```

[Federal Register: June 3, 2010 (Volume 75, Number 106)]
[Rules and Regulations]               
[Page 31290-31306]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jn10-9]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2009-0282; FRL-9155-6]

 
Approval and Promulgation of State Implementation Plan Revisions; 
State of North Dakota; Air Pollution Control Rules, and Interstate 
Transport of Pollution for the 1997 PM2.5 and 8-Hour Ozone 
NAAQS: ``Significant Contribution to Nonattainment'' and ``Interference 
With Prevention of Significant Deterioration'' Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency is approving State 
Implementation Plan (SIP) revisions submitted by the State of North 
Dakota on April 6, 2009. Specifically, EPA is approving revisions to 
the North Dakota air pollution control rules regarding prevention of 
significant deterioration of air quality, and partially approving the 
SIP revision ``Interstate Transport of Air Pollution'' addressing the 
requirements of Clean Air Act section 110(a)(2)(D)(i) for the 1997 
PM2.5 and 8-hour ozone National Ambient Air Quality 
Standards (NAAQS). These revisions, referred to as the Interstate 
Transport of Air Pollution SIP, address the requirements of Clean Air 
Act section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997 
PM2.5 National Ambient Air Quality Standards (NAAQS). In 
this action, EPA is approving the North Dakota Interstate Transport SIP 
provisions that address the requirement of section 110(a)(2)(D)(i)(I) 
that emissions from the state's sources do not ``contribute 
significantly'' to nonattainment of the 1997 8-hour ozone NAAQS and the 
1997 PM2.5 NAAQS in any other state. In addition, EPA is 
approving the provisions of this SIP that address the requirement of 
section 110(a)(2)(D)(i)(II) that emissions from the state's sources do 
not interfere with measures required in the SIP of any other state 
under part C of the Clean Air Act (CAA) to prevent ``significant 
deterioration of air quality.'' EPA will act at a later date on the 
North Dakota Interstate Transport SIP provisions that address the 
remaining two requirements of section 110(a)(2)(D)(i), that emissions 
from the state's sources do not ``interfere with maintenance'' of the 
1997 8-hour ozone and 1997 PM2.5 NAAQS in any other state, 
and do not interfere with measures required in the SIP of any other 
state to ``protect visibility.'' This action is being taken under 
section 110 of the Clean Air Act.

DATES: Effective Date: This final rule is effective July 6, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2009-0282. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov, or in hard copy at the Air 
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through

[[Page 31291]]

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

FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program, 
U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6416, 
mastrangelo.domenico@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or North Dakota mean the State of North 
Dakota, unless the context indicates otherwise.

Table of Contents

I . Background
II . Response to Comments
III. Section 110(l)
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background and Purpose

    In a proposed rule action published March 31, 2010 EPA proposed 
approval of revisions to the State provisions on the prevention of 
significant deterioration (PSD) of air quality in subsection 33-15-15-
01.2 of the North Dakota Administrative Code (NDAC),\1\ and partial 
approval of the North Dakota Interstate Transport of Air Pollution SIP 
for the 1997 PM2.5 and 8-hour ozone National Ambient Air 
Quality Standards (NAAQS). The revisions to NDAC subsection 33-15-15-
01.2, and the addition to the North Dakota SIP of section 7.8, 
``Interstate Transport of Air Pollution,'' were adopted by the State of 
North Dakota on April 1, 2009 and submitted to EPA on April 6, 2009.
---------------------------------------------------------------------------

    \1\ EPA notes that in the referenced proposed rule there were 
references to the revision of ``NDAC subsection 33-15-15-01.02'' (75 
FR 16027). As was clear from the context, the references were the 
results of typographical errors.
---------------------------------------------------------------------------

    In chapter 33-15-15, NDAC, Prevention of Significant Deterioration 
of Air Quality, revisions were made to subsection 33-15-15-01.2, Scope. 
The baseline date for incorporation by reference of the federal PSD 
program set out at 40 CFR 52.21 was updated to August 1, 2007. In 
addition, various administrative corrections and clarifications were 
made. In our proposal to approve these revisions, EPA stated that the 
revisions were made to make the North Dakota PSD program consistent 
with federal requirements. EPA did not receive comments that persuade 
the Agency that the revisions are less stringent than or inconsistent 
with federal requirements, and thus EPA is approving them in today's 
final action.
    Section 110(a)(2)(D)(i) of the CAA requires that a state's SIP must 
contain adequate provisions prohibiting any source or other type of 
emissions activity within the state from emitting any air pollutant in 
amounts which will: (1) Contribute significantly to nonattainment of 
the NAAQS in any other state; (2) interfere with maintenance of the 
NAAQS by any other state; (3) interfere with any other state's required 
measures to prevent significant deterioration of air quality; or (4) 
interfere with any other state's required measures to protect 
visibility. In our proposed rule EPA proposed partial approval of the 
North Dakota Interstate Transport of Air Pollution SIP for the 1997 
PM2.5 and 8-hour ozone NAAQS. Specifically, EPA proposed 
approval of the North Dakota SIP sections that addressed the first and 
third requirements, ``significant contribution'' and ``interference 
with PSD'' of the Interstate Transport CAA provisions. EPA will act at 
a later date on the North Dakota Interstate Transport SIP sections that 
address the remaining requirements: ``interference with maintenance'' 
and ``interference with visibility.''
    To assess whether emissions from North Dakota contribute 
significantly to downwind nonattainment for the 1997 PM2.5 
NAAQS, North Dakota and EPA's technical analysis relied on the results 
of CAIR modeling and on monitoring data in neighboring downwind states. 
The CAIR modeling results indicated that the State contribution to the 
closest nonattainment area was below the ``significant contribution'' 
threshold. Monitoring data showed that in downwind states there were no 
monitors violating the 1997 24-hour or annual PM2.5 NAAQS.
    To assess whether emissions from North Dakota contribute 
significantly to downwind nonattainment for the 1997 8-hour ozone 
NAAQS, EPA's technical analysis relied on EPA's 2006 Guidance, 
recommending consideration of available EPA modeling conducted in 
conjunction with CAIR,\2\ or in the absence of such EPA modeling, 
consideration of other information such as the amount of emissions, the 
geographic location of violating areas, meteorological data, or various 
other forms of information that would be relevant to assessing the 
likelihood of significant contribution to violations of the NAAQS in 
another state. Consistent with the NOX SIP Call and CAIR, 
our technical analysis assessed the extent of ozone transport from 
North Dakota not just for areas designated nonattainment, but also for 
areas in violations of the NAAQS. Because EPA did not have detailed 
modeling for North Dakota and nearby downwind states, our approach did 
not rely on a quantitative determination of North Dakota's contribution 
but on a weight-of-evidence approach using quantitative information 
such as North Dakota's distance from areas with monitors showing 
violations of the NAAQS, modeling results outlining wind vectors for 
regional transport of ozone on high ozone days, CAIR modeling results 
for other states, and results of modeling studies for the nonattainment 
areas specifying the range of wind directions along which contribution 
of ozone transport occurred. Given that the assessments for each of 
these pieces of evidence are not individually definitive or outcome 
determinative, EPA concluded in its proposed action that the various 
factual and technical considerations supported a determination of no 
significant contribution from North Dakota emissions to the ozone 
nonattainment areas noted above.
---------------------------------------------------------------------------

    \2\ In this action the expression ``CAIR'' refers to the final 
rule published in the May 12, 2005 Federal Register and entitled 
``Rule to Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to NOX SIP Call; Final Rule'' (70 FR 25162).
---------------------------------------------------------------------------

    EPA did not receive comments that persuade the Agency that there is 
such significant contribution for the 1997 ozone or PM2.5 
NAAQS and thus in today's final action EPA is making a final regulatory 
determination that North Dakota's emissions sources do not contribute 
significantly to violations of the 1997 8-hour ozone NAAQS in any other 
state.

II. Response to Comments

    EPA received one letter from WildEarth Guardians (WG) and one 
letter from the Sierra Club commenting on EPA's Federal Register action 
proposing approval of the portion of the North Dakota Interstate 
Transport SIP that addresses the ``significant contribution to 
nonattainment'' and PSD requirements of CAA Section 110(a)(2)(D)(i) for 
the 1997 8-hour ozone and PM2.5 NAAQS, and specific 
revisions to the air quality control rules

[[Page 31292]]

addressed within that proposal. In this section EPA responds to the 
significant adverse comments made by the commenters.
    Comment No. 1--WG opposed EPA's approval of North Dakota's revision 
of its PSD program, based on several alleged deficiencies in that 
program. Although WG does not explicitly state it, in the context of 
this action, which also approves the PSD portion of the interstate 
transport SIP noted above, WG's comments could be taken to argue that 
the alleged deficiencies adversely impact the measures required in 
other states to prevent significant deterioration of air quality in 
such states. To the extent WG makes this argument, EPA responds below.
    As to the first deficiency, WG noted that the current federally-
enforceable version of the North Dakota PSD program incorporates 40 CFR 
52.21 as it stood on October 1, 2003. WG stated that the PSD program in 
North Dakota should be amended to reflect the effects of court opinions 
that vacated portions of that version of 52.21.
    EPA Response--EPA disagrees with the commenter's argument that the 
North Dakota SIP does not reflect current requirements. North Dakota's 
submittal incorporated 40 CFR 52.21 as it stood on August 1, 2007. The 
August 1, 2007 version of 40 CFR 52.21 fully reflected the effects of 
federal court decisions vacating certain portions of NSR rules 
promulgated in 2002 and 2003.\3\ Therefore, EPA believes that the North 
Dakota PSD program approved by EPA in this action also reflects the 
effects of those decisions and is therefore consistent with federal 
requirements.
---------------------------------------------------------------------------

    \3\ 67 FR 80186 (Dec. 31, 2002); 68 FR 61248 (Oct. 23, 2003); 
New York v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005); New York v. EPA, 
443 F.3d 880 (D.C. Cir. 2006).
---------------------------------------------------------------------------

    EPA agrees with the implicit argument (mentioned above) that 
certain deficiencies in a state's existing SIP, or in a section 
110(a)(2)(D) SIP submission itself, could affect the approvability of 
the section 110(a)(2)(D) SIP submission with respect to the PSD 
requirement. As provided in EPA's guidance for such SIP submissions for 
the 1997 8-hour ozone and PM2.5 NAAQS, EPA made 
recommendations with respect to specific SIP revisions that it 
anticipated would be appropriate to address in the section 110(a)(2)(D) 
SIP submissions for these NAAQS, whether by reference to other 
submissions already made or within the same SIP submission. For 
example, for the requirements of the PSD element of section 
110(a)(2)(D) for these NAAQS, EPA indicated that a state's SIP should 
reflect the current requirements for the implementation of the PSD and 
nonattainment NSR requirements for these NAAQS, as a means of 
establishing that the state's SIP would not interfere with measures to 
prevent significant deterioration in other states. EPA believes that 
this assessment is fact specific, however, and that the question of 
whether a state's SIP could cause such interference in another state 
must be examined on a case by case basis.
    In this instance, because the North Dakota program now tracks the 
requirements of 40 CFR 52.21 as of August 1, 2007, WG's concern gives 
no reason to conclude that the revisions could interfere with the 
measures required in other states.
    Comment No. 2--As another potential defect in the North Dakota PSD 
program, WG noted that the North Dakota PSD program adds the sentence: 
``[t]his term does not include effects on integral vistas,'' to 40 CFR 
52.21(b)(29), that is, the definition of ``adverse impact on 
visibility.'' WG argued that this additional language renders the PSD 
program less stringent than federal requirements.
    EPA Response--EPA disagrees with WG's comment. In this comment, and 
others, WG appears to believe that per se any deviation from the 
language of 40 CFR 52.21 is invalid. However, the minimum federal 
requirements for state PSD programs are specified in 40 CFR 51.166, not 
in 52.21.\4\ One way in which a state PSD program may meet the 
requirements of 51.166 is to adopt by reference the federal PSD program 
at 52.21, as North Dakota has here. To determine whether deviations 
from 52.21 in the North Dakota PSD program meet federal requirements 
for a state program, the program is judged against the minimum federal 
requirements for a state PSD program given in 51.166.
---------------------------------------------------------------------------

    \4\ ``The EPA implements the statutory PSD requirements through 
two sets of regulations. At 40 CFR 51.166, EPA has set minimum 
program requirements for States to follow in preparing, adopting, 
and submitting a PSD program for inclusion as part of the required 
SIP pursuant to Section 110(c) of the Act. At 40 CFR 52.21, EPA has 
promulgated a Federal PSD program requiring the Administrator's 
preconstruction review and approval of major new or modified 
stationary sources in the absence of an approved State PSD program, 
and for areas such as Indian Lands and Outer Continental Shelf areas 
that are outside of the jurisdiction of individual States.'' 58 FR 
31622, 31623 (June 3, 1993). For states that--unlike North Dakota--
lack a SIP-approved PSD program, EPA may delegate implementation of 
52.21 to the state. E.g., 73 FR 53401 (Sept. 16, 2008) (``Prior to 
approval of Michigan's submitted PSD program, EPA delegated to 
Michigan (via delegation letter dated September 26, 1988) the 
authority to issue PSD permits through the Federal PSD rules at 40 
CFR 52.21.'').
---------------------------------------------------------------------------

    As to the requirements of 51.166, section 51.166(o)(1) creates a 
requirement for visibility impact analysis for new major stationary 
sources and major modifications. Federal requirements for protection of 
visibility in state SIPs are set out in subpart P of part 51. 
Procedures for the visibility impact analysis required by 51.166(o)(1) 
are given in 51.307, which, by its placement in subpart P, uses the 
definition of the term ``adverse impact on visibility'' at 51.301. 
North Dakota's definition is consistent with the federal definition; in 
fact, it matches it precisely. In addition, no integral vistas have 
been identified under section 51.304, so the addition of the sentence 
has no effect. Therefore, EPA disagrees with the comment that the North 
Dakota PSD program, by modifying 52.21(b)(29), does not meet federal 
requirements.
    Comment No. 3--As another potential issue, WG noted that the North 
Dakota PSD program deletes references to NAAQS at 52.21(d), (k)(1), and 
(v)(2)(iv)(a). WG argued that the references must be restored to ensure 
that the NAAQS apply everywhere and that PSD increments are federal 
increments.
    EPA Response--The cited references are replaced in the North Dakota 
rules by provisions that apply the state ambient air quality standards 
for areas within North Dakota's jurisdiction and that apply the NAAQS 
elsewhere. As discussed elsewhere in these responses, updates to the 
state ambient air quality standards, consistent with revisions to the 
NAAQS, were submitted by North Dakota to EPA on April 1, 2009. EPA will 
be acting on the revision in a separate action. Also, the North Dakota 
PSD program incorporates 40 CFR 52.21(c), which defines the PSD 
increments, by reference without modification; therefore, the North 
Dakota PSD increments are the federal increments.
    Comment No. 4--As an additional concern, WG noted that the North 
Dakota PSD program replaces 40 CFR 52.21(h) with different state stack 
height requirements. WG argued that these requirements must be at least 
as stringent as federal requirements. Implicitly, WG argued that these 
different stack height requirements would interfere with other states's 
required PSD measures.
    EPA Response--EPA disagrees with this comment. WG did not explain 
or identify any way in which the state requirements are less stringent 
than federal requirements. EPA has reviewed

[[Page 31293]]

the North Dakota state stack height requirements and finds that the 
requirements are at least as stringent as those in 40 CFR 51.166(h), 
which specifies the minimum stack height requirements for a state PSD 
program. Therefore, EPA does not believe that the provision creates a 
deficiency in the North Dakota PSD program or that the North Dakota SIP 
interferes with measures required for prevention of significant 
deterioration in any other state for purposes of the 1997 8-hour ozone 
and PM2.5 NAAQS.
    Comment No. 5--WG further argued that the North Dakota PSD program 
must include 40 CFR 52.21(l)(1) and must update the reference to 
Appendix W to part 51 in order to be consistent with current federal 
law requirements. WG also asserted that the North Dakota guidelines for 
air quality modeling are unacceptable because they are less stringent 
than applicable federal requirements.
    EPA Response--EPA disagrees with the commenter's assessment on this 
point. The federal requirements for modeling in a PSD program are set 
out at 40 CFR 51.166(l). The North Dakota PSD provision that replaces 
52.21(l)(1) is consistent with these requirements. Furthermore, the 
provision does not specify a particular date for incorporation of 
Appendix W; EPA therefore believes no update to the reference is 
necessary. Finally, 51.166(l) provides for modification or substitution 
of models in Appendix W on a case-by-case or generic basis with written 
approval of the Administrator. The Administrator has approved, in 
writing, use of the North Dakota guideline on a generic basis by 
approving previous submittals of the North Dakota PSD program that 
contained the same provision allowing for use of the guideline. 
Therefore, EPA believes that the North Dakota provision is consistent 
with federal requirements in 51.166(l).
    Comment No. 6--WG also identified analyses for visibility as 
another alleged deficiency in the existing PSD program in North Dakota. 
WG noted that the state's PSD program requires visibility analysis for 
new source review to be prepared in accordance with state requirements. 
WG argued that these requirements are less stringent than federal 
requirements, and that the provision must therefore be deleted.
    EPA Response--EPA disagrees with the commenter's assessment. In 
this instance, WG did not explain or identify any way in which the 
state requirements are less stringent than federal requirements. The 
federal requirements for visibility analysis procedures for new source 
review in state PSD programs are provided in 40 CFR 51.307. The 
procedures do not specify a particular method for visibility analysis. 
EPA has reviewed the North Dakota requirements for visibility analysis 
and finds they are consistent with federal requirements. Therefore, 
this is not a basis for disapproval of the North Dakota PSD program 
revision or the section 110(a)(2)(D) submission.
    Comment No. 7--WG expressed concern with certain public process 
provisions in the North Dakota SIP. In particular, WG identified state 
specific provisions for public participation replacing those at 
52.21(q). WG argued that the state should not be allowed to provide 
``summaries'' of other materials it considered in making its permit 
decisions.\5\ WG also argued that the state provisions should require 
the Department to respond to relevant comments.
---------------------------------------------------------------------------

    \5\ The commenter refers to section (g) of the provision, but 
from the mention of ``summaries'' it appears the commenter is 
referring to section (b).
---------------------------------------------------------------------------

    EPA Response--EPA disagrees with the commenter's view of these 
specific requirements. The minimum federal requirements for public 
participation in a state PSD program are set out in 51.166(q). The 
state provision cited by WG is consistent with the requirements at 
51.166(q)(2)(ii); in fact, the provision matches 51.166(q)(2)(ii) 
precisely. Therefore, EPA believes that the North Dakota PSD program 
meets federal requirements for public participation. As such, this is 
not a basis for disapproval of the North Dakota PSD program revision or 
the section 110(a)(2)(D) submission.
    Comment No. 8--WG identified other procedural requirements as 
potential defects in the North Dakota SIP. WG noted that the North 
Dakota PSD program adds to 52.21(r)(2) the sentence: ``[i]n cases of 
major construction projects involving long lead times and substantial 
financial commitments, the department may provide by a condition to the 
permit to construct a time period greater than eighteen months when 
such time extension is supported by sufficient documentation by the 
applicant.'' WG argued that this provision should be removed because it 
allows major sources to be built with stale determinations of ambient 
air impacts and best available control technology.
    EPA Response--Federal requirements for source obligations in a 
state PSD program are set out at 51.166(r). This federal regulatory 
provision does not impose any particular time period for validity of a 
PSD permit. In addition, 52.21(r)(2) currently provides for extensions 
beyond the given eighteen-month period, if an applicant makes a 
satisfactory showing that an extension is justified. Thus, EPA believes 
that the state regulatory provision cited by the commenter is 
consistent with both 51.166(r) and 52.21(r)(2). Given this conclusion, 
EPA does not consider this a basis for disapproval of the North Dakota 
PSD program revision or the section 110(a)(2)(D) submission.
    Comment No. 9--WG also opposed EPA's proposed approval of the North 
Dakota section 110(a)(2)(D) SIP submission with respect to PSD 
requirements for the 1997 8-hour ozone and PM2.5 NAAQS 
because the submission did not address other, more recent NAAQS. WG 
noted that the current EPA-approved version of the North Dakota SIP at 
NDAC 33-15-02 does not incorporate all current NAAQS, including the 
2006 PM2.5 NAAQS, the 2008 ozone NAAQS, and the 2010 
NO2 NAAQS. WG stated its concern that the failure to 
incorporate the latest NAAQS implies that these NAAQS will not be 
addressed in permitting and planning determinations by the state.
    EPA Response--EPA disagrees with the commenter on this point. 
First, in this action, EPA is approving the North Dakota interstate 
transport SIP for the 1997 8-hour ozone and PM2.5 NAAQS; EPA 
is also approving a revision to North Dakota's PSD program. WG does not 
explain how a failure to incorporate the current NAAQS in the state 
ambient air quality standards is relevant to EPA's action on the North 
Dakota interstate transport SIP for the 1997 8-hour ozone and 
PM2.5 NAAQS. Thus, the comment does not give grounds for 
disapproval of the interstate transport SIP for the NAAQS at issue in 
this rulemaking.
    Furthermore, as noted in the proposal for this action, EPA has 
included the revision to North Dakota's PSD program in this action to 
address an issue specifically mentioned in the 2006 guidance. The 
guidance recommended that in order to satisfy the PSD requirement of 
110(a)(2)(D)(i), the state's interstate transport SIP, or existing SIP, 
should meet the requirements of the Phase II implementation rule for 
the 1997 8-hour ozone NAAQS. In particular, this means the state's SIP 
should identify NOX as a precursor to ozone, and the SIP 
revision submitted by North Dakota has done so. Thus, the current NAAQS 
are not relevant to this action.
    Finally, EPA disagrees that approval of this SIP submission implies 
that North Dakota will not take appropriate required actions with 
respect to other,

[[Page 31294]]

more recent, NAAQS. Consistent with the requirements of the CAA and 
applicable regulations, EPA expects North Dakota to consider other more 
recent NAAQS in permitting decisions. As additional SIP revisions are 
necessary, EPA anticipates that the state will comply, as indeed it has 
in this very action with respect to necessary revisions for the 1997 8-
hour ozone NAAQS.
    Comment No. 10--WG asserted that EPA's proposed approval was based 
on a ``flawed legal standard.'' According to WG, EPA erred in the 
proposal by explaining that various factual or technical assessments 
indicate that it is ``highly unlikely'' that emissions from North 
Dakota sources significantly contribute to violations of the 1997 8-
hour ozone NAAQS, or to violations of the 1997 PM2.5 NAAQS 
in other states. WG's position is that EPA cannot approve a SIP 
submission based upon ``unlikelihood'' because CAA Section 
110(a)(2)(D)(i)(I) prohibits emissions that contribute significantly to 
nonattainment in other States and does not allow EPA to approve SIPs 
simply because a state's emissions are ``unlikely'' to contribute 
significantly to nonattainment.
    EPA Response--EPA disagrees with WG's characterization of EPA's 
analysis and WG's interpretation of the statutory requirements. First, 
EPA notes that the discussion in the proposal was intended to present 
the various factual and technical considerations available to assess 
whether there is or is not significant contribution to nonattainment in 
other states as a result of emissions from North Dakota sources. Given 
that these assessments are not individually definitive or outcome 
determinative, EPA believes that it is entirely appropriate to present 
and describe the relative probative value of the various considerations 
accurately. Second, EPA notes that all such technical evaluations are 
by their nature subject to some degree of uncertainty. Indeed, the 
modeling that WG elsewhere contends should be the sole method for 
evaluating interstate transport is itself but one means of evaluating 
the real world impacts of emissions in light of meteorological 
conditions, wind direction, and other such variables, and produces a 
result that is itself subject to some degree of uncertainty. Third, EPA 
believes that it was also appropriate to describe the various factual 
and technical considerations and whether they indicated a 
``likelihood'' of significant contribution to nonattainment in another 
state because the proposal was seeking comment from the public upon 
whether these considerations together supported a determination of no 
such significant contribution. EPA did not receive comments that 
persuade the Agency that there is such significant contribution, and 
thus in today's final action EPA is making a final regulatory 
determination that North Dakota emissions sources do not significantly 
contribute to violations of the 1997 8-hour ozone NAAQS, or to 
violations of the 1997 PM2.5 NAAQS in any other state, for 
the reasons explained elsewhere in this notice. In other words, EPA has 
concluded that the existing SIP for North Dakota already contains 
adequate provisions to prevent emission from North Dakota sources from 
significantly contributing to violations of the 1997 8-hour ozone 
NAAQS, or to violations of the 1997 PM2.5 NAAQS in other 
states and is therefore approving North Dakota's submission for this 
purpose.
    Comment No. 11--WG argued that North Dakota and EPA did not 
appropriately assess impacts to nonattainment in downwind states. 
According to WG, North Dakota failed to assess significance of downwind 
impacts in accordance with EPA guidance and precedent. Although this is 
unclear from the comment, WG evidently believes that EPA's applicable 
guidance for this purpose appears only in the 1998 NOX SIP 
call. WG asserts that, based on the precedent of the NOX SIP 
Call, the following issues need to be addressed in determining whether 
or not an area is significantly contributing to nonattainment in 
downwind States: (a) The overall nature of the ozone problem; (b) the 
extent of downwind nonattainment problems to which upwind States' 
emissions are linked; (c) the ambient impact of the emissions from 
upwind States' sources on the downwind nonattainment problems; and (d) 
the availability of high cost-effective control measures for upwind 
emissions. (63 FR 57356-57376, October 27, 1998).
    EPA Response--EPA disagrees with WG on this point. Section 
110(a)(2)(D) does not explicitly specify how states or EPA should 
evaluate the existence of, or extent of, interstate transport and 
whether that interstate transport is of sufficient magnitude to 
constitute ``significant contribution to nonattainment'' as a 
regulatory matter. The statutory language is ambiguous on its face and 
EPA must reasonably interpret that language when it applies it to 
factual situations before the Agency.
    EPA agrees that the NOX SIP Call is one rulemaking in 
which EPA evaluated the existence of, and extent of, interstate 
transport. In that action, EPA developed an approach that allowed the 
Agency to evaluate whether there was significant contribution to ozone 
nonattainment across an entire region that was comprised of many 
states. That approach included regional scale modeling and other 
technical analyses that EPA deemed useful to evaluate the issue of 
interstate transport on that geographic scale and for the facts and 
circumstances at issue in that rulemaking. EPA does not agree, however, 
that the approach of the NOX SIP Call is necessarily the 
only way that states or EPA may evaluate the existence of, and extent 
of, interstate transport in all situations, and especially in 
situations where the state and EPA are evaluating the question on a 
state by state basis, and in situations where there is not evidence of 
widespread interstate transport.
    Indeed, EPA issued specific guidance making recommendations to 
states about how to address section 110(a)(2)(D) in SIP submissions for 
the 8-hour ozone and PM2.5 NAAQS. EPA issued this guidance 
document, entitled ``Guidance for State Implementation Plan (SIP) 
Submissions to Meet Current Outstanding Obligations Under Section 
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National 
Ambient Air Quality Standards'' on August 15, 2006.\6\ This guidance 
document postdated the NOX SIP Call, and was developed by 
EPA specifically to address SIP submissions for the 1997 8-hour ozone 
and PM2.5 NAAQS.
---------------------------------------------------------------------------

    \6\ Memorandum from William T. Harnett entitled Guidance for 
State Implementation Plan (SIP) Submissions to Meet Current 
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-hour 
Ozone and PM2.5 National Ambient Air Quality Standards 
(Aug. 15, 2006) (``2006 Guidance''); p. 3. An electronic copy is 
available for review at the regulations.gov web site as Document ID 
No. EPA-R08-OAR-2007-1032.0004.1.
---------------------------------------------------------------------------

    Within that 2006 guidance document, EPA notes that it explicitly 
stated its view that the ``precise nature and contents of such a 
submission [are] not stipulated in the statute'' and that the contents 
of the SIP submission ``may vary depending upon the facts and 
circumstances related to the specific NAAQS.'' \7\ Moreover, within 
that guidance, EPA expressed its view that ``the data and analytical 
tools available'' at the time of the SIP submission ``necessarily 
affect[] the content of the required submission.'' \8\ To that end, EPA 
specifically recommended that states located within the geographic 
region covered by the ``Clean Air Interstate Rule (CAIR),'' comply with 
section 110(a)(2)(D) for the 1997 8-hour

[[Page 31295]]

ozone and PM2.5 NAAQS by complying with CAIR itself. For 
states outside the CAIR rule region, however, EPA recommended that 
states develop their SIP submissions for section 110(a)(2)(D) 
considering relevant information.
---------------------------------------------------------------------------

    \7\ Id. at 3.
    \8\ Id.
---------------------------------------------------------------------------

    EPA explicitly recommended that relevant information for section 
110(a)(2)(D) submissions addressing significant contribution to 
nonattainment ``might include, but is not limited to, information 
concerning emissions in the State, meteorological conditions in the 
State, the distance to the nearest nonattainment area in another State, 
reliance on modeling conducted by EPA in determining that such State 
should not be included within the ambit of the CAIR, or such other 
information as the State considers probative on the issue of 
significant contribution.'' \9\ In addition, EPA recommended that 
states might elect to evaluate significant contribution to 
nonattainment using relevant considerations comparable to those used by 
EPA in CAIR, including evaluating impacts as of an appropriate year 
(such as 2010) and in light of the cost of control to mitigate 
emissions that resulted in significant contribution.
---------------------------------------------------------------------------

    \9\ Id. at 5.
---------------------------------------------------------------------------

    WG did not acknowledge or discuss EPA's actual guidance for section 
110(a)(2)(D) SIP submissions for the 1997 8-hour ozone and 
PM2.5 NAAQS, and thus it is unclear whether WG was aware of 
it. In any event, EPA believes that the North Dakota submission and 
EPA's evaluation of it was consistent with EPA's guidance for the 1997 
8-hour ozone and PM2.5 NAAQS. For example, as discussed in 
the proposal notice, the State and EPA considered information such as 
monitoring data in North Dakota and downwind states, geographical and 
meteorological information, and technical studies of the nature and 
sources of nonattainment problems in various downwind states. These are 
among the types of information that EPA recommended and that EPA 
considers relevant. Thus, EPA has concluded that the state's 
submission, and EPA's evaluation of that submission, meet the 
requirements of section 110(a)(2)(D) and are consistent with applicable 
guidance.
    Finally, EPA notes that the considerations the Agency recommended 
to States in the 2006 Guidance document are consistent with the 
concepts that WG enumerated from the NOX SIP Call context: 
(a) The overall nature of the ozone problem; (b) the extent of downwind 
nonattainment problems to which upwind State's emissions are linked; 
(c) the ambient impact of the emissions from upwind States' sources on 
the downwind nonattainment problems; and (d) the availability of high 
cost-effective control measures for upwind emissions. The only 
distinction in the case of the North Dakota submission at issue here 
would be that because the available evidence indicates that there is 
very little contribution from emissions from North Dakota sources to 
nonattainment in other states, it is not necessary to advance to the 
final step and evaluate whether the cost of controls for those sources 
is above or below a certain cost of control as part of determining 
whether the contribution constitutes ``significant contribution to 
nonattainment'' for regulatory purposes, as was necessary in the 
NOX SIP Call and in CAIR.
    Comment No. 12--WG argued that EPA's assessment that North Dakota 
will not significantly contribute to nonattainment of the ozone NAAQS 
in downwind States is based primarily on modeling prepared in 
conjunction with CAIR, and yet ``EPA admits that CAIR only addressed 
PM2.5 impacts.''
    EPA Response--EPA agrees with WG that CAIR evaluated only 
PM2.5 impacts for North Dakota. However, EPA disagrees that 
the CAIR ozone modeling results are irrelevant to this action: as the 
NPR made clear, it is actually the CAIR modeling analyses for ozone 
transport from Minnesota--not North Dakota--that EPA considered as 
evidence in this action.\10\ Furthermore, we do not think that within 
the proposed rule of March 31, 2010, EPA suggested that the assessment 
of impacts from North Dakota's emissions to nonattainment of the ozone 
NAAQS in downwind States was based primarily on modeling prepared in 
conjunction with CAIR. Instead, EPA made clear that the CAIR modeling 
analysis results for Minnesota, considered in combination with 
emissions levels in Minnesota and North Dakota, and their respective 
distances from the Illinois/Wisconsin nonattainment counties, was only 
one piece of relevant evidence in EPA's weight-of-evidence 
determination. The comment seems to reflect a misreading of our 
proposed rule action, or a misinterpretation of one of the pieces of 
evidence in our technical analysis. Thus, EPA does not see in its 
proposed rule the contradiction alleged by this comment.
---------------------------------------------------------------------------

    \10\ Specifically, the relevant portion of our proposed rule 
reads: ``The CAIR modeling domain for 8-hour ozone transport 
analysis included only the eastern half of North Dakota, and the 
CAIR modeling analysis did not determine whether NOX 
emissions from North Dakota sources contributed significantly to 
ozone nonattainment in any downwind states. However, the CAIR 
modeling analysis results for Minnesota provide us the opportunity 
to draw inferences about ozone contribution from North Dakota 
sources to nonattainment in the Illinois/Wisconsin area. It must be 
noted that Minnesota is nearly half as distant from this 
nonattainment area as North Dakota (400 miles as compared with 700), 
and that to reach the Illinois/Wisconsin nonattainment area, ozone 
transport winds from Minnesota would have to have a northwesterly 
orientation similar to that necessary for substantial ozone 
transport from North Dakota. In addition, the CAIR modeling analysis 
estimated the Minnesota's NOX emissions for the 2010 base 
year to be approximately twice as large as the NOX 
emissions from North Dakota's sources (381,500 as compared with 
182,800 tons.) Finally, the CAIR analysis determined that emissions 
from Minnesota were below the initial threshold for including states 
in CAIR. In light of this CAIR determination, and of Minnesota's 
larger NOX emissions and shorter distance to the 
nonattainment area, it is plausible to conclude that NOX 
emissions from North Dakota sources are not likely to contribute 
significantly to nonattainment of the 1997 8-hour ozone standard in 
the Illinois and Wisconsin counties along the southwestern shores of 
Lake Michigan.'' 75 FR 16030.
---------------------------------------------------------------------------

    Comment No. 13--WG reiterated its concern that the North Dakota 
section 110(a)(2)(D) submission was deficient because it did not 
strictly follow WG's summary of the structure of the analysis of 
interstate transport in the NOX SIP Call: (a) The overall 
nature of the ozone problem; (b) the extent of downwind nonattainment 
problems to which upwind States' emissions are linked; (c) the ambient 
impact of the emissions from upwind States' sources on the downwind 
nonattainment problems; and (d) the availability of high cost-effective 
control measures for upwind emissions.
    EPA Response--EPA disagrees with WG's view that any analysis of 
interstate transport must follow a specific formulaic structure to be 
approvable. As noted above, EPA issued specific guidance to states 
making recommendations for section 110(a)(2)(D) SIP submissions for the 
1997 8-hour ozone and PM2.5 NAAQS. Within that guidance, EPA 
recommended various types of information that states might wish to 
consider in the process of evaluating whether their sources contributed 
significantly to nonattainment in other states. EPA has concluded that 
the submission from North Dakota, augmented by EPA's own analysis, 
sufficiently establishes that North Dakota sources do not significantly 
contribute to violations of the 1997 8-hour ozone and PM2.5 
NAAQS in other states. As noted above, EPA believes that the state's 
submission, and EPA's analysis of it, address the same conceptual 
considerations that the commenter advocated.
    Comment No. 14--WG asserted that North Dakota and EPA provided ``no 
analysis'' of the contribution from North Dakota to downwind states and 
no

[[Page 31296]]

``actual assessment'' of the significance of any such contribution.
    EPA Response--EPA disagrees with WG's position. WG again assumes 
that section 110(a)(2)(D) explicitly requires the type of modeling 
analysis that the commenter advocates throughout its comments. Because 
WG apparently views the NOX SIP Call as the applicable 
guidance, WG contends that any analytical approach that is not 
identical to that approach is impermissible. In addition, WG overlooks 
the fact that in other actions based upon section 110(a)(2)(D), EPA has 
also used a variety of analytical approaches, short of modeling, to 
evaluate whether specific states are significantly contributing to 
violations of the NAAQS in another state (e.g., the west coast states 
that EPA concluded should not be part of the geographic region of the 
CAIR rule based upon qualitative factors, and not by the zero out 
modeling EPA deemed necessary for some other states).
    In the proposed approval, EPA explained that other forms of 
available information were sufficient to make the determination that 
there is no significant contribution from North Dakota sources to 
downwind nonattainment of the 1997 8-hour ozone NAAQS. As stated in the 
proposal:

    EPA's evaluation of whether emissions from North Dakota 
contribute significantly to the ozone nonattainment in these areas 
is based on an examination of how geographical and meteorological 
factors affect transport from North Dakota to the two areas noted 
above. Our approach does not rely on a quantitative determination of 
North Dakota's contribution, as EPA did for other states in its CAIR 
rulemaking, but on a weight-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 effect of all factors provides a 
reliable qualitative conclusion on whether North Dakota's emissions 
are likely to contribute significantly to nonattainment in the DMA/
NFR area and the Illinois/Wisconsin Counties.\11\
---------------------------------------------------------------------------

    \11\ 75 FR 16030.

    EPA acknowledged that the various forms of information considered 
in the proposal (such as distance, orientation of surface and regional 
transport winds, back trajectory analyses, monitoring data) were not 
individually outcome determinative, but concluded that when taken 
together served to establish that North Dakota sources do not 
significantly contribute to downwind nonattainment of the 1997 8-hour 
ozone NAAQS in other states. Thus, contrary to WG's assertion, EPA did 
perform an ``analysis'' and an ``assessment'' that was a reasonable 
basis for its conclusion that emissions from North Dakota do not 
contribute significantly to downwind ozone nonattainment, using a 
combination of quantitative data and qualitative analyses. EPA does not 
agree that only the type of analysis advocated by WG could adequately 
evaluate the issue and support a rational determination in this 
instance.
    Comment No. 15--WG objected to EPA's proposed approval because 
North Dakota assessed impacts in downwind states by considering 
monitoring data in those states as a means of evaluating significant 
contribution to nonattainment. In other words, WG is concerned that 
North Dakota did not assess impacts in areas that have no monitor. WG 
likewise objected to EPA's ``endorsement'' of this approach. WG argued 
that this reliance on monitor data is inconsistent with both section 
110(a)(2)(D) and with EPA's guidance, by which the commenter evidently 
means the NOX SIP Call. In support of this assertion, WG 
quoted from the NOX SIP Call proposal in which EPA addressed 
the proper interpretation of the statutory phrase ``contribute 
significantly to nonattainment:''

    The EPA proposes to interpret this term to refer to air quality 
and not to be limited to currently-designated nonattainment areas. 
Section 110(a)(2)(D) does not refer to ``nonattainment areas,'' 
which is a phrase that EPA interprets to refer to areas that are 
designated nonattainment under section 107 (section 107 
(d)(1)(A)(I)).

According to WG, this statement, and similar ones in the context of the 
final NOX SIP Call rulemaking, establish that States and EPA 
cannot utilize monitoring data to evaluate the existence of, and extent 
of, interstate transport. Furthermore, WG interprets the reference to 
``air quality'' in these statements to support its contention, 
amplified in later comments, that EPA must evaluate significant 
contribution in areas in which there is no monitored nonattainment.
    EPA Response--EPA disagrees with WG's arguments. First, WG 
misunderstands the point that EPA was making in quoted statement from 
the NOX SIP Call proposal (and that EPA has subsequently 
made in the context of CAIR). When EPA stated that it would evaluate 
impacts on air quality in downwind states, independent of the current 
formal ``designation'' of such downwind states, it was not referring to 
air quality in the absence of monitor data. EPA's point was that it was 
inappropriate to wait for either initial designations of nonattainment 
for a new NAAQS under section 107(d)(1), or for a redesignation to 
nonattainment for an existing NAAQS under section 107(d)(3), before EPA 
could assess whether there is significant contribution to nonattainment 
of a NAAQS in another state.
    For example, in the case of initial designations, section 107(d) 
contemplates a process and timeline for initial designations that could 
well extend for two or three years following the promulgation of a new 
or revised NAAQS. By contrast, section 110(a)(1) requires states to 
make SIP submissions that address section 110(a)(2)(D) and interstate 
transport ``within 3 years or such shorter period as the Administrator 
may prescribe'' of EPA's promulgation of a new or revised NAAQS. This 
schedule does not support a reading of section 110(a)(2)(D) that is 
dependent upon formal designations having occurred first. This is a key 
reason why EPA determined that it was appropriate to evaluate 
interstate transport based upon monitor data, not designation status, 
in the CAIR rulemaking.
    WG's misunderstanding of EPA's statement concerning designation 
status evidently caused WG to believe that EPA's assessment of 
interstate transport in the NOX SIP Call was not limited to 
evaluation of downwind areas with monitors. This is simply incorrect. 
In both the NOX SIP Call and CAIR, EPA evaluated significant 
contribution to nonattainment as measured or predicted at monitors. For 
example, in the technical analysis for the NOX SIP Call, EPA 
specifically evaluated the impacts of emissions from upwind states on 
monitors located in downwind states. The NOX SIP Call did 
not evaluate impacts at points without monitors, nor did the CAIR 
rulemaking. EPA believes that this approach to evaluating significant 
contribution is correct under section 110(a)(2)(D), and EPA's general 
approach to this threshold determination has not been disturbed by the 
courts.\12\
---------------------------------------------------------------------------

    \12\ Michigan v. U.S. EPA, 213 F.3d 663, 674-681 (D.C. Cir. 
2000); North Carolina v. EPA, 531 F.3d 896, 913-916 (D.C. Cir. 2008) 
(upholding EPA approach to determining threshold despite remanding 
other aspects of CAIR).
---------------------------------------------------------------------------

    Finally, EPA disagrees with WG's argument that the assessment of 
significant contribution to downwind nonattainment must include 
evaluation of impacts on non-monitored areas. First, neither section 
110(a)(2)(D)(i)(I) provisions, nor the EPA guidance issued for the 1997 
8-hour ozone NAAQS on August 15, 2006 support WG's position, as neither 
refers to any requirement or recommendation to assess air quality in

[[Page 31297]]

non-monitored areas.\13\ The same focus on monitored data as a means of 
assessing interstate transport is found in the NOX SIP Call 
and in CAIR. An initial step in both the NOX SIP Call and 
CAIR was the identification of areas with current monitored violations 
of the ozone and/or PM2.5 NAAQS.\14\ The subsequent modeling 
analyses for NAAQS violations in future years (2007 for the SIP Call 
and 2010 for CAIR) likewise evaluated future violations at monitors in 
areas identified in the initial step. Thus, WG is simply in error that 
EPA has not previously evaluated the presence and extent of interstate 
transport under section 110(a)(2)(D) by focusing on monitoring data. 
Indeed, such monitoring data was at the core of both of these efforts. 
In neither of these rulemakings did EPA evaluate significant 
contribution to nonattainment in areas in which there was no monitor. 
This is reasonable and appropriate, because data from a properly placed 
federal reference method monitor is the way in which EPA ascertains 
that there is a violation of the 1997 8-hour ozone or PM2.5 
NAAQS in a particular area. Put another way, in order for there to be 
significant contribution to nonattainment for the 1997 8-hour ozone or 
PM2.5 NAAQS, there must be a monitor with data showing a 
violation of that NAAQS. EPA has concluded that by considering data 
from monitored areas, its assessment of whether emissions from North 
Dakota contribute significantly to ozone or PM2.5 
nonattainment in downwind States is consistent with the 2006 Guidance, 
and with the approach used by both the CAIR rule and the NOX 
SIP Call.
---------------------------------------------------------------------------

    \13\ 2006 Guidance, p. 5.
    \14\ ``Based on this approach, we predicted that in the absence 
of additional control measures, 47 counties with air quality 
monitors [emphasis ours] would violate the 8-hour ozone NAAQS in 
2010. * * *'' From the CAIR proposed rule of January 30, 2004 (69 FR 
4566, 4581). The NOX SIP call proposed rule action reads: 
``* * * For current nonattainment areas, EPA used air quality data 
for the period 1993 through 1995 to determine which counties are 
violating the 1-hour and/or 8-hour NAAQS. These are the most recent 
3 years of fully quality assured data which were available in time 
for this assessment,'' 62 FR 60336.
---------------------------------------------------------------------------

    Comment No. 16--In support of its comments that EPA should assess 
significant contribution to nonattainment in nonmonitored areas, WG 
argued that existing modeling performed by another organization 
``indicates that large areas of neighboring states will likely violate 
the ozone NAAQS.'' According to WG, these likely ``violations'' of the 
ozone NAAQS were predicted for the year 2018, as reflected in a slide 
from a July 30, 2008 presentation before the Western Regional Air 
Partnership (``Review of Ozone Performance in WRAP Modeling and 
Relevant to Future Regional Ozone Planning''). WG asserted that: 
``Slide 28 of this presentation displays projected 4th highest 8-hour 
ozone reading for 2018 and indicates that air quality throughout large 
portions of the West will exceed and/or violate the 1997 ozone NAAQS. * 
* *'' \15\ In short, WG argues that modeling performed by the WRAP 
establishes that there will be violations of the 1997 8-hour ozone 
NAAQS in 2018 in non-monitored areas Western states.
---------------------------------------------------------------------------

    \15\ The presentation is available for review as Document ID 
 EPA-R08-OAR-2007-1032-0007.8 at Regulations.gov, Docket ID 
 EPA-R08-OAR-2009-0282.
---------------------------------------------------------------------------

    EPA Response--EPA disagrees with this comment on several grounds. 
First, as explained in response to other comments, EPA does not agree 
that it is appropriate to evaluate significant contribution to 
nonattainment for the 1997 8-hour ozone NAAQS by modeling ambient 
levels in areas where there is no monitor to provide data to establish 
a violation of the NAAQS in question. Section 110(a)(2)(D) does not 
require such an approach, EPA has not taken this approach in the 
NOX SIP Call or other rulemakings under section 
110(a)(2)(D), and EPA's prior analytical approach has not been 
disturbed by the courts.
    Second, WG's own description of the ozone concentrations predicted 
for the year 2018 as projecting ``violations'' of the ozone NAAQS is 
inaccurate. Within the same sentence, quoted above, slide 28 is 
described as displaying the projected 4th max ozone reading for the 
year 2018, and as indicating that ``* * * air quality * * * will exceed 
or violate [our emphasis] the 1997 ozone NAAQS.'' By definition, a one 
year value of the 4th max above the NAAQS only constitutes an 
exceedance of the NAAQS; to constitute a violation of the 1997 8-hour 
ozone NAAQS, the standard must be exceeded for three consecutive years 
at the same monitor. Thus, even if the WRAP presentation submitted by 
WG were technically sound, the conclusion drawn from it by WG is 
inaccurate and does not support its claim of projected violations of 
the NAAQS in western States south and west of North Dakota.
    EPA has also reviewed the WRAP presentation submitted by WG, and 
believes that there was a substantial error in the WRAP modeling 
software that led to overestimation of ground level ozone 
concentrations. A recent study conducted by Environ for the Four 
Corners Air Quality Task Force (FCAQTF; Stoeckenius et al., 2009) has 
demonstrated that excessive vertical transport in the CMAQ and CAMx 
models over high terrain was responsible for overestimated ground level 
ozone concentrations due to downward transport of stratospheric 
ozone.\16\ Environ has developed revised vertical velocity algorithms 
in a new version of CAMx that eliminated the excessive downward 
transport of ozone from the top layers of the model. This revised 
version of the model is now being used in a number of applications 
throughout high terrain areas in the West. In conclusion, EPA believes 
that this key inadequacy of the WRAP model, noted above, makes it 
inappropriate support for WG's concerns about large expanses of 8-hour 
ozone nonattainment areas projected for 2018 in areas without monitors.
---------------------------------------------------------------------------

    \16\ Stoeckenius, T.E., C.A. Emery, T.P. Shah, J.R. Johnson, 
L.K. Parker, A.K. Pollack, 2009. ``Air Quality Modeling Study for 
the Four Corners Region.'' Prepared for the New Mexico Environment 
Department, Air Quality Bureau, Santa Fe, NM, by ENVIRON 
International Corporation, Novato, CA.
---------------------------------------------------------------------------

    Finally, it must be noted that even if the ozone exceedances 
predicted for the year 2018 were based on a sound modeling analysis, 
even the closest areas showing exceedances are several hundred miles 
southwest of North Dakota and, as indicated in our proposed rule, the 
northeasterly winds required for ozone transport from North Dakota to 
these areas are a rarity (75 FR 16030).
    Comment No. 17--As additional support for its assertion that EPA 
should require modeling to assess ambient levels in unmonitored 
portions of other States, WG relied on an additional study entitled the 
``Uinta Basin Air Quality Study (UBAQS).'' The commenter argued that 
the UBAQS study further supports its concern that limiting the 
evaluation of downwind impacts only to areas with monitors fails to 
assess ozone nonattainment in non-monitored areas. According to the 
commenter, UBAQS modeling results show that: (a) The Wasatch front 
region is currently exceeding and will exceed in 2012 the 1997 8-hour 
ozone NAAQS; and (b) based on 2005 meteorological data, portions of the 
four counties in the southwest corner of Utah are also currently in 
nonattainment and will be in nonattainment in 2012.\17\
---------------------------------------------------------------------------

    \17\ The southwestern area referred to by the commenter includes 
portions of Washington, Iron, Kane, and Garfield Counties.
---------------------------------------------------------------------------

    EPA Response--As noted above, EPA does not agree that it is 
appropriate to assess significant contribution to nonattainment for the 
1997 8-hour

[[Page 31298]]

ozone NAAQS in the way advocated by WG. Even taking the UBAQS modeling 
results at their face value, however, EPA does not agree that the 8-
hour ozone nonattainment (current and projected) in the Wasatch Front 
Range area supports the commenter's concerns about the need to evaluate 
the possibility of significant contribution to nonattainment in non-
monitored areas. EPA sees several problems with the commenter's 
interpretation of the UBAQS analysis results for counties in Utah's 
southwestern corner: ``based on 2005 meteorological data, portions of 
Washington, Iron, Kane, and Garfield Counties are also in nonattainment 
and will be in nonattainment in 2012.''
    First, WG's interpretation of the predicted ozone concentrations 
shown in Figures 4-3a and 4-3b (pages 5 and 6 of the comment letter) is 
inaccurate. A close review of the legend in these figures indicates 
that the highest ozone concentrations predicted by the model for 
portions of the counties noted above are somewhere between 81.00 and 
85.99 ppb, but a specific concentration is not provided. If the ozone 
concentration is actually predicted to be smaller than or equal to 84.9 
ppb, then the area is attaining; if it is predicted as greater than 
84.9 ppb then it is not attaining. This means that current and 
predicted design values for the southwestern Utah area identified in 
Figures 4-3a and 4-3b could both be in attainment or both in 
nonattainment, or one of them in attainment and the other in 
nonattainment, for the 1997 8-hour ozone NAAQS.
    Second, even if the design values predicted for these unmonitored 
areas were at the top of the 81.00-85.99 ppb range, their reliability 
would remain questionable. The UBAQS itself identifies and illustrates 
major shortcomings of its modeling analysis, only to neglect assessing 
the impact of these shortcomings on the modeling results.\18\ The study 
deviates in at least two significant ways from EPA's 2007 guidance on 
SIP modeling.\19\ One issue is the UBAQS modeling reliance on fewer 
than the five years of data recommended by EPA to generate a current 8-
hour ozone design value (DVC). UBAQS relaxed this requirement so that 
sites with as little as 1 year of data were included as DVCs in the 
analysis. The other issue is the computation of the relative responsive 
factor (RRF), which directly affects the modeling's future design value 
(DVF).\20\ Again due to unavailability of data satisfying EPA's 
recommendation that the RRF be based on a minimum of five days of ozone 
concentrations above 85 ppb, UBAQS modeling uses RRFs based on one or 
more days of ozone concentrations above 70 ppb.\21\ EPA concludes that 
the modeling analysis results used by the WG are unreliable for 
projecting non-attainment status and therefore do not support its 
comments.
---------------------------------------------------------------------------

    \18\ See ``UBAQS,'' pages 4-27 to 4-29.
    \19\ EPA. 2007. Guidance on the Use of Models and other Analyses 
for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5 
and Regional Haze. Office of Air Quality Planning and Standards, Air 
Modeling Group. Research Triangle Park, North Carolina (http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf).
    \20\ DVC x RRF = DVF.
    \21\ See UBAQS, p. 4-28.
---------------------------------------------------------------------------

    Finally, the predicted attainment status of unmonitored areas in 
the southwestern corner of Utah is not relevant to our assessment of 
whether emissions from North Dakota contribute significantly to 
downwind ozone nonattainment. The counties identified that draw the 
commenter's attention are almost a 1,000 miles from Bismarck, North 
Dakota, in a southwestern direction. As indicated in our response to 
the previous comment, the northeasterly winds required for ozone 
transport from North Dakota to these areas are a rarity.
    Comment No. 18--In support of its arguments that EPA should not 
limit assessment of significant contribution to nonattainment through 
evaluation of impacts at monitors, but include, through modeling 
analysis, impacts where there are no such monitors, the commenter cited 
a past statement by EPA to the effect that the monitor network in the 
western United States needs to be expanded. The quoted statements 
included EPA's observation that ``[v]irtually all States east of the 
Mississippi River have at least two to four non-urban O3 monitors, 
while many large mid-western and western States have one or no non-
urban monitors.'' 74 FR 34,525 (July 16, 2009). From this statement, 
the commenter argues that it is not appropriate for EPA to limit 
evaluation of significant contribution to nonattainment in other states 
relying on monitoring data instead of modeling ambient levels. The 
comment also indicates that States with few or no non-urban monitors 
include ``Idaho, Nebraska, Nevada, Montana, and Oregon, which may be 
affected by North Dakota emissions.''
    EPA Response--EPA does not disagree that there are relatively few 
monitors in the western states, and that relatively few monitors are 
currently located in non-urban areas of western states. However, the 
commenter failed to note that the quoted statement from EPA concerning 
the adequacy of western monitors came from the Agency's July 16, 2009 
proposed rulemaking entitled ``Ambient Ozone Monitoring Regulations: 
Revisions to Network Design Requirements.'' This statement was thus 
taken out of context, because EPA was in that proposal referring to 
changes in state monitoring networks that it anticipates will be 
necessary in order to implement not [emphasis added] the 1997 8-hour 
ozone NAAQS that are the subject of this rulemaking, but rather the 
next iteration of the ozone NAAQS for which there are concerns that 
there will be a need to evaluate ambient levels in previously 
unmonitored areas of the western United States. The fact that 
additional monitors may be necessary in the future for newer ozone 
NAAQS does not automatically mean that the existing ozone monitoring 
networks are insufficient for the 1997 8-hour ozone NAAQS, as the 
commenter implies. Indeed, states submit annual monitor network reports 
to EPA and EPA evaluates these to insure that they meet the applicable 
requirements. For example, North Dakota itself submits just such a 
report on an annual basis, and EPA reviews it for adequacy.\22\ All 
other states submit comparable reports.
---------------------------------------------------------------------------

    \22\ See, for example: ``Annual Report. North Dakota Air Quality 
Monitoring, Data Summary, 2008.'' dated June 2009, North Dakota 
Department of Health. A is available for review at the 
regulations.gov Web site, under Docket ID No EPA-R08-OAR-2009-0282.
---------------------------------------------------------------------------

    Finally, EPA disagrees that monitored and unmonitored areas in the 
western States identified above by the commenter may be affected by 
emissions from North Dakota. As noted in the proposed rule, the 
easterly or northeasterly winds that would be needed to transport 
emissions from North Dakota to these States are rare.\23\ Similarly 
rare is the possibility of impacts on these States from North Dakota's 
emissions.
---------------------------------------------------------------------------

    \23\ See our assessment of ozone transport from North Dakota 
emissions to Colorado, 75 FR 16030.
---------------------------------------------------------------------------

    Comment No. 19--WG objected to EPA's proposed approval of the North 
Dakota SIP submission because neither North Dakota nor EPA performed a 
specific modeling analysis to assure that emissions from North Dakota 
sources do not significantly contribute to nonattainment in downwind 
States. According to the commenter, EPA's decision to use a qualitative 
approach to determine whether emissions from North Dakota contribute 
significantly to downwind nonattainment is not consistent with its own 
preparation of a regional model to evaluate such impacts from other 
states as part of CAIR.

[[Page 31299]]

    EPA Response--EPA disagrees with WG's belief that only modeling can 
establish whether or not there is significant contribution from one 
state to another. First, as noted above, EPA does not believe that 
section 110(a)(2)(D) requires modeling. While modeling can be useful, 
EPA believes that other forms of analysis can be sufficient to evaluate 
whether or not there is significant contribution to nonattainment. For 
this reason, EPA's 2006 Guidance recommended other forms of information 
that states might wish to evaluate as part of their section 
110(a)(2)(D) submissions for the 1997 8-hour ozone NAAQS. EPA has 
concluded that its qualitative approach to the assessment of 
significant contribution to downwind ozone nonattainment is consistent 
with EPA's 2006 Guidance.
    Second, EPA notes that WG's position also reflects a 
misunderstanding of the approach EPA used in the remanded CAIR due to 
WG's exclusive focus on those States that were selected for the 
modeling analysis. A wider understanding of the CAIR approach would 
recognize that EPA decided, based on other criteria, that it was not 
necessary to conduct modeling for certain western states: ``[i]n 
analyzing significant contribution to nonattainment, we determined it 
was reasonable to exclude the Western U.S., including the States of 
Washington, Idaho, Oregon, California, Nevada, Utah, and Arizona from 
further analysis due to geography, meteorology, and topography. Based 
on these factors we concluded that the PM2.5 and 8-hour 
ozone nonattainment problems are not likely to be affected 
significantly by pollution transported across these States' boundaries 
* * *.'' (69 FR 4581, January 30, 2004).
    EPA has taken a similar approach to assess whether North Dakota 
contributes significantly to violations of the 1997 8-hour ozone and 
PM2.5 NAAQS in downwind states. In the proposed action, EPA 
explained several forms of substantive and technically valid evidence 
that led to the conclusion that emissions from North Dakota sources do 
not contribute significantly to nonattainment, in accordance with the 
requirement of Section 110(a)(2)(D).
    Comment No. 20--In further support of its argument that EPA must 
use modeling to evaluate whether there is significant contribution to 
nonattainment under section 110(a)(2)(D), WG noted that EPA itself asks 
other agencies to perform such modeling in other contexts. As examples, 
the commenter cited four examples in which EPA commented on actions by 
other agencies in which EPA recommended the use of modeling analysis to 
assess ozone impacts prior to authorizing oil and gas development 
projects. As supporting material, the comment includes quotations from 
and references to EPA letters to Federal Agencies on assessing impacts 
of oil and gas development projects.\24\ WG questioned why EPA's 
recommendation for such an approach in its comments to other Federal 
Agencies, did not result in its use of the same approach to evaluate 
the impacts from North Dakota emissions and to insure compliance with 
Section 110(a)(2)(D)(i)(I). The commenter reasoned that the emissions 
that would result from the actions at issue in the other agency 
decisions, such as selected oil and gas drilling projects, would be of 
less magnitude and importance than the statewide emissions at issue in 
an evaluation under section 110(a)(2)(D).
---------------------------------------------------------------------------

    \24\ WG's April 9, 2010 comment letter, pp. 9-10. Complete 
versions of the EPA comment letters referenced here were attached to 
the comment as Exhibits 3 through 6, and are viewable on the 
Regulations.gov Web site as Documents ID No. EPA-R08-OAR-2007-1032-
0007.4 through 1032-0007.7.
---------------------------------------------------------------------------

    EPA Response--As explained above, EPA disagrees with WG's 
fundamental argument that modeling is required to evaluate significant 
contribution to nonattainment, whether by section 110(a)(2)(D), by EPA 
guidance, or by past EPA precedent. EPA's applicable guidance made 
recommendations as to different approaches that can lead to the 
satisfaction of the interstate transport requirements for significant 
contribution to nonattainment in other states. Even EPA's own CAIR 
analysis relied on a combination of qualitative and quantitative 
analyses, as explained above. As indicated in our response to Comment 
No. 19, the CAIR analysis excluded the Western States on the based on a 
qualitative assessment of the region's topography, geography and 
meteorology.\25\
---------------------------------------------------------------------------

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

    EPA believes that the commenter's references to EPA statements 
commenting on the actions of other agencies are inapposite. As WG is 
aware, those comments were made in the context of the evaluation of the 
impacts of various federal actions pursuant to NEPA, not the Clean Air 
Act. As explained above, in the context of section 110(a)(2)(D), EPA 
does not agree that modeling is always required to make that different 
evaluation, and EPA itself has relied on other more qualitative 
evidence when it deemed that evidence sufficient to reach a reasoned 
determination.
    Comment No. 21--In further support of its argument that EPA should 
always require modeling to evaluate significant contribution to 
nonattainment, WG referred to EPA regulations governing nonattainment 
SIPs. The commenter noted 40 CFR 51.112(a)(1), which states that: 
``[t]he adequacy of a control strategy shall be demonstrated by means 
of applicable air quality models, data bases, and other requirements 
specified in appendix W of [Part 51] (Guideline on Air Quality 
Models).'' The commenter argues that this regulation appears to support 
the commenter's position that modeling is required to satisfy the 
significant contribution element of 110(a)(2)(D).
    EPA Response--EPA disagrees with this comment. The cited language 
implies that the need for control strategy requirements has already 
been demonstrated, and sets a modeling analysis requirement to 
demonstrate the adequacy of the control strategy developed to achieve 
the reductions necessary to prevent an area's air quality from 
continuing to violate the NAAQS. EPA's determination that emissions 
from North Dakota do not contribute significantly to nonattainment for 
the 1997 8-hour ozone standard in any other states eliminates the need 
for a control strategy aimed at satisfying the section 110(a)(2)(D) 
requirements. Moreover, EPA interprets the language at 40 CFR 
51.112(a): ``[e]ach plan must demonstrate that the measures, rules, and 
regulations contained in it are adequate to provide for the timely 
attainment and maintenance of the national standard that it 
implements,'' to refer to modeling for attainment demonstrations, an 
integral part of nonattainment area SIPs under part D of the CAA. This 
interpretation was upheld by the Sixth Circuit Court of Appeals. Wall 
v. U.S. EPA, 265 F.3d 426, 436 (6th Cir. 2001). Thus, the commenter's 
cited regulation is not relevant to EPA's technical demonstration 
assessing whether emissions from North Dakota contribute significantly 
to nonattainment in any other states under section 110(a)(2)(D).
    Comment No. 22--WG also objected to EPA's proposed approval of the 
North Dakota submission on the grounds that it was based upon a 
``weight-of-evidence analysis,'' and that no such weight of evidence 
test appears in the CAA generally, or in section 110(a)(2)(D) in 
particular. According to the commenter, there is no regulatory support 
for using a ``weight-of-evidence'' approach to assessing air quality 
impacts. The commenter asserted that EPA neither cited nor quoted 
regulations or policy that provides for this, and failed to lend

[[Page 31300]]

any specific meaning to the phrase through its proposed approval. 
Finally, the commenter asserted, without explaining, its belief that 
EPA failed to address ``several relevant factors related to the 
determination of whether North Dakota contributes significantly to 
nonattainment undermines the agency's reliance on any `weight-of-
evidence' approach.''
    EPA Response--EPA agrees with WG that neither the CAA generally, 
nor section 110(a)(2)(D) specifically, include the explicit phrase 
``weight of evidence.'' It simply does not follow, however, that it is 
inappropriate for EPA to use such an approach in this context. As 
explained above, section 110(a)(2)(D) does not explicitly stipulate how 
EPA may assess whether there is a significant contribution to 
nonattainment in other states. Through past actions such as CAIR, EPA 
has used a weight-of-evidence approach to exclude some States from 
further consideration.\26\ As described above, EPA's guidance issued 
for the 1997 8-hour ozone NAAQS, the Agency specifically recommended 
types of information that states might wish to rely upon to evaluate 
the presence of, and extent of, interstate transport for this purpose. 
EPA believes that a weight of evidence approach that properly considers 
appropriate evidence is sufficient to make a valid determination, as in 
this case.
---------------------------------------------------------------------------

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

    Specifically, EPA's technical analysis in the March 31, 2010 
proposed rule action underscores its reliance on implementation 
policies set in the EPA 2006 Guidance: ``EPA's August 15, 2006, 
guidance to states concerning section 110(a)(2)(D)(i) recommended 
various methods by which states might evaluate whether or not its 
emissions significantly contribute to violations of the 1997 ozone 
standards in another state. Among other methods, EPA recommended 
consideration of available EPA modeling conducted in conjunction with 
CAIR, or in the absence of such EPA modeling, consideration of other 
information such as the amount of emissions, the geographic location of 
violating areas, meteorological data, or various other forms of 
information that would be relevant to assessing the likelihood of 
significant contribution to violations of the NAAQS in another state 
[our emphasis].'' \27\ On the basis of this guidance, North Dakota and 
EPA chose to assess the impacts of emissions from North Dakota sources 
on the closest downwind nonattainment areas (Denver, Colorado, and 
Illinois/Wisconsin counties along the southwestern shore of Lake 
Michigan) through a weight of evidence approach using quantitative 
information such as North Dakota's distance from areas with monitors 
showing violation of the NAAQS, modeling results outlining wind vectors 
for regional transport of ozone on high ozone days, back trajectory 
analyses for the downwind nonattainment areas closest to North Dakota, 
and results of modeling studies for the nonattainment areas specifying 
the range of wind directions along which contributing ozone transport 
occurred. EPA's use of a weight of evidence analysis is by no means 
unusual for the assessment of ozone impacts through long range 
transport. The same analytical framework was used in the 1998 
NOX SIP Call, as indicated under Section II.C., entitled 
``Weight-of-Evidence Determination of Covered States.'' \28\ The 
differences between the specific types of evidence used in the 
NOX SIP Call and in our analysis do not invalidate the use 
of the weight-of-evidence approach.
---------------------------------------------------------------------------

    \27\ 75 FR 16029, March 31, 2010.
    \28\ ``As discussed above, EPA applied a multi-factor approach 
to identify the amounts of NOX emissions that contribute 
significantly to nonattainment * * *.'' 1998 SIP Call, 63 FR 57381, 
October 27, 1998.
---------------------------------------------------------------------------

    As for the commenter's argument that EPA ``fails to lend any 
specific meaning to the phrase through its proposed approval,'' the 
Agency's technical analysis described in the proposal did specify the 
characteristics, including limitations, of a weight of evidence 
analysis: ``[f]urthermore * * * EPA notes that no single piece of 
information in the following discussion is by itself dispositive of the 
issue. Instead, the total weight of all the evidence taken together 
supports the conclusion that emissions from North Dakota sources are 
unlikely to contribute significantly to violations of the 1997 8-hour 
ozone standard in any other state,'' (75 FR 16034).
    Finally, as to the commenter's assertion that EPA failed to 
consider ``several relevant factors'' and thus failed to conduct an 
appropriate weight of evidence evaluation, EPA cannot weigh the 
validity of this comment in the absence of an explanation of what these 
factors might be.
    Comment No. 23--The Sierra Club opposed the proposed approval on 
the grounds that the existing North Dakota SIP includes problematic 
provisions. For example, the Sierra Club pointed to provisions that it 
alleges will result in additional emissions that could significantly 
contribute to nonattainment of the NAAQS in other states. For example, 
Sierra Club argued that:

    ``if emission violations during startup, shutdown, or 
malfunctions (SSM) escape enforcement, there is no way to determine 
that emissions from sources in North Dakota will not contribute 
significantly to other States' nonattainment of the NAAQS or 
problems with PSD compliance such as exceeding increments, short of 
cumulative modeling exercise assuming that all source are emitting 
at their physical limits without controls. See, e.g., Clean Air Act 
Sections 110(a)(2)(A) and (D), 42 U.S.C. Sections 7410(a)(2)(A) and 
(D).'' \29\

    \29\ ``If emission violations are excused during startups, 
shutdowns, or malfunctions, and thus essentially unregulated during 
those periods, there is no way to determine that emissions from 
sources in North Dakota will not contribute significantly to other 
States' nonattainment of the NAAQS or problems with PSD compliance 
such as exceeding increments, adversely impacting air quality 
related values in Class I areas, or adversely impacting vegetation 
and visibility in all areas, short of cumulative modeling exercise 
assuming that all source are emitting at their physical limits 
without controls. See, e.g., Clean Air Act Sections 110(a)(2)(A) and 
(D), 42 U.S.C. Sections 7410(a)(2)(A) and (D).''
---------------------------------------------------------------------------

    EPA Response--EPA understands the concerns raised by the commenter, 
but does not believe that any such excess emissions would in and of 
themselves constitute significant contribution to nonattainment in 
another state. EPA notes that its technical analysis for the 
significant contribution element in our proposal was not premised upon 
distinguishing between legal and illegal, or permissible and 
impermissible, emissions from North Dakota sources. EPA's technical 
analysis, and the conclusion based on the weight of the evidence, did 
not depend on the precise amount of emissions from North Dakota, and 
did not turn upon some portion of those emissions as being the result 
of emissions during SSM events. Instead, EPA's evaluation was focused 
upon other relevant information that pertained to distance, wind 
direction, and the air quality status of areas in downwind states. 
Thus, any additional emissions from SSM events would not change the 
analysis or EPA's conclusion that emissions from North Dakota do not 
significantly contribute to nonattainment in any other state.
    Furthermore, as noted below, the current version of the North 
Dakota provision relating to SSM, NDAC 33-15-01-13, does not create any 
exemption from emissions limits and does not excuse violations. PSD 
permit applicants and PSD permittees in North Dakota are subject to the 
current version of the state's regulation. Therefore, Sierra Club's 
concerns regarding excess emissions from sources subject to PSD are 
moot and do not change EPA's

[[Page 31301]]

conclusion that the North Dakota SIP has adequate provisions to 
prohibit emissions from North Dakota from interfering with other 
states' required PSD programs.
    Comment No. 24--As potential SIP defects affecting approvability of 
the section 110(a)(2)(D) SIP submission, both WG and the Sierra Club 
pointed to the North Dakota Administrative Code rule NDAC 33-15-01-07 
that allows the North Dakota Department of Health (NDDH) to grant 
variances to emission limits if compliance ``would cause undue 
hardship, would be unreasonable, impractical, or not feasible under the 
circumstances.'' WG adds that this variance provision is inappropriate 
and would allow additional emissions that may contribute significantly 
to nonattainment or interfere with PSD provisions in other States.
    EPA Response--EPA agrees that this rule should be revised to 
provide that variances are only effective for federal law purposes when 
adopted as a SIP revision approved by EPA (or this provision should be 
removed from the SIP), and EPA plans to work with the State to clarify 
the SIP on this point. EPA is aware that this process requires action 
by the North Dakota legislature before the NDDH will be able to remove 
the Variance provisions from the State SIP and submit an appropriate 
revision to EPA.
    However, EPA does not believe that this existing variance provision 
provides a basis for disapproval of the SIP under the facts and 
circumstances here. North Dakota has informed EPA that the variances 
granted by the NDDH under the provision during the last 15 years were 
only for open burning requests. In these cases, before granting a 
variance the NDDH requested input from the local fire department and 
health agency offices. North Dakota has stated that the variance 
provision cannot be used to avoid permitting requirements or to violate 
emissions limits. Furthermore, North Dakota has confirmed that the 
provision has not been applied to PSD permits, minor NSR permits, Title 
V permits, or minor operating permits, and EPA expects that such will 
be the case while it vigorously works with the State for its removal 
from the North Dakota SIP.
    Moreover, EPA also disagrees with WG's additional comment that this 
variance provision specifically allows emissions that may contribute 
significantly to nonattainment or interfere with PSD provisions in 
other States. There is no language in rule NDAC 33-15-01-07 that 
reflects the commenter's interpretation.
    Given the limited scope and usage of the variance provision, EPA 
concludes that it does not constitute interference with other states' 
required PSD programs. Furthermore, it does not affect EPA's factual 
determination that emissions from North Dakota do not significantly 
contribute to nonattainment in other states.
    Comment No. 25--WG also expressed concern that NDAC 33-15-01-13(1) 
specifically allows a source to shut down air pollution control 
equipment for maintenance and to continue operations, so long as 
notification is provided to North Dakota. WG argued that such an 
exemption to pollution control equipment is not acceptable under the 
CAA.
    EPA Response--EPA believes that the commenter is referring to 
provisions in the previous version of the provision that is no longer 
operative. The provision has been superseded by a revision adopted by 
the State on April 1, 2009 and submitted to EPA on April 6, 2009. EPA 
is planning to take action on the submission in the near future. The 
revised NDAC 33-15-01-13.1 includes at 33-15-01-13(1)(f) language that 
addresses the commenter's concern: ``[n]othing in this subsection shall 
in any manner be construed as authorizing or legalizing the emissions 
of air contaminants in excess of the rate allowed by this article [NDAC 
33-15] or a permit issued pursuant to this article.''
    As noted above, North Dakota has revised the provision and it 
currently is in effect. Thus, even before EPA takes action on the 
submittal of the revision, PSD permit applicants and PSD permittees 
must comply with the revised provision, which removes the exemption. 
North Dakota has confirmed that the revised provision is used in PSD 
permitting. Therefore, EPA believes that the superseded provision does 
not constitute interference with other states' required PSD measures. 
Furthermore, the provision--regardless of its status--does not affect 
EPA's factual determination that emissions from North Dakota do not 
significantly contribute to nonattainment in other states.
    Comment No. 26--WG also argued that Rule NDAC 33-15-01-13(2) 
implies an exemption to compliance with emission limits in the event of 
a malfunction. According to the commenter, this rule not only implies 
an exemption for malfunction leading to a violation that lasts less 
than 24 hours, but gives the state unlimited discretion to allow a 
malfunction leading to a violation to last as long as ten days.
    EPA Response--EPA again disagrees, because the commenter is 
evidently objecting to a previous version of this provision that is no 
longer operative. The provision was superseded by a revision to this 
rule adopted by the State on April 1, 2009 and submitted to EPA on 
April 6, 2009. EPA plans to take action on the submission in the near 
future. Under the revised provision the ten-day grace period has been 
removed, and the provisions only address notification requirements 
without any references to or exemptions of excess emissions.
    North Dakota has revised the provision and it is no longer in 
effect. Thus, even before EPA takes action on the submittal of the 
revision, PSD permit applicants and PSD permittees must comply with the 
revised provision, which removes the ten-day grace period. Therefore, 
EPA believes that the superseded provision does not constitute 
interference with other states' required PSD measures. Furthermore, the 
provision--regardless of its status--does not affect EPA's factual 
determination that emissions from North Dakota do not significantly 
contribute to nonattainment in other states.
    Comment No. 27--The Sierra Club expressed concern that the revised 
version of NDAC 33-15-01-13(2)(c) submitted by the state to EPA ``does 
not make clear that such enforcement discretion is limited to the 
imposition of civil penalties and does not potentially enable sources 
to avoid injunctive remedies regarding excess emissions.'' The Sierra 
Club also indicated that in the revised language of rule NDAC 33-15-01-
13(2)(c) ``the required elements of proof in the source's report fall 
short of the rigorous proof requirements specified in EPA policy.''
    EPA Response--As noted above, the State submitted the referenced 
revisions to EPA on April 6, 2009, and the public, including the Sierra 
Club, will have an opportunity to submit substantive comments about 
this provision when EPA proposes action on it, as planned for the near 
future. EPA invites the Sierra Club to resubmit the comment at that 
time so that EPA may properly respond to it. EPA notes, however, that 
the Sierra Club appears to argue that certain portions of the 1999 EPA 
guidance for the affirmative defense approach to unavoidable 
malfunctions \30\ apply to the North

[[Page 31302]]

Dakota revision. As stated in that guidance, the enforcement discretion 
approach endorsed by EPA in earlier guidance \31\ remains valid, and 
North Dakota selected the enforcement discretion approach. In any 
event, EPA is not acting upon that April 6, 2009, submission at this 
time.
---------------------------------------------------------------------------

    \30\ Memorandum from Steven A. Herman, Assistant Administrator 
for Enforcement and Compliance Assurance, and Robert Perciasepe, 
Assistant Administrator for Air and Radiation, ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (Sept. 20, 1999).
    \31\ See Memorandum from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation, ``Policy on Excess 
Emissions During Startup, Shutdown, Maintenance, and Malfunctions'' 
(Sept. 28, 1982); Memorandum from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation, ``Policy on Excess 
Emissions During Startup, Shutdown, Maintenance, and Malfunctions'' 
(Feb. 15, 1983) (clarifying 1982 memorandum).
---------------------------------------------------------------------------

    Comment No. 28--WG and the Sierra Club also expressed concern about 
a provision in the North Dakota SIP related to failure of a continuous 
emission monitoring system (CEMS). See NDAC Sec.  33-15-01-13(3). WG 
and the Sierra Club both argued that the provision is contrary to Title 
IV of the CAA and the regulations at 40 CFR Part 75 implementing Title 
IV. WG apparently believed that EPA cannot approve the North Dakota SIP 
section 110(a)(2)(D) revision until the provision is removed or 
revised.
    EPA Response--EPA disagrees with WG's conclusions on this issue. As 
to the significant contribution element of 110(a)(2)(D)(i), as noted 
above, once EPA has determined--as it has here--that emissions from 
North Dakota do not significantly contribute to nonattainment in any 
other state, no substantive modification of North Dakota's SIP is 
required to eliminate any emissions. As to the PSD element of 
110(a)(2)(D)(i), the requirements of Part 75 relate to Title IV, the 
acid rain title of the Clean Air Act. These requirements are simply not 
relevant to the North Dakota PSD program or to the PSD element of 
110(a)(2)(D)(i).
    Comment No. 29--As part of its objection to the proposed action, 
the Sierra Club identified a North Dakota SIP provision that authorizes 
North Dakota to allow violations of ambient air quality standards in 
certain circumstances. See NDAC Sec.  33-15-02-07(4).
    EPA Response--EPA disagrees that this provision provides a basis 
for disapproval of the section 110(a)(2)(D) submission. The provision 
does allow for certain exceedances of certain state ambient air quality 
standards. However, it does not allow for exceedances of the applicable 
federal NAAQS. Therefore, EPA concludes that the provision does not 
constitute interference with other states' required PSD programs. 
Furthermore, the provision does not affect EPA's factual determination 
that emissions from North Dakota do not significantly contribute to 
nonattainment in other states.
    Comment No. 30--WG also identified certain provisions in the North 
Dakota SIP creating exceptions to certain opacity limits as a concern 
in the context of action on the section 110(a)(2)(D) submission. See 
NDAC Sec.  33-15-03-04(4), (5). WG described the provisions as 
``blanket exemptions'' and argued that because visible emissions are 
often used as an indicator for particulate matter, the exemptions 
``fail to prohibit emissions that could contribute significantly to 
nonattainment or interfere with PSD requirements.'' WG therefore argued 
that EPA cannot approve the proposed SIP revision unless the exemptions 
are removed or revised.
    EPA Response--EPA does not endorse the exceptions cited by WG, and 
EPA's action here should not be construed as an approval of these 
exceptions, which are not the subject of this action. EPA disagrees, 
however, with WG's conclusions about the impact of such exceptions on 
today's action. First, the exceptions are not ``blanket exemptions'' 
from all opacity limits: By the express terms of NDAC 33-15-03-04, the 
exceptions apply only to the numeric opacity limits specified in NDAC 
33-15-03-01, -02, -03, and -04. They do not create an exception from 
any requirements PSD may impose related to opacity.
    Furthermore, the specific numeric opacity limits are unrelated to 
emissions limits imposed by PSD, under which BACT is determined on a 
case-by-case basis. Thus, the provisions cited by WG do not create any 
exception from BACT emissions limits or any other PSD requirements. As 
a result, the exceptions are not relevant to the requirements of the 
PSD element of 110(a)(2)(D)(i). As to the significant contribution 
element of 110(a)(2)(D)(i), as noted elsewhere, once EPA has factually 
determined--as it has here--that emissions from North Dakota do not 
significantly contribute to nonattainment in any other state, no 
modification of North Dakota's SIP is required.
    Comment No. 31--As additional problematic provisions in the North 
Dakota SIP, WG and Sierra Club identified provisions in the North 
Dakota SIP creating exceptions to certain particulate matter emissions 
limits. See NDAC Sec.  33-15-05-01(2)(a). WG argued that the provisions 
allow the state discretion to exempt sources from compliance during 
temporary breakdowns or cleaning of air pollution control equipment, 
and that therefore the North Dakota SIP fails to prohibit emissions 
that contribute significantly to nonattainment in other states, or that 
interfere with other states' required PSD measures. Sierra Club argued 
that the provision violates EPA policy and creates a broader exception 
than allowed by the enforcement discretion or affirmative defense 
approaches to unavoidable malfunctions.
    EPA Response--EPA does not endorse the exceptions cited by the 
commenters, which EPA notes are not the subject of this action. EPA 
disagrees, however, with the commenters' conclusions. First, as to PSD 
requirements: The provision cited by the commenters creates an 
exception only to numeric, process-based emissions limits specified in 
Table 3 of NDAC 33-15-05-01. The provision does not create an exception 
from any PSD requirements, including BACT emissions limits for 
particulate matter. Furthermore, these specific, numeric, process-based 
limits are unrelated to PSD requirements, under which BACT is 
determined on a case-by-case basis. Thus, the exceptions in 33-15-05-
01(2)(a) do not create any exception from BACT emissions limits or 
other PSD requirements. As a result, the exceptions are not relevant to 
the requirements of the PSD element of 110(a)(2)(D)(i).
    As to the significant contribution element of 110(a)(2)(D)(i), EPA 
disagrees with WG that EPA cannot approve the North Dakota interstate 
transport SIP until the provision is removed or revised. As noted 
elsewhere, once EPA has determined--as it has here--that emissions from 
North Dakota do not significantly contribute to nonattainment in any 
other state, no modification of North Dakota's SIP is required.
    Comment No. 32--The Sierra Club commented on a provision in the 
North Dakota SIP related to reporting of excess emissions of sulfur 
dioxide and other sulfur compounds. See NDAC Sec.  33-15-06-05. The 
Sierra Club asserted that the provision ``contains unacceptable 
language'' and argued the SIP should be revised to make clear that the 
reporting requirement does not authorize or exempt excess emissions. 
Sierra Club also implied that this issue makes it impossible to 
determine whether emissions from North Dakota significantly contribute 
to nonattainment in other states and whether the state's SIP would 
interfere with measures required in other states to prevent significant 
deterioration of air quality with repect to the 1997 8-hour ozone and 
PM2.5 NAAQS.
    EPA Response--The Sierra Club did not identify any particular 
phrase in the

[[Page 31303]]

existing regulatory provision as unacceptable, so EPA presumes the 
reference to unacceptable language is to the absence of additional 
clarifying language. EPA disagrees that it is necessary to revise the 
provision in order to approve the North Dakota interstate transport 
SIP. The provision does not create any explicit exemption, and EPA 
believes it creates no implicit exemption. As the Sierra Club agrees, 
the provision simply requires sources to report excess emissions of 
sulfur dioxide and other sulfur compounds during periods of startup, 
shutdown, and malfunction. A reporting requirement is not an exemption 
from emissions limits.
    Comment No. 33--WG objected to EPA's proposed approval because 
``North Dakota's SIP, as written, simply does not contain any language 
that literally prohibits emissions that contribute significantly to 
nonattainment in any other state.'' The commenter also notes that EPA 
did not assess whether the SIP does or does not contain such 
provisions. The commenter appears to believe that 110(a)(2)(D)(i) 
requires a state SIP to contain explicit provisions literally 
prohibiting emissions that contribute significantly to nonattainment in 
any other state, and that, in order to approve the North Dakota 
interstate transport SIP, EPA must examine the SIP to determine whether 
it does contain such specific words.
    EPA Response--EPA disagrees with the commenter's interpretation of 
the statutory requirements. Section 110(a)(2)(D)(i) has no language 
that requires a SIP to contain literal provisions prohibiting 
significant contribution to nonattainment in any other state, or, for 
that matter, to contain any particular words or generic prohibitions. 
Instead, EPA believes that the statute requires a state's SIP to 
contain substantive emission limits or other provisions that in fact 
ensure that sources located within the state will not produce emissions 
that have such an effect in other states. Therefore, EPA believes that 
satisfaction of the ``significant contribution'' requirement is not to 
be demonstrated through a literal requirement for a prohibition of the 
type advocated by the commenter.
    EPA's past application of section 110(a)(2)(D) did not require the 
literal prohibition advocated by the commenter. For example, in 1998 
NOX SIP call (63 FR 57356, October 27, 1998) EPA indicated 
that ``the term `prohibit' means that SIPs must eliminate those amounts 
of emissions determined to contribute significantly to nonattainment * 
* * '' As a result, the first step of the process to determine whether 
this statutory requirement is satisfied is the factual determination of 
whether a state's emissions contribute significantly to nonattainment 
in downwind areas. See 2005 CAIR Rule (70 FR 25162) and 1998 
NOX SIP Call (63 FR 57356). If this factual finding is in 
the negative, as is the case for EPA's assessment of the contribution 
from emissions from North Dakota, then section 110(a)(2)(D)(i)(I) does 
not require any changes to a state's provisions. If, however, the 
evaluation reveals that there is such a significant contribution to 
nonattainment in other states, then EPA requires the state to adopt 
substantive provisions to eliminate those emissions. The state could 
achieve these reductions through traditional command and control 
programs, or at its own election, through participation in a cap and 
trade program. Thus, EPA's approach in this action is consistent with 
the Agency's interpretation of 110(a)(2)(D)(i) in the 2006 guidance, 
the CAIR Rule, and the NOX SIP call, none of which required 
the pro forma literal ``prohibition'' of the type advocated by the 
commenter.
    Comment No. 34--WG argues that the requirements for stationary 
source permitting in the North Dakota SIP are ``riddled with vagueness, 
discretion, uncertainty, and unenforceability,'' and are inadequate to 
ensure that sources in North Dakota will not significantly contribute 
to nonattainment in other states.
    EPA Response--As discussed above, the first step of the process to 
determine whether the ``significant contribution'' requirement is 
satisfied is the factual determination of whether a State's emissions 
contribute significantly to nonattainment in downwind areas. If the 
factual finding is in the negative, as is the case for EPA's assessment 
of the contribution from emissions from North Dakota, then section 
110(a)(2)(D)(i)(I) does not require any changes to a state's 
provisions. As discussed above, EPA's approach in this action is 
consistent with the Agency's interpretation of 110(a)(2)(D)(i) in the 
2006 guidance, the CAIR Rule and the NOX SIP Call. 
Therefore, EPA disagrees with the comment that EPA cannot approve the 
North Dakota interstate transport SIP unless EPA addresses specific 
provisions and state guidelines for permitting stationary sources.
    Comment No. 35--The commenter argued that EPA cannot approve the 
section 110(a)(2)(D) submission from North Dakota because the state and 
EPA did not comply with 110(l). Evidently, the commenter believes that 
the section 110(a)(2)(D) submission is a revision to the SIP that will 
interfere with attainment of the 2006 PM2.5 NAAQS and the 
2008 ozone NAAQS. And, although it is not clear, the comment could be 
taken to make the same point for North Dakota's revision of its PSD 
program. The commenter argues that a section 110(l) analysis must 
consider all NAAQS once they are promulgated, and argues that EPA took 
the same position in proposing to disapprove a PM10 
maintenance plan.
    EPA Response--EPA agrees that a required section 110(l) analysis 
must consider the potential impact of a proposed SIP revision on 
attainment and maintenance of all NAAQS that are in effect and impacted 
by a given SIP revision. However, EPA disagrees that it failed to 
comply with the requirements of section 110(l) or that section 110(l) 
requires disapproval of the SIP submission at issue here.
    Section 110(l) provides in part that: ``[t]he Administrator shall 
not approve a revision of a plan if the revision would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress * * *, or any other applicable requirement of this chapter.'' 
EPA has consistently interpreted Section 110(l) as not requiring a new 
attainment demonstration for every SIP submission. EPA has further 
concluded that preservation of the status quo air quality during the 
time new attainment demonstrations are being prepared will prevent 
interference with the states' obligations to develop timely attainment 
demonstrations. 70 FR 58134, 58199 (October 5, 2005); 70 FR 17029, 
17033 (April 4, 2005); 70 FR 53, 57 (January 3, 2005); 70 FR 28429, 
28431 (May 18, 2005).
    North Dakota's submission is the initial submission by the state to 
address the significant contribution to nonattainment element of 
110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5 NAAQS. 
This submission does not revise or remove any existing emissions limit 
for any NAAQS, or any other existing substantive SIP provisions 
relevant to the 1997 8-hour ozone and PM2.5 NAAQS. Simply 
put, it does not make any substantive revision that could result in any 
change in emissions. As a result, the submission does not relax any 
existing requirements or alter the status quo air quality. Therefore, 
approval of the North Dakota interstate transport SIP will not 
interfere with attainment or maintenance of any NAAQS.
    As to the PSD program, the North Dakota revision updates the 
incorporation date of 40 CFR 52.21 from October 1, 2003, to August 1, 
2007. The

[[Page 31304]]

changes to Sec.  52.21 in that period do not relax any PSD 
requirements. In fact, the primary substantive change was the 
recognition of NOX as a precursor to ozone, a change that 
strengthens PSD requirements. Other changes included (as noted 
elsewhere in EPA's response to comments) recognition of the effects of 
federal cases vacating certain aspects of NSR rules promulgated in 2002 
and 2003.\32\ These changes do not relax any PSD requirements and in 
most instances strengthen them. Therefore, approval of the revision of 
the North Dakota PSD program will not interfere with attainment or 
maintenance of the NAAQS.
---------------------------------------------------------------------------

    \32\ 67 FR 80186 (Dec. 31, 2002); 68 FR 61248 (Oct. 23, 2003); 
New York v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005); New York v. EPA, 
443 F.3d 880 (D.C. Cir. 2006).
---------------------------------------------------------------------------

    EPA's discussion in the notice cited by the commenter is consistent 
with this interpretation. In the cited action, EPA noted that ``Utah 
ha[d] either removed or altered a number of stationary source 
requirements,'' creating the possibility of a relaxation of SIP 
requirements interfering with attainment, a possibility that is not 
present here. See 74 FR 62727 (Dec. 1, 2009). Thus, the action cited by 
the commenter is clearly distinguishable.
    The commenter did not provide any specific basis for concluding 
that approval of this SIP submission would interfere with attainment or 
maintenance of a NAAQS, or with any other applicable requirement of the 
Clean Air Act. EPA concludes that approval of the submission will not 
make the status quo air quality worse, and is in fact consistent with 
the development of an overall plan capable of meeting the Act's 
attainment requirements. Accordingly, even assuming that section 110(l) 
applies to this submission, EPA finds that approval of the submission 
is consistent with the requirements of section 110(l).

III. Section 110(l)

    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the NAAQS or any other applicable requirements of 
the Act. In this action, EPA is approving the portions of the North 
Dakota interstate transport SIP that address the ``significant 
contribution'' and PSD elements of section 110(a)(2)(D)(i) for the 1997 
8-hour ozone and PM2.5 NAAQS; EPA is also approving a 
revision to the North Dakota PSD program. As discussed above in EPA's 
response to comments, the portions of the interstate transport SIP that 
EPA is approving do not revise or remove any existing emissions limit 
for any NAAQS, or any other existing substantive SIP provisions 
relevant to the 1997 8-hour ozone and PM2.5 NAAQS. 
Furthermore, as also discussed above, the revision to the North Dakota 
PSD program does not relax or remove any PSD requirement and in most 
cases strengthens those requirements. As a result, the SIP revision 
does not relax any existing requirements or alter the status quo air 
quality. Finally, EPA has determined that the revision is consistent 
with all applicable federal requirements and will not interfere with 
requirements of the Act related to administrative or procedural 
provisions. Therefore, the revision does not interfere with attainment 
or maintenance of the NAAQS or other applicable requirements of the 
Act.

IV. Final Action

    The Environmental Protection Agency is approving portions of the 
Interstate Transport of Air Pollution SIP submitted by the State of 
North Dakota on April 6, 2009. Specifically, in this action EPA is 
approving: (a) The introductory language in the State SIP Section 7.8; 
(b) the ``Overview'' language in subsection A., Section 7.8.1; (c) the 
language in Section 7.8.1, subsection B., ``Nonattainment and 
Maintenance Area Impact,'' that specifically addresses element (1) of 
section 110(a)(2)(D)(i), the requirement that the SIP contain adequate 
provisions prohibiting emissions from North Dakota from contributing 
significantly to nonattainment in any other state; and (d) Section 
7.8.1, subsection C, ``Impact on Prevention of Significant 
Deterioration (PSD).'' As part of this action EPA is also approving 
revisions to the prevention of significant deterioration provisions in 
subsection 33-15-15 of the NDAC.
    EPA has concluded that the State's submission, and additional 
evidence evaluated by EPA, establish that emissions from North Dakota 
sources do not significantly contribute to nonattainment of the 1997 8-
hour ozone or the 1997 PM2.5 NAAQS in any other state. 
Therefore, the State's SIP does not need to include additional 
substantive controls to reduce emissions for purposes of section 
110(a)(2)(D)(i)(I) for these NAAQS. In addition, EPA has concluded that 
with the specific revisions addressed in this action, the State's SIP 
now contains adequate provisions to prevent emissions from the State's 
sources from interfering with measures required in the SIP of any other 
state under part C of the CAA to prevent ``significant deterioration of 
air quality,'' in accordance with section 110(a)(2)(D)(i)(II).

V. Statutory and Executive Order Review

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L.104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249,

[[Page 31305]]

November 9, 2000), because the SIP is not approved to apply in Indian 
country located in the state, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 2, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon 
moNOXide, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

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

    Dated: May 17, 2010.
James B. Martin,
Regional Administrator, Region 8.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart JJ-North Dakota

0
2. Section 52.1820 is amended to read as follows:
0
a. In the table in paragraph (c) by revising the entry for ``33-15-15-
01.2.''
0
b. In the table in paragraph (e) by revising the entry in ``(1)'' and 
adding entry ``(21)'' in numerical order to read as follows:

Sec.  52.1820  Identification of plan.

* * * * *
    (c) * * *

                                        State of North Dakota Regulations
----------------------------------------------------------------------------------------------------------------
                                                       State  effective   EPA approval date
         State citation              Title/subject           date         and citation \1\       Explanations
----------------------------------------------------------------------------------------------------------------

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

                                                 * *; * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

    (e) * * *.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Applicable  geographic or      State submittal date/        EPA approval date and
Name of nonregulatory  SIP provision     non-attainment  area             adopted date                  citation \3\                 Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Implementation Plan for the       Statewide.................  Submitted: 1/24/72            5/31/72, 37 FR 10842.......  Excluding subsequent
 Control of Air Pollution for the                                 Adopted: 1/24/72............                                revisions, as follows:
 State of North Dakota.                                                                                                       Chapters 1, 2, 6, 7, 9,
                                                                                                                              11, and 12; Sections 2.11,
                                                                                                                              3.7, 6.8, 6.10, 6.11,
                                                                                                                              6.13, 7.7, and 8.3;
                                                                                                                              portions of subsection
                                                                                                                              7.8.1.B., subsections
                                                                                                                              7.8.1.D., and 8.3.1.
                                                                                                                              Revisions to these non-
                                                                                                                              regulatory provisions have
                                                                                                                              subsequently been
                                                                                                                              approved. See below.
Chapters:

[[Page 31306]]

    1. Introduction.................  ..........................  Clarification submitted:      With all clarifications:     ...........................
    2. Legal Authority..............                              6/14/73.....................  3/2/76, 41 FR 8956.........
    3. Control Strategy.............                              2/19/74.....................
    4. Compliance Schedule..........                              6/26/74.....................
    5. Prevention of Air Pollution                                11/21/74....................
     Emergency Episodes.                                          4/23/75.....................
    7. Review of New Sources and
     Modifications.
    8. Source Surveillance..........
    9. Resources....................
    10. Inter-governmental
     Cooperation
    11. Rules and Regulations
    With subsequent revisions to the
     chapters as follows:

                                                                      * * * * * * *
(21) Section 7.8, Interstate          Statewide.................  Submitted: 4/09/09            6/3/10 75 FR 31290.........  Includes Section 7.8,
 Transport of Air Pollution (only                                 Adopted: 4/01/09............                                subsection Portions of
 7.8.1.A., portions of 7.8.1.B., and                                                                                          7.8.1 as indicated below:
 7.8.1.C., see explanation.)                                                                                                  7.8.1.A, ``Overview,'' the
                                                                                                                              language of Subsection
                                                                                                                              7.8.1.B., ``Nonattainment
                                                                                                                              and Maintenance Area
                                                                                                                              Impact,'' that
                                                                                                                              specifically addresses the
                                                                                                                              ``significant contribution
                                                                                                                              to nonattainment''
                                                                                                                              requirement of CAA Section
                                                                                                                              110(a)(2)(D)(i), and all
                                                                                                                              of 7.8.1.C.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column
  for the particular provision.

[FR Doc. 2010-13051 Filed 6-2-10; 8:45 am]
BILLING CODE 6560-50-P
```