[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Proposed Rules]
[Pages 29457-29466]
[FR Doc No: 2017-13667]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0558; FRL-9964-30-Region 8]

Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 2010 SO2 and 2012 PM2.5 National
Ambient Air Quality Standards; North Dakota

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of State Implementation Plan (SIP) revisions from the
State of North Dakota to demonstrate the State meets infrastructure
requirements of the Clean Air Act (Act or CAA) for the National Ambient
Air Quality Standards (NAAQS) promulgated for sulfur dioxide
(SO2) on June 2, 2010 (40 CFR 50.17) and fine particulate
matter (PM2.5) on January 15, 2013 (78 FR 3086). Section
110(a) of the CAA requires that each state submit a SIP for the
implementation, maintenance and enforcement of each NAAQS promulgated
by the EPA.

DATES: Written comments must be received on or before July 31, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0558 at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from www.regulations.gov. The EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure 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. The 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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kate Gregory, 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:

I. General Information

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

    1. Submitting Confidential Business Information (CBI). Do not
submit CBI to the EPA through 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 the EPA, mark the
outside of the disk or CD-ROM as CBI and then identify electronically
within the disk or CD-ROM the specific information that is claimed as
CBI. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register volume,
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your
requested changes;
     Describe any assumptions and provide any technical
information and/or data that you used;
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced;
     Provide specific examples to illustrate your concerns, and
suggest alternatives;
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period
deadline identified.

II. Background

    On June 2, 2010, the EPA promulgated a new NAAQS for
SO2, establishing a new one-hour SO2 standard at
a level of 75 parts per billion (ppb) based on the three-year average
of the 99th percentile of 1-hour daily maximum concentrations.
Additionally, the EPA revoked both the existing 24-hour and annual
primary SO2 standards (75 FR 35520, June 22, 2010).
Subsequently, on January 15, 2013, the EPA promulgated a new NAAQS for
PM2.5, revising the annual PM2.5 NAAQS by
lowering the level to 12.0 micrograms per cubic meter ([mu]g/m\3\).
Additionally, the EPA retained the 24-hour PM2.5 standard at
a level of 35 [mu]g/m\3\ and is revising the Air Quality Index (AQI)
for PM2.5 to be consistent with the revised primary
PM2.5 standards (78 FR 3086, January 15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure their SIPs provide for
implementation, maintenance and enforcement of the NAAQS. These
submissions must contain any revisions needed for meeting the
applicable SIP requirements of section 110(a)(2), or certifications
that their existing SIPs for PM2.5, ozone, Pb,
NO2, and SO2 already meet those requirements. The
EPA highlighted this statutory requirement in an October 2, 2007,
guidance document entitled ``Guidance on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007 Memo).
On September 25, 2009, the

EPA issued an additional guidance document pertaining to the 2006
PM2.5 NAAQS entitled ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS)''
(2009 Memo), followed by the October 14, 2011, ``Guidance on
Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2)
for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)''
(2011 Memo). Most recently, the EPA issued ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).

III. What is the scope of this rulemaking?

    The EPA is acting upon the SIP submissions from North Dakota that
address the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2010 SO2 and 2012 PM2.5 NAAQS.
The requirement for states to make a SIP submission of this type arises
out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states
must make SIP submissions ``within three years (or such shorter period
as the Administrator may prescribe) after the promulgation of a
national primary ambient air quality standard (or any revision
thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon the EPA taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of CAA sections 110(a)(1)
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, the EPA uses the
term to distinguish this particular type of SIP submission from
submissions that are intended to satisfy other SIP requirements under
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP''
submissions to address the nonattainment planning requirements of part
D of title I of the CAA; ``regional haze SIP'' submissions required by
the EPA rule to address the visibility protection requirements of CAA
section 169A; and nonattainment new source review (NSR) permit program
submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ The EPA therefore
believes that while the timing requirement in section 110(a)(1) is
unambiguous, some of the other statutory provisions are ambiguous. In
particular, the EPA believes that the list of required elements for
infrastructure SIP submissions provided in section 110(a)(2) contains
ambiguities concerning what is required for inclusion in an
infrastructure SIP submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which the
EPA interprets the ambiguous portions of section 110(a)(1) and
110(a)(2) are discussed at length in our notice of proposed rulemaking:
Promulgation of State Implementation Plan Revisions; Infrastructure
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008
Ozone, and 2010 NO2 National Ambient Air Quality Standards;
South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope
of this Rulemaking?''
    With respect to certain other issues, the EPA does not believe that
an action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and the
EPA's policies addressing such excess emissions; (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by the EPA; and (iii)
existing provisions for Prevention of Significant Deterioration (PSD)
programs that may be inconsistent with current requirements of the
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').
    As discussed below, CAA section 110(a)(2)(D)(i)(I) covers elements
1 and 2 of ``interstate transport,'' while 110(a)(2)(D)(i)(II) covers
interstate transport elements 3 and 4. The EPA is not addressing
110(a)(2)(D)(i)(I) elements 1 and 2 for either the 2010 SO2
or 2012 PM2.5 NAAQS as part of this action. These elements
will be addressed in a separate action.

IV. What infrastructure elements are required under sections 110(a)(1)
and (2)?

    CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. Section 110(a)(2) lists specific elements the SIP must
contain or satisfy. These infrastructure elements include requirements
such as modeling, monitoring and emissions inventories, which are
designed to assure attainment and maintenance of the NAAQS. The
elements that are the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.
    A detailed discussion of each of these elements is contained in the
next section.
    Two elements identified in section 110(a)(2) are not governed by
the three-year submission deadline of section 110(a)(1) and are
therefore not addressed in this action. These elements relate to part D
of Title I of the CAA, and

submissions to satisfy them are not due within three years after
promulgation of a new or revised NAAQS, but rather are due at the same
time nonattainment area plan requirements are due under section 172.
The two elements are: (1) Section 110(a)(2)(C) to the extent it refers
to permit programs (known as ``nonattainment NSR'') required under part
D, and (2) section 110(a)(2)(I), pertaining to the nonattainment
planning requirements of part D. As a result, this action does not
address infrastructure elements related to the nonattainment NSR
portion of section 110(a)(2)(C) or related to 110(a)(2)(I).
Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision
on visibility as not being triggered by a new NAAQS because the
visibility requirements in part C, title 1 of the CAA are not changed
by a new NAAQS.

V. How did North Dakota address the infrastructure elements of sections
110(a)(1) and (2)?

    The North Dakota Department of Health (the Department) submitted
certifications of North Dakota's infrastructure SIP for the 2010
SO2 NAAQS on March 7, 2013 and for the 2012 PM2.5
NAAQS on August 23, 2015. Infrastructure SIPs were taken out for public
notice and North Dakota provided an opportunity for public hearing, as
indicated in each certification (available within this docket). North
Dakota's infrastructure certifications demonstrate how the State, where
applicable, has plans in place that meet the requirements of section
110 for the 2010 SO2 and 2012 PM2.5 NAAQS. These
plans reference the North Dakota Century Code (NDCC) and the North
Dakota Air Pollution Control Rules (NDAC). These submittals are
available within the electronic docket for today's proposed action at
www.regulations.gov. The NDCC and NDAC referenced in the submittals are
publicly available at http://www.legis.nd.gov/general-information/north-dakota-century-code and http://www.legis.nd.gov/cencode/t23c25.html. Air pollution control regulations and statutes that have
been previously approved by the EPA and incorporated into the North
Dakota SIP can be found at 40 CFR 52.1820.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of this Act.
    Multiple SIP approved State air quality regulations within the NDAC
and cited in North Dakota's certifications provide enforceable emission
limitations and other control measures, means of techniques, schedules
for compliance, and other related matters necessary to meet the
requirements of the CAA section 110(a)(2)(A) for the 2010
SO2 and 2012 PM2.5 NAAQS, subject to the
following clarifications.
    First, the EPA does not consider SIP requirements triggered by the
nonattainment area mandates in part D of Title I of the CAA to be
governed by the submission deadline of section 110(a)(1). Furthermore,
North Dakota has no areas designated as nonattainment for the 2010
SO2 or 2012 PM2.5 NAAQS. North Dakota's
certifications (contained within this docket) generally listed
provisions within its SIP which regulate pollutants through various
programs, including major and minor source permit programs. This
suffices, in the case of North Dakota, to meet the requirements of
section 110(a)(2)(A) for the 2010 SO2 and 2012
PM2.5 NAAQS.
    Second, as previously discussed, the EPA is not proposing to
approve or disapprove any existing state rules with regard to
director's discretion or variance provisions. A number of states have
such provisions which are contrary to the CAA and existing EPA guidance
(52 FR 45109, Nov. 24, 1987), and the agency plans to take action in
the future to address such state regulations. In the meantime, the EPA
encourages any state having a director's discretion or variance
provision which is contrary to the CAA and EPA guidance to take steps
to correct the deficiency as soon as possible.
    Finally, in this action, the EPA is also not proposing to approve
or disapprove any existing State provision with regard to excess
emissions during SSM of operations at a facility. A number of states
have SSM provisions which are contrary to the CAA and existing EPA
guidance \2\ and the agency is addressing such state regulations
separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, Memorandum to the EPA Air Division Directors,
``State Implementation Plans (SIPs): Policy Regarding Emissions
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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    Therefore, the EPA is proposing to approve North Dakota's
infrastructure SIP for the 2010 SO2 and 2012
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(A) to include enforceable emission limitations and
other control measures, means, or techniques to meet the applicable
requirements of this element.
    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to ``provide for establishment and operation of
appropriate devices, methods, systems, and procedures necessary'' to
``(i) monitor, compile, and analyze data on ambient air quality, and
(ii) upon request, make such data available to the Administrator.''
    The State's submissions cite regulatory documents included in
Chapters 23-25-03, 23-25-03.2 and 23-25-03.10 of the NDCC. Provisions
contained in 23-25-03 of the NDCC provide the legal authority and
framework for the Department to require that permit applicants submit
adequate monitoring data. Additionally, 23-25-03.10 of the NDCC enables
the Department to impose reasonable conditions upon an approval to
construct, modify, or operate, including ambient air quality
monitoring. Additionally, the State of North Dakota submits data to the
EPA's Air Quality System database in accordance with 40 CFR 58.16.
Finally, North Dakota's 2016 Annual Monitoring Network Plan was
approved through a letter dated December 5, 2016 (available within the
docket). The State provides the EPA with prior notification when
changes to its monitoring network or plan are being considered.
    We find that North Dakota's SIP and practices are adequate for the
ambient air quality monitoring and data system requirements and
therefore propose to approve the infrastructure SIP for the 2010
SO2 and 2012 PM2.5 NAAQS for this element.
    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.''
    To generally meet the requirements of section 110(a)(2)(C), the
State is required to have SIP-approved PSD, nonattainment NSR, and
minor NSR permitting programs that are adequate to implement the 2010
SO2 and 2012 PM2.5 NAAQS. As explained elsewhere
in this action, the EPA is not evaluating nonattainment related
provisions, such

as the nonattainment NSR program required by part D of the Act. The 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 section 110(a)(2)(C).
Enforcement of Control Measures Requirement
    NDCC 23-25-10 and NDAC 33-15-01-17 allow the State to enforce
applicable laws, regulations, and standards; to seek injunctive relief;
and to provide authority to prevent construction, modification, or
operation of any stationary source at any location where emissions from
such source will prevent the attainment or maintenance of a national
standard or interfere with prevention of significant deterioration
requirements.
PSD Requirements
    With respect to Elements (C) and (J), the EPA interprets the CAA to
require each state to make an infrastructure SIP submission for a new
or revised NAAQS demonstrating that the air agency has a complete PSD
permitting program meeting the current requirements for all regulated
NSR pollutants. The requirements of Element D(i)(II) prong 3 may also
be satisfied by demonstrating the air agency has a complete PSD
permitting program that applies to all regulated NSR pollutants. North
Dakota has shown that it currently has a PSD program in place that
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    North Dakota implements the PSD program by, for the most part,
incorporating by reference the federal PSD program as it existed on a
specific date. The State periodically updates the PSD program by
revising the date of incorporation by reference and submitting the
change as a SIP revision. As a result, the SIP revisions generally
reflect changes to PSD requirements that the EPA has promulgated prior
to the revised date of incorporation by reference.
    On June 3, 2010 (75 FR 31291), we approved a North Dakota SIP
revision that revised the date of incorporation by reference of the
federal PSD program to August 1, 2007. That revision addressed the PSD
requirements of the Phase 2 Ozone Implementation Rule promulgated in
2005 (70 FR 71612). As a result, the approved North Dakota PSD program
meets current requirements for ozone.
    Similarly, on October 23, 2012 (77 FR 64736), we approved a North
Dakota SIP revision that revised the date of incorporation by reference
of the federal PSD program to July 2, 2010. As explained in the notice
for that action, that revision addressed the PSD requirements related
to GHGs provided in EPA's June 3, 2010 ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (75 FR
31514). The approved North Dakota PSD program thus also meets current
requirements for GHGs.
    On June 23, 2014, the United States Supreme Court addressed the
application of PSD permitting requirements to GHG emissions. Utility
Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427
(2014). The Supreme Court held that the EPA may not treat GHGs as an
air pollutant for purposes of determining whether a source is a major
source required to obtain a PSD permit. The Court also held that the
EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs, (anyway sources)
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F.
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended
judgment vacating the regulations that implemented Step 2 of the EPA's
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers
sources that are required to obtain a PSD permit based on emissions of
pollutants other than GHGs. Step 2 applied to sources that emitted only
GHGs above the thresholds triggering the requirement to obtain a PSD
permit. The amended judgment preserves, without the need for additional
rulemaking by the EPA, the application of the BACT requirement to GHG
emissions from Step 1 or ``anyway sources.'' \3\ With respect to Step 2
sources, the D.C. Circuit's amended judgment vacated the regulations at
issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the
extent they require a stationary source to obtain a PSD permit if
greenhouse gases are the only pollutant (i) that the source emits or
has the potential to emit above the applicable major source thresholds,
or (ii) for which there is a significant emission increase from a
modification.''
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    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition
of ``anyway'' sources).
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    The EPA is planning to take additional steps to revise the federal
PSD rules in light of the Supreme Court and subsequent D.C. Circuit
opinion. Some states have begun to revise their existing SIP-approved
PSD programs in light of these court decisions, and some states may
prefer not to initiate this process until they have more information
about the planned revisions to the EPA's PSD regulations. The EPA is
not expecting states to have revised their PSD programs in anticipation
of the EPA's planned actions to revise its PSD program rules in
response to the court decisions.
    At present, the EPA has determined that North Dakota's SIP is
sufficient to satisfy elements (C), (D)(i)(II) prong 3, and (J) with
respect to GHGs because the PSD permitting program previously approved
by the EPA into the SIP continues to require that PSD permits
(otherwise required based on emissions of pollutants other than GHGs)
contain limitations on GHG emissions based on the application of BACT.
Although the approved North Dakota PSD permitting program may currently
contain provisions that are no longer necessary in light of the Supreme
Court decision, this does not render the infrastructure SIP submission
inadequate to satisfy elements (C), (D)(i)(II) prong 3, and (J). The
SIP contains the necessary PSD requirements at this time, and the
application of those requirements is not impeded by the presence of
other previously-approved provisions regarding the permitting of
sources of GHGs that the EPA does not consider necessary at this time
in light of the Supreme Court decision. Accordingly, the Supreme Court
decision does not affect the EPA's proposed approval of North Dakota's
infrastructure SIP as to the requirements of elements (C), (D)(i)(II)
prong 3, and (J). Finally, we evaluate the PSD program with respect to
current requirements for PM2.5. In particular, on May 16,
2008, the EPA promulgated the rule, ``Implementation of the New Source
Review Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)'' (73 FR 28321) (2008 Implementation Rule). On
October 20, 2010 the EPA promulgated the rule, ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864).
The EPA regards adoption of these PM2.5 rules as a necessary
requirement when assessing a PSD program for the purposes of Element
(C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a
judgment that remanded

the EPA's 2007 and 2008 rules implementing the 1997 PM2.5
NAAQS. The court ordered the EPA to ``repromulgate these rules pursuant
to Subpart 4 consistent with this opinion.'' Id. at 437. Subpart 4 of
part D, Title 1 of the CAA establishes additional provisions for
particulate matter nonattainment areas.
    The 2008 Implementation Rule addressed by Natural Resources Defense
Council, ``Implementation of New Source Review (NSR) Program for
Particulate Matter Less Than 2.5 Micrometers (PM2.5),'' (73
FR 28321, May 16, 2008), promulgated NSR requirements for
implementation of PM2.5 in nonattainment areas
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the
requirements of Subpart 4 only pertain to nonattainment areas, the EPA
does not consider the portions of the 2008 Implementation Rule that
address requirements for PM2.5 attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, the EPA does not
anticipate the need to revise any PSD requirements promulgated in the
2008 Implementation Rule in order to comply with the court's decision.
Accordingly, the EPA's proposed approval of North Dakota's
infrastructure SIP as to Elements (C), (D)(i)(II) prong 3, and (J) with
respect to the PSD requirements promulgated by the 2008 Ozone
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 Implementation Rule also does not
affect the EPA's action on the present infrastructure action. The EPA
interprets the Act to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years after adoption or
revision of a NAAQS. Instead, these elements are typically referred to
as nonattainment SIP or attainment plan elements, which would be due by
the dates statutorily prescribed under subpart 2 through 5 under part
D, extending as far as 10 years following designations for some
elements.
    The second PSD requirement for PM2.5 is contained in the
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA
regards adoption of the PM2.5 increments as a necessary
requirement when assessing a PSD program for the purposes of Element
(C).
    As mentioned above, EPA previously approved a North Dakota SIP
revision that revised the date of incorporation by reference of the
federal PSD program to July 2, 2010 (77 FR 64736, Oct. 23, 2012). This
SIP revision also addressed the requirements of the 2008
PM2.5 NSR Implementation Rule. On January 1, 2012, the State
submitted revisions to chapter 33-15-15-01.2, Scope, of the NDAC that
adopted all elements of the 2010 PM2.5 Increment Rule by
incorporating by reference the federal PSD program at 40 CFR part 52,
section 21, as it existed on January 1, 2012. The submitted revisions
make North Dakota's PSD program up to date with respect to current
requirements for PM2.5. EPA approved the necessary portions
of North Dakota's January 24, 2013 submission which incorporate the
requirements of the 2010 PM2.5 Increment Rule on July 30,
2013 (78 FR 45866). North Dakota's SIP-approved PSD program meets
current requirements for PM2.5.
    Therefore, the EPA is proposing to approve North Dakota's
infrastructure SIP for the 2010 SO2 and 2012
PM2.5 NAAQS with respect to the requirement in section
110(a)(2)(C) to include a PSD permitting program in the SIP that covers
the requirements for all regulated NSR pollutants as required by part C
of the Act.
Minor NSR
    The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act. The minor NSR program was originally
approved by the EPA on August 21, 1995 (60 FR 43401). Since approval of
the minor NSR program, the State and the EPA have relied on the program
to assure that new and modified sources not captured by the major NSR
permitting programs do not interfere with attainment and maintenance of
the NAAQS.
    The EPA is proposing to approve North Dakota's infrastructure SIP
for the 2010 SO2 and 2012 PM2.5 NAAQS with
respect to the general requirement in section 110(a)(2)(C) to include a
program in the SIP that regulates the enforcement, modification and
construction of any stationary source as necessary to assure that the
NAAQS are achieved.
    4. Interstate Transport: The interstate transport provisions in CAA
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions)
require each state to submit a SIP that prohibits emissions that will
have certain adverse air quality effects in other states. CAA section
110(a)(2)(D)(i) identifies four distinct elements related to the
impacts of air pollutants transported across state lines. The two
prongs under 110(a)(2)(D)(i)(I) require SIPs to contain adequate
provisions to prohibit any source or other type of emissions activity
within the state from emitting air pollutants that will contribute
significantly to nonattainment in any other state with respect to any
national primary or secondary NAAQS (prong 1), or interfere with
maintenance by any other state with respect to the same NAAQS (prong
2). The two elements under 110(a)(2)(D)(i)(II) require SIPs to contain
adequate provisions to prohibit emissions that will interfere with
measures required to be included in the applicable implementation plan
for any other state under part C to prevent significant deterioration
of air quality (prong 3) or to protect visibility (prong 4). In this
action, the EPA is only addressing prongs 3 and 4 of CAA section
110(a)(2)(D)(i). We will address prongs 1 and 2 for the 2010
SO2 and 2012 PM2.5 NAAQS in a separate
rulemaking.
A. Evaluation of Interference with Measures To Prevent Significant
Deterioration (PSD)
    With regard to the PSD portion of section 110(a)(2)(D)(i)(II)
(prong 3), this requirement may be met by a state's confirmation in an
infrastructure SIP submission that new major sources and major
modifications in the state are subject to a comprehensive EPA-approved
PSD permitting program in the SIP that applies to all regulated NSR
pollutants and that satisfies the requirements of the EPA's PSD
implementation rules.\4\ As discussed in section VI.3 of this proposed
action, North Dakota has such a PSD-permitting program.
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    \4\ See 2013 Guidance.
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    As stated in the 2013 Guidance, in-state sources not subject to PSD
for any one or more of the pollutants subject to regulation under the
CAA because they are in a nonattainment area for a NAAQS related to
those particular pollutants may also have the potential to interfere
with PSD in an attainment or unclassifiable area of another state.
North Dakota does not contain any nonattainment areas. The
consideration of nonattainment NSR for prong 3 is therefore not
relevant as all major sources locating in the State are subject to PSD.
As North Dakota's SIP meets structural PSD requirements for all
regulated NSR pollutants, and North Dakota does not have any
nonattainment areas, the EPA is proposing to approve the infrastructure

SIP submission as meeting the applicable requirements of prong 3 of
section 110(a)(2)(D)(i) for the 2010 SO2 and 2012
PM2.5 NAAQS.
B. Evaluation of Interference With Measures To Protect Visibility
    The 2013 Guidance states that section 110(a)(2)(D)(i)(II)'s prong 4
requirements can be satisfied by approved SIP provisions that the EPA
has found to adequately address a state's contribution to visibility
impairment in other states. The EPA interprets prong 4 to be pollutant-
specific, such that the infrastructure SIP submission need only address
the potential for interference with protection of visibility caused by
the pollutant (including precursors) to which the new or revised NAAQS
applies. See 2013 Guidance at 33.
    The 2013 Guidance lays out two ways in which a state's
infrastructure SIP submittal may satisfy prong 4. One way is through a
state's confirmation in its infrastructure SIP submittal that it has an
EPA-approved regional haze SIP in place that fully meets the
requirements of 40 CFR 51.308 or 309. Alternatively, in the absence of
a fully approved regional haze SIP, a state can make a demonstration in
its infrastructure SIP submittal that emissions within its jurisdiction
do not interfere with other states' plans to protect visibility. Such a
submittal should point to measures in the SIP that limit visibility-
impairing pollutants and ensure that the resulting reductions conform
to any mutually agreed emission reductions under the relevant regional
haze regional planning organization (RPO) process.\5\
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    \5\ See 2013 Guidance at 34, and also 76 FR 22036 (April 20,
2011) containing EPA's approval of the visibility requirement of
110(a)(2)(D)(i)(II) based on a demonstration by Colorado that did
not rely on the Colorado Regional Haze SIP.
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    Because of the often significant impacts on visibility from the
interstate transport of pollutants, we interpret the provisions of CAA
section 110(a)(2)(D)(i)(II) described above as requiring states to
include in their SIPs measures to prohibit emissions that would
interfere with the reasonable progress goals set under 40 CFR 51.308 or
309 to protect Class I areas in other states. States working together
through state-to-state consultations or a regional planning process are
required to include in their regional haze SIPs all agreed upon
measures or measures that will provide equivalent visibility
improvement in the Class I areas of their neighbors. 40 CFR
51.308(f)(2)(ii)(A). Given these requirements in the regional haze
program we have concluded that a fully approved regional haze SIP
satisfies the requirements of section 110(a)(2)(D)(i)(II) with respect
to visibility.
    States worked through regional planning organizations (RPOs), such
as the Western Regional Air Partnership (WRAP) in the case of North
Dakota, to develop strategies to address regional haze. To help states
in establishing reasonable progress goals, the RPOs modeled future
visibility conditions. The modeling assumed emissions reductions from
each state, based on extensive consultation among the states as to
appropriate strategies for addressing haze. In setting reasonable
progress goals, states generally relied on this modeling. As a result,
we generally consider a SIP that ensures emission reductions
commensurate with the assumptions underlying the reasonable progress
goals to meet the visibility requirement of CAA section
110(a)(2)(D)(i)(II).
    In its 2010 SO2 and 2012 PM2.5 infrastructure
certifications, the State points to existing portions in the North
Dakota SIP, specifically referencing the North Dakota Regional Haze SIP
(NDAC 33-15-25), to certify that the State meets the visibility
requirements of section 110(a)(2)(D)(i)(II). The State also references
the PSD (NDAC 33-15-15) and Visibility Protection (NDAC 33-15-19)
portions of its SIP, as well as the EPA's Regional Haze Federal
implementation plan (FIP).\6\ For the 2012 PM2.5
certification, the State also points to its five-year Progress Report
for Regional Haze, submitted to the EPA in January 2015, which (per the
State) ``indicates that the reasonable progress goals established in
the SIP have been met (TRNP) or will likely be met (LWA),'' and that
``the emissions reductions at EGUs required by the SIP. . . will be
achieved or exceeded.'' \7\
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    \6\ The EPA's final action including a partial approval, partial
disapproval and FIP of the North Dakota Regional Haze SIP was
published in the Federal Register April 6, 2012 (77 FR 20894).
    \7\ The EPA notes that Theodore Roosevelt National Park (TRNP)
and Lostwood Wilderness Area (LWA) are both located within North
Dakota, and are therefore would not be included in a prong 4
transport analysis. To date, the EPA has not taken any action on
North Dakota's January 2015 Progress Report.
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    In this action, we are proposing to find that the emissions
reductions approved into North Dakota's Regional Haze SIP are
sufficient to ensure that emissions from sources within the State do
not interfere with the reasonable progress goals of Class I areas in
nearby states. North Dakota participated in a regional planning process
with the WRAP. In the regional planning process, North Dakota accepted
and incorporated the WRAP-developed visibility modeling into its
Regional Haze SIP, and the SIP included the controls and associated
emission reductions assumed in the modeling.
    However, the EPA did not fully approve the North Dakota Regional
Haze SIP, as we partially disapproved, among other elements, the
State's selection of NOX Best Available Retrofit Technology
(BART) controls for Great River Energy's Coal Creek Station. 77 FR
20894 (April 6, 2012). As a result of our partial disapproval, North
Dakota's SIP does not ensure the NOX emission reductions
from Coal Creek Station that were assumed in the WRAP's visibility
modeling, which nearby states relied on in setting their reasonable
progress goals.\8\ This is relevant to the 2012 PM2.5 NAAQS,
as NOX is a precursor for PM2.5. We note,
however, that the North Dakota Regional Haze SIP also adopted
reasonable progress NOX controls that were not included in
the WRAP's modeling for Otter Tail Power Company's Coyote Station,\9\
as these controls were added as an amendment to the SIP over a year
after the original SIP was submitted. See 77 FR 20944 (April 6, 2012).
The EPA approved these controls into the North Dakota Regional Haze SIP
as part of our April 6, 2012 final action. This SIP provision will
reduce NOX emissions at Coyote Station by approximately
4,213 tons per year, a larger decrease in emissions than the assumed
NOX BART reductions for Coal Creek Station of approximately
3,214 tons per year. See 76 FR 58603 and 58628 (September 21, 2011). As
the Coal Creek and Coyote stations are roughly 32 miles apart, and the
Coyote Station is about 15-20 miles closer than Coal Creek to the
nearest out of state Class I areas, the visibility impacts from
NOX emission reductions at Coyote on out-of-state Class I
areas would be similar and potentially greater than those from Coal
Creek.\10\ The State can rely on the Coyote reasonable progress
reductions to demonstrate that emissions within the jurisdiction
conform to the mutually-agreed regional haze reductions and associated
reasonable progress goals because they are approved into the SIP.
---------------------------------------------------------------------------

    \8\ The EPA notes that we also disapproved and promulgated a FIP
for the State's reasonable progress determination for Basin
Electric's Antelope Valley Station.
    \9\ http://www.wrapair.org/forums/ssjf/pivot.html.
    \10\ Medicine Lake Wilderness, in Montana, is roughly 144 miles
from Coyote and roughly 164 miles from Coal Creek. The Badlands/Sage
Creek Wilderness in South Dakota is roughly 230 miles from Coyote
and roughly 245 miles from Coal Creek.
---------------------------------------------------------------------------

    Because the reductions in North Dakota's approved Regional Haze SIP
are greater than those assumed by the WRAP modeling, and it is
reasonable to

find that the emission reductions provide the agreed upon visibility
improvements in affected Class I areas, the EPA is proposing to find
that North Dakota's SIP includes controls sufficient to address the
relevant requirements related to impacts on Class I areas in other
states for the 2012 PM2.5 NAAQS.
    With regard to the 2010 SO2 NAAQS, it is appropriate for
the State to rely on the Regional Haze SIP approval for the purposes of
prong 4, as the EPA approved all of the State's SO2 BART and
reasonable progress determinations. The EPA is therefore proposing to
find that North Dakota's SIP includes controls sufficient to address
the relevant requirements related to impacts on Class I areas in other
states for the 2010 SO2 NAAQS.
    5. Interstate and International transport provisions: CAA section
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring
compliance with the applicable requirements of CAA sections 126 and 115
(relating to interstate and international pollution abatement).
Specifically, CAA section 126(a) requires new or modified major sources
to notify neighboring states of potential impacts from the source.
    Section 126(a) of the CAA requires notification to affected, nearby
states of major proposed new (or modified) sources. Sections 126(b) and
(c) pertain to petitions by affected states to the Administrator of the
EPA (Administrator) regarding sources violating the ``interstate
transport'' provisions of section 110(a)(2)(D)(i). Section 115 of the
CAA similarly pertains to international transport of air pollution.
    With regard to section 126(a), North Dakota's SIP-approved PSD
program requires notice of proposed new sources or modifications to
states whose lands may be significantly affected by emissions from the
source or modification (see NDAC 33-15-15-01.2(q)(2)(d)). This
provision satisfies the notice requirement of section 126(a).
    North Dakota has no pending obligations under sections 126(c) or
115(b); therefore, its SIP currently meets the requirements of those
sections. In summary, the SIP meets the requirements of CAA section
110(a)(2)(D)(ii) for the 2010 SO2 and 2012 PM2.5
NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to
provide ``necessary assurances that the state [. . .] will have
adequate personnel, funding, and authority under State law to carry out
[the SIP] (and is not prohibited by any provision of Federal or State
law from carrying out the SIP or portion thereof).'' Section
110(a)(2)(E)(ii) also requires each state to ``comply with the
requirements respecting state boards'' under CAA section 128. Section
110(a)(2)(E)(iii) requires states to provide ``necessary assurances
that, where the State has relied on a local or regional government,
agency, or instrumentality for the implementation of any [SIP]
provision, the State has responsibility for ensuring adequate
implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal
Authority Under State Law To Carry Out Its SIP, and Related Issues
    NDCC 23-25-03 provides adequate authority for the State of North
Dakota and the Department to carry out its SIP obligations with respect
to the 2010 SO2 and 2012 PM2.5 NAAQS. The State
receives section 103 and 105 grant funds through its Performance
Partnership Grant from the EPA along with required state matching funds
to provide funding necessary to carry out North Dakota's SIP
requirements. North Dakota's resources meet the requirements of CAA
section 110(a)(2)(E).
    With respect to section 110(a)(2)(E)(iii), the regulations cited by
North Dakota in their certifications and verified through additional
communication \11\ (NDCC 23-25-02(01), 33-15-04-02, 23-01-05(02), 23-
25-03(5), and 23-25-10) and contained within this docket also provide
the necessary assurances that the State has responsibility for adequate
implementation of SIP provisions. Therefore, we propose to approve
North Dakota's SIP as meeting the requirements of section
110(a)(2)(E)(i) and (E)(iii) for the 2010 SO2 and 2012
PM2.5 NAAQS.
---------------------------------------------------------------------------

    \11\ See Email from Tom Bachman ``Request for Clarifications_ND
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13,
2015, available within docket.
---------------------------------------------------------------------------

b. Sub-Element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain
provisions that comply with the requirements of section 128 of the CAA.
That provision contains two explicit requirements: (i) That any board
or body which approves permits or enforcement orders under the CAA
shall have at least a majority of members who represent the public
interest and do not derive a significant portion of their income from
persons subject to such permits and enforcement orders; and (ii) that
any potential conflicts of interest by members of such board or body or
the head of an executive agency with similar powers be adequately
disclosed.
    On July 30, 2013 (78 FR 45866) the EPA approved revised language in
North Dakota's SIP, chapter 2, section 15, Respecting Boards to include
provisions for addressing conflict of interest requirements. Details on
how this portion of chapter 2, section 15 rules meet the requirements
of section 128 are provided in our May 13, 2013 proposal notice (78 FR
27898). North Dakota's SIP continues to meet the requirements of
section 110(a)(2)(E)(ii), and we propose to approve the infrastructure
SIP for the 2010 SO2 and 2012 PM2.5 NAAQS for
this element.
    7. Stationary source monitoring system: Section 110(a)(2)(F)
requires: (i) ``the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources; (ii) periodic reports on the nature and amounts of emissions
and emissions-related data from such sources; and (iii) correlation of
such reports by the State agency with any emission limitations or
standards established pursuant to [the Act], which reports shall be
available at reasonable times for public inspection.''
    Furthermore, North Dakota is required to submit emissions data to
the EPA for purposes of the National Emissions Inventory (NEI). The NEI
is the EPA's central repository for air emissions data. The EPA
published the Air Emissions Reporting Rule (AERR) on December 5, 2008,
which modified the requirements for collecting and reporting air
emissions data (73 FR 76539). The AERR shortened the time states had to
report emissions data from 17 to 12 months, giving states one calendar-
year to submit emissions data. All states are required to submit a
comprehensive emissions inventory every three years and report
emissions for certain larger sources annually through the EPA's online
Emissions Inventory System. States report emissions data for the six
criteria pollutants and their associated precursors--nitrogen oxides,
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and
volatile organic compounds. Many states also voluntarily report
emissions of hazardous air pollutants. North Dakota made its latest
update to the NEI on January 10 2017. The EPA compiles the emissions
data, supplementing it where necessary, and releases it to the general
public through the Web site https://www.epa.gov/air-emissions-inventories.
    Based on the analysis above, we propose to approve the North Dakota
SIP as meeting the requirements of CAA

section 110(a)(2)(F) for the 2010 SO2 and 2012
PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires
infrastructure SIPs to ``provide for authority comparable to that in
[CAA section 303] and adequate contingency plans to implement such
authority.''
    Under CAA section 303, the EPA Administrator has authority to bring
suit to immediately restrain an air pollution source that presents an
imminent and substantial endangerment to public health or welfare, or
the environment.\12\ If such action may not practicably assure prompt
protection, then the Administrator has authority to issue temporary
administrative orders to protect the public health or welfare, or the
environment, and such orders can be extended if the EPA subsequently
files a civil suit.
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    \12\ A discussion of the requirements for meeting CAA section
303 is provided in our notice of proposed rulemaking: Promulgation
of State Implementation Plan Revisions; Infrastructure Requirements
for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and
2010 NO2 National Ambient Air Quality Standards; South
Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State
Submittals, 8. Emergency powers.''
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    Chapter 23-25 of the NDCC provides relevant language and authority
for ``Air Pollution Control.'' The purpose of this chapter is ``to
achieve and maintain the best air quality possible'' and to ``protect
human health, welfare and property, [and] prevent injury to plant and
animal life'' (NDCC 23-25-01(2)). NDCC 23-25-01 defines ``air
pollution'' as ``the presence in the outdoor atmosphere of one or more
air contaminants in such quantities and duration as is or may be
injurious to human health, welfare, or property, animal or plant life,
or which unreasonably interferes with the enjoyment of life or
property.'' As such, the chapter aims to protect all three areas
required by section 303; human health, welfare, and environment. The
``Air Pollution Control'' chapter provides general grants of authority
to maintain actions in certain situations. We find these grants provide
comparable authority to that provided in Section 303. Furthermore, the
NDAC 33-15-01-15(1) makes it unlawful to ``permit or cause air
pollution'' as defined in NDCC 23-25-01. A person causing or
contributing to emissions that endanger public health, welfare, or the
environment, would be causing ``air pollution'' within the meaning of
North Dakota law, and would therefore be in violation of NDAC 33-15-01-
15(1). This could occur in either an emergency or non-emergency
situation.\13\
---------------------------------------------------------------------------

    \13\ See Email from Tom Bachman ``Request for Clarifications_ND
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13,
2015, available within docket.
---------------------------------------------------------------------------

    NDCC 23-25-10(5) provides that ``the department has the authority
to maintain an action in the name of the state against any person to
enjoin any threatened or continuing violation of any provision of this
chapter or any permit condition, rule, order, limitation, or other
applicable requirement implementing this chapter.'' Under NDCC 23-25-
10(5), the Department has the authority to bring an action to enjoin a
violation of NDCC 23-25 or its rules. The Department may seek a court
order to restrain a source from causing or contributing to emissions
that endanger public health, welfare, or the environment. In an
emergency, this may take the form of an injunction or temporary
restraining order (see NDCC 32-06-02).\14\ Therefore, the NDDH has the
authority to seek judicial actions during emergency situations.
---------------------------------------------------------------------------

    \14\ See Email from Tom Bachman ``Request for Clarifications_ND
iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAAAQS'' April 13,
2015, available within docket.
---------------------------------------------------------------------------

    North Dakota's statutes also provide the NDDH with the authority to
issue administrative orders and emergency rules to protect the public
health, welfare, and the environment under certain circumstances. NDCC
23-25-08, as cited in North Dakota's SIP submittals, authorizes that in
the event of ``an emergency requiring immediate action to protect the
public health and safety,'' the NDDH has the authority to ``issue an
order reciting the existence of such emergency and requiring that such
action be taken as is necessary'' to meet the emergency. The emergency
order is effective immediately. Any person who violates the order is
subject to enforcement, penalties, and injunctions under NDCC 23-25-10.
    Furthermore, as cited in North Dakota's SIP submittals, the NDDH
has the authority to ``use an emergency adjudicative proceeding, in its
discretion, in an emergency situation involving imminent peril to the
public health, safety, or welfare'' (NDCC 28-32-32). Accordingly, ``in
an emergency, the administrative agency may take action pursuant to a
specific statute as is necessary to prevent or avoid imminent peril to
the public health, safety, or welfare'' (NDCC-28-32-32.1). In the
absence of a specific statute requiring other administrative action,
``the administrative agency shall issue an order'' (NDCC 28-32-32(4)).
    Further supplemental authority is found in a broad provision, cited
by the State in their SIP submittals, granting additional authority to
the NDDH. The NDDH has the authority to ``[i]ssue such orders as may be
necessary to effectuate the purposes'' of the ``Air Pollution Control''
chapter NDCC 23-25-03.5. These orders can be enforced ``by all
appropriate administrative and judicial procedures'' (NDCC 23-25-03.5).
Thus, this broad grant of authority includes the authority to issue
administrative orders during air pollution emergencies which would
disrupt protection of human health, welfare, and animal and plant life.
    The combination of NDCC and NDAC provisions discussed above provide
for authority comparable to section 303 to immediately bring suit to
restrain, issue emergency orders against, and use special rule adoption
procedures for applicable emergencies to take prompt administrative
action against, any person causing or contributing to air pollution
that presents an imminent and substantial endangerment to public health
or welfare, or the environment. We propose that they are sufficient to
meet the authority requirement of CAA section 110(a)(2)(G).
    States must also have adequate contingency plans adopted into their
SIP to implement the air agency's emergency episode authority (as
discussed above). This can be done by submitting a plan that meets the
applicable requirements of 40 CFR part 51, subpart H for the relevant
NAAQS if the NAAQS is covered by those regulations.
    Subpart H of 40 CFR part 51 requires states to classify regions and
to develop contingency plans (also known as emergency episode plans)
after ambient concentrations of certain criteria pollutants in an area
have exceeded specified levels. For example, if ambient concentrations
of nitrogen dioxide in an area have exceeded 0.06 ppm (annual
arithmetic mean), then the area is classified as a Priority I region,
and the state must develop a contingency plan that meets the
requirements of sections 51.151 and 51.152. North Dakota has not
monitored any values above the priority cut point for PM2.5.
    Prevention of air pollution emergency episodes is addressed in
Section 5 of North Dakota's SIP and was approved on May 31, 1972 (37 FR
10842). We find that North Dakota's air pollution emergency provisions
establish stages of episode criteria (Section 5.2), provide for public
announcement whenever any episode stage has been determined to exist
(Section 5.3), and specify emission control actions to be taken at each
episode stage (Section 5.5) consistent with the EPA emergency episode
SIP requirements set forth at 40 CFR part 51, subpart H (prevention of
air pollution emergency episode).

    Based on the above analysis, we propose approval of North Dakota's
SIP as meeting the requirements of CAA section 110(a)(2)(G) for the
2010 SO2 and 2012 PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan: (i) ``[f]rom 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].''
    Chapters 23-25-03.8 and 23-25-03.12 of the NDCC and section 1.14 of
the North Dakota SIP, give the Department sufficient authority to meet
the requirements of CAA section 110(a)(2)(H). Therefore, we propose to
approve North Dakota's SIP as meeting the requirements of CAA section
110(a)(2)(H).
    10. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP ``meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to PSD of
air quality and visibility protection).''
    The State has demonstrated it has the authority and rules in place
through its certifications (contained within this docket) to provide a
process of consultation with general purpose local governments,
designated organizations of elected officials of local governments and
any Federal Land Manager having authority over federal land to which
the SIP applies, consistent with the requirements of CAA section 121.
Furthermore, the EPA previously addressed the requirements of CAA
section 127 for the North Dakota SIP and determined public notification
requirements are appropriate (45 FR 53475, Aug. 12, 1980).
    As discussed above, the State has a SIP-approved PSD program that
incorporates by reference the Federal program at 40 CFR 52.21. The EPA
has further evaluated North Dakota's SIP approved PSD program in this
proposed action under element (C) and determined the State has
satisfied the requirements of element 110(a)(2)(C), as noted above.
Therefore, the State has also satisfied the requirements of element
110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility
protection, the EPA recognizes states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the North Dakota
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the
2010 SO2 and 2012 PM2.5 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires
each SIP to provide for: (i) ``the performance of such air quality
modeling as the Administrator may prescribe for the purpose of
predicting the effect on ambient air quality of any emissions of any
air pollutant for which the Administrator has established a [NAAQS];
and (ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.''
    North Dakota's PSD program requires estimates of ambient air
concentrations be based on applicable air quality models specified in
Appendix W of 40 CFR part 51, and incorporates by reference the
provisions at 40 CFR 52.21(I)(2) requiring that modification or
substitution of a model specified in Appendix W must be approved by the
Administrator (see NDAC 33-15-14-02.4 and NDAC 33-15-15-01.2). Section
7.7, Air Quality Modeling, of North Dakota's SIP commits the Department
to performing air quality modeling to predict the impact of a source on
air quality, and providing data to the EPA upon request. As a result,
the SIP provides for such air quality modeling as the Administrator has
prescribed. Therefore, we propose to approve the North Dakota SIP as
meeting CAA section 110(a)(2)(K) for the 2010 SO2 and 2012
PM2.5 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires ``the owner or
operator of each major stationary source to pay to the permitting
authority, as a condition of any permit required under this [Act], a
fee sufficient to cover[:] (i) The reasonable costs of reviewing and
acting upon any application for such a permit[;] and (ii) if the owner
or operator receives a permit for such source, the reasonable costs of
implementing and enforcing the terms and conditions of any such permit
(not including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under [title] V.''
    NDAC 33-15-23 and NDCC 23-25-04.2, require applicants of
construction permits to pay the costs for the Department to review and
act on the permit applications. We also note that fees collected under
North Dakota's approved title V permit program (64 FR 32433, Aug. 16,
1999) are sufficient to implement and enforce the program. Therefore,
we propose to approve the submissions as submitted by the State for the
2010 SO2 and 2012 PM2.5 NAAQS.
    13. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to ``provide for consultation and
participation [in SIP development] by local political subdivisions
affected by [the SIP].''
    The nonregulatory provision in Chapter 10 of North Dakota's SIP,
Intergovernmental Cooperation, meets the requirements of CAA section
110(a)(2)(M). We propose to approve North Dakota's SIP as meeting these
requirements for the 2010 SO2 and 2012 PM2.5
NAAQS.

VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure
elements for the 2010 SO2 and 2012 PM2.5 NAAQS
from the State's certifications as shown in Table 1. Elements we
propose no action on are reflected in Table 2.

Table 1--List of North Dakota Infrastructure Elements and Revisions That
                     the EPA Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
March 7, 2013 submittal--2010 SO2 NAAQS: (A), (B), (C), (D)(i)(II)
 prongs 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
August 23, 2015 submittal--2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II)
 prongs 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
------------------------------------------------------------------------

Table 2--List of North Dakota Infrastructure Elements and Revisions That
                the EPA Is Proposing To Take No Action On
------------------------------------------------------------------------
   Proposed for no action (Revision to be made in separate rulemaking
                                 action)
-------------------------------------------------------------------------
March 7, 2013 submittal--2010 SO2 NAAQS: (D)(i)(I) prongs 1 and 2.
August 23, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(I) prongs 1 and 2.
------------------------------------------------------------------------

VIII. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, the 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; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, Oct. 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, Aug. 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     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 the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 14, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-13667 Filed 6-28-17; 8:45 am]
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[Federal Register: May 9, 2006 (Volume 71, Number 89)]
[Notices]
[Page 26944]
[DOCID:fr09my06-68]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP01-377-010]

Northern Border Pipeline Company; Notice of Compliance Filing

May 2, 2006.
    Take notice that on April 28, 2006, Northern Border Pipeline
Company (Northern Border) tendered for filing to become part of its
FERC Gas Tariff, First Revised Volume No. 1, Thirteenth Revised Sheet
No. 99A, to become effective May 1, 2006.
    Any person desiring to protest this filing must file in accordance
with Rule 211 of the Commission's Rules of Practice and Procedure (18
CFR 385.211). Protests to this filing will be considered by the
Commission in determining the appropriate action to be taken, but will
not serve to make protestants parties to the proceeding. Such protests
must be filed in accordance with the provisions of Section 154.210 of
the Commission's regulations (18 CFR 154.210). Anyone filing a protest
must serve a copy of that document on all the parties to the
proceeding.
    The Commission encourages electronic submission of protests in lieu
of paper using the ``eFiling'' link at http://www.ferc.gov. Persons

unable to file electronically should submit an original and 14 copies
of the protest to the Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
[FR Doc. E6-6955 Filed 5-8-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 79, Number 70 (Friday, April 11, 2014)]
[Notices]
[Pages 20297-20298]
[FR Doc No: 2014-08203]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Approval of Noise Compatibility Program; Southwest Florida
International Airport, Fort Myers, FL

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Federal Aviation Administration (FAA) announces its
findings on the Noise Compatibility Program submitted by the Lee County
Port Authority under the provisions of 49 U.S.C. (the Aviation Safety
and Noise Abatement Act, hereinafter referred to as ``the Act'') and 14
CFR part 150. These findings are made in recognition of the description
of Federal and nonfederal responsibilities in Senate Report No. 96-52
(1980). On January 30, 2013, the FAA determined that the noise exposure
maps submitted by the Lee County Port Authority under Part 150 were in
compliance with applicable requirements. On April 4, 2014, the FAA
approved the Southwest Florida International Airport Noise
Compatibility Program. Some of the recommendations of the Program were
approved by FAA.

DATES: Effective Date: The effective date of the FAA's approval of the
Southwest Florida International Airport Noise Compatibility Program is
April 4, 2014.

FOR FURTHER INFORMATION CONTACT: Allan Nagy, Federal Aviation
Administration, Orlando Airports District Office, 5950 Hazeltine
National Drive, Suite 400, Orlando, FL 32822, phone number: (407) 812-
6331. Documents reflecting this FAA action may be reviewed at this same
location.

SUPPLEMENTARY INFORMATION: This notice announces that the FAA has given
its overall approval to the Noise Compatibility Program for Southwest
Florida International Airport, effective April 4, 2014.
    Under Section 47504 of the Act, an airport operator who has
previously submitted a Noise Exposure Map may submit to the FAA a Noise
Compatibility Program which sets forth the measures taken or proposed
by the airport operator for the reduction of existing non-compatible
land uses and prevention of additional non-compatible land uses within
the area covered by the Noise Exposure Maps. The Act requires such
programs to be developed in consultation with interested and affected
parties including local communities, government agencies, airport
users, and FAA personnel.
    Each airport Noise Compatibility Program developed in accordance
with Title 14 Code of Federal Regulations (CFR) Part 150 is a local
program, not a Federal Program. The FAA does not substitute its
judgment for that of the airport operator with respect to which measure
should be recommended for action. The FAA's approval or disapproval of
14 CFR Part 150 Program recommendations is measured according to the
standards expressed in 14 CFR Part 150 and the Act, and is limited to
the following determinations:
    a. The Noise Compatibility Program was developed in accordance with
the provisions and procedures of 14 CFR Part 150;
    b. Program measures are reasonably consistent with achieving the
goals of reducing existing non-compatible land uses around the airport
and preventing the introduction of additional non-compatible land uses;
    c. Program measures would not create an undue burden on interstate
or foreign commerce, unjustly discriminate against types or classes of
aeronautical uses, violate the terms of airport grant agreements, or
intrude into areas preempted by the Federal government; and
    d. Program measures relating to the use of flight procedures can be
implemented within the period covered by the program without derogating
safety, adversely affecting the efficient use and management of the
navigable airspace and air traffic control systems, or adversely
affecting other powers and responsibilities of the Administrator
prescribed by law.
    Specific limitations with respect to FAA's approval of an airport
Noise Compatibility Program are delineated in 14 CFR Part 150, Section
150.5. Approval is not a determination concerning the acceptability of
land uses under Federal, state, or local law. Approval does not by
itself constitute an FAA implementing action. A request for Federal
action or approval to implement specific noise compatibility measures
may be required, and an FAA decision on the request may require an
environmental assessment of the proposed action. Approval does not
constitute a commitment by the FAA to financially assist in the
implementation of the Program nor a determination that all measures
covered by the Program are

eligible for grant-in-aid funding from the FAA. Where Federal funding
is sought, requests for project grants must be submitted to the FAA
Airports District Office in Orlando, FL.
    Lee County Port Authority submitted to the FAA on January 30, 2013,
the Noise Exposure Maps, descriptions, and other documentation produced
during the noise compatibility planning study conducted from May 10,
2012, through March 3, 2014. The Southwest Florida International
Airport Noise Exposure Maps were determined by FAA to be in compliance
with applicable requirements on January 30, 2013. Notice of this
determination was published in the Federal Register on February 8,
2013.
    The Southwest Florida International Airport study contains a
proposed Noise Compatibility Program comprised of actions designed for
phased implementation by airport management and adjacent jurisdictions
from April 19, 2014 to the year 2018. It was requested that FAA
evaluate and approve this material as a Noise Compatibility Program as
described in Section 47504 of the Act. The FAA began its review of the
Program on October 21, 2013, and was required by a provisions of the
Act to approve or disapprove the program within 180-days (other than
the use of new or modified flight procedures for noise control).
Failure to approve or disapprove such program within the 180-day period
shall be deemed to be an approval of such program.
    The submitted program contained sixteen (16) proposed actions for
noise mitigation on and/or off the airport. The FAA completed its
review and determined that the procedural and substantive requirements
of the Act and 14 CFR Part 150 have been satisfied. The overall
Program, therefore, was approved by the FAA effective April 4, 2014.
    Outright approval was granted for five of the specific Program
elements. Eleven of the Proposed measures in the NCP were disapproved
for purposes of 14 CFR Part 150 because the analysis in the NCP does
not demonstrate the measures' noise benefits on the DNL 65 dBA noise
contour and they did not result in achieving the goals of reducing
existing noncompatible land uses around the airport and preventing the
introduction of additional noncompatible land uses in the area around
the airport. However, these measures can be implemented by the Airport
Sponsor on a voluntary basis.
    These determinations are set forth in detail in a Record of
Approval signed by the FAA on April 4, 2014. The Record of Approval, as
well as other evaluation materials and the documents comprising the
submittal, are available for review at the FAA office listed above and
at the administrative office of the Lee County Port Authority. The
Record of Approval also will be available on-line at: http://www.faa.gov/airports_airtraffic/airports/environmental/airport_noise/part_150/states/.

    Issued in Orlando, FL, on April 7, 2014.
Bart Vernace,
P.E., Manager, Orlando Airports District Office.
[FR Doc. 2014-08203 Filed 4-10-14; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 157 (Wednesday, August 16, 2023)]
[Notices]
[Page 55686]
[FR Doc No: 2023-17611]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER23-2590-000]

Grover Hill Wind, LLC; Supplemental Notice That Initial Market-
Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced proceeding of
Grover Hill Wind, LLC's application for market-based rate authority,
with an accompanying rate tariff, noting that such application includes
a request for blanket authorization, under 18 CFR part 34, of future
issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is August 30, 2023.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically may mail similar pleadings to
the Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426. Hand delivered submissions in docketed
proceedings should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
    In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov) using
the ``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. At this time,
the Commission has suspended access to the Commission's Public
Reference Room, due to the proclamation declaring a National Emergency
concerning the Novel Coronavirus Disease (COVID-19), issued by the
President on March 13, 2020. For assistance, contact the Federal Energy
Regulatory Commission at [email protected] or call toll-free,
(886) 208-3676 or TYY,<PHONE_NUMBER>.
    The Commission's Office of Public Participation (OPP) supports
meaningful public engagement and participation in Commission
proceedings. OPP can help members of the public, including landowners,
environmental justice communities, Tribal members and others, access
publicly available information and navigate Commission processes. For
public inquiries and assistance with making filings such as
interventions, comments, or requests for rehearing, the public is
encouraged to contact OPP at<PHONE_NUMBER> or [email protected].

    Dated: August 10, 2023.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2023-17611 Filed 8-15-23; 8:45 am]
BILLING CODE 6717-01-P