[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Proposed Rules]
[Pages 27888-27891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11295]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0348; FRL-9813-2]


Approval and Promulgation of State Implementation Plans; State of 
North Dakota; Interstate Transport of Pollution for the 2006 PM2.5 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve portions of a State Implementation 
Plan (SIP) submission from the State of North Dakota which demonstrates 
that its SIP meets certain interstate transport requirements of the 
Clean Air Act (``Act'' or ``CAA'') for the 2006 fine particulate matter 
(``PM2.5'') National Ambient Air Quality Standards 
(``NAAQS''). This submission addresses the requirement that North 
Dakota's SIP contain adequate provisions to prohibit air emissions from 
adversely affecting another state's air quality through interstate 
transport. In this action, EPA is proposing to approve the portion of 
the North Dakota SIP submission that addresses the CAA requirement 
prohibiting emissions from North Dakota sources from significantly 
contributing to nonattainment of the 2006 PM2.5 NAAQS in any 
other state or interfering with maintenance of the 2006 
PM2.5 NAAQS by any other state.

DATES: Comments must be received on or before June 12, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0348, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Carl Daly, Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, 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, 8:00 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-
2012-0348. 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 email. 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 email comment directly to EPA, without 
going through http://www.regulations.gov, your email 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 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, 8:00 a.m. 
to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104, 
[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.
    (ii) The initials CAIR mean or refer to the Clean Air Interstate 
Rule.
    (iii) The initials CSAPR mean or refer to the Cross-State Air 
Pollution Rule.
    (iv) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (v) The initials SIP mean or refer to State Implementation Plan.
    (vi) The words North Dakota and State mean the State of North 
Dakota.

Table of Contents

I. General Information
II. Background
    A. 2006 PM2.5 NAAQS and Interstate Transport
    B. EPA Rules Addressing Interstate Transport for the 2006 PM2.5 
NAAQS in Eastern States
III. North Dakota's Submittal
IV. EPA's Evaluation
    A. EPA's Approach for Evaluating Interstate Transport of Air 
Pollution
    B. EPA's Evaluation of North Dakota's Submittal
V. Proposed Action
VI. Statutory and Executive Order Reviews

[[Page 27889]]

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 email. 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. Background

A. 2006 PM2.5 NAAQS and Interstate Transport

    Section 110(a)(2)(D)(i) of the CAA specifies four distinct elements 
related to the evaluation of impacts of interstate transport of air 
pollutants with respect to a new or revised NAAQS. In this action for 
the State of North Dakota, EPA is addressing the first two elements of 
section 110(a)(2)(D)(i) with respect to the 2006 PM2.5 
NAAQS.\1\ The first element of section 110(a)(2)(D)(i) requires that 
each SIP for a new or revised NAAQS contain adequate provisions to 
prohibit any source or other type of emissions activity within the 
state from emitting air pollutants that will ``contribute significantly 
to nonattainment'' of the applicable NAAQS in another state. The second 
element of CAA section 110(a)(2)(D)(i) requires that each SIP for a new 
or revised NAAQS contain adequate provisions to prohibit any source or 
other type of emissions activity in the state from emitting pollutants 
that will ``interfere with maintenance'' of the applicable NAAQS in any 
other state.
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    \1\ This proposed action does not address the two elements of 
the transport SIP provision (in CAA section 110(a)(2)(D)(i)(II)) 
regarding interference with measures required to prevent significant 
deterioration of air quality or to protect visibility in another 
state. We will act on these elements in a separate rulemaking.
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B. EPA Rules Addressing Interstate Transport for the 2006 
PM2.5 NAAQS in the Eastern United States

    EPA has addressed the requirements of section 110(a)(2)(D)(i)(I) 
for many states in the eastern portion of the country in three 
regulatory actions.\2\ Most recently, EPA published the final Cross 
State Air Pollution Rule (``CSAPR'' or ``Transport Rule'') to address 
the first two elements of section 110(a)(2)(D)(i)(I) in the Eastern 
United States with respect to the 2006 PM2.5 NAAQS, the 1997 
PM2.5 NAAQS, and the 1997 8-hour ozone NAAQS (August 8, 
2011, 76 FR 48208). CSAPR was intended to replace the earlier Clean Air 
Interstate Rule (CAIR) which was judicially remanded.\3\ See North 
Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008). On August 21, 2012, the 
U.S. Court of Appeals for the DC Circuit issued a decision to vacate 
CSAPR. See EME Homer City Generation, L.P. v. E.P.A., 696 F.3d 7 (DC 
Cir. 2012). The EME Homer City panel also ordered EPA to continue 
implementing CAIR in the interim. On March 29, 2013, the United States 
asked the Supreme Court to review the EME Homer City decision. In the 
mean time, and unless the EME Homer City decision is reversed or 
otherwise modified, EPA intends to act in accordance with the panel 
opinion in EME Homer City. North Dakota was entirely within the 
modeling domain for the air quality modeling analyses used in the 
development of CAIR and CSAPR.
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    \2\ See NOX SIP Call, 63 FR 57371 (October 27, 1998); 
CAIR, 70 FR 25172 (May 12, 2005); and Transport Rule or Cross-State 
Air Pollution Rule, 76 FR 48208 (August 8, 2011).
    \3\ CAIR addressed the 1997 annual and 24-hour PM2.5 
NAAQS, and the 1997 8-hour ozone NAAQS. It did not address the 2006 
24-hour PM2.5 NAAQS. For more information on CAIR, please 
see our July 30, 2012 proposal for Arizona regarding interstate 
transport for the 2006 PM2.5 NAAQS (77 FR 44551, 44552).
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III. North Dakota's Submittal

    On August 12, 2010, the North Dakota Department of Health (NDDH) 
made a submission certifying that North Dakota's SIP is adequate to 
implement the 2006 PM2.5 NAAQS for all the 
``infrastructure'' requirements of CAA section 110(a)(2). This 
submission included a transport analysis to support the conclusion that 
North Dakota's SIP meets the requirements of CAA section 
110(a)(2)(D)(i)(I) for this NAAQS.\4\
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    \4\ NDDH's submission, dated August 12, 2010 is included in the 
docket for this action.
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    North Dakota's PM2.5 transport analysis contains the 
State's assessment of the potential for emissions of PM2.5 
and PM2.5 precursors from North Dakota sources to 
significantly contribute to nonattainment or interfere with maintenance 
of the 24-hour PM2.5 standards in any other state. In its 
analysis, the State considered distance, wind direction, monitor values 
in North Dakota and other states, modeling by the Western Regional Air 
Partnership of contribution to Class I Areas, and anticipated future 
PM2.5 emission reductions.

IV. EPA's Evaluation

A. EPA's Approach for Evaluating Interstate Transport of Air Pollution

    To determine whether the CAA section 110(a)(2)(D)(i)(I) requirement 
is satisfied, EPA first determines whether a state's emissions 
contribute significantly to nonattainment or interfere with maintenance 
in downwind areas. If a state is determined not to have such 
contribution or interference, then section 110(a)(2)(D)(i)(I) does not 
require any changes to a SIP. EPA is proposing to determine that the 
existing SIP for North Dakota is adequate to satisfy the requirements 
of 110(a)(2)(D)(i)(I) of the CAA to address interstate transport 
requirements with regard to the 2006 PM2.5 NAAQS. This 
proposed conclusion is based on air quality modeling originally 
conducted by EPA during the rulemaking process for CSAPR. This modeling 
quantified, for each individual state within the modeling domain 
(including North Dakota), contributions to downwind nonattainment and 
maintenance areas.
    In the CSAPR rulemaking (proposal and final) process, EPA explained 
how nonattainment and maintenance ``receptors'' would be identified so 
that

[[Page 27890]]

contribution to nonattainment and interference with maintenance could 
be assessed with respect to those receptors.\5\ The receptors were 
identified as all monitoring sites that had PM2.5 design 
values above the level of the 2006 24-hour PM2.5 NAAQS (35 
[mu]g/m\3\) for certain analytic years. Then EPA compiled an emissions 
inventory for the year 2005, the most recent year for which EPA had a 
complete national inventory at that time. In the CSAPR analysis, EPA 
also projected the inventory for a future year analysis for evaluating 
the interstate transport impacts in that future year.\6\ The air 
quality modeling conducted for CSAPR then evaluated interstate 
contributions from emissions in upwind states to downwind nonattainment 
and maintenance receptors for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. Please see the Air Quality Modeling Final Rule 
Technical Support Document, June 2011 (``Air Quality Modeling TSD'') 
for the CSAPR. Appendix D of this TSD details North Dakota's 
contribution data for the 2006 24-hour PM2.5 NAAQS for all 
downwind receptors.
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    \5\ For our definition of both nonattainment and maintenance 
receptors, see the Technical Support Documents for the final CSAPR, 
including the ``Technical Support Document (TSD) for the Transport 
Rule--Air Quality Modeling'', (the proposal TSD) June 2010, and the 
``Air Quality Modeling Final Rule Technical Support Document'', (Air 
Quality Modeling TSD) June 2011, in the docket for this action.
    \6\ See Id.; Emissions Inventory Final Rule TSD, June 28, 2011.
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    EPA then used air quality thresholds to indentify linkages between 
upwind states and downwind nonattainment and maintenance receptors. As 
detailed in EPA's Air Quality Modeling TSD, EPA used a threshold of 1% 
of the NAAQS to identify these linkages. Our analysis for CSAPR found 
that the 1% threshold captures a high percentage of the total pollution 
transport affecting downwind states for PM2.5.\7\ The air 
quality thresholds were therefore calculated as 1% of the NAAQS, which 
is 0.35 [mu]g/m\3\ for the 2006 24-hour PM2.5 NAAQS. EPA 
found states projected to exceed this air quality threshold at one or 
more downwind nonattainment receptors emissions to be linked to all 
such receptors, and therefore subject to further evaluation. EPA did 
not conduct further evaluation of emissions from states that were not 
linked to any downwind receptors.
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    \7\ See section IV.F (Analysis of Contributions Captured by 
Various Thresholds) of the Air Quality Modeling TSD.
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    The methodology and modeling used to analyze the impact of 
emissions from North Dakota and to identify potential linkages between 
North Dakota and downwind nonattainment and maintenance receptors with 
respect to the 1997 and 2006 PM2.5 NAAQS is described in 
further detail in the Air Quality Modeling TSDs. These documents can be 
found in the electronic docket for this action, which is available 
through the www.regulations.gov Web site.

B. EPA's Evaluation of North Dakota's Submittal

    In its submittal, North Dakota relied on factors we have generally 
found to be relevant for assessing interstate transport for western 
states that were not within the modeling domain for CSAPR.\8\ However, 
North Dakota was within the modeling domain for CSAPR. As we consider 
the modeling conducted during the development of CSAPR to contain the 
most accurate and comprehensive technical assessment of 
PM2.5 interstate transport for those states within its 
modeling domain, including North Dakota, we examined that analysis to 
assess transport of PM2.5 emissions from North Dakota to 
other states.
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    \8\ See Memorandum from William T. Harnett entitled ``Guidance 
for State Implementation Plan (SIP) Submission 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,'' 
August 15, 2006, available at http://www.epa.gov/ttn/caaa/t1/memoranda/section110a2di_sip_guidance.pdf.
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    The air quality modeling performed during the development of CSAPR 
found that the impact from North Dakota emissions on both downwind 
nonattainment and maintenance receptors was less than the 1% threshold 
for the 2006 PM2.5 NAAQS. EPA therefore did not find 
emissions from North Dakota linked to any downwind nonattainment or 
maintenance receptors for the 2006 24-hour PM2.5 NAAQS.
    Below is a summary of the air quality modeling results for North 
Dakota from Table IV-9 of EPA's Air Quality Modeling TSD regarding 
North Dakota's largest contribution to both downwind PM2.5 
nonattainment and maintenance areas.

            North Dakota's Largest Contribution to Downwind PM2.5 Nonattainment and Maintenance Areas
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                                                                             Largest downwind   Largest downwind
                                                            Air quality      contribution to    contribution to
                         NAAQS                           threshold ([mu]g/    nonattainment       maintenance
                                                               m\3\)           ([mu]g/m\3\)       ([mu]g/m\3\)
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2006 24-hour PM2.5 NAAQS (35 [mu]g/m\3\)...............               0.35               0.21               0.33
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    Based on this analysis, we propose to approve North Dakota's 
submission certifying that its SIP meets the requirements of section 
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS. We continue to 
believe it is appropriate to rely on the modeling done during the 
development of CSAPR, even with the EME Homer City opinion vacating the 
rule. EME Homer City Generation L.P. v. EPA, 696 F.3d 7 (DC Cir. 2012). 
Nothing in the EME Homer City opinion suggests that the air quality 
modeling on which our proposal relies is flawed or invalid for any 
reason. In addition, nothing in that opinion undermines or calls into 
question our proposed conclusion that, because emissions from North 
Dakota do not contribute more than 1% of the 1997 and 2006 
PM2.5 NAAQS to any downwind area with nonattainment or 
maintenance problems, North Dakota does not contribute significantly to 
nonattainment or interfere with maintenance in another state for these 
NAAQS. Further, EPA is not proposing to rely on any requirements of 
CSAPR or emission reductions associated with that rule to support its 
conclusion that North Dakota has met its 110(a)(2)(D)(i)(I) obligations 
with respect to the 2006 PM2.5 NAAQS.

V. Proposed Action

    EPA is proposing to approve the 110(a)(2)(D)(i)(I) portion of North 
Dakota's August 12, 2010 SIP submission, based on conclusions drawn 
from the technical analysis done during the development of CSAPR that 
emissions from North Dakota sources do not contribute significantly to 
nonattainment of the 2006 24-hour PM2.5 NAAQS in any other 
state or interfere with maintenance of the 2006

[[Page 27891]]

24-hour PM2.5 NAAQS by any other state. Accordingly, we 
propose to conclude that the existing SIP is adequate to address the 
requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS, and that additional control measures in North 
Dakota are not necessary for this purpose.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 USC 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 CAA. Accordingly, this 
action merely proposes to approve some state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 USC 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 USC 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 USC 272 
note) because application of those requirements would be inconsistent 
with the CAA; 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: May 2, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013-11295 Filed 5-10-13; 8:45 am]
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