[Federal Register Volume 73, Number 90 (Thursday, May 8, 2008)]
[Rules and Regulations]
[Pages 26019-26025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10103]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-0648; FRL-8563-6]


Approval and Promulgation of State Implementation Plans; States 
of South Dakota and Wyoming; Interstate Transport of Pollution

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final Rule.

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SUMMARY: EPA is taking direct final action to approve State 
Implementation Plans (SIPs) submitted by the States of South Dakota and 
Wyoming that address interstate transport with respect to the 1997 8-
hour ozone and fine particulate matter (PM<INF>2.5</INF>) National 
Ambient Air Quality Standards. EPA has determined that the Interstate 
Transport declarations submitted by South Dakota on May 15, 2007, and 
by Wyoming on May 3, 2007, satisfy the requirements of the Clean Air 
Act section 110(a)(2)(D)(i) provisions, also known as the ``good 
neighbor'' provisions, that a state SIP contain adequate provisions 
prohibiting air pollutant emissions from sources or activities in the 
state from adversely affecting another state. This action is being 
taken under section 110 of the Clean Air Act.

DATES: This rule is effective on July 7, 2008 without further notice, 
unless EPA receives adverse comment by June 9, 2008. If adverse comment 
is received, EPA will publish a timely withdrawal of the direct final 
rule in the Federal Register informing the public that the rule will 
not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-0648, by one of the following methods:
    <bullet> http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.

[[Page 26020]]

    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#dcaab5b8b9a8b5bfb4f2bfbdb0b0b5b99cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="42342b2627362b212a6c21232e2e2b27022732236c252d34">[email protected]</span></a> and 
<a href="/cdn-cgi/l/email-protection#a6cbc7d5d2d4c7c8c1c3cac988c2c9cbc3c8cfc5c9e6c3d6c788c1c9d0"><span class="__cf_email__" data-cfemail="573a36242325363930323b387933383a32393e34381732273679303821">[email protected]</span></a>
    <bullet> Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
    <bullet> Mail: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
    <bullet> Hand Delivery: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. 
Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-0648. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional instructions on submitting 
comments, go to section I. General Information of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly-available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129. EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program, 
U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-6436, 
<a href="/cdn-cgi/l/email-protection#8de0ecfef9ffece3eae8e1e2a3e9e2e0e8e3e4eee2cde8fdeca3eae2fb"><span class="__cf_email__" data-cfemail="5f323e2c2b2d3e31383a3330713b30323a31363c301f3a2f3e71383029">[email protected]</span></a>.

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 South Dakota and Wyoming mean respectively the State 
of South Dakota and the State of Wyoming.

Table of Contents

I. General Information
    What should I consider as I prepare my comments for EPA?
II. What is the purpose of this action?
III. What is the State process to submit these materials to EPA?
IV. EPA's evaluation of the State of South Dakota May 15, 2007 
submittal
V. EPA's evaluation of the State of Wyoming May 3, 2007 submittal
VI. Final Action
VII. Statutory and Executive Order Reviews

I. General Information

    What should I consider as I prepare my comments for EPA?
    1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What Is the Purpose of this Action?

    EPA is approving the ``Interstate Transport Report'' adopted into 
the State of South Dakota SIP on April 19, 2007 and submitted to EPA on 
May 15, 2007. EPA is also approving the ``Interstate Transport'' 
declaration adopted into the State of Wyoming SIP on April 19, 2007 and 
submitted to EPA on May 3, 2007. The South Dakota ``Interstate 
Transport Report'' and the Wyoming ``Interstate Transport'' declaration 
address the requirements of section 110(a)(2)(D)(i) of the Clean Air 
Act (CAA). The provisions in this section of the CAA, also referred to 
as the ``good neighbor'' provisions, require that each state's SIP 
include adequate provisions prohibiting emissions that adversely affect 
another state's air quality through interstate transport of air 
pollutants.

[[Page 26021]]

III. What Is the State Process To Submit These Materials to EPA?

    Section 110(k) of the CAA addresses EPA's actions on submissions of 
revisions to a SIP. The CAA requires states to observe certain 
procedural requirements in developing SIP revisions for submittal to 
EPA. Section 110(a)(2) of the CAA requires that each SIP revision be 
adopted after reasonable notice and public hearing. This must occur 
prior to the revision being submitted by a state to EPA.
    The South Dakota Department of Environmental and Natural Resources 
(DENR) held a public hearing for the addition of the Interstate 
Transport Report to the South Dakota SIP on April 19, 2007, adopted the 
Report on this same date, and submitted it to EPA on May 15, 2007.
    The Wyoming Department of Environmental Quality (DEQ) held a public 
hearing for the addition of the Interstate Transport declaration on 
December 11, 2006, adopted the declaration into the State SIP on April 
15, 2007, and submitted it to EPA on May 3, 2007.
    We have evaluated the submittals of these SIP revisions by the 
South Dakota DENR and the Wyoming DEQ and have determined that the 
States met the requirements for reasonable notice and public hearing 
under section 110(a)(2) of the CAA.

IV. EPA's Evaluation of the State of South Dakota May 15, 2007 
Submittal

    EPA has reviewed the South Dakota Interstate Transport Report 
submitted on May 15, 2007 and believes that approval is warranted. The 
provisions of the CAA section 110(a)(2)(D)(i) require that the South 
Dakota SIP contain adequate provisions prohibiting air pollutant 
emissions from sources or activities in the state from adversely 
affecting another state. A state SIP must include provisions that 
prohibit sources from emitting pollutants in amounts which will: (1) 
Contribute significantly to nonattainment of the NAAQS in another 
state; (2) interfere with maintenance of the NAAQS by another state; 
(3) interfere with another state's measures to prevent significant 
deterioration of its air quality; and (4) interfere with the efforts of 
another state to protect visibility. EPA issued guidance on August 15, 
2006 relating to SIP submissions that meet the requirements of section 
110(a)(2)(D)(i) for the PM2.5 and the 8-hour ozone standards. The 
Interstate Transport Report submitted by the State of South Dakota is 
consistent with the guidance.
    To support the first two of the four elements noted above, the 
State of South Dakota relies on a combination of: (a) EPA positions and 
modeling analysis results published in Federal Register notices as part 
of the Clean Air Interstate Rule (CAIR) rulemaking process;\1\ and, (b) 
considerations of geographical and meteorological factors affecting the 
likelihood of pollution transport from the State to the closest 8-hour 
ozone and PM2.5 nonattainment areas in other states.
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    \1\ Unless otherwise noted, in this action the expression CAIR 
rulemaking process or CAIR rule refers to materials (data, analyses, 
assessments) developed during the rulemaking process that resulted 
in the May 12, 2005 Federal Register notice ``Rule to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air 
Interstate Rule); Revisions to Acid Rain Program; Revisions to 
NO<INF>X</INF> SIP Call; Final Rule,'' (70 FR 25162).
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    In addition, EPA includes data and analysis based on materials 
published in EPA's CAIR rulemaking notices and on monitoring data 
gathered by the states and reported to EPA in the Air Quality System 
(AQS) database.
    For the 1997 8-hour ozone standard, the South Dakota Interstate 
Transport Report identifies the Denver Metropolitan Area in Colorado, 
and the Illinois and Wisconsin counties along the western shore of Lake 
Michigan as the closest nonattainment areas. The northernmost edge of 
the Denver Metropolitan Area is about 170 miles from the southwest 
corner of South Dakota, and nearly in opposite direction to the 
prevailing winds. These considerations, in combination with other 
factors such as the absence of nonattainment areas in South Dakota, and 
along the 170 miles between South Dakota's southwestern corner and the 
Denver Metropolitan Area, lead to the conclusion that it is highly 
unlikely that South Dakota makes a significant contribution to the 8-
hour ozone nonattainment in this Colorado area. The rim of Illinois/
Wisconsin counties along the western shore of Lake Michigan is more 
than 400 miles from the South Dakota eastern border. Again, distance, 
in combination with factors such as the absence of nonattainment areas 
in the intervening downwind states of Minnesota and Iowa make it highly 
unlikely that South Dakota contributes significantly to ozone 
nonattainment in the Illinois and Wisconsin counties along the western 
shore of Lake Michigan.
    A similar conclusion is suggested by our examination of AQS 
monitoring data on 8-hour ozone exceedance days registered during the 
2004-2006 years at monitoring stations in South Dakota and in 
neighboring downwind or potentially downwind states. During these years 
the ozone monitors did not register any exceedance days in South 
Dakota, Nebraska and Iowa. In the same time span the monitors in 
Minnesota, another of the closest downwind states, measured 8-hours 
ozone exceedances on less than 0.5 percent of the days. Minnesota 
monitors registered three exceedance days on June 2, July 12 and 22, 
2005. The absence of 8-hour ozone exceedance days in South Dakota and 
most of its adjacent states, combined with the rare occurrence of 
exceedance days in Minnesota is consistent with conclusions drawn from 
other data and analysis, presented in the preceding paragraphs: any 
ozone or ozone precursor transport from South Dakota to downwind states 
is not high enough to significantly contribute to nonattainment, or 
interfere with maintenance of the NAAQS, in neighboring downwind 
states.
    The section of the South Dakota Interstate Transport Report 
addressing the absence of significant ozone transport from South Dakota 
to downwind states includes a paragraph quoted from the EPA web page 
``States Not Covered by CAIR'' \2\ that has since been replaced. While 
the text quoted in the South Dakota Interstate Transport SIP reflects 
accurately the EPA web page text at the time South Dakota adopted the 
Report into the State SIP and submitted it to EPA, EPA subsequently 
revised its website. Specifically, in September 2007, EPA removed the 
sentence ``Several states are not included in the CAIR region because 
they do not contribute to down wind nonattainment.'' EPA's revised 
website prefaces the same list of 22 non-CAIR States (which includes 
South Dakota) with the statement that these states are not covered by 
CAIR, without discussing the basis for this conclusion.\3\
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    \2\ See ``South Dakota Implementation Plan, Interstate Transport 
Report,'' January 5, 2007, page 2.
    \3\ Reproductions of the two web pages discussed in this 
paragraph may be found in EPA's April 8, 2008, ``Guidance and 
Supporting Documentation'' memo included in the docket for this 
action. As of 1/24/08 the EPA Web page for Non-CAIR States, updated 
in September 2007, may be found at http://www.epa.gov/CAIR/not-covered.html.
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    EPA's replacement of the text originally published on its ``Non-
CAIR States'' web page does not affect our evaluation of the State of 
South Dakota's position that the State is unlikely to contribute 
significantly to ozone nonattainment in down wind states, as 
demonstrated by the data and analysis examined in the preceding 
paragraphs. In light of EPA's website revisions, EPA recommends that in 
a future rulemaking the State of South Dakota remove from

[[Page 26022]]

its Interstate Transport Report the EPA paragraph incorrectly 
reflecting the Agency's position on the Non-CAIR states' contribution 
to down wind nonattainment.
    For the 1997 PM2.5 standard, South Dakota identifies Libby, in 
Lincoln County, Montana, and Chicago, Illinois, as the nonattainment 
areas closest to the State. Libby is about 570 miles northwest from 
South Dakota, in a direction opposite to that of the prevailing winds. 
In addition, EPA's findings based on a nine-factor analysis of Lincoln 
County, and reported in the Agency's technical support document for the 
December 17, 2004 designations, stressed the local origins of PM2.5 
nonattainment in Libby.\4\ These considerations in combination with 
other factors such as the absence of PM2.5 nonattainment areas in South 
Dakota, and the absence of PM2.5 nonattainment areas along the 570 
miles between the State's northwest corner and Libby lead to the 
conclusion that it is unlikely that South Dakota is making a 
significant contribution to the PM2.5 nonattainment status of Lincoln 
County or interfering with maintenance of the NAAQS in Montana.
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    \4\ ``Technical Support for State and Tribal Air Quality Fine 
Particle (PM2.5) Designations,'' December 2004; Chapter 6, pages 
347-352.
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    The Cook County nonattainment area, in which Chicago is located, is 
about 450 miles from the southeastern corner of South Dakota. Given the 
distance, the absence of PM2.5 nonattainment areas in South Dakota, and 
between South Dakota and Cook County, it is unlikely that the State of 
South Dakota is making a significant contribution to the nonattainment 
of the 1997 PM2.5 standard in Cook County. This assessment is 
consistent with results of the modeling analysis EPA conducted and 
reported in the rulemaking Federal Register notices for the 
determination of the CAIR states (69 FR 4566 and 70 FR 25162). 
According to the CAIR Proposed Rule of January 30, 2004, the maximum 
PM2.5 contribution by South Dakota to downwind counties identified as 
being in nonattainment for the base years 2010 and 2015 is to Cook 
County, and is estimated to be 0.04 [mu]g/m\3\ (Table V-5, 69 FR 4608). 
This amount is well below the ``significant contribution'' threshold of 
0.20[mu]g/m\3\ set by EPA. AQS monitoring data we reviewed are 
consistent with these results. During the years 2004-2006, monitors in 
the State of South Dakota and its adjacent downwind or potentially 
downwind states, except for Minnesota, showed no PM2.5 exceedance days. 
During these years the Minnesota monitors registered exceedances only 
on one out of 1,096 days.\5\
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    \5\ Adjacent downwind/potentially downwind states showing no 
PM2.5 exceedance days include Nebraska, North Dakota and Iowa. 
Minnesota monitors showed one exceedance day in three years, on 
January 31, 2005.
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    In conclusion, the data and analysis reviewed above indicate that 
the Interstate Transport Report adopted by South Dakota into the State 
SIP satisfactorily addresses the first two elements of the CAA section 
110(a)(2)(D)(i) for the 1997 PM2.5 and 8-hour ozone standards.
    The third element of the section 110(a)(2)(D)(i) provisions 
requires states to prohibit emissions that interfere with any other 
state's measures to prevent significant deterioration (PSD) of air 
quality. Consistently with EPA guidance issued August 11, 2006, the 
State of South Dakota explains that the State's SIP provisions include 
EPA-approved PSD and Nonattainment New Source Review (NNSR) programs 
that satisfy the section 110(a)(2)(D)(i) requirements. The State PSD 
program has been implemented for many years and NNSR implementation has 
not been needed since there are no PM2.5 or 8-hour ozone nonattainment 
areas in South Dakota.
    The fourth element of the section 110(a)(2)(D)(i) provisions 
concerns the requirement that a state SIP prohibit sources from 
emitting pollutants that interfere with the efforts of another state to 
protect visibility. Consistent with the August 15, 2006 EPA guidance, 
the South Dakota Interstate Transport Report declares that there are no 
State sources of emissions interfering with the implementation of the 
1980 regulations that required the states to address Reasonably 
Attributable Visibility Impairment (RAVI) SIPs in other states. 
Regarding visibility impairment caused by regional haze, the South 
Dakota Interstate Transport Report concurs with EPA that it is 
currently premature to determine whether or not SIPs for 8-hour ozone 
or PM2.5 contain adequate provisions to prohibit emissions that 
interfere with measures in other states' SIPs designed to address 
regional haze. This requirement will be addressed in the South Dakota 
regional haze SIP. Therefore, South Dakota addresses the third and 
fourth elements of the section 110(a)(2)(D)(i) provisions in a way that 
is consistent with the EPA guidance noted above.

V. EPA's Evaluation of the State of Wyoming May 3, 2007 Submittal

    EPA has reviewed the Wyoming Interstate Transport SIP submitted on 
May 3, 2007 and believes that approval is warranted. The provisions of 
the CAA section 110(a)(2)(D)(i) require that the Wyoming SIP contain 
adequate provisions prohibiting air pollutant emissions from sources or 
activities in the state from adversely affecting another state. A state 
SIP must include provisions that prohibit sources from emitting 
pollutants in amounts which will: (1) Contribute significantly to 
nonattainment of the NAAQS in another state; (2) interfere with 
maintenance of the NAAQS by another state; (3) interfere with another 
state's measures to prevent significant deterioration of its air 
quality; and (4) interfere with the efforts of another state to protect 
visibility. EPA issued guidance on August 15, 2006 relating to SIP 
submissions that meet the requirements of Section 110(a)(2)(D)(i) for 
the 1997 PM2.5 and the 8-hour ozone standards. The Interstate Transport 
SIP submitted by the State of Wyoming is consistent with the guidance.
    To support the first two of the four elements noted above, the 
State of Wyoming relies on a combination of: (a) EPA positions and 
modeling analysis results published in Federal Register notices as part 
of the CAIR rulemaking process; and (b) considerations of geographical, 
meteorological and topographical factors affecting the likelihood of 
significant pollution transport from the State to the closest PM2.5 and 
8-hour ozone nonattainment areas in other states. In addition, we 
examine factors specific to Wyoming, and to a number of downwind or 
potentially downwind states that might be significantly affected by any 
transport of PM2.5, and of ozone and/or ozone precursors from Wyoming.
    For the 8-hour ozone standard, the Denver metropolitan area in 
Colorado, and the Las Vegas-Clark County area in Nevada are the closest 
nonattainment areas. The Las Vegas-Clark County area is more than 400 
miles from the southwest corner of Wyoming and in a direction opposite 
to that of the prevailing winds. Given this distance and the absence of 
8-hour ozone nonattainment areas between Wyoming and Clark County, it 
is unlikely that Wyoming is making a significant contribution to the 
ozone nonattainment in Clark County.
    Even though the northernmost edge of the Denver metropolitan area 
is only 30 miles south of the Wyoming border, it is highly unlikely 
that Wyoming contributes significantly to this area's non-attainment 
for the 1997 8-hour ozone standard. The State of Wyoming does not have 
any ozone nonattainment areas, and the AQS database indicates that 
during the 2004-2006 years Wyoming monitors registered four

[[Page 26023]]

exceedance days for the 8-hour ozone standard, all occurring in the 
wintertime.\6\ Given that ozone levels generally reach peak values 
during the warm months of the year, which is also the case of the 
Denver metropolitan area, one may readily conclude that the monitoring 
data noted above excludes the likelihood of a significant contribution 
from the State of Wyoming to the 8-hour ozone nonattainment of the 
Denver metropolitan area.
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    \6\ The exceedance days were registered at two monitors within 
Sublette County--the site of the Jonah gas field development. The 
exceedance values were measured on February 3, 20, and 26, 2005, and 
February 27, 2006.
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    A significant transport of ozone and/or its precursors from Wyoming 
to other close downwind or potentially downwind states such as Montana, 
Nebraska, North Dakota and South Dakota is also unlikely. As is the 
case with Wyoming, none of these states have any ozone nonattainment 
areas, and the four ozone exceedance days registered in Wyoming during 
the winter of 2005 and 2006 had no significant impact on these states. 
During the 2004-2006 years considered here, the monitoring stations in 
Montana, Nebraska, North Dakota and South Dakota showed no exceedance 
days for the 1997 8-hour ozone standard.
    The section of the Wyoming Interstate Transport SIP addressing the 
absence of significant ozone transport from Wyoming to downwind states 
includes a paragraph quoted from the EPA Web page ``States Not Covered 
by CAIR'' \7\ that has since been replaced. While the text quoted in 
the Wyoming Interstate Transport SIP reflects accurately the EPA Web 
page text at the time Wyoming adopted the Interstate Transport 
declaration into the State SIP and submitted it to EPA, EPA 
subsequently revised its Web site. Specifically, in September 2007, EPA 
removed the sentence ``Several states are not included in the CAIR 
region because they do not contribute to downwind nonattainment.'' 
EPA's revised Web site prefaces the same list of 22 non-CAIR States 
(which includes Wyoming) with the statement that these states are not 
covered by CAIR, without discussing the basis for this conclusion.\8\
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    \7\ See ``Wyoming State Implementation Plan, Interstate 
Transport,'' December 11, 2006, page 2.
    \8\ Reproductions of the two Web pages discussed in this 
paragraph may be found in EPA's ``Guidance, Supporting Materials, 
and Additional Materials'' in this docket. As of 1/24/08 the EPA Web 
page for Non-CAIR States, updated on September 20, 2007, may be 
found at http://www.epa.gov/CAIR/not-covered.html.
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    EPA's replacement of the text originally published on its ``Non-
CAIR States'' Web page does not affect our evaluation of the State of 
Wyoming's position that the State is unlikely to contribute 
significantly to ozone nonattainment in downwind states, as 
demonstrated by the data and analysis examined in the preceding 
paragraphs. In light of EPA's Web site revisions, EPA recommends that 
in a future rulemaking the State of Wyoming remove from its Interstate 
Transport SIP the EPA paragraph incorrectly reflecting the Agency's 
position on the Non-CAIR states' contribution to downwind 
nonattainment.
    The Wyoming Interstate Transport SIP addresses the question of 
potential PM2.5 transport to other states by quoting from the 
explanation given by EPA in support of the exclusion of four western 
states (including Wyoming) from the analysis that underlies the CAIR 
final rule notice:

    Regarding modeling of all states, in the PM2.5 modeling for the 
NPRM, we modeled 41 states, and found that the westernmost of these 
states made very small contributions to nonattainment in any other 
state. For the revised modeling for the final rule, we reduced the 
set of states modeled for reasons of efficiency. The results again 
showed that the westernmost states modeled did not make 
contributions above the significance threshold, indicating that had 
other even more western States been modeled they also would not have 
done so. \9\
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    \9\ ``Corrected Response to Significant Public Comments on the 
Proposed Clean Air Interstate Rule Received in response to: Rule to 
Reduce Interstate Transport of Fine Particulate Matter and Ozone 
(Interstate Air Quality Rule); Proposed Rule (69 FR 4566; January 
30, 2004) Supplemental Proposal for the Rule to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone (Clean Air Interstate 
Rule); Proposal Rule (69 FR 32684; June 10, 2004) Docket Number OAR-
2003-0053,'' April 2005.

    These assessments are substantiated by data and consideration of 
additional factors we examine next. Findings from the modeling analysis 
conducted by EPA for the CAIR proposed rule include the maximum annual 
average PM2.5 contribution by 41 states to the downwind counties 
identified in nonattainment for the base years 2010 and 2015. Among the 
states included in the study, the maximum PM2.5 annual average 
contribution to nonattainment by the westernmost states amounted to: 
0.04 [mu]g/m\3\ for Colorado, 0.03 [mu]g/m\3\ for Montana, 0.08 [mu]g/
m\3\ for Nebraska, 0.12 [mu]g/m\3\ for North Dakota, 0.04 [mu]g/m\3\ 
for South Dakota, and 0.05 [mu]g/m\3\ for Wyoming (69 FR 4608). These 
amounts are well below the ``significant contribution'' threshold of 
0.20 [mu]g/m\3\ set by EPA.
    A review of PM2.5 attainment/nonattainment areas and AQS monitoring 
data in Wyoming and its downwind, or potentially downwind, states 
yields similar conclusions. Wyoming's closest PM2.5 nonattainment area 
is centered in Libby, Lincoln County, Montana, which is about 330 miles 
north of the Wyoming northwest corner. EPA's findings based on a nine-
factor analysis of Lincoln County (reported in the Agency's technical 
support document for the December 17, 2004 nonattainment designations) 
stress the local origins of PM2.5 nonattainment in Libby.\10\ These 
findings, in combination with other factors such as distance, the 
absence of PM2.5 nonattainment areas in Wyoming, and the absence of 
PM2.5 nonattainment areas along the 330 miles between the Wyoming 
northwest corner area and Libby, are strong indications that it is 
unlikely that Wyoming is making a significant contribution to the PM2.5 
nonattainment status of Lincoln County. AQS monitoring data for the 
period 2004-2006 shows that there were no PM2.5 exceedance days in 
Wyoming, Colorado, North Dakota, South Dakota and Nebraska. Montana 
monitors registered five exceedance days, equivalent to less than 0.5 
percent, distributed among four different counties.
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    \10\ ``Technical Support for State and Tribal Air Quality Fine 
Particle (PM2.5) Designations,'' December 2004; Chapter 6, pages 
347-352.
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    The data and analyses considered in the preceding paragraphs 
indicate that the Interstate Transport declaration adopted by Wyoming 
into the State SIP satisfactorily addresses the first two elements of 
the CAA section 110(a)(2)(D)(i) requirements for the 1997 
PM<INF>2.5</INF> and 8-hour ozone standards.
    The third element of the section 110(a)(2)(D)(i) provisions 
requires states to prohibit emissions that interfere with any other 
state's measures to prevent significant deterioration (PSD) of air 
quality. Consistent with EPA guidance issued August 11, 2006, the State 
of Wyoming explains that the State's SIP provisions include an EPA-
approved PSD program, implemented for many years, that satisfies the 
section 110(a)(2)(D)(i) requirements. In the absence of any 
PM<INF>2.5</INF> or 8-hour ozone nonattainment areas, Wyoming does not 
have an NNSR program but indicates that the State will update its NSR 
program to include one if the need should arise.
    The fourth element of the section 110(a)(2)(D)(i) provisions 
concerns the requirement that a state SIP prohibit sources from 
emitting pollutants that interfere with the efforts of another state to 
protect visibility. Consistent with the

[[Page 26024]]

August 15, 2006 EPA guidance, the Wyoming Interstate Transport SIP 
declares that there are no State sources of emissions interfering with 
the implementation of the 1980 regulations that required the states to 
address Reasonably Attributable Visibility Impairment (RAVI) SIPs in 
other states. Regarding visibility impairment caused by regional haze, 
the Wyoming Interstate Transport SIP concurs with EPA that it is 
currently premature to determine whether or not SIPs for 8-hour ozone 
or PM<INF>2.5</INF> contain adequate provisions to prohibit emissions 
that interfere with measures in other states' SIPs designed to address 
regional haze. This requirement will be addressed in the Wyoming 
regional haze SIP. Thus, Wyoming addresses the third and fourth 
elements of the section 110(a)(2)(D)(i) provisions in a way that is 
consistent with the EPA guidance noted above.

VI. Final Action

    EPA is approving the Interstate Transport Report submitted by the 
State of South Dakota on May 15, 2007, and is adding section X to 40 
CFR 52.1270(e) to reflect that the State has adequately addressed the 
required elements of section 110(a)(2)(D)(i) of the Clean Air Act.
    EPA is approving the Interstate Transport SIP submitted by the 
State of Wyoming on May 3, 2007 and is adding section XVIII to 40 CFR 
52.2620(e) to reflect that the State has adequately addressed the 
required elements of section 110(a)(2)(D)(i) of the Clean Air Act.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This rule will be effective July 7, 2008 without 
further notice unless the Agency receives adverse comments by June 9, 
2008. If the EPA receives adverse comments, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

VII. 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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 7, 2008. 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, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
Organic Compounds.

    Dated: April 23, 2008.
Robert E. Roberts,
Regional Administrator, Region 8.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart QQ--South Dakota

0
2. In Sec.  52.2170, the table in paragraph (e) is amended by adding 
entry ``X'' in numerical order to read as follows:


Sec.  52.2170  Identification of plan.

* * * * *
    (e) EPA-approved nonregulatory provisions.

[[Page 26025]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Applicable geographic   State submittal date/
Name of nonregulatory SIP provision  or non-attainment area       Adopted date         EPA approval date and citation             Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
X. Interstate Transport. South       Statewide.............  Submitted: 5/15/07....  5/08/08 [insert FR page number
 Dakota Interstate Transport Report                          Adopted: 4/19/07......   where document begins].
 satisfying the requirement of
 Section 110(a)(2)(D)(i) of the CAA
 for the 1997 8-hour ozone and PM
 2.5 standards.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Subpart ZZ--Wyoming

0
3. In Sec.  52.2620, the table in paragraph (e) is amended by adding 
entry ``XVIII'' in numerical order to read as follows:


Sec.  52.2620  Identification of plan.

* * * * *
    (e) EPA-approved nonregulatory provisions.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Applicable geographic   State submittal date/
Name of nonregulatory SIP provision  or non-attainment area       Adopted date         EPA approval date and citation             Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
XVIII. Interstate Transport.         Statewide.............  Submitted: 5/3/07.....  5/08/08 [insert FR page number
 Wyoming Interstate Transport SIP                            Adopted: 4/15/07......   where document begins].
 satisfying the requirement of
 Section 110(a)(2)(D)(i) of the CAA
 for the 1997 8-hour ozone and PM
 2.5 standards.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. E8-10103 Filed 5-7-08; 8:45 am]
BILLING CODE 6560-50-P


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