Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations 71023 

* * * * * 

[FR Doc. 2010–29246 Filed 11–19–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2009–0557; FRL–9229–1] 

Approval and Promulgation of State 

Implementation Plan Revisions; State 

of North Dakota; Interstate Transport 

of Pollution for the 1997 PM2.5 and 8- 

Hour Ozone NAAQS: ‘‘Interference 

With Maintenance’’ Requirement 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving the 

State Implementation Plan revisions 

submitted by the State of North Dakota 

on April 6, 2009. Specifically, EPA is 

approving the portions of the ‘‘Interstate 

Transport of Air Pollution’’ revisions 

addressing the ‘‘interference with 

maintenance’’ requirement of Clean Air 

Act (CAA) section 110(a)(2)(D)(i) for the 

1997 PM2.5 and 8-hour ozone National 

Ambient Air Quality Standards 

(NAAQS). The ‘‘interference with 

maintenance’’ requirement of section 

110(a)(2)(D)(i) prohibits a state’s 

emissions from interfering with 

maintenance of the NAAQS by any 

other state. This action is being taken 

under section 110 of the CAA. 

DATES: Effective Date: This final rule is 

effective December 22, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2009–0557. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov, or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Domenico Mastrangelo, Air Program, 

U.S. Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6416, 

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 State or North Dakota 

mean the State of North Dakota, unless 

the context indicates otherwise. 

Table of Contents 

I . Background 

II . Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Review 

I. Background 

On July 18, 1997, EPA promulgated 

new standards for 8-hour ozone and fine 

particulate matter (PM2.5). This action is 

being taken in response to the July 18, 

1997 revision to the 8-hour ozone 

NAAQS, and PM2.5 NAAQS. This action 

does not address the requirements for 

the 2006 24- hour PM2.5 NAAQS, or the 

2008 8-hour ozone NAAQS; those 

standards will be addressed in a later 

action. 

Section 110(a)(1) of the CAA requires 

states to submit SIPs to address a new 

or revised NAAQS within 3 years after 

promulgation of such standards, or 

within such shorter period as EPA may 

prescribe. Section 110(a)(2) lists the 

elements that such new SIPs must 

address, as applicable, including section 

110(a)(2)(D)(i) which pertains to 

interstate transport of certain emissions. 

Section 110(a)(2)(D)(i) of the CAA 

requires that a state’s SIP must contain 

adequate provisions prohibiting any 

source or other type of emissions 

activity within the state from emitting 

any air pollutant in amounts which will: 

(1) Contribute significantly to 

nonattainment of the NAAQS in any 

other state; (2) interfere with 

maintenance of the NAAQS by any 

other state; (3) interfere with any other 

state’s required measures to prevent 

significant deterioration of air quality; 

or (4) interfere with any other state’s 

required measures to protect visibility. 

On April 6, 2009 the State of North 

Dakota submitted a SIP addressing the 

section 110(a)(2)(D)(i) four 

requirements, noted above, for the 1997 

8-hour ozone NAAQS and for the 1997 

annual and 24-hour PM2.5 NAAQS. The 

state based its submittal on EPA’s 2006 

Guidance discussed below. As noted 

earlier, in this rulemaking EPA is 

addressing the requirement that pertains 

to preventing sources in the State from 

emitting pollutants in amounts which 

will interfere with the maintenance of 

the 1997 ozone and PM2.5 NAAQS by 

any other state. 

On August 15, 2006, EPA issued its 

‘‘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’’ (2006 Guidance) for SIP 

submissions that states should use to 

address the requirements of section 

110(a)(2)(D)(i). EPA developed this 

guidance to make recommendations to 

states for making submissions to meet 

the requirements of section 

110(a)(2)(D)(i) for the 1997 ozone 

NAAQS and 1997 PM2.5 NAAQS. 

In a Federal Register action dated 

September 17, 2010, EPA proposed 

approval of the North Dakota Interstate 

Transport SIP portions addressing the 

interference with maintenance 

requirement of section 110(a)(2)(D)(i). 

EPA concluded in its proposed action 

that the various factual and technical 

considerations supported a 

determination that emissions from 

North Dakota do not interfere with 

maintenance by any states with areas at 

risk for maintenance of the 1997 8-hour 

ozone NAAQS or for maintenance of the 

1997 annual and 24-hour PM2.5 NAAQS. 

EPA did not receive comments that 

persuade the Agency that there is such 

interference with maintenance for the 

1997 ozone or PM2.5 NAAQS and thus 

in today’s final action EPA is making a 

final regulatory determination that 

North Dakota’s sources do not interfere 

with maintenance of the 1997 8-hour 

ozone NAAQS, and the 1997 PM2.5

NAAQS in any other state. 

II. Response to Comments 

EPA received one letter dated October 

18, 2010 with comments from the 

WildEarth Guardians (WG) 

environmental organization. The WG 

letter includes three separate comments 

identifiable under sections A., B., and 

C., and is accessible online at 

regulations.gov under Docket No. EPA– 

R08–OAR–2009–0057. Later in this 

section EPA responds to the significant 


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1Similarly, in our response to the same WG 

comments in our action finalizing the proposed rule 

action of September 17, 2010 for the Colorado 

‘‘interference with maintenance’’ requirement we 

address WG’s comments as if they were directed to 

the proposed rule action for Colorado (75 FR 

56935). 

2As EPA noted in the proposal, the term 

‘‘interfere with maintenance’’ is not defined in the 

CAA. As such, the term is ambiguous and EPA’s 

interpretation of that term in this action is both 

reasonable and consistent with the text and the 

overall goals of the CAA. By this approach, EPA is 

giving independent meaning to the term and 

supporting that interpretation with technical 

analysis to apply it to the facts in this action. 

3 531 F.3d at 910. 

4 Id. 

5 Id. at 910–11. 

6The process that defines the monitors at risk for 

maintenance was summarized in the September 17, 

2010 proposed rule action for the North Dakota 

Interstate Transport SIP (75 FR 56928). 

7 75 FR 45210, at 45246. 

comments made by the commenter. WG 

clarifies in its introductory remarks on 

the letter’s first page that its comments 

are directed to both the Colorado and 

the North Dakota Federal Register 

proposed rule actions of September 17, 

2010 (75 FR 56935 and 75 FR 56928) 

because ‘‘EPA’s rationale for approving 

both SIPs is the same.’’ EPA will 

consider WG’s comments, as 

appropriate, equally applicable to the 

referenced EPA proposed rule actions 

for the Colorado and the North Dakota 

interstate transport SIPs. For clarity, 

however, in this action EPA will 

address WG’s comments as if they were 

directed only to the proposed rule 

action for North Dakota (75 FR 56928).1

Comment No. 1—In its comments 

under section A., ‘‘Maintenance is 

Inappropriately Defined,’’ WG states that 

EPA’s definition of interference with 

maintenance, and by implication the 

identification of maintenance receptors, 

appeared to be ‘‘inappropriately 

conflated with the definition of 

nonattainment.’’ It argues that the 

definition of maintenance appeared to 

be tied to nonattainment, asserting that 

‘‘unless an area has violated or is in 

violation of the NAAQS, the agency will 

not consider whether * * * North 

Dakota [is] interfering with that area’s 

ability to maintain compliance with the 

NAAQS.’’ For this reason, WG argues 

EPA did not give independent meaning 

to the interfere with maintenance prong 

of section 110(a)(2)(D)(i)(I). 

EPA Response—The methodology 

EPA used to identify maintenance 

receptors gives independent meaning to 

the term ‘‘interfere with maintenance’’ 

and establishes a process to identify 

projected attainment receptors that, 

based on the historic variability of air 

quality at that site (which may be due 

to variability in emissions and/or 

meteorology), may have difficulty 

maintaining the standard. As explained 

in greater detail below, the commenter’s 

objection to EPA’s approach appears to 

be based on the misconception that the 

methodology EPA used to identify 

maintenance sites was dependent on 

base year NAAQS violations. 

The definition of maintenance used 

by EPA is consistent with the direction 

given to EPA by the Court of Appeals for 

the DC Circuit in North Carolina v. EPA, 

531 F.3d 896 (DC Cir. 2008).2 In that 

case, the court analyzed the definition 

of ‘‘interfere with maintenance’’ used in 

the Clean Air Interstate Rule (CAIR). 

The court found that the definition EPA 

used ‘‘gave no independent significance 

to the ’interfere with maintenance’ 

prong of section 110(a)(2)(D)(i) to 

separately identify upwind sources 

interfering with downwind 

maintenance.’’ 3 It further reasoned that 

‘‘[u]nder EPA’s reading of the statute, a 

state can never ‘interfere with 

maintenance’ unless EPA determines 

that at one point it ‘contribute[d] 

significantly to nonattainment’.’’ 4 Based 

on this analysis, the court found the 

definition unlawful, holding that 

‘‘[b]ecause EPA describes CAIR as a 

complete remedy to a section 

110(a)(2)(D)(i)(I) violation and does not 

give independent significance to the 

‘‘interfere with maintenance’’ language 

to identify upwind states that interfere 

with downwind maintenance, it 

unlawfully nullifies that aspect of the 

statute and provides no protection for 

downwind areas that, despite EPA’s 

predictions, still find themselves 

struggling to meet NAAQS due to 

upwind interference in 2010.’’ 5

The approach used by EPA in its 

September 17, 2010 proposal to assess 

whether emissions from sources in 

North Dakota interfere with 

maintenance of the NAAQS in any other 

state takes into account the flaws 

identified by the court, by giving 

independent meaning to the section 

110(a)(2)(D)(i) ‘‘interference with 

maintenance’’ requirement. Our 

September 17, 2010 proposed action 

relies on a process established by EPA’s 

August 2, 2010 Transport Rule Proposal 

to identify any specific receptors in 

downwind states that, even though they 

are projected to be in attainment and 

thus would not be nonattainment 

receptors, may have difficulty 

maintaining the NAAQS in question. 

These receptors are referred to as 

maintenance receptors. 

The commenter’s statement that 

EPA’s designation of maintenance 

receptors is ‘‘firmly hitched to a finding 

that the maximum design value based 

on a single three-year period between 

2003 and 2007 is in excess of the 

NAAQS’’ appears to be based on a 

misunderstanding of the methodology 

used by EPA to identify maintenance 

receptors. EPA’s methodology did not, 

as the commenter appears to assume, 

require a site to have a design value 

above the NAAQS for one of the three 

base periods (2003–2005, 2004–2006, 

2005–2007) to be considered a 

maintenance site. The methodology is 

based on an analysis of the future year 

average and future year maximum 

design values.6 It does not depend on 

the whether the base year design values 

exceed the NAAQS. The Transport Rule 

Proposal explained that EPA used the 

average concentrations of the three 

design values for three base periods 

noted above to determine the 2012 

average design value at monitoring sites. 

Monitoring sites with projected average 

design values above the NAAQS would 

be in nonattainment, while those with 

projected average design values below 

the NAAQS would be in attainment in 

2012. To identify among the attainment 

monitoring sites those at risk for 

maintenance of the NAAQS, EPA also 

projected to 2012 each of the three 

design values for the base periods noted 

above. If the maximum of the three was 

above the NAAQS, then monitoring site 

was identified as at risk for maintenance 

of the NAAQS, or as a ‘‘maintenance 

receptor.’’ 7 The maximum design value 

referenced in this sentence is the 

maximum future design value 

calculated using each of the three base 

design value periods separately. 

Whether or not one of the three base 

period design values exceeded the 

NAAQS was not a factor considered in 

determining whether a site was a 

maintenance receptor. 

To better understand this concept, it 

is useful to compare the methodologies 

used in the Transport Rule proposal (75 

FR 45210, Aug. 2, 2010) to identify 

nonattainment and maintenance 

receptors. In the Transport Rule 

proposal, base period (2003–2007) 

ambient data were projected to the 

future (using model outputs) to identify 

both nonattainment and maintenance 

receptors. In both cases, receptors were 

identified by projected future design 

values; however, because more 

conservative data were used for the 

maintenance analysis, this analysis 

could identify receptors that were 

projected by the nonattainment analysis 

to be in attainment; yet might have 

difficulty attaining the standard due to 

historic variability of air quality at that 

site. To identify future nonattainment 


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8 Id. at 45246. 

9The commenter referenced the Colorado 

Department of Public Health and Environment’s 

‘‘2010 Ozone Attainment Demonstration Modeling 

for the Denver 8-hour Ozone State Implementation 

Plan Control Strategy’’ and the Environ modeling 

report ‘‘Final 2010 Ozone Attainment 

Demonstration Modeling for the Denver 8-hour 

Ozone State Implementation Plan.’’ 

10This comment also expresses concern about the 

Wasatch Front and Uinta County areas in Utah, the 

Phoenix area of Arizona, portions of western 

Wyoming, and Juan County in New Mexico as at 

risk for maintenance for the 1997 8-hour ozone 

NAAQS. According to WG, the proposed EPA’s 

September 17, 2010 proposed rule assessment of the 

Colorado’s emissions impacts on maintenance of 

the NAAQS by other states should have included 

the evaluation of Colorado emissions on the areas 

noted above. We respond to that portion of this 

comment in the final rulemaking for the Colorado 

interstate transport SIP submitted June 18, 2009. 

sites we calculated the future year 

design values by projecting the 5-year 

weighted average design value for each 

site. Only if this future year design 

value exceeded the NAAQS was the site 

considered to be a nonattainment 

receptor. However, to identify projected 

maintenance sites we used a different 

methodology that took into account 

historic variability in air quality at each 

receptor. For this approach we 

calculated the maximum future year 

design value by processing each of the 

three base design value periods (2003– 

2005, 2004–2006, and 2005–2007) 

separately. The highest of the three 

future values is the maximum design 

value, which is used to determine 

maintenance receptors. 

In this way, EPA’s analysis identifies 

those areas that are projected to be 

attainment, but may have difficulty 

maintaining attainment of the standard, 

for example in a year with particularly 

severe meteorology (weather that is 

conducive to ozone and/or particulate 

formation). In other words, this analysis 

does exactly what the D.C. Circuit 

directed EPA to do in North Carolina. It 

gives independent meaning to the 

‘‘interfere with maintenance’’ prong of 

110(a)(2)(D)(i) and provides protection 

to any areas that, although they are 

predicted to attain the standard (and 

thus upwind sources could not be found 

to significantly contribute to 

nonattainment in that area) may have 

difficulty maintaining the standard.8

EPA used this same approach to 

identify any potential maintenance 

receptors for purposes of evaluating 

North Dakota’s SIP submission. For the 

reasons explained above, this approach 

is both reasonable and consistent with 

the direction given to EPA by the DC 

Circuit in North Carolina. 

Comment No. 2—In its comments 

under section B., ‘‘Even Under EPA’s 

Definition of Maintenance, Maintenance 

Receptors are not Consistently Defined,’’ 

WG cited a variety of information 

suggesting that that receptors in the 

Denver Metropolitan Area/North Front 

Range (DMA/NFR) area should also be 

considered for maintenance purposes 

under 110(a)(2)(D)(i) in this action. The 

commenter points out that EPA itself 

has stated, ‘‘Data for 2005–2007 and 

2006–2008 reflect violations of the 8- 

hour ozone NAAQS at the Rocky Flats 

North monitor (values of [0.085] and 

0.086 ppm, respectively).’’ The 

commenter also argued that modeling 

prepared in conjunction with Colorado’s 

DMA/NFR attainment demonstration 

shows that by 2010, the three-year 

design value is only projected to be 

lowered to 0.084 parts per million, 

barely in compliance with the NAAQS, 

and that certain portions of the DMA/ 

NFR area of Colorado would violate the 

1997 ozone NAAQS in 2010 at grid cells 

west of Fort Collins. The commenter 

referenced several documents that are 

part of the Colorado’s DMA/NFR 8-hour 

Ozone Attainment Demonstration in 

support of its arguments. The 

commenter cited the report’s language 

that indicated that the modeling 

projection of a value above the 1997 

8-hour standard to the west of Fort 

Collins is not ‘‘implausible’’ and 

explaining, ‘‘In the case of the Denver 

ozone modeling, higher ozone 

concentrations are estimated west of 

Fort Collins than at the locations of the 

two monitors in Fort Collins on some 

days and this does not appear to be an 

error in the modeling system.’’ 9 Finally, 

the commenter argued that EPA’s failure 

to consider the DMA/NFR area as a 

receptor for evaluating interference with 

maintenance in this action reflects the 

very problem that the D.C. Circuit 

warned could result without giving 

independent meaning to the term 

‘‘interfere with maintenance.’’ 10

EPA’s Response—EPA disagrees with 

WG’s argument that EPA has 

inappropriately identified the correct 

monitors for maintenance receptors. As 

discussed in greater detail in the 

previous response to comment no. 1, 

EPA has selected a method that 

identifies maintenance receptors 

separately from nonattainment receptors 

and gives an independent meaning to 

the interfere with maintenance prong of 

section 110(a)(2)(D)(i). EPA has 

consistently applied this method to all 

potential receptors in States potentially 

impacted by North Dakota’s emissions 

including those in the DMA/NFR area. 

The commenter’s argument EPA did 

not consistently identify maintenance 

receptors is premised on the same 

fundamental misunderstanding 

discussed in response to comment no. 

1—that EPA’s identification of 

nonattainment receptors was based on 

current or past NAAQS violations. As 

explained above, this is not correct. EPA 

did not base its identification of 

maintenance receptors on an analysis of 

whether air quality at those receptors 

exceeded the NAAQS in the base years. 

The methodology EPA used to identify 

maintenance areas takes into account 

historic variability of emissions at 

specific monitoring sites to analyze 

whether or not monitoring sites 

projected to be in attainment in 2012 

will nonetheless remain at risk of 

slipping into nonattainment in that year. 

The commenter provided a number of 

modeling or monitoring analyses for 

2010 or earlier. As we have addressed 

in responses elsewhere in this notice, 

EPA continues to believe 2012 is the 

appropriate year for this analysis. Thus, 

modeling or monitoring data for other 

years is not directly relevant to this 

rulemaking. Nonetheless, below we 

address the commenter’s specific 

assertions about the monitoring and 

modeling. 

The commenter asserts that 

monitoring data for 2005–07 and 2006– 

08 for the Rocky Flats North monitor 

reflect violations of the 8-hour NAAQS 

and therefore EPA should consider this 

Rocky Flats North monitor as a 

‘‘maintenance receptor.’’ The commenter 

further cites to modeling prepared in 

conjunction with Colorado’s DMA/NFR 

attainment demonstration to support its 

assertion that EPA has applied 

inconsistently its definition of 

interference with maintenance. The 

modeling data referenced by the 

commenter, however, only identifies 

monitors that, in the commenter’s view, 

are at risk of being in nonattainment or 

having maintenance problems in 2010. 

The monitoring data cited indicates 

high ozone levels in the past. The 

underlying issue raised is thus 

substantively the same as that raised in 

comment no. 3 below which argues that 

EPA’s analysis is faulty because it 

identifies receptors likely to have 

difficulty maintaining the standard in 

2012 and not at the present or in the 

past. EPA’s response to comment no. 3 

below, illustrates how its approach, 

based on modeling analyses that 

identify receptors at risk for 

maintenance in the year 2012, is 

appropriate and consistent with the D.C. 

Circuit decision in North Carolina v. 

EPA. 

EPA’s method is based on model 

projection values that take into account 

multi-year variability in ozone data at 

specific monitors. For identification of 

maintenance receptors, EPA utilized the 

monitoring data from the 2003–2007 


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11EPA’s ‘‘Guidance on the Use of Models and 

Other Analyses for Demonstrating Attainment of 

Air Quality Goals for Ozone, PM2.5, and Regional 

Haze,’’ EPA–454/B–07–002, April 2007. Also, 75 FR 

42346 (July 21, 2010) [EPA–R08–OAR–2010–0285; 

FRL–9177–2], Proposed Rule, ‘‘Approval and 

Promulgation of Air Quality Implementation Plans; 

Colorado; Attainment Demonstration for the 1997 8- 

Hour Ozone Standard, and Approval of Related 

Revisions’’; at 42346–61. 

12 Id. 

13 Id. at 32. 

14The Rist Canyon monitoring station uses a 

Federal Equivalent Method (FEM) and follows the 

quality assurance requirements of 40 CFR Part 58 

Appendix A. Ozone data collected at this 

monitoring station is eligible for comparison to the 

ozone NAAQS after the monitor has operated for 

more than 24 months per 40 CFR 58.30(c). Design 

values, however, are based on the 3-year average of 

the annual fourth highest daily maximum 8-hour 

average ozone concentration (see 40 CFR part 50, 

Appendix D). 

period to calculate 2012 future year 

modeling design value projections. The 

2003–07 period includes three Design 

Value (DV) periods (2003–2005, 2004– 

2006, and 2005–2007). The 2012 future 

year DVs were calculated by 

multiplying a 3-year DV (base year) by 

the ratio of the Future Year average of 

the daily 8-hour ozone maximums 

around a monitor over the Base Year 

average of the daily 8-hour ozone 

maximums around a monitor. This 

calculation was performed for each of 

the three 3-year DVs (2003–2005, 2004– 

2006, and 2005–2007). This approach 

yielded three different projected 2012 

design values and thus, tests for 

variability in meteorology. If any of the 

three 2012 projections was above the 

1997 ozone standard, then the receptor 

would be considered a maintenance 

receptor. None of the 2012 projections 

for the DMA/NFR area was above the 

standard so the area was not considered 

a maintenance area. This approach was 

the same as the approach used for every 

potential receptor evaluated. It is worth 

noting that EPA’s analysis included the 

2005–2007 data for the Rocky Flats 

monitor (which is one of the highest 

monitored DVs in recent years for this 

monitor) that the commenter raised as a 

concern and pursuant to its 

methodology as previously described 

EPA’s analysis determined that the 

Rocky Flats monitor would not be a 

maintenance receptor in 2012. 

Further, EPA disagrees with 

commenter’s conclusion that the 

modeling performed for the DMA/NFR 

attainment demonstration with the 2010 

model projections establishes that any 

of the areas identified will have 

maintenance problems for the 1997 

8-hour ozone NAAQS. We disagree with 

WG’s conclusion that the DMA/NFR 

area monitors should be identified as 

‘‘maintenance receptors’’ in large part 

because it bases its conclusion on 

projections for 2010 instead of 2012. 

This modeling used projections for 2010 

not 2012, which as explained above and 

in response to comment no. 3 below is 

not the correct year for comparison, 

given the approach EPA has developed 

for determining maintenance receptors. 

EPA’s analysis of maintenance 

receptors, which is based on the 

approach developed in the Transport 

Rule Proposal to be consistent with the 

D.C. Circuit’s opinion in North Carolina 

v. EPA and uses projections for 2012, 

did not identify any maintenance 

receptors in the DMA/NFR area. This 

conclusion is consistent with evidence 

suggesting emissions are likely to trend 

downward (for example, with two more 

years of fleet turnover, this modeling 

would likely have projected lower levels 

of ozone in 2012) and preliminary 

monitoring data for 2010, which 

indicates that the DMA/NFR area is 

meeting the 1997 ozone standard. 

Further, EPA has reviewed Colorado’s 

attainment demonstration for the DMA/ 

NFR area and proposed that the 

combination of the modeling and 

Weight of Evidence analyses 

demonstrates that Denver will be in 

attainment in 2010.11

In addition, the commenter’s concern 

that an area west of Fort Collins, might 

exceed 84 ppb in 2010 is based on 

exceedance values in the Colorado 

modeling analysis from a special 

analysis, called the Unmonitored Area 

Analysis (UAA), that is recommended 

for model grid cells that are not 

analyzed in the monitor based 

attainment demonstration because they 

are not located near a monitor. EPA 

does not believe that the UAA 

establishes that this area should be 

considered a maintenance receptor area 

for the purposes of 110(a)(2)(D)(i). 

First, the UAA analysis is for 2010, 

which as noted above is not the correct 

analysis year. Second, EPA guidance 

indicates that NAAQS violations in the 

UAA should be handled on a case by 

case basis.12 The guidance stresses that 

due to the lack of measured data, the 

examination of ozone concentrations as 

part of the unmonitored area analysis is 

more uncertain than the monitor based 

attainment test. This is true even in 

situations such as this where, as the 

commenter points out; no known errors 

were identified by the contractor in the 

modeling analysis. As a result, the UAA 

results are recommended to be treated 

as a separate test from the monitor based 

attainment test with less weight put on 

the conclusions of the UAA analysis. 

EPA’s attainment demonstration 

guidance indicates, ‘‘While it is 

expected that States will implement 

additional emission controls to 

eliminate predicted violations of the 

monitor based test, the same 

requirements may not be appropriate in 

unmonitored areas.’’ 13 The guidance 

recommends that it may be appropriate 

to deploy additional monitors in an area 

where the unmonitored analysis 

indicates a potential future year 

violation. 

To address the concerns raised by the 

UAA, Colorado installed an additional 

ozone monitor in the area West of Fort 

Collins to determine whether the model 

predicted ozone concentrations are, in 

fact, valid. The special purpose monitor, 

located in Rist Canyon, began operation 

on May 14, 2009. The Rist Canyon 

monitoring station has collected data for 

two ozone seasons (approximately 16 

months) since it began operating and the 

fourth highest daily maximum 8-hour 

average ozone concentration reading is 

69 ppb for May through December of 

2009 and 72 ppb for January through 

August 2010.14

Therefore, EPA does not believe the 

modeling performed for the State of 

Colorado’s Denver/NFR area SIP can 

support the conclusion that this area 

should be considered a maintenance 

receptor area for the purposes of 

110(a)(2)(D)(i). The methodology 

developed to identify maintenance 

receptors for the purpose of analyzing 

interference with maintenance with 

respect to the 1997 ozone and PM2.5

NAAQS relies on base period 

monitoring data to identify monitor 

locations that are projected to have 

maintenance problems in 2012. The 

methodology does not identify receptors 

based on modeling data alone. While 

the monitor has not operated long 

enough to account for variability in 

ozone levels, the newly installed 

monitor in the relevant area is reading 

well below the standard and this fact 

further confirms that the modeling 

results and the UAA results do not 

support the conclusion that receptors in 

the DMA/NFR area should be 

considered maintenance receptors for 

the purpose of CAA section 

110(a)(2)(D)(i). 

In conclusion, EPA disagrees with the 

commenter. We have used a fully 

consistent approach in identifying areas 

that may have difficulty in maintaining 

attainment of the NAAQS. It is these 

areas that we have further evaluated to 

see if North Dakota’s emissions would 

interfere with maintenance of the 

NAAQS. 

Comment No. 3—In its comment 

under section C., ‘‘EPA has not Assessed 

New Mexico’s [sic] Interference with 


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15Before addressing the substantive issues raised 

in this comment, we would like to clarify that we 

presume that the reference to New Mexico in the 

comment’s title is a clerical error, and that the 

commenter intended to refer to either Colorado or 

North Dakota. 

Maintenance in the Present,’’ WG asserts 

that EPA’s analysis ignores whether 

North Dakota is, at the present, 

interfering with maintenance of the 

1997 8-hour ozone NAAQS, and the 

1997 PM2.5 NAAQS, in other States. It 

argues EPA erred by considering only 

whether emissions from North Dakota 

will interfere with maintenance in areas 

that by 2012 would be considered 

‘‘maintenance receptors.’’ 

WG argues that this approach is 

inconsistent with the approach taken to 

determine whether New Mexico 

significantly contributes to 

nonattainment in other States (citing 75 

FR 33174–33190) and that this alleged 

inconsistent application ‘‘raises serious 

concerns that EPA is again simply 

finding excuses to avoid requiring North 

Dakota to do its part to limit air 

pollution that adversely affects 

neighboring states, including Colorado.’’ 

They agree that ‘‘EPA should ensure that 

North Dakota does not interfere with 

maintenance or contribute significantly 

to nonattainment in other states in the 

future’’ but argue that ‘‘the agency’s 

duties under Section 110(a)(2)(D)(i)(I) 

apply both in the present and the future. 

EPA’s approach is flawed, WG 

concludes, because EPA identifies 

maintenance areas likely to exist by 

2012 and does not identify maintenance 

areas that currently exist. WG also 

asserts that EPA’s approach ignores 

whether North Dakota is presently 

interfering with maintenance of the 

1997 8-hour ozone NAAQS in 

downwind states.15

EPA Response—EPA disagrees with 

the commenter concerning the 

evaluation of significant contribution 

versus interference with maintenance. 

Section 110(a)(2)(D)(i)(I) of the Clean 

Air Act requires that a state SIP ‘‘contain 

adequate provisions prohibiting * * * 

any source or other type of emission 

activities within the state from emitting 

any air pollutants in amount which will 

contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state with 

respect to any [ ] national primary or 

secondary ambient air quality standard.’’ 

In determining the appropriate year to 

analyze to determine whether emissions 

from North Dakota will interfere with 

maintenance by any other State, EPA 

used an approach upheld by the DC 

Circuit in North Carolina v. EPA. In that 

case, the Court examined EPA’s 

definition of ‘‘will’’ in ‘‘will contribute 

significantly.’’ The placement of the 

word ‘‘will’’ at the end of section 

110(a)(2)(D)(i) clarifies that it applies to 

all of the provisions that follow—both 

those in 110(a)(2)(D)(i)(I) and those in 

110(a)(2)(D)(i)(II). Thus the DC Circuit’s 

discussion of the meaning of the word 

‘‘will’’ in ‘‘will significantly contribute’’ 

also applies to the meaning of the word 

will in ‘‘will * * * interfere with 

maintenance.’’ 

In North Carolina v. EPA, the DC 

Circuit rejected North Carolina’s 

argument that EPA erred in limiting its 

analysis of downwind areas by 

excluding areas that were currently 

monitored nonattainment but projected 

to be in attainment at a future date. Like 

WG argues here, North Carolina had 

argued that EPA was obligated to 

analyze the significant contribution of 

states that were contributing to areas of 

North Carolina that were in 

nonattainment at the time the rule was 

promulgated even though those areas 

were projected to come into attainment 

by the year selected for the future base 

case analysis. In rejecting this argument, 

the DC Circuit explained that the 

approach used by EPA was identical to 

the one used previously in the NOX SIP 

Call and that ‘‘because ‘will’ can mean 

either certainty or indicate the future 

tense,’’ EPA’s approach was reasonable. 

In other words, the court approved 

EPA’s approach that entailed the 

evaluation of interstate transport 

impacts at a future date in time. 

Contrary to the assertions of the 

commenter, EPA believes that 

evaluation of interference with 

maintenance using a future date is the 

most appropriate approach for that 

requirement. As explained in the 

proposed action, the court decision 

affecting the CAIR rule required EPA to 

reevaluate its approach to the interfere 

with maintenance requirement of 

section 110(a)(2)(D) and to develop a 

new approach to give that requirement 

separate meaning. In doing so, EPA has 

developed an approach that necessarily 

requires a number of years of data, and 

an analysis that evaluates where there 

may be difficulties with maintaining 

attainment at a specific point in time, in 

this instance 2012. In the prior action 

cited by WG, EPA’s evaluation of 

whether emissions would significantly 

contribute to nonattainment in other 

states was based on the data available at 

the time of that evaluation and before 

EPA had developed its approach for 

evaluating interference with 

maintenance. It is reasonable and 

appropriate for EPA to use, in this 

rulemaking, the current approach to 

identifying maintenance receptors for 

purposes of section 110(a)(2)(D)(i) that 

EPA developed to be consistent with the 

direction given to EPA in North 

Carolina v. EPA. 

Finally, we note that comments on the 

validity or reasonableness of the 

approach to determining significant 

contribution are not directly relevant to 

this rulemaking. This rulemaking 

addresses only the ‘‘interfere with 

maintenance’’ requirement of section 

110(a)(2)(D)(i). EPA published a prior 

proposal (75 FR 16026) and final rule 

(75 FR 31290) analyzing the North 

Dakota SIP submission for the 

‘‘significant contribution’’ prong of 

section 110(a)(2)(D)(i). 

III. Final Action 

The Environmental Protection Agency 

is approving portions of the Interstate 

Transport of Air Pollution SIP 

submitted by the State of North Dakota 

on April 6, 2009. Specifically, in this 

action EPA is approving the language in 

Section 7.8.1, subsection B., 

‘‘Nonattainment and Maintenance Area 

Impact,’’ that specifically addresses 

element (2) of section 110(a)(2)(D)(i), the 

requirement that the SIP contain 

adequate provisions prohibiting 

emissions from North Dakota from 

interfering with maintenance of the 

NAAQS by any other state. EPA has 

concluded that the evidence evaluated 

by EPA establishes that emissions from 

North Dakota sources do not interfere 

with maintenance of the 1997 8-hour 

ozone or the 1997 PM2.5 NAAQS in any 

other state. Therefore, the State’s SIP 

does not need to include additional 

substantive controls to reduce emissions 

for purposes of section 110(a)(2)(D)(i)(I) 

for these NAAQS. 

IV. 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 


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71028 Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations 

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. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 21, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: November 10, 2010. 

James B. Martin, 

Regional Administrator, Region 8. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart JJ—North Dakota 

■ 2. Section 52.1820 is amended in the 

table in paragraph (e) by revising the 

entry in ‘‘(1)’’ and adding entry ‘‘(22)’’ in 

numerical order to read as follows: 

§ 52.1820 Identification of plan. 

* * * * * 

(e) * * * 

Name of nonregulatory SIP provision 

Applicable 

geographic or 

non-attainment 

area 

State submittal 

date/ 

adopted date 

EPA approval date 

and citation 3 Explanations 

(1) Implementation Plan for the Control 

of Air Pollution for the State of North 

Dakota.

Statewide .............. Submitted: 1/24/ 

72; Adopted: 1/ 

24/72.

5/31/72, 37 FR 

10842.

Excluding subsequent revisions, as 

follows: Chapters 1, 2, 6, 7, 9, 11, 

and 12; Sections 2.11, 3.7, 6.8, 

6.10, 6.11, 6.13, 7.7, and 8.3; subsections 7.8.1.B., 7.8.1.D., and 

8.3.1. Revisions to these non-regulatory provisions have subsequently 

been approved. See below. 

Chapters ................................................

1. Introduction. 

2. Legal Authority. 

3. Control Strategy. 

4. Compliance Schedule. 

............................... Clarification submitted: 6/14/73; 

2/19/74; 6/26/74; 

11/21/74; 4/23/ 

75.

With all clarifications: 3/2/76; 41 

FR 8956.

5. Prevention of Air Pollution 

Emergency Episodes.

7. Review of New Sources and 

Modifications.

8. Source Surveillance.

9. Resources.

10. Inter-governmental Cooperation.

11. Rules and Regulations.

With subsequent revisions to the chapters as follows: 


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Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations 71029 

Name of nonregulatory SIP provision 

Applicable 

geographic or 

non-attainment 

area 

State submittal 

date/ 

adopted date 

EPA approval date 

and citation 3 Explanations 

*******

(22) Section 7.8, Interstate Transport of 

Air Pollution (only portion of 7.8.1.B.).

Statewide .............. Submitted: 4/09/ 

09; Adopted: 4/ 

01/09.

11/22/10 [insert FR 

page number 

where document 

begins].

Includes portions of Subsection 

7.8.1.B., ‘‘Nonattainment and Maintenance Area Impact,’’ that specifically address the ‘‘interference with 

maintenance’’ requirement of CAA 

Section 110(a)(2)(D)(i). 

3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular pro 

[FR Doc. 2010–29244 Filed 11–19–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–1035; FRL–9229–2] 

Approval and Promulgation of State 

Implementation Plans; State of 

Colorado; Interstate Transport of 

Pollution Revisions for the 1997 8-Hour 

Ozone NAAQS: ‘‘Interference With 

Maintenance’’ Requirement 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

State Implementation Plan (SIP) 

revisions submitted by the State of 

Colorado on June 18, 2009. Specifically, 

EPA is approving the portions of the 

‘‘State of Colorado Implementation Plan 

to Meet the Requirements of Clean Air 

Act (CAA) Section 110(a)(2)(D)(i)(I)— 

Interstate Transport Regarding the 1997 

8-Hour Ozone Standard’’ addressing the 

‘‘interference with maintenance’’ 

requirement of section 110(a)(2)(D)(i)(I) 

for the 1997 8-hour ozone National 

Ambient Air Quality Standards 

(NAAQS) by any other state. The 

‘‘interference with maintenance’’ 

requirement of section 110(a)(2)(D)(i)(I) 

prohibits a state’s emissions from 

interfering with maintenance of the 

NAAQS by any other state. This action 

is being taken under section 110 of the 

CAA. 

DATES: Effective Date: This final rule is 

effective December 22, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2007–1035. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov, or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Domenico Mastrangelo, Air Program, 

U.S. Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6416, 

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 Colorado and State 

mean the State of Colorado. 

Table of Contents 

I . Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Review 

I. Background 

On July 18, 1997, EPA promulgated 

new standards for 8-hour ozone and fine 

particulate matter (PM2.5). This action is 

being taken in response to the July 18, 

1997 revision to the 8-hour ozone 

NAAQS. This action does not address 

the requirements for the 1997 PM2.5

NAAQS, the 2006 PM2.5 NAAQS, or the 

2008 8-hour ozone NAAQS; those 

standards will be addressed in a later 

action. 

Section 110(a)(1) of the CAA requires 

states to submit SIPs to address a new 

or revised NAAQS within 3 years after 

promulgation of such standards, or 

within such shorter period as EPA may 

prescribe. Section 110(a)(2) lists the 

elements that such new SIPs must 

address, as applicable, including section 

110(a)(2)(D)(i) which pertains to 

interstate transport of certain emissions. 

Section 110(a)(2)(D)(i) of the CAA 

requires that a state’s SIP must contain 

adequate provisions prohibiting any 

source or other type of emissions 

activity within the state from emitting 

any air pollutant in amounts which will: 

(1) Contribute significantly to 

nonattainment of the NAAQS in any 

other state; (2) interfere with 

maintenance of the NAAQS by any 

other state; (3) interfere with any other 

state’s required measures to prevent 

significant deterioration of air quality; 

or (4) interfere with any other state’s 

required measures to protect visibility. 

On June 18, 2009 the State of 

Colorado submitted a SIP addressing the 

section 110(a)(2)(D)(i)(I) requirements 

(1) and (2), noted above, for the 1997 

8-hour ozone NAAQS. The state based 

its submittal on EPA’s 2006 Guidance 

discussed below. As noted earlier, in 

this rulemaking EPA is addressing the 

requirement that pertains to preventing 

sources in the State from emitting 

pollutants in amounts which will 

interfere with the maintenance of the 

1997 8-hour ozone NAAQS by any other 

state. 

On August 15, 2006, EPA issued its 

‘‘Guidance for State Implementation 

Plan (SIP) Submission 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’’ (2006 Guidance) for SIP 

submissions that states should use to 


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