41450 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Proposed Rules 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Delaware Department of 

Natural Resources and Environmental 

Control, 89 Kings Highway, P.O. Box 

1401, Dover, Delaware 19903. 

FOR FURTHER INFORMATION CONTACT: Mrs. 

Amy Johansen, (215) 814–2156, or by 

email at johansen.amy@epa.gov. 

SUPPLEMENTARY INFORMATION: On May 

26, 2015, EPA published a notice of 

proposed rulemaking (80 FR 30015). In 

the NPR, EPA proposed disapproval of 

a revision to the Delaware SIP related to 

nonattainment NSR preconstruction 

permit program requirements for 

emission offsets. In that action, EPA 

proposed disapproval, because the 

submittal did not satisfy the 

requirements of Clean Air Act (CAA) or 

the Federal implementing regulations, 

which establish the criteria under which 

the owner or operator of a new or 

modified major stationary source must 

obtain the required emission offsets 

‘‘from the same source or other sources 

in the same nonattainment area’’ with 

limited exceptions, for Delaware’s 

nonattainment NSR preconstruction 

permitting program. In addition, EPA 

proposed disapproval of the SIP 

revision because Delaware exercises 

authorities that are reserved for EPA 

under section 107 of the CAA. 

Dated: June 25, 2015. 

Shawn M. Garvin, 

Regional Administrator, Region III. 

[FR Doc. 2015–16919 Filed 7–14–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2012–0974, FRL–9930–42– 

Region–8] 

Promulgation of State Implementation 

Plan Revisions; Infrastructure 

Requirements for the 2008 Lead, 2008 

Ozone, and 2010 NO2 National Ambient 

Air Quality Standards; North Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of State Implementation Plan 

(SIP) revisions from the State of North 

Dakota to demonstrate the State meets 

infrastructure requirements of the Clean 

Air Act (Act or CAA) for the National 

Ambient Air Quality Standards 

(NAAQS) promulgated for ozone on 

March 12, 2008, lead (Pb) on October 

15, 2008 and nitrogen dioxide (NO2) on 

January 22, 2010. EPA is also proposing 

to approve element 4 of CAA section 

110(a)(2)(D)(i)(II) for the 2006 fine 

particulate matter (PM2.5) NAAQS. 

Section 110(a) of the CAA requires that 

each state submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA. 

DATES: Written comments must be 

received on or before August 14, 2015. 

ADDRESSES: The EPA has established a 

docket for this action under Docket 

Identification Number EPA–R08–OAR– 

2012–0974. All documents in the docket 

are listed on the http://

www.regulations.gov Web site. Although 

listed in the index, some information 

may not be publicly available, i.e., 

Confidential Business Information or 

other information the disclosure of 

which is restricted by statute. Certain 

other material, such as copyrighted 

material, is not placed on the Internet 

and will be publicly available only in 

the hard copy form. Publicly available 

docket materials are available either 

electronically through http://

www.regulations.gov or in hard copy at 

EPA Region 8, Office of Partnership and 

Regulatory Assistance, Air Program, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. The EPA requests that you 

contact the individual listed in the FOR

FURTHER INFORMATION CONTACT section to 

view the hard copy of the docket. The 

Regional Office’s official hours of 

business are Monday through Friday, 

8:00 a.m.–4:00 p.m., excluding federal 

holidays. An electronic copy of the 

State’s SIP compilation is also available 

at http://www.epa.gov/region8/air/

sip.html. 

FOR FURTHER INFORMATION CONTACT: 

Abby Fulton, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–6563, 

fulton.abby@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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 volume, 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 March 12, 2008, EPA promulgated 

a new NAAQS for ozone, revising the 

levels of the primary and secondary 8- 


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1For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

hour ozone standards from 0.08 parts 

per million (ppm) to 0.075 ppm (73 FR 

16436). Subsequently, on October 15, 

2008, EPA revised the level of the 

primary and secondary Pb NAAQS from 

1.5 micrograms per cubic meter (mg/m3) 

to 0.15 mg/m3 (73 FR 66964). On January 

22, 2010, EPA promulgated a new 1- 

hour primary NAAQS for NO2 at a level 

of 100 parts per billion (ppb) while 

retaining the annual standard of 53 ppb. 

The 2010 NO2 NAAQS is expressed as 

the three year average of the 98th 

percentile of the annual distribution of 

daily maximum 1-hour average 

concentrations. The secondary NO2

NAAQS remains unchanged at 53 ppb 

(75 FR 6474, Feb. 9, 2010). 

EPA promulgated a revised NAAQS 

for PM2.5 on October 17, 2006, 

tightening the level of the 24-hour 

standard to 35 mg/m3 and retaining the 

level of the annual PM2.5 standard at 15 

mg/m3. EPA approved element 

110(a)(2)(D)(i)(I) (discussed below) of 

North Dakota’s infrastructure SIP for 

this NAAQS on July 29, 2013 (78 FR 

45457). EPA approved all other 

infrastructure elements (aside from 

element 110(a)(2)(D)(i)(II) regarding 

visibility) of North Dakota’s 2006 PM2.5

infrastructure SIP on July 30, 2013 (78 

FR 45866). We are acting on the 

visibility element in this action. 

Under sections 110(a)(1) and (2) of the 

CAA, states are required to submit 

infrastructure SIPs to ensure their SIPs 

provide for implementation, 

maintenance, and enforcement of the 

NAAQS. These submissions must 

contain any revisions needed for 

meeting the applicable SIP requirements 

of section 110(a)(2), or certifications that 

their existing SIPs for ozone, Pb, and 

NO2 already meet those requirements. 

EPA highlighted this statutory 

requirement in an October 2, 2007, 

guidance document entitled ‘‘Guidance 

on SIP Elements Required Under 

Sections 110(a)(1) and (2) for the 1997 

8-hour Ozone and PM2.5 National 

Ambient Air Quality Standards’’ (2007 

Memo). On September 25, 2009, EPA 

issued an additional guidance document 

pertaining to the 2006 PM2.5 NAAQS 

entitled ‘‘Guidance on SIP Elements 

Required Under Sections 110(a)(1) and 

(2) for the 2006 24-Hour Fine Particle 

(PM2.5) National Ambient Air Quality 

Standards (NAAQS)’’ (2009 Memo), 

followed by the October 14, 2011, 

‘‘Guidance on Infrastructure SIP 

Elements Required Under Sections 

110(a)(1) and (2) for the 2008 Lead (Pb) 

National Ambient Air Quality Standards 

(NAAQS)’’ (2011 Memo). Most recently, 

EPA issued ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and (2)’’ on September 13, 

2013 (2013 Memo). 

III. What is the scope of this 

rulemaking? 

EPA is acting upon the SIP 

submissions from North Dakota that 

address the infrastructure requirements 

of CAA sections 110(a)(1) and 110(a)(2) 

for the 2008 ozone, 2008 Pb, and 2010 

NO2 NAAQS. The requirement for states 

to make a SIP submission of this type 

arises out of CAA section 110(a)(1). 

Pursuant to section 110(a)(1), states 

must make SIP submissions ‘‘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 these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA; ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A; and nonattainment 

new source review (NSR) permit 

program submissions to address the 

permit requirements of CAA, title I, part 

D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. 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 program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.1 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

Examples of some of these 

ambiguities and the context in which 

EPA interprets the ambiguous portions 

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

discussed at length in our notice of 

proposed rulemaking: Promulgation of 

State Implementation Plan Revisions; 

Infrastructure Requirements for the 1997 

and 2006 PM2.5, 2008 Lead, 2008 Ozone, 

and 2010 NO2 National Ambient Air 

Quality Standards; South Dakota (79 FR 

71040 Dec. 1, 2014) under ‘‘III. What is 

the Scope of this Rulemaking?’’ 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction (SSM) that 

may be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that may be 

contrary to the CAA because they 

purport to allow revisions to SIPapproved emissions limits while 

limiting public process or not requiring 

further approval by EPA; and (iii) 

existing provisions for Prevention of 

Significant Deterioration (PSD) 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186, 

Dec. 31, 2002, as amended by 72 FR 

32526, June 13, 2007. (‘‘NSR Reform’’). 

IV. What infrastructure elements are 

required under sections 110(a)(1) and 

(2)? 

CAA section 110(a)(1) provides the 

procedural and timing requirements for 

SIP submissions after a new or revised 

NAAQS is promulgated. Section 


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2Steven Herman, Assistant Administrator for 

Enforcement and Compliance Assurance, and 

Robert Perciasepe, Assistant Administrator for Air 

and Radiation, Memorandum to EPA Air Division 

Directors, ‘‘State Implementation Plans (SIPs): 

Policy Regarding Emissions During Malfunctions, 

Startup, and Shutdown.’’ (September 20, 1999). 

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 resources 

and 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. 

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 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 to the 

nonattainment NSR portion of section 

110(a)(2)(C) or related to 110(a)(2)(I). 

Furthermore, EPA interprets the CAA 

section 110(a)(2)(J) provision on 

visibility as not being triggered by a new 

NAAQS because the visibility 

requirements in part C, title 1 of the 

CAA are not changed by a new NAAQS. 

V. How did North Dakota address the 

infrastructure elements of sections 

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

The North Dakota Department of 

Health (Department or NDDH) 

submitted certification of North 

Dakota’s infrastructure SIP for the 2008 

Pb NAAQS on May 25, 2012, and joint 

certifications for the 2008 ozone and the 

2010 NO2 NAAQS on March 7, 2013. 

North Dakota’s infrastructure 

certifications demonstrate how the 

State, where applicable, has plans in 

place that meet the requirements of 

section 110 for the 2008 Pb, 2008 ozone, 

and 2010 NO2 NAAQS. These plans 

reference the current North Dakota Air 

Pollution Control Rules (NDAC) and 

North Dakota Century Code (NDCC). 

These submittals are available within 

the electronic docket for today’s 

proposed action at www.regulations.gov. 

The NDAC and NDCC referenced in the 

submittals are publicly available at 

https://www.ndhealth.gov/aq/

AirRules.htm and http://

www.legis.nd.gov/general-information/

north-dakota-century-code. North 

Dakota’s SIP, air pollution control 

regulations, and statutes that have been 

previously approved by EPA and 

incorporated into the North Dakota SIP 

can be found at 40 CFR 52.1820. 

VI. Analysis of the State Submittals 

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. 

Multiple SIP-approved State air 

quality regulations within the NDAC 

and cited in North Dakota’s 

certifications provide enforceable 

emission limitations and other control 

measures, means of techniques, 

schedules for compliance, and other 

related matters necessary to meet the 

requirements of the CAA section 

110(a)(2)(A) for the 2008 Pb, 2008 

ozone, and 2010 NO2 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 2008 Pb, 

2008 ozone, and 2010 NO2 NAAQS. 

Furthermore, North Dakota has no areas 

designated as nonattainment for the 

2008 Pb, 2008 ozone, and 2010 NO2

NAAQS. North Dakota’s certifications 

(contained within this docket) generally 

listed provisions within its SIP which 

regulate pollutants through various 

programs, including major and minor 

source permit programs. This suffices, 

in the case of North Dakota, to meet the 

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

the 2008 Pb, 2008 ozone, and 2010 NO2

NAAQS. 

Second, as previously discussed, EPA 

is not proposing to approve or 

disapprove any existing state rules with 

regard to director’s discretion or 

variance provisions. A number of states, 

including North Dakota, have such 

provisions which are contrary to the 

CAA and existing EPA guidance (52 FR 

45109, Nov. 24, 1987), and the agency 

plans to take action in the future to 

address such state regulations. In the 

meantime, EPA encourages any state 

having a director’s discretion or 

variance provision which is contrary to 

the CAA and EPA guidance to take steps 

to correct the deficiency as soon as 

possible. 

Finally, in this action, EPA is also not 

proposing to approve or disapprove any 

existing state provision with regard to 

excess emissions during SSM of 

operations at a facility. A number of 

states, including North Dakota, have 

SSM provisions which are contrary to 

the CAA and existing EPA guidance 2

and the agency is addressing such state 

regulations separately (80 FR 33840, 

June 12, 2015). 

Therefore, EPA is proposing to 

approve North Dakota’s infrastructure 

SIP for the 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS with respect to the 

general requirement in section 

110(a)(2)(A) to include enforceable 

emission limitations and other control 

measures, means, or techniques to meet 

the applicable requirements of this 

element. 

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.’’ 

Ambient monitoring is covered in 

Chapter 6 of the North Dakota SIP. It 

provides for the design and operation of 

a monitoring network, reporting of data 

obtained from the monitors, and annual 

network review including notification to 


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EPA of any changes, and public 

notification of exceedances of NAAQS. 

EPA approved North Dakota’s Division 

of Air Quality’s (DAQ) 2013 Ambient 

Air Monitoring Network Plan for the 

2008 Pb, 2008 ozone, and 2010 NO2

NAAQS on April 2, 2015. North 

Dakota’s air monitoring programs and 

data systems meet the requirements of 

CAA section 110(a)(2)(B) for the 2008 

Pb, 2008 ozone, and 2010 NO2 NAAQS. 

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 NAAQS are 

achieved, including a permit program as 

required in parts C and D. 

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 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS. As explained 

elsewhere 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 

With respect to elements (C) and (J), 

EPA interprets the CAA to require each 

state to make an infrastructure SIP 

submission for a new or revised NAAQS 

that demonstrates that the air agency 

has a complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of element (D)(i)(II) may 

also be satisfied by demonstrating the 

air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. North 

Dakota has shown that it currently has 

a PSD program in place that covers all 

regulated NSR pollutants, including 

greenhouse gases (GHGs). 

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. 

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. 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions, Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that EPA may not treat GHGs as an air 

pollutant for purposes of determining 

whether a source is a major source 

required to obtain a PSD permit. The 

Supreme Court also said that EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g., 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

Court of Appeals for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

At present, EPA has determined that 

North Dakota’s SIP is sufficient to 

satisfy elements (C), (D)(i)(II), and (J) 

with respect to GHGs because the PSD 

permitting program previously 

approved by EPA into the SIP continues 

to require that PSD permits (otherwise 

required based on emissions of 

pollutants other than GHGs) contain 

limitations on GHG emissions based on 

the application of BACT. Although the 

approved North Dakota PSD permitting 

program may currently contain 

provisions that are no longer necessary 

in light of the Supreme Court decision, 

this does not render the infrastructure 

SIP submission inadequate to satisfy 

elements (C), (D)(i)(II), and (J). The SIP 

contains the necessary PSD 

requirements at this time, and the 

application of those requirements is not 

impeded by the presence of other 

previously-approved provisions 

regarding the permitting of sources of 

GHGs that EPA does not consider 

necessary at this time in light of the 

Supreme Court decision. Accordingly, 

the Supreme Court decision does not 

affect EPA’s proposed approval of North 

Dakota’s infrastructure SIP as to the 

requirements of elements (C), (D)(i)(II), 

and (J). 

Finally, we evaluate the PSD program 

with respect to current requirements for 

PM2.5. In particular, on May 16, 2008, 

EPA promulgated the rule, 

‘‘Implementation of the New Source 

Review Program for Particulate Matter 

Less Than 2.5 Micrometers (PM2.5)’’ (73 

FR 28321) and on October 20, 2010 EPA 

promulgated the 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 these PM2.5 rules as a 

necessary requirement when assessing a 

PSD program for the purposes of 

element (C). 

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

Appeals, in Natural Resources Defense 

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

issued a judgment that remanded EPA’s 

2007 and 2008 rules implementing the 

1997 PM2.5 NAAQS. The court ordered 


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3 2011 Memo, at pg 8. 

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),’’ (73 

FR 28321, May 16, 2008), promulgated 

NSR requirements for implementation 

of PM2.5 in nonattainment areas 

(nonattainment 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 

Implementation 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 

Implementation rule in order to comply 

with the court’s decision. Accordingly, 

EPA’s proposed approval of North 

Dakota’s infrastructure SIP as to 

elements C 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 three 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. 

The second 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). 

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 (77 FR 64736, Oct. 23, 

2012). This SIP revision also addressed 

the requirements of the 2008 PM2.5 NSR 

Implementation Rule. On January 1, 

2012, the State submitted revisions to 

chapter 33–15–15–01.2, Scope, of the 

NDAC that adopted all elements of the 

2010 PM2.5 Increment Rule by 

incorporating by reference the federal 

PSD program at 40 CFR part 52, section 

21, as it existed on January 1, 2012. The 

submitted revisions make North 

Dakota’s PSD program up to date with 

respect to current requirements for 

PM2.5. EPA approved the necessary 

portions of North Dakota’s January 24, 

2013 submission which incorporate the 

requirements of the 2010 PM2.5

Increment Rule on July 30, 2013 (78 FR 

45866). North Dakota’s SIP-approved 

PSD program meets current 

requirements for PM2.5. EPA therefore is 

proposing to approve North Dakota’s 

SIP for the 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS with respect to the 

requirement in section 110(a)(2)(C) to 

include a PSD permit program in the 

SIP as required by part C of the Act. 

Minor NSR 

The State has a SIP-approved minor 

NSR program, adopted under section 

110(a)(2)(C) of the Act. The minor NSR 

program was originally approved by 

EPA on August 21, 1995 (60 FR 43401). 

Since approval of the minor NSR 

program, the State and EPA have relied 

on the 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. 

EPA is proposing to approve North 

Dakota’s infrastructure SIP for the 2008 

Pb, 2008 ozone, and 2010 NO2 NAAQS 

with respect to the general requirement 

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

program in the SIP that regulates the 

enforcement, modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved. 

4. Interstate Transport: The interstate 

transport provisions in CAA section 

110(a)(2)(D)(i) (also called ‘‘good 

neighbor’’ provisions) require each state 

to submit a SIP that prohibits emissions 

that will have certain adverse air quality 

effects in other states. CAA section 

110(a)(2)(D)(i) identifies four distinct 

elements related to the impacts of air 

pollutants transported across state lines. 

The two elements under 

110(a)(2)(D)(i)(I) require SIPs to contain 

adequate provisions to prohibit any 

source or other type of emissions 

activity within the state from emitting 

air pollutants that will (element 1) 

contribute significantly to 

nonattainment in any other state with 

respect to any such national primary or 

secondary NAAQS, and (element 2) 

interfere with maintenance by any other 

state with respect to the same NAAQS. 

The two elements under 

110(a)(2)(D)(i)(II) require SIPs to contain 

adequate provisions to prohibit 

emissions that will interfere with 

measures required to be included in the 

applicable implementation plan for any 

other state under part C (element 3) to 

prevent significant deterioration of air 

quality or (element 4) to protect 

visibility. In this action, EPA is 

addressing all four elements of CAA 

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

EPA is addressing the 2008 Pb and 

2010 NO2 NAAQS with regard to 

elements 1 (significant contribution) 

and 2 (interference with maintenance). 

EPA is addressing elements 3 

(interference with PSD) and 4 

(interference with visibility protection) 

of 110(a)(2)(D)(i) with regard to the 2008 

Pb, 2008 ozone, and 2010 NO2 NAAQS, 

and element 4 of 110(a)(2)(D)(i) with 

regard to the 2006 PM2.5 NAAQS. We 

are not addressing elements 1 and 2 for 

the 2008 ozone NAAQS in this action. 

These elements will be addressed in a 

later rulemaking. 

A. Evaluation of Significant 

Contribution to Nonattainment and 

Interference With Maintenance 

2008 Pb NAAQS 

North Dakota’s analysis of potential 

interstate transport for the 2008 Pb 

NAAQS includes considerations of Pb 

emissions at sources near the State’s 

borders and the distance of Pb sources 

in North Dakota to the nearest 

nonattainment area. The State’s analysis 

is available in the docket for this action. 

As noted in our 2011 Memo, there is 

a sharp decrease in Pb concentrations, at 

least in the coarse fraction, as the 

distance from a Pb source increases. For 

this reason, EPA found that the 

‘‘requirements of subsection (2)(D)(i)(I) 

(prongs 1 and 2) could be satisfied 

through a state’s assessment as to 

whether or not emissions from Pb 

sources located in close proximity to 

their state borders have emissions that 

impact the neighboring state such that 

they contribute significantly to 

nonattainment or interfere with 

maintenance in that state.’’ 3 In that 

guidance document, EPA further 

specified that any source appeared 

unlikely to contribute significantly to 

nonattainment unless it was located less 

than 2 miles from a state border and 

emitted at least 0.5 tons per year of Pb. 


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4Montana’s maximum design value was 

calculated using EPA’s AirData Web site, at http:// 

www.epa.gov/airquality/airdata/ad_rep_mon.html. 5http://www.epa.gov/airtrends/values.html. 6See 2013 Memo. 

North Dakota’s 110(a)(2)(D)(i)(I) analysis 

specifically noted that there are no 

sources in the State that meet both of 

these criteria. EPA concurs with the 

State’s analysis and conclusion that no 

North Dakota sources have the 

combination of Pb emission levels and 

proximity to nearby nonattainment or 

maintenance areas to contribute 

significantly to nonattainment in or 

interfere with maintenance by other 

states for this NAAQS. North Dakota’s 

SIP is therefore adequate to ensure that 

such impacts do not occur. We are 

proposing to approve North Dakota’s 

submission in that its SIP meets the 

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

for the 2008 Pb NAAQS. 

2010 NO2 NAAQS 

North Dakota’s 2010 NO2 transport 

analysis for element 1 of 110(a)(2)(D)(i) 

notes that there are no designated 

nonattainment areas for the 2010 NO2

NAAQS. The State asserts that, because 

there are no nonattainment areas for this 

NAAQS, North Dakota does not 

significantly contribute to 

nonattainment. 

North Dakota’s analysis for element 2 

of 110(a)(2)(D)(i) considered the 

distance to the South Coast Air Basin in 

California, the only NO2 maintenance 

area in the U.S., as well as the low 

monitored NO2 values in North Dakota 

and the historically decreasing NO2

emission levels in the State. North 

Dakota also noted that it anticipated 

further decreases in NOX emissions 

going forward, specifically noting the 

decreases resulting from the State’s 

regional haze SIP. The State’s analysis is 

available in the docket for this action. 

EPA concurs with the technical 

components of North Dakota’s 2010 NO2

transport analyses for both elements 1 

and 2, but clarifies that element 1 is not 

specific to designated nonattainment 

areas. In addition to the factors 

considered in the State’s analysis, EPA 

also notes that the highest monitored 

NO2 design values in each state 

bordering or near North Dakota are 

significantly below the NAAQS (see 

Table 2, below). This fact further 

supports the State’s contention that 

significant contribution to 

nonattainment or interference with 

maintenance of the NO2 NAAQS from 

North Dakota is very unlikely based on 

the lack of relatively nearby areas with 

high NO2. This is especially relevant for 

element 2 (interference with 

maintenance), because in addition to the 

lack of nonattainment areas, there are 

also no areas near the State approaching 

violation of the 2010 NO2 NAAQS 

which might therefore have difficulty 

with maintenance of the standard. 

TABLE 2—HIGHEST MONITORED 2010 NO2 NAAQS DESIGN VALUES

State 2011–2013 design value % of NAAQS 

(100 ppb) 

Minnesota ................................................................................... 46 ppb ........................................................................................ 46 

Montana ...................................................................................... 46 ppb 4 ...................................................................................... 46 

South Dakota .............................................................................. 37 ppb ........................................................................................ 37 

Wyoming ..................................................................................... 35 ppb ........................................................................................ 35 

* Source: http://www.epa.gov/airtrends/values.html. 

In addition to the monitored levels of 

NO2 in states near North Dakota being 

well below the NAAQS, North Dakota’s 

highest design value from 2011–2013 

was also significantly below this 

NAAQS (37 ppb).5

Based on all of these factors, EPA 

concurs with the State’s conclusion that 

North Dakota does not contribute 

significantly to nonattainment or 

interfere with maintenance of the 2010 

NO2 NAAQS in other states. EPA is 

therefore proposing to determine that 

North Dakota’s SIP includes adequate 

provisions to prohibit sources or other 

emission activities within the State from 

emitting NO2 in amounts that will 

contribute significantly to 

nonattainment in or interfere with 

maintenance by any other state with 

respect specifically to the NO2 NAAQS. 

B. Evaluation of Interference With 

Measures To Prevent Significant 

Deterioration (PSD) 

With regard to the PSD portion of 

section 110(a)(2)(D)(i)(II), this 

requirement may be met by a state’s 

confirmation in an infrastructure SIP 

submission that new major sources and 

major modifications in the state are 

subject to a comprehensive EPAapproved PSD permitting program in 

the SIP that applies to all regulated NSR 

pollutants and that satisfies the 

requirements of EPA’s PSD 

implementation rule(s).6 As discussed 

in section VI.3 of this proposed action, 

North Dakota has such a PSD-permitting 

program. 

As stated in the 2013 Memo, in-state 

sources not subject to PSD for any one 

or more of the pollutants subject to 

regulation under the CAA because they 

are in a nonattainment area for a 

NAAQS related to those particular 

pollutants may also have the potential 

to interfere with PSD in an attainment 

or unclassifiable area of another state. 

North Dakota does not contain any 

nonattainment areas. The consideration 

of nonattainment NSR for element 3 is 

therefore not relevant as all major 

sources locating in the State are subject 

to PSD. As North Dakota’s SIP meets 

structural PSD requirements for all 

regulated NSR pollutants, and does not 

have any nonattainment areas, EPA is 

proposing to approve the infrastructure 

SIP submission as meeting the 

applicable requirements of element 3 of 

section 110(a)(2)(D)(i) for the 2008 

Ozone, 2008 Pb and 2010 NO2 NAAQS. 

C. Evaluation of Interference With 

Measures To Protect Visibility 

The determination of whether the 

CAA section 110(a)(2)(D)(i)(II) 

requirement for visibility is satisfied is 

closely connected to EPA’s Regional 

Haze (RH) program. Under the RH 

program, each state with a Class I area 

is required to submit a SIP with 

reasonable progress goals for each such 

area that provides for an improvement 

in visibility for the most impaired days 

and ensures no degradation of the best 

days. CAA § 169A. 

Because of the often significant 

impacts on visibility from the interstate 

transport of pollutants, we interpret the 

provisions of CAA section 

110(a)(2)(D)(i)(II) described above as 

requiring states to include in their SIPs 

measures to prohibit emissions that 

would interfere with the reasonable 

progress goals set to protect Class I areas 

in other states. This is consistent with 

the requirements in the RH program 

which explicitly require each state to 

address its share of the emission 

reductions needed to meet the 

reasonable progress goals for 


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7See 2013 Memo at 34. See also 76 FR 22036 

(April 20, 2011) (EPA’s approval of the visibility 

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

demonstration by Colorado that did not rely on the 

Colorado Regional Haze SIP). 

8EPA’s final action including a partial approval, 

partial disapproval and FIP of the North Dakota RH 

SIP was published in the Federal Register April 6, 

2012 (77 FR 20894). 

9See 2013 Memo at 33–34. 

10EPA notes that we also disapproved and 

promulgated a FIP for the State’s reasonable 

progress determination for Basin Electric’s Antelope 

Valley Station. 

surrounding Class I areas. 64 FR 35714, 

35735 (July 1, 1999). States working 

together through a regional planning 

process are required to address an 

agreed upon share of their contribution 

to visibility impairment in the Class I 

areas of their neighbors. Given these 

requirements in the RH program we 

have concluded that a fully approved 

RH SIP satisfies the requirements of 

section 110(a)(2)(D)(i)(II) with respect to 

visibility. 

In the absence of a fully approved RH 

SIP, a state can still make a 

demonstration that its SIP satisfies the 

visibility requirements of section 

110(a)(2)(D)(i)(II).7 States worked 

through regional planning organizations 

(RPOs), such as the Western Regional 

Air Partnership (WRAP) in the case of 

North Dakota, to develop strategies to 

address RH. To help states in 

establishing reasonable progress goals, 

the RPOs modeled future visibility 

conditions. The modeling assumed 

emissions reductions from each state, 

based on extensive consultation among 

the states as to appropriate strategies for 

addressing haze. In setting reasonable 

progress goals, states generally relied on 

this modeling. As a result, we generally 

consider a SIP that ensures emission 

reductions commensurate with the 

assumptions underlying the reasonable 

progress goals to meet the visibility 

requirement of CAA section 

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

In its 2006 PM2.5, 2008 ozone, 2008 Pb 

and 2010 NO2 infrastructure 

certifications, North Dakota points to 

existing portions in the North Dakota 

SIP, specifically referencing the North 

Dakota RH SIP, to certify that the State 

meets the visibility requirements of 

section 110(a)(2)(D)(i). For the 2006 

PM2.5, 2008 ozone, 2008 Pb and 2010 

NO2 NAAQS, the State also references 

the PSD (NDAC 33–15–15) and 

Visibility Protection (NDAC 33–15–19) 

portions of its SIP, as well as EPA’s RH 

federal implementation plan (FIP).8

While Pb emissions have less impact on 

visibility, North Dakota addressed Pb no 

differently than other NAAQS in its 

2008 Pb certification. Regardless, EPA 

noted in the 2013 Memo that ‘‘Pbrelated visibility impacts were found to 

be insignificant,’’ and that ‘‘significant 

impacts from Pb emissions from 

stationary sources are expected to be 

limited to short distances from the 

source.’’ 9 As stated earlier in this 

section, North Dakota does not have any 

Pb sources near bordering states. 

In this action, we are proposing to 

find that the emissions reductions 

approved into North Dakota’s RH SIP 

are sufficient to ensure that emissions 

from sources within the State do not 

interfere with the reasonable progress 

goals of nearby states. North Dakota 

participated in a regional planning 

process with the WRAP. In the regional 

planning process, North Dakota 

accepted and incorporated the WRAPdeveloped visibility modeling into its 

RH SIP, and the SIP included the 

controls assumed in the modeling. 

EPA did not fully approve the North 

Dakota RH SIP, as we partially 

disapproved, among other elements, the 

State’s selection of NOX Best Available 

Retrofit Technology (BART) controls for 

Great River Energy’s Coal Creek Station. 

77 FR 20894 (April 6, 2012). As a result 

of our partial disapproval, North 

Dakota’s SIP does not ensure NOX

emission reductions from Coal Creek 

Station, emission reductions which 

were assumed in the WRAP’s visibility 

modeling that was relied on in setting 

reasonable progress goals in nearby 

states.10 We note, however, that the 

North Dakota RH SIP also adopted NOX

controls that were not included in the 

WRAP’s modeling for Otter Tail Power 

Company’s Coyote Station. EPA 

approved these controls into the North 

Dakota RH SIP as part of our April 6, 

2012 final action. The SIP provision will 

reduce NOX emissions at Coyote Station 

by approximately 4,213 tons per year, a 

larger decrease in emissions than the 

assumed NOX BART reductions for Coal 

Creek Station of approximately 3,200 

tons per year. As Coal Creek and Coyote 

Stations are roughly 32 miles apart, a 

relatively short distance, the visibility 

impacts from NOX emission reductions 

at either source on out-of-state Class I 

areas would be similar. 

Because the reductions in North 

Dakota’s approved RH SIP are greater 

than those assumed by the WRAP 

modeling, EPA is proposing to find that 

North Dakota’s SIP includes controls 

sufficient to address the relevant 

requirements related to impacts on Class 

I areas in other states. 

5. Interstate and International 

transport provisions: CAA section 

110(a)(2)(D)(ii) requires SIPs to include 

provisions ensuring compliance with 

the applicable requirements of CAA 

sections 126 and 115 (relating to 

interstate and international pollution 

abatement). Specifically, CAA section 

126(a) requires new or modified major 

sources to notify neighboring states of 

potential impacts from the source. 

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 of the EPA 

(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. In 

summary, the SIP meets the 

requirements of CAA section 

110(a)(2)(D)(ii) for the 2008 ozone, 2008 

Pb and 2010 NO2 NAAQS. 

6. Adequate resources: Section 

110(a)(2)(E)(i) requires states to provide 

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). 

Section 110(a)(2)(E)(ii) also requires 

each state to comply with the 

requirements respecting state boards 

under CAA section 128. Section 

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

‘‘provide 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. Sub-elements (i) and (iii): Adequate 

personnel, funding, and legal authority 

under state law to carry out its SIP, and 

related issues. 

NDCC 23–25–03 provides adequate 

authority for the State of North Dakota 

and the Department to carry out its SIP 

obligations with respect to the 2008 Pb, 

2008 ozone, and 2010 NO2 NAAQS. The 

State receives section 103 and 105 grant 

funds through its Performance 

Partnership Grant from EPA along with 


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11See Email from Tom Bachman ‘‘Request for 

Clarificaitons_ND iSIP 2008 ozone, 2008 Pb, and 

2010 NO2 NAAAQS’’ April 13, 2015, available 

within docket. 

12A discussion of the requirements for meeting 

CAA section 303 is provided in our notice of 

proposed rulemaking: Promulgation of State 

Implementation Plan Revisions; Infrastructure 

Requirements for the 1997 and 2006 p.m.2.5, 2008 

Lead, 2008 Ozone, and 2010 NO2 National Ambient 

Air Quality Standards; South Dakota (79 FR 71040, 

Dec. 1, 2014) under ‘‘VI. Analysis of State 

Submittals, 8. Emergency powers.’’ 

required state matching funds to 

provide funding necessary to carry out 

North Dakota’s SIP requirements. North 

Dakota’s resources meet the 

requirements of CAA section 

110(a)(2)(E). 

With respect to section 

110(a)(2)(E)(iii), the regulations cited by 

North Dakota in their certifications and 

verified through additional 

communication 11 (NDCC 23–25–02(01), 

33–15–04–02, 23–01–05(02), 23–25– 

03(5), and 23–25–10) and contained 

within this docket also provide the 

necessary assurances that the State has 

responsibility for adequate 

implementation of SIP provisions by 

local governments. Therefore, we 

propose to approve North Dakota’s SIP 

as meeting the requirements of section 

110(a)(2)(E)(i) and (E)(iii) for the 2008 

Pb, 2008 ozone, and 2010 NO2 NAAQS. 

b. Sub-element (ii): State boards. 

Section 110(a)(2)(E)(ii) requires each 

state’s SIP to contain provisions that 

comply with the requirements of section 

128 of the CAA. That provision contains 

two explicit requirements: (i) That any 

board or body which approves permits 

or enforcement orders under the CAA 

shall have at least a majority of members 

who represent the public interest and do 

not derive a significant portion of their 

income from persons subject to such 

permits and enforcement orders; and (ii) 

that 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. 

On July 30, 2013 (78 FR 45866) EPA 

approved revised language in North 

Dakota’s SIP, chapter 2, section 15, 

Respecting Boards to include provisions 

for addressing conflict of interest 

requirements. Details on how this 

portion of chapter 2, section 15 rules 

meet the requirements of section 128 are 

provided in our May 13, 2013 proposal 

notice (78 FR 27898). North Dakota’s 

SIP continues to meet the requirements 

of section 110(a)(2)(E)(ii), and we 

propose to approve the infrastructure 

SIP for the 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS for this element. 

7. 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. 

The North Dakota statutory provisions 

listed in the State’s certifications (NDCC 

23–25–03) and contained within this 

docket provide authority to establish a 

program for measurement and testing of 

sources, including requirements for 

sampling and testing. 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. The 

State cites several regulations (NDAC 

33–15–14–02.9, 33–15–14–03.6, 33–15– 

14–06.5 and contained within this 

docket) requiring monitoring of 

emissions from stationary sources, 

recordkeeping and reporting of 

emissions, and monitoring date. Source 

surveillance is also addressed in 

Chapter 8 of the SIP. This chapter 

provides for the permitting of sources, 

inspection of the sources, recordkeeping 

and reporting by sources, and 

compliance determinations. Section 8.2 

of the SIP commits the Department to 

the correlation of data with the 

applicable requirements. All reports are 

available for public inspection in 

accordance with NDAC 33–15–01–16.1. 

Additionally, North Dakota is 

required to submit emissions data to the 

EPA for purposes of the National 

Emissions Inventory (NEI). The NEI is 

the EPA’s central repository for air 

emissions data. The EPA published the 

Air Emissions Reporting Rule (AERR) 

on December 5, 2008, which modified 

the requirements for collecting and 

reporting air emissions data (73 FR 

76539). The AERR shortened the time 

states had to report emissions data from 

17 to 12 months, giving states one 

calendar year to submit emissions data. 

All states are required to submit a 

comprehensive emissions inventory 

every three years and report emissions 

for certain larger sources annually 

through the EPA’s online Emissions 

Inventory System. States report 

emissions data for the six criteria 

pollutants and their associated 

precursors—nitrogen oxides, sulfur 

dioxide, ammonia, lead, carbon 

monoxide, particulate matter, and 

volatile organic compounds. Many 

states also voluntarily report emissions 

of hazardous air pollutants. North 

Dakota made its latest update to the NEI 

on October 23, 2014. EPA compiles the 

emissions data, supplementing it where 

necessary, and releases it to the general 

public through the Web site http://

www.epa.gov/ttn/chief/

eiinformation.html. 

Based on the analysis above, we 

propose to approve the North Dakota 

SIP as meeting the requirements of CAA 

section 110(a)(2)(F) for the 2008 Pb, 

2008 ozone, and 2010 NO2 NAAQS. 

8. Emergency powers: Section 

110(a)(2)(G) of the CAA requires 

infrastructure SIPs to ‘‘provide for 

authority comparable to that in [CAA 

section 303] and adequate contingency 

plans to implement such authority.’’ 

Under CAA section 303, the EPA 

Administrator has authority to bring suit 

to immediately restrain an air pollution 

source that presents an imminent and 

substantial endangerment to public 

health or welfare, or the environment.12

If such action may not practicably 

assure prompt protection, then the 

Administrator has authority to issue 

temporary administrative orders to 

protect the public health or welfare, or 

the environment, and such orders can 

be extended if EPA subsequently files a 

civil suit. 

Chapter 23–25 of the NDCC provides 

relevant language and authority for ‘‘Air 

Pollution Control.’’ The purpose of this 

chapter is ‘‘to achieve and maintain the 

best air quality possible’’ and to ‘‘protect 

human health, welfare and property, 

[and] prevent injury to plant and animal 

life’’ (NDCC 23–25–01(2)). NDCC 23– 

25–01 defines ‘‘air pollution’’ as ‘‘the 

presence in the outdoor atmosphere of 

one or more air contaminants in such 

quantities and duration as is or may be 

injurious to human health, welfare, or 

property, animal or plant life, or which 

unreasonably interferes with the 

enjoyment of life or property.’’ As such, 

the chapter aims to protect all three 

areas required by section 303; human 

health, welfare, and environment. The 

‘‘Air Pollution Control’’ chapter 

provides general grants of authority to 

maintain actions in certain situations. 

We find these grants provide 

comparable authority to that provided 

in Section 303. Furthermore, the NDAC 

33–15–01–15(1) makes it unlawful to 

‘‘permit or cause air pollution’’ as 

defined in NDCC 23–25–01. A person 

causing or contributing to emissions 

that endanger public health, welfare, or 

the environment, would be causing ‘‘air 

pollution’’ within the meaning of North 

Dakota law, and would therefore be in 


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13See Email from Tom Bachman ‘‘Request for 

Clarifications_ND iSIP 2008 ozone, 2008 Pb, and 

2010 NO2 NAAAQS’’ April 13, 2015, available 

within docket. 

14See Email from Tom Bachman ‘‘Request for 

Clarifications_ND iSIP 2008 ozone, 2008 Pb, and 

2010 NO2 NAAAQS’’ April 13, 2015, available 

within docket. 

15 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements Required 

Under Sections 110(a)(1) and 110(a)(2) for the 2008 

Lead (Pb) National Ambient Air Quality Standards 

(NAAQS).’’ Steve Page, OAQPS Director, October 

14, 2011, at p. 13. 

violation of NDAC 33–15–01–15(1). 

This could occur in either an emergency 

or non-emergency situation.13

NDCC 23–25–10(5) provides that ‘‘the 

department has the authority to 

maintain an action in the name of the 

state against any person to enjoin any 

threatened or continuing violation of 

any provision of this chapter or any 

permit condition, rule, order, limitation, 

or other applicable requirement 

implementing this chapter.’’ Under 

NDCC 23–25–10(5), the Department has 

the authority to bring an action to enjoin 

a violation of NDCC 23–25 or its rules. 

The Department may seek a court order 

to restrain a source from causing or 

contributing to emissions that endanger 

public health, welfare, or the 

environment. In an emergency, this may 

take the form of an injunction or 

temporary restraining order (see NDCC 

32–06–02).14 Therefore, the NDDH has 

the authority to seek judicial actions 

during emergency situations. 

North Dakota’s statutes also provide 

the NDDH with the authority to issue 

administrative orders and emergency 

rules to protect the public health, 

welfare, and the environment under 

certain circumstances. NDCC 23–25–08, 

as cited in North Dakota’s SIP 

submittals, authorizes that in the event 

of ‘‘an emergency requiring immediate 

action to protect the public health and 

safety,’’ the NDDH has the authority to 

‘‘issue an order reciting the existence of 

such emergency and requiring that such 

action be taken as is necessary’’ to meet 

the emergency. The emergency order is 

effective immediately. Any person who 

violates the order is subject to 

enforcement, penalties, and injunctions 

under NDCC 23–25–10. 

Furthermore, as cited in North 

Dakota’s SIP submittals, the NDDH has 

the authority to ‘‘use an emergency 

adjudicative proceeding, in its 

discretion, in an emergency situation 

involving imminent peril to the public 

health, safety, or welfare’’ (NDCC 28– 

32–32). Accordingly, ‘‘in an emergency, 

the administrative agency may take 

action pursuant to a specific statute as 

is necessary to prevent or avoid 

imminent peril to the public health, 

safety, or welfare’’ (NDCC–28–32–32.1). 

In the absence of a specific statute 

requiring other administrative action, 

‘‘the administrative agency shall issue 

an order’’ (NDCC 28–32–32(4)). 

Further supplemental authority is 

found in a broad provision, cited by the 

State in their SIP submittals, granting 

additional authority to the NDDH. The 

NDDH has the authority to ‘‘[i]ssue such 

orders as may be necessary to effectuate 

the purposes’’ of the ‘‘Air Pollution 

Control’’ chapter NDCC 23–25–03.5. 

These orders can be enforced ‘‘by all 

appropriate administrative and judicial 

procedures’’ (NDCC 23–25–03.5). Thus, 

this broad grant of authority includes 

the authority to issue administrative 

orders during air pollution emergencies 

which would disrupt protection of 

human health, welfare, and animal and 

plant life. 

The combination of NDCC and NDAC 

provisions discussed above provide for 

authority comparable to section 303 to 

immediately bring suit to restrain, issue 

emergency orders against, and use 

special rule adoption procedures for 

applicable emergencies to take prompt 

administrative action against, any 

person causing or contributing to air 

pollution that presents an imminent and 

substantial endangerment to public 

health or welfare, or the environment. 

We propose that they are sufficient to 

meet the authority requirement of CAA 

section 110(a)(2)(G). 

States must also have adequate 

contingency plans adopted into their 

SIP to implement the air agency’s 

emergency episode authority (as 

discussed above). This can be done by 

submitting a plan that meets the 

applicable requirements of 40 CFR part 

51, subpart H for the relevant NAAQS 

if the NAAQS is covered by those 

regulations. 

Subpart H of 40 CFR part 51 requires 

states to classify regions and to develop 

contingency plans (also known as 

emergency episode plans) after ambient 

concentrations of certain criteria 

pollutants in an area have exceeded 

specified levels. For example, if ambient 

concentrations of nitrogen dioxide in an 

area have exceeded 0.06 ppm (annual 

arithmetic mean), then the area is 

classified as a Priority I region, and the 

state must develop a contingency plan 

that meets the requirements of sections 

51.151 and 51.152. North Dakota has not 

monitored any values above the priority 

cut point for ozone or NO2. 

Prevention of air pollution emergency 

episodes is addressed in Section 5 of 

North Dakota’s SIP and was approved 

on May 31, 1972 (37 FR 10842). We find 

that North Dakota’s air pollution 

emergency provisions establish stages of 

episode criteria (Section 5.2), provide 

for public announcement whenever any 

episode stage has been determined to 

exist (Section 5.3), and specify emission 

control actions to be taken at each 

episode stage (Section 5.5) consistent 

with the EPA emergency episode SIP 

requirements set forth at 40 CFR part 51, 

subpart H (prevention of air pollution 

emergency episode) for ozone and NO2. 

As noted in the October 14, 2011 

guidance,15 based on EPA’s experience 

to date with the Pb NAAQS and 

designating Pb nonattainment areas, 

EPA expects that an emergency episode 

associated with Pb emissions would be 

unlikely and, if it were to occur, would 

be the result of a malfunction or other 

emergency situation at a relatively large 

source of Pb. Accordingly, EPA believes 

the central components of a contingency 

plan would be to reduce emissions from 

the source at issue and communicate 

with the public as needed. We note that 

40 CFR part 51, subpart H (51.150– 

51.152) and 40 CFR part 51, Appendix 

L do not apply to Pb. 

Based on the above analysis, we 

propose approval of North Dakota’s SIP 

as meeting the requirements of CAA 

section 110(a)(2)(G) for the 2008 Pb, 

2008 ozone, and 2010 NO2 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]. 

EPA approved relevant sections of the 

North Dakota SIP on September 17, 

2012 (77 FR 57029). North Dakota’s 

statutory provision at NDCC 23–25–03 

provides adequate authority for the 

Department to carry out such revisions. 

Therefore, we propose to approve North 

Dakota’s SIP as meeting the 

requirements of CAA section 

110(a)(2)(H). 

10. 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 


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subchapter (relating to PSD of air 

quality and visibility protection).’’ 

The State has demonstrated it has the 

authority and rules in place through its 

certifications (contained within this 

docket) 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. 

Furthermore, EPA previously addressed 

the requirements of CAA section 127 for 

the North Dakota SIP and determined 

public notification requirements are 

appropriate (45 FR 53475, Aug. 12, 

1980). 

As discussed above, the State has a 

SIP-approved PSD program that 

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 element (C) and 

determined the State has satisfied the 

requirements of element 110(a)(2)(C), as 

noted above. Therefore, the State has 

also satisfied the requirements of 

element 110(a)(2)(J). 

Finally, with regard to the applicable 

requirements for visibility protection, 

EPA recognizes 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. 

Based on the above analysis, we 

propose to approve the North Dakota 

SIP as meeting the requirements of CAA 

section 110(a)(2)(J) for the 2008 Pb, 2008 

ozone, and 2010 NO2 NAAQS. 

11. Air quality and modeling/data: 

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

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 provisions at 40 CFR 

52.21(I)(2) requiring that modification or 

substitution of a model specified in 

Appendix W must be approved by the 

Administrator. Section 7.7, Air Quality 

Modeling, of North Dakota’s SIP 

commits the Department to performing 

air quality modeling to predict the 

impact of a source on air quality, and 

providing data to EPA upon request. As 

a result, the SIP provides for such air 

quality modeling as the Administrator 

has prescribed. Therefore, we propose to 

approve the North Dakota SIP as 

meeting the CAA section 110(a)(2)(K) 

for the 2008 Pb, 2008 ozone, and 2010 

NO2 NAAQS. 

12. Permitting fees: Section 

110(a)(2)(L) requires 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. 

The State cites the SIP approved fee 

provisions for construction permits 

(NDAC 33–15–23–02 approved at 62 FR 

19224, April 21, 1997), which include 

costs of processing not covered by the 

application fee. We also note that all the 

State SIPs we are proposing to approve 

in this action cite the regulation that 

provides for collection of permitting 

fees under North Dakota’s approved title 

V permit program (64 FR 32433, June 

17, 1999). As discussed in that approval, 

the State demonstrated that the fees 

collected were sufficient to administer 

the program. 

Therefore, based on the State’s 

experience in relying on the funds 

collected through application and 

processing fees at NDAC 33–15–23, and 

the use of title V fees to implement and 

enforce PSD permits once they are 

incorporated into title V permits, we 

propose to approve the submissions as 

supplemented by the State for the 2008 

Pb, 2008 ozone, and 2010 NO2 NAAQS. 

13. 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. 

The statutory provisions cited in 

North Dakota’s SIP submittals (NDCC 

23–25–03 and 23–25–02, contained 

within this docket) meet the 

requirements of CAA section 

110(a)(2)(M), so we propose to approve 

North Dakota’s SIP as meeting these 

requirements for the 2008 Pb, 2008 

ozone, and 2010 NO2 NAAQS. 

VII. What action is EPA taking? 

In this action, EPA is proposing to 

approve the following infrastructure 

elements for the 2008 Pb, 2008 ozone, 

and 2010 NO2 NAAQS: (A), (B), (C) with 

respect to minor NSR and PSD 

requirements, (D)(i)(II) elements 3 and 4, 

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

(M). EPA proposes to approve element 

4 of 110(a)(2)(D)(i)(II) for the 2006 PM2.5

NAAQS. Finally, EPA proposes 

approval of D(i)(I) elements 1 and 2 for 

the 2008 Pb, and 2010 NO2 NAAQS. 

EPA will act separately on infrastructure 

element (D)(i)(I), interstate transport, for 

the 2008 ozone NAAQS. 

VIII. Statutory and Executive Orders 

Review 

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, 

Oct. 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, Aug. 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); 


srobinson on DSK5SPTVN1PROD with PROPOSALS
41460 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Proposed Rules 

• 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, Feb. 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, 

Greenhouse gases, Lead, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: June 25, 2015. 

Debra H. Thomas, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2015–17380 Filed 7–14–15; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Part 192 

[Docket No. PHMSA–2011–0009] 

RIN 2137–AE71 

Pipeline Safety: Expanding the Use of 

Excess Flow Valves in Gas Distribution 

Systems to Applications Other Than 

Single-Family Residences 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Excess Flow Valves (EFVs), 

which are safety devices installed on 

natural gas pipelines to reduce the risk 

of accidents, are currently required for 

new or replaced gas service lines 

servicing single-family residences (SFR). 

PHMSA is proposing to make changes to 

part 192 to expand this requirement to 

include new or replaced branched 

service lines servicing SFRs, multifamily residences, and small 

commercial entities consuming gas 

volumes not exceeding 1,000 Standard 

Cubic Feet per Hour (SCFH). PHMSA is 

also proposing to require the use of 

manual service line shut-off valve (e.g., 

curb valves) for new or replaced service 

lines with meter capacities exceeding 

1,000 SCFH. Finally, PHMSA is 

proposing that operators notify 

customers of their right to request 

installation of an EFV on service lines 

that are not being newly installed or 

replaced. PHMSA is proposing to 

delegate the question of who bears the 

cost of installing EFVs to service lines 

that are not being newly installed or 

replaced to the operator, customer, and 

the appropriate State regulatory agency. 

DATES: Persons interested in submitting 

written comments on this Notice of 

Proposed Rulemaking (NPRM) must do 

so by September 14, 2015. PHMSA will 

consider late-filed comments so far as 

practicable. 

ADDRESSES: You may submit comments 

identified by the docket number 

PHMSA–2011–0009 by any of the 

following methods: 

Comments should reference Docket 

No. PHMSA–2011–0009 and may be 

submitted in the following ways: 

• Web site: http://

www.regulations.gov. This site allows 

the public to enter comments on any 

Federal Register notice issued by any 

agency. Follow the online instructions 

for submitting comments. 

• Fax: 1–202–493–2251. 

• Mail: U.S. Department of 

Transportation (DOT) Docket 

Operations Facility (M–30), West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590. 

• Hand Delivery: DOT Docket 

Operations Facility, West Building, 

Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC, 20590 

between 9:00 a.m. and 5:00 p.m., 

Monday through Friday, except Federal 

holidays. 

Instructions: Identify the docket 

number, PHMSA–2011–0009, at the 

beginning of your comments. If you mail 

your comments, submit two copies. In 

order to confirm receipt of your 

comments, include a self-addressed, 

stamped postcard. 

Note: All comments are posted 

electronically in their original form, without 

changes or edits, including any personal 

information. 

Privacy Act Statement 

Anyone can search the electronic 

comments associated with any docket 

by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

DOT’s complete Privacy Act Statement 

was published in the Federal Register 

on April 11, 2000, (65 FR 19477). 

FOR FURTHER INFORMATION CONTACT: 

Mike Israni, by telephone at 202–366– 

4571, by fax at 202–366–4566, or by 

mail at DOT, PHMSA, 1200 New Jersey 

Avenue SE., PHP–1, Washington, DC 

20590–0001. 

SUPPLEMENTARY INFORMATION: 

I. Background 

An EFV is a mechanical safety device 

installed inside the natural gas service 

line between the street and residential 

meter. The EFV will ‘‘trip or close’’ if 

there is sufficient damage to the line to 

minimize the flow of gas through the 

line and thus, the amount of gas that 

escapes into the atmosphere. During 

normal use, the valve is kept pushed 

open against oncoming gas flow by a 

spring. EFVs are designed so that 

general usage, such as turning on 

appliances, will not shut the valve. 

However, during a significant increase 

in the flow of gas (e.g., due to a damaged 

line), the spring cannot overcome the 

force of gas, and the valve will close and 

stay closed until the correct pressure is 

restored. When the correct pressure is 

restored, the EFV automatically resets 

itself. 

On July 7, 1998, in South Riding, 

Virginia, a residential gas explosion 

resulted in one death and three injuries. 

It is not known if the explosion 

occurred on a branched or nonbranched service line servicing an SFR; 

however, PHMSA believes that this 

proposed rule or its previous rule 

requiring EFVs on single lines serving 

SFRs would have mitigated the 

consequences of the explosion. An 

investigation by the National 

Transportation Safety Board (NTSB) 

found the explosion likely would not 

have occurred if an EFV had been 

installed for this single-family home. 

Similarly, PHMSA strongly believes this 

incident would have likely been would 

have been mitigated at a minimum. As 

a result, on June 22, 2001, the NTSB 

issued Safety Recommendation P–01–2, 

recommending that PHMSA require 

excess flow valves in all new and 

renewed gas service lines, regardless of 

a customer’s classification, when the 


srobinson on DSK5SPTVN1PROD with PROPOSALS