Approval and Promulgation of State Implementation Plans; State of Colorado; Attainment Demonstration for the 1997 8-Hour Ozone Standard, and Approval of Related Revisions, 47443-47451 [2011-19807]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Rules and Regulations]
[Pages 47443-47451]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19807]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0285; FRL-9276-8]


Approval and Promulgation of State Implementation Plans; State of 
Colorado; Attainment Demonstration for the 1997 8-Hour Ozone Standard, 
and Approval of Related Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is partially approving and partially disapproving 
revisions to Colorado's State Implementation Plan (SIP). On June 18, 
2009, Colorado submitted proposed SIP revisions intended to ensure 
attainment of the 1997 ozone National Ambient Air Quality Standards 
(NAAQS) in the Denver Metro Area/North Front Range (DMA/NFR) 
nonattainment area by November 20, 2010. The June 18, 2009 submittal 
consisted of an ozone attainment plan, which included emission 
inventories, a modeled attainment demonstration using photochemical 
grid modeling, a weight of evidence analysis, and 2010 motor vehicle 
emissions budgets for transportation conformity. The submittal also 
included revisions to Colorado Regulation Numbers 3 and 7 and to 
Colorado's Ambient Air Quality Standards Regulation. On October 7, 
2010, Colorado submitted revised photochemical modeling results to us 
for the DMA/NFR ozone SIP. The revised modeling corrected the latitude/
longitude locations of certain point sources but still projected 
attainment of the 1997 ozone NAAQS. EPA is approving the attainment 
demonstration, the rest of the ozone attainment plan, with limited 
exceptions, and the revisions to Colorado Regulation Number 3, parts A 
and B. EPA is approving portions of the revisions to Colorado 
Regulation Number 7 and disapproving other portions. EPA is not acting 
on Colorado Regulation Number 3, part C, and Colorado's Ambient Air 
Quality Standards Regulation as Colorado withdrew these submissions on 
September 10, 2010. EPA is taking these actions pursuant to section 110 
and part D of the Clean Air Act (CAA) and EPA's regulations.

DATES: Effective Date: This final rule is effective September 6, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2010-0285. 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: Scott Jackson, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129, (303) 312-6107, 
jackson.scott@epa.gov.

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Colorado mean the State of Colorado, unless 
the context indicates otherwise.

[[Page 47444]]

    (v) The initials OAP mean or refer to Colorado's 8-Hour Ozone 
Attainment Plan, which Colorado submitted on June 18, 2009.

Table of Contents

I . Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Review

I. Background

    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm) (62 FR 38855). Ozone is formed from the 
photochemical reaction of nitrogen oxides (NOX) with 
volatile organic compounds (VOCs). Under EPA regulations (40 CFR part 
50, Appendix I), the 1997 0.08 ppm 8-hour ozone NAAQS is attained when 
the 3-year average of the annual fourth highest daily maximum 8-hour 
average ambient ozone concentrations is less than or equal to 0.08 ppm. 
Forty CFR part 50, Appendix I, section 2.3, directs that the third 
decimal place of the computed 3-year average be rounded, with values 
equal to or greater than 0.005 rounding up. Thus, under our 
regulations, a computed 3-year average ozone concentration of 0.085 ppm 
is the smallest value that is considered to be greater than 0.08 ppm 
and a violation of the standard.
    On April 30, 2004, we designated areas as attaining or not 
attaining the 1997 8-hour ozone NAAQS. As part of that rule, we 
deferred the effective date of nonattainment designations for multiple 
areas of the country, including the DMA/NFR area. These areas, which 
were called Early Action Compact (EAC) areas, agreed to follow a 
program to achieve early reductions of emissions in order to attain the 
1997 8-hour standard no later than December 31, 2007 (69 FR 23857). 
Because the DMA/NFR area violated the 1997 8-hour standard based on air 
quality data from 2005-2007, the nonattainment designation for the area 
became effective on November 20, 2007. The DMA/NFR nonattainment area 
includes Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas, and 
Jefferson Counties, and portions of Larimer and Weld Counties (40 CFR 
81.306).
    Our regulations addressing EAC areas that failed to attain the 1997 
8-hour ozone standard by December 31, 2007 required that Colorado 
submit an attainment demonstration SIP for the 1997 8-hour standard (40 
CFR 81.300(e)(3)(ii)(D)). Colorado submitted its attainment 
demonstration SIP for the DMA/NFR area on June 18, 2009 as part of a 
larger SIP submission. This submittal consisted of the following parts:
     8-Hour Ozone Attainment Plan (OAP), which includes 
monitoring information, emission inventories, a modeled attainment 
demonstration using photochemical grid modeling, a weight of evidence 
analysis, and 2010 motor vehicle emissions budgets (MVEBs) for 
transportation conformity.
     Revisions to Regulation Number 3, Parts A, B, and C.
     Revisions to Regulation Number 7.\1\
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    \1\ As we indicated in our proposed rulemaking (75 FR 42353), we 
are treating provisions in Regulation No. 7 that Colorado designated 
as ``State Only'' as not having been submitted to us for approval, 
and we are not acting on those provisions.
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     Revisions to Colorado's Ambient Air Quality Standards 
Regulation.
    On July 21, 2010 (75 FR 42346), we published our proposed action 
regarding Colorado's revisions. We proposed to approve Colorado's 2010 
attainment demonstration for the 1997 8-hour ozone NAAQS, the motor 
vehicle emissions budgets contained in the OAP, and all other aspects 
of the OAP except the last paragraph on page IV-1 and the first 
paragraph on page IV-2, the words ``federally enforceable'' in the 
second to last paragraph on page V-6, and the reference to Attachment A 
in the Table of Contents and on page IV-3.
    We proposed to approve the revisions to Colorado Regulation Number 
3, parts A and B. We proposed to disapprove the revisions to Colorado 
Regulation Number 3, part C.
    We proposed to approve the following portions of the revisions to 
Colorado Regulation Number 7:
     Revisions to Sections I through XI, except for Colorado's 
repeal of Section II.D.
     Revisions to Sections XIII through XVI.
    We proposed to disapprove the following portions of the revisions 
to Colorado Regulation Number 7:
     Colorado's proposed repeal of Section II.D.
     Revisions to Section XII.
    We proposed to disapprove the revisions to Colorado's Ambient Air 
Quality Standards Regulation.
    In our proposed action, we fully explained the bases for our 
proposed approvals and disapprovals. See 75 FR 42351 (July 21, 2010). 
We received one letter commenting on our proposed rule.
    On September 10, 2010, Colorado withdrew from our consideration the 
proposed revisions to Regulation Number 3, Part C, and Colorado's 
Ambient Air Quality Standards Regulation. Consequently, we are not 
taking final action on the proposed disapproval of Regulation Number 3, 
Part C, and Colorado's Ambient Air Quality Standards Regulation.
    In September 2010, Colorado discovered that its 2008 photochemical 
grid modeling for the OAP contained inaccurate coordinates for some 
point sources. Colorado re-ran the model with the correct coordinates 
and submitted the revised modeling results to us in October 2010.
    On December 17, 2010 (75 FR 78950), we published a notice in the 
Federal Register in which we announced the availability of Colorado's 
revised modeling and provided an opportunity for public comment through 
January 18, 2011, including comment on how the revised modeling might 
affect our determinations in our July 21, 2010 proposed rulemaking. As 
we explained in our December 17, 2010 notice, the revised modeling 
predicted design values for 2010 that remained below the 85.0 ppb ozone 
NAAQS; for the SIP's 2010 base case, the maximum projected design 
values were found at the Rocky Flats North and Fort Collins West 
monitoring sites--84.7 ppb ozone at both locations. This is 0.2 ppb 
lower than Colorado's 2008 modeling projected using incorrect point 
source locations. We concluded that the revised modeling supported the 
conclusions that we proposed in July 2010 regarding the 2008 modeling. 
See 75 FR 78952. We received no comments in response to our December 
17, 2010 notice.

II. Response to Comments

    We received one letter from WildEarth Guardians (WEG) commenting on 
our July 2010 proposed action. In this section EPA responds to the 
significant adverse comments made by WEG. We have carefully considered 
the comments, and nothing in them has caused us to change our action 
from what we proposed.
    Comment No. 1--WEG asserts that EPA gave Colorado a ``major break'' 
by deferring the nonattainment designation for the DMA/NFR area under 
EPA's EAC program. Instead of having to attain in 2007, Colorado got to 
defer the attainment date until 2010. According to WEG, EPA allowed the 
State to delay clearing the air and avoid more stringent clean up 
requirements.
    EPA Response--WEG's comments regarding our past deferral of the 
nonattainment designation are not timely in the context of this 
rulemaking action because EPA took final action deferring the effective 
date of the nonattainment designation in 2006 (71 FR 69022 (November 
29, 2006)). While WEG challenged EPA's 2006 deferral of

[[Page 47445]]

the nonattainment designation for the DMA/NFR area, WEG agreed to 
settle that matter. One element of the settlement agreement, as 
modified, calls for EPA to act on Colorado's SIP submission by February 
28, 2011, and we are meeting that obligation through this action. WEG 
may not challenge this action based on EPA's prior deferral of the 
nonattainment designation for the DMA/NFR area; this action solely 
concerns the adequacy of Colorado's SIP submission. We note, however, 
that we disagree with WEG's claim that the deferral of the effective 
date allowed the area to delay cleaning the air. Colorado previously 
submitted SIP control measures, under EPA's regulations for EAC areas, 
that achieved reductions of ozone precursors before such reductions 
were required under the CAA.
    Comment No. 2--WEG indicates that it supports aspects of EPA's 
proposal, including EPA's proposed disapproval of certain revisions to 
Regulation Number 7.
    EPA Response--We acknowledge WEG's support for aspects of our 
proposal.
    Comment No. 3--WEG asserts that EPA's proposed approval of 
Colorado's attainment demonstration overlooked key modeling 
information. Specifically, WEG alleges that neither the baseline 
modeling nor the control strategy modeling demonstrate attainment. 
WEG's assertion centers on the baseline modeling for an area west of 
Fort Collins that models a violation of the NAAQS and Colorado's 
statement that such a violation ``does not seem implausible.'' WEG's 
position is that EPA cannot approve the attainment demonstration as it 
overlooked key information, or at least failed to explain why the 
modeled violations do not matter in the context of the proposed 
attainment demonstration.
    EPA Response--EPA disagrees with the commenter's characterization 
of EPA's analysis and the commenter's interpretation of the modeling 
information.
    Colorado's attainment demonstration is consistent with EPA's 
modeling guidance. (See ``Guidance on the Use of Models and Other 
Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, 
PM2.5, and Regional Haze,'' EPA-454/B-07-002, April 2007 
(``2007 modeling guidance'').) The 2007 modeling guidance describes the 
modeled attainment test for the 8-hour ozone standard as an exercise in 
which an air quality model is used to simulate current and future air 
quality. The guidance recommends that model estimates be used in a 
``relative'' rather than ``absolute'' sense. Specifically, the analysis 
focuses on the ratio of the model's future to current (baseline) 
predictions near ambient air quality monitors. EPA refers to these 
ratios as ``relative response factors.'' Future ozone concentrations 
are estimated at existing monitoring sites by multiplying the relative 
response factor for locations ``near'' each monitor by the observation-
based, monitor-specific, ``baseline'' design value. The resulting 
predicted future ozone concentrations are then compared to the NAAQS. 
(See 2007 modeling guidance, section 2.1, page 15; section 3.0, pages 
20-28; section 4.2, page 40.) Colorado followed this procedure in 
demonstrating that the DMA/NFR area will attain the ozone NAAQS.\2\
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    \2\ As indicated above, Colorado's October 2010 revised modeling 
confirmed design values for 2010 below the NAAQS at all monitoring 
sites.
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    The use of observed concentrations as the base value in the 
attainment test reduces problems in interpreting model results. In the 
relative attainment test, observed data is used to define the target 
concentration. This has the effect of anchoring the future 
concentrations to a ``real'' ambient value. Although good model 
performance remains a prerequisite for use of a model in an attainment 
demonstration, problems posed by less than ideal model performance on 
individual days are reduced through the use of this procedure.
    EPA guidance also recommends an unmonitored area analysis (UAA) in 
attainment demonstrations. (See 2007 modeling guidance, section 3.4, 
pages 29-30.) The UAA uses a combination of model output and ambient 
data to identify areas that might exceed the NAAQS if a monitor were 
placed in the given location. In general, the UAA review is intended to 
ensure that a control strategy leads to reductions in ozone at other 
locations which could have baseline (and future) design values 
exceeding the NAAQS if a monitor were deployed there. It was this 
analysis in Colorado's attainment demonstration that indicated 
potential future concentrations above the level of the NAAQS in the 
elevated terrain areas west of Fort Collins.
    The 2007 modeling guidance indicates that NAAQS violations in the 
UAA should be handled on a case-by-case basis. However, the guidance 
stresses that due to the lack of observation-based, measured data, the 
examination of ozone concentrations as part of the UAA is more 
uncertain than the monitor-based attainment test. As a result, the 
guidance recommends that the UAA be treated as a separate test from the 
monitor-based attainment test. While it is expected that States will 
implement additional emission controls to eliminate predicted 
violations of the monitor-based test, the same requirements may not be 
appropriate in unmonitored areas. The guidance recommends that it may 
be appropriate to deploy additional monitors in an area where the UAA 
indicates a potential future year violation. (See 2007 modeling 
guidance, section 3.4.3, page 32.)
    The UAA submitted by Colorado shows potential ozone concentrations 
above the NAAQS in the elevated terrain area west of Fort Collins.\3\ 
Historical ambient ozone monitoring data are sparse in the foothill and 
mountain areas west of the Front Range. The complex terrain has a 
strong influence on wind and pollutant transport patterns in the area 
and contributes to uncertainty in the model predictions. We have 
carefully considered the model's predicted concentrations west of the 
Fort Collins West monitor (FTCW). Given the inherent uncertainty 
associated with UAA and the uncertainty associated with modeling in 
this specific location, we conclude that it is not appropriate to 
insist on additional control measures at this time to address the 
modeled ozone concentrations west of FTCW. (See 2007 modeling guidance, 
section 3.4.3, page 33.) Other factors also support our decision.
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    \3\ The original 2008 modeling and the October 2010 revised 
modeling both predict a value above the NAAQS in 2010 in one grid 
cell west of the Fort Collins West monitor.
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    First, in accordance with our guidance, Colorado installed an 
additional ozone monitor in the area west of FTCW to determine whether 
the model-predicted ozone concentrations are, in fact, valid. The 
special purpose monitor, located in Rist Canyon, began operation on May 
14, 2009. The Rist Canyon monitoring station has collected data for two 
ozone seasons (approximately 20 months) since it began operating. The 
Rist Canyon monitoring station uses a Federal Equivalent Method (FEM) 
and follows the quality assurance requirements of 40 CFR part 58, 
Appendix A.
    Ozone data collected at this monitoring station is eligible for 
comparison to the ozone NAAQS after the monitor has operated for more 
than 24 months per 40 CFR 58.30(c). Design values, however, are based 
on the 3-year average of the annual fourth highest daily maximum 8-hour 
average ozone concentration (see 40 CFR part 50,

[[Page 47446]]

Appendix D). While the monitor has not operated for these periods, the 
data is informative. An analysis of the data shows the fourth highest 
daily maximum 8-hour average ozone concentration reading is 69 ppb for 
May through December of 2009 and 71 ppb for January through December 
2010. This data indicates that the area west of FTCW is not currently 
being exposed to ozone concentrations above the 1997 8-hour ozone 
standard. Also, these values are lower than the fourth highest daily 
maximums--73 ppb and 75 ppb--for FTCW for 2009 and 2010.
    Second, Colorado's UAA explains that the high design value of 86 
ppb at FTCW was based on only two years (2006-2007) of monitoring data, 
not the normal three years. (See Appendix I of Colorado's technical 
support document, titled ``Final 2010 Ozone Attainment Demonstration 
Modeling for the Denver 8-Hour Ozone State Implementation Plan.'') At 
the time the SIP was prepared, three full years of data were not 
available because the monitor did not start operating until 2006. This 
high design value drove the high 2010 projected design values at FTCW 
and the unmonitored area values west of the monitor. When a third year 
of monitoring data is included (2008), the 2010 projected design value 
at FTCW is reduced from 86 ppb to 82 ppb. If Colorado's UAA had used 
the 82 ppb design value at FTCW instead of 86 ppb, no grid cells would 
have exceeded the 8-hour ozone NAAQS in the UAA.
    Given that Colorado followed our 2007 modeling guidance and the 
supporting evidence discussed above, Colorado properly modeled 
attainment.
    Comment No. 4--WEG asserts that there is no analysis showing that 
Regulation Number 7 imposes RACM/RACT as required by CAA section 
172(c)(1). Regulation Number 7 does not impose RACT requirements for 
all sources of ozone precursors in the DMA/NFR area and does not impose 
controls for NOX. RACT cannot mean no air pollution controls 
for certain sources like refineries or sources of NOX. 
Regulation Number 7 is contrary to the CAA.
    EPA Response--Our longstanding interpretation of CAA section 
172(c)(1) is that it only requires implementation of control measures 
that contribute to attainment as expeditiously as practicable; measures 
that would not advance the attainment date need not be considered RACM/
RACT. See, e.g., 57 FR 13498, 13560 (April 16, 1992); 70 FR 71612, 
71617, 71653-71654 (November 29, 2005). This interpretation has been 
upheld by the courts. See, e.g., NRDC v. EPA, 571 F.3d 1245, 1253 (DC 
Cir. 2009); Sierra Club v. EPA, 294 F.3d 155, 162 (DC Cir. 2002); 
Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002). As we noted 
in our proposed action (75 FR 42351), Colorado's modeling demonstrates 
attainment in 2010 based on existing SIP-approved control measures, 
including the measures in Regulation Number 7. Because the submission 
demonstrates attainment by November 2010, and it is already 2011, these 
SIP-approved measures represent all measures necessary to demonstrate 
attainment as expeditiously as practicable. At this point in time, 
additional control measures, whether for VOCs or for NOX, 
would not advance the attainment date and are not needed to satisfy the 
requirements of CAA section 172(c)(1).\4\ WEG has not demonstrated that 
the attainment demonstration is flawed. Additional controls on 
NOX and controls in other parts of the nonattainment area 
may be desirable from WEG's perspective, but WEG has not demonstrated 
that such controls are necessary to demonstrate attainment as 
expeditiously as practicable.
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    \4\ As evidenced by the following language, we did evaluate this 
issue in our proposed action: ``Because Colorado's modeling 
demonstrates attainment in 2010 based on existing SIP-approved 
measures, and it is now 2010, such SIP-approved measures represent 
all measures necessary to demonstrate attainment as expeditiously as 
practicable as per section 172 of the CAA. Additional control 
measures would not advance the attainment date.'' 75 FR 42351.
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    Comment No. 5--WEG asserts that the requirements in Regulation 
Number 7, Sections II.C.1.c and II.C.1.d, are unenforceable because 
these sections defer solely to the discretion of Division staff the 
establishment of RACT limits at a later date. The proposed SIP 
revisions do not specify what RACT emission limits will be for each VOC 
source. In addition, Sections II.C.1.c and II.C.1.d fail to provide for 
appropriate public notice and involvement in the development and 
adoption of RACT requirements. EPA must ensure that facility-specific 
RACT emission limits are adopted through the SIP to ensure the 
enforceability of any RACT requirements and to ensure that Regulation 7 
represents RACT consistent with the CAA.
    EPA Response--The State designated Sections II.C.1.c and II.C.1.d 
``State Only.'' As we indicated in our proposed action, our 
interpretation is that provisions designated ``State Only'' have not 
been submitted to us for approval. Instead, we interpret these 
provisions to have been submitted for informational purposes. See 75 FR 
42353. We are not acting on Sections II.C.1.c and II.C.1.d in this 
action, and, thus, we consider these comments irrelevant to our action. 
Because we are not acting on Sections II.C.1.c and II.C.1.d, we are not 
incorporating them by reference into the Code of Federal Regulations. 
WEG has not indicated any way in which these state-only provisions 
affect the federally enforceable aspects of Regulation Number 7. As 
noted above, we have determined that the State has fully met the 
applicable RACT requirement in section 172(c)(1) and thus this State-
only provision is not a necessary component of the attainment 
demonstration on which we are acting through this rule.
    Comment No. 6--WEG asserts that Section II.C.2 also imposes 
unenforceable RACT requirements. WEG does not agree with EPA that 
Colorado's revisions to Section II.C are minor clerical changes. WEG 
asserts that the new cross-reference to Regulation Numbers 3 and 7 in 
Section II.C.2 is unclear.
    EPA Response--In the current EPA-approved SIP, Section II.C.2 
reads, ``All new sources shall utilize controls representing Reasonably 
Available Control Technology (RACT.)'' The State's revised language 
reads, ``All new sources shall utilize controls representing RACT, 
pursuant to Regulation Number 7 and Regulation Number 3, Part B, 
Section III.D., upon commencement of operation.'' \5\
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    \5\ WEG mistakenly cites the language as referring to Regulation 
Number 3, part B, Section II.D.2.
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    We view the language change to Section II.C.2 as a minor clarifying 
change. The new reference to Regulation Number 7 is intended to 
indicate that new sources need to comply with any applicable RACT 
requirements specified in Regulation Number 7. As we indicated in our 
proposed action, Regulation Number 7 specifies emission limits for 
various industries and generic requirements.\6\ These limits and 
requirements already apply to new sources (in addition to existing 
sources) (see Regulation Number 7, Section I.B.1.a); the added 
reference to

[[Page 47447]]

Regulation Number 7 simply clarifies where (i.e., in Regulation Number 
7) RACT requirements are specified.
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    \6\ We note that we previously approved Regulation Number 7 
requirements as meeting VOC RACT requirements for the 1-hour ozone 
standard. 60 FR 28055, May 30, 1995. The revisions we approved in 
that action were intended to address a variety of deficiencies that 
EPA had identified in Regulation Number 7, including enforceability 
concerns. In other words, the requirements were established through 
the SIP revision process to ensure enforceability, and the public 
had a chance to comment on our rulemaking at that time. Regulation 
Number 7 contains requirements and limits for a wide range of 
sources and source categories, based on the Control Techniques 
Guidelines documents (CTGs) EPA had issued when Colorado adopted the 
various Regulation Number 7 requirements in 1989 and 1990.
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    The reference to Regulation Number 3, part B, Section III.D, merely 
clarifies that new sources need to comply with the permitting 
requirements in Colorado's ``Construction Permit Review Requirements.'' 
\7\ This revision does not alter the status quo; new sources are 
required to get permits under Reg. 3 irrespective of the language of 
Section II.C.2 of Regulation Number 7. Additionally, Colorado has 
historically used its permit process to establish VOC ``RACT'' limits 
for new sources covered by Section II.C.2 for those limited cases in 
which the other sections of Regulation Number 7 do not specify limits 
or requirements.\8\ Thus, we continue to view the change to Section 
II.C.2 as a minor clerical change.
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    \7\ There is currently a discrepancy between the numbering of 
the SIP-approved version of Regulation Number 3 and the State-
approved version. In the SIP-approved version, Regulation Number 3, 
part B, Section III.D specifies exemptions from permitting 
requirements. But in the State-approved version, Section III.D 
specifies construction permit review requirements. We interpret the 
State's reference to Regulation Number 3, part B, Section III.D as 
referring to the State-approved version of Section III.D. Colorado 
previously submitted revisions to Regulation Number 3, Part B, that 
contain the renumbering of the provisions of Part B, Section III; we 
will be acting on those revisions separately.
    \8\ We explain below that we do not view these limits as being 
necessary to satisfy RACM/RACT requirements under CAA section 
172(c)(1). This is the reason we have placed the word ``RACT'' in 
quotes in the text above.
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    Finally, the revised rule specifies that the new source must comply 
with RACT from commencement of operation, as opposed to some later 
date. This merely reiterates the requirement that is already specified 
by existing Section I.B.1.a.
    WEG's comments reflect a concern about Section II.C.2's alleged 
deferral of the establishment of RACT limits to the State's permitting 
process. Our view, however, is that Section II.C.2's requirements are 
actually surplus to necessary RACT requirements under CAA section 
172(c)(1). This is because Regulation Number 7's various source-
category-specific VOC limits and requirements apply to sources 
regardless of Section II.C.2's requirements. Thus, for sources subject 
to these source-category-specific limits and requirements, Section 
II.C.2 does not defer the establishment of controls to the State's 
permitting process. Additionally, as indicated above, we have 
determined that such limits and requirements, along with other SIP 
control measures, contribute to attainment as expeditiously as 
practicable, thus satisfying RACM/RACT under CAA section 172(c)(1). 
Accordingly, the imposition, pursuant to Section II.C.2, of VOC 
controls on new sources beyond those contained in the other sections of 
Regulation Number 7, while potentially beneficial, is not necessary to 
satisfy RACT requirements under CAA section 172(c)(1), the State's use 
of the term ``RACT'' in Section II.C.2 notwithstanding.\9\
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    \9\ The State's reference to ``RACT'' may be confusing, but we 
think it merely reflects the State's intent to require that new 
sources use reasonable controls, even if not covered by the source-
category-specific requirements in Regulation Number 7. We note that 
Colorado's permitting regulations provide for public notice and 
involvement so that WEG and others have the opportunity to 
participate in any control technology determinations Colorado makes 
in the permitting process.
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    Comment No. 7--WEG asserts that the SIP submission fails to comply 
with applicable Part D, Subpart 1 and 2 requirements under the CAA. In 
particular, section 172(c) requires states to enact RACM in their ozone 
nonattainment SIPs, to the extent more specific RACM requirements are 
not set forth under Subpart 2. Section 181 requires that marginal 
nonattainment SIPs meet the requirements of sections 181 and 182 as 
well as 172. It does not appear as if EPA made any assessment whether 
Colorado's submission complies with Subpart 1 and 2 requirements. WEG 
is particularly concerned that the SIP doesn't ensure RACT for 
NOX emissions or that RACT corrections are made in areas of 
the DMA/NFR nonattainment area that were not originally part of the 
Denver Metro 1-hour ozone nonattainment area. Instead of requiring 
RACM/RACT, the proposed SIP only focuses on the less stringent 
requirements for ozone nonattainment areas. The proposed SIP admits 
that RACM is one of the core elements for an attainment plan but goes 
on to say that RACT is not required to be applied.
    EPA Response--EPA's regulation placing certain areas only under the 
planning provisions of CAA title I, part D, subpart 1 was vacated by 
the DC Circuit in South Coast Air Quality Management District, et al. v 
. EPA, 472 F.3d 882 (DC Cir. 2006) on the basis that it was 
unreasonable. EPA has not yet finalized a rule in which it either 
places all of these areas in subpart 2 or in which it provides a 
reasonable explanation for placing all or some of the areas only under 
the planning provisions of subpart 1. However, unless and until EPA 
takes final action classifying the DMA/NFR area under subpart 2, it 
remains solely subject to the nonattainment planning provisions in 
subpart 1. Thus, the RACT requirement in subpart 2 does not currently 
apply to the DMA/NFR area. As explained above, because the State has 
demonstrated that it has adopted all controls necessary to attain as 
expeditiously as practicable (i.e., it cannot advance the attainment 
date from November 2010), we have determined that the area has met the 
RACM requirement in section 172 (i.e., ``subpart 1''). We note that for 
purposes of section 172(c) in subpart 1, RACT is a subset of RACM. Thus 
a determination that an area has met the RACM requirement of section 
172(c) means that the area has also met the RACT requirement in that 
section. See, e.g., NRDC v. EPA, 571 F.3d 1245, 1253 (DC Cir. 2009).
    We note that in response to the court's vacatur, EPA has proposed 
to place all areas under subpart 2. If EPA finalizes that proposal as 
proposed, Denver would be classified as marginal under subpart 2. See 
74 FR 2936 (January 16, 2009). Even if EPA were to finalize a subpart 2 
classification for the DMA/NFR area, we anticipate, as outlined in our 
proposal, that a SIP addressing subpart 2 requirements (including the 
RACT corrections applicable to marginal areas) would not be due until 
one year after a final rule classifying the DMA/NFR area under subpart 
2. For these reasons, we did not evaluate the SIP submission against 
subpart 2 requirements in the proposed rule, nor are we doing so for 
this final rule.
    Comment No. 8--WEG asserts that Colorado must update past RACT 
determinations made for the 1-hour ozone standard in light of the new 
8-hour ozone NAAQS nonattainment designation.
    EPA Response--Per our discussion above, the only RACM/RACT 
requirement that is applicable at this time is the requirement under 
CAA section 172(c)(1). That requirement is met if the State has adopted 
all controls necessary to attain as expeditiously as practicable and 
thus, that additional controls will not advance the attainment date. As 
explained above, we believe Colorado has met that requirement.
    Comment No. 9-- WEG asserts that 172(c)(1) coupled with 182(f) 
requires owners and operators of sources in ozone nonattainment areas 
to implement RACT requirements for sources that are subject to Control 
Technology Guidelines issued by EPA and for major sources of VOC and 
NOX, which are ozone precursors. Significant sources of 
ozone precursors are to be controlled to a reasonable extent. The 
proposed SIP does not even contain the bare minimum with regard to 
RACT, implementing only limited controls to address emissions of VOCs 
from oil and

[[Page 47448]]

gas production operations in the area and from a limited number of 
other stationary sources in the Front Range. RACT for emissions of VOCs 
from other industrial sources is woefully lacking. The SIP contains no 
RACT requirements for industrial sources of NOX emissions 
anywhere in the nonattainment area.
    EPA Response--As provided above, we have concluded that the SIP 
submission satisfies applicable RACM/RACT requirements. We note, 
however, that we disagree with WEG's characterization of the scope of 
VOC controls as being ``limited.''
    Comment No. 10--WEG refers to legislative history to support its 
views regarding VOC and NOX RACT requirements having to 
apply to all nonattainment areas. WEG quotes the following language 
from the Senate Environment and Public Works Committee: ``[s]tate and 
local agencies are not authorized to ignore [RACT] controls on 
NOX and VOC sources for which no CTG has been issued. 
Sources of the size specified in the bill must be controlled to levels 
achievable through the use of measures that are technologically and 
economically feasible for a class or category of sources.''
    EPA Response--The language WEG cites is from a Senate report 
discussing the anticipated provisions in section 182(b) of subpart 2, 
which was added by the 1990 Amendments to the CAA. Specifically, under 
section 182(b)(2)(C), which applies to areas classified under subpart 2 
as moderate or higher, RACT applies to all major stationary sources of 
VOC that are not covered by subsections (A) and (B). Subsections (A) 
and (B) address RACT for sources for which a CTG has been issued. 
Section 182(f) extends the subpart 2 RACT requirements to major 
stationary sources of NOX. As indicated above, we are not 
evaluating the SIP submission against subpart 2 requirements because 
those requirements are not currently applicable. Also as indicated 
above, courts have upheld our interpretation of RACM/RACT under CAA 
section 172(c)(1).
    Comment No. 11--WEG asserts that a SIP that fails to contain RACT 
for major VOC and NOXcommercial sources will significantly 
increase the likelihood of continued nonattainment and jeopardize 
maintenance. It does not appear that EPA has assessed the adequacy of 
the SIP in this light.
    EPA Response--As we have stated, the SIP demonstrates attainment of 
the 1997 ozone NAAQS as expeditiously as practicable. The State is not 
under a current obligation to submit a SIP that demonstrates long-term 
maintenance of the ozone standard and this SIP was not submitted for 
that purpose. Under Union Electric v. EPA, 427 U.S. 246 (1976), EPA's 
job in reviewing a SIP is to determine whether it meets the minimum 
requirements of the CAA. The SIP submission demonstrates attainment 
based on enforceable measures that we previously approved into the 
existing SIP. While additional controls might be desirable because they 
would provide additional emission reductions beyond those needed for 
attainment, we cannot disapprove the attainment demonstration SIP on 
that basis.
    Comment No. 12--WEG asserts that if EPA is not assessing whether 
Colorado's SIP complies with subparts 1 and 2 of the CAA, EPA must make 
a finding of failure to submit for Colorado's failure to submit a 
required SIP under subparts 1 and 2.
    EPA Response--Colorado submitted a SIP revision as required by 40 
CFR 81.300(e)(3)(ii)(D), which requires EAC areas that failed to attain 
the 1997 8-hour ozone standard by December 31, 2007 to submit a revised 
attainment demonstration SIP. As explained above, EPA has assessed the 
Colorado SIP under the attainment demonstration and RACM/RACT 
requirements of section 172(c) in subpart 1. Also, as explained above, 
Denver is not currently classified under subpart 2 and thus, at this 
time, no SIP revision is required under subpart 2. Thus, there is no 
basis at this time for evaluating the SIP under the provisions of 
subpart 2 or for making a finding of failure to submit a SIP revision 
under subpart 2.
    Comment No. 13--WEG asserts that EPA's proposed approval fails to 
comply with section 110(l) of the CAA. The SIP submission does not 
demonstrate that it will not interfere with the 2008 ozone NAAQS, which 
are currently applicable. Thus, EPA cannot approve the revision. It is 
contrary to section 110(l) for EPA to assume that its duties are 
limited to protecting the 1997 ozone NAAQS. Section 110(a)(1) provides 
that a State must submit a SIP for a new NAAQS within three years of 
promulgation. Where a statutory duty applies within that three year 
period, the State and EPA are compelled to meet that requirement given 
that it falls within the three year window provided by section 
110(a)(1). WEG also asserts that the revision would significantly 
interfere with nonattainment of the NAAQS in downwind states.
    EPA Response--We disagree that our approval does not comply with 
CAA section 110(l) or that section 110(l) requires disapproval of 
Colorado's attainment demonstration or other aspects of the SIP 
submission we are approving. CAA section 110(l) provides that EPA 
``shall not approve a revision of a plan if the revision would 
interfere with any applicable requirement concerning attainment and 
reasonable further progress * * *, or any other applicable requirement 
of'' the CAA. Contrary to WEG's assertion, we do not assume our duties 
under section 110(l) are limited to protecting the 1997 8-hour ozone 
NAAQS--we simply do not agree that our approval will interfere with 
attainment of the 2008 ozone NAAQS or any other requirement of the CAA. 
Through our action, no SIP-approved control measures for ozone 
precursors are being relaxed; in fact, we are approving changes to 
Regulation Number 3 that will strengthen the SIP and disapproving 
revisions to Regulation Number 7 that would weaken the SIP. WEG has not 
explained how Colorado's attainment demonstration and the other parts 
of the SIP we're approving would interfere with the 2008 ozone NAAQS.
    At this time, no areas are designated nonattainment for the 2008 
ozone NAAQS and no attainment demonstration SIPs are due for that 
NAAQS. EPA does not interpret section 110(l) to require a full 
attainment or maintenance demonstration for all NAAQS before any 
changes to a SIP may be approved. See Kentucky Resources Council, Inc. 
v. EPA, 467 F.3d 986 (6th Cir. 2006); see also e.g., 70 FR 53 (Jan. 3, 
2005), 70 FR 28429 (May 18, 2005) (proposed and final rules, upheld in 
Kentucky Resources, which discuss EPA's interpretation of section 
110(l)). EPA has concluded that preservation of the status quo air 
quality prior to the time new attainment or maintenance demonstrations 
are due will prevent interference with CAA requirements, including the 
States' obligations to develop timely demonstrations. Thus, areas do 
not have to produce a complete attainment demonstration to make any 
revisions to the SIP, provided the status quo air quality is preserved.
    As noted above, as a result of today's action, the SIP will be 
strengthened and air quality maintained. This conclusion is sufficient 
to satisfy the requirements of section 110(l) with respect to the 2008 
ozone standard. We have not and are not required to evaluate whether 
the current attainment demonstration also demonstrates attainment for 
the 2008 ozone standard or the SIP contains measures to attain that 
standard. The CAA and our regulations designate specific time frames 
for areas to submit SIPs and demonstrate attainment following a 
nonattainment designation for a new standard. See, e.g., CAA sections 
110(a)(1) and 172(b). Since this

[[Page 47449]]

action will not interfere with status quo air quality, and thus with 
Colorado's ability to develop a SIP to attain the 2008 ozone standard, 
it is appropriate under the CAA to approve this action and allow 
Colorado to address the 2008 ozone standard according to the statutory 
framework.
    We do not understand WEG's comment about the deadline under CAA 
section 110(a)(1). It appears WEG may be asserting that the State had 
to submit a 110(a)(1) SIP for the 2008 standard at the same time it 
submitted its SIP for the 1997 standard simply because the deadline for 
the SIP for the 1997 standard fell within the three-year period 
specified by section 110(a)(1) for submission of a SIP for the 2008 
standard. WEG cites no legal or policy support for this theory, and it 
is not supported by section 110(a)(1), section 110(l), or any other 
provision of the CAA. To the extent WEG is claiming that our approval 
action will interfere with the SIP required by CAA section 110(a)(1), 
we disagree. Section 110(a)(1) SIPs are merely infrastructure SIPs, not 
complete attainment demonstration SIPs, and, as noted by WEG, these 
infrastructure SIPs are not due until three years after designation. 
Approval of the 1997 ozone attainment demonstration will in no way 
interfere with the State's obligation or ability to submit an 
infrastructure SIP for the 2008 standard.
    WEG provides no support for its assertion that the revision would 
significantly interfere with nonattainment of the NAAQS in downwind 
states. We are not required to respond to unsupported assertions. In 
any event, because our action will not result in an increase in 
emissions, we disagree with WEG that the revision will significantly 
interfere with attainment of the NAAQS in downwind states.

III. Final Action

A. Approval

    For the reasons provided in our July 21, 2010 proposal (75 FR 
42351), our December 17, 2010 notice of availability of revised 
modeling (75 FR 78950), and herein, we are approving the following 
elements of the 1997 8-hour ozone SIP revisions that Colorado submitted 
on June 18, 2009:
    (1) Colorado's 2010 attainment demonstration for the 1997 8-hour 
ozone NAAQS.
    (2) The MVEBs contained in the OAP, which are identified in the 
following table:

------------------------------------------------------------------------
                                          2010 NOX          2010 VOC
        Area of applicability          emissions (tons   emissions (tons
                                          per day)          per day)
------------------------------------------------------------------------
Northern Subarea....................              20.5              19.5
Southern Subarea....................             102.4              89.7
                                     -----------------------------------
    Total Nonattainment Area........             122.9             109.2
------------------------------------------------------------------------

The Northern Subarea is defined in the OAP as the area denoted by the 
ozone nonattainment area north of the Boulder County northern boundary 
and extended through southern Weld County to the Morgan County line. 
The Southern Subarea is defined in the OAP as the area denoted by the 
ozone nonattainment area south of the Boulder County northern boundary 
and extended through southern Weld County to the Morgan County line. 
Both subareas are further identified in Figure 2: ``8-hour Ozone 
Emission Budget Subareas'' at page VI-6 in the OAP.
    In addition to approving the MVEBs, we are also approving the 
process described in the OAP for use of the Total Nonattainment Area 
MVEBs and the subarea MVEBs. Per the OAP, the initial conformity 
determination must use the Total Nonattainment Area MVEBs for 
NOX and VOCs. After the initial conformity determination, 
the Denver Regional Council of Governments and North Front Range 
Transportation and Air Quality Planning Council may switch from using 
the Total Nonattainment Area MVEBs to using the subarea MVEBs for 
determining conformity. To switch to use of the subarea MVEBs (or to 
subsequently switch back to use of the Total Nonattainment Area MVEBs), 
the Denver Regional Council of Governments and the North Front Range 
Transportation and Air Quality Planning Council must use the process 
described in the OAP at pages VI-4 and VI-5.
    (3) All other aspects of the OAP except the last paragraph on page 
IV-1 and the first paragraph on page IV-2, the words ``federally 
enforceable'' in the second to last paragraph on page V-6, and the 
reference to Attachment A in the Table of Contents and on page IV-3.
    (4) The revisions to Parts A and B of Colorado Regulation Number 3.
    (5) The revisions to Sections I through XI and XIII through XVI of 
Colorado Regulation Number 7, except for the repeal of Section II.D.
    Regarding part B of Regulation Number 3, as we noted in our July 
21, 2010 proposal, there is a discrepancy between the numbering of the 
submitted revisions and the EPA-approved SIP. Colorado added new 
Sections II.D.1.k, l, m, and n to Part B to specify the four types of 
emissions points that will continue to be exempt from minor source 
construction permitting requirements. However, in the current EPA-
approved SIP, Section III.D.1 of part B lists the types of emissions 
points that are exempt from minor source construction permitting 
requirements.\10\ These emissions points are listed in Sections 
III.D.1.a through j. For purposes of this action, we are interpreting 
Colorado's proposed revisions to Part B, in the form of Sections 
II.D.1.k through n, as being an addition to Section III.D.1, and 
following immediately after Section III.D.1.j of part B of the EPA-
approved SIP.
---------------------------------------------------------------------------

    \10\ Colorado previously submitted revisions to part B that 
contain changes to the numbering of part B provisions; we will be 
acting on those revisions separately.
---------------------------------------------------------------------------

B. Disapproval

    For the reasons provided in our July 21, 2010 proposal, we are 
disapproving the following elements of the 1997 8-hour ozone SIP 
revisions that Colorado submitted on June 18, 2009:
    (1) In the OAP: the last paragraph on page IV-1 and the first 
paragraph on page IV-2, the words ``federally enforceable'' in the 
second to last paragraph on page V-6, and the reference to Attachment A 
in the Table of Contents and on page IV-3.
    (2) The repeal of Section II.D of Colorado Regulation Number 7.
    (3) The revisions to Section XII of Colorado Regulation Number 7.
    Our disapproval of these provisions does not trigger sanctions or a 
FIP obligation because our disapproval does not leave a deficiency in 
the SIP. The effect of our disapproval is to excise proposed SIP 
revisions that would

[[Page 47450]]

weaken the SIP and potentially undermine the attainment demonstration. 
The provisions we are approving today and provisions that will remain 
in the SIP as a result of our action today fully support the attainment 
demonstration and meet all applicable requirements of the Clean Air 
Act. Thus, our action does not trigger sanctions or a FIP 
obligation.\11\
---------------------------------------------------------------------------

    \11\ See our July 21, 2010 proposal for further discussion on 
this issue (75 FR 42351).
---------------------------------------------------------------------------

IV. Statutory and Executive Order Review

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves 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 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as 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 October 4, 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: February 18, 2011.
Carol Rushin,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended to read 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 52.320 is amended by adding paragraphs (c)(72)(i)(G) and 
(c)(117) to read as follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (72) * * *
    (i) * * *
    (G) 1001-5, Colorado Regulation No. 3, Air Contaminant Emissions 
Notices, Part A, Concerning General Provisions Applicable to Reporting 
and Permitting, Sections II.D.1.m, II.D.1.ee, II.D.1.uu, II.D.1.ddd, 
and II.D.1.eeee, previously approved in paragraph (c)(72)(i)(D) of this 
section, were repealed by the State of Colorado effective January 30, 
2009 and are removed without replacement.
* * * * *
    (117) On June 18, 2009, the State of Colorado submitted an 8-Hour 
Ozone Attainment Plan for the Denver Metro Area/North Front Range area 
to meet the requirements of 40 CFR 81.300(e)(3)(ii)(D) for the 1997 8-
hour ozone NAAQS. On the same date, the State of Colorado also 
submitted revisions to portions of Part A, ``Concerning General 
Provisions Applicable to Reporting and Permitting,'' and Part B, 
``Concerning Construction Permits,'' of Colorado's Regulation No. 3, 
``Air Contaminant Emissions Notices,'' and to Sections I through XVI of 
Colorado's Regulation No. 7, ``Control of Ozone Via Ozone Precursors 
(Emissions of Volatile Organic Compounds and Nitrogen Oxides).'' EPA is 
approving the Ozone Attainment Plan except for the last paragraph on 
page IV-1 and the first paragraph on page IV-2, the words ``federally 
enforceable'' in the second to last paragraph on page V-6, and the 
reference to Attachment A in the Table of Contents and on page IV-3. 
EPA is disapproving the excepted language from the Ozone Attainment 
Plan. EPA is approving the revisions to portions of Parts A and B of 
Colorado's Regulation No. 3. For purposes of this action, Colorado 
Regulation No. 3, Part B, Sections II.D.1.k, l, m, and n, as 
incorporated below, should be considered an addition to and as 
immediately following Colorado Regulation Number 3, Part B, Sections 
III.D.1.a through j, as previously approved by EPA. EPA is approving 
the revisions to Sections I through XI and

[[Page 47451]]

XIII through XVI of Colorado's Regulation No. 7, except for Colorado's 
repeal of section II.D. EPA is disapproving Colorado's repeal of 
Section II.D and Colorado's revisions to Section XII of Regulation No. 
7. EPA is not acting on the provisions in Regulation No. 7 that are 
designated ``State Only.''
    (i) Incorporation by reference.
    (A) 5 CCR 1001-5, Colorado Regulation No. 3, ``Air Contaminant 
Emissions Notices,'' Part A, ``Concerning General Provisions Applicable 
to Reporting and Permitting,'' Sections II.D.1.m, II.D.1.ee, II.D.1.uu, 
II.D.1.ccc, II.D.1.ddd, II.D.1.uuu, and II.D.1.eeee, effective January 
30, 2009.
    (B) 5 CCR 1001-5, Colorado Regulation No. 3, ``Air Contaminant 
Emissions Notices,'' Part B, ``Concerning Construction Permits,'' 
Sections II.D.1.k, l, m, and n, effective January 30, 2009.
    (C) Letter dated November 18, 2009 from the Office of the Colorado 
Attorney General, signed by Jerry Goad, to Candy Herring, Office of the 
Colorado Secretary of State, regarding clerical errors in Regulation 
No. 7, and those portions of 5 CCR 1001-9, Colorado Regulation No. 7, 
``Control of Ozone Via Ozone Precursors (Emissions of Volatile Organic 
Compounds and Nitrogen Oxides),'' Section II.C.1 that accompanied such 
letter, except for the following: the parenthetical phrase ``(State 
Only: Located in any Ozone Nonattainment Area or Attainment Maintenance 
Area)'' at II.C.1; Section II.C.1.a.(v); Section II.C.1.c; and Section 
II.C.1.d.
    (D) 5 CCR 1001-9, Colorado Regulation No. 7, ``Control of Ozone Via 
Ozone Precursors (Emissions of Volatile Organic Compounds and Nitrogen 
Oxides),'' Sections I through XI and XIII through XVI, effective 
January 30, 2009, except for the following: Section I.A.1.b; Section 
I.B.1.b; Section I.B.2.b; Section I.B.2.d; Section II.A.12; Section 
II.C.1; and the repeal of Section II.D.

0
3. Section 52.350 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.350  Control strategy: ozone.

* * * * *
    (c) Revisions to the Colorado State Implementation Plan for the 
1997 8-hour ozone NAAQS entitled ``Denver Metro Area & North Front 
Range 8-Hour Ozone Attainment Plan,'' excluding the last paragraph on 
page IV-1, the first paragraph on page IV-2, the words ``federally 
enforceable'' in the second to last paragraph on page V-6, and the 
reference to Attachment A in the Table of Contents and on page IV-3, as 
adopted by the Colorado Air Quality Control Commission on December 12, 
2008, and submitted by the Governor to EPA on June 18, 2009.

[FR Doc. 2011-19807 Filed 8-4-11; 8:45 am]
BILLING CODE 6560-50-P