[Federal Register Volume 77, Number 73 (Monday, April 16, 2012)]
[Proposed Rules]
[Pages 22540-22549]
[FR Doc No: 2012-9075]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0300; FRL-9659-3]

Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standards; North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve and conditionally approve the
State Implementation Plan (SIP) submission from the State of North
Dakota to demonstrate that the SIP meets the requirements of section
110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient
Air Quality Standards (NAAQS) promulgated for ozone on July 18, 1997.
Section 110(a)(1) of the CAA requires that each state, after a new or
revised NAAQS is promulgated, review their SIPs to ensure that they
meet the requirements of the ``infrastructure elements'' of section
110(a)(2). The State of North Dakota submitted revisions to their
Infrastructure SIP for the 1997 ozone NAAQS, dated April 6, 2009, as
well as a certification of their infrastructure SIP for the 1997 ozone
NAAQS dated November 23, 2009.

DATES: Written comments must be received on or before May 16, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0300, by one of the following methods:
     http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
     Email<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER> (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted
Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2010-0300. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA, without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to section I, General
Information, of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:

    (i) The words or initials Act or CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
    (ii) The initials DAQ mean or refer to Division of Air Quality.
    (iii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (iv) The initials FIP mean or refer to a Federal Implementation
Plan.
    (v) The initials GHGs mean or refer to greenhouse gases.
    (vi) The initials NAAQS mean or refer to national ambient air
quality standards.
    (vii) The initials NDAC mean or refer to North Dakota
Administrative Code.
    (viii) The initials NDCC mean or refer to North Dakota Century
Code.
    (ix) The initials NOX mean or refer to nitrogen
oxides.
    (x) The initials NSR mean or refer to new source review.
    (xi) The initials PM2.5 mean or refer to particulate
matter with an aerodynamic diameter of less than 2.5 micrometers
(fine particulate matter).
    (xii) The initials ppm mean or refer to parts per million.
    (xiii) The initials PSD mean or refer to Prevention of
Significant Deterioration.
    (xiv) The initials SIP mean or refer to State Implementation
Plan.
    (xv) The initials SSM mean or refer to start-up, shutdown, or
malfunction.

Table of Contents

I. General Information
II. Background
III. Scope of Infrastructure SIPs
IV. How did the State of North Dakota address the infrastructure
elements of sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not
submit CBI to EPA through http://www.regulations.gov or email. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information on a disk or CD-ROM that you mail to EPA, mark the
outside of the disk or CD-ROM as CBI and then identify electronically
within the disk or CD-ROM the specific information that is claimed as
CBI. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
    Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register, date, and page number);

    Follow directions and organize your comments;
    Explain why you agree or disagree;
    Suggest alternatives and substitute language for your requested
changes;
    Describe any assumptions and provide any technical information and/
or data that you used;
    If you estimate potential costs or burdens, explain how you arrived
at your estimate in sufficient detail to allow for it to be reproduced;
    Provide specific examples to illustrate your concerns, and suggest
alternatives;
    Explain your views as clearly as possible, avoiding the use of
profanity or personal threats; and,
    Make sure to submit your comments by the comment period deadline
identified.

II. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the SIP for a new or revised NAAQS affects
the content of the submission. The contents of such SIP submission may
also vary depending upon what provisions the state's existing SIP
already contains. In the case of the 1997 ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous NAAQS.
    In a guidance issued on October 2, 2007, EPA noted that, to the
extent an existing SIP already meets the section 110(a)(2)
requirements, states need only certify that fact via a letter to
EPA.\1\
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    \1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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    On March 27, 2008, EPA published a final rule entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a
finding for each state that it had submitted or failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In this
rule, EPA found that North Dakota failed to submit the relevant SIP.
The findings of failure to submit established a 24-month deadline for
EPA to promulgate a Federal Implementation Plan (FIP) to address the
outstanding SIP elements unless, prior to that time, North Dakota
submitted, and EPA approved, the required SIP. However, the finding of
failure to submit did not impose sanctions, set deadlines for imposing
sanctions, or set deadlines for imposing sanctions as described in
section 179 of the CAA, because these findings do not pertain to the
elements contained in the Title I part D plan for nonattainment areas
as required under section 110(a)(2)(l). Additionally, the finding of
failure to submit for the infrastructure submittals are not SIP calls
under section 110(k)(5).
    Section 110(a)(1) provides the procedural and timing requirements
for SIP submissions after a new or revised NAAQS is promulgated.
Section 110(a)(2) lists specific elements the SIP must contain or
satisfy. These infrastructure elements include requirements such as
modeling, monitoring, and emissions inventories, which are designed to
assure attainment and maintenance of the NAAQS. The elements that are
the subject of this action are listed below.
     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)(ii): Interstate and international pollution.
     110(a)(2)(E): Adequate resources and authority.
     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 prevention of significant deterioration (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: (i) Section
110(a)(2)(C) to the extent it refers to permit programs (known as
``nonattainment new source review (NSR)'') required under part D, and
(ii) section 110(a)(2)(I) pertaining to the nonattainment planning
requirements of part D. As a result, this action does not address
infrastructure elements related to the nonattainment NSR portion of
section 110(a)(2)(C) or related to 110(a)(2)(I).
    This action also does not address the ``interstate transport''
requirements of element 110(a)(2)(D)(i), or the visibility protection
requirements of element 110(a)(2)(J). EPA approved portions of the
state's 110(a)(2)(D)(i) interstate transport SIP for the 1997 ozone
NAAQS in separate prior actions (75 FR 31290; 75 FR 71023).

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and fine
particulate matter (PM2.5) NAAQS for various states across
the country. Commenters on EPA's recent proposals for some states
raised concerns about EPA statements that it was not addressing certain
substantive issues in the context of acting on the infrastructure SIP
submissions.\2\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
(SSM) at sources, that may

be contrary to the CAA and EPA's policies addressing such excess
emissions; and (ii) existing provisions related to ``director's
variance'' or ``director's discretion'' that purport to permit
revisions to SIP approved emissions limits with limited public process
or without requiring further approval by EPA, that may be contrary to
the CAA (``director's discretion''). EPA notes that there are two other
substantive issues for which EPA likewise stated that it would address
the issues separately: (i) Existing provisions for minor source NSR
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source NSR'');
and (ii) existing provisions for PSD programs that may be inconsistent
with current requirements of EPA's ``Final NSR Improvement Rule,'' 67
FR 80,186 (December 31, 2002), as amended by 72 FR 32,526 (June 13,
2007) (``NSR Reform''). In light of the comments, EPA now believes that
its statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
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    \2\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
state regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\3\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\4\
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    \3\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \4\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states. This
provision contains numerous terms that require substantial
rulemaking by EPA in order to determine such basic points as what
constitutes significant contribution. See, e.g., ``Rule To Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule,'' 70 FR 25162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\5\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given

infrastructure SIP submission. Similarly, EPA has previously decided
that it could take action on different parts of the larger, general
``infrastructure SIP'' for a given NAAQS without concurrent action on
all subsections, such as section 110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter ``interstate transport''
provisions within section 110(a)(2) and worked with states to address
each of the four prongs of section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on different tracks with different
schedules.\6\ This illustrates that EPA may conclude that subdividing
the applicable requirements of section 110(a)(2) into separate SIP
actions may sometimes be appropriate for a given NAAQS where a specific
substantive action is necessitated, beyond a mere submission addressing
basic structural aspects of the SIP. Finally, EPA notes that not every
element of section 110(a)(2) would be relevant, or as relevant, or
relevant in the same way, for each new or revised NAAQS and the
attendant infrastructure SIP submission for that NAAQS. For example,
the monitoring requirements that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS could be very different than what
might be necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\7\
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    \5\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12,
2005)(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \6\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \7\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\8\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \9\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \10\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable states to meet these requirements with assistance from EPA
Regions.'' \11\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the SIP for the NAAQS in question.
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    \8\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 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),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
    \9\ Id., at page 2.
    \10\ Id., at attachment A, page 1.
    \11\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the

Agency considers them issues that must be addressed in the context of
an infrastructure SIP as required by section 110(a)(1) and (2), but
rather because EPA wanted to be clear that it considers these potential
existing SIP problems as separate from the pending infrastructure SIP
actions.
    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\12\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\13\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude the Agency's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action at a later time. For example,
although it may not be appropriate to require a state to eliminate all
existing inappropriate director's discretion provisions in the course
of acting on the infrastructure SIP, EPA believes that section
110(a)(2)(A) may be among the statutory bases that the Agency cites in
the course of addressing the issue in a subsequent action.\14\
---------------------------------------------------------------------------

    \12\ EPA has issued a SIP call to rectify a specific SIP
deficiency related to the SSM issue. See, ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \13\ EPA has utilized this authority to correct errors in past
actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \14\ EPA has disapproved a SIP submission from Colorado on the
grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21,2010)
(proposed disapproval of director's discretion provisions); 76 FR
4540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. How did the State of North Dakota address the infrastructure
elements of section 110(a)(1) and (2)?

    1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of this Act.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: North Dakota Century
Code (NDCC) 23-25-03.5-.8; NDCC 23-25-03.12; NDCC 23-25-04.2; North
Dakota Administrative Code (NDAC) 33-15-07, 17, 20 (Control measures
for VOC); NDAC 33-15-23 (Fees).
    b. EPA analysis: North Dakota's SIP meets the requirements of CAA
section 110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following
clarifications. First, this infrastructure element does not require the
submittal of regulations or emission limitations developed specifically
for attaining the 1997 ozone NAAQS, and North Dakota has no areas
designated as nonattainment for the 1997 ozone NAAQS. Nonetheless, the
North Dakota SIP contains provisions for control of volatile organic
compounds, an ozone precursor (NDAC 33-15-07). North Dakota also
regulates emissions of ozone and its precursors through its SIP-
approved major and minor source permitting programs (64 FR 32433, June
17, 1999; 71 FR 3764, January 24, 2006). This suffices, in the case of
North Dakota, to meet the requirements of section 110(a)(2)(A) for the
1997 ozone NAAQS.
    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to (i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon
request, make such data available to the Administrator.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.2; NDCC
23-25-05; NDCC 23-15-14-02.9a; SIP Sections 6.7 & 6.8.
    b. EPA analysis: North Dakota's air monitoring programs and data
systems meet the requirements of CAA section 110(a)(2)(B) for the 1997
ozone NAAQS. The North Dakota Division of Air Quality's (DAQ) 2011
Ambient Air Annual Monitoring Network Plan was approved by EPA Region 8
on January 12, 2011. In this action, EPA also proposes approval of
North Dakota's revised SIP chapter 6.8, ``Annual Network Review,'' and
revised SIP chapter 6.11.3, ``Air Quality Surveillance: Ozone,''
submitted April 6, 2009.
    3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure that
NAAQS are achieved, including a permit program as required in parts C
and D.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: Enforcement: NDCC 23-25-
10; NDCC 23-25-05; NDCC 33-15-01-17; Permits: NDCC 23-25-03.6; NDCC 33-
15-14; NDCC 33-15-15; SIP Chapters 7 and 8.

    b. EPA analysis: As explained above, in this action EPA is not
evaluating non-attainment related provisions, such as the nonattainment
NSR program required by part D of the Act. In addition, North Dakota
has no nonattainment areas for the 1997 ozone NAAQS, and is therefore,
not required at this point to have a corresponding nonattainment NSR
program. In this action, EPA is evaluating the State's PSD program as
required by part C of the Act, and the State's minor NSR program as
required by 110(a)(2)(C).
North Dakota's PSD Program
    North Dakota's SIP-approved PSD program incorporates by reference
(with certain exceptions) the federal PSD program at 52.21 as of August
1, 2007. As described in our notice of approval of the most recent
revision of the program (75 FR 31290, June 3, 2010), North Dakota's PSD
program met the general requirements of CAA section 110(a)(2)(C) as of
that date, as well as the program requirement to treat nitrogen oxides
(NOX) as an ozone precursor in accordance with the phase 2
implementation rule for the 1997 ozone NAAQS (72 FR 71612, November 29,
2005). North Dakota's PSD program therefore meets the requirements of
section 110(a)(2)(C) with regard to implementation of the 1997 ozone
NAAQS.
    We also consider the requirements for PSD programs with respect to
greenhouse gases (GHGs). North Dakota's PSD program was not subject to
EPA's rule, ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans'' (``PSD SIP Narrowing Rule''), 75 FR 82536
(Dec. 30, 2010). As explained in a memorandum in the docket for that
action, North Dakota stated that it could implement the current SIP-
approved PSD program with the thresholds for GHGs set in EPA's June 3,
2010 ``Prevention of Significant Deterioration and Title V Greenhouse
Gas Tailoring Rule'' (``Tailoring Rule''), 75 FR 31514. It was
therefore not necessary in the PSD SIP Narrowing Rule to withdraw
approval of North Dakota's PSD program to the extent that it applied
PSD permitting to GHG emissions increases from GHG-emitting sources
below Tailoring Rule thresholds. North Dakota also stated its intent to
revise its PSD program to expressly adopt the Tailoring Rule
thresholds. North Dakota revised its program correspondingly on April
1, 2011 and submitted the SIP revision to us on April 14, 2011. As a
result, North Dakota's 2009 certification of adequacy of its PSD
program remains valid.
    North Dakota's April 14, 2011 SIP submittal includes various
updates to the State's PSD program. We are reviewing this submittal and
intend to propose action on it in the near future. We note that the
submittal appears to satisfy the requirements, with respect to the
State's PSD program, of the rule ``Implementation of the New Source
Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5),'' promulgated May 16, 2008 (73 FR 28321). However,
we will only reach a final conclusion on the adequacy of the revisions
when we act on them through the separate rulemaking.
North Dakota's Minor NSR Program
    The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act, which regulates emissions of ozone and
its precursors. The State and EPA have relied on the existing state
minor NSR program to assure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the NAAQS.
    In this action, EPA is proposing to approve North Dakota's
infrastructure SIP for the 1997 ozone NAAQS with respect to the general
requirement in section 110(a)(2)(C) to include a program in the SIP
that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. EPA is not
proposing to approve or disapprove the State's existing minor NSR
program itself to the extent that it is inconsistent with EPA's
regulations governing this program. A number of states may have minor
NSR provisions that are contrary to the existing EPA regulations for
this program. EPA intends to work with states to reconcile state minor
NSR programs with EPA's regulatory provisions for the program. The
statutory requirements of section 110(a)(2)(C) provide for considerable
flexibility in designing minor NSR programs, and it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
    4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to
contain adequate provisions prohibiting, consistent with the provisions
of this title, any source or other type of emissions activity within
the state from emitting any air pollutant in amounts which will (I)
contribute significantly to nonattainment in, or interfere with
maintenance by, any other state, with respect to any such national
primary or secondary ambient air quality standard, or (II) interfere
with measures required to be included in the applicable implementation
plan for any other state under part C to prevent significant
deterioration of air quality or to protect visibility.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i)(I): NDCC 23-25-03.6;
NDCC 23-25-03.7; NDCC 33-25-03.12; SIP Section 7.7 (submitted 4/09);
(i)(II): NDCC 23-25-03.4; NDCC 23-25-03.12; SIP Section 7.8 (submitted
4/09).
    b. EPA analysis: North Dakota submitted SIP revisions to EPA April
6, 2009, which included revisions to the State's interstate transport
SIP. EPA approved portions of the State's 110(a)(2)(D)(i) interstate
transport SIP for the 1997 ozone NAAQS in separate actions (75 FR
31290; 75 FR 71023), and has not yet completed action on the remaining
portion to meet the requirement of 110(a)(2)(D)(i)(II) regarding
interference with measures to protect visibility. EPA is taking no
action relevant to section 110(a)(2)(D)(i) in this proposal.
    5. Interstate and International transport provisions: Section
110(a)(2)(D)(ii) requires that each SIP shall contain adequate
provisions insuring compliance with applicable requirements of sections
126 and 115 (relating to interstate and international pollution
abatement).
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.12; SIP
Section 7.8 (submitted 4/09).
    b. EPA Analysis: Section 126(a) of the CAA requires notification to
affected, nearby states of major proposed new (or modified) sources.
Sections 126(b) and (c) pertain to petitions by affected states to the
Administrator regarding sources violating the ``interstate transport''
provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly
pertains to international transport of air pollution.
    With regard to section 126(a), North Dakota's SIP-approved PSD
program requires notice of proposed new sources or modifications to
states whose lands may be significantly affected by emissions from the
source or modification. This provision satisfies the notice requirement
of section 126(a).

    North Dakota has no pending obligations under sections 126(c) or
115(b); therefore, its SIP currently meets the requirements of those
sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii)
for the 1997 ozone NAAQS.
    6. Adequate resources and authority: Section 110(a)(2)(E) requires
states to provide (i) necessary assurances that the state will have
adequate personnel, funding, and authority under state law to carry out
the SIP (and is not prohibited by any provision of federal or state law
from carrying out the SIP or portion thereof), (ii) requires that the
state comply with the requirements respecting state boards under
section 128, and (iii) necessary assurances that, where the state has
relied on a local or regional government, agency, or instrumentality
for the implementation of any SIP provision, the state has
responsibility for ensuring adequate implementation of such SIP
provision.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-04.2;
NDAC 33-15-01-15; NDAC 33-15-23; SIP Chapter 9; (ii): NDCC 23-25-02.1;
SIP Section 2.15 (submitted 4/09); (iii): NDCC 23-25-02.1; SIP Section
2.7.
    b. EPA analysis: North Dakota's SIP meets the requirements of
section 110(a)(2)(E)(i) for the 1997 ozone NAAQS. NDCC 23-25-03
provides adequate authority for the State of North Dakota to carry out
its SIP obligations with respect to the 1997 ozone NAAQS. The State
receives sections 103 and 105 grant funds through its Performance
Partnership Grant along with required state matching funds to provide
funding necessary to carry out North Dakota's SIP requirements. North
Dakota submitted an updated version of SIP Chapter 9, ``Resources,'' to
EPA on April 6, 2009. In this action, EPA proposes to approve the
updated version of SIP Chapter 9, and therefore finds that North
Dakota's resources meet the requirements of CAA section
110(a)(2)(E)(i).
    With regard to section 110(a)(2)(E)(ii), in its submittal North
Dakota stated that section 128 does not apply because the State does
not have a board or body that approves permits or enforcement orders
under the CAA. We also note that the North Dakota SIP currently does
not contain provisions addressing the requirements of section 128 of
the CAA.
    Congress added section 128 in the 1977 amendments as the result of
a conference agreement. Titled ``State boards,'' section 128 provides
in relevant part:
    (a) Not later than the date one year after August 7, 1977, each
applicable implementation plan shall contain requirements that--
    (1) Any board or body which approves permits or enforcement orders
under [this Act] shall have at least a majority of members who
represent the public interest and do not derive any significant portion
of their income from persons subject to permits or enforcement orders
under [this Act], and
    (2) Any potential conflicts of interest by members of such board or
body or the head of an executive agency with similar powers be
adequately disclosed.

In 1978, we issued a guidance memorandum recommending ways states could
meet the requirements of section 128, including suggested
interpretations of certain terms in section 128.\15\
---------------------------------------------------------------------------

    \15\ Memorandum from David O. Bickart, Deputy General Counsel,
to Regional Air Directors, Guidance to States for Meeting Conflict
of Interest Requirements of Section 128 (Mar. 2, 1978).
---------------------------------------------------------------------------

    In order to determine what requirements the North Dakota SIP must
satisfy, we discuss various aspects of section 128. We first note that,
in the conference report, the committee stated: ``It is the
responsibility of each state to determine the specific requirements to
meet the general requirements of [section 128].'' \16\ We think that
this legislative history indicates that Congress intended states to
have some latitude in the specifics of implementing section 128, so
long as the implementation is consistent with the plain text of the
section. We also note that Congress explicitly provided in section 128
that states could adopt more stringent requirements. As a result, we
note three relevant considerations for implementing section 128.
---------------------------------------------------------------------------

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

    First, section 128 must be implemented through SIP-approved,
federally enforceable provisions. Section 128 explicitly mandates that
each SIP ``shall contain requirements'' that satisfy subsections
128(a)(1) and 128(a)(2). A mere narrative description of state statutes
or rules, or of a state's current or past practice in constituting a
board or body and in disclosing potential conflicts of interest, is not
a requirement contained in the SIP and therefore does not satisfy the
plain text of section 128.
    Second, subsection 128(a)(1) applies only to states that have a
board or body that is composed of multiple individuals and that, among
its duties, approves permits or enforcement orders under the CAA. It
does not apply in states that have no such multi-member board or body,
and where instead a single head of an agency approves permits or
enforcement orders under the CAA. This flows from the text of section
128 itself, for two reasons. First, as subsection 128(a)(1) refers to a
majority of members in the plural, we think it reasonable to read
subsection 128(a)(1) as not creating any requirements for an individual
with sole authority for approving a permit or enforcement order under
the CAA. Second, subsection 128(a)(2) explicitly applies to the head of
an executive agency with ``similar powers'' to a board or body that
approves permits or enforcement orders under the CAA, while subsection
128(a)(1) omits any reference to heads of executive agencies. We infer
that subsection 128(a)(1) should not apply to heads of executive
agencies who approve permits or enforcement orders.
    Third, subsection 128(a)(2) applies to all states, regardless of
whether the state has a multi-member board or body that approves
permits or enforcement orders under the CAA. Although the title of
section 128 is ``State boards,'' the language of subsection 128(a)(2)
explicitly applies where the head of an executive agency, rather than a
board or body, approves permits or enforcement orders. In instances
where the head of an executive agency delegates his or her power to
approve permits or enforcement orders, or where statutory authority to
approve permits or enforcement orders is nominally vested in another
state official, the requirement to disclose adequately potential
conflicts of interest still applies. In other words, EPA thinks that
SIPs for all states, regardless of whether a state board or body
approves permits or enforcement orders under the CAA, must contain
adequate provisions for disclosure of potential conflicts of interest.
    We propose to apply these considerations to the North Dakota SIP.
North Dakota currently does not have a multi-member board or body that
approves permits or enforcement orders under the CAA. Instead, permits
are approved by the Director of DAQ, and enforcement orders are
approved by the Section Chief of the Environmental Health Section.
Thus, we propose that North Dakota currently is not subject to the
requirements of subsection 128(a)(1).
    However, North Dakota is subject to the requirements of section
128(a)(2), and we therefore cannot approve the certification, as
originally submitted, with respect to section 110(a)(2)(E)(ii). North
Dakota has informed us that the

North Dakota Department of Health has an ethics policy requiring (among
other things) internal disclosure of potential conflicts of interest
and recusal from the matter raising the conflict. North Dakota has
committed to submit as a SIP revision provisions reflecting this
policy, to the extent necessary to meet the requirements of section
128, by July 31, 2013.\17\ Because recusal is more stringent than the
minimum disclosure required by subsection 128(a)(2), we propose that
the policy, if submitted as an enforceable SIP provision, will meet the
requirements of section 128. We therefore propose to conditionally
approve North Dakota's certification with respect to the requirements
of section 128(a)(2).
---------------------------------------------------------------------------

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

    Finally, with respect to section 110(a)(2)(E)(iii), North Dakota
has not assigned responsibility for carrying out portions of the SIP to
any local government, agency, or other instrumentality. North Dakota's
SIP therefore meets the requirements for this element.
    7. Stationary source monitoring and reporting: Section 110(a)(2)(F)
requires (i) the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources, (ii) periodic reports on the nature and amounts of emissions
and emissions-related data from such sources, and (iii) correlation of
such reports by the state agency with any emission limitations or
standards established pursuant to the Act, which reports shall be
available at reasonable times for public inspection.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-03.10;
NDAC 33-15-01.12.1; NDAC 33-15-14-02.9; SIP Sections 8.2 and 8.3; (ii)
NDAC 23-25-03.10; NDCC 23-25-04.2; 33-15-14-02.9.d; NDAC 33-15-01.12.1;
(iii): NDCC 23-25-03.10; NDCC 23-25-06; NDCC 23-25-03.6; NDAC 33-15-01-
16.1; NDCC 23-25-04.2; SIP Section 8.2.
    b. EPA analysis: NDCC section 23-25-03.10 generally requires
monitoring, recordkeeping, and reporting for owners and operators of
regulated sources. North Dakota's SIP-approved minor source and PSD
programs provide for monitoring, recordkeeping, and reporting
requirements for sources subject to minor and major source permitting.
North Dakota's SIP therefore meets the requirements of section
110(a)(2)(F) for the 1997 ozone NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) requires states to
provide for authority to address activities causing imminent and
substantial endangerment to public health, including contingency plans
to implement the emergency episode provisions in their SIPs.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.5; NDCC
23-25-03.12; NDCC 23-25-09.5; NDAC 33-15-11; SIP Chapter 5.
    b. EPA analysis: NDAC 33-15-11 and SIP Chapter 5 provide the State
with general emergency authority comparable to that in section 303 of
the Act. North Dakota has not monitored any values above the priority
cut point for ozone. See 40 CFR 51.150(b)(5). The SIP therefore meets
the requirements of 110(a)(2)(G) for the 1997 ozone NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan (i) from time to time as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii),
except as provided in paragraph (3)(C), whenever the Administrator
finds on the basis of information available to the Administrator that
the SIP is substantially inadequate to attain the NAAQS which it
implements or to otherwise comply with any additional requirements
under this Act.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-03.7;
NDCC 23-25-03.6; NDCC 23-25-03.8; SIP Section 1.14 (submitted 4/09);
(ii): NDCC 23-25-03.6-.8; NDCC 23-25-03.12; SIP Section 1.14 (submitted
4/09).
    b. EPA analysis: EPA is proposing to approve Section 1.14 of the
SIP submitted to EPA April 6, 2009. Section 1.14 requires revision of
the SIP in the circumstances enumerated in section 110(a)(2)(H) of the
CAA. NDCC section 23-25-03 provides adequate authority for the
Department of Health to carry out such revisions. EPA therefore finds
that the State has sufficient authority to meet the requirements of
110(a)(2)(H).
    10. Nonattainment Area Plan or Plan Revision under Part D: Section
110(a)(2)(I) requires that a SIP or SIP revision for an area designated
as a nonattainment area must meet the applicable requirements of part D
of this subchapter (relating to nonattainment areas).
    a. EPA analysis for Section 110(a)(2)(I): As noted above, the
specific nonattainment area plan requirements of section 110(a)(2)(I)
are subject to the timing requirement of section 172, not the timing
requirement of section 110(a)(1). This element is therefore not
applicable to this action. EPA will take action on part D attainment
plans through a separate process.
    11. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to PSD of
air quality and visibility protection).
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (section 121): NDCC 23-
25-08 (Orders); NDCC 23-25-03.4 and .6; NDAC 33-15-14 and 15; SIP
Chapter 10; (section 127): SIP Section 6.9; NDCC 23-25-06.1; (PSD):
NDCC 23-25-03.12; NDAC 33-15-15; NDAC 33-15-19; NDAC 33-15-25; NDAC 33-
15-02-03.4.
    b. EPA analysis: The State has demonstrated that it has the
authority and rules in place to provide a process of consultation with
general purpose local governments, designated organizations of elected
officials of local governments and any Federal Land Manager having
authority over federal land to which the SIP applies, consistent with
the requirements of CAA section 121. EPA previously approved portions
of the North Dakota SIP as meeting the requirements of CAA section 127.
(45 FR 53475, Aug. 12, 1980).
    As discussed above, the State has a SIP-approved PSD program that
(for the most part) incorporates by reference the federal program at 40
CFR 52.21. EPA has further evaluated North Dakota's SIP-approved PSD
program in this proposed action under IV.3, element 110(a)(2)(C).
    Finally, with regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, the
North Dakota SIP meets the requirements of section 110(a)(2)(J) for the
1997 ozone NAAQS.

    12. Air quality and modeling/data: Section 110(a)(2)(K) requires
that each SIP provide for (i) the performance of such air quality
modeling as the Administrator may prescribe for the purpose of
predicting the effect on ambient air quality of any emissions of any
air pollutant for which the Administrator has established a NAAQS, and
(ii) the submission, upon request, of data related to such air quality
modeling to the Administrator.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-03.2 and
.12; SIP Section 7.7 (Submitted 4/09); (ii): SIP Section 7.7 (Submitted
4/09); NDCC 23-23-06.1.
    b. EPA analysis: North Dakota's SIP meets the requirements of CAA
section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, North
Dakota's PSD program requires estimates of ambient air concentrations
be based on applicable air quality models specified in Appendix W of 40
CFR part 51, and incorporates by reference the provision at 40 CFR
52.21(l)(2) requiring that modification or substitution of a model
specified in Appendix W must be approved by the Administrator. EPA also
proposes to approve the addition of SIP section 7.7, submitted April 6,
2009, as meeting the requirements of this section 110(a)(2)(K)(ii). As
a result, the SIP provides for such air quality modeling as the
Administrator has prescribed.
    13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require
the owner or operator of each major stationary source to pay to the
permitting authority, as a condition of any permit required under this
act, a fee sufficient to cover (i) the reasonable costs of reviewing
and acting upon any application for such a permit, and (ii) if the
owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any
such permit (not including any court costs or other costs associated
with any enforcement action), until such fee requirement is superseded
with respect to such sources by the Administrator's approval of a fee
program under title V.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: (i): NDCC 23-25-04.2;
NDAC 33-15-23; (ii): NDAC 23-25-04.2; NDAC 33-15-23.
    b. EPA analysis: North Dakota's submittal meets the requirements of
CAA section 110(a)(2)(L) for the 1997 ozone NAAQS. Final approval of
the title V operating permit program became effective June 17, 1999(64
FR 32433). As discussed in that approval, the State demonstrated that
the fees collected were sufficient to administer the program. In
addition, the SIP contains fee provisions for construction permits
(NDAC 33-15-23-02), including costs of processing not covered by the
application fee. The SIP also contains fee provisions for minor source
operating permits (NDAC 33-15-23-03).
    14. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.
    a. North Dakota's response to this requirement: The State listed
the following provisions to meet this element: NDCC 23-25-03.4; SIP
Chapter 10.
    b. EPA analysis: North Dakota's submittal meets the requirements of
CAA section 110(a)(2)(M) for the 1997 ozone NAAQS.

V. What action is EPA taking?

    In this action, EPA is proposing to approve in full the November
23, 2009 certification for the following section 110(a)(2)
infrastructure elements for North Dakota for the 1997 ozone NAAQS: (A),
(B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and
(M). EPA is proposing to conditionally approve the November 23, 2009
certification for infrastructure element 110(a)(2)(E)(ii) for the 1997
ozone NAAQS. EPA is taking no action on infrastructure elements (D)(i),
(I), and the visibility protection requirement of (J) for the 1997
ozone NAAQS. In this action, EPA also proposes to approve portions of
North Dakota's April 6, 2009 SIP submission. Specifically, EPA proposes
to approve North Dakota's revisions to SIP sections 6.8, 6.11.3, and
chapter 9, and the additions of SIP sections 1.14 and 7.7.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting Federal
requirements and disapproves other state law because it does not meet
Federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

     Dated: March 30, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012-9075 Filed 4-13-12; 8:45 am]
BILLING CODE 6560-50-P