Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2010 SO2, 25999-26007 [2017-11574]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 82, Number 107 (Tuesday, June 6, 2017)]
[Proposed Rules]
[Pages 25999-26007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11574]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

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

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

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

SUPPLEMENTARY INFORMATION: 

I. General Information

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

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the EPA through https://www.regulations.gov or email. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, 
mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, 
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period 
deadline identified.

[[Page 26000]]

II. Background

    On June 2, 2010, the EPA promulgated a revised primary 
SO2 standard at 75 ppb, based on a three-year average of the 
annual 99th percentile of one-hour daily maximum concentrations (75 FR 
35520, June 22, 2010). On December 14, 2012, the EPA promulgated a 
revised annual PM2.5 standard by lowering the level to 12.0 
[mu]g/m\3\ and retaining the 24-hour PM2.5 standard at a 
level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit SIPs providing for implementation, maintenance, and enforcement 
of the NAAQS. The EPA has historically referred to these SIP 
submissions made to satisfy sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, the EPA uses the term to distinguish 
this particular type of SIP submission from those intended to satisfy 
other SIP requirements under the CAA, such as ``nonattainment SIP'' or 
``attainment plan SIP'' submissions to address the nonattainment 
planning requirements of part D of title I of the CAA; ``regional haze 
SIP'' submissions to address the visibility protection requirements of 
CAA section 169A; and nonattainment new source review (NSR) permit 
program submissions to address the permit requirements of CAA, title I, 
part D.
    Infrastructure SIP submissions must contain any revisions needed 
for meeting the applicable SIP requirements of section 110(a)(2), or 
certifications that the existing SIPs for SO2 and 
PM2.5 already satisfy those requirements. EPA guidance on 
these provisions and their implementation may be found in the following 
documents: ``Guidance on SIP Elements Required Under Sections 110(a)(1) 
and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient 
Air Quality Standards'' (October 2, 2007); ``Guidance on SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS)'' (Sep. 25, 2009); ``Guidance on Infrastructure SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS)'' (Oct. 14, 2011); and 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and (2)'' (Sept. 13, 2013).

III. What is the scope of this rulemaking?

    The EPA is acting upon the SIP submissions from Colorado that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 SO2 and 2012 PM2.5 NAAQS. 
The requirement for states to make a SIP submission of this type arises 
out of CAA section 110(a)(1). This provision directs that, within three 
years after the promulgation of a NAAQS, states make SIP submissions 
that provide for the ``implementation, maintenance, and enforcement'' 
of the NAAQS. The statute imposes on states the duty to make these SIP 
submissions, and does not condition this requirement on the EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    Section 110(a)(1) addresses the timing and general requirements for 
these infrastructure SIP submissions, and section 110(a)(2) provides 
more details concerning the required contents of these submissions. The 
section 110(a)(2) list of required elements contains a variety of 
disparate provisions, some of which pertain to required legal 
authority, some to required substantive program provisions, and some to 
requirements for both authority and substantive program provisions.\1\ 
The EPA has concluded that although the timing requirement in section 
110(a)(1) is clear, some of the section 110(a)(2) language is ambiguous 
with respect to what is required for inclusion in an infrastructure SIP 
submission. For discussion of some of these ambiguities and the EPA's 
interpretation of them, see Promulgation of State Implementation Plan 
Revisions; Infrastructure Requirements for the 1997 and 2006 
PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 
National Ambient Air Quality Standards; South Dakota (79 FR 71040, Dec. 
1, 2014), under ``III. What is the scope of this rulemaking?''
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and the 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by the EPA; and (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of the 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as 
amended by 72 FR 32526, June 13, 2007.

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

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section 110(a)(2) lists specific elements the SIP must 
contain or satisfy. The elements that are the subject of this action 
are:
     110(a)(2)(A): Emission limits and other control measures
     110(a)(2)(B): Ambient air quality monitoring/data system
     110(a)(2)(C): Program for enforcement of control measures
     110(a)(2)(D): Interstate transport
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies
     110(a)(2)(F): Stationary source monitoring and reporting
     110(a)(2)(G): Emergency powers
     110(a)(2)(H): Future SIP revisions
     110(a)(2)(J): Consultation with government officials; 
public notification; PSD and visibility protection
     110(a)(2)(K): Air quality modeling/data
     110(a)(2)(L): Permitting fees
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    Section VI, below, contains a detailed discussion of each of these 
elements.
    Two elements identified in section 110(a)(2) are not governed by 
the three-year submission deadline of section 110(a)(1), and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather at the same time nonattainment area plan requirements are due 
under section 172. The two elements are: (1) Section

[[Page 26001]]

110(a)(2)(C), to the extent it refers to permit programs (known as 
``nonattainment NSR'') required under part D; and (2) section 
110(a)(2)(I), pertaining to the nonattainment planning requirements of 
part D. Therefore, this action does not address infrastructure elements 
related to the nonattainment NSR portion of section 110(a)(2)(C) or 
related to 110(a)(2)(I). Further, the EPA interprets the CAA section 
110(a)(2)(J) provision on visibility as not being triggered by a new 
NAAQS, because the visibility requirements in part C, title 1 of the 
CAA are not changed by a new NAAQS.

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

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

VI. Analysis of the State Submittals

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

[[Page 26002]]

SO2 and 2012 PM2.5 NAAQS, and therefore propose 
to approve the infrastructure SIP for the 2010 SO2 and 2012 
PM2.5 NAAQS for this element.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to ``include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure 
NAAQS are achieved, including a permit program as required in parts C 
and D.''
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs adequate to implement the 2010 
SO2 and 2012 PM2.5 NAAQS. As explained elsewhere 
in this action, the EPA is not evaluating nonattainment related 
provisions, such as the nonattainment NSR program required by part D of 
the Act. The EPA is evaluating the State's PSD program as required by 
part C of the Act, and the State's minor NSR program as required by 
110(a)(2)(C).

Enforcement of Control Measures Requirement

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

PSD Requirements

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

[[Page 26003]]

presence of other previously approved provisions regarding the 
permitting of Step 2 sources. Accordingly, the Supreme Court decision 
and subsequent D.C. Circuit judgment do not prevent the EPA's approval 
of Colorado's infrastructure SIP as to the requirements of Elements 
(C), (D)(i)(II) prong 3, and (J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, the 
EPA promulgated the rule, ``Implementation of the New Source Review 
Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (73 FR 28321) and on October 20, 2010, the EPA 
promulgated the rule, ``Prevention of Significant Deterioration (PSD) 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of these 
PM2.5 rules as a necessary requirement when assessing a PSD 
program for the purposes of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), remanded the EPA's 
2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The 
court ordered the EPA to ``repromulgate these rules pursuant to Subpart 
4 consistent with this opinion.'' Id. at 437. Subpart 4 of part D, 
Title 1 of the CAA establishes additional provisions for PM 
nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5)'' (73 FR 28321, May 
16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, the EPA does not consider the 
portions of the 2008 Implementation rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected by 
the decision. Moreover, the EPA does not anticipate the need to revise 
any PSD requirements promulgated in the 2008 Implementation rule in 
order to comply with the court's decision. Accordingly, the EPA's 
proposed approval of Colorado's infrastructure SIP as to elements C or 
J with respect to the PSD requirements promulgated by the 2008 
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect the EPA's action on the present infrastructure action. The EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in the 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA 
regards adoption of the PM2.5 increments as a necessary 
requirement when assessing a PSD program for the purposes of element 
(C).
    On May 11, 2012, the State submitted revisions to Regulation 3 that 
adopted all elements of the 2008 Implementation Rule and the 2010 
PM2.5 Increment Rule. However, the submittal contained a 
definition of Major Source Baseline Date which was inconsistent with 40 
CFR 51.166(b)(14)(i). On May 13, 2013, the State submitted revisions to 
Regulation 3 which incorporate the definition of Major Source Baseline 
Date which was consistent with 40 CFR 51.166(b)(14)(i). These submitted 
revisions make Colorado's PSD program up to date with respect to 
current requirements for PM2.5. The EPA approved the 
necessary portions of Colorado's May 11, 2012 and May 13, 2013 
submissions which incorporate the requirements of the 2008 
PM2.5 Implementation Rule and the 2010 PM2.5 
Increment Rule on September 23, 2013 (78 FR 58186). Colorado's SIP-
approved PSD program meets current requirements for PM2.5. 
The EPA therefore is proposing to approve Colorado's SIP for the 2010 
SO2 and PM2.5 NAAQS with respect to the 
requirement in section 110(a)(2)(C) to include a permit program in the 
SIP as required by part C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program is found in 
Regulation 3 of the Colorado SIP, and was originally approved by the 
EPA as Regulation 3 of the SIP (see 68 FR 37744, June 25, 2003). Since 
approval of the minor NSR program, the State and the EPA have relied on 
the program to ensure that new and modified sources not captured by the 
major NSR permitting programs do not interfere with attainment and 
maintenance of the NAAQS.
    The EPA is proposing to approve Colorado's infrastructure SIP for 
the 2010 SO2 and 2012 PM2.5 NAAQS with respect to 
the general requirement in section 110(a)(2)(C) to include a program in 
the SIP that regulates the modification and construction of any 
stationary source as necessary to assure that the NAAQS are achieved.
    4. Interstate transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) 
require each state to submit a SIP prohibiting emissions that will have 
certain adverse air quality effects in other states. CAA section 
110(a)(2)(D)(i) identifies four distinct elements (or prongs) related 
to the impacts of air pollutants transported across state lines. The 
two prongs under section 110(a)(2)(D)(i)(I) require SIPs to contain 
adequate provisions to prohibit any source or other type of emissions 
activity within the state from emitting air pollutants that will (prong 
1) contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS or (prong 2) 
interfere with maintenance by any other state with respect to the same 
NAAQS. The two prongs under section 110(a)(2)(D)(i)(II) require SIPs to 
contain adequate provisions to prohibit emissions that will interfere 
with measures required to be included in the applicable implementation 
plan for any other state under part C (prong 3) to prevent significant 
deterioration of air quality or (prong 4) to protect visibility.
    In this action, the EPA is addressing the 2010 SO2 and 
2012 PM2.5NAAQS with regard to prongs 3 (interference with 
PSD) and 4 (interference with visibility protection) of 
110(a)(2)(D)(i). We are not addressing prongs 1 and 2 for the 2010 
SO2 and 2012 PM2.5 NAAQS in this action. These 
prongs will be addressed in a later rulemaking.
A. Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)
    The PSD portion of section 110(a)(2)(D)(i)(II) may be met by a 
state's confirmation in an infrastructure SIP submission that new major 
sources and major modifications in the state are subject to a 
comprehensive EPA-approved PSD permitting program in the SIP that 
applies to all regulated NSR pollutants and that satisfies the

[[Page 26004]]

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

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

    As stated in the 2013 Guidance on Infrastructure SIP Elements, in-
state sources not subject to PSD for any one or more of the pollutants 
subject to regulation under the CAA because they are in a nonattainment 
area for a NAAQS related to those particular pollutants may also have 
the potential to interfere with PSD in an attainment or unclassifiable 
area of another state. One way a state may satisfy prong 3 with respect 
to these sources is by citing EPA-approved nonattainment NSR provisions 
addressing any pollutants for which the state has designated 
nonattainment areas. Colorado has a SIP-approved nonattainment NSR 
program that ensures regulation of major sources and major 
modifications in nonattainment areas.\5\
---------------------------------------------------------------------------

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

    As Colorado's SIP meets PSD requirements for all regulated NSR 
pollutants, and contains a fully approved nonattainment NSR program, 
the EPA is proposing to approve the infrastructure SIP submission as 
meeting the applicable requirements of element 3 of section 
110(a)(2)(D)(i) for the 2010 SO2 and 2012 PM2.5 
NAAQS.
B. Evaluation of Interference With Measures To Protect Visibility
    To determine whether the CAA section 110(a)(2)(D)(i)(II) 
requirement for visibility protection is satisfied, the SIP must 
address the potential for interference with visibility protection 
caused by the pollutant (including precursors) to which the new or 
revised NAAQS applies. An approved regional haze SIP that fully meets 
the regional haze requirements in 40 CFR 51.308 satisfies the 
110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures 
that emissions from the state will not interfere with measures required 
to be included in other state SIPs to protect visibility. In the 
absence of a fully approved regional haze SIP, a state can still make a 
demonstration that satisfies the visibility requirement section of 
110(a)(2)(D)(i)(II).\6\
---------------------------------------------------------------------------

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

    Colorado submitted a regional haze SIP to EPA on May 25, 2011. The 
EPA approved Colorado's regional haze SIP on December 31, 2012 (77 FR 
76871). In early 2013, WildEarth Guardians and the National Parks 
Conservation Association (NPCA) filed separate petitions for 
reconsideration of certain aspects of the EPA's approval of the 
Colorado's regional haze SIP.\7\ After these petitions were filed, a 
settlement agreement was entered into concerning the Craig Generating 
Station by the petitioners, the EPA, CDPHE, and Tri-State Generation 
and Transmission Association, Inc., and filed with the court on July 
10, 2014.\8\ In accordance with the settlement agreement, the EPA 
requested and the court granted a voluntary remand to the EPA of the 
portions of the EPA's December 2012 regional haze SIP approval that 
related to Craig Unit 1. Because the additional controls at the Craig 
facility will be implemented through a revision to the Colorado 
regional haze SIP that the EPA has not yet acted on, the EPA cannot 
rely on this approval as automatically satisfying prong 4.
---------------------------------------------------------------------------

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

    The EPA does, however, consider other aspects of our approval of 
Colorado's regional haze SIP to be sufficient to satisfy this 
requirement. Specifically, the EPA found that Colorado met its 40 CFR 
51.308(d)(3)(ii) requirements to include in its regional haze SIP all 
measures necessary to (1) obtain its share of the emission reductions 
needed to meet the reasonable progress goals for any other state's 
Class I area to which Colorado causes or contributes to visibility 
impairment, and; (2) ensure it has included all measures needed to 
achieve its apportionment of emission reduction obligations agreed upon 
through a regional planning process. Colorado participated in a 
regional planning process with the Western Regional Air Partnership 
(WRAP). In the regional planning process, Colorado analyzed the WRAP 
modeling and determined that emissions from the State do not 
significantly impact other states' Class I areas.\9\ Colorado accepted 
and incorporated the WRAP-developed visibility modeling into its 
regional haze SIP, and the SIP included the controls assumed in the 
modeling. For these reasons, the EPA determined that Colorado had 
satisfied the Regional Haze Rule requirements for consultation and 
included controls in the SIP sufficient to address the relevant 
requirements related to impacts on Class I areas in other states. 
Therefore, we are proposing to approve the Colorado SIP as meeting the 
requirements of prong 4 of CAA section 110(a)(2)(D)(i) for the 2010 
SO2 and 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

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

    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source. 
Sections 126(b) and (c) pertain to petitions by affected states to the 
Administrator of the U.S. EPA (Administrator) regarding sources 
violating the ``interstate transport'' provisions of section 
110(a)(2)(D)(i). Section 115 similarly pertains to international 
transport of air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), Colorado's SIP-approved PSD 
program requires notice to states whose lands may be affected by the 
emissions of sources subject to PSD.\10\ This suffices to meet the 
notice requirement of section 126(a).
---------------------------------------------------------------------------

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

    Colorado has no pending obligations under sections 126(c) or 
115(b); therefore, its SIP currently meets the requirements of those 
sections. In summary, the SIP satisfies the requirements of CAA section 
110(a)(2)(D)(ii) for the 2010 SO2 and 2012 PM2.5 
NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide ``necessary assurances that the State [. . .] will have 
adequate personnel, funding, and authority under State law to carry out 
[the SIP] (and is not prohibited by any provision of federal or state 
law from carrying out the SIP or portion thereof).'' Section 
110(a)(2)(E)(ii) also requires each state to ``comply with the 
requirements respecting State boards'' under CAA section 128. Section 
110(a)(2)(E)(iii) requires states to provide ``necessary assurances 
that, where the State has

[[Page 26005]]

relied on a local or regional government, agency, or instrumentality 
for the implementation of any [SIP] provision, the State has 
responsibility for ensuring adequate implementation of such [SIP] 
provision.''
    a. Sub-elements (i) and (iii): Adequate personnel, funding, and 
legal authority under state law to carry out its SIP, and related 
issues.
    Colorado law, specifically the Colorado Air Pollution Prevention 
and Control Act (APPCA) Sections 25-7-105, 25-7-111, 42-4-301 to 42-4-
316, 42-4-414 and Article 7 of Title 25, provides adequate authority 
for the State of Colorado APCD and AQCC to carry out its SIP 
obligations with respect to the 2010 SO2 and 2012 
PM2.5 NAAQS. The State receives Sections 103 and 105 grant 
funds through its Performance Partnership Grant along with required 
state matching funds to provide funding necessary to carry out 
Colorado's SIP requirements. The regulations cited by Colorado in its 
certifications, which are contained within this docket, also provide 
the necessary assurances that the State has responsibility for adequate 
implementation of SIP provisions by local governments. Therefore, we 
propose to approve Colorado's SIP as meeting the requirements of 
section 110(a)(2)(E)(i) and (E)(iii) for the 2010 SO2 and 
2012 PM2.5 NAAQS.
b. Sub-element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
That provision contains two explicit requirements: (i) That any board 
or body that approves permits or enforcement orders under the CAA shall 
have at least a majority of members who represent the public interest 
and do not derive a significant portion of their income from persons 
subject to such permits and enforcement orders; and (ii) that any 
potential conflicts of interest by members of such board or body or the 
head of an executive agency with similar powers be adequately disclosed 
\11\.
---------------------------------------------------------------------------

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

    On April 10, 2012 (77 FR 21453) the EPA approved the Procedural 
Rules, Section 1.11.0, as adopted by the AQCC on January 16, 1998, into 
the Colorado SIP as meeting the requirements of section 128 of the Act. 
Section 1.11.0 specifies certain requirements regarding the composition 
of the AQCC and disclosure by its members of potential conflicts of 
interest. Details on how this portion of the Procedural Rules meets the 
requirements of section 128 are provided in our January 4, 2012 
proposal notice (77 FR 235). In our April 10, 2012 action, we 
correspondingly approved Colorado's infrastructure SIP for the 1997 
ozone NAAQS for element (E)(ii). Colorado's SIP continues to meet the 
requirements of section 110(a)(2)(E)(ii), and we propose to approve the 
infrastructure SIP for the 2010 SO2 and 2012 
PM2.5 NAAQS for this element.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires ``(i) the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources; (ii) periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources; and (iii) correlation of 
such reports by the state agency with any emission limitations or 
standards established pursuant to [the Act], which reports shall be 
available at reasonable times for public inspection.''
    The Colorado AQCC Regulations listed in the State's certifications 
(Regulations 1, 3, 7, and Common Provisions Regulation) and contained 
within this docket provide authority to establish a program for 
measurements and testing of sources, including requirements for 
sampling and testing. Air Pollutant Emission Notice (APEN) requirements 
are defined in Regulation 3 and requires stationary sources to report 
their emissions on a regular basis through APENs. Regulation 3 also 
requires that monitoring be performed in accordance with EPA-accepted 
procedures, and record keeping of air pollutants. Additionally, 
Regulation 3 provides for a permitting program that establishes 
emission limitations and standards. Emissions must be reported by 
sources to the State for correlation with applicable emissions 
limitations and standards. Monitoring may be required for both 
construction and operating permits.
    Additionally, Colorado is required to submit emissions data to the 
EPA for purposes of the National Emissions Inventory (NEI), which is 
the EPA's central repository for air emissions data. The EPA published 
the Air Emissions Reporting Rule (AERR) on December 5, 2008, modifying 
the requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and to report emissions for 
certain larger sources annually through the EPA's online Emissions 
Inventory System. States report emissions data for the six criteria 
pollutants and their associated precursors--nitrogen oxides, sulfur 
dioxide, ammonia, lead, carbon monoxide, particulate matter, and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. Colorado made its latest update 
to the NEI on January 18, 2016. The EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the public at 
https://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the Colorado's 
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 
2010 SO2 and 2012 PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303 \12\] and adequate contingency plans to implement such 
authority.''
---------------------------------------------------------------------------

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

    Under CAA section 303, the Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment. If such action may not practicably ensure prompt 
protection, then the Administrator has the authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if the EPA subsequently 
files a civil suit. APPCA Sections 25-7-112 and 25-7-113 provide APCD 
with general emergency authority comparable to that in section 303 of 
the Act.\13\
---------------------------------------------------------------------------

    \13\ See our proposed rulemaking at 80 FR 3098 (June 1, 2015), 
section VI.8 for a complete discussion on how APPCA Sections 25-7-
112 and 35-7-113 provide authority comparable to that in CAA section 
303.
---------------------------------------------------------------------------

    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). This can be met can by submitting a plan that meets 
the applicable requirements of 40 CFR part 51, subpart H for the 
relevant NAAQS

[[Page 26006]]

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

[[Page 26007]]

submissions as supplemented by the State for the 2010 SO2 
and 2012 PM2.5 NAAQS.
    13. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to ``provide for consultation and 
participation [in SIP development] by local political subdivisions 
affected by [the SIP].''
    The statutory provisions cited in Colorado's SIP submittals 
(contained within this docket) meet the requirements of CAA section 
110(a)(2)(M), so we propose to approve Colorado's SIP as meeting these 
requirements for the 2010 SO2 and 2012 PM2.5 
NAAQS.

VII. What action is the EPA taking?

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

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


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

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, Oct. 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, Aug. 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

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