[Federal Register Volume 80, Number 104 (Monday, June 1, 2015)]
[Proposed Rules]
[Pages 30974-30984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13123]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0972, FRL-9928-52-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2008 Ozone, 2008 Lead, and 2010 NO2 
National Ambient Air Quality Standards; Colorado

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of Colorado to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (Act, CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008; 
lead (Pb) on October 15, 2008; and nitrogen dioxide (NO2) on 
January 22, 2010. Section 110(a) of the CAA requires that each state 
submit a SIP for the implementation, maintenance, and enforcement of 
each NAAQS promulgated by EPA.

DATES: Written comments must be received on or before July 1, 2015.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification Number EPA-R08-OAR-2012-0972. All documents in 
the docket are listed on the http://www.regulations.gov Web site. 
Although listed in the index, some information may not be publicly 
available, i.e., Confidential Business Information or other information 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in the hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at EPA Region 8, Office of 
Partnership and Regulatory Assistance, Air Program, 1595 Wynkoop 
Street, Denver, Colorado, 80202-1129. The EPA requests that you contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. The Regional Office's official hours 
of business are Monday through Friday, 8:00 a.m.-4:00 p.m., excluding 
federal holidays. An electronic copy of the State's SIP compilation is 
also available at http://www.epa.gov/region8/air/sip.html.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6563, 
[email protected].

SUPPLEMENTARY INFORMATION: 

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

[[Page 30975]]

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 volume, 
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 March 12, 2008, EPA promulgated a new NAAQS for ozone, revising 
the levels of the primary and secondary 8-hour ozone standards from 
0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). Subsequently, 
on October 15, 2008, EPA revised the level of the primary and secondary 
Pb NAAQS from 1.5 micrograms per cubic meter ([mu]g/m\3\) to 0.15 
[mu]g/m\3\ (73 FR 66964). On January 22, 2010, EPA promulgated a new 1-
hour primary NAAQS for NO2 at a level of 100 parts per 
billion (ppb) while retaining the annual standard of 53 ppb. The 2010 
NO2 NAAQS is expressed as the three year average of the 98th 
percentile of the annual distribution of daily maximum 1-hour average 
concentrations. The secondary NO2 NAAQS remains unchanged at 
53 ppb (75 FR 6474, Feb. 9, 2010).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for ozone, Pb, and NO2 already meet 
those requirements. EPA highlighted this statutory requirement in an 
October 2, 2007, guidance document entitled ``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'' (2007 Memo). 
On September 25, 2009, EPA issued an additional guidance document 
pertaining to the 2006 fine particulate matter (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)'' (2009 Memo), followed by the 
October 14, 2011, ``Guidance on Infrastructure SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National 
Ambient Air Quality Standards (NAAQS)'' (2011 Memo). Most recently, EPA 
issued ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and (2)'' on September 
13, 2013 (2013 Memo).

III. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Colorado that address 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2008 ozone, 2008 Pb, and 2010 NO2 NAAQS. The 
requirement for states to make a SIP submission of this type arises out 
of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must 
make SIP submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA taking 
any action other than promulgating a new or revised NAAQS. Section 
110(a)(2) includes a list of specific elements that ``[e]ach such 
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA; ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A; and 
nonattainment new source review (NSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. 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 program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \1\ For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which EPA 
interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) 
are discussed at length in our notice of proposed rulemaking: 
Promulgation of State Implementation Plan Revisions; Infrastructure 
Requirements for the 1997 and 2006 PM2.5 2008 Lead, 2008 
Ozone, and 2010 NO2 National Ambient Air Quality Standards; 
South Dakota (79 FR 71040 Dec. 1, 2014) under ``III. What is the Scope 
of this Rulemaking?''
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of

[[Page 30976]]

action in which to address possible deficiencies in a state's existing 
SIP. These issues include: (i) Existing provisions related to excess 
emissions from sources during periods of startup, shutdown, or 
malfunction (SSM) that may be contrary to the CAA and EPA's policies 
addressing such excess emissions; (ii) existing provisions related to 
``director's variance'' or ``director's discretion'' that may be 
contrary to the CAA because they purport to allow revisions to SIP-
approved emissions limits while limiting public process or not 
requiring further approval by EPA; and (iii) 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, Dec. 31, 2002, as amended by 72 FR 32526, June 13, 
2007. (``NSR Reform'').

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

    CAA 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.
    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 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). Furthermore, EPA interprets 
the CAA section 110(a)(2)(J) provision on visibility as not being 
triggered by a new NAAQS because the visibility requirements in part C, 
title 1 of the CAA are not changed by a new NAAQS.

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

    The Colorado Department of Public Health and Environment (CDPHE) 
submitted certifications of Colorado's infrastructure SIP for the 2008 
Pb NAAQS on July 26, 2012; the 2008 ozone NAAQS on December 31, 2012; 
and the 2010 NO2 NAAQS on March 7, 2013. Colorado's 
infrastructure certifications demonstrate how the State, where 
applicable, has plans in place that meet the requirements of section 
110 for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. These 
plans reference the current Air Quality Control Commission (AQCC) 
regulations and Colorado Revised Statutes (C.R.S.). These submittals 
are available within the electronic docket for today's proposed action 
at www.regulations.gov. The AQCC regulations referenced in the 
submittals are publicly available at https://www.colorado.gov/pacific/cdphe/aqcc-regs and http://www.lexisnexis.com/hottopics/colorado/. 
Colorado's SIP, air pollution control regulations, and statutes that 
have been previously approved by EPA and incorporated into the Colorado 
SIP can be found at 40 CFR 52.320.

VI. Analysis of the State Submittals

    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.
    Multiple SIP-approved AQCC regulations citied in Colorado's 
certifications provide enforceable emission limitations and other 
control measures, means or techniques, schedules for compliance, and 
other related matters necessary to meet the requirements of the CAA 
section 110(a)(2)(A) for the 2008 ozone, 2008 Pb, and 2010 
NO2 NAAQS, 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). For the purposes of 
this action, EPA is reviewing any rules originally submitted in 
response to part D requirements solely for the purposes of determining 
whether they support a finding that the State has met the basic 
infrastructure requirements of section 110(a)(2). For example, in 
response to the requirement to have enforceable emission limitations 
under section 110(a)(2)(A), Colorado cited to rules in Regulation 
Number 7 that were submitted to meet the reasonably available control 
technology (RACT) requirements of part D. EPA is here approving those 
rules as meeting the requirement to have enforceable emission 
limitations on ozone precursors; any judgment about whether those 
emission limitations discharge the State's obligation to impose RACT 
under part D will be made separately, in an action reviewing those 
rules pursuant to the requirements of part D. Colorado also referenced 
SIP provisions that are relevant, such as limits on emissions of 
particulate matter (PM) 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, Nov. 24, 1987), and the Agency plans to take action in the 
future to address such state regulations. In the meantime, EPA 
encourages any state

[[Page 30977]]

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.
    Third and finally, in this action, EPA is also not proposing to 
approve or disapprove any existing state provision with regard to 
excess emissions during SSM or operations at a facility. A number of 
states have SSM provisions which are contrary to the CAA and existing 
EPA guidance \2\ and the Agency is addressing such state regulations 
separately (78 FR 12460, Feb. 22, 2013).
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    \2\ 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.''
    The Colorado Air Pollution Control Division (APCD) periodically 
submits a Quality Management Plan and a Quality Assurance Project Plan 
to EPA Region 8. These plans cover procedures to monitor and analyze 
data. The provisions for episode monitoring, data compilation and 
reporting, public availability of information, and annual network 
reviews are found in the statewide monitoring SIP (58 FR 49435, Sept. 
23, 1993). As part of the monitoring SIP, Colorado submits an Annual 
Monitoring Network Plan (AMNP) each year for EPA approval. EPA approved 
2013 and 2014 network changes through an AMNP response letter 
(contained within the docket) mailed to CDPHE on March 13, 2015.
    In the AMNP response letter, EPA noted a deficiency in Colorado's 
AMNP regarding NO2 monitoring. 40 CFR 58.10(a)(5)(iv) 
requires that ``a plan for establishing a second near-road 
NO2 monitor in any [Core Based Statistical Area] [CBSA] with 
a population of 2,500,000 or more persons, or a second monitor in any 
CBSA with a population of 500,000 or more persons that has one or more 
roadway segments with 250,000 or greater [annual average daily traffic] 
counts, in accordance with the requirements of Appendix D, section 
4.3.2 to this part, shall be submitted as part of the Annual Monitoring 
Network Plan to the EPA Regional Administrator by July 1, 2014. The 
plan shall provide for these required monitors to be operational by 
January 1, 2015.'' Colorado was required to start its second near-road 
NO2 monitor by January 1, 2015. The State did not meet this 
deadline. However, in a letter dated March 31, 2015 (contained within 
the docket) CDPHE committed to install and operate the second near-road 
NO2 monitoring site by December 31, 2015 at I-25/Acoma 
Street and 49th Avenue in Denver. The State will notify EPA once the 
monitor is operational, which will then satisfy the requirements of 40 
CFR 58.10(a)(5)(iv).
    We find that Colorado's SIP and practices are adequate for the 
ambient air quality monitoring and data system requirements for the 
2008 ozone and 2010 Pb NAAQS; and therefore, propose to approve the 
infrastructure SIP for the 2008 ozone and 2008 Pb NAAQS for this 
element.
    CAA 110(k)(4) states ``The Administrator may approve a plan 
revision based on a commitment of the State to adopt specific 
enforceable measures by a date certain, but not later than 1 year after 
the date of approval of the plan revision. Any such conditional 
approval shall be treated as a disapproval if the State fails to comply 
with such commitment.'' Based on Colorado's commitment to install and 
operate the second near-road NO2 monitoring site no later 
than December 31, 2015, we propose to conditionally approve this 
element for the 2010 NO2 NAAQS. If however, the State fails 
to meet the deadline for installing and operating the near-road 
NO2 monitor, EPA's conditional approval, if finalized, will 
revert automatically to a disapproval.
    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 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    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 2008 ozone, 
2008 Pb, and 2010 NO2 NAAQS. As explained elsewhere 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

    With respect to elements (C) and (J), EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS that demonstrates that the air agency has a complete 
PSD permitting program meeting the current requirements for all 
regulated NSR pollutants. The requirements of element (D)(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
Colorado has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other 
requirements, the Phase 2 Rule obligated states to revise their PSD 
programs to explicitly identify NOX as a precursor to ozone. 
EPA approved revisions to Colorado's PSD program reflecting these 
requirements on January 9, 2012 (77 FR 1027), and therefore, Colorado 
has met the infrastructure SIP requirements of section 110(a)(2)(C) 
with respect to 2008 ozone.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions, Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat 
GHGs as an air pollutant for purposes of determining whether a source 
is a major source required to obtain a PSD permit. The Supreme Court 
also said that EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT). In order to act consistently with 
its interpretation of the Court's decision pending further judicial 
action to effectuate the decision, EPA is not continuing to apply EPA 
regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
EPA is not

[[Page 30978]]

applying the requirement that a state's SIP-approved PSD program 
require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g., 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision in 
Utility Air. The timing and content of subsequent EPA actions with 
respect to EPA regulations and state PSD program approvals are expected 
to be informed by additional legal process before the United States 
Court of Appeals for the District of Columbia Circuit. At this 
juncture, EPA is not expecting states to have revised their PSD 
programs for purposes of infrastructure SIP submissions and is only 
evaluating such submissions to assure that the state's program 
correctly addresses GHGs consistent with the Supreme Court's decision.
    At present, EPA has determined that Colorado's SIP is sufficient to 
satisfy elements (C), (D)(i)(II), and (J) with respect to GHGs because 
the PSD permitting program previously approved by EPA \3\ into the SIP 
continues to require that PSD permits (otherwise required based on 
emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT. Although the approved 
Colorado PSD permitting program may currently contain provisions that 
are no longer necessary in light of the Utility Air decision, this does 
not render the infrastructure SIP submission inadequate to satisfy 
elements (C), (D)(i)(II), and (J). The SIP contains the necessary PSD 
requirements at this time, and the application of those requirements is 
not impeded by the presence of other previously-approved provisions 
regarding the permitting of sources of GHGs that EPA does not consider 
necessary at this time in light of the Supreme Court decision. 
Accordingly, the Utility Air decision does not affect EPA's proposed 
approval of Colorado's infrastructure SIP as to the requirements of 
elements (C), (D)(i)(II), and (J).
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    \3\ EPA's proposed notice at 78 FR 30830 (May 23, 2013) includes 
a discussion of the history of Colorado's PSD program approvals for 
GHGs.
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    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)'' 
(73 FR 28321) 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 (D.C. Cir.), issued a judgment 
that remanded EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The court ordered 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 PM 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 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, 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, 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, EPA's 
proposed 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 EPA's action on the present infrastructure action. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three 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. EPA approved the necessary 
portions of Colorado's May 11, 2012 and May 13, 2013 submissions which 
incorporate the requirements of the 2008 PM2.5 
Implementation Rule and the 2010 PM2.5 Increment Rule on 
September 23, 2013 (78 FR 58186). Colorado's SIP-approved PSD program 
meets current requirements for PM2.5. EPA therefore is 
proposing to approve Colorado's SIP for the 2008 ozone, 2008 Pb, and 
2010 NO2 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 
Regulation 3 of the Colorado SIP, and was originally approved by EPA as 
Regulation 3 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 modified sources not captured by the 
major NSR permitting programs do not interfere with attainment and 
maintenance of the NAAQS.
    EPA is proposing to approve Colorado's infrastructure SIP for the 
2008 ozone, 2008 Pb, and 2010 NO2 NAAQS with respect to the 
general

[[Page 30979]]

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.
    4. Interstate Transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) 
require each state to submit a SIP that prohibits emissions that will 
have certain adverse air quality effects in other states. CAA section 
110(a)(2)(D)(i) identifies four distinct elements related to the 
impacts of air pollutants transported across state lines. The two 
elements under section 110(a)(2)(D)(i)(I) require SIPs to contain 
adequate provisions to prohibit any source or other type of emissions 
activity within the state from emitting air pollutants that will 
(element 1) contribute significantly to nonattainment in any other 
state with respect to any such national primary or secondary NAAQS, and 
(element 2) interfere with maintenance by any other state with respect 
to the same NAAQS. The two elements under section 110(a)(2)(D)(i)(II) 
require SIPs to contain adequate provisions to prohibit emissions that 
will interfere with measures required to be included in the applicable 
implementation plan for any other state under part C (element 3) to 
prevent significant deterioration of air quality or (element 4) to 
protect visibility. In this action, EPA is addressing all four elements 
of CAA section 110(a)(2)(D)(i).
    In this action, EPA is addressing the 2008 Pb and 2010 
NO2 NAAQS with regard to elements 1 (significant 
contribution to nonattainment) and 2 (interference with maintenance). 
EPA is addressing elements 3 (interference with PSD) and 4 
(interference with visibility protection) of 110(a)(2)(D)(i) with 
regard to the 2008 Ozone, 2008 Pb and 2010 NO2 NAAQS. We are 
not addressing elements 1 and 2 for the 2008 ozone NAAQS in this 
action. These elements will be addressed in a later rulemaking.
A. Evaluation of Significant Contribution to Nonattainment and 
Interference With Maintenance
2008 Pb NAAQS
    Colorado's analysis of potential interstate transport for the 2008 
Pb NAAQS includes considerations of Colorado's Pb emissions inventory, 
and the distance of Pb sources in Colorado to nearby states. The 
State's analysis is available in the docket for this action.
    As noted in the 2011 Memo, there is a sharp decrease in Pb 
concentrations, at least in the coarse fraction, as the distance from a 
Pb source increases. For this reason, EPA found that the ``requirements 
of subsection (2)(D)(i)(I) (elements 1 and 2) could be satisfied 
through a state's assessment as to whether or not emissions from Pb 
sources located in close proximity to their state borders have 
emissions that impact the neighboring state such that they contribute 
significantly to nonattainment or interfere with maintenance in that 
state.'' \4\ In that guidance document, EPA further specified that any 
source appeared unlikely to contribute significantly to nonattainment 
unless it was located less than 2 miles from a state border and emitted 
at least 0.5 tons per year of Pb. Colorado's 110(a)(2)(D)(i)(I) 
analysis specifically noted that there are no sources in the State that 
meet both of these criteria. EPA concurs with the State's analysis and 
conclusion that no Colorado sources have the combination of Pb emission 
levels and proximity to neighboring states to contribute significantly 
to nonattainment in or interfere with maintenance by other states for 
this NAAQS. Colorado's SIP is therefore adequate to ensure that such 
impacts do not occur. We are proposing to approve Colorado's submission 
in that its SIP meets the requirements of section 110(a)(2)(D)(i) for 
the 2008 Pb NAAQS.
---------------------------------------------------------------------------

    \4\ 2011 Memo at pg 8.
---------------------------------------------------------------------------

2010 NO2 NAAQS
    Colorado's 2010 NO2 submission notes that all states are 
currently designated by EPA as unclassifiable/attainment for 
NO2, and determines that it is therefore unlikely that 
Colorado contributes to nonattainment or interferes with maintenance 
for NO2 in any other state.
    EPA recognizes the reasonableness of Colorado's conclusion, 
specifically with regard to element 1 (significant contribution to 
nonattainment).\5\ In addition, EPA notes that the highest monitored 
NO2 design values in each state bordering Colorado are 
significantly below the NAAQS (see Table 2, below).\6\ This fact 
further supports the State's contention that significant contribution 
to nonattainment or interference with maintenance of the NO2 
NAAQS from Colorado is very unlikely based on the lack of areas with 
high levels of NO2. This is especially relevant for element 
2 (interference with maintenance), because in addition to the lack of 
areas violating the NO2 NAAQS, there are also no areas near 
the State approaching violation of the 2010 NO2 NAAQS which 
might therefore be expected to have difficulty maintaining the 
standard.
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    \5\ EPA has not interpreted element 1 to literally mean 
contribution to designated nonattainment areas, and has applied this 
interpretation in comprehensive actions addressing elements 1 and 2 
(See e.g., Cross-State Air Pollution Rule, 76 FR 48208, August 8, 
2011).
    \6\ EPA did not calculate a 2010 1-hour NO2 design 
value in the state of Nebraska for the 2011-2013 design value 
period.

         Table 2--Highest Monitored 2010 NO2 NAAQS Design Values
------------------------------------------------------------------------
                                   2011-2013 Design    Percent of NAAQS
              State                      value             (100 ppb)
------------------------------------------------------------------------
Kansas..........................  65 ppb............  65.
Nebraska........................  No Data...........  No Data.
New Mexico......................  41 ppb............  41.
Oklahoma........................  54 ppb............  54.
South Dakota....................  37 ppb............  37.
Utah............................  66 ppb............  66.
Wyoming.........................  35 ppb............  35.
------------------------------------------------------------------------
* Source: http://www.epa.gov/airtrends/values.html.

    In addition to the monitored levels of NO2 in states 
bordering Colorado being well below the NAAQS, Colorado's highest 
design value from 2011-2013 was also significantly below this NAAQS (62 
ppb).\7\
---------------------------------------------------------------------------

    \7\ http://www.epa.gov/airtrends/values.html.
---------------------------------------------------------------------------

    Based on all of these factors, EPA concurs with the State's 
conclusion that Colorado does not contribute significantly to 
nonattainment or interfere with maintenance of the 2010 NO2 
NAAQS in other states. EPA is therefore proposing to determine that 
Colorado's SIP includes adequate provisions to prohibit sources or 
other emission activities within the State from emitting NO2 
in amounts that will contribute significantly to nonattainment in or 
interfere with maintenance by any other state with respect specifically 
to the NO2 NAAQS.
B. Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)
    Colorado's certifications with regard to elements 3 and 4 of 
110(a)(2)(D)(i) vary by pollutant. Each certification can be found in 
the docket for this action.
    With regard to the PSD portion of section 110(a)(2)(D)(i)(II), this 
requirement may be met by a state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to a comprehensive EPA-approved PSD permitting 
program in the SIP that applies to all regulated NSR pollutants and 
that satisfies the requirements of EPA's PSD

[[Page 30980]]

implementation rule(s).\8\ As noted in Section VI.3 of this proposed 
action, Colorado has such a program, and EPA is therefore proposing to 
approve Colorado's SIP for the 2008 ozone, 2008 Pb, and 2010 
NO2 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.
---------------------------------------------------------------------------

    \8\ See 2013 Memo.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for 
any one or more of the pollutants subject to regulation under the CAA 
because they are in a nonattainment area for a NAAQS related to those 
particular pollutants may also have the potential to interfere with PSD 
in an attainment or unclassifiable area of another state. One way a 
state may satisfy element 3 with respect to these sources is by citing 
an air agency's EPA-approved nonattainment NSR provisions addressing 
any pollutants for which the state has designated nonattainment areas. 
Colorado has a SIP-approved nonattainment NSR program which ensures 
regulation of major sources and major modifications in nonattainment 
areas.\9\
---------------------------------------------------------------------------

    \9\ See Colorado Regulation No. 3, Part D, Section V, which was 
most recently approved by EPA in a final rulemaking dated February 
13, 2014 (79 FR 8632).
---------------------------------------------------------------------------

    As Colorado's SIP meets PSD requirements for all regulated NSR 
pollutants, and contains a fully approved nonattainment NSR program, 
EPA is proposing to approve the infrastructure SIP submission as 
meeting the applicable requirements of element 3 of section 
110(a)(2)(D)(i) for the 2008 ozone, 2008 Pb and 2010 NO2 
NAAQS.
C. Evaluation of Interference With Measures To Protect Visibility
    To determine whether the CAA section 110(a)(2)(D)(i)(II) 
requirement for visibility protection is satisfied, the SIP must 
address the potential for interference with visibility protection 
caused by the pollutant (including precursors) to which the new or 
revised NAAQS applies. An approved regional haze SIP that fully meets 
the regional haze requirements in 40 CFR 51.308 satisfies the 
110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures 
that emissions from the state will not interfere with measures required 
to be included in other state SIPs to protect visibility. In the 
absence of a fully approved regional haze SIP, a state can still make a 
demonstration that satisfies the visibility requirement section of 
110(a)(2)(D)(i)(II).\10\
---------------------------------------------------------------------------

    \10\ See 2013 Memo. In addition, EPA approved the visibility 
requirement of 110(a)(2)(D)(i) for the 1997 Ozone and 
PM2.5 NAAQS for Colorado before taking action on the 
State's regional haze SIP. 76 FR 22036 (April 20, 2011).
---------------------------------------------------------------------------

    Colorado submitted a regional haze SIP to EPA on May 25, 2011. EPA 
approved Colorado's regional haze SIP on December 31, 2012 (77 FR 
76871). In early 2013, WildEarth Guardians and the National Parks 
Conservation Association (NPCA) filed separate petitions for 
reconsideration of certain aspects of EPA's approval of the Colorado's 
regional haze SIP.\11\ After these petitions were filed, a settlement 
agreement was entered into concerning the Craig Generating Station by 
the petitioners, EPA, CDPHE, and Tri-State Generation and Transmission 
Association, Inc., and filed with the court on July 10, 2014.\12\ In 
accordance with the settlement agreement, EPA requested and the court 
granted a voluntary remand to EPA of the portions of EPA's December 
2012 regional haze SIP approval that related to Craig Unit 1. Because 
of this remand, and because the additional controls at the Craig 
facility will be implemented through a revision to the Colorado 
regional haze SIP that EPA has not yet acted on, EPA cannot rely on 
this approval as automatically satisfying element 4.
---------------------------------------------------------------------------

    \11\ WildEarth Guardians filed its petition on February 25, 
2013, and NPCA filed its petition on March 1, 2013.
    \12\ This settlement agreement is included in the docket for 
this action; see also Proposed Settlement Agreement, 79 FR 47636 
(Aug. 14, 2014).
---------------------------------------------------------------------------

    EPA does, however, consider other aspects of our approval of 
Colorado's regional haze SIP to be sufficient to satisfy this 
requirement. Specifically, EPA found that Colorado met its 40 CFR 
51.308(d)(3)(ii) requirements to include in its regional haze SIP all 
measures necessary to (1) obtain its share of the emission reductions 
needed to meet the reasonable progress goals for any other state's 
Class I area to which Colorado causes or contributes to visibility 
impairment, and; (2) ensure it has included all measures needed to 
achieve its apportionment of emission reduction obligations agreed upon 
through a regional planning process. Colorado participated in a 
regional planning process with Western Regional Air Partnership (WRAP). 
In the regional planning process, Colorado analyzed the WRAP modeling 
and determined that emissions from the State do not significantly 
impact other states' Class I areas.\13\ Colorado accepted and 
incorporated the WRAP-developed visibility modeling into its regional 
haze SIP, and the SIP included the controls assumed in the modeling. 
For these reasons, EPA determined that Colorado had satisfied the 
Regional Haze Rule requirements for consultation and included controls 
in the SIP sufficient to address the relevant requirements related to 
impacts on Class I areas in other states. Therefore, we are proposing 
to approve the Colorado SIP as meeting the requirements of element 4 of 
CAA section 110(a)(2)(D)(i) for the 2008 ozone, 2008 Pb and 2010 
NO2 NAAQS.
---------------------------------------------------------------------------

    \13\ See our proposed rulemaking on the Colorado regional Haze 
SIP, 77 FR 18052, March 26, 2012.
---------------------------------------------------------------------------

    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    Section 126(a) requires notification to affected, nearby states of 
major proposed new (or modified) sources. Sections 126(b) and (c) 
pertain to petitions by affected states to the Administrator of the 
U.S. EPA (Administrator) regarding sources violating the ``interstate 
transport'' provisions of section 110(a)(2)(D)(i). Section 115 
similarly pertains to international transport of air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), Colorado's SIP-approved PSD 
program requires notice to states whose lands may be affected by the 
emissions of sources subject to PSD.\14\ This suffices to meet the 
notice requirement of section 126(a).
---------------------------------------------------------------------------

    \14\ See Colorado Regulation 3, Part D. IV.A.1.
---------------------------------------------------------------------------

    Colorado has no pending obligations under sections 126(c) or 
115(b); therefore, its SIP currently meets the requirements of those 
sections. In summary, the SIP meets the requirements of CAA section 
110(a)(2)(D)(ii) for the 2008 ozone, 2008 Pb and 2010 NO2 
NAAQS.
    6. Adequate resources: 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)(ii) also 
requires each state to comply with the requirements respecting state 
boards under CAA section 128. 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

[[Page 30981]]

instrumentality for the implementation of any [SIP] provision, the 
State has responsibility for ensuring adequate implementation of such 
[SIP] provision.''
    a. Sub-elements (i) and (iii): Adequate personnel, funding, and 
legal authority under state law to carry out its SIP, and related 
issues. Colorado revised statues, specifically the Colorado Air 
Pollution Prevention and Control Act (APPCA) Sections 25-7-105, 25-7-
111, 42-4-301 to 42-4-316, 42-4-414 and Article 7 of Title 25, provide 
adequate authority for the State of Colorado APCD and AQCC to carry out 
its SIP obligations with respect to the 2008 ozone, 2008 Pb, and 2010 
NO2 NAAQS. The State receives 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 in their 
certifications and contained within this docket also provide the 
necessary assurances that the State has responsibility for adequate 
implementation of SIP provisions by local governments. Therefore, we 
propose to approve Colorado's SIP as meeting the requirements of 
section 110(a)(2)(E)(i) and (E)(iii) for the 2008 ozone, 2008 Pb, and 
2010 NO2 NAAQS.
    b. Sub-element (ii): State boards. Section 110(a)(2)(E)(ii) 
requires each state's SIP to contain provisions that comply with the 
requirements of section 128 of the CAA. That provision contains two 
explicit requirements: (i) That any board or body which approves 
permits or enforcement orders under the CAA 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 such 
permits and enforcement orders; and (ii) that any potential conflicts 
of interest by members of such board or body or the head of an 
executive agency with similar powers be adequately disclosed.\15\
---------------------------------------------------------------------------

    \15\ EPA's proposed rule notice (79 FR 71040, Dec. 1, 2014) 
includes a discussion of the legislative history of how states could 
meet the requirements of CAA section 128.
---------------------------------------------------------------------------

    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 
Colorado 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 2008 ozone, 2008 Pb, and 2010 NO2 
NAAQS for this element.
    7. 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.
    The Colorado AQCC Regulations listed in the State's certifications 
(Regulations 1, 3, 7, and Common Provisions Regulation) and contained 
within this docket provide authority to establish a program for 
measurements and testing of sources, including requirements for 
sampling and testing. Air Pollutant Emission Notice (APEN) requirements 
are defined in Regulation 3 and requires stationary sources to report 
their emissions on a regular basis through APENs. Regulation 3 also 
requires for monitoring to be performed in accordance with EPA accepted 
procedures, and record keeping of air pollutants. Additionally, 
Regulation 3 provides for a permitting program that establishes 
emission limitations and standards. Emissions must be reported by 
sources to the state for correlation with applicable emissions 
limitations and standards. Monitoring may be required for both 
construction and operating permits.
    Additionally, Colorado is required to submit emissions data to the 
EPA for purposes of the National Emissions Inventory (NEI). The NEI is 
the EPA's central repository for air emissions data. The EPA published 
the Air Emissions Reporting Rule (AERR) on December 5, 2008, which 
modified the requirements for collecting and reporting air emissions 
data (73 FR 76539). The AERR shortened the time states had to report 
emissions data from 17 to 12 months, giving states one calendar year to 
submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and their associated precursors--nitrogen oxides, 
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. Colorado made its latest update 
to the NEI on December 31, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the Colorado's 
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 
2008 ozone, 2008 Pb, and 2010 NO2 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303 \16\] and adequate contingency plans to implement such 
authority.''
---------------------------------------------------------------------------

    \16\ Discussion of the requirements for meeting CAA section 303 
is provided in our notice of proposed rulemaking: Promulgation of 
State Implementation Plan Revisions; Infrastructure Requirements for 
the 1997 and 2006 p.m.2.5, 2008 Lead, 2008 Ozone, and 
2010 NO2 National Ambient Air Quality Standards; South 
Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State 
Submittals, 8. Emergency powers.''
---------------------------------------------------------------------------

    Under CAA section 303, the Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment. If such action may not practicably assure prompt 
protection, then the Administrator has authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if EPA subsequently files 
a civil suit.
    APPCA Sections 25-7-112 and 25-7-113 provide APCD with general 
emergency authority comparable to that in section 303 of the Act. APPCA 
section 25-7-112(1) provides the Division of Administration in the 
CDPHE with the authority to maintain civil actions over the sources of 
air pollution discharges that constitute ``a clear, present, and 
immediate danger to the environment or to the health of the public.'' 
Specifically, the Division can seek a ``temporary restraining order, 
temporary injunction, or permanent injunction as provided for in the 
Colorado rules of civil procedure'' (C.R.S. section 25-7-112(1)(b)). 
This

[[Page 30982]]

authority extends to discharges that constitute ``an immediate danger 
to the welfare of the public because such pollutants make habitation of 
residences or the conduct of businesses subjected to the pollutants 
extremely unhealthy or disruptive.'' (C.R.S. Section 25-7-113(1)).
    These civil actions may be maintained ``in any district court of 
this state for the district in which the said activity or discharge is 
occurring.'' (C.R.S. Sections 25-7-112(1)(b); 25-7-113(1)(b)). 
Additionally, the action ``shall be given precedence over all other 
matters pending in such district court.'' (Id). As such, Colorado law 
provides statutory authority over sources of air pollution discharges 
that cause an ``immediate danger'' to public health, welfare, or the 
environment. This authority allows for the pursuit of immediate relief 
and provides precedence for such matters. Therefore, Colorado has 
comparable judicial authority to that provided to the Administrator in 
Section 303.
    Similarly, APPCA section 25-7-112(1)(a) provides the Division of 
Administration in the CDPHE with the authority to issue ``cease-and-
desist orders. . .requiring immediate discontinuance of such activity 
or the discharge of such pollutant into the atmosphere'' when the 
activity or discharge ``constitutes a clear, present, and immediate 
danger to the environment or to the health of the public.'' (C.R.S. 
Section 25-7-112(1)(a)). Further, ``upon receipt of such order, such 
person shall immediately discontinue such activity or discharge.'' 
(Id). This authority extends to discharges that constitute ``an 
immediate danger to the welfare of the public because such pollutants 
make habitation of residences or the conduct of businesses subjected to 
the pollutants extremely unhealthy or disruptive.'' (C.R.S. Section 25-
7-113(1)).
    These provisions also allow the Division to ``both issue such a 
cease-and-desist order and apply for any such restraining order or 
injunction'' (C.R.S. Sections 25-7-112(1)(c); 25-7-113(c)). Colorado 
law provides administrative authority over sources of air pollution 
discharges that cause an ``immediate danger'' to public health, 
welfare, or the environment. Furthermore, C.R.S. Sections 25-7-
112(2)(b) allows the Governor to declare a state of air pollution 
emergency and take any and all actions necessary to protect the health 
of the public. This authority is comparable to that provided to the 
Administrator in Section 303.
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). This can be met can by submitting a plan that meets 
the applicable requirements of 40 CFR part 51, subpart H for the 
relevant NAAQS if the NAAQS is covered by those regulations. The Denver 
Emergency Episode Plan, applicable to the Denver metropolitan area, 
satisfies the requirements of 40 CFR part 51, subpart H (See 74 FR 
47888). The SIP therefore meets the requirements of 110(a)(2)(G). Based 
on the above analysis, we propose approval of Colorado's SIP as meeting 
the requirements of CAA section 110(a)(2)(G) for the 2008 ozone, 2008 
Pb, and 2010 NO2 NAAQS.
    9. 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].
    Colorado's statutory provision at Colorado APPCA Sections 25-7-
105(1)(a)(I) gives the AQCC sufficient authority to meet the 
requirements of 110(a)(2)(H). Therefore, we propose to approve 
Colorado's SIP as meeting the requirements of CAA section 110(a)(2)(H).
    10. 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).''
    The State has demonstrated it has the authority and rules in place 
through its certifications (contained within this docket) 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 addressed the requirements of CAA section 
127 for the Colorado SIP and determined public notification 
requirements are appropriate (45 FR 53147, Aug. 11, 1980).
    As discussed above, the State has a SIP-approved PSD program that 
incorporates by reference the federal program at 40 CFR 52.21. EPA has 
further evaluated Colorado's SIP approved PSD program in this proposed 
action under element (C) and determined the State has satisfied the 
requirements of element 110(a)(2)(C), as noted above. Therefore, the 
State has also satisfied the requirements of element 110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes states are subject to visibility and 
regional haze program requirements under part C of the Act. In 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 are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the Colorado SIP 
as meeting the requirements of CAA section 110(a)(2)(J) for the 2008 
ozone, 2008 Pb, and 2010 NO2 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
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.
    Colorado's Regulation 3 Part A.VIII (Technical Modeling and 
Monitoring Requirements) 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). Additionally, Regulation 3 Part D, 
Section VI.C. requires the Division to transmit to the Administrator of 
the U.S. EPA a copy of each permit application relating to a major 
stationary source or major modification subject to this regulation, and 
provide notice of every action related to the consideration of such 
permit.
    Colorado has broad authority to develop and implement an air 
quality control program that includes conducting air quality modeling 
to predict the effect on ambient air quality of any emissions of any 
air pollutant for which a NAAQS has been promulgated and provide that 
modeling data to the EPA. This broad authority can be found in 25-7-
102, C.R.S., which requires that

[[Page 30983]]

emission control measures be evaluated against economic, environmental, 
energy and other impacts, and indirectly authorizes modeling 
activities.\17\ Colorado also has broad authority to conduct modeling 
and submit supporting data to EPA to satisfy federal non-attainment 
area requirements (25-7-105, 25-7-205.1, 25-7-301, and 25-7-302, 
C.R.S.). In addition to statutory authority, all state implementation 
plans and revisions of such plans must be submitted to Colorado's 
Legislature for review providing another layer of review and 
authorization for submittal to EPA (25-7-133(1), C.R.S.). The State 
also has the authority to submit any modeling data to EPA upon request 
under the Colorado Open Records Act (24-72-201 to 24-72-309, C.R.S.).
---------------------------------------------------------------------------

    \17\ See Email from Robert True ``Response Requested for Element 
K on CO's iSIP'' April 6, 2015, available within docket.
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    As a result, the SIP provides for such air quality modeling as the 
Administrator has prescribed. Therefore, we propose to approve the 
Colorado SIP as meeting the CAA section 110(a)(2)(K) for the 2008 
ozone, 2008 Pb, and 2010 NO2 NAAQS.
    12. 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.
    The State of Colorado requires the owner or operator of a major 
stationary source to pay the Division any fee necessary to cover the 
reasonable costs of reviewing and acting upon any permit application. 
The collection of fees is described in AQCC Regulation 3, Part A.
    We also note that the State has an EPA approved title V permit 
program (60 FR 4563, Jan. 24, 1995) which provides for collection of 
permitting fees. 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.
    Therefore, based on the State's experience in relying on the 
collection of fees as described in AQCC Regulation 3, and the use of 
title V fees to implement and enforce PSD permits once they are 
incorporated into title V permits, we propose to approve the 
submissions as supplemented by the State for the 2008 ozone, 2008 Pb, 
and 2010 NO2 NAAQS.
    13. 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.
    The statutory provisions cited in Colorado's SIP submittals 
(contained within this docket) meet the requirements of CAA section 
110(a)(2)(M), so we propose to approve Colorado's SIP as meeting these 
requirements for the 2008 ozone, 2008 Pb, and 2010 NO2 
NAAQS.

VII. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS: (A), (C) with respect to minor NSR and PSD 
requirements, (D)(i)(II) elements 3 and 4, (D)(ii), (E), (F), (G), (H), 
(J), (K), (L), and (M). EPA is proposing to approve element (B) for the 
2008 Pb and 2008 ozone NAAQS and proposing to conditionally approve 
element (B) for the 2010 NO2 NAAQS. Finally, EPA proposes 
approval of D(i)(I) elements 1 and 2 for the 2008 Pb and 2010 
NO2 NAAQS. EPA will act separately on infrastructure element 
(D)(i)(I), interstate transport elements 1 and 2 for the 2008 ozone 
NAAQS.

VIII. Statutory and Executive Orders Review

    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, Oct. 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, Aug. 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, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).

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.

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


[[Page 30984]]


    Dated: May 13, 2015.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2015-13123 Filed 5-29-15; 8:45 am]
BILLING CODE 6560-50-P