Approval and Promulgation of State Implementation Plans; State of Colorado; Interstate Transport of Pollution Revisions for the 1997 PM2.5, 21835-21847 [2011-9451]
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Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules
distributing royalties for this period. If not,
what would be a better alternative?
4. Is the disaggregation by type of service
proposed in § 370.4(f) (i.e., nonsubscription
transmission service, preexisting satellite
digital audio radio service, new subscription
service, or business establishment service)
sufficient to determine a reasonable proxy for
generating corresponding reports of use for
similar types of non-reporting services?
Is further disaggregation of some service
types, as currently referenced in 37 CFR Part
380 (e.g., disaggregation of nonsubscription
transmission services into commercial
webcasters, noncommercial webcasters,
broadcasters, or noncommercial educational
webcasters) desirable to determine a better
proxy for generating corresponding reports of
use for such non-reporting services? Would
this type of further disaggregation be
practicable? Would the benefits yielded by
such further disaggregation, if any, justify the
incremental costs of doing so?
5. Does the proposed regulatory language
in §§ 370.3(i) and 370.4(f) (i.e., ‘‘* * * service
has not provided a report of use required
under this section * * *’’) clearly encompass
both the failure of a service to provide reports
of use as well as instances where the service
files an unusable report of use?
SoundExchange’s petition is posted
on the Copyright Royalty Board Web
site at https://www.loc.gov/crb/3-24-11SoundExchange-petition-proxy.pdf.
List of Subjects
37 CFR Part 370
Copyright, Sound recordings.
37 CFR Part 382
Copyright, Digital audio
transmissions, Performance right, Sound
recordings.
Proposed Regulations
For the reasons set forth in the
preamble, the Copyright Royalty Judges
propose amending 37 CFR parts 370 and
382 as follows:
1. The authority citation for part 370
continues to read as follows:
Authority: 17 U.S.C. 112(e)(4), 114(f)(4)(A).
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2. Section 370.3 is amended by
adding new paragraph (i) to read as
follows:
*
*
*
*
(i) In any case in which a preexisting
subscription service has not provided a
report of use required under this section
for use of sound recordings under
section 112(e) or section 114 of title 17
of the United States Code, or both, prior
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*
*
*
*
*
(f) In any case in which a
nonsubscription transmission service,
preexisting satellite digital audio radio
service, new subscription service, or
business establishment service has not
provided a report of use required under
this section for use of sound recordings
under section 112(e) or section 114 of
title 17 of the United States Code, or
both, prior to January 1, 2010, reports of
use for the corresponding calendar year
filed by other services of the same type
shall serve as the reports of use for the
non-reporting service, solely for
purposes of distribution of any
corresponding royalties by the
Collective.
PART 382—RATES AND TERMS FOR
DIGITAL TRANSMISSIONS OF SOUND
RECORDINGS AND THE
REPRODUCTION OF EPHEMERAL
RECORDINGS BY PREEXISTING
SUBSCRIPTION SERVICES AND
PREEXISTING SATELLITE DIGITAL
AUDIO RADIO SERVICES
Authority: 17 U.S.C. 112(e), 114, and
801(b)(1).
§ 382.3
[Amended]
5. Section 382.3(c)(1) is amended by
removing ‘‘§ 370.2’’ and adding ‘‘§ 370.3’’
in its place.
§ 382.13
§ 370.3 Reports of use of sound
recordings under statutory license for
preexisting subscription services.
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§ 370.4 Reports of use of sound
recordings under statutory license for
nonsubscription transmission services,
preexisting satellite digital audio radio
services, new subscription services and
business establishment services.
4. The authority citation of part 382
continues to read as follows:
PART 370—NOTICE AND
RECORDKEEPING REQUIREMENTS
FOR STATUTORY LICENSES
*
to January 1, 2010, reports of use for the
corresponding calendar year filed by
other preexisting subscription services
shall serve as the reports of use for the
non-reporting service, solely for
purposes of distribution of any
corresponding royalties by the
Collective.
3. Section 370.4 is amended by
adding new paragraph (f) to read as
follows:
[Amended]
6. Section 382.13(f)(1) is amended by
removing ‘‘§ 370.3’’ and adding ‘‘§ 370.4’’
in its place.
Dated: April 14, 2011.
James Scott Sledge,
Chief U.S. Copyright Royalty Judge.
[FR Doc. 2011–9455 Filed 4–18–11; 8:45 am]
BILLING CODE 1410–72–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2007–1037; FRL–9297–4]
Approval and Promulgation of State
Implementation Plans; State of
Colorado; Interstate Transport of
Pollution Revisions for the 1997 PM2.5
and 8-Hour Ozone NAAQS: ‘‘Significant
Contribution,’’ ‘‘Interference with
Maintenance,’’ and ‘‘Interference with
Prevention of Significant
Deterioration’’ Requirements
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
portions of a State Implementation Plan
(SIP) revision submitted by the State of
Colorado for the purpose of addressing
the ‘‘good neighbor’’ provisions of Clean
Air Act (‘‘Act’’ or ‘‘CAA’’) section
110(a)(2)(D)(i) for the 1997 8-hour ozone
National Ambient Air Quality Standards
(‘‘NAAQS’’ or ‘‘standards’’) and the 1997
fine particulate matter (‘‘PM2.5’’)
NAAQS. This SIP revision addresses the
requirement that the State of Colorado’s
SIP (‘‘Interstate Transport SIP’’) have
adequate provisions to prohibit air
emissions from adversely affecting
another state’s air quality through
interstate transport. In this action, EPA
is proposing to approve the Colorado
Interstate Transport SIP provisions that
address the requirement of section
110(a)(2)(D)(i) that emissions from
Colorado sources do not significantly
contribute to nonattainment of the 1997
PM2.5 NAAQS in any other state,
interfere with maintenance of the 1997
PM2.5 NAAQS by any other state, or
interfere with any other state’s required
measures to prevent significant
deterioration of air quality for the 1997
PM2.5 and 8-hour ozone NAAQS. This
action is being taken under section 110
of the CAA.
DATES: Comments must be received on
or before May 19, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2007–1037, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: clark.adam@epa.gov.
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
• Mail: Deborah Lebow Aal, Acting
Director, Air Program, Environmental
SUMMARY:
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Protection Agency (EPA), Region 8,
Mailcode 8P–AR, 1595 Wynkoop Street,
Denver, Colorado 80202–1129.
• Hand Delivery: Deborah Lebow Aal,
Acting Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mailcode 8P–AR, 1595
Wynkoop, Denver, Colorado 80202–
1129. Such deliveries are only accepted
Monday through Friday, 8 a.m. to
4:30 p.m., excluding Federal holidays.
Special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2007–
1037. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA, without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional instructions on
submitting comments, go to Section I.
General Information of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly-available docket
materials are available either
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electronically in https://
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
Mailcode 8P–AR, 1595 Wynkoop,
Denver, Colorado 80202–1129. EPA
requests that if at all possible, you
contact the individual listed in the FOR
FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You
may view the hard copy of the docket
Monday through Friday, 8 a.m. to
4 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Adam Clark, Air Program, U.S.
Environmental Protection Agency,
Region 8, Mailcode 8P–AR, 1595
Wynkoop, Denver, Colorado 80202–
1129, (303) 312–7104,
clark.adam@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The words or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
(ii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iii) The initials SIP mean or refer to
State Implementation Plan.
(iv) The words Colorado and State
mean the State of Colorado.
Table of Contents
I. General Information
What should I consider as I prepare my
comments for EPA?
II. What proposed action is EPA taking?
III. What is the background for this proposed
action?
IV. What is the state process to submit these
materials to EPA?
V. EPA’s Review and Technical Information
A. Background on Section 110(a)(2)(D)(i)(I)
B. EPA’s Evaluation of Colorado’s
Significant Contribution to
Nonattainment
C. EPA’s Evaluation of Colorado’s
Interference With Maintenance
D. EPA’s Evaluation of Colorado’s
Prevention of Significant Deterioration
(PSD)
VI. Summary of Proposed Action
VII. Statutory and Executive Order Review
I. General Information
What should I consider as I prepare my
comments for EPA?
1. Submitting CBI. Do not submit CBI
to EPA through https://
www.regulations.gov or e-mail. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
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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:
a. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
b. Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
c. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
d. Describe any assumptions and
provide any technical information and/
or data that you used.
e. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
f. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
g. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
h. Make sure to submit your
comments by the comment period
deadline identified.
II. What proposed action is EPA taking?
EPA is proposing to approve a portion
of Colorado’s Interstate Transport SIP
revision for the 1997 8-hour ozone and
1997 PM2.5 NAAQS. This revision was
submitted by the State on March 31,
2010.1 Specifically, we are proposing to
approve the portion of the plan that
addresses the following requirements of
CAA section 110(a)(2)(D)(i) which
prohibit air pollutant emissions within
the State that: (1) Significantly
contribute to nonattainment of the 1997
PM2.5 NAAQS in any other state; (2)
interfere with maintenance of the 1997
PM2.5 NAAQS by any other state; and (3)
interfere with any other state’s required
measures to prevent significant
deterioration of its air quality with
1 The March 31, 2010 submission superseded
earlier SIP submissions with respect to the section
110(a)(2)(D)(i) requirements that are the subject of
this proposed action.
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respect to the 1997 PM2.5 and 8-hour
ozone NAAQS.
III. What is the background for this
proposed action?
On July 18, 1997, EPA promulgated
new NAAQS for ozone and for PM2.5.
This action is being taken in response to
the promulgation of both the 1997 ozone
and PM2.5 NAAQS. Section 110(a)(1) of
the CAA requires states to submit SIPs
to address a new or revised NAAQS
within 3 years after promulgation of
such standards, or within such shorter
period as EPA may prescribe. Section
110(a)(2) lists the elements that such
new SIPs must address, as applicable,
including section 110(a)(2)(D)(i), which
pertains to interstate transport of certain
emissions. On August 15, 2006, EPA
issued its ‘‘Guidance for State
Implementation Plan (SIP) Submissions
to Meet Current Outstanding
Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality
Standards’’ (‘‘2006 Guidance’’).2 The
2006 Guidance recommends ways states
may, in their submissions, meet the
requirements of section 110(a)(2)(D)(i)
for the 1997 8-hour ozone and PM2.5
standards.
As identified in the 2006 Guidance,
the ‘‘good neighbor’’ provisions in
section 110(a)(2)(D)(i) require each state
to submit a SIP that prohibits emissions
that adversely affect another state in the
ways contemplated in the statute.
Section 110(a)(2)(D)(i) identifies four
distinct requirements related to the
impacts of interstate transport. The SIP
must prevent sources in the state from
emitting pollutants in amounts which
will: (1) Contribute significantly to
nonattainment of the NAAQS in any
other state; (2) interfere with
maintenance of the NAAQS by any
other state; (3) interfere with required
measures to prevent significant
deterioration of air quality in any other
state; or (4) interfere with efforts to
protect visibility in any other state. In
this rulemaking EPA is addressing the
first three requirements of section
110(a)(2)(D)(i).
On June 11, 2008, the State of
Colorado submitted to EPA an Interstate
Transport SIP addressing all four
requirements of CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone
and PM2.5 NAAQS. In response to EPA’s
concerns regarding the June 11, 2008
submission, the State later submitted
2 Memorandum from William T. Harnett entitled,
‘‘Guidance for State Implementation Plan (SIP)
Submissions To Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8hour Ozone and PM2.5 National Ambient Air
Quality Standards’’ (Aug. 15, 2006).
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two superseding interstate transport SIP
revisions: (a) A June 18, 2009
submission addressing requirements (1)
and (2) of section 110(a)(2)(D)(i) for the
1997 8-hour ozone NAAQS; and (b) a
March 31, 2010 submission addressing
requirements (3) and (4) for the 1997 8hour ozone NAAQS and requirements
(1) through (4) for the 1997 PM2.5
NAAQS. EPA has previously approved
the ‘‘significant contribution to
nonattainment’’ and the ‘‘interfere with
maintenance’’ requirements for the State
of Colorado for the 1997 8-hour ozone
NAAQS in final rule actions published
June 3 and November 22, 2010 (75 FR
31306; 75 FR 71029). EPA proposed
approval of the ‘‘interfere with
visibility’’ requirement for the 1997 8hour ozone and PM2.5 NAAQS on
February 14, 2011 (76 FR 8326). In this
rulemaking EPA is evaluating only the
portions of Colorado’s March 31, 2010
submission that address requirements
(1), (2), and (3) for the 1997 PM2.5
NAAQS, and requirement (3) for the
1997 8-hour ozone NAAQS. In its
submission, the State indicated that its
current SIP already contains provisions
adequate to prevent such contribution
and interference. EPA is proposing to
find that, as stated by Colorado in the
March 31, 2010 submission, the
Colorado Interstate Transport SIP has
adequate provisions addressing
requirements (1), (2), and (3) of section
110(a)(2)(D)(i) for the 1997 PM2.5
NAAQS and requirement (3) for the
1997 8-hour ozone NAAQS.
IV. What is the state process to submit
these materials to EPA?
Section 110(k) of the CAA addresses
EPA’s rulemaking action on SIP
submissions by states. The CAA
requires states to observe certain
procedural requirements in developing
SIP revisions for submission to EPA.
Sections 110(a)(1) and (2) of the CAA
require that each SIP revision be
adopted after reasonable notice and
public hearing. This must occur prior to
the revision being submitted by a state
to EPA.
The Colorado Air Quality Control
Commission (AQCC) held a public
hearing in December 2009 for the
Interstate Transport SIP revision: ‘‘State
of Colorado Implementation Plan To
Meet the Requirements of the Clean Air
Act Section 110(a)(2)(D)(i)(I) and (II)—
Regarding Interstate Transport for the
1997 8-Hour Ozone and PM2.5 NAAQS.’’
The AQCC adopted this revision on
January 13, 2010, and the State
submitted it to EPA on March 31, 2010.
As discussed above, the March 31, 2010
submission addresses the elements of
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21837
110(a)(2)(D)(i) that are the subject of this
proposed action.
EPA has reviewed the March 31,
2010, submission from the State of
Colorado and has determined that the
State met the requirements for
reasonable notice and public hearing
under section 110(a)(1) and (2) of the
CAA.
V. EPA’s Review and Technical
Information
EPA is evaluating the State’s
submission in light of the statutory
requirements of section 110(a)(2)(D)(i).
In particular, section 110(a)(2)(D)(i)(I)
requires that a SIP contain provisions
adequate to prevent emissions from
sources in that state from contributing
significantly to nonattainment of the
relevant NAAQS, or interfering with
maintenance of the relevant NAAQS, in
any other state. Section
110(a)(2)(D)(i)(II) contains a similar
requirement that a SIP contain
provisions adequate to prevent
emissions from sources in the state from
interfering with measures required to
prevent significant deterioration of air
quality in any other state.
To assist states with SIP submissions
for the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS, EPA issued the
2006 Guidance to make
recommendations with respect to all
four requirements of section
110(a)(2)(D)(i). More recently, EPA has
proposed a rule (‘‘Transport Rule
Proposal’’) addressing the ‘‘significant
contribution to nonattainment’’ and
‘‘interfere with maintenance’’
requirements of 110(a)(2)(D)(i) for many
states located in the eastern United
States.3 Although Colorado is not among
the states that EPA is considering for
inclusion within the geographic region
that may be covered by the final rule
that will be based upon the Transport
Rule Proposal, EPA is using a
comparable approach to evaluate the
emissions from sources in Colorado, as
well as considering certain data
developed to support the Transport Rule
Proposal as discussed in more detail
below, as part of evaluating the issue of
interstate transport from Colorado for
the first two requirements. For the third
requirement, EPA is evaluating the SIP
submission from the state in light of the
recommendations contained in the
Agency’s prior 2006 guidance document
and in light of other subsequent actions
as discussed below.
3 ‘‘Federal Implementation Plans To Reduce
Interstate Transport of Fine Particulate Matter and
Ozone,’’ 75 FR 45210 (Aug. 2, 2010).
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A. Background on Section
110(a)(2)(D)(i)(I)
The first two elements of section
110(a)(2)(D)(i) require states to have
SIPs with adequate provisions to
prevent any source or other type of
emissions activity within the state from
emitting air pollutants in amounts that
will ‘‘contribute significantly’’ to
nonattainment in other states or will
‘‘interfere with maintenance’’ of the
NAAQS by any other state. The terms
‘‘contribute significantly’’ and ‘‘interfere
with maintenance’’ are not defined in
the statute. Therefore, EPA has
interpreted these terms in past
regulatory actions addressing interstate
transport, such as the 1998 NOX SIP
Call, in which EPA took action to
eliminate emissions of NOX that
significantly contributed to
nonattainment, or interfered with
maintenance of, the then applicable
ozone NAAQS through interstate
transport of NOX and the resulting
ozone.4 The NOX SIP Call was the
mechanism through which EPA
evaluated whether or not the NOX
emissions from sources in certain states
had such prohibited interstate impacts,
and if they had such impacts, required
the states to adopt substantive SIP
revisions to eliminate the NOX
emissions, whether through
participation in a regional cap and trade
program or by other means.
After promulgation of the 1997 8-hour
ozone and PM2.5 NAAQS, EPA again
recognized that regional transport was a
serious concern throughout the eastern
U.S. and therefore developed the 2005
Clean Air Interstate Rule (CAIR) to
address emissions of SO2 and NOX that
exacerbate ambient ozone and PM2.5
levels in many downwind areas through
interstate transport.5 Within CAIR, EPA
likewise interpreted the terms
‘‘contribute significantly’’ and ‘‘interfere
with maintenance’’ as part of the
evaluation of whether or not the
emissions of sources in certain states
had such impacts on areas that EPA
determined would either be in violation
of the NAAQS, or would be in jeopardy
of violating the NAAQS, in a modeled
future year unless actions were taken by
upwind states to reduce SO2 and NOX
emissions. Through CAIR, EPA again
required states that had such interstate
impacts to adopt substantive SIP
4 See, 63 FR 57356 (Oct. 27, 1998). EPA’s general
approach to section 110(a)(2)(D) was upheld in
Michigan v. EPA, 213 F.3d 663 (DC Cir. 2000), cert.
denied, 532 U.S. 904 (2001). However, EPA’s
approach to interference with maintenance in the
NOX SIP Call was not explicitly reviewed by the
court. See, North Carolina v. EPA, 531 F.3d 896,
907–09 (DC Cir. 2008).
5 See, 70 FR 25162 (May 12, 2005).
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revisions to eliminate the SO2 and NOX
emissions, whether through
participation in a regional cap and trade
program or by other means.
EPA’s 2006 Guidance addressed
section 110(a)(2)(D)(i) requirements for
the 1997 8-hour ozone and PM2.5
NAAQS. For those states subject to
CAIR, EPA indicated that compliance
with CAIR would meet the two
requirements of section 110(a)(2)(D)(i)(I)
for these NAAQS. For states not within
the CAIR region, EPA recommended
that states evaluate whether or not
emissions from their sources would
‘‘contribute significantly’’ or ‘‘interfere
with maintenance’’ in other states,
following the conceptual approach
adopted by EPA in CAIR. After
recommending various types of
information that could be relevant for
the technical analysis to support the SIP
submission, such as the amount of
emissions and meteorological
conditions in the state, EPA further
indicated that it would be appropriate
for the state to assess impacts of its
emissions on other states using
considerations comparable to those used
by EPA ‘‘in evaluating significant
contribution to nonattainment in the
CAIR.’’ 6 EPA did not make specific
recommendations for how states should
assess ‘‘interfere with maintenance’’
separately, and discussed the first two
elements of section 110(a)(2)(D) together
without explicitly differentiating
between them.
In 2008, however, the U.S. Court of
Appeals for the D.C. Circuit found that
CAIR and the related CAIR federal
implementation plans were unlawful.7
Among other issues, the court held that
EPA had not correctly addressed the
second element of section
110(a)(2)(D)(i)(I) in CAIR. The court
noted that ‘‘EPA gave no independent
significance to the ‘interfere with
maintenance’ prong of section
110(a)(2)(D)(i)(I) to separately identify
upwind sources interfering with
downwind maintenance.’’ 8 EPA’s
approach, the court reasoned, would
leave areas that are ‘‘barely meeting
attainment’’ with ‘‘no recourse’’ to
address upwind emissions sources.9
The court therefore concluded that a
plain language reading of the statute
requires EPA to give independent
meaning to the interfere with
maintenance requirement of section
6 2006
Guidance at 5.
North Carolina v. EPA, 531 F.3d 896 (DC
Cir. 2008).
8 Id. at 909.
9 Id.
7 See,
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110(a)(2)(D) and that the approach used
by EPA in CAIR failed to do so.
In addition to affecting CAIR directly,
the court’s decision in the North
Carolina case indirectly affects EPA’s
recommendations to states in the 2006
Guidance with respect to the interfere
with maintenance element of section
110(a)(2)(D)(i)(I) because the agency’s
guidance suggested that states use an
approach comparable to that used by
EPA in CAIR. States such as Colorado
developed and adopted their Interstate
Transport SIPs not long after the Court’s
July 2008 decision, but well before EPA,
in the Transport Rule Proposal (see
below), was able to propose a new
approach for the interference with
maintenance element. Without
recommendations from EPA, Colorado’s
SIP may not have sufficiently
differentiated between the significant
contribution to nonattainment and
interference with maintenance elements
of the statute, and relied in a general
way on the difference between
monitored concentrations and the 1997
PM2.5 NAAQS to evaluate the impacts of
State emissions on maintenance of the
NAAQS in other states. It is necessary
to evaluate these state submissions for
section 110(a)(2)(D)(i)(I) in such a way
as to assure that the interfere with
maintenance element of the statute is
given independent meaning and is
appropriately evaluated using the types
of information that EPA recommended
in the 2006 Guidance. To accomplish
this, it is necessary to use an updated
approach to this issue and to
supplement the technical analysis
provided by the State in order to
evaluate the submissions with respect to
both the significant contribution and the
interfere with maintenance elements of
section 110(a)(2)(D)(i)(I).
EPA has recently proposed a new
rule, the ‘‘Federal Implementation Plans
to Reduce Interstate Transport of Fine
Particulate Matter and Ozone’’
(‘‘Transport Rule Proposal’’), in order to
address interstate transport under
section 110(a)(2)(D)(i)(I) and the judicial
remand of CAIR.10 As part of the
Transport Rule Proposal, EPA
specifically reexamined the section
110(a)(2)(D)(i)(I) requirement that
emissions from sources in a state must
not ‘‘interfere with maintenance’’ of the
1997 8-hour ozone NAAQS and 1997
PM2.5 NAAQS by other states. In the
proposal, EPA developed an approach
to identify areas that it predicts to be
close to the level of the 1997 8-hour
ozone NAAQS and 1997 PM2.5 NAAQS
in the future, and therefore at risk to
become or continue to be nonattainment
10 75
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for these NAAQS unless emissions from
sources in other states are appropriately
controlled. This approach starts by
identifying those specific geographic
areas for which further evaluation is
appropriate and differentiating between
areas where the concern is with
interference with maintenance with
those where the concern is with
significant contribution to
nonattainment.
As described in more detail below,
EPA’s Transport Rule analysis evaluates
data from existing monitors over three
overlapping three-year periods (i.e.,
2003–2005, 2004–2006, and 2005–
2007), as well as air quality modeling
data, in order to determine which areas
are predicted to be violating the 1997 8hour ozone and PM2.5 NAAQS in 2012,
and which areas are predicted
potentially to have difficulty with
maintaining attainment as of that date.
In essence, if an area’s projected data for
2012 indicates that it would be violating
the NAAQS based on the average of
these three overlapping periods, then
this monitor location is appropriate for
comparison for purposes of the
significant contribution to
nonattainment element of section
110(a)(2)(D)(i). If, however, an area’s
projected data indicate that it would be
violating the NAAQS based on the
highest single three year period, but not
over the average of the three periods,
then this monitor location is appropriate
for comparison for purposes of the
interfere with maintenance element of
the statute.
For the PM2.5 NAAQS, EPA evaluated
concentrations of both the annual PM2.5
NAAQS and the 24-hour PM2.5 NAAQS.
The 1997 annual PM2.5 NAAQS is met
when the 3-year average of the annual
mean concentration is 15.0 micrograms
per cubic meter (μg/m3) or less. The 3year average annual mean concentration
is computed at each site by averaging
the daily Federal Reference Method
(FRM) samples by quarter, averaging
these quarterly averages to obtain an
annual average, and then averaging the
three annual averages to get the design
value. The 1997 24-hour PM2.5 NAAQS
is met when the 3-year average of the
annual 98th percentiles is 65 μg/m3 or
less.11 The 3-year average mean 98th
percentile concentration is computed at
each site by averaging the 3 individual
annual 98th percentile values at each
site. The 3-year average 98th percentile
concentration is referred to as the
24-hour average design value.
To project future annual PM2.5 design
values, EPA relied on monitoring data
from the AQS combined with
photochemical air quality modeling
results. The Transport Rule Proposal
generates the projected future PM2.5
values based on an average of three
design value periods which include the
years 2003–2007 (i.e., design values for
2003–2005, 2004–2006, and 2005–
2007). The average of the three design
values creates a 5-year ‘‘weighted
average’’ value. The 5-year weighted
average values were then projected to
the future years that were analyzed for
the Transport Rule Proposal.12 EPA
used the 5-year weighted average
concentrations to project concentrations
anticipated in 2012 to determine which
monitoring sites are expected to be
nonattainment in this future year. EPA
also projected 2012 design values based
on each of the three base design value
year periods (i.e., 2003–2005, 2004–
2006, and 2005–2007). The highest
future projection is referred to as the
‘‘maximum design value’’ and gives an
indication of potential variability in
future projections due to differences in
actual meteorology and emissions from
what was modeled.
EPA then used these weighted
averages and maximum design values to
identify nonattainment and
maintenance receptors. For the 1997
annual PM2.5 NAAQS, EPA defined
nonattainment receptors as those sites
with an annual PM2.5 5-year weighted
average concentration (average design
value) above 15.05 μg/m3 in 2012. EPA
then defined as maintenance receptors
those sites that are projected to be
attainment based on the 5-year weighted
average design value, but that have a
maximum design value (based on a
projected single three year period) above
15.05 μg/m3 in 2012. These maintenance
sites are attaining the NAAQS based on
the projected average design values, but
EPA anticipates that there will be more
difficulty in maintaining attainment of
the NAAQS at these locations if there
are adverse variations in meteorology or
emissions.
By this method, EPA has identified
those areas—the nonattainment
receptors—that are appropriate for
evaluating whether emissions from
sources in another state could
significantly contribute to
nonattainment. Likewise, EPA has
identified those areas—the maintenance
11 The 2006 24-hour PM
2.5 NAAQS, which is not
the subject of this action, is met when the 3-year
average of the annual 98th percentile PM2.5
concentrations is 35 μg/m3 or less.
12 Transport Rule Proposal, 75 FR at 45246–51.
Additional information concerning these weighted
averages is provided in the Western States Design
Values Memo.
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receptors—that are appropriate for
evaluating whether the emissions from
sources in another state could interfere
with maintenance. EPA then uses a
‘‘weight-of-evidence’’ analysis, separate
from that used in the Transport Rule
Proposal, to examine the potential
impacts of emissions from upwind
states on these nonattainment and
maintenance receptors in downwind
states. This proposed approach for
identifying those areas that are
predicted to have nonattainment or
maintenance problems is appropriate to
evaluate the section 110(a)(2)(D)(i) SIP
submission of a state for the significant
contribution and interfere with
maintenance elements. EPA’s 2006
Guidance did not provide this specific
recommendation to states, but in light of
the court’s decision on CAIR, EPA will
itself follow this approach in acting
upon the Colorado submission.
As explained in the 2006 Guidance,
section 110(a)(2)(D)(i) SIP submissions
from all states do not necessarily need
to follow precisely the same analytical
approach as CAIR. In the 2006
Guidance, EPA stated that: ‘‘EPA
believes that the contents of the SIP
submission required by section
110(a)(2)(D)(i) may vary depending
upon the facts and circumstances
related to the specific NAAQS. In
particular, the data and analytical tools
available at the time the State develops
and submits a SIP for a new or revised
NAAQS necessarily affects the contents
of the required submission.’’ 13 EPA also
indicated in the 2006 Guidance that it
did not anticipate that sources in states
outside the geographic area covered by
CAIR were significantly contributing to
nonattainment, or interfering with
maintenance, in other states.14 As noted
in the Transport Rule Proposal, the
more widespread and serious transport
problems in the eastern United States
are analytically distinct. For the 1997
8-hour ozone NAAQS and the 1997
PM2.5 NAAQS, nonattainment and
maintenance problems in the western
United States are relatively local in
nature with only limited impacts from
interstate transport.15 In the Transport
Rule Proposal, EPA did not calculate
interstate ozone or PM2.5 contributions
to or from western states, including
Colorado.
Accordingly, section 110(a)(2)(D)(i)
SIP submissions for states not evaluated
in the Transport Rule Proposal may be
evaluated using a weight-of-evidence
approach that takes into account
available relevant information, such as
13 2006
Guidance at 3.
at 5.
15 Transport Rule Proposal, 75 FR at 45227.
14 Id.
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that recommended by EPA in the 2006
Guidance for states outside the area
affected by CAIR. Such information may
include, but is not limited to, the
amount of emissions in the state
relevant to the NAAQS in question, the
meteorological conditions in the area,
the distance from the state to the nearest
monitors in other states that are
appropriate receptors, or such other
information as may be probative to
consider whether sources in the state
may significantly contribute to
nonattainment or interfere with
maintenance of the 1997 PM2.5 NAAQS
in other states. These submissions can
rely on modeling when acceptable
modeling technical analyses are
available, but modeling is not
necessarily required if other available
information is sufficient to evaluate the
presence or degree of interstate
transport in a given situation.
B. EPA’s Evaluation of Colorado’s
Significant Contribution to
Nonattainment
To meet the requirements of section
110(a)(2)(D)(i), the State of Colorado on
March 31, 2010 made a submission to
EPA addressing all four 110(a)(2)(D)(i)
requirements for the 1997 PM2.5
NAAQS, and requirements (3) and (4)
for the 1997 8-hour ozone NAAQS. The
State used many of the methods
recommended in the 2006 Guidance.
This included consideration of
information such as the geographic
location of violating areas and
meteorological data. The State’s
submission also considered AQS
monitoring data from Colorado and
surrounding states. The State’s
submission concluded that its own
analysis ‘‘supports the assertion that
Colorado does not contribute
significantly to nonattainment in, or
interfere with maintenance by, any
other state with respect to the 1997
PM2.5 NAAQS.’’ 16 In its submission, the
State of Colorado further indicated that
its current SIP is adequate to prevent
such contribution and interference, and
therefore no additional reductions
would be necessary to prevent such
contribution or interference.
Colorado submitted its Interstate
Transport SIP before the Transport Rule
Proposal was completed and available.
Therefore, the State could not have
anticipated which nonattainment
receptors EPA would consider most
appropriate for the analysis of the
16 See ‘‘State of Colorado Implementation Plan to
Meet the Requirements of the Clean Air Act Section
110(a)(2)(d)(i)(I) and (II)—Regarding Interstate
Transport for the 1997 8-Hour Ozone and PM2.5
NAAQS’’ at 46, available in the docket for this
action.
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impact of transport from Colorado’s
sources on PM2.5 levels in other states.
In this proposal, EPA therefore conducts
additional analysis, using a weight-ofevidence approach separate from that
used in the Transport Rule Proposal, to
determine if emissions from Colorado
sources significantly contribute to
nonattainment of the 1997 PM2.5
NAAQS in any other state. This analysis
considers: (a) Portions of EPA modeling
and analysis conducted for the 2005
CAIR and the 2010 Transport Rule
Proposal;17 (b) projections of western
nonattainment and maintenance
receptors based on Transport Rule
modeling; 18 and (c) geographical,
topographical and meteorological
factors relevant to the potential for
pollution transport. None of these
factors is by itself determinative of
whether emissions from Colorado
significantly contribute to
nonattainment of the 1997 PM2.5
NAAQS in any other state. However,
when considered together through the
weight-of-evidence approach, the factors
provide the basis for a reliable
qualitative assessment of significant
contribution.
As described in detail above, in the
Transport Rule Proposal, EPA projected
future concentrations of PM2.5 to
identify receptors that are expected to
be violating the 1997 PM2.5 NAAQS in
2012. For the 1997 annual PM2.5
NAAQS, the receptors EPA identified in
the Transport Rule Proposal nearest to
Colorado are located in Chicago, IL to
the northeast, East St. Louis, IL to the
east, and Birmingham, AL to the
southeast.19 No monitoring sites within
the geographic region addressed in the
Transport Rule Proposal analysis were
projected to be violating the 1997
24-hour PM2.5 NAAQS.20
Available information indicates that
emissions from Colorado are unlikely to
contribute significantly to violations of
the 1997 annual PM2.5 NAAQS in
Chicago, IL, in East St. Louis, IL, or in
Birmingham, AL. In our rulemaking
17 Specifically, from CAIR, EPA considers only
CAIR Proposal PM2.5 zero-out modeling analysis.
From the Transport Rule Proposal, EPA considers:
(a) Projected annual PM2.5 nonattainment receptor
locations; (b) projected statewide SO2 and NOX
emission data for Colorado and three states east of
Colorado (Kansas, Nebraska, and Oklahoma); and
(c) projected downwind contributions to annual
PM2.5 nonattainment receptors for Kansas,
Nebraska, and Oklahoma.
18 Memorandum from Brian Timin, EPA Office of
Air Quality Planning and Standards,
‘‘Documentation of Future Year Ozone and Annual
PM2.5 Design Values for Western States,’’ (Aug. 23,
2010) (‘‘Western States Design Values Memo’’),
available in the docket for this action.
19 Transport Rule Proposal, 75 FR at 45247–48
(Table IV.C–7).
20 Id. at 45249–51 (Table IV.C–9).
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process for CAIR, EPA modeled the
contribution from individual states to
counties in the eastern U.S. projected to
be nonattainment for the 1997 annual
PM2.5 NAAQS in 2010. According to
this modeling, EPA projected annual
PM2.5 contributions from Colorado
sources to Cook County (Chicago), IL in
2010 to be 0.03 μg/m3,21 which is well
below the significance threshold of one
percent of the NAAQS (0.15 μg/m3 for
the 1997 annual PM2.5 NAAQS) used in
the Transport Rule Proposal.
Contributions from Colorado to annual
PM2.5 emissions in Saint Clair County
(East St. Louis), IL in 2010 were
modeled to be 0.04 μg/m3. Finally,
projected contributions from Colorado
to annual PM2.5 emissions in Jefferson
County (Birmingham), AL were
modeled to be 0.03 μg/m3, also far below
the significance threshold. The CAIR
Proposal modeling used a 2010 future
year assessment versus the 2012 year
used in the Transport Rule Proposal, so
it is not determinative of significant
contribution from Colorado to these
receptors, but it does provide an initial
piece of evidence for EPA’s weight-ofevidence analysis.
Certain portions of the Transport Rule
Proposal modeling analysis provide
more evidence that emissions of PM2.5
or its precursors from Colorado sources
are not likely to contribute significantly
to the nonattainment receptors
(identified above) in Illinois and
Alabama, or to any nonattainment
receptors located in states further east.22
EPA did not model the impacts of
emissions from Colorado sources on
receptors in other states as part of the
Transport Rule Proposal. However,
Kansas, Nebraska and Oklahoma were
among the states whose interstate
contribution to annual PM2.5
nonattainment receptors in other states
EPA did model for the Transport Rule
Proposal.23 None of these three states
(Kansas, Oklahoma and Nebraska) was
projected to contribute more than 0.09
μg/m3 (60% of the significance
threshold) to any annual PM2.5
nonattainment receptor inside the
21 ‘‘Technical Support Document for the Interstate
Air Quality Rule Air Quality Modeling Analyses
Appendix H, PM2.5 Contributions to Downwind
Nonattainment Counties in 2010’’ (Jan. 30, 2004),
available in the docket for this action.
22 Transport Rule Proposal, 75 FR at 45247–48
(Table IV.C–7).
23 As technical support for the Transport Rule
Proposal, all 48 contiguous states were modeled
using a horizontal grid resolution of 36 x 36 km.
States in the eastern U.S. modeled for contribution
in the Transport Rule Proposal, including Kansas,
Nebraska and Oklahoma, were also modeled using
a finer horizontal grid resolution of 12 x 12 km.
Contribution was determined using zero-out
modeling.
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Transport Rule Proposal domain in
2012.24
For the Transport Rule Proposal, EPA
projected total emissions for NOX and
SO2, the two major precursors for PM2.5,
for each of the 48 contiguous states in
2012 and 2014. Colorado’s NOX and SO2
emissions were generally less than or
similar to those in Kansas, Oklahoma
and Nebraska.25 Under prevailing
meteorological conditions, all three
states are typically downwind from
Colorado and upwind of the
nonattainment receptors in the eastern
U.S. Furthermore, emissions from
Colorado must travel a greater distance
(compared to these three states) to reach
nonattainment receptors in the eastern
U.S.26 Though distance by itself is not
an obstacle to long range transport of
PM2.5 and/or its precursors, and
therefore by itself not determinative of
significant contribution, greater distance
provides greater opportunities for PM2.5
and precursor dispersion and/or
removal from the atmosphere due to the
effect of winds or chemical sink
processes. In summary, EPA-projected
PM2.5 precursor emissions from
Colorado are lower or similar to those in
Kansas, Nebraska or Oklahoma, and,
based on geography and meteorology,
emissions from these three states are
more likely to reach nonattainment
receptors in the eastern U.S. than are
emissions from Colorado. Therefore,
because Kansas, Nebraska and
Oklahoma are each well below the
significance threshold for contribution
for the annual PM2.5 NAAQS in the
Transport Rule Proposal, Colorado is
likely to be even further below the
significance threshold. This
consideration, along with the 2004 CAIR
Proposal modeling, when taken into
account under the weight-of-evidence
approach, shows that Colorado
emissions are very unlikely to
contribute significantly to violations of
the 1997 annual PM2.5 standard at
24 Transport Rule Proposal, 75 FR at 45255 (Table
IV.C–13).
25 See ‘‘Technical Support Document (TSD) for
the Transport Rule Docket ID No. EPA–HQ–OAR–
2009–0491. Emission Inventories’’ at 40–43 (June
2010). Based on these projections, in 2012, Kansas
will have higher NOX (∼24%) and SO2 (∼35%)
emissions than Colorado, Oklahoma will have
higher NOX (∼54%) and SO2 (∼147%) emissions
than Colorado, and Nebraska will have lower NOX
(∼23%) and higher SO2 (∼94%) emissions than
Colorado.
26 At the shortest possible distance for each
measurement, the eastern Colorado border is
approximately 320 miles west of the eastern
Nebraska border, 370 miles west of the eastern
Kansas border, and 410 miles west of the eastern
Oklahoma border. It should be noted that the
measured distance represents that of the straight
(and shortest) path, which does not reflect the more
circuitous paths typically followed by air parcels.
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nonattainment receptors in Illinois,
Alabama or any states further east.
To assist in the evaluation of whether
emissions from a state’s sources
contribute significantly to
nonattainment of the NAAQS in
western states, EPA has also developed
an analysis identifying monitors
projected to be in nonattainment or at
risk for maintenance of the NAAQS
within a modeling domain that includes
the western states. The analysis
presented in the memo, ‘‘Documentation
of Future Year Ozone and Annual PM2.5
Design Values for Western States,’’ 27
(‘‘Western State Design Values Memo’’)
uses model results from the Transport
Rule Proposal based on a continental
U.S. 36 km grid, which is coarser than
the final 12 km grid used in the
Transport Rule for the eastern states.
Though the 36 km grid is more coarse,
EPA considers these modeling results
sufficient to determine the appropriate
nonattainment and maintenance
receptors for analysis of interstate
transport from Colorado to other
western states. In identifying these
receptors, the Western States Design
Values Memo takes the same approach
as the Transport Rule Proposal (5 year
weighted average design values to
project 2012 concentrations).28 For the
1997 annual PM2.5 NAAQS, the
nonattainment receptors identified in
the Memo are all located in southern
and central California, and the
nonattainment receptor nearest to
Colorado is located in San Bernardino,
CA.
In the Western States Design Values
Memo, EPA did not calculate interstate
PM2.5 contributions to or from western
states. Therefore, EPA is using a weightof-evidence approach to determine if the
emissions from Colorado sources
contribute significantly to
nonattainment for receptors in San
Bernardino, CA, or other nonattainment
receptors in California further west.
Distance and topography, although not
determinative by themselves, indicate
that PM2.5 transport from Colorado to
California is unlikely. The southwestern
corner of Colorado is approximately 500
miles from San Bernardino, making
distance an obstacle for PM2.5 emissions
transport. Moreover, the mountainous
topography between Colorado’s sources
and California’s nearest nonattainment
receptors presents a large obstacle to
PM2.5 transport. The prevailing wind
orientation also provides evidence that
Colorado’s emissions are unlikely to
contribute significantly to
nonattainment of the 1997 annual PM2.5
27 Supra
28 Id.
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NAAQS in California. West of the
Continental Divide the prevailing winds
generally move from south-westerly,
westerly, or north-westerly directions,
as indicated by the typical movement of
weather systems.
Finally, projected design values
presented in the Western States Design
Values Memo provide some evidence
that significant contribution from
Colorado sources to annual PM2.5
nonattainment receptors in California is
unlikely. The highest projected average
PM2.5 design value for 2012 in Colorado
is 9.36 μg/m3, or 64% of the 1997
annual PM2.5 NAAQS.29 The highest
projected average PM2.5 design value for
2012 throughout Utah, Arizona and
Nevada, the states between Colorado
and California, is 12.7 μg/m3, or 84.6%
of the NAAQS.30 Given the distance
between Colorado sources and
California nonattainment receptors, the
intervening mountainous topography,
the general west-to-east direction of
transport winds in the western U.S., and
the low projected PM2.5 design values in
Colorado and intervening states, the
weight-of-evidence makes it reasonable
to conclude that Colorado sources are
very unlikely to contribute significantly
to nonattainment of the 1997 annual
PM2.5 NAAQS in California.
EPA did not project 2012 design
values for the 1997 24-hour PM2.5
NAAQS in the Western States Design
Values Memo. EPA therefore used the
most recent AQS monitoring data to
determine the monitor nearest to
Colorado with a design value above the
1997 24-hour PM2.5 NAAQS. Based on
recent monitoring data (2009 design
values), the highest 24-hour PM2.5
design value in 47 of the 48 states of the
continental U.S. (not including
California) is 50 μg/m3, which is well
below the level of the 1997 24-hour
PM2.5 NAAQS of 65 μg/m3.31 In
California, the most recent (2009)
24-hour PM2.5 design values show that
the monitor nearest Colorado that might
be violating the 1997 24-hour PM2.5
NAAQS is in Bakersfield.32 Transport of
emissions from Colorado sources to
PM2.5 receptors in Bakersfield is very
unlikely, based on a similar weight-ofevidence analysis as for San Bernardino
above. Bakersfield is roughly 570 miles
from the nearest Colorado border. The
topography between Colorado sources
and California monitors is largely
29 Western
States Design Values Memo, Appendix
A.
30 Id.
31 Data from EPA’s Air Quality System, which is
EPA’s repository of ambient air quality data. (See
https://www.epa.gov/ttn/airs/airsaqs/).
32 The AQS design value data shows 2009 design
values in Bakersfield of roughly 70 μg/m3.
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mountainous, presenting an obstacle to
transport of emissions. Winds typically
travel west to east in the western United
States, making transport of emissions
from Colorado to California unlikely.
Under the weight-of-evidence approach,
these factors combined lead EPA to the
conclusion that significant contribution
from Colorado sources to 24-hour PM2.5
nonattainment monitors in California is
very unlikely.
In conclusion, our analysis indicates
that emissions of PM2.5 and/or its
precursors from the sources in Colorado
are unlikely to contribute significantly
to nonattainment of the 1997 24-hour
and annual PM2.5 NAAQS in any other
state.
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C. EPA’s Evaluation of Colorado’s
Interference With Maintenance
As discussed above, following the
2006 Guidance and consistent with
EPA’s approach in CAIR, Colorado’s
submission for section 110(a)(2)(D)(i) for
the 1997 PM2.5 NAAQS did not evaluate
whether emissions from the sources in
the state interfere with maintenance of
these NAAQS by other states, separately
from evaluation of significant
contribution to nonattainment in other
states. Instead, the State presumed that
if Colorado sources did not significantly
contribute to violations of the NAAQS
in other states, then no further specific
evaluation was necessary for purposes
of the interference with maintenance
element of section 110(a)(2)(D)(i)(I). As
explained above, however, CAIR was
remanded to EPA, in part because the
court found that EPA had failed to give
independent meaning to the ‘‘interfere
with maintenance’’ requirement, a
concern that EPA has addressed in the
Transport Rule Proposal. However,
Colorado submitted its Interstate
Transport SIP without the benefit of
EPA’s new approach. Accordingly, we
are evaluating the state’s submission
using additional information to address
the issue of interference with
maintenance.
In particular, EPA has developed an
approach to identify those monitors for
PM2.5 that are located in areas
appropriate for consideration as
receptors for evaluating the potential for
inference with maintenance of the 1997
PM2.5 NAAQS. As discussed in more
detail above in section A, EPA has
examined data from existing monitors
for three overlapping three year periods
to predict what areas may have
difficultly attaining the NAAQS in 2012.
By identifying these monitors, EPA can
then use available analytical tools to
determine whether emissions from
sources in a state are having an impact
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on other states, and the degree of that
impact.
EPA did not model the contribution of
emissions from Colorado sources
(because Colorado and other western
states are not fully inside the Transport
Rule Proposal’s modeling domain) to
PM2.5 maintenance receptors in other
states. Therefore, EPA’s assessment of
whether emissions from Colorado
sources interfere with maintenance in
other states relies on a weight-ofevidence approach that considers
relevant information (such as
identification of maintenance receptors
and estimates of PM2.5 contributions)
from the Transport Rule Proposal
pertaining to states within its modeling
domain, modeling analysis results from
other studies, additional material such
as geographical, topographical and
meteorological factors, and back
trajectory analyses. While conclusions
reached for each of the factors
considered in the following analysis are
not themselves determinative,
consideration of these factors together
provides a reliable qualitative
conclusion that emissions from
Colorado are not likely to interfere with
maintenance of the 1997 PM2.5 NAAQS
at monitors in other states.
It should be noted that the
maintenance receptors analyzed are
separate from the nonattainment
receptors analyzed for purposes of
significant contribution to
nonattainment. EPA is evaluating
impacts on these monitors specifically
to address the independent interference
with maintenance requirement of
section 110(a)(2)(D)(i)(I). However, the
maintenance receptors in Cook County,
IL are geographically close to the
nonattainment receptors in that same
county, especially relative to the
distance from Colorado. The following
analysis therefore uses similar evidence
to evaluate interference with
maintenance as that used for the
evaluation of the potential for
significant contribution to
nonattainment. EPA uses similar
evidence only because these
nonattainment and maintenance
receptors are in similar locations, and
recognizes that the two types of
receptors are analytically distinct.
In connection with the Transport Rule
Proposal, EPA evaluated monitor data
for states within the geographic scope of
that rulemaking to project future
concentrations of PM2.5 to identify
receptors that are expected to have
difficulty maintaining compliance with
the NAAQS in 2012, referred to as
maintenance receptors. For the 1997
annual PM2.5 NAAQS, this analysis
identified 16 maintenance receptors in
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its modeling analysis domain (i.e. states
east of the Rocky Mountains). The
maintenance receptors for the 1997
PM2.5 NAAQS nearest to Colorado are
two monitoring sites located in Cook
County, Illinois in the Chicago area, and
a monitoring site in Harris County,
Texas, in the Houston-GalvestonBrazoria area. For the 1997 24-hour
PM2.5 NAAQS, EPA did not evaluate
maintenance receptors because there
were no violations of these standards in
the 37 states east of the Rockies.33
EPA analyzed contribution of annual
PM2.5 emissions from Colorado sources
to maintenance receptors in Cook
County, Illinois using the same evidence
as was used in Section B of this action
to determine the potential impact of
Colorado sources on the projected
nonattainment receptor in the same
county. As noted in that section,
modeling conducted for the 2004 CAIR
Proposal projected 2010 emissions from
Colorado sources to contribute 0.03 μg/
m3 annual PM2.5 emissions to Cook
County, just 20% of the significance
threshold (0.15 μg/m3) for interference
with maintenance used in the Transport
Rule Proposal for the 1997 annual PM2.5
NAAQS. The CAIR Proposal modeling
therefore provides the initial evidence—
not determinative by itself—that
emissions from Colorado sources are not
likely to interfere with maintenance of
the annual PM2.5 NAAQS in Cook
County, IL.
Portions of the modeling analysis and
projected emission levels calculated for
the Transport Rule Proposal provide
further evidence for the conclusion that
emissions from Colorado sources are
unlikely to interfere with maintenance
at the Cook County, IL receptors. As
noted above, in the Transport Rule
Proposal, EPA did not directly model
the impacts of emissions from Colorado,
but EPA did model the impacts of
emissions from other states that are
within the modeling domain for the
Transport Rule Proposal. Kansas and
Nebraska were among the states whose
interstate contribution to annual PM2.5
maintenance receptors in other states
EPA did model for the Transport Rule
Proposal.34 Neither of these two states
33 Areas east of the Rockies were modeled for the
Transport Rule Proposal using a 12km grid. Areas
west of the Rockies were modeled using a 36km
grid. EPA did not model projections for the 24-hour
PM2.5 NAAQS in the 36km grid modeling domain.
For the states included in the eastern domain, see
Table IV.C–13, Transport Rule Proposal, 75 FR at
45255–56.
34 As technical support for the Transport Rule
Proposal, all 48 contiguous states were modeled
using a horizontal grid resolution of 36 x 36 km.
States in the eastern U.S. modeled for contribution
in the Transport Rule Proposal, including Kansas
and Nebraska, were also modeled using a finer
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(Kansas or Nebraska) was projected to
contribute more than 0.06 μg/m3,35 or
40% of the significance threshold, to
any maintenance receptor covered by
the Transport Rule Proposal, which
included the Cook County, IL monitors.
For the Transport Rule Proposal, EPA
projected total emissions for NOX and
SO2, the two major precursors for PM2.5,
for each of the 48 contiguous states in
2012 and 2014. Nebraska and Kansas
were each projected to have similar
amounts of PM2.5 precursor emissions
(NOX and SO2) to those of Colorado.36
Both states are also upwind of Cook
County, IL, but are much closer to the
Cook County maintenance receptors
than is Colorado.37 Distance by itself is
not an obstacle to long range transport
of PM2.5 and/or its precursors, and is
therefore not determinative of
interference with maintenance.
However, with increasing distance there
are greater opportunities for PM2.5 or
precursor dispersion and/or removal
from the atmosphere due to the effect of
winds or chemical sink processes. In
summary, EPA-projected PM2.5
precursor emissions from Colorado are
lower or similar to those in Kansas or
Nebraska, and, based on geography and
meteorology, emissions from each of
these states are more likely to reach
maintenance receptors in the eastern
U.S. than are emissions from Colorado.
Therefore, because Kansas and Nebraska
are each well below the significance
threshold for interference with
maintenance for the annual PM2.5
NAAQS in the Transport Rule Proposal,
Colorado is likely to be even further
below the significance threshold. Based
on the modeling analysis from the CAIR
Proposal and the Transport Rule
Proposal, the weight of evidence shows
that it is very unlikely that emissions
from Colorado sources would interfere
with maintenance of the 1997 annual
PM2.5 NAAQS at any monitor in Cook
County, IL.
EPA did not calculate the impact of
Colorado’s emissions on the Houston
area as part of the CAIR modeling
horizontal grid resolution of 12 x 12 km.
Contribution was determined using zero-out
modeling.
35 Transport Rule Proposal, 75 FR at 47255 (Table
IV.C–13).
36 See ‘‘Technical Support Document (TSD) for
the Transport Rule Docket ID No. EPA–HQ–OAR–
2009–0491. Emission Inventories’’ at 40–43 (June
2010). Based on these projections, in 2012, Kansas
will have higher NOX (∼24%) and SO2 (∼35%)
emissions than Colorado, and Nebraska will have
lower NOX (∼23%) and higher SO2 (∼94%)
emissions than Colorado.
37 At the shortest possible distance for each
measurement, the eastern Colorado border is
approximately 320 miles west of the eastern
Nebraska border and 370 miles west of the eastern
Kansas border.
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analysis or the Transport Rule Proposal
modeling analysis. EPA is therefore
using other evidence in a weight-ofevidence assessment to determine if
Colorado emissions interfere with
maintenance of the 1997 annual PM2.5
NAAQS at the Harris County monitor.
Our assessment considers modeling
analysis from the Transport Rule
Proposal, geographical and
meteorological factors, and back
trajectory analyses.
Oklahoma was among the states EPA
modeled for the Transport Rule
Proposal to estimate their interstate
contribution of annual PM2.5 emissions
to nonattainment and maintenance
monitors in other states. Oklahoma’s
estimated maximum contribution to any
maintenance monitor covered by the
Transport Rule Proposal, which
included the Harris County, TX
monitor, was 0.05 μg/m3,38 or 33% of
the significance threshold.
Back trajectory analysis indicates that
air parcel pathways that reach Houston
will pass through Oklahoma more
frequently than they will pass through
Colorado.39 Because back trajectory
analysis results map pathways of air
parcels that may or may not transport
pollutants, they cannot be considered
determinative as to the transport of
PM2.5 and its precursors, or of the
absence of such transport, from
Colorado sources. However, this back
trajectory analysis provides evidence
that PM2.5 emissions and PM2.5
precursor emissions from Oklahoma are
more likely to reach Houston than
Colorado emissions, based simply on
wind patterns. In addition, emissions
from Oklahoma sources travel a much
shorter distance to the Houston area
than emissions from Colorado sources.40
Furthermore, the emissions of SO2 and
NOX, the two major PM2.5 precursors,
are significantly lower in Colorado than
in Oklahoma.41 The weight of evidence
from these factors combined shows that
emissions from Oklahoma sources are
much more likely to reach the Houston
area than are emissions from Colorado
sources. Given that Oklahoma is far
38 Transport Rule Proposal, 75 FR at 45255 (Table
IV.C–13).
39 See ‘‘Eight-Site SA Speciation Trends Final
Report. Appendix G: Graphical Representation of
the Source Apportionment Results for Houston,
Texas,’’ (September 24, 2003), available in the
docket for this action.
40 The Houston area is approximately 270 miles
from the nearest Oklahoma border. The Houston
area is approximately 630 miles from the nearest
Colorado border.
41 See ‘‘Technical Support Document (TSD) for
the Transport Rule Docket ID No. EPA–HQ–OAR–
2009–0491. Emission Inventories’’ at 40–43 (June
2010). Based on these projections, Oklahoma will
have higher NOX (∼54%) and SO2 (∼147%)
emissions than Colorado in 2012.
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21843
below the Transport Rule Proposal
threshold for interference with
maintenance at annual PM2.5
maintenance receptors, including the
Harris County receptor, the weight of
evidence shows it is highly unlikely that
Colorado sources will interfere with
maintenance of the 1997 annual PM2.5
NAAQS at the Harris County receptor.
As discussed above in section B, EPA
developed the Western States Design
Values Memo to identify nonattainment
and maintenance receptors within a
modeling domain that includes the
western states.42 The Western States
Design Values Memo analysis uses the
same general approach as the Transport
Rule Proposal (5 year weighted average
design values to project 2012
concentrations) to project
nonattainment and maintenance
receptors.43 For the 1997 annual PM2.5
NAAQS, the two maintenance receptors
identified in the Western States Design
Values Memo are in Orange and Los
Angeles counties in California.
Distance and topography, while not
determinative in of themselves, indicate
that PM2.5 and precursor transport from
Colorado to California is unlikely. The
southwestern corner of the Colorado
border is approximately 545 miles from
Anaheim, the city with the nearest
maintenance receptor for these NAAQS.
The mountainous topography between
Colorado sources and California
maintenance receptors also presents a
large obstacle to PM2.5 transport. Thus,
geography and topography significantly
reduce the likelihood of transport from
Colorado to California’s maintenance
receptors.
Prevailing wind orientation also
provides strong evidence that
Colorado’s emissions are unlikely to
interfere with maintenance of the 1997
annual PM2.5 standards in California.
West of the Continental Divide the
prevailing winds generally move from
south-westerly, westerly, or northwesterly directions, as indicated by the
typical movement of weather systems.
In addition, projected design values
presented in the Western States Design
Values Memo provide some evidence
that interference with maintenance by
emissions from Colorado sources to
maintenance receptors for the 1997
annual PM2.5 NAAQS in California is
unlikely. The highest projected average
PM2.5 design value for 2012 in Colorado
is 9.36 μg/m3, or 64% of the 1997
annual PM2.5 NAAQS.44 The highest
42 Western
States Design Values Memo.
at 5.
44 Western States Design Values Memo, Appendix
A.
43 Id.
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projected average PM2.5 design value for
2012 throughout Utah, Arizona and
Nevada, the states between Colorado
and California, is 12.7 μg/m3, or 84.6%
of the NAAQS.45 Given the distance
between Colorado sources and
California maintenance receptors, the
intervening mountainous topography,
the general west-to-east direction of
transport winds in the western U.S., and
the low level of emissions from
Colorado sources, EPA concludes that
Colorado sources are not likely to
interfere with maintenance of the 1997
annual PM2.5 NAAQS in California.
EPA did not project 2012 design
values for the 1997 24-hour PM2.5
NAAQS in the Western States Design
Values Memo. Based on recent
monitoring data (2009 design values),
the highest 24-hour PM2.5 design value
in 47 of the 48 states of the continental
U.S. (not including California) is 50 μg/
m3, which is well below the level of the
1997 24-hour PM2.5 NAAQS of 65 μg/
m3.46 Therefore, outside of California,
there are no areas that we would expect
to have difficulty in maintaining the
1997 24-hour PM2.5 NAAQS. In
California, the most recent (2009) 24hour PM2.5 design values show that the
only monitors that might be at risk for
maintenance of the 1997 24-hour PM2.5
NAAQS are in Turlock, Fresno, and
Bakersfield, in the northern, central and
southern sections of the San Joaquin
Valley.47 Of these, the monitor located
in Bakersfield is nearest Colorado.
Transport of emissions from Colorado
sources to potential PM2.5 maintenance
receptors in Bakersfield, or any
monitors in California further west, is
very unlikely, based on a weight-ofevidence analysis. Bakersfield is
roughly 570 miles from the nearest
Colorado border. The topography
between Colorado sources and
California monitors is largely
mountainous, presenting an obstacle to
transport of emissions. Transport winds
typically travel west to east in the
western United States, making transport
of emissions from Colorado to California
unlikely. These factors combined lead
EPA to the conclusion that interference
with maintenance by Colorado sources
at 1997 PM2.5 NAAQS maintenance
receptors in California is very unlikely.
In conclusion, our analysis of the
weight of evidence indicates that
emissions of PM2.5 and/or its precursors
from the sources in Colorado are
unlikely to interfere with maintenance
of the 1997 24-hour and the annual
PM2.5 NAAQS by any other state.
D. EPA’s Evaluation of Colorado’s
Prevention of Significant Deterioration
(PSD)
The third element of section
110(a)(2)(D)(i) requires a SIP to contain
adequate provisions prohibiting
emissions that interfere with any other
state’s required measures to prevent
significant deterioration of its air quality
(CAA section 110(a)(2)(D)(i)(II)). EPA’s
2006 Guidance made recommendations
to states for making SIP submissions to
meet this requirement with respect to
both the 1997 8-hour ozone and PM2.5
NAAQS.
The 2006 Guidance states that the
PSD requirement of section
110(a)(2)(D)(i)(II) may be met by the
State’s confirmation in a SIP submission
that new major sources and major
modifications in the State are subject to
PSD and (if the State contains a
nonattainment area for the relevant
pollutant) Nonattainment New Source
Review (NNSR) programs that
implement the relevant standards.48 The
Guidance explains that the requirements
for PSD and NNSR programs include
provisions that protect air quality in
other states. Specifically, a PSD permit
may not be issued unless the new or
modified source demonstrates that
emissions from the construction or
operation of the facility will not cause
or contribute to air pollution in any
area—including areas in other States—
that exceeds any NAAQS or any
maximum allowable increase (i.e., PSD
increment).49 An NNSR permit may not
be issued unless the new or modified
source shows it has obtained sufficient
emissions reductions to offset increases
in emissions of the pollutants for which
an area is designated nonattainment,
consistent with reasonable further
progress toward attainment.50 Because
the PSD and NNSR permitting programs
currently applicable in each area require
a demonstration that new or modified
sources will not cause or contribute to
air pollution in excess of the NAAQS in
neighboring states or that sources in
nonattainment areas procure offsets,
States may satisfy the requirement of
section 110(a)(2)(D)(i)(II) regarding other
States’ required measures to prevent
significant deterioration of air quality by
submitting SIPs confirming that new
major sources and major modifications
in the State are subject to PSD and (if
applicable) NNSR programs that
implement the relevant standards.
1. PSD and NNSR SIP Requirements for
the 1997 8-Hour Ozone NAAQS
On November 29, 2005, EPA
published the Phase 2 implementation
rule for the 1997 8-hour ozone NAAQS
(‘‘Phase 2 Rule’’).51 For ozone
nonattainment areas, the Phase 2 Rule
requires revisions to States’ NNSR SIPs
to implement the requirements of the
CAA Amendments of 1990, as
applicable based on each area’s
classification for the ozone standard.52
Specifically, the Phase 2 Rule requires
that NNSR SIPs apply all NNSR
requirements that apply to major
sources of volatile organic compounds
(VOCs) to major NOX emissions sources,
except where a NOX waiver applies
under section 182(f) of the Act.53 In
addition, NNSR SIPs must include
provisions establishing the applicable
major stationary source thresholds,
significant emissions rates, and offset
ratios for VOCs and NOX based on each
area’s classification, as listed in Table
1.54
TABLE 1—VOC AND NOX THRESHOLDS AND OFFSET RATIOS BY OZONE CLASSIFICATION
Subpart 1 55
Marginal
Moderate
Serious
Severe
Major Source (tons per year (tpy)) .........................
Significant Emissions Rate (tpy) ............................
Offset Ratio 56 .........................................................
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Classification
100 ..............
40 ................
1 to 1 ...........
100 ..............
40 ................
1.1 to 1 ........
100 ..............
40 ................
1.15 to 1 ......
25 ................
25 ................
1.2 to 1 ........
25 ................
25 ................
1.3 to 1 ........
45 Id.
46 Data
from EPA’s Air Quality System, which is
EPA’s repository of ambient air quality data. (See
https://www.epa.gov/ttn/airs/airsaqs/).
47 The AQS design value data shows that in 2009
design values at monitors in these locations ranged
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from 60 μg/m3 in Fresno and Turlock, to 70 μg/m3
in Bakersfield.
48 2006 Guidance at 6.
49 42 U.S.C. 7475(a)(3); 40 CFR 51.166(k).
50 42 U.S.C. 7503(a)(1); 40 CFR 51.165(a)(3).
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51 70
Extreme
10.
0.
1.5 to 1.
FR 71612.
70 FR at 71675, 71698–99.
53 40 CFR 51.165(a)(8).
54 40 CFR 51.165(a)(1)(iv), (a)(1)(v), (a)(1)(x),
(a)(8), (a)(9).
52 See
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For areas designated unclassifiable/
attainment for the 1997 ozone NAAQS,
the Phase 2 Rule requires revisions to
PSD SIPs to require explicit
identification of NOx as an ozone
precursor.57 States were required to
submit the relevant PSD and NNSR SIP
revisions to address the 1997 8-hour
ozone NAAQS by June 15, 2007.58 In the
2006 Guidance, issued before the
deadline for States to submit the SIP
revisions described above, EPA
recommended States make a submission
confirming they were on track to meet
this deadline. At that point, Colorado
had no areas designated nonattainment
for ozone. However, on November 20,
2007, the Denver Metropolitan Area/
North Front Range (‘‘DMA/NFR’’) area
was designated nonattainment for the
1997 8-hour ozone standard and,
consistent with the approach taken in
the Phase 1 ozone implementation
rule,59 was made subject solely to the
requirements of subpart 1 discussed
above. Subsequently, the D.C. Circuit
Court of Appeals vacated those elements
of EPA’s Phase 1 ozone implementation
rule that placed areas solely under the
implementation requirements of subpart
1.60 As a result, areas such as the DMA/
NFR are now referred to as ‘‘former
subpart 1 areas.’’ EPA has proposed to
classify the DMA/NFR under subpart 2
of part D, title I of the Act as a
‘‘marginal’’ area but has not yet finalized
this rulemaking.61 In the interim, the
DMA/NFR area is still subject to the
subpart 1 requirements discussed above.
In Colorado’s March 31, 2010
submission, the State cites August 17,
2006 revisions to Colorado Regulation
No. 3 Part D to assert that they are on
track to meet the requirements of the
Phase 2 Rule within three years of the
DMA/NFR November 20, 2007
nonattainment designation. In this
action, EPA proposes to approve
portions of the August 17, 2006
revisions, submitted to EPA August 1,
2007, that implement the Phase 2 Rule.
Specifically, we propose approval of the
sections that adopt language to treat
nitrogen oxides as an ozone precursor.
Other portions of the August 17, 2006
revisions are being acted upon
separately. The sections that we propose
to approve are set out in the table below.
Provision location in
Colorado’s 8/17/06 Reg 3
Revision
Description of provision—language adopted August 17, 2006 to conform to
the Phase II Ozone Implementation Rule is underlined
D—II.A.22.a ........................
Significant Emissions Increase or Net Emissions Increase (at a major source)
that is significant for VOCs or NOX is significant for ozone.
Major source that is major for VOCs or NOX is major for ozone ......................
VOCs and NOX are precursors for ozone .........................................................
Significant rate of emissions for ozone means 40 tons per year of VOCs or
NOX.
D—II.A.24.d ........................
D—II.A.38.c ........................
D—II.A.42.a ........................
Colorado PSD program revisions that
EPA is also proposing to approve in this
action. EPA’s proposed approval of
Colorado’s Interstate Transport SIP for
the purposes of meeting the third
element of section 110(a)(2)(D)(i) is
contingent upon the final approval of
the PSD program revisions in the form
specified in EPA’s proposed approval,
referenced above. Colorado’s SIP
regulations for its PSD program were
federally-approved and made part of the
SIP on September 2, 1986.62 EPA is
proposing to approve, concurrent with
this action, Colorado’s PSD rule
revisions incorporating into the State’s
regulations the provisions of EPA’s
November 29, 2005 Phase 2 rule that
treat NOX as a precursor for ozone for
the 1997 8-hour ozone NAAQS.63
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These revisions are contained with
Colorado’s rules for its SIP-approved
PSD program. Colorado also has a
generic SIP-approved NNSR program
that applies in any nonattainment area
and that relies on the definitions
provided in the PSD program, but
separately imposes requirements that
sources achieve the lowest achievable
emission rate (‘‘LAER’’) and obtain
offsets in a ratio greater than one to one.
As a result of the structure of Colorado’s
NNSR program, the revisions to the PSD
program discussed above also apply to
it. Under these revisions, the State’s SIPapproved NNSR program meets the
currently applicable requirements of the
Phase 2 Rule (prior to reclassification of
the DMA/NFR nonattainment area) and
satisfies the requirements for the PSD
element of 110(a)(2)(D)(i) for the 1997
8-hour ozone NAAQS.
Colorado’s March 31, 2010 Interstate
Transport SIP submission is consistent
with the 2006 Guidance, when
considered in conjunction with the
Colorado has no areas designated
nonattainment for PM2.5 and
correspondingly no NNSR program for
55 Although the ‘‘subpart 1’’ category is not a
classification, the general requirements of subpart 1,
part D of title I of the CAA apply in all ozone
nonattainment areas (to the extent they are not
superseded by the more specific requirements of
subpart 2), including those areas now referred to as
‘‘former subpart 1 areas’’ under the DC Circuit Court
of Appeals’ vacatur of certain elements of EPA’s
Phase 1 ozone implementation rule. See S. Coast
Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (DC
Cir. 2006), reh’g denied, 489 F.3d 1245 (clarifying
that the vacatur was limited to the issues on which
the court granted the petitions for review).
56 For any nonattainment area classified as severe
or extreme, if the approved plan requires all
existing major sources in such an area to use BACT
to control VOC and NOX, then the ratio must be at
least 1.2 to 1. CAA sections 182(d)(2), (e)(1) and
182(f).
57 See 70 FR at 71679, 71699–700; 40 CFR
51.166(b)(1)(ii), (b)(2)(ii), (b)(23)(i).
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2. PSD SIP Requirements for the 1997
PM2.5 NAAQS
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Corresponding provision in
40 CFR 51.166
40 CFR 51.166(b)(2)(ii).
40 CFR 51.166(b)(1)(ii).
40 CFR 51.166(b)(49)(i).
40 CFR 51.166(b)(23)(i).
PM2.5. EPA thus considers only whether
Colorado’s SIP-approved PSD program
satisfies the requirements of the PSD
element of 110(a)(2)(D)(i) for the 1997
PM2.5 NAAQS. First, the 2006 Guidance
noted that EPA had not yet established
PSD increments for PM2.5 and therefore,
at that point it was difficult for states to
determine if additional measures were
needed to satisfy the requirements of the
PSD element of section 110(a)(2)(D)(i).
However, in a final rule published
October 20, 2010, EPA established PM2.5
increments.64 EPA set an applicability
date of October 20, 2011 for the new
increments and required States with
SIP-approved PSD programs to submit
updates incorporating these increments
by July 20, 2012.65 At this point, though,
incorporation of the PM2.5 increments is
not required to satisfy the PSD element
of section 110(a)(2)(D)(i).
The 2006 Guidance also discusses the
use of PM10 as a surrogate for PM2.5 in
PSD programs. As recommended in the
2006 Guidance, Colorado’s SIP declares
58 70
FR at 71683.
69 FR at 23951 (Apr. 30, 2004).
60 See S. Coast Air Quality Mgmt. Dist. v. EPA,
472 F.3d 882 (DC Cir. 2006), reh’g denied, 489 F.3d
1245.
61 74 FR 2936, 2944 (Jan. 16, 2009).
62 51 FR 31125.
63 70 FR at 71698–700.
64 75 FR 64864.
65 Id. at 64887–88, 64898.
59 See
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that the State will follow EPA’s interim
guidance on use of PM10 as a surrogate
for PM2.5.66 In response to EPA’s request
of December 1, 2010, the Colorado Air
Pollution Control Division, in a January
13, 2011 letter to the EPA Region 8 Air
Program, has clarified an ambiguity in
its interpretation of the interim
guidance.67 The letter states that, until
the guidance is ended or replaced,
Colorado will apply it consistent with
EPA’s interpretation of the federal case
law relevant to the use of the PM10
Surrogate Policy.68 The State will also
take into account the limits provided in
the policy itself, such as the need to
identify the technical difficulties that
justify the application of the policy in
each specific case.69 With that
clarification, the Colorado Interstate
Transport SIP satisfies the requirements
of the third element of section
110(a)(2)(D)(i) for the 1997 PM2.5
NAAQS.
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3. PSD SIP Requirements for
Greenhouse Gases
EPA notes a potential inconsistency
between Colorado’s Interstate Transport
SIP submission and EPA’s recently
promulgated rule, ‘‘Limitation of
Approval of Prevention of Significant
Deterioration Provisions Concerning
Greenhouse Gas Emitting-Sources in
State Implementation Plans’’ (‘‘PSD SIP
Narrowing Rule’’).70 In the PSD SIP
Narrowing Rule, EPA withdrew its
previous approval of Colorado’s PSD
program to the extent that it applied
PSD permitting to greenhouse gas (GHG)
emissions increases from GHG-emitting
sources below thresholds set in EPA’s
June 3, 2010 ‘‘Prevention of Significant
Deterioration and Title V Greenhouse
Gas Tailoring Rule’’ (‘‘Tailoring Rule’’).71
EPA withdrew its approval on the basis
that the State lacked sufficient resources
to issue PSD permits to such sources at
the statutory thresholds in effect in the
previously-approved PSD program.
After the PSD SIP Narrowing Rule, the
portion of Colorado’s PSD SIP from
which EPA withdrew its approval had
the status of having been submitted to
EPA but not yet acted upon. In
Colorado’s March 31, 2010 submission,
Colorado relied on its PSD program as
approved at that date—which was
before December 30, 2010, the effective
date of the PSD SIP Narrowing Rule—
66 See
2006 Guidance at 7.
from Paul Tourangeau, Director,
Colorado APCD, Clarifying use of PM10 Surrogacy
Policy (Jan 13, 2011), available in the docket for this
action.
68 See 75 FR 6827, 6831–32 (Feb. 11, 2010).
69 Id. at 6834.
70 75 FR 82536 (Dec. 30, 2010).
71 75 FR 31514.
67 Letter
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to satisfy the ‘‘interference with PSD’’
requirements of 110(a)(2)(D)(i). Given
EPA’s basis for the PSD SIP Narrowing
Rule, EPA proposes approval of the
Colorado Interstate Transport SIP
submission in its entirety if either the
State clarifies (or modifies) its
submission to make clear that the State
relies only on the portion of the PSD
program that remains approved after the
PSD SIP Narrowing Rule issued on
December 30, 2010, and for which the
State has sufficient resources to
implement, or the State acts to
withdraw from EPA consideration the
remaining portion of its PSD program
submission that would have applied
PSD permitting to GHG sources below
the Tailoring Rule thresholds.72 In the
alternative, if Colorado does not take
either action, EPA proposes to
disapprove the Interstate Transport SIP
to the extent it incorporates that portion
of the previously-approved PSD
program from which EPA withdrew its
approval in the PSD SIP Narrowing
Rule, which is the portion which would
have applied PSD permitting
requirements to GHG emissions
increases from GHG-emitting sources
below the Tailoring Rule thresholds.
Such disapproval, if finalized, would
not result in a need for Colorado to
resubmit a SIP revision, sanctions, or a
federal implementation plan (FIP).73
VI. Summary of Proposed Action
In light of the data and the weight-ofevidence analysis presented above, EPA
is proposing approval of portions of the
Colorado Interstate Transport SIP
addressing the requirements of CAA
section 110(a)(2)(D)(i) for the 1997 PM2.5
and 8-hour ozone NAAQS. On January
13, 2010, the Colorado AQCC adopted
interstate transport SIP revisions
addressing requirements (3) and (4) of
CAA section 110(a)(2)(D)(i) for the 1997
8-hour ozone NAAQS, and all four
requirements of CAA section
110(a)(2)(D)(i) for the 1997 PM2.5
NAAQS. Colorado submitted these
revisions to EPA on March 31, 2010.
Specifically, EPA is proposing to
approve the language and
demonstration of the March 31, 2010
submission that addresses three
requirements of section 110(a)(2)(D)(i)
with respect to the 1997 PM2.5 NAAQS:
(1) Prohibition of significant
contribution to nonattainment of the
NAAQS in any other state, (2)
prohibition of interference with
maintenance of the NAAQS by any
other state, and (3) prohibition of
72 EPA specified how to accomplish this in the
PSD SIP Narrowing Rule, 75 FR at 82538, 82540.
73 Id.
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Fmt 4702
Sfmt 4702
interference with other states’ required
measures to prevent significant
deterioration of air quality. EPA is also
proposing to approve the language and
demonstration that addresses
requirement (3) of section
110(a)(2)(D)(i)—prohibition of
interference with other states’ required
measures to prevent significant
deterioration of air quality—with
respect to the 1997 8-hour ozone
NAAQS.
VII. Statutory and Executive Order
Review
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
E:\FR\FM\19APP1.SGM
19APP1
Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile Organic
Compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 12, 2011.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. 2011–9451 Filed 4–18–11; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 204, 212, and 252
RIN 0750–AH02
Defense Federal Acquisition
Regulation Supplement (DFARS),
Alternative Line-Item Structure (DFARS
Case 2010–D017)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
establish a standard procedure for
offerors to propose an alternative lineitem structure that reflects the offeror’s
business practices for selling and billing
commercial items and initial
provisioning spares for weapon systems.
A new solicitation provision is provided
to facilitate offerors’ ability to propose
such changes to the solicitation
structure in their offer.
DATES: Comments on this proposed rule
should be submitted in writing to the
address shown below on or before June
20, 2011, to be considered in the
formation of the final rule.
jdjones on DSK8KYBLC1PROD with PROPOSALS-1
SUMMARY:
VerDate Mar<15>2010
13:54 Apr 18, 2011
Jkt 223001
Submit comments
identified by DFARS Case 2010–D017,
using any of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘DFARS Case 2010–D017’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2010–
D017.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2010–
D017’’ on your attached document.
Follow the instructions for submitting
comments.
• E-mail: dfars@osd.mil. Include
DFARS Case 2010–D017 in the subject
line of the message.
• Fax: 703–602–0350.
• Mail: Defense Acquisition
Regulations System, Attn: Mr. Julian
Thrash, OUSD (AT&L) DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://www.regulations.gov
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr.
Julian Thrash, 703–602–0310.
ADDRESSES:
I. Background
DoD is proposing to add new DFARS
language that provides offerors the
opportunity to propose an alternative
line-item structure in solicitations for
commercial items and initial
provisioning spares. This proposed
DFARS change will allow offerors to
provide information about their
products that may not have been known
to the Government prior to issuance of
the solicitation.
DoD identified the need to propose an
alternative line-item structure during
process reviews and working group
sessions that assessed destinationacceptance procedures. The process
reviews performed by DoD cross-service
working groups, which were chartered
by the Defense Finance and Accounting
System, examined issues causing
problems in the receipt and acceptance
phase for contract deliverables and
payments.
This group determined that the level
of detail in the requirements description
and line-item structure is not always
sufficient for delivery, payment, and
PO 00000
Frm 00035
Fmt 4702
Sfmt 4702
21847
subsequent inventory management of
the items delivered. For example, the
contract line item may be for a desktop
computer, but the actual items
delivered, invoiced, and inventoried
may reflect a separate monitor,
keyboard, and central processing unit.
The resultant misalignment of
transaction detail (i.e., contract line
item, invoiced unit, delivery and
inventory unit) is the cause of failures
in the electronic processes of the DoD’s
business enterprise requiring manual
intervention with potential delays in
contractor payment.
To address this recurring problem,
this rule is establishing and
standardizing a process to enable
offerors to propose changes in their offer
to the solicitation’s line-item structure.
Establishing such a process is a first step
towards managing variation in these
transactions by eliminating or reducing
manual intervention.
II. Proposed DFARS Changes
DoD is proposing to revise the DFARS
by adding—
—Paragraph (g) at 204.7103–1, Criteria
for establishing;
—A provision prescription at
204.7109(b);
—Reference to the new provision at
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items; and
—A provision at 252.204–70XX,
Alternative Line-Item Structure.
Although DoD believes the authority
to use an alternative line-item structure
currently exists within the Federal
Acquisition Regulation (FAR), offerors
may not be aware of, or be reluctant to
use, this authority to propose an
alternative line-item structure. For
example—
—FAR 15.203(a)(2) permits the
contracting officer to authorize
offerors to propose alternative terms,
conditions, and contract line-item
number structure.
—FAR 12.213, Other Commercial
Practices, encourages the contracting
officer to consider other commercial
practices for incorporation into the
solicitation and contract, if
appropriate. FAR 52.212–1(e),
Instructions to Offerors—Commercial
Items, Multiple Offers, encourages
offerors to submit multiple offers
presenting alternative terms and
conditions for commercial items for
satisfying the requirements of the
solicitation.
Notwithstanding the above, offerors
may not understand that they have this
latitude as they are not proposing
alternate line-item structure to reflect
E:\FR\FM\19APP1.SGM
19APP1
]]>Agencies
[Federal Register Volume 76, Number 75 (Tuesday, April 19, 2011)]
[Proposed Rules]
[Pages 21835-21847]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9451]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2007-1037; FRL-9297-4]
Approval and Promulgation of State Implementation Plans; State of
Colorado; Interstate Transport of Pollution Revisions for the 1997
PM2.5 and 8-Hour Ozone NAAQS: ``Significant Contribution,''
``Interference with Maintenance,'' and ``Interference with Prevention
of Significant Deterioration'' Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve portions of a State Implementation
Plan (SIP) revision submitted by the State of Colorado for the purpose
of addressing the ``good neighbor'' provisions of Clean Air Act
(``Act'' or ``CAA'') section 110(a)(2)(D)(i) for the 1997 8-hour ozone
National Ambient Air Quality Standards (``NAAQS'' or ``standards'') and
the 1997 fine particulate matter (``PM2.5'') NAAQS. This SIP
revision addresses the requirement that the State of Colorado's SIP
(``Interstate Transport SIP'') have adequate provisions to prohibit air
emissions from adversely affecting another state's air quality through
interstate transport. In this action, EPA is proposing to approve the
Colorado Interstate Transport SIP provisions that address the
requirement of section 110(a)(2)(D)(i) that emissions from Colorado
sources do not significantly contribute to nonattainment of the 1997
PM2.5 NAAQS in any other state, interfere with maintenance
of the 1997 PM2.5 NAAQS by any other state, or interfere
with any other state's required measures to prevent significant
deterioration of air quality for the 1997 PM2.5 and 8-hour
ozone NAAQS. This action is being taken under section 110 of the CAA.
DATES: Comments must be received on or before May 19, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-1037, by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: clark.adam@epa.gov.
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Deborah Lebow Aal, Acting Director, Air Program,
Environmental
[[Page 21836]]
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129.
Hand Delivery: Deborah Lebow Aal, Acting Director, Air
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 1595 Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-1037. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA, without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional instructions on submitting
comments, go to Section I. General Information of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly-available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop, Denver, Colorado 80202-1129. EPA requests that if at all
possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S.
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595
Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104,
clark.adam@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation Plan.
(iv) The words Colorado and State mean the State of Colorado.
Table of Contents
I. General Information
What should I consider as I prepare my comments for EPA?
II. What proposed action is EPA taking?
III. What is the background for this proposed action?
IV. What is the state process to submit these materials to EPA?
V. EPA's Review and Technical Information
A. Background on Section 110(a)(2)(D)(i)(I)
B. EPA's Evaluation of Colorado's Significant Contribution to
Nonattainment
C. EPA's Evaluation of Colorado's Interference With Maintenance
D. EPA's Evaluation of Colorado's Prevention of Significant
Deterioration (PSD)
VI. Summary of Proposed Action
VII. Statutory and Executive Order Review
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit CBI to EPA through https://www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. What proposed action is EPA taking?
EPA is proposing to approve a portion of Colorado's Interstate
Transport SIP revision for the 1997 8-hour ozone and 1997
PM2.5 NAAQS. This revision was submitted by the State on
March 31, 2010.\1\ Specifically, we are proposing to approve the
portion of the plan that addresses the following requirements of CAA
section 110(a)(2)(D)(i) which prohibit air pollutant emissions within
the State that: (1) Significantly contribute to nonattainment of the
1997 PM2.5 NAAQS in any other state; (2) interfere with
maintenance of the 1997 PM2.5 NAAQS by any other state; and
(3) interfere with any other state's required measures to prevent
significant deterioration of its air quality with
[[Page 21837]]
respect to the 1997 PM2.5 and 8-hour ozone NAAQS.
---------------------------------------------------------------------------
\1\ The March 31, 2010 submission superseded earlier SIP
submissions with respect to the section 110(a)(2)(D)(i) requirements
that are the subject of this proposed action.
---------------------------------------------------------------------------
III. What is the background for this proposed action?
On July 18, 1997, EPA promulgated new NAAQS for ozone and for
PM2.5. This action is being taken in response to the
promulgation of both the 1997 ozone and PM2.5 NAAQS. Section
110(a)(1) of the CAA requires states to submit SIPs to address a new or
revised NAAQS within 3 years after promulgation of such standards, or
within such shorter period as EPA may prescribe. Section 110(a)(2)
lists the elements that such new SIPs must address, as applicable,
including section 110(a)(2)(D)(i), which pertains to interstate
transport of certain emissions. On August 15, 2006, EPA issued its
``Guidance for State Implementation Plan (SIP) Submissions to Meet
Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the
8-Hour Ozone and PM2.5 National Ambient Air Quality
Standards'' (``2006 Guidance'').\2\ The 2006 Guidance recommends ways
states may, in their submissions, meet the requirements of section
110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5
standards.
---------------------------------------------------------------------------
\2\ Memorandum from William T. Harnett entitled, ``Guidance for
State Implementation Plan (SIP) Submissions To Meet Current
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-hour
Ozone and PM2.5 National Ambient Air Quality Standards''
(Aug. 15, 2006).
---------------------------------------------------------------------------
As identified in the 2006 Guidance, the ``good neighbor''
provisions in section 110(a)(2)(D)(i) require each state to submit a
SIP that prohibits emissions that adversely affect another state in the
ways contemplated in the statute. Section 110(a)(2)(D)(i) identifies
four distinct requirements related to the impacts of interstate
transport. The SIP must prevent sources in the state from emitting
pollutants in amounts which will: (1) Contribute significantly to
nonattainment of the NAAQS in any other state; (2) interfere with
maintenance of the NAAQS by any other state; (3) interfere with
required measures to prevent significant deterioration of air quality
in any other state; or (4) interfere with efforts to protect visibility
in any other state. In this rulemaking EPA is addressing the first
three requirements of section 110(a)(2)(D)(i).
On June 11, 2008, the State of Colorado submitted to EPA an
Interstate Transport SIP addressing all four requirements of CAA
section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5
NAAQS. In response to EPA's concerns regarding the June 11, 2008
submission, the State later submitted two superseding interstate
transport SIP revisions: (a) A June 18, 2009 submission addressing
requirements (1) and (2) of section 110(a)(2)(D)(i) for the 1997 8-hour
ozone NAAQS; and (b) a March 31, 2010 submission addressing
requirements (3) and (4) for the 1997 8-hour ozone NAAQS and
requirements (1) through (4) for the 1997 PM2.5 NAAQS. EPA
has previously approved the ``significant contribution to
nonattainment'' and the ``interfere with maintenance'' requirements for
the State of Colorado for the 1997 8-hour ozone NAAQS in final rule
actions published June 3 and November 22, 2010 (75 FR 31306; 75 FR
71029). EPA proposed approval of the ``interfere with visibility''
requirement for the 1997 8-hour ozone and PM2.5 NAAQS on
February 14, 2011 (76 FR 8326). In this rulemaking EPA is evaluating
only the portions of Colorado's March 31, 2010 submission that address
requirements (1), (2), and (3) for the 1997 PM2.5 NAAQS, and
requirement (3) for the 1997 8-hour ozone NAAQS. In its submission, the
State indicated that its current SIP already contains provisions
adequate to prevent such contribution and interference. EPA is
proposing to find that, as stated by Colorado in the March 31, 2010
submission, the Colorado Interstate Transport SIP has adequate
provisions addressing requirements (1), (2), and (3) of section
110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS and requirement (3)
for the 1997 8-hour ozone NAAQS.
IV. What is the state process to submit these materials to EPA?
Section 110(k) of the CAA addresses EPA's rulemaking action on SIP
submissions by states. The CAA requires states to observe certain
procedural requirements in developing SIP revisions for submission to
EPA. Sections 110(a)(1) and (2) of the CAA require that each SIP
revision be adopted after reasonable notice and public hearing. This
must occur prior to the revision being submitted by a state to EPA.
The Colorado Air Quality Control Commission (AQCC) held a public
hearing in December 2009 for the Interstate Transport SIP revision:
``State of Colorado Implementation Plan To Meet the Requirements of the
Clean Air Act Section 110(a)(2)(D)(i)(I) and (II)--Regarding Interstate
Transport for the 1997 8-Hour Ozone and PM2.5 NAAQS.'' The
AQCC adopted this revision on January 13, 2010, and the State submitted
it to EPA on March 31, 2010. As discussed above, the March 31, 2010
submission addresses the elements of 110(a)(2)(D)(i) that are the
subject of this proposed action.
EPA has reviewed the March 31, 2010, submission from the State of
Colorado and has determined that the State met the requirements for
reasonable notice and public hearing under section 110(a)(1) and (2) of
the CAA.
V. EPA's Review and Technical Information
EPA is evaluating the State's submission in light of the statutory
requirements of section 110(a)(2)(D)(i). In particular, section
110(a)(2)(D)(i)(I) requires that a SIP contain provisions adequate to
prevent emissions from sources in that state from contributing
significantly to nonattainment of the relevant NAAQS, or interfering
with maintenance of the relevant NAAQS, in any other state. Section
110(a)(2)(D)(i)(II) contains a similar requirement that a SIP contain
provisions adequate to prevent emissions from sources in the state from
interfering with measures required to prevent significant deterioration
of air quality in any other state.
To assist states with SIP submissions for the 1997 8-hour ozone
NAAQS and the 1997 PM2.5 NAAQS, EPA issued the 2006 Guidance
to make recommendations with respect to all four requirements of
section 110(a)(2)(D)(i). More recently, EPA has proposed a rule
(``Transport Rule Proposal'') addressing the ``significant contribution
to nonattainment'' and ``interfere with maintenance'' requirements of
110(a)(2)(D)(i) for many states located in the eastern United
States.\3\ Although Colorado is not among the states that EPA is
considering for inclusion within the geographic region that may be
covered by the final rule that will be based upon the Transport Rule
Proposal, EPA is using a comparable approach to evaluate the emissions
from sources in Colorado, as well as considering certain data developed
to support the Transport Rule Proposal as discussed in more detail
below, as part of evaluating the issue of interstate transport from
Colorado for the first two requirements. For the third requirement, EPA
is evaluating the SIP submission from the state in light of the
recommendations contained in the Agency's prior 2006 guidance document
and in light of other subsequent actions as discussed below.
---------------------------------------------------------------------------
\3\ ``Federal Implementation Plans To Reduce Interstate
Transport of Fine Particulate Matter and Ozone,'' 75 FR 45210 (Aug.
2, 2010).
---------------------------------------------------------------------------
[[Page 21838]]
A. Background on Section 110(a)(2)(D)(i)(I)
The first two elements of section 110(a)(2)(D)(i) require states to
have SIPs with adequate provisions to prevent any source or other type
of emissions activity within the state from emitting air pollutants in
amounts that will ``contribute significantly'' to nonattainment in
other states or will ``interfere with maintenance'' of the NAAQS by any
other state. The terms ``contribute significantly'' and ``interfere
with maintenance'' are not defined in the statute. Therefore, EPA has
interpreted these terms in past regulatory actions addressing
interstate transport, such as the 1998 NOX SIP Call, in
which EPA took action to eliminate emissions of NOX that
significantly contributed to nonattainment, or interfered with
maintenance of, the then applicable ozone NAAQS through interstate
transport of NOX and the resulting ozone.\4\ The
NOX SIP Call was the mechanism through which EPA evaluated
whether or not the NOX emissions from sources in certain
states had such prohibited interstate impacts, and if they had such
impacts, required the states to adopt substantive SIP revisions to
eliminate the NOX emissions, whether through participation
in a regional cap and trade program or by other means.
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\4\ See, 63 FR 57356 (Oct. 27, 1998). EPA's general approach to
section 110(a)(2)(D) was upheld in Michigan v. EPA, 213 F.3d 663 (DC
Cir. 2000), cert. denied, 532 U.S. 904 (2001). However, EPA's
approach to interference with maintenance in the NOX SIP
Call was not explicitly reviewed by the court. See, North Carolina
v. EPA, 531 F.3d 896, 907-09 (DC Cir. 2008).
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After promulgation of the 1997 8-hour ozone and PM2.5
NAAQS, EPA again recognized that regional transport was a serious
concern throughout the eastern U.S. and therefore developed the 2005
Clean Air Interstate Rule (CAIR) to address emissions of SO2
and NOX that exacerbate ambient ozone and PM2.5
levels in many downwind areas through interstate transport.\5\ Within
CAIR, EPA likewise interpreted the terms ``contribute significantly''
and ``interfere with maintenance'' as part of the evaluation of whether
or not the emissions of sources in certain states had such impacts on
areas that EPA determined would either be in violation of the NAAQS, or
would be in jeopardy of violating the NAAQS, in a modeled future year
unless actions were taken by upwind states to reduce SO2 and
NOX emissions. Through CAIR, EPA again required states that
had such interstate impacts to adopt substantive SIP revisions to
eliminate the SO2 and NOX emissions, whether
through participation in a regional cap and trade program or by other
means.
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\5\ See, 70 FR 25162 (May 12, 2005).
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EPA's 2006 Guidance addressed section 110(a)(2)(D)(i) requirements
for the 1997 8-hour ozone and PM2.5 NAAQS. For those states
subject to CAIR, EPA indicated that compliance with CAIR would meet the
two requirements of section 110(a)(2)(D)(i)(I) for these NAAQS. For
states not within the CAIR region, EPA recommended that states evaluate
whether or not emissions from their sources would ``contribute
significantly'' or ``interfere with maintenance'' in other states,
following the conceptual approach adopted by EPA in CAIR. After
recommending various types of information that could be relevant for
the technical analysis to support the SIP submission, such as the
amount of emissions and meteorological conditions in the state, EPA
further indicated that it would be appropriate for the state to assess
impacts of its emissions on other states using considerations
comparable to those used by EPA ``in evaluating significant
contribution to nonattainment in the CAIR.'' \6\ EPA did not make
specific recommendations for how states should assess ``interfere with
maintenance'' separately, and discussed the first two elements of
section 110(a)(2)(D) together without explicitly differentiating
between them.
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\6\ 2006 Guidance at 5.
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In 2008, however, the U.S. Court of Appeals for the D.C. Circuit
found that CAIR and the related CAIR federal implementation plans were
unlawful.\7\ Among other issues, the court held that EPA had not
correctly addressed the second element of section 110(a)(2)(D)(i)(I) in
CAIR. The court noted that ``EPA gave no independent significance to
the `interfere with maintenance' prong of section 110(a)(2)(D)(i)(I) to
separately identify upwind sources interfering with downwind
maintenance.'' \8\ EPA's approach, the court reasoned, would leave
areas that are ``barely meeting attainment'' with ``no recourse'' to
address upwind emissions sources.\9\ The court therefore concluded that
a plain language reading of the statute requires EPA to give
independent meaning to the interfere with maintenance requirement of
section 110(a)(2)(D) and that the approach used by EPA in CAIR failed
to do so.
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\7\ See, North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008).
\8\ Id. at 909.
\9\ Id.
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In addition to affecting CAIR directly, the court's decision in the
North Carolina case indirectly affects EPA's recommendations to states
in the 2006 Guidance with respect to the interfere with maintenance
element of section 110(a)(2)(D)(i)(I) because the agency's guidance
suggested that states use an approach comparable to that used by EPA in
CAIR. States such as Colorado developed and adopted their Interstate
Transport SIPs not long after the Court's July 2008 decision, but well
before EPA, in the Transport Rule Proposal (see below), was able to
propose a new approach for the interference with maintenance element.
Without recommendations from EPA, Colorado's SIP may not have
sufficiently differentiated between the significant contribution to
nonattainment and interference with maintenance elements of the
statute, and relied in a general way on the difference between
monitored concentrations and the 1997 PM2.5 NAAQS to
evaluate the impacts of State emissions on maintenance of the NAAQS in
other states. It is necessary to evaluate these state submissions for
section 110(a)(2)(D)(i)(I) in such a way as to assure that the
interfere with maintenance element of the statute is given independent
meaning and is appropriately evaluated using the types of information
that EPA recommended in the 2006 Guidance. To accomplish this, it is
necessary to use an updated approach to this issue and to supplement
the technical analysis provided by the State in order to evaluate the
submissions with respect to both the significant contribution and the
interfere with maintenance elements of section 110(a)(2)(D)(i)(I).
EPA has recently proposed a new rule, the ``Federal Implementation
Plans to Reduce Interstate Transport of Fine Particulate Matter and
Ozone'' (``Transport Rule Proposal''), in order to address interstate
transport under section 110(a)(2)(D)(i)(I) and the judicial remand of
CAIR.\10\ As part of the Transport Rule Proposal, EPA specifically
reexamined the section 110(a)(2)(D)(i)(I) requirement that emissions
from sources in a state must not ``interfere with maintenance'' of the
1997 8-hour ozone NAAQS and 1997 PM2.5 NAAQS by other
states. In the proposal, EPA developed an approach to identify areas
that it predicts to be close to the level of the 1997 8-hour ozone
NAAQS and 1997 PM2.5 NAAQS in the future, and therefore at
risk to become or continue to be nonattainment
[[Page 21839]]
for these NAAQS unless emissions from sources in other states are
appropriately controlled. This approach starts by identifying those
specific geographic areas for which further evaluation is appropriate
and differentiating between areas where the concern is with
interference with maintenance with those where the concern is with
significant contribution to nonattainment.
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\10\ 75 FR 45210 (Aug. 2, 2010).
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As described in more detail below, EPA's Transport Rule analysis
evaluates data from existing monitors over three overlapping three-year
periods (i.e., 2003-2005, 2004-2006, and 2005-2007), as well as air
quality modeling data, in order to determine which areas are predicted
to be violating the 1997 8-hour ozone and PM2.5 NAAQS in
2012, and which areas are predicted potentially to have difficulty with
maintaining attainment as of that date. In essence, if an area's
projected data for 2012 indicates that it would be violating the NAAQS
based on the average of these three overlapping periods, then this
monitor location is appropriate for comparison for purposes of the
significant contribution to nonattainment element of section
110(a)(2)(D)(i). If, however, an area's projected data indicate that it
would be violating the NAAQS based on the highest single three year
period, but not over the average of the three periods, then this
monitor location is appropriate for comparison for purposes of the
interfere with maintenance element of the statute.
For the PM2.5 NAAQS, EPA evaluated concentrations of
both the annual PM2.5 NAAQS and the 24-hour PM2.5
NAAQS. The 1997 annual PM2.5 NAAQS is met when the 3-year
average of the annual mean concentration is 15.0 micrograms per cubic
meter ([mu]g/m3) or less. The 3-year average annual mean
concentration is computed at each site by averaging the daily Federal
Reference Method (FRM) samples by quarter, averaging these quarterly
averages to obtain an annual average, and then averaging the three
annual averages to get the design value. The 1997 24-hour
PM2.5 NAAQS is met when the 3-year average of the annual
98th percentiles is 65 [mu]g/m3 or less.\11\ The 3-year
average mean 98th percentile concentration is computed at each site by
averaging the 3 individual annual 98th percentile values at each site.
The 3-year average 98th percentile concentration is referred to as the
24-hour average design value.
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\11\ The 2006 24-hour PM2.5 NAAQS, which is not the
subject of this action, is met when the 3-year average of the annual
98th percentile PM2.5 concentrations is 35 [mu]g/
m3 or less.
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To project future annual PM2.5 design values, EPA relied
on monitoring data from the AQS combined with photochemical air quality
modeling results. The Transport Rule Proposal generates the projected
future PM2.5 values based on an average of three design
value periods which include the years 2003-2007 (i.e., design values
for 2003-2005, 2004-2006, and 2005-2007). The average of the three
design values creates a 5-year ``weighted average'' value. The 5-year
weighted average values were then projected to the future years that
were analyzed for the Transport Rule Proposal.\12\ EPA used the 5-year
weighted average concentrations to project concentrations anticipated
in 2012 to determine which monitoring sites are expected to be
nonattainment in this future year. EPA also projected 2012 design
values based on each of the three base design value year periods (i.e.,
2003-2005, 2004-2006, and 2005-2007). The highest future projection is
referred to as the ``maximum design value'' and gives an indication of
potential variability in future projections due to differences in
actual meteorology and emissions from what was modeled.
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\12\ Transport Rule Proposal, 75 FR at 45246-51. Additional
information concerning these weighted averages is provided in the
Western States Design Values Memo.
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EPA then used these weighted averages and maximum design values to
identify nonattainment and maintenance receptors. For the 1997 annual
PM2.5 NAAQS, EPA defined nonattainment receptors as those
sites with an annual PM2.5 5-year weighted average
concentration (average design value) above 15.05 [mu]g/m3 in
2012. EPA then defined as maintenance receptors those sites that are
projected to be attainment based on the 5-year weighted average design
value, but that have a maximum design value (based on a projected
single three year period) above 15.05 [mu]g/m3 in 2012.
These maintenance sites are attaining the NAAQS based on the projected
average design values, but EPA anticipates that there will be more
difficulty in maintaining attainment of the NAAQS at these locations if
there are adverse variations in meteorology or emissions.
By this method, EPA has identified those areas--the nonattainment
receptors--that are appropriate for evaluating whether emissions from
sources in another state could significantly contribute to
nonattainment. Likewise, EPA has identified those areas--the
maintenance receptors--that are appropriate for evaluating whether the
emissions from sources in another state could interfere with
maintenance. EPA then uses a ``weight-of-evidence'' analysis, separate
from that used in the Transport Rule Proposal, to examine the potential
impacts of emissions from upwind states on these nonattainment and
maintenance receptors in downwind states. This proposed approach for
identifying those areas that are predicted to have nonattainment or
maintenance problems is appropriate to evaluate the section
110(a)(2)(D)(i) SIP submission of a state for the significant
contribution and interfere with maintenance elements. EPA's 2006
Guidance did not provide this specific recommendation to states, but in
light of the court's decision on CAIR, EPA will itself follow this
approach in acting upon the Colorado submission.
As explained in the 2006 Guidance, section 110(a)(2)(D)(i) SIP
submissions from all states do not necessarily need to follow precisely
the same analytical approach as CAIR. In the 2006 Guidance, EPA stated
that: ``EPA believes that the contents of the SIP submission required
by section 110(a)(2)(D)(i) may vary depending upon the facts and
circumstances related to the specific NAAQS. In particular, the data
and analytical tools available at the time the State develops and
submits a SIP for a new or revised NAAQS necessarily affects the
contents of the required submission.'' \13\ EPA also indicated in the
2006 Guidance that it did not anticipate that sources in states outside
the geographic area covered by CAIR were significantly contributing to
nonattainment, or interfering with maintenance, in other states.\14\ As
noted in the Transport Rule Proposal, the more widespread and serious
transport problems in the eastern United States are analytically
distinct. For the 1997 8-hour ozone NAAQS and the 1997 PM2.5
NAAQS, nonattainment and maintenance problems in the western United
States are relatively local in nature with only limited impacts from
interstate transport.\15\ In the Transport Rule Proposal, EPA did not
calculate interstate ozone or PM2.5 contributions to or from
western states, including Colorado.
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\13\ 2006 Guidance at 3.
\14\ Id. at 5.
\15\ Transport Rule Proposal, 75 FR at 45227.
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Accordingly, section 110(a)(2)(D)(i) SIP submissions for states not
evaluated in the Transport Rule Proposal may be evaluated using a
weight-of-evidence approach that takes into account available relevant
information, such as
[[Page 21840]]
that recommended by EPA in the 2006 Guidance for states outside the
area affected by CAIR. Such information may include, but is not limited
to, the amount of emissions in the state relevant to the NAAQS in
question, the meteorological conditions in the area, the distance from
the state to the nearest monitors in other states that are appropriate
receptors, or such other information as may be probative to consider
whether sources in the state may significantly contribute to
nonattainment or interfere with maintenance of the 1997
PM2.5 NAAQS in other states. These submissions can rely on
modeling when acceptable modeling technical analyses are available, but
modeling is not necessarily required if other available information is
sufficient to evaluate the presence or degree of interstate transport
in a given situation.
B. EPA's Evaluation of Colorado's Significant Contribution to
Nonattainment
To meet the requirements of section 110(a)(2)(D)(i), the State of
Colorado on March 31, 2010 made a submission to EPA addressing all four
110(a)(2)(D)(i) requirements for the 1997 PM2.5 NAAQS, and
requirements (3) and (4) for the 1997 8-hour ozone NAAQS. The State
used many of the methods recommended in the 2006 Guidance. This
included consideration of information such as the geographic location
of violating areas and meteorological data. The State's submission also
considered AQS monitoring data from Colorado and surrounding states.
The State's submission concluded that its own analysis ``supports the
assertion that Colorado does not contribute significantly to
nonattainment in, or interfere with maintenance by, any other state
with respect to the 1997 PM2.5 NAAQS.'' \16\ In its
submission, the State of Colorado further indicated that its current
SIP is adequate to prevent such contribution and interference, and
therefore no additional reductions would be necessary to prevent such
contribution or interference.
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\16\ See ``State of Colorado Implementation Plan to Meet the
Requirements of the Clean Air Act Section 110(a)(2)(d)(i)(I) and
(II)--Regarding Interstate Transport for the 1997 8-Hour Ozone and
PM2.5 NAAQS'' at 46, available in the docket for this
action.
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Colorado submitted its Interstate Transport SIP before the
Transport Rule Proposal was completed and available. Therefore, the
State could not have anticipated which nonattainment receptors EPA
would consider most appropriate for the analysis of the impact of
transport from Colorado's sources on PM2.5 levels in other
states. In this proposal, EPA therefore conducts additional analysis,
using a weight-of-evidence approach separate from that used in the
Transport Rule Proposal, to determine if emissions from Colorado
sources significantly contribute to nonattainment of the 1997
PM2.5 NAAQS in any other state. This analysis considers: (a)
Portions of EPA modeling and analysis conducted for the 2005 CAIR and
the 2010 Transport Rule Proposal;\17\ (b) projections of western
nonattainment and maintenance receptors based on Transport Rule
modeling; \18\ and (c) geographical, topographical and meteorological
factors relevant to the potential for pollution transport. None of
these factors is by itself determinative of whether emissions from
Colorado significantly contribute to nonattainment of the 1997
PM2.5 NAAQS in any other state. However, when considered
together through the weight-of-evidence approach, the factors provide
the basis for a reliable qualitative assessment of significant
contribution.
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\17\ Specifically, from CAIR, EPA considers only CAIR Proposal
PM2.5 zero-out modeling analysis. From the Transport Rule
Proposal, EPA considers: (a) Projected annual PM2.5
nonattainment receptor locations; (b) projected statewide
SO2 and NOX emission data for Colorado and
three states east of Colorado (Kansas, Nebraska, and Oklahoma); and
(c) projected downwind contributions to annual PM2.5
nonattainment receptors for Kansas, Nebraska, and Oklahoma.
\18\ Memorandum from Brian Timin, EPA Office of Air Quality
Planning and Standards, ``Documentation of Future Year Ozone and
Annual PM2.5 Design Values for Western States,'' (Aug.
23, 2010) (``Western States Design Values Memo''), available in the
docket for this action.
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As described in detail above, in the Transport Rule Proposal, EPA
projected future concentrations of PM2.5 to identify
receptors that are expected to be violating the 1997 PM2.5
NAAQS in 2012. For the 1997 annual PM2.5 NAAQS, the
receptors EPA identified in the Transport Rule Proposal nearest to
Colorado are located in Chicago, IL to the northeast, East St. Louis,
IL to the east, and Birmingham, AL to the southeast.\19\ No monitoring
sites within the geographic region addressed in the Transport Rule
Proposal analysis were projected to be violating the 1997 24-hour
PM2.5 NAAQS.\20\
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\19\ Transport Rule Proposal, 75 FR at 45247-48 (Table IV.C-7).
\20\ Id. at 45249-51 (Table IV.C-9).
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Available information indicates that emissions from Colorado are
unlikely to contribute significantly to violations of the 1997 annual
PM2.5 NAAQS in Chicago, IL, in East St. Louis, IL, or in
Birmingham, AL. In our rulemaking process for CAIR, EPA modeled the
contribution from individual states to counties in the eastern U.S.
projected to be nonattainment for the 1997 annual PM2.5
NAAQS in 2010. According to this modeling, EPA projected annual
PM2.5 contributions from Colorado sources to Cook County
(Chicago), IL in 2010 to be 0.03 [mu]g/m3,\21\ which is well
below the significance threshold of one percent of the NAAQS (0.15
[mu]g/m3 for the 1997 annual PM2.5 NAAQS) used in
the Transport Rule Proposal. Contributions from Colorado to annual
PM2.5 emissions in Saint Clair County (East St. Louis), IL
in 2010 were modeled to be 0.04 [mu]g/m3. Finally, projected
contributions from Colorado to annual PM2.5 emissions in
Jefferson County (Birmingham), AL were modeled to be 0.03 [mu]g/
m3, also far below the significance threshold. The CAIR
Proposal modeling used a 2010 future year assessment versus the 2012
year used in the Transport Rule Proposal, so it is not determinative of
significant contribution from Colorado to these receptors, but it does
provide an initial piece of evidence for EPA's weight-of-evidence
analysis.
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\21\ ``Technical Support Document for the Interstate Air Quality
Rule Air Quality Modeling Analyses Appendix H, PM2.5
Contributions to Downwind Nonattainment Counties in 2010'' (Jan. 30,
2004), available in the docket for this action.
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Certain portions of the Transport Rule Proposal modeling analysis
provide more evidence that emissions of PM2.5 or its
precursors from Colorado sources are not likely to contribute
significantly to the nonattainment receptors (identified above) in
Illinois and Alabama, or to any nonattainment receptors located in
states further east.\22\ EPA did not model the impacts of emissions
from Colorado sources on receptors in other states as part of the
Transport Rule Proposal. However, Kansas, Nebraska and Oklahoma were
among the states whose interstate contribution to annual
PM2.5 nonattainment receptors in other states EPA did model
for the Transport Rule Proposal.\23\ None of these three states
(Kansas, Oklahoma and Nebraska) was projected to contribute more than
0.09 [mu]g/m3 (60% of the significance threshold) to any
annual PM2.5 nonattainment receptor inside the
[[Page 21841]]
Transport Rule Proposal domain in 2012.\24\
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\22\ Transport Rule Proposal, 75 FR at 45247-48 (Table IV.C-7).
\23\ As technical support for the Transport Rule Proposal, all
48 contiguous states were modeled using a horizontal grid resolution
of 36 x 36 km. States in the eastern U.S. modeled for contribution
in the Transport Rule Proposal, including Kansas, Nebraska and
Oklahoma, were also modeled using a finer horizontal grid resolution
of 12 x 12 km. Contribution was determined using zero-out modeling.
\24\ Transport Rule Proposal, 75 FR at 45255 (Table IV.C-13).
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For the Transport Rule Proposal, EPA projected total emissions for
NOX and SO2, the two major precursors for
PM2.5, for each of the 48 contiguous states in 2012 and
2014. Colorado's NOX and SO2 emissions were
generally less than or similar to those in Kansas, Oklahoma and
Nebraska.\25\ Under prevailing meteorological conditions, all three
states are typically downwind from Colorado and upwind of the
nonattainment receptors in the eastern U.S. Furthermore, emissions from
Colorado must travel a greater distance (compared to these three
states) to reach nonattainment receptors in the eastern U.S.\26\ Though
distance by itself is not an obstacle to long range transport of
PM2.5 and/or its precursors, and therefore by itself not
determinative of significant contribution, greater distance provides
greater opportunities for PM2.5 and precursor dispersion
and/or removal from the atmosphere due to the effect of winds or
chemical sink processes. In summary, EPA-projected PM2.5
precursor emissions from Colorado are lower or similar to those in
Kansas, Nebraska or Oklahoma, and, based on geography and meteorology,
emissions from these three states are more likely to reach
nonattainment receptors in the eastern U.S. than are emissions from
Colorado. Therefore, because Kansas, Nebraska and Oklahoma are each
well below the significance threshold for contribution for the annual
PM2.5 NAAQS in the Transport Rule Proposal, Colorado is
likely to be even further below the significance threshold. This
consideration, along with the 2004 CAIR Proposal modeling, when taken
into account under the weight-of-evidence approach, shows that Colorado
emissions are very unlikely to contribute significantly to violations
of the 1997 annual PM2.5 standard at nonattainment receptors
in Illinois, Alabama or any states further east.
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\25\ See ``Technical Support Document (TSD) for the Transport
Rule Docket ID No. EPA-HQ-OAR-2009-0491. Emission Inventories'' at
40-43 (June 2010). Based on these projections, in 2012, Kansas will
have higher NOX (~24%) and SO2 (~35%)
emissions than Colorado, Oklahoma will have higher NOX
(~54%) and SO2 (~147%) emissions than Colorado, and
Nebraska will have lower NOX (~23%) and higher
SO2 (~94%) emissions than Colorado.
\26\ At the shortest possible distance for each measurement, the
eastern Colorado border is approximately 320 miles west of the
eastern Nebraska border, 370 miles west of the eastern Kansas
border, and 410 miles west of the eastern Oklahoma border. It should
be noted that the measured distance represents that of the straight
(and shortest) path, which does not reflect the more circuitous
paths typically followed by air parcels.
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To assist in the evaluation of whether emissions from a state's
sources contribute significantly to nonattainment of the NAAQS in
western states, EPA has also developed an analysis identifying monitors
projected to be in nonattainment or at risk for maintenance of the
NAAQS within a modeling domain that includes the western states. The
analysis presented in the memo, ``Documentation of Future Year Ozone
and Annual PM2.5 Design Values for Western States,'' \27\
(``Western State Design Values Memo'') uses model results from the
Transport Rule Proposal based on a continental U.S. 36 km grid, which
is coarser than the final 12 km grid used in the Transport Rule for the
eastern states. Though the 36 km grid is more coarse, EPA considers
these modeling results sufficient to determine the appropriate
nonattainment and maintenance receptors for analysis of interstate
transport from Colorado to other western states. In identifying these
receptors, the Western States Design Values Memo takes the same
approach as the Transport Rule Proposal (5 year weighted average design
values to project 2012 concentrations).\28\ For the 1997 annual
PM2.5 NAAQS, the nonattainment receptors identified in the
Memo are all located in southern and central California, and the
nonattainment receptor nearest to Colorado is located in San
Bernardino, CA.
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\27\ Supra n. 18.
\28\ Id. at 5.
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In the Western States Design Values Memo, EPA did not calculate
interstate PM2.5 contributions to or from western states.
Therefore, EPA is using a weight-of-evidence approach to determine if
the emissions from Colorado sources contribute significantly to
nonattainment for receptors in San Bernardino, CA, or other
nonattainment receptors in California further west. Distance and
topography, although not determinative by themselves, indicate that
PM2.5 transport from Colorado to California is unlikely. The
southwestern corner of Colorado is approximately 500 miles from San
Bernardino, making distance an obstacle for PM2.5 emissions
transport. Moreover, the mountainous topography between Colorado's
sources and California's nearest nonattainment receptors presents a
large obstacle to PM2.5 transport. The prevailing wind
orientation also provides evidence that Colorado's emissions are
unlikely to contribute significantly to nonattainment of the 1997
annual PM2.5 NAAQS in California. West of the Continental
Divide the prevailing winds generally move from south-westerly,
westerly, or north-westerly directions, as indicated by the typical
movement of weather systems.
Finally, projected design values presented in the Western States
Design Values Memo provide some evidence that significant contribution
from Colorado sources to annual PM2.5 nonattainment
receptors in California is unlikely. The highest projected average
PM2.5 design value for 2012 in Colorado is 9.36 [mu]g/
m3, or 64% of the 1997 annual PM2.5 NAAQS.\29\
The highest projected average PM2.5 design value for 2012
throughout Utah, Arizona and Nevada, the states between Colorado and
California, is 12.7 [mu]g/m3, or 84.6% of the NAAQS.\30\
Given the distance between Colorado sources and California
nonattainment receptors, the intervening mountainous topography, the
general west-to-east direction of transport winds in the western U.S.,
and the low projected PM2.5 design values in Colorado and
intervening states, the weight-of-evidence makes it reasonable to
conclude that Colorado sources are very unlikely to contribute
significantly to nonattainment of the 1997 annual PM2.5
NAAQS in California.
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\29\ Western States Design Values Memo, Appendix A.
\30\ Id.
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EPA did not project 2012 design values for the 1997 24-hour
PM2.5 NAAQS in the Western States Design Values Memo. EPA
therefore used the most recent AQS monitoring data to determine the
monitor nearest to Colorado with a design value above the 1997 24-hour
PM2.5 NAAQS. Based on recent monitoring data (2009 design
values), the highest 24-hour PM2.5 design value in 47 of the
48 states of the continental U.S. (not including California) is 50
[mu]g/m3, which is well below the level of the 1997 24-hour
PM2.5 NAAQS of 65 [mu]g/m3.\31\ In California,
the most recent (2009) 24-hour PM2.5 design values show that
the monitor nearest Colorado that might be violating the 1997 24-hour
PM2.5 NAAQS is in Bakersfield.\32\ Transport of emissions
from Colorado sources to PM2.5 receptors in Bakersfield is
very unlikely, based on a similar weight-of-evidence analysis as for
San Bernardino above. Bakersfield is roughly 570 miles from the nearest
Colorado border. The topography between Colorado sources and California
monitors is largely
[[Page 21842]]
mountainous, presenting an obstacle to transport of emissions. Winds
typically travel west to east in the western United States, making
transport of emissions from Colorado to California unlikely. Under the
weight-of-evidence approach, these factors combined lead EPA to the
conclusion that significant contribution from Colorado sources to 24-
hour PM2.5 nonattainment monitors in California is very
unlikely.
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\31\ Data from EPA's Air Quality System, which is EPA's
repository of ambient air quality data. (See https://www.epa.gov/ttn/airs/airsaqs/).
\32\ The AQS design value data shows 2009 design values in
Bakersfield of roughly 70 [mu]g/m3.
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In conclusion, our analysis indicates that emissions of
PM2.5 and/or its precursors from the sources in Colorado are
unlikely to contribute significantly to nonattainment of the 1997 24-
hour and annual PM2.5 NAAQS in any other state.
C. EPA's Evaluation of Colorado's Interference With Maintenance
As discussed above, following the 2006 Guidance and consistent with
EPA's approach in CAIR, Colorado's submission for section
110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS did not evaluate
whether emissions from the sources in the state interfere with
maintenance of these NAAQS by other states, separately from evaluation
of significant contribution to nonattainment in other states. Instead,
the State presumed that if Colorado sources did not significantly
contribute to violations of the NAAQS in other states, then no further
specific evaluation was necessary for purposes of the interference with
maintenance element of section 110(a)(2)(D)(i)(I). As explained above,
however, CAIR was remanded to EPA, in part because the court found that
EPA had failed to give independent meaning to the ``interfere with
maintenance'' requirement, a concern that EPA has addressed in the
Transport Rule Proposal. However, Colorado submitted its Interstate
Transport SIP without the benefit of EPA's new approach. Accordingly,
we are evaluating the state's submission using additional information
to address the issue of interference with maintenance.
In particular, EPA has developed an approach to identify those
monitors for PM2.5 that are located in areas appropriate for
consideration as receptors for evaluating the potential for inference
with maintenance of the 1997 PM2.5 NAAQS. As discussed in
more detail above in section A, EPA has examined data from existing
monitors for three overlapping three year periods to predict what areas
may have difficultly attaining the NAAQS in 2012. By identifying these
monitors, EPA can then use available analytical tools to determine
whether emissions from sources in a state are having an impact on other
states, and the degree of that impact.
EPA did not model the contribution of emissions from Colorado
sources (because Colorado and other western states are not fully inside
the Transport Rule Proposal's modeling domain) to PM2.5
maintenance receptors in other states. Therefore, EPA's assessment of
whether emissions from Colorado sources interfere with maintenance in
other states relies on a weight-of-evidence approach that considers
relevant information (such as identification of maintenance receptors
and estimates of PM2.5 contributions) from the Transport
Rule Proposal pertaining to states within its modeling domain, modeling
analysis results from other studies, additional material such as
geographical, topographical and meteorological factors, and back
trajectory analyses. While conclusions reached for each of the factors
considered in the following analysis are not themselves determinative,
consideration of these factors together provides a reliable qualitative
conclusion that emissions from Colorado are not likely to interfere
with maintenance of the 1997 PM2.5 NAAQS at monitors in
other states.
It should be noted that the maintenance receptors analyzed are
separate from the nonattainment receptors analyzed for purposes of
significant contribution to nonattainment. EPA is evaluating impacts on
these monitors specifically to address the independent interference
with maintenance requirement of section 110(a)(2)(D)(i)(I). However,
the maintenance receptors in Cook County, IL are geographically close
to the nonattainment receptors in that same county, especially relative
to the distance from Colorado. The following analysis therefore uses
similar evidence to evaluate interference with maintenance as that used
for the evaluation of the potential for significant contribution to
nonattainment. EPA uses similar evidence only because these
nonattainment and maintenance receptors are in similar locations, and
recognizes that the two types of receptors are analytically distinct.
In connection with the Transport Rule Proposal, EPA evaluated
monitor data for states within the geographic scope of that rulemaking
to project future concentrations of PM2.5 to identify
receptors that are expected to have difficulty maintaining compliance
with the NAAQS in 2012, referred to as maintenance receptors. For the
1997 annual PM2.5 NAAQS, this analysis identified 16
maintenance receptors in its modeling analysis domain (i.e. states east
of the Rocky Mountains). The maintenance receptors for the 1997
PM2.5 NAAQS nearest to Colorado are two monitoring sites
located in Cook County, Illinois in the Chicago area, and a monitoring
site in Harris County, Texas, in the Houston-Galveston-Brazoria area.
For the 1997 24-hour PM2.5 NAAQS, EPA did not evaluate
maintenance receptors because there were no violations of these
standards in the 37 states east of the Rockies.\33\
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\33\ Areas east of the Rockies were modeled for the Transport
Rule Proposal using a 12km grid. Areas west of the Rockies were
modeled using a 36km grid. EPA did not model projections for the 24-
hour PM2.5 NAAQS in the 36km grid modeling domain. For
the states included in the eastern domain, see Table IV.C-13,
Transport Rule Proposal, 75 FR at 45255-56.
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EPA analyzed contribution of annual PM2.5 emissions from
Colorado sources to maintenance receptors in Cook County, Illinois
using the same evidence as was used in Section B of this action to
determine the potential impact of Colorado sources on the projected
nonattainment receptor in the same county. As noted in that section,
modeling conducted for the 2004 CAIR Proposal projected 2010 emissions
from Colorado sources to contribute 0.03 [mu]g/m3 annual
PM2.5 emissions to Cook County, just 20% of the significance
threshold (0.15 [mu]g/m3) for interference with maintenance
used in the Transport Rule Proposal for the 1997 annual
PM2.5 NAAQS. The CAIR Proposal modeling therefore provides
the initial evidence--not determinative by itself--that emissions from
Colorado sources are not likely to interfere with maintenance of the
annual PM2.5 NAAQS in Cook County, IL.
Portions of the modeling analysis and projected emission levels
calculated for the Transport Rule Proposal provide further evidence for
the conclusion that emissions from Colorado sources are unlikely to
interfere with maintenance at the Cook County, IL receptors. As noted
above, in the Transport Rule Proposal, EPA did not directly model the
impacts of emissions from Colorado, but EPA did model the impacts of
emissions from other states that are within the modeling domain for the
Transport Rule Proposal. Kansas and Nebraska were among the states
whose interstate contribution to annual PM2.5 maintenance
receptors in other states EPA did model for the Transport Rule
Proposal.\34\ Neither of these two states
[[Page 21843]]
(Kansas or Nebraska) was projected to contribute more than 0.06 [mu]g/
m3,\35\ or 40% of the significance threshold, to any
maintenance receptor covered by the Transport Rule Proposal, which
included the Cook County, IL monitors.
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\34\ As technical support for the Transport Rule Proposal, all
48 contiguous states were modeled using a horizontal grid resolution
of 36 x 36 km. States in the eastern U.S. modeled for contribution
in the Transport Rule Proposal, including Kansas and Nebraska, were
also modeled using a finer horizontal grid resolution of 12 x 12 km.
Contribution was determined using zero-out modeling.
\35\ Transport Rule Proposal, 75 FR at 47255 (Table IV.C-13).
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For the Transport Rule Proposal, EPA projected total emissions for
NOX and SO2, the two major precursors for
PM2.5, for each of the 48 contiguous states in 2012 and
2014. Nebraska and Kansas were each projected to have similar amounts
of PM2.5 precursor emissions (NOX and
SO2) to those of Colorado.\36\ Both states are also upwind
of Cook County, IL, but are much closer to the Cook County maintenance
receptors than is Colorado.\37\ Distance by itself is not an obstacle
to long range transport of PM2.5 and/or its precursors, and
is therefore not determinative of interference with maintenance.
However, with increasing distance there are greater opportunities for
PM2.5 or precursor dispersion and/or removal from the
atmosphere due to the effect of winds or chemical sink processes. In
summary, EPA-projected PM2.5 precursor emissions from
Colorado are lower or similar to those in Kansas or Nebraska, and,
based on geography and meteorology, emissions from each of these states
are more likely to reach maintenance receptors in the eastern U.S. than
are emissions from Colorado. Therefore, because Kansas and Nebraska are
each well below the significance threshold for interference with
maintenance for the annual PM2.5 NAAQS in the Transport Rule
Proposal, Colorado is likely to be even further below the significance
threshold. Based on the modeling analysis from the CAIR Proposal and
the Transport Rule Proposal, the weight of evidence shows that it is
very unlikely that emissions from Colorado sources would interfere with
maintenance of the 1997 annual PM2.5 NAAQS at any monitor in
Cook County, IL.
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\36\ See ``Technical Support Document (TSD) for the Transport
Rule Docket ID No. EPA-HQ-OAR-2009-0491. Emission Inventories'' at
40-43 (June 2010). Based on these projections, in 2012, Kansas will
have higher NOX (~24%) and SO2 (~35%)
emissions than Colorado, and Nebraska will have lower NOX
(~23%) and higher SO2 (~94%) emissions than Colorado.
\37\ At the shortest possible distance for each measurement, the
eastern Colorado border is approximately 320 miles west of the
eastern Nebraska border and 370 miles west of the eastern Kansas
border.
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EPA did not calculate the impact of Colorado's emissions on the
Houston area as part of the CAIR modeling analysis or the Transport
Rule Proposal modeling analysis. EPA is therefore using other evidence
in a weight-of-evidence assessment to determine if Colorado emissions
interfere with maintenance of the 1997 annual PM2.5 NAAQS at
the Harris County monitor. Our assessment considers modeling analysis
from the Transport Rule Proposal, geographical and meteorological
factors, and back trajectory analyses.
Oklahoma was among the states EPA modeled for the Transport Rule
Proposal to estimate their interstate contribution of annual
PM2.5 emissions to nonattainment and maintenance monitors in
other states. Oklahoma's estimated maximum contribution to any
maintenance monitor covered by the Transport Rule Proposal, which
included the Harris County, TX monitor, was 0.05 [mu]g/
m3,\38\ or 33% of the significance threshold.
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\38\ Transport Rule Proposal, 75 F
