Federal Register Vol. 80, No.104,

Section 5304 of title 5, United States Code (U.S.C.), authorizes locality pay for General Schedule (GS) employees with duty stations in the United States and its territories and possessions. Section 5304(f) of title 5 U.S.C. authorizes the President's Pay Agent (the Secretary of Labor, the Director of the Office of Management and Budget (OMB), and the Director of the Office of Personnel Management (OPM)) to determine locality pay areas. The boundaries of locality pay areas must be based on appropriate factors, which may include local labor market patterns, commuting patterns, and the practices of other employers. The Pay Agent must give thorough consideration to the views and recommendations of the Federal Salary Council, a body composed of experts in the fields of labor relations and pay policy and representatives of Federal employee organizations. The President appoints the members of the Federal Salary Council, which submits annual recommendations to the Pay Agent on the locality pay program. The establishment or modification of locality pay area boundaries must conform with the notice and comment provisions of the Administrative Procedure Act (5 U.S.C. 553).

This proposal provides notice and invites comment on proposed regulations to implement the Pay Agent's plan to link locality pay area definitions to OMB-defined metropolitan areas, to use new commuting patterns data for evaluating locations adjacent to the metropolitan area comprising the basic locality pay area, and to establish 13 new locality pay areas. (Annual Pay Agent reports on locality pay can be found posted on the OPM Web site at http://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/general-schedule/#url=Pay-Agent-Reports. The Pay Agent announced its plan to propose regulations linking locality pay area boundaries to OMB-defined metropolitan areas and using new commuting patterns data in its June 2014 report on locality pay. The Pay Agent announced its plan to establish 12 of the 13 new locality pay areas in its May 2013 report on locality pay. The Federal Salary Council, in its November 2014 recommendations, recommended establishing Kansas City, MO-KS, as a new locality pay area. Because the Federal Salary Council used the same selection criteria as used for the 12 new locality pay areas the Pay Agent tentatively approved, the Pay Agent proposes establishing Kansas City, MO-KS as a new locality pay area.)

OMB-defined metropolitan areas have been the basis of locality pay area boundaries since locality pay was implemented in 1994. OMB periodically updates its definitions of metropolitan areas, and regulations defining locality pay areas normally allow any minor changes in OMB-defined metropolitan areas to be reflected in locality pay area definitions automatically. However, because we anticipated significant changes to metropolitan area definitions in 2013, in January 2013, we revised the regulations defining locality pay areas so that updates based on OMB's redefinitions would not automatically be reflected in locality pay area definitions. (See Federal Register Vol. 78, No. 16, page 5115, January 24, 2013, and the current definitions of “CSA” and “MSA” in 5 CFR 531.602.) That action provided time for the Federal Salary Council and the Pay Agent to review the updated metropolitan area definitions for suitability for use in the locality pay program. As a result, locality pay area definitions were frozen and are currently based on December 2009 OMB-defined metropolitan areas.

In February 2013, OMB issued new metropolitan area definitions, and in its January 2014 recommendations to the Pay Agent, the Federal Salary Council recommended that the Pay Agent use the February 2013 metropolitan area definitions in the locality pay program. The Pay Agent, in its June 2014 report to the President on locality pay, tentatively approved that recommendation, pending the issuance of revised locality pay regulations. This proposed rule would implement the change by revising the definitions of “CSA” and “MSA” in 5 CFR 531.602, to link the definitions of locality pay areas to the February 2013 OMB-defined metropolitan areas, and by updating the locality pay area definitions in 5 CFR 531.603 accordingly. The proposed revisions to the definitions of “CSA” and “MSA” in 5 CFR 531.602 would provide that any OMB additions to the CSAs and MSAs comprising basic locality pay areas would be reflected in locality pay area definitions automatically. The proposed rule also implements the Pay Agent's plan to retain, in their current locality pay area, any locations that would otherwise move to a lower-paying locality pay area as a result of linking locality pay area definitions to the February 2013 OMB-defined metropolitan areas, as recommended by the Federal Salary Council. Under this proposed rule, any such retained area would no longer be part of the basic locality pay area due to use of the February 2013 OMB-defined metropolitan areas and would be treated as an area of application.

OMB-defined metropolitan areas are called Core-Based Statistical Areas (CBSAs) and are grouped into three categories: Micropolitan Statistical Areas, where the largest included urban area has a population of 10,000 to 49,999; Metropolitan Statistical Areas (MSAs), where the largest included urban area has a population of 50,000 or more; and Combined Statistical Areas (CSAs), which are composed of two or more adjacent CBSAs with an employment interchange measure of at least 15 percent. (The employment interchange measure is the sum of the percentage of workers living in the smaller entity who work in the larger entity and the percentage of employment in the smaller entity that is accounted for by workers who reside in the larger entity.) CBSA definitions used for the locality pay program under this proposal are contained in OMB Bulletin 13-01 of February 28, 2013, and are available at http://www.whitehouse.gov/sites/default/files/omb/bulletins/2013/b-13-01.pdf.

As explained in the June 2014 Pay Agent report, locality pay areas consist of 1) the main metropolitan area comprising the basic locality pay area and, where criteria recommended by the Federal Salary Council and approved by the Pay Agent are met, 2) areas of application. Areas of application are locations that are adjacent to the basic locality pay area and meet approved criteria for inclusion in the locality pay area.

Current criteria for evaluating locations adjacent to a basic locality pay area for possible inclusion in the locality pay area as areas of application are as follows: For adjacent CSAs and adjacent multi-county MSAs the criteria are 1,500 or more GS employees and a commuting interchange rate of at least 7.5 percent. For adjacent single counties, the criteria are 400 or more GS employees and a commuting interchange rate of at least 7.5 percent. The commuting interchange rate is defined as the sum of the percentage of employed residents of the area under consideration who work in the basic locality pay area and the percentage of the employment in the area under consideration that is accounted for by workers who reside in the basic locality pay area.

The locality pay program also has criteria for evaluating Federal facilities that cross county lines into a separate locality pay area. To be included in an adjacent locality pay area, the whole facility must have at least 500 GS employees, with the majority of those employees in the higher-paying locality pay area, or that portion of a Federal facility outside of a higher-paying locality pay area must have at least 750 GS employees, the duty stations of the majority of those employees must be within 10 miles of the separate locality pay area, and a significant number of those employees must commute to work from the higher-paying locality pay area.

As stated in the June 2014 Pay Agent report, new commuting patterns data were collected as part of the American Community Survey from 2006 to 2010, and the Federal Salary Council recommended, in its January 2014 recommendations, using those data for evaluating potential areas of application. The Pay Agent tentatively agreed in its June 2014 report that it would be appropriate to use the new commuting patterns data for evaluating potential areas of application, and the areas of application included in the locality pay area definitions in this proposed rule, at 5 CFR 531.603(b), reflect use of the new commuting patterns data for that purpose.

In its November 2012 recommendations, the Federal Salary Council noted that, if its recommendations for changing pay area boundaries were adopted, some areas currently in the “Rest of U.S.” locality pay area and not meeting the criteria for areas of application would be almost or completely surrounded by higher-paying locality pay areas. The Federal Salary Council recommended that completely surrounded locations be added to the locality pay area with which the surrounded location has the highest level of commuting to and from the basic locality pay area. For locations almost but not completely surrounded by higher-paying locality pay areas, the Federal Salary Council recommended that the Pay Agent evaluate, on a case-by-case basis, any locations almost but not completely surrounded by separate pay areas. The Federal Salary Council reiterated those recommendations in its January 2014 recommendations.

Without criteria to address locations completely surrounded by higher-paying locality pay areas, this proposal's changes to locality pay area boundaries would leave Kent County, MD, and Lancaster County, PA, in the “Rest of U.S.” locality pay area, and both counties could also be completely surrounded by higher-paying locality pay areas. The Pay Agent believes that single-county locations completely surrounded by higher-paying locality pay areas should be included in the locality pay area with the highest commuting interchange rate between the surrounded county and the basic locality pay area. Accordingly, this proposed rule would amend the locality pay area definitions at 5 CFR 531.603(b) to include Kent County, MD, in the Washington-Baltimore-Arlington, DC-MD-VA-WV-PA locality pay area and Lancaster County, PA, in the Harrisburg-York-Lebanon, PA, locality pay area.

The issue of how to address “Rest of U.S.” locations that are almost but not completely surrounded by higher-paying locality pay areas requires careful consideration. The Pay Agent's preliminary view is that partially surrounded locations warranting some action would most likely be single “Rest of U.S.” counties—not multi-county metropolitan areas or large groups of counties—that are bordered by multiple higher-paying locality pay areas or are surrounded by water and isolated as “Rest of U.S.” locations within a reasonable commuting distance of a higher-paying locality pay area. The Pay Agent believes any such “Rest of U.S.” locations considered for inclusion in a separate locality pay area should be evaluated with criteria designed to evaluate such locations. The Pay Agent invites public comment on this issue.

This proposal would amend 5 CFR 531.603(b) to add the following locations to existing locality pay areas:

Clarke County, GA; Gordon County, GA; Jackson County, GA; Madison County, GA; Morgan County, GA; Oconee County, GA; and Oglethorpe County, GA.

Androscoggin County, ME; Cumberland County, ME; Sagadahoc County, ME; and all portions of York County, ME, that are currently in the “Rest of U.S.” locality pay area.

Bureau County, IL; LaSalle County, IL; and Putnam County, IL.

Mason County, KY, and Union County, IN.

Carroll County, OH; Erie County, OH; Huron County, OH; Stark County, OH; and Tuscarawas County, OH.

Guernsey County, OH; Hocking County, OH; Logan County, OH; Muskingum County, OH; and Perry County, OH.

Bryan County, OK; Hopkins County, TX; and Navarro County, TX.

Shelby County, OH.

Trinity County, TX; Washington County, TX; and Wharton County, TX.

Marshall County, AL.

Decatur County, IN; Delaware County, IN; and Jackson County, IN.

All portions of Kern County, CA, currently included in the “Rest of U.S.” locality pay area.

Indian River County, FL; Martin County, FL; Okeechobee County, FL; and St. Lucie County, FL.

Dodge County, WI; Jefferson County, WI; and Walworth County, WI.

Le Sueur County, MN; Mille Lacs County, MN; and Sibley County, MN.

Carbon County, PA; Lehigh County, PA; and Northampton County, PA.

Jefferson County, OH; Indiana County, PA; Brooke County, WV; and Hancock County, WV.

Benton County, OR; Linn County, OR; and Cowlitz County, WA.

Lee County, NC; Robeson County, NC; Scotland County, NC; Vance County, NC; and all portions of Granville County, NC, currently included in the “Rest of U.S.” locality pay area.

Lewis County, WA.

Dorchester County, MD; Kent County, MD; Talbot County, MD; Franklin County, PA; and Rappahannock County, VA.

Locality pay is set by comparing GS and non-Federal pay rates for the same levels of work in each locality pay area. Non-Federal salary survey data used to set locality pay rates are collected by the Bureau of Labor Statistics (BLS). Over the last several years, BLS has developed a method that permits Occupational Employment Statistics (OES) data to be used for locality pay. OES data are available for all MSAs and CSAs in the country and permit evaluation of salary levels in many more locations than could be covered under the prior National Compensation Survey alone.

The Federal Salary Council reviewed pay comparisons of GS and non-Federal pay in all “Rest of U.S.” MSAs and CSAs with 2,500 or more GS employees as of June 2011. Based on its review, the Federal Salary Council recommended new locality pay areas be established for 12 metropolitan areas with pay gaps averaging more than 10 percentage points above that for the “Rest of U.S.” locality pay area over an extended period. The Federal Salary Council's recommendations are posted on the OPM Web site at http://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/general-schedule/federal-salary-council/recommendation12.pdf. In its November 2014 recommendations, using the same selection methodology, the Federal Salary Council recommended that Kansas City, MO-KS, also be established as a separate locality pay area.

The President's Pay Agent has agreed to issue proposed regulations in response to the Federal Salary Council's recommendation to establish 13 new locality pay areas and proposes to modify 5 CFR 531.603(b) to add the new locality pay areas. The 13 new locality pay areas proposed are Albany-Schenectady, NY; Albuquerque-Santa Fe-Las Vegas, NM; Austin-Round Rock, TX; Charlotte-Concord, NC-SC; Colorado Springs, CO; Davenport-Moline, IA-IL; Harrisburg-York-Lebanon, PA; Laredo, TX; Kansas City-Overland Park-Kansas City, MO-KS; Las Vegas-Henderson, NV-AZ; Palm Bay-Melbourne-Titusville, FL; St. Louis-St. Charles-Farmington, MO-IL; and Tucson-Nogales, AZ. Locality pay rates for the 13 new locality pay areas would be set by the President at a later date after they would be established by regulation.

Applying the criteria explained above for evaluating locations adjacent to basic locality pay areas as areas of application, this proposed rule would add the following counties to the new locality pay areas at 5 CFR 531.603(b): Fremont County, CO, and Pueblo County, CO, to the Colorado Springs, CO, locality pay area; Lancaster County, PA, to the Harrisburg-York-Lebanon, PA, locality pay area; Jackson County, KS, Jefferson County, KS, Osage County, KS, Shawnee County, KS, and Wabaunsee County, KS to the Kansas City-Overland Park-Kansas City, MO-KS, locality pay area; and Cochise County, AZ, to the Tucson-Nogales, AZ, locality pay area.

Regarding the criteria explained above for evaluating Federal facilities that cross locality pay area boundaries, the Pay Agent is not aware of any Federal facilities that qualify for inclusion in the new locality pay areas under these criteria.

Using February 2013 CBSA definitions as the basis for locality pay area boundaries and using updated commuting patterns data to evaluate potential areas of application would add a number of counties now covered by “Rest of U.S.” locality pay to higher-paying locality pay areas, which would impact about 6,300 GS employees.

The proposal to establish 13 new locality pay areas would impact about 102,000 GS employees. Implementing that proposal would not automatically change locality pay rates now applicable in those areas because locality pay percentages are established by Executive order under the President's authority in 5 U.S.C. 5304 or 5304a, and the President decides each year whether to increase locality pay percentages. When locality pay percentages are increased, past practice has been to allocate a percent of the total GS payroll for locality raises and to have the overall dollar cost for such pay raises be the same, regardless of the number of locality pay areas. If a percent of the total GS payroll is allocated for locality pay increases, the addition of new areas results in a smaller amount to allocate for locality pay increases in existing areas. Implementing higher locality pay rates in the 13 new locality pay areas could thus result in relatively lower pay increases for employees in existing locality pay areas than they would otherwise receive.

OMB has reviewed this rule in accordance with E.O. 13563 and E.O. 12866.

I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees.

Accordingly, OPM is proposing to amend 5 CFR part 531 as follows:

The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of quarantine plant pests. The regulations contained in “Subpart—Plants for Planting,” §§ 319.37 through 319.37-14 (referred to below as the regulations), prohibit or restrict, among other things, the importation of living plants, plant parts, and seeds for propagation or planting.

The regulations differentiate between prohibited articles and restricted articles. Prohibited articles are plants for planting whose importation into the United States is not authorized due to the risk the articles present of introducing or disseminating plant pests. Restricted articles are articles authorized importation into the United States, provided that the articles are subject to measures to address such risk.

Conditions for the importation into the United States of restricted articles in growing media are found in § 319.37-8. Within that section, the introductory text of paragraph (e) lists taxa of restricted articles that may be imported into the United States in approved growing media, subject to the provisions of a systems approach. Paragraph (e)(1) of § 319.37-8 lists the approved growing media, while paragraph (e)(2) contains the provisions of the systems approach. Within paragraph (e)(2), paragraphs (i) through (viii) contain provisions that are generally applicable to all the taxa listed in the introductory text of paragraph (e), while paragraphs (ix) through (xi) contain additional, taxon-specific provisions.

Currently, Phalaenopsis spp. plants for planting from China are not authorized for importation into the United States in approved growing media. However, the Animal and Plant Health Inspection Service (APHIS) has received a request from the national plant protection organization (NPPO) of China to authorize the importation of Phalaenopsis spp. plants for planting in approved growing media into the continental United States.

In evaluating China's request, we prepared a pest risk assessment (PRA) and a risk management document (RMD). Copies of the PRA and the RMD may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

The PRA, titled “Importation of Phalaenopsis spp. Orchid Plants in Approved Growing Media from China into the Continental United States; A Pathway-Initiated Pest Risk Assessment,” analyzed the potential pest risk associated with the importation of Phalaenopsis spp. plants for planting in approved growing media into the continental United States from China.

The PRA identified four quarantine pests that could be introduced into the continental United States through the importation of Phalaenopsis spp. plants for planting from China in approved growing media:

• Spodoptera litura, tropical armyworm;

• Thrips palmi, melon thrips;

• Cylindrosporium phalaenopsidis, a pathogenic fungus that causes orchid black spot;

• Lissachatina fulica, the giant African snail.

The PRA determined that these four pests pose a medium risk of following the pathway of Phalaenopsis spp. plants for planting in approved growing media from China into the continental United States and having negative effects on U.S. agriculture.

Based on these risk ratings, the RMD, titled “Importation of Phalaenopsis spp. Orchids in Approved Growing Media from China into the Continental United States,” identifies the phytosanitary measures necessary to ensure the safe importation into the continental United States of Phalaenopsis spp. plants for planting in approved growing media from China. The RMD finds that the mitigations that are currently specified in paragraphs (e)(2)(i) through (e)(2)(viii) of § 319.37-8 and that are generally applicable to the importation of all restricted articles authorized importation into the United States in approved growing media will mitigate the risk associated with the importation Phalaenopsis spp. plants for planting in approved growing media from China into the continental United States.

Accordingly, we propose to amend the introductory text of paragraph (e) of § 319.37-8 to add Phalaenopsis spp. plants for planting from China to the list of taxa authorized importation into the United States in approved growing media. We also propose to add a paragraph (e)(2)(xii) to § 319.37-8 that would specify that such plants for planting may only be imported into the continental United States.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis, which is summarized below, regarding the economic effects of this proposed rule on small entities. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

Based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

APHIS is proposing to amend the regulations in 7 CFR 319.37-8(e) to authorize the importation from China into the continental United States of orchids of the genus Phalaenopsis established in an approved growing medium, subject to specified growing, inspection, and certification requirements.

Currently, only bare-rooted Phalaenopsis spp. plants for planting may be imported from China into the United States. Eliminating this restriction by allowing the importation of plants in growing media, as well as bare-rooted plants, is expected to increase the number and quality of orchids imported from China by U.S. producers, who then finish the plants for the retail market. This change could result in cost savings for these U.S. producers, which may or may not be passed on to U.S. buyers. The amended regulations could also result in the importation of market-ready Phalaenopsis spp. in approved growing media from China that would directly compete at wholesale and retail levels with U.S. finished potted orchids. The latter scenario is considered unlikely, given the technical challenges and additional marketing costs incurred when shipping finished plants in pots.

The Small Business Administration (SBA) small-entity standard for entities involved in Floriculture Production (NAICS 111422) is $750,000 or less in annual receipts. The number of entities participating in this broadly defined industry was 26,963 in 2012, with $5.9 billion in sales that year. Orchid producers numbered 177 in 2012, or 0.6 percent of the total industry. In 2013, the average wholesale value of orchids produced by the largest producers was $1.4 million. These businesses fall above the SBA threshold for small entities. However, this average sales value excludes sales by an unknown number of smaller establishments that qualify as small entities by the SBA definition.

While many of the U.S. entities that would be affected by the proposed rule such as orchid producers and importers may be small by SBA standards, we expect economic effects for these entities to be modest. We welcome informed public comment that would enable us to better determine the extent to which U.S. small entities may be affected positively or negatively by this proposed rule.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

To provide the public with documentation of APHIS' review and analysis of any potential environmental impacts associated with the importation of Phalaenopsis spp. plants in approved growing media from China into the continental United States, we have prepared an environmental assessment. The environmental assessment was prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) In addition, copies may be obtained by calling or writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2014-0106. Please send a copy of your comments to: (1) Docket No. APHIS-2014-0106, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250.

APHIS is proposing to amend the plants for planting regulations to allow the importation of Phalaenopsis spp. plants for planting in approved growing media from China into the continental United States. As a condition of entry, the plantlets would have to be produced in accordance with a systems approach. This action would allow for the importation of Phalaenopsis spp. plants for planting from China into the continental United States in approved growing media while providing protection against the introduction of plant pests.

Allowing Phalaenopsis spp. plants for planting to be imported into the continental United States will require information collection activities, including phytosanitary certificates, inspections, agreements between producers and the NPPO of China, and an agreement between the NPPO of China and APHIS.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.6956 hours per response.

Respondents: NPPO of China, producers, exporters.

Estimated annual number of respondents: 5.

Estimated annual number of responses per respondent: 4.6.

Estimated annual number of responses: 23.

Estimated total annual burden on respondents: 16 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

Accordingly, we propose to amend 7 CFR part 319 as follows:

The addition reads as follows:

Purpose of Meeting: To provide advice and recommendations to the Energy Department on the development of standards and test procedures for residential appliances and commercial equipment.

Tentative Agenda: (Subject to change; final agenda will be posted at http://www.regulations.gov/#!docketDetail;D=EERE-2013-BT-NOC-0005):

• Discussion and prioritization of topic areas that ASRAC can assist the Appliance and Equipment Standards Program.

Public Participation: Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email [email protected]. In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed. Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.

DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.

Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); a military ID or other Federal government issued Photo-ID card.

Docket: The docket is available for review at www.regulations.gov, including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

The meetings will be held:

• June 11-12, 2015;

• July 15-16, 2015;

• August 11-12, 2015; and

• August 18-19, 2015;

The first day of each meeting series will take place from 9:00 a.m. to 5:00 p.m. (EDT). The second day will take place from 8:00 a.m. to 4:00 p.m. (EDT).

Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email [email protected]. In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed. Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.

DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, American Samoa, Arizona, Louisiana, Maine, Massachusetts, Minnesota, New York, Oklahoma, and Washington.

Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); a military ID or other Federal government issued Photo-ID card.

Docket: The docket is available for review at www.regulations.gov, including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-0787; Directorate Identifier 2015-NE-10-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We propose to adopt a new AD for all PW PW4164, PW4168, PW4168A, PW4164C, PW4164C/B, PW4164-1D, PW4168-1D, PW4168A-1D, PW4170, PW4164C-1D, PW4164C/B-1D, PW4050, PW4052, PW4056, PW4060, PW4060A, PW4060C, PW4062, PW4062A, PW4152, PW4156, PW4156A, PW4158, PW4160, PW4460, PW4462, and PW4650 turbofan engines with an LPT 4th IAS, P/N 51N038, installed. This proposed AD was prompted by 9 occasions of discovering, during routine overhaul of the LPT, cracks in the barrel section of the 4th stage IAS. This condition, if not corrected, could result in uncontained IAS release, damage to the engine, and damage to the aircraft. This proposed AD would require removal of the 4th stage IAS, P/N 51N038, according to a prescribed schedule. We are proposing this AD to prevent failure of the LPT 4th stage IAS, which could lead to an uncontained IAS release, damage to the engine, and damage to the airplane.

We reviewed PW Alert Service Bulletin (ASB) No. PW4G-100-A72-254, dated December 12, 2014. The ASB describes procedures and timetables for removing the LPT 4th stage IAS. This service information is reasonably available; see ADDRESSES for ways to access this service information.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require removal of the LPT 4th stage IAS, P/N 51N038, according to a prescribed schedule.

PW ASB No. PW4G-100-A72-254, dated December 12, 2014, applies to certain PW4000 engine models. This proposed AD applies to the 7 engine models listed in the ASB, plus 4 additional PW4000 engine models certificated for use in the U.S. for which the affected LPT 4th IAS, P/N 51N038, is eligible for installation. These 11 engine models are listed in paragraph (c)(1) of this AD.

We further expanded the applicability to cover 16 additional engine models, listed in paragraph (c)(2) of this AD, which are prohibited from installing P/N 51N038, if that part was ever installed on any engine listed in paragraph (c)(1) of this AD. The unsafe condition described in paragraph (d) of this AD could exist in the part if it was ever operated in any engine listed in paragraph (c)(1) of this AD.

We estimate that this proposed AD affects 72 engines installed on airplanes of U.S. registry. We also estimate that 9 of the engines would require replacement parts during shop visit, and that for these engines the pro-rated replacement parts cost would be $23,805 per engine, and compliance with this proposed AD would require about 49 hours of labor per engine. The average labor rate is $85 per hour. We also estimate that 63 of the engines would require replacement parts during LPT overhaul, that the prorated replacement parts cost for these 63 engines would be $43,545 per engine, and that compliance with this proposed AD for these 63 engines would require 0 additional hours of labor per engine since the parts are already exposed during LPT overhaul. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $2,995,065.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Throughout this document “we,” “us,” or “our” refer to EPA.

In this document, EPA is addressing Missouri's attainment demonstration SIP for the 2008 lead NAAQS nonattainment in the Viburnum Trend Missouri area. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will bring the area into attainment of the 0.15 microgram per cubic meter (ug/m3) lead NAAQS in the Viburnum Trend lead nonattainment area.

In this action, EPA is also addressing a revision to the Missouri SIP to approve portions of a revision to the State of Missouri Code of State Regulations (CSR) 10-6.120, “Restriction of Emissions of Lead from Specific Lead Smelter-Refinery Installations”. This revision pertains to throughput limits applicable to the BRRF, which is the primary source of lead emissions in the Viburnum Trend nonattainment area. Pursuant to a withdrawal request from Missouri,1 EPA is taking action on specific portions Missouri rule 10 CSR 6.120. Missouri rule 10 CSR 6.120, as it pertains to the Buick Resources Recycling Facility, was previously approved in the Missouri SIP. See 69 FR 51953. The Viburnum Trend SIP addressed in this proposed action relies upon portions of the revision to 10 CSR 6.120.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is proposing to grant full approval of Missouri's attainment demonstration SIP for the 2008 lead NAAQS. We are also proposing to approve portions of a revision to Missouri rule 10 CSR 6.120, “Restriction of Emissions of Lead from Specific Lead Smelter-Refinery Installations”. EPA is proposing this action in order to solicit comments. Final rulemaking will occur after consideration of any comments received.

EPA established the NAAQS for lead on October 5, 1978 (43 FR 46246). The 1978 NAAQS for lead is set at a level of 1.5 micrograms per cubic meter (ug/m3) of air, averaged over a calendar quarter. The Viburnum Trend area is designated as attainment for the 1978 lead NAAQS.

On October 15, 2008, EPA established a new lead NAAQS of 0.15 ug/m3 in air, measured as a rolling three-month average. (73 FR 66964). On November 22, 2010, the Buick/Viburnum Trend area was designated as nonattainment for the 2008 lead NAAQS. (75 FR 71033).2 Under sections 191(a) and 192(a) of the CAA, Missouri is required to submit to EPA an attainment demonstration SIP revision for lead and to demonstrate the nonattainment area will reach attainment of the 2008 lead NAAQS no later than five years from the date of the nonattainment area designation.

Missouri rule 10 CSR 10-6.120 ”Restriction of Emissions of Lead from Specific Lead Smelter—Refinery Installations” establishes lead stack emissions limits and testing and recordkeeping requirements at specific lead smelters including the Herculaneum facility 3 in Herculaneum, Missouri, and BRRF in Boss, Missouri. The Buick/Viburnum Trend lead NAAQS attainment SIP relies upon the requirements imposed by Missouri rule 10 CSR 10-6.120, with the exception of those requirements withdrawn by Missouri. In addition, the approval of the production limits for BRRF relies upon the modeling demonstration proposed in the Viburnum Trend area lead NAAQS attainment SIP, therefore, approval of the two SIP revisions are proposed concurrently herein.

There are four lead-emitting sources contributing to the Buick/Viburnum Trend lead nonattainment area: BRRF; the Buick Mine and Mill; the Casteel Mine; and K & D Crushing. BRRF operates as a secondary smelter of lead, lead-containing materials including spent lead acid batteries, lead bullets and shot, lead-containing glass from cathode ray tubes, and lead-based paint chips from lead abatement projects. The Buick Mine and Mill, located to the south of BRRF, conducts subsurface mining and ore processing. The Casteel Mine, located to the north of BRRF, also conducts subsurface mining. K & D Crushing, also located to the north of BRRF, conducts ore crushing at the surface of the Casteel Mine. Crushed and concentrated lead-containing ore was formerly processed at the Herculaneum primary lead smelter, but since that facility ceased primary lead smelting in December 2013, the ore gets shipped out of the U.S. for overseas processing.

As stated above, BRRF is located in the Buick/Viburnum Trend nonattainment area. BRRF's production limit is limited to 175,000 tons of total lead production each year pursuant to Missouri Rule 10 CSR 6.120(3)(B)2. The majority of the lead recycled by BRRF is from spent automotive and industrial batteries.

Lead-bearing items, primarily post-consumer lead-acid batteries, arrive at the facility by truck. Spent batteries are stored in a battery bunker until processed in a shredder. Battery acid (weak sulfuric acid) is drained during shredding, collected in storage tanks and neutralized using calcium hydroxide. The shredded batteries are placed in a vibrating feeder in route to a conveyor belt to the hammer mill. The hammer mill pounds the material into smaller pieces.

Batteries contain metal grids, lead posts, plastic casing and other components, separators and lead sulfate paste. The paste is removed by washing through a set of screens for further processing. The batteries further undergo a separation process under which lead and metal parts are separated from the plastic and other debris. The lead and metal parts are primarily fed to the reverberatory furnace, but also may be fed to the blast furnace. The plastic and other debris are skimmed off and sent to recycling facilities.

The lead sulfate paste is passed through a filter press and neutralized with hydrated lime to form calcium sulfate, then heated at extremely high temperatures in the reverberatory furnace to produce soft antimonial lead bullion and reverberatory slag. Sulfur emissions from the reverberatory furnace are controlled by a dry, flue gas desulfurization scrubber that introduces lime and water to the reverberatory flue gas in a reaction and forms gypsum, which is removed from the gas stream by a polishing baghouse. The reverberatory slag is fed to the blast furnace to recover the antimonial lead. The Missouri SIP submittal contains a process flow diagram that details the emission point sources throughout the process that were included in the modeling.

Modeling analysis conducted by Missouri determined that the Buick Mine and Mill, the Casteel Mine, and the K & D Crushing operations contribute significantly to the monitored violation of the 2008 Lead NAAQS at the air monitor. There are other mining and milling operations in the Viburnum Trend area, but these operations were not found to contribute significantly to the Lead NAAQS violation. Emissions from the Doe Run mining and milling operations are primarily in the form of fugitives from the processing of lead containing rock until it becomes a wet concentrate that is shipped to other customers. The process is described in greater detail as follows.

Mining begins with the subsurface drilling and blasting of dolomite rock which contains varying amounts of lead sulfide, zinc sulfide, and copper-iron sulfide minerals. At the Casteel mine, the ore is hauled to the skip pocket “as blasted,” with no underground crushing. At the surface, the coarse ore is crushed by K & D Crushing, a contractor to Doe Run, into smaller pieces. The crushed ore is hauled to other Doe Run facilities, most frequently to the Buick Mine and Mill.

At the Buick Mine and Mill, ore is hauled from the active mining faces to a central crusher where it is crushed down to approximately eight inch pieces. The ore is hoisted to the surface then conveyed to further on-site crushing and screening operations. After being crushed aboveground to less than 5/8-inch in size, the ore subjected to wet milling, and grinding with rods and ball mills until a coarse powder in a wet slurry is produced. The wet slurry further undergoes wet cyclone and floatation separation into lead sulfide, zinc sulfide and copper sulfide components.

The concentrated sulfides further undergo dewatering to produce a concentrate that formerly was shipped to the Herculaneum primary lead smelter. As stated above, the Herculaneum facility ceased operations smelting operations in December 2013; thus, the concentrate is shipped overseas to primary lead smelting operations or to other customers.

Missouri conducted air dispersion modeling to evaluate the effectiveness of the proposed control strategy. The model, AERMOD, was utilized and is EPA's preferred model for demonstrating attainment of the lead NAAQS. AERMOD estimates the combined ambient impact of sources by simulating Gaussian dispersion of emissions plumes. Emission rates, wind speed and direction, atmospheric mixing heights, terrain, plume rise from stack emissions, initial dispersion characteristics of fugitive sources, particle size and density are all factors considered by the model when estimating ambient impacts. Missouri performed two dispersion modeling analyses for the 2008 lead NAAQS for the Viburnum Trend nonattainment area. One was an analysis of current conditions to ensure the model is performing adequately (base case). The second analysis examined the effectiveness of proposed emission controls (future case). The results of these analyses will be discussed in more detail in section V.C. of this document.

Missouri used the meteorological data from the meteorological monitoring station approximately 0.8 miles south of BRRF, co-located with the Buick South non-ambient lead air quality monitor. EPA's preference is for the use of five years of meteorological data to input the model (40 CFR part 51, appendix W, section 8.3.1.2); however, a minimum of one year of representative meteorological data are required. A detailed analysis of the meteorological data collected on-site concluded that only one consecutive year, from August 2009 to July 2010, met the data quality requirements; thus, these surface level data were used to input the model. Wind speed and direction data from the on-site meteorological station were used to input the model, and surface temperature, humidity, and other information from the Farmington, Missouri, National Weather Service observation site were added to the BRRF wind observations. Finally, upper air data from the station at National Weather Service site in Springfield, Missouri, were used to input the model for the parameters including vertical temperature, moisture and wind characteristics of the atmosphere. This data set provided confidence that the controls selected for the attainment demonstration will be effective over a large variety of meteorological conditions. The meteorological data were run through AERMOD's pre-processors to make the data usable by the model.

As required by section 172(c)(3) of the CAA, a revised emission inventory was developed for this nonattainment area. Hourly emissions data from January 2009 to October 2010 from BRRF and the Buick Mine and Mill were used to model the base case. Beginning in late 2010, construction of emission control projects to control fugitive lead dust and sulfur dioxide (SO2) impacted the base case emissions and ambient air monitoring data, making them no longer representative of pre-control conditions. Emissions represented in the model are from release points, stack emissions validated by stack test data, and fugitive emissions calculated using field measurements wherever possible or estimated based on EPA's AP-42 guidelines.4

The 2011 lead emission totals for Viburnum Trend nonattainment area are listed in Table 1 below. As discussed above, the emissions from the other mine and mill operations in the Viburnum Trend area were not found to significantly impact the lead concentrations reported at the violating ambient air monitor and therefore are not listed.

In accordance with 40 CFR part 51, appendix W, background concentrations must be considered when determining NAAQS compliance. Background concentrations are intended to include impacts attributable to natural sources, nearby sources (excluding the dominant source(s)), and unidentified sources. The calculated background concentration includes all sources of lead not already included in the model run script. The background concentration includes distant sources of lead, which may have originally derived from the mining and milling and smelting operations, or naturally occurring lead in soils that has become re-entrained in the atmosphere.

In general, the background value is calculated by averaging the monitored concentrations at monitor sites outside the area of immediate dominant source impact and on days when the predominant wind direction was not blowing from the dominant source to the monitors. Missouri began with all monitored days and identified days with no measured one-hour average wind direction from the smelter. Each monitor was examined in conjunction with an acceptable wind fan and the concentrations are averaged on days with no predominant winds from the dominant sources. The monitor site chosen for the background determination is the Oates monitor located 4.9 miles south of BRRF. The days selected for the calculation match the model study period.

EPA conducted an independent analysis of the data from the Oates monitor and corresponding wind direction to verify the background concentration calculated by Missouri. Based on its independent analysis, EPA agrees that the calculated value represents a conservative estimate of background during the study period. Additional information can be found in the Missouri SIP, Section 4.3.

As discussed above, Missouri used the AERMOD dispersion model to run two analyses, the base case and the future case. The base case evaluated a reasonable estimate of maximum potential emissions to account for contributing sources based on normal facility operations. The base case model analysis used monitoring, emissions and meteorological data from August 2009 through July 2010.

Results from the base case modeling were compared with actual monitoring data from the same time period to examine the reliability of the model. The statistical analysis was conducted using the coefficient of correlation, or R2. The correlation between modeling outputs under the base case and monitoring data was 0.8551 or greater, with 1.0 indicating 1:1 correlation, confirms the accuracy and reliability of the model's inputs and results. EPA agrees with Missouri's determination that the model is sufficiently reliable to predict that the control measures modeled in the attainment demonstration (see paragraph 5.C.2 Future Case Analysis below) will result in monitored values below the 2008 Lead NAAQS.

The future case analysis evaluated the control strategies of the 2013 SIP revision pursuant to the existing Federally enforceable requirements that are applicable to the facility as well as the enforceable 2013 Consent Judgment between Missouri, BRRF and Doe Run. See appendix M, Missouri SIP. The future case dispersion modeling is the attainment demonstration used to verify that the proposed control strategies will bring the Buick/Viburnum Trend lead nonattainment area into compliance with the 2008 lead NAAQS.

The differences between the base and future case emissions rates are based on the changes to the operations resulting from implementation of the control measures required by the 2013 Consent Judgment. The control measures are discussed in paragraph V.D, Control Strategy, below.

Many of the emissions reduction projects that are necessary to meet the 2008 Lead NAAQS were also required to be implemented by January 6, 2014, for compliance with the National Emissions Standard for Hazardous Air Pollutants (NESHAP) for Secondary Lead Smelting (77 FR 556, January 5, 2012). The Secondary Lead NESHAP, applicable to BRRF, requires, among other things, total enclosure and ventilation of lead processing and handling buildings to a negative pressure requirement of 0.02 millimeters of mercury (mm Hg) and housekeeping procedures to reduce fugitive lead-containing dust.

The secondary lead NESHAP, as fully implemented, is expected to result in a building capture efficiency of approximately 95 percent. EPA has allowed facilities to assume, on a site-specific basis, a building fugitive capture efficiency of greater than 95 percent upon demonstration that control measures exceed the requirements of the secondary lead NESHAP. In the case of BRRF, upon careful consideration of site-specific control measures, including the use of local exhaust ventilation devices (LEVs) and a demonstrated negative pressure in buildings exceeding 0.02 mm Hg, EPA agreed with Missouri that a building fugitives capture efficiency of 98 percent was appropriate to use in the modeling. This assumed 98 percent building capture efficiency impacts the modeled emissions rates as well as the estimated emissions reductions described in paragraph V.D, Control Strategy, below. A more detailed discussion of the building fugitives capture efficiency discussion may be found in section 6.2 of Missouri's SIP revision.

The emissions rate reductions are expected to result in a monitored three-month rolling average of 0.128 µg/m3 lead or less at the nearest ambient monitoring location. When added to the background concentration of 0.20 µg/m3, the predicted maximum three-month rolling average lead concentration is 0.148 µg/m3. By comparison, the 2008 Lead NAAQS is 0.150 µg/m3. Therefore, Missouri's modeling demonstrates attainment of the standard.

EPA conducted an independent analysis to verify the predictions of Missouri's modeling. EPA agrees with the modeling conducted by Missouri for its future case analysis.

In order to bring the Viburnum Trend Area into attainment of the 2008 Lead NAAQS, Missouri developed and modeled a control strategy for point source (e.g., stack) and fugitive emissions from the four significant sources of lead in the nonattainment area. Section 5.1 of the Missouri SIP revision details the control measures and the estimated emissions reductions.

Missouri, Doe Run and BRRF developed a Consent Judgment, found in the Missouri attainment demonstration SIP, appendix M, as a means to establish enforceable emission limits, controls, operating parameters, and contingency measures to reduce lead emissions from point, area, and fugitive lead dust sources in support of achieving attainment of the 2008 lead NAAQS as soon as practicable. The 2013 Consent Judgment was submitted as part of Missouri's SIP for the 2008 lead NAAQS.

A brief description of the BRRF control measures and anticipated emissions reductions is as follows.

a. By February 4, 2013, install a baghouse at the south refinery; this project is expected to reduce emissions by 98 percent.

b. By February 4, 2013, relocate a baghouse from the sweat furnace to the blast furnace storage feed building; this project is expected to reduce emissions by 80 percent by totally enclosing the blast furnace feed material storage and handling, while emissions from the main stack will experience a slight increase from the relocation.

c. By February 4, 2013, remove the rotary melter at the north refinery and connection of its baghouse to the north refinery process ducts; this represents an estimated 95 percent reduction in emissions from the previous process configuration.

d. By February 4, 2013, install a truck tire wash system for outbound traffic; washing trucks is anticipated to reduce fugitive emissions by 95 percent.

e. By February 4, 2013, install a pulse-jet baghouse to improve reverberatory furnace process ventilation; this project is expected to reduce reverberatory stack emissions by 45 percent and fugitives by 98 percent.

f. By February 4, 2013, install a dry lime SO2 scrubber to further process gases as they exit the pulse-jet baghouse; this measure is intended to control SO2, but will also reduce lead-containing particulates.

g. By January 6, 2014, enclose the refinery, blast furnace, reverberatory furnace and dross plant buildings and install a baghouse to achieve the negative pressure requirement of the Secondary Lead Smelting MACT (40 CFR 63, subpart X); the estimated reduction in overall emissions from these enclosures is expected to by 98 percent.

h. By December 31, 2013, install a 40-foot extension on the breaking separation and neutralization scrubber stack; the elevated stack height provides no net emissions decrease, but rather, greater dispersion of lead emissions that decreases the impact upon receptors within the nonattainment area.

i. By December 31, 2013, construct a 30,000 square foot building extension to the existing blast feed storage building enclosure; the estimated emissions reduction is included in item a. above.

j. By October 31, 2014, install “batwing” style ventilation covers to improve LEV capture efficiencies on refinery kettles; these covers contribute to the 98 percent emissions reduction in item g. above.

k. By December 31, 2013, install quick closing powered doors at the north refinery warehouse, south refinery warehouse, and the entrance to the reverberatory feed storage building; this measure also contributes to the 98 percent reduction in fugitives estimated for item g. above.

These projects have all been completed.

In addition to the control strategies required by the 2013 Consent Judgment, BRRF developed a baghouse Standard Operating Procedure (SOP) and a Work Practice Manual (WPM) to minimize lead emissions from operation and maintenance of all baghouses and to minimize fugitive dust emissions, respectively. The baghouse SOP is required by the Secondary Lead NESHAP and the WPM is required by both the Secondary Lead NESHAP and the Missouri rule 10 CSR 10-6.120. On December 18, 2012, (see appendix J of Missouri's SIP revision) Missouri approved these documents. Although the baghouse SOP and WPM were prepared for compliance with the Secondary Lead NESHAP, and Missouri rule 10 CSR 10-6.120, the activities required therein support the attainment of the 2008 Lead NAAQS as well.

The following is a list of the control measures required by Missouri's 2013 Consent Judgment for the Buick Mine and Mill, and the Casteel Mine. These control measures were implemented by Doe Run on or before June 1, 2013.

a. Modify Buick Mine updraft vents 1, 2, 3 and 6 to achieve a vertical release, defined as 45 degrees from horizontal or greater; this measure improves the dispersion of lead-containing particulates.

b. Preclude public access at the Casteel Mine at a minimum distance provided for in the 2013 Consent Judgment.

c. Preclude public access at Buick Mine updraft vents 1, 2, 3 and 6 at a minimum distance prescribed by the Consent Judgment.

d. Preclude access to the Buick Mine and Mill at a minimum distance prescribed by the 2013 Consent Judgment.

The 2011 Consent Decree between EPA, Missouri and Doe Run also requires enclosure of existing lead-containing material storage areas, interior lead concentrate conveyors, lead filtering system and associated equipment, lead concentrate storage stockpile, and the truck loading area and scale at the Buick Mine and Mill. This project was completed on or before September 1, 2013.

Based on EPA's analysis of the attainment modeling and its outcomes, EPA believes that Missouri's control strategy implemented pursuant to the 2013 Consent Judgment will bring the Viburnum Trend area into attainment of the 2008 Lead NAAQS.

Section 172(c)(1) of the CAA requires nonattainment areas to implement all RACM, including emissions reductions through the adoption of Reasonably Available Control Technologies (RACT), as expeditiously as practicable. EPA interprets this as requiring all nonattainment areas to consider all available controls and to implement all measures that are determined to be reasonably available, except that measures which will not assist the area to more expeditiously attain the standard are not required to be implemented.5 In March 2012, EPA issued guidance titled, “Implementation of Reasonably Available Control Measures (RACM) for Controlling Lead Emissions” (RACM Guidance).6

Section 172(c)(2) of the CAA requires areas designated as nonattainment for criteria pollutants to include a demonstration of Reasonable Further Progress (RFP) in attainment demonstrations. Section 171(1) of the CAA defines RFP as annual incremental reductions in emissions of the relevant air pollutants as required by part D, or emission reductions that may reasonably be required by EPA to ensure attainment of the applicable NAAQS by the applicable date. Part D does not include specific RFP requirements for lead.

Missouri performed a RACM analysis in compliance with the RACM Guidance. As stated in the final lead NAAQS rule, RFP is satisfied by the strict adherence to a compliance schedule which is expected to periodically yield significant emission reductions. Missouri has determined that existing controls and practices, combined with additional controls and practices required by the 2013 Consent Judgment, constitute RACM. The control measures have been modeled and demonstrated to achieve the lead NAAQS and also comply with RACM and RFP.

In accordance with the Consent Judgment, all of the control measures for BRRF and the mines and mills have been installed to date. The secondary lead NESHAP requires BRRF to comply with control measures and work practices on or before January 6, 2014. Further, Missouri rule 10 CSR 10-6.120 requires BRRF to implement the WPM and places production limits on the facility. Collectively, these control measures and practices exceed the requirements of EPA's RACT Guidance.

RFP is addressed by the control strategy occurring in a timeframe consistent with the CAA and the 2013 Consent Judgment. Upon implementation of the control strategy and practices described above, ambient air quality concentrations are expected to drop at or below attainment levels immediately after implementation of the control strategy. Air monitoring data indicate that all of the nonattainment area's ambient air quality monitors reported lead (Pb) concentrations below the 2008 lead NAAQS for the three-month rolling average for February through May 2014. See http://www.dnr.mo.gov/env/apcp/docs/leadmonitordata.pdf. For the rolling calendar quarter of April through June 2014, and May through July, the Buick North monitor violated the NAAQS due to a power outage on June 22, 2014, that impacted air pollution control equipment. This violation did not trigger contingency measures because the 2013 Consent Judgment does not require the facility to begin monitoring attainment of the lead NAAQS until the rolling calendar quarter following installation of all control measures, which is November 2014 through January 2015. For the rolling calendar quarters starting in July through December 2014, the facility is attaining the lead NAAQS.

EPA proposes to approve Missouri's SIP as meeting sections 172(c)(1) and (c)(2) of the CAA.

CAA section 172 requires a state to submit a plan for each of its nonattainment areas that demonstrates attainment of the applicable ambient air quality standard as expeditiously as practicable, but no later than the specified attainment date. This demonstration should consist of four parts: (1) Technical analyses that locate, identify, and quantify sources of emissions that are contributing to violations of the lead NAAQS; (2) analyses of future year emissions reductions and air quality improvement resulting from already-adopted national, state, and local programs and from potential new state and local measures to meet the RACT, RACM, and RFP requirements in the area; (3) adopted emissions reduction measures with schedules for implementation and (4) contingency measures required under section 172(c)(9) of the CAA.

The requirements for the first two parts are described in the sections on emissions inventories and RACM/RACT, above and in the sections on air quality modeling and the attainment demonstration that follows immediately below. Requirements for the third and fourth parts are described in the sections on the control strategy and the contingency measures, respectively.

As stated in section V.C.2. above, the future case dispersion modeling is the attainment demonstration used to verify that the proposed control strategies will bring the area into attainment. In order to determine whether the planned emission reduction strategies will result in attainment of the NAAQS, the modeled maximum lead air concentration (based on a rolling three-month average) is added to the calculated background lead concentration of 0.020 µg/m3, the predicted maximum three-month rolling average lead concentration is 0.148 µg/m3. By comparison, the 2008 Lead NAAQS is 0.150 µg/m3. Therefore, Missouri's modeling demonstrates attainment of the standard.

Within the CAA, part D of title I requires SIP submittals to include a permit program for the construction and operation of new and modified major stationary sources. The current definition of nonattainment areas in Missouri, which for lead includes the Viburnum Trend area, is provided in Missouri rule 10 CSR 10-6.020. For installations in a nonattainment area, Missouri rule 10 CSR 10-6.060 requires a permit for construction of, or major modification to, an installation with potential to annually emit one hundred (100) tons or more of a nonattainment pollutant, or a permit for a modification at a major source with potential to annually emit one thousand two hundred (1,200) pounds of lead. Both rules have previously been approved by EPA as part of the SIP, as meeting the requirements of section 173 of the CAA, and EPA implementing rules at 40 CFR 51.165. (78 FR 19602; 78 FR 37457).

As required by CAA section 172(c)(9), the SIP submittal includes contingency measures to be implemented if EPA determines that the area has failed to make RFP or if the area fails to attain the NAAQS by December 2015. If the air quality data for any three-month rolling period after the implementation of the control measures identified in the 2013 Consent Judgment exceeds the 0.15 ug/m3 three-month rolling average lead standard, BRRF shall implement the contingency measures set forth in the 2013 Consent Judgment. Missouri may also require implementation of contingency measures if Doe Run fails to implement the control strategy projects in accordance with the 2013 Consent Judgment.

The 2013 Consent Judgment contains the following contingency measures which apply to BRRF:

a. Ventilate the reverberatory feed storage building with a minimum design to achieve a negative pressure of 0.02 inches Hg within nine months' notice from Missouri.

b. Within a time frame to be determined by Missouri and BRRF, BRRF shall submit a work plan for a study to determine the best practices and best available control technology to achieve compliance with the 2008 Lead NAAQS. The study shall be completed and submitted to Missouri within 180 days from Missouri's approval of the work plan. Within 60 days from receipt of the study, Missouri shall advise BRRF of whether the projects and timelines for implementation proposed by the study are acceptable. Upon Missouri's approval or 60 days with no comment, the projects identified by the study shall be implemented in accordance with the timeline therein and shall become a fully enforceable part of the 2013 Consent Judgment.

c. Pave inbound truck parking lot within 18 months of notice from Missouri of a 2008 Lead NAAQS violation.

d. Within a timeframe to be developed by Missouri and BRRF, BRRF shall submit and evaluation of the main baghouse capacity and will identify any projects that are deemed technically feasible and cost-effective to redistribute any excess capacity identified in the evaluation and for inclusion as contingency measures and provide an implementation timeframe. Within 60 days of receipt of the evaluation, Missouri will advise BRRF whether the projects and timelines are acceptable. Upon approval or after 60 days, the projects identified in the baghouse capacity study shall become an enforceable part of the 2013 Consent Judgment.

The contingency measures listed above shall be implemented upon notice from Missouri of a Lead NAAQS violation and shall be implemented in the order listed above for each subsequent Lead NAAQS violation should additional violations occur.

BRRF must notify Missouri within ten (10) days of completion of any contingency measure. Sixty days (60) after completion, BRRF will propose an additional qualified contingency measure to be added to the 2013 Consent Judgment, which will become part of the 2013 Consent Judgment and fully enforceable upon approval by Missouri. These additional contingency measures will also be subject to EPA approval as part of the SIP.

Doe Run or BRRF may also substitute new control(s) for the identified contingency measure(s) if Doe Run or BRRF identifies and demonstrates to Missouri and EPA's satisfaction that the alternative control measure(s) would achieve attainment with the 2008 lead NAAQS. The 2013 Consent Judgment also allows Doe Run or BRRF to change the order of implementation for contingency measures and time frames for completion upon approval by Missouri.

Changes to contingency measures would require a public hearing at the state level and EPA approval as a formal SIP revision. Until such time as EPA approves any substitute measure, the measures included in the approved SIP will be the enforceable measure. EPA does not intend to approve any substitutions that cannot be implemented in the same timeframe as the original measure. These measures will help ensure compliance with the 2008 lead NAAQS as well as meet the requirements of section 172(c)(9) of the CAA. EPA proposes to approve Missouri's SIP as meeting section 172(c)(9) of the CAA.

As specified in section 172(c)(6) and section 110(a)(2)(A) of the CAA, and 57 FR 13556, all measures and other elements in the SIP must be enforceable by the state and EPA. The enforceable document included in Missouri's SIP submittal is the 2013 Consent Judgment. The 2013 Consent Judgment contains all control and contingency measures with enforceable dates for implementation. The only exception relates to the Federally enforceable dates found in the 2011 Consent Decree. The 2013 Consent Judgment also includes monitoring, recordkeeping, and reporting requirements to ensure that the control and contingency measures are met. The state adopted the 2013 Consent Judgment into Missouri's state regulations on June 19, 2013, making it state-enforceable. Upon EPA approval of the SIP submission, the 2013 Consent Judgment will become state and Federally enforceable, and enforceable by citizens under section 304 of the CAA.

We note that the 2013 Consent Judgment also contains provisions for stipulated penalties should Doe Run or BRRF fail to comply with provisions of the 2013 Consent Judgment. The 2011 Consent Decree also contains stipulated penalty provisions. EPA is not bound by the state's 2013 Consent Judgment penalties. With regard to matters that are addressed by the 2011 Consent Decree, EPA may enforce against violations of this document under section 113 of the CAA or other Federal authorities, rather than the 2013 Consent Judgment, if EPA approves the 2013 Consent Judgment, as proposed in this action, into the SIP.

EPA proposes to approve Missouri's SIP as meeting sections 172(c)(6) and 110(a)(2)(A) of the CAA, and 57 FR 13556.

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the NAAQS established by EPA. In order for the state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. States submit adopted rules and revisions to EPA for inclusion in the SIP. State rules and revisions approved by EPA under section 110 authority are incorporated into the Federally-approved and enforceable SIP.

As discussed above in paragraph I, Background, Missouri rule 10 CSR 10-6.120 “Restriction of Emissions of Lead from Specific Lead Smelter—Refinery Installations”, establishes lead emissions limits from stacks at specific lead smelters including the Herculaneum facility in Herculaneum, Missouri, and BRRF in Boss, Missouri.

For enforceability, the Viburnum Trend area lead NAAQS attainment SIP relies upon the production limit imposed by Missouri rule 10 CSR 10-6.120, recordkeeping requirements, and test methods. The approval of the revision to the rule relies upon the modeling demonstration proposed in the lead NAAQS attainment SIP to demonstrate that the production limits will result in emissions limits that meet the standard. A technical analysis of the production limits proposed, reporting and recordkeeping requirements, and the test methods prescribed is conducted in the EPA Technical Support Document (TSD), which is included in the docket as materials relied upon for this proposed action. An abbreviated discussion of the information in the EPA TSD is discussed below.

As stated above, Missouri rule 10 CSR 10-6.120(B)(2) limits production at BRRF to 175,000 tons of Pb per year, and is consistent with the limit imposed by the Prevention of Significant Deterioration (PSD) permit issued to the facility. However, the Pb emissions from the present operations are significantly less than the previous operational configuration in the PSD permit. This is due to the elimination of the Rotary Melter, and the addition of control measures listed in Section 5.1 of the SIP document, including two new baghouses, enclosure of the facility's process and materials handling areas under negative pressure to achieve the Secondary Lead NESHAP, and additional work practice standards also to comply with the NESHAP.

The Viburnum Trend area lead NAAQS attainment SIP and supporting Consent Judgment specify Stack Emission Limits required to attain the 2008 Pb NAAQS (see table 4, Stack Emission Limits). Although Missouri rule 10 CSR 10-6.120 establishes the maximum Pb production limit for BRRF rather than a specific emission limitation by stack, the Pb production limit, or throughput, correlates with the stack emission limits modeled in the SIP. The emissions limits by source are detailed in appendix H of the attainment demonstration SIP.

The modeled total emissions in the attainment demonstration SIP are 176,482 tons of Pb produced per year. Thus, the “Future” case modeling demonstrates that under conservative production rates (i.e., slightly higher than the maximum allowable by the revised Missouri rule), the facility still attains the 2008 Pb NAAQS.

As discussed in paragraph V.C. above, EPA has conducted an independent analysis of Missouri's attainment SIP modeling and has determined that the control measures will result in attainment of the 2008 lead NAAQS. The detailed analysis, contained in EPA's TSD, of the Pb production limits for BRRF imposed by Missouri rule 10 CSR 10-6.120 demonstrates that they correspond with the SIP control measures, expressed as stack emission limits, imposed by the Viburnum Trend area lead NAAQS attainment SIP and supporting Consent Judgment and will provide for attainment of the 2008 Pb NAAQS. As demonstrated above, the revision to the Missouri SIP does not interfere with attainment and reasonable further progress.

Pursuant to the March 4, 2015, withdrawal request from Missouri, EPA is not taking action on Missouri rule 10 CSR 10-6.120, General Provision (3)(B)1, which limits main stack, number 7 and 9 baghouse stack and number 8 baghouse stack lead emissions at the Doe Run primary lead smelter-refinery in Herculaneum, Missouri.7 In addition, EPA is not taking action on Missouri rule 10 CSR 10-6.120, General Provision (3)(B)2., which limits main stack lead emissions at BRRF to 0.00087 grains per dry standard cubic feet (gr/dscf) of air. Missouri has withdrawn its request for approval of these limits into the SIP because they no longer represent operating conditions at the facility and are higher than the secondary lead NESHAP, respectively.

Missouri rule 10 CSR 10-6.120(3)(C) contains the requirements for both the Herculaneum facility and BRRF to control fugitive emissions of lead from all process and area sources by work practices. The work practices are required to be submitted to the state in the form of a WPM for the state director's review and approval.

Any change to the WPM requires state director approval and the change shall not lessen the effectiveness of the fugitive emission reductions for the work practice involved. Written approval by the director is required before any change becomes effective.

If the director determines that a change in the WPM is warranted, the state director shall notify the facility in writing. The facility must make the required change(s) within 30 days of written notice from the state director.

The requirements for the WPM are consistent with the modeled controls of fugitive emissions in the Viburnum Trend area attainment SIP. The SIP relies on the Missouri rule for implementation of work practices contained in the approved manual. Therefore, EPA proposes to approve this portion of Missouri rule 10 CSR 10-6.120.

Missouri rule 10 CSR 10-6.120(4) contains the requirement for the Herculaneum facility and BRRF to keep records and files generated by the WPM's implementation. The required records include records of inspections conducted of fugitive emissions control equipment such as hoods, air ducts and exhaust fans, and records that demonstrate compliance with the sampling methods required for stack testing discussed below. These records are required to be maintained at the facility for a minimum of two (2) years and shall be made available to the state director upon request.

The requirements for the reporting and record keeping are necessary to determine that the facility is operating in accordance with the modeled controls of fugitive emissions in the Viburnum Trend area attainment SIP. The SIP relies on the Missouri rule for implementation of work practices contained in the approved manual which are documented by the reporting and record keeping requirements contained therein. Therefore, EPA proposes to approve this portion of Missouri rule 10 CSR 10-6.120.

Missouri rule 10 CSR 10-6.120(5) contains the required test methods for stack testing in accordance with the requirements for visible emissions contained in Missouri rule 10 CSR 10-6.030(9), for quantifying Pb in stack gases in accordance with Missouri rule 10 CSR 10-6.030(12), and for measuring Pb in ambient air in accordance with Missouri rule 10 CSR 10-030(12). These methods have all been determined to comply with the equivalent EPA Methods 12 and 29 promulgated by 40 CFR part 60 appendix A.

The Test Methods required by the revised Missouri rule are necessary to determine that the facility is complying with the stack emission limits imposed by the Viburnum Trend Area attainment SIP. The SIP relies on the Missouri rule for the Test Methods and reporting of the results of testing to determine compliance. Therefore, EPA proposes to approve this portion of Missouri rule 10 CSR 10-6.120.

EPA is proposing to grant full approval of Missouri's attainment demonstration SIP for the Viburnum Trend 2008 lead NAAQS nonattainment area. EPA believes that the SIP submitted by Missouri satisfies the applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will result in attainment of the 0.15 ug/m3 standard in the Viburnum Trend, Missouri, area.

Pursuant to Missouri's March 4, 2015, withdrawal request, EPA is not taking action on the Doe Run primary lead smelter-refinery emissions limits in 10 CSR 10-6.120(3)(B)1. and table I, and the 0.00087 gr/dscf main stack emissions limit for BRRF in 10 CSR 10-6.120(3)(B)2. EPA proposes to approve the remaining portions of the revision to Missouri rule 10 CSR 10-6.120 as part of Missouri's SIP.

In this action, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Missouri Rule 10 CSR 10-6.120 (with the exclusions of Paragraph 10-6.120 (3)(B)1. and Table 1, and the 0.00087 gr/dscf main stack emissions limit for BRRF) described in the proposed amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rulemaking would approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

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).

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rulemaking also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Burden is defined at 5 CFR 1320.3(b).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this proposed rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register.

A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2015. Filing a petition for reconsideration by the Administrator of this proposed rule does not affect the finality of this rulemaking for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such future rule or action.

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:

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 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.

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 (μg/m3) to 0.15 μg/m3 (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).

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.

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 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”).

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.

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.

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 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).

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).

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 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).

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.

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 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.

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.

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.

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

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.

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 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.

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

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.

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

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.

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.

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).

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 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

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.”

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 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 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.).

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.

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.

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).

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

Under the CSAPR FIPs, the mechanisms by which initial allocations of emission allowances are determined differ for “existing” and “new” units. For “existing” units—that is, units commencing commercial operation before January 1, 2010—the specific amounts of CSAPR FIP allowance allocations for all compliance years have been established through rulemaking. EPA has announced the availability of spreadsheets showing the CSAPR FIP allowance allocations to existing units in previous notices.1

“New” units—that is, units commencing commercial operation on or after January 1, 2010—as well as certain older units that would not otherwise obtain FIP allowance allocations do not have pre-established allowance allocations. Instead, the CSAPR FIPs reserve a portion of each state's total annual emissions budget for each CSAPR emissions trading program as a new unit set-aside (NUSA) 2 and establish an annual process for allocating NUSA allowances to eligible units. States with Indian country within their borders have separate Indian country NUSAs. The annual process for allocating allowances from the NUSAs and Indian country NUSAs to eligible units is set forth in the CSAPR regulations at 40 CFR 97.411(b) and 97.412 (NOX Annual Trading Program), 97.511(b) and 97.512 (NOX Ozone Season Trading Program), 97.611(b) and 97.612 (SO2 Group 1 Trading Program), and 97.711(b) and 97.712 (SO2 Group 2 Trading Program). Each NUSA allowance allocation process involves up to two rounds of allocations to new units followed by the allocation to existing units of any allowances not allocated to new units. EPA provides public notice at certain points in the process. This notice concerns preliminary calculations for the first round of NUSA allowance allocations for the 2015 compliance year.3

The units eligible to receive first-round NUSA allocations are defined in §§ 97.412(a)(1), 97.512(a)(1), 97.612(a)(1), and 97.712(a)(1). Generally, eligible units include any CSAPR-affected unit that has not been allocated allowances as an existing unit as well as certain units that have been allocated allowances as existing units but whose allocations have been deducted or not recorded because of corrections or multi-year breaks in operations. EPA notes that a valid allowance allocation may consist of zero allowances; thus, an existing unit specifically allocated zero allowances in the spreadsheet of CSAPR FIP allowance allocations to existing units is generally ineligible to receive a NUSA allowance allocation.

The quantity of allowances to be allocated through the 2015 NUSA allowance allocation process for each state and emissions trading program is generally the state's 2015 emissions budget less the sum of (1) the total of the 2015 CSAPR FIP allowance allocations to existing units and (2) the amount of the 2015 Indian country NUSA, if any.4 The amounts of NUSA allowances may be increased in certain circumstances as set forth in §§ 97.412(a)(2), 97.512(a)(2), 97.612(a)(2), and 97.712(a)(2).

The amounts of first-round allocations to eligible units from each NUSA are calculated according to the procedures set forth in §§ 97.412(a)(3)-(7) and (12), 97.512(a)(3)-(7) and (12), 97.612(a)(3)-(7) and (12), and 97.712(a)(3)-(7) and (12). Generally, the procedures call for each eligible unit to receive a first-round 2015 NUSA allocation equal to its 2014 emissions as reported under 40 CFR part 75 unless the total of such allocations to all eligible units would exceed the amount of allowances in the NUSA, in which case the allocations are reduced on a pro-rata basis.5

EPA notes that an allocation or lack of allocation of allowances to a given EGU does not constitute a determination that CSAPR does or does not apply to the EGU. EPA also notes that allocations are subject to potential correction.

The detailed unit-by-unit data and preliminary allowance allocation calculations are set forth in Excel spreadsheets titled “CSAPR_NUSA_2015_NOX_Annual_1st_Round_Prelim_Data”, “CSAPR_NUSA_2015_NOX_OS_1st_Round_Prelim_Data”, and “CSAPR_NUSA_2015_SO2_1st_Round_Prelim_Data,” available on EPA's Web site at http://www.epa.gov/crossstaterule/actions.html. The three spreadsheets show EPA's initial determinations of 2015 NUSA allocations for new units subject to the CSAPR NOX Annual, NOX Ozone Season, and SO2 (Group 1 and Group 2) trading programs, respectively. Each of the spreadsheets contains a separate worksheet for each state covered by that program showing, for each unit identified as eligible for a first-round NUSA allocation, (1) the unit's emissions in the 2014 control period (annual or ozone season as applicable), (2) the maximum first-round 2015 NUSA allowance allocation for which the unit is eligible (typically the unit's emissions in the 2014 control period), (3) various adjustments to the unit's maximum allocation, many of which are necessary only if the NUSA pool is oversubscribed, and (4) the preliminary calculation of the unit's first-round 2015 NUSA allowance allocation.

Each state worksheet also contains a summary showing (1) the quantity of allowances initially available in that state's 2015 NUSA, (2) the sum of the first-round 2015 NUSA allowance allocations that will be made to new units in that state, assuming there are no corrections to the data, and (3) the quantity of allowances that would remain in the 2015 NUSA for use in second-round allocations to new units (or ultimately for allocation to existing units), again assuming there are no corrections to the data.

Objections should be strictly limited to the data and calculations upon which the NUSA allowance allocations are based and should be emailed to the address identified in ADDRESSES. Objections must include: (1) Precise identification of the specific data and/or calculations the commenter believes are inaccurate, (2) new proposed data and/or calculations upon which the commenter believes EPA should rely instead to determine allowance allocations, and (3) the reasons why EPA should rely on the commenter's proposed data and/or calculations and not the data referenced in this notice.

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)(1)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in a 12-month finding.

On June 2, 2014, we received a petition from John Yearwood, Kathryn Heidemann, Charles and Cheryl Shell, the Walter Sidney Shell Management Trust, the American Stewards of Liberty, and Steven W. Carothers requesting that we remove the endangered Bone Cave harvestman from the Federal lists of endangered and threatened species. The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). This finding addresses the petition.

The Bone Cave harvestman was originally listed as endangered on September 16, 1988 (53 FR 36029). In an August 18, 1993, Federal Register document (58 FR 43818), the Service gave the Bone Cave harvestman protection under the Act as a separate species. It had previously been listed as endangered as a part of the Bee Creek Cave harvestman (Texella reddelli), which was subsequently re-classified into two species, and this final rule set forth technical corrections to ensure that the species continued to receive protection under the Act. On March 14, 1994, we published a 90-day finding (59 FR 11755) on a petition to delist the Bone Cave harvestman in which we found that the petition did not present substantial scientific or commercial information indicating that the petitioned action may have been warranted. A draft recovery plan was available for public review and comment on June 7, 1993, and a final recovery plan was published on August 25, 1994 (Service 1994). On December 4, 2009, we completed a 5-year review of the Bone Cave harvestman, which recommended that the species remain listed as endangered (Service 2009).

For information on the biology and life history of the Bone Cave harvestman, see the final rule listing this species (53 FR 36029), the Endangered Karst Invertebrates Recovery Plan for Travis and Williamson Counties (Service 1994), and the 5-year Status Review for the Bone Cave Harvestman (Service 2009), all posted at http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=J009. For information on preserve design and management for karst invertebrate species conservation, see the Karst Preserve Design Recommendations (Service 2012) and the Karst Preserve Management and Monitoring Recommendations (Service 2014) posted at http://www.fws.gov/southwest/es/AustinTexas/ESA_Sp_KarstInverts.html.

Under section 3(16) of the Act, we may consider for listing any species, including subspecies, of fish, or wildlife, or plants, and any distinct population segment (DPS) of any species of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Such entities are listed under the Act if we determine that they meet the definition of an endangered or threatened species.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the lists of endangered and threatened species. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons:

(1) The species is extinct;

(2) the species is recovered; or

(3) the original data for classification were in error. According to 50 CFR 424.11(d)(3), a species may be delisted when subsequent investigations “show that the best scientific and commercial data available when the species was listed, or the interpretation of such data, were in error.”

In making this 90-day finding, we evaluated whether the petition presented substantial information indicating that the petitioned action (delisting) may be warranted.

The petition did not assert that the Bone Cave harvestman is extinct, nor do we have information in our files indicating that the species is extinct.

The petition asserted that new information indicates that the original data, or our interpretation of the data, used in the listing of this species were in error. The petition also states that significant conservation has been put in place since the species was listed, such that the species is recovered.

In 2009, we conducted a 5-year status review of the Bone Cave harvestman (Service 2009). The purpose of a 5-year status review is to evaluate whether or not the species' status has changed since it was listed (or since the most recent 5-year review). Based on a 5-year review, we recommend whether the species should be removed from the lists of endangered and threatened species, be changed in status from endangered to threatened, or be changed in status from threatened to endangered. As part of the 2009 Bone Cave harvestman review, we evaluated whether the species had met the recovery criteria laid out in the species' recovery plan (Service 1994, pp. 86-89).

Our recovery handbook (Service 2010) points out that recovery criteria should address the biodiversity principles of resiliency, redundancy, and representation (Schaffer and Stein 2000).

Resiliency is defined as the ability of a species to persist through severe hardships or stochastic events (Tear et al. 2005, p. 841). A variety of factors contribute to a species' resiliency. These can include how sensitive the species is to disturbances or stressors in its environment, how often they reproduce and how many young they have, and their specific habitat needs. A species' resiliency can also be affected by the resiliency of individual populations and the number of populations and their distribution across the landscape. Protecting multiple populations and variation of a species across its range may contribute to its resiliency, especially if some populations or habitats are more susceptible or better adapted to certain threats than others (Service and NOAA 2011, p. 76994). The ability of individuals from populations to disperse and recolonize an area that has been extirpated may also influence the species' resiliency. As population size and habitat quality increase, the population's ability to persist through periodic hardships also increases. Healthy populations are more resilient and better able to withstand disturbances such as random fluctuations in birth rates (demographic stochasticity), and variation in rainfall and/or temperatures (environmental stochasticity).

Redundancy is defined as ensuring a sufficient number of populations to provide a margin of safety to reduce the risk of losing a species or certain representation (variation) within a species due to catastrophic events or other threats. Redundancy is essential for long-term viability (Shaffer and Stein 2000, pp. 307, 309-310; Groves et al. 2002, p. 506). This provides a margin of safety for a species to withstand catastrophic events (Service and NOAA 2011, p. 76994) by decreasing the chance of any one event affecting the entire species. Redundancy is about spreading risk and can be measured through the duplication and distribution of resilient populations across the range of the species.

Representation is defined as conserving “some of everything” with regard to genetic and ecological diversity to allow for future adaptation and maintenance of evolutionary potential. Representation and the adaptive capabilities (Service and NOAA 2011, p. 76994) of the Bone Cave harvestman are also important for long-term viability. Because a species' genetic makeup is shaped through natural selection by the environments it has experienced (Shaffer and Stein 2000, p. 308), populations should be protected in the array of different environments in which the invertebrate species occur as a strategy to ensure genetic representation, adaptive capability, and conservation of the species. Generally, the more representation, or diversity, the species has, the more it is capable of adapting to changes (natural or human caused) in its environment.

The recovery plan for the Bone Cave harvestman (Service 1994, pp. 86-88) identifies criteria for reclassification (from endangered to threatened), but does not include delisting criteria because we were uncertain about prospects for recovery and delisting of the species. These recovery criteria are a way of measuring our progress toward recovery. The recovery plan identifies two criteria for reclassifying the species from endangered to threatened:

(1) Three karst fauna areas (if at least three exist) within each karst fauna region in its range are protected in perpetuity. If fewer than three karst fauna areas exist within a given karst fauna region, then all karst fauna areas within that region should be protected.

(2) Criterion (1) has been maintained for at least 5 consecutive years with assurances that these areas will remain protected in perpetuity.

There are six karst fauna regions in Travis and Williamson Counties that are known to contain the Bone Cave harvestman (Service 1994, p. 33): North Williamson, Georgetown, McNeil/Round Rock, Cedar Park, Jollyville Plateau, and Central Austin. These regions are used as a way to facilitate conservation of representation and redundancy (as defined above) throughout the species' range.

For the purposes of the recovery plan, a karst fauna area “is an area known to support one or more locations of a listed species and is distinct in that it acts as a system that is separated from other karst fauna areas by geologic and hydrologic features and/or processes that create barriers to the movement of water, contaminants, and troglobitic fauna” that live their entire lives underground (Service 1994, p. 76). Karst fauna areas should be far enough apart so that if a catastrophic event (for example, contamination of the water supply, flooding, disease) were to destroy one of the areas, that event would not likely destroy any other area occupied by that species (Service 1994, p. 76).

To be considered “protected,” a karst fauna area must be sufficiently large to maintain the integrity of the karst ecosystem on which the species depends (Service 1994, p. 87). In addition, these areas must also provide protection from threats such as red imported fire ants, habitat destruction, and contaminants.

The overall recovery strategy for the Bone Cave harvestman includes the perpetual protection and management of an adequate quantity and quality of habitat (three karst fauna areas in each karst fauna regions) that spans the species' geographic range and provides a high probability of the species' recovery and survival over the long term. Adequate quality (as discussed below) and quantity of habitat refers to both size and number of preserved karst fauna areas that are sufficient for supporting the karst invertebrates and the ecosystems upon which they depend (Service 2011, p. 16). The recovery plan criteria call for three karst fauna areas (preserves) in each karst fauna region. The size of karst fauna area preserves should be large enough to ensure resiliency as discussed above and to protect the environmental integrity of the karst ecosystems upon which the species depends. The number of karst fauna area preserves called for in the recovery criteria provides redundancy for the species. A minimal level of redundancy is essential to provide a margin of safety for the species to reduce the risk of losing the species or representation (variation) within the species from catastrophic events or other threats (Shaffer and Stein 2000 pp. 307, 309-310, Groves et al. 2002, p. 506). The Bone Cave harvestman has significant geographic variability across its range, and loss of a significant number of locations in part of its range could result in loss of genetic and ecological diversity. The conservation of multiple karst fauna area preserves across the Bone Cave harvestman's range should provide representation of the breadth of its genetic and ecological diversity to conserve its adaptive capabilities (Schaffer and Stein 2000, p. 308).

Adequate quality of habitat refers to (1) the condition and configuration of preserved lands with respect to the known localities for the species and (2) the ability of the species' needs to be met to sustain viable populations. Due to the uncertainty in determining population viability of the Bone Cave harvestman, the design of preserves for its protection should be based on estimates and assumptions that favor a high probability for recovery of this species and the ecosystems upon which it depends as discussed below.

The Endangered Karst Invertebrates Recovery Plan for Travis and Williamson Counties (Service 1994) calls for protecting karst fauna areas sufficiently large to maintain the integrity of the karst ecosystem on which the species depends. This focus on the ecosystem is consistent with the purpose of the Act, which includes “to provide a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved.” Therefore, we recommend designing karst fauna area preserves to protect occupied karst feature(s) and associated mesocaverns (humanly impassable voids). For further guidance on how to provide for adequate quantity and quality of habitat at specific invertebrate locations, we have developed and refer to our Karst Preserve Design Recommendations (Service 2012).

According to our preserve design guidelines (Service 2012, p. 3-5), karst fauna area preserves should include the following: (1) Surface and subsurface drainage basins of at least one occupied cave or karst feature; (2) a minimum of 16 to 40 hectares (ha) (40 to 100 acres (ac)) of contiguous, unfragmented, undisturbed land to maintain native plant and animal communities around the feature and protect the subsurface karst community; (3) 105-meter (m) (345-feet (ft)) radius undisturbed area from each cave footprint for cave cricket foraging (cave crickets are an important source of nutrient input to the karst ecosystem) and to minimize deleterious edge effects; and (4) preserves should be free of pipelines, storage tanks, or other facilities (for example, water retention ponds) that could cause contamination.

In addition, due to the uncertainty in determining population viability and habitat requirements of the Bone Cave harvestman, the design of preserves for its protection should be based on estimates and assumptions that favor a high probability for recovery of the species and the ecosystems upon which it depends. This method follows a precautionary approach, which provides guidance to avert irreversible risk when facing uncertainty (Service 2012, p. A-1). The best available scientific information indicates that this species cannot be reintroduced into existing habitat. Life-history characteristics of this species indicate that it requires stable temperature and humidity (Barr 1968, p. 47, Mitchell 1971, p. 250) and suggest that this species cannot be reintroduced because it cannot withstand surface climatic conditions.

According to anecdotal reports provided to our field office, limited efforts to maintain karst invertebrates in a lab setting have been unsuccessful. Additionally, captive propagation techniques have not been developed for karst invertebrates and may be challenging to develop because of their specific adaptations to subterranean environment. Further, the sample size that would likely be needed to reintroduce a population into a new location cannot be obtained from existing populations due to the cryptic nature of this species and the fact that often only a few individuals are observed per cave survey. Therefore, an attempt to re-establish a population after it has been extirpated is not feasible at this time. In addition, if a preserve is later found to be insufficient to support the species due to surrounding developments being either too close or too dense, the potential for adequately conserving the site is lost.

Because the Bone Cave harvestman has a relatively long life span and low requirements for food, a decline in population size or even the complete extirpation of the population due to the influence of development or other threats may take years or even decades. Observations of this species over several years on a preserve that is too small for perpetual species preservation may not allow detection of declines that are actually occurring. If these observations are used as evidence that a preserve size was adequate, then the potential for long-term preservation of the species may be lost due to irreversible development surrounding the preserve. Therefore, preserve sizes should be established with caution and be large enough to account for the uncertainty in area requirements for a population.

According to the petition there are now more known occupied locations identified; there were 6 confirmed caves at listing, 60 confirmed caves at the time the recovery plan was drafted, and 168 confirmed caves in 2009 when the 5-year status review was completed (53 FR 36029, Service 1994, 2009). The petition also states that more locations are likely to be found. We acknowledge there are more known locations since the time those documents were completed and the increase is likely an increase in our knowledge, not a true increase in the number of populations or range; however, species are listed under the Act based on threats and not just the number of sites or size of the range.

In addition, the petition states that 94 karst preserve areas are currently providing significant conservation. However, many of the existing protected areas referenced in the petition are too small to meet our preserve design recommendations. As part of the 2009 5-year status review of the Bone Cave harvestman, we reviewed the status of all of the known locations of the harvestman (including 83 of the 94 mentioned in the petition) to assess whether the criteria from the recovery plan to reclassify the species from endangered to threatened had been met for the Bone Cave harvestman. We considered the habitat size and condition to evaluate whether the locations could meet the preserve design recommendations (a reflection of the potential to support a resilient population) and then also looked at whether legally binding mechanisms were in place to provide protection of these sites over the long term (in perpetuity).

Of the locations known at the time of the 5-year review, 21 areas appeared to have the ability to meet the preserve design criteria. Our status review refers to 21 areas, while the petition indicates that the status review considered 28 sites. This discrepancy is because the petition considers each individual cave location, while our status review considered closely located caves to be part of the same karst fauna area. Of these 21 areas, 1 is no longer confirmed to have the species (Barker Ranch Cave No. 1), and 5 are now protected karst fauna areas (Priscilla's Well, Twin Springs, Cobbs Cavern, Karankawa, and Tooth Cave).

In addition, at most of the remaining locations (of the 21 areas) we are lacking information to confirm that they meet the preserve design criteria (such as surface and subsurface drainage basins, tract acreage, exact locations of the cave, and management activities to protect against threats, such as red imported fire ants). Also, many of these areas do not have a legally binding mechanism that ensures perpetual protection and management. Hence, we are unsure whether those areas have adequate undeveloped acreage, management, or protection mechanisms to ensure the long-term protection and survival of the Bone Cave harvestman.

Of the five protected karst fauna areas that meet preserve design criteria, four occur in the North Williamson County Karst Fauna Region and one occurs in the Jollyville Plateau Karst Fauna Region. However, this species occurs in six karst fauna regions, and four of these have no protected karst fauna areas that are confirmed to meet preserve design recommendations. Therefore, the best available information indicates that the criteria for reclassification from endangered to threatened for this species have not been met, nor has adequate representation and redundancy (three karst fauna areas in each karst fauna region) been protected throughout the species' range, leaving the species vulnerable to existing threats including habitat destruction.

The petition asserts that four additional locations are known since the time of the 5-year review. However, the petition does not provide adequate information that would support whether these four additional locations are in a condition to meet preserve design recommendations. Based on information in our files, we are aware of one additional cave since the 5-year review that may meet preserve design recommendations in the North Williamson Karst Fauna Region; however, it is privately owned, and we are unsure about the property acreage and if the site receives any type of protection or management. Regardless, the amount of protected karst fauna area still falls short of the criteria for reclassification from endangered to threatened.

Further, we reviewed 83 of the 94 caves identified in the petition as receiving some level of protection in the 5-year review. Two of the caves that we did not review (Cobbs Cavern and Whitney West Cave) are now in confirmed karst fauna areas mentioned above (Cobbs Cavern and Twin Springs), one (Pond Party Pit) is in the Beard Ranch Cave area discussed in the 5-year review, and we have no locality information or taxonomic verifications for the remaining caves and this information was not provided in the petition.

The petition also asserts that threats to the species are not as severe as originally thought. We evaluate that information, below, in respect to the five listing factors.

Factor A: The present or threatened destruction, modification, or curtailment of the species' habitat or range. In the 1988 listing rule (53 FR 36029), we stated that the primary threat to the Bone Cave harvestman was the potential loss of habitat due to development activities, which could result in filling in or collapsing of caves; alteration of drainage patterns; increase in flow of sediment, pesticides, fertilizers, and urban run-off into caves; and increase in human visitation and vandalism.

We also considered additional information on threats to the species when we developed the recovery plan for the species (Service 1994, pp. 59-65) and when we conducted the 5-year status review of the species (Service 2009, p. 2), in which we concluded that no change in the species' status (that is, reclassification to threatened or delisting) was warranted. We also reviewed available threat information in our files and in a 1993 petition when we made our negative 90-day finding on that petition to de-list (59 FR 11755).

The current petition asserts that “Development activities on the surface may not result in the significant loss or degradation of habitat for T. reyesi as originally thought” and suggests that evidence of this is the species persistence in caves surrounded by developed areas. Examples given in the petition are Inner Space Caverns, Sun City caves, Weldon Cave, Three-Mile Cave, and Four-Mile Cave. However, the observation of the species in these locations does not mean their populations at these locations are thriving or can withstand the long-term impacts from development activities that are expected to occur to karst invertebrate populations in developed areas as discussed in the listing rule, recovery plan, and 5-year status review for the Bone Cave harvestman.

Bone Cave harvestman populations may be declining or threatened even though they are still observed at a specific site. Information adequate to detect population trends for this species is not readily available and was not provided in the petition. This species has life-history strategies that include characteristics such as low metabolic and reproductive rates, long life spans, and inherently low sample sizes, which make it difficult to detect population response to possible impacts (Poulson and White 1969, p. 977, Howarth 1983, p. 374). We indicated in the 1994 90-day petition finding (59 FR 11755) that more time was needed to detect if the species was declining; however, while more time has passed, we are still lacking adequate data to conduct a trend analysis at most locations, given that it can take decades to detect population trends due to small sample sizes, the difficulty surveying for the species, and their long life spans.

In addition, some of the threats from development are due to the increased probability of chance events occurring in the future, such as a contaminant event like a pipeline leak, which exists because more contamination sources are in the vicinity of species' locations due to development.

The petition states that several Sun City caves are examples of areas where the species can persist in developed areas. However, the petition failed to provide data adequate to assess trends in the karst invertebrate populations since the development occurred. In addition, we worked with the Sun City developers when they designed the project to develop strategies that we believed at the time would avoid or minimize the possibility of “take” to listed karst species. While we now believe that most of the Sun City cave preserves are too small to meet our preserve design recommendations for recovery and long-term survival (Service 2012), we expect that the strategies and measures put in place likely have reduced the rate of impacts to the species.

The commercial cave known as Inner Space Caverns is another example the petition provided where the Bone Cave harvestman continues to persist in a developed area. Although the Bone Cave harvestman may be present at Inner Space Caverns, this does not ensure their populations are robust and secure; they may still be declining, and are at risk due to competition with surface-dwelling invertebrates and other threats associated with development such as the potential for contamination. This cave has an overgrowth of blue-green algae growing near cave lights where the petition states that this species has been observed. This type of algae is known as “lampenflora” and favors surface-dwelling invertebrate species that can out-compete karst invertebrate species (Mulec and Kosi 2009, p. 109, Culver 1986, p. 438), such as the Bone Cave harvestman. The petition failed to provide any data adequate to assess trends in the karst invertebrate population in relation to the time (duration and frequency) that they have been exposed to the artificial lighting. Additionally, part of the cave footprint occurs under a major interstate highway and train tracks, which both present a threat of a contaminant spill that could impact the species in the future.

Weldon Cave was another example in the petition of a cave occupied by the Bone Cave harvestman within a developed area. Based on the best available information in our files this cave is surrounded by undeveloped open space. Other than a small portion of the subsurface drainage basin potentially being impacted by a school campus, this cave appears to meet our preserve design recommendations but is not within a developed area, as asserted in the petition. Three-Mile Cave and Four-Mile Cave were also provided in the petition as examples of developed caves wherein the Bone Cave harvestman is known to occur. According to the petition, surveys conducted by SWCA in 2008 and 2009 documented the Bone Cave harvestman at these locations. However, detailed survey data were not provided by the petitioners and were not in the SWCA 2009 “Annual Report of Activities Involving Endangered Karst Invertebrates under Threatened and Endangered Species Permit TE800611-2.”

The petition also states that, since the Bone Cave harvestman uses mesocaverns, it is protected from surface development activities because mesocaverns are “geologically protected.” We are unclear why the petition contends that mesocaverns are protected because mesocaverns are subject to rapid permeation of surface water (Cowan et al. 2007, p. 160), and karst landscapes (including mesocaverns) are particularly susceptible to groundwater contamination because water penetrates rapidly through bedrock conduits providing little or no filtration (White 1988, p. 149).

One of the major threats to the Bone Cave harvestman is habitat loss due to increasing urbanization. The Bone Cave harvestman is a troglobite, meaning it lives its entire life underground. Karst ecosystems are heavily reliant on surface plant and animal communities for nutrient input.

Caves in central Texas that are occupied by federally listed karst invertebrates, such as the Bone Cave harvestman, receive energy (or nutrients) primarily from (1) detritus (decomposing organic matter) that falls or is washed into the caves and (2) energy brought into the caves by cave crickets (Ceuthophilus spp.) (Barr 1968, p. 48; Reddell 1993, p. 2; Lavoie et al. 2007, p. 114; Taylor 2003, p. 3, 2004, p. 2, 2005, p. 97), which are found in most Texas caves (Reddell 1966, p. 33). Cave crickets forage widely in the surface habitat surrounding the cave. Karst invertebrates feed on the cave cricket eggs (Mitchell 1971, p. 251), feces (Barr 1968, pp. 51-53, Poulson et al. 1995, p. 226), and directly on the crickets themselves (Elliott 1994, p. 15).

Development within urbanized areas can destroy or alter the surface plant and animal communities on which karst invertebrates depend. As development increases within the cave crickets' foraging area, there may be dramatic shifts in the available food supply within the cave (Taylor et al. 2007, p. 7). The leaf litter and other decomposing material that make up most of the detritus from the surface plant and animal community may also be reduced or altered, resulting in a reduction of nutrient and energy flow into the cave. A study by Taylor et al. (2007) compared caves in urbanized areas that were impacted by development to those in natural areas and found that, even though a small area within a largely urbanized ecosystem may support a cave community where karst invertebrates are occasionally seen, these populations are significantly lower than those found in caves in more natural, less developed ecosystems, most likely as a result of reduced nutrient input. Another study at Lakeline Cave in Travis County, Texas, was conducted in association with the issuance of a habitat conservation plan and accompanying section 10(a)(1)(B) permit issued for Lakeline Mall. That study is based on data collected from 1992 through 2011, and it documented a significant decline during that 20-year timeframe in another endangered karst invertebrate, Rhadine persephone, and cave crickets as development increased (ZARA 2012, pp. 8, 10, 12). Further, at Lakeline Mall Cave, no more than three Bone Cave harvestmen have been observed during any single survey (ZARA 2012, p. 11). Also, no Bone Cave harvestmen were seen during 6 years (1993, 1999, 2001, 2006, 2009, and 2010) and 12 surveys in Lakeline Mall Cave (ZARA 2012, p. 11).

Available information in our files supports our projection in the 1988 listing rule that development and human population would continue to increase within the range of the species. The population of the City of Austin grew from 251,808 people in 1970 to 735,088 people in 2007 (City of Austin 2007). This represents a 192-percent increase over the 37-year period. Population projections from the Texas State Data Center (2012, pp. 496-497), estimate that Travis County will increase 94 percent in population from 1,024,266 in 2010, to 1,990,820 in 2050. The Texas State Data Center also estimates an increase in human population in Williamson County from 422,679 in 2010, to 2,015,294 in 2050 representing a 377-percent increase over a 40-year timeframe. All human population projections from the Texas State Data Center presented here are under a high-growth scenario, which assumes that migration rates from 2000 to 2010 will continue through 2050 (Texas State Data Center and the Office of the State Demographer 2012, p. 9). Urbanization and human population growth and development were identified as a threat in the original 1988 listing rule and continue to represent a threat to the species.

Factor B: Overutilization for commercial, recreational, scientific, or educational purposes. In the 1988 listing rule for the Bone Cave harvestman, we did not identify any threats under this factor. Likewise, the petition and our review of the information in our files did not identify any threats under this factor.

Factor C: Disease or predation. In the 1988 listing rule, we stated that increased human population increases the threat of predation by and competition with exotic (non-native) and native surface-dwelling species, such as sow bugs, cockroaches, and red imported fire ants. The petition states that “Recent studies suggest that fire ants may not present as significant or as lasting of a threat to the species as originally believed.” The information cited regarding red imported fire ants is identified in the petition as an article by Porter and Savignano (1990), which we previously considered in our finding on the 1993 petition, and another study by Morrison (2002). The petition states that “a subsequent study by Morrison in 2002 revisited the Porter and Savignano (1990) study area 12 years later and replicated their study.

Morrison (2002, pp. 2341, 2343-2344) found that arthropod communities had rebounded to pre-RIFA [red imported fire ant]-invasion levels and that all measures of native ant and other arthropod species' diversity had returned to pre-invasion levels. Red imported fire ants were still the most abundant ant species, but not nearly as abundant as during the initial red imported fire ants infestation. He concluded that the impacts to arthropod communities by red imported fire ants might be greatest during and shortly after the initial invasion, but long-term impacts are likely not as significant as once believed. However, we note that Morrison (2002, p. 2342) also states that “it is quite likely that red imported fire ants did contribute directly or indirectly to the disappearance or reduction in numbers of species” and that their study “should not be interpreted as an indication that detrimental effects of invasive ants will simply disappear with time.” In addition, this is not “new information” as we have already reviewed these articles and considered the information they provided in the Bexar County Karst Invertebrates Recovery Plan (Service 2011, p. 12) and in our Karst Preserve Management and Monitoring Recommendations (Service 2014, p. 3), which is applicable here as all central Texas endangered karst invertebrates have similar life-history characteristics, and one of the Bexar County invertebrates is in the same genus (Texella) as the Bone Cave harvestman. In addition, red imported fire ants have been found within and near many caves in central Texas and have been observed feeding on dead troglobites, cave crickets, and other species within caves (Elliott 1992, p. 13, 1994, p. 15, 2000, pp. 668, 768; Reddell 1993, p. 10; Taylor et al. 2003, p. 3).

Factor D: The inadequacy of existing regulatory mechanisms. The 1988 listing rule states that “there are currently no laws that protect any of these species or that indirectly address protection of their habitat.”

While the petition did discuss some new ordinances that appear to have been put in place since the time of listing, we do not have enough information to indicate whether or not these State and local ordinances provide enough protection from all threats to the Bone Cave harvestman.

The petition states that “the regulatory landscape includes a number of measures contributing to the conservation of the species outside of the protections afforded by the Endangered Species Act of 1973, as amended.” For example, they say that protections offered though the City of Austin are adequate to protect the species in Austin, Texas. In the course of our work, we have reviewed these regulations and understand that most caves that are defined by the City of Austin's Environmental Criteria Manual as a cave are provided a 46- to 91-m (150- to 300-ft) set-back area (City of Austin 2014, p. 13-3). However, a 46-m (150-ft) or 91-m (300-ft) set-back is not adequate to meet our preserve design criteria, does not protect the cave cricket foraging area, and potentially does not include the surface and subsurface drainage basins. Further, it is not applicable across the range of the Bone Cave harvestman because the species occurs in Travis and Williamson Counties and the City of Austin does not cover all of those counties.

The petition states that the City of Georgetown Water Quality Management Plan for the Georgetown salamander will offer protection to the Bone Cave harvestman. They state that this plan encourages the use of best management practices to protect water quality at Georgetown salamander locations. However, there are few Bone Cave harvestman locations that occur near Georgetown salamander locations, so any protection offered to the harvestman would be limited. Further, it is not clear from the petition whether this mechanism is voluntary or if it is regulatory or if it is currently in effect. In addition, the petition did not provide enough detail for us to evaluate all benefits this plan would provide to the Bone Cave harvestman, and it appears that participation in this plan is at least in part voluntary.

The petition states that the Texas Commission on Environmental Quality (TCEQ) Edwards Rules provide protection to recharge features on the Edwards Plateau and that this provides protection from pollution to the Bone Cave harvestman. In a discussion of Factor D in the Bexar County Karst Invertebrates Recovery Plan (Service 2011, p. 13), we state that “the TCEQ water quality regulations do not provide much protection to the species' habitat (see 65 FR 81419-81433 for more information). For example, while some TCEQ practices provide protection from water quality impacts, others, such as sealing cave entrances for water quality reasons, can harm karst invertebrates.” Sealing cave entrances can be harmful by blocking off water (leading to drying) and nutrient input to the karst invertebrate habitat. In addition, not all of the caves and mesocaverns that the Bone Cave harvestman occurs in are considered recharge features and, therefore, would not receive some of the water quality protection measures. Also, not all locations of the Bone Cave harvestman are under the jurisdiction of the Edwards Rules.

Factor E: Other natural or manmade factors affecting the continued existence of the species. In the 1988 listing rule, we stated that this species is extremely vulnerable to losses because of its severely limited range and because of its naturally limited ability to colonize new habitats. We also stated that the very small size of the species habitat units and the fragile nature of cave ecosystems make them vulnerable to even isolated acts of vandalism. The petition states, “Inner Space Cavern demonstrates that the species can persist in caves with frequent human visitation and may be more tolerant of related habitat modification than originally believed.” They also provide Three-Mile Cave and Four-Mile Cave as examples of caves that have experienced human use yet the species persists. The petition contends that, since the Bone Cave harvestman exists in Inner Space Caverns, human visitation is not a threat. The petition also states that Three-mile and Four-mile Cave had graffiti from the 1890s, 1920s, and 1950s. Yet, no detailed information was provided to demonstrate if these caves experienced continued human use. The petition also indicates that Four-Mile Cave was inaccessible to humans prior to 2009 due to boulders blocking the entrance. In addition, the petition provided no trend analysis for these caves. As stated earlier, the observation of the species in these locations does not mean the populations at these locations have not been impacted (in a way that is short of extirpation) or can withstand the long-term impacts that are expected to occur to karst invertebrate populations in developed areas or from human visitation.

In the species 5-year status review (Service 2009, p. 18) we said, “Although climate change was not identified as a threat to T. reyesi in the original listing document or in the recovery plan, the species' dependence on stable temperatures and humidity levels opens the possibility of climatic change impacting this species. Therefore, while it appears reasonable to assume that T. reyesi may be affected, we lack sufficient certainty to know how climate change will affect this species.”

The petitioners state that “the use of small voids or `mesocaverns' within the geologic formations known to support occupied caves mitigates the potential threat of climate change.” We acknowledge that mesocaverns may provide some protection from fluctuations in temperature and humidity that may be induced by climate change. However, the presence of mesocaverns alone will likely not be sufficient to ameliorate all of the effects that climate change may pose to this species. Karst invertebrates depend on stable temperatures and high humidity (Barr 1968, p. 47, Mitchell 1971, p. 250). The temperatures in caves are typically the average annual temperature of the surface habitat and vary much less than the surface environment (Howarth 1983, p. 372, Dunlap 1995, p. 76). If average surface temperatures increase, this could result in increased in-cave temperatures, which could affect the Bone Cave harvestman.

Increased and/or more severe storms as well as prolonged periods of high temperatures and drought between rainfall events associated with predicted climate change effects may also impact the cave environment. Changes in rainfall regimes may affect the harvestman in several ways, including directly either through flooding or indirectly by modifying their habitat or nutrient availability. Changes in rainfall regimes could (1) alter the moisture levels within the caves leaving them drier between floods, which could lead to desiccation of the Bone Cave harvestman and (2) affect the amount and timing of nutrients washed into a cave, potentially resulting in longer periods between nutrient input. These changes to drier and less suitable conditions in the caves will likely cause the Bone Cave harvestman to retreat farther into mesocaverns and away from nutrients that are thought to be located in larger cave passages (Howarth 1987, pp. 5-7), causing individuals to spend more energy trying to acquire nutrients in an already stressed environment. In addition, caves in arid regions have been shown to have smaller invertebrate populations and diversity due to less moisture and nutrient availability (George Veni, National Cave and Karst Research Institute, pers. comm. 2010). Since the Bone Cave harvestman is also sensitive to these habitat parameters, it is reasonable to predict that climate change could affect its populations in a similar manner despite the presence of mesocaverns.

Further, stochastic (random) events from either environmental factors (for example, severe weather) or demographic factors (which come from the chance events of birth and death of individuals) exacerbate threats to the species because of its small population size (Melbourne and Hastings 2008, p. 100). The risk of extinction for any species is known to be highly inversely correlated with population size (Pimm et al. 1988, pp. 774-775, O'Grady et al. 2004, pp. 516, 518). In other words, the smaller the population the greater the overall risk of extinction. Therefore, threats to the Bone Cave harvestman are exacerbated by its small population size, which makes it more vulnerable to existing threats.

We have reviewed the petition and also evaluated readily available, related information in our files. The petitioners have based their assessment that the species can thrive in developed areas on information that we have already reviewed (except in 4 caves discovered since the 5-year status review and 7 for which we lack locality information or taxonomic verifications) while working on previous documents (Service 2009, 2012) or on observations that lack a large enough sample size to produce population trend information for the Bone Cave harvestman. The petition provided no trend analysis to indicate that this species can withstand the threats associated with development or climate change over the long term. Based on our review and evaluation, we find that the petition does not present substantial scientific or commercial information indicating that delisting of the Bone Cave harvestman may be warranted due to recovery, extinction, or error in the original scientific data at the time the species was classified or in our interpretation of the data. However, much progress has been made toward recovery in the North Williamson and Jollyville Plateau Karst Fauna Regions. We encourage interested parties to continue to gather data and implement conservation actions across the range of the Bone Cave harvestman that will further assist with the conservation of this species. If you wish to provide information regarding the Bone Cave harvestman, you may submit your information or materials to the Field Supervisor, Austin Ecological Services Field Office (see ADDRESSES) at any time.

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this notice are staff members of the Austin Ecological Services Office.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).