[Federal Register Volume 75, Number 106 (Thursday, June 3, 2010)]
[Rules and Regulations]
[Pages 31290-31306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13051]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2009-0282; FRL-9155-6]
Approval and Promulgation of State Implementation Plan Revisions;
State of North Dakota; Air Pollution Control Rules, and Interstate
Transport of Pollution for the 1997 PM2.5 and 8-Hour Ozone
NAAQS: ``Significant Contribution to Nonattainment'' and ``Interference
With Prevention of Significant Deterioration'' Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is approving State
Implementation Plan (SIP) revisions submitted by the State of North
Dakota on April 6, 2009. Specifically, EPA is approving revisions to
the North Dakota air pollution control rules regarding prevention of
significant deterioration of air quality, and partially approving the
SIP revision ``Interstate Transport of Air Pollution'' addressing the
requirements of Clean Air Act section 110(a)(2)(D)(i) for the 1997
PM2.5 and 8-hour ozone National Ambient Air Quality
Standards (NAAQS). These revisions, referred to as the Interstate
Transport of Air Pollution SIP, address the requirements of Clean Air
Act section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997
PM2.5 National Ambient Air Quality Standards (NAAQS). In
this action, EPA is approving the North Dakota Interstate Transport SIP
provisions that address the requirement of section 110(a)(2)(D)(i)(I)
that emissions from the state's sources do not ``contribute
significantly'' to nonattainment of the 1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS in any other state. In addition, EPA is
approving the provisions of this SIP that address the requirement of
section 110(a)(2)(D)(i)(II) that emissions from the state's sources do
not interfere with measures required in the SIP of any other state
under part C of the Clean Air Act (CAA) to prevent ``significant
deterioration of air quality.'' EPA will act at a later date on the
North Dakota Interstate Transport SIP provisions that address the
remaining two requirements of section 110(a)(2)(D)(i), that emissions
from the state's sources do not ``interfere with maintenance'' of the
1997 8-hour ozone and 1997 PM2.5 NAAQS in any other state,
and do not interfere with measures required in the SIP of any other
state to ``protect visibility.'' This action is being taken under
section 110 of the Clean Air Act.
DATES: Effective Date: This final rule is effective July 6, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2009-0282. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through www.regulations.gov, or in hard copy at the Air
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. EPA requests that if at all
possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through
[[Page 31291]]
Friday, 8 a.m. to 4 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program,
U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6416,
[email protected].
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation Plan.
(iv) The words State or North Dakota mean the State of North
Dakota, unless the context indicates otherwise.
Table of Contents
I . Background
II . Response to Comments
III. Section 110(l)
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background and Purpose
In a proposed rule action published March 31, 2010 EPA proposed
approval of revisions to the State provisions on the prevention of
significant deterioration (PSD) of air quality in subsection 33-15-15-
01.2 of the North Dakota Administrative Code (NDAC),\1\ and partial
approval of the North Dakota Interstate Transport of Air Pollution SIP
for the 1997 PM2.5 and 8-hour ozone National Ambient Air
Quality Standards (NAAQS). The revisions to NDAC subsection 33-15-15-
01.2, and the addition to the North Dakota SIP of section 7.8,
``Interstate Transport of Air Pollution,'' were adopted by the State of
North Dakota on April 1, 2009 and submitted to EPA on April 6, 2009.
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\1\ EPA notes that in the referenced proposed rule there were
references to the revision of ``NDAC subsection 33-15-15-01.02'' (75
FR 16027). As was clear from the context, the references were the
results of typographical errors.
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In chapter 33-15-15, NDAC, Prevention of Significant Deterioration
of Air Quality, revisions were made to subsection 33-15-15-01.2, Scope.
The baseline date for incorporation by reference of the federal PSD
program set out at 40 CFR 52.21 was updated to August 1, 2007. In
addition, various administrative corrections and clarifications were
made. In our proposal to approve these revisions, EPA stated that the
revisions were made to make the North Dakota PSD program consistent
with federal requirements. EPA did not receive comments that persuade
the Agency that the revisions are less stringent than or inconsistent
with federal requirements, and thus EPA is approving them in today's
final action.
Section 110(a)(2)(D)(i) of the CAA requires that a state's SIP must
contain adequate provisions prohibiting any source or other type of
emissions activity within the state from emitting any air pollutant in
amounts which will: (1) Contribute significantly to nonattainment of
the NAAQS in any other state; (2) interfere with maintenance of the
NAAQS by any other state; (3) interfere with any other state's required
measures to prevent significant deterioration of air quality; or (4)
interfere with any other state's required measures to protect
visibility. In our proposed rule EPA proposed partial approval of the
North Dakota Interstate Transport of Air Pollution SIP for the 1997
PM2.5 and 8-hour ozone NAAQS. Specifically, EPA proposed
approval of the North Dakota SIP sections that addressed the first and
third requirements, ``significant contribution'' and ``interference
with PSD'' of the Interstate Transport CAA provisions. EPA will act at
a later date on the North Dakota Interstate Transport SIP sections that
address the remaining requirements: ``interference with maintenance''
and ``interference with visibility.''
To assess whether emissions from North Dakota contribute
significantly to downwind nonattainment for the 1997 PM2.5
NAAQS, North Dakota and EPA's technical analysis relied on the results
of CAIR modeling and on monitoring data in neighboring downwind states.
The CAIR modeling results indicated that the State contribution to the
closest nonattainment area was below the ``significant contribution''
threshold. Monitoring data showed that in downwind states there were no
monitors violating the 1997 24-hour or annual PM2.5 NAAQS.
To assess whether emissions from North Dakota contribute
significantly to downwind nonattainment for the 1997 8-hour ozone
NAAQS, EPA's technical analysis relied on EPA's 2006 Guidance,
recommending consideration of available EPA modeling conducted in
conjunction with CAIR,\2\ or in the absence of such EPA modeling,
consideration of other information such as the amount of emissions, the
geographic location of violating areas, meteorological data, or various
other forms of information that would be relevant to assessing the
likelihood of significant contribution to violations of the NAAQS in
another state. Consistent with the NOX SIP Call and CAIR,
our technical analysis assessed the extent of ozone transport from
North Dakota not just for areas designated nonattainment, but also for
areas in violations of the NAAQS. Because EPA did not have detailed
modeling for North Dakota and nearby downwind states, our approach did
not rely on a quantitative determination of North Dakota's contribution
but on a weight-of-evidence approach using quantitative information
such as North Dakota's distance from areas with monitors showing
violations of the NAAQS, modeling results outlining wind vectors for
regional transport of ozone on high ozone days, CAIR modeling results
for other states, and results of modeling studies for the nonattainment
areas specifying the range of wind directions along which contribution
of ozone transport occurred. Given that the assessments for each of
these pieces of evidence are not individually definitive or outcome
determinative, EPA concluded in its proposed action that the various
factual and technical considerations supported a determination of no
significant contribution from North Dakota emissions to the ozone
nonattainment areas noted above.
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\2\ In this action the expression ``CAIR'' refers to the final
rule published in the May 12, 2005 Federal Register and entitled
``Rule to Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to NOX SIP Call; Final Rule'' (70 FR 25162).
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EPA did not receive comments that persuade the Agency that there is
such significant contribution for the 1997 ozone or PM2.5
NAAQS and thus in today's final action EPA is making a final regulatory
determination that North Dakota's emissions sources do not contribute
significantly to violations of the 1997 8-hour ozone NAAQS in any other
state.
II. Response to Comments
EPA received one letter from WildEarth Guardians (WG) and one
letter from the Sierra Club commenting on EPA's Federal Register action
proposing approval of the portion of the North Dakota Interstate
Transport SIP that addresses the ``significant contribution to
nonattainment'' and PSD requirements of CAA Section 110(a)(2)(D)(i) for
the 1997 8-hour ozone and PM2.5 NAAQS, and specific
revisions to the air quality control rules
[[Page 31292]]
addressed within that proposal. In this section EPA responds to the
significant adverse comments made by the commenters.
Comment No. 1--WG opposed EPA's approval of North Dakota's revision
of its PSD program, based on several alleged deficiencies in that
program. Although WG does not explicitly state it, in the context of
this action, which also approves the PSD portion of the interstate
transport SIP noted above, WG's comments could be taken to argue that
the alleged deficiencies adversely impact the measures required in
other states to prevent significant deterioration of air quality in
such states. To the extent WG makes this argument, EPA responds below.
As to the first deficiency, WG noted that the current federally-
enforceable version of the North Dakota PSD program incorporates 40 CFR
52.21 as it stood on October 1, 2003. WG stated that the PSD program in
North Dakota should be amended to reflect the effects of court opinions
that vacated portions of that version of 52.21.
EPA Response--EPA disagrees with the commenter's argument that the
North Dakota SIP does not reflect current requirements. North Dakota's
submittal incorporated 40 CFR 52.21 as it stood on August 1, 2007. The
August 1, 2007 version of 40 CFR 52.21 fully reflected the effects of
federal court decisions vacating certain portions of NSR rules
promulgated in 2002 and 2003.\3\ Therefore, EPA believes that the North
Dakota PSD program approved by EPA in this action also reflects the
effects of those decisions and is therefore consistent with federal
requirements.
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\3\ 67 FR 80186 (Dec. 31, 2002); 68 FR 61248 (Oct. 23, 2003);
New York v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005); New York v. EPA,
443 F.3d 880 (D.C. Cir. 2006).
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EPA agrees with the implicit argument (mentioned above) that
certain deficiencies in a state's existing SIP, or in a section
110(a)(2)(D) SIP submission itself, could affect the approvability of
the section 110(a)(2)(D) SIP submission with respect to the PSD
requirement. As provided in EPA's guidance for such SIP submissions for
the 1997 8-hour ozone and PM2.5 NAAQS, EPA made
recommendations with respect to specific SIP revisions that it
anticipated would be appropriate to address in the section 110(a)(2)(D)
SIP submissions for these NAAQS, whether by reference to other
submissions already made or within the same SIP submission. For
example, for the requirements of the PSD element of section
110(a)(2)(D) for these NAAQS, EPA indicated that a state's SIP should
reflect the current requirements for the implementation of the PSD and
nonattainment NSR requirements for these NAAQS, as a means of
establishing that the state's SIP would not interfere with measures to
prevent significant deterioration in other states. EPA believes that
this assessment is fact specific, however, and that the question of
whether a state's SIP could cause such interference in another state
must be examined on a case by case basis.
In this instance, because the North Dakota program now tracks the
requirements of 40 CFR 52.21 as of August 1, 2007, WG's concern gives
no reason to conclude that the revisions could interfere with the
measures required in other states.
Comment No. 2--As another potential defect in the North Dakota PSD
program, WG noted that the North Dakota PSD program adds the sentence:
``[t]his term does not include effects on integral vistas,'' to 40 CFR
52.21(b)(29), that is, the definition of ``adverse impact on
visibility.'' WG argued that this additional language renders the PSD
program less stringent than federal requirements.
EPA Response--EPA disagrees with WG's comment. In this comment, and
others, WG appears to believe that per se any deviation from the
language of 40 CFR 52.21 is invalid. However, the minimum federal
requirements for state PSD programs are specified in 40 CFR 51.166, not
in 52.21.\4\ One way in which a state PSD program may meet the
requirements of 51.166 is to adopt by reference the federal PSD program
at 52.21, as North Dakota has here. To determine whether deviations
from 52.21 in the North Dakota PSD program meet federal requirements
for a state program, the program is judged against the minimum federal
requirements for a state PSD program given in 51.166.
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\4\ ``The EPA implements the statutory PSD requirements through
two sets of regulations. At 40 CFR 51.166, EPA has set minimum
program requirements for States to follow in preparing, adopting,
and submitting a PSD program for inclusion as part of the required
SIP pursuant to Section 110(c) of the Act. At 40 CFR 52.21, EPA has
promulgated a Federal PSD program requiring the Administrator's
preconstruction review and approval of major new or modified
stationary sources in the absence of an approved State PSD program,
and for areas such as Indian Lands and Outer Continental Shelf areas
that are outside of the jurisdiction of individual States.'' 58 FR
31622, 31623 (June 3, 1993). For states that--unlike North Dakota--
lack a SIP-approved PSD program, EPA may delegate implementation of
52.21 to the state. E.g., 73 FR 53401 (Sept. 16, 2008) (``Prior to
approval of Michigan's submitted PSD program, EPA delegated to
Michigan (via delegation letter dated September 26, 1988) the
authority to issue PSD permits through the Federal PSD rules at 40
CFR 52.21.'').
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As to the requirements of 51.166, section 51.166(o)(1) creates a
requirement for visibility impact analysis for new major stationary
sources and major modifications. Federal requirements for protection of
visibility in state SIPs are set out in subpart P of part 51.
Procedures for the visibility impact analysis required by 51.166(o)(1)
are given in 51.307, which, by its placement in subpart P, uses the
definition of the term ``adverse impact on visibility'' at 51.301.
North Dakota's definition is consistent with the federal definition; in
fact, it matches it precisely. In addition, no integral vistas have
been identified under section 51.304, so the addition of the sentence
has no effect. Therefore, EPA disagrees with the comment that the North
Dakota PSD program, by modifying 52.21(b)(29), does not meet federal
requirements.
Comment No. 3--As another potential issue, WG noted that the North
Dakota PSD program deletes references to NAAQS at 52.21(d), (k)(1), and
(v)(2)(iv)(a). WG argued that the references must be restored to ensure
that the NAAQS apply everywhere and that PSD increments are federal
increments.
EPA Response--The cited references are replaced in the North Dakota
rules by provisions that apply the state ambient air quality standards
for areas within North Dakota's jurisdiction and that apply the NAAQS
elsewhere. As discussed elsewhere in these responses, updates to the
state ambient air quality standards, consistent with revisions to the
NAAQS, were submitted by North Dakota to EPA on April 1, 2009. EPA will
be acting on the revision in a separate action. Also, the North Dakota
PSD program incorporates 40 CFR 52.21(c), which defines the PSD
increments, by reference without modification; therefore, the North
Dakota PSD increments are the federal increments.
Comment No. 4--As an additional concern, WG noted that the North
Dakota PSD program replaces 40 CFR 52.21(h) with different state stack
height requirements. WG argued that these requirements must be at least
as stringent as federal requirements. Implicitly, WG argued that these
different stack height requirements would interfere with other states's
required PSD measures.
EPA Response--EPA disagrees with this comment. WG did not explain
or identify any way in which the state requirements are less stringent
than federal requirements. EPA has reviewed
[[Page 31293]]
the North Dakota state stack height requirements and finds that the
requirements are at least as stringent as those in 40 CFR 51.166(h),
which specifies the minimum stack height requirements for a state PSD
program. Therefore, EPA does not believe that the provision creates a
deficiency in the North Dakota PSD program or that the North Dakota SIP
interferes with measures required for prevention of significant
deterioration in any other state for purposes of the 1997 8-hour ozone
and PM2.5 NAAQS.
Comment No. 5--WG further argued that the North Dakota PSD program
must include 40 CFR 52.21(l)(1) and must update the reference to
Appendix W to part 51 in order to be consistent with current federal
law requirements. WG also asserted that the North Dakota guidelines for
air quality modeling are unacceptable because they are less stringent
than applicable federal requirements.
EPA Response--EPA disagrees with the commenter's assessment on this
point. The federal requirements for modeling in a PSD program are set
out at 40 CFR 51.166(l). The North Dakota PSD provision that replaces
52.21(l)(1) is consistent with these requirements. Furthermore, the
provision does not specify a particular date for incorporation of
Appendix W; EPA therefore believes no update to the reference is
necessary. Finally, 51.166(l) provides for modification or substitution
of models in Appendix W on a case-by-case or generic basis with written
approval of the Administrator. The Administrator has approved, in
writing, use of the North Dakota guideline on a generic basis by
approving previous submittals of the North Dakota PSD program that
contained the same provision allowing for use of the guideline.
Therefore, EPA believes that the North Dakota provision is consistent
with federal requirements in 51.166(l).
Comment No. 6--WG also identified analyses for visibility as
another alleged deficiency in the existing PSD program in North Dakota.
WG noted that the state's PSD program requires visibility analysis for
new source review to be prepared in accordance with state requirements.
WG argued that these requirements are less stringent than federal
requirements, and that the provision must therefore be deleted.
EPA Response--EPA disagrees with the commenter's assessment. In
this instance, WG did not explain or identify any way in which the
state requirements are less stringent than federal requirements. The
federal requirements for visibility analysis procedures for new source
review in state PSD programs are provided in 40 CFR 51.307. The
procedures do not specify a particular method for visibility analysis.
EPA has reviewed the North Dakota requirements for visibility analysis
and finds they are consistent with federal requirements. Therefore,
this is not a basis for disapproval of the North Dakota PSD program
revision or the section 110(a)(2)(D) submission.
Comment No. 7--WG expressed concern with certain public process
provisions in the North Dakota SIP. In particular, WG identified state
specific provisions for public participation replacing those at
52.21(q). WG argued that the state should not be allowed to provide
``summaries'' of other materials it considered in making its permit
decisions.\5\ WG also argued that the state provisions should require
the Department to respond to relevant comments.
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\5\ The commenter refers to section (g) of the provision, but
from the mention of ``summaries'' it appears the commenter is
referring to section (b).
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EPA Response--EPA disagrees with the commenter's view of these
specific requirements. The minimum federal requirements for public
participation in a state PSD program are set out in 51.166(q). The
state provision cited by WG is consistent with the requirements at
51.166(q)(2)(ii); in fact, the provision matches 51.166(q)(2)(ii)
precisely. Therefore, EPA believes that the North Dakota PSD program
meets federal requirements for public participation. As such, this is
not a basis for disapproval of the North Dakota PSD program revision or
the section 110(a)(2)(D) submission.
Comment No. 8--WG identified other procedural requirements as
potential defects in the North Dakota SIP. WG noted that the North
Dakota PSD program adds to 52.21(r)(2) the sentence: ``[i]n cases of
major construction projects involving long lead times and substantial
financial commitments, the department may provide by a condition to the
permit to construct a time period greater than eighteen months when
such time extension is supported by sufficient documentation by the
applicant.'' WG argued that this provision should be removed because it
allows major sources to be built with stale determinations of ambient
air impacts and best available control technology.
EPA Response--Federal requirements for source obligations in a
state PSD program are set out at 51.166(r). This federal regulatory
provision does not impose any particular time period for validity of a
PSD permit. In addition, 52.21(r)(2) currently provides for extensions
beyond the given eighteen-month period, if an applicant makes a
satisfactory showing that an extension is justified. Thus, EPA believes
that the state regulatory provision cited by the commenter is
consistent with both 51.166(r) and 52.21(r)(2). Given this conclusion,
EPA does not consider this a basis for disapproval of the North Dakota
PSD program revision or the section 110(a)(2)(D) submission.
Comment No. 9--WG also opposed EPA's proposed approval of the North
Dakota section 110(a)(2)(D) SIP submission with respect to PSD
requirements for the 1997 8-hour ozone and PM2.5 NAAQS
because the submission did not address other, more recent NAAQS. WG
noted that the current EPA-approved version of the North Dakota SIP at
NDAC 33-15-02 does not incorporate all current NAAQS, including the
2006 PM2.5 NAAQS, the 2008 ozone NAAQS, and the 2010
NO2 NAAQS. WG stated its concern that the failure to
incorporate the latest NAAQS implies that these NAAQS will not be
addressed in permitting and planning determinations by the state.
EPA Response--EPA disagrees with the commenter on this point.
First, in this action, EPA is approving the North Dakota interstate
transport SIP for the 1997 8-hour ozone and PM2.5 NAAQS; EPA
is also approving a revision to North Dakota's PSD program. WG does not
explain how a failure to incorporate the current NAAQS in the state
ambient air quality standards is relevant to EPA's action on the North
Dakota interstate transport SIP for the 1997 8-hour ozone and
PM2.5 NAAQS. Thus, the comment does not give grounds for
disapproval of the interstate transport SIP for the NAAQS at issue in
this rulemaking.
Furthermore, as noted in the proposal for this action, EPA has
included the revision to North Dakota's PSD program in this action to
address an issue specifically mentioned in the 2006 guidance. The
guidance recommended that in order to satisfy the PSD requirement of
110(a)(2)(D)(i), the state's interstate transport SIP, or existing SIP,
should meet the requirements of the Phase II implementation rule for
the 1997 8-hour ozone NAAQS. In particular, this means the state's SIP
should identify NOX as a precursor to ozone, and the SIP
revision submitted by North Dakota has done so. Thus, the current NAAQS
are not relevant to this action.
Finally, EPA disagrees that approval of this SIP submission implies
that North Dakota will not take appropriate required actions with
respect to other,
[[Page 31294]]
more recent, NAAQS. Consistent with the requirements of the CAA and
applicable regulations, EPA expects North Dakota to consider other more
recent NAAQS in permitting decisions. As additional SIP revisions are
necessary, EPA anticipates that the state will comply, as indeed it has
in this very action with respect to necessary revisions for the 1997 8-
hour ozone NAAQS.
Comment No. 10--WG asserted that EPA's proposed approval was based
on a ``flawed legal standard.'' According to WG, EPA erred in the
proposal by explaining that various factual or technical assessments
indicate that it is ``highly unlikely'' that emissions from North
Dakota sources significantly contribute to violations of the 1997 8-
hour ozone NAAQS, or to violations of the 1997 PM2.5 NAAQS
in other states. WG's position is that EPA cannot approve a SIP
submission based upon ``unlikelihood'' because CAA Section
110(a)(2)(D)(i)(I) prohibits emissions that contribute significantly to
nonattainment in other States and does not allow EPA to approve SIPs
simply because a state's emissions are ``unlikely'' to contribute
significantly to nonattainment.
EPA Response--EPA disagrees with WG's characterization of EPA's
analysis and WG's interpretation of the statutory requirements. First,
EPA notes that the discussion in the proposal was intended to present
the various factual and technical considerations available to assess
whether there is or is not significant contribution to nonattainment in
other states as a result of emissions from North Dakota sources. Given
that these assessments are not individually definitive or outcome
determinative, EPA believes that it is entirely appropriate to present
and describe the relative probative value of the various considerations
accurately. Second, EPA notes that all such technical evaluations are
by their nature subject to some degree of uncertainty. Indeed, the
modeling that WG elsewhere contends should be the sole method for
evaluating interstate transport is itself but one means of evaluating
the real world impacts of emissions in light of meteorological
conditions, wind direction, and other such variables, and produces a
result that is itself subject to some degree of uncertainty. Third, EPA
believes that it was also appropriate to describe the various factual
and technical considerations and whether they indicated a
``likelihood'' of significant contribution to nonattainment in another
state because the proposal was seeking comment from the public upon
whether these considerations together supported a determination of no
such significant contribution. EPA did not receive comments that
persuade the Agency that there is such significant contribution, and
thus in today's final action EPA is making a final regulatory
determination that North Dakota emissions sources do not significantly
contribute to violations of the 1997 8-hour ozone NAAQS, or to
violations of the 1997 PM2.5 NAAQS in any other state, for
the reasons explained elsewhere in this notice. In other words, EPA has
concluded that the existing SIP for North Dakota already contains
adequate provisions to prevent emission from North Dakota sources from
significantly contributing to violations of the 1997 8-hour ozone
NAAQS, or to violations of the 1997 PM2.5 NAAQS in other
states and is therefore approving North Dakota's submission for this
purpose.
Comment No. 11--WG argued that North Dakota and EPA did not
appropriately assess impacts to nonattainment in downwind states.
According to WG, North Dakota failed to assess significance of downwind
impacts in accordance with EPA guidance and precedent. Although this is
unclear from the comment, WG evidently believes that EPA's applicable
guidance for this purpose appears only in the 1998 NOX SIP
call. WG asserts that, based on the precedent of the NOX SIP
Call, the following issues need to be addressed in determining whether
or not an area is significantly contributing to nonattainment in
downwind States: (a) The overall nature of the ozone problem; (b) the
extent of downwind nonattainment problems to which upwind States'
emissions are linked; (c) the ambient impact of the emissions from
upwind States' sources on the downwind nonattainment problems; and (d)
the availability of high cost-effective control measures for upwind
emissions. (63 FR 57356-57376, October 27, 1998).
EPA Response--EPA disagrees with WG on this point. Section
110(a)(2)(D) does not explicitly specify how states or EPA should
evaluate the existence of, or extent of, interstate transport and
whether that interstate transport is of sufficient magnitude to
constitute ``significant contribution to nonattainment'' as a
regulatory matter. The statutory language is ambiguous on its face and
EPA must reasonably interpret that language when it applies it to
factual situations before the Agency.
EPA agrees that the NOX SIP Call is one rulemaking in
which EPA evaluated the existence of, and extent of, interstate
transport. In that action, EPA developed an approach that allowed the
Agency to evaluate whether there was significant contribution to ozone
nonattainment across an entire region that was comprised of many
states. That approach included regional scale modeling and other
technical analyses that EPA deemed useful to evaluate the issue of
interstate transport on that geographic scale and for the facts and
circumstances at issue in that rulemaking. EPA does not agree, however,
that the approach of the NOX SIP Call is necessarily the
only way that states or EPA may evaluate the existence of, and extent
of, interstate transport in all situations, and especially in
situations where the state and EPA are evaluating the question on a
state by state basis, and in situations where there is not evidence of
widespread interstate transport.
Indeed, EPA issued specific guidance making recommendations to
states about how to address section 110(a)(2)(D) in SIP submissions for
the 8-hour ozone and PM2.5 NAAQS. EPA issued this guidance
document, entitled ``Guidance for State Implementation Plan (SIP)
Submissions to Meet Current Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National
Ambient Air Quality Standards'' on August 15, 2006.\6\ This guidance
document postdated the NOX SIP Call, and was developed by
EPA specifically to address SIP submissions for the 1997 8-hour ozone
and PM2.5 NAAQS.
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\6\ Memorandum from William T. Harnett entitled Guidance for
State Implementation Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-hour
Ozone and PM2.5 National Ambient Air Quality Standards
(Aug. 15, 2006) (``2006 Guidance''); p. 3. An electronic copy is
available for review at the regulations.gov web site as Document ID
No. EPA-R08-OAR-2007-1032.0004.1.
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Within that 2006 guidance document, EPA notes that it explicitly
stated its view that the ``precise nature and contents of such a
submission [are] not stipulated in the statute'' and that the contents
of the SIP submission ``may vary depending upon the facts and
circumstances related to the specific NAAQS.'' \7\ Moreover, within
that guidance, EPA expressed its view that ``the data and analytical
tools available'' at the time of the SIP submission ``necessarily
affect[] the content of the required submission.'' \8\ To that end, EPA
specifically recommended that states located within the geographic
region covered by the ``Clean Air Interstate Rule (CAIR),'' comply with
section 110(a)(2)(D) for the 1997 8-hour
[[Page 31295]]
ozone and PM2.5 NAAQS by complying with CAIR itself. For
states outside the CAIR rule region, however, EPA recommended that
states develop their SIP submissions for section 110(a)(2)(D)
considering relevant information.
---------------------------------------------------------------------------
\7\ Id. at 3.
\8\ Id.
---------------------------------------------------------------------------
EPA explicitly recommended that relevant information for section
110(a)(2)(D) submissions addressing significant contribution to
nonattainment ``might include, but is not limited to, information
concerning emissions in the State, meteorological conditions in the
State, the distance to the nearest nonattainment area in another State,
reliance on modeling conducted by EPA in determining that such State
should not be included within the ambit of the CAIR, or such other
information as the State considers probative on the issue of
significant contribution.'' \9\ In addition, EPA recommended that
states might elect to evaluate significant contribution to
nonattainment using relevant considerations comparable to those used by
EPA in CAIR, including evaluating impacts as of an appropriate year
(such as 2010) and in light of the cost of control to mitigate
emissions that resulted in significant contribution.
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\9\ Id. at 5.
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WG did not acknowledge or discuss EPA's actual guidance for section
110(a)(2)(D) SIP submissions for the 1997 8-hour ozone and
PM2.5 NAAQS, and thus it is unclear whether WG was aware of
it. In any event, EPA believes that the North Dakota submission and
EPA's evaluation of it was consistent with EPA's guidance for the 1997
8-hour ozone and PM2.5 NAAQS. For example, as discussed in
the proposal notice, the State and EPA considered information such as
monitoring data in North Dakota and downwind states, geographical and
meteorological information, and technical studies of the nature and
sources of nonattainment problems in various downwind states. These are
among the types of information that EPA recommended and that EPA
considers relevant. Thus, EPA has concluded that the state's
submission, and EPA's evaluation of that submission, meet the
requirements of section 110(a)(2)(D) and are consistent with applicable
guidance.
Finally, EPA notes that the considerations the Agency recommended
to States in the 2006 Guidance document are consistent with the
concepts that WG enumerated from the NOX SIP Call context:
(a) The overall nature of the ozone problem; (b) the extent of downwind
nonattainment problems to which upwind State's emissions are linked;
(c) the ambient impact of the emissions from upwind States' sources on
the downwind nonattainment problems; and (d) the availability of high
cost-effective control measures for upwind emissions. The only
distinction in the case of the North Dakota submission at issue here
would be that because the available evidence indicates that there is
very little contribution from emissions from North Dakota sources to
nonattainment in other states, it is not necessary to advance to the
final step and evaluate whether the cost of controls for those sources
is above or below a certain cost of control as part of determining
whether the contribution constitutes ``significant contribution to
nonattainment'' for regulatory purposes, as was necessary in the
NOX SIP Call and in CAIR.
Comment No. 12--WG argued that EPA's assessment that North Dakota
will not significantly contribute to nonattainment of the ozone NAAQS
in downwind States is based primarily on modeling prepared in
conjunction with CAIR, and yet ``EPA admits that CAIR only addressed
PM2.5 impacts.''
EPA Response--EPA agrees with WG that CAIR evaluated only
PM2.5 impacts for North Dakota. However, EPA disagrees that
the CAIR ozone modeling results are irrelevant to this action: as the
NPR made clear, it is actually the CAIR modeling analyses for ozone
transport from Minnesota--not North Dakota--that EPA considered as
evidence in this action.\10\ Furthermore, we do not think that within
the proposed rule of March 31, 2010, EPA suggested that the assessment
of impacts from North Dakota's emissions to nonattainment of the ozone
NAAQS in downwind States was based primarily on modeling prepared in
conjunction with CAIR. Instead, EPA made clear that the CAIR modeling
analysis results for Minnesota, considered in combination with
emissions levels in Minnesota and North Dakota, and their respective
distances from the Illinois/Wisconsin nonattainment counties, was only
one piece of relevant evidence in EPA's weight-of-evidence
determination. The comment seems to reflect a misreading of our
proposed rule action, or a misinterpretation of one of the pieces of
evidence in our technical analysis. Thus, EPA does not see in its
proposed rule the contradiction alleged by this comment.
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\10\ Specifically, the relevant portion of our proposed rule
reads: ``The CAIR modeling domain for 8-hour ozone transport
analysis included only the eastern half of North Dakota, and the
CAIR modeling analysis did not determine whether NOX
emissions from North Dakota sources contributed significantly to
ozone nonattainment in any downwind states. However, the CAIR
modeling analysis results for Minnesota provide us the opportunity
to draw inferences about ozone contribution from North Dakota
sources to nonattainment in the Illinois/Wisconsin area. It must be
noted that Minnesota is nearly half as distant from this
nonattainment area as North Dakota (400 miles as compared with 700),
and that to reach the Illinois/Wisconsin nonattainment area, ozone
transport winds from Minnesota would have to have a northwesterly
orientation similar to that necessary for substantial ozone
transport from North Dakota. In addition, the CAIR modeling analysis
estimated the Minnesota's NOX emissions for the 2010 base
year to be approximately twice as large as the NOX
emissions from North Dakota's sources (381,500 as compared with
182,800 tons.) Finally, the CAIR analysis determined that emissions
from Minnesota were below the initial threshold for including states
in CAIR. In light of this CAIR determination, and of Minnesota's
larger NOX emissions and shorter distance to the
nonattainment area, it is plausible to conclude that NOX
emissions from North Dakota sources are not likely to contribute
significantly to nonattainment of the 1997 8-hour ozone standard in
the Illinois and Wisconsin counties along the southwestern shores of
Lake Michigan.'' 75 FR 16030.
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Comment No. 13--WG reiterated its concern that the North Dakota
section 110(a)(2)(D) submission was deficient because it did not
strictly follow WG's summary of the structure of the analysis of
interstate transport in the NOX SIP Call: (a) The overall
nature of the ozone problem; (b) the extent of downwind nonattainment
problems to which upwind States' emissions are linked; (c) the ambient
impact of the emissions from upwind States' sources on the downwind
nonattainment problems; and (d) the availability of high cost-effective
control measures for upwind emissions.
EPA Response--EPA disagrees with WG's view that any analysis of
interstate transport must follow a specific formulaic structure to be
approvable. As noted above, EPA issued specific guidance to states
making recommendations for section 110(a)(2)(D) SIP submissions for the
1997 8-hour ozone and PM2.5 NAAQS. Within that guidance, EPA
recommended various types of information that states might wish to
consider in the process of evaluating whether their sources contributed
significantly to nonattainment in other states. EPA has concluded that
the submission from North Dakota, augmented by EPA's own analysis,
sufficiently establishes that North Dakota sources do not significantly
contribute to violations of the 1997 8-hour ozone and PM2.5
NAAQS in other states. As noted above, EPA believes that the state's
submission, and EPA's analysis of it, address the same conceptual
considerations that the commenter advocated.
Comment No. 14--WG asserted that North Dakota and EPA provided ``no
analysis'' of the contribution from North Dakota to downwind states and
no
[[Page 31296]]
``actual assessment'' of the significance of any such contribution.
EPA Response--EPA disagrees with WG's position. WG again assumes
that section 110(a)(2)(D) explicitly requires the type of modeling
analysis that the commenter advocates throughout its comments. Because
WG apparently views the NOX SIP Call as the applicable
guidance, WG contends that any analytical approach that is not
identical to that approach is impermissible. In addition, WG overlooks
the fact that in other actions based upon section 110(a)(2)(D), EPA has
also used a variety of analytical approaches, short of modeling, to
evaluate whether specific states are significantly contributing to
violations of the NAAQS in another state (e.g., the west coast states
that EPA concluded should not be part of the geographic region of the
CAIR rule based upon qualitative factors, and not by the zero out
modeling EPA deemed necessary for some other states).
In the proposed approval, EPA explained that other forms of
available information were sufficient to make the determination that
there is no significant contribution from North Dakota sources to
downwind nonattainment of the 1997 8-hour ozone NAAQS. As stated in the
proposal:
EPA's evaluation of whether emissions from North Dakota
contribute significantly to the ozone nonattainment in these areas
is based on an examination of how geographical and meteorological
factors affect transport from North Dakota to the two areas noted
above. Our approach does not rely on a quantitative determination of
North Dakota's contribution, as EPA did for other states in its CAIR
rulemaking, but on a weight-of-evidence analysis based on
qualitative assessments and estimates of the relevant factors. While
conclusions reached for each of the factors considered in the
following analysis are not in and by themselves determinative,
consideration of the likely effect of all factors provides a
reliable qualitative conclusion on whether North Dakota's emissions
are likely to contribute significantly to nonattainment in the DMA/
NFR area and the Illinois/Wisconsin Counties.\11\
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\11\ 75 FR 16030.
EPA acknowledged that the various forms of information considered
in the proposal (such as distance, orientation of surface and regional
transport winds, back trajectory analyses, monitoring data) were not
individually outcome determinative, but concluded that when taken
together served to establish that North Dakota sources do not
significantly contribute to downwind nonattainment of the 1997 8-hour
ozone NAAQS in other states. Thus, contrary to WG's assertion, EPA did
perform an ``analysis'' and an ``assessment'' that was a reasonable
basis for its conclusion that emissions from North Dakota do not
contribute significantly to downwind ozone nonattainment, using a
combination of quantitative data and qualitative analyses. EPA does not
agree that only the type of analysis advocated by WG could adequately
evaluate the issue and support a rational determination in this
instance.
Comment No. 15--WG objected to EPA's proposed approval because
North Dakota assessed impacts in downwind states by considering
monitoring data in those states as a means of evaluating significant
contribution to nonattainment. In other words, WG is concerned that
North Dakota did not assess impacts in areas that have no monitor. WG
likewise objected to EPA's ``endorsement'' of this approach. WG argued
that this reliance on monitor data is inconsistent with both section
110(a)(2)(D) and with EPA's guidance, by which the commenter evidently
means the NOX SIP Call. In support of this assertion, WG
quoted from the NOX SIP Call proposal in which EPA addressed
the proper interpretation of the statutory phrase ``contribute
significantly to nonattainment:''
The EPA proposes to interpret this term to refer to air quality
and not to be limited to currently-designated nonattainment areas.
Section 110(a)(2)(D) does not refer to ``nonattainment areas,''
which is a phrase that EPA interprets to refer to areas that are
designated nonattainment under section 107 (section 107
(d)(1)(A)(I)).
According to WG, this statement, and similar ones in the context of the
final NOX SIP Call rulemaking, establish that States and EPA
cannot utilize monitoring data to evaluate the existence of, and extent
of, interstate transport. Furthermore, WG interprets the reference to
``air quality'' in these statements to support its contention,
amplified in later comments, that EPA must evaluate significant
contribution in areas in which there is no monitored nonattainment.
EPA Response--EPA disagrees with WG's arguments. First, WG
misunderstands the point that EPA was making in quoted statement from
the NOX SIP Call proposal (and that EPA has subsequently
made in the context of CAIR). When EPA stated that it would evaluate
impacts on air quality in downwind states, independent of the current
formal ``designation'' of such downwind states, it was not referring to
air quality in the absence of monitor data. EPA's point was that it was
inappropriate to wait for either initial designations of nonattainment
for a new NAAQS under section 107(d)(1), or for a redesignation to
nonattainment for an existing NAAQS under section 107(d)(3), before EPA
could assess whether there is significant contribution to nonattainment
of a NAAQS in another state.
For example, in the case of initial designations, section 107(d)
contemplates a process and timeline for initial designations that could
well extend for two or three years following the promulgation of a new
or revised NAAQS. By contrast, section 110(a)(1) requires states to
make SIP submissions that address section 110(a)(2)(D) and interstate
transport ``within 3 years or such shorter period as the Administrator
may prescribe'' of EPA's promulgation of a new or revised NAAQS. This
schedule does not support a reading of section 110(a)(2)(D) that is
dependent upon formal designations having occurred first. This is a key
reason why EPA determined that it was appropriate to evaluate
interstate transport based upon monitor data, not designation status,
in the CAIR rulemaking.
WG's misunderstanding of EPA's statement concerning designation
status evidently caused WG to believe that EPA's assessment of
interstate transport in the NOX SIP Call was not limited to
evaluation of downwind areas with monitors. This is simply incorrect.
In both the NOX SIP Call and CAIR, EPA evaluated significant
contribution to nonattainment as measured or predicted at monitors. For
example, in the technical analysis for the NOX SIP Call, EPA
specifically evaluated the impacts of emissions from upwind states on
monitors located in downwind states. The NOX SIP Call did
not evaluate impacts at points without monitors, nor did the CAIR
rulemaking. EPA believes that this approach to evaluating significant
contribution is correct under section 110(a)(2)(D), and EPA's general
approach to this threshold determination has not been disturbed by the
courts.\12\
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\12\ Michigan v. U.S. EPA, 213 F.3d 663, 674-681 (D.C. Cir.
2000); North Carolina v. EPA, 531 F.3d 896, 913-916 (D.C. Cir. 2008)
(upholding EPA approach to determining threshold despite remanding
other aspects of CAIR).
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Finally, EPA disagrees with WG's argument that the assessment of
significant contribution to downwind nonattainment must include
evaluation of impacts on non-monitored areas. First, neither section
110(a)(2)(D)(i)(I) provisions, nor the EPA guidance issued for the 1997
8-hour ozone NAAQS on August 15, 2006 support WG's position, as neither
refers to any requirement or recommendation to assess air quality in
[[Page 31297]]
non-monitored areas.\13\ The same focus on monitored data as a means of
assessing interstate transport is found in the NOX SIP Call
and in CAIR. An initial step in both the NOX SIP Call and
CAIR was the identification of areas with current monitored violations
of the ozone and/or PM2.5 NAAQS.\14\ The subsequent modeling
analyses for NAAQS violations in future years (2007 for the SIP Call
and 2010 for CAIR) likewise evaluated future violations at monitors in
areas identified in the initial step. Thus, WG is simply in error that
EPA has not previously evaluated the presence and extent of interstate
transport under section 110(a)(2)(D) by focusing on monitoring data.
Indeed, such monitoring data was at the core of both of these efforts.
In neither of these rulemakings did EPA evaluate significant
contribution to nonattainment in areas in which there was no monitor.
This is reasonable and appropriate, because data from a properly placed
federal reference method monitor is the way in which EPA ascertains
that there is a violation of the 1997 8-hour ozone or PM2.5
NAAQS in a particular area. Put another way, in order for there to be
significant contribution to nonattainment for the 1997 8-hour ozone or
PM2.5 NAAQS, there must be a monitor with data showing a
violation of that NAAQS. EPA has concluded that by considering data
from monitored areas, its assessment of whether emissions from North
Dakota contribute significantly to ozone or PM2.5
nonattainment in downwind States is consistent with the 2006 Guidance,
and with the approach used by both the CAIR rule and the NOX
SIP Call.
---------------------------------------------------------------------------
\13\ 2006 Guidance, p. 5.
\14\ ``Based on this approach, we predicted that in the absence
of additional control measures, 47 counties with air quality
monitors [emphasis ours] would violate the 8-hour ozone NAAQS in
2010. * * *'' From the CAIR proposed rule of January 30, 2004 (69 FR
4566, 4581). The NOX SIP call proposed rule action reads:
``* * * For current nonattainment areas, EPA used air quality data
for the period 1993 through 1995 to determine which counties are
violating the 1-hour and/or 8-hour NAAQS. These are the most recent
3 years of fully quality assured data which were available in time
for this assessment,'' 62 FR 60336.
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Comment No. 16--In support of its comments that EPA should assess
significant contribution to nonattainment in nonmonitored areas, WG
argued that existing modeling performed by another organization
``indicates that large areas of neighboring states will likely violate
the ozone NAAQS.'' According to WG, these likely ``violations'' of the
ozone NAAQS were predicted for the year 2018, as reflected in a slide
from a July 30, 2008 presentation before the Western Regional Air
Partnership (``Review of Ozone Performance in WRAP Modeling and
Relevant to Future Regional Ozone Planning''). WG asserted that:
``Slide 28 of this presentation displays projected 4th highest 8-hour
ozone reading for 2018 and indicates that air quality throughout large
portions of the West will exceed and/or violate the 1997 ozone NAAQS. *
* *'' \15\ In short, WG argues that modeling performed by the WRAP
establishes that there will be violations of the 1997 8-hour ozone
NAAQS in 2018 in non-monitored areas Western states.
---------------------------------------------------------------------------
\15\ The presentation is available for review as Document ID
EPA-R08-OAR-2007-1032-0007.8 at Regulations.gov, Docket ID
EPA-R08-OAR-2009-0282.
---------------------------------------------------------------------------
EPA Response--EPA disagrees with this comment on several grounds.
First, as explained in response to other comments, EPA does not agree
that it is appropriate to evaluate significant contribution to
nonattainment for the 1997 8-hour ozone NAAQS by modeling ambient
levels in areas where there is no monitor to provide data to establish
a violation of the NAAQS in question. Section 110(a)(2)(D) does not
require such an approach, EPA has not taken this approach in the
NOX SIP Call or other rulemakings under section
110(a)(2)(D), and EPA's prior analytical approach has not been
disturbed by the courts.
Second, WG's own description of the ozone concentrations predicted
for the year 2018 as projecting ``violations'' of the ozone NAAQS is
inaccurate. Within the same sentence, quoted above, slide 28 is
described as displaying the projected 4th max ozone reading for the
year 2018, and as indicating that ``* * * air quality * * * will exceed
or violate [our emphasis] the 1997 ozone NAAQS.'' By definition, a one
year value of the 4th max above the NAAQS only constitutes an
exceedance of the NAAQS; to constitute a violation of the 1997 8-hour
ozone NAAQS, the standard must be exceeded for three consecutive years
at the same monitor. Thus, even if the WRAP presentation submitted by
WG were technically sound, the conclusion drawn from it by WG is
inaccurate and does not support its claim of projected violations of
the NAAQS in western States south and west of North Dakota.
EPA has also reviewed the WRAP presentation submitted by WG, and
believes that there was a substantial error in the WRAP modeling
software that led to overestimation of ground level ozone
concentrations. A recent study conducted by Environ for the Four
Corners Air Quality Task Force (FCAQTF; Stoeckenius et al., 2009) has
demonstrated that excessive vertical transport in the CMAQ and CAMx
models over high terrain was responsible for overestimated ground level
ozone concentrations due to downward transport of stratospheric
ozone.\16\ Environ has developed revised vertical velocity algorithms
in a new version of CAMx that eliminated the excessive downward
transport of ozone from the top layers of the model. This revised
version of the model is now being used in a number of applications
throughout high terrain areas in the West. In conclusion, EPA believes
that this key inadequacy of the WRAP model, noted above, makes it
inappropriate support for WG's concerns about large expanses of 8-hour
ozone nonattainment areas projected for 2018 in areas without monitors.
---------------------------------------------------------------------------
\16\ Stoeckenius, T.E., C.A. Emery, T.P. Shah, J.R. Johnson,
L.K. Parker, A.K. Pollack, 2009. ``Air Quality Modeling Study for
the Four Corners Region.'' Prepared for the New Mexico Environment
Department, Air Quality Bureau, Santa Fe, NM, by ENVIRON
International Corporation, Novato, CA.
---------------------------------------------------------------------------
Finally, it must be noted that even if the ozone exceedances
predicted for the year 2018 were based on a sound modeling analysis,
even the closest areas showing exceedances are several hundred miles
southwest of North Dakota and, as indicated in our proposed rule, the
northeasterly winds required for ozone transport from North Dakota to
these areas are a rarity (75 FR 16030).
Comment No. 17--As additional support for its assertion that EPA
should require modeling to assess ambient levels in unmonitored
portions of other States, WG relied on an additional study entitled the
``Uinta Basin Air Quality Study (UBAQS).'' The commenter argued that
the UBAQS study further supports its concern that limiting the
evaluation of downwind impacts only to areas with monitors fails to
assess ozone nonattainment in non-monitored areas. According to the
commenter, UBAQS modeling results show that: (a) The Wasatch front
region is currently exceeding and will exceed in 2012 the 1997 8-hour
ozone NAAQS; and (b) based on 2005 meteorological data, portions of the
four counties in the southwest corner of Utah are also currently in
nonattainment and will be in nonattainment in 2012.\17\
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\17\ The southwestern area referred to by the commenter includes
portions of Washington, Iron, Kane, and Garfield Counties.
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EPA Response--As noted above, EPA does not agree that it is
appropriate to assess significant contribution to nonattainment for the
1997 8-hour
[[Page 31298]]
ozone NAAQS in the way advocated by WG. Even taking the UBAQS modeling
results at their face value, however, EPA does not agree that the 8-
hour ozone nonattainment (current and projected) in the Wasatch Front
Range area supports the commenter's concerns about the need to evaluate
the possibility of significant contribution to nonattainment in non-
monitored areas. EPA sees several problems with the commenter's
interpretation of the UBAQS analysis results for counties in Utah's
southwestern corner: ``based on 2005 meteorological data, portions of
Washington, Iron, Kane, and Garfield Counties are also in nonattainment
and will be in nonattainment in 2012.''
First, WG's interpretation of the predicted ozone concentrations
shown in Figures 4-3a and 4-3b (pages 5 and 6 of the comment letter) is
inaccurate. A close review of the legend in these figures indicates
that the highest ozone concentrations predicted by the model for
portions of the counties noted above are somewhere between 81.00 and
85.99 ppb, but a specific concentration is not provided. If the ozone
concentration is actually predicted to be smaller than or equal to 84.9
ppb, then the area is attaining; if it is predicted as greater than
84.9 ppb then it is not attaining. This means that current and
predicted design values for the southwestern Utah area identified in
Figures 4-3a and 4-3b could both be in attainment or both in
nonattainment, or one of them in attainment and the other in
nonattainment, for the 1997 8-hour ozone NAAQS.
Second, even if the design values predicted for these unmonitored
areas were at the top of the 81.00-85.99 ppb range, their reliability
would remain questionable. The UBAQS itself identifies and illustrates
major shortcomings of its modeling analysis, only to neglect assessing
the impact of these shortcomings on the modeling results.\18\ The study
deviates in at least two significant ways from EPA's 2007 guidance on
SIP modeling.\19\ One issue is the UBAQS modeling reliance on fewer
than the five years of data recommended by EPA to generate a current 8-
hour ozone design value (DVC). UBAQS relaxed this requirement so that
sites with as little as 1 year of data were included as DVCs in the
analysis. The other issue is the computation of the relative responsive
factor (RRF), which directly affects the modeling's future design value
(DVF).\20\ Again due to unavailability of data satisfying EPA's
recommendation that the RRF be based on a minimum of five days of ozone
concentrations above 85 ppb, UBAQS modeling uses RRFs based on one or
more days of ozone concentrations above 70 ppb.\21\ EPA concludes that
the modeling analysis results used by the WG are unreliable for
projecting non-attainment status and therefore do not support its
comments.
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\18\ See ``UBAQS,'' pages 4-27 to 4-29.
\19\ EPA. 2007. Guidance on the Use of Models and other Analyses
for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5
and Regional Haze. Office of Air Quality Planning and Standards, Air
Modeling Group. Research Triangle Park, North Carolina (http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf).
\20\ DVC x RRF = DVF.
\21\ See UBAQS, p. 4-28.
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Finally, the predicted attainment status of unmonitored areas in
the southwestern corner of Utah is not relevant to our assessment of
whether emissions from North Dakota contribute significantly to
downwind ozone nonattainment. The counties identified that draw the
commenter's attention are almost a 1,000 miles from Bismarck, North
Dakota, in a southwestern direction. As indicated in our response to
the previous comment, the northeasterly winds required for ozone
transport from North Dakota to these areas are a rarity.
Comment No. 18--In support of its arguments that EPA should not
limit assessment of significant contribution to nonattainment through
evaluation of impacts at monitors, but include, through modeling
analysis, impacts where there are no such monitors, the commenter cited
a past statement by EPA to the effect that the monitor network in the
western United States needs to be expanded. The quoted statements
included EPA's observation that ``[v]irtually all States east of the
Mississippi River have at least two to four non-urban O3 monitors,
while many large mid-western and western States have one or no non-
urban monitors.'' 74 FR 34,525 (July 16, 2009). From this statement,
the commenter argues that it is not appropriate for EPA to limit
evaluation of significant contribution to nonattainment in other states
relying on monitoring data instead of modeling ambient levels. The
comment also indicates that States with few or no non-urban monitors
include ``Idaho, Nebraska, Nevada, Montana, and Oregon, which may be
affected by North Dakota emissions.''
EPA Response--EPA does not disagree that there are relatively few
monitors in the western states, and that relatively few monitors are
currently located in non-urban areas of western states. However, the
commenter failed to note that the quoted statement from EPA concerning
the adequacy of western monitors came from the Agency's July 16, 2009
proposed rulemaking entitled ``Ambient Ozone Monitoring Regulations:
Revisions to Network Design Requirements.'' This statement was thus
taken out of context, because EPA was in that proposal referring to
changes in state monitoring networks that it anticipates will be
necessary in order to implement not [emphasis added] the 1997 8-hour
ozone NAAQS that are the subject of this rulemaking, but rather the
next iteration of the ozone NAAQS for which there are concerns that
there will be a need to evaluate ambient levels in previously
unmonitored areas of the western United States. The fact that
additional monitors may be necessary in the future for newer ozone
NAAQS does not automatically mean that the existing ozone monitoring
networks are insufficient for the 1997 8-hour ozone NAAQS, as the
commenter implies. Indeed, states submit annual monitor network reports
to EPA and EPA evaluates these to insure that they meet the applicable
requirements. For example, North Dakota itself submits just such a
report on an annual basis, and EPA reviews it for adequacy.\22\ All
other states submit comparable reports.
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\22\ See, for example: ``Annual Report. North Dakota Air Quality
Monitoring, Data Summary, 2008.'' dated June 2009, North Dakota
Department of Health. A is available for review at the
regulations.gov Web site, under Docket ID No EPA-R08-OAR-2009-0282.
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Finally, EPA disagrees that monitored and unmonitored areas in the
western States identified above by the commenter may be affected by
emissions from North Dakota. As noted in the proposed rule, the
easterly or northeasterly winds that would be needed to transport
emissions from North Dakota to these States are rare.\23\ Similarly
rare is the possibility of impacts on these States from North Dakota's
emissions.
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\23\ See our assessment of ozone transport from North Dakota
emissions to Colorado, 75 FR 16030.
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Comment No. 19--WG objected to EPA's proposed approval of the North
Dakota SIP submission because neither North Dakota nor EPA performed a
specific modeling analysis to assure that emissions from North Dakota
sources do not significantly contribute to nonattainment in downwind
States. According to the commenter, EPA's decision to use a qualitative
approach to determine whether emissions from North Dakota contribute
significantly to downwind nonattainment is not consistent with its own
preparation of a regional model to evaluate such impacts from other
states as part of CAIR.
[[Page 31299]]
EPA Response--EPA disagrees with WG's belief that only modeling can
establish whether or not there is significant contribution from one
state to another. First, as noted above, EPA does not believe that
section 110(a)(2)(D) requires modeling. While modeling can be useful,
EPA believes that other forms of analysis can be sufficient to evaluate
whether or not there is significant contribution to nonattainment. For
this reason, EPA's 2006 Guidance recommended other forms of information
that states might wish to evaluate as part of their section
110(a)(2)(D) submissions for the 1997 8-hour ozone NAAQS. EPA has
concluded that its qualitative approach to the assessment of
significant contribution to downwind ozone nonattainment is consistent
with EPA's 2006 Guidance.
Second, EPA notes that WG's position also reflects a
misunderstanding of the approach EPA used in the remanded CAIR due to
WG's exclusive focus on those States that were selected for the
modeling analysis. A wider understanding of the CAIR approach would
recognize that EPA decided, based on other criteria, that it was not
necessary to conduct modeling for certain western states: ``[i]n
analyzing significant contribution to nonattainment, we determined it
was reasonable to exclude the Western U.S., including the States of
Washington, Idaho, Oregon, California, Nevada, Utah, and Arizona from
further analysis due to geography, meteorology, and topography. Based
on these factors we concluded that the PM2.5 and 8-hour
ozone nonattainment problems are not likely to be affected
significantly by pollution transported across these States' boundaries
* * *.'' (69 FR 4581, January 30, 2004).
EPA has taken a similar approach to assess whether North Dakota
contributes significantly to violations of the 1997 8-hour ozone and
PM2.5 NAAQS in downwind states. In the proposed action, EPA
explained several forms of substantive and technically valid evidence
that led to the conclusion that emissions from North Dakota sources do
not contribute significantly to nonattainment, in accordance with the
requirement of Section 110(a)(2)(D).
Comment No. 20--In further support of its argument that EPA must
use modeling to evaluate whether there is significant contribution to
nonattainment under section 110(a)(2)(D), WG noted that EPA itself asks
other agencies to perform such modeling in other contexts. As examples,
the commenter cited four examples in which EPA commented on actions by
other agencies in which EPA recommended the use of modeling analysis to
assess ozone impacts prior to authorizing oil and gas development
projects. As supporting material, the comment includes quotations from
and references to EPA letters to Federal Agencies on assessing impacts
of oil and gas development projects.\24\ WG questioned why EPA's
recommendation for such an approach in its comments to other Federal
Agencies, did not result in its use of the same approach to evaluate
the impacts from North Dakota emissions and to insure compliance with
Section 110(a)(2)(D)(i)(I). The commenter reasoned that the emissions
that would result from the actions at issue in the other agency
decisions, such as selected oil and gas drilling projects, would be of
less magnitude and importance than the statewide emissions at issue in
an evaluation under section 110(a)(2)(D).
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\24\ WG's April 9, 2010 comment letter, pp. 9-10. Complete
versions of the EPA comment letters referenced here were attached to
the comment as Exhibits 3 through 6, and are viewable on the
Regulations.gov Web site as Documents ID No. EPA-R08-OAR-2007-1032-
0007.4 through 1032-0007.7.
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EPA Response--As explained above, EPA disagrees with WG's
fundamental argument that modeling is required to evaluate significant
contribution to nonattainment, whether by section 110(a)(2)(D), by EPA
guidance, or by past EPA precedent. EPA's applicable guidance made
recommendations as to different approaches that can lead to the
satisfaction of the interstate transport requirements for significant
contribution to nonattainment in other states. Even EPA's own CAIR
analysis relied on a combination of qualitative and quantitative
analyses, as explained above. As indicated in our response to Comment
No. 19, the CAIR analysis excluded the Western States on the based on a
qualitative assessment of the region's topography, geography and
meteorology.\25\
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\25\ See: 69 FR 4581, January 30, 2004.
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EPA believes that the commenter's references to EPA statements
commenting on the actions of other agencies are inapposite. As WG is
aware, those comments were made in the context of the evaluation of the
impacts of various federal actions pursuant to NEPA, not the Clean Air
Act. As explained above, in the context of section 110(a)(2)(D), EPA
does not agree that modeling is always required to make that different
evaluation, and EPA itself has relied on other more qualitative
evidence when it deemed that evidence sufficient to reach a reasoned
determination.
Comment No. 21--In further support of its argument that EPA should
always require modeling to evaluate significant contribution to
nonattainment, WG referred to EPA regulations governing nonattainment
SIPs. The commenter noted 40 CFR 51.112(a)(1), which states that:
``[t]he adequacy of a control strategy shall be demonstrated by means
of applicable air quality models, data bases, and other requirements
specified in appendix W of [Part 51] (Guideline on Air Quality
Models).'' The commenter argues that this regulation appears to support
the commenter's position that modeling is required to satisfy the
significant contribution element of 110(a)(2)(D).
EPA Response--EPA disagrees with this comment. The cited language
implies that the need for control strategy requirements has already
been demonstrated, and sets a modeling analysis requirement to
demonstrate the adequacy of the control strategy developed to achieve
the reductions necessary to prevent an area's air quality from
continuing to violate the NAAQS. EPA's determination that emissions
from North Dakota do not contribute significantly to nonattainment for
the 1997 8-hour ozone standard in any other states eliminates the need
for a control strategy aimed at satisfying the section 110(a)(2)(D)
requirements. Moreover, EPA interprets the language at 40 CFR
51.112(a): ``[e]ach plan must demonstrate that the measures, rules, and
regulations contained in it are adequate to provide for the timely
attainment and maintenance of the national standard that it
implements,'' to refer to modeling for attainment demonstrations, an
integral part of nonattainment area SIPs under part D of the CAA. This
interpretation was upheld by the Sixth Circuit Court of Appeals. Wall
v. U.S. EPA, 265 F.3d 426, 436 (6th Cir. 2001). Thus, the commenter's
cited regulation is not relevant to EPA's technical demonstration
assessing whether emissions from North Dakota contribute significantly
to nonattainment in any other states under section 110(a)(2)(D).
Comment No. 22--WG also objected to EPA's proposed approval of the
North Dakota submission on the grounds that it was based upon a
``weight-of-evidence analysis,'' and that no such weight of evidence
test appears in the CAA generally, or in section 110(a)(2)(D) in
particular. According to the commenter, there is no regulatory support
for using a ``weight-of-evidence'' approach to assessing air quality
impacts. The commenter asserted that EPA neither cited nor quoted
regulations or policy that provides for this, and failed to lend
[[Page 31300]]
any specific meaning to the phrase through its proposed approval.
Finally, the commenter asserted, without explaining, its belief that
EPA failed to address ``several relevant factors related to the
determination of whether North Dakota contributes significantly to
nonattainment undermines the agency's reliance on any `weight-of-
evidence' approach.''
EPA Response--EPA agrees with WG that neither the CAA generally,
nor section 110(a)(2)(D) specifically, include the explicit phrase
``weight of evidence.'' It simply does not follow, however, that it is
inappropriate for EPA to use such an approach in this context. As
explained above, section 110(a)(2)(D) does not explicitly stipulate how
EPA may assess whether there is a significant contribution to
nonattainment in other states. Through past actions such as CAIR, EPA
has used a weight-of-evidence approach to exclude some States from
further consideration.\26\ As described above, EPA's guidance issued
for the 1997 8-hour ozone NAAQS, the Agency specifically recommended
types of information that states might wish to rely upon to evaluate
the presence of, and extent of, interstate transport for this purpose.
EPA believes that a weight of evidence approach that properly considers
appropriate evidence is sufficient to make a valid determination, as in
this case.
---------------------------------------------------------------------------
\26\ See: 69 FR 4581, January 30, 2004.
---------------------------------------------------------------------------
Specifically, EPA's technical analysis in the March 31, 2010
proposed rule action underscores its reliance on implementation
policies set in the EPA 2006 Guidance: ``EPA's August 15, 2006,
guidance to states concerning section 110(a)(2)(D)(i) recommended
various methods by which states might evaluate whether or not its
emissions significantly contribute to violations of the 1997 ozone
standards in another state. Among other methods, EPA recommended
consideration of available EPA modeling conducted in conjunction with
CAIR, or in the absence of such EPA modeling, consideration of other
information such as the amount of emissions, the geographic location of
violating areas, meteorological data, or various other forms of
information that would be relevant to assessing the likelihood of
significant contribution to violations of the NAAQS in another state
[our emphasis].'' \27\ On the basis of this guidance, North Dakota and
EPA chose to assess the impacts of emissions from North Dakota sources
on the closest downwind nonattainment areas (Denver, Colorado, and
Illinois/Wisconsin counties along the southwestern shore of Lake
Michigan) through a weight of evidence approach using quantitative
information such as North Dakota's distance from areas with monitors
showing violation of the NAAQS, modeling results outlining wind vectors
for regional transport of ozone on high ozone days, back trajectory
analyses for the downwind nonattainment areas closest to North Dakota,
and results of modeling studies for the nonattainment areas specifying
the range of wind directions along which contributing ozone transport
occurred. EPA's use of a weight of evidence analysis is by no means
unusual for the assessment of ozone impacts through long range
transport. The same analytical framework was used in the 1998
NOX SIP Call, as indicated under Section II.C., entitled
``Weight-of-Evidence Determination of Covered States.'' \28\ The
differences between the specific types of evidence used in the
NOX SIP Call and in our analysis do not invalidate the use
of the weight-of-evidence approach.
---------------------------------------------------------------------------
\27\ 75 FR 16029, March 31, 2010.
\28\ ``As discussed above, EPA applied a multi-factor approach
to identify the amounts of NOX emissions that contribute
significantly to nonattainment * * *.'' 1998 SIP Call, 63 FR 57381,
October 27, 1998.
---------------------------------------------------------------------------
As for the commenter's argument that EPA ``fails to lend any
specific meaning to the phrase through its proposed approval,'' the
Agency's technical analysis described in the proposal did specify the
characteristics, including limitations, of a weight of evidence
analysis: ``[f]urthermore * * * EPA notes that no single piece of
information in the following discussion is by itself dispositive of the
issue. Instead, the total weight of all the evidence taken together
supports the conclusion that emissions from North Dakota sources are
unlikely to contribute significantly to violations of the 1997 8-hour
ozone standard in any other state,'' (75 FR 16034).
Finally, as to the commenter's assertion that EPA failed to
consider ``several relevant factors'' and thus failed to conduct an
appropriate weight of evidence evaluation, EPA cannot weigh the
validity of this comment in the absence of an explanation of what these
factors might be.
Comment No. 23--The Sierra Club opposed the proposed approval on
the grounds that the existing North Dakota SIP includes problematic
provisions. For example, the Sierra Club pointed to provisions that it
alleges will result in additional emissions that could significantly
contribute to nonattainment of the NAAQS in other states. For example,
Sierra Club argued that:
``if emission violations during startup, shutdown, or
malfunctions (SSM) escape enforcement, there is no way to determine
that emissions from sources in North Dakota will not contribute
significantly to other States' nonattainment of the NAAQS or
problems with PSD compliance such as exceeding increments, short of
cumulative modeling exercise assuming that all source are emitting
at their physical limits without controls. See, e.g., Clean Air Act
Sections 110(a)(2)(A) and (D), 42 U.S.C. Sections 7410(a)(2)(A) and
(D).'' \29\
\29\ ``If emission violations are excused during startups,
shutdowns, or malfunctions, and thus essentially unregulated during
those periods, there is no way to determine that emissions from
sources in North Dakota will not contribute significantly to other
States' nonattainment of the NAAQS or problems with PSD compliance
such as exceeding increments, adversely impacting air quality
related values in Class I areas, or adversely impacting vegetation
and visibility in all areas, short of cumulative modeling exercise
assuming that all source are emitting at their physical limits
without controls. See, e.g., Clean Air Act Sections 110(a)(2)(A) and
(D), 42 U.S.C. Sections 7410(a)(2)(A) and (D).''
---------------------------------------------------------------------------
EPA Response--EPA understands the concerns raised by the commenter,
but does not believe that any such excess emissions would in and of
themselves constitute significant contribution to nonattainment in
another state. EPA notes that its technical analysis for the
significant contribution element in our proposal was not premised upon
distinguishing between legal and illegal, or permissible and
impermissible, emissions from North Dakota sources. EPA's technical
analysis, and the conclusion based on the weight of the evidence, did
not depend on the precise amount of emissions from North Dakota, and
did not turn upon some portion of those emissions as being the result
of emissions during SSM events. Instead, EPA's evaluation was focused
upon other relevant information that pertained to distance, wind
direction, and the air quality status of areas in downwind states.
Thus, any additional emissions from SSM events would not change the
analysis or EPA's conclusion that emissions from North Dakota do not
significantly contribute to nonattainment in any other state.
Furthermore, as noted below, the current version of the North
Dakota provision relating to SSM, NDAC 33-15-01-13, does not create any
exemption from emissions limits and does not excuse violations. PSD
permit applicants and PSD permittees in North Dakota are subject to the
current version of the state's regulation. Therefore, Sierra Club's
concerns regarding excess emissions from sources subject to PSD are
moot and do not change EPA's
[[Page 31301]]
conclusion that the North Dakota SIP has adequate provisions to
prohibit emissions from North Dakota from interfering with other
states' required PSD programs.
Comment No. 24--As potential SIP defects affecting approvability of
the section 110(a)(2)(D) SIP submission, both WG and the Sierra Club
pointed to the North Dakota Administrative Code rule NDAC 33-15-01-07
that allows the North Dakota Department of Health (NDDH) to grant
variances to emission limits if compliance ``would cause undue
hardship, would be unreasonable, impractical, or not feasible under the
circumstances.'' WG adds that this variance provision is inappropriate
and would allow additional emissions that may contribute significantly
to nonattainment or interfere with PSD provisions in other States.
EPA Response--EPA agrees that this rule should be revised to
provide that variances are only effective for federal law purposes when
adopted as a SIP revision approved by EPA (or this provision should be
removed from the SIP), and EPA plans to work with the State to clarify
the SIP on this point. EPA is aware that this process requires action
by the North Dakota legislature before the NDDH will be able to remove
the Variance provisions from the State SIP and submit an appropriate
revision to EPA.
However, EPA does not believe that this existing variance provision
provides a basis for disapproval of the SIP under the facts and
circumstances here. North Dakota has informed EPA that the variances
granted by the NDDH under the provision during the last 15 years were
only for open burning requests. In these cases, before granting a
variance the NDDH requested input from the local fire department and
health agency offices. North Dakota has stated that the variance
provision cannot be used to avoid permitting requirements or to violate
emissions limits. Furthermore, North Dakota has confirmed that the
provision has not been applied to PSD permits, minor NSR permits, Title
V permits, or minor operating permits, and EPA expects that such will
be the case while it vigorously works with the State for its removal
from the North Dakota SIP.
Moreover, EPA also disagrees with WG's additional comment that this
variance provision specifically allows emissions that may contribute
significantly to nonattainment or interfere with PSD provisions in
other States. There is no language in rule NDAC 33-15-01-07 that
reflects the commenter's interpretation.
Given the limited scope and usage of the variance provision, EPA
concludes that it does not constitute interference with other states'
required PSD programs. Furthermore, it does not affect EPA's factual
determination that emissions from North Dakota do not significantly
contribute to nonattainment in other states.
Comment No. 25--WG also expressed concern that NDAC 33-15-01-13(1)
specifically allows a source to shut down air pollution control
equipment for maintenance and to continue operations, so long as
notification is provided to North Dakota. WG argued that such an
exemption to pollution control equipment is not acceptable under the
CAA.
EPA Response--EPA believes that the commenter is referring to
provisions in the previous version of the provision that is no longer
operative. The provision has been superseded by a revision adopted by
the State on April 1, 2009 and submitted to EPA on April 6, 2009. EPA
is planning to take action on the submission in the near future. The
revised NDAC 33-15-01-13.1 includes at 33-15-01-13(1)(f) language that
addresses the commenter's concern: ``[n]othing in this subsection shall
in any manner be construed as authorizing or legalizing the emissions
of air contaminants in excess of the rate allowed by this article [NDAC
33-15] or a permit issued pursuant to this article.''
As noted above, North Dakota has revised the provision and it
currently is in effect. Thus, even before EPA takes action on the
submittal of the revision, PSD permit applicants and PSD permittees
must comply with the revised provision, which removes the exemption.
North Dakota has confirmed that the revised provision is used in PSD
permitting. Therefore, EPA believes that the superseded provision does
not constitute interference with other states' required PSD measures.
Furthermore, the provision--regardless of its status--does not affect
EPA's factual determination that emissions from North Dakota do not
significantly contribute to nonattainment in other states.
Comment No. 26--WG also argued that Rule NDAC 33-15-01-13(2)
implies an exemption to compliance with emission limits in the event of
a malfunction. According to the commenter, this rule not only implies
an exemption for malfunction leading to a violation that lasts less
than 24 hours, but gives the state unlimited discretion to allow a
malfunction leading to a violation to last as long as ten days.
EPA Response--EPA again disagrees, because the commenter is
evidently objecting to a previous version of this provision that is no
longer operative. The provision was superseded by a revision to this
rule adopted by the State on April 1, 2009 and submitted to EPA on
April 6, 2009. EPA plans to take action on the submission in the near
future. Under the revised provision the ten-day grace period has been
removed, and the provisions only address notification requirements
without any references to or exemptions of excess emissions.
North Dakota has revised the provision and it is no longer in
effect. Thus, even before EPA takes action on the submittal of the
revision, PSD permit applicants and PSD permittees must comply with the
revised provision, which removes the ten-day grace period. Therefore,
EPA believes that the superseded provision does not constitute
interference with other states' required PSD measures. Furthermore, the
provision--regardless of its status--does not affect EPA's factual
determination that emissions from North Dakota do not significantly
contribute to nonattainment in other states.
Comment No. 27--The Sierra Club expressed concern that the revised
version of NDAC 33-15-01-13(2)(c) submitted by the state to EPA ``does
not make clear that such enforcement discretion is limited to the
imposition of civil penalties and does not potentially enable sources
to avoid injunctive remedies regarding excess emissions.'' The Sierra
Club also indicated that in the revised language of rule NDAC 33-15-01-
13(2)(c) ``the required elements of proof in the source's report fall
short of the rigorous proof requirements specified in EPA policy.''
EPA Response--As noted above, the State submitted the referenced
revisions to EPA on April 6, 2009, and the public, including the Sierra
Club, will have an opportunity to submit substantive comments about
this provision when EPA proposes action on it, as planned for the near
future. EPA invites the Sierra Club to resubmit the comment at that
time so that EPA may properly respond to it. EPA notes, however, that
the Sierra Club appears to argue that certain portions of the 1999 EPA
guidance for the affirmative defense approach to unavoidable
malfunctions \30\ apply to the North
[[Page 31302]]
Dakota revision. As stated in that guidance, the enforcement discretion
approach endorsed by EPA in earlier guidance \31\ remains valid, and
North Dakota selected the enforcement discretion approach. In any
event, EPA is not acting upon that April 6, 2009, submission at this
time.
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\30\ Memorandum from Steven A. Herman, Assistant Administrator
for Enforcement and Compliance Assurance, and Robert Perciasepe,
Assistant Administrator for Air and Radiation, ``State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (Sept. 20, 1999).
\31\ See Memorandum from Kathleen M. Bennett, Assistant
Administrator for Air, Noise, and Radiation, ``Policy on Excess
Emissions During Startup, Shutdown, Maintenance, and Malfunctions''
(Sept. 28, 1982); Memorandum from Kathleen M. Bennett, Assistant
Administrator for Air, Noise, and Radiation, ``Policy on Excess
Emissions During Startup, Shutdown, Maintenance, and Malfunctions''
(Feb. 15, 1983) (clarifying 1982 memorandum).
---------------------------------------------------------------------------
Comment No. 28--WG and the Sierra Club also expressed concern about
a provision in the North Dakota SIP related to failure of a continuous
emission monitoring system (CEMS). See NDAC Sec. 33-15-01-13(3). WG
and the Sierra Club both argued that the provision is contrary to Title
IV of the CAA and the regulations at 40 CFR Part 75 implementing Title
IV. WG apparently believed that EPA cannot approve the North Dakota SIP
section 110(a)(2)(D) revision until the provision is removed or
revised.
EPA Response--EPA disagrees with WG's conclusions on this issue. As
to the significant contribution element of 110(a)(2)(D)(i), as noted
above, once EPA has determined--as it has here--that emissions from
North Dakota do not significantly contribute to nonattainment in any
other state, no substantive modification of North Dakota's SIP is
required to eliminate any emissions. As to the PSD element of
110(a)(2)(D)(i), the requirements of Part 75 relate to Title IV, the
acid rain title of the Clean Air Act. These requirements are simply not
relevant to the North Dakota PSD program or to the PSD element of
110(a)(2)(D)(i).
Comment No. 29--As part of its objection to the proposed action,
the Sierra Club identified a North Dakota SIP provision that authorizes
North Dakota to allow violations of ambient air quality standards in
certain circumstances. See NDAC Sec. 33-15-02-07(4).
EPA Response--EPA disagrees that this provision provides a basis
for disapproval of the section 110(a)(2)(D) submission. The provision
does allow for certain exceedances of certain state ambient air quality
standards. However, it does not allow for exceedances of the applicable
federal NAAQS. Therefore, EPA concludes that the provision does not
constitute interference with other states' required PSD programs.
Furthermore, the provision does not affect EPA's factual determination
that emissions from North Dakota do not significantly contribute to
nonattainment in other states.
Comment No. 30--WG also identified certain provisions in the North
Dakota SIP creating exceptions to certain opacity limits as a concern
in the context of action on the section 110(a)(2)(D) submission. See
NDAC Sec. 33-15-03-04(4), (5). WG described the provisions as
``blanket exemptions'' and argued that because visible emissions are
often used as an indicator for particulate matter, the exemptions
``fail to prohibit emissions that could contribute significantly to
nonattainment or interfere with PSD requirements.'' WG therefore argued
that EPA cannot approve the proposed SIP revision unless the exemptions
are removed or revised.
EPA Response--EPA does not endorse the exceptions cited by WG, and
EPA's action here should not be construed as an approval of these
exceptions, which are not the subject of this action. EPA disagrees,
however, with WG's conclusions about the impact of such exceptions on
today's action. First, the exceptions are not ``blanket exemptions''
from all opacity limits: By the express terms of NDAC 33-15-03-04, the
exceptions apply only to the numeric opacity limits specified in NDAC
33-15-03-01, -02, -03, and -04. They do not create an exception from
any requirements PSD may impose related to opacity.
Furthermore, the specific numeric opacity limits are unrelated to
emissions limits imposed by PSD, under which BACT is determined on a
case-by-case basis. Thus, the provisions cited by WG do not create any
exception from BACT emissions limits or any other PSD requirements. As
a result, the exceptions are not relevant to the requirements of the
PSD element of 110(a)(2)(D)(i). As to the significant contribution
element of 110(a)(2)(D)(i), as noted elsewhere, once EPA has factually
determined--as it has here--that emissions from North Dakota do not
significantly contribute to nonattainment in any other state, no
modification of North Dakota's SIP is required.
Comment No. 31--As additional problematic provisions in the North
Dakota SIP, WG and Sierra Club identified provisions in the North
Dakota SIP creating exceptions to certain particulate matter emissions
limits. See NDAC Sec. 33-15-05-01(2)(a). WG argued that the provisions
allow the state discretion to exempt sources from compliance during
temporary breakdowns or cleaning of air pollution control equipment,
and that therefore the North Dakota SIP fails to prohibit emissions
that contribute significantly to nonattainment in other states, or that
interfere with other states' required PSD measures. Sierra Club argued
that the provision violates EPA policy and creates a broader exception
than allowed by the enforcement discretion or affirmative defense
approaches to unavoidable malfunctions.
EPA Response--EPA does not endorse the exceptions cited by the
commenters, which EPA notes are not the subject of this action. EPA
disagrees, however, with the commenters' conclusions. First, as to PSD
requirements: The provision cited by the commenters creates an
exception only to numeric, process-based emissions limits specified in
Table 3 of NDAC 33-15-05-01. The provision does not create an exception
from any PSD requirements, including BACT emissions limits for
particulate matter. Furthermore, these specific, numeric, process-based
limits are unrelated to PSD requirements, under which BACT is
determined on a case-by-case basis. Thus, the exceptions in 33-15-05-
01(2)(a) do not create any exception from BACT emissions limits or
other PSD requirements. As a result, the exceptions are not relevant to
the requirements of the PSD element of 110(a)(2)(D)(i).
As to the significant contribution element of 110(a)(2)(D)(i), EPA
disagrees with WG that EPA cannot approve the North Dakota interstate
transport SIP until the provision is removed or revised. As noted
elsewhere, once EPA has determined--as it has here--that emissions from
North Dakota do not significantly contribute to nonattainment in any
other state, no modification of North Dakota's SIP is required.
Comment No. 32--The Sierra Club commented on a provision in the
North Dakota SIP related to reporting of excess emissions of sulfur
dioxide and other sulfur compounds. See NDAC Sec. 33-15-06-05. The
Sierra Club asserted that the provision ``contains unacceptable
language'' and argued the SIP should be revised to make clear that the
reporting requirement does not authorize or exempt excess emissions.
Sierra Club also implied that this issue makes it impossible to
determine whether emissions from North Dakota significantly contribute
to nonattainment in other states and whether the state's SIP would
interfere with measures required in other states to prevent significant
deterioration of air quality with repect to the 1997 8-hour ozone and
PM2.5 NAAQS.
EPA Response--The Sierra Club did not identify any particular
phrase in the
[[Page 31303]]
existing regulatory provision as unacceptable, so EPA presumes the
reference to unacceptable language is to the absence of additional
clarifying language. EPA disagrees that it is necessary to revise the
provision in order to approve the North Dakota interstate transport
SIP. The provision does not create any explicit exemption, and EPA
believes it creates no implicit exemption. As the Sierra Club agrees,
the provision simply requires sources to report excess emissions of
sulfur dioxide and other sulfur compounds during periods of startup,
shutdown, and malfunction. A reporting requirement is not an exemption
from emissions limits.
Comment No. 33--WG objected to EPA's proposed approval because
``North Dakota's SIP, as written, simply does not contain any language
that literally prohibits emissions that contribute significantly to
nonattainment in any other state.'' The commenter also notes that EPA
did not assess whether the SIP does or does not contain such
provisions. The commenter appears to believe that 110(a)(2)(D)(i)
requires a state SIP to contain explicit provisions literally
prohibiting emissions that contribute significantly to nonattainment in
any other state, and that, in order to approve the North Dakota
interstate transport SIP, EPA must examine the SIP to determine whether
it does contain such specific words.
EPA Response--EPA disagrees with the commenter's interpretation of
the statutory requirements. Section 110(a)(2)(D)(i) has no language
that requires a SIP to contain literal provisions prohibiting
significant contribution to nonattainment in any other state, or, for
that matter, to contain any particular words or generic prohibitions.
Instead, EPA believes that the statute requires a state's SIP to
contain substantive emission limits or other provisions that in fact
ensure that sources located within the state will not produce emissions
that have such an effect in other states. Therefore, EPA believes that
satisfaction of the ``significant contribution'' requirement is not to
be demonstrated through a literal requirement for a prohibition of the
type advocated by the commenter.
EPA's past application of section 110(a)(2)(D) did not require the
literal prohibition advocated by the commenter. For example, in 1998
NOX SIP call (63 FR 57356, October 27, 1998) EPA indicated
that ``the term `prohibit' means that SIPs must eliminate those amounts
of emissions determined to contribute significantly to nonattainment *
* * '' As a result, the first step of the process to determine whether
this statutory requirement is satisfied is the factual determination of
whether a state's emissions contribute significantly to nonattainment
in downwind areas. See 2005 CAIR Rule (70 FR 25162) and 1998
NOX SIP Call (63 FR 57356). If this factual finding is in
the negative, as is the case for EPA's assessment of the contribution
from emissions from North Dakota, then section 110(a)(2)(D)(i)(I) does
not require any changes to a state's provisions. If, however, the
evaluation reveals that there is such a significant contribution to
nonattainment in other states, then EPA requires the state to adopt
substantive provisions to eliminate those emissions. The state could
achieve these reductions through traditional command and control
programs, or at its own election, through participation in a cap and
trade program. Thus, EPA's approach in this action is consistent with
the Agency's interpretation of 110(a)(2)(D)(i) in the 2006 guidance,
the CAIR Rule, and the NOX SIP call, none of which required
the pro forma literal ``prohibition'' of the type advocated by the
commenter.
Comment No. 34--WG argues that the requirements for stationary
source permitting in the North Dakota SIP are ``riddled with vagueness,
discretion, uncertainty, and unenforceability,'' and are inadequate to
ensure that sources in North Dakota will not significantly contribute
to nonattainment in other states.
EPA Response--As discussed above, the first step of the process to
determine whether the ``significant contribution'' requirement is
satisfied is the factual determination of whether a State's emissions
contribute significantly to nonattainment in downwind areas. If the
factual finding is in the negative, as is the case for EPA's assessment
of the contribution from emissions from North Dakota, then section
110(a)(2)(D)(i)(I) does not require any changes to a state's
provisions. As discussed above, EPA's approach in this action is
consistent with the Agency's interpretation of 110(a)(2)(D)(i) in the
2006 guidance, the CAIR Rule and the NOX SIP Call.
Therefore, EPA disagrees with the comment that EPA cannot approve the
North Dakota interstate transport SIP unless EPA addresses specific
provisions and state guidelines for permitting stationary sources.
Comment No. 35--The commenter argued that EPA cannot approve the
section 110(a)(2)(D) submission from North Dakota because the state and
EPA did not comply with 110(l). Evidently, the commenter believes that
the section 110(a)(2)(D) submission is a revision to the SIP that will
interfere with attainment of the 2006 PM2.5 NAAQS and the
2008 ozone NAAQS. And, although it is not clear, the comment could be
taken to make the same point for North Dakota's revision of its PSD
program. The commenter argues that a section 110(l) analysis must
consider all NAAQS once they are promulgated, and argues that EPA took
the same position in proposing to disapprove a PM10
maintenance plan.
EPA Response--EPA agrees that a required section 110(l) analysis
must consider the potential impact of a proposed SIP revision on
attainment and maintenance of all NAAQS that are in effect and impacted
by a given SIP revision. However, EPA disagrees that it failed to
comply with the requirements of section 110(l) or that section 110(l)
requires disapproval of the SIP submission at issue here.
Section 110(l) provides in part that: ``[t]he Administrator shall
not approve a revision of a plan if the revision would interfere with
any applicable requirement concerning attainment and reasonable further
progress * * *, or any other applicable requirement of this chapter.''
EPA has consistently interpreted Section 110(l) as not requiring a new
attainment demonstration for every SIP submission. EPA has further
concluded that preservation of the status quo air quality during the
time new attainment demonstrations are being prepared will prevent
interference with the states' obligations to develop timely attainment
demonstrations. 70 FR 58134, 58199 (October 5, 2005); 70 FR 17029,
17033 (April 4, 2005); 70 FR 53, 57 (January 3, 2005); 70 FR 28429,
28431 (May 18, 2005).
North Dakota's submission is the initial submission by the state to
address the significant contribution to nonattainment element of
110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5 NAAQS.
This submission does not revise or remove any existing emissions limit
for any NAAQS, or any other existing substantive SIP provisions
relevant to the 1997 8-hour ozone and PM2.5 NAAQS. Simply
put, it does not make any substantive revision that could result in any
change in emissions. As a result, the submission does not relax any
existing requirements or alter the status quo air quality. Therefore,
approval of the North Dakota interstate transport SIP will not
interfere with attainment or maintenance of any NAAQS.
As to the PSD program, the North Dakota revision updates the
incorporation date of 40 CFR 52.21 from October 1, 2003, to August 1,
2007. The
[[Page 31304]]
changes to Sec. 52.21 in that period do not relax any PSD
requirements. In fact, the primary substantive change was the
recognition of NOX as a precursor to ozone, a change that
strengthens PSD requirements. Other changes included (as noted
elsewhere in EPA's response to comments) recognition of the effects of
federal cases vacating certain aspects of NSR rules promulgated in 2002
and 2003.\32\ These changes do not relax any PSD requirements and in
most instances strengthen them. Therefore, approval of the revision of
the North Dakota PSD program will not interfere with attainment or
maintenance of the NAAQS.
---------------------------------------------------------------------------
\32\ 67 FR 80186 (Dec. 31, 2002); 68 FR 61248 (Oct. 23, 2003);
New York v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005); New York v. EPA,
443 F.3d 880 (D.C. Cir. 2006).
---------------------------------------------------------------------------
EPA's discussion in the notice cited by the commenter is consistent
with this interpretation. In the cited action, EPA noted that ``Utah
ha[d] either removed or altered a number of stationary source
requirements,'' creating the possibility of a relaxation of SIP
requirements interfering with attainment, a possibility that is not
present here. See 74 FR 62727 (Dec. 1, 2009). Thus, the action cited by
the commenter is clearly distinguishable.
The commenter did not provide any specific basis for concluding
that approval of this SIP submission would interfere with attainment or
maintenance of a NAAQS, or with any other applicable requirement of the
Clean Air Act. EPA concludes that approval of the submission will not
make the status quo air quality worse, and is in fact consistent with
the development of an overall plan capable of meeting the Act's
attainment requirements. Accordingly, even assuming that section 110(l)
applies to this submission, EPA finds that approval of the submission
is consistent with the requirements of section 110(l).
III. Section 110(l)
Section 110(l) of the Clean Air Act states that a SIP revision
cannot be approved if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
towards attainment of the NAAQS or any other applicable requirements of
the Act. In this action, EPA is approving the portions of the North
Dakota interstate transport SIP that address the ``significant
contribution'' and PSD elements of section 110(a)(2)(D)(i) for the 1997
8-hour ozone and PM2.5 NAAQS; EPA is also approving a
revision to the North Dakota PSD program. As discussed above in EPA's
response to comments, the portions of the interstate transport SIP that
EPA is approving do not revise or remove any existing emissions limit
for any NAAQS, or any other existing substantive SIP provisions
relevant to the 1997 8-hour ozone and PM2.5 NAAQS.
Furthermore, as also discussed above, the revision to the North Dakota
PSD program does not relax or remove any PSD requirement and in most
cases strengthens those requirements. As a result, the SIP revision
does not relax any existing requirements or alter the status quo air
quality. Finally, EPA has determined that the revision is consistent
with all applicable federal requirements and will not interfere with
requirements of the Act related to administrative or procedural
provisions. Therefore, the revision does not interfere with attainment
or maintenance of the NAAQS or other applicable requirements of the
Act.
IV. Final Action
The Environmental Protection Agency is approving portions of the
Interstate Transport of Air Pollution SIP submitted by the State of
North Dakota on April 6, 2009. Specifically, in this action EPA is
approving: (a) The introductory language in the State SIP Section 7.8;
(b) the ``Overview'' language in subsection A., Section 7.8.1; (c) the
language in Section 7.8.1, subsection B., ``Nonattainment and
Maintenance Area Impact,'' that specifically addresses element (1) of
section 110(a)(2)(D)(i), the requirement that the SIP contain adequate
provisions prohibiting emissions from North Dakota from contributing
significantly to nonattainment in any other state; and (d) Section
7.8.1, subsection C, ``Impact on Prevention of Significant
Deterioration (PSD).'' As part of this action EPA is also approving
revisions to the prevention of significant deterioration provisions in
subsection 33-15-15 of the NDAC.
EPA has concluded that the State's submission, and additional
evidence evaluated by EPA, establish that emissions from North Dakota
sources do not significantly contribute to nonattainment of the 1997 8-
hour ozone or the 1997 PM2.5 NAAQS in any other state.
Therefore, the State's SIP does not need to include additional
substantive controls to reduce emissions for purposes of section
110(a)(2)(D)(i)(I) for these NAAQS. In addition, EPA has concluded that
with the specific revisions addressed in this action, the State's SIP
now contains adequate provisions to prevent emissions from the State's
sources from interfering with measures required in the SIP of any other
state under part C of the CAA to prevent ``significant deterioration of
air quality,'' in accordance with section 110(a)(2)(D)(i)(II).
V. Statutory and Executive Order Review
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L.104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249,
[[Page 31305]]
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 2, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon
moNOXide, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 17, 2010.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart JJ-North Dakota
0
2. Section 52.1820 is amended to read as follows:
0
a. In the table in paragraph (c) by revising the entry for ``33-15-15-
01.2.''
0
b. In the table in paragraph (e) by revising the entry in ``(1)'' and
adding entry ``(21)'' in numerical order to read as follows:
Sec. 52.1820 Identification of plan.
* * * * *
(c) * * *
State of North Dakota Regulations
----------------------------------------------------------------------------------------------------------------
State effective EPA approval date
State citation Title/subject date and citation \1\ Explanations
----------------------------------------------------------------------------------------------------------------
* * * * * * *
33-15-15-01.2................... Scope.............. 4/1/09 6/3/10, 75 FR ...................
31290.
* *; * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
Federal Register notice cited in this column for the particular provision.
(e) * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicable geographic or State submittal date/ EPA approval date and
Name of nonregulatory SIP provision non-attainment area adopted date citation \3\ Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Implementation Plan for the Statewide................. Submitted: 1/24/72 5/31/72, 37 FR 10842....... Excluding subsequent
Control of Air Pollution for the Adopted: 1/24/72............ revisions, as follows:
State of North Dakota. Chapters 1, 2, 6, 7, 9,
11, and 12; Sections 2.11,
3.7, 6.8, 6.10, 6.11,
6.13, 7.7, and 8.3;
portions of subsection
7.8.1.B., subsections
7.8.1.D., and 8.3.1.
Revisions to these non-
regulatory provisions have
subsequently been
approved. See below.
Chapters:
[[Page 31306]]
1. Introduction................. .......................... Clarification submitted: With all clarifications: ...........................
2. Legal Authority.............. 6/14/73..................... 3/2/76, 41 FR 8956.........
3. Control Strategy............. 2/19/74.....................
4. Compliance Schedule.......... 6/26/74.....................
5. Prevention of Air Pollution 11/21/74....................
Emergency Episodes. 4/23/75.....................
7. Review of New Sources and
Modifications.
8. Source Surveillance..........
9. Resources....................
10. Inter-governmental
Cooperation
11. Rules and Regulations
With subsequent revisions to the
chapters as follows:
* * * * * * *
(21) Section 7.8, Interstate Statewide................. Submitted: 4/09/09 6/3/10 75 FR 31290......... Includes Section 7.8,
Transport of Air Pollution (only Adopted: 4/01/09............ subsection Portions of
7.8.1.A., portions of 7.8.1.B., and 7.8.1 as indicated below:
7.8.1.C., see explanation.) 7.8.1.A, ``Overview,'' the
language of Subsection
7.8.1.B., ``Nonattainment
and Maintenance Area
Impact,'' that
specifically addresses the
``significant contribution
to nonattainment''
requirement of CAA Section
110(a)(2)(D)(i), and all
of 7.8.1.C.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column
for the particular provision.
[FR Doc. 2010-13051 Filed 6-2-10; 8:45 am]
BILLING CODE 6560-50-P