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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving portions of a State Implementation Plan (SIP) revision submitted by the State of Colorado for the purpose of addressing the “good neighbor” provisions of Clean Air Act (“Act” or “CAA”) section 110(a)(2)(D)(i) for the 1997 8-hour ozone National Ambient Air Quality Standards (“NAAQS” or “standards”) and the 1997 fine particulate matter (“PM_2.5”) NAAQS. This SIP revision addresses the requirement that the State of Colorado's SIP (“Interstate Transport SIP”) have adequate provisions to prohibit air emissions from adversely affecting another state's air quality through interstate transport. In this action, EPA is approving the Colorado Interstate Transport SIP provisions that address the requirement of section 110(a)(2)(D)(i) that emissions from Colorado sources do not significantly contribute to nonattainment of the 1997 PM_2.5 NAAQS in any other state, interfere with maintenance of the 1997 PM_2.5 NAAQS by any other state, or interfere with any other state's required measures to prevent significant deterioration of air quality for the 1997 PM_2.5 and 8-hour ozone NAAQS. EPA is also approving certain revisions to Colorado Regulation No. 3 submitted by the State of Colorado in separate prior submissions. This action is being taken under section 110 of the CAA.

DATES:

Effective Date: This final rule is effective February 8, 2012.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2007-1037. Documents related to EPA's December 7, 2005 proposed approval of changes to Colorado Regulation No. 3 (70 FR 72744) can be found in a docket under Docket ID No. R08-OAR-2005-CO-0003. All documents in the dockets are listed on the 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 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:

Adam Clark, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104, clark.adam@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

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

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

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

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

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

Table of Contents

I . Background

II. Response to Comments

III. Section 110(l)

IV. Final Action

V. Statutory and Executive Order Reviews

I. Background

Colorado Interstate Transport SIP for the 1997 8-hour Ozone and PM _2.5 NAAQS

On July 18, 1997, EPA promulgated new NAAQS for ozone and for PM_2.5. Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions. On August 15, 2006, EPA issued its “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM_2.5 National Ambient Air Quality Standards” (“2006 Guidance”). The 2006 Guidance recommends ways states may, in their submissions, meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM_2.5 standards.

As identified in the 2006 Guidance, the “good neighbor” provisions in section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) identifies four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in any other state; (2) interfere with maintenance of the NAAQS by any other state; (3) interfere with required measures to prevent significant deterioration of air quality in any other state; or (4) interfere with efforts to protect visibility in any other state. Requirements (1) and (2) are found under 110(a)(2)(D)(i)(I), and requirements (3) and (4) are found under 110(a)(2)(D)(i)(II).

On June 11, 2008, the State of Colorado submitted to EPA an Interstate Transport SIP addressing all four requirements of CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM_2.5 NAAQS. In response to EPA's concerns regarding the June 11, 2008 submission, the State later submitted two superseding interstate transport SIP revisions: (a) a June 18, 2009 submission addressing requirements (1) and (2) of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS; and (b) a March 31, 2010 submission addressing requirements (3) and (4) for the 1997 8-hour ozone NAAQS and requirements (1) through (4) for the 1997 PM_2.5 NAAQS. EPA approved Colorado's Interstate Transport SIP with respect to the “significant contribution to nonattainment” and the “interfere with maintenance” requirements for the 1997 8-hour ozone NAAQS in final rule actions published June 3 and November 22, 2010 (75 FR 31306; 75 FR 71029). EPA approved Colorado's Interstate Transport SIP with respect to the “interfere with visibility” requirement for the 1997 8-hour ozone and PM_2.5 NAAQS on April 20, 2011 (76 FR 22036).

After those actions, the pending portions of Colorado's Interstate Transport SIP are those that address requirements (1), (2), and (3) for the 1997 PM_2.5 NAAQS and requirement (3) for the 1997 8-hour ozone NAAQS. On April 19, 2011, EPA published a notice of proposed rulemaking (NPR) for the State of Colorado (76 FR 21835) to act on the pending portions. Specifically, in the NPR EPA proposed approval of the language and demonstration of the March 31, 2010 submission that addresses three requirements of section 110(a)(2)(D)(i) with respect to the 1997 PM_2.5 NAAQS: (1) Prohibition of significant contribution to nonattainment of the NAAQS in any other state, (2) prohibition of interference with maintenance of the NAAQS by any other state, and (3) prohibition of interference with other states' required measures to prevent significant deterioration of air quality. EPA is also approving the language and demonstration that addresses requirement (3) of section 110(a)(2)(D)(i)—prohibition of interference with other states' required measures to prevent significant deterioration of air quality—with respect to the 1997 8-hour ozone NAAQS.

Colorado Regulation No. 3, Part D: New Source Review and Prevention of Significant Deterioration (PSD)

The 2006 Guidance states that the interference with PSD requirement of section 110(a)(2)(D)(i)(II) may be met by the State's confirmation in a SIP submission that new major sources and major modifications in the State are subject to PSD and (if the State contains a nonattainment area for the relevant pollutant) Nonattainment New Source Review (NNSR) programs that implement the relevant standards according to current requirements. Colorado's SIP-approved PSD and NNSR programs are contained in Colorado Regulation No. 3.

The State of Colorado submitted revisions to Colorado Regulation No. 3 on July 11, 2005, and submitted a supplement to those revisions on October 25, 2005, in response to EPA's concerns. The two submissions reorganized Regulation No. 3 by moving much of the previously approved language from other sections of Regulation 3 into the newly created Part D. The submissions then incorporated EPA's December 31, 2002 NSR Reform rule (67 FR 80186) into Part D, applying the reforms to both the State's PSD and NNSR programs. In its submissions, Colorado distinguished the revised language that incorporated NSR Reform from the language for the existing PSD and NSR programs (as reorganized into part D) by italicizing language that was to be added to the existing programs and by underlining language that was to be removed from the existing programs. Colorado's submission indicated that the addition of the italicized language and removal of the underlined language was to become effective only after EPA approved those changes into Colorado's SIP. EPA proposed approval of the October 25, 2005 submission on December 7, 2005 (70 FR 72744). EPA's proposed approval received extensive comments, and EPA has not yet finalized it.

On August 1, 2007, the State submitted to EPA revisions to Regulation No. 3. These revisions (among other things) updated the State's PSD and NNSR programs to meet the requirements of EPA's Phase 2 implementation rule for the 1997 8-hour ozone NAAQS (“Phase 2 Rule”) (70 FR 71612, Nov. 29, 2005). In the April 19, 2011 NPR (76 FR 21835) for today's action, EPA proposed approval of portions of the August 1, 2007 submission, specifically the portions that implement the Phase 2 rule by treating nitrogen oxides as an ozone precursor. Because these portions are in part D of Regulation No. 3, which was created by the July 11, 2005 and the October 25, 2005 submissions, the August 1, 2007 revisions depend on those earlier submissions. Specifically, the August 1, 2007 revisions depend on the following parts: The reorganization of the existing PSD and NNSR programs into part D of Regulation No. 3, the introduction of the term “regulated NSR pollutant,” and the associated replacement in existing portions of the PSD and NNSR program of the regulatory phrase “air pollutant subject to regulation under the Act” with the term “regulated NSR pollutant.” As explained in greater detail in section IV below, in this action we also finalize the December 7, 2005 proposed approval of these portions of the July 11, 2005 and October 25, 2005 submissions.

Finally, the NPR included language explaining that EPA would approve the State's 110(a)(2)(D)(i) submission for the PSD requirement in its entirety for both NAAQS if the State submitted a letter clarifying that its Interstate Transport SIP submission should be read to rely only on the portion of Colorado's PSD program that remains approved after the PSD SIP Narrowing Rule (75 FR 82536, Dec. 30, 2010) took effect. The State submitted to EPA a letter making this clarification on May 10, 2011.

II. Response to Comments

EPA received no comments on its April 19, 2011 proposed approval of portions of Colorado's Interstate Transport SIP and of portions of Colorado's August 1, 2007 submission addressing requirements of the Phase 2 Rule. EPA did receive comments on the December 7, 2005 proposal to approve Colorado's July 11, 2005 and October 25, 2005 submissions. EPA does not consider any of these comments applicable to the portions of the December 7, 2005 proposal we are finalizing with today's action. However, to the extent that some comments could be understood to apply to the portions we are approving with this action, EPA addresses these particular comments below. These comments fell into three categories: (1) Comments that argued that approval would violate the requirements of section 110(l) of the Act; (2) comments that argued that approval would violate the requirements of section 193 of the Act; and (3) comments that generally (without a specific legal basis) opposed approval.

First, with regards to section 110(l), the only substantive change to Colorado's PSD and NNSR programs in the submissions that EPA approves today is the addition of the defined term “regulated NSR pollutant” and the use of that term in place of the previous regulatory phrase, “air pollutant subject to regulation under the Federal Act.” As noted in the preamble to the NSR Reform rules, (67 FR at 80239-40), the effect of introducing the term “regulated NSR pollutant” was to exclude from the PSD program hazardous air pollutants (HAPS) listed under section 112 of the Act, except for HAPS that are a constituent or precursor of a more general pollutant regulated under section 108 of the Act. EPA explained that this change clarified which pollutants are covered under the PSD program and responded to the addition of section 112(b)(6) in the 1990 Clean Air Act Amendments.

Section 110(l) provides in relevant part: “The Administrator 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 Act].” The exclusion of HAPS from the PSD program to the extent described above does not affect any applicable requirement concerning attainment and reasonable further progress, as those requirements are specific to criteria pollutants and their precursors. Furthermore, the exclusion does not interfere with any other applicable requirement; in fact, it implements the requirement of section 112(b)(6) of the Act. Finally, this revision does not relax any applicable requirements, and is merely a clarification of the applicability of the PSD program. Therefore, approval of the specified portions of the October 25, 2005 submission does not violate section 110(l).

Similarly, approval of these portions does not violate section 193 of the Act. Section 193 prohibits modification after November 15, 1990 of any “control requirement in effect, or required to be adopted by an order, settlement agreement or plan in effect before November 15, 1990, in any area which is a nonattainment area for any air pollutant * * * unless the modification insures equivalent or greater emission reductions of such air pollutant.” As the introduction of the term “regulated NSR pollutant” leaves unchanged control requirements for criteria pollutants, the portions of the July 11, 2005 and October 25, 2005 submissions approved in this action do not violate the prohibition of section 193. Finally, in response to comments that generally (without a specific legal basis) opposed EPA's proposed approval of the July 11, 2005 and October 25, 2005 submissions, EPA notes that section 110(k)(3) requires us to approve SIP submissions that meet all of the applicable requirements of the Act. Although we acknowledge the opposition to our approval of the 2005 submissions, the comments do not provide a basis for us to act otherwise.

III. Section 110(l)

Section 110(l) of the CAA prohibits EPA from approving a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act. As explained in section II above, EPA's approval of specific portions of the July 11, 2005 and October 25, 2005 submissions revising Regulation No. 3 does not violate section 110(l). EPA's approval of the Interstate Transport SIP also does not violate section 110(l), as the Interstate Transport SIP does not revise or remove any existing emissions limitation for any NAAQS, or any other existing substantive SIP provision relevant to the 1997 8-hour ozone or PM_2.5 NAAQS. Finally, the portions of the August 1, 2007 submission acted on here, in treating NO_X as a precursor to ozone, make the Colorado SIP more stringent; EPA's approval of these portions therefore does not violate section 110(l).

IV. Final Action

EPA is approving portions of the Colorado Interstate Transport SIP revisions submitted by the State on March 31, 2010. Specifically, in this action EPA is approving the language and demonstration of the March 31, 2010 submission that addresses three requirements of section 110(a)(2)(D)(i) with respect to the 1997 PM_2.5 NAAQS: (1) Prohibition of significant contribution to nonattainment of the NAAQS in any other state, (2) prohibition of interference with maintenance of the NAAQS by any other state, and (3) prohibition of interference with other states' required measures to prevent significant deterioration of air quality. EPA is also approving the language and demonstration that addresses requirement (3) of section 110(a)(2)(D)(i)—prohibition of interference with other states' required measures to prevent significant deterioration of air quality—with respect to the 1997 8-hour ozone NAAQS. The reasons for this action are detailed in our notice proposing approval of the portions of the March 31, 2010 submission for these requirements (76 FR 21835). In brief, our analysis of the weight of evidence indicated that emissions from Colorado do not have the impacts prohibited by the requirements (1) and (2) with respect to the 1997 PM_2.5 NAAQS. In addition, we noted that a clarification by Colorado of its interpretation of EPA's interim guidance on use of PM₁₀ as a surrogate for PM_2.5 allowed us to propose approval of Colorado's Interstate Transport SIP with regards to requirement (3) for the 1997 PM_2.5 NAAQS. Finally, we explained that concurrent approval of the portions of the August 1, 2007 submittal (finalized below) implementing the Phase 2 Rule would allow us to approve the Interstate Transport SIP with regards to requirement (3) for the 1997 ozone NAAQS.

EPA is also approving certain revisions to Colorado's PSD and NNSR programs in this action. These revisions were submitted by the State on July 11, 2005 and October 25, 2005, and proposed for approval by EPA on December 7, 2005 (70 FR 72744); in part, the revisions reorganize the previously approved PSD and NNSR programs in Regulation 3 into Part D. With the exception of the provisions submitted in 2007 that implement the requirements of the Phase 2 Rule (listed in Table 2.) and that supersede the 2005 submittals, we are approving the following provisions from the 2005 submittals. We are generally approving the text in Part D that is plain or (except as described below) underlined; this language reflects the reorganization of the PSD and NNSR programs into Part D. EPA is also approving portions of Regulation 3 Part D that were added or revised by the State in response to EPA's December 31, 2002 NSR Reform rule and that were included in the July 11, 2005 and October 25, 2005 submissions. These particular portions were also proposed for approval in the December 7, 2005 NPR (70 FR 72744). Specifically, these portions are: (1) The addition of the term “regulated NSR pollutant” in italicized text (including when used in the phrase “With respect to any regulated NSR pollutant emitted by any major stationary source”); and (2) the addition of italicized text and removal of underlined text that reflects the replacement of the term “air pollutant subject to regulation under the Federal Act” (or an equivalent phrase) with “regulated NSR pollutant.”

EPA is also approving portions of the Regulation No. 3 revisions submitted to EPA by the State on August 1, 2007 that update the State's PSD program to treat nitrogen oxides as an ozone precursor in accordance with the Phase 2 implementation rule for the 1997 8-hour ozone NAAQS (70 FR 71612, November 29, 2005). Other portions of the revisions submitted August 1, 2007 will be acted upon separately. The portions of the August 1, 2007 submission we are approving with this action are set out in the table below. As discussed above, this approval allows us to also finalize our concurrently proposed approval of the Colorado Interstate Transport SIP with respect to requirement (3) of section 110(a)(2)(D)(i) for the 1997 ozone NAAQS.

The discrepancy in the numbering of the provisions is the result of removal of provisions in other SIP revisions submitted between the 2005 and 2007 submissions. In this action, EPA is treating the 2007 submission as revising the provisions as numbered in the 2005 submission. When EPA acts on the intervening submissions that changed the numbering, the discrepancy will be resolved.

V. Statutory and Executive Order Review

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as 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 March 9, 2012. 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
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile Organic Compounds

Note:

This document was received at the Office of the Federal Register on January 3, 2012.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart G-Colorado

2. Section 52.320 is amended by adding paragraph (c)(120) to read as follows:

3. Section 52.352 is revised to read as follows: