ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

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

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

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

"Interference with Prevention of Significant Deterioration" Requirements 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: 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 11 O(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 11 O(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 11 0(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 11 0(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 ofthe 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 11 0(a)(2)(D)(i), that emissions from the
 

state's sources do not "interfere with maintenance" ofthe 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.
 

EFFECTIVE DATE: This final rule is effective [insert date 30 days after publication in the
 

Federal Register].
 

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R08­


OAR-2007-1032. All documents in the docket are listed on the 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 Friday, 8:00 a.m. to 4:00 p.m., excluding
 

Federal holidays.
 

FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program, U.S.
 

Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver,
 

Colorado 80202-1129, (303) 312-6416, mastrangelo.domenico@epa.gov.
 

SUPPLEMENTARY INFORMATION:
 

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Definitions 

For the purpose ofthis 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 ofNorth Dakota, unless the context 

indicates otherwise. 

Table of Contents 

I. Background 

II. Response to Comments 

III. Section 110(1) 

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), I 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 

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Transport of Air Pollution," were adopted by the State of North Dakota on April 1, 2009 and 

submitted to EPA on April 6, 2009. 

In chapter 33-15-15, NDAC, Prevention of Significant Deterioration of Air Quality, 

revisions were made to subsection 33-15-15-01.2, Scope. The baseline date for incorporation by 

reference ofthe 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: (l) 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 

1 EPA notes that in the referenced proposed rule there were references to the revision of "NDAC subsection 33-15­

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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, 

15-01.02"(75 FR 16027). As was clear from the context, the references were the results oftypographical errors. 

2 In this action the expression "CAIR" refers to the final rule published in the May 12,2005 Federal Register and 

entitled "Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); 

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CAIR modeling results for other states, and results ofmodeling studies for the nonattainment 

areas specifying the range of wind directions along which contribution of ozone transport 

occurred. Given that the assessments for each of these pieces of evidence are not individually 

definitive or outcome determinative, EPA concluded in its proposed action that the various 

factual and technical considerations supported a determination of no significant contribution 

from North Dakota emissions to the ozone nonattainment areas noted above. 

EPA did not receive comments that persuade the Agency that there is such significant 

contribution for the 1997 ozone or PM2.5 NAAQS and thus in today's final action EPA is making 

a final regulatory determination that North Dakota's emissions sources do not contribute 

significantly to violations ofthe 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 ofthe portion of the 

North Dakota Interstate Transport SIP that addresses the "significant contribution to 

nonattainment" and PSD requirements of CAA Section 11 O(a)(2)(D)(i) for the 1997 8-hour 

ozone and PM2.5NAAQS, and specific revisions to the air quality control rules 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 ofthis action, which also approves the PSD portion ofthe 

interstate transport SIP noted above, WG's comments could be taken to argue that the alleged 

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

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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 ofNSR rules promulgated in 2002 and 

2003.3 Therefore, EPA believes that the North Dakota PSD program approved by EPA in this 

action also reflects the effects of those decisions and is therefore consistent with federal 

requirements. 

EPA agrees with the implicit argument (mentioned above) that certain deficiencies in a 

state's existing SIP, or in a section 110(a)(2)(D) SIP submission itself, could affect the 

approvabilityof the section 11 0(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 11 0(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 11 0(a)(2)(D) for these NAAQS, 

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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 progranl 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 mininlum 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 

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

New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006). 

4 "The EPA implements the statutory PSD requirements through two sets of regulations. At 40 CFR 51.166, EPA 

has set minimum program requirements for States to follow in preparing, adopting, and submitting a PSD program 

for inclusion as part of the required SIP pursuant to Section 11 O(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 

8
 
51.166 is to adopt by reference the federal PSD program at 52.21, as North Dakota has here. To 

detemline whether deviations from 52.21 in the North Dakota PSD program meet federal 

requirements for a state program, the program is judged against the minimum federal 

requirements for a state PSD program given in 51.166. 

As to the requirements of 51.166, section 51.166(0)(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(0)(1) are given in 51.307, which, by its placement 

in subpart P, uses the definition ofthe term "adverse impact on visibility" at 51.30 1. 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 comnlent 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 

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."). 

9 
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 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 

ofthe 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 (1)(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 

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federal requirements for modeling in a PSD program are set out at 40 CFR 51.166(1). The North 

Dakota PSD provision that replaces 52.21 (1)(l) 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(1) 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(1). 

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. 

11 
Comment No.7 - WG expressed concern with certain public process provisions in the 

North Dakota SIP. In particular, WG identified state specific provisions for public participation 

replacing those at 52.21 (q). WG argued that the state should not be allowed to provide 

"summaries" of other materials it considered in making its permit decisions. 5 WG also argued 

that the state provisions should require the Department to respond to relevant comments. 

EPA Response - EPA disagrees with the commenter's view of these specific 

requirements. The minimum federal requirements for public participation in a state PSD 

program are set out in 51.166(q). The state provision cited by WG is consistent with the 

requirements at 51.166(q)(2)(ii); in fact, the provision matches 51.166(q)(2)(ii) precisely. 

Therefore, EPA believes that the North Dakota PSD program meets federal requirements for 

public participation. As such, this is not a basis for disapproval of the North Dakota PSD 

program revision or the section 11 O(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 

5 The commenter refers to section (g) of the provision, but from the mention of "summaries" it appears the 

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[or 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 

lis justified. Thus, EPA believes that the state regulatory provision cited by the commenter is 

Iconsistent 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 11 0(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 PM2.5NAAQS, the 2008 ozone 

NAAQS, and the 2010 N02NAAQS. 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 PM2.5NAAQS. Thus, the comment does not give grounds for disapproval of the 

interstate transport SIP for the NAAQS at issue in this rulemaking. 

commenter is referring to section (b). 

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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, 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. 

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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 ofthe 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 ofthe 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 

15
 
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 ofthe 

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 State's 

emissions are linked; (c) the ambient impact of the emissions from upwind States' sources on the 

downwind nonattainment problen1s; 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 

16 
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 

circunlstances 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 11 0(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 11 0(a)(2)(D)(i) for the 8­

Hour Ozone and PM2.5 National Ambient Air Quality Standards" on August 15, 2006.6 This 

guidance document postdated the NOx SIP Call, and was developed by EPA specifically to 

address SIP submissions for the 1997 8-hour ozone and PM2.5 NAAQS. 

Within that 2006 guidance document, EPA notes that it explicitly stated its view that the 

"precise nature and contents of such a submission [are] not stipulated in the statute" and that the 

contents of the SIP submission "may vary depending upon the facts and circumstances related to 

the specific NAAQS.,,7 Moreover, within that guidance, EPA expressed its view that "the data 

and analytical tools available" at the time of the SIP submission "necessarily affect[] the content 

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

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

Ambient Air Quality Standards (Aug. 15,2006) ("2006 Guidance"); p. 3. An electronic copy is available for review 

at the regulations.gov web site as Document ID No. EPA-R08-0AR-2007-1032.0004.1. 

7Id.at3. 

17
 
of the required submission."g To that end, EPA specifically recommended that states located 

within the geographic region covered by the "Clean Air Interstate Rule (CAIR)," comply with 

section 11 0(a)(2)(D) for the 1997 8-hour 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 11 0(a)(2)(D) considering relevant information. 

EPA explicitly recommended that relevant information for section 110(a)(2)(D) 

submissions addressing significant contribution to nonattainment "might include, but is not 

limited to, information concerning emissions in the State, meteorological conditions in the State, 

the distance to the nearest nonattainment area in another State, reliance on modeling conducted 

by EPA in determining that such State should not be included within the arnbit of the CAIR, or 

such other information as the State considers probative on the issue of significant contribution.,,9 

In addition, EPA recommended that states might elect to evaluate significant contribution to 

nonattainment using relevant considerations comparable to those used by EPA in CAIR, 

including evaluating impacts as of an appropriate year (such as 2010) and in light of the cost of 

control to mitigate emissions that resulted in significant contribution. 

WG did not acknowledge or discuss EPA's actual guidance for section 110(a)(2)(D) SIP 

submissions for the 1997 8-hour ozone and PM2.5NAAQS, 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 

18
 
rroblems 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 ofthe ozone NAAQS in do~wind 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 

9 ld. at 5. 

19
 
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 nLle action, or a misinterpretation of one of the pieces of evidence in 

our technical analysis. Thus, EPA does not see in its proposed rule the contradiction alleged by 

this comment. 

Comment No. 13 - WG reiterated its concern that the North Dakota section 11 O(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 State's emissions are 

10 SpecificalJy, the relevant portion ofour 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 halfas 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.) FinalJy, 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 ofthe 1997 8-hour ozone standard 

in the Illinois and Wisconsin counties along the southwestern shores of Lake Michigan." 75 FR 16030. 

20 
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 II O(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 "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 

IIO(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 

21
 
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 fonns 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 detennination 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 detenninative, consideration of the likely 

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

emissions are likely to contribute significantly to nonattainment in the DMA/NFR area 

and the Illinois/Wisconsin Counties. 11 

EPA acknowledged that the various fonns 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 detenninative, but concluded that when taken 

together served to establish that North Dakota sources do not significantly contribute to 

22
 
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 11 O(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 

1175 FR 16030. 

23 
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 11 O(a)(1) requires states to 

make SIP submissions that address section 11 O(a)(2)(D) and interstate transport "within 3 years 

or such shorter period as the Administrator may prescribe" of EPA's promulgation ofa new or 

revised NAAQS. This schedule does not support a reading of section 11 O(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 

24
 
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 11 0(a)(2)(D), and EPA's general approach to this threshold determination 

has not been disturbed by the courts. 12 

Finally, EPA disagrees with WG's argument that the assessment of significant 

contribution to downwind nonattainment must include evaluation of impacts on non-monitored 

areas. First, neither section 11 O(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 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 

12 Michigan v. U.S. EPA, 213 F.3d 663,674-681 (D.C. CiT. 2000); North Carolina v. EPA, 531 F.3d 896, 913-916 

(D.C. Cir. 2008) (upholding EPA approach to detennining threshold despite remanding other aspects ofCAIR). 

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 detennine which counties are 

violating the I-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. 

25 
~ransport under section 11 0(a)(2)(D) by focusing on monitoring data. Indeed, such monitoring 

Idata was at the core of both of these efforts. In neither ofthese 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 PM2.5nonattainment in downwind States is consistent with the 2006 

Guidance, and with the approach used by both the CAIR rule and the NOx SIP Call. 

Comment No. 16 - In support of its comments that EPA should assess significant 

contribution to nonattainment in nonmonitored areas, WG argued that existing modeling 

performed by another organization "indicates that large areas of neighboring states will likely 

violate the ozone NAAQS." According to WG, these likely "violations" of the ozone NAAQS 

were predicted for the year 2018, as reflected in a slide from a July 30, 2008 presentation before 

the Western Regional Air Partnership ("Review of Ozone Performance in WRAP Modeling and 

Relevant to Future Regional Ozone Planning"). WG asserted that: "Slide 28 of this presentation 

displays projected 4th highest 8-hour ozone reading for 2018 and indicates that air quality 

throughout large portions ofthe 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 ofthe 1997 8-hour ozone NAAQS in 2018 in non-monitored areas Western states. 

26
 
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 11 0(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 ofthe 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 ofthe 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 Comers Air 

Quality Task Force (FCAQTF; Stoeckenius et aI., 2009) has demonstrated that excessive vertical 

transport in the CMAQ and CAMx models over high terrain was responsible for overestimated 

15 The presentation is available for review as Document ID # EPA-R08-0AR-2007-1032-0007.8 at Regulations.gov, 

27 
ground level ozone concentrations due to downward transport of stratospheric ozone, 16 Environ 

has developed revised vertical velocity algorithms in a new version of CAMx that eliminated the 

excessive downward transport of ozone from the top layers of the model. This revised version of 

the model is now being used in a number of applications throughout high terrain areas in the 

West. In conclusion, EPA believes that this key inadequacy of the WRAP model, noted above, 

makes it inappropriate support for WG's concerns about large expanses of 8-hour ozone 

nonattainment areas projected for 2018 in areas without monitors. 

Finally, it must be noted that even if the ozone exceedances predicted for the year 2018 

were based on a sound modeling analysis, even the closest areas showing exceedances are 

several hundred miles southwest ofNorth 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 

Docket ID # EPA-R08-0AR-2009-0282.
 

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. 

28 
2005 meteorological data, portions of the four counties in the southwest corner of Utah are also 

currently in nonattainment and will be in nonattainment in 2012. 17 

EPA Response - As noted above, EPA does not agree that it is appropriate to assess 

significant contribution to nonattainment for the 1997 8-hour 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; ifit 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 area were at the top of 

the 81.00-85.99 ppb range, their reliability would remain questionable. The UBAQS itself 

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

29
 
identifies and illustrates major shortcomings of its modeling analysis, only to neglect assessing 

the impact ofthese shortcomings on the modeling results. I8 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 umeliable for projecting non-attainment status 

and therefore do not support its comments. 

Finally, the predicted attainment status of unmonitored areas in the southwestern corner 

of Utah is not relevant to our assessment ofwhether 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 

Counties.
 

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/scramOO l/guidance/guide/final-03-pm-rh­


guidance.pdf).
 

20 DVC x RRF = DVF.
 

21 See UBAQS, p. 4-28
 

30 
Isignificant 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 03 monitors, while many large midwestern 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 ofthe 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 

31 
insufficient for the 1997 8-hour ozone NAAQS, as the commenter implies. Indeed, states submit 

annual monitor network reports to EPA and EPA evaluates these to insure that they meet the 

applicable requirements. For example, North Dakota itself submits just such a report on an 

annual basis, and EPA reviews it for adequacy.22 All other states submit comparable reports. 

Finally, EPA disagrees that monitored and unmonitored areas in the western States 

identified above by the commenter may be affected by emissions from North Dakota. As noted 

in the proposed rule, the easterly or northeasterly winds that would be needed to transport 

emissions from North Dakota to these States are rare?3 Similarly rare is the possibility of 

impacts on these States from North Dakota's emissions. 

Comment No. 19 - WG objected to EPA's proposed approval ofthe 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. 

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 

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-R08-0AR-2009-0282. 

32
 
recommended other forms of information that states might wish to evaluate as part of their 

section 11 0(a)(2)(D) subnlissions 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 PM2.5NAAQS 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 11 0(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 11 0(a)(2)(D), 

WG noted that EPA itself asks other agencies to perform such modeling in other contexts. As 

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

33 
examples, the commenter cited four examples in which EPA commented on action s 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 11 O(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 11 O(a)(2)(D). 

EPA Response - As explained above, EPA disagrees with WG's fundamental argument 

that modeling is required to evaluate significant contribution to nonattainment, whether by 

section 110(a)(2)(D), by EPA guidance, or by past EPA precedent. EPA's applicable guidance 

made recommendations as to different approaches that can lead to the satisfaction of the 

interstate transport requirements for significant contribution to nonattainment in other states. 

Even EPA's own CAIR analysis relied on a combination of qualitative and quantitative analyses, 

as explained above. As indicated in our response to Comment No. 19, the CAIR analysis 

excluded the Western States on the based on a qualitative assessment of the regions topography, 

geography and meteorology.25 

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-R08-0AR-2007-1032-0007,4 through 1032-0007.7.
 

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

34 
EPA believes that the commenter's references to EPA statements comnlenting on the 

actions of other agencies are inapposite. As WG is aware, those comments were made in the 

context ofthe evaluation ofthe impacts of various federal actions pursuant to NEPA, not the 

Clean Air Act. As explained above, in the context of section 11 0(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)(l), 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 ofthe 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 11 0(a)(2)(D) requirements. Moreover, EPA 

interprets the language at 40 CFR 51.112(a): "[e]ach plan must demonstrate that the measures, 

35
 
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. Us. EPA, 265 F.3d 

426,436 (6th Cir. 2001). Thus, the comnlenter'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 11 0(a)(2)(D) in 

particular. According to the commenter, there is no regulatory support for using a "weight-ofevidence" 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 any specific 

nleaning 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 

36 
consideration.26 As described above, EPA's guidance issued for the 1997 8-hour ozone NAAQS, 

the Agency specifically recommended types of information that states might wish to rely upon to 

evaluate the presence of, and extent of, interstate transport for this purpose. EPA believes that a 

weight of evidence approach that properly considers appropriate evidence is sufficient to make a 

valid determination, as in this case. 

Specifically, EPA's technical analysis in the March 31,2010 proposed rule action 

underscores its reliance on implementation policies set in the EPA 2006 Guidance: "EPA's 

August 15,2006, guidance to states concerning section 110(a)(2)(D)(i) recommended various 

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

violations of the 1997 ozone standards in another state. Among other methods, EPA 

recommended consideration of available EPA modeling conducted in conjunction with CAIR, or 

in the absence ofsuch EPA modeling, consideration ofother information such as the amount of 

emissions, the geographic location ofviolating areas, meteorological data, or various other 

forms ofinformation that would be relevant to assessing the likelihood ofsignificant contribution 

to violations ofthe NAAQS in another state [our emphasisl,,27 On the basis ofthis 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 

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

37
 
of wind directions along which contributing ozone transport occurred. EPA's use of a weight of 

evidence analysis is by no means unusual for the assessment of ozone impacts through long 

range transport. The same analytical framework was used in the 1998 NOx SIP Call, as 

indicated under Section II.C., entitled "Weight-of-Evidence Determination of Covered States.,,28 

The differences between the specific types of evidence used in the NOx SIP Call and in our 

analysis do not invalidate the use of the weight-of-evidence approach. 

As for the commenter's argument that EPA "fails to lend any specific meaning to the 

phrase through its proposed approval," the Agency's technical analysis described in the proposal 

did specify the characteristics, including limitations, of a weight of evidence analysis: 

"[f]urthermore ...EPA notes that no single piece ofinformation 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: 

27 75 FR 16029, March 31, 2010.
 

28 "As discussed above, EPA applied a multi-factor approach to identify the amounts ofNOx emissions that
 

contribute significantly to nonattainment...." 1998 SIP Call, 63 FR 57381, October 27, 1998.
 

38 
"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 ofthe NAAQS or problems with PSD compliance 

such as exceeding increments, short of cumulative modeling exercise assuming that all source 

are emitting at their physical limits without controls. See, e.g., Clean Air Act Sections 

110(a)(2)(A) and (D), 42 U.S.C. Sections 7410(a)(2)(A) and (D).,,29 

EPA Response - EPA understands the concerns raised by the commenter, but does not 

believe that any such excess emissions would in and of themselves constitute significant 

contribution to nonattainment in another state. EPA notes that its technical analysis for the 

significant contribution element in our proposal was not premised upon distinguishing between 

legal and illegal, or permissible and impermissible, emissions from North Dakota sources. 

EPA's technical analysis, and the conclusion based on the weight of the evidence, did not depend 

on the precise amount of emissions from North Dakota, and did not tum 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. 

29 "If emission violations are excused during startups, shutdowns, or malfunctions, and thus essentially unregulated 

during those periods, there is no way to detennine 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 11 O(a)(2)(A) and (D), 42 V.S.c. Sections 741O(a)(2)(A) 

and (D)." 

39
 
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 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 ofthe 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 

40
 
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 

41
 
NDAC 33-15-01-13.1 includes at 33-15-01-13(l)(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 ofthe 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 ofthis 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. 

42
 
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 ofNDAC 

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 

malfunctions30 apply to the North Dakota revision. As stated in that guidance, the enforcement 

30 Memorandwn 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). 

43
 
discretion approach endorsed by EPA in earlier guidance3

! remains valid, and North Dakota 

selected the enforcement discretion approach. In any event, EPA is not acting upon that April 6, 

2009, submission at this time. 

Comment No. 28 - WG and the Sierra Club also expressed concern about a provision in 

the North Dakota SIP related to failure of a continuous emission monitoring system (CEMS). 

See NDAC § 33-15-01-13(3). WG and the Sierra Club both argued that the provision is contrary 

to Title IV of the CAA and the regulations at 40 CFR Part 75 implementing Title IV. WG 

apparently believed that EPA cannot approve the North Dakota SIP section 11 0(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 11 0(a)(2)(D)(i), as noted above, once EPA has determinedas it has here-that emissions from North Dakota do not significantly contribute to 

nonattainment in any other state, no substantive modification of North Dakota's SIP is required 

to eliminate any emissions. As to the PSD element of 110(a)(2)(D)(i), the requirements of Part 

75 relate to Title IV, the acid rain title of the Clean Air Act. These requirements are simply not 

relevant to the North Dakota PSD program or to the PSD element of 110(a)(2)(D)(i). 

Comment No. 29: As part of its objection to the proposed action, the Sierra Club 

identified a North Dakota SIP provision that authorizes North Dakota to allow violations of 

ambient air quality standards in certain circumstances. See NDAC § 33-15-02-07(4). 

EPA Response - EPA disagrees that this provision provides a basis for disapproval of the 

section 11 0(a)(2)(D) submission. The provision does allow for certain exceedances of certain 

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 

44
 
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. Furthennore, the provision does not affect EPA's 

factual detennination that emissions from North Dakota do not significantly contribute to 

nonattainment in other states 

Comment No. 30 - WG also identified certain provisions in the North Dakota SIP creating 

exceptions to certain opacity limits as a concern in the context of action on the section 

110(a)(2)(D) submission. See NDAC § 33-15-03-04(4), (5). WG described the provisions as 

"blanket exemptions" and argued that because visible emissions are often used as an indicator for 

particulate matter, the exemptions "fail to prohibit emissions that could contribute significantly 

to nonattainment or interfere with PSD requirements." WG therefore argued that EPA cannot 

approve the proposed SIP revision unless the exemptions are removed or revised. 

EPA Response - EPA does not endorse the exceptions cited by WG, and EPA's action 

here should not be construed as an approval ofthese 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 tenns ofNDAC 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. 

Furthennore, the specific numeric opacity limits are unrelated to emissions limits 

imposed by PSD, under which BACT is detennined on a case-by-case basis. Thus, the 

provisions cited by WG do not create any exception from BACT emissions limits or any other 

Startup, Shutdown, Maintenance, and Malfunctions" (Feb. 15, 1983) (clarifying 1982 memorandum). 

45 
PSD requirements. As a result, the exceptions are not relevant to the requirements of the PSD 

element of 110(a)(2)(D)(i). As to the significant contribution element of 110(a)(2)(D)(i), as 

noted elsewhere, once EPA has factually determined-as it has here-that emissions from North 

Dakota do not significantly contribute to nonattainment in any other state, no modification of 

North Dakota's SIP is required. 

Comment No. 31 - As additional problematic provisions in the North Dakota SIP, WG 

and Sierra Club identified provisions in the North Dakota SIP creating exceptions to certain 

particulate matter emissions limits. See NDAC § 33-15-05-01(2)(a). WG argued that the 

provisions allow the state discretion to exempt sources from compliance during temporary 

breakdowns or cleaning of air pollution control equipment, and that therefore the North Dakota 

SIP fails to prohibit emissions that contribute significantly to nonattainment in other states, or 

that interfere with other states' required PSD measures. Sierra Club argued that the provision 

violates EPA policy and creates a broader exception than allowed by the enforcement discretion 

or affirmative defense approaches to unavoidable malfunctions. 

EPA Response - EPA does not endorse the exceptions cited by the commenters, which 

EPA notes are not the subject ofthis 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 ofNDAC 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 

46
 
of the PSD element of 11 0(a)(2)(D)(i). 

As to the significant contribution element of 11 0(a)(2)(D)(i), EPA disagrees with WG 

that EPA cannot approve the North Dakota interstate transport SIP until the provision is removed 

or revised. As noted elsewhere, once EPA has determined-as it has here-that emissions from 

North Dakota do not significantly contribute to nonattainment in any other state, no modification 

of North Dakota's SIP is required. 

Comment No. 32 - The Sierra Club commented on a provision in the North Dakota SIP 

related to reporting of excess emissions of sulfur dioxide and other sulfur compounds. See 

NDAC § 33-15-06-05. The Sierra Club asserted that the provision "contains unacceptable 

language" and argued the SIP should be revised to make clear that the reporting requirement 

does not authorize or exempt excess emissions. Sierra Club also implied that this issue makes it 

impossible to determine whether emissions from North Dakota significantly contribute to 

nonattainment in other states and whether the state's SIP would interfere with measures required 

in other states to prevent significant deterioration of air quality with repect to the 1997 8-hour 

ozone and PM2.5 NAAQS. 

EPA Response - The Sierra Club did not identify any particular phrase in the 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 Dakot~ 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. 

47 
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 11 O(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 11 O(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 11 O(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 

48 
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 11 0(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 1IO(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 1IO(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 11 0(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 

49 
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(1). Evidently, the commenter believes that the section 11 0(a)(2)(D) submission is a revision 

to the SIP that will interfere with attainment ofthe 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(1) 

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(1) 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(1) or that section 110(1) requires disapproval of the 

SIP submission at issue here. 

Section 110(1) 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 ofthis chapter." EPA has 

consistently interpreted Section 110(1) 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 58,199, 58,134 (Oct. 5. 

2005); 70 FR 17.029, 17,033 (Apr. 4, 2005); 70 FR 53, 57 (Jan. 3, 2005); 70 FR 28,429, 28,431 

50
 
(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 

PM2.5NAAQS. 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 changes to 52.21 in that period do not 

relax any PSD requirements. In fact, the primary substantive change was the recognition of NOx 

as a precursor to ozone, a change that strengthens PSD requirements. Other changes included (as 

noted elsewhere in EPA's response to comments) recognition of the effects of federal cases 

vacating certain aspects ofNSR 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 

theNAAQS. 

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 

51
 
(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 ofthe 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(1) applies to this submission, EPA finds that approval of the 

submission is consistent with the requirements of section 110(1). 

III. Section 110(1) 

Section 110(1) 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 11 0(a)(2)(D)(i) for the 

1997 8-hour ozone and PM2.5NAAQS; 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 

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); 

52 
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 ofthe NAAQS or other applicable requirements of the Act. 

IV. Final Action 

The Environmental Protection Agency is approving portions ofthe Interstate Transport of 

Air Pollution SIP submitted by the State ofNorth 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 (l) of section 11 0(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 ofthis 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 ofthe 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 ofsection 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 

New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006). 

53 
deterioration of air quality," in accordance with section 11 0(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 (Public Law 

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);
 

54
 
•	 is not subject to requirements of Section 12(d) of the National Technology Transfer and 

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

requirements would be inconsistent with the Clean Air Act; and 

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

disproportionate human health or environmental effects, using practicable and legally 

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

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

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

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

governments or preempt tribal law. 

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 nL1e 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 [FEDERAL 

REGISTER OFFICE: insert date 60 days from date of publication of this document in the 

Federal Register]. Filing a petition for reconsideration by the Administrator of this final rule 

55
 
IDENTIFICATION OF DOCUMENT: 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. Final Rule. (EPA-R08-0AR-2007-0645) 

Page 56 of 54{)I( 

does not affect the finality ofthis action for the purposes ofjudicial 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. 

~::t I kIp ~---

Dated 

Regional Administrator 

Region 8 

56 
40 CFR part 52 is amended as follows: 

PART 52 [AMENDED] 

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

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

Subpart JJ-North Dakota 

2. Section 52.1820 is amended to read as follows: 

a. In the table in paragraph (c) by revising the entry for "33-15-15-01.2." 

b. In the table in paragraph (e) by revising the entry in "(1)" and adding entry "(21)" in numerical 

order to read as follows: 

§ 52.2170 Identification of plan. 

* * * * * 

(c) *** 

STATE OF NORTH DAKOTA REGULATIONS 

State citation Title/subject State 

effective 

date 

EPA 

approval 

date and 

citationl 

Explanations 

* * * * 

33-15-15-01.2 

* * 

Scope 

* 

4/1/09 [Insert 

Federal 

Register 

date of 

publication], 

[Insert 

Federal 

Register 

page number 

where the 

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. 

57 
document 

begins.] 

* * * * * * * 

(e) *** 

Name of Applicable State EPA approval Explanations 

nonregulatory SIP geographic or submittal date and 

provision non-attainment 

area 

date/ 

adopted date 

citation4 

(l) Implementation 

Plan for the Control 

of Air Pollution for 

the State ofNorth 

Dakota. 

Chapters: 

1. Introduction 

2. Legal Authority 

3. Control Strategy 

4. Compliance 

Schedule 

5. Prevention of Air 

Pollution Emergency 

Episodes 

7. Review of New 

Sources and 

Modifications 

8. Source 

Surveillance 

9. Resources 

10. Intergovernmental 

Cooperation 

11. Rules and 

Regulations 

With subsequent 

revisions to the 

chapters as follows: 

Statewide Submitted: 

1/24/72 

Adopted: 

1/24/72 

Clarification 

subn1itted: 

6/14/73 

2/19/74 

6/26/74 

11/21/74 

4/23/75 

5/31/72, 

37 FR 10842 

With all 

clarifications: 

3/2/76, 

41 FR 8956 

Excluding 

subsequent 

revisions, as 

follows: 

Chapters 1, 2, 6, 

7, 9, 11, and 12; 

Sections 2.11, 

3.7,6.8,6.10, 

6.11,6.13,7.7, 

and 8.3; portions 

of subsection 

7.8.1.B., 

subsections 

7.8.1.D., and 

8.3.1. Revisions 

to these nonregulatory 

provisions have 

subsequently 

been approved. 

See below. 

58
 
* * * * * * *
 

In order to determIne the EPA effectIve date for a specIfic proVIsIon hsted In thIS table, consult 

(21) Section 7.8, 

Interstate Transport 

of Air Pollution 

(only 7.8.I.A., 

portions of 7.8.l.B., 

and 7.8.I.C., see 

explanation.) 

Statewide..... Submitted: 

4/09/09 

Adopted: 

4/01/09 

[insert date of 

FR 

publication] 

[insert FR page 

number where 

document 

begins] 

Includes Section 

7.8, subsection 

Portions of 7.8.1 

as indicated 

below: 7.8.I.A, 

"Overview," the 

language of 

Subsection 

7.8.I.B., 

"Nonattainment 

and Maintenance 

Area Impact," 

that specifically 

addresses the 

"significant 

contribution to 

nonattainment" 

requirement of 

CAA Section 

1IO(a)(2)(D)(i), 

and all of 

7.8.l.C. 

4­ .. 

the Federal Register notice cited in this column for the particular provision. 

59