Approval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standard; Colorado, 43906-43912 [2011-18421]
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§ 52.2355 Section 110(a)(2) infrastructure
requirements.
On December 3, 2007 Jon L.
Huntsman, Jr., Governor, State of Utah,
submitted a certification letter which
provides the State of Utah’s SIP
provisions which meet the requirements
of CAA Section 110(a)(1) and (2)
relevant to the 1997 Ozone NAAQS. On
December 21, 2009 M. Cheryl Heying,
Director, Utah Division of Air Quality,
Department of Environmental Quality
for the State of Utah, submitted
supporting documentation which
provides the State of Utah’s SIP
provisions which meet the requirements
of CAA Section 110(a)(1) and (2)
relevant to the 1997 Ozone NAAQS.
[FR Doc. 2011–18416 Filed 7–21–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–R08–OAR–2009–0809; FRL–9442–1]
Approval and Promulgation of State
Implementation Plan Revisions;
Infrastructure Requirements for the
1997 8-Hour Ozone National Ambient
Air Quality Standard; Colorado
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving the State
Implementation Plan (SIP) submission
from the State of Colorado to
demonstrate that the SIP meets the
requirements of Sections 110(a)(1) and
(2) of the Clean Air Act (CAA) for the
National Ambient Air Quality Standards
(NAAQS) promulgated for ozone on July
18, 1997. Section 110(a)(1) of the CAA
requires that each state, after a new or
revised NAAQS is promulgated, review
their SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’ of section 110(a)(2). The State
of Colorado submitted a certification,
dated January 7, 2008, that its SIP met
these requirements for the 1997 ozone
NAAQS. The certification was
determined to be complete on March 27,
2008 (73 FR 16205).
DATES: Effective Date: This final rule is
effective August 22, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2009–0809. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
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SUMMARY:
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Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kathy Dolan, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 303–312–6142,
dolan.kathy@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.
Table of Contents
I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, EPA promulgated
new NAAQS for ozone based on 8-hour
average concentrations. The 8-hour
averaging period replaced the previous
1-hour averaging period, and the level of
the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62
FR 38856). By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) are to be submitted by states within
three years after promulgation of a new
or revised standard. Section 110(a)(2)
provides basic requirements for SIPs,
including emissions inventories,
monitoring, and modeling, to assure
attainment and maintenance of the
standards. These requirements are set
out in several ‘‘infrastructure elements,’’
listed in section 110(a)(2).
Section 110(a) imposes the obligation
upon states to make a SIP submission to
EPA for a new or revised NAAQS, and
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the contents of that submission may
vary depending upon the facts and
circumstances. In particular, the data
and analytical tools available at the time
a state develops and submits its SIP for
a new or revised NAAQS affects the
content of the submission. The contents
of such SIP submissions may also vary
depending upon what provisions a
state’s existing SIP already contains. In
the case of the 1997 ozone NAAQS,
states typically have met the basic
program elements required in section
110(a)(2) through earlier SIP
submissions in connection with
previous NAAQS. In a guidance issued
on October 2, 2007, EPA noted that, to
the extent an existing SIP already meets
the section 110(a)(2) requirements,
states need only to certify that fact via
a letter to EPA.1
On March 27, 2008, EPA published a
final rule entitled, ‘‘Completeness
Findings for Section 110(a) State
Implementation Plans for the 8-hour
Ozone NAAQS’’ (73 FR 16205). In the
rule, EPA made a finding for each state
that it had submitted or had failed to
submit a complete SIP that provided the
basic program elements of section
110(a)(2) necessary to implement the
1997 8-hour ozone NAAQS. In
particular, EPA found that Colorado had
submitted a complete SIP
(‘‘Infrastructure SIP’’) to meet these
requirements.
On May 18, 2011, EPA published a
notice of proposed rulemaking (NPR) for
the State of Colorado (76 FR 28707) to
act on the State’s Infrastructure SIP for
the 1997 ozone NAAQS. Specifically, in
the NPR EPA proposed approval of
Colorado’s SIP as meeting the
requirements of all section 110(a)(2)
elements with respect to the 1997 ozone
NAAQS, aside from elements
110(a)(2)(D)(i), 110(a)(2)(I), and the
visibility protection requirement of
element 110(a)(2)(J), on which EPA did
not propose action.2 EPA received a
comment on section 110(a)(2)(E)(ii), and
EPA is not finalizing today its proposed
approval for this sub-element in order to
fully respond to that comment.
EPA proposed to approve element
110(a)(2)(C) for the 1997 ozone NAAQS
in the event that the State clarified (or
modified) its January 7, 2008
certification to ensure consistency with
two rules related to regulation of
1 Memorandum from William T. Harnett,
Director, Air Quality Policy Division, ‘‘Guidance on
SIP Elements Required Under Sections 110(a)(1)
and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards’’ (Oct. 2,
2007).
2 See the NPR (76 FR 28707) for further
explanation regarding the omission of elements
110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal.
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greenhouse gas (GHG) emissions:
‘‘Prevention of Significant Deterioration
and Title V Greenhouse Gas Tailoring
Rule’’ (‘‘Tailoring Rule’’), 75 FR 31514
(June 3, 2010), and ‘‘Limitation of
Approval of Prevention of Significant
Deterioration Provisions Concerning
Greenhouse Gas Emitting-Sources in
State Implementation Plans’’ (‘‘PSD SIP
Narrowing Rule’’), 75 FR 82536 (Dec.
30, 2010). In the PSD SIP Narrowing
Rule, EPA withdrew its previous
approval of Colorado’s prevention of
significant deterioration (PSD) program
to the extent that it applied PSD
permitting to GHG-emissions increases
from GHG-emitting sources below
thresholds set in the Tailoring Rule.
EPA withdrew its approval on the basis
that the State lacked sufficient resources
to issue PSD permits to such sources at
the statutory thresholds in effect in the
previously-approved PSD program.
After the PSD SIP Narrowing Rule, the
portion of Colorado’s PSD SIP from
which EPA withdrew its approval had
the status of having been submitted to
EPA but not yet acted upon. In its
February 1, 2008 certification, 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—to satisfy
the requirements of infrastructure
element 110(a)(2)(C). Given EPA’s basis
for the PSD SIP Narrowing Rule, EPA
proposed approval of the Colorado
Infrastructure SIP for infrastructure
element (C) if either the State clarified
(or modified) its certification 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
acted 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. On May 10, 2011, EPA
received a letter from Colorado
clarifying 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,
2010.3
Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
3 Colorado’s May 10, 2011 clarification letter is
available in the docket for this action.
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states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on the infrastructure SIP
submissions.4 The commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements that it would address
two issues separately and not as part of
actions on the infrastructure SIP
submissions: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the
issues separately: (i) Existing provisions
for minor source new source review
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source new source
review (NSR)’’); and (ii) existing
provisions for PSD programs that may
be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80,186
(December 31, 2002), as amended by 72
FR 32,526 (June 13, 2007) (‘‘NSR
Reform’’). In light of the comments, EPA
now believes that its statements in
various proposed actions on
infrastructure SIPs with respect to these
four individual issues should be
explained in greater depth with respect
to these issues.
EPA intended the statements in the
proposals concerning these four issues
merely to be informational, and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a reapproval of certain
4 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing state provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit reapproval of any existing
provisions that relate to these four
substantive issues.
Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issue in the context of the infrastructure
SIPs. This was not EPA’s intention. To
the contrary, EPA only meant to convey
its awareness of the potential for certain
types of deficiencies in existing SIPs,
and to prevent any misunderstanding
that it was reapproving any such
existing provisions. EPA’s intention was
to convey its position that the statute
does not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements, however, we want to
explain more fully the Agency’s reasons
for concluding that these four potential
substantive issues in existing SIPs may
be addressed separately.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘within 3 years (or such
shorter period as the Administrator may
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prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof)’’ and
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, NSR permitting program
submissions required to address the
requirements of part D, and a host of
other specific types of SIP submissions
that address other specific matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.5 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.6
5 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
6 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each SIP contains adequate
provisions to prevent significant contribution to
nonattainment of the NAAQS in other states. This
provision contains numerous terms that require
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Notwithstanding that section 110(a)(2)
states that ‘‘each’’ SIP submission must
meet the list of requirements therein,
EPA has long noted that this literal
reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).7 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.8 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the SIP. Finally, EPA notes
that not every element of section
110(a)(2) would be relevant, or as
relevant, or relevant in the same way,
for each new or revised NAAQS and the
attendant infrastructure SIP submission
for that NAAQS. For example, the
monitoring requirements that might be
necessary for purposes of section
110(a)(2)(B) for one NAAQS could be
very different than what might be
necessary for a different pollutant. Thus,
substantial rulemaking by EPA in order to
determine such basic points as what constitutes
significant contribution. See, e.g., ‘‘Rule To Reduce
Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid
Rain Program; Revisions to the NOX SIP Call; Final
Rule,’’ 70 FR 25,162 (May 12, 2005)(defining,
among other things, the phrase ‘‘contribute
significantly to nonattainment’’).
7 See, e.g., Id., 70 FR 25,162, at 63–65 (May 12,
2005) (explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
8 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘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,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
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the content of an infrastructure SIP
submission to meet this element from a
state might be very different for an
entirely new NAAQS, versus a minor
revision to an existing NAAQS.9
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirement applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.10 Within this
9 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
10 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’). EPA issued comparable guidance for
the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards (NAAQS),’’ from
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guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 11 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 12 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’13 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much
more specific recommendations. But for
other infrastructure SIP submittals, and
for certain elements of the submittals for
the 1997 PM2.5 NAAQS, EPA assumed
that each state would work with its
corresponding EPA regional office to
refine the scope of a state’s submittal
based on an assessment of how the
requirements of section 110(a)(2) should
reasonably apply to the basic structure
of the SIP for the NAAQS in question.
Significantly, the 2007 Guidance did
not explicitly refer to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
William T, Harnett, Director Air Quality Policy
Division, to Regional Air Division Directors,
Regions I–X, dated September 25, 2009 (the ‘‘2009
Guidance’’).
11 Id., at page 2.
12 Id., at attachment A, page 1.
13 Id., at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
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such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance,
however, EPA did not indicate to states
that it intended to interpret these
provisions as requiring a substantive
submission to address these specific
issues in the context of the
infrastructure SIPs for these NAAQS.
Instead, EPA’s 2007 Guidance merely
indicated its belief that the states should
make submissions in which they
established that they have the basic SIP
structure necessary to implement,
maintain, and enforce the NAAQS. EPA
believes that states can establish that
they have the basic SIP structure,
notwithstanding that there may be
potential deficiencies within the
existing SIP. Thus, EPA’s proposals
mentioned these issues not because the
Agency considers them issues that must
be addressed in the context of an
infrastructure SIP as required by section
110(a)(1) and (2), but rather because
EPA wanted to be clear that it considers
these potential existing SIP problems as
separate from the pending infrastructure
SIP actions.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
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43909
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a SIP is substantially
inadequate to attain or maintain the
NAAQS, to mitigate interstate transport,
or otherwise to comply with the CAA.14
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.15
Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.16
II. Response to Comments
EPA received one letter on June 17,
2011 containing comments from
14 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21,639
(April 18, 2011).
15 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82,536 (Dec. 30, 2010). EPA has previously
used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency
determined it had approved in error. See, e.g., 61
FR 38,664 (July 25, 1996) and 62 FR 34,641 (June
27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062
(November 16, 2004) (corrections to California SIP);
and 74 FR 57,051 (November 3, 2009) (corrections
to Arizona and Nevada SIPs).
16 EPA has recently disapproved a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42,342 at
42,344 (July 21,2010) (proposed disapproval of
director’s discretion provisions); 76 FR 4,540 (Jan.
26, 2011) (final disapproval of such provisions).
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WildEarth Guardians (WG), an
environmental organization. The
significant comments made in WG’s
June 17, 2011 letter and EPA’s responses
to those comments are given below.
Comment No. 1: The commenter
claimed that Colorado ‘‘lacks adequate
funding in accordance with CAA
section 110(a)(2)(E)(i).’’ As evidence of
this question of sufficient funding, the
commenter cited a Colorado Legislative
Council (CLC) fiscal note stating that the
Colorado Air Pollution Control
Division’s (APCD) resources are
inadequate to process all of the
approximately 2,500 to 3,000 air permit
applications the State receives annually,
causing a backlog of approximately
1,200 unprocessed permits as of April
2011. The commenter argued that this
indicates Colorado lacks adequate
resources to implement its SIP (in
particular, permitting programs) and
that the SIP is therefore deficient with
respect to section 110(a)(2)(E)(i).
The commenter attributed APCD’s
lack of adequate resources to the State
charging Title V permit applicants
permit fees ‘‘far below the minimum
requirements under Title V.’’ The
commenter described the fees charged
by the State and compared them to
amounts in an EPA memorandum
discussing the presumptive minimum
fee for 40 CFR part 70 (title V) programs.
Although the commenter noted that the
State does charge a variety of fees in
connection with the title V program, the
commenter argued that there is no
indication that the fees charged by the
State, in aggregate, meet the
presumptive minimum fee.
Finally, the commenter used the same
arguments to claim EPA does not have
an adequate basis to approve Colorado’s
SIP for the requirements of CAA section
110(a)(2)(L).
EPA Response: EPA disagrees with
the commenter’s conclusions
concerning the adequacy of the
Colorado infrastructure SIP with respect
to both section 110(a)(2)(E)(i) and (L).
First, with regard to the reported
statement by the CLC, EPA notes that
the commenter in a number of places
referred to this as a statement by
‘‘Colorado’’ as though the CLC is the
equivalent of the State. However, the
cited document is an analysis by the
CLC staff of a Colorado Senate bill. The
CLC staff is a nonpartisan research arm
of the State Assembly; in other words,
the CLC staff is part of the legislative
branch of the State government. EPA
has no reason to question the
conclusions of the CLC, but those
conclusions are not the equivalent of an
official statement by the State itself with
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respect to the issue relevant in this
action.
On the other hand, Colorado’s
infrastructure SIP certification that is
before EPA for approval was submitted
by the director of the Colorado
Department of Public Health and
Environment (CDPHE), an executive
branch agency that includes the
Colorado APCD. EPA considers the
submission to have come from the
organization within the State that is the
best judge of the overall resources
available for implementation of the SIP.
In its certification, CDPHE discussed the
budget and staff of the APCD and
indicated that both were sufficient to
carry out Colorado’s SIP. Section
110(a)(2)(E) requires that the SIP
provide (among other things) necessary
assurances that the State have adequate
personnel and funding to carry out the
SIP. EPA concludes that the certification
provides these necessary assurances.
In addition, EPA notes that the CLC
statements cited by the commenter
speak only to the resources available to
process permits. Based on the
information provided by the
commenter, the backlog would appear
to amount to a delay of approximately
5–6 months for a permit. While delays
are very problematic, such delays are
not evidence of an inability to
implement the requirements of the SIP
at all. Moreover, the CLC staff analysis
noted that the purpose of the bill is to
address the backlog; the bill does so by
providing for APCD-approved third
party contractors to perform modeling
for sources not subject to PSD. The bill
was signed into law by the Governor of
Colorado on June 9, 2011. EPA therefore
disagrees with the commenter’s
conclusion that EPA cannot approve
Colorado’s infrastructure SIP for section
110(a)(2)(E)(i) on the basis of the
statement in the CLC staff analysis.
Turning to fees charged by Colorado
under its title V program, EPA notes
that, in general, title V programs are not
part of the SIP.17 Thus, such programs
are not part of the requirements of
section 110(a)(2). Furthermore, section
502(b)(3) of the Act requires not only
that title V program fees cover the
reasonable direct and indirect costs of
developing and administering the title V
program, but also requires that the fees
be used only to cover those costs. EPA
therefore disagrees with the comment
the case of Colorado, the Title V program is
not part of the SIP, with the exception of the fee
program. Section 110(a)(2)(E)(i) requires adequate
resources to carry out the SIP. As the Title V
program—except the fee program itself—is not part
of the SIP, 110(a)(2)(E)(i) does not require an
assessment of whether the fees are adequate to
implement the Title V program in its entirety.
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17 In
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that the alleged flaws in the title V
program with respect to the amount of
fees charged by the State prevent EPA
from approving the Colorado
infrastructure SIP for the 1997 ozone
NAAQS for element 110(a)(2)(E)(i). The
State provided evidence that its overall
budget is sufficient to carry out its
obligations and the issue raised by the
commenter does not refute that overall
budget.
EPA also disagrees with the
commenter’s argument that the amount
of fees charged by the State in its title
V program renders the infrastructure SIP
unapprovable with respect to section
110(a)(2)(L). As stated in the text of the
section, 110(a)(2)(L) is no longer
applicable to title V operating permit
programs after approval of such
programs. As noted in the NPR, 76 FR
at 28714, final approval of Colorado’s
title V operating permit program became
effective October 16, 2000 (65 FR
49919). EPA therefore disagrees with the
comment that EPA cannot approve
Colorado’s infrastructure SIP for section
110(a)(2)(L) on the basis of alleged flaws
in Colorado’s title V program.
Comment No. 2: The commenter
argued that Colorado’s SIP fails to meet
the PSD requirements of section
110(a)(2)(J) due to a lack of ozone
impact analysis for new or modified
major sources. The commenter alleged a
number of specific inadequacies, which
EPA discusses separately below.
Comment 2.a: The commenter
asserted that the SIP does not require
the APCD to ensure that a new or
modified source does not cause or
contribute to violations of the ozone
NAAQS prior to issuance. The
commenter cited section 165(a)(3) of the
Act and quoted the language of 40 CFR
51.166(k)(1). The commenter later stated
that nothing in the Colorado SIP
explicitly requires that ozone impacts be
addressed in the context of issuing a
PSD permit.
EPA Response: EPA disagrees with
the commenter’s interpretation of the
Colorado SIP. Section VI.A.2 of part D
of Regulation Number 3 in the Colorado
SIP, applicable to sources subject to
PSD, specifically requires a source
impact analysis.18 The language of
section VI.A.2 mirrors the language in
40 CFR 51.166(k)(1) quoted by the
commenter. In addition, there is nothing
18 This provision was previously in part B of
Regulation Number 3. On May 31, 2011, Region 8
finalized an action that (among other things)
approved Colorado’s reorganization of its PSD
program into the new part D of Regulation Number
3. The notice of the final action has not yet been
published in the Federal Register, but a copy of
Colorado’s submittal and the signed notice can be
found in Docket No. [xxx].
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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations
in this section or any other section of
the SIP that exempts sources from
carrying out the source impact analysis
for the 1997 ozone NAAQS. Nor does
the commenter cite any provision of the
SIP that creates such an exemption. EPA
concludes that the commenter is
therefore in error in stating that the
Colorado SIP does not require the
source impact analysis set out in 40 CFR
51.166(k)(1). Furthermore, section
VI.A.2 requires the owner or operator of
the proposed new source or
modification to demonstrate that the
construction or modification of the
source will not cause or contribute to a
violation of any NAAQS. Such language
includes the 1997 8-hour ozone
NAAQS; thus the commenter is also in
error in stating that the SIP does not
specifically require ozone impacts to be
addressed.
Comment 2.b: The commenter stated
that the SIP is deficient because it does
not identify any significant impact
levels for ozone.
EPA Response: EPA has not identified
significant impact levels (SILs) for
ozone.19 The comment therefore does
not provide any basis for EPA to change
its proposed approval of the Colorado
infrastructure SIP for section
110(a)(2)(C) or (J) for the 1997 ozone
NAAQS.
Comment 2.c: The commenter
asserted that section VI.A.3.e of Part D
of Regulation Number 3 ‘‘explicitly
allows the owner or operator of a
proposed major source or major
modification to forego a preconstruction ozone analysis altogether.’’
EPA Response: EPA disagrees with
the commenter’s characterization of the
Colorado SIP. First, EPA notes that
section VI.A.3.e (and the parallel
provision in 40 CFR 51.166(m)(1)(v))
applies only if a proposed major
stationary source or major modification
of volatile organic compounds (VOCs)
meets the requirements of 40 CFR part
51, Appendix S, Section IV, including,
in particular, the requirement to satisfy
the lowest achievable emissions rate
(LAER) for VOCs. Second, the
commenter appears to misunderstand
the scope of this provision. Contrary to
the commenter’s assertion, the provision
does not exempt any sources from the
requirement to perform the source
impact analysis in section VI.A.2
(discussed in the response to comment
2.a above). Instead, the provision allows
sources that (among other things)
employ LAER for VOCs to use postconstruction monitoring to replace the
19 For an explanation and discussion of SILs, in
the context of PM2.5, see 75 FR 64864 (Oct. 20,
2010).
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pre-application air quality analysis
requirements of section VI.A.3.a. This
option is specifically provided for in 40
CFR 51.166(m)(1)(v).
Comment 2.d: The commenter alleged
that the SIP does not meet the
requirements of 40 CFR 51.166(l)(1),
which requires the SIP to base
applications of air quality modeling in
PSD permitting on the applicable
models, data bases, and other
requirements specified in Appendix W
of 40 CFR part 51, and requires
modification and substitution of such
models to be approved by the
Administrator. The commenter also
asserted that the Colorado SIP does not
specify any approved methodology for
analyzing ozone impacts, contrary to
PSD requirements under the CAA.
EPA Response: EPA disagrees with
the commenter’s reading of the
requirements of the Colorado SIP. The
Colorado SIP includes section VIII.A of
part A of Regulation Number 3, which
specifically requires estimates of
ambient air concentrations required
under Regulation Number 3 to be based
on applicable models, data bases, and
other requirements generally required
by the EPA. Although section VIII.A
does not specifically reference
Appendix W, in the context of the
source impact analysis in section VI.A.2
for PSD permitting, we interpret this
language to include the requirements
specified in Appendix W. In addition,
section VIII.A requires any modification
or substitution of a model to be subject
to public notice and comment and to be
approved in writing by EPA (which we
interpret to mean the Administrator or
her delegee). EPA therefore disagrees
with the comment that the Colorado SIP
does not meet the requirements of 40
CFR 51.166(l)(1). Furthermore, the
comment implies that the Colorado SIP
must specify an approved methodology
for analyzing ozone impacts, but did not
explain what provision creates such a
requirement for the Colorado SIP. EPA
therefore disagrees with the comment
that the Colorado SIP is contrary to PSD
requirements under the Act.
Comment 2.e: The commenter stated
that the APCD has not interpreted its
SIP to require an analysis of ozone
impacts. As evidence, the commenter
quoted the following statement in
APCD’s modeling guidance: ‘‘ozone
modeling is not routinely requested for
construction permits, although it could
be in unusual cases such as situations
where the Division believes ozone
standards could realistically be violated
by the proposed source or
modification.’’
EPA Response: EPA disagrees with
the commenter’s characterization of
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43911
APCD’s position. EPA first notes that
the quoted language is in the chapter of
the APCD modeling guidance regarding
the demonstration to be made for
construction permits for minor sources.
While the relevant chapter of the APCD
modeling guidance (regarding new
major stationary sources and major
modifications) does refer to the minor
source chapter, it is not clear that the
statement in the minor source chapter
about the frequency of requests for
ozone modeling applies to sources
subject to PSD. Furthermore, the
modeling guidance elsewhere states (see
pages 7–9) that a source impact analysis
(as discussed in the response to
comment 2.a above and as required by
the SIP) must be performed for sources
subject to PSD.
As discussed above in the response to
comment 2.d, the Colorado SIP requires
estimates of ambient air concentrations
to be based on the applicable models,
data bases, and other requirements
generally required by the EPA, which
EPA interprets to include the
requirements of Appendix W of 40 CFR
part 51, Guideline on Air Quality
Models. Section 5.2.1 of Appendix W
includes the Guideline
recommendations for models to be
utilized in assessing ambient air quality
impacts for ozone. Section 5.2.1.c
provides that the model users (state and
local permitting authorities and
permitting applicants) should work with
the appropriate EPA Regional Office on
a case-by-case basis to determine an
adequate method for performing an air
quality analysis for assessing ozone
impacts. Due to the complexity of
modeling ozone and the dependency on
the regional characteristics of
atmospheric conditions, this is an
appropriate approach for assessing
ozone impacts rather than specifying
one particular preferred model
nationwide, which may not be
appropriate in all circumstances.
Instead, the choice of method ‘‘depends
on the nature of the source and its
emissions. Thus, model users should
consult with the Regional Office * * *
’’ Appendix W Section 5.2.1.c.
Therefore, it is appropriate for
permitting authorities to consult and
work with EPA Regional Offices as
described in Appendix W, including
section 3.0.b and c, 3.2.2, and 3.3, to
determine the appropriate approach to
assess ozone impacts as required for
sources subject to PSD. Although EPA
has not selected one particular preferred
model in Appendix A to Appendix W
(Summaries of Preferred Air Quality
Models) for conducting ozone impact
analyses for individual sources, state/
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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations
local permitting authorities must
comply with the appropriate PSD
Federal Implementation Plan (FIP) or
SIP requirements with respect to ozone.
EPA has had a standard approach in
its PSD SIP and FIP rules of not
mandating the use of a particular model
for all circumstances, instead treating
the choice of a particular method for
analyzing ozone impacts as
circumstance-dependent. EPA then
determines whether the State’s
implementation plan revision submittal
meets the PSD SIP requirements. As
explained above, in this case the
Colorado SIP meets the requirements of
40 CFR part 51.166(k) and (l).
emcdonald on DSK2BSOYB1PROD with RULES
III. Final Action
In this action, EPA is approving in
full the following section 110(a)(2)
infrastructure elements for Colorado for
the 1997 ozone NAAQS: (A), (B), (C),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K),
(L), and (M). EPA is taking no action
today on section 110(a)(2)(E)(ii) for the
1997 ozone NAAQS. EPA will address
this sub-element in a later action.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations
(42 USC 7410(k), 40 CFR 52.02(a)).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves some state law as
meeting Federal requirements and
disapproves other state law because it
does not meet Federal requirements;
this action 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,
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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 USC 272 note) because
application of those requirements would
be inconsistent with the CAA; and,
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by September 20,
2011. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
PO 00000
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incoporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart G—Colorado
2. Section 52.353 is added to read as
follows:
■
§ 52.353 Section 110(a)(2) infrastructure
requirements.
On January 7, 2008 James B. Martin,
Executive Director of the Colorado
Department of Public Health and
Environment for the State of Colorado,
submitted a certification letter which
provides the State of Colorado’s SIP
provisions which meet the requirements
of CAA Section 110(a)(1) and (2)
relevant to the 1997 Ozone NAAQS.
[FR Doc. 2011–18421 Filed 7–21–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0301; FRL–9441–6]
Approval and Promulgation of State
Implementation Plan Revisions;
Infrastructure Requirements for the
1997 8-hour Ozone National Ambient
Air Quality Standards; South Dakota
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving the State
Implementation Plan (SIP) submission
from the State of South Dakota to
demonstrate that the SIP meets the
requirements of the Clean Air Act (CAA)
for the National Ambient Air Quality
Standards (NAAQS) promulgated for
ozone on July 18, 1997. The CAA
requires that each state, after a new or
revised NAAQS is promulgated, review
their SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’. The State of South Dakota
SUMMARY:
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]]>Agencies
[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Rules and Regulations]
[Pages 43906-43912]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18421]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-R08-OAR-2009-0809; FRL-9442-1]
Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standard; Colorado
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving the State Implementation Plan (SIP)
submission from the State of Colorado to demonstrate that the SIP meets
the requirements of Sections 110(a)(1) and (2) of the Clean Air Act
(CAA) for the National Ambient Air Quality Standards (NAAQS)
promulgated for ozone on July 18, 1997. Section 110(a)(1) of the CAA
requires that each state, after a new or revised NAAQS is promulgated,
review their SIPs to ensure that they meet the requirements of the
``infrastructure elements'' of section 110(a)(2). The State of Colorado
submitted a certification, dated January 7, 2008, that its SIP met
these requirements for the 1997 ozone NAAQS. The certification was
determined to be complete on March 27, 2008 (73 FR 16205).
DATES: Effective Date: This final rule is effective August 22, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2009-0809. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through https://www.regulations.gov or in hard copy at
the Air Program, Environmental Protection Agency (EPA), Region 8, 1595
Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at
all possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Kathy Dolan, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142,
dolan.kathy@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.
Table of Contents
I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time a state
develops and submits its SIP for a new or revised NAAQS affects the
content of the submission. The contents of such SIP submissions may
also vary depending upon what provisions a state's existing SIP already
contains. In the case of the 1997 ozone NAAQS, states typically have
met the basic program elements required in section 110(a)(2) through
earlier SIP submissions in connection with previous NAAQS. In a
guidance issued on October 2, 2007, EPA noted that, to the extent an
existing SIP already meets the section 110(a)(2) requirements, states
need only to certify that fact via a letter to EPA.\1\
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\1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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On March 27, 2008, EPA published a final rule entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a
finding for each state that it had submitted or had failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In
particular, EPA found that Colorado had submitted a complete SIP
(``Infrastructure SIP'') to meet these requirements.
On May 18, 2011, EPA published a notice of proposed rulemaking
(NPR) for the State of Colorado (76 FR 28707) to act on the State's
Infrastructure SIP for the 1997 ozone NAAQS. Specifically, in the NPR
EPA proposed approval of Colorado's SIP as meeting the requirements of
all section 110(a)(2) elements with respect to the 1997 ozone NAAQS,
aside from elements 110(a)(2)(D)(i), 110(a)(2)(I), and the visibility
protection requirement of element 110(a)(2)(J), on which EPA did not
propose action.\2\ EPA received a comment on section 110(a)(2)(E)(ii),
and EPA is not finalizing today its proposed approval for this sub-
element in order to fully respond to that comment.
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\2\ See the NPR (76 FR 28707) for further explanation regarding
the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the
proposal.
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EPA proposed to approve element 110(a)(2)(C) for the 1997 ozone
NAAQS in the event that the State clarified (or modified) its January
7, 2008 certification to ensure consistency with two rules related to
regulation of
[[Page 43907]]
greenhouse gas (GHG) emissions: ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (``Tailoring
Rule''), 75 FR 31514 (June 3, 2010), and ``Limitation of Approval of
Prevention of Significant Deterioration Provisions Concerning
Greenhouse Gas Emitting-Sources in State Implementation Plans'' (``PSD
SIP Narrowing Rule''), 75 FR 82536 (Dec. 30, 2010). In the PSD SIP
Narrowing Rule, EPA withdrew its previous approval of Colorado's
prevention of significant deterioration (PSD) program to the extent
that it applied PSD permitting to GHG-emissions increases from GHG-
emitting sources below thresholds set in the Tailoring Rule. EPA
withdrew its approval on the basis that the State lacked sufficient
resources to issue PSD permits to such sources at the statutory
thresholds in effect in the previously-approved PSD program. After the
PSD SIP Narrowing Rule, the portion of Colorado's PSD SIP from which
EPA withdrew its approval had the status of having been submitted to
EPA but not yet acted upon. In its February 1, 2008 certification,
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--to satisfy the requirements of infrastructure element
110(a)(2)(C). Given EPA's basis for the PSD SIP Narrowing Rule, EPA
proposed approval of the Colorado Infrastructure SIP for infrastructure
element (C) if either the State clarified (or modified) its
certification 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 acted 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. On May 10, 2011, EPA received a letter from
Colorado clarifying 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.\3\
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\3\ Colorado's May 10, 2011 clarification letter is available in
the docket for this action.
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Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on the infrastructure SIP
submissions.\4\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources, that may be contrary to the CAA and EPA's policies
addressing such excess emissions (``SSM''); and (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) Existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source new
source review (NSR)''); and (ii) existing provisions for PSD programs
that may be inconsistent with current requirements of EPA's ``Final NSR
Improvement Rule,'' 67 FR 80,186 (December 31, 2002), as amended by 72
FR 32,526 (June 13, 2007) (``NSR Reform''). In light of the comments,
EPA now believes that its statements in various proposed actions on
infrastructure SIPs with respect to these four individual issues should
be explained in greater depth with respect to these issues.
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\4\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may
[[Page 43908]]
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof)'' and that these SIPS are to
provide for the ``implementation, maintenance, and enforcement'' of
such NAAQS. Section 110(a)(2) includes a list of specific elements that
``[e]ach such plan'' submission must meet. EPA has historically
referred to these particular submissions that states must make after
the promulgation of a new or revised NAAQS as ``infrastructure SIPs.''
This specific term does not appear in the statute, but EPA uses the
term to distinguish this particular type of SIP submission designed to
address basic structural requirements of a SIP from other types of SIP
submissions designed to address other different requirements, such as
``nonattainment SIP'' submissions required to address the nonattainment
planning requirements of part D, ``regional haze SIP'' submissions
required to address the visibility protection requirements of CAA
section 169A, NSR permitting program submissions required to address
the requirements of part D, and a host of other specific types of SIP
submissions that address other specific matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\5\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\6\
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\5\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states. This
provision contains numerous terms that require substantial
rulemaking by EPA in order to determine such basic points as what
constitutes significant contribution. See, e.g., ``Rule To Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule,'' 70 FR 25,162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\7\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\8\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the SIP. Finally, EPA
notes that not every element of section 110(a)(2) would be relevant, or
as relevant, or relevant in the same way, for each new or revised NAAQS
and the attendant infrastructure SIP submission for that NAAQS. For
example, the monitoring requirements that might be necessary for
purposes of section 110(a)(2)(B) for one NAAQS could be very different
than what might be necessary for a different pollutant. Thus, the
content of an infrastructure SIP submission to meet this element from a
state might be very different for an entirely new NAAQS, versus a minor
revision to an existing NAAQS.\9\
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\7\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\8\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``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,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\10\ Within this
[[Page 43909]]
guidance document, EPA described the duty of states to make these
submissions to meet what the Agency characterized as the
``infrastructure'' elements for SIPs, which it further described as the
``basic SIP requirements, including emissions inventories, monitoring,
and modeling to assure attainment and maintenance of the standards.''
\11\ As further identification of these basic structural SIP
requirements, ``attachment A'' to the guidance document included a
short description of the various elements of section 110(a)(2) and
additional information about the types of issues that EPA considered
germane in the context of such infrastructure SIPs. EPA emphasized that
the description of the basic requirements listed on attachment A was
not intended ``to constitute an interpretation of'' the requirements,
and was merely a ``brief description of the required elements.'' \12\
EPA also stated its belief that with one exception, these requirements
were ``relatively self explanatory, and past experience with SIPs for
other NAAQS should enable States to meet these requirements with
assistance from EPA Regions.''\13\ For the one exception to that
general assumption, however, i.e., how states should proceed with
respect to the requirements of section 110(a)(2)(G) for the 1997
PM2.5 NAAQS, EPA gave much more specific recommendations.
But for other infrastructure SIP submittals, and for certain elements
of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that
each state would work with its corresponding EPA regional office to
refine the scope of a state's submittal based on an assessment of how
the requirements of section 110(a)(2) should reasonably apply to the
basic structure of the SIP for the NAAQS in question.
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\10\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
\11\ Id., at page 2.
\12\ Id., at attachment A, page 1.
\13\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\14\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\15\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude the Agency's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action at a later time. For example,
although it may not be appropriate to require a state to eliminate all
existing inappropriate director's discretion provisions in the course
of acting on the infrastructure SIP, EPA believes that section
110(a)(2)(A) may be among the statutory bases that the Agency cites in
the course of addressing the issue in a subsequent action.\16\
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\14\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
\15\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\16\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21,2010)
(proposed disapproval of director's discretion provisions); 76 FR
4,540 (Jan. 26, 2011) (final disapproval of such provisions).
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II. Response to Comments
EPA received one letter on June 17, 2011 containing comments from
[[Page 43910]]
WildEarth Guardians (WG), an environmental organization. The
significant comments made in WG's June 17, 2011 letter and EPA's
responses to those comments are given below.
Comment No. 1: The commenter claimed that Colorado ``lacks adequate
funding in accordance with CAA section 110(a)(2)(E)(i).'' As evidence
of this question of sufficient funding, the commenter cited a Colorado
Legislative Council (CLC) fiscal note stating that the Colorado Air
Pollution Control Division's (APCD) resources are inadequate to process
all of the approximately 2,500 to 3,000 air permit applications the
State receives annually, causing a backlog of approximately 1,200
unprocessed permits as of April 2011. The commenter argued that this
indicates Colorado lacks adequate resources to implement its SIP (in
particular, permitting programs) and that the SIP is therefore
deficient with respect to section 110(a)(2)(E)(i).
The commenter attributed APCD's lack of adequate resources to the
State charging Title V permit applicants permit fees ``far below the
minimum requirements under Title V.'' The commenter described the fees
charged by the State and compared them to amounts in an EPA memorandum
discussing the presumptive minimum fee for 40 CFR part 70 (title V)
programs. Although the commenter noted that the State does charge a
variety of fees in connection with the title V program, the commenter
argued that there is no indication that the fees charged by the State,
in aggregate, meet the presumptive minimum fee.
Finally, the commenter used the same arguments to claim EPA does
not have an adequate basis to approve Colorado's SIP for the
requirements of CAA section 110(a)(2)(L).
EPA Response: EPA disagrees with the commenter's conclusions
concerning the adequacy of the Colorado infrastructure SIP with respect
to both section 110(a)(2)(E)(i) and (L). First, with regard to the
reported statement by the CLC, EPA notes that the commenter in a number
of places referred to this as a statement by ``Colorado'' as though the
CLC is the equivalent of the State. However, the cited document is an
analysis by the CLC staff of a Colorado Senate bill. The CLC staff is a
nonpartisan research arm of the State Assembly; in other words, the CLC
staff is part of the legislative branch of the State government. EPA
has no reason to question the conclusions of the CLC, but those
conclusions are not the equivalent of an official statement by the
State itself with respect to the issue relevant in this action.
On the other hand, Colorado's infrastructure SIP certification that
is before EPA for approval was submitted by the director of the
Colorado Department of Public Health and Environment (CDPHE), an
executive branch agency that includes the Colorado APCD. EPA considers
the submission to have come from the organization within the State that
is the best judge of the overall resources available for implementation
of the SIP. In its certification, CDPHE discussed the budget and staff
of the APCD and indicated that both were sufficient to carry out
Colorado's SIP. Section 110(a)(2)(E) requires that the SIP provide
(among other things) necessary assurances that the State have adequate
personnel and funding to carry out the SIP. EPA concludes that the
certification provides these necessary assurances.
In addition, EPA notes that the CLC statements cited by the
commenter speak only to the resources available to process permits.
Based on the information provided by the commenter, the backlog would
appear to amount to a delay of approximately 5-6 months for a permit.
While delays are very problematic, such delays are not evidence of an
inability to implement the requirements of the SIP at all. Moreover,
the CLC staff analysis noted that the purpose of the bill is to address
the backlog; the bill does so by providing for APCD-approved third
party contractors to perform modeling for sources not subject to PSD.
The bill was signed into law by the Governor of Colorado on June 9,
2011. EPA therefore disagrees with the commenter's conclusion that EPA
cannot approve Colorado's infrastructure SIP for section
110(a)(2)(E)(i) on the basis of the statement in the CLC staff
analysis.
Turning to fees charged by Colorado under its title V program, EPA
notes that, in general, title V programs are not part of the SIP.\17\
Thus, such programs are not part of the requirements of section
110(a)(2). Furthermore, section 502(b)(3) of the Act requires not only
that title V program fees cover the reasonable direct and indirect
costs of developing and administering the title V program, but also
requires that the fees be used only to cover those costs. EPA therefore
disagrees with the comment that the alleged flaws in the title V
program with respect to the amount of fees charged by the State prevent
EPA from approving the Colorado infrastructure SIP for the 1997 ozone
NAAQS for element 110(a)(2)(E)(i). The State provided evidence that its
overall budget is sufficient to carry out its obligations and the issue
raised by the commenter does not refute that overall budget.
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\17\ In the case of Colorado, the Title V program is not part of
the SIP, with the exception of the fee program. Section
110(a)(2)(E)(i) requires adequate resources to carry out the SIP. As
the Title V program--except the fee program itself--is not part of
the SIP, 110(a)(2)(E)(i) does not require an assessment of whether
the fees are adequate to implement the Title V program in its
entirety.
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EPA also disagrees with the commenter's argument that the amount of
fees charged by the State in its title V program renders the
infrastructure SIP unapprovable with respect to section 110(a)(2)(L).
As stated in the text of the section, 110(a)(2)(L) is no longer
applicable to title V operating permit programs after approval of such
programs. As noted in the NPR, 76 FR at 28714, final approval of
Colorado's title V operating permit program became effective October
16, 2000 (65 FR 49919). EPA therefore disagrees with the comment that
EPA cannot approve Colorado's infrastructure SIP for section
110(a)(2)(L) on the basis of alleged flaws in Colorado's title V
program.
Comment No. 2: The commenter argued that Colorado's SIP fails to
meet the PSD requirements of section 110(a)(2)(J) due to a lack of
ozone impact analysis for new or modified major sources. The commenter
alleged a number of specific inadequacies, which EPA discusses
separately below.
Comment 2.a: The commenter asserted that the SIP does not require
the APCD to ensure that a new or modified source does not cause or
contribute to violations of the ozone NAAQS prior to issuance. The
commenter cited section 165(a)(3) of the Act and quoted the language of
40 CFR 51.166(k)(1). The commenter later stated that nothing in the
Colorado SIP explicitly requires that ozone impacts be addressed in the
context of issuing a PSD permit.
EPA Response: EPA disagrees with the commenter's interpretation of
the Colorado SIP. Section VI.A.2 of part D of Regulation Number 3 in
the Colorado SIP, applicable to sources subject to PSD, specifically
requires a source impact analysis.\18\ The language of section VI.A.2
mirrors the language in 40 CFR 51.166(k)(1) quoted by the commenter. In
addition, there is nothing
[[Page 43911]]
in this section or any other section of the SIP that exempts sources
from carrying out the source impact analysis for the 1997 ozone NAAQS.
Nor does the commenter cite any provision of the SIP that creates such
an exemption. EPA concludes that the commenter is therefore in error in
stating that the Colorado SIP does not require the source impact
analysis set out in 40 CFR 51.166(k)(1). Furthermore, section VI.A.2
requires the owner or operator of the proposed new source or
modification to demonstrate that the construction or modification of
the source will not cause or contribute to a violation of any NAAQS.
Such language includes the 1997 8-hour ozone NAAQS; thus the commenter
is also in error in stating that the SIP does not specifically require
ozone impacts to be addressed.
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\18\ This provision was previously in part B of Regulation
Number 3. On May 31, 2011, Region 8 finalized an action that (among
other things) approved Colorado's reorganization of its PSD program
into the new part D of Regulation Number 3. The notice of the final
action has not yet been published in the Federal Register, but a
copy of Colorado's submittal and the signed notice can be found in
Docket No. [xxx].
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Comment 2.b: The commenter stated that the SIP is deficient because
it does not identify any significant impact levels for ozone.
EPA Response: EPA has not identified significant impact levels
(SILs) for ozone.\19\ The comment therefore does not provide any basis
for EPA to change its proposed approval of the Colorado infrastructure
SIP for section 110(a)(2)(C) or (J) for the 1997 ozone NAAQS.
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\19\ For an explanation and discussion of SILs, in the context
of PM2.5, see 75 FR 64864 (Oct. 20, 2010).
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Comment 2.c: The commenter asserted that section VI.A.3.e of Part D
of Regulation Number 3 ``explicitly allows the owner or operator of a
proposed major source or major modification to forego a pre-
construction ozone analysis altogether.''
EPA Response: EPA disagrees with the commenter's characterization
of the Colorado SIP. First, EPA notes that section VI.A.3.e (and the
parallel provision in 40 CFR 51.166(m)(1)(v)) applies only if a
proposed major stationary source or major modification of volatile
organic compounds (VOCs) meets the requirements of 40 CFR part 51,
Appendix S, Section IV, including, in particular, the requirement to
satisfy the lowest achievable emissions rate (LAER) for VOCs. Second,
the commenter appears to misunderstand the scope of this provision.
Contrary to the commenter's assertion, the provision does not exempt
any sources from the requirement to perform the source impact analysis
in section VI.A.2 (discussed in the response to comment 2.a above).
Instead, the provision allows sources that (among other things) employ
LAER for VOCs to use post-construction monitoring to replace the pre-
application air quality analysis requirements of section VI.A.3.a. This
option is specifically provided for in 40 CFR 51.166(m)(1)(v).
Comment 2.d: The commenter alleged that the SIP does not meet the
requirements of 40 CFR 51.166(l)(1), which requires the SIP to base
applications of air quality modeling in PSD permitting on the
applicable models, data bases, and other requirements specified in
Appendix W of 40 CFR part 51, and requires modification and
substitution of such models to be approved by the Administrator. The
commenter also asserted that the Colorado SIP does not specify any
approved methodology for analyzing ozone impacts, contrary to PSD
requirements under the CAA.
EPA Response: EPA disagrees with the commenter's reading of the
requirements of the Colorado SIP. The Colorado SIP includes section
VIII.A of part A of Regulation Number 3, which specifically requires
estimates of ambient air concentrations required under Regulation
Number 3 to be based on applicable models, data bases, and other
requirements generally required by the EPA. Although section VIII.A
does not specifically reference Appendix W, in the context of the
source impact analysis in section VI.A.2 for PSD permitting, we
interpret this language to include the requirements specified in
Appendix W. In addition, section VIII.A requires any modification or
substitution of a model to be subject to public notice and comment and
to be approved in writing by EPA (which we interpret to mean the
Administrator or her delegee). EPA therefore disagrees with the comment
that the Colorado SIP does not meet the requirements of 40 CFR
51.166(l)(1). Furthermore, the comment implies that the Colorado SIP
must specify an approved methodology for analyzing ozone impacts, but
did not explain what provision creates such a requirement for the
Colorado SIP. EPA therefore disagrees with the comment that the
Colorado SIP is contrary to PSD requirements under the Act.
Comment 2.e: The commenter stated that the APCD has not interpreted
its SIP to require an analysis of ozone impacts. As evidence, the
commenter quoted the following statement in APCD's modeling guidance:
``ozone modeling is not routinely requested for construction permits,
although it could be in unusual cases such as situations where the
Division believes ozone standards could realistically be violated by
the proposed source or modification.''
EPA Response: EPA disagrees with the commenter's characterization
of APCD's position. EPA first notes that the quoted language is in the
chapter of the APCD modeling guidance regarding the demonstration to be
made for construction permits for minor sources. While the relevant
chapter of the APCD modeling guidance (regarding new major stationary
sources and major modifications) does refer to the minor source
chapter, it is not clear that the statement in the minor source chapter
about the frequency of requests for ozone modeling applies to sources
subject to PSD. Furthermore, the modeling guidance elsewhere states
(see pages 7-9) that a source impact analysis (as discussed in the
response to comment 2.a above and as required by the SIP) must be
performed for sources subject to PSD.
As discussed above in the response to comment 2.d, the Colorado SIP
requires estimates of ambient air concentrations to be based on the
applicable models, data bases, and other requirements generally
required by the EPA, which EPA interprets to include the requirements
of Appendix W of 40 CFR part 51, Guideline on Air Quality Models.
Section 5.2.1 of Appendix W includes the Guideline recommendations for
models to be utilized in assessing ambient air quality impacts for
ozone. Section 5.2.1.c provides that the model users (state and local
permitting authorities and permitting applicants) should work with the
appropriate EPA Regional Office on a case-by-case basis to determine an
adequate method for performing an air quality analysis for assessing
ozone impacts. Due to the complexity of modeling ozone and the
dependency on the regional characteristics of atmospheric conditions,
this is an appropriate approach for assessing ozone impacts rather than
specifying one particular preferred model nationwide, which may not be
appropriate in all circumstances. Instead, the choice of method
``depends on the nature of the source and its emissions. Thus, model
users should consult with the Regional Office * * * '' Appendix W
Section 5.2.1.c. Therefore, it is appropriate for permitting
authorities to consult and work with EPA Regional Offices as described
in Appendix W, including section 3.0.b and c, 3.2.2, and 3.3, to
determine the appropriate approach to assess ozone impacts as required
for sources subject to PSD. Although EPA has not selected one
particular preferred model in Appendix A to Appendix W (Summaries of
Preferred Air Quality Models) for conducting ozone impact analyses for
individual sources, state/
[[Page 43912]]
local permitting authorities must comply with the appropriate PSD
Federal Implementation Plan (FIP) or SIP requirements with respect to
ozone.
EPA has had a standard approach in its PSD SIP and FIP rules of not
mandating the use of a particular model for all circumstances, instead
treating the choice of a particular method for analyzing ozone impacts
as circumstance-dependent. EPA then determines whether the State's
implementation plan revision submittal meets the PSD SIP requirements.
As explained above, in this case the Colorado SIP meets the
requirements of 40 CFR part 51.166(k) and (l).
III. Final Action
In this action, EPA is approving in full the following section
110(a)(2) infrastructure elements for Colorado for the 1997 ozone
NAAQS: (A), (B), (C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J),
(K), (L), and (M). EPA is taking no action today on section
110(a)(2)(E)(ii) for the 1997 ozone NAAQS. EPA will address this sub-
element in a later action.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations (42 USC 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves some state law as meeting Federal requirements
and disapproves other state law because it does not meet Federal
requirements; this action 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 USC 272
note) because application of those requirements would be inconsistent
with the CAA; and,
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 20, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incoporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart G--Colorado
0
2. Section 52.353 is added to read as follows:
Sec. 52.353 Section 110(a)(2) infrastructure requirements.
On January 7, 2008 James B. Martin, Executive Director of the
Colorado Department of Public Health and Environment for the State of
Colorado, submitted a certification letter which provides the State of
Colorado's SIP provisions which meet the requirements of CAA Section
110(a)(1) and (2) relevant to the 1997 Ozone NAAQS.
[FR Doc. 2011-18421 Filed 7-21-11; 8:45 am]
BILLING CODE 6560-50-P
