[Federal Register Volume 78, Number 100 (Thursday, May 23, 2013)]
[Proposed Rules]
[Pages 30830-30839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12215]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2009-0810; FRL-9816-4]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 and 2006 PM2.5 National 
Ambient Air Quality Standards; Prevention of Significant Deterioration 
Requirements for PM2.5 Increments and Major and Minor Source Baseline 
Dates; Colorado

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP) submissions from the State of Colorado to demonstrate that the 
SIP meets the infrastructure requirements of the Clean Air Act (CAA) 
for the National Ambient Air Quality Standards (NAAQS) promulgated for 
particulate matter less than or equal to 2.5 micrometers ([mu]m) in 
diameter (PM2.5) on July 18, 1997 and on October 17, 2006. 
The CAA requires that each state, after a new or revised NAAQS is 
promulgated, review their SIP to ensure that they meet the requirements 
of the ``infrastructure elements'' necessary to implement the new or 
revised NAAQS. Colorado submitted certifications of its infrastructure 
SIP for the 1997 and the 2006 PM2.5 NAAQS on April 4, 2008 
and on June 4, 2010, respectively. Colorado also submitted revisions to 
Regulation 3 of the Air Quality Control Commission permitting 
requirements for the Prevention of Significant Deterioration (PSD) 
program on May 11, 2012 and May 13, 2013 that incorporate the required 
elements of the 2008 PM2.5 Implementation Rule and the 2010 
PM2.5 Increment Rule. EPA proposes to approve portions of 
these two SIP revisions that bring Colorado's PSD regulations up to 
date for regulated pollutants. EPA does not propose to act on the 
portions of the submission for the 2006 PM2.5 NAAQS that are 
intended to meet requirements related to interstate transport of air 
pollution. EPA will act on the remainder of the submissions in a 
separate action.

DATES: Written comments must be received on or before June 24, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2009-0810, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2009-0810. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA, without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to section I, General 
Information, of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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, 8:00 a.m. to 4:00 p.m., excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado

[[Page 30831]]

80202-1129, (303) 312-6142, [email protected].

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
(ii) The initials APCD mean or refer to the Air Pollution Control 
Division.
(iii) The initials APENs mean or refer to Air Pollution Emission 
Notices.
(iv) The initials APPCA mean or refer to the Air Pollution Prevention 
and Control Act.
(v) The initials AQCC mean or refer to the Air Quality Control 
Commission.
(vi) The initials CBI mean or refer to confidential business 
information.
(vii) The initials CFC mean or refer to chlorofluorocarbons.
(viii) The initials CRS mean or refer to Colorado Revised Statutes.
(ix) The words EPA, we, us or our mean or refer to the United States 
Environmental Protection Agency.
(x) The initials FIP mean or refer to a Federal Implementation Plan.
(xi) The initials GHG mean or refer to greenhouse gases.
(xii) The initials NAAQS mean or refer to national ambient air quality 
standards.
(xiii) The initials NOX mean or refer to nitrogen oxides.
(xiv) The initials NNSR mean or refer to nonattainment new source 
review.
(xv) The initials NSR mean or refer to new source review.
(xvi) The initials PM mean or refer to particulate matter.
(xvii) The initials PM2.5 mean or refer to particulate matter with an 
aerodynamic diameter of less than 2.5 micrometers (fine particulate 
matter).
(xviii) The initials PM10 mean or refer to particulate 
matter with an aerodynamic diameter of less than 10 micrometers (course 
particulate matter).
(xix) The initials ppm mean or refer to parts per million.
(xx) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
(xxi) The initials SIL mean or refer to Significant Impact Levels.
(xxii) The initials SIP mean or refer to State Implementation Plan.
(xxiii) The initials SSM mean or refer to start-up, shutdown, or 
malfunction.
(xxiv) The initials SMC mean or refer to Significant Monitoring 
Concentrations.
(xxv) The initials VOC mean or refer to volatile organic compounds.

Table of Contents

I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required under sections 
110(a)(1) and (2)?
V. How did Colorado address the infrastructure elements of sections 
110(a)(1) and (2)?
VI. What action is EPA taking?
VII. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or email. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD ROM that you mail to EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register, date, and 
page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On July 18, 1997, EPA promulgated new NAAQS for PM2.5. 
Two new PM2.5 standards were added, set at 15 [mu]g/m\3\, 
based on the three-year average of annual arithmetic mean 
PM2.5 concentration from single or multiple community-
oriented monitors, and 65 [mu]g/m\3\, based on the three-year average 
of the 98th percentile of 24-hour PM2.5 concentrations at 
each population-oriented monitor within an area. In addition, the 24-
hour PM2.5 standard was revised to be based on the 99th 
percentile of 24-hour PM10 concentration at each monitor 
within an area (62 FR 38652).
    On October 17, 2006 EPA promulgated a revised NAAQS for 
PM2.5, tightening the level of the 24-hour PM2.5 
standard to 35 [mu]g/m\3\ and retaining the level of the annual 
PM2.5 standard at 15 [mu]g/m\3\. EPA also retained the 24-
hour PM10 and revoked the annual PM10 standard 
(71 FR 61144). 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 the 
state develops and submits the 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 the state's existing SIP 
already contains. In the case of the 1997 and 2006 PM2.5 
NAAQS, states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous NAAQS.

III. What is the scope of this rulemaking?

    This rulemaking will not cover four substantive issues that are not 
integral to acting on a state's infrastructure SIP submission: (1) 
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''); 
(2) existing provisions related to ``director's variance'' or 
``director's discretion'' that purport to permit revisions to SIP 
approved emissions

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limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''); (3) existing provisions for minor source new source 
review (NSR) programs that may be inconsistent with the requirements of 
the CAA and EPA's regulations that pertain to such programs (``minor 
source NSR''); and (4) existing provisions for prevention of 
significant deterioration (PSD) programs that may be inconsistent with 
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) 
(``NSR Reform''). Instead, EPA has indicated that it has other 
authority to address any such existing SIP defects in other 
rulemakings, as appropriate. A detailed rationale for why these four 
substantive issues are not part of the scope of infrastructure SIP 
rulemakings can be found in EPA's July 13, 2011, final rule entitled, 
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' in the 
section entitled, ``What is the scope of this final rulemaking?'' (see 
76 FR 41075 at 41076-41079).

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    Section 110(a)(1) provides the procedural and timing requirements 
for SIP submissions after a new or revised NAAQS is promulgated. 
Section 110(a)(2) lists specific elements the SIP must contain or 
satisfy. These infrastructure elements include requirements such as 
modeling, monitoring, and emissions inventories, which are designed to 
assure attainment and maintenance of the NAAQS. The elements that are 
the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    We will act separately on element 110(a)(2)(D), which pertains to 
interstate transport of pollutants.
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (1) section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment new source review (NSR)'') required under part D, and 
(2) section 110(a)(2)(I), pertaining to the nonattainment planning 
requirements of part D. As a result, this action does not address 
infrastructure elements related to the nonattainment NSR portion of 
section 110(a)(2)(C) or related to 110(a)(2)(I).

V. How did Colorado address the infrastructure elements of sections 
110(a)(1) and (2)?

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    a. Colorado's response to this requirement: Enforceable limitations 
and control measures are detailed in the various Air Quality Control 
Commission (AQCC) regulations for all sources of criteria pollutants as 
well as hazardous air pollutants, volatile organic compounds (VOCs), 
chlorofluorocarbons (CFCs), smoke and odors. A summary of the 
regulations which the State submitted as relevant to this element can 
be found within the State's certification documents dated April 4, 2008 
and June 4, 2010 which are included in the docket prepared for public 
review.
    b. EPA analysis: Colorado's SIP meets the requirements of CAA 
section 110(a)(2)(A), subject to the following clarifications. First, 
EPA does not consider SIP requirements triggered by the nonattainment 
area mandates in part D of Title I of the CAA to be governed by the 
submission deadline of section 110(a)(1). Nevertheless, Colorado has 
included some SIP provisions originally submitted in response to part D 
requirements in its certification for the infrastructure requirements 
of section 110(a)(2). In general, those provisions addressed ozone non-
attainment in the Denver metropolitan area and are not relevant to 
implementation of the 1997 or 2006 PM2.5 NAAQS. Colorado 
also referenced SIP provisions that are relevant, such as limits on 
emissions of particulate matter in Regulation 1, woodburning controls 
in Regulation 4, and the State's minor NSR and PSD programs in 
Regulation 3. We propose to find these provisions adequately address 
the requirements of element (A), again subject to the clarifications 
made in this notice.
    Second, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. A number of states have such 
provisions which are contrary to the CAA and existing EPA guidance (52 
FR 45109, November 24, 1987), and the Agency plans to take action in 
the future to address such state regulations. In the meantime, EPA 
encourages any state having a director's discretion or variance 
provision which is contrary to the CAA and EPA guidance to take steps 
to correct the deficiency as soon as possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing state provision with regard to excess emissions 
during startup, shutdown, or malfunction (SSM) or operations at a 
facility. A number of states have SSM provisions which are contrary to 
the CAA and existing EPA guidance \1\ and the Agency is addressing such 
state regulations separately (78 FR 12460, February 22, 2013).
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    \1\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 1999).
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    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to ``(i) monitor, 
compile, and analyze data on ambient air quality, and (ii) upon 
request, make such data available to the Administrator.''
    a. Colorado's response to this requirement: The provisions for 
episode monitoring, data compilation and

[[Page 30833]]

reporting, public availability of information, and annual network 
reviews are found in the statewide monitoring SIP which was approved by 
EPA on July 9, 1980 (45 FR 46073) and August 11, 1980 (45 FR 53147). 
The State has since revised the monitoring SIP to include all new 
federal requirements. The revised SIP includes a commitment to operate 
a particulate monitoring network in accordance with EPA regulations (40 
CFR 58.20 and appendices A through G). The AQCC adopted monitoring SIP 
revisions on March 18, 1993.
    As part of the monitoring SIP, Colorado submits a Colorado Annual 
Network Monitoring Plan (ANMP) each year for EPA approval. The ANMP 
details monitoring locations for all criteria pollutants, including 
PM2.5, and lists the quality assurance accuracy audits and 
precision check methods performed for each monitor. The Colorado APCD 
periodically submits a Quality Management Plan and a Quality Assurance 
Project Plan to EPA Region 8. These plans cover procedures to monitor, 
analyze data and report data to an EPA central database. The State of 
Colorado has an approved monitoring SIP, a plan and authority for 
monitoring, and the ability to properly handle all related data.
    b. EPA analysis: Colorado's air monitoring programs and data 
systems meet the requirements of CAA section 110(a)(2)(B) for the 1997 
and 2006 PM2.5 NAAQS. The Colorado 2011 ANMP was approved by 
EPA Region 8 on September 20, 2011.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    a. Colorado's response to this requirement: Colorado has an 
approved SIP regulating the construction and modification of stationary 
sources as necessary to assure the NAAQS are achieved (AQCC Regulation 
3), including a permit program as required in parts C and D of the 
federal CAA. Colorado has an approved SIP which provides for the 
enforcement of the control measures required by CAA section 
110(a)(2)(C).
    Many of the AQCC regulations address in some manner the programs 
for enforcement of control measures. Some of these AQCC regulations and 
other relevant Colorado-specific programs that are in the SIP are 
described below.
    Regulation 1, Particulates, Smokes, Carbon Monoxide, and Sulfur 
Dioxides--Regulation 1 sets forth emissions limitations, equipment 
requirements, and work practices (abatement and control measures) 
intended to control the emissions of particulates, smoke, and sulfur 
oxides from new and existing stationary sources. Control measures 
specified in this regulation are designed to limit emissions into the 
atmosphere and thereby minimize the ambient concentrations of 
particulates and sulfur dioxides.
    Regulation 3, Stationary Source Permitting and Air Pollution 
Emission Notice Requirements--Regulation 3 provides for a procedural 
permitting program and requires air pollution sources to file Air 
Pollution Emissions Notices (APENs). The regulation also requires new 
or modified sources of air pollution, with certain exemptions, to 
obtain preconstruction permits.
    Regulation 3 has been revised to incorporate PM2.5 
emissions, requiring major sources in the State to be subject to PSD 
and NSR permitting thresholds for PM2.5 at the same level as 
PM10. On May 11, 2012, Colorado submitted a revision to 
incorporate the 2008 PM2.5 Implementation rule (73 FR 28321, 
May 16, 2008) and the 2010 PM2.5 Increment rule (75 FR 
64864, October 20, 2010). Specifically, the AQCC adopted revisions to 
incorporate significant emission rates for PM2.5 emissions, 
including PM2.5 precursors (sulfur dioxide and nitrogen 
oxides, and condensable particulate matter), PM2.5 
increments, the definitions of major and minor source baseline dates 
and baseline area.
    Regulation 3 also was revised in 2008 to address ozone formation in 
the Denver Metro Area/North Front Range Ozone nonattainment area. 
Specifically, the AQCC adopted revisions to control and reduce ozone 
precursor emissions. The revisions are part of the federally-
enforceable SIP to help Colorado make progress toward eventual 
compliance with the 2008 ozone NAAQS.
    Regulation 4, Woodburning Controls--Regulation 4 requires new 
woodstove and fireplace inserts to meet the federal certification 
requirements in specified areas of Colorado.
    Regulation 7, Volatile Organic Compound Control--Regulation 7 
controls the emissions of VOCs, primarily in the Denver-metro area. It 
sets standards and mandates control for specific types of VOC sources. 
In 2008 Regulation 7 was revised to increase control requirements for 
oil and gas condensate tanks, glycol dehydrators, and reciprocating 
internal combustion engines. These revisions were made as part of the 
State's Ozone SIP.
    Regulation 11, Motor Vehicle Inspection--Regulation 11 requires 
automobile emission inspection and maintenance programs to be 
implemented in specified areas of the state for gasoline powered on-
road vehicles. These programs apply to businesses, industry, and the 
general public. In addition, the State's Automobile Inspection and 
Readjustment (AIR) program's purpose is to reduce motor vehicle related 
pollution through the inspection and emissions related repair of 
automobiles. The program as defined in Regulation 11, works in specific 
areas of the state, and requires motor vehicles to meet emission 
standards through periodic inspection and, as necessary, repair.
    Regulation 16, Street Sanding and Sweeping--Regulation 16 sets 
specification standards for street sanding material and street sweeping 
practices in the area covered by the AIR program and Denver-metro 
particulate attainment/maintenance area.
    Common Provisions Regulation--The Colorado APCD may require owners 
and operators of stationary air pollution sources to install, maintain, 
and use instrumentation to monitor and record emission data as a basis 
for periodic reports to the Division under the provisions of the AQCC 
Common Provisions regulation.
    b. EPA analysis: To generally meet the requirements of section 
110(a)(2)(C), the State is required to have SIP-approved PSD, 
nonattainment NSR, and minor NSR permitting programs adequate to 
implement the 1997 and 2006 PM2.5 NAAQS. As explained above, 
in this action EPA is not evaluating nonattainment related provisions, 
such as the nonattainment NSR program required by part D of the Act. 
EPA is evaluating the State's PSD program as required by part C of the 
Act, and the State's minor NSR program as required by 110(a)(2)(C).

PSD Requirements

    Colorado has a SIP-approved PSD program that meets the general 
requirements of part C of the Act (51 FR 31125). To satisfy the 
particular requirements of section 110(a)(2)(C), states should have a 
PSD program that applies to all regulated NSR pollutants, including 
greenhouse gases (GHGs). See 40 CFR 51.166(b)(48) and (b)(49). The PSD 
program should reflect current requirements for these pollutants. In 
particular, for three pollutants--ozone, PM2.5, and GHGs--
there are additional

[[Page 30834]]

regulatory requirements (set out in portions of 40 CFR 51.166) that we 
consider in evaluating Colorado's PSD program.
    On January 9, 2012 (77 FR 1027), we approved a revision to the 
Colorado PSD program that addressed the PSD requirements of the Phase 2 
Ozone Implementation Rule promulgated in 2005 (70 FR 71612). As a 
result, the approved Colorado PSD program meets current requirements 
for ozone.
    We evaluate PSD Requirements for GHGs. In EPA's rule, ``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, December 30, 2010), 
EPA withdrew its previous approval of Colorado's PSD program to the 
extent that it applied PSD permitting to GHG emissions increases from 
GHG-emitting sources below thresholds set in EPA's June 3, 2010 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule'' (``Tailoring Rule''), 75 FR 31514. 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 April 4, 2008 and June 4, 2010 infrastructure 
certifications, Colorado relied upon 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). In a letter dated May 10, 2011, 
the State clarified its certifications 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. As a result, 
Colorado's PSD program as approved in the SIP meets current 
requirements for GHGs.
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, EPA 
promulgated the rule, ``Implementation of the New Source Review Program 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5) and 
on October 20, 2010 EPA promulgated the rule, ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). 
EPA regards adoption of these PM2.5 rules as a necessary 
requirement when assessing a PSD program for the purposes of element 
(C).
    On January 4, 2013,the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (DC Cir.), issued a judgment that 
remanded the EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The Court ordered the EPA to ``repromulgate 
these rules pursuant to Subpart 4 consistent with this opinion.'' Id. 
at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), promulgated New Source Review (NSR) requirements for 
implementation of PM2.5 in nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the 
requirements of subpart 4 only pertain to nonattainment areas, the EPA 
does not consider the portions of the 2008 Implementation rule that 
address requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the Court's opinion. Moreover, the EPA does not 
anticipate the need to revise any PSD requirements promulgated in the 
2008 Implementation rule in order to comply with the Court's decision. 
Accordingly, the EPA's approval of Colorado's infrastructure SIP as to 
elements (C) or (J) with respect to the PSD requirements promulgated by 
the 2008 Implementation rule does not conflict with the Court's 
opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect the EPA's action on the present infrastructure action. The EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due 3 years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards 
adoption of the PM2.5 increments as a necessary requirement 
when assessing a PSD program for the purposes of element (C).
    On May 11, 2012, the State submitted revisions to Regulation 3 that 
adopted all elements of the 2008 Implementation Rule and the 2010 
PM2.5 Increment Rule. However, the submittal contained a 
definition of Major Source Baseline Date which was inconsistent with 40 
CFR 51.166(b)(14)(i). On May 13, 2013, the State submitted revisions to 
Regulation 3 which incorporate the definition of Major Source Baseline 
Date which was consistent with 40 CFR 51.166(b)(14)(i). These submitted 
revisions make Colorado's PSD program up to date with respect to 
current requirements for PM2.5. We propose to approve the 
necessary portions of Colorado's May 11, 2012 and May 13, 2013 
submissions to reflect the 2008 PM2.5 Implementation Rule 
and the 2010 PM2.5 Increment Rule; specifically 40 CFR part 
166, paragraphs (b)(14)(i), (ii), (iii), (b)(15)(i), (ii), (b)(23)(i), 
(b)(49)(i), (vi), and paragraph (c)(1). Specifically, EPA is proposing 
to approve revisions to: Part D, sections II.A.5.a and b, II.A.23.a and 
b, II.A.25.a.(i), (a).(ii), (a).(iii), and (b).(i), II.A.38.c and g, 
II.A.42.a. and X.A.1. as submitted on May 11, 2012, and revisions to 
II.A.23.c, as submitted on May 13, 2013. We are not proposing to act on 
any other portions of the May 11, 2012 submittal, including the 
adoption of significant impact levels (SILs) and significant monitoring 
concentrations (SMCs) for PM2.5.
    With these revisions, Colorado's SIP-approved PSD program will meet 
current requirements for PM2.5. As a result, EPA is 
proposing to approve Colorado's infrastructure SIP for the 1997 and 
2006 PM2.5 NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a permit program in the SIP as required by part 
C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program is found in 
Section II of the Colorado SIP, and was originally approved by EPA as 
Section 2 of the SIP (see 68 FR 37744, June 25, 2003). Since approval 
of the minor NSR program, the State and EPA have relied on the program 
to assure that new and

[[Page 30835]]

modified sources not captured by the major NSR permitting programs do 
not interfere with attainment and maintenance of the NAAQS.
    In this action, EPA is proposing to approve Colorado's 
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS with 
respect to the general requirement in section 110(a)(2)(C) to include a 
program in the SIP that regulates the modification and construction of 
any stationary source as necessary to assure that the NAAQS are 
achieved. EPA is not proposing to approve or disapprove the State's 
existing minor NSR program itself to the extent that it is inconsistent 
with EPA's regulations governing this program. A number of states may 
have minor NSR provisions that are contrary to the existing EPA 
regulations for this program. EPA intends to work with states to 
reconcile state minor NSR programs with EPA's regulatory provisions for 
the program. The statutory requirements of section 110(a)(2)(C) provide 
for considerable flexibility in designing minor NSR programs, and it 
may be time to revisit the regulatory requirements for this program to 
give the states an appropriate level of flexibility to design a program 
that meets their particular air quality concerns, while assuring 
reasonable consistency across the country in protecting the NAAQS with 
respect to new and modified minor sources.
    4. Interstate Transport: Section 110(a)(2)(D)(i) is subdivided into 
four ``prongs,'' two under 110(a)(2)(D)(i)(I) and two under 
110(a)(2)(D)(i)(II). The two prongs under 110(a)(2)(D)(i)(I) require 
SIPs to contain adequate provisions to prohibit emissions that (prong 
1) contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS, and (prong 2) 
interfere with maintenance by any other state with respect to the same 
NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs to contain 
adequate provisions to prohibit emissions that interfere with measures 
required to be included in the applicable implementation plan for any 
other state under part C (prong 3) to prevent significant deterioration 
of air quality or (prong 4) to protect visibility. As noted, we are not 
acting on the requirements of section 110(a)(2)(D)(i) in this proposed 
rulemaking.
    5. Interstate and International transport provisions: Section 
110(a)(2)(D)(ii) requires that each SIP shall contain adequate 
provisions insuring compliance with applicable requirements of sections 
126 and 115 (relating to interstate and international pollution 
abatement). As noted, we are not acting on the requirements of section 
110(a)(2)(D)(ii) in this proposed rulemaking.
    6. Adequate resources and authority: Section 110(a)(2)(E)(i) 
requires states to provide necessary assurances that the state will 
have adequate personnel, funding, and authority under state law to 
carry out the SIP (and is not prohibited by any provision of federal or 
state law from carrying out the SIP or portion thereof). Section 
110(a)(2)(E)(iii) requires states to ``provide necessary assurances 
that, where the State has relied on a local or regional government, 
agency, or instrumentality for the implementation of any [SIP] 
provision, the State has responsibility for ensuring adequate 
implementation of such [SIP] provision.''
    a. Colorado's response to this requirement: There are no state or 
federal provisions prohibiting the implementation of any provision of 
the Colorado SIP. In general, Colorado provides the necessary 
assurances that funding, personnel, and authority exist and that the 
State of Colorado has responsibility for implementing local provisions. 
The AQCC adopted all of the regulatory provisions in the SIP pursuant 
to authority delegated to it by statute. The AQCC's general authority 
to adopt the rules and regulations necessary to implement the SIP is 
set out in the Colorado Air Pollution Prevention and Control Act 
(APPCA) section 25-7-105 of the Colorado Revised Statutes (CRS). The 
authority for the APCS to administer and enforce the program is set out 
at 25-7-111 CRS. Additional authority to regulate air pollution and 
implement provisions in the SIP is set out elsewhere in the Colorado 
APPCA, Article 7 of Title 25. In addition, the AQCC and the APCD have 
the authority delegated to them in sections 42-4-301 to 42-4-316, CRS 
(concerning motor vehicle emissions) and 42-4-414 (concerning emissions 
from diesel-powered vehicles).
    The AQCC's authority includes the authority to regulate particulate 
emissions, regardless of size (CRS section 25-7-109(2)(b)).
    The Colorado APCD has staff and an annual budget to operate its six 
programs (Stationary Sources, Mobile Sources, Indoor Air, Technical 
Service, Planning and Policy, and Administrative Services). As of June 
30, 2009, the APCD employed 159 people and had a budget of $19.7 
million for fiscal year 2009.
    Of the total budget, 17 percent was derived from federal grants, 32 
percent from mobile source fees, 47 percent from stationary source 
fees, and 4 percent from other cash sources.
    Relationships with other agencies responsible for carrying out 
State activities--The Colorado APCD contracts with local governments in 
two distinct ways: (1) Colorado grants monies to local health 
departments to endow them as agents of the State to provide inspections 
of some local stationary sources, asbestos abatement jobs, and CFC 
sources. Some local health departments also operate gaseous and 
particulate monitors under contract for the State. These efforts must 
comply with federal and state regulations; and (2) Colorado grants 
monies to local governments to help pay for their support of SIP 
elements via public and private partnerships, education and informal 
campaigns. Most of these agencies create their own work plan that 
consists of programs they believe will help enhance air quality in 
their communities in accordance with SIP directives.
    Colorado has adopted specific regulations for local attainment/
maintenance areas to assure these areas meet requirements of the SIP. 
These regulations include the Colorado AQCC SIP-specific regulations, 5 
CCR 1001-20. These regulations provide the necessary authority for the 
Colorado APCD to adequately enforce the provisions of the SIP elements 
in local attainment/maintenance areas.
    b. EPA Analysis: Colorado's SIP meets the requirements of sections 
110(a)(2)(E)(i) and (E)(iii) for the 1997 and 2006 PM2.5 
NAAQS. The State cites the Colorado Revised Statutes, specifically the 
APPCA Sections 25-7-105, 25-7-111, 42-4-301 to 42-4-316, 42-4-414 and 
Article 7 of Title 25 to demonstrate that the APCD and AQCC have 
adequate authority to carry out Colorado's SIP obligations with respect 
to the 1997 and 2006 PM2.5 NAAQS and to revise its SIP as 
necessary. The State received Sections 103 and 105 grant funds through 
its Performance Partnership Grant along with required state matching 
funds to provide funding necessary to carry out Colorado's SIP 
requirements. The regulations cited by Colorado also provide the 
necessary assurances that the State has responsibility for adequate 
implementation of SIP provisions by local governments.
    7. State boards: Section 110(a)(2)(E)(ii) requires that the State 
comply with the requirements respecting State boards under section 128.
    a. Colorado's response to this requirement: Section 128 of the CAA 
indicates Colorado's SIP must contain

[[Page 30836]]

requirements that anybody approving permits or enforcement orders under 
the CAA must have a majority of members who represent the public 
interest and do not derive any significant portion of their income from 
persons subject to permits or enforcement actions.
    The AQCC Procedural Rules, section 1.11.0, state that ``The 
Commission shall have at least a majority of members who represent the 
public interest and do not derive a significant portion of their income 
from persons subject to permits or enforcement orders under this 
article or under the federal act. The members of the Commission shall 
disclose any potential conflicts of interest that arise during their 
terms of membership to the other Commissioners in a public meeting of 
the Commission.''
    b. EPA Analysis: On April 10, 2012 (77 FR 21453) EPA approved the 
Procedural Rules, Section 1.11.0, as adopted by the AQCC on January 16, 
1998, into the SIP as meeting the requirements of section 128 of the 
Act. Section 1.11.0 specifies certain requirements regarding the 
composition of the AQCC and disclosure by its members of potential 
conflicts of interest. Details on how this portion of the Procedural 
Rules meets the requirements of section 128 are provided in our January 
4, 2012 proposal notice (77 FR 235). In our April 10, 2012 action, we 
correspondingly approved Colorado's infrastructure SIP for the 1997 
ozone NAAQS for element (E)(ii). Colorado's SIP continues to meet the 
requirements of section 110(a)(2)(E)(ii), and we propose to approve the 
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS for 
this element.
    8. Stationary source monitoring system: Section 110(a)(2)(F) 
requires:
    (i) The installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources,
    (ii) Periodic reports on the nature and amounts of emissions and 
emissions-related data from such sources, and
    (iii) Correlation of such reports by the state agency with any 
emission limitations or standards established pursuant to [the Act], 
which reports shall be available at reasonable times for public 
inspection.
    a. Colorado's response to this requirement: Colorado AQCC 
Regulations 1, 3, and 6 address the issue of stationary source 
monitoring. Colorado Regulation 1 sets forth emission limitations, 
equipment requirements, and work practices (abatement and control 
measures) intended to control the emissions of particulates, smoke, and 
sulfur dioxides from new and existing stationary sources. Colorado 
Regulation 3 requires stationary sources to report their emissions on a 
regular basis through APENs. This air pollutant inventory program is 
described in the APPCA Section 25-7-114.1 (CRS) and in Colorado 
Regulation 3, Part I.VIII that allows for record keeping of air 
pollutants. Colorado Regulation 6 sets standards of performance for 
monitoring and new stationary sources in the state and establishes 
monitoring system requirements.
    The Colorado APCD may require owners and operators of stationary 
air pollution sources to install, maintain, and use instrumentation to 
monitor and record emission data as a basis for periodic reports to the 
APCD under the provisions of the AQCC Common Provisions regulation.
    b. EPA Analysis: The regulations cited by Colorado, including APEN 
reporting requirements and requirements in Regulation 3, Part I.VIII, 
meet the requirements of section 110(a)(2)(F) for the 1997 and 2006 
PM2.5 NAAQS.
    9. Emergency powers: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health, including contingency plans 
to implement the emergency episode provisions in their SIPs.
    a. Colorado's response to this requirement: The State has the 
authority to implement emergency powers similar to section 303 of the 
CAA. First, the EPA-approved ``Denver Emergency Episode Plan'' 
addresses ozone, particulate matter (PM10), and carbon 
monoxide for the Denver-metro region and requires the State to 
implement protective measures when air quality exceeds defined 
thresholds. Additionally, the APPCA Sections 25-7-112 and 25-7-113, 
which have various sections similar to 42 U.S.C. 7603, generally 
describe Colorado's authority regarding Emergency Episodes. For 
example, 25-7-112(2) provides the Governor the authority to implement 
emergency provisions through an order to the Colorado APCD.
    As described in EPA's September 25, 2009 guidance, areas that have 
had a PM2.5 exceedance greater than 140.4 [mu]g/m\3\ should 
have an emergency episode plan. If no such concentration was recorded 
since 2006, the State can rely on its general emergency authorities. 
Colorado has never had such a PM2.5 level and thus an 
emergency episode plan for PM2.5 is not necessary. 
Nevertheless, the State certifies it has the appropriate emergency 
powers to address PM2.5 episodes, as described above.
    Additionally, the State implements EPA's air quality index system 
and typically issues alerts and advisories to the public when any 
pollutant is expected to or exceeds an AQI value of 100. If 
PM2.5 concentrations are expected to or actually exceed 
EPA's recommended index value thresholds of 201 (alert), 301 (warning), 
350.5 (significant harm), or 401 (emergency), the State can invoke 
emergency powers.
    b. EPA analysis: Colorado Pollution Prevention and Control Act 
Sections 25-7-112 and 25-7-113 provide APCD with general emergency 
authority comparable to that in section 303 of the Act. In our 2009 
guidance for infrastructure requirements for the 2006 PM2.5 
NAAQS, we suggested that states that had monitored and recorded 24-hour 
PM2.5 levels greater than 140.4 [micro]g/m\3\, using the 
most recent three years of data, should develop emergency episode plans 
for the areas with the monitored values. We also suggested that, if 
these levels had not been exceeded, states could certify that they had 
adequate general emergency authority to address PM2.5 
episodes. In this rulemaking, we view these suggestions as still 
appropriate in assessing Colorado's SIP for this element. Colorado has 
not monitored any values above the 140.4 [micro]g/m\3\ level for 
PM2.5 for the past three years (e.g., 2009, 2010, and 2011). 
Since this level was not exceeded in any area of the state and the 
State has demonstrated that it has appropriate general emergency powers 
to address PM2.5 related episodes, no specific emergency 
episode plans are necessary at this time. The SIP therefore meets the 
requirements of section 110(a)(2)(G) for the 1997 and 2006 
PM2.5 NAAQS.
    10. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan:
    (i) From time to time as may be necessary to take account of 
revisions of such national primary or secondary ambient air quality 
standard or the availability of improved or more expeditious methods of 
attaining such standard, and
    (ii) Except as provided in paragraph (3)(C), whenever the 
Administrator finds on the basis of information available to the 
Administrator that the [SIP] is substantially inadequate to attain the 
[NAAQS] which it implements or to otherwise comply with any additional 
requirements under this [Act].
    a. Colorado's response to this requirement: The State of Colorado 
has the ability and authority to address and

[[Page 30837]]

revise the SIP due to changes in the NAAQS or due to findings of 
inadequacies.
    The Colorado AQCC has the authority and duty to adopt and revise a 
SIP as necessary to comply with the federal requirements. Colorado 
APPCA section 25-7-105(1)(a)(I) (CRS) directs the Colorado AQCC to 
promulgate rules and regulations as related to a comprehensive SIP 
which will assure attainment and maintenance of the NAAQS and which 
will prevent significant deterioration or air quality in the State of 
Colorado.
    Colorado APPCA section 25-7-109 (CRS) also gives the Colorado AQCC 
the authority to promulgate emission control regulations.
    b. EPA analysis: Colorado's statutory provision at Colorado APPCA 
Section 25-7-105(1)(a)(I) gives the AQCC sufficient authority to meet 
the requirements of 110(a)(2)(H).
    11. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to [PSD] 
of air quality and visibility protection).''
    a. Colorado's response to this requirement: Consultation--
Engineering and meteorological consultation is provided by the State to 
local agencies. The State assists local agencies in planning air 
management programs for their respective areas. The Colorado AQCC holds 
public meetings and hearings on all SIP revisions in accordance with 
the AQCC Procedural Rules. Public comment is solicited and accepted at 
Colorado AQCC meetings and hearings.
    Colorado's Transportation Conformity Rule, Regulation 10, specifies 
consultation procedures for SIP revisions in Section IV.F.
    Also, as part of the State of Colorado's Visibility SIP, the APCD 
consults with the Federal Land Managers and other states as necessary 
and required.
    Public notification--Colorado notifies the public of instances or 
of areas in which any national primary ambient air quality standard is 
exceeded. Included in this notification are public awareness 
announcements regarding health hazards and manners in which the public 
can participate in regulatory and other efforts to improve Colorado's 
air quality. Not only does the State provide after-the-fact information 
about readings in excess of the NAAQS, the Denver PM10 SIP 
provides for advance warnings to the public that the NAAQS may be 
exceeded whenever meteorological conditions make it possible or likely 
for ambient concentrations to exceed the NAAQS.
    The Colorado APCD prepares a daily public notification in the form 
of an Air Pollution Advisory for a nine-county Denver-Boulder 
metropolitan and North Front Range area and the communities of Fort 
Collins and Greeley. The advisory is posted on the APCD Web site and 
includes details of the day's air quality and visibility, a forecast of 
the coming day's air quality, residential burning restrictions, and 
voluntary motor vehicle driving reduction requests during the winter 
high pollution season. The advisory includes links to an open burning 
forecast and other important information such as the day's Air Quality 
Index, the health effects of specific pollutants, and measures that can 
be taken by the public to reduce exposure. While not part of Colorado's 
SIP, the advisories are part of an ongoing commitment by the State to 
inform and educate citizens about air quality.
    Other Colorado communities also maintain and operate daily air 
quality forecasts, including Mesa County on the Western Slope and El 
Paso County in the Colorado Springs area.
    The State has developed Natural Events Action Plans that include 
public notification and education elements. While not a formal part of 
the State SIP, the plans include provisions to notify the public about 
actions to take during imminent blowing dust and wildfire events that 
could lead to high levels of particulate matter.
    Prevention of Significant Deterioration--Colorado AQCC Regulation 3 
(Stationary Source Permitting and Air Pollution Emission Notice 
Requirements), Regulation 6 (Standards of Performance for New 
Stationary Sources), and Colorado's Long Term Strategy for Visibility 
Protection adequately address PSD and Visibility Protection. For 
example, new major stationary sources or major modifications are 
restricted in their emissions in order to protect the PSD increment 
under Colorado AQCC Regulation 3. PSD and visibility analyses are also 
required by NSR regulations of Colorado. Colorado is required to review 
new major stationary sources and major modifications prior to 
construction to assess potential impacts on visibility in any Class I 
Area. Colorado AQCC Regulation 3.XI.E, ``New Source Review'' (Appendix 
D) describes the applicant's demonstration that the proposed source 
will not have an adverse effect on visibility in Class I areas.
    Visibility--For PM2.5, Colorado's visibility program 
contains adequate provisions that are either in the SIP or submitted 
for inclusion into the SIP to prohibit any source or other type of 
emission activity in the State from emitting air pollutants in amounts 
that will interfere with measures required to be included in the 
applicable implementation plan of another state to protect visibility. 
Colorado's implementation plan also adheres to the direction set forth 
in EPA's applicable guidance interpreting this section of the CAA.
    The plan submitted to EPA on March 31, 2010 demonstrates that there 
is a significant downward trend in Colorado's visibility impairing 
emissions, visibility in surrounding Mandatory Class I Areas is 
improving over time, and regional modeling indicates Colorado has a 
small contribution to out-of-state haze. Thus, air pollution sources 
and other types of emission activity within the State of Colorado do 
not interfere with measures required to be included in the applicable 
implementation plan of another state to protect visibility.
    b. EPA Analysis: The State has demonstrated that it has the 
authority and rules in place to provide a process of consultation with 
general purpose local governments, designated organizations of elected 
officials of local governments and any Federal Land Manager having 
authority over federal land to which the SIP applies, consistent with 
the requirements of CAA section 121. Furthermore, EPA previously 
approved Colorado's SIP submission to meet the requirements of CAA 
section 127 (45 FR 53147, August 11, 1980).
    Colorado's SIP regulations for its PSD program were federally-
approved and made part of the SIP on September 2, 1986 (51 FR 31125). 
EPA has further evaluated the State's SIP-approved PSD program in 
section V.3, element 110(a)(2)(C) of this proposed action. As explained 
in that section, we propose to approve Colorado' s infrastructure SIPs 
for the 1997 and 2006 PM2.5 NAAQS with respect to the 
requirement in element (C) to have a permit program as required by Part 
C of the Act. We correspondingly propose to approve the infrastructure 
SIPs for the 1997 and 2006 PM2.5 NAAQS with respect to the 
requirement in element (J) that the SIP meet the applicable 
requirements of Part C with respect to PSD.
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the act. In

[[Page 30838]]

the event of the establishment of a new NAAQS, however, the visibility 
and regional haze program requirements under part C do not change. Thus 
we find that there is no new visibility obligation ``triggered'' under 
section 110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, 
the Colorado SIP meets the requirements of section 110(a)(2)(J) for the 
1997 and 2006 PM2.5 NAAQS with respect to the requirements 
of sections 121 and 127 of the Act, and also meets the requirements of 
section 110(a)(2)(J) for the 1997 and 2006 PM2.5 NAAQS.
    12. Air quality and modeling/data: Section 110(a)(2)(K) requires 
that each SIP provide for:
    (i) The performance of such air quality modeling as the 
Administrator may prescribe for the purpose of predicting the effect on 
ambient air quality of any emissions of any air pollutant for which the 
Administrator has established a [NAAQS], and
    (ii) The submission, upon request, of data related to such air 
quality modeling to the Administrator.
    a. Colorado's response to this requirement: Colorado has the 
authority and resources to model for criteria pollutants, including 
PM2.5. Air quality modeling is done for SIP revisions and 
for transportation conformity. Colorado Regulation 3 (Stationary Source 
Permitting and Air Pollution Emission Notice Requirements) requires 
stationary sources to predict the effect of air pollutants in 
attainment areas. Regulation 3 also details the State of Colorado's 
program regarding permitting as related to air quality modeling and 
data handling in predicting the effect of emissions of a pollutant with 
an established NAAQS. Regulatory requirements for Air Quality Related 
Values as related to modeling are described within Colorado Regulation 
3, Part B, subsection X and XI. A permit modification for purposes of 
the acid rain portion of a permit are governed by regulations 
promulgated under Title VI of the federal act, found in 40 CFR Part 72 
as described under Colorado Regulation 3, Part C, subsection X.K.
    The Modeling, Meteorology, and Emission Inventory Unit within the 
Colorado APCD performs and reviews air quality impact analyses for a 
variety of programs, including SIP revisions, transportation conformity 
determinations, stationary source permitting, environmental impact 
statements, and hazardous waste site audits. The analyses include 
modeling, meteorological analysis, and emission inventory development 
for mobile sources and area stationary sources such as woodburning. The 
Unit also performs air quality forecasting for the Denver-metro area 
High Pollution Season, open burning, and for special air quality 
studies. Additional information regarding these programs and authority 
is provided below. Some of these programs are found in the SIP. For 
example, both Colorado AQCC Regulation 4 (Woodburning) and the Denver 
PM10 SIP address state air quality modeling programs.
    PSD and Increment Consumption--Colorado's PSD program includes a 
requirement that the State periodically assess the adequacy of its plan 
to prevent significant deterioration of air quality. This is presented 
in Regulation 3, Part B, section VII. In addition, Regulation 3, Part 
A, section VIII, ``Technical Modeling and Monitoring Requirements'' 
states that all estimates of ambient concentrations required under 
Regulation 3 shall be based on the applicable air quality models, data 
bases, and other requirements generally approved by EPA and 
specifically approved by the APCD.
    SIP Development--Modeling is performed in the development and 
revision of SIPs, as needed, to ensure specific areas of the State will 
maintain or re-attain compliance with the NAAQS in light of development 
and increased population and traffic.
    Permits--The primary Colorado regulation for air quality permits is 
Colorado AQCC Regulation 3. Certain new/modified air pollution sources 
are subject to the regulatory modeling requirements in Regulation 3. 
Regulation 3, Part A, subsection VIII describes Colorado's technical 
modeling and monitoring requirements. Modeling is often required to 
obtain a construction permit. While modeling is not required to obtain 
an operating permit, it may be required if the operating permit is 
modified (in Regulation 3, Part C, subsection X--Minor Permit 
Modification Procedures). Operating permits may also be subject to 
modeling if the application is for a combined construction/operating 
permit (Regulation 3, Part C, subsection III.C.12.d).
    b. EPA Analysis: Colorado's SIP meets the requirements of CAA 
section 110(a)(2)(K) for the 1997 and 2006 PM2.5 NAAQS. In 
particular, Colorado's Regulation 3 Part A.VIII requires estimates of 
ambient air concentrations be based on applicable air quality models 
approved by EPA. Final approval for Regulation 3 Part A.VIII became 
effective February 20, 1997 (62 FR 2910). As a result, the SIP provides 
for such air quality modeling as the Administrator has prescribed.
    13. Permitting fees: Section 110(a)(2)(L) requires SIPs to:
    Require the owner or operator of each major stationary source to 
pay to the permitting authority, as a condition of any permit required 
under this act, a fee sufficient to cover--
    (i) The reasonable costs of reviewing and acting upon any 
application for such a permit, and
    (ii) If the owner or operator receives a permit for such source, 
the reasonable costs of implementing and enforcing the terms and 
conditions of any such permit (not including any court costs or other 
costs associated with any enforcement action), until such fee 
requirement is superseded with respect to such sources by the 
Administrator's approval of a fee program under [title] V * * *
    a. Colorado's response to this requirement: The State of Colorado 
requires the owner or operator of a major stationary source to pay the 
Colorado APCD any fee necessary to cover the reasonable costs of 
reviewing and acting upon any permit application. The collection of 
fees is described in Colorado AQCC Regulation 3. Specifically, 
Regulations 3, Part A.VI describes how each applicant required to 
obtain a permit must pay a fee, including the cost of permit review and 
relevant actions. Also, stationary source owners or operators must pay 
an annual fee based on total emissions. The funds are used by the State 
to administer programs for the control of air pollution from stationary 
sources.
    b. EPA Analysis: Colorado's approved title V operating permit 
program meets the requirements of CAA section 111(a)(2)(L) for the 1997 
and 2006 PM2.5 NAAQS. Final approval of the title V 
operating permit program became effective October 16, 2000 (65 FR 
49919). Interim approval of Colorado's title V operating permit program 
became effective February 23, 1995 (60 FR 4563). As discussed in the 
proposed interim approval of the title V program (59 FR 52123, October 
14, 1994), the State demonstrated that the fees collected were 
sufficient to administer the program. In addition, as described by 
Colorado, the State collects fees that cover the cost of review of 
permits for major stationary sources.
    14. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    a. Colorado's response to this requirement: Colorado AQCC 
Regulation 10, ``Transportation Conformity,'' defines the criteria the 
Colorado AQCC uses for transportation

[[Page 30839]]

conformity determinations to develop SIP revisions in non-attainment 
areas. Interagency consultation requirements are detailed in Regulation 
10, and meet the federal requirements under 40 CFR 51.390, as published 
at 62 FR 43780 (August 15, 1997). Colorado AQCC Regulation 3 also 
provides for consultation and participation by local entities. Local 
governments receive notice and have the opportunity to comment on and 
participate in construction permit review procedures and operating 
permit application procedures.
    The Colorado AQCC holds a public hearing before adopting any 
regulatory revisions to the SIP. Local political subdivisions may 
participate in the hearing.
    b. EPA Analysis: Colorado's submittal meets the requirements of CAA 
section 110(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS.

VI. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 1997 and 2006 PM2.5 NAAQS: 
(A), (B), (C) with respect to minor NSR requirements, (E), (F), (G), 
(H), (J) with respect to the requirements of sections 121 and 127 of 
the Act, (K), (L), and (M). EPA proposes to approve infrastructure 
elements (C) and (J) with respect to PSD requirements for the 1997 and 
2006 PM2.5 NAAQS. EPA is also proposing to approve revisions 
to Regulation 3 submitted by Colorado on May 11, 2012, and May 13, 
2013, which incorporate the requirements of the 2008 PM2.5 
Implementation Rule and the 2010 PM2.5 Increment Rule; 
specifically, revisions to: Regulation 3, Part D, sections II.A.5.a and 
b, II.A.23.a and b, II.A.25.a.(i), (a).(ii), (a).(iii), and (b).(i), 
II.A.38.c and g, II.A.42.a. and X.A.1. as submitted on May 11, 2012, 
and revisions to II.A.23.c, as submitted on May 13, 2013. EPA is taking 
no action at this time on infrastructure element (D)(i)(I) for the 2006 
PM2.5 NAAQS.

VII. 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 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 CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 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 CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

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

    Dated: May 13, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013-12215 Filed 5-22-13; 8:45 am]
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