Approval and Promulgation of State Implementation Plans; State of Colorado; Interstate Transport of Pollution Revisions for the 1997 8-Hour Ozone and 1997 PM2.5

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is partially approving the Colorado Interstate Transport State Implementation Plan (SIP) revision, submitted on March 31, 2010, addressing the requirements of Clean Air Act (CAA) section 110(a)(2)(D)(i)(II) for the 1997 ozone National Ambient Air Quality Standards (NAAQS), and the requirements of CAA section 110(a)(2)(D)(i)(I) and (II) for the 1997 PM_2.5 NAAQS. Specifically, in this Federal Register action EPA is fully approving those portions of the Colorado March 31, 2010 submission that address the section 110(a)(2)(D)(i)(II) requirement prohibiting a state's emissions from interfering with any other state's required measures to protect visibility for the 1997 ozone and PM_2.5 NAAQS. This action is being taken under section 110 of the CAA.

DATES:

Effective Date: This final rule is effective May 20, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2007-1036. All documents in the docket are listed on the http://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 http://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:

Laurel Dygowski, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-6144, dygowski.laurel@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words Colorado and State mean the State of Colorado.

Table of Contents

I. Background Information

II. Final Action

III. Statutory and Executive Orders Review

I. Background Information

On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and for fine particulate matter (PM_2.5). This action is being taken in response to the promulgation of the 1997 8-hour ozone and PM_2.5 NAAQS. Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions.

Section 110(a)(2)(D)(i) of the CAA requires that a SIP must contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in any other state; (2) interfere with maintenance of the NAAQS by any other state; (3) interfere with any other state's required measures to prevent significant deterioration of air quality; or (4) interfere with any other state's required measures to protect visibility.

On June 11, 2008, the State of Colorado submitted to EPA an Interstate Transport SIP addressing all four elements of the interstate transport requirements of CAA section 110(a)(2)(D)(i) for the 1997 ozone and PM_2.5 NAAQS. In response to EPA's concerns regarding the June 11, 2008 submission, the State later submitted two superceding interstate transport SIP revisions: (a) A June 18, 2009 submission addressing the requirements of elements (1) and (2) of section 110(a)(2)(D)(i) for the 1997 ozone NAAQS; and (b) a March 31, 2010 submission addressing the requirements of elements (3) and (4) for the 1997 8-hour ozone NAAQS and of elements (1) through (4) for the 1997 PM_2.5 NAAQS.

On February 14, 2011, EPA published a notice of proposed rulemaking (NPR) for the State of Colorado. The NPR proposed approval of the sections of the Colorado Interstate Transport SIP submitted March 31, 2010 that address the section 110(a)(2)(D)(i)(II) “interference with visibility protection” requirement for the 1997 ozone and PM_2.5 NAAQS.

II. Final Action

EPA is partially approving the sections of the Colorado Interstate Transport SIP submitted March 31, 2010 that address the section 110(a)(2)(D)(i)(II) “interference with visibility protection” requirement for the 1997 ozone and PM_2.5 NAAQS. On January 13, 2010, the Colorado Air Quality Control Commission (AQCC) adopted interstate transport SIP revisions addressing the requirements of CAA section 110(a)(2)(D)(i)(II) for the 1997 ozone NAAQS, and the requirements of CAA section 110(a)(2)(D)(i)(I) and (II) for the 1997 PM_2.5 NAAQS. Colorado submitted these revisions to EPA on March 31, 2010. In this Federal Register action EPA is proposing to approve the sections of the March 31, 2010 submissions that address element (4), “interference with visibility protection,” of section 110(a)(2)(D)(i).

As noted earlier, in this rulemaking EPA is evaluating only the Colorado SIP revisions of the March 31, 2010 submission that address the requirements of element (4), prohibiting sources in Colorado from emitting pollutants from interfering with any other state's measures to protect visibility, for the 1997 ozone and PM_2.5 NAAQS. EPA has already taken final action on elements (1) and (2) for ozone (see 75 FR 31306 and 75 FR 71029, respectively). EPA will be taking action on elements (1)-(3) for PM_2.5 and element (3) for ozone in a separate action.

III. Statutory and Executive Orders Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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 June 20, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Sulfur oxides

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

40 CFR part 52 is amended to read as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart G—Colorado

2. Section 52.352 is revised to read as follows: