Approval and Promulgation of Implementation Plans; New Mexico; Interstate Transport of Pollution, 33174-33190 [2010-13686]
Download as PDF
33174
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
Name of non-regulatory SIP
revision
Applicable geographic area
State submittal
date
EPA approval date
*
*
Reasonable Further Progress Plan
(RFP), Reasonably Available
Control Measures, and Contingency Measures.
2002 Base Year Inventory for
VOC, NOX, and CO.
*
*
Maryland portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area.
6/4/07
*
*
6/11/10 [Insert page number
where the document begins].
6/4/07
6/11/10 [Insert page number
where the document begins].
6/4/07
6/11/10 [Insert page number
where the document begins].
2008 RFP Transportation Conformity Budgets.
Maryland portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area.
Maryland portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area.
3. Section 52.1075 is amended by
adding paragraph (j) to read as follows:
■
§ 52.1075
Base year emissions inventory.
*
*
*
*
*
(j) EPA approves as a revision to the
Maryland State Implementation Plan the
2002 base year emissions inventories for
the Maryland portion of the
Philadelphia 1997 8-hour ozone
moderate nonattainment area submitted
by the Secretary of the Maryland
Department of the Environment on June
4, 2007. This submittal consists of the
2002 base year point, area, non-road
mobile, and on-road mobile source
inventories in area for the following
pollutants: volatile organic compounds
(VOC), carbon monoxide (CO) and
nitrogen oxides (NOX).
■ 4. Section 52.1076 is amended by
adding paragraphs (s) and (t) to read as
follows:
§ 52.1076 Control strategy plans for
attainment and rate-of-progress: Ozone.
*
*
*
*
*
(s) EPA approves revisions to the
Maryland State Implementation Plan
consisting of the 2008 reasonable further
progress (RFP) plan, reasonably
available control measures, and
Additional
explanation
*
contingency measures for the Maryland
portion of the Philadelphia 1997 8-hour
ozone moderate nonattainment area
submitted by the Secretary of the
Maryland Department of the
Environment on June 4, 2007.
(t) EPA approves the following 2008
RFP motor vehicle emissions budgets
(MVEBs) for the Maryland portion of the
Philadelphia 1997 8-hour ozone
moderate nonattainment area submitted
by the Secretary of the Maryland
Department of the Environment on June
4, 2007:
TRANSPORTATION CONFORMITY EMISSIONS BUDGETS FOR THE MARYLAND PORTION OF THE PHILADELPHIA AREA
Type of control strategy SIP
Year
VOC
(TPD)
NOX
TPD)
Rate of Progress Plan ....................
2008
2.3
7.9
[FR Doc. 2010–13687 Filed 6–10–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2007–0993; FRL–9160–2]
Approval and Promulgation of
Implementation Plans; New Mexico;
Interstate Transport of Pollution
WReier-Aviles on DSKGBLS3C1PROD with RULES
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is approving a portion of
a State Implementation Plan (SIP)
submitted by the State of New Mexico
for the purpose of addressing the ‘‘good
neighbor’’ provisions of the Clean Air
Act (CAA) section 110(a)(2)(D)(i) for the
1997 ozone National Ambient Air
Quality Standard (NAAQS) and the
1997 PM2.5 NAAQS. This SIP revision
satisfies a portion of the State of New
Mexico’s obligation to submit a SIP that
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
Effective date of adequacy determination or SIP approval
April 13, 2009, (74 FR 13433), published March 27, 2009.
demonstrates that adequate provisions
are in place to prohibit air emissions
from adversely affecting another state’s
air quality through interstate transport.
This rulemaking action is being taken
under section 110 of the CAA and
addresses one element of CAA section
110(a)(2)(D)(i), which pertains to
prohibiting air pollutant emissions from
within New Mexico from contributing
significantly to nonattainment of the
1997 8-hour ozone and PM2.5 NAAQS in
any other state.
DATES: This final rule will be effective
July 12, 2010.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R06–OAR–
2007–0993. All documents in the docket
are listed at www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
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
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
form. Publicly available docket
materials are available either
electronically through
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 Freedom of
Information Act (FOIA) Review Room
between the hours of 8:30 a.m. and 4:30
p.m. weekdays except for legal holidays.
Contact the person listed in the FOR
FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
214–665–7253 to make an appointment.
If possible, please make the
appointment at least two working days
in advance of your visit. There will be
a 15 cent per page fee for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT:
Emad Shahin, Air Planning Section
(6PD–L), Environmental Protection
E:\FR\FM\11JNR1.SGM
11JNR1
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–6717; fax number
(214) 665–7263; e-mail address
shahin.emad@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the
EPA.
Outline
I. What action is EPA taking?
II. What is the background for this action?
III. What comments did EPA receive and how
has EPA responded to them?
IV. Final Action
V. Statutory and Executive Order Reviews
WReier-Aviles on DSKGBLS3C1PROD with RULES
I. What action is EPA taking?
We are approving a portion of the
submission from the State of New
Mexico demonstrating that New Mexico
has adequately addressed one of the
required elements of the CAA section
110(a)(2)(D)(i), the element that
prohibits air pollutant emissions from
sources within a state from contributing
significantly to nonattainment of the
relevant NAAQS in any other state. We
have determined that emissions from
sources in New Mexico do not
significantly contribute to
nonattainment of the 1997 8-hour ozone
NAAQS or the 1997 PM2.5 NAAQS in
any other state. Because emissions from
sources in New Mexico do not
significantly contribute to
nonattainment in any other state,
section 110(a)(2)(D)(i)(I) does not
require any substantive changes to New
Mexico’s SIP.
The remaining three elements of
section 110(a)(2)(D) are that a state’s SIP
contain adequate provisions to prevent:
Interference with maintenance of the
NAAQS in any other state; interference
with measures required to prevent
significant deterioration of air quality in
any other state; and interference with
measures required to protect visibility
in any other state. EPA will evaluate the
New Mexico SIP and SIP submissions
for compliance with these other
requirements of section 110(a)(2)(D) for
the 1997 8-hour ozone and 1997 PM2.5
NAAQS in future rulemakings.
II. What is the background for this
action?
On July 18, 1997, EPA promulgated
new standards for 8-hour ozone and fine
particulate matter (PM2.5). This action is
being taken in response to the July 18,
1997 revision to the 8-hour ozone
NAAQS and PM2.5 NAAQS. This action
does not address the requirements for
the 2006 PM2.5 NAAQS or the 2008 8hour ozone NAAQS; those standards
will be addressed in a later action.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
Section 110(a)(1) of the CAA requires
states to submit SIPs to address a new
or revised NAAQS within 3 years after
promulgation of such standards, or
within such shorter period as EPA may
prescribe. Section 110(a)(2) lists the
elements that such new SIPs must
address, as applicable, including section
110(a)(2)(D)(i) which pertains to
interstate transport of certain emissions.
On August 15, 2006, EPA issued its
‘‘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’’ (2006 Guidance) for SIP
submissions that states should use to
address the requirements of section
110(a)(2)(D)(i). EPA developed this
guidance to make recommendations to
states for making submissions to meet
the requirements of section 110(a)(2)(D)
for the 1997 8-hour ozone NAAQS and
1997 PM2.5 NAAQS.
On September 17, 2007, EPA received
a SIP submission from the State of New
Mexico to address the requirements of
section 110(a)(2)(D)(i) for both the 1997
8-hour ozone NAAQS and 1997 PM2.5
NAAQS. The state based its submittal
on EPA’s 2006 Guidance. As explained
in the 2006 Guidance, the ‘‘good
neighbor’’ provisions in section
110(a)(2)(D)(i) require each State to
submit a SIP that contains adequate
provisions to prohibit emissions from
sources within that state from adversely
affecting another state in the ways
contemplated in the statute. Section
110(a)(2)(D)(i) contains four distinct
requirements related to the impacts of
interstate transport. In this rulemaking
EPA is addressing only the requirement
that pertains to preventing sources in
the state from emitting pollutants in
amounts which will contribute
significantly to nonattainment of the
1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS in any other state.
In its submission, the State of New
Mexico indicated that its current SIP is
adequate to prevent such significant
contribution to nonattainment in any
other state, and thus no additional
emissions controls are necessary at this
time to alleviate interstate transport.
On April 8, 2010, we published a
direct final rule and a parallel proposal
to approve the portion of New Mexico’s
SIP submission that addressed one
element of the CAA section
110(a)(2)(D)(i), which pertains to
prohibiting air pollutant emissions from
within New Mexico from contributing
significantly to nonattainment of the
1997 8-hour ozone and 1997 PM2.5
NAAQS in any other state (75 FR
17868). The direct final rule and
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
33175
proposal stated that if EPA received any
relevant adverse comments during the
public comment period ending on May
10, 2010, then EPA would withdraw the
direct final rule and respond to such
comments in a subsequent final action
based upon the proposal. EPA received
adverse comments during the comment
period, and accordingly EPA withdrew
the direct final rule on May 3, 2010 (75
FR 23167). The April 8, 2010, proposal
(75 FR 17894) provides the basis for
today’s final action.
III. What comments did EPA receive
and how has EPA responded to them?
EPA received three comment letters
on the April 8, 2010, direct final rule
and proposal. The letters can be found
on the internet in the electronic docket
for this action. To access the letters,
please go to https://www.regulations.gov
and search for Docket No. EPA–R06–
OAR–2007–0993, or contact the person
listed in the FOR FURTHER INFORMATION
CONTACT paragraph above. The
discussion below addresses those
comments and our response.
A. Comments From WildEarth
Guardians
Comment No. 1—The commenter
argued that New Mexico and EPA did
not appropriately assess impacts to
nonattainment in downwind states.
According to the commenter, New
Mexico failed to assess the significance
of downwind impacts in accordance
with EPA precedent and refers to the
1998 NOX SIP Call.
EPA Response—EPA disagrees with
the commenter 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 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
E:\FR\FM\11JNR1.SGM
11JNR1
33176
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
rulemaking. EPA does not agree,
however, that the approach of the NOX
SIP Call is 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
with recommendations to states about
how to address section 110(a)(2)(D) in
SIP submissions for the 1997 8-hour
ozone 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, 2006.1 This
guidance document postdated the NOX
SIP Call, and was developed by EPA
specifically to address SIP submissions
for the 1997 8-hour ozone NAAQS.
Within the 2006 Guidance, 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.’’ 2 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.’’ 3
To that end, EPA specifically
recommended that states located within
the geographic region covered by the
Clean Air Interstate Rule (CAIR) 4
comply with section 110(a)(2)(D) for the
1997 8-hour ozone 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.
EPA explicitly recommended that
relevant information for section
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 8hour Ozone and PM2.5 National Ambient Air
Quality Standards (Aug. 15, 2006) (‘‘2006
Guidance’’); p. 3.
2 Id. at 3.
3 Id.
4 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).
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
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.’’ 5 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 interstate transport.
The commenter did not acknowledge
or discuss EPA’s actual guidance for
section 110(a)(2)(D) SIP submissions for
the 1997 8-hour ozone NAAQS, and
thus it is unclear whether the
commenter was aware of it. In any
event, EPA believes that the New
Mexico submission and EPA’s
evaluation of it is consistent with EPA’s
guidance for the 1997 8-hour ozone
NAAQS. For example, as discussed in
the direct final notice, the State of New
Mexico and EPA considered
information such as monitoring data in
other 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 are consistent with the
concepts of the NOX SIP Call referenced
by the commenter: (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 New
Mexico submission at issue here would
5 Id.
PO 00000
at 5.
Frm 00018
Fmt 4700
Sfmt 4700
be that because the available evidence
indicates that there is so very little
contribution of emissions from New
Mexico 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. 2—The commenter
believes that New Mexico and EPA did
not appropriately assess impacts to
nonattainment in downwind states in
terms of air quality. Specifically, the
commenter objected to EPA’s proposed
approval because New Mexico assessed
impacts in downwind states by
considering only areas that had
monitoring data as for evaluating
significant contribution to
nonattainment. In other words, the
commenter is concerned that New
Mexico did not assess impacts in areas
that have no monitor. The commenter
implied 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, the commenter 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 the commenter, 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, the
commenter 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
the commenter’s arguments. First, the
commenter misunderstands the point
that EPA was making in the quoted
statement from the NOX SIP Call
proposal (and that EPA has
subsequently made in the context of
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
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.
The commenter’s misunderstanding
of EPA’s statement concerning
designation status evidently caused the
commenter 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.6
Finally, EPA disagrees with the
commenter’s argument that the
6 Michigan v. U.S. EPA, 213 F.3d 663, 674–681
(DC Cir. 2000); North Carolina v. EPA, 531 F.3d
896, 913–916 (DC Cir. 2008) (upholding EPA
approach to determining threshold despite
remanding other aspects of CAIR).
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
assessment of significant contribution to
downwind nonattainment must include
evaluation of impacts on non-monitored
areas. Neither section 110(a)(2)(D)(i)(I)
provisions, nor the 2006 Guidance EPA
issued for the 1997 8-hour ozone
NAAQS, support the commenter’s
position, as neither refers to any explicit
mandatory or recommended approach
to assess air quality in non-monitored
areas.7 The same focus on monitor 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.8 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, the commenter 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 NAAQS or of
the 1997 PM2.5 NAAQS in a particular
area.
EPA did not use photochemical
modeling to determine if an area is
violating the 1997 8-hour ozone or 1997
PM2.5 NAAQS to designate the area as
nonattainment without supporting
monitoring data. EPA’s regulations for
these NAAQS, the monitoring
requirements for these NAAQS, and
EPA’s guidance for designations for
these NAAQS provide for such
designations for violating areas to be
based only on monitoring data. In
addition, this is reasonable for these
particular NAAQS because
photochemical models, while based on
7 2006
Guidance, p. 5.
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.’’ See, 62 FR 60336.
33177
the best science available, only provide
a best estimate of air quality. EPA’s 2007
modeling guidance 9 recognizes that
model results and projections will
continue to have uncertainty.
Therefore, even if modeling analyses
indicated violation of the 1997 8-hour
ozone NAAQS in other states, EPA
would not make a determination that
these areas should be designated
nonattainment for these NAAQS
without monitoring data in the area to
support a determination of
nonattainment. In summary, in order for
there to be significant contribution to
nonattainment for either of these
specific 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 New Mexico contribute
significantly to ozone 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, and EPA modeling guidance.
Comment No. 3—In support of its
comments that EPA should assess
significant contribution to
nonattainment in nonmonitored areas,
the commenter argued that existing
modeling performed by another
organization ‘‘indicates that large areas
of neighboring states will be likely to
violate the ozone NAAQS.’’ According
to the commenter, 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’’).10 In short, the commenter
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
of states adjacent to New Mexico.
EPA Response—EPA disagrees with
this comment on several grounds. First,
EPA does not agree that it is appropriate
when satisfying the requirements of
Section 110(a)(2)(D) to evaluate
significant contribution to
nonattainment for the 1997 8-hour
ozone NAAQS by modeling ambient
8 ‘‘Based
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
9 EPA–454/B–07–002, April 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,
available at https://www.epa.gov/scram001/
guidance/guide/final-03-pm-rh-guidance.pdf.
10 The presentation is available for review as
Document ID # EPA–R06–OAR–2007–0993–0008.9
at Regulations.gov, Docket ID # EPA–R06–OAR–
2007–0993.
E:\FR\FM\11JNR1.SGM
11JNR1
33178
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
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, the commenter’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 fourth
maximum ozone reading for the year
2018, and as indicating that ‘‘* * * air
quality * * * will exceed or violate
[emphasis ours] the 1997 ozone
NAAQS.’’ By definition, a one year
value of the fourth maximum above the
NAAQS only constitutes an exceedance
of the NAAQS; to constitute a violation
of the 1997 8-hour ozone NAAQS, the
average of the fourth high for three
consecutive years at the same monitor
must exceed the standard. Thus, even if
the WRAP presentation submitted by
the commenter were technically sound,
the conclusion drawn from it by the
commenter is inaccurate and does not
support its claim of projected violations
of the NAAQS in large areas (monitored
or unmonitored) of New Mexico’s
neighboring states.
Even if EPA believed that it was
appropriate to use modeling to establish
violations of the 1997 8-hour ozone
NAAQS, EPA has reviewed the WRAP
presentation submitted by the
commenter, 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) 11 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.12
Environ has developed revised vertical
velocity algorithms in a new version of
CAMx that eliminated the excessive
downward transport of ozone from the
11 This document is available for review at the
regulations.gov Web site under Docket ID No. EPA–
R06–OAR–2007–0993.
12 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,’’ pp. ES–3, ES–4, 3–4, 3–12, 3–30, 5–1.
Prepared for the New Mexico Environment
Department, Air Quality Bureau, Santa Fe, NM, by
ENVIRON International Corporation, Novato, CA.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
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 the commenter’s concerns about
large areas of other states violating the
1997 8-hour ozone NAAQS projected for
2018 in areas without monitors.
Comment No. 4—As additional
support for its assertion that EPA should
require modeling to assess ambient
levels in unmonitored portions of other
states, the commenter relied on an
additional study entitled the ‘‘2009
Uinta Basin Air Quality Study’’
(UBAQS). The commenter argued that
the UBAQS further supports its concern
that New Mexico and EPA, having
limited the evaluation of downwind
impacts only to areas with monitors,
failed to assess ozone nonattainment in
non-monitored areas. According to the
commenter, UBAQS modeling 13 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
southwestern corner of Utah are also
currently in nonattainment and will be
in nonattainment in 2012.14
EPA Response—As noted above, EPA
does not agree that it is appropriate to
assess significant contribution to
nonattainment for the 1997 8-hour
ozone NAAQS in the way advocated by
the commenter. In particular, EPA does
not agree that it is necessary to evaluate
significant contribution to areas where
only the model predicts nonattainment
where there are no monitors. Even if
EPA felt it was appropriate to use model
results to determine areas that are not
attaining the standard, EPA does not
agree that the modeled nonattainment of
the 1997 8-hour ozone NAAQS (current
and projected) in the Wasatch Front
Range area in the UBAQS supports the
commenter’s concerns about the need to
evaluate the possibility of significant
contribution from New Mexico to
nonattainment in these areas. Based on
what the commenter presented, EPA
sees several problems with the
commenter’s interpretation of the
UBAQS analysis results for counties in
Utah’s southwestern corner: ‘‘based on
13 In this action the expression ‘‘UBAQS’’ refers to
the ‘‘FINAL REPORT UBAQS TECHNICAL
REPORT’’, June 30, 2009. The presentation is
available for review as Document ID # EPA–R06–
OAR–2007–0993–0008.9 at regulations.gov, Docket
ID # EPA–R06–OAR–2007–0993.
14 UBAQS. The southwestern area referred to by
the commenter includes portions of Washington,
Iron, Kane, and Garfield Counties.
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
2005 meteorological data, portions of
Washington, Iron, Kane, and Garfield
Counties are also in nonattainment and
will be in nonattainment in 2012.’’ 15
First, the commenter’s interpretation of
the predicted ozone concentrations
shown in Figures 4–3a and 4–3b (pages
4 and 5 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 the
exact modeled value is not specified
and there are only three grid cells with
this value range estimated. If the actual
model prediction is less than or equal to
84.94 ppb then the area is attaining the
1997 8-hour ozone NAAQS, if it is
predicted as greater than 84.94 ppb then
the modeling is indicating that it is not
attaining those NAAQS. Thus, the
current and predicted design values for
the three grid cells in 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. EPA does not believe
that this evidence adequately
establishes that one or both areas
definitely violate the NAAQS, even if
the information were taken at face
value.
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.16 The study deviates in at least
two significant ways from EPA’s 2007
guidance on SIP modeling.17 One
deviation is the UBAQS modeling
reliance on fewer than the five years of
data recommended by EPA to generate
an 8-hour ozone current 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 deviation is in the
computation of the relative responsive
15 WG’s April 16, 2010 comment letter, pp. 3. The
letter is available for review at the regulations.gov
Web site Docket ID No. EPA–R06–OAR–2007–0993.
Page three of the commenter’s letter.
16 See UBAQS, pp. 4–27 to 4–29.
17 EPA, 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 (2007), available at https://www.epa.gov/
scram001/guidance/guide/final-03-pm-rhguidance.pdf.
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
factor (RRF), which directly affects the
modeling’s future design value (DVF).18
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.19 Also,
looking at Figures 3–19a–j of the
UBAQS report, which cover ozone
modeling performance through
September of 2005, shows the modeling
to have an over prediction bias for
ozone. So, EPA concludes that the
modeling analysis results provided by
the commenter are unreliable for
projecting nonattainment status even if
EPA believed it was appropriate to use
modeling for this purpose for the 1997
8-hr ozone NAAQS.
Finally, even if it were appropriate to
consider modeled violations and the
modeling were reliable for this purpose,
the commenter has not raised any
convincing evidence that emissions
from New Mexico sources are impacting
southwestern Utah during the predicted
high ozone events. Specifically, no
assessment or source apportionment
was performed that indicated sources in
New Mexico contributed to the three
grid cells with modeled high values that
may be modeled nonattainment values
in Utah. In fact, the predominant wind
direction would not carry emissions
from New Mexico into southwestern
Utah. Furthermore, in evaluating the
Figures provided (Fig 4–3a to 4–4b) and
other information in the modeling
report, the modeling also does not
indicate that emissions from New
Mexico are impacting the higher
modeled ozone values in the
southwestern Utah area.
In summary, EPA does not agree that
it is appropriate for purposes of section
110(a)(2)(D) to use modeled
nonattainment as a basis for evaluation,
for these two NAAQS (1997 8-hour
ozone NAAQS and PM 2.5 NAAQS)
especially in light of the concerns with
the modeling discussed above. Even if
EPA were to use modeling for this
purpose, the UBAQS modeling analyses
does not clearly predict violations of the
1997 8-hour ozone NAAQS in western
Colorado and eastern Utah. In
particular, the UBAQS modeling does
not clearly establish violations of the
NAAQS in southwestern Utah because
of the way the results were reported.
Significantly, the model does project
violations in the Salt Lake City area (in
2006 and 2012 model years), but
monitors in the area do not substantiate
18 Id.,
19 See
DVC × RRF = DVF.
UBAQS, p. 4–28.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
these modeled predictions. Based on
monitoring data for 2007–2009, the Salt
Lake City area does not have a
monitored design value within 6 ppb of
the level of the 1997 8-hour ozone
NAAQS. In addition, EPA does not
consider the UBAQS modeling reliable
because the modeling deviates from
EPA guidance and appears to have an
over-prediction bias. Finally, the
commenter did not provide evidence
that emissions from New Mexico in fact
contributed significantly to the modeled
exceedances or violations projected in
this modeling.
Comment No. 5—In support of its
arguments that EPA should not assess
significant contribution to
nonattainment through evaluation of
impacts at monitors instead of modeling
impacts where there is no such monitor,
the commenter cited a past statement by
EPA to the effect that the ozone
monitoring 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 nonurban monitors.’’ 74 FR 34525 (July 16,
2009). From this statement, the
commenter argues that it is not
appropriate for EPA to limit evaluation
of significant contribution to
nonattainment of the ozone NAAQS in
other states to reliance on monitoring
data instead of modeled ambient levels.
EPA Response—EPA does not
disagree that there are relatively few
ozone monitors in the western states,
and that relatively few of these ozone
monitors are currently located in nonurban 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 the 1997 8-hour ozone
NAAQS, the subject of this rulemaking,
but rather the next iteration of the ozone
NAAQS. Because the new ozone
standard is likely to be significantly
more stringent than the 1997 8-hour
ozone NAAQS, it is anticipated 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 a newer ozone NAAQS
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
33179
does not 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 the deployment of monitors
in the state meets the applicable
regulatory requirements and guidance
recommendations.
For example, New Mexico itself
submits just such a report on an annual
basis, and EPA reviews it for
adequacy.20 All states submit
comparable reports. Absent a specific
concern that another state’s current
monitor network is inadequate to
evaluate ambient levels of the 1997
8-hour ozone NAAQS, EPA has no
reason to believe that the evaluation of
possible significant contribution from
New Mexico sources in reliance on
those monitors is incorrect.
Comment No. 6—The commenter
objected to EPA’s proposed approval of
the New Mexico’s SIP submission
because neither New Mexico nor EPA
performed a specific modeling analysis
to assure that emissions from New
Mexico sources do not significantly
contribute to nonattainment of the 1997
8-hour ozone NAAQS in downwind
States.
EPA Response—First, this comment is
incorrect. EPA and New Mexico did
provide modeling as part of the
evaluation of whether emissions from
sources in New Mexico impact monitors
with violating data in other states. The
modeling is discussed in the proposed
federal register and technical support
document for this action and is one of
the primary considerations in EPA’s
approval. The modeling that the
commenter claims is necessary but
absent, is modeling to assess impacts in
areas with no monitors. As explained
above, EPA believes that the assessment
of significant contribution to
nonattainment under section
110(a)(2)(D) for these NAAQS should be
based upon impacts at monitors.
Second, EPA disagrees with the
commenter’s belief that only modeling
can establish whether or not there is
significant contribution from one state
to another. 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
20 See the New Mexico Annual Monitoring
Network Plan dated July 14, 2009. The plan is
available for review at the regulations.gov Web site
under Docket ID No. # EPA–R06–OAR–2007–0993.
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
33180
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
recommended other forms of
information that states might wish to
evaluate as a qualitative approach as
part of their section 110(a)(2)(D)
submissions for the 1997 8-hour ozone
NAAQS. EPA has concluded that the
qualitative approach used by New
Mexico in addition to modeling to
assess the existence of, and extent of,
any significant contribution to
downwind ozone nonattainment is
consistent with EPA’s 2006 Guidance.
Comment No. 7—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), the commenter 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.21 The commenter 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 New Mexico’s 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).
EPA Response—As explained above,
this comment is misplaced because EPA
and New Mexico did employ modeling
as part of the evaluation. Further, EPA
disagrees with the commenter’s
fundamental argument that modeling is
mandatory in all instances in order 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 could lead to
demonstration of the satisfaction of the
interstate transport requirements for
significant contribution to
21 WG’s April 16, 2010 comment letter, pp. 8–9.
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–R06–OAR–2007–0993–0008.3 through 0993–
0008.6.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
nonattainment in other states. 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.’’ Even EPA’s
own CAIR analysis relied on a
combination of qualitative and
quantitative analyses. EPA’s CAIR
analysis excluded certain western states
on the basis of a qualitative assessment
of topography, geography, and
meteorology.22
Furthermore, EPA believes that the
commenter’s references to EPA
statements commenting on the actions
of other agencies are inapposite. As the
commenter is aware, those comments
were made in the context of the
evaluation of the impacts of various
federal actions pursuant to National
Environmental Policy Act, not the Clean
Air Act. As explained above, in the
context of section 110(a)(2)(D), EPA
does not agree that only modeling is
always required to make that different
type of evaluation, and EPA itself has
relied on other more qualitative
evidence when it deemed that evidence
sufficient to reach a reasoned
determination.
Comment No. 8—In further support of
its argument that EPA should require a
specific type of modeling to evaluate
significant contribution to
nonattainment, the commenter 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
22 See
PO 00000
69 FR 4581, January 30, 2004.
Frm 00022
Fmt 4700
Sfmt 4700
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 sources in New Mexico do not
contribute significantly to
nonattainment for the 1997 8-hour
ozone NAAQS in any other state
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). This modeling
may also be appropriate under certain
circumstances for maintenance SIPs
under section 110(a)(1). Thus, the
commenter’s cited regulation is not
relevant to EPA’s technical
demonstration assessing whether
emissions from New Mexico contribute
significantly to nonattainment in any
other states under section
110(a)(2)(D)(i).
Comment No. 9—The commenter
expressed concern with EPA statements
in the proposed approval about the
current factual attainment of the Denver
Metro/North Front Range area of
Colorado. The commenter noted that
nine counties in the Denver area are
currently formally designated
‘‘nonattainment’’ for the 1997 8-hour
ozone NAAQS. The commenter took
issue with EPA’s description of the
nature of the nonattainment problem in
this area as resulting from an unusually
bad ozone season that ‘‘temporarily’’
resulted in violations of the NAAQS.
The commenter argued that data from
the 2001–2003 period and the 2005–
2007 period showed consistent
violations of the 1997 8-hour ozone
NAAQS in the Denver area, and that
these violations are the reason for the
current nonattainment designation.
EPA Response—EPA disagrees that
formal designation status of an area is
the most important consideration in
evaluating the existence of, and extent
of, the impacts of interstate transport
from one state to another. In past actions
under section 110(a)(2)(D), EPA has
interpreted that provision to turn upon
the actual monitored ambient levels in
a downwind area, regardless of the
formal designation status of the area.
For example, EPA developed the CAIR
E:\FR\FM\11JNR1.SGM
11JNR1
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
rule based upon evaluation of monitor
data showing violations of the 1997
PM2.5 NAAQS in certain areas, in
advance of completing the designation
process for those NAAQS under section
107(d). 23 EPA agrees that the
designation status of an area is a
relevant consideration, but the actual
monitored ambient levels are an
appropriate measure, especially when
there is evidence that the monitored
levels are different than reflected by the
designation for the area. EPA itself has
also looked to future attainment status
as a means of evaluating the presence of,
and extents of, interstate transport. This
analysis depends not upon the
anticipated formal designation status of
the area, but rather upon the anticipated
monitored level of the area.24
EPA believes that the commenter is
placing undue importance upon the
EPA’s characterization of the data from
Denver area monitors as ‘‘temporarily’’
in nonattainment based on the ‘‘bad’’
ozone season of 2007. EPA agrees that
this area has historically had relatively
high ambient levels. However, as
explained in the proposal, these levels
have improved, and more importantly,
have improved during the period that is
most relevant and most recent. As noted
in the proposal, recent monitoring data
from the Denver area for the 2007–2009
period indicates that the area is below
the level of the NAAQS. For this trend
to change, EPA anticipates that the
Denver area would have to have
dramatically higher ozone levels in 2010
than the area has experienced for many
years. EPA believes that it is more
reasonable to conclude that the
monitored attainment of this area at the
time of the analysis done by New
Mexico will continue. Therefore there
could not be significant contribution
from sources in New Mexico to
nonattainment in Denver.
EPA believes that the downward
trend in monitored nonattainment in the
Denver area supports this conclusion.
At the time the modeling was performed
to support the state’s section
110(a)(2)(D) submission, Denver was
monitoring attainment (the 2004–2006
8-Hour Ozone Design Value (DV) was 81
ppb).25 In 2007, the Denver area
experienced a particularly bad ozone
season, and inclusion of the data from
23 See: Final CAIR rule, 70 FR 25,162, 25,263–
25,269.
24 EPA notes that the commenter itself also made
the argument that nonattainment for purposes of
section 110(a)(2)(D) should be viewed ‘‘in terms of
air quality, and not in terms of area designations’’
on page 2 of its own comment letter.
25 Data from EPA’s Air Quality System which is
EPA’s repository of ambient air quality data.
(https://www.epa.gov/ttn/airs/airsaqs/).
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
this year did temporarily affect the
monitored values in this area. However,
the most recent data for this area,
preliminary data for 2007–2009 DV
(awaiting final data validation), is 82
ppb even with inclusion of the very
high ozone values from 2007. Thus, the
area’s most recent DV based upon
preliminary data is several ppb below
the 1997 8-hour ozone NAAQS, and the
area is therefore currently monitoring
attainment.
The downward trend in ozone
concentrations is in part the result of a
sustained effort to attain the NAAQS in
the Denver area. The Denver area has
seen a drop in ozone levels in the last
10 years attributable in part to federal
measures that have reduced mobile
source emissions. In addition, Colorado
adopted an Ozone Action Plan in
December 2008 that included additional
reductions in emissions of ozone
precursors (NOX and VOCs), that will
further aid the area in maintaining
attainment. Given these facts, EPA
concludes that the monitored
attainment of the 1997 8-hour ozone
NAAQS in the Denver area is likely to
continue.
Comment No. 10—The commenter
also disputed the EPA statement in the
proposal that it is ‘‘unlikely that Denver
will be in nonattainment at the end of
the 2010 ozone season,’’ and questioned
why EPA did not cite or include any
actual model data to support this
assertion. The commenter specifically
took issue with EPA’s reference to the
‘‘2010 ozone season’’ in the proposal
because section 110(a)(2)(D) would
prohibit significant contribution to
nonattainment at all times, not simply
during the ‘‘2010 ozone season.’’
EPA Response—As discussed above,
EPA believes the monitoring data
adequately demonstrates that the
Denver area is attaining the standard
and is likely to continue to do so. The
commenter is correct that EPA did not
cite modeling that showed that Denver
would be in attainment in 2010 in the
proposal. We are aware, however, of the
photochemical modeling for Denver
completed as part of the ‘‘Ozone Action
Plan’’ adopted by Colorado in December
2008.26 This plan included the benefits
of federal measures and fleet turnover
and additional local NOX and VOC
reductions. The plan also included
photochemical modeling that indicated
all monitors in the area would be in
attainment of the 1997 8-hour ozone
NAAQS in 2010. The modeling results
26 ‘‘Denver Metro Area & North Front Range
Ozone Action Plan Including Revisions to the State
Implementation Plan’’, Approved by Colorado Air
Quality Control Commission, December 12, 2008.
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
33181
supplement the monitoring results
discussed previously indicating the area
is in attainment and will be in
attainment in 2010.
Further, EPA believes that the
commenter is mistakenly assuming that
EPA’s reference to the ‘‘2010 ozone
season’’ implied that section 110(a)(2)(D)
would not require the elimination of
emissions from sources in an upwind
state that significantly contributed to
violations of a NAAQS at any time of
the year. In the case of the 1997 8-hour
ozone NAAQS, however, it is a fact that
there is an ‘‘ozone season’’ in many
places across the county. Higher ozone
concentration levels typically occur
during the warmer, sunnier portions of
the year, especially the summer. Like
most areas, Denver has an ozone season.
Therefore, it is not unreasonable for
EPA to evaluate the likely impacts of
data from monitors in this area during
the ‘‘ozone season.’’
EPA also disagrees that an evaluation
focused on impacts on 2010 levels is not
adequate for purposes of section
110(a)(2)(D). As further discussed
elsewhere in this notice, EPA’s 2006
Guidance to states for section
110(a)(2)(D) SIP submissions
recommended that states might elect to
evaluate the existence of, and extent of,
significant contribution to
nonattainment in other states by
evaluating impacts as of an appropriate
year (such as 2010) and in light of the
cost of control to mitigate emissions that
resulted in interstate transport. EPA
itself in the context of the CAIR rule
evaluated whether there would be such
impacts in 2010. This year was a
reasonable choice, because it correlated
with the presumptive attainment dates
for states with nonattainment areas. For
example, in the case of the 1997 PM2.5
NAAQS, the applicable attainment date
is as expeditiously as practicable, but
not later than five years from the
effective date of the designation, i.e., by
2010. Because 2010 is a reasonable date
for this analysis, given the purpose of
section 110(a)(2)(D), and is consistent
with EPA’s recommendations in the
2006 Guidance, EPA concludes that the
selection of this date for the analysis
supporting the New Mexico submission
was appropriate. The commenter did
not suggest another date that would be
more appropriate nor did they explain
the basis for requiring a different year
for this analysis.
Comment No. 11—The commenter
also asserted that EPA was wrong in
stating that the Denver area had not
experienced a 4th highest 8-hour ozone
reading of 92 ppb in the last 15 years.
The commenter claimed that the Denver
metro area experienced a 4th highest
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
33182
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
max of 95 ppb at the Roxborough Park
monitor in Douglas County in 2005 and
of 95 ppb at the Applewood monitor in
Jefferson County in 1998 and in 2003.
EPA Response—In response to this
comment, EPA rechecked the data in the
EPA’s Air Quality System (AQS) and
believes the commenter was in error
that a fourth highest maximum of 95
ppb occurred at the Roxborough Park
(also know as the Chatfield monitor)
monitor in 2005. EPA’s AQS indicates a
value of 84 ppb in 2005. However,
EPA’s AQS does indicate that a 95 ppb
4th high occurred in 2003 at the
Roxborough Park monitor and this may
be the date that the commenter
intended. In any event, upon closer
examination, EPA concludes that the
commenter is correct that values above
92 ppb have occurred in the Denver area
in the last 15 years.
EPA also notes that the current DVs
(2007–2009) for these two monitors
(Roxborough Park and Applewood) are
77 ppb and 76 ppb, which is well below
the 1997 8-hour ozone NAAQS.
Furthermore, these monitors would
have to have fourth high daily
maximum 8-hour monitored values of
104 and 111 ppb respectively in 2010 to
have a 2008–2010 DV violating the 1997
8-hour ozone NAAQS. The fourth high
daily maximum value monitored the
last 15 years in the Denver area was 95
ppb which is significantly lower than
the 104 or 111 ppb values that would
have to be monitored for either of these
two monitors to be violating the 1997 8hour ozone NAAQS.
Therefore, EPA believes that the
commenter’s correction that there have
been higher values (maximum of 95 ppb
in the last 15 years) at monitors in the
Denver area does not fundamentally
affect EPA’s evaluation in this case. The
higher values were not at the monitor
that was the basis for the Denver area
design value in the last several years.
The monitor that has been the basis for
the Denver area DV has been the Rocky
Flats North monitor. Even though the
commenter is correct that the area has
monitored higher values at certain
monitors in the past, these monitors are
not the monitors that have in recent
years determined whether the area will
continue to monitor attainment because
they have not recorded the highest
design value in the area. The Rocky
Flats North monitor has the highest
2007–2009 Denver area DV of 82 ppb
and is based upon fourth high values of
90 ppb in 2007, 79 ppb in 2008, and 79
ppb in 2009. This monitor would have
to have a fourth high daily maximum of
97 ppb in 2010 to result in a violation
of the 1997 8-hour ozone NAAQS.
Therefore, it does not change EPA’s
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
conclusion that the Denver area
continues to monitor attainment and
therefore emissions from sources in
New Mexico cannot be contributing
significantly to violations of the 1997 8hour ozone NAAQS in this area.
Comment No. 12—The commenter
also pointed to modeling data used by
New Mexico that appears to contradict
the conclusion that emissions from New
Mexico do not contribute significantly
to violations of the 1997 8-hour ozone
NAAQS in Denver. The commenter
argued that data available in New
Mexico’s own technical support
document that was part of EPA’s record
(Docket No. EPA–R06–OAR–2007–0993)
establish that emissions from New
Mexico sources ‘‘often contributes
greater than 2 parts per billion in ozone
on days when exceedances of the 1997
ozone NAAQS are recorded in Denver’’
and can contribute ‘‘more than 5% to
Denver’s total ozone concentrations.’’
Finally, the commenter argued that New
Mexico wrongly assumed that this
amount of contribution was not relevant
‘‘under the assumption that the region
was not in nonattainment’’ when the
area is currently designated
nonattainment.
EPA Response—EPA disagrees with
the commenter’s conclusions drawn
from the modeling. The modeling was
conducted using an emissions inventory
from 2002. Because emissions in the
year 2010 are expected to be lower, EPA
considers this modeling to be a
conservative estimate of ozone levels in
the future and of the impact of New
Mexico’s emissions on other states. EPA
believes that the modeling shows higher
impacts than are actually occurring. The
modeling utilized existing CENRAP
modeling databases available at the time
and the source apportionment
evaluation was conducted using the
2002 emission inventory databases.
Because the available databases were for
2002 and not 2010, EPA considers the
results of the modeling conservative
because significant emission reductions
are expected to occur throughout the
modeled area between 2002 and 2010
(as a result of both federal and state
measures, including fleet turnover
impacts) that would result in lower
ambient ozone levels and fewer
exceedances of the 1997 8-hour ozone
NAAQS throughout the modeling
domain.
Specifically, there are three elements
in this analysis that EPA concludes lead
to overestimation of the impacts of New
Mexico sources and therefore make this
modeling less reliable to determine that
sources in New Mexico contribute
significantly to violations of the 1997 8hour NAAQS in Colorado (or any other
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
state). These three elements that result
from using a 2002 and not a 2010
emission inventory are: (a) Additional
emissions reductions in other states as
a result of ozone nonattainment SIPs
have been implemented that were not
reflected in the 2002 emission
inventory; 27 (b) additional emissions
reductions as a result of federal
measures (including On-road, Non-road,
and the impacts of fleet turnover)
throughout the modeling domain since
2002; and (c) additional reductions from
large stationary NOX sources and from
mobile sources as a result of federal
measures that have occurred in New
Mexico since 2002. As a result of these
differences in the emission inventory
between 2002 and 2010, New Mexico’s
Technical Support Document describing
and evaluating the modeling indicated
that the impacts for New Mexico’s
emissions were considered conservative
estimates and were expected to
overstate the State’s contribution to
areas in other states. EPA believes that
these conservative assumptions make
the modeling reliable for purposes of
determining that there is not a
significant contribution from sources in
New Mexico to the other states, but less
reliable for purposes of determining that
there is such significant contribution.
EPA believes that the modeling relied
upon by the State is conservative
because of the three emission elements
discussed above and that this is further
supported by studies referred to by the
commenter. Other studies support the
conclusion that the Denver area will be
monitoring attainment in 2010 for the
1997 8-hour ozone NAAQS, and
therefore emissions from sources in
New Mexico would not be contributing
significantly to nonattainment in this
area. Specifically, the WRAP model
emission inventories for 2002 and 2018
showed decreases nationally in ozone
precursors (NOX and VOC.) 28 The
UBAQS modeling report included
emission inventory assessments
between 2006 and 2012 that also
showed decreases in New Mexico’s NOX
emissions for the part of New Mexico
27 Additional emission reductions have occurred
as a result of 1-hour ozone and 8-hour ozone
nonattainment area SIPs for Denver and other areas
in the modeling domain (Dallas, Houston, etc.). The
most recent SIP submitted indicated that all of the
Denver area monitors would be in attainment in
2010 with the 1997 8-hour ozone NAAQS. The
Denver SIP also included an analysis of emission
inventories in the Denver area that showed a net
decrease in NOX and VOC emissions between 2006
and 2010 (Ibid DOAP) despite the inclusion of
growth in Oil and Gas emissions in the Denver area.
(DOAP)
28 WRAP EDMS, https://vista.cira.colostate.edu/
TSS/EDMS.aspx.
E:\FR\FM\11JNR1.SGM
11JNR1
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
that was in the 12 km modeling grid.29
Finally, the fact that Denver is
monitoring attainment at this time is
further indication that the 2002
modeling was conservative because it
predicted exceedances in Denver, while
the 2010 monitoring data is showing
attainment.
Because the modeling was
conservative and overstates the extent of
contribution from sources in New
Mexico to the Denver area, it is
inappropriate to use the modeling as a
definitive determination of New
Mexico’s impacts on downwind areas.
The modeling was designed to be
conservative and as such only provides
a clear indication of non impact on
downwind nonattainment areas.
Therefore, EPA disagrees that the
modeling supports the conclusion of
significant contribution from New
Mexico sources to the Denver
nonattainment area as the commenter
indicated. The commenter is correct that
the CENRAP based modeling with a
2002 emission inventory showed
impacts that were above 2 ppb and
contribution levels that were above 5%,
but due to the conservative nature of the
2002 assessment, EPA does not
conclude that it indicates that sources in
New Mexico have a significant
contribution to nonattainment in
Denver.
EPA also believes that NOX emissions
in upwind states are the most relevant
consideration for interstate transport of
ozone. In the final CAIR rule, EPA
concluded that NOX emissions were the
primary pollutant to reduce in order to
yield reductions in interstate transport
of emissions that affect levels of ozone
in the context of the 1997 8-hour ozone
NAAQS.30 Recent photochemical
modeling in the New Mexico and
Colorado region further support this
conclusion, and therefore we have thus
focused on NOX emissions in the
context of ozone in this action as well.
As reflected in the New Mexico
submission and the UBAQS modeling
documentation, New Mexico has
decreased emissions of NOX from
several sources which would lessen
29 ‘‘UINTA BASIN AIR QUALITY STUDY
(UBAQS)’’, prepared by Environ for the
Independent Petroleum Association of Mountain
States (IPAMS), June 30, 2009. Tables 2–18 and 2–
20. The UBAQS 12 km grid included parts of
northwestern New Mexico (including parts of the
San Juan basin) and the emission inventory data
indicated that emissions of NOX from this area were
going to decrease from 115,942 tpy in 2006 to
95,867 tpy in 2012.
30 See: Final CAIR rule, 70 FR 25162, 25174 (‘‘As
discussed in section III below, for 8-hour ozone, we
reiterate the finding of the NOX SIP Call that NOX
emissions, and not VOC emissions, are of primary
importance for interstate transport purposes.’’)
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
New Mexico’s impact on ozone in areas
outside of New Mexico. Therefore, the
reductions in NOX emissions in New
Mexico would decrease the impacts
from New Mexico on Denver’s ambient
ozone levels when transport conditions
would occur that New Mexico’s
emissions could impact the Denver area.
A review of the UBAQS report indicates
New Mexico’s NOX reductions are
mostly from elevated point source
reductions (i.e., from tall stationary
source stacks). Elevated emissions
would have the greatest chance to
transport downwind, so these
reductions are likely among the most
effective at reducing long range
transport impacts on ozone levels
regionally. In any event, based on
preliminary 2007–2009 data, Denver is
attaining the 1997 8-hour ozone
NAAQS. Therefore, New Mexico’s
emissions cannot be considered as
contributing significantly to
nonattainment of those NAAQS in the
Denver area
In summary, the Denver area is
monitoring attainment of the 1997 8hour ozone NAAQS. The modeling
submitted by the State to support its
submission indicating impacts from
sources in New Mexico on the Denver
area is conservative, and probably
overestimates both the ozone levels in
Denver and any impacts from New
Mexico’s emissions. There have been
significant emission reductions in the
modeled area, supporting the
conclusion that the modeling based on
2002 represents a conservative
description of ozone levels and New
Mexico’s impact on the Denver area and
therefore should not be relied upon
solely to draw a conclusion about the
impact of emissions from New Mexico
in the Denver area. Considering the
modeling in conjunction with the
expected emission reductions and the
actual monitoring data in this area, EPA
concludes that emissions from New
Mexico are not contributing to
nonattainment of the 1997 8-hour ozone
NAAQS in the Denver area.
Comment No. 13—The commenter
argued that New Mexico and EPA
inappropriately relied on analyses
conducted in connection with CAIR to
justify its conclusion that emissions
from sources in New Mexico do not
contribute significantly to
nonattainment in downwind states with
regards to the 1997 PM2.5 NAAQS.
According to the commenter, neither of
the modeling analyses EPA used during
the development of the CAIR rule
supports the conclusion.
The commenter acknowledged that
the REMSAD modeling that EPA used
initially for CAIR in 2004 assessed
PO 00000
Frm 00025
Fmt 4700
Sfmt 4700
33183
emissions from New Mexico, but
claimed that EPA eventually ‘‘rejected’’
this modeling and replaced it with
analysis using the CMAQ model as a
more ‘‘accurate’’ means of assessing
PM2.5 impacts among states. The
commenter did note that EPA explained
in the final CAIR rule that it believed
the REMSAD model ‘‘treats the key
physical and chemical processes
associated with secondary aerosol
formation and transport,’’ but pointed to
EPA‘s statement that the REMSAD
model ‘‘does not have all the scientific
refinements of CMAQ’’ and also to
EPA’s use of the CMAQ modeling for
the final CAIR rule instead of the
REMSAD modeling. The commenter
thus implied that the REMSAD
modeling could have no relevance to
whether emissions from New Mexico
sources contribute significantly to
nonattainment in other states for
purposes of the 1997 PM2.5 NAAQS.
Similarly, the commenter argued that
the CMAQ modeling could not support
the conclusion that New Mexico sources
are not contributing significantly to
violations of the NAAQS in other states.
The commenter claimed that although
New Mexico was included in the CMAQ
PM2.5 modeling domain for CAIR, EPA
did not specifically assess impacts from
New Mexico to downwind States. The
commenter acknowledged that EPA
conducted state by state ‘‘zero out’’
modeling for 37 states, but claimed that
because EPA had not conducted such a
zero out modeling run for New Mexico,
the CMAQ model runs do not support
the proposed conclusion in this action.
EPA Response—EPA disagrees with
the commenter’s judgment that the
technical analyses conducted in
conjunction with CAIR do not provide
technical support for the conclusion
that New Mexico sources do not
contribute significantly to violations of
the 1997 PM2.5 NAAQS in any other
state. EPA agrees that it progressively
refined its analytical approach from the
time of the proposed CAIR rule to the
final CAIR rule, but it does not follow
that the analyses done for CAIR are
inappropriate for consideration in
today’s action. EPA believes that the
analyses conducted for CAIR in fact
provide technical support to the
conclusion that emissions from New
Mexico sources do not contribute
significantly to violations of these PM2.5
NAAQS in any other state.
EPA conducted modeling in the CAIR
proposal using REMSAD modeling.
With respect to the REMSAD modeling,
the commenter is correct that EPA
specifically evaluated the impact of
emissions from New Mexico on other
states in the eastern half of the United
E:\FR\FM\11JNR1.SGM
11JNR1
33184
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
modeling in the final CAIR rule.33 The
lack of significant impact on
nonattainment from New Mexico and
other Western States shown by the
REMSAD modeling in the proposal
helped influence the more refined
modeling analysis in the CAIR final rule
which focused only on the Eastern
States.
In considering this comment, EPA has
looked again at the use of the REMSAD
modeling for the CAIR proposal for
assessing New Mexico’s impacts on
other States. We continue to believe that
the REMSAD results are sufficient to
make a determination of no significant
contribution to nonattainment of the
1997 PM2.5 NAAQS in other states
because of the very small impacts that
were estimated from emissions from
New Mexico sources. The REMSAD
modeling had indicated that New
Mexico’s impacts on downwind 2010
PM2.5 nonattainment areas was only
15% of the significance level used in the
final CAIR rule. Because the REMSAD
modeling indicated values of only 15%
of the final significance level, EPA did
‘‘However, even though REMSAD does not
not consider the differences between the
have all the scientific refinements of CMAQ,
two modeling platforms (REMSAD and
we believe that REMSAD treats the key
CMAQ) to be significant enough to lead
physical and chemical processes associated
to further analysis using CMAQ based
with secondary aerosol formation and
modeling. EPA has determined in this
transport. Thus, we believe that the
action that the results from the
conclusions based on the proposal modeling
REMSAD based modeling continue to
using REMSAD are valid * * *’’
support the conclusion that emissions
from New Mexico sources are not
This was not a categorical dismissal of
contributing significantly to violations
REMSAD modeling for all purposes; it
of the 1997 PM2.5 NAAQS in other
was a recognition that REMSAD was
states. The commenter did not articulate
reliable for certain purposes even
though the subsequent CMAQ modeling any way in which the distinctions
between REMSAD and CMAQ would
was an improvement. During
result in at least a seven-fold increase in
rulemaking, it is appropriate for EPA to
make improvements and refinements to the estimated impacts of emissions from
New Mexico emissions on another
models and the associated databases.
state’s 1997 PM2.5 nonattainment area.
EPA responded to comments raising
EPA does not believe that such a
concerns about reliance on the REMSAD
divergence would be likely.
modeling results from the proposal
Comment No. 14—The commenter
package and determined that decisions
argued that it is also inappropriate for
and determinations based on the
EPA to rely on the CAIR modeling
proposal REMSAD modeling were still
because the 2004 REMSAD model did
valid in the final CAIR rule.
not include other western states
With respect to the CMAQ modeling,
(including Arizona, California, Nevada,
New Mexico was not among the 37
Utah, Idaho, Oregon, and Washington).
states for which it did specific ‘‘zero out’’ The commenter asserted that EPA never
modeling runs. EPA disagrees, however, assessed the impacts of emissions from
with the commenter’s extrapolation that New Mexico to these western states in
this means EPA ‘‘did not assess’’ the
the CAIR modeling and that this is
impacts of emissions from New Mexico
problematic because there are PM2.5
with respect to the 1997 PM2.5 NAAQS
nonattainment areas in California and in
in the final CAIR rule. To the contrary,
Utah. Although not clear, the
EPA’s evaluation of New Mexico with
commenter apparently argues that the
REMSAD was part of the analysis for the existence of designated PM2.5
proposed CAIR rule and EPA did not
33 In this action, ‘‘CAIR Proposal’’ refers to the
reject the results of the REMSAD
WReier-Aviles on DSKGBLS3C1PROD with RULES
States. The modeling indicated a 0.03
μg/m3 maximum impact from New
Mexico’s emissions on downwind
PM2.5 nonattainment areas in 2010,
which was significantly lower than the
0.15 μg/m3 value used as the threshold
for significance in the proposed CAIR
rule and the 0.20 μg/m3 value used in
the final CAIR rule.31 In other words,
EPA’s analysis indicated that the impact
of emissions from New Mexico sources
were only a small fraction of the initial
threshold amount that EPA considered
relevant as the first stage of the analysis
to determine the existence of, and extent
of, impact on other states.
The commenter implied that EPA’s
subsequent use of the CMAQ model for
the final CAIR rule per se renders
REMSAD invalid for purposes of today’s
action. To support this assertion, the
commenter overstated the potential
limitations of the REMSAD model, a
misimpression heightened by the way in
which the commenter described EPA’s
own stated position. The full statement
by EPA in the final CAIR rule was: 32
31 See,
32 See,
Final CAIR rule 70 FR 25162, at 25174.
Final CAIR rule 70 FR 25162, at 25234.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
proposal rule published on January 30, 2004 in the
Federal Register and entitled ‘‘Rule to Reduce
Interstate Transport of Fine Particulate Matter and
Ozone’’, Interstate Air Quality Rule, 69 FR 4566.
PO 00000
Frm 00026
Fmt 4700
Sfmt 4700
nonattainment areas in California and
Utah renders the CAIR modeling
irrelevant. More specifically, the
commenter argues that because EPA has
recently designated certain counties in
the Salt Lake City area and Cache
County, Utah as nonattainment for the
2006 PM2.5 NAAQS, EPA was obligated
to assess and limit downwind impacts
accordingly in accordance with Section
110(l) of the Clean Air Act.
EPA Response—EPA disagrees with
the commenter on this issue. First, this
rulemaking addresses the potential
impacts of emissions from New Mexico
sources on other states with violations
of the 1997 PM2.5 NAAQS, not the 2006
PM2.5 NAAQS. Therefore, EPA’s
assessment of New Mexico’s SIP was
based on potential impacts on areas
violating the 1997 PM2.5 NAAQS (15 μg/
m3 annual and 65 μg/m3 24-hour
standard). The application of section
110(a)(2)(D) to the 2006 PM2.5 NAAQS,
or other NAAQS, will be addressed in
later actions that pertain to those
NAAQS.
Second, EPA believes that the
analysis conducted in conjunction with
CAIR is both relevant and very
probative in evaluating the presence of,
and extent of, interstate transport from
New Mexico sources to other states in
this action. The CAIR modeling and
analysis specifically evaluated impacts
on areas that were violating the 1997
PM2.5 NAAQS. The other western states
identified by the commenter were in the
CAIR modeling domain but were not
evaluated further in the CAIR rule
because, with the exception of
California and Montana, these states
were in attainment of the 1997 PM2.5
NAAQS.34 Absent areas with violations
of those NAAQS, there could be no
significant contribution to violations of
the 1997 PM2.5 NAAQS. With regard to
California and Montana, EPA indicated
in the CAIR rule that interstate transport
impacts were not a significant
contributor to these areas, therefore
impacts from New Mexico sources to
California were not likely.35
Finally, even aside from the CAIR
analysis, EPA does not believe that
emissions from New Mexico sources
contribute significantly to violations of
the 1997 PM2.5 NAAQS in California.
The areas of California with violations
of the 1997 PM2.5 NAAQS are generally
34 See, Final CAIR rule 70 FR 25162, at 25169:
(‘‘Only two States in the western part of the U.S.,
California and Montana, have counties that
exceeded the PM2.5 standards’’) and (‘‘Because
interstate transport is not believed to be a
significant contributor to exceedances of the PM2.5
standards in California or Montana, today’s final
CAIR does not cover these States’’).
35 Id.
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
located far to the west, hundreds of
miles from New Mexico sources, across
large expanses of mountain ranges that
would impede transport, and generally
upwind from New Mexico. EPA believes
that the predominant meteorological
conditions would carry New Mexico
emissions to the east, north, or south but
not generally to the west. As a result,
EPA concludes that it is very unlikely
that New Mexico’s emissions transport
hundreds of miles to the west to the
1997 PM2.5 NAAQS in California.36 The
CAIR modeling only addressed areas
that were expected to be in
nonattainment in 2010, based on
existing monitoring data at the time and
2010 photochemical modeling. Other
than California, none of the other states
mentioned by the commenter were
monitoring nonattainment, or
designated nonattainment for the 1997
PM2.5 standards, at the time these
analyses were conducted.
Although not cited by the commenter,
EPA notes that there has been one
monitored violation of the 1997 PM2.5
annual NAAQS in Utah. It occurred in
2002–2004 time period at a single
monitor in the Salt Lake City area. This
violation has not continued. In this
instance, the state concluded that the
monitor was heavily impacted by a
nearby source. After the state instituted
controls at the source, the design value
has dropped to less than 45 μg/m3 in the
last four years. EPA notes that the
impact of a nearby source does not in
and of itself negate the possibility of
impacts of interstate transport at that
monitor as well. However, because that
monitor has not subsequently shown
any violation of the 1997 PM2.5 NAAQS,
EPA concludes that there are no areas in
Utah with violations of that NAAQS to
which New Mexico sources could be
contributing significantly. All other
PM2.5 monitors in the area have
consistently had DVs below 55 μg/m3
since the 2001–2003 DV period.
Comment No. 15—The commenter
also criticized modeling that the state
and EPA relied upon because of
concerns about the accuracy of the
underlying emissions inventories on
which the models relied. In particular,
the commenter claimed that the
modeling fails to address recent growth
in emission inventories for oil and gas
operations in New Mexico that have
been raising the emissions from the state
higher than have been previously
reported in emissions inventories.
The commenter argued that these
increases in emissions at least call into
question the accuracy of the modeling
36 EPA reached this same conclusion in the CAIR
rule. See, Final CAIR rule 70 FR 25162, at 25169.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
relied upon by EPA to support the
proposed approval of the State’s
submission, and at worst demonstrate
that EPA has failed to address a key
aspect of contribution to nonattainment
in downwind states from New Mexico
sources.
The commenter listed several recent
reports that estimated increased
emissions of SO2, NOX, and VOCs that
result from the growth of oil and gas
exploration in certain areas in New
Mexico. The more recent studies cited
by the commenter were:
• The November 25, 2009 inventory
of 2006 oil and gas emissions in the San
Juan Basin of New Mexico, which
includes San Juan, Rio Arriba,
McKinley, and Sandoval Counties,
prepared by the Independent Petroleum
Association of the Mountain States
(‘‘IPAMS’’). This inventory found that oil
and gas point and area sources within
this region annually released 42,075
tons of NOX, 60,697 tons of volatile
organic compounds (‘‘VOCs’’) and 305
tons of sulfur dioxide (‘‘SO2’’).;
• The August 2009 report on 2005
emissions in the Four Corners region of
northwestern New Mexico, which found
that oil and gas point and area sources
within the region annually released
57,682 tons of NOX, 668 tons of SO2,
and 117,370 tons of VOCs. The report
indicates that by 2018, these emissions
will increase to 65,543 tons of NOX, 670
tons of SO2, and 143,050 tons of VOCs;
and
• The 2007 WRAP Phase II Inventory
of 2002 oil and gas emissions, which
found that oil and gas activities
throughout New Mexico released
112,540 tons of NOX and 13,925 tons of
SO2, and that by 2018 would release
110,034 tons of NOX and 13,002 tons of
SO2 in the State.
The commenter argued that without
specifically addressing these more
recent increases in the emissions
associated with oil and gas
development, New Mexico and EPA
have no basis to conclude that the
modeling relied upon in the proposed
approval is accurate or ensures that
emissions are not and will not
significantly contribute to
nonattainment in other states. The
commenter also noted that the modeling
prepared for CAIR utilized emission
inventories from 2001, which would
likewise fail to account for the more
recent increase in emissions associated
with oil and gas development.
EPA Response—EPA shares the
commenter’s concern with emissions
from oil and gas development, and
agrees that dramatic increases in such
emissions, and especially emissions
from sources that are not appropriately
PO 00000
Frm 00027
Fmt 4700
Sfmt 4700
33185
controlled, have the potential to
contribute significantly to violations of
NAAQS in other states. However, EPA
has investigated this issue in response
to the commenter’s concerns in this
action, and has concluded that the
information currently available does not
indicate that New Mexico’s emissions
from oil and gas development are
significantly contributing to violations
of the 1997 8-hour ozone NAAQS and
1997 PM2.5 NAAQS in other states. To
reach this conclusion, EPA has used
available information and extrapolated
what the impacts of the additional
emissions from oil and gas development
would be in a worst case scenario, as
part of evaluating how those increases
would affect the modeling results and
other information EPA relied upon in
the proposal.
EPA has to make regulatory decisions
using the emissions inventories and
analyses that are available at the time of
the decision. These inventories are, of
course, constantly being updated and
refined. The CAIR modeling used a base
year emission inventory from 2001 that
EPA then projected to 2010, which was
the timeframe that EPA used for the
analysis of New Mexico’s impacts on
areas in other states with monitors
projected to have violations of the 1997
PM2.5 NAAQS. The CENRAP modeling
used a 2002 inventory to assess New
Mexico’s ozone impacts on areas in
other states with monitors projected to
have violations of the 1997 8-hour
ozone NAAQS. At the time this
modeling was conducted, EPA believed
that the emission estimates for oil and
gas development were appropriate.
The commenter cited studies that
have been conducted more recently to
refine estimates of current emissions
and future projected emission levels
from oil and gas development in areas
of New Mexico. These more recent
studies indicate that emissions from oil
and gas development are likely much
higher than those assumed in the
models. Because the studies do not
indicate the amount of emissions
growth that has happened since the
2001/2002 timeframe, however, it is
difficult to determine the impact this
presumed increase would have.
Therefore, to evaluate this concern,
below we consider a worst case estimate
impact of oil and gas emissions on
whether emissions from sources in New
Mexico significantly contribute to
nonattainment in other states.
The reports cited by the commenter
indicate that emissions from all oil and
gas development in New Mexico in the
years from 2002–2006 have a range of
up to 112,540 tpy of NOX, 117,370 tpy
of VOC, and 13,925 tpy of SO2. In
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
33186
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
comparison, the modeling conducted
using the 2002 CENRAP emission
inventory databases included emissions
from all sources in New Mexico with
totals of 306,194 tpy of NOX, 1,749,081
tpy of VOC and 100,174 tpy of SO2.37
The modeling conducted for CAIR
included an inventory from all sources
of 242,782 tpy of NOX and 173,724 tpy
of SO2 for the 2010 base level emissions
for sources in New Mexico.38 These
emissions inventories used for the
CENRAP modeling and the CAIR
modeling did include some emissions
from oil and gas development activities
in New Mexico, so EPA believes that
some portion of emissions attributed to
such sources in the more recent studies
were included in statewide emission
inventories from all sources and thus in
the CENRAP and CAIR modeling.
It would be very difficult to ascertain
the exact amount of emissions from oil
and gas sources that were included in
the emission inventories for these two
modeling evaluations and thus to
ascertain the exact amount that the
inventories used for the modeling
exercises underestimate such emissions.
Therefore, to evaluate how much the
additional emissions from oil and gas
development could impact the
determination, we have used a worst
case estimate of how much higher the
emissions in New Mexico could be,
based on the studies provided by the
commenter. If one uses the highest NOX
value from these reports of 112, 540 tpy
and compare that with the 306,194 tpy
of NOX (from the CENRAP based
modeling), the percentage increase in
NOX emissions would be a 36%
increase in NOX emissions over the
modeled emissions. Similarly, if one
compares the highest SO2 value from
the reports (using 13,925 tpy from the
reports and 100,174 tpy from the
CENRAP based modeling) the
percentage increase in SO2 emissions
would be less than a 8% increase in SO2
emissions over the modeled emissions.
EPA believes that these are worst case
scenario increases, because they include
the highest estimate of oil and gas
development emission from the reports
supplied by the commenter, but they
probably overestimate the true increase
over the inventories used for the
modeling, and double count the
emissions of oil and gas that were in the
original modeling.
EPA notes that these estimates also do
not include the significant reductions
that have occurred in New Mexico from
non oil and gas sectors, such as federal
motor vehicle controls and fleet turn
37 WRAP
38 CAIR
EDMS, CENRAP TSD.
Proposal TSD.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
over and controls on SO2 and NOX
emissions installed on large stationary
sources including the San Juan
Generating Station. In addition,
emissions in other parts of the modeling
domain outside of New Mexico would
be expected to have decreased after
2002 due to federal and state controls
including fleet turnover and would not
have been included in the CENRAP
based modeling for ozone and only
partially included in the CAIR
modeling.
EPA relied on photochemical
modeling conducted for CAIR for the
PM2.5 analysis in determining that New
Mexico’s emissions do not make a
significant contribution in areas in other
states with monitors showing violations
of the 1997 PM2.5 NAAQS. As discussed
elsewhere in this notice, the modeling
indicated that the largest impact from
New Mexico’s emissions on any such
monitor in another state was only 15%
of the significance level used in the final
CAIR rule. In the worst case estimate
above, NOX emissions could at most be
36% higher and SO2 could be at most
8% higher than was modeled in CAIR.
Although the impact on the model
would not necessarily be linear, EPA
does not believe that such a relatively
small increase in total SO2 and NOX
emissions would increase the impact of
New Mexico emissions by the more than
7 fold necessary to reach the
significance level EPA used in CAIR for
the 1997 PM2.5 NAAQS.
EPA relied on photochemical
modeling based on 2002 emission
inventories (available from CENRAP’s
efforts) in determining that New
Mexico’s emissions do not make a
significant contribution in areas in other
states with monitors showing violations
of the 1997 8-hour ozone NAAQS. EPA
relied on this modeling to evaluate the
possible contribution from New Mexico
sources to areas that were monitoring
violations of the 1997 8-hour NAAQS.
EPA considers the modeling
conservative in that it used 2002
inventories, and for the entire modeling
grid (which covered most of the
continental U.S. and parts of Canada
and Mexico), and it did not include the
benefits from emission reductions after
2002 from federal and state
requirements including fleet turnover.
The modeling did not indicate values
that were close to the significance levels
for New Mexico’s impacts on out of
state areas which were nonattainment
and/or monitoring nonattainment of the
1997 8-hour ozone NAAQS. The area
monitoring nonattainment with the
highest modeled impact from sources in
New Mexico was the Dallas/Fort Worth
Area. The modeled daily average
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
contribution from sources in New
Mexico was 0.4% with a contribution
average of 0.4 ppb. EPA’s screening
criteria for the first step of the analysis
for any significant contribution,
established in CAIR and upheld by the
court, were 1% and 2 ppb respectively.
EPA believes that even a conservative
estimate of a 36% increase in NOX
emissions from New Mexico’s sources
would not more than double New
Mexico’s impact on other states, even
before considering the other offsetting
NOX emission reductions between 2002
and 2010 from other source categories.
Therefore, EPA concludes that these
new emission estimates would not
result in significant enough changes in
impacts from New Mexico’s sources to
change the determination that emissions
from sources in New Mexico do not
significantly contribute to violations of
the 1997 8-hour ozone NAAQS in other
states, based on available information.
Accordingly, New Mexico does not need
to amend its SIP substantively to reduce
any additional emissions to prevent
such impacts on other states.
Finally, EPA notes that
photochemical modeling is a very
detailed and complicated process and
there are continual refinements in
emission inventories and other
modeling databases. Unfortunately, the
statutory and regulatory requirements,
and especially the timing requirements,
for developing and evaluating SIPs do
not allow for time or resources to do
every possible refinement to emission
inventories on a continual basis. In this
specific case, EPA agrees that the
sudden expansion of oil and gas
development and the emissions
increases from such activities are a
source category for which emissions
inventories need updating, to insure
that future regulatory actions by both
states and EPA continue to be based
upon the most recent and accurate
information available
EPA is concerned with the growth in
emissions from oil and gas development
in New Mexico and other areas of the
country, including other states in
Region 6. On May 10, 2010, EPA Region
6 held a meeting with the principal oil
and gas producers, trade organizations,
and the five States in the Region, with
the goal of finding ways to improve the
emission inventory for these sources.
Region 6 has initiated this process
because a clearer understanding of these
emissions will be necessary for future
air quality plans under the new revised
standards.
Comment No. 16—The commenter
also objected to EPA’s proposed
approval because ‘‘New Mexico’s SIP, as
written, simply does not contain any
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
language that prohibits emissions that
contribute significantly to
nonattainment in any other state.’’ The
commenter also noted that EPA did not
assess whether the SIP does or does not
contain such provisions. The
commenter appears to have argued that
110(a)(2)(D)(i) requires a state SIP to
contain an explicit provision literally
prohibiting emissions that contribute
significantly to nonattainment in any
other state and that, in order to approve
the New Mexico interstate transport SIP,
EPA must examine the SIP to determine
whether it contains such an explicit
prohibition.
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 a specific
provision literally 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 the 1998
NOX SIP Call. 39 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 emissions from sources in the
State contribute significantly to
nonattainment in downwind areas.40 If
this factual finding is in the negative, as
is the case for EPA’s assessment of the
contribution from emissions from
sources in New Mexico, then section
110(a)(2)(D)(i)(I) does not require any
changes to the State’s SIP. 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
39 63
FR 57356, October 27, 1998
2005 CAIR Rule (70 FR 25162) and 1998
NOX SIP Call (63 FR 57356).
40 See
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
through traditional command and
control programs, or at its own election,
through participation in another
mechanism such as the cap and trade
program of the NOX SIP Call. 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. 17—The commenter
noted a specific provision for stationary
source permitting in the New Mexico
SIP that the commenter argued is
inadequate to ensure that sources in
New Mexico will not significantly
contribute to nonattainment in other
States. According to the commenter,
New Mexico has a regulatory provision
that requires the State agency to deny an
application for a permit or permit
revision for a stationary source under
certain circumstances, including the
violation of any NAAQS. The
commenter claimed that New Mexico
interprets this authority to allow the
denial of such a permit, only if the
source is physically located in a
designated nonattainment area.
EPA Response—EPA disagrees with
the commenter’s characterization of the
State’s regulations that New Mexico can
only deny a permit for new or modified
sources located in a designated
nonattainment area. EPA has reviewed
the New Mexico permitting provisions
cited by the commenter. Section
20.2.72.208 NMAC contains the reasons
the department must deny a permit.
Section 20.2.72.208 D explicitly
provides that one of the reasons the
State will deny a permit is if ‘‘the
construction, modification, or permit
revision will cause or contribute to air
contaminant levels in excess of any
National Ambient Air Quality Standard
or New Mexico Ambient Air Quality
Standard unless the ambient air impact
is offset by meeting the requirements of
either 20.2.79 NMAC or 20.2.72.216
NMAC, whichever is applicable.’’
Section 20.2.79 NMAC and 20.2.72.216
NMAC apply in nonattainment areas
which have more stringent requirements
than attainment areas.
EPA believes that the provisions of
Section 20.2.72.208 NMAC apply in
attainment areas of the State and are
unambiguous. The State’s regulations
provide that it ‘‘shall deny’’ a permit for
a source located in an attainment area,
if that new or modified source would
cause or contribute to air contaminant
levels that exceed any NAAQS, whether
those violations occur in New Mexico or
elsewhere. To verify this understanding
of the State’s regulations, EPA contacted
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
33187
NMED regarding this comment. NMED
responded with an E-mail that is
included in the docket for this
rulemaking confirming that the
provisions of 20.2.72.208 NMAC apply
in the attainment areas of the State and
provide for denial of permits if the
construction, modification or revision
will cause or contribute to levels in
excess of the NAAQS.
Comment No. 18—The commenter
argued that EPA cannot approve the
section 110(a)(2)(D) submission from
New Mexico because the State and EPA
did not comply with the requirements of
section 110(l). Evidently, the commenter
believes that the section 110(a)(2)(D)
submission for the 1997 8-hour ozone
and 1997 PM2.5 NAAQS is a revision to
the SIP that will interfere with
attainment of the 2006 PM2.5 NAAQS
and the 2008 ozone NAAQS. The
commenter argued that a section 110(l)
analysis must consider all NAAQS once
they are promulgated, and argued that
EPA recently 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) in this action or that
section 110(l) requires disapproval of
the SIP submission at issue here.
Section 110(l) provides in part that:
‘‘the 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 58,199, 58,134
(Oct. 5. 2005); 70 FR 17.029, 17,033
(Apr. 4, 2005); 70 FR 53, 57 (Jan. 3,
2005); 70 FR 28,429, 28,431 (May 18,
2005).
New Mexico’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 1997
PM2.5 NAAQS. This submission does
not revise or remove any existing
emissions limit for any NAAQS, or
E:\FR\FM\11JNR1.SGM
11JNR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
33188
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
change any other existing substantive
SIP provisions relevant to the 1997 8hour ozone or 1997 PM2.5 NAAQS or
any other 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 submission will not
interfere with attainment or
maintenance of any NAAQS.
EPA’s discussion in the notice cited
by the commenter concerning a PM10
maintenance plan in another state is
consistent with this interpretation. In
the cited action, EPA noted that: ‘‘Utah
had either removed or altered a number
of stationary source requirements,’’
creating the possibility of a relaxation of
existing EPA approved SIP requirements
and thereby 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 any 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. In particular, EPA has
determined that the submission
complies with the requirements of
section 110(a)(2)(D)(i). Accordingly,
assuming that section 110(l) applies to
this SIP submission, EPA finds that
approval of the submission is consistent
with the requirements of section 110(l).
Comment No. 19—In a separate
comment letter, the commenter
expressed concern with EPA’s proposed
approval of the State’s submission for
the 1997 8-hour ozone NAAQS and
1997 PM2.5 NAAQS because the state
‘‘does not appropriately limit ozone’’ in
its PSD permitting program. To support
this claim, the commenter noted that
EPA has previously made a ‘‘finding of
failure to submit’’ because New Mexico
had not made another submission that
would have the effect of making NOX a
regulatory precursor for ozone in the
context of PSD. According to the
commenter, EPA should not approve the
State’s submission for section
110(a)(2)(D)(i)(I) for the significant
contribution to nonattainment
requirement because of this outstanding
obligation with respect to the PSD
requirements of the CAA for the 1997
8-hour ozone NAAQS.
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
EPA Response—EPA acknowledges
that it made the finding of failure to
submit noted by the commenter.41
However, EPA disagrees with the
commenter’s view of how that prior
finding affects today’s specific action.
First, the ‘‘finding of failure to submit’’
to which the commenter refers is not for
a failure to make a submission with
respect to section 110(a)(2)(D). In that
prior action, EPA made a formal finding
that the State had, at that time, not yet
made a different SIP submission,
necessary to comply with a separate
requirements of section 110(a)(2)(C) and
section 110(a)(2)(J).
Second, EPA believes that the cited
finding of failure to submit does not
relate to the requirements of section
110(a)(2)(D)(i)(I) with respect to
significant contribution to
nonattainment at issue in this action,
but rather to the separate requirements
of section 110(a)(2)(D)(i)(II) that SIPs
include measures to prevent
interference with measures required for
‘‘prevention of significant deterioration.’’
EPA’s 2006 Guidance explained the
Agency’s views of what the four
separate and distinct elements of section
110(a)(2)(D) require.42 EPA’s guidance
made recommendations to States for
making submissions to meet each of the
separate requirements of section
110(a)(2)(D) for the 1997 8-hour ozone
standards and 1997 PM2.5 standards.
Within the guidance, EPA
recommended that States evaluate the
existence of, and extent of, significant
contribution to nonattainment in other
States by various means, intended to
consider relevant facts about such
contribution to nonattainment. By
contrast, EPA recommended that States
meet the separate requirement that their
SIPs contain measures to prevent
interference with measures required to
prevent significant deterioration of air
quality in other States by different
means. In particular, EPA explained that
this latter element of section
110(a)(2)(D) would be the correct
context in which to confirm that the
State in question had updated its own
SIP to contain measures related to PSD.
In the 2006 Guidance, EPA explicitly
identified the regulatory requirements
and separate SIP revision necessary to
implement the PSD program for the
1997 8-hour ozone NAAQS as among
the requirements that EPA considered
41 See, Completeness Findings for Section
110(a)(2) State Implementation Plans for the 8-hour
Ozone NAAQS, 73 FR 16,205 (March 28, 2008).
42 ‘‘Guidance for State Implementation Plan (SIP)
Submission to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8Hour Ozone and PM2.5 National Ambient Air
Quality Standards’’ August 15, 2006.
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
relevant to the prevention of significant
deterioration requirements of section
110(a)(2)(D).43 EPA stated its view that
implementation of the PSD permitting
program within the State would address
the requirement to prohibit emissions
that interfere with measures to prevent
significant deterioration in neighboring
States. EPA also explained that the
permitting program for the 8-hour ozone
NAAQS would require that new or
modified sources will not cause or
contribute to violations of the NAAQS
in neighboring States, so that additional
SIP submissions with rule changes or
modeling demonstrations would not be
required to establish that a State’s
program complies with the requirement
in section 110(a)(2)(D)(i)(II). In short,
EPA believes that evaluation of a State’s
SIP for compliance with section
110(a)(2)(D)(i)(II) is the proper context
in which to determine whether such SIP
meets current federal PSD requirements.
Today’s action does not address this
element of section 110(a)(2)(D), and
accordingly, the finding of failure to
submit is not a basis not to approve the
State’s submission for this purpose.
Finally, EPA notes that the State of
New Mexico has subsequently made a
submission to comply with the rule that
was the basis for the finding of failure
to submit cited by the commenter. EPA
is in the process of evaluating that
submission and will act on it at a later
date. EPA anticipates that it may elect
to act upon that separate submission at
the same time it acts upon the State’s
section 110(a)(2)(D) submission for the
prevention of significant deterioration
requirement, as EPA has recently done
in the case of the section 110(a)(2)(D)
submission for the State of North
Dakota.
B. Comments From New Mexico
Environment Department, Air Quality
Bureau
Comment No. 1—The commenter
stated that while it did not object to
EPA’s proposed approval of the
‘‘contribute to nonattainment’’ prong of
section 110(a)(2)(D)(i) of the CAA, it
believed that EPA should have
approved the SIP submission as meeting
all prongs of that section. The
commenter asserted its belief that New
Mexico satisfied all requirements of
section 110(a)(2)(D) for the 1997 8-hour
ozone and 1997 PM2.5 NAAQS in its
submission, following EPA’s
recommendations in the 2006 Guidance
for this SIP revision.
EPA Response—We appreciate
NMED’s comments. At this time, EPA is
only taking action on the portions of the
43 Id,
E:\FR\FM\11JNR1.SGM
at pages 6–8.
11JNR1
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
State’s submission that pertain to the
significant contribution to
nonattainment requirements of section
110(a)(2)(D) for the 1997 8-hour ozone
and 1997 PM2.5 NAAQS. EPA will act
on the remaining requirements of
section 110(a)(2)(D) for these NAAQS at
a later date.
WReier-Aviles on DSKGBLS3C1PROD with RULES
IV. Final Action
We are approving one element of the
Interstate Transport SIP submitted by
the State of New Mexico on September
17, 2007. Specifically, in this action we
are approving the element that
addresses the requirement of Section
110(a)(2)(D)(i)(I) that emissions from
sources in that State do not ‘‘contribute
significantly’’ to violations of the 1997 8hour ozone or 1997 PM2.5 NAAQS in
any other State. After fully considering
all comments received on the proposal
and direct final rule EPA has concluded
that the State’s submission, and
additional evidence evaluated by EPA,
establish that emissions from New
Mexico sources do not contribute
significantly to nonattainment of the
relevant NAAQAS in any other State.
Accordingly, New Mexico does not need
to include additional emission
limitations on its sources to eliminate
any such contribution to other States for
purposes of these NAAQS.
At a later date, EPA will act on
addressing the remaining requirements
of section 110(a)(2)(D)(i) which are:
interference with the maintenance of the
NAAQS in any other state; interference
with measures required to prevent
significant deterioration of air quality in
any other State; and interference with
measures required to protect visibility
in any other State.
V. Statutory and Executive Order
Reviews
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:
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
• 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.
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
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
33189
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 10, 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, Incorporation by
reference, Intergovernmental relations,
Ozone, Particulate matter, Reporting
and recordkeeping requirements,
Volatile organic compounds.
Dated: May 28, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
■
40 CFR Part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart GG—New Mexico
2. The second table in § 52.1620(e)
entitled ‘‘EPA-Approved Nonregulatory
Provisions and Quasi-Regulatory
Measures in the New Mexico SIP’’ is
amended by adding an entry to the end
to read as follows:
■
§ 52.1620
*
Identification of plan.
*
*
(e) * * *
E:\FR\FM\11JNR1.SGM
11JNR1
*
*
33190
Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations
EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP
Applicable geographic or nonattainment area
Name of SIP provision
*
Interstate transport for the
1997 ozone and PM 2.5
NAAQS.
*
State submittal/effective
date
*
New Mexico ...........................
*
09/17/07
[FR Doc. 2010–13686 Filed 6–10–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2009–0278; FRL–8829–2]
Trifloxystrobin; Pesticide Tolerances
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This regulation increases
existing tolerances for residues of
trifloxystrobin in or on corn, field,
forage; corn, sweet, forage; and corn,
sweet, stover. Bayer CropScience
requested these tolerances under the
Federal Food, Drug, and Cosmetic Act
(FFDCA). Additionally, EPA is
removing several tolerances which have
expired.
DATES: This regulation is effective June
11, 2010. Objections and requests for
hearings must be received on or before
August 10, 2010, and must be filed in
accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0278. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
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 in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
WReier-Aviles on DSKGBLS3C1PROD with RULES
ADDRESSES:
VerDate Mar<15>2010
14:29 Jun 10, 2010
Jkt 220001
EPA approval date
*
06/11/10 [insert FR page
number where the document begins].
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Tawanda Maignan, Registration
Division (7505P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460–0001; telephone
number: (703) 308-8050; e-mail address:
maignan.tawanda@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to those engaged in the
following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Get Electronic Access to
Other Related Information?
You may access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Printing Office’s e-CFR
site at https://www.gpoaccess.gov/ecfr.
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
Explanation
*
*
06/11/10 Approval for revisions to prohibit significant
contribution to nonattainment in any other State.
To access the harmonized test
guidelines referenced in this document
electronically, please go https://
www.epa.gov/ocspp and select ‘‘Test
Methods and Guidelines.’’
C. How Can I File an Objection or
Hearing Request?
Under FFDCA section 408(g), 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
or request a hearing on this regulation
in accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2009–0278 in the subject line on
the first page of your submission. All
objections and requests for a hearing
must be in writing, and must be
received by the Hearing Clerk on or
before August 10, 2010. Addresses for
mail and hand delivery of objections
and hearing requests are provided in 40
CFR 178.25(b).
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing that does not
contain any CBI for inclusion in the
public docket. Information not marked
confidential pursuant to 40 CFR part 2
may be disclosed publicly by EPA
without prior notice. Submit a copy of
your non-CBI objection or hearing
request, identified by docket ID number
EPA–HQ–OPP–2009–0278, by one of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• Mail: Office of Pesticide Programs
(OPP) Regulatory Public Docket (7502P),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001.
• Delivery: OPP Regulatory Public
Docket (7502P), Environmental
Protection Agency, Rm. S–4400, One
Potomac Yard (South Bldg.), 2777 S.
Crystal Dr., Arlington, VA. Deliveries
are only accepted during the Docket
Facility’s normal hours of operation
(8:30 a.m. to 4 p.m., Monday through
E:\FR\FM\11JNR1.SGM
11JNR1
Agencies
[Federal Register Volume 75, Number 112 (Friday, June 11, 2010)]
[Rules and Regulations]
[Pages 33174-33190]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13686]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2007-0993; FRL-9160-2]
Approval and Promulgation of Implementation Plans; New Mexico;
Interstate Transport of Pollution
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a portion of a State Implementation Plan
(SIP) submitted by the State of New Mexico for the purpose of
addressing the ``good neighbor'' provisions of the Clean Air Act (CAA)
section 110(a)(2)(D)(i) for the 1997 ozone National Ambient Air Quality
Standard (NAAQS) and the 1997 PM2.5 NAAQS. This SIP revision
satisfies a portion of the State of New Mexico's obligation to submit a
SIP that demonstrates that adequate provisions are in place to prohibit
air emissions from adversely affecting another state's air quality
through interstate transport. This rulemaking action is being taken
under section 110 of the CAA and addresses one element of CAA section
110(a)(2)(D)(i), which pertains to prohibiting air pollutant emissions
from within New Mexico from contributing significantly to nonattainment
of the 1997 8-hour ozone and PM2.5 NAAQS in any other state.
DATES: This final rule will be effective July 12, 2010.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R06-OAR-2007-0993. All documents in the docket
are listed at www.regulations.gov. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information 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
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 Freedom
of Information Act (FOIA) Review Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal holidays. Contact the person
listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr.
Bill Deese at 214-665-7253 to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT: Emad Shahin, Air Planning Section
(6PD-L), Environmental Protection
[[Page 33175]]
Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733, telephone (214) 665-6717; fax number (214) 665-7263; e-mail
address shahin.emad@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Outline
I. What action is EPA taking?
II. What is the background for this action?
III. What comments did EPA receive and how has EPA responded to
them?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
We are approving a portion of the submission from the State of New
Mexico demonstrating that New Mexico has adequately addressed one of
the required elements of the CAA section 110(a)(2)(D)(i), the element
that prohibits air pollutant emissions from sources within a state from
contributing significantly to nonattainment of the relevant NAAQS in
any other state. We have determined that emissions from sources in New
Mexico do not significantly contribute to nonattainment of the 1997 8-
hour ozone NAAQS or the 1997 PM2.5 NAAQS in any other state.
Because emissions from sources in New Mexico do not significantly
contribute to nonattainment in any other state, section
110(a)(2)(D)(i)(I) does not require any substantive changes to New
Mexico's SIP.
The remaining three elements of section 110(a)(2)(D) are that a
state's SIP contain adequate provisions to prevent: Interference with
maintenance of the NAAQS in any other state; interference with measures
required to prevent significant deterioration of air quality in any
other state; and interference with measures required to protect
visibility in any other state. EPA will evaluate the New Mexico SIP and
SIP submissions for compliance with these other requirements of section
110(a)(2)(D) for the 1997 8-hour ozone and 1997 PM2.5 NAAQS
in future rulemakings.
II. What is the background for this action?
On July 18, 1997, EPA promulgated new standards for 8-hour ozone
and fine particulate matter (PM2.5). This action is being
taken in response to the July 18, 1997 revision to the 8-hour ozone
NAAQS and PM2.5 NAAQS. This action does not address the
requirements for the 2006 PM2.5 NAAQS or the 2008 8-hour
ozone NAAQS; those standards will be addressed in a later action.
Section 110(a)(1) of the CAA requires states to submit SIPs to
address a new or revised NAAQS within 3 years after promulgation of
such standards, or within such shorter period as EPA may prescribe.
Section 110(a)(2) lists the elements that such new SIPs must address,
as applicable, including section 110(a)(2)(D)(i) which pertains to
interstate transport of certain emissions. On August 15, 2006, EPA
issued its ``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'' (2006 Guidance) for SIP submissions that states should use
to address the requirements of section 110(a)(2)(D)(i). EPA developed
this guidance to make recommendations to states for making submissions
to meet the requirements of section 110(a)(2)(D) for the 1997 8-hour
ozone NAAQS and 1997 PM2.5 NAAQS.
On September 17, 2007, EPA received a SIP submission from the State
of New Mexico to address the requirements of section 110(a)(2)(D)(i)
for both the 1997 8-hour ozone NAAQS and 1997 PM2.5 NAAQS.
The state based its submittal on EPA's 2006 Guidance. As explained in
the 2006 Guidance, the ``good neighbor'' provisions in section
110(a)(2)(D)(i) require each State to submit a SIP that contains
adequate provisions to prohibit emissions from sources within that
state from adversely affecting another state in the ways contemplated
in the statute. Section 110(a)(2)(D)(i) contains four distinct
requirements related to the impacts of interstate transport. In this
rulemaking EPA is addressing only the requirement that pertains to
preventing sources in the state from emitting pollutants in amounts
which will contribute significantly to nonattainment of the 1997 8-hour
ozone NAAQS and the 1997 PM2.5 NAAQS in any other state. In
its submission, the State of New Mexico indicated that its current SIP
is adequate to prevent such significant contribution to nonattainment
in any other state, and thus no additional emissions controls are
necessary at this time to alleviate interstate transport.
On April 8, 2010, we published a direct final rule and a parallel
proposal to approve the portion of New Mexico's SIP submission that
addressed one element of the CAA section 110(a)(2)(D)(i), which
pertains to prohibiting air pollutant emissions from within New Mexico
from contributing significantly to nonattainment of the 1997 8-hour
ozone and 1997 PM2.5 NAAQS in any other state (75 FR 17868).
The direct final rule and proposal stated that if EPA received any
relevant adverse comments during the public comment period ending on
May 10, 2010, then EPA would withdraw the direct final rule and respond
to such comments in a subsequent final action based upon the proposal.
EPA received adverse comments during the comment period, and
accordingly EPA withdrew the direct final rule on May 3, 2010 (75 FR
23167). The April 8, 2010, proposal (75 FR 17894) provides the basis
for today's final action.
III. What comments did EPA receive and how has EPA responded to them?
EPA received three comment letters on the April 8, 2010, direct
final rule and proposal. The letters can be found on the internet in
the electronic docket for this action. To access the letters, please go
to https://www.regulations.gov and search for Docket No. EPA-R06-OAR-
2007-0993, or contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph above. The discussion below addresses those comments
and our response.
A. Comments From WildEarth Guardians
Comment No. 1--The commenter argued that New Mexico and EPA did not
appropriately assess impacts to nonattainment in downwind states.
According to the commenter, New Mexico failed to assess the
significance of downwind impacts in accordance with EPA precedent and
refers to the 1998 NOX SIP Call.
EPA Response--EPA disagrees with the commenter 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 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
[[Page 33176]]
rulemaking. EPA does not agree, however, that the approach of the
NOX SIP Call is 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 with recommendations to states
about how to address section 110(a)(2)(D) in SIP submissions for the
1997 8-hour ozone 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.\1\ This guidance document postdated the
NOX SIP Call, and was developed by EPA specifically to
address SIP submissions for the 1997 8-hour ozone NAAQS.
---------------------------------------------------------------------------
\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''); p. 3.
---------------------------------------------------------------------------
Within the 2006 Guidance, 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.'' \2\ 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.'' \3\ To that end, EPA specifically
recommended that states located within the geographic region covered by
the Clean Air Interstate Rule (CAIR) \4\ comply with section
110(a)(2)(D) for the 1997 8-hour ozone 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.
---------------------------------------------------------------------------
\2\ Id. at 3.
\3\ Id.
\4\ In this action the expression ``CAIR'' refers to the final
rule published in the May 12, 2005 Federal Register and entitled
``Rule to Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to NOX SIP Call; Final Rule'' (70 FR 25162).
---------------------------------------------------------------------------
EPA 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.'' \5\ 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 interstate transport.
---------------------------------------------------------------------------
\5\ Id. at 5.
---------------------------------------------------------------------------
The commenter did not acknowledge or discuss EPA's actual guidance
for section 110(a)(2)(D) SIP submissions for the 1997 8-hour ozone
NAAQS, and thus it is unclear whether the commenter was aware of it. In
any event, EPA believes that the New Mexico submission and EPA's
evaluation of it is consistent with EPA's guidance for the 1997 8-hour
ozone NAAQS. For example, as discussed in the direct final notice, the
State of New Mexico and EPA considered information such as monitoring
data in other 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 are consistent with the concepts of the
NOX SIP Call referenced by the commenter: (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 New Mexico submission at issue here would be that because the
available evidence indicates that there is so very little contribution
of emissions from New Mexico 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. 2--The commenter believes that New Mexico and EPA did
not appropriately assess impacts to nonattainment in downwind states in
terms of air quality. Specifically, the commenter objected to EPA's
proposed approval because New Mexico assessed impacts in downwind
states by considering only areas that had monitoring data as for
evaluating significant contribution to nonattainment. In other words,
the commenter is concerned that New Mexico did not assess impacts in
areas that have no monitor. The commenter implied 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, the commenter
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 the commenter, 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, the commenter
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 the commenter's arguments. First,
the commenter misunderstands the point that EPA was making in the
quoted statement from the NOX SIP Call proposal (and that
EPA has subsequently made in the context of
[[Page 33177]]
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.
The commenter's misunderstanding of EPA's statement concerning
designation status evidently caused the commenter 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.\6\
---------------------------------------------------------------------------
\6\ Michigan v. U.S. EPA, 213 F.3d 663, 674-681 (DC Cir. 2000);
North Carolina v. EPA, 531 F.3d 896, 913-916 (DC Cir. 2008)
(upholding EPA approach to determining threshold despite remanding
other aspects of CAIR).
---------------------------------------------------------------------------
Finally, EPA disagrees with the commenter's argument that the
assessment of significant contribution to downwind nonattainment must
include evaluation of impacts on non-monitored areas. Neither section
110(a)(2)(D)(i)(I) provisions, nor the 2006 Guidance EPA issued for the
1997 8-hour ozone NAAQS, support the commenter's position, as neither
refers to any explicit mandatory or recommended approach to assess air
quality in non-monitored areas.\7\ The same focus on monitor 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.\8\ 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,
the commenter 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 NAAQS or of the 1997
PM2.5 NAAQS in a particular area.
---------------------------------------------------------------------------
\7\ 2006 Guidance, p. 5.
\8\ ``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.'' See, 62 FR 60336.
---------------------------------------------------------------------------
EPA did not use photochemical modeling to determine if an area is
violating the 1997 8-hour ozone or 1997 PM2.5 NAAQS to
designate the area as nonattainment without supporting monitoring data.
EPA's regulations for these NAAQS, the monitoring requirements for
these NAAQS, and EPA's guidance for designations for these NAAQS
provide for such designations for violating areas to be based only on
monitoring data. In addition, this is reasonable for these particular
NAAQS because photochemical models, while based on the best science
available, only provide a best estimate of air quality. EPA's 2007
modeling guidance \9\ recognizes that model results and projections
will continue to have uncertainty.
---------------------------------------------------------------------------
\9\ EPA-454/B-07-002, April 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, available at https://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
---------------------------------------------------------------------------
Therefore, even if modeling analyses indicated violation of the
1997 8-hour ozone NAAQS in other states, EPA would not make a
determination that these areas should be designated nonattainment for
these NAAQS without monitoring data in the area to support a
determination of nonattainment. In summary, in order for there to be
significant contribution to nonattainment for either of these specific
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 New Mexico contribute
significantly to ozone 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, and EPA modeling guidance.
Comment No. 3--In support of its comments that EPA should assess
significant contribution to nonattainment in nonmonitored areas, the
commenter argued that existing modeling performed by another
organization ``indicates that large areas of neighboring states will be
likely to violate the ozone NAAQS.'' According to the commenter, 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'').\10\ In
short, the commenter 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 of states adjacent to New Mexico.
---------------------------------------------------------------------------
\10\ The presentation is available for review as Document ID
EPA-R06-OAR-2007-0993-0008.9 at Regulations.gov, Docket ID
EPA-R06-OAR-2007-0993.
---------------------------------------------------------------------------
EPA Response--EPA disagrees with this comment on several grounds.
First, EPA does not agree that it is appropriate when satisfying the
requirements of Section 110(a)(2)(D) to evaluate significant
contribution to nonattainment for the 1997 8-hour ozone NAAQS by
modeling ambient
[[Page 33178]]
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, the commenter'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 fourth maximum ozone reading
for the year 2018, and as indicating that ``* * * air quality * * *
will exceed or violate [emphasis ours] the 1997 ozone NAAQS.'' By
definition, a one year value of the fourth maximum above the NAAQS only
constitutes an exceedance of the NAAQS; to constitute a violation of
the 1997 8-hour ozone NAAQS, the average of the fourth high for three
consecutive years at the same monitor must exceed the standard. Thus,
even if the WRAP presentation submitted by the commenter were
technically sound, the conclusion drawn from it by the commenter is
inaccurate and does not support its claim of projected violations of
the NAAQS in large areas (monitored or unmonitored) of New Mexico's
neighboring states.
Even if EPA believed that it was appropriate to use modeling to
establish violations of the 1997 8-hour ozone NAAQS, EPA has reviewed
the WRAP presentation submitted by the commenter, 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) \11\ 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.\12\ 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 the commenter's
concerns about large areas of other states violating the 1997 8-hour
ozone NAAQS projected for 2018 in areas without monitors.
---------------------------------------------------------------------------
\11\ This document is available for review at the
regulations.gov Web site under Docket ID No. EPA-R06-OAR-2007-0993.
\12\ 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,'' pp. ES-3, ES-4, 3-4, 3-12, 3-30, 5-1.
Prepared for the New Mexico Environment Department, Air Quality
Bureau, Santa Fe, NM, by ENVIRON International Corporation, Novato,
CA.
---------------------------------------------------------------------------
Comment No. 4--As additional support for its assertion that EPA
should require modeling to assess ambient levels in unmonitored
portions of other states, the commenter relied on an additional study
entitled the ``2009 Uinta Basin Air Quality Study'' (UBAQS). The
commenter argued that the UBAQS further supports its concern that New
Mexico and EPA, having limited the evaluation of downwind impacts only
to areas with monitors, failed to assess ozone nonattainment in non-
monitored areas. According to the commenter, UBAQS modeling \13\
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
southwestern corner of Utah are also currently in nonattainment and
will be in nonattainment in 2012.\14\
---------------------------------------------------------------------------
\13\ In this action the expression ``UBAQS'' refers to the
``FINAL REPORT UBAQS TECHNICAL REPORT'', June 30, 2009. The
presentation is available for review as Document ID EPA-
R06-OAR-2007-0993-0008.9 at regulations.gov, Docket ID
EPA-R06-OAR-2007-0993.
\14\ UBAQS. The southwestern area referred to by the commenter
includes portions of Washington, Iron, Kane, and Garfield Counties.
---------------------------------------------------------------------------
EPA Response--As noted above, EPA does not agree that it is
appropriate to assess significant contribution to nonattainment for the
1997 8-hour ozone NAAQS in the way advocated by the commenter. In
particular, EPA does not agree that it is necessary to evaluate
significant contribution to areas where only the model predicts
nonattainment where there are no monitors. Even if EPA felt it was
appropriate to use model results to determine areas that are not
attaining the standard, EPA does not agree that the modeled
nonattainment of the 1997 8-hour ozone NAAQS (current and projected) in
the Wasatch Front Range area in the UBAQS supports the commenter's
concerns about the need to evaluate the possibility of significant
contribution from New Mexico to nonattainment in these areas. Based on
what the commenter presented, 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.'' \15\ First, the
commenter's interpretation of the predicted ozone concentrations shown
in Figures 4-3a and 4-3b (pages 4 and 5 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 the exact modeled value is not specified and there are
only three grid cells with this value range estimated. If the actual
model prediction is less than or equal to 84.94 ppb then the area is
attaining the 1997 8-hour ozone NAAQS, if it is predicted as greater
than 84.94 ppb then the modeling is indicating that it is not attaining
those NAAQS. Thus, the current and predicted design values for the
three grid cells in 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. EPA does not believe that this evidence adequately
establishes that one or both areas definitely violate the NAAQS, even
if the information were taken at face value.
---------------------------------------------------------------------------
\15\ WG's April 16, 2010 comment letter, pp. 3. The letter is
available for review at the regulations.gov Web site Docket ID No.
EPA-R06-OAR-2007-0993.
Page three of the commenter's letter.
---------------------------------------------------------------------------
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.\16\ The study
deviates in at least two significant ways from EPA's 2007 guidance on
SIP modeling.\17\ One deviation is the UBAQS modeling reliance on fewer
than the five years of data recommended by EPA to generate an 8-hour
ozone current 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 deviation is in the computation of the relative
responsive
[[Page 33179]]
factor (RRF), which directly affects the modeling's future design value
(DVF).\18\ 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.\19\ Also, looking at
Figures 3-19a-j of the UBAQS report, which cover ozone modeling
performance through September of 2005, shows the modeling to have an
over prediction bias for ozone. So, EPA concludes that the modeling
analysis results provided by the commenter are unreliable for
projecting nonattainment status even if EPA believed it was appropriate
to use modeling for this purpose for the 1997 8-hr ozone NAAQS.
---------------------------------------------------------------------------
\16\ See UBAQS, pp. 4-27 to 4-29.
\17\ EPA, 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 (2007), available at https://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
\18\ Id., DVC x RRF = DVF.
\19\ See UBAQS, p. 4-28.
---------------------------------------------------------------------------
Finally, even if it were appropriate to consider modeled violations
and the modeling were reliable for this purpose, the commenter has not
raised any convincing evidence that emissions from New Mexico sources
are impacting southwestern Utah during the predicted high ozone events.
Specifically, no assessment or source apportionment was performed that
indicated sources in New Mexico contributed to the three grid cells
with modeled high values that may be modeled nonattainment values in
Utah. In fact, the predominant wind direction would not carry emissions
from New Mexico into southwestern Utah. Furthermore, in evaluating the
Figures provided (Fig 4-3a to 4-4b) and other information in the
modeling report, the modeling also does not indicate that emissions
from New Mexico are impacting the higher modeled ozone values in the
southwestern Utah area.
In summary, EPA does not agree that it is appropriate for purposes
of section 110(a)(2)(D) to use modeled nonattainment as a basis for
evaluation, for these two NAAQS (1997 8-hour ozone NAAQS and PM 2.5
NAAQS) especially in light of the concerns with the modeling discussed
above. Even if EPA were to use modeling for this purpose, the UBAQS
modeling analyses does not clearly predict violations of the 1997 8-
hour ozone NAAQS in western Colorado and eastern Utah. In particular,
the UBAQS modeling does not clearly establish violations of the NAAQS
in southwestern Utah because of the way the results were reported.
Significantly, the model does project violations in the Salt Lake City
area (in 2006 and 2012 model years), but monitors in the area do not
substantiate these modeled predictions. Based on monitoring data for
2007-2009, the Salt Lake City area does not have a monitored design
value within 6 ppb of the level of the 1997 8-hour ozone NAAQS. In
addition, EPA does not consider the UBAQS modeling reliable because the
modeling deviates from EPA guidance and appears to have an over-
prediction bias. Finally, the commenter did not provide evidence that
emissions from New Mexico in fact contributed significantly to the
modeled exceedances or violations projected in this modeling.
Comment No. 5--In support of its arguments that EPA should not
assess significant contribution to nonattainment through evaluation of
impacts at monitors instead of modeling impacts where there is no such
monitor, the commenter cited a past statement by EPA to the effect that
the ozone monitoring 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
34525 (July 16, 2009). From this statement, the commenter argues that
it is not appropriate for EPA to limit evaluation of significant
contribution to nonattainment of the ozone NAAQS in other states to
reliance on monitoring data instead of modeled ambient levels.
EPA Response--EPA does not disagree that there are relatively few
ozone monitors in the western states, and that relatively few of these
ozone 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 the 1997 8-hour
ozone NAAQS, the subject of this rulemaking, but rather the next
iteration of the ozone NAAQS. Because the new ozone standard is likely
to be significantly more stringent than the 1997 8-hour ozone NAAQS, it
is anticipated 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 a newer
ozone NAAQS does not 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 the deployment of monitors in
the state meets the applicable regulatory requirements and guidance
recommendations.
For example, New Mexico itself submits just such a report on an
annual basis, and EPA reviews it for adequacy.\20\ All states submit
comparable reports. Absent a specific concern that another state's
current monitor network is inadequate to evaluate ambient levels of the
1997 8-hour ozone NAAQS, EPA has no reason to believe that the
evaluation of possible significant contribution from New Mexico sources
in reliance on those monitors is incorrect.
---------------------------------------------------------------------------
\20\ See the New Mexico Annual Monitoring Network Plan dated
July 14, 2009. The plan is available for review at the
regulations.gov Web site under Docket ID No. EPA-R06-OAR-
2007-0993.
---------------------------------------------------------------------------
Comment No. 6--The commenter objected to EPA's proposed approval of
the New Mexico's SIP submission because neither New Mexico nor EPA
performed a specific modeling analysis to assure that emissions from
New Mexico sources do not significantly contribute to nonattainment of
the 1997 8-hour ozone NAAQS in downwind States.
EPA Response--First, this comment is incorrect. EPA and New Mexico
did provide modeling as part of the evaluation of whether emissions
from sources in New Mexico impact monitors with violating data in other
states. The modeling is discussed in the proposed federal register and
technical support document for this action and is one of the primary
considerations in EPA's approval. The modeling that the commenter
claims is necessary but absent, is modeling to assess impacts in areas
with no monitors. As explained above, EPA believes that the assessment
of significant contribution to nonattainment under section 110(a)(2)(D)
for these NAAQS should be based upon impacts at monitors.
Second, EPA disagrees with the commenter's belief that only
modeling can establish whether or not there is significant contribution
from one state to another. 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
[[Page 33180]]
recommended other forms of information that states might wish to
evaluate as a qualitative approach as part of their section
110(a)(2)(D) submissions for the 1997 8-hour ozone NAAQS. EPA has
concluded that the qualitative approach used by New Mexico in addition
to modeling to assess the existence of, and extent of, any significant
contribution to downwind ozone nonattainment is consistent with EPA's
2006 Guidance.
Comment No. 7--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), the commenter 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.\21\ The
commenter 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 New Mexico's 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).
---------------------------------------------------------------------------
\21\ WG's April 16, 2010 comment letter, pp. 8-9. 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-R06-OAR-2007-0993-
0008.3 through 0993-0008.6.
---------------------------------------------------------------------------
EPA Response--As explained above, this comment is misplaced because
EPA and New Mexico did employ modeling as part of the evaluation.
Further, EPA disagrees with the commenter's fundamental argument that
modeling is mandatory in all instances in order 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 could lead to
demonstration of the satisfaction of the interstate transport
requirements for significant contribution to nonattainment in other
states. 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.'' Even EPA's own CAIR analysis relied on a
combination of qualitative and quantitative analyses. EPA's CAIR
analysis excluded certain western states on the basis of a qualitative
assessment of topography, geography, and meteorology.\22\
---------------------------------------------------------------------------
\22\ See 69 FR 4581, January 30, 2004.
---------------------------------------------------------------------------
Furthermore, EPA believes that the commenter's references to EPA
statements commenting on the actions of other agencies are inapposite.
As the commenter is aware, those comments were made in the context of
the evaluation of the impacts of various federal actions pursuant to
National Environmental Policy Act, not the Clean Air Act. As explained
above, in the context of section 110(a)(2)(D), EPA does not agree that
only modeling is always required to make that different type of
evaluation, and EPA itself has relied on other more qualitative
evidence when it deemed that evidence sufficient to reach a reasoned
determination.
Comment No. 8--In further support of its argument that EPA should
require a specific type of modeling to evaluate significant
contribution to nonattainment, the commenter 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 sources in New Mexico do not contribute significantly to
nonattainment for the 1997 8-hour ozone NAAQS in any other state
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). This
modeling may also be appropriate under certain circumstances for
maintenance SIPs under section 110(a)(1). Thus, the commenter's cited
regulation is not relevant to EPA's technical demonstration assessing
whether emissions from New Mexico contribute significantly to
nonattainment in any other states under section 110(a)(2)(D)(i).
Comment No. 9--The commenter expressed concern with EPA statements
in the proposed approval about the current factual attainment of the
Denver Metro/North Front Range area of Colorado. The commenter noted
that nine counties in the Denver area are currently formally designated
``nonattainment'' for the 1997 8-hour ozone NAAQS. The commenter took
issue with EPA's description of the nature of the nonattainment problem
in this area as resulting from an unusually bad ozone season that
``temporarily'' resulted in violations of the NAAQS. The commenter
argued that data from the 2001-2003 period and the 2005-2007 period
showed consistent violations of the 1997 8-hour ozone NAAQS in the
Denver area, and that these violations are the reason for the current
nonattainment designation.
EPA Response--EPA disagrees that formal designation status of an
area is the most important consideration in evaluating the existence
of, and extent of, the impacts of interstate transport from one state
to another. In past actions under section 110(a)(2)(D), EPA has
interpreted that provision to turn upon the actual monitored ambient
levels in a downwind area, regardless of the formal designation status
of the area. For example, EPA developed the CAIR
[[Page 33181]]
rule based upon evaluation of monitor data showing violations of the
1997 PM2.5 NAAQS in certain areas, in advance of completing
the designation process for those NAAQS under section 107(d). \23\ EPA
agrees that the designation status of an area is a relevant
consideration, but the actual monitored ambient levels are an
appropriate measure, especially when there is evidence that the
monitored levels are different than reflected by the designation for
the area. EPA itself has also looked to future attainment status as a
means of evaluating the presence of, and extents of, interstate
transport. This analysis depends not upon the anticipated formal
designation status of the area, but rather upon the anticipated
monitored level of the area.\24\
---------------------------------------------------------------------------
\23\ See: Final CAIR rule, 70 FR 25,162, 25,263-25,269.
\24\ EPA notes that the commenter itself also made the argument
that nonattainment for purposes of section 110(a)(2)(D) should be
viewed ``in terms of air quality, and not in terms of area
designations'' on page 2 of its own comment letter.
---------------------------------------------------------------------------
EPA believes that the commenter is placing undue importance upon
the EPA's characterization of the data from Denver area monitors as
``temporarily'' in nonattainment based on the ``bad'' ozone season of
2007. EPA agrees that this area has historically had relatively high
ambient levels. However, as explained in the proposal, these levels
have improved, and more importantly, have improved during the period
that is most relevant and most recent. As noted in the proposal, recent
monitoring data from the Denver area for the 2007-2009 period indicates
that the area is below the level of the NAAQS. For this trend to
change, EPA anticipates that the Denver area would have to have
dramatically higher ozone levels in 2010 than the area has experienced
for many years. EPA believes that it is more reasonable to conclude
that the monitored attainment of this area at the time of the analysis
done by New Mexico will continue. Therefore there could not be
significant contribution from sources in New Mexico to nonattainment in
Denver.
EPA believes that the downward trend in monitored nonattainment in
the Denver area supports this conclusion. At the time the modeling was
performed to support the state's section 110(a)(2)(D) submission,
Denver was monitoring attainment (the 2004-2006 8-Hour Ozone Design
Value (DV) was 81 ppb).\25\ In 2007, the Denver area experienced a
particularly bad ozone season, and inclusion of the data from this year
did temporarily affect the monitored values in this area. However, the
most recent data for this area, preliminary data for 2007-2009 DV
(awaiting final data validation), is 82 ppb even with inclusion of the
very high ozone values from 2007. Thus, the area's most recent DV based
upon preliminary data is several ppb below the 1997 8-hour ozone NAAQS,
and the area is therefore currently monitoring attainment.
---------------------------------------------------------------------------
\25\ Data from EPA's Air Quality System which is EPA's
repository of ambient air quality data. (https://www.epa.gov/ttn/airs/airsaqs/).
---------------------------------------------------------------------------
The downward trend in ozone concentrations is in part the result of
a sustained effort to attain the NAAQS in the Denver area. The Denver
area has seen a drop in ozone levels in the last 10 years attributable
in part to federal measures that have reduced mobile source emissions.
In addition, Colorado adopted an Ozone Action Plan in December 2008
that included additional reductions in emissions of ozone precursors
(NOX and VOCs), that will further aid the area in
maintaining attainment. Given these facts, EPA concludes that the
monitored attainment of the 1997 8-hour ozone NAAQS in the Denver area
is likely to continue.
Comment No. 10--The commenter also disputed the EPA statement in
the proposal that it is ``unlikely that Denver will be in nonattainment
at the end of the 2010 ozone season,'' and questioned why EPA did not
cite or include any actual model data to support this assertion. The
commenter specifically took issue with EPA's reference to the ``2010
ozone season'' in the proposal because section 110(a)(2)(D) would
prohibit significant contribution to nonattainment at all times, not
simply during the ``2010 ozone season.''
EPA Response--As discussed above, EPA believes the monitoring data
adequately demonstrates that the Denver area is attaining the standard
and is likely to continue to do so. The commenter is correct that EPA
did not cite modeling that showed that Denver would be in attainment in
2010 in the proposal. We are aware, however, of the photochemical
modeling for Denver completed as part of the ``Ozone Action Plan''
adopted by Colorado in December 2008.\26\ This plan included the
benefits of federal measures and fleet turnover and additional local
NOX and VOC reductions. The plan also included photochemical
modeling that indicated all monitors in the area would be in attainment
of the 1997 8-hour ozone NAAQS in 2010. The modeling results supplement
the monitoring results discussed previously indicating the area is in
attainment and will be in attainment in 2010.
---------------------------------------------------------------------------
\26\ ``Denver Metro Area & North Front Range Ozone Action Plan
Including Revisions to the State Implementation Plan'', Approved by
Colorado Air Quality Control Commission, December 12, 2008.
---------------------------------------------------------------------------
Further, EPA believes that the commenter is mistakenly assuming
that EPA's reference to the ``2010 ozone season'' implied that section
110(a)(2)(D) would not require the elimination of emissions from
sources in an upwind state that significantly contributed to violations
of a NAAQS at any time of the year. In the case of the 1997 8-hour
ozone NAAQS, however, it is a fact that there is an ``ozone season'' in
many places across the county. Higher ozone concentration levels
typically occur during the warmer, sunnier portions of the year,
especially the summer. Like most areas, Denver has an ozone season.
Therefore, it is not unreasonable for EPA to evaluate the likely
impacts of data from monitors in this area during the ``ozone season.''
EPA also disagrees that an evaluation focused on impacts on 2010
levels is not adequate for purposes of section 110(a)(2)(D). As further
discussed elsewhere in this notice, EPA's 2006 Guidance to states for
section 110(a)(2)(D) SIP submissions recommended that states might
elect to evaluate the existence of, and extent of, significant
contribution to nonattainment in other states by evaluating impacts as
of an appropriate year (such as 2010) and in light of the cost of
control to mitigate emissions that resulted in interstate transport.
EPA itself in the context of the CAIR rule evaluated whether there
would be such impacts in 2010. This year was a reasonable choice,
because it correlated with the presumptive attainment dates for states
with nonattainment areas. For example, in the case of the 1997
PM2.5 NAAQS, the applicable attainment date is as
expeditiously as practicable, but not later than five years from the
effective date of the designation, i.e., by 2010. Because 2010 is a
reasonable date for this analysis, given the purpose of section
110(a)(2)(D), and is consistent with EPA's recommendations in the 2006
Guidance, EPA concludes that the selection of this date for the
analysis supporting the New Mexico submission was appropriate. The
commenter did not suggest another date that would be more appropriate
nor did they explain the basis for requiring a different year for this
analysis.
Comment No. 11--The commenter also asserted that EPA was wrong in
stating that the Denver area had not experienced a 4th highest 8-hour
ozone reading of 92 ppb in the last 15 years. The commenter claimed
that the Denver metro area experienced a 4th highest
[[Page 33182]]
max of 95 ppb at the Roxborough Park monitor in Douglas County in 2005
and of 95 ppb at the Applewood monitor in Jefferson County in 1998 and
in 2003.
EPA Response--In response to this comment, EPA rechecked the data
in the EPA's Air Quality System (AQS) and believes the commenter was in
error that a fourth highest maximum of 95 ppb occurred at the
Roxborough Park (also know as the Chatfield monitor) monitor in 2005.
EPA's AQS indicates a value of 84 ppb in 2005. However, EPA's AQS does
indicate that a 95 ppb 4th high occurred in 2003 at the Roxborough Park
monitor and this may be the date that the commenter intended. In any
event, upon closer examination, EPA concludes that the commenter is
correct that values above 92 ppb have occurred in the Denver area in
the last 15 years.
EPA also notes that the current DVs (2007-2009) for these two
monitors (Roxborough Park and Applewood) are 77 ppb and 76 ppb, which
is well below the 1997 8-hour ozone NAAQS. Furthermore, these monitors
would have to have fourth high daily maximum 8-hour monitored values of
104 and 111 ppb respectively in 2010 to have a 2008-2010 DV violating
the 1997 8-hour ozone NAAQS. The fourth high daily maximum value
monitored the last 15 years in the Denver area was 95 ppb which is
significantly lower than the 104 or 111 ppb values that would have to
be monitored for either of these two monitors to be violating the 1997
8-hour ozone NAAQS.
Therefore, EPA believes that the commenter's correction that there
have been higher values (maximum of 95 ppb in the last 15 years) at
monitors in the Denver area does not fundamentally affect EPA's
evaluation in this case. The higher values were not at the monitor that
was the basis for the Denver area design value in the last several
years. The monitor that has been the basis for the Denver area DV has
been the Rocky Flats North monitor. Even though the commenter is
correct that the area has monitored higher values at certain monitors
in the past, these monitors are not the monitors that have in recent
years determined whether the area will continue to monitor attainment
because they have not recorded the highest design value in the area.
The Rocky Flats North monitor has the highest 2007-2009 Denver area DV
of 82 ppb and is based upon fourth high values of 90 ppb in 2007, 79
ppb in 2008, and 79 ppb in 2009. This monitor would have to have a
fourth high daily maximum of 97 ppb in 2010 to result in a violation of
the 1997 8-hour ozone NAAQS. Therefore, it does not change EPA's
conclusion that the Denver area continues to monitor attainment and
therefore emissions from sources in New Mexico cannot be contributing
significantly to violations of the 1997 8-hour ozone NAAQS in this
area.
Comment No. 12--The commenter also pointed to modeling data used by
New Mexico that appears to contradict the conclusion that emissions
from New Mexico do not contribute significantly to violations of the
1997 8-hour ozone NAAQS in Denver. The commenter argued that data
available in New Mexico's own technical support document that was part
of EPA's record (Docket No. EPA-R06-OAR-2007-0993) establish that
emissions from New Mexico sources ``often contributes greater than 2
parts per billion in ozone on days when exceedances of the 1997 ozone
NAAQS are recorded in Denver'' and can contribute ``more than 5% to
Denver's total ozone concentrations.'' Finally, the commenter argued
that New Mexico wrongly assumed that this amount of contribution was
not relevant ``under the assumption that the region was not in
nonattainment'' when the area is currently designated nonattainment.
EPA Response--EPA disagrees with the commenter's conclusions drawn
from the modeling. The modeling was conducted using an emissions
inventory from 2002. Because emissions in the year 2010 are expected to
be lower, EPA considers this modeling to be a conservative estimate of
ozone levels in the future and of the impact of New Mexico's emissions
on other states. EPA believes that the modeling shows higher impacts
than are actually occurring. The modeling utilized existing CENRAP
modeling databases available at the time and the source apportionment
evaluation was conducted using the 2002 emission inventory databases.
Because the available databases were for 2002 and not 2010, EPA
considers the results of the modeling conservative because significant
emission reductions are expected to occur throughout the modeled area
between 2002 and 2010 (as a result of both federal and state measures,
including fleet turnover impacts) that would result in lower ambient
ozone levels and fewer exceedances of the 1997 8-hour ozone NAAQS
throughout the modeling domain.
Specifically, there are three elements in this analysis that EPA
concludes lead to overestimation of the impacts of New Mexico sources
and therefore mak