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[Federal Register: March 31, 2010 (Volume 75, Number 61)]
[Proposed Rules]               
[Page 16026-16032]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr10-20]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2009-0282; FRL-9131-5]

 
Approval and Promulgation of State Implementation Plan Revisions; 
State of North Dakota; Air Pollution Control Rules, and Interstate 
Transport of Pollution for the 1997 PM2.5 and 8-Hour Ozone 
NAAQS: ``Significant Contribution to Nonattainment'' and ``Interference 
With Prevention of Significant Deterioration'' Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing to approve 
State Implementation Plan (SIP) revisions submitted by the State of 
North Dakota on April 6, 2009. Specifically, EPA is proposing approval 
of revisions to the North Dakota air pollution control rules regarding 
prevention of significant deterioration of air quality, and partial 
approval of the SIP revision ``Interstate Transport of Air Pollution'' 
addressing the requirements of Clean Air Act section 110(a)(2)(D)(i) 
for the 1997 PM2.5 and 8-hour ozone National Ambient Air 
Quality Standards (NAAQS). For the latter, EPA proposes approval of the 
North Dakota Interstate Transport SIP sections that address the 
requirements of section 110(a)(2)(D)(i) prohibiting a state's emissions 
from contributing significantly to any other state's nonattainment of 
the NAAQS, or from interfering with any other state's required measures 
to prevent significant deterioration of its air quality. EPA will act 
at a later date on the North Dakota Interstate Transport SIP sections 
that address the remaining two requirements of section 110(a)(2)(D)(i), 
prohibiting a state's emissions from interfering with any other state's 
maintenance of the NAAQS, or with any other state's required measures 
to protect visibility. This action is being taken under section 110 of 
the Clean Air Act.

DATES: Comments must be received on or before April 30, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2009-0282, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: videtich.callie@epa.gov and 
mastrangelo.domenico@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop, 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-
2009-0282. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA, without 
going through http://www.regulations.gov, your e-mail 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 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 http://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

[[Page 16027]]

material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly-available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the Air 
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 1595 Wynkoop, 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: Domenico Mastrangelo, Air Program, 
U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-6436, 
mastrangelo.domenico@epa.gov.

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 words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words North Dakota and State mean the State of North 
Dakota.

Table of Contents

I. General Information
    What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Proposing?
III. What Is the State Process to Submit This Material to EPA?
IV. EPA's Review and Technical Information
    A. Prevention of Significant Deterioration Provisions
    B. Interstate Transport SIP
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. General Information

    What should I consider as I prepare my comments for EPA?
    1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in 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:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What Action Is EPA Proposing?

    EPA is proposing approval of revisions to the State provisions on 
the prevention significant deterioration (PSD) of air quality in 
subsection 33-15-15-01.2 of the North Dakota Administrative Code 
(NDAC), and is also proposing partial approval of the North Dakota 
Interstate Transport of Air Pollution SIP for the 1997 PM2.5 
and 8-hour ozone National Ambient Air Quality Standards (NAAQS). The 
revisions to NDAC subsection 33-15-15-01.2, and the addition to the 
North Dakota SIP of section 7.8, ``Interstate Transport of Air 
Pollution,'' were adopted by the State of North Dakota on April 1, 2009 
and submitted to EPA on April 6, 2009. EPA is proposing to approve the 
revision of NDAC subsection 33-15-15-01.02, incorporating changes to 40 
CFR 52.21 made by EPA through August 1, 2007. EPA also proposes to 
approve the language and demonstrations of the North Dakota Interstate 
Transport SIP that address two elements of section 110(a)(2)(D)(i): 
significant contribution to nonattainment of the NAAQS in any other 
state, element (1), and interference with required measures by any 
other state to prevent significant deterioration (PSD) of its air 
quality, element (3).

III. What Is the State Process To Submit This Material to EPA?

    Section 110(k) of the CAA addresses EPA's rulemaking action on SIP 
submissions by states. The CAA requires states to observe certain 
procedural requirements in developing SIP revisions for submittal to 
EPA. Section 110(a)(2) of the CAA requires that each SIP revision be 
adopted after reasonable notice and public hearing. This must occur 
prior to the revision being submitted by a state to EPA.
    The North Dakota Department of Health (NDDH) held a public hearing 
on October 7, 2008 for revisions to subsection 33-15-15-01.02 of the 
NDAC and for the addition to the North Dakota SIP of the Interstate 
Transport non-regulatory provisions. The NDDH adopted the provisions on 
April 1, 2009 and submitted them to EPA on April 6, 2009.
    In a March 2, 2010 email, EPA requested that the North Dakota Air 
Quality Division clarify the State commitment, stated in the Interstate 
Transport SIP submitted to EPA April 6, 2009, to EPA's interim policy 
on the use of PM10 as surrogate for PM2.5. In a 
March 8, 2010 letter to the Region 8 Air Program, the North Dakota Air 
Quality Division clarified its interpretation of EPA's Surrogate 
Policy. This correspondence is included in this action's supporting 
docket available for public review.
    We have evaluated the submittal by the NDDH and have determined 
that the State met the requirements of section 110(a)(2) of the CAA for 
reasonable notice and public hearing.

IV. EPA's Review and Technical Information

A. Prevention of Significant Deterioration Provisions

    The revisions to subsection 33-15-15-01.2 updated to August 1, 2007 
the baseline date for incorporation by reference of the Federal 
requirements at 40 CFR 52.21. In addition, various administrative 
corrections and clarifications were made. As these revisions were made 
to make the PSD provisions consistent with Federal requirements, they 
are approvable.

B. Interstate Transport SIP

    The interstate transport provisions at CAA section 110(a)(2)(D)(i), 
also referred to as the ``good neighbor''

[[Page 16028]]

provisions, require that each state SIP contain adequate provisions 
prohibiting emissions that adversely affect another state's air quality 
through interstate transport of air pollutants. Section 110(a)(2)(D)(i) 
contains four requirements or elements: (1) Significant contribution to 
nonattainment of the NAAQS in any other state; (2) interference with 
maintenance of the NAAQS by any other state; (3) interference with any 
other state's required measures to prevent significant deterioration of 
its air quality; and (4) interference with any other state's required 
measures to protect visibility. On August 15, 2006, EPA issued guidance 
for SIP submissions addressing the section 110(a)(2)(D)(i) requirements 
for the 1997 PM2.5 and 8-hour ozone standards.\1\ In 
November 2005 (70 FR 71612) and May 2008 (43 FR 28321), EPA finalized 
regulations implementing Phase II of the 1997 8-hour ozone NAAQS, and 
the New Source Review (NSR) Program for the 1997 PM2.5 
NAAQS.
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    \1\ Memorandum from William T. Harnett entitled ``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,'' 
(Aug. 15, 2006) (``2006 Guidance''). This EPA guidance document is 
one of the documents available for review in the docket document 
entitled: ``Relevant Guidance and Supporting Documentation for the 
Proposed Rulemaking Federal Register Action Docket ID  EPA-
R08-OAR-2009-0282.''
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    To demonstrate that its SIP satisfies the requirements for 
significant contribution to nonattainment, North Dakota relies on a 
combination of: (a) EPA modeling analysis results published in Federal 
Register notices as part of the Clean Air Interstate Rule (CAIR) 
rulemaking process; \2\ (b) monitoring data gathered by states and 
reported to EPA in the Air Quality System (AQS) database; and (c) 
consideration of geographical and meteorological factors affecting the 
likelihood of significant pollution transport from North Dakota to the 
closest PM2.5 and 8-hour ozone nonattainment areas or 
violating monitors in other states. In this action EPA also expands on 
the analysis of geographical and meteorological factors, and of ozone 
and PM2.5 concentration levels reflecting AQS monitoring 
data. EPA deems that the North Dakota Interstate Transport SIP sections 
addressing requirements (1) and (3) of section 110(a)(2)(D)(i) are 
consistent with EPA's 2006 guidance and the referenced implementation 
rules for ozone and PM2.5.
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    \2\ In this action the expression ``CAIR'' refers to the final 
rule published in the May 12, 2005 Federal Register and entitled 
``Rule to Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to NOX SIP Call; Final Rule'' (70 FR 25162).
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Significant Contribution Element--PM2.5
    Section 110(a)(2)(D)(i) provides that EPA cannot approve a state's 
SIP for a new or revised NAAQS unless it contains adequate measures to 
prohibit emissions from sources within the state from contributing 
significantly to nonattainment of the NAAQS in another state. EPA's 
August 15, 2006, guidance to states concerning section 110(a)(2)(D)(i) 
recommended various methods by which states might evaluate whether or 
not its emissions significantly contribute to violations of the 1997 
PM2.5 standards in another state. Among other methods, EPA 
recommended consideration of available EPA modeling conducted in 
conjunction with CAIR, or in the absence of such EPA modeling, 
consideration of other information such as the amount of emissions, the 
geographic location of violating areas, meteorological data, or various 
other forms of information that would be relevant to assessing the 
likelihood of significant contribution to violations of the NAAQS in 
another state. It should be noted that significant contribution to 
nonattainment is not restricted to impacts upon areas that are formally 
designated nonattainment. Consistent with EPA's approach in CAIR, this 
impact must be evaluated with respect to monitors showing a violation 
of the NAAQS (70 FR 25172, May 12, 2005, and 63 FR 57371, October 27, 
1998). Furthermore, although relevant information other than modeling 
may be considered in assessing the likelihood of significant 
contribution to violations of the 1997 PM2.5 standard in 
another state, EPA notes that no single piece of information in the 
following discussion is by itself dispositive of the issue. Instead, 
the total weight of all the evidence taken together supports the 
conclusion that emissions within North Dakota do not significantly 
contribute to violations in another state of the 1997 PM2.5 
standard.
    Although significant contribution must be measured not just against 
nonattainment areas, but against areas with monitors showing violations 
of the NAAQS, nonattainment areas are a convenient starting point for 
the analysis. For the 1997 annual PM2.5 standard, Libby, in 
Lincoln County, Montana, and Chicago, in Cook County, Illinois, are the 
designated nonattainment areas closest to the State of North Dakota. In 
2005, EPA designated both areas nonattainment for violations of the 
1997 annual PM2.5 standards. See 70 FR 944 (January 5, 
2005), and 40 CFR 81.314 and 81.327.
    A number of considerations provide evidence that North Dakota 
emissions are unlikely to contribute significantly to the violations of 
the 1997 annual PM2.5 standards in Libby. First, Libby is 
more than 650 miles straight west of Bismarck, and any impact from 
North Dakota emissions would have to rely on strong easterly winds that 
rarely occur in the State.\3\ This substantial distance and the rarity 
of easterly surface winds, while not outcome determinative given the 
distances across which PM2.5 can transport, support a 
conclusion that North Dakota emissions are unlikely to contribute 
significantly to violations of the 1997 annual PM2.5 
standard in Libby. Second, in the process of designating Libby 
nonattainment for these standards, EPA noted the predominantly local 
origins of PM2.5 nonattainment in Libby.\4\ While the 
predominance of local sources does not alone rule out the possibility 
of impacts from interstate transport, this fact in conjunction with the 
distance and the near absence of easterly winds in North Dakota 
supports a conclusion that North Dakota emissions are unlikely to 
contribute significantly to violations in Libby. Third, during the ten 
years for which monitoring data are available, from 1999 to 2008, 
annual PM2.5 design values at all other monitors in Montana 
remained significantly below the 15 [mu]g/m\3\ nonattainment threshold. 
Annual PM2.5 design values for most of these monitors 
remained at levels equal to, or less than, two thirds of the NAAQS. 
Even the three highest design values at these monitors were 20 percent 
lower than the level of the annual standard.\5\
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    \3\ Distances from Bismarck, North Dakota, to areas in other 
states are intended to approximate the average transport distance of 
emissions from sources in North Dakota to such areas. For surface 
wind directions, see ``Climate of North Dakota-Wind,'' USGS web page 
at http://www.npwrc.usgs.gov/resource/habitat/climate/wind.htm, 
visited February 10, 2010, and available for review in EPA's January 
14, 2010 docket memorandum: ``Relevant Guidance and Supporting 
Documentation for the Proposed Rulemaking Federal Register Action 
Docket ID  EPA-R08-OAR-2009-0282.''
    \4\ ``Technical Support for State and Tribal Air Quality Fine 
Particle (PM2.5) Designations,'' Chapter 6, pp. 347-352, 
December 2004.
    \5\ In 2001, 2002 and 2006, design values for two monitors in 
Missoula County were 11.1, 11.4 and 11.8 [mu]g/m\3\. Computed from 
AQS monitoring data.
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    The fact that monitors located between North Dakota and Libby are 
not registering violations of the NAAQS does not conclusively establish 
that emissions from North Dakota could not contribute in the aggregate 
to violations

[[Page 16029]]

in Libby, but this fact combined with other relevant evidence such as 
the distance, wind direction, and localized nature of the violations in 
Libby again supports the North Dakota's Interstate Transport SIP 
conclusion on PM2.5 contribution. Finally, by 2007-2008, the 
annual PM2.5 design values for the Libby nonattainment area 
itself fell below the level of the NAAQS, a reduction attributed to an 
effective wood stove replacement program that decreased 
PM2.5 emissions by approximately 59 percent.\6\ In other 
words, were there emissions from North Dakota sources reaching Libby, 
they would no longer be significantly contributing to violations of the 
NAAQS in that location.
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    \6\ State of Montana, Department of Environmental Quality, 
``State Implementation Plan-Libby Annual PM2.5 Control 
Plan,'' submitted to EPA April 1, 2008.
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    Similarly, available information indicates that North Dakota 
emissions are unlikely to contribute significantly to the violations of 
the 1997 annual PM2.5 standards in Cook County Illinois. In 
its rulemaking process for CAIR, EPA determined which states should be 
subject to the rule due to their significant contribution to 
nonattainment of the 1997 PM2.5 NAAQS in other states. This 
determination included a modeling analysis of the contributions by 
upwind states to a violating monitor in Cook County, which is 
approximately 750 miles southeast of Bismarck, North Dakota. According 
to modeling cited in the CAIR proposal of January 30, 2004 (69 FR 
4566), EPA estimated that the maximum contribution by emissions from 
sources in North Dakota to downwind counties predicted to have 
violating monitors for the PM2.5 annual standard in the 2010 
base year was to Cook County. EPA estimated that the North Dakota 
annual average contribution to Cook County would be 0.12 [mu]g/m\3\ 
(Table V-5, 69 FR 4608), an amount well below 0.20 [mu]g/m\3\, the 
threshold set by EPA in CAIR for the initial determination of whether a 
state would be subject to the rule (70 FR 25188-91).\7\ The CAIR 
modeling analysis thus provides support for the conclusion that 
emissions from North Dakota are not significantly contributing to 
violations of the 1997 annual PM2.5 NAAQS in Cook County.\8\
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    \7\ This threshold was upheld by the U.S. Court of Appeals for 
the DC Circuit in its adjudication of consolidated challenges to 
CAIR. See North Carolina v. EPA, 531 F.3d 896, 930 (DC Cir. 2008).
    \8\ As EPA only evaluated sources of NOX and 
SO2 in CAIR, the CAIR modeling analysis, like the other 
evidence considered in this action, is not by itself dispositive of 
the issue of significant contribution.
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    As mentioned above, EPA must consider not only significant 
contribution to nonattainment areas, but also to areas with monitors 
showing violations of the NAAQS. A review of the AQS monitoring data 
for adjacent downwind states shows that it is highly unlikely that 
emissions from North Dakota contribute significantly to downwind areas 
that have monitors showing violations of the 1997 24-hour and annual 
PM2.5 NAAQS. Between 1999 and 2008 there were no violations 
of the 1997 PM2.5 NAAQS at any of the monitors in adjacent 
downwind states, such as Minnesota, South Dakota and Iowa.\9\
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    \9\ Unless otherwise referenced, for AQS monitoring data and 
related design values referenced in this action see Table 1 and 
Table 2 in the docket document entitled: ``Relevant Guidance and 
Supporting Documentation for the Proposed Rulemaking Federal 
Register Action Docket ID  EPA-R08-OAR-2009-0282.''
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    In South Dakota, monitors in Minnehaha and Brookings Counties had 
the highest design values for 1997 24-hour PM2.5 standards 
during the 1999-2008 period. Their design values ranged, respectively, 
from 23 to 28 and from 21 to 26 [mu]g/m\3\, as compared with the 1997 
24-hour PM2.5 NAAQS of 65 [mu]g/m\3\. For annual 
PM2.5, Codington and Minnehaha Counties had the monitors 
with the highest design values, ranging from 9.5 to 10.3 [mu]g/m\3\, 
and from 9.3 to 10.4 [mu]g/m\3\, respectively, as compared to the 
annual NAAQS of 15 [mu]g/m\3\.
    In Minnesota, during 1999-2008, the highest design values for 1997 
24-hour PM2.5 NAAQS occurred for monitors in the Twin 
Cities' Hennepin and Ramsey Counties, where they ranged, respectively, 
from 23 to 32 and from 26 to 36 [mu]g/m\3\. The highest design values 
for annual PM2.5 reflected PM2.5 monitored levels 
also in these two counties, and ranged, respectively, from 8.9 to 11.9 
[mu]g/m\3\ and from 10.7 to 13.8 [mu]g/m\3\. It must be noted that the 
highest design value of 13.8 [mu]g/m\3\, for a monitor in Ramsey 
County, reflected annual PM2.5 concentrations registered 
during the 1999-2001 time span. After 2001, PM2.5 
concentrations in Ramsey County decreased steadily, and between 2006 
and 2008 the highest design value for any of the Minnesota monitoring 
stations was 11.2 [mu]g/m\3\, significantly below the annual NAAQS.
    In Iowa, the highest 24-hour PM2.5 design values during 
the 1999-2008 years reflected pollutant concentrations registered at 
monitors in Clinton and Muscatine Counties. In these counties, design 
values ranged, respectively, from 28 to 36 and from 34 to 38 [mu]g/
m\3\, as compared with the 1997 24-hour PM2.5 NAAQS of 65 
[mu]g/m\3\. The highest annual PM2.5 design values occurred 
in the same counties, and ranged from 11.7 to 14.1 [mu]g/m\3\ in 
Clinton County, and from 12.5 to 13.3 [mu]g/m\3\ in Muscatine County.
    The data and weight of evidence analysis presented above support 
the conclusion of the North Dakota Interstate Transport SIP (adopted 
April 1, 2009 and submitted April 6, 2009) that emissions from North 
Dakota do not contribute significantly to nonattainment in any other 
state for the 1997 PM2.5 NAAQS, consistently with the 
requirements of element (1) of CAA section 110(a)(2)(D)(i).
Significant Contribution Element-- 8-Hour Ozone
    As noted above, Section 110(a)(2)(D)(i) provides that EPA cannot 
approve a state's SIP for a new or revised NAAQS unless it contains 
adequate measures to prohibit emissions from sources within the state 
from contributing significantly to nonattainment of the NAAQS in 
another state. EPA's August 15, 2006, guidance to states concerning 
section 110(a)(2)(D)(i) recommended various methods by which states 
might evaluate whether or not its emissions significantly contribute to 
violations of the 1997 ozone standards in another state. Among other 
methods, EPA recommended consideration of available EPA modeling 
conducted in conjunction with CAIR, or in the absence of such EPA 
modeling, consideration of other information such as the amount of 
emissions, the geographic location of violating areas, meteorological 
data, or various other forms of information that would be relevant to 
assessing the likelihood of significant contribution to violations of 
the NAAQS in another state. The assessment of significant contribution 
to nonattainment is not restricted to impacts upon areas that are 
formally designated nonattainment. Consistent with EPA's approach in 
CAIR, this impact must be evaluated with respect to monitors showing a 
violation of the NAAQS (70 FR 25172, May 12, 2005, and 63 FR 57371, 
October 27, 1998). Furthermore, although relevant information other 
than modeling may be considered in assessing the likelihood of 
significant contribution to violations of the 1997 8-hour ozone 
standard in another state, EPA notes that no single piece of 
information in the following discussion is by itself dispositive of the 
issue. Instead, the total weight of all the evidence taken together 
supports the conclusion that emissions from North Dakota sources are 
unlikely to contribute significantly to violations in another state of 
the 1997 8-hour ozone standard.

[[Page 16030]]

    Although significant contribution must be measured not just against 
nonattainment areas, but against areas with monitors showing violations 
of the NAAQS, nonattainment areas are a convenient starting point for 
the analysis. For the 1997 8-hour ozone NAAQS, the North Dakota 
Interstate Transport SIP revision identifies the Denver Metro Area/
North Front Range (DMA/NFR) in Colorado, and the Illinois and Wisconsin 
counties along the southwestern shores of Lake Michigan as the closest 
designated nonattainment areas.\10\ EPA's evaluation of whether 
emissions from North Dakota contribute significantly to the ozone 
nonattainment in these areas is based on an examination of how 
geographical and meteorological factors affect transport from North 
Dakota to the two areas noted above. Our approach does not rely on a 
quantitative determination of North Dakota's contribution, as EPA did 
for other states in its CAIR rulemaking, but on a weight-of-evidence 
analysis based on qualitative assessments and estimates of the relevant 
factors. While conclusions reached for each of the factors considered 
in the following analysis are not in and by themselves determinative, 
consideration of the likely effect of all factors provides a reliable 
qualitative conclusion on whether North Dakota's emissions are likely 
to contribute significantly to nonattainment in the DMA/NFR area and 
the Illinois/Wisconsin Counties.
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    \10\ The Wisconsin nonattainment areas for the 1997 8-hour ozone 
standard include: Door, Kewaunee, Manitowoc, Sheboygan, Ozaukee, 
Washington, Milwaukee, Waukesha, Racine and Kenosha counties; the 
Chicago nonattainment area includes Cook County and several adjacent 
Illinois and Indiana counties (69 FR 23858, April 30, 2004).
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    The DMA/NFR nonattainment area is approximately 550 miles southwest 
of Bismarck, North Dakota.\11\ Distance per se is not an obstacle to 
long range transport of ozone and/or its precursors, as discussed in 
the January 30, 2004 notice proposing CAIR (69 FR 4599); NOX 
(the primary ozone precursor that was the object of the CAIR transport 
study) may be transported for long distances, contributing 
significantly to high ozone concentrations in other states. However, 
with increasing distance there are greater opportunities for ozone and/
or NOX dispersion and/or removal from the atmosphere due to 
the effects of winds and chemical sink processes. In this context, one 
may conclude that the 550 mile distance between North Dakota and the 
DMA/NFR reduces but does not exclude the possibility of significant 
contribution to this area's nonattainment.
---------------------------------------------------------------------------

    \11\ Distances from Bismarck, North Dakota, to areas in other 
states are intended to approximate the average transport distance of 
emissions from sources in North Dakota to such areas.
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    Another transport factor is wind direction. Research for North 
Dakota and states immediately to the south and east shows that in North 
Dakota both surface and regional transport winds from the northeast, 
needed to transport ozone to the DMA/NFR area, are generally rare. 
Thirty years of data collected by the United States Geological Survey 
(USGS) on surface wind direction for several North Dakota locations 
show that there was much variability by location and time of the year, 
with the exception of northeasterly winds, which were very 
infrequent.\12\ For long range transport winds, a modeling analysis of 
ozone dispersion during the summer months (June to August) of the five 
year period 1991-1995 shows that on high local ozone days North Dakota 
and states immediately to the south or east were characterized by 
southerly regional transport winds. On high regional ozone days, during 
the same period transport winds did not have a prevailing orientation, 
and certainly not a northeasterly one.\13\ To the extent that these 
results are representative of general ozone transport patterns not 
limited to the 1991-95 period, the rarity of northeasterly winds in 
North Dakota and adjacent areas provides evidence that NOX 
emissions from North Dakota are likely to be transported in a direction 
away from the Colorado DMA/NFR nonattainment area, and therefore 
supports the conclusion that emissions sources in North Dakota are 
unlikely to contribute significantly to violations of the 1997 ozone 
NAAQS in Denver.\14\
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    \12\ See USGS data in EPA's January 14, 2010 docket memorandum: 
``Relevant Guidance and Supporting Documentation for the Proposed 
Rulemaking Federal Register Action Docket ID  EPA-R08-OAR-
2009-0282.''
    \13\ Ozone Transport Assessment Group (OTAG), Air Quality 
Analysis Workgroup, ``3.3 Climatology of Ozone Synoptic scale 
Transport in the Eastern US,'' Figures 1(a) and 5(a), pp. 3, 6, 
January 11, 1998. The high ozone days included the days with ozone 
concentrations in the 90th percentile.
    \14\ Ibid.
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    The Illinois/Wisconsin counties along the southwestern shores of 
Lake Michigan (which make up the other nonattainment area within 
possible transport distance of North Dakota) are approximately 700 
miles east-southeast from Bismarck. The CAIR modeling domain for 8-hour 
ozone transport analysis included only the eastern half of North 
Dakota, and the CAIR modeling analysis did not determine whether 
NOX emissions from North Dakota sources contributed 
significantly to ozone nonattainment in any downwind states.\15\ 
However, the CAIR modeling analysis results for Minnesota provide us 
the opportunity to draw inferences about ozone contribution from North 
Dakota sources to nonattainment in the Illinois/Wisconsin area. It must 
be noted that Minnesota is nearly half as distant from this 
nonattainment area as North Dakota (400 miles as compared with 
700),\16\ and that to reach the Illinois/Wisconsin nonattainment area, 
ozone transport winds from Minnesota would have to have a northwesterly 
orientation similar to that necessary for substantial ozone transport 
from North Dakota. In addition, the CAIR modeling analysis estimated 
the Minnesota's NOX emissions for the 2010 base year to be 
approximately twice as large as the NOX emissions from North 
Dakota's sources (381,500 as compared with 182, 800 tons).\17\ Finally, 
the CAIR analysis determined that emissions from Minnesota were below 
the initial threshold for including states in CAIR.\18\ In light of 
this CAIR determination, and of Minnesota's larger NOX 
emissions and shorter distance to the nonattainment area, it is 
plausible to conclude that NOX emissions from North Dakota 
sources are not likely to contribute significantly to nonattainment of 
the 1997 8-hour ozone standard in the Illinois and Wisconsin counties 
along the southwestern shores of Lake Michigan.
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    \15\ 69 FR 4584 (Jan. 30, 2004) (``We are deferring findings for 
Texas, Oklahoma, Kansas, Nebraska, South Dakota and North Dakota, 
which at this time cannot be assessed on the same bases as States to 
the east because they are only partially included in the modeling 
domain * * *'').
    \16\ The 400 mile distance to the nonattainment area is 
calculated from St. Cloud, and is intended to be a rough 
approximation of the average transport distance of NOX 
emission sources from Minnesota.
    \17\ 69 FR 4590.
    \18\ Minnesota was not listed among the upwind states that 
contribute significantly to downwind counties projected 
nonattainment for 8-hour ozone in the 2010 base year, and is not a 
CAIR state for the 8-hour ozone standard. 69 FR 4602, Table V-2; 70 
FR 25167.
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    Additional ozone transport factors specific to North Dakota are 
distance from the nonattainment area and prevailing orientation of the 
winds. As noted above, Bismarck is approximately 700 miles from the 
Illinois/Wisconsin nonattainment area, a distance which does not 
exclude the realistic possibility that significant ozone transport 
might occur. Research on surface wind direction in North Dakota, 
reflected in the USGS data referenced earlier, shows a great 
variability depending on location and time of the year. Northwesterly 
winds are more frequent than southwesterly or southeasterly winds 
considered separately, but less frequent

[[Page 16031]]

than the two combined. On the other hand, as noted earlier in this 
review, during the ozone season of the years 1991-1995, on local high 
ozone days regional transport winds in North Dakota were predominantly 
southerly, and on high regional ozone days they lacked a prevailing 
orientation. There was no strong northwesterly component that might 
allow for significant transport of NOX to the Illinois/
Wisconsin area.\19\ To the extent that these results are representative 
of general ozone transport patterns not limited to the 1991-95 period, 
one may add the relative infrequency of northwesterly transport winds 
from North Dakota to the other factors that make it unlikely for 
emissions from North Dakota sources to contribute significantly to 
nonattainment in the noted Illinois/Wisconsin area.
---------------------------------------------------------------------------

    \19\ Ibid.
---------------------------------------------------------------------------

    This conclusion is supported by the recent attainment demonstration 
developed for the nonattainment counties along the western shores of 
Lake Michigan by the Wisconsin Department of Natural Resources (WDNR). 
The WDNR analysis identifies heavy industrial activity and dense 
urbanization as the major local contributors to the high ozone 
concentrations in the Illinois and Wisconsin Counties along the 
southwestern shores of Lake Michigan. Regional ozone transport is 
thought to contribute from 40 to 60% of the maximum ozone 
concentrations in the Lake Michigan airshed, and the contributing 
transport is estimated to originate from south-southwesterly areas, 
within a span of 160 to 270 degrees. Any ozone transport from North 
Dakota would fall outside this span. The WDNR finding, in combination 
with the results of the analysis for other transport factors presented 
above, strengthens the conclusion that it is unlikely that emissions 
from North Dakota sources contribute significantly to the nonattainment 
of the Illinois/Wisconsin Counties on the southwestern shores of Lake 
Michigan.\20\
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    \20\ Wisconsin Department of Natural Resources, ``Attainment 
Demonstration--The Wisconsin Counties of Kenosha, Racine, Milwaukee, 
Waukesha, Ozaukee, Washington, Sheboygan, Manitowoc and Door,'' pp. 
8, 51, September 2009.
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    Finally, by 2008, the 8-hour ozone design values for the Illinois 
and Wisconsin nonattainment counties along the shores of Lake Michigan 
fell below the level of the NAAQS, a reduction attributed to the 
implementation of State and Federal control measures since the 
designation of these counties as nonattainment in 2004. In other words, 
were there emissions from North Dakota sources reaching the Illinois 
and Wisconsin counties along the western rim of Lake Michigan, they 
would no longer be significantly contributing to violations of the 
NAAQS in that area.\21\
---------------------------------------------------------------------------

    \21\ Ibid. p. 14.
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    As mentioned above, EPA must consider not only significant 
contribution to nonattainment areas, but also to areas with monitors 
showing violations of the NAAQS. A review of the AQS monitoring data 
for adjacent downwind states shows that it is highly unlikely that 
emissions from North Dakota contribute significantly to downwind areas 
that have monitors showing violations of the 1997 8-hour ozone NAAQS. 
Between 1999 and 2008 there were no violations of the 1997 8-hour ozone 
NAAQS at any of the monitors in adjacent downwind states, such as 
Minnesota, South Dakota and Iowa.
    The design values for Minnesota, South Dakota and Iowa during the 
1999-2008 years remained substantially below the 1997 NAAQS in most 
counties, as shown by the highest design values. In South Dakota, the 
highest design values were in Custer and Jackson Counties, where they 
peaked, respectively, at 71 and at 68 ppb. In Minnesota, the highest 
design values were in Anoka and Washington Counties, where they peaked 
at 75 ppb. In Iowa, the highest design values were in Clinton and Scott 
Counties, where they reached levels between 78 and 80 ppb in the early 
part of the 1999-2008 period, and decreased to levels, respectively, 
between 67 and 72, and 65 and 70 ppb during 2006-2008. The decrease of 
Iowa ozone levels between 1998 and 2008 can be gauged by comparing the 
peak levels of 79-80 ppb in 2000-2003 with peak levels of 70-75 ppb in 
2006-2008.
    The data and weight of evidence analysis presented above support 
the conclusion of the North Dakota Interstate Transport SIP (adopted 
April 1, 2009 and submitted April 6, 2009) that emissions from North 
Dakota do not contribute significantly to nonattainment in any other 
state for the 1997 8-hour ozone NAAQS, consistently with the 
requirements of element (1) of CAA section 110(a)(2)(D)(i).
Interference With PSD Element--PM2.5 and Ozone
    The third element of section 110(a)(2)(D)(i) requires a SIP to 
contain adequate provisions prohibiting emissions that interfere with 
any other state's required measures to prevent significant 
deterioration of its air quality. The State of North Dakota interstate 
transport SIP is consistent with the 2006 guidance. The SIP indicates 
in Section 7.8.1, subsection C, ``Impact on Prevention of Significant 
Deterioration (PSD),'' that the State's SIP provisions include an EPA-
approved PSD program applicable to all regulated pollutants. North 
Dakota's regulations for its PSD program were federally-approved and 
made part of the SIP on November 2, 1979 (44 FR 63103). On July 19, 
2007, EPA approved the North Dakota PSD revisions incorporating EPA's 
December 31, 2002 NSR Reforms into the State's regulations (72 FR 
39564). North Dakota does not have nonattainment areas for any of the 
criteria pollutants and therefore does not have a Nonattainment New 
Source Review (NNSR) program.
    Consistent with EPA's November 29, 2005 Phase II rule for the 1997 
8-hour ozone standard (70 FR 71612), the State updated, effective April 
1, 2009, its PSD provisions by incorporating by reference most of the 
federal provisions at 52.21, including the definition of regulated NSR 
pollutant at 52.21(b)(50), listing NOX as an ozone 
precursor. As discussed elsewhere in this notice, EPA proposes in this 
action to approve the April 1, 2009 update. Thus, the April 1, 2009 
update, taken together with interstate transport SIP section 7.8.1, 
subsection C, satisfies the requirements of the third element of CAA 
section 110(a)(2)(D)(i) for the 1997 8-hour ozone standard.
    For PM2.5, North Dakota's SIP declares that the State 
will follow EPA's interim guidance on use of PM10 as a 
surrogate for PM2.5. In response to EPA's request of March 
2, 2010, the North Dakota Air Quality Division, in a March 8, 2010 
letter to the EPA Region 8 Air Program, has clarified an ambiguity in 
its interpretation of the interim guidance. The letter states that, 
until the guidance is ended or replaced, North Dakota will apply it 
consistent with EPA's interpretation of the federal case law relevant 
to the use of the PM10 Surrogate Policy (see 75 FR 6827, 
6831-32, February 11, 2010). The State will also take into account the 
limits provided in the policy itself, such as the need to identify the 
technical difficulties that justify the application of the policy in 
each specific case (75 FR 6834). With that clarification, the North 
Dakota Interstate Transport SIP satisfies the requirements of the third 
element of section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS.
    On the basis of the data and analysis presented above, EPA 
concludes that the North Dakota Interstate Transport

[[Page 16032]]

non-regulatory provisions adopted into the State SIP April 1, 2009 
satisfactorily address the requirements of elements (1) and (3) of 
section 110(a)(2)(D)(i) for the 1997 PM2.5 and 8-hour ozone 
standards.

V. Proposed Action

    EPA is proposing approval of revisions, submitted by the Governor 
of North Dakota with a letter dated April 6, 2009, to the prevention of 
significant deterioration provisions in subsection 33-15-15 of the 
NDAC, and partial approval of the addition to the State SIP of the 
``Interstate Transport of Air Pollution'' SIP addressing the 
requirements of Clean Air Act section 110(a)(2)(D)(i) for the 1997 
PM2.5 and 8-hour ozone National Ambient Air Quality 
Standards (NAAQS). For the North Dakota Interstate Transport SIP, EPA 
is proposing approval of: (a) The introductory language in the State 
SIP Section 7.8; (b) the ``Overview'' language in subsection A., 
Section 7.8.1; (c) language in Section 7.8.1, subsection B., 
``Nonattainment and Maintenance Area Impact,'' that specifically 
addresses element (1) of section 110(a)(2)(D)(i), the requirement that 
the SIP contain adequate provisions prohibiting emissions from North 
Dakota from contributing significantly to nonattainment in any other 
state; and (d) Section 7.8.1, subsection C, ``Impact on Prevention of 
Significant Deterioration (PSD).''

VI. Statutory and Executive Order Review

    Under the Clean Air Act, 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 Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this 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 Clean Air Act; 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

     Dated: March 18, 2010.
Carol L. Campbell,
Acting Assistant Regional Administrator, Region 8.
[FR Doc. 2010-6894 Filed 3-30-10; 8:45 am]
BILLING CODE 6560-50-P
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