[Federal Register Volume 77, Number 73 (Monday, April 16, 2012)]
[Proposed Rules]
[Pages 22540-22549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9075]


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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).

[[Page 22541]]


ACTION: Proposed rule.

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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:
    <bullet> http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#cdacb4aca1ace3a6acb9a5b48da8bdace3aaa2bb"><span class="__cf_email__" data-cfemail="abcad2cac7ca85c0cadfc3d2ebcedbca85ccc4dd">[email protected]</span></a>.
    <bullet> Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
    <bullet> Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
    <bullet> 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, 
<a href="/cdn-cgi/l/email-protection#f7968e969b96d99c96839f8eb7928796d9909881"><span class="__cf_email__" data-cfemail="8decf4ece1eca3e6ecf9e5f4cde8fdeca3eae2fb">[email protected]</span></a>.

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 NO<INF>X</INF> mean or refer to nitrogen 
oxides.
    (x) The initials NSR mean or refer to new source review.
    (xi) The initials PM<INF>2.5</INF> 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 start-up, 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);

[[Page 22542]]

    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\
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    \1\ Memorandum 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 PM<INF>2.5</INF> 
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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    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.
    <bullet> 110(a)(2)(A): Emission limits and other control measures.
    <bullet> 110(a)(2)(B): Ambient air quality monitoring/data system.
    <bullet> 110(a)(2)(C): Program for enforcement of control measures.
    <bullet> 110(a)(2)(D)(ii): Interstate and international pollution.
    <bullet> 110(a)(2)(E): Adequate resources and authority.
    <bullet> 110(a)(2)(F): Stationary source monitoring and reporting.
    <bullet> 110(a)(2)(G): Emergency powers.
    <bullet> 110(a)(2)(H): Future SIP revisions.
    <bullet> 110(a)(2)(J): Consultation with government officials; 
public notification; and prevention of significant deterioration (PSD) 
and visibility protection.
    <bullet> 110(a)(2)(K): Air quality modeling/data.
    <bullet> 110(a)(2)(L): Permitting fees.
    <bullet> 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 (PM<INF>2.5</INF>) 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

[[Page 22543]]

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.
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    \2\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket <greek-i> 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.
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    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 
PM<INF>2.5</INF> 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\
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    \3\ For 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.
    \4\ For 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 
NO<INF>X</INF> SIP Call; Final Rule,'' 70 FR 25162 (May 12, 
2005)(defining, among other things, the phrase ``contribute 
significantly to nonattainment'').
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    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

[[Page 22544]]

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\
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    \5\ See, 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)).
    \6\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM<INF>2.5</INF> 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 
PM<INF>2.5</INF> 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.
    \7\ For example, implementation of the 1997 PM<INF>2.5</INF> 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM<INF>2.5</INF> 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.
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    \8\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM<INF>2.5</INF> 
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 PM<INF>2.5</INF> NAAQS 
entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM<INF>2.5</INF>) 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.
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    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

[[Page 22545]]

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 PM<INF>2.5</INF> 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\
---------------------------------------------------------------------------

    \12\ EPA 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).
    \13\ EPA 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).
    \14\ EPA 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).
---------------------------------------------------------------------------

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.

[[Page 22546]]

    b. EPA analysis: As explained above, in this action EPA is not 
evaluating non-attainment 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 
(NO<INF>X</INF>) 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 
(PM<INF>2.5</INF>),'' 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).

[[Page 22547]]

    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\
---------------------------------------------------------------------------

    \15\ Memorandum 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \16\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History 
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------

    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

[[Page 22548]]

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).
---------------------------------------------------------------------------

    \17\ North Dakota's commitment letter is available in the 
docket.
---------------------------------------------------------------------------

    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.

[[Page 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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> 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);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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,
    <bullet> 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


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