[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Rules and Regulations]
[Pages 43906-43912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18421]



[EPA-R08-OAR-2009-0809; FRL-9442-1]

Approval and Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient 
Air Quality Standard; Colorado

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving the State Implementation Plan (SIP) 
submission from the State of Colorado to demonstrate that the SIP meets 
the requirements of Sections 110(a)(1) and (2) of the Clean Air Act 
(CAA) for the National Ambient Air Quality Standards (NAAQS) 
promulgated for ozone on July 18, 1997. Section 110(a)(1) of the CAA 
requires that each state, after a new or revised NAAQS is promulgated, 
review their SIPs to ensure that they meet the requirements of the 
``infrastructure elements'' of section 110(a)(2). The State of Colorado 
submitted a certification, dated January 7, 2008, that its SIP met 
these requirements for the 1997 ozone NAAQS. The certification was 
determined to be complete on March 27, 2008 (73 FR 16205).

DATES: Effective Date: This final rule is effective August 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2009-0809. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at 
all possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
[email protected].



    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 
statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 
are to be submitted by states within three years after promulgation of 
a new or revised standard. Section 110(a)(2) provides basic 
requirements for SIPs, including emissions inventories, monitoring, and 
modeling, to assure attainment and maintenance of the standards. These 
requirements are set out in several ``infrastructure elements,'' listed 
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, and the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time a state 
develops and submits its SIP for a new or revised NAAQS affects the 
content of the submission. The contents of such SIP submissions may 
also vary depending upon what provisions a state's existing SIP already 
contains. In the case of the 1997 ozone NAAQS, states typically have 
met the basic program elements required in section 110(a)(2) through 
earlier SIP submissions in connection with previous NAAQS. In a 
guidance issued on October 2, 2007, EPA noted that, to the extent an 
existing SIP already meets the section 110(a)(2) requirements, states 
need only to certify that fact via a letter to EPA.\1\

    \1\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' (Oct. 2, 2007).

    On March 27, 2008, EPA published a final rule entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans 
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a 
finding for each state that it had submitted or had failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In 
particular, EPA found that Colorado had submitted a complete SIP 
(``Infrastructure SIP'') to meet these requirements.
    On May 18, 2011, EPA published a notice of proposed rulemaking 
(NPR) for the State of Colorado (76 FR 28707) to act on the State's 
Infrastructure SIP for the 1997 ozone NAAQS. Specifically, in the NPR 
EPA proposed approval of Colorado's SIP as meeting the requirements of 
all section 110(a)(2) elements with respect to the 1997 ozone NAAQS, 
aside from elements 110(a)(2)(D)(i), 110(a)(2)(I), and the visibility 
protection requirement of element 110(a)(2)(J), on which EPA did not 
propose action.\2\ EPA received a comment on section 110(a)(2)(E)(ii), 
and EPA is not finalizing today its proposed approval for this sub-
element in order to fully respond to that comment.

    \2\ See the NPR (76 FR 28707) for further explanation regarding 
the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the 

    EPA proposed to approve element 110(a)(2)(C) for the 1997 ozone 
NAAQS in the event that the State clarified (or modified) its January 
7, 2008 certification to ensure consistency with two rules related to 
regulation of

[[Page 43907]]

greenhouse gas (GHG) emissions: ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (``Tailoring 
Rule''), 75 FR 31514 (June 3, 2010), and ``Limitation of Approval of 
Prevention of Significant Deterioration Provisions Concerning 
Greenhouse Gas Emitting-Sources in State Implementation Plans'' (``PSD 
SIP Narrowing Rule''), 75 FR 82536 (Dec. 30, 2010). In the PSD SIP 
Narrowing Rule, EPA withdrew its previous approval of Colorado's 
prevention of significant deterioration (PSD) program to the extent 
that it applied PSD permitting to GHG-emissions increases from GHG-
emitting sources below thresholds set in the Tailoring Rule. EPA 
withdrew its approval on the basis that the State lacked sufficient 
resources to issue PSD permits to such sources at the statutory 
thresholds in effect in the previously-approved PSD program. After the 
PSD SIP Narrowing Rule, the portion of Colorado's PSD SIP from which 
EPA withdrew its approval had the status of having been submitted to 
EPA but not yet acted upon. In its February 1, 2008 certification, 
Colorado relied on its PSD program as approved at that date--which was 
before December 30, 2010, the effective date of the PSD SIP Narrowing 
Rule--to satisfy the requirements of infrastructure element 
110(a)(2)(C). Given EPA's basis for the PSD SIP Narrowing Rule, EPA 
proposed approval of the Colorado Infrastructure SIP for infrastructure 
element (C) if either the State clarified (or modified) its 
certification to make clear that the State relies only on the portion 
of the PSD program that remains approved after the PSD SIP Narrowing 
Rule issued on December 30, 2010, and for which the State has 
sufficient resources to implement, or the State acted to withdraw from 
EPA consideration the remaining portion of its PSD program submission 
that would have applied PSD permitting to GHG sources below the 
Tailoring Rule thresholds. On May 10, 2011, EPA received a letter from 
Colorado clarifying that the State relies only on the portion of the 
PSD program that remains approved after the PSD SIP Narrowing Rule 
issued on December 30, 2010.\3\

    \3\ Colorado's May 10, 2011 clarification letter is available in 
the docket for this action.

Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on the infrastructure SIP 
submissions.\4\ The commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements that it would 
address two issues separately and not as part of actions on the 
infrastructure SIP submissions: (i) Existing provisions related to 
excess emissions during periods of start-up, shutdown, or malfunction 
at sources, that may be contrary to the CAA and EPA's policies 
addressing such excess emissions (``SSM''); and (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated that it would address the issues 
separately: (i) Existing provisions for minor source new source review 
programs that may be inconsistent with the requirements of the CAA and 
EPA's regulations that pertain to such programs (``minor source new 
source review (NSR)''); and (ii) existing provisions for PSD programs 
that may be inconsistent with current requirements of EPA's ``Final NSR 
Improvement Rule,'' 67 FR 80,186 (December 31, 2002), as amended by 72 
FR 32,526 (June 13, 2007) (``NSR Reform''). In light of the comments, 
EPA now believes that its statements in various proposed actions on 
infrastructure SIPs with respect to these four individual issues should 
be explained in greater depth with respect to these issues.

    \4\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.

    EPA intended the statements in the proposals concerning these four 
issues merely to be informational, and to provide general notice of the 
potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
reapproval of any existing provisions that relate to these four 
substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issue in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements, however, we want to explain more fully the Agency's 
reasons for concluding that these four potential substantive issues in 
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may

[[Page 43908]]

prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof)'' and that these SIPS are to 
provide for the ``implementation, maintenance, and enforcement'' of 
such NAAQS. Section 110(a)(2) includes a list of specific elements that 
``[e]ach such plan'' submission must meet. EPA has historically 
referred to these particular submissions that states must make after 
the promulgation of a new or revised NAAQS as ``infrastructure SIPs.'' 
This specific term does not appear in the statute, but EPA uses the 
term to distinguish this particular type of SIP submission designed to 
address basic structural requirements of a SIP from other types of SIP 
submissions designed to address other different requirements, such as 
``nonattainment SIP'' submissions required to address the nonattainment 
planning requirements of part D, ``regional haze SIP'' submissions 
required to address the visibility protection requirements of CAA 
section 169A, NSR permitting program submissions required to address 
the requirements of part D, and a host of other specific types of SIP 
submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\5\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\6\

    \5\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each SIP contains adequate provisions to prevent significant 
contribution to nonattainment of the NAAQS in other states. This 
provision contains numerous terms that require substantial 
rulemaking by EPA in order to determine such basic points as what 
constitutes significant contribution. See, e.g., ``Rule To Reduce 
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air 
Interstate Rule); Revisions to Acid Rain Program; Revisions to the 
NOX SIP Call; Final Rule,'' 70 FR 25,162 (May 12, 
2005)(defining, among other things, the phrase ``contribute 
significantly to nonattainment'').

    Notwithstanding that section 110(a)(2) states that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\7\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\8\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the SIP. Finally, EPA 
notes that not every element of section 110(a)(2) would be relevant, or 
as relevant, or relevant in the same way, for each new or revised NAAQS 
and the attendant infrastructure SIP submission for that NAAQS. For 
example, the monitoring requirements that might be necessary for 
purposes of section 110(a)(2)(B) for one NAAQS could be very different 
than what might be necessary for a different pollutant. Thus, the 
content of an infrastructure SIP submission to meet this element from a 
state might be very different for an entirely new NAAQS, versus a minor 
revision to an existing NAAQS.\9\

    \7\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \8\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``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,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \9\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.

    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\10\ Within this

[[Page 43909]]

guidance document, EPA described the duty of states to make these 
submissions to meet what the Agency characterized as the 
``infrastructure'' elements for SIPs, which it further described as the 
``basic SIP requirements, including emissions inventories, monitoring, 
and modeling to assure attainment and maintenance of the standards.'' 
\11\ As further identification of these basic structural SIP 
requirements, ``attachment A'' to the guidance document included a 
short description of the various elements of section 110(a)(2) and 
additional information about the types of issues that EPA considered 
germane in the context of such infrastructure SIPs. EPA emphasized that 
the description of the basic requirements listed on attachment A was 
not intended ``to constitute an interpretation of'' the requirements, 
and was merely a ``brief description of the required elements.'' \12\ 
EPA also stated its belief that with one exception, these requirements 
were ``relatively self explanatory, and past experience with SIPs for 
other NAAQS should enable States to meet these requirements with 
assistance from EPA Regions.''\13\ For the one exception to that 
general assumption, however, i.e., how states should proceed with 
respect to the requirements of section 110(a)(2)(G) for the 1997 
PM2.5 NAAQS, EPA gave much more specific recommendations. 
But for other infrastructure SIP submittals, and for certain elements 
of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that 
each state would work with its corresponding EPA regional office to 
refine the scope of a state's submittal based on an assessment of how 
the requirements of section 110(a)(2) should reasonably apply to the 
basic structure of the SIP for the NAAQS in question.

    \10\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA 
issued comparable guidance for the 2006 PM2.5 NAAQS 
entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
    \11\ Id., at page 2.
    \12\ Id., at attachment A, page 1.
    \13\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.

    Significantly, the 2007 Guidance did not explicitly refer to the 
SSM, director's discretion, minor source NSR, or NSR Reform issues as 
among specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, 
EPA did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in the context of the infrastructure SIPs for these 
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that 
the states should make submissions in which they established that they 
have the basic SIP structure necessary to implement, maintain, and 
enforce the NAAQS. EPA believes that states can establish that they 
have the basic SIP structure, notwithstanding that there may be 
potential deficiencies within the existing SIP. Thus, EPA's proposals 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a SIP is substantially 
inadequate to attain or maintain the NAAQS, to mitigate interstate 
transport, or otherwise to comply with the CAA.\14\ Section 110(k)(6) 
authorizes EPA to correct errors in past actions, such as past 
approvals of SIP submissions.\15\ Significantly, EPA's determination 
that an action on the infrastructure SIP is not the appropriate time 
and place to address all potential existing SIP problems does not 
preclude the Agency's subsequent reliance on provisions in section 
110(a)(2) as part of the basis for action at a later time. For example, 
although it may not be appropriate to require a state to eliminate all 
existing inappropriate director's discretion provisions in the course 
of acting on the infrastructure SIP, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that the Agency cites in 
the course of addressing the issue in a subsequent action.\16\

    \14\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \15\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR 
34,641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57,051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \16\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21,2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4,540 (Jan. 26, 2011) (final disapproval of such provisions).

II. Response to Comments

    EPA received one letter on June 17, 2011 containing comments from

[[Page 43910]]

WildEarth Guardians (WG), an environmental organization. The 
significant comments made in WG's June 17, 2011 letter and EPA's 
responses to those comments are given below.
    Comment No. 1: The commenter claimed that Colorado ``lacks adequate 
funding in accordance with CAA section 110(a)(2)(E)(i).'' As evidence 
of this question of sufficient funding, the commenter cited a Colorado 
Legislative Council (CLC) fiscal note stating that the Colorado Air 
Pollution Control Division's (APCD) resources are inadequate to process 
all of the approximately 2,500 to 3,000 air permit applications the 
State receives annually, causing a backlog of approximately 1,200 
unprocessed permits as of April 2011. The commenter argued that this 
indicates Colorado lacks adequate resources to implement its SIP (in 
particular, permitting programs) and that the SIP is therefore 
deficient with respect to section 110(a)(2)(E)(i).
    The commenter attributed APCD's lack of adequate resources to the 
State charging Title V permit applicants permit fees ``far below the 
minimum requirements under Title V.'' The commenter described the fees 
charged by the State and compared them to amounts in an EPA memorandum 
discussing the presumptive minimum fee for 40 CFR part 70 (title V) 
programs. Although the commenter noted that the State does charge a 
variety of fees in connection with the title V program, the commenter 
argued that there is no indication that the fees charged by the State, 
in aggregate, meet the presumptive minimum fee.
    Finally, the commenter used the same arguments to claim EPA does 
not have an adequate basis to approve Colorado's SIP for the 
requirements of CAA section 110(a)(2)(L).
    EPA Response: EPA disagrees with the commenter's conclusions 
concerning the adequacy of the Colorado infrastructure SIP with respect 
to both section 110(a)(2)(E)(i) and (L). First, with regard to the 
reported statement by the CLC, EPA notes that the commenter in a number 
of places referred to this as a statement by ``Colorado'' as though the 
CLC is the equivalent of the State. However, the cited document is an 
analysis by the CLC staff of a Colorado Senate bill. The CLC staff is a 
nonpartisan research arm of the State Assembly; in other words, the CLC 
staff is part of the legislative branch of the State government. EPA 
has no reason to question the conclusions of the CLC, but those 
conclusions are not the equivalent of an official statement by the 
State itself with respect to the issue relevant in this action.
    On the other hand, Colorado's infrastructure SIP certification that 
is before EPA for approval was submitted by the director of the 
Colorado Department of Public Health and Environment (CDPHE), an 
executive branch agency that includes the Colorado APCD. EPA considers 
the submission to have come from the organization within the State that 
is the best judge of the overall resources available for implementation 
of the SIP. In its certification, CDPHE discussed the budget and staff 
of the APCD and indicated that both were sufficient to carry out 
Colorado's SIP. Section 110(a)(2)(E) requires that the SIP provide 
(among other things) necessary assurances that the State have adequate 
personnel and funding to carry out the SIP. EPA concludes that the 
certification provides these necessary assurances.
    In addition, EPA notes that the CLC statements cited by the 
commenter speak only to the resources available to process permits. 
Based on the information provided by the commenter, the backlog would 
appear to amount to a delay of approximately 5-6 months for a permit. 
While delays are very problematic, such delays are not evidence of an 
inability to implement the requirements of the SIP at all. Moreover, 
the CLC staff analysis noted that the purpose of the bill is to address 
the backlog; the bill does so by providing for APCD-approved third 
party contractors to perform modeling for sources not subject to PSD. 
The bill was signed into law by the Governor of Colorado on June 9, 
2011. EPA therefore disagrees with the commenter's conclusion that EPA 
cannot approve Colorado's infrastructure SIP for section 
110(a)(2)(E)(i) on the basis of the statement in the CLC staff 
    Turning to fees charged by Colorado under its title V program, EPA 
notes that, in general, title V programs are not part of the SIP.\17\ 
Thus, such programs are not part of the requirements of section 
110(a)(2). Furthermore, section 502(b)(3) of the Act requires not only 
that title V program fees cover the reasonable direct and indirect 
costs of developing and administering the title V program, but also 
requires that the fees be used only to cover those costs. EPA therefore 
disagrees with the comment that the alleged flaws in the title V 
program with respect to the amount of fees charged by the State prevent 
EPA from approving the Colorado infrastructure SIP for the 1997 ozone 
NAAQS for element 110(a)(2)(E)(i). The State provided evidence that its 
overall budget is sufficient to carry out its obligations and the issue 
raised by the commenter does not refute that overall budget.

    \17\ In the case of Colorado, the Title V program is not part of 
the SIP, with the exception of the fee program. Section 
110(a)(2)(E)(i) requires adequate resources to carry out the SIP. As 
the Title V program--except the fee program itself--is not part of 
the SIP, 110(a)(2)(E)(i) does not require an assessment of whether 
the fees are adequate to implement the Title V program in its 

    EPA also disagrees with the commenter's argument that the amount of 
fees charged by the State in its title V program renders the 
infrastructure SIP unapprovable with respect to section 110(a)(2)(L). 
As stated in the text of the section, 110(a)(2)(L) is no longer 
applicable to title V operating permit programs after approval of such 
programs. As noted in the NPR, 76 FR at 28714, final approval of 
Colorado's title V operating permit program became effective October 
16, 2000 (65 FR 49919). EPA therefore disagrees with the comment that 
EPA cannot approve Colorado's infrastructure SIP for section 
110(a)(2)(L) on the basis of alleged flaws in Colorado's title V 
    Comment No. 2: The commenter argued that Colorado's SIP fails to 
meet the PSD requirements of section 110(a)(2)(J) due to a lack of 
ozone impact analysis for new or modified major sources. The commenter 
alleged a number of specific inadequacies, which EPA discusses 
separately below.
    Comment 2.a: The commenter asserted that the SIP does not require 
the APCD to ensure that a new or modified source does not cause or 
contribute to violations of the ozone NAAQS prior to issuance. The 
commenter cited section 165(a)(3) of the Act and quoted the language of 
40 CFR 51.166(k)(1). The commenter later stated that nothing in the 
Colorado SIP explicitly requires that ozone impacts be addressed in the 
context of issuing a PSD permit.
    EPA Response: EPA disagrees with the commenter's interpretation of 
the Colorado SIP. Section VI.A.2 of part D of Regulation Number 3 in 
the Colorado SIP, applicable to sources subject to PSD, specifically 
requires a source impact analysis.\18\ The language of section VI.A.2 
mirrors the language in 40 CFR 51.166(k)(1) quoted by the commenter. In 
addition, there is nothing

[[Page 43911]]

in this section or any other section of the SIP that exempts sources 
from carrying out the source impact analysis for the 1997 ozone NAAQS. 
Nor does the commenter cite any provision of the SIP that creates such 
an exemption. EPA concludes that the commenter is therefore in error in 
stating that the Colorado SIP does not require the source impact 
analysis set out in 40 CFR 51.166(k)(1). Furthermore, section VI.A.2 
requires the owner or operator of the proposed new source or 
modification to demonstrate that the construction or modification of 
the source will not cause or contribute to a violation of any NAAQS. 
Such language includes the 1997 8-hour ozone NAAQS; thus the commenter 
is also in error in stating that the SIP does not specifically require 
ozone impacts to be addressed.

    \18\ This provision was previously in part B of Regulation 
Number 3. On May 31, 2011, Region 8 finalized an action that (among 
other things) approved Colorado's reorganization of its PSD program 
into the new part D of Regulation Number 3. The notice of the final 
action has not yet been published in the Federal Register, but a 
copy of Colorado's submittal and the signed notice can be found in 
Docket No. [xxx].

    Comment 2.b: The commenter stated that the SIP is deficient because 
it does not identify any significant impact levels for ozone.
    EPA Response: EPA has not identified significant impact levels 
(SILs) for ozone.\19\ The comment therefore does not provide any basis 
for EPA to change its proposed approval of the Colorado infrastructure 
SIP for section 110(a)(2)(C) or (J) for the 1997 ozone NAAQS.

    \19\ For an explanation and discussion of SILs, in the context 
of PM2.5, see 75 FR 64864 (Oct. 20, 2010).

    Comment 2.c: The commenter asserted that section VI.A.3.e of Part D 
of Regulation Number 3 ``explicitly allows the owner or operator of a 
proposed major source or major modification to forego a pre-
construction ozone analysis altogether.''
    EPA Response: EPA disagrees with the commenter's characterization 
of the Colorado SIP. First, EPA notes that section VI.A.3.e (and the 
parallel provision in 40 CFR 51.166(m)(1)(v)) applies only if a 
proposed major stationary source or major modification of volatile 
organic compounds (VOCs) meets the requirements of 40 CFR part 51, 
Appendix S, Section IV, including, in particular, the requirement to 
satisfy the lowest achievable emissions rate (LAER) for VOCs. Second, 
the commenter appears to misunderstand the scope of this provision. 
Contrary to the commenter's assertion, the provision does not exempt 
any sources from the requirement to perform the source impact analysis 
in section VI.A.2 (discussed in the response to comment 2.a above). 
Instead, the provision allows sources that (among other things) employ 
LAER for VOCs to use post-construction monitoring to replace the pre-
application air quality analysis requirements of section VI.A.3.a. This 
option is specifically provided for in 40 CFR 51.166(m)(1)(v).
    Comment 2.d: The commenter alleged that the SIP does not meet the 
requirements of 40 CFR 51.166(l)(1), which requires the SIP to base 
applications of air quality modeling in PSD permitting on the 
applicable models, data bases, and other requirements specified in 
Appendix W of 40 CFR part 51, and requires modification and 
substitution of such models to be approved by the Administrator. The 
commenter also asserted that the Colorado SIP does not specify any 
approved methodology for analyzing ozone impacts, contrary to PSD 
requirements under the CAA.
    EPA Response: EPA disagrees with the commenter's reading of the 
requirements of the Colorado SIP. The Colorado SIP includes section 
VIII.A of part A of Regulation Number 3, which specifically requires 
estimates of ambient air concentrations required under Regulation 
Number 3 to be based on applicable models, data bases, and other 
requirements generally required by the EPA. Although section VIII.A 
does not specifically reference Appendix W, in the context of the 
source impact analysis in section VI.A.2 for PSD permitting, we 
interpret this language to include the requirements specified in 
Appendix W. In addition, section VIII.A requires any modification or 
substitution of a model to be subject to public notice and comment and 
to be approved in writing by EPA (which we interpret to mean the 
Administrator or her delegee). EPA therefore disagrees with the comment 
that the Colorado SIP does not meet the requirements of 40 CFR 
51.166(l)(1). Furthermore, the comment implies that the Colorado SIP 
must specify an approved methodology for analyzing ozone impacts, but 
did not explain what provision creates such a requirement for the 
Colorado SIP. EPA therefore disagrees with the comment that the 
Colorado SIP is contrary to PSD requirements under the Act.
    Comment 2.e: The commenter stated that the APCD has not interpreted 
its SIP to require an analysis of ozone impacts. As evidence, the 
commenter quoted the following statement in APCD's modeling guidance: 
``ozone modeling is not routinely requested for construction permits, 
although it could be in unusual cases such as situations where the 
Division believes ozone standards could realistically be violated by 
the proposed source or modification.''
    EPA Response: EPA disagrees with the commenter's characterization 
of APCD's position. EPA first notes that the quoted language is in the 
chapter of the APCD modeling guidance regarding the demonstration to be 
made for construction permits for minor sources. While the relevant 
chapter of the APCD modeling guidance (regarding new major stationary 
sources and major modifications) does refer to the minor source 
chapter, it is not clear that the statement in the minor source chapter 
about the frequency of requests for ozone modeling applies to sources 
subject to PSD. Furthermore, the modeling guidance elsewhere states 
(see pages 7-9) that a source impact analysis (as discussed in the 
response to comment 2.a above and as required by the SIP) must be 
performed for sources subject to PSD.
    As discussed above in the response to comment 2.d, the Colorado SIP 
requires estimates of ambient air concentrations to be based on the 
applicable models, data bases, and other requirements generally 
required by the EPA, which EPA interprets to include the requirements 
of Appendix W of 40 CFR part 51, Guideline on Air Quality Models. 
Section 5.2.1 of Appendix W includes the Guideline recommendations for 
models to be utilized in assessing ambient air quality impacts for 
ozone. Section 5.2.1.c provides that the model users (state and local 
permitting authorities and permitting applicants) should work with the 
appropriate EPA Regional Office on a case-by-case basis to determine an 
adequate method for performing an air quality analysis for assessing 
ozone impacts. Due to the complexity of modeling ozone and the 
dependency on the regional characteristics of atmospheric conditions, 
this is an appropriate approach for assessing ozone impacts rather than 
specifying one particular preferred model nationwide, which may not be 
appropriate in all circumstances. Instead, the choice of method 
``depends on the nature of the source and its emissions. Thus, model 
users should consult with the Regional Office * * * '' Appendix W 
Section 5.2.1.c. Therefore, it is appropriate for permitting 
authorities to consult and work with EPA Regional Offices as described 
in Appendix W, including section 3.0.b and c, 3.2.2, and 3.3, to 
determine the appropriate approach to assess ozone impacts as required 
for sources subject to PSD. Although EPA has not selected one 
particular preferred model in Appendix A to Appendix W (Summaries of 
Preferred Air Quality Models) for conducting ozone impact analyses for 
individual sources, state/

[[Page 43912]]

local permitting authorities must comply with the appropriate PSD 
Federal Implementation Plan (FIP) or SIP requirements with respect to 
    EPA has had a standard approach in its PSD SIP and FIP rules of not 
mandating the use of a particular model for all circumstances, instead 
treating the choice of a particular method for analyzing ozone impacts 
as circumstance-dependent. EPA then determines whether the State's 
implementation plan revision submittal meets the PSD SIP requirements. 
As explained above, in this case the Colorado SIP meets the 
requirements of 40 CFR part 51.166(k) and (l).

III. Final Action

    In this action, EPA is approving in full the following section 
110(a)(2) infrastructure elements for Colorado for the 1997 ozone 
NAAQS: (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), 
(K), (L), and (M). EPA is taking no action today on section 
110(a)(2)(E)(ii) for the 1997 ozone NAAQS. EPA will address this sub-
element in a later action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations (42 USC 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves some state law as meeting Federal requirements 
and disapproves other state law because it does not meet Federal 
requirements; this action does not impose additional requirements 
beyond those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 USC 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
    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 September 20, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incoporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.
    40 CFR part 52 is amended as follows:


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

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

Subpart G--Colorado

2. Section 52.353 is added to read as follows:

Sec.  52.353  Section 110(a)(2) infrastructure requirements.

    On January 7, 2008 James B. Martin, Executive Director of the 
Colorado Department of Public Health and Environment for the State of 
Colorado, submitted a certification letter which provides the State of 
Colorado's SIP provisions which meet the requirements of CAA Section 
110(a)(1) and (2) relevant to the 1997 Ozone NAAQS.

[FR Doc. 2011-18421 Filed 7-21-11; 8:45 am]