82_FR_26106 82 FR 25999 - Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2010 SO2

82 FR 25999 - Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2010 SO2

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 107 (June 6, 2017)

Page Range25999-26007
FR Document2017-11574

The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) revisions from the State of Colorado submitted to demonstrate that the State meets infrastructure requirements of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for sulfur dioxide (SO<INF>2</INF>) on June 2, 2010, and fine particulate matter (PM<INF>2.5</INF>) on December 14, 2012. Section 110(a) of the CAA requires that each state submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by the EPA.

Federal Register, Volume 82 Issue 107 (Tuesday, June 6, 2017)
[Federal Register Volume 82, Number 107 (Tuesday, June 6, 2017)]
[Proposed Rules]
[Pages 25999-26007]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-11574]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0557; FRL-9963-29-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2010 SO2 and 2012 
PM2.5 National Ambient Air Quality Standards; Colorado

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of Colorado submitted to demonstrate that the State meets 
infrastructure requirements of the Clean Air Act (CAA) for the National 
Ambient Air Quality Standards (NAAQS) promulgated for sulfur dioxide 
(SO2) on June 2, 2010, and fine particulate matter 
(PM2.5) on December 14, 2012. Section 110(a) of the CAA 
requires that each state submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by the EPA.

DATES: Written comments must be received on or before July 6, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0557 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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

SUPPLEMENTARY INFORMATION: 

I. General Information

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

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the 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 the 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 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.

[[Page 26000]]

II. Background

    On June 2, 2010, the EPA promulgated a revised primary 
SO2 standard at 75 ppb, based on a three-year average of the 
annual 99th percentile of one-hour daily maximum concentrations (75 FR 
35520, June 22, 2010). On December 14, 2012, the EPA promulgated a 
revised annual PM2.5 standard by lowering the level to 12.0 
[mu]g/m\3\ and retaining the 24-hour PM2.5 standard at a 
level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit SIPs providing for implementation, maintenance, and enforcement 
of the NAAQS. The EPA has historically referred to these SIP 
submissions made to satisfy sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, the EPA uses the term to distinguish 
this particular type of SIP submission from those 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 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.
    Infrastructure SIP submissions must contain any revisions needed 
for meeting the applicable SIP requirements of section 110(a)(2), or 
certifications that the existing SIPs for SO2 and 
PM2.5 already satisfy those requirements. EPA guidance on 
these provisions and their implementation may be found in the following 
documents: ``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'' (October 2, 2007); ``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)'' (Sep. 25, 2009); ``Guidance on Infrastructure SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS)'' (Oct. 14, 2011); and 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and (2)'' (Sept. 13, 2013).

III. What is the scope of this rulemaking?

    The 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 2010 SO2 and 2012 PM2.5 NAAQS. 
The requirement for states to make a SIP submission of this type arises 
out of CAA section 110(a)(1). This provision directs that, within three 
years after the promulgation of a NAAQS, states make SIP submissions 
that provide for the ``implementation, maintenance, and enforcement'' 
of the NAAQS. The statute imposes on states the duty to make these SIP 
submissions, and does not condition this requirement on the EPA's 
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.
    Section 110(a)(1) addresses the timing and general requirements for 
these infrastructure SIP submissions, and section 110(a)(2) provides 
more details concerning the required contents of these submissions. The 
section 110(a)(2) list of required elements contains a variety of 
disparate provisions, some of which pertain to required legal 
authority, some to required substantive program provisions, and some to 
requirements for both authority and substantive program provisions.\1\ 
The EPA has concluded that although the timing requirement in section 
110(a)(1) is clear, some of the section 110(a)(2) language is ambiguous 
with respect to what is required for inclusion in an infrastructure SIP 
submission. For discussion of some of these ambiguities and the EPA's 
interpretation of them, see 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?''
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    With respect to certain other issues, the 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 the 
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 the EPA; and (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of the 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as 
amended by 72 FR 32526, June 13, 2007.

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

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section 110(a)(2) lists specific elements the SIP must 
contain or satisfy. The elements that are the subject of this action 
are:
     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; 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.
    Section VI, below, contains a detailed discussion of each of these 
elements.
    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 at the same time nonattainment area plan requirements are due 
under section 172. The two elements are: (1) Section

[[Page 26001]]

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

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

    The Colorado Department of Public Health and Environment (CDPHE) 
submitted certifications concerning Colorado's infrastructure SIP for 
the 2010 SO2 NAAQS on July 10, 2013, and for the 2012 
PM2.5 NAAQS on December 1, 2015. Colorado's infrastructure 
certifications demonstrate how the State has plans in place that meet 
the applicable requirements of section 110 for the 2010 SO2 
and 2012 PM2.5 NAAQS. The Colorado infrastructure SIPs were 
subject to public notice and comment, as indicated in the cover letter 
of each certification, and are available within the electronic docket 
for today's proposed action at www.regulations.gov. These plans 
reference the current Air Quality Control Commission (AQCC) regulations 
and Colorado Revised Statutes (C.R.S.). The cited AQCC regulations are 
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 the EPA and incorporated into the Colorado SIP can be found 
at 40 CFR 52.320.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires that SIPs 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.
    Colorado's infrastructure SIP submissions identify existing EPA-
approved SIP provisions limiting emissions of relevant pollutants. The 
State references a variety of SIP-approved Colorado AQCC regulations 
cited under element (C), including: Regulation 1, Particulates, Smokes, 
Carbon Monoxide, and Sulfur Dioxides; Regulation 3, Stationary Source 
Permitting and Air Pollution Emission Notice Requirements; Regulation 
4, Woodburning Controls; Regulation 7, Control of Ozone via Ozone 
Precursors and Nitrogen Oxides; Regulation 11, Motor Vehicle 
Inspection; Regulation 16, Street Sanding and Sweeping; and Common 
Provisions Regulation. Subject to the following clarifications, the EPA 
proposes to find that 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 2010 SO2 and 2012 
PM2.5 NAAQS.
    First, the 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). Furthermore, 
Colorado has no areas designated as nonattainment for the 2010 
SO2 and 2012 PM2.5 NAAQS. Colorado's 
certifications (contained within this docket) generally listed 
provisions within its SIP which regulate pollutants through various 
programs, 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. This suffices, in the case 
of Colorado, to meet the requirements of section 110(a)(2)(A) for the 
2010 SO2 and 2012 PM2.5 NAAQS.
    Second, as previously discussed, the 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 that are contrary to the CAA and to 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, the EPA 
encourages any state having a director's discretion or variance 
provision contrary to the CAA and EPA guidance to take steps to correct 
the deficiency as soon as possible.
    As a final clarification, in this action the EPA is also not 
proposing to approve or disapprove any existing state provision with 
regard to excess emissions during SSM operations at a facility. A 
number of states have SSM provisions that are contrary to the CAA and 
existing EPA guidance,\2\ and the agency is addressing such state 
regulations separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to the EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown'' (Sep. 20, 1999).
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    Subject to the above clarifications, the EPA is proposing to 
approve Colorado's infrastructure SIP for the 2010 SO2, and 
2012 PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(A) to include enforceable emission limitations and 
other control measures, means, or techniques to meet the applicable 
requirements of this element.
    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 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. The EPA 
approved 2015 and 2016 network changes through an AMNP response letter 
(contained within the docket) mailed to CDPHE on December 22, 2016. The 
Colorado Air Pollution Control Division (APCD) also periodically 
submits a Quality Management Plan and a Quality Assurance Project Plan 
to the EPA. These plans cover procedures to monitor and analyze data.
    In our August 19, 2015 rulemaking (80 FR 50205), we conditionally 
approved element (B) for the 2010 NO2 NAAQS based on 
Colorado's commitment to install and operate a second near-road 
NO2 monitoring site no later than December 31, 2015. In a 
letter dated February 17, 2016 (contained within this docket), the 
Colorado Air Pollution Control Division notified the EPA that the 
second near-road site in Denver became operational on October 1, 2015, 
thus satisfying the requirements of 40 CFR 58.10(a)(5)(iv).
    We find Colorado's SIP adequate for the ambient air quality 
monitoring and data system requirements for the 2010

[[Page 26002]]

SO2 and 2012 PM2.5 NAAQS, and therefore propose 
to approve the infrastructure SIP for the 2010 SO2 and 2012 
PM2.5 NAAQS for this element.
    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 2010 
SO2 and 2012 PM2.5 NAAQS. As explained elsewhere 
in this action, the EPA is not evaluating nonattainment related 
provisions, such as the nonattainment NSR program required by part D of 
the Act. The 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).

Enforcement of Control Measures Requirement

    The State's submissions for the 2010 SO2 and 2012 
PM2.5 infrastructure requirement cite a variety of SIP-
approved Colorado AQCC regulations that provide for enforcement of 
emission limits and control measures. These include Regulation 1, 
Particulates, Smokes, Carbon Monoxide, and Sulfur Dioxides; Regulation 
3, Stationary Source Permitting and Air Pollution Emission Notice 
Requirements; Regulation 4, Woodburning Controls; Regulation 7, Control 
of Ozone via Ozone Precursors and Nitrogen Oxides; Regulation 11, Motor 
Vehicle Inspection; Regulation 16, Street Sanding and Sweeping; and 
Common Provisions Regulation.

PSD Requirements

    With respect to elements (C) and (J), the 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; this demonstration will also satisfy the 
requirements of element (D)(i)(II). To meet this requirement, Colorado 
cited SIP approved AQCC Regulation 3 Concerning Major Stationary Source 
New Source Review and Prevention of Significant Deterioration. The EPA 
is proposing to approve Colorado's infrastructure SIP for the 2010 
SO2 and 2012 PM2.5 NAAQS with respect to the 
general requirement in section 110(a)(2)(C) to include a PSD program in 
the SIP that covers all regulated pollutants including greenhouse gases 
(GHGs).
    In addition to these requirements, there are four other revisions 
to the Colorado SIP that are necessary to meet the requirements of 
infrastructure element 110(a)(2)(C). These four revisions are related 
to (1) the Ozone Implementation NSR Update (November 29, 2005, 70 FR 
71612); (2) the ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule'' (June 3, 2010, 75 FR 31514); (3) the 
NSR PM2.5 Rule (May 16, 2008, 73 FR 28321); and (4) the 
final rulemaking entitled ``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, Oct. 20, 
2010).
    On January 9, 2012 (77 FR 1027), we approved revisions to 
Colorado's PSD program that addressed the PSD requirements of the Phase 
2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 
71612). As a result, the approved Colorado PSD program meets the 
current requirements for ozone.
    With respect to GHGs, on June 23, 2014, the United States Supreme 
Court addressed the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the 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 Court 
also held that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
(anyway sources) contain limitations on GHG emissions based on the 
application of Best Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. 
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended 
judgment vacating the regulations that implemented Step 2 of the EPA's 
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations 
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers 
sources that are required to obtain a PSD permit based on emissions of 
pollutants other than GHGs. Step 2 applied to sources that emitted only 
GHGs above the thresholds triggering the requirement to obtain a PSD 
permit. The amended judgment preserves, without the need for additional 
rulemaking by the EPA, the application of the BACT requirement to GHG 
emissions from Step 1 or ``anyway'' sources.\3\ With respect to Step 2 
sources, the D.C. Circuit's amended judgment vacated the regulations at 
issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the 
extent they require a stationary source to obtain a PSD permit if 
greenhouse gases are the only pollutant (i) that the source emits or 
has the potential to emit above the applicable major source thresholds, 
or (ii) for which there is a significant emission increase from a 
modification.''
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    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition 
of ``anyway'' sources).
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    The EPA is planning to take additional steps to revise the federal 
PSD rules in light of the Supreme Court and subsequent D.C. Circuit 
opinion. Some states have begun to revise their existing SIP-approved 
PSD programs in light of these court decisions, and some states may 
prefer not to initiate this process until they have more information 
about the planned revisions to the EPA's PSD regulations. The EPA is 
not expecting states to have revised their PSD programs in anticipation 
of the EPA's planned actions to revise its PSD program rules in 
response to the court decisions.
    The 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 the EPA into the SIP 
continues to require that PSD permits issued to ``anyway sources'' 
contain limitations on GHG emissions based on the application of BACT. 
The EPA most recently approved revisions to Colorado's PSD program on 
January 25, 2016 (81 FR 3963). The approved Colorado PSD permitting 
program still contains some provisions regarding Step 2 sources that 
are no longer necessary in light of the Supreme Court decision and D.C. 
Circuit's amended judgment. But the presence of these provisions in the 
previously-approved plan does not render the infrastructure SIP 
submission inadequate to satisfy Elements (C), (D)(i)(II) and (J). The 
SIP contains the currently necessary PSD requirements for applying the 
BACT requirement to greenhouse gas emissions from ``anyway sources.'' 
And the application of those requirements is not impeded by the

[[Page 26003]]

presence of other previously approved provisions regarding the 
permitting of Step 2 sources. Accordingly, the Supreme Court decision 
and subsequent D.C. Circuit judgment do not prevent the EPA's approval 
of Colorado's infrastructure SIP as to the requirements of Elements 
(C), (D)(i)(II) prong 3, and (J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, the 
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, the 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). The 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.), remanded the EPA's 
2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The 
court ordered the EPA to ``repromulgate these rules pursuant to Subpart 
4 consistent with this opinion.'' Id. at 437. Subpart 4 of part D, 
Title 1 of the CAA establishes additional provisions for 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, the EPA does not consider the 
portions of the 2008 Implementation rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected by 
the decision. Moreover, the EPA does not anticipate the need to revise 
any PSD requirements promulgated in the 2008 Implementation rule in 
order to comply with the court's decision. Accordingly, the EPA's 
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 the EPA's action on the present infrastructure action. The EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due 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 the 
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). The 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. The 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. 
The EPA therefore is proposing to approve Colorado's SIP for the 2010 
SO2 and PM2.5 NAAQS with respect to the 
requirement in section 110(a)(2)(C) to include a permit program in the 
SIP as required by part C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program is found in 
Regulation 3 of the Colorado SIP, and was originally approved by the 
EPA as Regulation 3 of the SIP (see 68 FR 37744, June 25, 2003). Since 
approval of the minor NSR program, the State and the EPA have relied on 
the program to ensure that new and modified sources not captured by the 
major NSR permitting programs do not interfere with attainment and 
maintenance of the NAAQS.
    The EPA is proposing to approve Colorado's infrastructure SIP for 
the 2010 SO2 and 2012 PM2.5 NAAQS with respect to 
the general requirement in section 110(a)(2)(C) to include a program in 
the SIP that regulates the modification and construction of any 
stationary source as necessary to assure that the NAAQS are achieved.
    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 prohibiting emissions that will have 
certain adverse air quality effects in other states. CAA section 
110(a)(2)(D)(i) identifies four distinct elements (or prongs) related 
to the impacts of air pollutants transported across state lines. The 
two prongs 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 (prong 
1) contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS or (prong 2) 
interfere with maintenance by any other state with respect to the same 
NAAQS. The two prongs 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 (prong 3) to prevent significant 
deterioration of air quality or (prong 4) to protect visibility.
    In this action, the EPA is addressing the 2010 SO2 and 
2012 PM2.5NAAQS with regard to prongs 3 (interference with 
PSD) and 4 (interference with visibility protection) of 
110(a)(2)(D)(i). We are not addressing prongs 1 and 2 for the 2010 
SO2 and 2012 PM2.5 NAAQS in this action. These 
prongs will be addressed in a later rulemaking.
A. Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)
    The PSD portion of section 110(a)(2)(D)(i)(II) 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

[[Page 26004]]

requirements of the EPA's PSD implementation rule(s).\4\ As noted in 
Section VI.3 of this proposed action, Colorado has such a program, and 
the EPA is therefore proposing to approve Colorado's SIP for the 2010 
SO2 and 2012 PM2.5 NAAQS with respect to the 
requirement in section 110(a)(2)(C) to include a permit program in the 
SIP as required by part C of the Act.
---------------------------------------------------------------------------

    \4\ See 2013 Guidance on Infrastructure SIP Elements.
---------------------------------------------------------------------------

    As stated in the 2013 Guidance on Infrastructure SIP Elements, 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 prong 3 with respect 
to these sources is by citing EPA-approved nonattainment NSR provisions 
addressing any pollutants for which the state has designated 
nonattainment areas. Colorado has a SIP-approved nonattainment NSR 
program that ensures regulation of major sources and major 
modifications in nonattainment areas.\5\
---------------------------------------------------------------------------

    \5\ See Colorado Regulation No. 3, Part D, Section V, which was 
most recently approved by EPA in a final rulemaking dated January 
25, 2016 (81 FR 3963).
---------------------------------------------------------------------------

    As Colorado's SIP meets PSD requirements for all regulated NSR 
pollutants, and contains a fully approved nonattainment NSR program, 
the 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 2010 SO2 and 2012 PM2.5 
NAAQS.
B. Evaluation of Interference With Measures To Protect Visibility
    To determine whether the CAA section 110(a)(2)(D)(i)(II) 
requirement for visibility protection is satisfied, the SIP must 
address the potential for interference with visibility protection 
caused by the pollutant (including precursors) to which the new or 
revised NAAQS applies. An approved regional haze SIP that fully meets 
the regional haze requirements in 40 CFR 51.308 satisfies the 
110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures 
that emissions from the state will not interfere with measures required 
to be included in other state SIPs to protect visibility. In the 
absence of a fully approved regional haze SIP, a state can still make a 
demonstration that satisfies the visibility requirement section of 
110(a)(2)(D)(i)(II).\6\
---------------------------------------------------------------------------

    \6\ See 2013 Guidance on Infrastructure SIP Elements. In 
addition, EPA approved the visibility requirement of 110(a)(2)(D)(i) 
for the 1997 Ozone and PM2.5 NAAQS for Colorado before 
taking action on the State's regional haze SIP. 76 FR 22036 (April 
20, 2011).
---------------------------------------------------------------------------

    Colorado submitted a regional haze SIP to EPA on May 25, 2011. The 
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 the EPA's approval of the 
Colorado's regional haze SIP.\7\ After these petitions were filed, a 
settlement agreement was entered into concerning the Craig Generating 
Station by the petitioners, the EPA, CDPHE, and Tri-State Generation 
and Transmission Association, Inc., and filed with the court on July 
10, 2014.\8\ In accordance with the settlement agreement, the EPA 
requested and the court granted a voluntary remand to the EPA of the 
portions of the EPA's December 2012 regional haze SIP approval that 
related to Craig Unit 1. Because the additional controls at the Craig 
facility will be implemented through a revision to the Colorado 
regional haze SIP that the EPA has not yet acted on, the EPA cannot 
rely on this approval as automatically satisfying prong 4.
---------------------------------------------------------------------------

    \7\ WildEarth Guardians filed its petition on February 25, 2013, 
and NPCA filed its petition on March 1, 2013.
    \8\ This settlement agreement is included in the docket for this 
action; see also Proposed Settlement Agreement, 79 FR 47636 (Aug. 
14, 2014).
---------------------------------------------------------------------------

    The EPA does, however, consider other aspects of our approval of 
Colorado's regional haze SIP to be sufficient to satisfy this 
requirement. Specifically, the 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 the 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.\9\ 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, the 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 prong 4 of CAA section 110(a)(2)(D)(i) for the 2010 
SO2 and 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

    \9\ See our proposed rulemaking on the Colorado regional Haze 
SIP, 77 FR 18052, March 26, 2012.
---------------------------------------------------------------------------

    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source. 
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.\10\ This suffices to meet the 
notice requirement of section 126(a).
---------------------------------------------------------------------------

    \10\ See Colorado Regulation 3, Part D. IV.A.1.
---------------------------------------------------------------------------

    Colorado has no pending obligations under sections 126(c) or 
115(b); therefore, its SIP currently meets the requirements of those 
sections. In summary, the SIP satisfies the requirements of CAA section 
110(a)(2)(D)(ii) for the 2010 SO2 and 2012 PM2.5 
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

[[Page 26005]]

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 law, 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, provides adequate authority 
for the State of Colorado APCD and AQCC to carry out its SIP 
obligations with respect to the 2010 SO2 and 2012 
PM2.5 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 its 
certifications, which are 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 2010 SO2 and 
2012 PM2.5 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 that 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 
\11\.
---------------------------------------------------------------------------

    \11\ The EPA's proposed rule notice (79 FR 71040, Dec. 1, 2014) 
includes a discussion of the legislative history of how states could 
meet the requirements of CAA section 128.
---------------------------------------------------------------------------

    On April 10, 2012 (77 FR 21453) the 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 2010 SO2 and 2012 
PM2.5 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 that monitoring 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), which is 
the EPA's central repository for air emissions data. The EPA published 
the Air Emissions Reporting Rule (AERR) on December 5, 2008, modifying 
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 to 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 January 18, 2016. The EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the public at 
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 
2010 SO2 and 2012 PM2.5 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 \12\] and adequate contingency plans to implement such 
authority.''
---------------------------------------------------------------------------

    \12\ Discussion of the requirements for meeting CAA section 303 
is provided in our notice of proposed rulemaking: Promulgation of 
State Implementation Plan Revisions; Infrastructure Requirements for 
the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 2010 
NO2 National Ambient Air Quality Standards; South Dakota 
(79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State 
Submittals, 8. Emergency powers.''
---------------------------------------------------------------------------

    Under CAA section 303, the Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment. If such action may not practicably ensure prompt 
protection, then the Administrator has the authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if the 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.\13\
---------------------------------------------------------------------------

    \13\ See our proposed rulemaking at 80 FR 3098 (June 1, 2015), 
section VI.8 for a complete discussion on how APPCA Sections 25-7-
112 and 35-7-113 provide authority comparable to that in CAA 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

[[Page 26006]]

if the NAAQS is covered by those regulations. The Denver Emergency 
Episode Plan (applicable to the Denver metropolitan area) addresses 
ozone, particulate matter, and carbon monoxide, and satisfies the 
requirements of 40 CFR part 51, subpart H (See 74 FR 47888). 
Furthermore, Colorado is classified as Priority III for SO2 
and accordingly is not required to submit emergency episode contingency 
plans for SO2. Therefore, we propose approval of Colorado's 
SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 
2010 SO2 and 2012 PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) ``[f]rom 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].''
    The 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) for the 2010 SO2 
and 2012 PM2.5 NAAQS.
    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 that 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, the 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. The 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, the 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 2010 
SO2 and 2012 PM2.5 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP to 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 that estimates of ambient air 
concentrations be based on applicable air quality models approved by 
the 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 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. Colorado also has broad 
authority to conduct modeling and submit supporting data to the EPA to 
satisfy federal nonattainment area requirements (25-7-105, 25-7-205.1, 
and 25-7-301, C.R.S.). The State also has the authority to submit any 
modeling data to the EPA on request under the Colorado Open Records Act 
(24-72-201 to 24-72-309, C.R.S.).
    As a result, the SIP provides for the air quality modeling that the 
Administrator has prescribed. Therefore, we propose to approve the 
Colorado SIP as meeting the CAA section 110(a)(2)(K) for the 2010 
SO2 and 2012 PM2.5 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires ``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) that 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

[[Page 26007]]

submissions as supplemented by the State for the 2010 SO2 
and 2012 PM2.5 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 2010 SO2 and 2012 PM2.5 
NAAQS.

VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure 
elements for the 2010 SO2 and 2012 PM2.5 NAAQS 
from the State's certifications as shown in Table 1. Elements we 
propose no action on are reflected in Table 2. A comprehensive summary 
of infrastructure elements organized by the EPA's proposed rule action 
are provided in Table 1 and Table 2.

Table 1--List of Colorado Infrastructure Elements and Revisions That the
                       EPA Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
July 10, 2013 submittal--2010 SO2 NAAQS:
  (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L)
   and (M).
December 1, 2015 submittal--2012 PM2.5 NAAQS:
  (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L)
   and (M).
------------------------------------------------------------------------


Table 2--List of Colorado Infrastructure Elements and Revisions That the
                  EPA Is Proposing To Take No Action On
------------------------------------------------------------------------
   Proposed for no action (Revision to be made in separate rulemaking
                                 action)
-------------------------------------------------------------------------
July 13, 2013 submittal--2010 SO2 NAAQS:
  (D)(i)(I) prongs 1 and 2.
December 1, 2015 submittal--2012 PM2.5 NAAQS:
  (D)(i)(I) prongs 1 and 2.
------------------------------------------------------------------------

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, the 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 the 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 the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: May 16, 2017.
Suzanne J. Bohan,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-11574 Filed 6-5-17; 8:45 am]
 BILLING CODE 6560-50-P



                                                                              Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules                                           25999

                                                    not impose additional requirements                        Dated: May 17, 2017.                                 submissions, and general guidance on
                                                    beyond those imposed by state law. For                  Alexis Strauss,                                        making effective comments, please visit
                                                    that reason, this proposed action:                      Acting Regional Administrator, Region IX.              http://www2.epa.gov/dockets/
                                                       • Is not a ‘‘significant regulatory                  [FR Doc. 2017–11681 Filed 6–5–17; 8:45 am]             commenting-epa-dockets.
                                                    action’’ subject to review by the Office                BILLING CODE 6560–50–P                                 FOR FURTHER INFORMATION CONTACT:
                                                    of Management and Budget under                                                                                 Abby Fulton, Air Program, U.S.
                                                    Executive Orders 12866 (58 FR 51735,                                                                           Environmental Protection Agency
                                                    October 4, 1993) and 13563 (76 FR 3821,                 ENVIRONMENTAL PROTECTION                               (EPA), Region 8, Mail Code 8P–AR,
                                                    January 21, 2011);                                      AGENCY                                                 1595 Wynkoop Street, Denver, Colorado
                                                       • does not impose an information                                                                            80202–1129, 303–312–6563,
                                                    collection burden under the provisions                  40 CFR Part 52
                                                                                                                                                                   fulton.abby@epa.gov.
                                                    of the Paperwork Reduction Act (44                      [EPA–R08–OAR–2013–0557; FRL–9963–29–
                                                    U.S.C. 3501 et seq.);                                   Region 8]                                              SUPPLEMENTARY INFORMATION:
                                                       • is certified as not having a                                                                              I. General Information
                                                    significant economic impact on a                        Promulgation of State Implementation
                                                    substantial number of small entities                    Plan Revisions; Infrastructure                         What should I consider as I prepare my
                                                    under the Regulatory Flexibility Act (5                 Requirements for the 2010 SO2 and                      comments for EPA?
                                                    U.S.C. 601 et seq.);                                    2012 PM2.5 National Ambient Air                           1. Submitting Confidential Business
                                                       • does not contain any unfunded                      Quality Standards; Colorado                            Information (CBI). Do not submit CBI to
                                                    mandate or significantly or uniquely                    AGENCY:  Environmental Protection                      the EPA through http://
                                                    affect small governments, as described                  Agency.                                                www.regulations.gov or email. Clearly
                                                    in the Unfunded Mandates Reform Act                                                                            mark the part or all of the information
                                                                                                            ACTION: Proposed rule.
                                                    of 1995 (Pub. L. 104–4);                                                                                       that you claim to be CBI. For CBI
                                                       • does not have Federalism                           SUMMARY:   The Environmental Protection                information on a disk or CD–ROM that
                                                    implications as specified in Executive                  Agency (EPA) is proposing to approve                   you mail to the EPA, mark the outside
                                                    Order 13132 (64 FR 43255, August 10,                    elements of State Implementation Plan                  of the disk or CD–ROM as CBI and then
                                                    1999);                                                  (SIP) revisions from the State of                      identify electronically within the disk or
                                                       • is not an economically significant                 Colorado submitted to demonstrate that                 CD–ROM the specific information that
                                                    regulatory action based on health or                    the State meets infrastructure                         is claimed as CBI. In addition to one
                                                    safety risks subject to Executive Order                 requirements of the Clean Air Act (CAA)                complete version of the comment that
                                                    13045 (62 FR 19885, April 23, 1997);                    for the National Ambient Air Quality                   includes information claimed as CBI, a
                                                       • is not a significant regulatory action             Standards (NAAQS) promulgated for                      copy of the comment that does not
                                                    subject to Executive Order 13211 (66 FR                 sulfur dioxide (SO2) on June 2, 2010,                  contain the information claimed as CBI
                                                    28355, May 22, 2001);                                   and fine particulate matter (PM2.5) on                 must be submitted for inclusion in the
                                                       • is not subject to requirements of                  December 14, 2012. Section 110(a) of                   public docket. Information so marked
                                                    Section 12(d) of the National                           the CAA requires that each state submit                will not be disclosed except in
                                                    Technology Transfer and Advancement                     a SIP for the implementation,                          accordance with procedures set forth in
                                                    Act of 1995 (15 U.S.C. 272 note) because                maintenance, and enforcement of each                   40 CFR part 2.
                                                    application of those requirements would                 NAAQS promulgated by the EPA.                             2. Tips for preparing your comments.
                                                    be inconsistent with the Clean Air Act;                 DATES: Written comments must be                        When submitting comments, remember
                                                    and                                                     received on or before July 6, 2017.                    to:
                                                       • does not provide the EPA with the                  ADDRESSES: Submit your comments,                          • Identify the rulemaking by docket
                                                    discretionary authority to address                      identified by Docket ID No. EPA–R08–                   number and other identifying
                                                    disproportionate human health or                        OAR–2013–0557 at http://                               information (subject heading, Federal
                                                    environmental effects with practical,                   www.regulations.gov. Follow the online                 Register volume, date, and page
                                                    appropriate, and legally permissible                    instructions for submitting comments.                  number);
                                                    methods under Executive Order 12898                     Once submitted, comments cannot be
                                                    (59 FR 7629, February 16, 1994).                                                                                  • Follow directions and organize your
                                                                                                            edited or removed from                                 comments;
                                                       In addition, the SIP is not approved                 www.regulations.gov. The EPA may
                                                    to apply on any Indian reservation land                                                                           • Explain why you agree or disagree;
                                                                                                            publish any comment received to its
                                                    or in any other area where the EPA or                                                                             • Suggest alternatives and substitute
                                                                                                            public docket. Do not submit
                                                    an Indian tribe has demonstrated that a                                                                        language for your requested changes;
                                                                                                            electronically any information you
                                                    tribe has jurisdiction. In those areas of               consider to be Confidential Business                      • Describe any assumptions and
                                                    Indian country, the rule does not have                  Information (CBI) or other information                 provide any technical information or
                                                    tribal implications and will not impose                 whose disclosure is restricted by statute.             data that you used;
                                                    substantial direct costs on tribal                      Multimedia submissions (audio, video,                     • If you estimate potential costs or
                                                    governments or preempt tribal law as                    etc.) must be accompanied by a written                 burdens, explain how you arrived at
                                                    specified by Executive Order 13175 (65                  comment. The written comment is                        your estimate in sufficient detail to
                                                    FR 67249, November 9, 2000).                            considered the official comment and                    allow for it to be reproduced;
                                                                                                            should include discussion of all points                   • Provide specific examples to
                                                    List of Subjects in 40 CFR Part 52
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                                                                                                            you wish to make. The EPA will                         illustrate your concerns, and suggest
                                                      Environmental protection, Air                         generally not consider comments or                     alternatives;
                                                    pollution control, Incorporation by                     comment contents located outside of the                   • Explain your views as clearly as
                                                    reference, Intergovernmental relations,                 primary submission (i.e., on the web,                  possible, avoiding the use of profanity
                                                    Nitrogen dioxide, Ozone, Particulate                    cloud, or other file sharing system). For              or personal threats; and,
                                                    matter, Reporting and recordkeeping                     additional submission methods, the full                   • Make sure to submit your
                                                    requirements.                                           EPA public comment policy,                             comments by the comment period
                                                       Authority: 42 U.S.C. 7401 et seq.                    information about CBI or multimedia                    deadline identified.


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                                                    26000                     Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules

                                                    II. Background                                          III. What is the scope of this                           Existing provisions related to excess
                                                                                                            rulemaking?                                              emissions from sources during periods
                                                       On June 2, 2010, the EPA                                                                                      of startup, shutdown, or malfunction
                                                    promulgated a revised primary SO2                          The EPA is acting upon the SIP
                                                                                                            submissions from Colorado that address                   (SSM) that may be contrary to the CAA
                                                    standard at 75 ppb, based on a three-                                                                            and the EPA’s policies addressing such
                                                                                                            the infrastructure requirements of CAA
                                                    year average of the annual 99th                         sections 110(a)(1) and 110(a)(2) for the                 excess emissions; (ii) existing provisions
                                                    percentile of one-hour daily maximum                    2010 SO2 and 2012 PM2.5 NAAQS. The                       related to ‘‘director’s variance’’ or
                                                    concentrations (75 FR 35520, June 22,                   requirement for states to make a SIP                     ‘‘director’s discretion’’ that may be
                                                    2010). On December 14, 2012, the EPA                    submission of this type arises out of                    contrary to the CAA because they
                                                    promulgated a revised annual PM2.5                      CAA section 110(a)(1). This provision                    purport to allow revisions to SIP-
                                                    standard by lowering the level to 12.0                  directs that, within three years after the               approved emissions limits while
                                                    mg/m3 and retaining the 24-hour PM2.5                   promulgation of a NAAQS, states make                     limiting public process or not requiring
                                                    standard at a level of 35 mg/m3 (78 FR                  SIP submissions that provide for the                     further approval by the EPA; and (iii)
                                                    3086, Jan. 15, 2013).                                   ‘‘implementation, maintenance, and                       existing provisions for Prevention of
                                                                                                            enforcement’’ of the NAAQS. The                          Significant Deterioration (PSD)
                                                       Under sections 110(a)(1) and (2) of the
                                                                                                            statute imposes on states the duty to                    programs that may be inconsistent with
                                                    CAA, states are required to submit SIPs
                                                                                                            make these SIP submissions, and does                     current requirements of the EPA’s
                                                    providing for implementation,                                                                                    ‘‘Final NSR Improvement Rule,’’ 67 FR
                                                    maintenance, and enforcement of the                     not condition this requirement on the
                                                                                                            EPA’s taking any action other than                       80186, Dec. 31, 2002, as amended by 72
                                                    NAAQS. The EPA has historically                                                                                  FR 32526, June 13, 2007.
                                                                                                            promulgating a new or revised NAAQS.
                                                    referred to these SIP submissions made
                                                                                                            Section 110(a)(2) includes a list of                     IV. What infrastructure elements are
                                                    to satisfy sections 110(a)(1) and
                                                                                                            specific elements that ‘‘[e]ach such                     required under sections 110(a)(1) and
                                                    110(a)(2) as ‘‘infrastructure SIP’’
                                                                                                            plan’’ submission must address.                          (2)?
                                                    submissions. Although the term                             Section 110(a)(1) addresses the timing
                                                    ‘‘infrastructure SIP’’ does not appear in               and general requirements for these                         CAA section 110(a)(1) provides the
                                                    the CAA, the EPA uses the term to                       infrastructure SIP submissions, and                      procedural and timing requirements for
                                                    distinguish this particular type of SIP                 section 110(a)(2) provides more details                  SIP submissions after a new or revised
                                                    submission from those intended to                       concerning the required contents of                      NAAQS is promulgated. Section
                                                    satisfy other SIP requirements under the                these submissions. The section 110(a)(2)                 110(a)(2) lists specific elements the SIP
                                                    CAA, such as ‘‘nonattainment SIP’’ or                   list of required elements contains a                     must contain or satisfy. The elements
                                                    ‘‘attainment plan SIP’’ submissions to                  variety of disparate provisions, some of                 that are the subject of this action are:
                                                    address the nonattainment planning                      which pertain to required legal                            • 110(a)(2)(A): Emission limits and
                                                    requirements of part D of title I of the                authority, some to required substantive                  other control measures
                                                    CAA; ‘‘regional haze SIP’’ submissions                  program provisions, and some to                            • 110(a)(2)(B): Ambient air quality
                                                                                                            requirements for both authority and                      monitoring/data system
                                                    to address the visibility protection
                                                                                                            substantive program provisions.1 The                       • 110(a)(2)(C): Program for
                                                    requirements of CAA section 169A; and                                                                            enforcement of control measures
                                                    nonattainment new source review (NSR)                   EPA has concluded that although the
                                                                                                                                                                       • 110(a)(2)(D): Interstate transport
                                                    permit program submissions to address                   timing requirement in section 110(a)(1)
                                                                                                                                                                       • 110(a)(2)(E): Adequate resources
                                                    the permit requirements of CAA, title I,                is clear, some of the section 110(a)(2)
                                                                                                                                                                     and authority, conflict of interest, and
                                                    part D.                                                 language is ambiguous with respect to
                                                                                                                                                                     oversight of local governments and
                                                                                                            what is required for inclusion in an
                                                       Infrastructure SIP submissions must                                                                           regional agencies
                                                                                                            infrastructure SIP submission. For                         • 110(a)(2)(F): Stationary source
                                                    contain any revisions needed for                        discussion of some of these ambiguities
                                                    meeting the applicable SIP requirements                                                                          monitoring and reporting
                                                                                                            and the EPA’s interpretation of them,                      • 110(a)(2)(G): Emergency powers
                                                    of section 110(a)(2), or certifications that            see Promulgation of State                                  • 110(a)(2)(H): Future SIP revisions
                                                    the existing SIPs for SO2 and PM2.5                     Implementation Plan Revisions;                             • 110(a)(2)(J): Consultation with
                                                    already satisfy those requirements. EPA                 Infrastructure Requirements for the 1997                 government officials; public
                                                    guidance on these provisions and their                  and 2006 PM2.5, 2008 Lead, 2008 Ozone,                   notification; PSD and visibility
                                                    implementation may be found in the                      and 2010 NO2 National Ambient Air                        protection
                                                    following documents: ‘‘Guidance on SIP                  Quality Standards; South Dakota (79 FR                     • 110(a)(2)(K): Air quality modeling/
                                                    Elements Required Under Sections                        71040, Dec. 1, 2014), under ‘‘III. What                  data
                                                    110(a)(1) and (2) for the 1997 8-hour                   is the scope of this rulemaking?’’                         • 110(a)(2)(L): Permitting fees
                                                    Ozone and PM2.5 National Ambient Air                       With respect to certain other issues,                   • 110(a)(2)(M): Consultation/
                                                    Quality Standards’’ (October 2, 2007);                  the EPA does not believe that an action                  participation by affected local entities.
                                                    ‘‘Guidance on SIP Elements Required                     on a state’s infrastructure SIP                            Section VI, below, contains a detailed
                                                    Under Sections 110(a)(1) and (2) for the                submission is necessarily the                            discussion of each of these elements.
                                                    2006 24-Hour Fine Particle (PM2.5)                      appropriate type of action in which to                     Two elements identified in section
                                                    National Ambient Air Quality Standards                  address possible deficiencies in a state’s               110(a)(2) are not governed by the three-
                                                    (NAAQS)’’ (Sep. 25, 2009); ‘‘Guidance                   existing SIP. These issues include: (i)                  year submission deadline of section
                                                    on Infrastructure SIP Elements Required                                                                          110(a)(1), and are therefore not
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                                                                                                               1 For example: Section 110(a)(2)(E)(i) provides
                                                    Under Sections 110(a)(1) and (2) for the                                                                         addressed in this action. These elements
                                                                                                            that states must provide assurances that they have
                                                    2008 Lead (Pb) National Ambient Air                     adequate legal authority under state and local law
                                                                                                                                                                     relate to part D of Title I of the CAA, and
                                                    Quality Standards (NAAQS)’’ (Oct. 14,                   to carry out the SIP; section 110(a)(2)(C) provides      submissions to satisfy them are not due
                                                    2011); and ‘‘Guidance on Infrastructure
                                                                                                            that states must have a SIP-approved program to          within three years after promulgation of
                                                                                                            address certain sources as required by part C of title   a new or revised NAAQS, but rather at
                                                    State Implementation Plan (SIP)                         I of the CAA; and section 110(a)(2)(G) provides that
                                                                                                                                                                     the same time nonattainment area plan
                                                    Elements under Clean Air Act Sections                   states must have legal authority to address
                                                                                                            emergencies as well as contingency plans that are        requirements are due under section 172.
                                                    110(a)(1) and (2)’’ (Sept. 13, 2013).                   triggered in the event of such emergencies.              The two elements are: (1) Section


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                                                                              Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules                                                   26001

                                                    110(a)(2)(C), to the extent it refers to                cited under element (C), including:                    and existing EPA guidance,2 and the
                                                    permit programs (known as                               Regulation 1, Particulates, Smokes,                    agency is addressing such state
                                                    ‘‘nonattainment NSR’’) required under                   Carbon Monoxide, and Sulfur Dioxides;                  regulations separately (80 FR 33840,
                                                    part D; and (2) section 110(a)(2)(I),                   Regulation 3, Stationary Source                        June 12, 2015).
                                                    pertaining to the nonattainment                         Permitting and Air Pollution Emission                     Subject to the above clarifications, the
                                                    planning requirements of part D.                        Notice Requirements; Regulation 4,                     EPA is proposing to approve Colorado’s
                                                    Therefore, this action does not address                 Woodburning Controls; Regulation 7,                    infrastructure SIP for the 2010 SO2, and
                                                    infrastructure elements related to the                  Control of Ozone via Ozone Precursors                  2012 PM2.5 NAAQS with respect to the
                                                    nonattainment NSR portion of section                    and Nitrogen Oxides; Regulation 11,                    general requirement in section
                                                    110(a)(2)(C) or related to 110(a)(2)(I).                Motor Vehicle Inspection; Regulation                   110(a)(2)(A) to include enforceable
                                                    Further, the EPA interprets the CAA                     16, Street Sanding and Sweeping; and                   emission limitations and other control
                                                    section 110(a)(2)(J) provision on                       Common Provisions Regulation. Subject                  measures, means, or techniques to meet
                                                    visibility as not being triggered by a new              to the following clarifications, the EPA               the applicable requirements of this
                                                    NAAQS, because the visibility                           proposes to find that SIP-approved                     element.
                                                    requirements in part C, title 1 of the                  AQCC regulations citied in Colorado’s                     2. Ambient air quality monitoring/
                                                    CAA are not changed by a new NAAQS.                     certifications provide enforceable                     data system: Section 110(a)(2)(B)
                                                                                                                                                                   requires SIPs to provide for
                                                    V. How did Colorado address the                         emission limitations and other control
                                                                                                                                                                   establishment and operation of
                                                    infrastructure elements of sections                     measures, means or techniques,
                                                                                                                                                                   appropriate devices, methods, systems,
                                                    110(a)(1) and (2)?                                      schedules for compliance, and other
                                                                                                                                                                   and procedures necessary to ‘‘(i)
                                                       The Colorado Department of Public                    related matters necessary to meet the
                                                                                                                                                                   monitor, compile, and analyze data on
                                                    Health and Environment (CDPHE)                          requirements of the CAA section
                                                                                                                                                                   ambient air quality, and (ii) upon
                                                    submitted certifications concerning                     110(a)(2)(A) for the 2010 SO2 and 2012                 request, make such data available to the
                                                    Colorado’s infrastructure SIP for the                   PM2.5 NAAQS.                                           Administrator.’’
                                                    2010 SO2 NAAQS on July 10, 2013, and                      First, the EPA does not consider SIP                    The provisions for episode
                                                    for the 2012 PM2.5 NAAQS on December                    requirements triggered by the                          monitoring, data compilation and
                                                    1, 2015. Colorado’s infrastructure                      nonattainment area mandates in part D                  reporting, public availability of
                                                    certifications demonstrate how the State                of Title I of the CAA to be governed by                information, and annual network
                                                    has plans in place that meet the                        the submission deadline of section                     reviews are found in the statewide
                                                    applicable requirements of section 110                  110(a)(1). Furthermore, Colorado has no                monitoring SIP (58 FR 49435, Sept. 23,
                                                    for the 2010 SO2 and 2012 PM2.5                         areas designated as nonattainment for                  1993). As part of the monitoring SIP,
                                                    NAAQS. The Colorado infrastructure                      the 2010 SO2 and 2012 PM2.5 NAAQS.                     Colorado submits an Annual Monitoring
                                                    SIPs were subject to public notice and                  Colorado’s certifications (contained                   Network Plan (AMNP) each year for
                                                    comment, as indicated in the cover                      within this docket) generally listed                   EPA approval. The EPA approved 2015
                                                    letter of each certification, and are                                                                          and 2016 network changes through an
                                                                                                            provisions within its SIP which regulate
                                                    available within the electronic docket                                                                         AMNP response letter (contained within
                                                                                                            pollutants through various programs,
                                                    for today’s proposed action at                                                                                 the docket) mailed to CDPHE on
                                                                                                            such as limits on emissions of
                                                    www.regulations.gov. These plans                                                                               December 22, 2016. The Colorado Air
                                                                                                            particulate matter (PM) in Regulation 1,
                                                    reference the current Air Quality                                                                              Pollution Control Division (APCD) also
                                                    Control Commission (AQCC) regulations                   woodburning controls in Regulation 4,
                                                                                                            and the State’s minor NSR and PSD                      periodically submits a Quality
                                                    and Colorado Revised Statutes (C.R.S.).                                                                        Management Plan and a Quality
                                                    The cited AQCC regulations are                          programs in Regulation 3. This suffices,
                                                                                                            in the case of Colorado, to meet the                   Assurance Project Plan to the EPA.
                                                    available at https://www.colorado.gov/                                                                         These plans cover procedures to
                                                    pacific/cdphe/aqcc-regs and http://                     requirements of section 110(a)(2)(A) for
                                                                                                            the 2010 SO2 and 2012 PM2.5 NAAQS.                     monitor and analyze data.
                                                    www.lexisnexis.com/hottopics/                                                                                     In our August 19, 2015 rulemaking
                                                    colorado/. Colorado’s SIP, air pollution                  Second, as previously discussed, the                 (80 FR 50205), we conditionally
                                                    control regulations, and statutes that                  EPA is not proposing to approve or                     approved element (B) for the 2010 NO2
                                                    have been previously approved by the                    disapprove any existing state rules with               NAAQS based on Colorado’s
                                                    EPA and incorporated into the Colorado                  regard to director’s discretion or                     commitment to install and operate a
                                                    SIP can be found at 40 CFR 52.320.                      variance provisions. A number of states                second near-road NO2 monitoring site
                                                    VI. Analysis of the State Submittals                    have such provisions that are contrary                 no later than December 31, 2015. In a
                                                                                                            to the CAA and to EPA guidance (52 FR                  letter dated February 17, 2016
                                                      1. Emission limits and other control                  45109, Nov. 24, 1987), and the agency                  (contained within this docket), the
                                                    measures: Section 110(a)(2)(A) requires                 plans to take action in the future to                  Colorado Air Pollution Control Division
                                                    that SIPs include enforceable emission                  address such state regulations. In the                 notified the EPA that the second near-
                                                    limitations and other control measures,                 meantime, the EPA encourages any state                 road site in Denver became operational
                                                    means, or techniques (including                         having a director’s discretion or                      on October 1, 2015, thus satisfying the
                                                    economic incentives such as fees,                       variance provision contrary to the CAA                 requirements of 40 CFR 58.10(a)(5)(iv).
                                                    marketable permits, and auctions of                     and EPA guidance to take steps to                         We find Colorado’s SIP adequate for
                                                    emissions rights), as well as schedules                 correct the deficiency as soon as                      the ambient air quality monitoring and
                                                    and timetables for compliance as may be
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                                                                                                            possible.                                              data system requirements for the 2010
                                                    necessary or appropriate to meet the
                                                    applicable requirements of this Act.                      As a final clarification, in this action
                                                                                                                                                                     2 Steven Herman, Assistant Administrator for
                                                      Colorado’s infrastructure SIP                         the EPA is also not proposing to                       Enforcement and Compliance Assurance, and
                                                    submissions identify existing EPA-                      approve or disapprove any existing state               Robert Perciasepe, Assistant Administrator for Air
                                                    approved SIP provisions limiting                        provision with regard to excess                        and Radiation, Memorandum to the EPA Air
                                                                                                            emissions during SSM operations at a                   Division Directors, ‘‘State Implementation Plans
                                                    emissions of relevant pollutants. The                                                                          (SIPs): Policy Regarding Emissions During
                                                    State references a variety of SIP-                      facility. A number of states have SSM                  Malfunctions, Startup, and Shutdown’’ (Sep. 20,
                                                    approved Colorado AQCC regulations                      provisions that are contrary to the CAA                1999).



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                                                    26002                     Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules

                                                    SO2 and 2012 PM2.5 NAAQS, and                           infrastructure SIP for the 2010 SO2 and                based on emissions of pollutants other
                                                    therefore propose to approve the                        2012 PM2.5 NAAQS with respect to the                   than GHGs. Step 2 applied to sources
                                                    infrastructure SIP for the 2010 SO2 and                 general requirement in section                         that emitted only GHGs above the
                                                    2012 PM2.5 NAAQS for this element.                      110(a)(2)(C) to include a PSD program in               thresholds triggering the requirement to
                                                       3. Program for enforcement of control                the SIP that covers all regulated                      obtain a PSD permit. The amended
                                                    measures: Section 110(a)(2)(C) requires                 pollutants including greenhouse gases                  judgment preserves, without the need
                                                    SIPs to ‘‘include a program to provide                  (GHGs).                                                for additional rulemaking by the EPA,
                                                    for the enforcement of the measures                        In addition to these requirements,                  the application of the BACT
                                                    described in subparagraph (A), and                      there are four other revisions to the                  requirement to GHG emissions from
                                                    regulation of the modification and                      Colorado SIP that are necessary to meet                Step 1 or ‘‘anyway’’ sources.3 With
                                                    construction of any stationary source                   the requirements of infrastructure                     respect to Step 2 sources, the D.C.
                                                    within the areas covered by the plan as                 element 110(a)(2)(C). These four                       Circuit’s amended judgment vacated the
                                                    necessary to assure NAAQS are                           revisions are related to (1) the Ozone                 regulations at issue in the litigation,
                                                    achieved, including a permit program as                 Implementation NSR Update (November                    including 40 CFR 51.166(b)(48)(v), ‘‘to
                                                    required in parts C and D.’’                            29, 2005, 70 FR 71612); (2) the                        the extent they require a stationary
                                                       To generally meet the requirements of                ‘‘Prevention of Significant Deterioration              source to obtain a PSD permit if
                                                    section 110(a)(2)(C), the State is                      and Title V Greenhouse Gas Tailoring                   greenhouse gases are the only pollutant
                                                    required to have SIP-approved PSD,                      Rule’’ (June 3, 2010, 75 FR 31514); (3)                (i) that the source emits or has the
                                                    nonattainment NSR, and minor NSR                        the NSR PM2.5 Rule (May 16, 2008, 73                   potential to emit above the applicable
                                                    permitting programs adequate to                         FR 28321); and (4) the final rulemaking                major source thresholds, or (ii) for
                                                    implement the 2010 SO2 and 2012 PM2.5                   entitled ‘‘Prevention of Significant                   which there is a significant emission
                                                    NAAQS. As explained elsewhere in this                   Deterioration (PSD) for Particulate                    increase from a modification.’’
                                                    action, the EPA is not evaluating                       Matter Less Than 2.5 Micrometers                          The EPA is planning to take
                                                    nonattainment related provisions, such                  (PM2.5)—Increments, Significant Impact                 additional steps to revise the federal
                                                    as the nonattainment NSR program                        Levels (SILs) and Significant Monitoring               PSD rules in light of the Supreme Court
                                                    required by part D of the Act. The EPA                  Concentration (SMC)’’ (75 FR 64864,                    and subsequent D.C. Circuit opinion.
                                                    is evaluating the State’s PSD program as                Oct. 20, 2010).                                        Some states have begun to revise their
                                                    required by part C of the Act, and the                     On January 9, 2012 (77 FR 1027), we                 existing SIP-approved PSD programs in
                                                    State’s minor NSR program as required                   approved revisions to Colorado’s PSD                   light of these court decisions, and some
                                                    by 110(a)(2)(C).                                        program that addressed the PSD                         states may prefer not to initiate this
                                                                                                            requirements of the Phase 2 Ozone                      process until they have more
                                                    Enforcement of Control Measures
                                                                                                            Implementation Rule promulgated on                     information about the planned revisions
                                                    Requirement
                                                                                                            November 29, 2005 (70 FR 71612). As a                  to the EPA’s PSD regulations. The EPA
                                                      The State’s submissions for the 2010                  result, the approved Colorado PSD                      is not expecting states to have revised
                                                    SO2 and 2012 PM2.5 infrastructure                       program meets the current requirements                 their PSD programs in anticipation of
                                                    requirement cite a variety of SIP-                      for ozone.                                             the EPA’s planned actions to revise its
                                                    approved Colorado AQCC regulations                         With respect to GHGs, on June 23,                   PSD program rules in response to the
                                                    that provide for enforcement of                         2014, the United States Supreme Court                  court decisions.
                                                    emission limits and control measures.                   addressed the application of PSD                          The EPA has determined that
                                                    These include Regulation 1,                             permitting requirements to GHG                         Colorado’s SIP is sufficient to satisfy
                                                    Particulates, Smokes, Carbon Monoxide,                  emissions. Utility Air Regulatory Group                elements (C), (D)(i)(II), and (J) with
                                                    and Sulfur Dioxides; Regulation 3,                      v. Environmental Protection Agency,                    respect to GHGs, because the PSD
                                                    Stationary Source Permitting and Air                    134 S.Ct. 2427 (2014). The Supreme                     permitting program previously
                                                    Pollution Emission Notice                               Court held that the EPA may not treat                  approved by the EPA into the SIP
                                                    Requirements; Regulation 4,                             GHGs as an air pollutant for purposes of               continues to require that PSD permits
                                                    Woodburning Controls; Regulation 7,                     determining whether a source is a major                issued to ‘‘anyway sources’’ contain
                                                    Control of Ozone via Ozone Precursors                   source required to obtain a PSD permit.                limitations on GHG emissions based on
                                                    and Nitrogen Oxides; Regulation 11,                     The Court also held that the EPA could                 the application of BACT. The EPA most
                                                    Motor Vehicle Inspection; Regulation                    continue to require that PSD permits,                  recently approved revisions to
                                                    16, Street Sanding and Sweeping; and                    otherwise required based on emissions                  Colorado’s PSD program on January 25,
                                                    Common Provisions Regulation.                           of pollutants other than GHGs, (anyway                 2016 (81 FR 3963). The approved
                                                                                                            sources) contain limitations on GHG                    Colorado PSD permitting program still
                                                    PSD Requirements                                        emissions based on the application of                  contains some provisions regarding Step
                                                      With respect to elements (C) and (J),                 Best Available Control Technology                      2 sources that are no longer necessary in
                                                    the EPA interprets the CAA to require                   (BACT).                                                light of the Supreme Court decision and
                                                    each state to make an infrastructure SIP                   In accordance with the Supreme                      D.C. Circuit’s amended judgment. But
                                                    submission for a new or revised NAAQS                   Court decision, on April 10, 2015, the                 the presence of these provisions in the
                                                    that demonstrates that the air agency                   U.S. Court of Appeals for the District of              previously-approved plan does not
                                                    has a complete PSD permitting program                   Columbia Circuit (the D.C. Circuit) in                 render the infrastructure SIP submission
                                                    meeting the current requirements for all                Coalition for Responsible Regulation v.                inadequate to satisfy Elements (C),
                                                    regulated NSR pollutants; this                          EPA, 606 F. App’x. 6, at *7–8 (D.C. Cir.               (D)(i)(II) and (J). The SIP contains the
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                                                    demonstration will also satisfy the                     April 10, 2015), issued an amended                     currently necessary PSD requirements
                                                    requirements of element (D)(i)(II). To                  judgment vacating the regulations that                 for applying the BACT requirement to
                                                    meet this requirement, Colorado cited                   implemented Step 2 of the EPA’s PSD                    greenhouse gas emissions from ‘‘anyway
                                                    SIP approved AQCC Regulation 3                          and Title V Greenhouse Gas Tailoring                   sources.’’ And the application of those
                                                    Concerning Major Stationary Source                      Rule, but not the regulations that                     requirements is not impeded by the
                                                    New Source Review and Prevention of                     implement Step 1 of that rule. Step 1 of
                                                    Significant Deterioration. The EPA is                   the Tailoring Rule covers sources that                   3 See 77 FR 41066 (July 12, 2012) (rulemaking for

                                                    proposing to approve Colorado’s                         are required to obtain a PSD permit                    definition of ‘‘anyway’’ sources).



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                                                                              Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules                                            26003

                                                    presence of other previously approved                   Implementation rule also does not affect               2003). Since approval of the minor NSR
                                                    provisions regarding the permitting of                  the EPA’s action on the present                        program, the State and the EPA have
                                                    Step 2 sources. Accordingly, the                        infrastructure action. The EPA                         relied on the program to ensure that
                                                    Supreme Court decision and subsequent                   interprets the Act to exclude                          new and modified sources not captured
                                                    D.C. Circuit judgment do not prevent                    nonattainment area requirements,                       by the major NSR permitting programs
                                                    the EPA’s approval of Colorado’s                        including requirements associated with                 do not interfere with attainment and
                                                    infrastructure SIP as to the requirements               a nonattainment NSR program, from                      maintenance of the NAAQS.
                                                    of Elements (C), (D)(i)(II) prong 3, and                infrastructure SIP submissions due three                  The EPA is proposing to approve
                                                    (J).                                                    years after adoption or revision of a                  Colorado’s infrastructure SIP for the
                                                       Finally, we evaluate the PSD program                 NAAQS. Instead, these elements are                     2010 SO2 and 2012 PM2.5 NAAQS with
                                                    with respect to current requirements for                typically referred to as nonattainment                 respect to the general requirement in
                                                    PM2.5. In particular, on May 16, 2008,                  SIP or attainment plan elements, which                 section 110(a)(2)(C) to include a
                                                    the EPA promulgated the rule,                           would be due by the dates statutorily                  program in the SIP that regulates the
                                                    ‘‘Implementation of the New Source                      prescribed under subpart 2 through 5                   modification and construction of any
                                                    Review Program for Particulate Matter                   under part D, extending as far as 10                   stationary source as necessary to assure
                                                    Less Than 2.5 Micrometers (PM2.5)’’ (73                 years following designations for some                  that the NAAQS are achieved.
                                                    FR 28321) and on October 20, 2010, the                  elements.                                                 4. Interstate transport: The interstate
                                                    EPA promulgated the rule, ‘‘Prevention                     The second PSD requirement for                      transport provisions in CAA section
                                                    of Significant Deterioration (PSD) for                  PM2.5 is contained in the EPA’s October                110(a)(2)(D)(i) (also called ‘‘good
                                                    Particulate Matter Less Than 2.5                        20, 2010 rule, ‘‘Prevention of Significant             neighbor’’ provisions) require each state
                                                    Micrometers (PM2.5)—Increments,                         Deterioration (PSD) for Particulate                    to submit a SIP prohibiting emissions
                                                    Significant Impact Levels (SILs) and                    Matter Less Than 2.5 Micrometers                       that will have certain adverse air quality
                                                    Significant Monitoring Concentration                    (PM2.5)—Increments, Significant Impact                 effects in other states. CAA section
                                                    (SMC)’’ (75 FR 64864). The EPA regards                  Levels (SILs) and Significant Monitoring               110(a)(2)(D)(i) identifies four distinct
                                                    adoption of these PM2.5 rules as a                      Concentration (SMC)’’ (75 FR 64864).                   elements (or prongs) related to the
                                                    necessary requirement when assessing a                  The EPA regards adoption of the PM2.5                  impacts of air pollutants transported
                                                    PSD program for the purposes of                         increments as a necessary requirement                  across state lines. The two prongs under
                                                    element (C).                                            when assessing a PSD program for the                   section 110(a)(2)(D)(i)(I) require SIPs to
                                                       On January 4, 2013, the U.S. Court of                purposes of element (C).                               contain adequate provisions to prohibit
                                                    Appeals, in Natural Resources Defense                      On May 11, 2012, the State submitted                any source or other type of emissions
                                                    Council v. EPA, 706 F.3d 428 (D.C. Cir.),               revisions to Regulation 3 that adopted                 activity within the state from emitting
                                                    remanded the EPA’s 2007 and 2008                        all elements of the 2008 Implementation                air pollutants that will (prong 1)
                                                    rules implementing the 1997 PM2.5                       Rule and the 2010 PM2.5 Increment                      contribute significantly to
                                                    NAAQS. The court ordered the EPA to                     Rule. However, the submittal contained                 nonattainment in any other state with
                                                    ‘‘repromulgate these rules pursuant to                  a definition of Major Source Baseline                  respect to any such national primary or
                                                    Subpart 4 consistent with this opinion.’’               Date which was inconsistent with 40                    secondary NAAQS or (prong 2) interfere
                                                    Id. at 437. Subpart 4 of part D, Title 1                CFR 51.166(b)(14)(i). On May 13, 2013,                 with maintenance by any other state
                                                    of the CAA establishes additional                       the State submitted revisions to                       with respect to the same NAAQS. The
                                                    provisions for PM nonattainment areas.                  Regulation 3 which incorporate the                     two prongs under section
                                                       The 2008 implementation rule                         definition of Major Source Baseline Date               110(a)(2)(D)(i)(II) require SIPs to contain
                                                    addressed by the court decision,                        which was consistent with 40 CFR                       adequate provisions to prohibit
                                                    ‘‘Implementation of New Source Review                   51.166(b)(14)(i). These submitted                      emissions that will interfere with
                                                    (NSR) Program for Particulate Matter                    revisions make Colorado’s PSD program                  measures required to be included in the
                                                    Less Than 2.5 Micrometers (PM2.5)’’ (73                 up to date with respect to current                     applicable implementation plan for any
                                                    FR 28321, May 16, 2008), promulgated                    requirements for PM2.5. The EPA                        other state under part C (prong 3) to
                                                    NSR requirements for implementation                     approved the necessary portions of                     prevent significant deterioration of air
                                                    of PM2.5 in nonattainment areas                         Colorado’s May 11, 2012 and May 13,                    quality or (prong 4) to protect visibility.
                                                    (nonattainment NSR) and attainment/                     2013 submissions which incorporate the                    In this action, the EPA is addressing
                                                    unclassifiable areas (PSD). As the                      requirements of the 2008 PM2.5                         the 2010 SO2 and 2012 PM2.5NAAQS
                                                    requirements of Subpart 4 only pertain                  Implementation Rule and the 2010                       with regard to prongs 3 (interference
                                                    to nonattainment areas, the EPA does                    PM2.5 Increment Rule on September 23,                  with PSD) and 4 (interference with
                                                    not consider the portions of the 2008                   2013 (78 FR 58186). Colorado’s SIP-                    visibility protection) of 110(a)(2)(D)(i).
                                                    Implementation rule that address                        approved PSD program meets current                     We are not addressing prongs 1 and 2
                                                    requirements for PM2.5 attainment and                   requirements for PM2.5. The EPA                        for the 2010 SO2 and 2012 PM2.5
                                                    unclassifiable areas to be affected by the              therefore is proposing to approve                      NAAQS in this action. These prongs
                                                    decision. Moreover, the EPA does not                    Colorado’s SIP for the 2010 SO2 and                    will be addressed in a later rulemaking.
                                                    anticipate the need to revise any PSD                   PM2.5 NAAQS with respect to the
                                                    requirements promulgated in the 2008                                                                           A. Evaluation of Interference With
                                                                                                            requirement in section 110(a)(2)(C) to
                                                    Implementation rule in order to comply                                                                         Measures To Prevent Significant
                                                                                                            include a permit program in the SIP as
                                                    with the court’s decision. Accordingly,                                                                        Deterioration (PSD)
                                                                                                            required by part C of the Act.
                                                    the EPA’s proposed approval of                                                                                   The PSD portion of section
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                                                    Colorado’s infrastructure SIP as to                     Minor NSR                                              110(a)(2)(D)(i)(II) may be met by a state’s
                                                    elements C or J with respect to the PSD                   The State has a SIP-approved minor                   confirmation in an infrastructure SIP
                                                    requirements promulgated by the 2008                    NSR program, adopted under section                     submission that new major sources and
                                                    Implementation rule does not conflict                   110(a)(2)(C) of the Act. The minor NSR                 major modifications in the state are
                                                    with the court’s opinion.                               program is found in Regulation 3 of the                subject to a comprehensive EPA-
                                                       The court’s decision with respect to                 Colorado SIP, and was originally                       approved PSD permitting program in
                                                    the nonattainment NSR requirements                      approved by the EPA as Regulation 3 of                 the SIP that applies to all regulated NSR
                                                    promulgated by the 2008                                 the SIP (see 68 FR 37744, June 25,                     pollutants and that satisfies the


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                                                    26004                     Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules

                                                    requirements of the EPA’s PSD                           satisfies the visibility requirement                   areas.9 Colorado accepted and
                                                    implementation rule(s).4 As noted in                    section of 110(a)(2)(D)(i)(II).6                       incorporated the WRAP-developed
                                                    Section VI.3 of this proposed action,                      Colorado submitted a regional haze                  visibility modeling into its regional haze
                                                    Colorado has such a program, and the                    SIP to EPA on May 25, 2011. The EPA                    SIP, and the SIP included the controls
                                                    EPA is therefore proposing to approve                   approved Colorado’s regional haze SIP                  assumed in the modeling. For these
                                                    Colorado’s SIP for the 2010 SO2 and                     on December 31, 2012 (77 FR 76871). In                 reasons, the EPA determined that
                                                    2012 PM2.5 NAAQS with respect to the                    early 2013, WildEarth Guardians and                    Colorado had satisfied the Regional
                                                    requirement in section 110(a)(2)(C) to                  the National Parks Conservation                        Haze Rule requirements for consultation
                                                    include a permit program in the SIP as                                                                         and included controls in the SIP
                                                                                                            Association (NPCA) filed separate
                                                    required by part C of the Act.                                                                                 sufficient to address the relevant
                                                                                                            petitions for reconsideration of certain
                                                                                                                                                                   requirements related to impacts on Class
                                                      As stated in the 2013 Guidance on                     aspects of the EPA’s approval of the
                                                                                                                                                                   I areas in other states. Therefore, we are
                                                    Infrastructure SIP Elements, in-state                   Colorado’s regional haze SIP.7 After
                                                                                                                                                                   proposing to approve the Colorado SIP
                                                    sources not subject to PSD for any one                  these petitions were filed, a settlement               as meeting the requirements of prong 4
                                                    or more of the pollutants subject to                    agreement was entered into concerning                  of CAA section 110(a)(2)(D)(i) for the
                                                    regulation under the CAA because they                   the Craig Generating Station by the                    2010 SO2 and 2012 PM2.5 NAAQS.
                                                    are in a nonattainment area for a                       petitioners, the EPA, CDPHE, and Tri-                     5. Interstate and International
                                                    NAAQS related to those particular                       State Generation and Transmission                      transport provisions: CAA section
                                                    pollutants may also have the potential                  Association, Inc., and filed with the                  110(a)(2)(D)(ii) requires SIPs to include
                                                    to interfere with PSD in an attainment                  court on July 10, 2014.8 In accordance                 provisions ensuring compliance with
                                                    or unclassifiable area of another state.                with the settlement agreement, the EPA                 the applicable requirements of CAA
                                                    One way a state may satisfy prong 3                     requested and the court granted a                      sections 126 and 115 (relating to
                                                    with respect to these sources is by citing              voluntary remand to the EPA of the                     interstate and international pollution
                                                    EPA-approved nonattainment NSR                          portions of the EPA’s December 2012                    abatement). Specifically, CAA section
                                                    provisions addressing any pollutants for                regional haze SIP approval that related                126(a) requires new or modified major
                                                    which the state has designated                          to Craig Unit 1. Because the additional                sources to notify neighboring states of
                                                    nonattainment areas. Colorado has a                     controls at the Craig facility will be                 potential impacts from the source.
                                                    SIP-approved nonattainment NSR                          implemented through a revision to the                  Sections 126(b) and (c) pertain to
                                                    program that ensures regulation of major                Colorado regional haze SIP that the EPA                petitions by affected states to the
                                                    sources and major modifications in                      has not yet acted on, the EPA cannot                   Administrator of the U.S. EPA
                                                    nonattainment areas.5                                   rely on this approval as automatically                 (Administrator) regarding sources
                                                                                                            satisfying prong 4.                                    violating the ‘‘interstate transport’’
                                                      As Colorado’s SIP meets PSD
                                                    requirements for all regulated NSR                         The EPA does, however, consider                     provisions of section 110(a)(2)(D)(i).
                                                                                                            other aspects of our approval of                       Section 115 similarly pertains to
                                                    pollutants, and contains a fully
                                                                                                            Colorado’s regional haze SIP to be                     international transport of air pollution.
                                                    approved nonattainment NSR program,                                                                               As required by 40 CFR
                                                    the EPA is proposing to approve the                     sufficient to satisfy this requirement.
                                                                                                            Specifically, the EPA found that                       51.166(q)(2)(iv), Colorado’s SIP-
                                                    infrastructure SIP submission as                                                                               approved PSD program requires notice
                                                    meeting the applicable requirements of                  Colorado met its 40 CFR 51.308(d)(3)(ii)
                                                                                                            requirements to include in its regional                to states whose lands may be affected by
                                                    element 3 of section 110(a)(2)(D)(i) for                                                                       the emissions of sources subject to
                                                    the 2010 SO2 and 2012 PM2.5 NAAQS.                      haze SIP all measures necessary to (1)
                                                                                                            obtain its share of the emission                       PSD.10 This suffices to meet the notice
                                                    B. Evaluation of Interference With                      reductions needed to meet the                          requirement of section 126(a).
                                                    Measures To Protect Visibility                          reasonable progress goals for any other                   Colorado has no pending obligations
                                                                                                            state’s Class I area to which Colorado                 under sections 126(c) or 115(b);
                                                       To determine whether the CAA                         causes or contributes to visibility                    therefore, its SIP currently meets the
                                                    section 110(a)(2)(D)(i)(II) requirement                 impairment, and; (2) ensure it has                     requirements of those sections. In
                                                    for visibility protection is satisfied, the             included all measures needed to achieve                summary, the SIP satisfies the
                                                    SIP must address the potential for                      its apportionment of emission reduction                requirements of CAA section
                                                    interference with visibility protection                                                                        110(a)(2)(D)(ii) for the 2010 SO2 and
                                                                                                            obligations agreed upon through a
                                                    caused by the pollutant (including                                                                             2012 PM2.5 NAAQS.
                                                                                                            regional planning process. Colorado
                                                    precursors) to which the new or revised                                                                           6. Adequate resources: Section
                                                                                                            participated in a regional planning
                                                    NAAQS applies. An approved regional                                                                            110(a)(2)(E)(i) requires states to provide
                                                                                                            process with the Western Regional Air
                                                    haze SIP that fully meets the regional                                                                         ‘‘necessary assurances that the State
                                                                                                            Partnership (WRAP). In the regional
                                                    haze requirements in 40 CFR 51.308                                                                             [. . .] will have adequate personnel,
                                                                                                            planning process, Colorado analyzed the
                                                    satisfies the 110(a)(2)(D)(i)(II)                                                                              funding, and authority under State law
                                                                                                            WRAP modeling and determined that
                                                    requirement for visibility protection as                                                                       to carry out [the SIP] (and is not
                                                                                                            emissions from the State do not
                                                    it ensures that emissions from the state                                                                       prohibited by any provision of federal or
                                                                                                            significantly impact other states’ Class I
                                                    will not interfere with measures                                                                               state law from carrying out the SIP or
                                                    required to be included in other state                                                                         portion thereof).’’ Section
                                                                                                              6 See 2013 Guidance on Infrastructure SIP

                                                    SIPs to protect visibility. In the absence              Elements. In addition, EPA approved the visibility
                                                                                                                                                                   110(a)(2)(E)(ii) also requires each state
                                                                                                                                                                   to ‘‘comply with the requirements
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                                                    of a fully approved regional haze SIP, a                requirement of 110(a)(2)(D)(i) for the 1997 Ozone
                                                    state can still make a demonstration that               and PM2.5 NAAQS for Colorado before taking action      respecting State boards’’ under CAA
                                                                                                            on the State’s regional haze SIP. 76 FR 22036 (April   section 128. Section 110(a)(2)(E)(iii)
                                                                                                            20, 2011).
                                                       4 See 2013 Guidance on Infrastructure SIP              7 WildEarth Guardians filed its petition on
                                                                                                                                                                   requires states to provide ‘‘necessary
                                                    Elements.                                               February 25, 2013, and NPCA filed its petition on      assurances that, where the State has
                                                       5 See Colorado Regulation No. 3, Part D, Section     March 1, 2013.
                                                                                                                                                                     9 See our proposed rulemaking on the Colorado
                                                    V, which was most recently approved by EPA in a           8 This settlement agreement is included in the

                                                    final rulemaking dated January 25, 2016 (81 FR          docket for this action; see also Proposed Settlement   regional Haze SIP, 77 FR 18052, March 26, 2012.
                                                    3963).                                                  Agreement, 79 FR 47636 (Aug. 14, 2014).                  10 See Colorado Regulation 3, Part D. IV.A.1.




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                                                                              Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules                                                 26005

                                                    relied on a local or regional government,                conflicts of interest. Details on how this            submit a comprehensive emissions
                                                    agency, or instrumentality for the                       portion of the Procedural Rules meets                 inventory every three years and to
                                                    implementation of any [SIP] provision,                   the requirements of section 128 are                   report emissions for certain larger
                                                    the State has responsibility for ensuring                provided in our January 4, 2012                       sources annually through the EPA’s
                                                    adequate implementation of such [SIP]                    proposal notice (77 FR 235). In our                   online Emissions Inventory System.
                                                    provision.’’                                             April 10, 2012 action, we                             States report emissions data for the six
                                                      a. Sub-elements (i) and (iii): Adequate                correspondingly approved Colorado’s                   criteria pollutants and their associated
                                                    personnel, funding, and legal authority                  infrastructure SIP for the 1997 ozone                 precursors—nitrogen oxides, sulfur
                                                    under state law to carry out its SIP, and                NAAQS for element (E)(ii). Colorado’s                 dioxide, ammonia, lead, carbon
                                                    related issues.                                          SIP continues to meet the requirements                monoxide, particulate matter, and
                                                      Colorado law, specifically the                         of section 110(a)(2)(E)(ii), and we                   volatile organic compounds. Many
                                                    Colorado Air Pollution Prevention and                    propose to approve the infrastructure                 states also voluntarily report emissions
                                                    Control Act (APPCA) Sections 25–7–                       SIP for the 2010 SO2 and 2012 PM2.5                   of hazardous air pollutants. Colorado
                                                    105, 25–7–111, 42–4–301 to 42–4–316,                     NAAQS for this element.                               made its latest update to the NEI on
                                                    42–4–414 and Article 7 of Title 25,                         7. Stationary source monitoring                    January 18, 2016. The EPA compiles the
                                                    provides adequate authority for the                      system: Section 110(a)(2)(F) requires ‘‘(i)           emissions data, supplementing it where
                                                    State of Colorado APCD and AQCC to                       the installation, maintenance, and                    necessary, and releases it to the public
                                                    carry out its SIP obligations with respect               replacement of equipment, and the                     at http://www.epa.gov/ttn/chief/
                                                    to the 2010 SO2 and 2012 PM2.5                           implementation of other necessary                     eiinformation.html.
                                                    NAAQS. The State receives Sections                       steps, by owners or operators of                         Based on the analysis above, we
                                                    103 and 105 grant funds through its                      stationary sources to monitor emissions               propose to approve the Colorado’s SIP
                                                    Performance Partnership Grant along                      from such sources; (ii) periodic reports              as meeting the requirements of CAA
                                                    with required state matching funds to                    on the nature and amounts of emissions                section 110(a)(2)(F) for the 2010 SO2
                                                    provide funding necessary to carry out                   and emissions-related data from such                  and 2012 PM2.5 NAAQS.
                                                    Colorado’s SIP requirements. The                         sources; and (iii) correlation of such                   8. Emergency powers: Section
                                                    regulations cited by Colorado in its                     reports by the state agency with any                  110(a)(2)(G) of the CAA requires
                                                    certifications, which are contained                      emission limitations or standards                     infrastructure SIPs to ‘‘provide for
                                                    within this docket, also provide the                     established pursuant to [the Act], which              authority comparable to that in [CAA
                                                    necessary assurances that the State has                  reports shall be available at reasonable              section 303 12] and adequate
                                                    responsibility for adequate                              times for public inspection.’’                        contingency plans to implement such
                                                    implementation of SIP provisions by                         The Colorado AQCC Regulations                      authority.’’
                                                    local governments. Therefore, we                         listed in the State’s certifications                     Under CAA section 303, the
                                                                                                             (Regulations 1, 3, 7, and Common                      Administrator has authority to bring suit
                                                    propose to approve Colorado’s SIP as
                                                                                                             Provisions Regulation) and contained                  to immediately restrain an air pollution
                                                    meeting the requirements of section
                                                                                                             within this docket provide authority to               source that presents an imminent and
                                                    110(a)(2)(E)(i) and (E)(iii) for the 2010
                                                                                                             establish a program for measurements                  substantial endangerment to public
                                                    SO2 and 2012 PM2.5 NAAQS.
                                                                                                             and testing of sources, including                     health or welfare, or the environment. If
                                                    b. Sub-element (ii): State Boards                        requirements for sampling and testing.                such action may not practicably ensure
                                                      Section 110(a)(2)(E)(ii) requires each                 Air Pollutant Emission Notice (APEN)                  prompt protection, then the
                                                    state’s SIP to contain provisions that                   requirements are defined in Regulation                Administrator has the authority to issue
                                                    comply with the requirements of section                  3 and requires stationary sources to                  temporary administrative orders to
                                                                                                             report their emissions on a regular basis             protect the public health or welfare, or
                                                    128 of the CAA. That provision contains
                                                                                                             through APENs. Regulation 3 also                      the environment, and such orders can
                                                    two explicit requirements: (i) That any
                                                                                                             requires that monitoring be performed                 be extended if the EPA subsequently
                                                    board or body that approves permits or
                                                                                                             in accordance with EPA-accepted                       files a civil suit. APPCA Sections 25–7–
                                                    enforcement orders under the CAA shall
                                                                                                             procedures, and record keeping of air                 112 and 25–7–113 provide APCD with
                                                    have at least a majority of members who
                                                                                                             pollutants. Additionally, Regulation 3                general emergency authority comparable
                                                    represent the public interest and do not
                                                                                                             provides for a permitting program that                to that in section 303 of the Act.13
                                                    derive a significant portion of their
                                                                                                             establishes emission limitations and                     States must also have adequate
                                                    income from persons subject to such
                                                                                                             standards. Emissions must be reported                 contingency plans adopted into their
                                                    permits and enforcement orders; and (ii)
                                                                                                             by sources to the State for correlation               SIP to implement the air agency’s
                                                    that any potential conflicts of interest by
                                                                                                             with applicable emissions limitations                 emergency episode authority (as
                                                    members of such board or body or the                     and standards. Monitoring may be
                                                    head of an executive agency with                                                                               discussed above). This can be met can
                                                                                                             required for both construction and                    by submitting a plan that meets the
                                                    similar powers be adequately                             operating permits.
                                                    disclosed 11.                                                                                                  applicable requirements of 40 CFR part
                                                                                                                Additionally, Colorado is required to
                                                      On April 10, 2012 (77 FR 21453) the                                                                          51, subpart H for the relevant NAAQS
                                                                                                             submit emissions data to the EPA for
                                                    EPA approved the Procedural Rules,                       purposes of the National Emissions                       12 Discussion of the requirements for meeting
                                                    Section 1.11.0, as adopted by the AQCC                   Inventory (NEI), which is the EPA’s                   CAA section 303 is provided in our notice of
                                                    on January 16, 1998, into the Colorado                   central repository for air emissions data.            proposed rulemaking: Promulgation of State
                                                    SIP as meeting the requirements of                       The EPA published the Air Emissions                   Implementation Plan Revisions; Infrastructure
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                                                    section 128 of the Act. Section 1.11.0                   Reporting Rule (AERR) on December 5,                  Requirements for the 1997 and 2006 PM2.5, 2008
                                                    specifies certain requirements regarding                                                                       Lead, 2008 Ozone, and 2010 NO2 National Ambient
                                                                                                             2008, modifying the requirements for                  Air Quality Standards; South Dakota (79 FR 71040,
                                                    the composition of the AQCC and                          collecting and reporting air emissions                Dec. 1, 2014) under ‘‘VI. Analysis of State
                                                    disclosure by its members of potential                   data (73 FR 76539). The AERR                          Submittals, 8. Emergency powers.’’
                                                                                                                                                                      13 See our proposed rulemaking at 80 FR 3098
                                                      11 The EPA’s proposed rule notice (79 FR 71040,
                                                                                                             shortened the time states had to report
                                                                                                                                                                   (June 1, 2015), section VI.8 for a complete
                                                    Dec. 1, 2014) includes a discussion of the legislative
                                                                                                             emissions data from 17 to 12 months,                  discussion on how APPCA Sections 25–7–112 and
                                                    history of how states could meet the requirements        giving states one calendar year to submit             35–7–113 provide authority comparable to that in
                                                    of CAA section 128.                                      emissions data. All states are required to            CAA section 303.



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                                                    26006                     Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules

                                                    if the NAAQS is covered by those                           As discussed above, the State has a                 emission control measures be evaluated
                                                    regulations. The Denver Emergency                       SIP-approved PSD program that                          against economic, environmental,
                                                    Episode Plan (applicable to the Denver                  incorporates by reference the federal                  energy and other impacts, and indirectly
                                                    metropolitan area) addresses ozone,                     program at 40 CFR 52.21. The EPA has                   authorizes modeling activities. Colorado
                                                    particulate matter, and carbon                          further evaluated Colorado’s SIP                       also has broad authority to conduct
                                                    monoxide, and satisfies the                             approved PSD program in this proposed                  modeling and submit supporting data to
                                                    requirements of 40 CFR part 51, subpart                 action under element (C) and                           the EPA to satisfy federal nonattainment
                                                    H (See 74 FR 47888). Furthermore,                       determined the State has satisfied the                 area requirements (25–7–105, 25–7–
                                                    Colorado is classified as Priority III for              requirements of element 110(a)(2)(C), as               205.1, and 25–7–301, C.R.S.). The State
                                                    SO2 and accordingly is not required to                  noted above. Therefore, the State has                  also has the authority to submit any
                                                    submit emergency episode contingency                    also satisfied the requirements of                     modeling data to the EPA on request
                                                    plans for SO2. Therefore, we propose                    element 110(a)(2)(J).                                  under the Colorado Open Records Act
                                                    approval of Colorado’s SIP as meeting                      Finally, with regard to the applicable              (24–72–201 to 24–72–309, C.R.S.).
                                                    the requirements of CAA section                         requirements for visibility protection,                   As a result, the SIP provides for the
                                                    110(a)(2)(G) for the 2010 SO2 and 2012                  the EPA recognizes states are subject to               air quality modeling that the
                                                    PM2.5 NAAQS.                                            visibility and regional haze program                   Administrator has prescribed.
                                                       9. Future SIP revisions: Section                     requirements under part C of the Act. In               Therefore, we propose to approve the
                                                    110(a)(2)(H) requires that SIPs provide                 the event of the establishment of a new                Colorado SIP as meeting the CAA
                                                    for revision of such plan: (i) ‘‘[f]rom                 NAAQS, however, the visibility and                     section 110(a)(2)(K) for the 2010 SO2
                                                    time to time as may be necessary to take                regional haze program requirements                     and 2012 PM2.5 NAAQS.
                                                    account of revisions of such national                   under part C do not change. Thus, we                      12. Permitting fees: Section
                                                    primary or secondary ambient air                        find that there are no applicable                      110(a)(2)(L) requires ‘‘the owner or
                                                    quality standard or the availability of                 visibility requirements under section                  operator of each major stationary source
                                                    improved or more expeditious methods                    110(a)(2)(J) when a new NAAQS                          to pay to the permitting authority, as a
                                                    of attaining such standard[;] and (ii)                  becomes effective.                                     condition of any permit required under
                                                    except as provided in paragraph (3)(C),                    Based on the above analysis, we                     this [Act], a fee sufficient to cover[:] (i)
                                                                                                            propose to approve the Colorado SIP as                 The reasonable costs of reviewing and
                                                    whenever the Administrator finds on
                                                                                                            meeting the requirements of CAA                        acting upon any application for such a
                                                    the basis of information available to the
                                                                                                            section 110(a)(2)(J) for the 2010 SO2 and              permit[;] and (ii) if the owner or
                                                    Administrator that the [SIP] is
                                                                                                            2012 PM2.5 NAAQS.                                      operator receives a permit for such
                                                    substantially inadequate to attain the                     11. Air quality and modeling/data:                  source, the reasonable costs of
                                                    [NAAQS] which it implements or to                       Section 110(a)(2)(K) requires each SIP to              implementing and enforcing the terms
                                                    otherwise comply with any additional                    provide for ‘‘(i) the performance of such              and conditions of any such permit (not
                                                    requirements under this [Act].’’                        air quality modeling as the                            including any court costs or other costs
                                                       The Colorado APPCA Sections 25–7–                    Administrator may prescribe for the                    associated with any enforcement
                                                    105(1)(a)(I) gives the AQCC sufficient                  purpose of predicting the effect on                    action), until such fee requirement is
                                                    authority to meet the requirements of                   ambient air quality of any emissions of                superseded with respect to such sources
                                                    110(a)(2)(H). Therefore, we propose to                  any air pollutant for which the                        by the Administrator’s approval of a fee
                                                    approve Colorado’s SIP as meeting the                   Administrator has established a                        program under [title] V.’’
                                                    requirements of CAA section                             [NAAQS]; and (ii) the submission, upon                    The State of Colorado requires the
                                                    110(a)(2)(H) for the 2010 SO2 and 2012                  request, of data related to such air                   owner or operator of a major stationary
                                                    PM2.5 NAAQS.                                            quality modeling to the Administrator.’’               source to pay the Division any fee
                                                       10. Consultation With government                        Colorado’s Regulation 3 Part A.VIII                 necessary to cover the reasonable costs
                                                    officials, public notification, PSD and                 (Technical Modeling and Monitoring                     of reviewing and acting upon any
                                                    visibility protection: Section 110(a)(2)(J)             Requirements) requires that estimates of               permit application. The collection of
                                                    requires that each SIP ‘‘meet the                       ambient air concentrations be based on                 fees is described in AQCC Regulation 3,
                                                    applicable requirements of section 121                  applicable air quality models approved                 Part A.
                                                    of this title (relating to consultation),               by the EPA. Final approval for                            We also note that the State has an
                                                    section 127 of this title (relating to                  Regulation 3 Part A.VIII became                        EPA-approved title V permit program
                                                    public notification), and part C of this                effective February 20, 1997 (62 FR                     (60 FR 4563, Jan. 24, 1995) that provides
                                                    subchapter (relating to PSD of air                      2910). Additionally, Regulation 3 Part                 for collection of permitting fees. Final
                                                    quality and visibility protection).’’                   D, Section VI.C. requires the Division to              approval of the title V operating permit
                                                       The State has demonstrated that it has               transmit to the Administrator of the EPA               program became effective October 16,
                                                    the authority and rules in place through                a copy of each permit application                      2000 (65 FR 49919). Interim approval of
                                                    its certifications (contained within this               relating to a major stationary source or               Colorado’s title V operating permit
                                                    docket) to provide a process of                         major modification subject to this                     program became effective February 23,
                                                    consultation with general purpose local                 regulation, and provide notice of every                1995 (60 FR 4563). As discussed in the
                                                    governments, designated organizations                   action related to the consideration of                 proposed interim approval of the title V
                                                    of elected officials of local governments               such permit.                                           program (59 FR 52123, October 14,
                                                    and any Federal Land Manager having                        Colorado has broad authority to                     1994), the State demonstrated that the
                                                    authority over federal land to which the                develop and implement an air quality                   fees collected were sufficient to
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                                                    SIP applies, consistent with the                        control program that includes                          administer the program.
                                                    requirements of CAA section 121.                        conducting air quality modeling to                        Therefore, based on the State’s
                                                    Furthermore, the EPA previously                         predict the effect on ambient air quality              experience in relying on the collection
                                                    addressed the requirements of CAA                       of any emissions of any air pollutant for              of fees as described in AQCC Regulation
                                                    section 127 for the Colorado SIP and                    which a NAAQS has been promulgated                     3, and the use of title V fees to
                                                    determined public notification                          and provide that modeling data to the                  implement and enforce PSD permits
                                                    requirements are appropriate (45 FR                     EPA. This broad authority can be found                 once they are incorporated into title V
                                                    53147, Aug. 11, 1980).                                  in 25–7–102, C.R.S., which requires that               permits, we propose to approve the


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                                                                              Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules                                                 26007

                                                    submissions as supplemented by the                      within this docket) meet the                           the State’s certifications as shown in
                                                    State for the 2010 SO2 and 2012 PM2.5                   requirements of CAA section                            Table 1. Elements we propose no action
                                                    NAAQS.                                                  110(a)(2)(M), so we propose to approve                 on are reflected in Table 2. A
                                                      13. Consultation/participation by                     Colorado’s SIP as meeting these                        comprehensive summary of
                                                    affected local entities: Section                        requirements for the 2010 SO2 and 2012                 infrastructure elements organized by the
                                                    110(a)(2)(M) requires states to ‘‘provide               PM2.5 NAAQS.                                           EPA’s proposed rule action are provided
                                                    for consultation and participation [in                                                                         in Table 1 and Table 2.
                                                    SIP development] by local political                     VII. What action is the EPA taking?
                                                    subdivisions affected by [the SIP].’’                     In this action, the EPA is proposing to
                                                      The statutory provisions cited in                     approve infrastructure elements for the
                                                    Colorado’s SIP submittals (contained                    2010 SO2 and 2012 PM2.5 NAAQS from

                                                     TABLE 1—LIST OF COLORADO INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO APPROVE
                                                                                                                           Proposed for approval

                                                    July 10, 2013 submittal—2010 SO2 NAAQS:
                                                      (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
                                                    December 1, 2015 submittal—2012 PM2.5 NAAQS:
                                                      (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).


                                                      TABLE 2—LIST OF COLORADO INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO TAKE NO
                                                                                                  ACTION ON
                                                                                                                        Proposed for no action
                                                                                                         (Revision to be made in separate rulemaking action)

                                                    July 13, 2013 submittal—2010 SO2 NAAQS:
                                                      (D)(i)(I) prongs 1 and 2.
                                                    December 1, 2015 submittal—2012 PM2.5 NAAQS:
                                                      (D)(i)(I) prongs 1 and 2.



                                                    VIII. Statutory and Executive Order                     in the Unfunded Mandates Reform Act                    specified by Executive Order 13175 (65
                                                    Reviews                                                 of 1995 (Pub. L. 104–4);                               FR 67249, November 9, 2000).
                                                       Under the CAA, the Administrator is                     • Does not have federalism                          List of Subjects in 40 CFR Part 52
                                                    required to approve a SIP submission                    implications as specified in Executive
                                                                                                            Order 13132 (64 FR 43255, Aug. 10,                       Environmental protection, Air
                                                    that complies with the provisions of the
                                                                                                            1999);                                                 pollution control, Carbon monoxide,
                                                    Act and applicable federal regulations
                                                                                                                                                                   Incorporation by reference,
                                                    (42 U.S.C. 7410(k), 40 CFR 52.02(a)).                      • Is not an economically significant                Intergovernmental relations,
                                                    Thus, in reviewing SIP submissions, the                 regulatory action based on health or                   Greenhouse gases, Lead, Nitrogen
                                                    EPA’s role is to approve state choices,                 safety risks subject to Executive Order                dioxide, Ozone, Particulate matter,
                                                    provided that they meet the criteria of                 13045 (62 FR 19885, April 23, 1997);                   Reporting and recordkeeping
                                                    the CAA. Accordingly, this proposed                        • Is not a significant regulatory action            requirements, Sulfur oxides, Volatile
                                                    action merely approves some state law                   subject to Executive Order 13211 (66 FR                organic compounds.
                                                    as meeting federal requirements and                     28355, May 22, 2001);
                                                    disapproves other state law because it                                                                           Authority: 42 U.S.C. 7401 et seq.
                                                                                                               • Is not subject to requirements of
                                                    does not meet federal requirements; this                section 12(d) of the National                            Dated: May 16, 2017.
                                                    proposed action does not impose                         Technology Transfer and Advancement                    Suzanne J. Bohan,
                                                    additional requirements beyond those                    Act of 1995 (15 U.S.C. 272 note) because               Acting Regional Administrator, Region 8.
                                                    imposed by state law. For that reason,                  application of those requirements would                [FR Doc. 2017–11574 Filed 6–5–17; 8:45 am]
                                                    this proposed action:                                   be inconsistent with the CAA; and,
                                                       • Is not a ‘‘significant regulatory
                                                                                                                                                                   BILLING CODE 6560–50–P

                                                    action’’ subject to review by the Office                   • Does not provide the EPA with the
                                                    of Management and Budget under                          discretionary authority to address, as
                                                                                                            appropriate, disproportionate human                    ENVIRONMENTAL PROTECTION
                                                    Executive Order 12866 (58 FR 51735,                                                                            AGENCY
                                                    Oct. 4, 1993);                                          health or environmental effects, using
                                                       • Does not impose an information                     practicable and legally permissible
                                                                                                                                                                   40 CFR Part 52
                                                    collection burden under the provisions                  methods, under Executive Order 12898
                                                    of the Paperwork Reduction Act (44                      (59 FR 7629, Feb. 16, 1994).                           [EPA–R08–OAR–2016–0709; FRL–9963–27–
                                                                                                               The SIP is not approved to apply on                 Region 8]
                                                    U.S.C. 3501 et seq.);
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                                                       • Is certified as not having a                       any Indian reservation land or in any
                                                                                                                                                                   Promulgation of State Implementation
                                                    significant economic impact on a                        other area where the EPA or an Indian
                                                                                                                                                                   Plan Revisions; Infrastructure
                                                    substantial number of small entities                    tribe has demonstrated that a tribe has
                                                                                                                                                                   Requirements for the 2010 SO2 and
                                                    under the Regulatory Flexibility Act (5                 jurisdiction. In those areas of Indian
                                                                                                                                                                   2012 PM2.5 National Ambient Air
                                                    U.S.C. 601 et seq.);                                    country, the rule does not have tribal
                                                                                                                                                                   Quality Standards; South Dakota
                                                       • Does not contain any unfunded                      implications and will not impose
                                                    mandate or significantly or uniquely                    substantial direct costs on tribal                     AGENCY:   Environmental Protection
                                                    affect small governments, as described                  governments or preempt tribal law as                   Agency.


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Document Created: 2017-06-06 06:21:53
Document Modified: 2017-06-06 06:21:53
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesWritten comments must be received on or before July 6, 2017.
ContactAbby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6563, [email protected]
FR Citation82 FR 25999 
CFR AssociatedEnvironmental Protection; Air Pollution Control; Carbon Monoxide; Incorporation by Reference; Intergovernmental Relations; Greenhouse Gases; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds

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