27898 Federal Register / Vol. 78, No. 92 / Monday, May 13, 2013 / Proposed Rules 

12. 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. Montana’s response to this 

requirement: The State’s submissions 

for the 1997 and 2006 PM2.5

infrastructure requirements cite Section 

75–2–112(2)(j) of the MT CAA which 

requires the Department to ‘‘. . . advise, 

consult, contract, and cooperate with 

other agencies of the state, local 

governments, industries, other states, 

interstate and interlocal agencies, the 

United States, and any interested 

persons or groups; . . .’’ 

As a matter of practice, the 

Department consults with the local 

agencies when nec . . . essary to 

implement a control plan for a 

nonattainment area. The Department 

also meets with county/local air 

pollution control program staff and 

discusses monitoring issues, including 

monitoring for PM2.5, prior to making 

decisions regarding monitoring needs, 

monitor type, locations, and monitoring 

schedules. 

Parties affected by Department 

actions, including local political 

subdivisions, may petition the BER for 

a hearing and address of their 

grievances, see ARM 17.8.140 (66 FR 

42427), 17.8.141 (66 FR 42427), and 

17.8.142 (66 FR 42427). 

b. EPA Analysis: Montana’s submittal 

meets the requirements of CAA section 

110(a)(2)(M) for the 1997 and 2006 

PM2.5 NAAQS. 

VI. What action is EPA taking? 

In this action, EPA is proposing to 

approve the following infrastructure 

elements for the 1997 and 2006 PM2.5

NAAQS: (A), (C) with respect to the 

requirement to have a minor NSR 

program that addresses PM2.5; (E)(i), 

(E)(iii), (F), (G), (H), (J) with respect to 

the requirements of sections 121 and 

127, (K), (L), and (M). EPA is proposing 

to disapprove the following 

infrastructure elements for the 1997 and 

2006 PM2.5 NAAQS: (E)(ii) concerning 

requirements for state boards under 

section 128; and elements (C) and (J) 

with respect to the requirement to have 

a PSD program that meets the 

requirements of part C of Title I of the 

Act. Finally, in this action, EPA is 

taking no action on infrastructure 

element (D) for the 1997 and 2006 PM2.5

NAAQS as that element will be acted on 

separately. 

VII. 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, 

Greenhouse gases, Lead, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: May 2, 2013. 

Howard M. Cantor, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2013–11293 Filed 5–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2011–0726; FRL–9813–1] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 and 2006 PM2.5 National Ambient 

Air Quality Standards; Prevention of 

Significant Deterioration Requirements 

for PM2.5 Increments and Major and 

Minor Source Baseline Dates; State 

Board Requirements; North Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

the State Implementation Plan (SIP) 

submission from the State of North 

Dakota to demonstrate that the SIP 

meets the infrastructure requirements of 

the Clean Air Act (CAA) for the National 

Ambient Air Quality Standards 

(NAAQS) promulgated for particulate 

matter less than or equal to 2.5 

micrometers (mm) in diameter (PM2.5) on 

July 18, 1997 and on October 17, 2006. 

The CAA requires that each state, after 

a new or revised NAAQS is 

promulgated, review their SIP to ensure 

that it meets the requirements of the 

‘‘infrastructure elements’’ necessary to 

implement the new or revised NAAQS. 

On May 25, 2012, North Dakota 

submitted a certification of their 

infrastructure SIP for the 1997 PM2.5

NAAQS. On August 12, 2010 and May 

22, 2012, North Dakota submitted 

certifications of their infrastructure SIP 

for the 2006 PM2.5 NAAQS. We are also 

proposing to approve two submissions 

from North Dakota that revise the SIP to 

address particular infrastructure 

elements. First, the State submitted 

revisions to the North Dakota Air 

Pollution Control Rules (NDAC) on 


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January 24, 2013 that will update the 

Prevention of Significant Deterioration 

(PSD) program by adopting by reference 

federal provisions as they exist as of 

January 1, 2012, which reflect the 

requirements of the 2010 PM2.5

Increment Rule. Second, on April 2, 

2013, the State submitted revisions to 

the section of the SIP concerning state 

boards. EPA will act separately on 

certain requirements of the CAA relating 

to interstate transport of air pollution for 

the 2006 PM2.5 NAAQS. 

DATES: Written comments must be 

received on or before June 12, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2011–1726, 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, 8:00 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–2011– 

0726. 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, 8:00 a.m. to 4:00 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 CBI mean or refer to 

confidential business information. 

(iii) The word Department means or 

refers to the North Dakota Department of 

Health. 

(iv) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(v) The initials FIP mean or refer to a 

Federal Implementation Plan. 

(vi) The initials GHG mean or refer to 

greenhouse gases. 

(vii) The initials NAAQS mean or 

refer to national ambient air quality 

standards. 

(viii) The initials NDAC mean or refer 

to the North Dakota Air Pollution 

Control Rules. 

(ix) The initials NDCC mean or refer 

to the North Dakota Century Code. 

(x) The initials NOX mean or refer to 

nitrogen oxides. 

(xi) The initials NSR mean or refer to 

new source review. 

(xii) The initials PM mean or refer to 

particulate matter. 

(xiii) The initials PM2.5 mean or refer 

to particulate matter with an 

aerodynamic diameter of less than 2.5 

micrometers (fine particulate matter). 

(xiv) The initials ppm mean or refer 

to parts per million. 

(xv) The initials PSD mean or refer to 

Prevention of Significant Deterioration. 

(xvi) The initials SIP mean or refer to 

State Implementation Plan. 

(xvii) The initials SSM mean or refer 

to start-up, shutdown, or malfunction. 

Table of Contents 

I. General Information 

II. Background 

III. What is the scope of this rulemaking? 

IV. What infrastructure elements are required 

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

V. How did North Dakota address the 

infrastructure elements of sections 

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

VI. What action is EPA taking? 

VII. 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. 


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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); 

• 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 

new NAAQS for particulate matter less 

than or equal to 2.5 micrometers (mm) in 

diameter (PM2.5). Two new PM2.5

standards were added, set at 15 mg/m3, 

based on the 3-year average of annual 

arithmetic mean PM2.5 concentration 

from single or multiple communityoriented monitors, and 65 mg/m3, based 

on the 3-year average of the 98th 

percentile of 24-hour PM2.5

concentrations at each populationoriented monitor within an area. In 

addition, the 24-hour PM10 standard 

was revised to be based on the 99th 

percentile of 24-hour PM10

concentration at each monitor within an 

area (62 FR 38652). 

On October 17, 2006 EPA 

promulgated a revised NAAQS for 

PM2.5, tightening the level of the 24- 

hour PM2.5 standard to 35 mg/m3 and 

retaining the level of the annual PM2.5

standard at 15 mg/m3. EPA also retained 

the 24-hour PM10 standard and revoked 

the annual PM10 standard (71 FR 

61144). 

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 submissions may also vary 

depending upon what provisions the 

state’s existing SIP already contains. In 

the case of the 1997 and 2006 PM2.5

NAAQS, states typically have met the 

basic program elements required in 

section 110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. 

III. What is the scope of this 

rulemaking? 

This rulemaking will not cover four 

substantive issues that are not integral 

to acting on a state’s infrastructure SIP 

submission: (1) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (2) 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’’); (3) 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, 

(4) existing provisions for PSD programs 

that may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Instead, EPA has indicated 

that it has other authority to address any 

such existing SIP defects in other 

rulemakings, as appropriate. A detailed 

rationale for why these four substantive 

issues are not part of the scope of 

infrastructure SIP rulemakings can be 

found in EPA’s July 13, 2011, final rule 

entitled, ‘‘Infrastructure SIP 

Requirements for the 1997 8-hour Ozone 

and PM2.5 National Ambient Air Quality 

Standards’’ in the section entitled, 

‘‘What Is The Scope Of This Final 

Rulemaking?’’ (see 76 FR 41075 at 

41076—41079). 

IV. What infrastructure elements are 

required under sections 110(a)(1) and 

(2)? 

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): Interstate transport. 

• 110(a)(2)(E): Adequate authority, 

conflict of interest, and oversight of 

local governments and regional 

agencies. 

• 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 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. Element 110(a)(2)(D)(i)(I), 

Interstate transport of pollutants which 

contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state will be 

acted upon in a separate action. 

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: (1) 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 (2) 

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 


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to the nonattainment NSR portion of 

section 110(a)(2)(C) or related to 

110(a)(2)(I). 

V. How did North Dakota address the 

infrastructure elements of sections 

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 the Act. 

a. North Dakota’s response to this 

requirement: The State’s 1997 and 2006 

PM2.5 submissions cite provisions of the 

North Dakota Air Pollution Control 

Rules (NDAC), Chapter 33–15, which 

establishes control requirements for 

particulate matter and PM2.5 precursors. 

In addition, the State cites the North 

Dakota Century Code (NDCC), Chapter 

23–25, Air Pollution Control, in Section 

23–25–03 which provides the general 

authority to regulate sources of PM2.5. 

b. EPA analysis: First, this 

infrastructure element does not require 

the submittal of regulations or emission 

limitations developed specifically for 

attaining the 1997 and 2006 PM2.5

NAAQS, and North Dakota has no areas 

designated as nonattainment for the 

1997 and 2006 PM2.5 NAAQS. 

Nonetheless, the North Dakota SIP 

contains provisions for control of 

particulate matter (NDAC 33–15–05). 

The State also regulates emissions of 

PM2.5 and its precursors through the 

SIP-approved PSD and minor NSR 

programs. This suffices, in the case of 

North Dakota, to meet the requirements 

of section 110(a)(2)(A) for the 1997 and 

2006 PM2.5 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’s 1997 and 2006 

PM2.5 submissions cite the NDCC 23– 

25–03 which provides the authority for 

the North Dakota Department of Health 

(Department) to conduct ambient air 

monitoring. In addition, the State cites 

the Annual Network Monitoring Plans 

for 2009 and 2011 which provide for an 

ambient air quality monitoring system 

in the State. 

b. EPA analysis: North Dakota’s air 

monitoring program and data systems 

meet the requirements of CAA section 

110(a)(2)(B) for the 1997 and 2006 PM2.5

NAAQS. The North Dakota Division of 

Air Quality’s (DAQ) 2012 Ambient Air 

Annual Monitoring Network Plan was 

received by EPA on February 14, 2013 

and approved on April 4, 2013. The 

plan meets current requirements for 

monitoring of PM2.5. 

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’s 1997 and 2006 

PM2.5 submissions cite the NDAC, 

chapters 33–15–14–02 (Permit to 

Construct), 33–15–15 (PSD), 33–15–14– 

03 (Minor Source Permit to Operation), 

and 33–15–14–06 (Title V Permit to 

Operate). In addition the State cites 

NDCC 23–25–03.6 and 23–25–04.1, 

which authorizes the State permitting 

programs. 

b. EPA analysis: To generally meet the 

requirements of section 110(a)(2)(C), the 

State is required to have SIP-approved 

PSD, nonattainment NSR, and minor 

NSR permitting programs adequate to 

implement the 1997 and 2006 PM2.5

NAAQS. 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. 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). 

PSD Requirements 

North Dakota has a SIP-approved PSD 

program that meets the general 

requirements of part C of the Act (51 FR 

31125). To satisfy the particular 

requirements of section 110(a)(2)(C), 

states should have a PSD program that 

applies to all regulated NSR pollutants, 

including greenhouse gases (GHGs). See 

40 CFR 51.166(b)(48) and (b)(49). The 

PSD program should reflect current 

requirements for these pollutants. In 

particular, for three pollutants—ozone, 

PM2.5, and GHGs—there are additional 

regulatory requirements (set out in 

portions of 40 CFR 51.166) that we 

consider in evaluating North Dakota’s 

PSD program. In the rulemakings in 

which EPA revised the requirements in 

40 CFR 51.166 for these pollutants, EPA 

also updated the federal PSD program at 

40 CFR 52.21 accordingly. North Dakota 

implements the PSD program by, for the 

most part, incorporating by reference 

the federal PSD program as it existed on 

a specific date. The State periodically 

updates the PSD program by revising 

the date of incorporation by reference 

and submitting the change as a SIP 

revision. As a result, the SIP revisions 

generally reflect changes to PSD 

requirements that EPA has promulgated 

prior to the revised date of 

incorporation by reference. 

In particular, on June 3, 2010 (75 FR 

31291), we approved a North Dakota SIP 

revision that revised the date of 

incorporation by reference of the federal 

PSD program to August 1, 2007. That 

revision addressed the PSD 

requirements of the Phase 2 Ozone 

Implementation Rule promulgated in 

2005 (70 FR 71612). As a result, the 

approved North Dakota PSD program 

meets current requirements for ozone. 

Similarly, on October 23, 2012 (77 FR 

64736), we approved a North Dakota SIP 

revision that revised the date of 

incorporation by reference of the federal 

PSD program to July 2, 2010. As 

explained in the notice for that action, 

that revision addressed the PSD 

requirements related to GHGs provided 

in EPA’s June 3, 2010 ‘‘Prevention of 

Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule’’ (75 FR 

31514). The approved North Dakota PSD 

program thus also meets current 

requirements for GHGs. 

For PM2.5, EPA has promulgated two 

relevant rules. The first, promulgated in 

2008, addresses (among other things) 

treatment of PM2.5 precursors in PSD 

programs. The second, promulgated in 

2010, establishes (among other things) 

increments for PM2.5. As we discuss 

next, both rules have been the subject of 

recent litigation. 

On January 4, 2013, the U.S. Court of 

Appeals, in Natural Resources Defense 

Council v. EPA, 706 F.3d 428 (D.C. Cir. 

2013), issued a judgment that remanded 

EPA’s 2007 and 2008 rules 

implementing the 1997 PM2.5 NAAQS. 

The court ordered EPA to ‘‘repromulgate 

these rules pursuant to Subpart 4 

consistent with this opinion.’’ Id. at 437. 

Subpart 4 of Part D, Title 1 of the CAA 

establishes additional provisions for 

particulate matter nonattainment areas. 

The 2008 implementation rule 

addressed by the court decision, 

‘‘Implementation of New Source Review 

(NSR) Program for Particulate Matter 

Less Than 2.5 Micrometers (PM2.5),’’ 

(May 16, 2008, 73 FR 28321), 

promulgated NSR requirements for 

implementation of PM2.5 in 

nonattainment areas (nonattainment 


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1EPA has already taken final action on prong 3 

of section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS. 

See 75 FR 31290. 

NSR) and attainment/unclassifiable 

areas (PSD). As the requirements of 

Subpart 4 only pertain to nonattainment 

areas, EPA does not consider the 

portions of the 2008 rule that address 

requirements for PM2.5 attainment and 

unclassifiable areas to be affected by the 

court’s opinion. Moreover, EPA does not 

anticipate the need to revise any PSD 

requirements promulgated in the 2008 

rule in order to comply with the court’s 

decision. Accordingly, EPA’s approval 

of North Dakota’s infrastructure SIP as 

to elements (C), (D)(i)(II), or (J) with 

respect to the PSD requirements 

promulgated by the 2008 

implementation rule does not conflict 

with the court’s opinion. 

The court’s decision with respect to 

the nonattainment NSR requirements 

promulgated by the 2008 

implementation rule also does not affect 

EPA’s action on the present 

infrastructure action. EPA interprets the 

Act to exclude nonattainment area 

requirements, including requirements 

associated with a nonattainment NSR 

program, from infrastructure SIP 

submissions due 3 years after adoption 

or revision of a NAAQS. Instead, these 

elements are typically referred to as 

nonattainment SIP or attainment plan 

elements, which would be due by the 

dates statutorily prescribed under 

subpart 2 through 5 under part D, 

extending as far as 10 years following 

designations for some elements. 

As mentioned above, EPA previously 

approved a North Dakota SIP revision 

that revised the date of incorporation by 

reference of the federal PSD program to 

July 2, 2010. This SIP revision also 

addressed the requirements of the 2008 

PM2.5 NSR implementation rule. See 77 

FR 64736. The remaining PSD 

requirement for PM2.5 is contained in 

EPA’s October 20, 2010 rule, 

‘‘Prevention of Significant Deterioration 

(PSD) for Particulate Matter Less Than 

2.5 Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC)’’ (75 FR 64864). EPA regards 

adoption of the PM2.5 increments as a 

necessary requirement when assessing a 

PSD program for the purposes of 

element (C). 

The PM2.5 increments have not been 

approved into North Dakota’s SIP, as the 

last approved date of incorporation by 

reference of the federal PSD program is 

July 2, 2010, prior to promulgation of 

the PM2.5 increments. The State of North 

Dakota submitted revisions to chapter 

33–15–15–01.2, Scope, of the NDAC on 

January 24, 2013 that adopt the PM2.5

increments by incorporating by 

reference the federal PSD program at 40 

CFR part 52, section 21, as it existed on 

January 1, 2012. 

We propose to approve portions of the 

January 24, 2013 submittal that are 

necessary to incorporate the increments 

into the SIP. Specifically, we propose to 

approve the incorporation by reference 

of 40 CFR part 52, section 21, 

paragraphs (b)(14)(i), (ii), (iii), (b)(15)(i), 

(ii), and paragraph (c) as those 

paragraphs existed on January 1, 2012. 

These paragraphs provide the major 

source baseline date, the minor source 

baseline date, and the increments for 

PM2.5. At this time we are not proposing 

to act on any other portions of the 

January 24, 2013 submittal, including 

the incorporation by reference of SILs 

and SMCs for PM2.5. 

With the partial approval of the 

January 24, 2013 submittal, the North 

Dakota PSD program will meet current 

requirements for all regulated NSR 

pollutants. As a result, we also propose 

to approve the North Dakota 

infrastructure SIP for element (C) for the 

1997 and 2006 PM2.5 NAAQS with 

respect to PSD requirements. 

Minor NSR 

The State has a SIP-approved minor 

NSR program, adopted under section 

110(a)(2)(C) of the Act. The State and 

EPA have relied on the State’s existing 

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 and 2006 PM2.5 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 may be 

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) is subdivided into four 

‘‘prongs,’’ two under 110(a)(2)(D)(i)(I) 

and two under 110(a)(2)(D)(i)(II). The 

two prongs under 110(a)(2)(D)(i)(I) 

require SIPs to contain adequate 

provisions to prohibit emissions that 

(prong 1) contribute significantly to 

nonattainment in any other state with 

respect to any such national primary or 

secondary NAAQS, or (prong 2) 

interfere with maintenance by any other 

state with respect to the same NAAQS. 

The two prongs under 110(a)(2)(D)(i)(II) 

require SIPs to contain adequate 

provisions to prohibit emissions that 

interfere with measures required to be 

included in the applicable 

implementation plan for any other state 

under part C (prong 3) to prevent 

significant deterioration of air quality, 

or (prong 4) to protect visibility. As 

noted, we are not acting on the 

requirements of section 110(a)(2)(D)(i)(I) 

(prongs 1 and 2), or the visibility 

requirement (prong 4) of section 

110(a)(2)(D)(i)(II) in this proposed 

rulemaking. 

a. North Dakota’s response to this 

requirement: The State’s 2006 PM2.5

submission 1 addressing interstate 

transport cites NDAC chapters 33–15–15 

(PSD), 33–15–19 (Visibility Protection), 

33–15–25 (Regional Haze 

Requirements), SIP Section 7.8 

(Interstate Transport of Air Pollution), 

and the North Dakota SIP for Regional 

Haze (February 24, 2010). In addition, 

the State cites NDCC 23–25–03 which 

provides the authority for the 

Department to conduct an air quality 

control program. 

b. EPA Analysis: With regard to the 

PSD portion of section 110(a)(2)(D)(i)(II), 

this requirement may be met by the 

State’s confirmation in an infrastructure 

SIP submission that new major sources 

and major modifications in the State are 

subject to a PSD program meeting all the 

relevant requirements of part C of title 

I of the CAA or (if the state contains a 

nonattainment area for the relevant 

pollutant) to a NNSR program that 

implements the 2006 PM2.5 NAAQS. As 

discussed in more detail with respect to 

section 110(a)(2)(C), with approval of 

the PM2.5 increments, North Dakota’s 

SIP will contain a PSD program that 

reflects the relevant PSD requirements. 

Accordingly, in this action EPA is 

proposing to approve the infrastructure 

SIP submission as meeting the 


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applicable requirements of prong 3 of 

section 110(a)(2)(D)(i). 

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 North Dakota PSD 

rules provide for notifying neighboring 

states whose land may be significantly 

affected by emissions from a new or 

modified source. NDAC 33–15–15– 

01.2(q)(2)(d) states: 

NDAC–33–15–15–01.2(q)(2)(d)—Send a 

copy of the notice required in subparagraph 

c to the applicant, the United States 

environmental protection agency 

administrator, and to officials and agencies 

having cognizance over the location where 

the source or modification will be situated as 

follows: The chief executive of the city and 

county where the source or modification 

would be located; any comprehensive 

regional land use planning agency; and any 

state, federal land manager, or Indian 

governing body whose lands may be 

significantly affected by emissions from the 

source or modification. 

Similar notification requirements are 

provided for minor sources under 

NDAC 33–15–14–02.6.b(4). 

All PSD permit applications are 

provided to EPA within thirty days of 

receipt. This includes sources that could 

affect air quality in Canada. The draft 

PSD permits, the Air Quality Effects 

Analyses and the final permits are also 

submitted to EPA. 

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 (see NDAC 33–15–15– 

01.2(q)(2)(d)). This provision satisfies 

the notice requirement of section 126(a). 

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 and 2006 

PM2.5 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)’’ 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’s 1997 and 2006 

PM2.5 submissions cite the NDAC 33– 

15–23 (regulatory mechanism for paying 

fees), the NDCC 23–25–04.2 (statutory 

for collecting fees), and the NDCC 23– 

25–03 (authority to carry out the 

requirements of the SIP). Resources for 

the operation of the air pollution control 

program are addressed in Section 9 of 

the SIP (updated April 2009) and the 

State references section 2.11 of the SIP 

which addresses legal authority by the 

Department to collect fees necessary to 

implement the program. 

b. EPA Analysis: North Dakota’s SIP 

meets the requirements of section 

110(a)(2)(E)(i) for the 1997 and 2006 

PM2.5 NAAQS. The NDCC 23–25–04 

provides adequate authority for the 

State of North Dakota to carry out its SIP 

obligations with respect to the 1997 and 

2006 PM2.5 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. 

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. State boards: Section 110(a)(2)(E)(ii) 

requires that the state comply with the 

requirements respecting state boards 

under section 128. 

a. North Dakota’s response to this 

requirement: The State’s 1997 and 2006 

PM2.5 submissions cite the NDCC 23– 

01–05 (statutory duties of the State 

Health Officer). In North Dakota there 

are no boards or bodies that approve 

permits or enforcement orders. 

b. EPA Analysis: 

On September 17, 2012, EPA 

conditionally approved North Dakota’s 

infrastructure SIP for 110(a)(2)(E)(ii) for 

the 1997 ozone NAAQS (77 FR 57029). 

North Dakota committed to submit 

within one year a SIP revision to 

address the requirements of section 128 

of the Act. On April 8, 2013, EPA 

received a submittal from the State that 

revises language in SIP chapter 2, 

section 15, Respecting Boards to include 

provisions for addressing conflict of 

interest requirements. We propose to 

approve that submittal and we 

correspondingly propose to approve the 

infrastructure SIP for 110(a)(2)(E)(ii) for 

the 1997 and 2006 PM2.5 NAAQS. 

Section 128 of the Act 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. 

As explained in detail in our April 16, 

2012 proposal (77 FR 22547) for North 

Dakota’s infrastructure SIP for the 1997 

ozone NAAQS, EPA interprets 

subsection 128(a)(1) to apply only to 

states that have a board or body with 

multiple members that, among its 

duties, approves permits or enforcement 

orders under the Act. In North Dakota, 

there is no such multi-member board or 

body. As a result, North Dakota did not 

need to submit any provisions to 

address the requirements of section 

128(a)(1). 

However, EPA interprets subsection 

128(a)(2) to apply to all states, 

regardless of whether the state has a 

multi-member board that approves 

permits or enforcement orders. As a 

result, 128(a)(2) applies to North Dakota, 

and, as also explained in the April 16, 

2012 proposal, must be met through 

SIP-approved, federally enforceable 

provisions. 

North Dakota’s April 8, 2013 

submittal fulfills the commitment made 

as part of our previous conditional 

approval for the 1997 ozone NAAQS. 

The submittal provides disclosure 

requirements that apply to any person 

that approves permits or enforcement 

orders under North Dakota’s 

implementation of the CAA. Any such 

person must disclose potential conflicts 

of interest, including the cause of the 

conflict, in writing to a superior. 

Conflicts of interest are defined broadly 

to include any divided loyalty, any 

conflict between the duties of the 


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person and the person’s self or other 

interest, and any interest, influence, or 

relationship that might conflict or even 

appear to conflict with the best interests 

of the Department of Health or the State, 

or that might affect the person’s working 

judgment or loyalty. For the same 

reasons discussed in detail in our 

September 17, 2012 notice, we propose 

to find that these procedures provide 

adequate disclosure of potential 

conflicts of interest within the meaning 

of subsection 128(a)(2). 

In summary, EPA proposes to approve 

North Dakota’s April 8, 2013 submittal 

into the SIP to meet the requirements of 

section 128 of the Act. We also propose 

to approve North Dakota’s infrastructure 

SIP with respect to the requirements of 

Section 110(a)(2)(E)(ii) for the 1997 and 

2006 PM2.5 NAAQS. 

8. Stationary source monitoring 

system: 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’s 1997 and 2006 

PM2.5 submissions cite the NDAC 33– 

15–14–02.9, NDAC 33–15–14–03.6, and 

NDAC 33–15–14–06.5 which require 

monitoring of emissions from stationary 

sources. In addition, the State cites 

NDCC 23–25–03 which provides the 

statutory authority for monitoring. 

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 and 2006 PM2.5

NAAQS. 

9. 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’s 1997 and 2006 

PM2.5 submissions cite NDAC 33–15–11 

(Prevention of Air Pollution Emergency 

Episodes), which provides the means to 

implement emergency air pollution 

episode measures and is authorized by 

NDCC 23–25–03. In addition, the State 

cites NDCC 28–32–32 and NDCC 28–25– 

08, which grant the Department 

authority to take action in an 

emergency. 

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. In our 

2009 guidance for infrastructure 

requirements for the 2006 PM2.5

NAAQS, we suggested that states that 

had monitored and recorded 24-hour 

PM2.5 levels greater than 140.4 mg/m3, 

using the most recent three years of 

data, should develop emergency episode 

plans for the areas with the monitored 

values. We also suggested that, if these 

levels had not been exceeded, states 

could certify that they had adequate 

general emergency authority to address 

PM2.5 episodes. In this rulemaking, we 

view these suggestions as still 

appropriate in assessing North Dakota’s 

SIP for this element. North Dakota has 

not monitored any values above the 

140.4 mg/m3 level for PM2.5 for the past 

three years (e.g., 2009, 2010, and 2011). 

Since this level was not exceeded in any 

area of the state and the State has 

demonstrated that it has appropriate 

general emergency powers to address 

PM2.5 related episodes, no specific 

emergency episode plans are necessary 

at this time. The SIP therefore meets the 

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

1997 and 2006 PM2.5 NAAQS. 

10. 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’s 1997 and 2006 

PM2.5 submissions cite the NDCC 23– 

25–03.8 which formulates and 

promulgates emission control 

requirements for the prevention, 

abatement and control of air pollution 

in the state. In addition, the State also 

cites Section 3.5 of the SIP which 

commits the Department to a revision of 

the control strategy as needed. 

b. EPA analysis: EPA approved 

relevant sections of the North Dakota 

SIP submitted to EPA April 6, 2009 on 

September 17, 2012 (77 FR 57029). 

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). 

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: Consultation with 

government officials: The State’s 1997 

and 2006 PM2.5 submissions cite the 

public participation procedures in the 

NDAC 33–15–14–02.6 for 

preconstruction review for minor 

sources. In addition, the State cites 

paragraph (q) of NDAC 33–15–15–01.2 

for sources subject to PSD review. 

Consultation with Federal Land 

Managers (FLMs) for PSD projects is 

accomplished in accordance with 40 

CFR 52.21 (p) which is incorporated by 

reference into NDAC 33–15–15–01.2. 

For enforcement orders, the 

requirements of NDCC 23–25–08 and 

NDCC 28–32 are followed. Consultation 

with other government agencies is 

addressed in Chapter 10 of the SIP. 

Public notification: The State cites the 

ND SIP Section 6.9 which commits the 

Department to notification of the public 

during ambient air quality standard 

exceedances. The authority for this 

notification is found in NDCC 23–25– 

06. In addition, NDAC 33–15–11–03.1 

requires the Department to notify the 

public during air pollution emergencies. 

PSD and visibility protection: The 

State cites adoption of the Federal PSD 

rule by reference as they exist on August 

1, 2007 and July 2, 2012. The 

Department is in the process of adopting 

the PSD rules as they exist on July 1, 

2012. This will incorporate all existing 

requirements for PM2.5. The ‘‘Tailoring 

Rule’’ for greenhouse gases has been 

adopted into North Dakota PSD rules 

(April 2011) and PSD applicants must 

address applicable requirements for 

greenhouse gases. 

Additionally, the State has a SIP in 

place to address visibility for major 

source (PSD) permitting (NDAC 33–15– 

15), specific visibility impairment 

(RAVI), and plume blight (NDAC 33– 

15–19). 

b. EPA Analysis: 


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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. These 

revisions are located in chapter 33–15– 

15–01.2 of the NDAC. EPA has further 

evaluated North Dakota’s SIP-approved 

PSD program in this proposed action 

under IV.3, element 110(a)(2)(C). As 

stated there, with the approval of the 

PM2.5 increments into the North Dakota 

SIP, the SIP-approved PSD program 

meets all relevant requirements for the 

1997 and 2006 PM2.5 NAAQS. 

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 and 2006 PM2.5 NAAQS. 

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’s 1997 and 2006 

PM2.5 submissions cite Section 7.7 of the 

ND SIP which addresses air quality 

modeling. Modeling for minor sources is 

addressed in NDAC 33–15–14–02.4 and 

modeling for major PSD sources in 40 

CFR 52.21(k), (l), (m), (n) and (o) as 

incorporated into NDAC 33–15–15– 

01.2. NDCC 23–25–03 provides 

authority for requiring modeling. 

b. EPA Analysis: North Dakota’s SIP 

meets the requirements of CAA section 

110(a)(2)(K) for the 1997 and 2006 PM2.5

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. 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’s 1997 and 2006 

PM2.5 submissions cite NDAC 33–15–23 

which establishes fees for processing 

Permit to Construct applications, annual 

operating fees for minor sources, and 

fees for major sources under the Title V 

Permit to Operate program. NDCC 23– 

25–04.2 provides authority for the fees. 

b. EPA Analysis: North Dakota’s 

submittal meets the requirements of 

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

and 2006 PM2.5 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. 

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’s 1997 and 2006 

PM2.5 submissions cite the ND SIP, 

Chapter 10 which addresses the 

consultation process the Department 

will use to coordinate with local 

political subdivisions that are affected 

by any SIP revisions, and NDCC 23–25– 

03 which also requires consultation. 

The State also cites NDCC 23–25–02.6 

(public notice). 

b. EPA Analysis: North Dakota’s 

submittal meets the requirements of 

CAA section 10(a)(2)(M) for the 1997 

and 2006 PM2.5 NAAQS. 

VI. What action is EPA taking? 

In this action, EPA is proposing to 

approve the following infrastructure 

elements for the 1997 and 2006 PM2.5

NAAQS: (A), (B), (C) with respect to 

minor NSR and PSD requirements, 

(D)(ii), (E), (F), (G), (H), (J), (K), (L), and 

(M). We are proposing to approve 

(D)(i)(II) with respect to PSD 

requirements for the 2006 PM2.5

NAAQS. EPA is also proposing to 

approve a portion of the State’s January 

24, 2013 submittal revising the State’s 

PSD program: specifically, the 

incorporation by reference of 40 CFR 

part 52, section 21, paragraphs 

(b)(14)(i),(ii),(iii), (b)(15)(i),(ii), and 

paragraph (c) as those paragraphs 

existed on January 1, 2012. 

Additionally, EPA is proposing to 

approve the April 8, 2013 submittal of 

revisions to Chapter 2, Section 2.15 into 

the North Dakota SIP. Finally, EPA will 

act separately on infrastructure element 

(D)(i)(I) for the 2006 PM2.5 NAAQS. 

VII. 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 USC 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 

USC 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 

USC 601 et seq.); 


emcdonald on DSK67QTVN1PROD with PROPOSALS
27906 Federal Register / Vol. 78, No. 92 / Monday, May 13, 2013 / Proposed Rules 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 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 USC 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, 

Greenhouse gases, Lead, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: May 2, 2013. 

Howard M. Cantor, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2013–11289 Filed 5–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 745 

[EPA–HQ–OPPT–2010–0173; FRL–9385–6] 

RIN 2070–AJ56 

Lead; Renovation, Repair, and Painting 

Program for Public and Commercial 

Buildings; Notice of Public Meeting 

and Reopening of Comment Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of public meeting and 

reopening of comment period. 

SUMMARY: In 2010, EPA issued an 

advance notice of proposed rulemaking 

(ANPRM) concerning renovation, repair, 

and painting activities in public and 

commercial buildings. EPA is in the 

process of determining whether these 

activities create lead-based paint 

hazards, and, for those that do, 

developing certification, training, and 

work practice requirements as directed 

by the Toxic Substances Control Act 

(TSCA). This document announces a 

public meeting on June 26, 2013, and 

reopens the comment period for the 

December 31, 2012 Federal Register 

document to allow for additional data 

and other information to be submitted 

by the public and interested 

stakeholders. 

DATES: The public meeting will be held 

on June 26, 2013, from 8:30 a.m. to 

12:30 p.m. Requests to participate in the 

meeting must be received on or before 

June 3, 2013. 

To request accommodation of a 

disability, please contact the technical 

person listed under FOR FURTHER

INFORMATON CONTACT, preferably at least 

10 days prior to the meeting, to give 

EPA as much time as possible to process 

your request. 

Comments must be received on or 

before July 12, 2013. For additional 

information on timeframes for 

submission of comments, see Unit II. of 

the SUPPLEMENTARY INFORMATION. 

ADDRESSES: The meeting will be held at 

the Environmental Protection Agency, 

Room 1153, EPA East Bldg., 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460. 

Requests to participate in the meeting, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2010–0173, 

must be submitted to the technical 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Submit your comments, identified by 

docket ID number EPA–HQ–OPPT– 

2010–0173, by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. 

• Mail: Document Control Office 

(7407M), Office of Pollution Prevention 

and Toxics (OPPT), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460–0001. 

• Hand Delivery: To make special 

arrangements for hand delivery or 

delivery of boxed information, please 

follow the instructions at http:// 

www.epa.gov/dockets/contacts.html. 

Additional instructions on 

commenting or visiting the docket, 

along with more information about 

dockets generally, is available at 

http://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Hans 

Scheifele, National Program Chemicals 

Division (7404T), Office of Pollution 

Prevention and Toxics, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460–0001; 

telephone number: (202) 564–3122; 

email address: scheifele.hans@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCAHotline@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This document is directed to the 

public in general. However, you may be 

potentially affected by this action if you 

manage or perform renovations, repairs, 

or painting activities on the exterior or 

interior of public buildings or 

commercial buildings. The following 

list of North American Industrial 

Classification System (NAICS) codes is 

not intended to be exhaustive, but rather 

provides a guide to help readers 

determine whether this document 

applies to them. Other types of entities 

not listed may also be affected. 

Potentially affected entities may 

include: 

• Building construction (NAICS code 

236), e.g., commercial building 

construction, industrial building 

construction, commercial and 

institutional building construction, 

building finishing contractors, drywall 

and insulation contractors, painting and 

wall covering contractors, finish 

carpentry contractors, other building 

finishing contractors. 

• Specialty trade contractors (NAICS 

code 238), e.g., plumbing, heating, and 

air-conditioning contractors; painting 

and wall covering contractors; electrical 

contractors; finish carpentry contractors; 

drywall and insulation contractors; 

siding contractors; tile and terrazzo 

contractors; glass and glazing 

contractors. 

• Real estate (NAICS code 531), e.g., 

lessors of non-residential buildings and 

dwellings, non-residential property 

managers. 

• Other general government support 

(NAICS code 921), e.g., general services 


emcdonald on DSK67QTVN1PROD with PROPOSALS