31290 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 

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 action 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 August 2, 2010. 

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, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: May 20, 2010. 

Ira W. Leighton, 

Acting, Regional Administrator, EPA New 

England. 

■ Part 52 of chapter I, title 40 of the 

Code of Federal Regulations 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 OO—Rhode Island 

■ 2. Section 52.2088 is amended by 

adding paragraph (c) to read as follows: 

§ 52.2088 Control strategy: Ozone. 

* * * * * 

(c) Determination of Attainment. 

Effective July 6, 2010, EPA is 

determining that the Providence (All of 

Rhode Island) 8-hour ozone 

nonattainment area has attained the 

1997 8-hour ozone standard. Under the 

provisions of EPA’s ozone 

implementation rule (see 40 CFR 

51.918), this determination suspends 

the reasonable further progress and 

attainment demonstration requirements 

of section 182(b)(1) and related 

requirements of section 172(c)(9) of the 

Clean Air Act for as long as the area 

does not monitor any violations of the 

1997 8-hour ozone standard. If a 

violation of the 1997 ozone NAAQS is 

monitored in the Providence (All of 

Rhode Island) 8-hour ozone 

nonattainment area, this determination 

shall no longer apply. 

[FR Doc. 2010–13211 Filed 6–2–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2009–0282; FRL–9155–6] 

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: Final rule. 

SUMMARY: The Environmental Protection 

Agency is approving State 

Implementation Plan (SIP) revisions 

submitted by the State of North Dakota 

on April 6, 2009. Specifically, EPA is 

approving revisions to the North Dakota 

air pollution control rules regarding 

prevention of significant deterioration of 

air quality, and partially approving 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). These revisions, referred to as 

the Interstate Transport of Air Pollution 

SIP, address the requirements of Clean 

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

1997 8-hour ozone and 1997 PM2.5

National Ambient Air Quality Standards 

(NAAQS). In this action, EPA is 

approving the North Dakota Interstate 

Transport SIP provisions that address 

the requirement of section 

110(a)(2)(D)(i)(I) that emissions from the 

state’s sources do not ‘‘contribute 

significantly’’ to nonattainment of the 

1997 8-hour ozone NAAQS and the 

1997 PM2.5 NAAQS in any other state. 

In addition, EPA is approving the 

provisions of this SIP that address the 

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

that emissions from the state’s sources 

do not interfere with measures required 

in the SIP of any other state under part 

C of the Clean Air Act (CAA) to prevent 

‘‘significant deterioration of air quality.’’ 

EPA will act at a later date on the North 

Dakota Interstate Transport SIP 

provisions that address the remaining 

two requirements of section 

110(a)(2)(D)(i), that emissions from the 

state’s sources do not ‘‘interfere with 

maintenance’’ of the 1997 8-hour ozone 

and 1997 PM2.5 NAAQS in any other 

state, and do not interfere with 

measures required in the SIP of any 

other state to ‘‘protect visibility.’’ This 

action is being taken under section 110 

of the Clean Air Act. 

DATES: Effective Date: This final rule is 

effective July 6, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2009–0282. All 

documents in the docket are listed on 

the 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 

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 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 31291 

1EPA notes that in the referenced proposed rule 

there were references to the revision of ‘‘NDAC 

subsection 33–15–15–01.02’’ (75 FR 16027). As was 

clear from the context, the references were the 

results of typographical errors. 

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). 

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. Section 110(l) 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background and Purpose 

In a proposed rule action published 

March 31, 2010 EPA proposed approval 

of revisions to the State provisions on 

the prevention of significant 

deterioration (PSD) of air quality in 

subsection 33–15–15–01.2 of the North 

Dakota Administrative Code (NDAC),1

and 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. 

In chapter 33–15–15, NDAC, 

Prevention of Significant Deterioration 

of Air Quality, revisions were made to 

subsection 33–15–15–01.2, Scope. The 

baseline date for incorporation by 

reference of the federal PSD program set 

out at 40 CFR 52.21 was updated to 

August 1, 2007. In addition, various 

administrative corrections and 

clarifications were made. In our 

proposal to approve these revisions, 

EPA stated that the revisions were made 

to make the North Dakota PSD program 

consistent with federal requirements. 

EPA did not receive comments that 

persuade the Agency that the revisions 

are less stringent than or inconsistent 

with federal requirements, and thus 

EPA is approving them in today’s final 

action. 

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. 

In our proposed rule EPA proposed 

partial approval of the North Dakota 

Interstate Transport of Air Pollution SIP 

for the 1997 PM2.5 and 8-hour ozone 

NAAQS. Specifically, EPA proposed 

approval of the North Dakota SIP 

sections that addressed the first and 

third requirements, ‘‘significant 

contribution’’ and ‘‘interference with 

PSD’’ of the Interstate Transport CAA 

provisions. EPA will act at a later date 

on the North Dakota Interstate Transport 

SIP sections that address the remaining 

requirements: ‘‘interference with 

maintenance’’ and ‘‘interference with 

visibility.’’ 

To assess whether emissions from 

North Dakota contribute significantly to 

downwind nonattainment for the 1997 

PM2.5 NAAQS, North Dakota and EPA’s 

technical analysis relied on the results 

of CAIR modeling and on monitoring 

data in neighboring downwind states. 

The CAIR modeling results indicated 

that the State contribution to the closest 

nonattainment area was below the 

‘‘significant contribution’’ threshold. 

Monitoring data showed that in 

downwind states there were no 

monitors violating the 1997 24-hour or 

annual PM2.5 NAAQS. 

To assess whether emissions from 

North Dakota contribute significantly to 

downwind nonattainment for the 1997 

8-hour ozone NAAQS, EPA’s technical 

analysis relied on EPA’s 2006 Guidance, 

recommending consideration of 

available EPA modeling conducted in 

conjunction with CAIR,2 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. Consistent 

with the NOX SIP Call and CAIR, our 

technical analysis assessed the extent of 

ozone transport from North Dakota not 

just for areas designated nonattainment, 

but also for areas in violations of the 

NAAQS. Because EPA did not have 

detailed modeling for North Dakota and 

nearby downwind states, our approach 

did not rely on a quantitative 

determination of North Dakota’s 

contribution but on a weight-ofevidence approach using quantitative 

information such as North Dakota’s 

distance from areas with monitors 

showing violations of the NAAQS, 

modeling results outlining wind vectors 

for regional transport of ozone on high 

ozone days, CAIR modeling results for 

other states, and results of modeling 

studies for the nonattainment areas 

specifying the range of wind directions 

along which contribution of ozone 

transport occurred. Given that the 

assessments for each of these pieces of 

evidence are not individually definitive 

or outcome determinative, EPA 

concluded in its proposed action that 

the various factual and technical 

considerations supported a 

determination of no significant 

contribution from North Dakota 

emissions to the ozone nonattainment 

areas noted above. 

EPA did not receive comments that 

persuade the Agency that there is such 

significant contribution 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 emissions sources do not 

contribute significantly to violations of 

the 1997 8-hour ozone NAAQS in any 

other state. 

II. Response to Comments 

EPA received one letter from 

WildEarth Guardians (WG) and one 

letter from the Sierra Club commenting 

on EPA’s Federal Register action 

proposing approval of the portion of the 

North Dakota Interstate Transport SIP 

that addresses the ‘‘significant 

contribution to nonattainment’’ and PSD 

requirements of CAA Section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

and PM2.5 NAAQS, and specific 

revisions to the air quality control rules 


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3 67 FR 80186 (Dec. 31, 2002); 68 FR 61248 (Oct. 

23, 2003); New York v. U.S. EPA, 413 F.3d 3 (D.C. 

Cir. 2005); New York v. EPA, 443 F.3d 880 (D.C. Cir. 

2006). 

4 ‘‘The EPA implements the statutory PSD 

requirements through two sets of regulations. At 40 

CFR 51.166, EPA has set minimum program 

requirements for States to follow in preparing, 

adopting, and submitting a PSD program for 

inclusion as part of the required SIP pursuant to 

Section 110(c) of the Act. At 40 CFR 52.21, EPA has 

promulgated a Federal PSD program requiring the 

Administrator’s preconstruction review and 

approval of major new or modified stationary 

sources in the absence of an approved State PSD 

program, and for areas such as Indian Lands and 

Outer Continental Shelf areas that are outside of the 

jurisdiction of individual States.’’ 58 FR 31622, 

31623 (June 3, 1993). For states that—unlike North 

Dakota—lack a SIP-approved PSD program, EPA 

may delegate implementation of 52.21 to the state. 

E.g., 73 FR 53401 (Sept. 16, 2008) (‘‘Prior to 

approval of Michigan’s submitted PSD program, 

EPA delegated to Michigan (via delegation letter 

dated September 26, 1988) the authority to issue 

PSD permits through the Federal PSD rules at 40 

CFR 52.21.’’). 

addressed within that proposal. In this 

section EPA responds to the significant 

adverse comments made by the 

commenters. 

Comment No. 1—WG opposed EPA’s 

approval of North Dakota’s revision of 

its PSD program, based on several 

alleged deficiencies in that program. 

Although WG does not explicitly state 

it, in the context of this action, which 

also approves the PSD portion of the 

interstate transport SIP noted above, 

WG’s comments could be taken to argue 

that the alleged deficiencies adversely 

impact the measures required in other 

states to prevent significant 

deterioration of air quality in such 

states. To the extent WG makes this 

argument, EPA responds below. 

As to the first deficiency, WG noted 

that the current federally-enforceable 

version of the North Dakota PSD 

program incorporates 40 CFR 52.21 as it 

stood on October 1, 2003. WG stated 

that the PSD program in North Dakota 

should be amended to reflect the effects 

of court opinions that vacated portions 

of that version of 52.21. 

EPA Response—EPA disagrees with 

the commenter’s argument that the 

North Dakota SIP does not reflect 

current requirements. North Dakota’s 

submittal incorporated 40 CFR 52.21 as 

it stood on August 1, 2007. The August 

1, 2007 version of 40 CFR 52.21 fully 

reflected the effects of federal court 

decisions vacating certain portions of 

NSR rules promulgated in 2002 and 

2003.3 Therefore, EPA believes that the 

North Dakota PSD program approved by 

EPA in this action also reflects the 

effects of those decisions and is 

therefore consistent with federal 

requirements. 

EPA agrees with the implicit 

argument (mentioned above) that certain 

deficiencies in a state’s existing SIP, or 

in a section 110(a)(2)(D) SIP submission 

itself, could affect the approvability of 

the section 110(a)(2)(D) SIP submission 

with respect to the PSD requirement. As 

provided in EPA’s guidance for such SIP 

submissions for the 1997 8-hour ozone 

and PM2.5 NAAQS, EPA made 

recommendations with respect to 

specific SIP revisions that it anticipated 

would be appropriate to address in the 

section 110(a)(2)(D) SIP submissions for 

these NAAQS, whether by reference to 

other submissions already made or 

within the same SIP submission. For 

example, for the requirements of the 

PSD element of section 110(a)(2)(D) for 

these NAAQS, EPA indicated that a 

state’s SIP should reflect the current 

requirements for the implementation of 

the PSD and nonattainment NSR 

requirements for these NAAQS, as a 

means of establishing that the state’s SIP 

would not interfere with measures to 

prevent significant deterioration in 

other states. EPA believes that this 

assessment is fact specific, however, 

and that the question of whether a 

state’s SIP could cause such interference 

in another state must be examined on a 

case by case basis. 

In this instance, because the North 

Dakota program now tracks the 

requirements of 40 CFR 52.21 as of 

August 1, 2007, WG’s concern gives no 

reason to conclude that the revisions 

could interfere with the measures 

required in other states. 

Comment No. 2—As another potential 

defect in the North Dakota PSD 

program, WG noted that the North 

Dakota PSD program adds the sentence: 

‘‘[t]his term does not include effects on 

integral vistas,’’ to 40 CFR 52.21(b)(29), 

that is, the definition of ‘‘adverse impact 

on visibility.’’ WG argued that this 

additional language renders the PSD 

program less stringent than federal 

requirements. 

EPA Response—EPA disagrees with 

WG’s comment. In this comment, and 

others, WG appears to believe that per 

se any deviation from the language of 40 

CFR 52.21 is invalid. However, the 

minimum federal requirements for state 

PSD programs are specified in 40 CFR 

51.166, not in 52.21.4 One way in which 

a state PSD program may meet the 

requirements of 51.166 is to adopt by 

reference the federal PSD program at 

52.21, as North Dakota has here. To 

determine whether deviations from 

52.21 in the North Dakota PSD program 

meet federal requirements for a state 

program, the program is judged against 

the minimum federal requirements for a 

state PSD program given in 51.166. 

As to the requirements of 51.166, 

section 51.166(o)(1) creates a 

requirement for visibility impact 

analysis for new major stationary 

sources and major modifications. 

Federal requirements for protection of 

visibility in state SIPs are set out in 

subpart P of part 51. Procedures for the 

visibility impact analysis required by 

51.166(o)(1) are given in 51.307, which, 

by its placement in subpart P, uses the 

definition of the term ‘‘adverse impact 

on visibility’’ at 51.301. North Dakota’s 

definition is consistent with the federal 

definition; in fact, it matches it 

precisely. In addition, no integral vistas 

have been identified under section 

51.304, so the addition of the sentence 

has no effect. Therefore, EPA disagrees 

with the comment that the North Dakota 

PSD program, by modifying 

52.21(b)(29), does not meet federal 

requirements. 

Comment No. 3—As another potential 

issue, WG noted that the North Dakota 

PSD program deletes references to 

NAAQS at 52.21(d), (k)(1), and 

(v)(2)(iv)(a). WG argued that the 

references must be restored to ensure 

that the NAAQS apply everywhere and 

that PSD increments are federal 

increments. 

EPA Response—The cited references 

are replaced in the North Dakota rules 

by provisions that apply the state 

ambient air quality standards for areas 

within North Dakota’s jurisdiction and 

that apply the NAAQS elsewhere. As 

discussed elsewhere in these responses, 

updates to the state ambient air quality 

standards, consistent with revisions to 

the NAAQS, were submitted by North 

Dakota to EPA on April 1, 2009. EPA 

will be acting on the revision in a 

separate action. Also, the North Dakota 

PSD program incorporates 40 CFR 

52.21(c), which defines the PSD 

increments, by reference without 

modification; therefore, the North 

Dakota PSD increments are the federal 

increments. 

Comment No. 4—As an additional 

concern, WG noted that the North 

Dakota PSD program replaces 40 CFR 

52.21(h) with different state stack height 

requirements. WG argued that these 

requirements must be at least as 

stringent as federal requirements. 

Implicitly, WG argued that these 

different stack height requirements 

would interfere with other states’s 

required PSD measures. 

EPA Response—EPA disagrees with 

this comment. WG did not explain or 

identify any way in which the state 

requirements are less stringent than 

federal requirements. EPA has reviewed 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 31293 

5The commenter refers to section (g) of the 

provision, but from the mention of ‘‘summaries’’ it 

appears the commenter is referring to section (b). 

the North Dakota state stack height 

requirements and finds that the 

requirements are at least as stringent as 

those in 40 CFR 51.166(h), which 

specifies the minimum stack height 

requirements for a state PSD program. 

Therefore, EPA does not believe that the 

provision creates a deficiency in the 

North Dakota PSD program or that the 

North Dakota SIP interferes with 

measures required for prevention of 

significant deterioration in any other 

state for purposes of the 1997 8-hour 

ozone and PM2.5 NAAQS. 

Comment No. 5—WG further argued 

that the North Dakota PSD program 

must include 40 CFR 52.21(l)(1) and 

must update the reference to Appendix 

W to part 51 in order to be consistent 

with current federal law requirements. 

WG also asserted that the North Dakota 

guidelines for air quality modeling are 

unacceptable because they are less 

stringent than applicable federal 

requirements. 

EPA Response—EPA disagrees with 

the commenter’s assessment on this 

point. The federal requirements for 

modeling in a PSD program are set out 

at 40 CFR 51.166(l). The North Dakota 

PSD provision that replaces 52.21(l)(1) 

is consistent with these requirements. 

Furthermore, the provision does not 

specify a particular date for 

incorporation of Appendix W; EPA 

therefore believes no update to the 

reference is necessary. Finally, 51.166(l) 

provides for modification or 

substitution of models in Appendix W 

on a case-by-case or generic basis with 

written approval of the Administrator. 

The Administrator has approved, in 

writing, use of the North Dakota 

guideline on a generic basis by 

approving previous submittals of the 

North Dakota PSD program that 

contained the same provision allowing 

for use of the guideline. Therefore, EPA 

believes that the North Dakota provision 

is consistent with federal requirements 

in 51.166(l). 

Comment No. 6—WG also identified 

analyses for visibility as another alleged 

deficiency in the existing PSD program 

in North Dakota. WG noted that the 

state’s PSD program requires visibility 

analysis for new source review to be 

prepared in accordance with state 

requirements. WG argued that these 

requirements are less stringent than 

federal requirements, and that the 

provision must therefore be deleted. 

EPA Response—EPA disagrees with 

the commenter’s assessment. In this 

instance, WG did not explain or identify 

any way in which the state requirements 

are less stringent than federal 

requirements. The federal requirements 

for visibility analysis procedures for 

new source review in state PSD 

programs are provided in 40 CFR 

51.307. The procedures do not specify a 

particular method for visibility analysis. 

EPA has reviewed the North Dakota 

requirements for visibility analysis and 

finds they are consistent with federal 

requirements. Therefore, this is not a 

basis for disapproval of the North 

Dakota PSD program revision or the 

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

Comment No. 7—WG expressed 

concern with certain public process 

provisions in the North Dakota SIP. In 

particular, WG identified state specific 

provisions for public participation 

replacing those at 52.21(q). WG argued 

that the state should not be allowed to 

provide ‘‘summaries’’ of other materials 

it considered in making its permit 

decisions.5 WG also argued that the state 

provisions should require the 

Department to respond to relevant 

comments. 

EPA Response—EPA disagrees with 

the commenter’s view of these specific 

requirements. The minimum federal 

requirements for public participation in 

a state PSD program are set out in 

51.166(q). The state provision cited by 

WG is consistent with the requirements 

at 51.166(q)(2)(ii); in fact, the provision 

matches 51.166(q)(2)(ii) precisely. 

Therefore, EPA believes that the North 

Dakota PSD program meets federal 

requirements for public participation. 

As such, this is not a basis for 

disapproval of the North Dakota PSD 

program revision or the section 

110(a)(2)(D) submission. 

Comment No. 8—WG identified other 

procedural requirements as potential 

defects in the North Dakota SIP. WG 

noted that the North Dakota PSD 

program adds to 52.21(r)(2) the 

sentence: ‘‘[i]n cases of major 

construction projects involving long 

lead times and substantial financial 

commitments, the department may 

provide by a condition to the permit to 

construct a time period greater than 

eighteen months when such time 

extension is supported by sufficient 

documentation by the applicant.’’ WG 

argued that this provision should be 

removed because it allows major 

sources to be built with stale 

determinations of ambient air impacts 

and best available control technology. 

EPA Response—Federal requirements 

for source obligations in a state PSD 

program are set out at 51.166(r). This 

federal regulatory provision does not 

impose any particular time period for 

validity of a PSD permit. In addition, 

52.21(r)(2) currently provides for 

extensions beyond the given eighteenmonth period, if an applicant makes a 

satisfactory showing that an extension is 

justified. Thus, EPA believes that the 

state regulatory provision cited by the 

commenter is consistent with both 

51.166(r) and 52.21(r)(2). Given this 

conclusion, EPA does not consider this 

a basis for disapproval of the North 

Dakota PSD program revision or the 

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

Comment No. 9—WG also opposed 

EPA’s proposed approval of the North 

Dakota section 110(a)(2)(D) SIP 

submission with respect to PSD 

requirements for the 1997 8-hour ozone 

and PM2.5 NAAQS because the 

submission did not address other, more 

recent NAAQS. WG noted that the 

current EPA-approved version of the 

North Dakota SIP at NDAC 33–15–02 

does not incorporate all current 

NAAQS, including the 2006 PM2.5

NAAQS, the 2008 ozone NAAQS, and 

the 2010 NO2 NAAQS. WG stated its 

concern that the failure to incorporate 

the latest NAAQS implies that these 

NAAQS will not be addressed in 

permitting and planning determinations 

by the state. 

EPA Response—EPA disagrees with 

the commenter on this point. First, in 

this action, EPA is approving the North 

Dakota interstate transport SIP for the 

1997 8-hour ozone and PM2.5 NAAQS; 

EPA is also approving a revision to 

North Dakota’s PSD program. WG does 

not explain how a failure to incorporate 

the current NAAQS in the state ambient 

air quality standards is relevant to EPA’s 

action on the North Dakota interstate 

transport SIP for the 1997 8-hour ozone 

and PM2.5 NAAQS. Thus, the comment 

does not give grounds for disapproval of 

the interstate transport SIP for the 

NAAQS at issue in this rulemaking. 

Furthermore, as noted in the proposal 

for this action, EPA has included the 

revision to North Dakota’s PSD program 

in this action to address an issue 

specifically mentioned in the 2006 

guidance. The guidance recommended 

that in order to satisfy the PSD 

requirement of 110(a)(2)(D)(i), the state’s 

interstate transport SIP, or existing SIP, 

should meet the requirements of the 

Phase II implementation rule for the 

1997 8-hour ozone NAAQS. In 

particular, this means the state’s SIP 

should identify NOX as a precursor to 

ozone, and the SIP revision submitted 

by North Dakota has done so. Thus, the 

current NAAQS are not relevant to this 

action. 

Finally, EPA disagrees that approval 

of this SIP submission implies that 

North Dakota will not take appropriate 

required actions with respect to other, 


emcdonald on DSK2BSOYB1PROD with RULES
31294 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 

6Memorandum 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’’); p. 3. An electronic copy is available for 

review at the regulations.gov web site as Document 

ID No. EPA–R08–OAR–2007–1032.0004.1. 

7 Id. at 3. 

8 Id. 

more recent, NAAQS. Consistent with 

the requirements of the CAA and 

applicable regulations, EPA expects 

North Dakota to consider other more 

recent NAAQS in permitting decisions. 

As additional SIP revisions are 

necessary, EPA anticipates that the state 

will comply, as indeed it has in this 

very action with respect to necessary 

revisions for the 1997 8-hour ozone 

NAAQS. 

Comment No. 10—WG asserted that 

EPA’s proposed approval was based on 

a ‘‘flawed legal standard.’’ According to 

WG, EPA erred in the proposal by 

explaining that various factual or 

technical assessments indicate that it is 

‘‘highly unlikely’’ that emissions from 

North Dakota sources significantly 

contribute to violations of the 1997 8- 

hour ozone NAAQS, or to violations of 

the 1997 PM2.5 NAAQS in other states. 

WG’s position is that EPA cannot 

approve a SIP submission based upon 

‘‘unlikelihood’’ because CAA Section 

110(a)(2)(D)(i)(I) prohibits emissions 

that contribute significantly to 

nonattainment in other States and does 

not allow EPA to approve SIPs simply 

because a state’s emissions are 

‘‘unlikely’’ to contribute significantly to 

nonattainment. 

EPA Response—EPA disagrees with 

WG’s characterization of EPA’s analysis 

and WG’s interpretation of the statutory 

requirements. First, EPA notes that the 

discussion in the proposal was intended 

to present the various factual and 

technical considerations available to 

assess whether there is or is not 

significant contribution to 

nonattainment in other states as a result 

of emissions from North Dakota sources. 

Given that these assessments are not 

individually definitive or outcome 

determinative, EPA believes that it is 

entirely appropriate to present and 

describe the relative probative value of 

the various considerations accurately. 

Second, EPA notes that all such 

technical evaluations are by their nature 

subject to some degree of uncertainty. 

Indeed, the modeling that WG 

elsewhere contends should be the sole 

method for evaluating interstate 

transport is itself but one means of 

evaluating the real world impacts of 

emissions in light of meteorological 

conditions, wind direction, and other 

such variables, and produces a result 

that is itself subject to some degree of 

uncertainty. Third, EPA believes that it 

was also appropriate to describe the 

various factual and technical 

considerations and whether they 

indicated a ‘‘likelihood’’ of significant 

contribution to nonattainment in 

another state because the proposal was 

seeking comment from the public upon 

whether these considerations together 

supported a determination of no such 

significant contribution. EPA did not 

receive comments that persuade the 

Agency that there is such significant 

contribution, and thus in today’s final 

action EPA is making a final regulatory 

determination that North Dakota 

emissions sources do not significantly 

contribute to violations of the 1997 8- 

hour ozone NAAQS, or to violations of 

the 1997 PM2.5 NAAQS in any other 

state, for the reasons explained 

elsewhere in this notice. In other words, 

EPA has concluded that the existing SIP 

for North Dakota already contains 

adequate provisions to prevent emission 

from North Dakota sources from 

significantly contributing to violations 

of the 1997 8-hour ozone NAAQS, or to 

violations of the 1997 PM2.5 NAAQS in 

other states and is therefore approving 

North Dakota’s submission for this 

purpose. 

Comment No. 11—WG argued that 

North Dakota and EPA did not 

appropriately assess impacts to 

nonattainment in downwind states. 

According to WG, North Dakota failed to 

assess significance of downwind 

impacts in accordance with EPA 

guidance and precedent. Although this 

is unclear from the comment, WG 

evidently believes that EPA’s applicable 

guidance for this purpose appears only 

in the 1998 NOX SIP call. WG asserts 

that, based on the precedent of the NOX

SIP Call, the following issues need to be 

addressed in determining whether or 

not an area is significantly contributing 

to nonattainment in downwind States: 

(a) The overall nature of the ozone 

problem; (b) the extent of downwind 

nonattainment problems to which 

upwind States’ emissions are linked; (c) 

the ambient impact of the emissions 

from upwind States’ sources on the 

downwind nonattainment problems; 

and (d) the availability of high costeffective control measures for upwind 

emissions. (63 FR 57356–57376, October 

27, 1998). 

EPA Response—EPA disagrees with 

WG on this point. Section 110(a)(2)(D) 

does not explicitly specify how states or 

EPA should evaluate the existence of, or 

extent of, interstate transport and 

whether that interstate transport is of 

sufficient magnitude to constitute 

‘‘significant contribution to 

nonattainment’’ as a regulatory matter. 

The statutory language is ambiguous on 

its face and EPA must reasonably 

interpret that language when it applies 

it to factual situations before the 

Agency. 

EPA agrees that the NOX SIP Call is 

one rulemaking in which EPA evaluated 

the existence of, and extent of, interstate 

transport. In that action, EPA developed 

an approach that allowed the Agency to 

evaluate whether there was significant 

contribution to ozone nonattainment 

across an entire region that was 

comprised of many states. That 

approach included regional scale 

modeling and other technical analyses 

that EPA deemed useful to evaluate the 

issue of interstate transport on that 

geographic scale and for the facts and 

circumstances at issue in that 

rulemaking. EPA does not agree, 

however, that the approach of the NOX

SIP Call is necessarily the only way that 

states or EPA may evaluate the existence 

of, and extent of, interstate transport in 

all situations, and especially in 

situations where the state and EPA are 

evaluating the question on a state by 

state basis, and in situations where there 

is not evidence of widespread interstate 

transport. 

Indeed, EPA issued specific guidance 

making recommendations to states 

about how to address section 

110(a)(2)(D) in SIP submissions for the 

8-hour ozone and PM2.5 NAAQS. EPA 

issued this guidance document, 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’’ on August 15, 2006.6 This 

guidance document postdated the NOX

SIP Call, and was developed by EPA 

specifically to address SIP submissions 

for the 1997 8-hour ozone and PM2.5

NAAQS. 

Within that 2006 guidance document, 

EPA notes that it explicitly stated its 

view that the ‘‘precise nature and 

contents of such a submission [are] not 

stipulated in the statute’’ and that the 

contents of the SIP submission ‘‘may 

vary depending upon the facts and 

circumstances related to the specific 

NAAQS.’’ 7 Moreover, within that 

guidance, EPA expressed its view that 

‘‘the data and analytical tools available’’ 

at the time of the SIP submission 

‘‘necessarily affect[] the content of the 

required submission.’’ 8 To that end, 

EPA specifically recommended that 

states located within the geographic 

region covered by the ‘‘Clean Air 

Interstate Rule (CAIR),’’ comply with 

section 110(a)(2)(D) for the 1997 8-hour 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 31295 

9 Id. at 5. 

10Specifically, the relevant portion of our 

proposed rule reads: ‘‘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. 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), 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.) 

Finally, the CAIR analysis determined that 

emissions from Minnesota were below the initial 

threshold for including states in CAIR. 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.’’ 75 FR 16030. 

ozone and PM2.5 NAAQS by complying 

with CAIR itself. For states outside the 

CAIR rule region, however, EPA 

recommended that states develop their 

SIP submissions for section 110(a)(2)(D) 

considering relevant information. 

EPA explicitly recommended that 

relevant information for section 

110(a)(2)(D) submissions addressing 

significant contribution to 

nonattainment ‘‘might include, but is 

not limited to, information concerning 

emissions in the State, meteorological 

conditions in the State, the distance to 

the nearest nonattainment area in 

another State, reliance on modeling 

conducted by EPA in determining that 

such State should not be included 

within the ambit of the CAIR, or such 

other information as the State considers 

probative on the issue of significant 

contribution.’’ 9 In addition, EPA 

recommended that states might elect to 

evaluate significant contribution to 

nonattainment using relevant 

considerations comparable to those used 

by EPA in CAIR, including evaluating 

impacts as of an appropriate year (such 

as 2010) and in light of the cost of 

control to mitigate emissions that 

resulted in significant contribution. 

WG did not acknowledge or discuss 

EPA’s actual guidance for section 

110(a)(2)(D) SIP submissions for the 

1997 8-hour ozone and PM2.5 NAAQS, 

and thus it is unclear whether WG was 

aware of it. In any event, EPA believes 

that the North Dakota submission and 

EPA’s evaluation of it was consistent 

with EPA’s guidance for the 1997 8-hour 

ozone and PM2.5 NAAQS. For example, 

as discussed in the proposal notice, the 

State and EPA considered information 

such as monitoring data in North Dakota 

and downwind states, geographical and 

meteorological information, and 

technical studies of the nature and 

sources of nonattainment problems in 

various downwind states. These are 

among the types of information that 

EPA recommended and that EPA 

considers relevant. Thus, EPA has 

concluded that the state’s submission, 

and EPA’s evaluation of that 

submission, meet the requirements of 

section 110(a)(2)(D) and are consistent 

with applicable guidance. 

Finally, EPA notes that the 

considerations the Agency 

recommended to States in the 2006 

Guidance document are consistent with 

the concepts that WG enumerated from 

the NOX SIP Call context: (a) The overall 

nature of the ozone problem; (b) the 

extent of downwind nonattainment 

problems to which upwind State’s 

emissions are linked; (c) the ambient 

impact of the emissions from upwind 

States’ sources on the downwind 

nonattainment problems; and (d) the 

availability of high cost-effective control 

measures for upwind emissions. The 

only distinction in the case of the North 

Dakota submission at issue here would 

be that because the available evidence 

indicates that there is very little 

contribution from emissions from North 

Dakota sources to nonattainment in 

other states, it is not necessary to 

advance to the final step and evaluate 

whether the cost of controls for those 

sources is above or below a certain cost 

of control as part of determining 

whether the contribution constitutes 

‘‘significant contribution to 

nonattainment’’ for regulatory purposes, 

as was necessary in the NOX SIP Call 

and in CAIR. 

Comment No. 12—WG argued that 

EPA’s assessment that North Dakota will 

not significantly contribute to 

nonattainment of the ozone NAAQS in 

downwind States is based primarily on 

modeling prepared in conjunction with 

CAIR, and yet ‘‘EPA admits that CAIR 

only addressed PM2.5 impacts.’’ 

EPA Response—EPA agrees with WG 

that CAIR evaluated only PM2.5 impacts 

for North Dakota. However, EPA 

disagrees that the CAIR ozone modeling 

results are irrelevant to this action: as 

the NPR made clear, it is actually the 

CAIR modeling analyses for ozone 

transport from Minnesota—not North 

Dakota—that EPA considered as 

evidence in this action.10 Furthermore, 

we do not think that within the 

proposed rule of March 31, 2010, EPA 

suggested that the assessment of impacts 

from North Dakota’s emissions to 

nonattainment of the ozone NAAQS in 

downwind States was based primarily 

on modeling prepared in conjunction 

with CAIR. Instead, EPA made clear that 

the CAIR modeling analysis results for 

Minnesota, considered in combination 

with emissions levels in Minnesota and 

North Dakota, and their respective 

distances from the Illinois/Wisconsin 

nonattainment counties, was only one 

piece of relevant evidence in EPA’s 

weight-of-evidence determination. The 

comment seems to reflect a misreading 

of our proposed rule action, or a 

misinterpretation of one of the pieces of 

evidence in our technical analysis. 

Thus, EPA does not see in its proposed 

rule the contradiction alleged by this 

comment. 

Comment No. 13—WG reiterated its 

concern that the North Dakota section 

110(a)(2)(D) submission was deficient 

because it did not strictly follow WG’s 

summary of the structure of the analysis 

of interstate transport in the NOX SIP 

Call: (a) The overall nature of the ozone 

problem; (b) the extent of downwind 

nonattainment problems to which 

upwind States’ emissions are linked; (c) 

the ambient impact of the emissions 

from upwind States’ sources on the 

downwind nonattainment problems; 

and (d) the availability of high costeffective control measures for upwind 

emissions. 

EPA Response—EPA disagrees with 

WG’s view that any analysis of interstate 

transport must follow a specific 

formulaic structure to be approvable. As 

noted above, EPA issued specific 

guidance to states making 

recommendations for section 

110(a)(2)(D) SIP submissions for the 

1997 8-hour ozone and PM2.5 NAAQS. 

Within that guidance, EPA 

recommended various types of 

information that states might wish to 

consider in the process of evaluating 

whether their sources contributed 

significantly to nonattainment in other 

states. EPA has concluded that the 

submission from North Dakota, 

augmented by EPA’s own analysis, 

sufficiently establishes that North 

Dakota sources do not significantly 

contribute to violations of the 1997 8- 

hour ozone and PM2.5 NAAQS in other 

states. As noted above, EPA believes 

that the state’s submission, and EPA’s 

analysis of it, address the same 

conceptual considerations that the 

commenter advocated. 

Comment No. 14—WG asserted that 

North Dakota and EPA provided ‘‘no 

analysis’’ of the contribution from North 

Dakota to downwind states and no 


emcdonald on DSK2BSOYB1PROD with RULES
31296 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 

11 75 FR 16030. 

12 Michigan v. U.S. EPA, 213 F.3d 663, 674–681 

(D.C. Cir. 2000); North Carolina v. EPA, 531 F.3d 

896, 913–916 (D.C. Cir. 2008) (upholding EPA 

approach to determining threshold despite 

remanding other aspects of CAIR). 

‘‘actual assessment’’ of the significance 

of any such contribution. 

EPA Response—EPA disagrees with 

WG’s position. WG again assumes that 

section 110(a)(2)(D) explicitly requires 

the type of modeling analysis that the 

commenter advocates throughout its 

comments. Because WG apparently 

views the NOX SIP Call as the 

applicable guidance, WG contends that 

any analytical approach that is not 

identical to that approach is 

impermissible. In addition, WG 

overlooks the fact that in other actions 

based upon section 110(a)(2)(D), EPA 

has also used a variety of analytical 

approaches, short of modeling, to 

evaluate whether specific states are 

significantly contributing to violations 

of the NAAQS in another state (e.g., the 

west coast states that EPA concluded 

should not be part of the geographic 

region of the CAIR rule based upon 

qualitative factors, and not by the zero 

out modeling EPA deemed necessary for 

some other states). 

In the proposed approval, EPA 

explained that other forms of available 

information were sufficient to make the 

determination that there is no 

significant contribution from North 

Dakota sources to downwind 

nonattainment of the 1997 8-hour ozone 

NAAQS. As stated in the proposal: 

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-ofevidence 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.11

EPA acknowledged that the various 

forms of information considered in the 

proposal (such as distance, orientation 

of surface and regional transport winds, 

back trajectory analyses, monitoring 

data) were not individually outcome 

determinative, but concluded that when 

taken together served to establish that 

North Dakota sources do not 

significantly contribute to downwind 

nonattainment of the 1997 8-hour ozone 

NAAQS in other states. Thus, contrary 

to WG’s assertion, EPA did perform an 

‘‘analysis’’ and an ‘‘assessment’’ that was 

a reasonable basis for its conclusion that 

emissions from North Dakota do not 

contribute significantly to downwind 

ozone nonattainment, using a 

combination of quantitative data and 

qualitative analyses. EPA does not agree 

that only the type of analysis advocated 

by WG could adequately evaluate the 

issue and support a rational 

determination in this instance. 

Comment No. 15—WG objected to 

EPA’s proposed approval because North 

Dakota assessed impacts in downwind 

states by considering monitoring data in 

those states as a means of evaluating 

significant contribution to 

nonattainment. In other words, WG is 

concerned that North Dakota did not 

assess impacts in areas that have no 

monitor. WG likewise objected to EPA’s 

‘‘endorsement’’ of this approach. WG 

argued that this reliance on monitor 

data is inconsistent with both section 

110(a)(2)(D) and with EPA’s guidance, 

by which the commenter evidently 

means the NOX SIP Call. In support of 

this assertion, WG quoted from the NOX

SIP Call proposal in which EPA 

addressed the proper interpretation of 

the statutory phrase ‘‘contribute 

significantly to nonattainment:’’ 

The EPA proposes to interpret this term to 

refer to air quality and not to be limited to 

currently-designated nonattainment areas. 

Section 110(a)(2)(D) does not refer to 

‘‘nonattainment areas,’’ which is a phrase that 

EPA interprets to refer to areas that are 

designated nonattainment under section 107 

(section 107 (d)(1)(A)(I)). 

According to WG, this statement, and 

similar ones in the context of the final 

NOX SIP Call rulemaking, establish that 

States and EPA cannot utilize 

monitoring data to evaluate the 

existence of, and extent of, interstate 

transport. Furthermore, WG interprets 

the reference to ‘‘air quality’’ in these 

statements to support its contention, 

amplified in later comments, that EPA 

must evaluate significant contribution 

in areas in which there is no monitored 

nonattainment. 

EPA Response—EPA disagrees with 

WG’s arguments. First, WG 

misunderstands the point that EPA was 

making in quoted statement from the 

NOX SIP Call proposal (and that EPA 

has subsequently made in the context of 

CAIR). When EPA stated that it would 

evaluate impacts on air quality in 

downwind states, independent of the 

current formal ‘‘designation’’ of such 

downwind states, it was not referring to 

air quality in the absence of monitor 

data. EPA’s point was that it was 

inappropriate to wait for either initial 

designations of nonattainment for a new 

NAAQS under section 107(d)(1), or for 

a redesignation to nonattainment for an 

existing NAAQS under section 

107(d)(3), before EPA could assess 

whether there is significant contribution 

to nonattainment of a NAAQS in 

another state. 

For example, in the case of initial 

designations, section 107(d) 

contemplates a process and timeline for 

initial designations that could well 

extend for two or three years following 

the promulgation of a new or revised 

NAAQS. By contrast, section 110(a)(1) 

requires states to make SIP submissions 

that address section 110(a)(2)(D) and 

interstate transport ‘‘within 3 years or 

such shorter period as the Administrator 

may prescribe’’ of EPA’s promulgation of 

a new or revised NAAQS. This schedule 

does not support a reading of section 

110(a)(2)(D) that is dependent upon 

formal designations having occurred 

first. This is a key reason why EPA 

determined that it was appropriate to 

evaluate interstate transport based upon 

monitor data, not designation status, in 

the CAIR rulemaking. 

WG’s misunderstanding of EPA’s 

statement concerning designation status 

evidently caused WG to believe that 

EPA’s assessment of interstate transport 

in the NOX SIP Call was not limited to 

evaluation of downwind areas with 

monitors. This is simply incorrect. In 

both the NOX SIP Call and CAIR, EPA 

evaluated significant contribution to 

nonattainment as measured or predicted 

at monitors. For example, in the 

technical analysis for the NOX SIP Call, 

EPA specifically evaluated the impacts 

of emissions from upwind states on 

monitors located in downwind states. 

The NOX SIP Call did not evaluate 

impacts at points without monitors, nor 

did the CAIR rulemaking. EPA believes 

that this approach to evaluating 

significant contribution is correct under 

section 110(a)(2)(D), and EPA’s general 

approach to this threshold 

determination has not been disturbed by 

the courts.12

Finally, EPA disagrees with WG’s 

argument that the assessment of 

significant contribution to downwind 

nonattainment must include evaluation 

of impacts on non-monitored areas. 

First, neither section 110(a)(2)(D)(i)(I) 

provisions, nor the EPA guidance issued 

for the 1997 8-hour ozone NAAQS on 

August 15, 2006 support WG’s position, 

as neither refers to any requirement or 

recommendation to assess air quality in 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 31297 

13 2006 Guidance, p. 5. 

14 ‘‘Based on this approach, we predicted that in 

the absence of additional control measures, 47 

counties with air quality monitors [emphasis ours] 

would violate the 8-hour ozone NAAQS in 2010. 

***’’ From the CAIR proposed rule of January 30, 

2004 (69 FR 4566, 4581). The NOX SIP call 

proposed rule action reads: ‘‘* * * For current 

nonattainment areas, EPA used air quality data for 

the period 1993 through 1995 to determine which 

counties are violating the 1-hour and/or 8-hour 

NAAQS. These are the most recent 3 years of fully 

quality assured data which were available in time 

for this assessment,’’ 62 FR 60336. 

15The presentation is available for review as 

Document ID # EPA–R08–OAR–2007–1032–0007.8 

at Regulations.gov, Docket ID # EPA–R08–OAR– 

2009–0282. 

16Stoeckenius, T.E., C.A. Emery, T.P. Shah, J.R. 

Johnson, L.K. Parker, A.K. Pollack, 2009. ‘‘Air 

Quality Modeling Study for the Four Corners 

Region.’’ Prepared for the New Mexico Environment 

Department, Air Quality Bureau, Santa Fe, NM, by 

ENVIRON International Corporation, Novato, CA. 

17The southwestern area referred to by the 

commenter includes portions of Washington, Iron, 

Kane, and Garfield Counties. 

non-monitored areas.13 The same focus 

on monitored data as a means of 

assessing interstate transport is found in 

the NOX SIP Call and in CAIR. An 

initial step in both the NOX SIP Call and 

CAIR was the identification of areas 

with current monitored violations of the 

ozone and/or PM2.5 NAAQS.14 The 

subsequent modeling analyses for 

NAAQS violations in future years (2007 

for the SIP Call and 2010 for CAIR) 

likewise evaluated future violations at 

monitors in areas identified in the 

initial step. Thus, WG is simply in error 

that EPA has not previously evaluated 

the presence and extent of interstate 

transport under section 110(a)(2)(D) by 

focusing on monitoring data. Indeed, 

such monitoring data was at the core of 

both of these efforts. In neither of these 

rulemakings did EPA evaluate 

significant contribution to 

nonattainment in areas in which there 

was no monitor. This is reasonable and 

appropriate, because data from a 

properly placed federal reference 

method monitor is the way in which 

EPA ascertains that there is a violation 

of the 1997 8-hour ozone or PM2.5

NAAQS in a particular area. Put another 

way, in order for there to be significant 

contribution to nonattainment for the 

1997 8-hour ozone or PM2.5 NAAQS, 

there must be a monitor with data 

showing a violation of that NAAQS. 

EPA has concluded that by considering 

data from monitored areas, its 

assessment of whether emissions from 

North Dakota contribute significantly to 

ozone or PM2.5 nonattainment in 

downwind States is consistent with the 

2006 Guidance, and with the approach 

used by both the CAIR rule and the NOX

SIP Call. 

Comment No. 16—In support of its 

comments that EPA should assess 

significant contribution to 

nonattainment in nonmonitored areas, 

WG argued that existing modeling 

performed by another organization 

‘‘indicates that large areas of neighboring 

states will likely violate the ozone 

NAAQS.’’ According to WG, these likely 

‘‘violations’’ of the ozone NAAQS were 

predicted for the year 2018, as reflected 

in a slide from a July 30, 2008 

presentation before the Western 

Regional Air Partnership (‘‘Review of 

Ozone Performance in WRAP Modeling 

and Relevant to Future Regional Ozone 

Planning’’). WG asserted that: ‘‘Slide 28 

of this presentation displays projected 

4th highest 8-hour ozone reading for 

2018 and indicates that air quality 

throughout large portions of the West 

will exceed and/or violate the 1997 

ozone NAAQS. * * *’’ 15 In short, WG 

argues that modeling performed by the 

WRAP establishes that there will be 

violations of the 1997 8-hour ozone 

NAAQS in 2018 in non-monitored areas 

Western states. 

EPA Response—EPA disagrees with 

this comment on several grounds. First, 

as explained in response to other 

comments, EPA does not agree that it is 

appropriate to evaluate significant 

contribution to nonattainment for the 

1997 8-hour ozone NAAQS by modeling 

ambient levels in areas where there is 

no monitor to provide data to establish 

a violation of the NAAQS in question. 

Section 110(a)(2)(D) does not require 

such an approach, EPA has not taken 

this approach in the NOX SIP Call or 

other rulemakings under section 

110(a)(2)(D), and EPA’s prior analytical 

approach has not been disturbed by the 

courts. 

Second, WG’s own description of the 

ozone concentrations predicted for the 

year 2018 as projecting ‘‘violations’’ of 

the ozone NAAQS is inaccurate. Within 

the same sentence, quoted above, slide 

28 is described as displaying the 

projected 4th max ozone reading for the 

year 2018, and as indicating that ‘‘* * * 

air quality * * * will exceed or violate 

[our emphasis] the 1997 ozone 

NAAQS.’’ By definition, a one year 

value of the 4th max above the NAAQS 

only constitutes an exceedance of the 

NAAQS; to constitute a violation of the 

1997 8-hour ozone NAAQS, the 

standard must be exceeded for three 

consecutive years at the same monitor. 

Thus, even if the WRAP presentation 

submitted by WG were technically 

sound, the conclusion drawn from it by 

WG is inaccurate and does not support 

its claim of projected violations of the 

NAAQS in western States south and 

west of North Dakota. 

EPA has also reviewed the WRAP 

presentation submitted by WG, and 

believes that there was a substantial 

error in the WRAP modeling software 

that led to overestimation of ground 

level ozone concentrations. A recent 

study conducted by Environ for the 

Four Corners Air Quality Task Force 

(FCAQTF; Stoeckenius et al., 2009) has 

demonstrated that excessive vertical 

transport in the CMAQ and CAMx 

models over high terrain was 

responsible for overestimated ground 

level ozone concentrations due to 

downward transport of stratospheric 

ozone.16 Environ has developed revised 

vertical velocity algorithms in a new 

version of CAMx that eliminated the 

excessive downward transport of ozone 

from the top layers of the model. This 

revised version of the model is now 

being used in a number of applications 

throughout high terrain areas in the 

West. In conclusion, EPA believes that 

this key inadequacy of the WRAP 

model, noted above, makes it 

inappropriate support for WG’s 

concerns about large expanses of 8-hour 

ozone nonattainment areas projected for 

2018 in areas without monitors. 

Finally, it must be noted that even if 

the ozone exceedances predicted for the 

year 2018 were based on a sound 

modeling analysis, even the closest 

areas showing exceedances are several 

hundred miles southwest of North 

Dakota and, as indicated in our 

proposed rule, the northeasterly winds 

required for ozone transport from North 

Dakota to these areas are a rarity (75 FR 

16030). 

Comment No. 17—As additional 

support for its assertion that EPA should 

require modeling to assess ambient 

levels in unmonitored portions of other 

States, WG relied on an additional study 

entitled the ‘‘Uinta Basin Air Quality 

Study (UBAQS).’’ The commenter 

argued that the UBAQS study further 

supports its concern that limiting the 

evaluation of downwind impacts only to 

areas with monitors fails to assess ozone 

nonattainment in non-monitored areas. 

According to the commenter, UBAQS 

modeling results show that: (a) The 

Wasatch front region is currently 

exceeding and will exceed in 2012 the 

1997 8-hour ozone NAAQS; and (b) 

based on 2005 meteorological data, 

portions of the four counties in the 

southwest corner of Utah are also 

currently in nonattainment and will be 

in nonattainment in 2012.17

EPA Response—As noted above, EPA 

does not agree that it is appropriate to 

assess significant contribution to 

nonattainment for the 1997 8-hour 


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31298 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 

18See ‘‘UBAQS,’’ pages 4–27 to 4–29. 

19EPA. 2007. Guidance on the Use of Models and 

other Analyses for Demonstrating Attainment of Air 

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

Office of Air Quality Planning and Standards, Air 

Modeling Group. Research Triangle Park, North 

Carolina (http://www.epa.gov/scram001/guidance/ 

guide/final-03-pm-rh-guidance.pdf). 

20 DVC × RRF = DVF. 

21See UBAQS, p. 4–28. 

22See, for example: ‘‘Annual Report. North 

Dakota Air Quality Monitoring, Data Summary, 

2008.’’ dated June 2009, North Dakota Department 

of Health. A is available for review at the 

regulations.gov Web site, under Docket ID No EPA– 

R08–OAR–2009–0282. 

23See our assessment of ozone transport from 

North Dakota emissions to Colorado, 75 FR 16030. 

ozone NAAQS in the way advocated by 

WG. Even taking the UBAQS modeling 

results at their face value, however, EPA 

does not agree that the 8-hour ozone 

nonattainment (current and projected) 

in the Wasatch Front Range area 

supports the commenter’s concerns 

about the need to evaluate the 

possibility of significant contribution to 

nonattainment in non-monitored areas. 

EPA sees several problems with the 

commenter’s interpretation of the 

UBAQS analysis results for counties in 

Utah’s southwestern corner: ‘‘based on 

2005 meteorological data, portions of 

Washington, Iron, Kane, and Garfield 

Counties are also in nonattainment and 

will be in nonattainment in 2012.’’ 

First, WG’s interpretation of the 

predicted ozone concentrations shown 

in Figures 4–3a and 4–3b (pages 5 and 

6 of the comment letter) is inaccurate. 

A close review of the legend in these 

figures indicates that the highest ozone 

concentrations predicted by the model 

for portions of the counties noted above 

are somewhere between 81.00 and 85.99 

ppb, but a specific concentration is not 

provided. If the ozone concentration is 

actually predicted to be smaller than or 

equal to 84.9 ppb, then the area is 

attaining; if it is predicted as greater 

than 84.9 ppb then it is not attaining. 

This means that current and predicted 

design values for the southwestern Utah 

area identified in Figures 4–3a and 4– 

3b could both be in attainment or both 

in nonattainment, or one of them in 

attainment and the other in 

nonattainment, for the 1997 8-hour 

ozone NAAQS. 

Second, even if the design values 

predicted for these unmonitored areas 

were at the top of the 81.00–85.99 ppb 

range, their reliability would remain 

questionable. The UBAQS itself 

identifies and illustrates major 

shortcomings of its modeling analysis, 

only to neglect assessing the impact of 

these shortcomings on the modeling 

results.18 The study deviates in at least 

two significant ways from EPA’s 2007 

guidance on SIP modeling.19 One issue 

is the UBAQS modeling reliance on 

fewer than the five years of data 

recommended by EPA to generate a 

current 8-hour ozone design value 

(DVC). UBAQS relaxed this requirement 

so that sites with as little as 1 year of 

data were included as DVCs in the 

analysis. The other issue is the 

computation of the relative responsive 

factor (RRF), which directly affects the 

modeling’s future design value (DVF).20

Again due to unavailability of data 

satisfying EPA’s recommendation that 

the RRF be based on a minimum of five 

days of ozone concentrations above 85 

ppb, UBAQS modeling uses RRFs based 

on one or more days of ozone 

concentrations above 70 ppb.21 EPA 

concludes that the modeling analysis 

results used by the WG are unreliable 

for projecting non-attainment status and 

therefore do not support its comments. 

Finally, the predicted attainment 

status of unmonitored areas in the 

southwestern corner of Utah is not 

relevant to our assessment of whether 

emissions from North Dakota contribute 

significantly to downwind ozone 

nonattainment. The counties identified 

that draw the commenter’s attention are 

almost a 1,000 miles from Bismarck, 

North Dakota, in a southwestern 

direction. As indicated in our response 

to the previous comment, the 

northeasterly winds required for ozone 

transport from North Dakota to these 

areas are a rarity. 

Comment No. 18—In support of its 

arguments that EPA should not limit 

assessment of significant contribution to 

nonattainment through evaluation of 

impacts at monitors, but include, 

through modeling analysis, impacts 

where there are no such monitors, the 

commenter cited a past statement by 

EPA to the effect that the monitor 

network in the western United States 

needs to be expanded. The quoted 

statements included EPA’s observation 

that ‘‘[v]irtually all States east of the 

Mississippi River have at least two to 

four non-urban O3 monitors, while 

many large mid-western and western 

States have one or no non-urban 

monitors.’’ 74 FR 34,525 (July 16, 2009). 

From this statement, the commenter 

argues that it is not appropriate for EPA 

to limit evaluation of significant 

contribution to nonattainment in other 

states relying on monitoring data 

instead of modeling ambient levels. The 

comment also indicates that States with 

few or no non-urban monitors include 

‘‘Idaho, Nebraska, Nevada, Montana, and 

Oregon, which may be affected by North 

Dakota emissions.’’ 

EPA Response—EPA does not 

disagree that there are relatively few 

monitors in the western states, and that 

relatively few monitors are currently 

located in non-urban areas of western 

states. However, the commenter failed 

to note that the quoted statement from 

EPA concerning the adequacy of 

western monitors came from the 

Agency’s July 16, 2009 proposed 

rulemaking entitled ‘‘Ambient Ozone 

Monitoring Regulations: Revisions to 

Network Design Requirements.’’ This 

statement was thus taken out of context, 

because EPA was in that proposal 

referring to changes in state monitoring 

networks that it anticipates will be 

necessary in order to implement not 

[emphasis added] the 1997 8-hour ozone 

NAAQS that are the subject of this 

rulemaking, but rather the next iteration 

of the ozone NAAQS for which there are 

concerns that there will be a need to 

evaluate ambient levels in previously 

unmonitored areas of the western 

United States. The fact that additional 

monitors may be necessary in the future 

for newer ozone NAAQS does not 

automatically mean that the existing 

ozone monitoring networks are 

insufficient for the 1997 8-hour ozone 

NAAQS, as the commenter implies. 

Indeed, states submit annual monitor 

network reports to EPA and EPA 

evaluates these to insure that they meet 

the applicable requirements. For 

example, North Dakota itself submits 

just such a report on an annual basis, 

and EPA reviews it for adequacy.22 All 

other states submit comparable reports. 

Finally, EPA disagrees that monitored 

and unmonitored areas in the western 

States identified above by the 

commenter may be affected by 

emissions from North Dakota. As noted 

in the proposed rule, the easterly or 

northeasterly winds that would be 

needed to transport emissions from 

North Dakota to these States are rare.23

Similarly rare is the possibility of 

impacts on these States from North 

Dakota’s emissions. 

Comment No. 19—WG objected to 

EPA’s proposed approval of the North 

Dakota SIP submission because neither 

North Dakota nor EPA performed a 

specific modeling analysis to assure that 

emissions from North Dakota sources do 

not significantly contribute to 

nonattainment in downwind States. 

According to the commenter, EPA’s 

decision to use a qualitative approach to 

determine whether emissions from 

North Dakota contribute significantly to 

downwind nonattainment is not 

consistent with its own preparation of a 

regional model to evaluate such impacts 

from other states as part of CAIR. 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 31299 

24WG’s April 9, 2010 comment letter, pp. 9–10. 

Complete versions of the EPA comment letters 

referenced here were attached to the comment as 

Exhibits 3 through 6, and are viewable on the 

Regulations.gov Web site as Documents ID No. 

EPA–R08–OAR–2007–1032–0007.4 through 1032– 

0007.7. 

25See: 69 FR 4581, January 30, 2004. 

EPA Response—EPA disagrees with 

WG’s belief that only modeling can 

establish whether or not there is 

significant contribution from one state 

to another. First, as noted above, EPA 

does not believe that section 

110(a)(2)(D) requires modeling. While 

modeling can be useful, EPA believes 

that other forms of analysis can be 

sufficient to evaluate whether or not 

there is significant contribution to 

nonattainment. For this reason, EPA’s 

2006 Guidance recommended other 

forms of information that states might 

wish to evaluate as part of their section 

110(a)(2)(D) submissions for the 1997 8- 

hour ozone NAAQS. EPA has concluded 

that its qualitative approach to the 

assessment of significant contribution to 

downwind ozone nonattainment is 

consistent with EPA’s 2006 Guidance. 

Second, EPA notes that WG’s position 

also reflects a misunderstanding of the 

approach EPA used in the remanded 

CAIR due to WG’s exclusive focus on 

those States that were selected for the 

modeling analysis. A wider 

understanding of the CAIR approach 

would recognize that EPA decided, 

based on other criteria, that it was not 

necessary to conduct modeling for 

certain western states: ‘‘[i]n analyzing 

significant contribution to 

nonattainment, we determined it was 

reasonable to exclude the Western U.S., 

including the States of Washington, 

Idaho, Oregon, California, Nevada, Utah, 

and Arizona from further analysis due 

to geography, meteorology, and 

topography. Based on these factors we 

concluded that the PM2.5 and 8-hour 

ozone nonattainment problems are not 

likely to be affected significantly by 

pollution transported across these 

States’ boundaries * * *.’’ (69 FR 4581, 

January 30, 2004). 

EPA has taken a similar approach to 

assess whether North Dakota contributes 

significantly to violations of the 1997 8- 

hour ozone and PM2.5 NAAQS in 

downwind states. In the proposed 

action, EPA explained several forms of 

substantive and technically valid 

evidence that led to the conclusion that 

emissions from North Dakota sources do 

not contribute significantly to 

nonattainment, in accordance with the 

requirement of Section 110(a)(2)(D). 

Comment No. 20—In further support 

of its argument that EPA must use 

modeling to evaluate whether there is 

significant contribution to 

nonattainment under section 

110(a)(2)(D), WG noted that EPA itself 

asks other agencies to perform such 

modeling in other contexts. As 

examples, the commenter cited four 

examples in which EPA commented on 

actions by other agencies in which EPA 

recommended the use of modeling 

analysis to assess ozone impacts prior to 

authorizing oil and gas development 

projects. As supporting material, the 

comment includes quotations from and 

references to EPA letters to Federal 

Agencies on assessing impacts of oil and 

gas development projects.24 WG 

questioned why EPA’s recommendation 

for such an approach in its comments to 

other Federal Agencies, did not result in 

its use of the same approach to evaluate 

the impacts from North Dakota 

emissions and to insure compliance 

with Section 110(a)(2)(D)(i)(I). The 

commenter reasoned that the emissions 

that would result from the actions at 

issue in the other agency decisions, 

such as selected oil and gas drilling 

projects, would be of less magnitude 

and importance than the statewide 

emissions at issue in an evaluation 

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

EPA Response—As explained above, 

EPA disagrees with WG’s fundamental 

argument that modeling is required to 

evaluate significant contribution to 

nonattainment, whether by section 

110(a)(2)(D), by EPA guidance, or by 

past EPA precedent. EPA’s applicable 

guidance made recommendations as to 

different approaches that can lead to the 

satisfaction of the interstate transport 

requirements for significant 

contribution to nonattainment in other 

states. Even EPA’s own CAIR analysis 

relied on a combination of qualitative 

and quantitative analyses, as explained 

above. As indicated in our response to 

Comment No. 19, the CAIR analysis 

excluded the Western States on the 

based on a qualitative assessment of the 

region’s topography, geography and 

meteorology.25

EPA believes that the commenter’s 

references to EPA statements 

commenting on the actions of other 

agencies are inapposite. As WG is 

aware, those comments were made in 

the context of the evaluation of the 

impacts of various federal actions 

pursuant to NEPA, not the Clean Air 

Act. As explained above, in the context 

of section 110(a)(2)(D), EPA does not 

agree that modeling is always required 

to make that different evaluation, and 

EPA itself has relied on other more 

qualitative evidence when it deemed 

that evidence sufficient to reach a 

reasoned determination. 

Comment No. 21—In further support 

of its argument that EPA should always 

require modeling to evaluate significant 

contribution to nonattainment, WG 

referred to EPA regulations governing 

nonattainment SIPs. The commenter 

noted 40 CFR 51.112(a)(1), which states 

that: ‘‘[t]he adequacy of a control 

strategy shall be demonstrated by means 

of applicable air quality models, data 

bases, and other requirements specified 

in appendix W of [Part 51] (Guideline 

on Air Quality Models).’’ The 

commenter argues that this regulation 

appears to support the commenter’s 

position that modeling is required to 

satisfy the significant contribution 

element of 110(a)(2)(D). 

EPA Response—EPA disagrees with 

this comment. The cited language 

implies that the need for control strategy 

requirements has already been 

demonstrated, and sets a modeling 

analysis requirement to demonstrate the 

adequacy of the control strategy 

developed to achieve the reductions 

necessary to prevent an area’s air quality 

from continuing to violate the NAAQS. 

EPA’s determination that emissions 

from North Dakota do not contribute 

significantly to nonattainment for the 

1997 8-hour ozone standard in any other 

states eliminates the need for a control 

strategy aimed at satisfying the section 

110(a)(2)(D) requirements. Moreover, 

EPA interprets the language at 40 CFR 

51.112(a): ‘‘[e]ach plan must 

demonstrate that the measures, rules, 

and regulations contained in it are 

adequate to provide for the timely 

attainment and maintenance of the 

national standard that it implements,’’ to 

refer to modeling for attainment 

demonstrations, an integral part of 

nonattainment area SIPs under part D of 

the CAA. This interpretation was 

upheld by the Sixth Circuit Court of 

Appeals. Wall v. U.S. EPA, 265 F.3d 

426, 436 (6th Cir. 2001). Thus, the 

commenter’s cited regulation is not 

relevant to EPA’s technical 

demonstration assessing whether 

emissions from North Dakota contribute 

significantly to nonattainment in any 

other states under section 110(a)(2)(D). 

Comment No. 22—WG also objected 

to EPA’s proposed approval of the North 

Dakota submission on the grounds that 

it was based upon a ‘‘weight-of-evidence 

analysis,’’ and that no such weight of 

evidence test appears in the CAA 

generally, or in section 110(a)(2)(D) in 

particular. According to the commenter, 

there is no regulatory support for using 

a ‘‘weight-of-evidence’’ approach to 

assessing air quality impacts. The 

commenter asserted that EPA neither 

cited nor quoted regulations or policy 

that provides for this, and failed to lend 


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31300 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 

26See: 69 FR 4581, January 30, 2004. 

27 75 FR 16029, March 31, 2010. 

28 ‘‘As discussed above, EPA applied a multifactor approach to identify the amounts of NOX

emissions that contribute significantly to 

nonattainment * * *.’’ 1998 SIP Call, 63 FR 57381, 

October 27, 1998. 

29 ‘‘If emission violations are excused during 

startups, shutdowns, or malfunctions, and thus 

essentially unregulated during those periods, there 

is no way to determine that emissions from sources 

in North Dakota will not contribute significantly to 

other States’ nonattainment of the NAAQS or 

problems with PSD compliance such as exceeding 

increments, adversely impacting air quality related 

values in Class I areas, or adversely impacting 

vegetation and visibility in all areas, short of 

cumulative modeling exercise assuming that all 

source are emitting at their physical limits without 

controls. See, e.g., Clean Air Act Sections 

110(a)(2)(A) and (D), 42 U.S.C. Sections 

7410(a)(2)(A) and (D).’’ 

any specific meaning to the phrase 

through its proposed approval. Finally, 

the commenter asserted, without 

explaining, its belief that EPA failed to 

address ‘‘several relevant factors related 

to the determination of whether North 

Dakota contributes significantly to 

nonattainment undermines the agency’s 

reliance on any ‘weight-of-evidence’ 

approach.’’ 

EPA Response—EPA agrees with WG 

that neither the CAA generally, nor 

section 110(a)(2)(D) specifically, include 

the explicit phrase ‘‘weight of evidence.’’ 

It simply does not follow, however, that 

it is inappropriate for EPA to use such 

an approach in this context. As 

explained above, section 110(a)(2)(D) 

does not explicitly stipulate how EPA 

may assess whether there is a significant 

contribution to nonattainment in other 

states. Through past actions such as 

CAIR, EPA has used a weight-ofevidence approach to exclude some 

States from further consideration.26 As 

described above, EPA’s guidance issued 

for the 1997 8-hour ozone NAAQS, the 

Agency specifically recommended types 

of information that states might wish to 

rely upon to evaluate the presence of, 

and extent of, interstate transport for 

this purpose. EPA believes that a weight 

of evidence approach that properly 

considers appropriate evidence is 

sufficient to make a valid determination, 

as in this case. 

Specifically, EPA’s technical analysis 

in the March 31, 2010 proposed rule 

action underscores its reliance on 

implementation policies set in the EPA 

2006 Guidance: ‘‘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 [our 

emphasis].’’ 27 On the basis of this 

guidance, North Dakota and EPA chose 

to assess the impacts of emissions from 

North Dakota sources on the closest 

downwind nonattainment areas 

(Denver, Colorado, and Illinois/ 

Wisconsin counties along the 

southwestern shore of Lake Michigan) 

through a weight of evidence approach 

using quantitative information such as 

North Dakota’s distance from areas with 

monitors showing violation of the 

NAAQS, modeling results outlining 

wind vectors for regional transport of 

ozone on high ozone days, back 

trajectory analyses for the downwind 

nonattainment areas closest to North 

Dakota, and results of modeling studies 

for the nonattainment areas specifying 

the range of wind directions along 

which contributing ozone transport 

occurred. EPA’s use of a weight of 

evidence analysis is by no means 

unusual for the assessment of ozone 

impacts through long range transport. 

The same analytical framework was 

used in the 1998 NOX SIP Call, as 

indicated under Section II.C., entitled 

‘‘Weight-of-Evidence Determination of 

Covered States.’’ 28 The differences 

between the specific types of evidence 

used in the NOX SIP Call and in our 

analysis do not invalidate the use of the 

weight-of-evidence approach. 

As for the commenter’s argument that 

EPA ‘‘fails to lend any specific meaning 

to the phrase through its proposed 

approval,’’ the Agency’s technical 

analysis described in the proposal did 

specify the characteristics, including 

limitations, of a weight of evidence 

analysis: ‘‘[f]urthermore * * * 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 of the 1997 8-hour ozone 

standard in any other state,’’ (75 FR 

16034). 

Finally, as to the commenter’s 

assertion that EPA failed to consider 

‘‘several relevant factors’’ and thus failed 

to conduct an appropriate weight of 

evidence evaluation, EPA cannot weigh 

the validity of this comment in the 

absence of an explanation of what these 

factors might be. 

Comment No. 23—The Sierra Club 

opposed the proposed approval on the 

grounds that the existing North Dakota 

SIP includes problematic provisions. 

For example, the Sierra Club pointed to 

provisions that it alleges will result in 

additional emissions that could 

significantly contribute to 

nonattainment of the NAAQS in other 

states. For example, Sierra Club argued 

that: 

‘‘if emission violations during startup, 

shutdown, or malfunctions (SSM) escape 

enforcement, there is no way to determine 

that emissions from sources in North Dakota 

will not contribute significantly to other 

States’ nonattainment of the NAAQS or 

problems with PSD compliance such as 

exceeding increments, short of cumulative 

modeling exercise assuming that all source 

are emitting at their physical limits without 

controls. See, e.g., Clean Air Act Sections 

110(a)(2)(A) and (D), 42 U.S.C. Sections 

7410(a)(2)(A) and (D).’’ 29

EPA Response—EPA understands the 

concerns raised by the commenter, but 

does not believe that any such excess 

emissions would in and of themselves 

constitute significant contribution to 

nonattainment in another state. EPA 

notes that its technical analysis for the 

significant contribution element in our 

proposal was not premised upon 

distinguishing between legal and illegal, 

or permissible and impermissible, 

emissions from North Dakota sources. 

EPA’s technical analysis, and the 

conclusion based on the weight of the 

evidence, did not depend on the precise 

amount of emissions from North Dakota, 

and did not turn upon some portion of 

those emissions as being the result of 

emissions during SSM events. Instead, 

EPA’s evaluation was focused upon 

other relevant information that 

pertained to distance, wind direction, 

and the air quality status of areas in 

downwind states. Thus, any additional 

emissions from SSM events would not 

change the analysis or EPA’s conclusion 

that emissions from North Dakota do not 

significantly contribute to 

nonattainment in any other state. 

Furthermore, as noted below, the 

current version of the North Dakota 

provision relating to SSM, NDAC 33– 

15–01–13, does not create any 

exemption from emissions limits and 

does not excuse violations. PSD permit 

applicants and PSD permittees in North 

Dakota are subject to the current version 

of the state’s regulation. Therefore, 

Sierra Club’s concerns regarding excess 

emissions from sources subject to PSD 

are moot and do not change EPA’s 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 31301 

30Memorandum from Steven A. Herman, 

Assistant Administrator for Enforcement and 

Compliance Assurance, and Robert Perciasepe, 

Assistant Administrator for Air and Radiation, 

‘‘State Implementation Plans: Policy Regarding 

Excess Emissions During Malfunctions, Startup, 

and Shutdown’’ (Sept. 20, 1999). 

conclusion that the North Dakota SIP 

has adequate provisions to prohibit 

emissions from North Dakota from 

interfering with other states’ required 

PSD programs. 

Comment No. 24—As potential SIP 

defects affecting approvability of the 

section 110(a)(2)(D) SIP submission, 

both WG and the Sierra Club pointed to 

the North Dakota Administrative Code 

rule NDAC 33–15–01–07 that allows the 

North Dakota Department of Health 

(NDDH) to grant variances to emission 

limits if compliance ‘‘would cause 

undue hardship, would be 

unreasonable, impractical, or not 

feasible under the circumstances.’’ WG 

adds that this variance provision is 

inappropriate and would allow 

additional emissions that may 

contribute significantly to 

nonattainment or interfere with PSD 

provisions in other States. 

EPA Response—EPA agrees that this 

rule should be revised to provide that 

variances are only effective for federal 

law purposes when adopted as a SIP 

revision approved by EPA (or this 

provision should be removed from the 

SIP), and EPA plans to work with the 

State to clarify the SIP on this point. 

EPA is aware that this process requires 

action by the North Dakota legislature 

before the NDDH will be able to remove 

the Variance provisions from the State 

SIP and submit an appropriate revision 

to EPA. 

However, EPA does not believe that 

this existing variance provision 

provides a basis for disapproval of the 

SIP under the facts and circumstances 

here. North Dakota has informed EPA 

that the variances granted by the NDDH 

under the provision during the last 15 

years were only for open burning 

requests. In these cases, before granting 

a variance the NDDH requested input 

from the local fire department and 

health agency offices. North Dakota has 

stated that the variance provision 

cannot be used to avoid permitting 

requirements or to violate emissions 

limits. Furthermore, North Dakota has 

confirmed that the provision has not 

been applied to PSD permits, minor 

NSR permits, Title V permits, or minor 

operating permits, and EPA expects that 

such will be the case while it vigorously 

works with the State for its removal 

from the North Dakota SIP. 

Moreover, EPA also disagrees with 

WG’s additional comment that this 

variance provision specifically allows 

emissions that may contribute 

significantly to nonattainment or 

interfere with PSD provisions in other 

States. There is no language in rule 

NDAC 33–15–01–07 that reflects the 

commenter’s interpretation. 

Given the limited scope and usage of 

the variance provision, EPA concludes 

that it does not constitute interference 

with other states’ required PSD 

programs. Furthermore, it does not 

affect EPA’s factual determination that 

emissions from North Dakota do not 

significantly contribute to 

nonattainment in other states. 

Comment No. 25—WG also expressed 

concern that NDAC 33–15–01–13(1) 

specifically allows a source to shut 

down air pollution control equipment 

for maintenance and to continue 

operations, so long as notification is 

provided to North Dakota. WG argued 

that such an exemption to pollution 

control equipment is not acceptable 

under the CAA. 

EPA Response—EPA believes that the 

commenter is referring to provisions in 

the previous version of the provision 

that is no longer operative. The 

provision has been superseded by a 

revision adopted by the State on April 

1, 2009 and submitted to EPA on April 

6, 2009. EPA is planning to take action 

on the submission in the near future. 

The revised NDAC 33–15–01–13.1 

includes at 33–15–01–13(1)(f) language 

that addresses the commenter’s concern: 

‘‘[n]othing in this subsection shall in any 

manner be construed as authorizing or 

legalizing the emissions of air 

contaminants in excess of the rate 

allowed by this article [NDAC 33–15] or 

a permit issued pursuant to this article.’’ 

As noted above, North Dakota has 

revised the provision and it currently is 

in effect. Thus, even before EPA takes 

action on the submittal of the revision, 

PSD permit applicants and PSD 

permittees must comply with the 

revised provision, which removes the 

exemption. North Dakota has confirmed 

that the revised provision is used in 

PSD permitting. Therefore, EPA believes 

that the superseded provision does not 

constitute interference with other states’ 

required PSD measures. Furthermore, 

the provision—regardless of its status— 

does not affect EPA’s factual 

determination that emissions from 

North Dakota do not significantly 

contribute to nonattainment in other 

states. 

Comment No. 26—WG also argued 

that Rule NDAC 33–15–01–13(2) 

implies an exemption to compliance 

with emission limits in the event of a 

malfunction. According to the 

commenter, this rule not only implies 

an exemption for malfunction leading to 

a violation that lasts less than 24 hours, 

but gives the state unlimited discretion 

to allow a malfunction leading to a 

violation to last as long as ten days. 

EPA Response—EPA again disagrees, 

because the commenter is evidently 

objecting to a previous version of this 

provision that is no longer operative. 

The provision was superseded by a 

revision to this rule adopted by the State 

on April 1, 2009 and submitted to EPA 

on April 6, 2009. EPA plans to take 

action on the submission in the near 

future. Under the revised provision the 

ten-day grace period has been removed, 

and the provisions only address 

notification requirements without any 

references to or exemptions of excess 

emissions. 

North Dakota has revised the 

provision and it is no longer in effect. 

Thus, even before EPA takes action on 

the submittal of the revision, PSD 

permit applicants and PSD permittees 

must comply with the revised provision, 

which removes the ten-day grace period. 

Therefore, EPA believes that the 

superseded provision does not 

constitute interference with other states’ 

required PSD measures. Furthermore, 

the provision—regardless of its status— 

does not affect EPA’s factual 

determination that emissions from 

North Dakota do not significantly 

contribute to nonattainment in other 

states. 

Comment No. 27—The Sierra Club 

expressed concern that the revised 

version of NDAC 33–15–01–13(2)(c) 

submitted by the state to EPA ‘‘does not 

make clear that such enforcement 

discretion is limited to the imposition of 

civil penalties and does not potentially 

enable sources to avoid injunctive 

remedies regarding excess emissions.’’ 

The Sierra Club also indicated that in 

the revised language of rule NDAC 33– 

15–01–13(2)(c) ‘‘the required elements of 

proof in the source’s report fall short of 

the rigorous proof requirements 

specified in EPA policy.’’ 

EPA Response—As noted above, the 

State submitted the referenced revisions 

to EPA on April 6, 2009, and the public, 

including the Sierra Club, will have an 

opportunity to submit substantive 

comments about this provision when 

EPA proposes action on it, as planned 

for the near future. EPA invites the 

Sierra Club to resubmit the comment at 

that time so that EPA may properly 

respond to it. EPA notes, however, that 

the Sierra Club appears to argue that 

certain portions of the 1999 EPA 

guidance for the affirmative defense 

approach to unavoidable 

malfunctions 30 apply to the North 


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31See Memorandum from Kathleen M. Bennett, 

Assistant Administrator for Air, Noise, and 

Radiation, ‘‘Policy on Excess Emissions During 

Startup, Shutdown, Maintenance, and 

Malfunctions’’ (Sept. 28, 1982); Memorandum from 

Kathleen M. Bennett, Assistant Administrator for 

Air, Noise, and Radiation, ‘‘Policy on Excess 

Emissions During Startup, Shutdown, Maintenance, 

and Malfunctions’’ (Feb. 15, 1983) (clarifying 1982 

memorandum). 

Dakota revision. As stated in that 

guidance, the enforcement discretion 

approach endorsed by EPA in earlier 

guidance 31 remains valid, and North 

Dakota selected the enforcement 

discretion approach. In any event, EPA 

is not acting upon that April 6, 2009, 

submission at this time. 

Comment No. 28—WG and the Sierra 

Club also expressed concern about a 

provision in the North Dakota SIP 

related to failure of a continuous 

emission monitoring system (CEMS). 

See NDAC § 33–15–01–13(3). WG and 

the Sierra Club both argued that the 

provision is contrary to Title IV of the 

CAA and the regulations at 40 CFR Part 

75 implementing Title IV. WG 

apparently believed that EPA cannot 

approve the North Dakota SIP section 

110(a)(2)(D) revision until the provision 

is removed or revised. 

EPA Response—EPA disagrees with 

WG’s conclusions on this issue. As to 

the significant contribution element of 

110(a)(2)(D)(i), as noted above, once 

EPA has determined—as it has here— 

that emissions from North Dakota do not 

significantly contribute to 

nonattainment in any other state, no 

substantive modification of North 

Dakota’s SIP is required to eliminate any 

emissions. As to the PSD element of 

110(a)(2)(D)(i), the requirements of Part 

75 relate to Title IV, the acid rain title 

of the Clean Air Act. These 

requirements are simply not relevant to 

the North Dakota PSD program or to the 

PSD element of 110(a)(2)(D)(i). 

Comment No. 29—As part of its 

objection to the proposed action, the 

Sierra Club identified a North Dakota 

SIP provision that authorizes North 

Dakota to allow violations of ambient air 

quality standards in certain 

circumstances. See NDAC § 33–15–02– 

07(4). 

EPA Response—EPA disagrees that 

this provision provides a basis for 

disapproval of the section 110(a)(2)(D) 

submission. The provision does allow 

for certain exceedances of certain state 

ambient air quality standards. However, 

it does not allow for exceedances of the 

applicable federal NAAQS. Therefore, 

EPA concludes that the provision does 

not constitute interference with other 

states’ required PSD programs. 

Furthermore, the provision does not 

affect EPA’s factual determination that 

emissions from North Dakota do not 

significantly contribute to 

nonattainment in other states. 

Comment No. 30—WG also identified 

certain provisions in the North Dakota 

SIP creating exceptions to certain 

opacity limits as a concern in the 

context of action on the section 

110(a)(2)(D) submission. See NDAC 

§ 33–15–03–04(4), (5). WG described the 

provisions as ‘‘blanket exemptions’’ and 

argued that because visible emissions 

are often used as an indicator for 

particulate matter, the exemptions ‘‘fail 

to prohibit emissions that could 

contribute significantly to 

nonattainment or interfere with PSD 

requirements.’’ WG therefore argued that 

EPA cannot approve the proposed SIP 

revision unless the exemptions are 

removed or revised. 

EPA Response—EPA does not endorse 

the exceptions cited by WG, and EPA’s 

action here should not be construed as 

an approval of these exceptions, which 

are not the subject of this action. EPA 

disagrees, however, with WG’s 

conclusions about the impact of such 

exceptions on today’s action. First, the 

exceptions are not ‘‘blanket exemptions’’ 

from all opacity limits: By the express 

terms of NDAC 33–15–03–04, the 

exceptions apply only to the numeric 

opacity limits specified in NDAC 33– 

15–03–01, –02, –03, and –04. They do 

not create an exception from any 

requirements PSD may impose related 

to opacity. 

Furthermore, the specific numeric 

opacity limits are unrelated to emissions 

limits imposed by PSD, under which 

BACT is determined on a case-by-case 

basis. Thus, the provisions cited by WG 

do not create any exception from BACT 

emissions limits or any other PSD 

requirements. As a result, the 

exceptions are not relevant to the 

requirements of the PSD element of 

110(a)(2)(D)(i). As to the significant 

contribution element of 110(a)(2)(D)(i), 

as noted elsewhere, once EPA has 

factually determined—as it has here— 

that emissions from North Dakota do not 

significantly contribute to 

nonattainment in any other state, no 

modification of North Dakota’s SIP is 

required. 

Comment No. 31—As additional 

problematic provisions in the North 

Dakota SIP, WG and Sierra Club 

identified provisions in the North 

Dakota SIP creating exceptions to 

certain particulate matter emissions 

limits. See NDAC § 33–15–05–01(2)(a). 

WG argued that the provisions allow the 

state discretion to exempt sources from 

compliance during temporary 

breakdowns or cleaning of air pollution 

control equipment, and that therefore 

the North Dakota SIP fails to prohibit 

emissions that contribute significantly 

to nonattainment in other states, or that 

interfere with other states’ required PSD 

measures. Sierra Club argued that the 

provision violates EPA policy and 

creates a broader exception than 

allowed by the enforcement discretion 

or affirmative defense approaches to 

unavoidable malfunctions. 

EPA Response—EPA does not endorse 

the exceptions cited by the commenters, 

which EPA notes are not the subject of 

this action. EPA disagrees, however, 

with the commenters’ conclusions. 

First, as to PSD requirements: The 

provision cited by the commenters 

creates an exception only to numeric, 

process-based emissions limits specified 

in Table 3 of NDAC 33–15–05–01. The 

provision does not create an exception 

from any PSD requirements, including 

BACT emissions limits for particulate 

matter. Furthermore, these specific, 

numeric, process-based limits are 

unrelated to PSD requirements, under 

which BACT is determined on a caseby-case basis. Thus, the exceptions in 

33–15–05–01(2)(a) do not create any 

exception from BACT emissions limits 

or other PSD requirements. As a result, 

the exceptions are not relevant to the 

requirements of the PSD element of 

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

As to the significant contribution 

element of 110(a)(2)(D)(i), EPA disagrees 

with WG that EPA cannot approve the 

North Dakota interstate transport SIP 

until the provision is removed or 

revised. As noted elsewhere, once EPA 

has determined—as it has here—that 

emissions from North Dakota do not 

significantly contribute to 

nonattainment in any other state, no 

modification of North Dakota’s SIP is 

required. 

Comment No. 32—The Sierra Club 

commented on a provision in the North 

Dakota SIP related to reporting of excess 

emissions of sulfur dioxide and other 

sulfur compounds. See NDAC § 33–15– 

06–05. The Sierra Club asserted that the 

provision ‘‘contains unacceptable 

language’’ and argued the SIP should be 

revised to make clear that the reporting 

requirement does not authorize or 

exempt excess emissions. Sierra Club 

also implied that this issue makes it 

impossible to determine whether 

emissions from North Dakota 

significantly contribute to 

nonattainment in other states and 

whether the state’s SIP would interfere 

with measures required in other states 

to prevent significant deterioration of air 

quality with repect to the 1997 8-hour 

ozone and PM2.5 NAAQS. 

EPA Response—The Sierra Club did 

not identify any particular phrase in the 


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existing regulatory provision as 

unacceptable, so EPA presumes the 

reference to unacceptable language is to 

the absence of additional clarifying 

language. EPA disagrees that it is 

necessary to revise the provision in 

order to approve the North Dakota 

interstate transport SIP. The provision 

does not create any explicit exemption, 

and EPA believes it creates no implicit 

exemption. As the Sierra Club agrees, 

the provision simply requires sources to 

report excess emissions of sulfur 

dioxide and other sulfur compounds 

during periods of startup, shutdown, 

and malfunction. A reporting 

requirement is not an exemption from 

emissions limits. 

Comment No. 33—WG objected to 

EPA’s proposed approval because 

‘‘North Dakota’s SIP, as written, simply 

does not contain any language that 

literally prohibits emissions that 

contribute significantly to 

nonattainment in any other state.’’ The 

commenter also notes that EPA did not 

assess whether the SIP does or does not 

contain such provisions. The 

commenter appears to believe that 

110(a)(2)(D)(i) requires a state SIP to 

contain explicit provisions literally 

prohibiting emissions that contribute 

significantly to nonattainment in any 

other state, and that, in order to approve 

the North Dakota interstate transport 

SIP, EPA must examine the SIP to 

determine whether it does contain such 

specific words. 

EPA Response—EPA disagrees with 

the commenter’s interpretation of the 

statutory requirements. Section 

110(a)(2)(D)(i) has no language that 

requires a SIP to contain literal 

provisions prohibiting significant 

contribution to nonattainment in any 

other state, or, for that matter, to contain 

any particular words or generic 

prohibitions. Instead, EPA believes that 

the statute requires a state’s SIP to 

contain substantive emission limits or 

other provisions that in fact ensure that 

sources located within the state will not 

produce emissions that have such an 

effect in other states. Therefore, EPA 

believes that satisfaction of the 

‘‘significant contribution’’ requirement is 

not to be demonstrated through a literal 

requirement for a prohibition of the type 

advocated by the commenter. 

EPA’s past application of section 

110(a)(2)(D) did not require the literal 

prohibition advocated by the 

commenter. For example, in 1998 NOX

SIP call (63 FR 57356, October 27, 1998) 

EPA indicated that ‘‘the term ‘prohibit’ 

means that SIPs must eliminate those 

amounts of emissions determined to 

contribute significantly to 

nonattainment * * * ’’ As a result, the 

first step of the process to determine 

whether this statutory requirement is 

satisfied is the factual determination of 

whether a state’s emissions contribute 

significantly to nonattainment in 

downwind areas. See 2005 CAIR Rule 

(70 FR 25162) and 1998 NOX SIP Call 

(63 FR 57356). If this factual finding is 

in the negative, as is the case for EPA’s 

assessment of the contribution from 

emissions from North Dakota, then 

section 110(a)(2)(D)(i)(I) does not 

require any changes to a state’s 

provisions. If, however, the evaluation 

reveals that there is such a significant 

contribution to nonattainment in other 

states, then EPA requires the state to 

adopt substantive provisions to 

eliminate those emissions. The state 

could achieve these reductions through 

traditional command and control 

programs, or at its own election, through 

participation in a cap and trade 

program. Thus, EPA’s approach in this 

action is consistent with the Agency’s 

interpretation of 110(a)(2)(D)(i) in the 

2006 guidance, the CAIR Rule, and the 

NOX SIP call, none of which required 

the pro forma literal ‘‘prohibition’’ of the 

type advocated by the commenter. 

Comment No. 34—WG argues that the 

requirements for stationary source 

permitting in the North Dakota SIP are 

‘‘riddled with vagueness, discretion, 

uncertainty, and unenforceability,’’ and 

are inadequate to ensure that sources in 

North Dakota will not significantly 

contribute to nonattainment in other 

states. 

EPA Response—As discussed above, 

the first step of the process to determine 

whether the ‘‘significant contribution’’ 

requirement is satisfied is the factual 

determination of whether a State’s 

emissions contribute significantly to 

nonattainment in downwind areas. If 

the factual finding is in the negative, as 

is the case for EPA’s assessment of the 

contribution from emissions from North 

Dakota, then section 110(a)(2)(D)(i)(I) 

does not require any changes to a state’s 

provisions. As discussed above, EPA’s 

approach in this action is consistent 

with the Agency’s interpretation of 

110(a)(2)(D)(i) in the 2006 guidance, the 

CAIR Rule and the NOX SIP Call. 

Therefore, EPA disagrees with the 

comment that EPA cannot approve the 

North Dakota interstate transport SIP 

unless EPA addresses specific 

provisions and state guidelines for 

permitting stationary sources. 

Comment No. 35—The commenter 

argued that EPA cannot approve the 

section 110(a)(2)(D) submission from 

North Dakota because the state and EPA 

did not comply with 110(l). Evidently, 

the commenter believes that the section 

110(a)(2)(D) submission is a revision to 

the SIP that will interfere with 

attainment of the 2006 PM2.5 NAAQS 

and the 2008 ozone NAAQS. And, 

although it is not clear, the comment 

could be taken to make the same point 

for North Dakota’s revision of its PSD 

program. The commenter argues that a 

section 110(l) analysis must consider all 

NAAQS once they are promulgated, and 

argues that EPA took the same position 

in proposing to disapprove a PM10

maintenance plan. 

EPA Response—EPA agrees that a 

required section 110(l) analysis must 

consider the potential impact of a 

proposed SIP revision on attainment 

and maintenance of all NAAQS that are 

in effect and impacted by a given SIP 

revision. However, EPA disagrees that it 

failed to comply with the requirements 

of section 110(l) or that section 110(l) 

requires disapproval of the SIP 

submission at issue here. 

Section 110(l) provides in part that: 

‘‘[t]he Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress * * *, or 

any other applicable requirement of this 

chapter.’’ EPA has consistently 

interpreted Section 110(l) as not 

requiring a new attainment 

demonstration for every SIP submission. 

EPA has further concluded that 

preservation of the status quo air quality 

during the time new attainment 

demonstrations are being prepared will 

prevent interference with the states’ 

obligations to develop timely attainment 

demonstrations. 70 FR 58134, 58199 

(October 5, 2005); 70 FR 17029, 17033 

(April 4, 2005); 70 FR 53, 57 (January 3, 

2005); 70 FR 28429, 28431 (May 18, 

2005). 

North Dakota’s submission is the 

initial submission by the state to 

address the significant contribution to 

nonattainment element of 110(a)(2)(D)(i) 

for the 1997 8-hour ozone and PM2.5

NAAQS. This submission does not 

revise or remove any existing emissions 

limit for any NAAQS, or any other 

existing substantive SIP provisions 

relevant to the 1997 8-hour ozone and 

PM2.5 NAAQS. Simply put, it does not 

make any substantive revision that 

could result in any change in emissions. 

As a result, the submission does not 

relax any existing requirements or alter 

the status quo air quality. Therefore, 

approval of the North Dakota interstate 

transport SIP will not interfere with 

attainment or maintenance of any 

NAAQS. 

As to the PSD program, the North 

Dakota revision updates the 

incorporation date of 40 CFR 52.21 from 

October 1, 2003, to August 1, 2007. The 


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32 67 FR 80186 (Dec. 31, 2002); 68 FR 61248 (Oct. 

23, 2003); New York v. U.S. EPA, 413 F.3d 3 (D.C. 

Cir. 2005); New York v. EPA, 443 F.3d 880 (D.C. Cir. 

2006). 

changes to § 52.21 in that period do not 

relax any PSD requirements. In fact, the 

primary substantive change was the 

recognition of NOX as a precursor to 

ozone, a change that strengthens PSD 

requirements. Other changes included 

(as noted elsewhere in EPA’s response 

to comments) recognition of the effects 

of federal cases vacating certain aspects 

of NSR rules promulgated in 2002 and 

2003.32 These changes do not relax any 

PSD requirements and in most instances 

strengthen them. Therefore, approval of 

the revision of the North Dakota PSD 

program will not interfere with 

attainment or maintenance of the 

NAAQS. 

EPA’s discussion in the notice cited 

by the commenter is consistent with this 

interpretation. In the cited action, EPA 

noted that ‘‘Utah ha[d] either removed or 

altered a number of stationary source 

requirements,’’ creating the possibility of 

a relaxation of SIP requirements 

interfering with attainment, a possibility 

that is not present here. See 74 FR 

62727 (Dec. 1, 2009). Thus, the action 

cited by the commenter is clearly 

distinguishable. 

The commenter did not provide any 

specific basis for concluding that 

approval of this SIP submission would 

interfere with attainment or 

maintenance of a NAAQS, or with any 

other applicable requirement of the 

Clean Air Act. EPA concludes that 

approval of the submission will not 

make the status quo air quality worse, 

and is in fact consistent with the 

development of an overall plan capable 

of meeting the Act’s attainment 

requirements. Accordingly, even 

assuming that section 110(l) applies to 

this submission, EPA finds that 

approval of the submission is consistent 

with the requirements of section 110(l). 

III. Section 110(l) 

Section 110(l) of the Clean Air Act 

states that a SIP revision cannot be 

approved if the revision would interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress towards attainment of 

the NAAQS or any other applicable 

requirements of the Act. In this action, 

EPA is approving the portions of the 

North Dakota interstate transport SIP 

that address the ‘‘significant 

contribution’’ and PSD elements of 

section 110(a)(2)(D)(i) for the 1997 8- 

hour ozone and PM2.5 NAAQS; EPA is 

also approving a revision to the North 

Dakota PSD program. As discussed 

above in EPA’s response to comments, 

the portions of the interstate transport 

SIP that EPA is approving do not revise 

or remove any existing emissions limit 

for any NAAQS, or any other existing 

substantive SIP provisions relevant to 

the 1997 8-hour ozone and PM2.5

NAAQS. Furthermore, as also discussed 

above, the revision to the North Dakota 

PSD program does not relax or remove 

any PSD requirement and in most cases 

strengthens those requirements. As a 

result, the SIP revision does not relax 

any existing requirements or alter the 

status quo air quality. Finally, EPA has 

determined that the revision is 

consistent with all applicable federal 

requirements and will not interfere with 

requirements of the Act related to 

administrative or procedural provisions. 

Therefore, the revision does not 

interfere with attainment or 

maintenance of the NAAQS or other 

applicable requirements of the Act. 

IV. 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: (a) The 

introductory language in the State SIP 

Section 7.8; (b) the ‘‘Overview’’ language 

in subsection A., Section 7.8.1; (c) the 

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).’’ As part of this 

action EPA is also approving revisions 

to the prevention of significant 

deterioration provisions in subsection 

33–15–15 of the NDAC. 

EPA has concluded that the State’s 

submission, and additional evidence 

evaluated by EPA, establish that 

emissions from North Dakota sources do 

not significantly contribute to 

nonattainment 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. In addition, EPA has 

concluded that with the specific 

revisions addressed in this action, the 

State’s SIP now contains adequate 

provisions to prevent emissions from 

the State’s sources from interfering with 

measures required in the SIP of any 

other state under part C of the CAA to 

prevent ‘‘significant deterioration of air 

quality,’’ in accordance with section 

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

V. 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, 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 31305 

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 August 2, 2010. 

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: May 17, 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 to read 

as follows: 

■ a. In the table in paragraph (c) by 

revising the entry for ‘‘33–15–15–01.2.’’ 

■ b. In the table in paragraph (e) by 

revising the entry in ‘‘(1)’’ and adding 

entry ‘‘(21)’’ in numerical order to read 

as follows: 

§ 52.1820 Identification of plan. 

* * * * * 

(c) * * * 

STATE OF NORTH DAKOTA REGULATIONS

State citation Title/subject State 

effective date EPA approval date and citation 1 Explanations 

*******

33–15–15–01.2 ................................ Scope ......................................... 4/1/09 6/3/10, 75 FR 31290 .......................

* *;*****

1 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 provision. 

(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; portions of subsection 7.8.1.B., subsections 7.8.1.D., and 

8.3.1. Revisions to these 

non-regulatory provisions 

have subsequently been 

approved. See below. 

Chapters: 


emcdonald on DSK2BSOYB1PROD with RULES
31306 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations 

Name of nonregulatory 

SIP provision 

Applicable 

geographic or 

non-attainment 

area 

State submittal date/ 

adopted date 

EPA approval date and 

citation 3 Explanations 

1. Introduction ...........................

2. Legal Authority 

3. Control Strategy 

4. Compliance Schedule 

5. Prevention of Air Pollution 

Emergency Episodes 

7. Review of New Sources and 

Modifications 

8. Source Surveillance 

9. Resources 

......................... 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. 

10. Inter-governmental Cooperation 

11. Rules and Regulations 

With subsequent revisions to 

the chapters as follows: 

* * * * * * * 

(21) Section 7.8, Interstate Transport of Air Pollution (only 7.8.1.A., 

portions of 7.8.1.B., and 7.8.1.C., 

see explanation.) 

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

Adopted: 4/01/09. 

6/3/10 75 FR 31290 ........... Includes Section 7.8, subsection Portions of 7.8.1 

as indicated below: 

7.8.1.A, ‘‘Overview,’’ the 

language of Subsection 

7.8.1.B., ‘‘Nonattainment 

and Maintenance Area 

Impact,’’ that specifically 

addresses the ‘‘significant 

contribution to nonattainment’’ requirement of 

CAA Section 

110(a)(2)(D)(i), and all of 

7.8.1.C. 

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 provision. 

[FR Doc. 2010–13051 Filed 6–2–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–1032; FRL–9155–5] 

Approval and Promulgation of State 

Implementation Plans; State of 

Colorado; Interstate Transport of 

Pollution Revisions for the 1997 8-hour 

Ozone NAAQS: ‘‘Significant 

Contribution to Nonattainment’’ 

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. These 

revisions, referred to as the Colorado 

Interstate Transport SIP, address the 

requirements of Clean Air Act section 

110(a)(2)(D)(i)(I) for the 1997 8-hour 

ozone National Ambient Air Quality 

Standards (NAAQS). In this action EPA 

is approving the Colorado Interstate 

Transport SIP non-regulatory provisions 

that address the requirement of section 

110(a)(2)(D)(i)(I) that emissions from the 

state’s sources do not ‘‘contribute 

significantly’’ to nonattainment of the 

1997 8-hour ozone NAAQS in any other 

state. EPA will act at a later date on the 

Colorado Interstate Transport SIP 

provisions that address the requirement 

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

emissions from the state’s sources do 

not ‘‘interfere with maintenance’’ of the 

1997 8-hour ozone NAAQS in any other 

state. This action is being taken under 

section 110 of the Clean Air Act. 

DATES: Effective Date: This final rule is 

effective July 6, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2007–1032. 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, 8:00 a.m. to 4:00 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. 


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