### ENVIRONMENTAL PROTECTION AGENCY 40 CFRPart52 EPA-R08-0AR-2009-0282; FRLApproval and Promulgation ofState Implementation Plan Revisions; State ofNorth Dakota; AirPollution ControlRules, and InterstateTransportofPollution for the 1997

PM2• 5 

### and 8-hourOzone NAAQS: "SignificantContribution to Nonattainment" and "Interferencewith Prevention ofSignificantDeterioration" 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 ofrevisions to the North Dakota air pollution control rules regarding prevention ofsignificant deterioration ofair quality, and partial approval ofthe SIP revision "InterstateTransport ofAir Pollution" addressing the requirements ofClean Air Act section 110(a)(2)(D)(i) for the 1997 PM2.5

### and 8-hour ozone National Ambient Air Quality Standards (NAAQS). Forthe latter, EPA proposes approval ofthe North Dakota Interstate Transport SIP sections that address the requirements ofsection 11O(a)(2)(D)(i) prohibiting a state's emissions from contributing significantly to any other state's nonattainment ofthe NAAQS, or from interfering with any other state's required measures to prevent significant deterioration ofits air quality. EPA will act at a later date onthe North Dakota Interstate Transport SIP sections that address the remaining two requirements ofsection 110(a)(2)(D)(i), prohibiting a state's emissions from interfering with any other state's maintenance ofthe NAAQS, or with any other state'srequired measures to protectvisibility. This action is being taken under section 110 ofthe Clean Air Act. 

### DATES: Comments must be received on orbefore [Insert date 

### 30 days afterpublication in the 1Federal Register]. ADDRESSES: Submityour comments, identified by Docket ID No. EPA-R08-0AR-2009­ 0282, by one ofthe following methods:

• http://www.regulations.gov. Followthe 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 

### FORFURTHER INFORMATION CONTACT ifyou are faxing comments).

• Mail: Callie Videtich, Director, AirProgram, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.

• Hand Delivery: Callie Videtich, Director, AirProgram, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted Mondaythrough Friday, 8:00

a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries ofboxed information. 

### Instructions: Direct your commentsto 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 maybe 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 2"anonymous access" system, which means EPA will not know your identity or contact information unless you provide it in the body ofyour comment. Ifyou 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 ofthe commentthat is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your name and other contact information in the body ofyour comment and with any disk or CD-ROM you submit. IfEPA cannot read your commentdue to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free of any defects or viruses. Foradditional instructions on submitting comments, go to Section 1. General Information ofthe 

### SUPPLEMENTARY INFORMATION section ofthis 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 othermaterial, 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 ifat all possible, you contactthe individual listed in the 

### FOR FURTHER INFORMATION CONTACT section to viewthe hard copy ofthe docket. You may viewthe hard copy ofthe docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays. 

### FORFURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, 

### 3Colorado 80202-1129, (303) 312-6436, mastrangelo.domenico@epa.gov. 

### SUPPLEMENTARY INFORMATION: Definitions Forthe purpose ofthis document, we are giving meaning to certain words or initials as follows: (i) The words or initials Act orCAA mean orreferto the Clean Air Act, unless the context indicates otherwise. (ii) The words EPA, we, us or our mean orrefer to the United States Environmental Protection Agency. (iii) The initials SIP mean orrefer to State Implementation Plan. (iv) The words North Dakota and State mean the State ofNorth Dakota. 

### Table ofContents I. GeneralInformation What Should I Consider as I Prepare My Comments for EPA? 

### II. WhatAction Is EPAProposing? III. WhatIs the StateProcess to SubmitThis Material to EPA? IV. EPA's Review and Technical Information A. Prevention ofSignificant Deterioration Provisions B. Interstate Transport SIP 

### V. Proposed Action VI. Statutory and Executive OrderReviews 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 e4mail. Clearly mark the part or all ofthe information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside ofthe 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 ofthe commentthat includes information claimed as CBI, a copy ofthe commentthatdoes not contain the information claimed as CBI mustbe submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFRpart 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. Followdirections

- The agency may ask you to respond to specific questions or organize comments by referencing a Code ofFederal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for yourrequested changes. d. Describe any assumptions and provide any technical information and/or datathat youused.

e. Ifyou estimate potential costs orburdens, 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 ofprofanity or personal threats. h. Make sure to submit your comments by the commentperiod deadline identified. 5

### II. WhatAction Is EPAProposing? EPA is proposing approval ofrevisions to the State provisions onthe prevention significant deterioration (PSD) ofair quality in subsection 33-15-15-01.2 ofthe North Dakota Administrative Code (NDAC), and is also proposing partial approval ofthe North Dakota Interstate Transport ofAir 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 ofAir Pollution," were adopted bythe State ofNorth Dakotaon 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 ofthe North DakotaInterstate Transport SIP that address two elements ofsection 110(a)(2)(D)(i): significant contribution to nonattainment ofthe NAAQS in any other state, element (l), and interference with required measures by any other state to prevent significant deterioration (PSD) ofits air quality, element (3). 

### III. WhatIs the State Process to SubnlitThis Material to EPA? Section 11 O(k) ofthe CAA addresses EPA's rulemaking action on SIP submissions by states. The CAA requires states to observe certain procedural requirements in developing SIP revisions for submittal to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occurprior to the revision being submitted by a state to EPA. The North DakotaDepartment ofHealth (NDDH) held a public hearing on October 7, 2008 for revisions to subsection 33-15-15-01.02 ofthe NDAC and for the addition to the North Dakota SIP ofthe Interstate Transportnon-regulatory provisions. The NDDH adopted the 6provisions on April 1, 2009 and submitted them to EPA on April 6, 2009. In a March 2, 2010 email, EPA requested thatthe North DakotaAir Quality Division clarify the State commitment, stated in the Interstate Transport SIP submitted to EPA April 6, 2009, to EPA's interim policy onthe use ofPM IO as surrogate for PM2.s. In a March 8, 2010 letter to the Region 8 Air Program, the North DakotaAir Quality Division clarified its interpretation ofEPA'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 thatthe State met the requirements ofsection 110(a)(2) ofthe CAA for reasonable notice and public hearing. IV. EPA's Review and Technical Information A. Prevention ofSignificantDeterioration Provisions The revisions to subsection 33-15-15-01.2 updated to August 1, 2007 the baseline date for incorporation by reference ofthe Federal requirements at 40 CFR 52.21. In addition, various administrative corrections and clarifications were made. As these revisions were made to make the PSD provisions consistent with Federal requirements, they are approvable. B. Interstate Transport SIP The interstate transport provisions at CAA section 110(a)(2)(D)(i), also referred to as the "good neighbor" provisions, require that each state SIP contain adequate provisions prohibiting emissions that adversely affect another state's air quality through interstate transport ofair pollutants. Section 110(a)(2)(D)(i) contains four requirements orelements: (I) significant contribution to nonattainment oftheNAAQS in any other state; (2) interference with maintenance ofthe NAAQS by any otherstate; (3) interference with any other state'srequired

measures to prevent significant deterioration ofits air quality; and (4) interference with any other 7state'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 .Sand 8-hour

ozone standards. l In November 2005 (70 FR 71612) and May 2008 (43 FR 28321), EPA finalized regulations implementing Phase II ofthe 1997 8-hour ozone NAAQS, and the New Source Review (NSR) Program for the 1997 PM2 .SNAAQS. To demonstrate that its SIP satisfies the requirements for significant contribution to nonattainment, North Dakotarelies on a combination of: (a) EPA modeling analysis results published in Federal Register notices as part ofthe 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 ofgeographical and meteorological factors affecting the likelihood ofsignificant pollution transport from North Dakotato the closest PM2 .Sand 8-hour

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

on the analysis ofgeographical and meteorological factors, and ofozone and PM2 .5concentration levels reflecting AQS monitoring data. EPA deems thatthe North Dakota Interstate Transport SIP sections addressing requirements (1) and (3) ofsection 

### 11O(a)(2)(D)(i) are consistent with EPA's 2006 guidance and the referenced implementation rules for ozone and PM2 .S. SignificantContribution Element

- PM2.S Section 

### 110(a)(2)(D)(i) provides that EPA cannot approve a state's SIP for a new or

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

1Memorandum from William T. Harnett entitled "Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-hour Ozone and PM2.5 National Ambient Air Quality Standards," (Aug. 15,2006) ("2006 Guidance"). This EPA guidance document is one ofthe 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 ofFine Particulate Matter and Ozone (Clean Air Interstate Rule); 8the state from contributing significantly to nonattainment ofthe NAAQS in another state. EPA's August 15, 2006, guidance to states concerning section 110(a)(2)(D)(i) recommended various methods by which states might evaluate whether ornot its emissions significantly contribute to violations ofthe 1997 PM2.5standards in another state. Among other methods, EPA recommended consideration ofavailable EPA modeling conducted in conjunction with CAIR, or in the absence ofsuch EPA modeling, consideration ofother information such as the amount of emissions, the geographic location ofviolating areas, meteorological data, orvarious other forms ofinfoffilation that would be relevant to assessing the likelihood ofsignificant contribution to violations ofthe NAAQS in another state. It should be noted that significant contribution to nonattainment is notrestricted 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 ofthe NAAQS (70 FR25172, May 12,2005, and 63 FR 57371, October 27, 1998). Furthermore, although relevant information other than modeling may be considered in assessing the likelihood ofsignificant contribution to violations ofthe 1997 PM2 .5 standard in another state, EPA notes that no single piece ofinformation in the following discussion is by itselfdispositive ofthe issue. Instead, the total weight ofall the evidence taken together supports the conclusion that emissionswithin North Dakota do not significantly contribute to violations in another state ofthe 1997 PM2 .5standard. Although significant contribution must be measured notjust against nonattainment areas, but against areas with monitors showing violations ofthe NAAQS, nonattainment areas are a convenient starting point for the analysis. Forthe 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). 9closest to the State ofNorth Dakota. In 2005, EPA designated both areas nonattainment for violations ofthe 1997 annual PM2.5 standards. See 70 FR944 (January 5, 2005), and40 CFR 81.314 and 81.327. A number ofconsiderations provide evidence thatNorth 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 ofBismarck, 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 ofeasterly surface winds, while not outcome determinative given the distances across which PM2.5can 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 ofdesignating Libby nonattainment for these standards, EPA noted the predominantly local origins ofPM2.5nonattainment in Libby.4 While the predominance oflocal sources does not alone rule outthe possibility ofimpacts from interstate transport, this fact in conjunction with the distance andthe near absence ofeasterly winds in North Dakota supports a conclusionthat 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 belowthe 15 J.lg/m3 nonattainment threshold. Annual PM2.5design values for most ofthese monitors remained at levels equal to, or less than, two thirds ofthe NAAQS.

3 Distances from Bismarck, North Dakota, to areas in other states are intended to approximate the average transport distance ofemissions 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 14,2010docket 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 (PM2.S) Designations," Chapter 6, pp. 347-352, 10Even 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 Dakotaand Libby are not registering violations ofthe NAAQS does not conclusively establish that emissions from North Dakota could not contribute in the aggregate to violations in Libby, butthis fact combined with other relevant evidence such as the distance, wind direction, and localized nature ofthe violations in Libby again supports theNorth 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 itselffell belowthe 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 ofthe NAAQS in that location. Similarly, available information indicates that North Dakota emissions are unlikely to contribute significantly to the violations ofthe 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 contributionto nonattainment ofthe 1997 PM2 .5NAAQS in other states. This determination included a modeling analysis ofthe contributions by upwind states to

a violating monitor in Cook County, which is approximately 750 miles southeast ofBismarck, North Dakota. According to modeling cited in the CArRproposal ofJanuary 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 ofMontana, Department ofEnvironmental Quality, "State Implementation Plan-Libby Annual PM25 Control Plan," submitted to EPA April 1,2008. 11Dakotato 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 CookCounty would be 0.12 Jlg/m3 (Table V-5, 69 FR 4608), an amount well below0.20 Jlg/m3
, the threshold setby EPA in CAIR for the initial determination ofwhether 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 ofthe 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 ofthe NAAQS. A reviewofthe AQS monitoring data for adjacent downwind states shows that it is highly unlikely that emissions from North Dakotacontribute significantly to downwind areas that have monitors showing violations ofthe 1997 24-hour and annual PM2 .5 NAAQS. Between 1999 and 2008 there were no violations ofthe 1997 PM2 ,5 NAAQS at any ofthe monitors in adjacent downwind states, such as Minnesota, South Dakota and Iowa. 9 In South Dakota, monitors in Minnehaha and Brookings Counties hadthe 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 of65 Jlg/m3

. For annual PM2 

### ,s, Codington and Minnehaha Counties had the monitors withthe 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 ofAppeals for the D.C. Circuit in its adjudication ofconsolidated challenges to CAIR. See North Carolina v, EPA, 531 F.3d 896,930 (D.C. Cir. 2008). 8 As EPA only evaluated sources ofNOx and SOz in CAIR, the CAIR modeling analysis, like the other evidence considered in this action, is not by itselfdispositive ofthe issue ofsignificant 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: "RelevantGuidance 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

. Itmustbe 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 ofthe Minnesotamonitoring stations was 11.2 )lg/m3
, significantly belowthe 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-hourPM2,5NAAQS of65 )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 ofevidence analysis presented above support the conclusion ofthe 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 ofelement (1) ofCAA section 110(a)(2)(D)(i). Significant Contribution Element

- 8-hour Ozone As noted above, Section 11O(a)(2)(D)(i) provides that EPA cannotapprove a state's SIP 13for a new or revised NAAQS unless it contains adequate measures to prohibit emissions from

sources within the state from contributing significantly to nonattainment ofthe NAAQS in another state. EPA's August 15, 2006, guidance to states concerning section 110(a)(2)(D)(i) recommended various methods by which states might evaluate whether or not its emissions significantly contribute to violations ofthe 1997 ozone standards in another state. Among other methods, EPA recommended consideration ofavailable EPA modeling conducted in conjunction with CAIR, or in the absence ofsuch EPA modeling, consideration ofother information such as the amount ofemissions, the geographic location ofviolating areas, meteorological data, or various other forms ofinformation that would be relevant to assessing the likelihood of significant contribution to violations ofthe 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 ofthe NAAQS (70 FR25172, May 12, 2005, and 63 FR 57371, October 27, 1998). Furthermore, although relevant information other than modeling may be considered in assessing the likelihood ofsignificant 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 byitselfdispositive ofthe issue. Instead, the total weight ofall the evidence taken together supports the conclusion that emissions from North Dakota sources are unlikely to contribute significantly to violations in another state ofthe 1997 8-hour ozone standard. Although significant contribution must be measured notjust against nonattainment areas, but against areas with monitors showing violations ofthe NAAQS, nonattainment areas are a convenient starting point for the analysis. For the 1997 8-hourozone NAAQS, the North Dakota 14

### Interstate Transport SIP revision identifies the DenverMetro AreaINorth Front Range (DMA/NFR) in Colorado, and the Illinois and Wisconsin counties along the southwestern shores ofLake Michigan as the closest designated nonattainment areas. 10 

### EPA's evaluation ofwhether emissions from North Dakotacontribute significantlyto the ozone nonattainment in these areas is based on an examination ofhow geographical and meteorological factors affect transport from North Dakotato the two areas noted above. Our approach does not rely on a quantitative determination ofNorth 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 ofthe relevant factors. While conclusions reached for each ofthe factors considered in the following analysis are not in and by themselves determinative, consideration ofthe likely etTect ofall factors provides a reliable qualitative conclusion onwhetherNorth 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 ofBismarck, North Dakota. I 1 

### Distance per se is not an obstacle to long range transport ofozone 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 ofthe CArRtransport 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/orNOx dispersion and/or removal from the atmosphere due to the effects ofwinds 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 15context, one may conclude that the 550 mile distance betweenNorth Dakota and the DMA/NFR reduces but does not exclude the possibility ofsignificant contribution to this area's nonattainment. Anothertransport factor is wind direction. Research for North Dakota and states immediately to the south and east shows that in North Dakotaboth surface and regional transport winds from the northeast, needed to transport ozone to the DMA/NFR area, are generally rare. Thirty years ofdata collected by the United States Geological Survey (USGS) on surface wind direction for several North Dakota locations showthat there was much variability by location and time ofthe year, with the exception ofnortheasterly winds, which were very infrequent. 12 For long range transport winds, a modeling analysis ofozone dispersion during the summer months (June to August) ofthe five year period 1991-1995 shows that onhigh 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 ofgeneral ozone transportpatterns not limited to the 1991-95 period, the rarity ofnortheasterly 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 ofthe 1997 ozone

distance ofemissions from sources in North Dakota to such areas. 12 See USGS data in EPA's January ]4,20]0docket memorandum: "RelevantGuidance and Supporting Documentation for the Proposed Rulemaking Federal RegisterAction Docket ID # EPA-R08-0AR-2009-0282." 13 Ozone TransportAssessment Group (OTAG), Air Quality Analysis Workgroup, "3.3 Climatology ofOzone 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. 16NAAQS in Denver. 14 The Illinois/Wisconsin counties along the southwestern shores ofLake Michigan (which make up the othernonattainment areawithin possible transport distance ofNorth Dakota) are approxin1ately 700 miles east-southeast from Bismarck. The CAIR modeling domain for 8-hour

ozone transport analysis included only the eastern halfofNorth Dakota, and the CAIRmodeling analysis did**~ot** determine whetherNOx emissions from North Dakota sources contributed significantly to ozone nonattainment in any downwind states. 15 However, the CAIRmodeling analysis results for Minnesotaprovide us the opportunity to draw inferences about ozone contribution from North Dakota sources to nonattainment in the Illinois/Wisconsin area. Itmust be noted that Minnesota is nearly halfas 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 similarto that necessary for substantial ozone transport from North Dakota. In addition, the CAIR modeling analysis estimated the Minnesota'sNOx emissions for the 2010 base yearto be approximatelytwice 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 belowthe initial threshold for including states in CArR. 18 In light ofthis CAIR determination, and ofMinnesota's largerNOx 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 ofthe average transport distance ofNOx 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 17nonattainment area, it is plausible to conclude that NOx emissions from North Dakota sources
are not likely to contribute significantly to nonattainment ofthe 1997 8-hour ozone standard in the Illinois and Wisconsin counties along the southwestern shores ofLake Michigan. Additional ozone transport factors specific to North Dakota are distance from the nonattainment area and prevailing orientation ofthe 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 datareferenced earlier, shows a great variability depending on location and time ofthe year. Northwesterly winds are more frequent than southwesterly or southeasterly winds considered separately, but less frequent than the two combined. Onthe otherhand, 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 componentthat might allow for significanttransport ofNOx to the Illinois/ Wisconsin area. 19 To the extent that these results are representative ofgeneral

ozone transport patterns not limited to the 1991-95 period, one may add the relative infrequency ofnorthwesterly transport winds from North Dakotato 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 ofLake Michiganby the Wisconsin Department

4602, Table V-2; 70 FR 25167. 19 Ibid. 18ofNatural Resources (WDNR). The WDNRanalysis identifies heavy industrial activity and dense urbanization as the majorlocal contributors to the high ozone concentrations in the Illinois and Wisconsin Counties along the southwestern shores ofLake Michigan. Regional ozone transport is thoughtto contribute from 40 to 600/0 ofthe 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 ofthe 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 ofthe Illinois/Wisconsin Counties on the southwestern shores ofLake Michigan.2o Finally, by 2008, the 8-hour ozone design values for the Illinois and Wisconsin nonattainment counties along the shores ofLake Michigan fell belowthe level ofthe NAAQS, a reduction attributed to the implementation ofState and Federal control measures since the designation ofthese 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 longerbe significantly contributing to violations ofthe NAAQS in that area. 2J As mentioned above, EPA must consider not only significant contribution to nonattainment areas, but also to areas with monitors showing violations ofthe NAAQS. A review ofthe AQS lTIonitoring data for adjacent downwind states shows that it is highly unlikely that emissions from North Dakotacontribute significantly to downwind areas that have monitors

20 Wisconsin Department ofNatural Resources, "AttainmentDemonstration-The Wisconsin Counties ofKenosha, Racine, Milwaukee, Waukesha, Ozaukee, Washington, Sheboygan, Manitowoc and Door," pp. 8, 51, September 19showing violations ofthe 1997 8-hourozone NAAQS. Between 1999 and 2008 there were no violations ofthe 1997 8-hour ozone NAAQS at any ofthe 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 belowthe 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 ofthe 1999-2008 period, and decreased to levels, respectively, between 67 and 72, and 65 and 70 ppb during 2006-2008. The decrease ofIowaozone levels between 1998 and 2008 can be gauged by comparing the peak levels of79-80 ppb in 2000-2003 with peak levels of 70-75 ppb in 2006-2008. The data and weight ofevidence analysis presented above support the conclusion ofthe 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 ofelement (1) ofCAA section 110(a)(2)(D)(i). Interference with PSD Element

- PM2.5 and Ozone The third element ofsection 110(a)(2)(D)(i) requires a SIP to contain adequate provisions prohibiting emissions that interfere with any other state's required measures to prevent

2009. 21 Ibid. p. 14. 20significant deterioration ofits air quality. The State ofNorth Dakota interstate transport SIP is consistent with the 2006 guidance. The SIP indicates in Section 7.8.1, subsection C, "Impact on Prevention ofSignificant 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 ofthe SIP on November 2, 1979 (44 FR 63103). On July 19,2007, EPA approved the North DakotaPSD 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 ofthe criteriapollutants and therefore does not have a NonattainmentNew Source Review (NNSR) program. Consistent with EPA'sNovember 29,2005 Phase II rule for the 1997 8-hour ozone standard (70 FR71612), the State updated, effective April 1,2009, its PSD provisions by incorporating by reference most ofthe federal provisions at 52.21, including the definition of regulatedNSR 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 ofthe third element ofCAA section 110(a)(2)(D)(i) for the 1997 8­ hour ozone standard. For PM2.5.North Dakota's SIP declares that the State will follow EPA's interim guidance

on use ofPMI0 as a surrogate for PM2.5. In response to EPA's request ofMarch 2,2010, the North DakotaAir Quality Division, in a March 8, 2010 letter to the EPA Region 8 Air Program, has clarified an ambiguity in its interpretation ofthe interim guidance. The letter states that, until the guidance is ended or replaced, North Dakota will apply it consistent with EPA's interpretation ofthe federal case law relevant to the use ofthe PMlO Surrogate Policy (see 75 FR 216827,6831-32, February 11,2010). The State will also take into accountthe limits provided in the policy itself, such as the needto identifythe technical difficulties thatjustifythe application ofthe policy in each specific case (75 FR6834). With that clarification, the North Dakota Interstate Transport SIP satisfies the requirements ofthe third element ofsection 110(a)(2)(D)(i) for the 1997 PM2.5NAAQS. Onthe basis ofthe data and analysis presented above, EPA concludes that theNorth Dakota Interstate Transportnon-regulatory provisions adopted into the State SIP April 1, 2009 satisfactorily address the requirements ofelements (l) and (3) ofsection 110(a)(2)(D)(i) for the 1997 

### PM25 and 8-hour ozone standards. V. Proposed Action EPA is proposing approval ofrevisions, submitted by the Governor ofNorth Dakota with

a letter dated April 6, 2009, to the prevention ofsignificant deterioration provisions in subsection 33-15-15 ofthe NDAC, and partial approval ofthe addition to the State SIP ofthe "Interstate Transport ofAir Pollution" SIP addressing the requirements ofClean Air Act section 110(a)(2)(D)(i) for the 1997 PM2.5 and 8-hour ozoneNational Ambient Air Quality Standards (NAAQS). Forthe 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) ofsection 11 O(a)(2)(D)(i), the requirement that the 

### SIP contain adequate provisions prohibiting emissions from North Dakotafrom contributing significantly to nonattainment in any other state; and d) Section 7.8.1, subsection C, "Impacton Prevention ofSignificant Deterioration (PSD)." VI. Statutory and Executive OrderReview 22Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe 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 ofthe 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. Forthat reason, this action:

• Is not a "significantregulatory action" subjectto review by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October4, 1993);

• Does not impose an information collection burden under the provisions ofthe Paperwork. Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5 U.S.C. 601 

### etseq.);

• Does not contain any unfunded mandate or significantly oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• Does nothave 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 subjectto Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR28355, May 22, 2001);

23• Is not subject to requirements ofSection 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose 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 FR7629, 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 orpreempttribal law. 

### List ofSubjects in 40 CFR Part 52 Environmental protection, Airpollution 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 ofState Implementation Plan Revisions;**Stat~** 

### ofNorth Dakota; AirPollution ControlRules, and InterstateTransport ofPollution for the 1997 PM2.5**~nd** 

### 8-hour OzoneNAAQS: "SignificantContributionto Nonattainment" and "Interferencewith Prevention of SignificantDeterioration" Requirements. Proposetf"Rule. (EPA-R08-0AR-2009-0282) Page 250f25 Authority: 42 U.S.C. 7401 

### etseq.

# (~..-f' /

# (2Jx-~GC Carol L. Campbell Acting Assistant Regional Administrator Region 8



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