[Federal Register Volume 75, Number 61 (Wednesday, March 31, 2010)]
[Proposed Rules]
[Pages 16026-16032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6894]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2009-0282; FRL-9131-5]
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: Proposed rule.
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SUMMARY: The Environmental Protection Agency is proposing to approve
State Implementation Plan (SIP) revisions submitted by the State of
North Dakota on April 6, 2009. Specifically, EPA is proposing approval
of revisions to the North Dakota air pollution control rules regarding
prevention of significant deterioration of air quality, and partial
approval of the SIP revision ``Interstate Transport of Air Pollution''
addressing the requirements of Clean Air Act section 110(a)(2)(D)(i)
for the 1997 PM2.5 and 8-hour ozone National Ambient Air
Quality Standards (NAAQS). For the latter, EPA proposes approval of the
North Dakota Interstate Transport SIP sections that address the
requirements of section 110(a)(2)(D)(i) prohibiting a state's emissions
from contributing significantly to any other state's nonattainment of
the NAAQS, or from interfering with any other state's required measures
to prevent significant deterioration of its air quality. EPA will act
at a later date on the North Dakota Interstate Transport SIP sections
that address the remaining two requirements of section 110(a)(2)(D)(i),
prohibiting a state's emissions from interfering with any other state's
maintenance of the NAAQS, or with any other state's required measures
to protect visibility. This action is being taken under section 110 of
the Clean Air Act.
DATES: Comments must be received on or before April 30, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2009-0282, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: [email protected] and
[email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Callie Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.
Hand Delivery: Callie Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted
Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2009-0282. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA, without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional instructions on submitting
comments, go to Section I. General Information of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other
[[Page 16027]]
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly-available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the Air
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 1595 Wynkoop, Denver, Colorado 80202-1129. EPA requests that if at
all possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 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, Denver, Colorado 80202-1129, (303) 312-6436,
[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 North Dakota and State mean the State of North
Dakota.
Table of Contents
I. General Information
What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Proposing?
III. What Is the State Process to Submit This Material to EPA?
IV. EPA's Review and Technical Information
A. Prevention of Significant Deterioration Provisions
B. Interstate Transport SIP
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. What Action Is EPA Proposing?
EPA is proposing approval of revisions to the State provisions on
the prevention significant deterioration (PSD) of air quality in
subsection 33-15-15-01.2 of the North Dakota Administrative Code
(NDAC), and is also proposing partial approval of the North Dakota
Interstate Transport of Air Pollution SIP for the 1997 PM2.5
and 8-hour ozone National Ambient Air Quality Standards (NAAQS). The
revisions to NDAC subsection 33-15-15-01.2, and the addition to the
North Dakota SIP 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. EPA is proposing to approve the
revision of NDAC subsection 33-15-15-01.02, incorporating changes to 40
CFR 52.21 made by EPA through August 1, 2007. EPA also proposes to
approve the language and demonstrations of the North Dakota Interstate
Transport SIP that address two elements of section 110(a)(2)(D)(i):
significant contribution to nonattainment of the NAAQS in any other
state, element (1), and interference with required measures by any
other state to prevent significant deterioration (PSD) of its air
quality, element (3).
III. What Is the State Process To Submit This Material to EPA?
Section 110(k) of the CAA addresses EPA's rulemaking action on SIP
submissions by states. The CAA requires states to observe certain
procedural requirements in developing SIP revisions for submittal to
EPA. Section 110(a)(2) of the CAA requires that each SIP revision be
adopted after reasonable notice and public hearing. This must occur
prior to the revision being submitted by a state to EPA.
The North Dakota Department of Health (NDDH) held a public hearing
on October 7, 2008 for revisions to subsection 33-15-15-01.02 of the
NDAC and for the addition to the North Dakota SIP of the Interstate
Transport non-regulatory provisions. The NDDH adopted the provisions on
April 1, 2009 and submitted them to EPA on April 6, 2009.
In a March 2, 2010 email, EPA requested that the North Dakota Air
Quality Division clarify the State commitment, stated in the Interstate
Transport SIP submitted to EPA April 6, 2009, to EPA's interim policy
on the use of PM10 as surrogate for PM2.5. In a
March 8, 2010 letter to the Region 8 Air Program, the North Dakota Air
Quality Division clarified its interpretation of EPA's Surrogate
Policy. This correspondence is included in this action's supporting
docket available for public review.
We have evaluated the submittal by the NDDH and have determined
that the State met the requirements of section 110(a)(2) of the CAA for
reasonable notice and public hearing.
IV. EPA's Review and Technical Information
A. Prevention of Significant Deterioration Provisions
The revisions to subsection 33-15-15-01.2 updated to August 1, 2007
the baseline date for incorporation by reference of the Federal
requirements at 40 CFR 52.21. In addition, various administrative
corrections and clarifications were made. As these revisions were made
to make the PSD provisions consistent with Federal requirements, they
are approvable.
B. Interstate Transport SIP
The interstate transport provisions at CAA section 110(a)(2)(D)(i),
also referred to as the ``good neighbor''
[[Page 16028]]
provisions, require that each state SIP contain adequate provisions
prohibiting emissions that adversely affect another state's air quality
through interstate transport of air pollutants. Section 110(a)(2)(D)(i)
contains four requirements or elements: (1) Significant contribution to
nonattainment of the NAAQS in any other state; (2) interference with
maintenance of the NAAQS by any other state; (3) interference with any
other state's required measures to prevent significant deterioration of
its air quality; and (4) interference with any other state's required
measures to protect visibility. On August 15, 2006, EPA issued guidance
for SIP submissions addressing the section 110(a)(2)(D)(i) requirements
for the 1997 PM2.5 and 8-hour ozone standards.\1\ In
November 2005 (70 FR 71612) and May 2008 (43 FR 28321), EPA finalized
regulations implementing Phase II of the 1997 8-hour ozone NAAQS, and
the New Source Review (NSR) Program for the 1997 PM2.5
NAAQS.
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\1\ 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''). This EPA guidance document is
one of the documents available for review in the docket document
entitled: ``Relevant Guidance and Supporting Documentation for the
Proposed Rulemaking Federal Register Action Docket ID EPA-
R08-OAR-2009-0282.''
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To demonstrate that its SIP satisfies the requirements for
significant contribution to nonattainment, North Dakota relies on a
combination of: (a) EPA modeling analysis results published in Federal
Register notices as part of the Clean Air Interstate Rule (CAIR)
rulemaking process; \2\ (b) monitoring data gathered by states and
reported to EPA in the Air Quality System (AQS) database; and (c)
consideration of geographical and meteorological factors affecting the
likelihood of significant pollution transport from North Dakota to the
closest PM2.5 and 8-hour ozone nonattainment areas or
violating monitors in other states. In this action EPA also expands on
the analysis of geographical and meteorological factors, and of ozone
and PM2.5 concentration levels reflecting AQS monitoring
data. EPA deems that the North Dakota Interstate Transport SIP sections
addressing requirements (1) and (3) of section 110(a)(2)(D)(i) are
consistent with EPA's 2006 guidance and the referenced implementation
rules for ozone and PM2.5.
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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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Significant Contribution Element--PM2.5
Section 110(a)(2)(D)(i) provides that EPA cannot approve a state's
SIP for a new or revised NAAQS unless it contains adequate measures to
prohibit emissions from sources within the state from contributing
significantly to nonattainment of the NAAQS in another state. EPA's
August 15, 2006, guidance to states concerning section 110(a)(2)(D)(i)
recommended various methods by which states might evaluate whether or
not its emissions significantly contribute to violations of the 1997
PM2.5 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. It should be noted that significant contribution to
nonattainment is not restricted to impacts upon areas that are formally
designated nonattainment. Consistent with EPA's approach in CAIR, this
impact must be evaluated with respect to monitors showing a violation
of the NAAQS (70 FR 25172, May 12, 2005, and 63 FR 57371, October 27,
1998). Furthermore, although relevant information other than modeling
may be considered in assessing the likelihood of significant
contribution to violations of the 1997 PM2.5 standard in
another state, EPA notes that no single piece of information in the
following discussion is by itself dispositive of the issue. Instead,
the total weight of all the evidence taken together supports the
conclusion that emissions within North Dakota do not significantly
contribute to violations in another state of the 1997 PM2.5
standard.
Although significant contribution must be measured not just against
nonattainment areas, but against areas with monitors showing violations
of the NAAQS, nonattainment areas are a convenient starting point for
the analysis. For the 1997 annual PM2.5 standard, Libby, in
Lincoln County, Montana, and Chicago, in Cook County, Illinois, are the
designated nonattainment areas closest to the State of North Dakota. In
2005, EPA designated both areas nonattainment for violations of the
1997 annual PM2.5 standards. See 70 FR 944 (January 5,
2005), and 40 CFR 81.314 and 81.327.
A number of considerations provide evidence that North Dakota
emissions are unlikely to contribute significantly to the violations of
the 1997 annual PM2.5 standards in Libby. First, Libby is
more than 650 miles straight west of Bismarck, and any impact from
North Dakota emissions would have to rely on strong easterly winds that
rarely occur in the State.\3\ This substantial distance and the rarity
of easterly surface winds, while not outcome determinative given the
distances across which PM2.5 can transport, support a
conclusion that North Dakota emissions are unlikely to contribute
significantly to violations of the 1997 annual PM2.5
standard in Libby. Second, in the process of designating Libby
nonattainment for these standards, EPA noted the predominantly local
origins of PM2.5 nonattainment in Libby.\4\ While the
predominance of local sources does not alone rule out the possibility
of impacts from interstate transport, this fact in conjunction with the
distance and the near absence of easterly winds in North Dakota
supports a conclusion that North Dakota emissions are unlikely to
contribute significantly to violations in Libby. Third, during the ten
years for which monitoring data are available, from 1999 to 2008,
annual PM2.5 design values at all other monitors in Montana
remained significantly below the 15 [mu]g/m\3\ nonattainment threshold.
Annual PM2.5 design values for most of these monitors
remained at levels equal to, or less than, two thirds of the NAAQS.
Even the three highest design values at these monitors were 20 percent
lower than the level of the annual standard.\5\
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\3\ Distances from Bismarck, North Dakota, to areas in other
states are intended to approximate the average transport distance of
emissions from sources in North Dakota to such areas. For surface
wind directions, see ``Climate of North Dakota-Wind,'' USGS web page
at http://www.npwrc.usgs.gov/resource/habitat/climate/wind.htm,
visited February 10, 2010, and available for review in EPA's January
14, 2010 docket memorandum: ``Relevant Guidance and Supporting
Documentation for the Proposed Rulemaking Federal Register Action
Docket ID EPA-R08-OAR-2009-0282.''
\4\ ``Technical Support for State and Tribal Air Quality Fine
Particle (PM2.5) Designations,'' Chapter 6, pp. 347-352,
December 2004.
\5\ In 2001, 2002 and 2006, design values for two monitors in
Missoula County were 11.1, 11.4 and 11.8 [mu]g/m\3\. Computed from
AQS monitoring data.
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The fact that monitors located between North Dakota and Libby are
not registering violations of the NAAQS does not conclusively establish
that emissions from North Dakota could not contribute in the aggregate
to violations
[[Page 16029]]
in Libby, but this fact combined with other relevant evidence such as
the distance, wind direction, and localized nature of the violations in
Libby again supports the North Dakota's Interstate Transport SIP
conclusion on PM2.5 contribution. Finally, by 2007-2008, the
annual PM2.5 design values for the Libby nonattainment area
itself fell below the level of the NAAQS, a reduction attributed to an
effective wood stove replacement program that decreased
PM2.5 emissions by approximately 59 percent.\6\ In other
words, were there emissions from North Dakota sources reaching Libby,
they would no longer be significantly contributing to violations of the
NAAQS in that location.
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\6\ State of Montana, Department of Environmental Quality,
``State Implementation Plan-Libby Annual PM2.5 Control
Plan,'' submitted to EPA April 1, 2008.
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Similarly, available information indicates that North Dakota
emissions are unlikely to contribute significantly to the violations of
the 1997 annual PM2.5 standards in Cook County Illinois. In
its rulemaking process for CAIR, EPA determined which states should be
subject to the rule due to their significant contribution to
nonattainment of the 1997 PM2.5 NAAQS in other states. This
determination included a modeling analysis of the contributions by
upwind states to a violating monitor in Cook County, which is
approximately 750 miles southeast of Bismarck, North Dakota. According
to modeling cited in the CAIR proposal of January 30, 2004 (69 FR
4566), EPA estimated that the maximum contribution by emissions from
sources in North Dakota to downwind counties predicted to have
violating monitors for the PM2.5 annual standard in the 2010
base year was to Cook County. EPA estimated that the North Dakota
annual average contribution to Cook County would be 0.12 [mu]g/m\3\
(Table V-5, 69 FR 4608), an amount well below 0.20 [mu]g/m\3\, the
threshold set by EPA in CAIR for the initial determination of whether a
state would be subject to the rule (70 FR 25188-91).\7\ The CAIR
modeling analysis thus provides support for the conclusion that
emissions from North Dakota are not significantly contributing to
violations of the 1997 annual PM2.5 NAAQS in Cook County.\8\
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\7\ This threshold was upheld by the U.S. Court of Appeals for
the DC Circuit in its adjudication of consolidated challenges to
CAIR. See North Carolina v. EPA, 531 F.3d 896, 930 (DC Cir. 2008).
\8\ As EPA only evaluated sources of NOX and
SO2 in CAIR, the CAIR modeling analysis, like the other
evidence considered in this action, is not by itself dispositive of
the issue of significant contribution.
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As mentioned above, EPA must consider not only significant
contribution to nonattainment areas, but also to areas with monitors
showing violations of the NAAQS. A review of the AQS monitoring data
for adjacent downwind states shows that it is highly unlikely that
emissions from North Dakota contribute significantly to downwind areas
that have monitors showing violations of the 1997 24-hour and annual
PM2.5 NAAQS. Between 1999 and 2008 there were no violations
of the 1997 PM2.5 NAAQS at any of the monitors in adjacent
downwind states, such as Minnesota, South Dakota and Iowa.\9\
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\9\ Unless otherwise referenced, for AQS monitoring data and
related design values referenced in this action see Table 1 and
Table 2 in the docket document entitled: ``Relevant Guidance and
Supporting Documentation for the Proposed Rulemaking Federal
Register Action Docket ID EPA-R08-OAR-2009-0282.''
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In South Dakota, monitors in Minnehaha and Brookings Counties had
the highest design values for 1997 24-hour PM2.5 standards
during the 1999-2008 period. Their design values ranged, respectively,
from 23 to 28 and from 21 to 26 [mu]g/m\3\, as compared with the 1997
24-hour PM2.5 NAAQS of 65 [mu]g/m\3\. For annual
PM2.5, Codington and Minnehaha Counties had the monitors
with the highest design values, ranging from 9.5 to 10.3 [mu]g/m\3\,
and from 9.3 to 10.4 [mu]g/m\3\, respectively, as compared to the
annual NAAQS of 15 [mu]g/m\3\.
In Minnesota, during 1999-2008, the highest design values for 1997
24-hour PM2.5 NAAQS occurred for monitors in the Twin
Cities' Hennepin and Ramsey Counties, where they ranged, respectively,
from 23 to 32 and from 26 to 36 [mu]g/m\3\. The highest design values
for annual PM2.5 reflected PM2.5 monitored levels
also in these two counties, and ranged, respectively, from 8.9 to 11.9
[mu]g/m\3\ and from 10.7 to 13.8 [mu]g/m\3\. It must be noted that the
highest design value of 13.8 [mu]g/m\3\, for a monitor in Ramsey
County, reflected annual PM2.5 concentrations registered
during the 1999-2001 time span. After 2001, PM2.5
concentrations in Ramsey County decreased steadily, and between 2006
and 2008 the highest design value for any of the Minnesota monitoring
stations was 11.2 [mu]g/m\3\, significantly below the annual NAAQS.
In Iowa, the highest 24-hour PM2.5 design values during
the 1999-2008 years reflected pollutant concentrations registered at
monitors in Clinton and Muscatine Counties. In these counties, design
values ranged, respectively, from 28 to 36 and from 34 to 38 [mu]g/
m\3\, as compared with the 1997 24-hour PM2.5 NAAQS of 65
[mu]g/m\3\. The highest annual PM2.5 design values occurred
in the same counties, and ranged from 11.7 to 14.1 [mu]g/m\3\ in
Clinton County, and from 12.5 to 13.3 [mu]g/m\3\ in Muscatine County.
The data and weight of evidence analysis presented above support
the conclusion of the North Dakota Interstate Transport SIP (adopted
April 1, 2009 and submitted April 6, 2009) that emissions from North
Dakota do not contribute significantly to nonattainment in any other
state for the 1997 PM2.5 NAAQS, consistently with the
requirements of element (1) of CAA section 110(a)(2)(D)(i).
Significant Contribution Element-- 8-Hour Ozone
As noted above, Section 110(a)(2)(D)(i) provides that EPA cannot
approve a state's SIP for a new or revised NAAQS unless it contains
adequate measures to prohibit emissions from sources within the state
from contributing significantly to nonattainment of the NAAQS in
another state. EPA's August 15, 2006, guidance to states concerning
section 110(a)(2)(D)(i) recommended various methods by which states
might evaluate whether or not its emissions significantly contribute to
violations of the 1997 ozone standards in another state. Among other
methods, EPA recommended consideration of available EPA modeling
conducted in conjunction with CAIR, or in the absence of such EPA
modeling, consideration of other information such as the amount of
emissions, the geographic location of violating areas, meteorological
data, or various other forms of information that would be relevant to
assessing the likelihood of significant contribution to violations of
the NAAQS in another state. The assessment of significant contribution
to nonattainment is not restricted to impacts upon areas that are
formally designated nonattainment. Consistent with EPA's approach in
CAIR, this impact must be evaluated with respect to monitors showing a
violation of the NAAQS (70 FR 25172, May 12, 2005, and 63 FR 57371,
October 27, 1998). Furthermore, although relevant information other
than modeling may be considered in assessing the likelihood of
significant contribution to violations of the 1997 8-hour ozone
standard in another state, EPA notes that no single piece of
information in the following discussion is by itself dispositive of the
issue. Instead, the total weight of all the evidence taken together
supports the conclusion that emissions from North Dakota sources are
unlikely to contribute significantly to violations in another state of
the 1997 8-hour ozone standard.
[[Page 16030]]
Although significant contribution must be measured not just against
nonattainment areas, but against areas with monitors showing violations
of the NAAQS, nonattainment areas are a convenient starting point for
the analysis. For the 1997 8-hour ozone NAAQS, the North Dakota
Interstate Transport SIP revision identifies the Denver Metro Area/
North Front Range (DMA/NFR) in Colorado, and the Illinois and Wisconsin
counties along the southwestern shores of Lake Michigan as the closest
designated nonattainment areas.\10\ EPA's evaluation of whether
emissions from North Dakota contribute significantly to the ozone
nonattainment in these areas is based on an examination of how
geographical and meteorological factors affect transport from North
Dakota to the two areas noted above. Our approach does not rely on a
quantitative determination of North Dakota's contribution, as EPA did
for other states in its CAIR rulemaking, but on a weight-of-evidence
analysis based on qualitative assessments and estimates of the relevant
factors. While conclusions reached for each of the factors considered
in the following analysis are not in and by themselves determinative,
consideration of the likely 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.
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\10\ The Wisconsin nonattainment areas for the 1997 8-hour ozone
standard include: Door, Kewaunee, Manitowoc, Sheboygan, Ozaukee,
Washington, Milwaukee, Waukesha, Racine and Kenosha counties; the
Chicago nonattainment area includes Cook County and several adjacent
Illinois and Indiana counties (69 FR 23858, April 30, 2004).
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The DMA/NFR nonattainment area is approximately 550 miles southwest
of Bismarck, North Dakota.\11\ Distance per se is not an obstacle to
long range transport of ozone and/or its precursors, as discussed in
the January 30, 2004 notice proposing CAIR (69 FR 4599); NOX
(the primary ozone precursor that was the object of the CAIR transport
study) may be transported for long distances, contributing
significantly to high ozone concentrations in other states. However,
with increasing distance there are greater opportunities for ozone and/
or NOX dispersion and/or removal from the atmosphere due to
the effects of winds and chemical sink processes. In this context, one
may conclude that the 550 mile distance between North Dakota and the
DMA/NFR reduces but does not exclude the possibility of significant
contribution to this area's nonattainment.
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\11\ Distances from Bismarck, North Dakota, to areas in other
states are intended to approximate the average transport distance of
emissions from sources in North Dakota to such areas.
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Another transport factor is wind direction. Research for North
Dakota and states immediately to the south and east shows that in North
Dakota both surface and regional transport winds from the northeast,
needed to transport ozone to the DMA/NFR area, are generally rare.
Thirty years of data collected by the United States Geological Survey
(USGS) on surface wind direction for several North Dakota locations
show that there was much variability by location and time of the year,
with the exception of northeasterly winds, which were very
infrequent.\12\ For long range transport winds, a modeling analysis of
ozone dispersion during the summer months (June to August) of the five
year period 1991-1995 shows that on high local ozone days North Dakota
and states immediately to the south or east were characterized by
southerly regional transport winds. On high regional ozone days, during
the same period transport winds did not have a prevailing orientation,
and certainly not a northeasterly one.\13\ To the extent that these
results are representative of general ozone transport patterns not
limited to the 1991-95 period, the rarity of northeasterly winds in
North Dakota and adjacent areas provides evidence that NOX
emissions from North Dakota are likely to be transported in a direction
away from the Colorado DMA/NFR nonattainment area, and therefore
supports the conclusion that emissions sources in North Dakota are
unlikely to contribute significantly to violations of the 1997 ozone
NAAQS in Denver.\14\
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\12\ See USGS data in EPA's January 14, 2010 docket memorandum:
``Relevant Guidance and Supporting Documentation for the Proposed
Rulemaking Federal Register Action Docket ID EPA-R08-OAR-
2009-0282.''
\13\ Ozone Transport Assessment Group (OTAG), Air Quality
Analysis Workgroup, ``3.3 Climatology of Ozone Synoptic scale
Transport in the Eastern US,'' Figures 1(a) and 5(a), pp. 3, 6,
January 11, 1998. The high ozone days included the days with ozone
concentrations in the 90th percentile.
\14\ Ibid.
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The Illinois/Wisconsin counties along the southwestern shores of
Lake Michigan (which make up the other nonattainment area within
possible transport distance of North Dakota) are approximately 700
miles east-southeast from Bismarck. The CAIR modeling domain for 8-hour
ozone transport analysis included only the eastern half of North
Dakota, and the CAIR modeling analysis did not determine whether
NOX emissions from North Dakota sources contributed
significantly to ozone nonattainment in any downwind states.\15\
However, the CAIR modeling analysis results for Minnesota provide us
the opportunity to draw inferences about ozone contribution from North
Dakota sources to nonattainment in the Illinois/Wisconsin area. It must
be noted that Minnesota is nearly half as distant from this
nonattainment area as North Dakota (400 miles as compared with
700),\16\ and that to reach the Illinois/Wisconsin nonattainment area,
ozone transport winds from Minnesota would have to have a northwesterly
orientation similar to that necessary for substantial ozone transport
from North Dakota. In addition, the CAIR modeling analysis estimated
the Minnesota's NOX emissions for the 2010 base year to be
approximately twice as large as the NOX emissions from North
Dakota's sources (381,500 as compared with 182, 800 tons).\17\ Finally,
the CAIR analysis determined that emissions from Minnesota were below
the initial threshold for including states in CAIR.\18\ 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.
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\15\ 69 FR 4584 (Jan. 30, 2004) (``We are deferring findings for
Texas, Oklahoma, Kansas, Nebraska, South Dakota and North Dakota,
which at this time cannot be assessed on the same bases as States to
the east because they are only partially included in the modeling
domain * * *'').
\16\ The 400 mile distance to the nonattainment area is
calculated from St. Cloud, and is intended to be a rough
approximation of the average transport distance of NOX
emission sources from Minnesota.
\17\ 69 FR 4590.
\18\ Minnesota was not listed among the upwind states that
contribute significantly to downwind counties projected
nonattainment for 8-hour ozone in the 2010 base year, and is not a
CAIR state for the 8-hour ozone standard. 69 FR 4602, Table V-2; 70
FR 25167.
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Additional ozone transport factors specific to North Dakota are
distance from the nonattainment area and prevailing orientation of the
winds. As noted above, Bismarck is approximately 700 miles from the
Illinois/Wisconsin nonattainment area, a distance which does not
exclude the realistic possibility that significant ozone transport
might occur. Research on surface wind direction in North Dakota,
reflected in the USGS data referenced earlier, shows a great
variability depending on location and time of the year. Northwesterly
winds are more frequent than southwesterly or southeasterly winds
considered separately, but less frequent
[[Page 16031]]
than the two combined. On the other hand, as noted earlier in this
review, during the ozone season of the years 1991-1995, on local high
ozone days regional transport winds in North Dakota were predominantly
southerly, and on high regional ozone days they lacked a prevailing
orientation. There was no strong northwesterly component that might
allow for significant transport of NOX to the Illinois/
Wisconsin area.\19\ To the extent that these results are representative
of general ozone transport patterns not limited to the 1991-95 period,
one may add the relative infrequency of northwesterly transport winds
from North Dakota to the other factors that make it unlikely for
emissions from North Dakota sources to contribute significantly to
nonattainment in the noted Illinois/Wisconsin area.
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\19\ Ibid.
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This conclusion is supported by the recent attainment demonstration
developed for the nonattainment counties along the western shores of
Lake Michigan by the Wisconsin Department of Natural Resources (WDNR).
The WDNR analysis identifies heavy industrial activity and dense
urbanization as the major local contributors to the high ozone
concentrations in the Illinois and Wisconsin Counties along the
southwestern shores of Lake Michigan. Regional ozone transport is
thought to contribute from 40 to 60% of the maximum ozone
concentrations in the Lake Michigan airshed, and the contributing
transport is estimated to originate from south-southwesterly areas,
within a span of 160 to 270 degrees. Any ozone transport from North
Dakota would fall outside this span. The WDNR finding, in combination
with the results of the analysis for other transport factors presented
above, strengthens the conclusion that it is unlikely that emissions
from North Dakota sources contribute significantly to the nonattainment
of the Illinois/Wisconsin Counties on the southwestern shores of Lake
Michigan.\20\
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\20\ Wisconsin Department of Natural Resources, ``Attainment
Demonstration--The Wisconsin Counties of Kenosha, Racine, Milwaukee,
Waukesha, Ozaukee, Washington, Sheboygan, Manitowoc and Door,'' pp.
8, 51, September 2009.
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Finally, by 2008, the 8-hour ozone design values for the Illinois
and Wisconsin nonattainment counties along the shores of Lake Michigan
fell below the level of the NAAQS, a reduction attributed to the
implementation of State and Federal control measures since the
designation of these counties as nonattainment in 2004. In other words,
were there emissions from North Dakota sources reaching the Illinois
and Wisconsin counties along the western rim of Lake Michigan, they
would no longer be significantly contributing to violations of the
NAAQS in that area.\21\
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\21\ Ibid. p. 14.
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As mentioned above, EPA must consider not only significant
contribution to nonattainment areas, but also to areas with monitors
showing violations of the NAAQS. A review of the AQS monitoring data
for adjacent downwind states shows that it is highly unlikely that
emissions from North Dakota contribute significantly to downwind areas
that have monitors showing violations of the 1997 8-hour ozone NAAQS.
Between 1999 and 2008 there were no violations of the 1997 8-hour ozone
NAAQS at any of the monitors in adjacent downwind states, such as
Minnesota, South Dakota and Iowa.
The design values for Minnesota, South Dakota and Iowa during the
1999-2008 years remained substantially below the 1997 NAAQS in most
counties, as shown by the highest design values. In South Dakota, the
highest design values were in Custer and Jackson Counties, where they
peaked, respectively, at 71 and at 68 ppb. In Minnesota, the highest
design values were in Anoka and Washington Counties, where they peaked
at 75 ppb. In Iowa, the highest design values were in Clinton and Scott
Counties, where they reached levels between 78 and 80 ppb in the early
part of the 1999-2008 period, and decreased to levels, respectively,
between 67 and 72, and 65 and 70 ppb during 2006-2008. The decrease of
Iowa ozone levels between 1998 and 2008 can be gauged by comparing the
peak levels of 79-80 ppb in 2000-2003 with peak levels of 70-75 ppb in
2006-2008.
The data and weight of evidence analysis presented above support
the conclusion of the North Dakota Interstate Transport SIP (adopted
April 1, 2009 and submitted April 6, 2009) that emissions from North
Dakota do not contribute significantly to nonattainment in any other
state for the 1997 8-hour ozone NAAQS, consistently with the
requirements of element (1) of CAA section 110(a)(2)(D)(i).
Interference With PSD Element--PM2.5 and Ozone
The third element of section 110(a)(2)(D)(i) requires a SIP to
contain adequate provisions prohibiting emissions that interfere with
any other state's required measures to prevent significant
deterioration of its air quality. The State of North Dakota interstate
transport SIP is consistent with the 2006 guidance. The SIP indicates
in Section 7.8.1, subsection C, ``Impact on Prevention of Significant
Deterioration (PSD),'' that the State's SIP provisions include an EPA-
approved PSD program applicable to all regulated pollutants. North
Dakota's regulations for its PSD program were federally-approved and
made part of the SIP on November 2, 1979 (44 FR 63103). On July 19,
2007, EPA approved the North Dakota PSD revisions incorporating EPA's
December 31, 2002 NSR Reforms into the State's regulations (72 FR
39564). North Dakota does not have nonattainment areas for any of the
criteria pollutants and therefore does not have a Nonattainment New
Source Review (NNSR) program.
Consistent with EPA's November 29, 2005 Phase II rule for the 1997
8-hour ozone standard (70 FR 71612), the State updated, effective April
1, 2009, its PSD provisions by incorporating by reference most of the
federal provisions at 52.21, including the definition of regulated NSR
pollutant at 52.21(b)(50), listing NOX as an ozone
precursor. As discussed elsewhere in this notice, EPA proposes in this
action to approve the April 1, 2009 update. Thus, the April 1, 2009
update, taken together with interstate transport SIP section 7.8.1,
subsection C, satisfies the requirements of the third element of CAA
section 110(a)(2)(D)(i) for the 1997 8-hour ozone standard.
For PM2.5, North Dakota's SIP declares that the State
will follow EPA's interim guidance on use of PM10 as a
surrogate for PM2.5. In response to EPA's request of March
2, 2010, the North Dakota Air Quality Division, in a March 8, 2010
letter to the EPA Region 8 Air Program, has clarified an ambiguity in
its interpretation of the interim guidance. The letter states that,
until the guidance is ended or replaced, North Dakota will apply it
consistent with EPA's interpretation of the federal case law relevant
to the use of the PM10 Surrogate Policy (see 75 FR 6827,
6831-32, February 11, 2010). The State will also take into account the
limits provided in the policy itself, such as the need to identify the
technical difficulties that justify the application of the policy in
each specific case (75 FR 6834). With that clarification, the North
Dakota Interstate Transport SIP satisfies the requirements of the third
element of section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS.
On the basis of the data and analysis presented above, EPA
concludes that the North Dakota Interstate Transport
[[Page 16032]]
non-regulatory provisions adopted into the State SIP April 1, 2009
satisfactorily address the requirements of elements (1) and (3) of
section 110(a)(2)(D)(i) for the 1997 PM2.5 and 8-hour ozone
standards.
V. Proposed Action
EPA is proposing approval of revisions, submitted by the Governor
of North Dakota with a letter dated April 6, 2009, to the prevention of
significant deterioration provisions in subsection 33-15-15 of the
NDAC, and partial approval of the addition to the State SIP of the
``Interstate Transport of Air Pollution'' SIP addressing the
requirements of Clean Air Act section 110(a)(2)(D)(i) for the 1997
PM2.5 and 8-hour ozone National Ambient Air Quality
Standards (NAAQS). For the North Dakota Interstate Transport SIP, EPA
is proposing approval of: (a) The introductory language in the State
SIP Section 7.8; (b) the ``Overview'' language in subsection A.,
Section 7.8.1; (c) language in Section 7.8.1, subsection B.,
``Nonattainment and Maintenance Area Impact,'' that specifically
addresses element (1) of section 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).''
VI. 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, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 18, 2010.
Carol L. Campbell,
Acting Assistant Regional Administrator, Region 8.
[FR Doc. 2010-6894 Filed 3-30-10; 8:45 am]
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