Proposed Rule2022-11584
Air Plan Approval; North Dakota; Removal of Exemptions to Visible Air Emissions Restrictions
Primary source
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Published
June 2, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision it received on November 11, 2016, submitted by the State of North Dakota, through the North Dakota Department of Health (NDDH). The revision was submitted by North Dakota in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, for a provision in the North Dakota SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing approval of the SIP revision and proposing to determine that this SIP revision corrects the deficiency identified in the June 12, 2015, SIP call.
Full Text
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<title>Federal Register, Volume 87 Issue 106 (Thursday, June 2, 2022)</title>
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[Federal Register Volume 87, Number 106 (Thursday, June 2, 2022)]
[Proposed Rules]
[Pages 33461-33463]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11584]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2022-0359; FRL-9886-01-R8]
Air Plan Approval; North Dakota; Removal of Exemptions to Visible
Air Emissions Restrictions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision it received on
November 11, 2016, submitted by the State of North Dakota, through the
North Dakota Department of Health (NDDH). The revision was submitted by
North Dakota in response to a finding of substantial inadequacy and SIP
call published on June 12, 2015, for a provision in the North Dakota
SIP related to excess emissions during startup, shutdown, and
malfunction (SSM) events. EPA is proposing approval of the SIP revision
and proposing to determine that this SIP revision corrects the
deficiency identified in the June 12, 2015, SIP call.
DATES: Comments must be received on or before July 5, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2022-0359 at https://
[[Page 33462]]
www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://regulations.gov">regulations.gov</a>. EPA may publish any comment received to its public
docket. Do not electronically submit any information you consider to be
Confidential Business Information (CBI) or other information, the
disclosure of which is restricted by statute. Multimedia submissions
(audio, video, etc.) must be accompanied by a written comment. The
written comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver,
Colorado 80202-1129, telephone number: (303) 312-6728, email address:
<a href="/cdn-cgi/l/email-protection#2f5c4c4742465b5b014a43434a416f4a5f4e01484059"><span class="__cf_email__" data-cfemail="d3a0b0bbbebaa7a7fdb6bfbfb6bd93b6a3b2fdb4bca5">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or
``our'' is used, it refers to EPA.
Table of Contents
I. Background
II. Analysis of SIP Submission
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review
I. Background
On February 22, 2013, EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the Clean Air Act (CAA) with regard to excess emission events.\1\ For
each SIP provision that EPA determined to be inconsistent with the CAA,
EPA proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016. In the 2015 SSM Action, EPA issued a SIP
call for the North Dakota SIP, since EPA found that provision 33-15-03-
04.3, located in the State's SIP, is inconsistent with the CAA and the
2015 SSM Policy because it allows for discretionary exemptions from
otherwise applicable emission limitations through a State official's
unilateral exercise of discretionary authority that is insufficiently
bounded. As noted in a previous footnote, shortly after North Dakota
proposed the November 11, 2016 SIP revision, the State created a new
environmental agency, the North Dakota Department of Environmental
Quality (NDDEQ), and North Dakota's Air Pollution rules were recodified
under the NDAC as 33.1-15 instead of 33-15.\2\ Therefore, from here on
in this document, EPA will refer to provision 33-15-03.04.3 as 33.1-
15.03-04.3.
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\2\ In 2017, the North Dakota State legislature created the
NDDEQ that assumed all the duties and responsibilities of the NDDH's
Environmental Health Section. To accommodate the new NDDEQ, the
North Dakota Air Pollution Control Law was recodified in the North
Dakota Century Code (NDCC) as NDCC 23.1-06 and the Air Pollution
Rules were recodified in the North Dakota Administrative Code (NDAC)
as NDAC 33.1-15.
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EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\3\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific State SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to North Dakota in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw particular SIP calls through future
agency actions.
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\3\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including minority, low-income and
indigenous populations overburdened by air pollution, receive the full
health and environmental protections provided by the CAA.\5\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's intent. EPA intends
to implement the principles laid out in the 2015 SSM SIP Action as the
Agency takes action on SIP submissions, including North Dakota's
November 11, 2016 SIP submittal provided in response to the 2015 SIP
call.
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\4\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\5\ 80 FR 33985.
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With regard to the North Dakota SIP, EPA proposes to approve the
removal of provision 33.1-15-03-04.3 from Article 33.1-15-03,
Restriction of Emission of Visible Air Contaminants.\6\ This provision
was among those that EPA determined were inconsistent with the CAA in
the 2015 SSM SIP Action. Provision 33.1-15-03-04.3 stated that the
otherwise applicable emission
[[Page 33463]]
limitations for opacity in several other listed regulations do not
apply ``where an applicable opacity standard is established for a
specific source.'' In the 2015 SSM SIP Action, EPA determined that this
provision allowed a State official to modify the opacity limits in a
permit or other document to allow emissions in excess of the otherwise
applicable SIP limitations. The detailed rationale for issuing the SIP
call to North Dakota can be found in the 2015 SSM SIP Action. In its
November 11, 2016 SIP submission, North Dakota is requesting that EPA
revise the North Dakota SIP by removing 33.1-15-03-04.3 in its
entirety, thereby removing this provision from the State's SIP.
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\6\ The North Dakota State Health Council adopted the amendments
removing provision 33-15-03-0.3 on February 24, 2016 (effective July
1, 2016).
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II. Analysis of SIP Submission
EPA is proposing to approve North Dakota's November 11, 2016 SIP
revision requesting the removal of provision 33.1-15-03-04.3 from the
State's SIP. We consider the removal of this provision sufficient to
correct the inadequacies that EPA's 2015 SSM SIP Action identified in
the North Dakota SIP.\7\ As a result of the removal from the SIP, the
impermissible discretionary exemptions from emissions limitations
contained within this provision will no longer be available to sources.
As explained in the 2015 SSM SIP Action (80 FR at 33848), the removal
of an exemption is an appropriate way to address the inadequacy. EPA's
proposed approval of this revision is consistent with CAA section
110(l) because approval will not interfere with any applicable
requirement of the CAA. Specifically, by removing the discretionary
exemptions created by 33.1-15-03-04.3, the SIP is now more protective.
Therefore, we are proposing to approve the removal of this provision
from the SIP. Because removal of this provision would fully address the
inadequacies that the 2015 SSM SIP Action identified in the North
Dakota SIP, this proposed action, if finalized, will satisfy North
Dakota's obligations pursuant to EPA's 2015 SSM SIP Action.
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\7\ For a more in-depth discussion on the inadequacies of 33-15-
03-04.3, see our proposed 2015 SSM SIP Action, 78 FR 12459, 12531-
32.
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III. Proposed Action
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is
proposing to approve North Dakota's November 11, 2016 SIP submission
requesting removal of 33.1-15-03-04.3 from the State SIP. We are
proposing approval of the SIP revision because we have determined that
it is consistent with the requirements for SIP provisions under the
CAA. EPA is further proposing to determine that such SIP revision
corrects the deficiency identified in the June 12, 2015, SIP call. EPA
is not reopening the 2015 SSM SIP Action and is only taking comment on
whether this SIP revision is consistent with CAA requirements and
whether it addresses the substantial inadequacy in the specific North
Dakota SIP provision (33.1-15-03-04.3) identified in the 2015 SSM SIP
Action. EPA has previously taken action on other parts of the North
Dakota November 11, 2016 SIP submittal and therefore these other
elements have not been addressed in this action nor will EPA be taking
comments on those topics at this time.\8\
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\8\ See 83 FR 22227, May 14, 2018 (proposed rule) and 84 FR
11646, March 28, 2019 (final rule).
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IV. Incorporation by Reference
In this document, EPA is proposing to remove in a final rule,
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to remove the
incorporation by reference of ``33.1-15-03-04.3'' in 40 CFR 52.1820, as
described in Section II of this preamble. EPA has made, and will
continue to make, these documents generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at the EPA Region 8 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 removal of State law not meeting
Federal requirements and does not impose additional requirements beyond
those already imposed by State law. For that reason, this proposed
action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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 proposed 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,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 24, 2022.
K.C. Becker,
Regional Administrator, Region 8.
[FR Doc. 2022-11584 Filed 6-1-22; 8:45 am]
BILLING CODE 6560-50-P
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