ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

EPA-R08-0AR-2009-0282; FRLApproval and Promulgation of State Implementation Plan Revisions; State of North 

Dakota; Air Pollution Control Rules, and Interstate Transport of Pollution for the 1997 

PM2•5 and 8-hour Ozone NAAQS: "Significant Contribution to Nonattainment" and 

"Interference with Prevention of Significant Deterioration" Requirements 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed Rule. 

SUMMARY: The Environmental Protection Agency is proposing to approve State 

Implementation Plan (SIP) revisions submitted by the State ofNorth Dakota on April 6, 2009. 

Specifically, EPA is proposing approval of revisions to the North Dakota air pollution control 

rules regarding prevention of significant deterioration of air quality, and partial approval of the 

SIP revision "Interstate Transport of Air Pollution" addressing the requirements of Clean Air Act 

section 11 0(a)(2)(D)(i) for the 1997 PM2.5 and 8-hour ozone National Ambient Air Quality 

Standards (NAAQS). For the latter, EPA proposes approval of the North Dakota Interstate 

Transport SIP sections that address the requirements of section 11 O(a)(2)(D)(i) prohibiting a 

state's emissions from contributing significantly to any other state's nonattainment of the 

NAAQS, or from interfering with any other state's required measures to prevent significant 

deterioration of its air quality. EPA will act at a later date on the North Dakota Interstate 

Transport SIP sections that address the remaining two requirements of section 11 0(a)(2)(D)(i), 

prohibiting a state's emissions from interfering with any other state's maintenance of the 

NAAQS, or with any other state's required measures to protect visibility. This action is being 

taken under section 110 of the Clean Air Act. 

DATES: Comments must be received on or before [Insert date 30 days after publication in the 

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Federal Register]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-0AR-2009­

0282, by one of the following methods: 

•	 http://www.regulations.gov. Follow the on-line instructions for submitting 

comments. 

•	 E-mail: videtich.callie@epa.gov and mastrangelo.domenico@epa.gov 

•	 Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER 

INFORMATION CONTACT if you are faxing comments). 

•	 Mail: Callie Videtich, Director, Air Program, Environmental Protection Agency 

(EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 

80202-1129. 

•	 Hand Delivery: Callie Videtich, Director, Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 

80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 

a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be 

made for deliveries of boxed information. 

Instructions: Direct your comments to Docket ID No. EPA-R08-0AR-2009-0282. 

EPA's policy is that all comments received will be included in the public docket without change 

and may be made available online at http://www.regulations.gov, including any personal 

infonnation provided, unless the comment includes infonnation claimed to be Confidential 

Business Information (CSI) or other infonnation 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 

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"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 1. 

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, Mai1code 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, 8:00 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, Denver, 

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Colorado 80202-1129, (303) 312-6436, mastrangelo.domenico@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we are giving meaning to certain words or initials as follows: 

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context 

indicates otherwise. 

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection 

Agency. 

(iii) The initials SIP mean or refer to State Implementation Plan. 

(iv) The words North Dakota and State mean the State of North Dakota. 

Table of Contents 

I.	 General Information 

What Should I Consider as I Prepare My Comments for EPA? 

II.	 What Action Is EPA Proposing? 

III. What Is the State Process to Submit This Material to EPA? 

IV. EPA's Review and Technical Information 

A.	 Prevention of Significant Deterioration Provisions 

B.	 Interstate Transport SIP 

V.	 Proposed Action 

VI. Statutory and Executive Order Reviews 

I.	 General Information 

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

1.	 Submitting eBl. Do not submit CBI to EPA through http://www.regu1ations.gov or e4
 
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/or 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. 

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II. What Action Is EPA Proposing? 

EPA is proposing approval of revisions to the State provisions on the prevention 

significant deterioration (PSD) of air quality in subsection 33-15-15-01.2 ofthe North Dakota 

Administrative Code (NDAC), and is also proposing partial approval of the North Dakota 

Interstate Transport of Air Pollution SIP for the 1997 PM2.5 and 8-hour ozone National Ambient 

Air Quality Standards (NAAQS). The revisions to NDAC subsection 33-15- 15-01.2, and the 

addition to the North Dakota SIP ofsection 7.8, ~'Interstate Transport of Air Pollution," were 

adopted by the State ofNorth Dakota on April 1,2009 and submitted to EPA on April 6, 2009. 

EPA is proposing to approve the revision ofNDAC subsection 33-15-15-01.02, incorporating 

changes to 40 CFR 52.21 made by EPA through August 1, 2007. EPA also proposes to approve 

the language and demonstrations of the North Dakota Interstate Transport SIP that address two 

elements of section 110(a)(2)(D)(i): significant contribution to nonattainment of the NAAQS in 

any other state, element (l), and interference with required measures by any other state to 

prevent significant deterioration (PSD) of its air quality, element (3). 

III. What Is the State Process to Subnlit This Material to EPA? 

Section 11 O(k) of the CAA addresses EPA's rulemaking action on SIP submissions by 

states. The CAA requires states to observe certain procedural requirements in developing SIP 

revisions for submittal to EPA. Section 11 0(a)(2) of the CAA requires that each SIP revision be 

adopted after reasonable notice and public hearing. This must occur prior to the revision being 

submitted by a state to EPA. 

The North Dakota Department of Health (NDDH) held a public hearing on October 7, 

2008 for revisions to subsection 33-15-15-01.02 of the NDAC and for the addition to the North 

Dakota SIP of the Interstate Transport non-regulatory provisions. The NDDH adopted the 

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provisions on April 1, 2009 and submitted them to EPA on April 6, 2009. 

In a March 2, 2010 email, EPA requested that the North Dakota Air Quality Division 

clarify the State commitment, stated in the Interstate Transport SIP submitted to EPA April 6, 

2009, to EPA's interim policy on the use ofPMIO as surrogate for PM2.s. In a March 8, 2010 

letter to the Region 8 Air Program, the North Dakota Air Quality Division clarified its 

interpretation of EPA's Surrogate Policy. This correspondence is included in this action's 

supporting docket available for public review. 

We have evaluated the submittal by the NDDH and have determined that the State met 

the requirements of section 110(a)(2) of the CAA for reasonable notice and public hearing. 

IV. EPA's Review and Technical Information 

A. Prevention of Significant Deterioration Provisions 

The revisions to subsection 33-15-15-01.2 updated to August 1, 2007 the baseline date 

for incorporation by reference of the Federal requirements at 40 CFR 52.21. In addition, various 

administrative corrections and clarifications were made. As these revisions were made to make 

the PSD provisions consistent with Federal requirements, they are approvable. 

B. Interstate Transport SIP 

The interstate transport provisions at CAA section 11 0(a)(2)(D)(i), also referred to as the 

"good neighbor" provisions, require that each state SIP contain adequate provisions prohibiting 

emissions that adversely affect another state's air quality through interstate transport of air 

pollutants. Section 110(a)(2)(D)(i) contains four requirements or elements: (I) significant 

contribution to nonattainment of the NAAQS in any other state; (2) interference with 

maintenance of the NAAQS by any other state; (3) interference with any other state's required 

measures to prevent significant deterioration of its air quality; and (4) interference with any other 

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state's required measures to protect visibility. On August 15,2006, EPA issued guidance for SIP 

submissions addressing the section 11 0(a)(2)(D)(i) requirements for the 1997 PM2.S and 8-hour 

ozone standards. l In November 2005 (70 FR 71612) and May 2008 (43 FR 28321), EPA 

finalized regulations implementing Phase II of the 1997 8-hour ozone NAAQS, and the New 

Source Review (NSR) Program for the 1997 PM2.S NAAQS. 

To demonstrate that its SIP satisfies the requirements for significant contribution to 

nonattainment, North Dakota relies on a combination of: (a) EPA modeling analysis results 

published in Federal Register notices as part of the Clean Air Interstate Rule (CAIR) rulemaking 

process;2 (b) monitoring data gathered by states and reported to EPA in the Air Quality System 

(AQS) database; and (c) consideration of geographical and meteorological factors affecting the 

likelihood of significant pollution transport from North Dakota to the closest PM2.S and 8-hour 

ozone nonattainment areas or violating monitors in other states. In this action EPA also expands 

on the analysis of geographical and meteorological factors, and of ozone and PM2.5 concentration 

levels reflecting AQS monitoring data. EPA deems that the North Dakota Interstate Transport 

SIP sections addressing requirements (1) and (3) of section 11 O(a)(2)(D)(i) are consistent with 

EPA's 2006 guidance and the referenced implementation rules for ozone and PM2.S. 

Significant Contribution Element - PM2.S 

Section 11 0(a)(2)(D)(i) provides that EPA cannot approve a state's SIP for a new or 

.revised NAAQS unless it contains adequate measures to prohibit emissions from sources within 

1 Memorandum from William T. Harnett entitled "Guidance for State Implementation Plan (SIP) Submissions to
 

Meet Current Outstanding Obligations Under Section 11 0(a)(2)(D)(i) for the 8-hour Ozone and PM2.5 National
 

Ambient Air Quality Standards," (Aug. 15,2006) ("2006 Guidance"). This EPA guidance document is one of the
 

documents available for review in the docket document entitled: "Relevant Guidance and Supporting
 

Documentation for the Proposed Rulemaking Federal Register Action Docket ID # EPA-R08-0AR-2009-0282."
 

2 In this action the expression "CArR" 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);
 

8
 
the state from contributing significantly to nonattainment ofthe NAAQS in another state. EPA's 

August 15, 2006, guidance to states concerning section 11 0(a)(2)(D)(i) recommended various 

methods by which states might evaluate whether or not its emissions significantly contribute to 

violations of the 1997 PM2.5standards 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 infoffilation that would be relevant to assessing the likelihood of significant contribution to 

violations of the NAAQS in another state. It should be noted that significant contribution to 

nonattainment is not restricted to impacts upon areas that are formally designated nonattainment. 

Consistent with EPA's approach in CAIR, this impact must be evaluated with respect to 

monitors showing a violation of the NAAQS (70 FR 25172, May 12,2005, and 63 FR 57371, 

October 27, 1998). Furthermore, although relevant information other than modeling may be 

considered in assessing the likelihood of significant contribution to violations of the 1997 PM2.5 

standard in another state, EPA notes that no single piece of information in the following 

discussion is by itself dispositive of the issue. Instead, the total weight of all the evidence taken 

together supports the conclusion that emissions within North Dakota do not significantly 

contribute to violations in another state ofthe 1997 PM2.5standard. 

Although significant contribution must be measured not just against nonattainment areas, 

but against areas with monitors showing violations of the NAAQS, nonattainment areas are a 

convenient starting point for the analysis. For the 1997 annual PM2.5 standard, Libby, in Lincoln 

County, Montana, and Chicago, in Cook County, Illinois, are the designated nonattainment areas 

Revisions to Acid Rain Program; Revisions to NOx SIP Call; Final Rule" (70 FR 25162). 

9 
closest to the State of North Dakota. In 2005, EPA designated both areas nonattainment for 

violations of the 1997 annual PM2.5 standards. See 70 FR 944 (January 5, 2005), and 40 CFR 

81.314 and 81.327. 

A number of considerations provide evidence that North Dakota emissions are unlikely to 

contribute significantly to the violations ofthe 1997 annual PM2.

5 standards in Libby. First, 

Libby is more than 650 miles straight west of Bismarck, and any impact from North Dakota 

emissions would have to rely on strong easterly winds that rarely occur in the State.3 This 

substantial distance and the rarity of easterly surface winds, while not outcome determinative 

given the distances across which PM2.5 can transport, support a conclusion that North Dakota 

emissions are unlikely to contribute significantly to violations ofthe 1997 annual PM2.5 standard 

in Libby. Second, in the process of designating Libby nonattainment for these standards, EPA 

noted the predominantly local origins of PM2.5 nonattainment in Libby.4 While the 

predominance of local sources does not alone rule out the possibility of impacts from interstate 

transport, this fact in conjunction with the distance and the near absence of easterly winds in 

North Dakota supports a conclusion that North Dakota emissions are unlikely to contribute 

significantly to violations in Libby. Third, during the ten years for which monitoring data are 

available, from 1999 to 2008, annual PM25 design values at all other monitors in Montana 

remained significantly below the 15 J.lg/m3 nonattainment threshold. Annual PM2.5 design values 

for most of these monitors remained at levels equal to, or less than, two thirds of the NAAQS. 

3 Distances from Bismarck, North Dakota, to areas in other states are intended to approximate the average transport 

distance of emissions from sources in North Dakota to such areas. For surface wind directions, see "Climate of 

North Dakota-Wind," USGS web page at http://www.npwrc.usgs.gov/resource/habitatJclimate/wind.htm. visited 

February 10,2010, and available for review in EPA's January 14,2010 docket memorandum: "Relevant Guidance 

and Supporting Documentation for the Proposed Rulemaking Federal Register Action Docket ID # EPA-R08-0AR2009-0282." 

4 "Technical Support for State and Tribal Air Quality Fine Particle (PM 2.

S) Designations," Chapter 6, pp. 347-352, 

10
 
Even the three highest design values at these monitors were 20 percent lower than the level of 

the annual standard. 5 

The fact that monitors located between North Dakota and Libby are not registering 

violations of the NAAQS does not conclusively establish that emissions from North Dakota 

could not contribute in the aggregate to violations in Libby, but this fact combined with other 

relevant evidence such as the distance, wind direction, and localized nature of the violations in 

Libby again supports the North Dakota's Interstate Transport SIP conclusion on PM2,5 

contribution. Finally, by 2007-2008, the annual PM2,5 design values for the Libby nonattainment 

area itself fell below the level ofthe NAAQS, a reduction attributed to an effective wood stove 

replacement program that decreased PM25 emissions by approximately 59 percent. 6 In other 

words, were there emissions from North Dakota sources reaching Libby, they would no longer 

be significantly contributing to violations of the NAAQS in that location. 

Similarly, available information indicates that North Dakota emissions are unlikely to 

contribute significantly to the violations of the 1997 annual PM2.5 standards in Cook County 

Illinois. In its rulemaking process for CAIR, EPA determined which states should be subject to 

the rule due to their significant contribution to nonattainment ofthe 1997 PM2.5NAAQS in other 

states. This determination included a modeling analysis of the contributions by upwind states to 

a violating monitor in Cook County, which is approximately 750 miles southeast of Bismarck, 

North Dakota. According to modeling cited in the CArR proposal of January 30, 2004 (69 FR 

4566), EPA estimated that the maximum contribution by emissions from sources in North 

December 2004.
 

5 In 2001,2002 and 2006, design values for two monitors in Missoula County were 11.1, 11.4 and 11.8 Jlg/m3

•
 

Computed from AQS monitoring data.
 

6 State of Montana, Department of Environmental Quality, "State Implementation Plan-Libby Annual PM25 Control
 

Plan," submitted to EPA April 1,2008.
 

11 
Dakota to downwind counties predicted to have violating monitors for the PM2,5 annual standard 

in the 2010 base year was to Cook County. EPA estimated that the North Dakota annual average 

contribution to Cook County would be 0.12 Jlg/m3 (Table V-5, 69 FR 4608), an amount well 

below 0.20 Jlg/m3

, the threshold set by EPA in CAIR for the initial determination of whether a 

state would be subject to the rule (70 FR 25188-91).7 The CAIR modeling analysis thus 

provides support for the conclusion that emissions from North Dakota are not significantly 

contributing to violations of the 1997 annual PM2,5 NAAQS in Cook County. 8 

As mentioned above, EPA must consider not only significant contribution to 

nonattainment areas, but also to areas with monitors showing violations of the NAAQS. A 

review of the AQS monitoring data for adjacent downwind states shows that it is highly unlikely 

that emissions from North Dakota contribute significantly to downwind areas that have monitors 

showing violations of the 1997 24-hour and annual PM2.5 NAAQS. Between 1999 and 2008 

there were no violations of the 1997 PM2,5 NAAQS at any of the monitors in adjacent downwind 

states, such as Minnesota, South Dakota and Iowa. 9 

In South Dakota, monitors in Minnehaha and Brookings Counties had the highest design 

values for 1997 24-hour PM2,5 standards during the 1999-2008 period. Their design values 

ranged, respectively, from 23 to 28 and from 21 to 26 Jlg/m3

, as compared with the 1997 24-hour 

PM2,5 NAAQS of 65 Jlg/m3

. For annual PM2,s, Codington and Minnehaha Counties had the 

monitors with the highest design values, ranging fron1 9.5 to 10.3 Jlg/m3

, and from 9.3 to 10.4 

7 This threshold was upheld by the U.S. Court of Appeals for the D.C. Circuit in its adjudication of consolidated 

challenges to CAIR. See North Carolina v, EPA, 531 F.3d 896,930 (D.C. Cir. 2008). 

8 As EPA only evaluated sources of NOx and SOz in CAIR, the CAIR modeling analysis, like the other evidence 

considered in this action, is not by itself dispositive ofthe issue of significant contribution, 

9 Unless otherwise referenced, for AQS monitoring data and related design values referenced in this action see Table 

I and Table 2 in the docket document entitled: "Relevant Guidance and Supporting Documentation for the Proposed 

Rulemaking Federal Register Action Docket to # EPA-R08-0AR-2009-0282." 

12 
)lg/m3

, respectively, as compared to the annual NAAQS of 15 )lg/m3

. 

In Minnesota, during 1999-2008, the highest design values for 1997 24-hour PM2,5 

NAAQS occurred for monitors in the Twin Cities' Hennepin and Ramsey Counties, where they 

ranged, respectively, from 23 to 32 and from 26 to 36 )lg/m3

. The highest design values for 

annual PM2.5reflected PM2,5 monitored levels also in these two counties, and ranged, 

respectively, from 8.9 to 11.9 )lg/m3 and from 10.7 to 13.8 )lg/m3

. It must be noted that the 

highest design value of 13.8 )lg/m3

, for a monitor in Ramsey County, reflected annual PM2,5 

concentrations registered during the 1999-2001 time span. After 2001, PM2.5concentrations in 

Ramsey County decreased steadily, and between 2006 and 2008 the highest design value for any 

of the Minnesota monitoring stations was 11.2 )lg/m3

, significantly below the annual NAAQS. 

In Iowa, the highest 24-hour PM2,5 design values during the 1999-2008 years reflected 

pollutant concentrations registered at monitors in Clinton and Muscatine Counties. In these 

counties, design values ranged, respectively, from 28 to 36 and from 34 to 38 )lg/m3

, as 

compared with the 1997 24-hour PM2,5 NAAQS of 65 )lg/m3

. The highest annual PM2,5 design 

values occurred in the same counties, and ranged from 11.7 to 14.1 )lg/m3 in Clinton County, and 

from 12.5 to 13.3 )lg/m3 in Muscatine County. 

The data and weight of evidence analysis presented above support the conclusion of the 

North Dakota Interstate Transport SIP (adopted April 1, 2009 and submitted April 6, 2009) that 

emissions from North Dakota do not contribute significantly to nonattainment in any other state 

for the 1997 PM2,5 NAAQS, consistently with the requirements of element (1) of CAA section 

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

Significant Contribution Element - 8-hour Ozone 

As noted above, Section 11 O(a)(2)(D)(i) provides that EPA cannot approve a state's SIP 

13
 
for a new or revised NAAQS unless it contains adequate measures to prohibit emissions from 

sources within the state from contributing significantly to nonattainment of the NAAQS in 

another state. EPA's August 15, 2006, guidance to states concerning section 11 0(a)(2)(D)(i) 

recommended various methods by which states might evaluate whether or not its emissions 

significantly contribute to violations of the 1997 ozone standards in another state. Among other 

methods, EPA recommended consideration of available EPA modeling conducted in conjunction 

with CAIR, or in the absence of such EPA modeling, consideration of other information such as 

the amount of emissions, the geographic location of violating areas, meteorological data, or 

various other forms of information that would be relevant to assessing the likelihood of 

significant contribution to violations of the NAAQS in another state. The assessment of 

significant contribution to nonattainment is not restricted to impacts upon areas that are formally 

designated nonattainment. Consistent with EPA's approach in CAIR, this impact must be 

evaluated with respect to monitors showing a violation of the NAAQS (70 FR 25172, May 12, 

2005, and 63 FR 57371, October 27, 1998). Furthermore, although relevant information other 

than modeling may be considered in assessing the likelihood of significant contribution to 

violations ofthe 1997 8-hour ozone standard in another state, EPA notes that no single piece of 

information in the following discussion is by itself dispositive of the issue. Instead, the total 

weight of all the evidence taken together supports the conclusion that emissions from North 

Dakota sources are unlikely to contribute significantly to violations in another state of the 1997 

8-hour ozone standard. 

Although significant contribution must be measured not just against nonattainment areas, 

but against areas with monitors showing violations of the NAAQS, nonattainment areas are a 

convenient starting point for the analysis. For the 1997 8-hour ozone NAAQS, the North Dakota 

14
 
Interstate Transport SIP revision identifies the Denver Metro AreaINorth Front Range 

(DMA/NFR) in Colorado, and the Illinois and Wisconsin counties along the southwestern shores 

of Lake Michigan as the closest designated nonattainment areas. 10 EPA's evaluation of whether 

emissions from North Dakota contribute significantly to the ozone nonattainment in these areas 

is based on an examination of how geographical and meteorological factors affect transport from 

North Dakota to the two areas noted above. Our approach does not rely on a quantitative 

determination of North Dakota's contribution, as EPA did for other states in its CAIR 

rulemaking, but on a weight-of-evidence analysis based on qualitative assessments and estimates 

of the relevant factors. While conclusions reached for each of the factors considered in the 

following analysis are not in and by themselves determinative, consideration of the likely etTect 

of all factors provides a reliable qualitative conclusion on whether North Dakota's emissions are 

likely to contribute significantly to nonattainment in the DMAINFR area and the 

Illinois/Wisconsin Counties. 

The DMAlNFR nonattainment area is approximately 550 miles southwest of Bismarck, 

North Dakota. I 

1 Distance per se is not an obstacle to long range transport of ozone and/or its 

precursors, as discussed in the January 30, 2004 notice proposing CAIR (69 FR 4599); NOx (the 

primary ozone precursor that was the object of the CArR transport study) may be transported for 

long distances, contributing significantly to high ozone concentrations in other states. However, 

with increasing distance there are greater opportunities for ozone and/or NOx dispersion and/or 

removal from the atmosphere due to the effects of winds and chemical sink processes. In this 

IOThe Wisconsin nonattainment areas for the 1997 8-hour ozone standard include: Door, Kewaunee, Manitowoc,
 

Sheboygan, Ozaukee, Washington, Milwaukee, Waukesha, Racine and Kenosha counties; the Chicago
 

nonattainment area includes Cook County and several adjacent Illinois and Indiana counties (69 FR 23858, April 30,
 

2004).
 

II Distances from Bismarck, North Dakota, to areas in other states are intended to approximate the average transport
 

15
 
context, one may conclude that the 550 mile distance between North Dakota and the DMA/NFR 

reduces but does not exclude the possibility of significant contribution to this area's 

nonattainment. 

Another transport factor is wind direction. Research for North Dakota and states 

immediately to the south and east shows that in North Dakota both surface and regional transport 

winds from the northeast, needed to transport ozone to the DMA/NFR area, are generally rare. 

Thirty years of data collected by the United States Geological Survey (USGS) on surface wind 

direction for several North Dakota locations show that there was much variability by location 

and time of the year, with the exception of northeasterly winds, which were very infrequent. 12 

For long range transport winds, a modeling analysis of ozone dispersion during the summer 

months (June to August) of the five year period 1991-1995 shows that on high local ozone days 

North Dakota and states immediately to the south or east were characterized by southerly 

regional transport winds. On high regional ozone days, during the same period transport winds 

did not have a prevailing orientation, and certainly not a northeasterly one. 13 To the extent that 

these results are representative of general ozone transport patterns not limited to the 1991-95 

period, the rarity of northeasterly winds in North Dakota and adjacent areas provides evidence 

that NOx emissions from North Dakota are likely to be transported in a direction away from the 

Colorado DMA/NFR nonattainment area, and therefore supports the conclusion that emissions 

sources in North Dakota are unlikely to contribute significantly to violations of the 1997 ozone 

distance of emissions from sources in North Dakota to such areas. 

12 See USGS data in EPA's January ]4,20]0 docket memorandum: "Relevant Guidance and Supporting 

Documentation for the Proposed Rulemaking Federal Register Action Docket ID # EPA-R08-0AR-2009-0282." 

13 Ozone Transport Assessment Group (OTAG), Air Quality Analysis Workgroup, "3.3 Climatology of Ozone 

Synoptic scale Transport in the Eastern US," Figures 1(a) and Sea), pp. 3, 6, January] 1, 1998. The high ozone days 

included the days with ozone concentrations in the 90th percentile. 

16 
NAAQS in Denver. 14 

The Illinois/Wisconsin counties along the southwestern shores of Lake Michigan (which 

make up the other nonattainment area within possible transport distance of North Dakota) are 

approxin1ately 700 miles east-southeast from Bismarck. The CAIR modeling domain for 8-hour 

ozone transport analysis included only the eastern half of North Dakota, and the CAIR modeling 

analysis did ~ot determine whether NOx emissions from North Dakota sources contributed 

significantly to ozone nonattainment in any downwind states. 15 However, the CAIR modeling 

analysis results for Minnesota provide us the opportunity to draw inferences about ozone 

contribution from North Dakota sources to nonattainment in the Illinois/Wisconsin area. It must 

be noted that Minnesota is nearly half as distant from this nonattainment area as North Dakota 

(400 miles as compared with 700),16 and that to reach the Illinois/Wisconsin nonattainment area, 

ozone transport winds from Minnesota would have to have a northwesterly orientation similar to 

that necessary for substantial ozone transport from North Dakota. In addition, the CAIR 

modeling analysis estimated the Minnesota's NOx emissions for the 2010 base year to be 

approximately twice as large as the NOx emissions from North Dakota's sources (381,500 as 

compared with 182, 800 tons.) 17 Finally, the CArR analysis determined that emissions from 

Minnesota were below the initial threshold for including states in CArR. 18 In light of this CAIR 

determination, and of Minnesota's larger NOx emissions and shorter distance to the 

14 Ibid. 

15 69 FR 4584 (Jan. 30, 2004) ("We are deferring findings for Texas, Oklahoma, Kansas, Nebraska, South Dakota 

and North Dakota, which at this time cannot be assessed on the same bases as States to the east because they are 

only partially included in the modeling domain ...."). 

16 The 400 mile distance to the nonattainment area is calculated from St. Cloud, and is intended to be a rough 

afproximation of the average transport distance of NOx emission sources from Minnesota. 

I 69 FR 4590. 

18 Minnesota was not listed among the upwind states that contribute significantly to downwind counties projected 

nonattainment for 8-hour ozone in the 2010 base year, and is not a CAIR state for the 8-hour ozone standard. 69 FR 

17
 
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. 

Additional ozone transport factors specific to North Dakota are distance from the 

nonattainment area and prevailing orientation of the winds. As noted above, Bismarck is 

approximately 700 miles from the Illinois/Wisconsin nonattainment area, a distance which does 

not exclude the realistic possibility that significant ozone transport might occur. Research on 

surface wind direction in North Dakota, reflected in the USGS data referenced earlier, shows a 

great variability depending on location and time of the year. Northwesterly winds are more 

frequent than southwesterly or southeasterly winds considered separately, but less frequent than 

the two combined. On the other hand, as noted earlier in this review, during the ozone season of 

the years 1991-1995, on local high ozone days regional transport winds in North Dakota were 

predominantly southerly, and on high regional ozone days they lacked a prevailing orientation. 

There was no strong northwesterly component that might allow for significant transport of NOx 

to the Illinois/ Wisconsin area. 

19 To the extent that these results are representative of general 

ozone transport patterns not limited to the 1991-95 period, one may add the relative infrequency 

of northwesterly transport winds from North Dakota to the other factors that make it unlikely for 

emissions from North Dakota sources to contribute significantly to nonattainment in the noted 

Illinois/Wisconsin area. 

This conclusion is supported by the recent attainment demonstration developed for the 

nonattainment counties along the western shores of Lake Michigan by the Wisconsin Department 

4602, Table V-2; 70 FR 25167. 

19 Ibid. 

18 
of Natural Resources (WDNR). The WDNR analysis identifies heavy industrial activity and 

dense urbanization as the major local contributors to the high ozone concentrations in the Illinois 

and Wisconsin Counties along the southwestern shores of Lake Michigan. Regional ozone 

transport is thought to contribute from 40 to 600/0 of the maximum ozone concentrations in the 

Lake Michigan airshed, and the contributing transport is estimated to originate from southsouthwesterly areas, within a span of 160 to 270 degrees. Any ozone transport from North 

Dakota would fall outside this span. The WDNR finding, in combination with the results of the 

analysis for other transport factors presented above, strengthens the conclusion that it is unlikely 

that emissions from North Dakota sources contribute significantly to the nonattainment of the 

Illinois/Wisconsin Counties on the southwestern shores of Lake Michigan. 2o 

Finally, by 2008, the 8-hour ozone design values for the Illinois and Wisconsin 

nonattainment counties along the shores of Lake Michigan fell below the level of the NAAQS, a 

reduction attributed to the implementation of State and Federal control measures since the 

designation of these counties as nonattainment in 2004. In other words, were there emissions 

from North Dakota sources reaching the Illinois and Wisconsin counties along the western rim of 

Lake Michigan, they would no longer be significantly contributing to violations of the NAAQS 

in that area. 2 J 

As mentioned above, EPA must consider not only significant contribution to 

nonattainment areas, but also to areas with monitors showing violations of the NAAQS. A 

review of the AQS lTIonitoring data for adjacent downwind states shows that it is highly unlikely 

that emissions from North Dakota contribute significantly to downwind areas that have monitors 

20 Wisconsin Department ofNatural Resources, "Attainment Demonstration-The Wisconsin Counties of Kenosha, 

Racine, Milwaukee, Waukesha, Ozaukee, Washington, Sheboygan, Manitowoc and Door," pp. 8, 51, September 

19
 
showing violations of the 1997 8-hour ozone NAAQS. Between 1999 and 2008 there were no 

violations of the 1997 8-hour ozone NAAQS at any of the monitors in adjacent downwind states, 

such as Minnesota, South Dakota and Iowa. 

The design values for Minnesota, South Dakota and Iowa during the 1999-2008 years 

remained substantially below the 1997 NAAQS in most counties, as shown by the highest design 

values. In South Dakota, the highest design values were in Custer and Jackson Counties, where 

they peaked, respectively, at 71 and at 68 ppb. In Minnesota, the highest design values were in 

Anoka and Washington Counties, where they peaked at 75 ppb. In Iowa, the highest design 

values were in Clinton and Scott Counties, where they reached levels between 78 and 80 ppb in 

the early part of the 1999-2008 period, and decreased to levels, respectively, between 67 and 72, 

and 65 and 70 ppb during 2006-2008. The decrease of Iowa ozone levels between 1998 and 

2008 can be gauged by comparing the peak levels of 79-80 ppb in 2000-2003 with peak levels of 

70-75 ppb in 2006-2008. 

The data and weight of evidence analysis presented above support the conclusion of the 

North Dakota Interstate Transport SIP (adopted April 1, 2009 and submitted April 6, 2009) that 

emissions from North Dakota do not contribute significantly to nonattainment in any other state 

for the 1997 8-hour ozone NAAQS, consistently with the requirements of element (1) of CAA 

section 11 0(a)(2)(D)(i). 

Interference with PSD Element - PM2.5 and Ozone 

The third element of section 11 0(a)(2)(D)(i) requires a SIP to contain adequate provisions 

prohibiting emissions that interfere with any other state's required measures to prevent 

2009.
 

21 Ibid. p. 14.
 

20 
significant deterioration of its air quality. The State of North Dakota interstate transport SIP is 

consistent with the 2006 guidance. The SIP indicates in Section 7.8.1, subsection C, "Impact on 

Prevention of Significant Deterioration (PSD)," that the State's SIP provisions include an EPAapproved PSD program applicable to all regulated pollutants. North Dakota's regulations for its 

PSD program were federally-approved and made part of the SIP on November 2, 1979 (44 FR 

63103). On July 19,2007, EPA approved the North Dakota PSD revisions incorporating EPA's 

December 31, 2002 NSR Reforms into the State's regulations (72 FR 39564). North Dakota 

does not have nonattainment areas for any of the criteria pollutants and therefore does not have a 

Nonattainment New Source Review (NNSR) program. 

Consistent with EPA's November 29,2005 Phase II rule for the 1997 8-hour ozone 

standard (70 FR 71612), the State updated, effective April 1,2009, its PSD provisions by 

incorporating by reference most of the federal provisions at 52.21, including the definition of 

regulated NSR pollutant at 52.21 (b)(50), listing NOx as an ozone precursor. As discussed 

elsewhere in this notice? EPA proposes in this action to approve the April 1, 2009 update. Thus, 

the April 1, 2009 update, taken together with interstate transport SIP section 7.8.1, subsection C, 

satisfies the requirements of the third element of CAA section 11 0(a)(2)(D)(i) for the 1997 8­

hour ozone standard. 

For PM2.5. North Dakota's SIP declares that the State will follow EPA's interim guidance 

on use ofPMI0 as a surrogate for PM2.5. In response to EPA's request of March 2,2010, the 

North Dakota Air Quality Division, in a March 8, 2010 letter to the EPA Region 8 Air Program, 

has clarified an ambiguity in its interpretation of the interim guidance. The letter states that, until 

the guidance is ended or replaced, North Dakota will apply it consistent with EPA's 

interpretation of the federal case law relevant to the use of the PMlO Surrogate Policy (see 75 FR 

21
 
6827,6831-32, February 11,2010). The State will also take into account the limits provided in 

the policy itself, such as the need to identify the technical difficulties that justify the application 

of the policy in each specific case (75 FR 6834). With that clarification, the North Dakota 

Interstate Transport SIP satisfies the requirements ofthe third element of section 110(a)(2)(D)(i) 

for the 1997 PM2.5 NAAQS. 

On the basis of the data and analysis presented above, EPA concludes that the North 

Dakota Interstate Transport non-regulatory provisions adopted into the State SIP April 1, 2009 

satisfactorily address the requirements of elements (l) and (3) of section 11 0(a)(2)(D)(i) for the 

1997 PM25 and 8-hour ozone standards. 

V. Proposed Action 

EPA is proposing approval of revisions, submitted by the Governor of North Dakota with 

a letter dated April 6, 2009, to the prevention of significant deterioration provisions in subsection 

33-15-15 of the NDAC, and partial approval of the addition to the State SIP of the "Interstate 

Transport of Air Pollution" SIP addressing the requirements of Clean Air Act section 

110(a)(2)(D)(i) for the 1997 PM2.5 and 8-hour ozone National Ambient Air Quality Standards 

(NAAQS). For the North Dakota Interstate Transport SIP, EPA is proposing approval of: a) the 

introductory language in the State SIP Section 7.8; b) the "Overview" language in subsection A., 

Section 7.8.1 c) language in Section 7.8.1, subsection B., "Nonattainment and Maintenance 

Area Impact," that specifically addresses element (1) of section 11 O(a)(2)(D)(i), the requirement 

that the SIP contain adequate provisions prohibiting emissions from North Dakota from 

contributing significantly to nonattainment in any other state; and d) Section 7.8.1, subsection C, 

"Impact on Prevention of Significant Deterioration (PSD)." 

VI. Statutory and Executive Order Review 

22
 
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 nlerely 

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 (Public Law 

104-4); 

•	 Does not have Federalism inlplications as specified in Executive Order 13 132 (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); 

23
 
•	 Is not subject to requirements of Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air Act; and 

•	 Does not provide EPA with the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). 

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country 

located in the state, and EPA notes that it will not impose substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental 

relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping 

requirements, Volatile Organic Compounds. 

24
 
IDENTIFICATION OF DOCUMENT: Approval and Promulgation of State 

Implementation Plan Revisions; Stat~ of North Dakota; Air Pollution Control Rules, and 

Interstate Transport of Pollution for the 1997 PM2.5 ~nd 8-hour Ozone NAAQS: 

"Significant Contribution to Nonattainment" and "Interference with Prevention of 

Significant Deterioration" Requirements. Proposetf"Rule. (EPA-R08-0AR-2009-0282) Page 

250f25 

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

(~..-f'/ (2Jx-~GC Carol L. Campbell 

Acting Assistant Regional Administrator 

Region 8 

25