75 FR 31290, June 3, 2010), 

North Dakota’s PSD program met the 

general requirements of CAA section 

110(a)(2)(C) as of that date, as well as 

the program requirement to treat 

nitrogen oxides (NOX) as an ozone 

precursor in accordance with the phase 

2 implementation rule for the 1997 

ozone NAAQS (72 FR 71612, November 

29, 2005). North Dakota’s PSD program 

therefore meets the requirements of 

section 110(a)(2)(C) with regard to 

implementation of the 1997 ozone 

NAAQS. 

We also consider the requirements for 

PSD programs with respect to 

greenhouse gases (GHGs). North 

Dakota’s PSD program was not subject 

to EPA’s rule, ‘‘Limitation of Approval 

of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans’’ (‘‘PSD SIP 

Narrowing Rule’’), 75 FR 82536 (Dec. 

30, 2010). As explained in a 

memorandum in the docket for that 

action, North Dakota stated that it could 

implement the current SIP-approved 

PSD program with the thresholds for 

GHGs set in EPA’s June 3, 2010 

‘‘Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring 

Rule’’ (‘‘Tailoring Rule’’), 75 FR 31514. 

It was therefore not necessary in the 

PSD SIP Narrowing Rule to withdraw 

approval of North Dakota’s PSD program 

to the extent that it applied PSD 

permitting to GHG emissions increases 

from GHG-emitting sources below 

Tailoring Rule thresholds. North Dakota 

also stated its intent to revise its PSD 

program to expressly adopt the 

Tailoring Rule thresholds. North Dakota 

revised its program correspondingly on 

April 1, 2011 and submitted the SIP 

revision to us on April 14, 2011. As a 

result, North Dakota’s 2009 certification 

of adequacy of its PSD program remains 

valid. 

North Dakota’s April 14, 2011 SIP 

submittal includes various updates to 

the State’s PSD program. We are 

reviewing this submittal and intend to 

propose action on it in the near future. 

We note that the submittal appears to 

satisfy the requirements, with respect to 

the State’s PSD program, of the rule 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5),’’ promulgated May 16, 2008 (73 

FR 28321). However, we will only reach 

a final conclusion on the adequacy of 

the revisions when we act on them 

through the separate rulemaking. 

North Dakota’s Minor NSR Program 

The State has a SIP-approved minor 

NSR program, adopted under section 

110(a)(2)(C) of the Act, which regulates 

emissions of ozone and its precursors. 

The State and EPA have relied on the 

existing state minor NSR 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. 

In this action, EPA is proposing to 

approve North Dakota’s infrastructure 

SIP for the 1997 ozone NAAQS with 

respect to the general requirement in 

section 110(a)(2)(C) to include a 

program in the SIP that regulates the 

modification and construction of any 

stationary source as necessary to assure 

that the NAAQS are achieved. EPA is 

not proposing to approve or disapprove 

the State’s existing minor NSR program 

itself to the extent that it is inconsistent 

with EPA’s regulations governing this 

program. A number of states may have 

minor NSR provisions that are contrary 

to the existing EPA regulations for this 

program. EPA intends to work with 

states to reconcile state minor NSR 

programs with EPA’s regulatory 

provisions for the program. The 

statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 

programs, and it may be time to revisit 

the regulatory requirements for this 

program to give the states an 

appropriate level of flexibility to design 

a program that meets their particular air 

quality concerns, while assuring 

reasonable consistency across the 

country in protecting the NAAQS with 

respect to new and modified minor 

sources. 

4. Interstate transport: Section 

110(a)(2)(D)(i) requires SIPs to contain 

adequate provisions prohibiting, 

consistent with the provisions of this 

title, any source or other type of 

emissions activity within the state from 

emitting any air pollutant in amounts 

which will (I) contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state, with 

respect to any such national primary or 

secondary ambient air quality standard, 

or (II) interfere with measures required 

to be included in the applicable 

implementation plan for any other state 

under part C to prevent significant 

deterioration of air quality or to protect 

visibility. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: (i)(I): NDCC 23–25–03.6; NDCC 

23–25–03.7; NDCC 33–25–03.12; SIP 

Section 7.7 (submitted 4/09); (i)(II): 

NDCC 23–25–03.4; NDCC 23–25–03.12; 

SIP Section 7.8 (submitted 4/09). 

b. EPA analysis: North Dakota 

submitted SIP revisions to EPA April 6, 

2009, which included revisions to the 

State’s interstate transport SIP. EPA 

approved portions of the State’s 

110(a)(2)(D)(i) interstate transport SIP 

for the 1997 ozone NAAQS in separate 

actions (75 FR 31290; 75 FR 71023), and 

has not yet completed action on the 

remaining portion to meet the 

requirement of 110(a)(2)(D)(i)(II) 

regarding interference with measures to 

protect visibility. EPA is taking no 

action relevant to section 110(a)(2)(D)(i) 

in this proposal. 

5. Interstate and International 

transport provisions: Section 

110(a)(2)(D)(ii) requires that each SIP 

shall contain adequate provisions 

insuring compliance with applicable 

requirements of sections 126 and 115 

(relating to interstate and international 

pollution abatement). 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: NDCC 23–25–03.12; SIP 

Section 7.8 (submitted 4/09). 

b. EPA Analysis: 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 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. This provision satisfies 

the notice requirement of section 126(a). 


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15Memorandum from David O. Bickart, Deputy 

General Counsel, to Regional Air Directors, 

Guidance to States for Meeting Conflict of Interest 

Requirements of Section 128 (Mar. 2, 1978). 

16H.R. Rep. 95–564 (1977), reprinted in 3 

Legislative History of the Clean Air Act 

Amendments of 1977, 526–27 (1978). 

North Dakota has no pending 

obligations under sections 126(c) or 

115(b); therefore, its SIP currently meets 

the requirements of those sections. The 

SIP therefore meets the requirements of 

110(a)(2)(D)(ii) for the 1997 ozone 

NAAQS. 

6. Adequate resources and authority: 

Section 110(a)(2)(E) requires states to 

provide (i) 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), (ii) requires that the 

state comply with the requirements 

respecting state boards under section 

128, and (iii) 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. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: (i): NDCC 23–25–04.2; NDAC 

33–15–01–15; NDAC 33–15–23; SIP 

Chapter 9; (ii): NDCC 23–25–02.1; SIP 

Section 2.15 (submitted 4/09); (iii): 

NDCC 23–25–02.1; SIP Section 2.7. 

b. EPA analysis: North Dakota’s SIP 

meets the requirements of section 

110(a)(2)(E)(i) for the 1997 ozone 

NAAQS. NDCC 23–25–03 provides 

adequate authority for the State of North 

Dakota to carry out its SIP obligations 

with respect to the 1997 ozone NAAQS. 

The State receives sections 103 and 105 

grant funds through its Performance 

Partnership Grant along with required 

state matching funds to provide funding 

necessary to carry out North Dakota’s 

SIP requirements. North Dakota 

submitted an updated version of SIP 

Chapter 9, ‘‘Resources,’’ to EPA on April 

6, 2009. In this action, EPA proposes to 

approve the updated version of SIP 

Chapter 9, and therefore finds that 

North Dakota’s resources meet the 

requirements of CAA section 

110(a)(2)(E)(i). 

With regard to section 110(a)(2)(E)(ii), 

in its submittal North Dakota stated that 

section 128 does not apply because the 

State does not have a board or body that 

approves permits or enforcement orders 

under the CAA. We also note that the 

North Dakota SIP currently does not 

contain provisions addressing the 

requirements of section 128 of the CAA. 

Congress added section 128 in the 

1977 amendments as the result of a 

conference agreement. Titled ‘‘State 

boards,’’ section 128 provides in 

relevant part: 

(a) Not later than the date one year 

after August 7, 1977, each applicable 

implementation plan shall contain 

requirements that— 

(1) Any board or body which 

approves permits or enforcement orders 

under [this Act] shall have at least a 

majority of members who represent the 

public interest and do not derive any 

significant portion of their income from 

persons subject to permits or 

enforcement orders under [this Act], 

and 

(2) 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. 

In 1978, we issued a guidance 

memorandum recommending ways 

states could meet the requirements of 

section 128, including suggested 

interpretations of certain terms in 

section 128.15

In order to determine what 

requirements the North Dakota SIP must 

satisfy, we discuss various aspects of 

section 128. We first note that, in the 

conference report, the committee stated: 

‘‘It is the responsibility of each state to 

determine the specific requirements to 

meet the general requirements of 

[section 128].’’ 16 We think that this 

legislative history indicates that 

Congress intended states to have some 

latitude in the specifics of implementing 

section 128, so long as the 

implementation is consistent with the 

plain text of the section. We also note 

that Congress explicitly provided in 

section 128 that states could adopt more 

stringent requirements. As a result, we 

note three relevant considerations for 

implementing section 128. 

First, section 128 must be 

implemented through SIP-approved, 

federally enforceable provisions. 

Section 128 explicitly mandates that 

each SIP ‘‘shall contain requirements’’ 

that satisfy subsections 128(a)(1) and 

128(a)(2). A mere narrative description 

of state statutes or rules, or of a state’s 

current or past practice in constituting 

a board or body and in disclosing 

potential conflicts of interest, is not a 

requirement contained in the SIP and 

therefore does not satisfy the plain text 

of section 128. 

Second, subsection 128(a)(1) applies 

only to states that have a board or body 

that is composed of multiple 

individuals and that, among its duties, 

approves permits or enforcement orders 

under the CAA. It does not apply in 

states that have no such multi-member 

board or body, and where instead a 

single head of an agency approves 

permits or enforcement orders under the 

CAA. This flows from the text of section 

128 itself, for two reasons. First, as 

subsection 128(a)(1) refers to a majority 

of members in the plural, we think it 

reasonable to read subsection 128(a)(1) 

as not creating any requirements for an 

individual with sole authority for 

approving a permit or enforcement 

order under the CAA. Second, 

subsection 128(a)(2) explicitly applies to 

the head of an executive agency with 

‘‘similar powers’’ to a board or body that 

approves permits or enforcement orders 

under the CAA, while subsection 

128(a)(1) omits any reference to heads of 

executive agencies. We infer that 

subsection 128(a)(1) should not apply to 

heads of executive agencies who 

approve permits or enforcement orders. 

Third, subsection 128(a)(2) applies to 

all states, regardless of whether the state 

has a multi-member board or body that 

approves permits or enforcement orders 

under the CAA. Although the title of 

section 128 is ‘‘State boards,’’ the 

language of subsection 128(a)(2) 

explicitly applies where the head of an 

executive agency, rather than a board or 

body, approves permits or enforcement 

orders. In instances where the head of 

an executive agency delegates his or her 

power to approve permits or 

enforcement orders, or where statutory 

authority to approve permits or 

enforcement orders is nominally vested 

in another state official, the requirement 

to disclose adequately potential 

conflicts of interest still applies. In other 

words, EPA thinks that SIPs for all 

states, regardless of whether a state 

board or body approves permits or 

enforcement orders under the CAA, 

must contain adequate provisions for 

disclosure of potential conflicts of 

interest. 

We propose to apply these 

considerations to the North Dakota SIP. 

North Dakota currently does not have a 

multi-member board or body that 

approves permits or enforcement orders 

under the CAA. Instead, permits are 

approved by the Director of DAQ, and 

enforcement orders are approved by the 

Section Chief of the Environmental 

Health Section. Thus, we propose that 

North Dakota currently is not subject to 

the requirements of subsection 

128(a)(1). 

However, North Dakota is subject to 

the requirements of section 128(a)(2), 

and we therefore cannot approve the 

certification, as originally submitted, 

with respect to section 110(a)(2)(E)(ii). 

North Dakota has informed us that the 


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22548 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules 

17North Dakota’s commitment letter is available 

in the docket. 

North Dakota Department of Health has 

an ethics policy requiring (among other 

things) internal disclosure of potential 

conflicts of interest and recusal from the 

matter raising the conflict. North Dakota 

has committed to submit as a SIP 

revision provisions reflecting this 

policy, to the extent necessary to meet 

the requirements of section 128, by July 

31, 2013.17 Because recusal is more 

stringent than the minimum disclosure 

required by subsection 128(a)(2), we 

propose that the policy, if submitted as 

an enforceable SIP provision, will meet 

the requirements of section 128. We 

therefore propose to conditionally 

approve North Dakota’s certification 

with respect to the requirements of 

section 128(a)(2). 

Finally, with respect to section 

110(a)(2)(E)(iii), North Dakota has not 

assigned responsibility for carrying out 

portions of the SIP to any local 

government, agency, or other 

instrumentality. North Dakota’s SIP 

therefore meets the requirements for this 

element. 

7. Stationary source monitoring and 

reporting: 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. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: (i): NDCC 23–25–03.10; NDAC 

33–15–01.12.1; NDAC 33–15–14–02.9; 

SIP Sections 8.2 and 8.3; (ii) NDAC 23– 

25–03.10; NDCC 23–25–04.2; 33–15–14– 

02.9.d; NDAC 33–15–01.12.1; (iii): 

NDCC 23–25–03.10; NDCC 23–25–06; 

NDCC 23–25–03.6; NDAC 33–15–01– 

16.1; NDCC 23–25–04.2; SIP Section 8.2. 

b. EPA analysis: NDCC section 23–25– 

03.10 generally requires monitoring, 

recordkeeping, and reporting for owners 

and operators of regulated sources. 

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. North Dakota’s SIP therefore 

meets the requirements of section 

110(a)(2)(F) for the 1997 ozone NAAQS. 

8. Emergency powers: Section 

110(a)(2)(G) requires states to provide 

for authority to address activities 

causing imminent and substantial 

endangerment to public health, 

including contingency plans to 

implement the emergency episode 

provisions in their SIPs. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: NDCC 23–25–03.5; NDCC 23– 

25–03.12; NDCC 23–25–09.5; NDAC 33– 

15–11; SIP Chapter 5. 

b. EPA analysis: NDAC 33–15–11 and 

SIP Chapter 5 provide the State with 

general emergency authority comparable 

to that in section 303 of the Act. North 

Dakota has not monitored any values 

above the priority cut point for ozone. 

See 40 CFR 51.150(b)(5). The SIP 

therefore meets the requirements of 

110(a)(2)(G) for the 1997 ozone 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. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: (i): NDCC 23–25–03.7; NDCC 

23–25–03.6; NDCC 23–25–03.8; SIP 

Section 1.14 (submitted 4/09); (ii): 

NDCC 23–25–03.6–.8; NDCC 23–25– 

03.12; SIP Section 1.14 (submitted 4/ 

09). 

b. EPA analysis: EPA is proposing to 

approve Section 1.14 of the SIP 

submitted to EPA April 6, 2009. Section 

1.14 requires revision of the SIP in the 

circumstances enumerated in section 

110(a)(2)(H) of the CAA. NDCC section 

23–25–03 provides adequate authority 

for the Department of Health to carry 

out such revisions. EPA therefore finds 

that the State has sufficient authority to 

meet the requirements of 110(a)(2)(H). 

10. Nonattainment Area Plan or Plan 

Revision under Part D: Section 

110(a)(2)(I) requires that a SIP or SIP 

revision for an area designated as a 

nonattainment area must meet the 

applicable requirements of part D of this 

subchapter (relating to nonattainment 

areas). 

a. EPA analysis for Section 

110(a)(2)(I): As noted above, the specific 

nonattainment area plan requirements 

of section 110(a)(2)(I) are subject to the 

timing requirement of section 172, not 

the timing requirement of section 

110(a)(1). This element is therefore not 

applicable to this action. EPA will take 

action on part D attainment plans 

through a separate process. 

11. 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 

subchapter (relating to PSD of air 

quality and visibility protection). 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: (section 121): NDCC 23–25–08 

(Orders); NDCC 23–25–03.4 and .6; 

NDAC 33–15–14 and 15; SIP Chapter 

10; (section 127): SIP Section 6.9; NDCC 

23–25–06.1; (PSD): NDCC 23–25–03.12; 

NDAC 33–15–15; NDAC 33–15–19; 

NDAC 33–15–25; NDAC 33–15–02–03.4. 

b. EPA analysis: The State has 

demonstrated that it has the authority 

and rules in place 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. EPA previously 

approved portions of the North Dakota 

SIP as meeting the requirements of CAA 

section 127. (45 FR 53475, Aug. 12, 

1980). 

As discussed above, the State has a 

SIP-approved PSD program that (for the 

most part) 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 IV.3, element 

110(a)(2)(C). 

Finally, with regard to the applicable 

requirements for visibility protection, 

EPA recognizes that 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. In conclusion, the 

North Dakota SIP meets the 

requirements of section 110(a)(2)(J) for 

the 1997 ozone NAAQS. 


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Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules 22549 

12. Air quality and modeling/data: 

Section 110(a)(2)(K) requires that 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. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: (i): NDCC 23–25–03.2 and .12; 

SIP Section 7.7 (Submitted 4/09); (ii): 

SIP Section 7.7 (Submitted 4/09); NDCC 

23–23–06.1. 

b. EPA analysis: North Dakota’s SIP 

meets the requirements of CAA section 

110(a)(2)(K) for the 1997 ozone NAAQS. 

In particular, 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 provision 

at 40 CFR 52.21(l)(2) requiring that 

modification or substitution of a model 

specified in Appendix W must be 

approved by the Administrator. EPA 

also proposes to approve the addition of 

SIP section 7.7, submitted April 6, 2009, 

as meeting the requirements of this 

section 110(a)(2)(K)(ii). As a result, the 

SIP provides for such air quality 

modeling as the Administrator has 

prescribed. 

13. Permitting fees: Section 

110(a)(2)(L) requires SIPs to require 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. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: (i): NDCC 23–25–04.2; NDAC 

33–15–23; (ii): NDAC 23–25–04.2; 

NDAC 33–15–23. 

b. EPA analysis: North Dakota’s 

submittal meets the requirements of 

CAA section 110(a)(2)(L) for the 1997 

ozone NAAQS. Final approval of the 

title V operating permit program became 

effective June 17, 1999(64 FR 32433). As 

discussed in that approval, the State 

demonstrated that the fees collected 

were sufficient to administer the 

program. In addition, the SIP contains 

fee provisions for construction permits 

(NDAC 33–15–23–02), including costs 

of processing not covered by the 

application fee. The SIP also contains 

fee provisions for minor source 

operating permits (NDAC 33–15–23–03). 

14. 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. 

a. North Dakota’s response to this 

requirement: The State listed the 

following provisions to meet this 

element: NDCC 23–25–03.4; SIP Chapter 

10. 

b. EPA analysis: North Dakota’s 

submittal meets the requirements of 

CAA section 110(a)(2)(M) for the 1997 

ozone NAAQS. 

V. What action is EPA taking? 

In this action, EPA is proposing to 

approve in full the November 23, 2009 

certification for the following section 

110(a)(2) infrastructure elements for 

North Dakota for the 1997 ozone 

NAAQS: (A), (B), (C), (D)(ii), (E)(i), 

(E)(iii), (F), (G), (H), (J), (K), (L), and (M). 

EPA is proposing to conditionally 

approve the November 23, 2009 

certification for infrastructure element 

110(a)(2)(E)(ii) for the 1997 ozone 

NAAQS. EPA is taking no action on 

infrastructure elements (D)(i), (I), and 

the visibility protection requirement of 

(J) for the 1997 ozone NAAQS. In this 

action, EPA also proposes to approve 

portions of North Dakota’s April 6, 2009 

SIP submission. Specifically, EPA 

proposes to approve North Dakota’s 

revisions to SIP sections 6.8, 6.11.3, and 

chapter 9, and the additions of SIP 

sections 1.14 and 7.7. 

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, 

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, 

October 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, 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, 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, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: March 30, 2012. 

James B. Martin, 

Regional Administrator, Region 8. 

[FR Doc. 2012–9075 Filed 4–13–12; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK29S0YB1PROD with PROPOSALS