Approval and Promulgation of Implementation Plans; North Dakota: Prevention of Significant Deterioration; Greenhouse Gas Permitting Authority and Tailoring Rule; PM2.5

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a revision to the North Dakota State Implementation Plan (SIP) relating to regulation of Greenhouse Gases (GHGs) and fine particulate matter (PM_2.5) under North Dakota's Prevention of Significant Deterioration (PSD) program. This revision was submitted by the North Dakota Department of Health Division of Air Quality (ND DOH DAQ) to EPA on April 18, 2011. It is intended to align North Dakota's regulations with the “PSD and Title V Greenhouse Gas Tailoring Final Rule” and the final rule for “Implementation of the New Source Review (NSR) Program for PM_2.5.” EPA is approving the revision because the Agency has determined that the SIP revision, already adopted by North Dakota as a final effective rule, is in accordance with the Clean Air Act (CAA or Act) and EPA regulations regarding PSD permitting for GHGs and PM_2.5.

DATES:

This action is effective on November 23, 2012.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R08-OAR-2012-0299. All documents in the docket are listed at http://www.regulations.gov . Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information 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 through http://www.regulations.gov or in hard copy at EPA Region 8, Air Quality Planning Unit (8P-AR), 1595 Wynkoop Street, Denver, Colorado 80202. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Jody Ostendorf, Air Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., Denver, Colorado 80202-1129, (303) 312-7814, ostendorf.jody@epa.gov.

SUPPLEMENTARY INFORMATION:

Information is organized as follows:

Table of Contents

I. What action is EPA finalizing in today's notice?

II. What is the background for the PSD SIP final approval by EPA in today's notice?

A. GHG-Related Actions

B. PM_2.5-Related Actions

C. North Dakota's Actions

III. What is EPA's analysis of North Dakota's SIP revision?

IV. Response to Comments

V. Final Action

VI. Statutory and Executive Order Reviews

I. What action is EPA finalizing in today's notice?

On April 18, 2011, ND DOH submitted a request to EPA to approve revisions to the state's SIP and Title V program to incorporate recent rule amendments adopted by the ND DOH DAQ. These adopted rules became effective in the North Dakota Administrative Code on that date. Among other things, the amendments establish thresholds for GHG emissions in North Dakota's PSD and Title V regulations at the same emissions thresholds and in the same time-frames as those specified by EPA in the “PSD and Title V Greenhouse Gas Tailoring Final Rule” (75 FR 31514, June 3, 2010), hereinafter referred to as the “Tailoring Rule,” ensuring that smaller GHG sources emitting less than these thresholds will not be subject to permitting requirements for GHGs that they emit. The requested revisions to the SIP will clarify the applicable thresholds in the North Dakota SIP and incorporate state rule changes adopted at the state level into the federally-approved SIP.

The revisions to the SIP also address requirements for PSD programs with regard to emissions of PM_2.5. These requirements were specified by EPA in the rule, “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers PM_2.5 (PM_2.5)” (73 FR 28321, May 16, 2008), hereinafter referred to as the “PM_2.5 NSR Implementation Rule.” On July 13, 2012, EPA proposed approval of North Dakota's April 18, 2011 SIP submittal for incorporation into the SIP (77 FR 41343). We did not propose approval of ND's Title V operating permit program revision, which is handled separately because the Title V program is not part of the SIP. In today's notice, pursuant to section 110 of the CAA, EPA is approving the SIP revisions into the North Dakota SIP.

North Dakota also submitted revisions to the General Provisions (Section 33-15-01-04), Ambient Air Quality Standards (Sections 33-15-02-04.1 and 33-15-02-07, and Tables 1 and 2), and Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate (Sections 33-15-14-01.9, 10, 12 and 15, 33-15-14-02.1, 33-15-14-02.13 and 33-15-14-03.1.c). In today's final rulemaking, EPA is not taking action on those submittals; EPA will act on them in a separate rulemaking.

II. What is the background for the PSD SIP final approval by EPA in today's notice?

This section briefly summarizes EPA's recent GHG and PM_2.5-related actions that provide the background for today's final action. More detailed discussion of the background is found in the preambles for those actions. In particular, for GHGs the background is contained in the PSD SIP Narrowing Rule, and in the preambles to the actions cited therein.

A. GHG-Related Actions

EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today's final action on the North Dakota SIP. Four of these actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action, the “Johnson Memo Reconsideration,” the “Light-Duty Vehicle Rule,” and the “Tailoring Rule.” Taken together and in conjunction with the CAA, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they took effect on January 2, 2011, subjected GHGs emitted from stationary sources to PSD requirements; and limited the applicability of PSD requirements to GHG sources on a phased-in basis. EPA took this last action in the Tailoring Rule, which, more specifically, established appropriate GHG emission thresholds for determining the applicability of PSD requirements to GHG-emitting sources.

PSD is implemented through the SIP system. In December 2010, EPA promulgated several rules to implement the new GHG PSD SIP program. Recognizing that some states had approved SIP PSD programs that did not apply PSD to GHGs, EPA issued a SIP Call and, for some of these states, a Federal Implementation Plan (FIP). Recognizing that other states had approved SIP PSD programs that do apply PSD to GHGs, but that do so for sources that emit as little as 100 or 250 tons per year (tpy) of GHG, and that do not limit PSD applicability to GHGs to the higher thresholds in the Tailoring Rule, EPA issued the PSD SIP Narrowing Rule. Under that rule, EPA withdrew its approval of the affected SIPs to the extent those SIPs covered GHG-emitting sources below the Tailoring Rule thresholds. EPA based its action primarily on the “error correction” provisions of CAA section 110(k)(6).

B. PM_2.5-Related Actions

On May 16, 2008, EPA issued final rules governing the implementation of the New Source Review (NSR) program for particulate matter less than 2.5 micrometers in diameter (PM_2.5), also known as fine particles. The PM_2.5 NSR Implementation Rule finalized several NSR program requirements for sources that emit PM_2.5 and other pollutants that contribute to PM_2.5, including; pollutants that contribute to PM_2.5 that are subject to NSR regulations, major source thresholds, significant emissions rates, interpollutant offset trading, revised SIP submittal deadlines and timing of implementation of the rule. The rule requires PSD permits to address directly emitted PM_2.5 as well as pollutants responsible for secondary formation of PM_2.5 as follows:

• Sulfur dioxide (SO₂)—regulated as a PM_2.5 precursor
• Nitrogen oxides (NOx)—regulated as a PM_2.5 precursor unless a state demonstrates that NOx emissions are not a significant contributor to the formation of PM_2.5 for an area in the state.
• Volatile organic compounds (VOC)—not regulated as a PM_2.5 precursor unless a state demonstrates that VOC emissions are a significant contributor to the formation of PM_2.5 for an area in the state.

C. North Dakota's Actions

On June 21, 2010, North Dakota provided a letter to EPA, in accordance with a request to all states from EPA in the Tailoring Rule, with confirmation that the State of North Dakota has the authority to regulate GHGs in its existing SIP-approved PSD program at the Tailoring Rule thresholds. The letter also confirmed North Dakota's intent to amend its air quality rules for the PSD program for GHGs to explicitly match the thresholds set in the Tailoring Rule. See the docket for this final rulemaking for a copy of North Dakota's letter.

The rulemaking docket includes a Dec. 14, 2010 memo from EPA Region 8 that documents communications between EPA and the State of North Dakota, with regard to the question of whether the state believed that it needed the PSD SIP Narrowing Rule. The state's 60-day response letter to EPA, dated June 21, 2010, stated, in part, “The Department believes it has existing authority to issue both PSD and Title V permits for sources of greenhouse gases based on the applicability thresholds specified in the tailoring rule.” Therefore, the state believed the narrowing rule was unnecessary for North Dakota. As a result, North Dakota was not subject to the PSD SIP Narrowing Rule.

III. What is EPA's analysis of North Dakota's SIP revision?

On April 18, 2011, ND DOH DAQ submitted a revision of its regulations to EPA for processing and approval into the SIP. This SIP revision explicitly adopts the GHG emission thresholds for PSD applicability set forth in EPA's Tailoring Rule. EPA's approval of North Dakota's SIP revision will incorporate the revisions of the North Dakota regulations into the Federally-approved SIP. Doing so will clarify the applicable thresholds in the North Dakota SIP.

The SIP revision establishes thresholds for determining which stationary sources and modification projects become subject to permitting requirements for GHG emissions under North Dakota's PSD program. Specifically, North Dakota's SIP revision includes changes—which are already state effective—to North Dakota's Administrative Code, revising chapter 33-15-15 “Prevention of Significant Deterioration of Air Quality,” subsection 33-15-15-01.2 “Scope.”

In subsection 33-15-15-01.2, North Dakota implements the PSD program by, for the most part, incorporating by reference the federal PSD program at 40 CFR 52.21. Under the current SIP, the federal PSD program is incorporated as it existed on August 1, 2007. Under the SIP revision, the federal PSD program as it existed on July 2, 2010 is incorporated by reference. This includes revisions to the federal PSD program that were published as a final rule in the Federal Register by this date but had not yet been published in the Code of Federal Regulations (CFR). The Tailoring Rule, including the necessary revisions to the federal PSD program, was published as a final rule in the Federal Register on June 3, 2010, and on July 1, 2010, the Tailoring Rule revisions to 40 CFR 52.21 were noted in the published version of the CFR. The SIP revision therefore incorporates the PSD requirements of the Tailoring Rule.

Similarly, the revision incorporates, for the most part, the PSD requirements of the PM_2.5 NSR Implementation Rule (promulgated May 16, 2011) as reflected in 40 CFR 52.21, with one exception. North Dakota has modified the language in the definition of “regulated NSR pollutant” at 40 CFR 52.21(b)(5) regarding PM_2.5 precursor presumptions. The modification explicitly establishes that nitrogen oxides are a precursor to PM_2.5 and that volatile organic compounds are not a precursor to PM_2.5. In other words, the State has not attempted to demonstrate that nitrogen oxides are not a significant contributor to ambient PM_2.5 concentrations or that volatile organic compounds are a significant contributor to ambient PM_2.5 concentrations. This approach is consistent with the PM_2.5 NSR Implementation Rule. Finally, as a result of the updated incorporation by reference, North Dakota has also adopted the clarified definition of “reasonable possibility” promulgated by EPA on December 21, 2007 (72 FR 72607).

North Dakota removed language that had previously been added to 40 CFR 52.21(o)(1) for two reasons: To make this requirement entirely consistent with federal rules and to provide flexibility to use current methodologies recommended by Federal Land Managers. Chapter 33-15-19 is still applicable to major sources or major modifications under PSD; however, the revised PSD rules in Chapter 33-15-15 do not bind North Dakota to Chapter 33-15-19 for the visibility analysis.

North Dakota is currently a SIP-approved state for the PSD program, and has previously incorporated EPA's 2002 NSR reform revisions for PSD into its SIP. See 72 FR 39564 (July 19, 2007). The changes to North Dakota's PSD program regulations are substantively the same as the federal provisions amended in EPA's Tailoring Rule and PM_2.5 NSR Implementation Rule. As part of its review of North Dakota's submittal, EPA performed a line-by-line review of North Dakota's revision and has determined that it is consistent with the Tailoring Rule and PM_2.5 NSR Implementation Rule.

IV. Response to Comments

EPA did not receive comments on our July 13, 2012 Federal Register notice proposing approval of North Dakota's SIP revision relating to regulation of GHGs and fine particulate matter under the North Dakota PSD program.

V. Final Action

Pursuant to section 110 of the CAA, EPA is approving North Dakota's April 18, 2011 revisions to the North Dakota SIP, relating to PSD requirements for GHG- and PM_2.5-emitting sources. Specifically, North Dakota's SIP revision establishes appropriate emissions thresholds for determining PSD applicability to new and modified GHG-emitting sources in accordance with EPA's Tailoring Rule. The final SIP revision also satisfies PSD requirements for treatment of PM_2.5 in accordance with EPA's PM_2.5 NSR Implementation Rule. As a result, EPA has determined that this SIP revision is approvable.

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 final action merely approves some state law as meeting federal requirements and disapproves other state law because it does not meet federal requirements; this final action does not impose additional requirements beyond those imposed by state law. For that reason, this final action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

• Incorporation by reference
• Environmental protection
• Air pollution control
• Intergovernmental relations, and Reporting and recordkeeping requirements

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

Therefore, 40 CFR chapter I is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ—North Dakota

2. Section 52.1820 in paragraph (c) is amended by revising the table entry for “33-15-15-01.2” to read as follows