[Federal Register Volume 75, Number 224 (Monday, November 22, 2010)]
[Rules and Regulations]
[Pages 71029-71033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29245]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2007-1035; FRL-9229-2]
Approval and Promulgation of State Implementation Plans; State of
Colorado; Interstate Transport of Pollution Revisions for the 1997 8-
Hour Ozone NAAQS: ``Interference With Maintenance'' Requirement
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is partially approving State Implementation Plan (SIP)
revisions submitted by the State of Colorado on June 18, 2009.
Specifically, EPA is approving the portions of the ``State of Colorado
Implementation Plan to Meet the Requirements of Clean Air Act (CAA)
Section 110(a)(2)(D)(i)(I)--Interstate Transport Regarding the 1997 8-
Hour Ozone Standard'' addressing the ``interference with maintenance''
requirement of section 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone
National Ambient Air Quality Standards (NAAQS) by any other state. The
``interference with maintenance'' requirement of section
110(a)(2)(D)(i)(I) prohibits a state's emissions from interfering with
maintenance of the NAAQS by any other state. This action is being taken
under section 110 of the CAA.
DATES: Effective Date: This final rule is effective December 22, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2007-1035. 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: Domenico Mastrangelo, Air Program,
U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6416,
[email protected].
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. Final Action
IV. Statutory and Executive Order Review
I. Background
On July 18, 1997, EPA promulgated new standards for 8-hour ozone
and fine particulate matter (PM2.5). This action is being
taken in response to the July 18, 1997 revision to the 8-hour ozone
NAAQS. This action does not address the requirements for the 1997
PM2.5 NAAQS, the 2006 PM2.5 NAAQS, or the 2008 8-
hour ozone NAAQS; those standards will be addressed in a later action.
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 state's 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 18, 2009 the State of Colorado submitted a SIP addressing
the section 110(a)(2)(D)(i)(I) requirements (1) and (2), noted above,
for the 1997 8-hour ozone NAAQS. The state based its submittal on EPA's
2006 Guidance discussed below. As noted earlier, in this rulemaking EPA
is addressing the requirement that pertains to preventing sources in
the State from emitting pollutants in amounts which will interfere with
the maintenance of the 1997 8-hour ozone NAAQS by any other state.
On August 15, 2006, EPA issued its ``Guidance for State
Implementation Plan (SIP) Submission to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2006
Guidance) for SIP submissions that states should use to
[[Page 71030]]
address the requirements of section 110(a)(2)(D)(i). EPA developed this
guidance to make recommendations to states for making submissions to
meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour
ozone NAAQS and 1997 PM2.5 NAAQS.
In a Federal Register action dated September 17, 2010, EPA proposed
approval of the Colorado Interstate Transport SIP portions addressing
the interference with maintenance requirement of section
110(a)(2)(D)(i)(I). EPA concluded in its proposed action that the
various factual and technical considerations supported a determination
that emissions from Colorado do not interfere with maintenance by any
states with areas at risk for maintenance of the 1997 8-hour ozone
NAAQS. EPA did not receive comments that persuade the Agency that there
is such interference, and thus in today's final action EPA is making a
final regulatory determination that Colorado emissions sources do not
interfere with maintenance of the 1997 8-hour ozone NAAQS in any other
state.
II. Response to Comments
EPA received one letter dated October 18, 2010 with comments from
the WildEarth Guardians (WG) environmental organization. The WG letter
includes three separate comments under sections A., B., and C., and is
accessible online at regulations.gov under Docket No. EPA-R08-OAR-2007-
1035. Later in this section EPA responds to the significant comments
made by the commenter. WG clarifies in its introductory remarks on the
letter's first page that its comments are directed to both the Colorado
and the North Dakota Federal Register proposed rule actions of
September 17, 2010 (75 FR 56935 and 75 FR 56928) because ``EPA's
rationale for approving both SIPs is the same.'' EPA will consider WG's
comments, as appropriate, equally applicable to the referenced EPA
proposed rule actions. For clarity, however, in this action EPA will
address WG's comments as if they were directed only to the proposed
rule action for Colorado (75 FR 56935).\1\
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\1\ Similarly, in our response to the same WG comments in our
action finalizing the proposed rule action of September 17, 2010 for
the North Dakota ``interference with maintenance'' requirement, we
address WG's comments as if they were directed to the proposed rule
action for North Dakota (75 FR 56928).
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Comment No. 1--In its comments under section A., ``Maintenance is
Inappropriately Defined,'' WG states that EPA's definition of
interference with maintenance, and by implication the identification of
maintenance receptors, appeared to be ``inappropriately conflated with
the definition of nonattainment.'' It argues that the definition of
maintenance appeared to be tied to nonattainment, asserting that
``unless an area has violated or is in violation of the NAAQS, the
agency will not consider whether * * * Colorado [is] interfering with
that area's ability to maintain compliance with the NAAQS.'' For this
reason, WG argues EPA did not give independent meaning to the interfere
with maintenance prong of section 110(a)(2)(D)(i)(I).
EPA Response--The methodology EPA used to identify maintenance
receptors gives independent meaning to the term ``interfere with
maintenance'' and establishes a process to identify projected
attainment receptors that, based on the historic variability of air
quality at that site (which may be due to variability in emissions and/
or meteorology), may have difficulty maintaining the standard. As
explained in greater detail below, the commenter's objection to EPA's
approach appears to be based on the misconception that the methodology
EPA used to identify maintenance sites was dependent on base year NAAQS
violations.
The definition of maintenance used by EPA is consistent with the
direction given to EPA by the Court of Appeals for the D.C. Circuit in
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).\2\ In that case,
the court analyzed the definition of ``interfere with maintenance''
used in the Clean Air Interstate Rule (CAIR) rule. The court found that
the definition EPA used ``gave no independent significance to the
`interfere with maintenance' prong of section 110(a)(2)(D)(i)(I) to
separately identify upwind sources interfering with downwind
maintenance.'' \3\ It further reasoned that ``[u]nder EPA's reading of
the statute, a state can never `interfere with maintenance' unless EPA
determines that at one point it `contribute[d] significantly to
nonattainment'.'' \4\ Based on this analysis, the court found the
definition unlawful, holding that ``[b]ecause EPA describes CAIR as a
complete remedy to a section 110(a)(2)(D)(i)(I) violation and does not
give independent significance to the `interfere with maintenance'
language to identify upwind states that interfere with downwind
maintenance, it unlawfully nullifies that aspect of the statute and
provides no protection for downwind areas that, despite EPA's
predictions, still find themselves struggling to meet NAAQS due to
upwind interference in 2010.'' \5\
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\2\ As EPA noted in the proposal, the term ``interfere with
maintenance'' is not defined in the CAA. As such, the term is
ambiguous and EPA's interpretation of that term in this action is
both reasonable and consistent with the text and the overall goals
of the CAA. By this approach, EPA is giving independent meaning to
the term and supporting that interpretation with technical analysis
to apply it to the facts in this action.
\3\ 531 F.3d at 910.
\4\ Id.
\5\ Id. at 910-11.
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The approach used by EPA in its September 17, 2010 proposal to
assess whether emissions from sources in Colorado interfere with
maintenance of the NAAQS in any other state takes into account the
flaws identified by the court, by giving independent meaning to the
section 110(a)(2)(D)(i) ``interference with maintenance'' requirement.
Our September 17, 2010 proposed action relies on a process established
by EPA's August 2, 2010 Transport Rule Proposal to identify any
specific receptors in downwind states that, even though they are
projected to be in attainment and thus would not be nonattainment
receptors, may have difficulty maintaining the NAAQS in question. These
receptors are referred to as maintenance receptors.
The commenter's statement that EPA's designation of maintenance
receptors is ``firmly hitched to a finding that the maximum design
value based on a single three-year period between 2003 and 2007 is in
excess of the NAAQS'' appears to be based on a misunderstanding of the
methodology used by EPA to identify maintenance receptors. EPA's
methodology did not, as the commenter appears to assume, require a site
to have a design value above the NAAQS for one of the three base
periods (2003-2005, 2004-2006, 2005-2007) to be considered a
maintenance site. The methodology is based on an analysis of the future
year average and future year maximum design values.\6\ It does not
depend on the whether the base year design values exceed the NAAQS. The
Transport Rule Proposal explained that EPA used the average
concentrations of the three design values for the three base periods
noted above to determine the 2012 average design value at monitoring
sites. Monitoring sites with projected average design values above the
NAAQS would be in nonattainment, while those with projected average
design values below the NAAQS would be in attainment in 2012. To
identify among the attainment monitoring sites those at risk for
maintenance of the NAAQS, EPA also projected to 2012 each of the three
design values for the base periods noted
[[Page 71031]]
above. If the maximum of the three was above the NAAQS, then monitoring
site was identified as at risk for maintenance of the NAAQS, or as a
``maintenance receptor.'' \7\ The maximum design value referenced in
this sentence is the maximum future design value calculated using each
of the three base design value periods separately. Whether or not one
of the three base period design values exceeded the NAAQS was not a
factor considered in determining whether a site was a maintenance
receptor.
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\6\ The process that defines the monitors at risk for
maintenance was summarized in the September 17, 2010 proposed rule
action for the Colorado Interstate Transport SIP (75 FR 56938).
\7\ 75 FR 45210, at 45246.
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To better understand this concept, it is useful to compare the
methodologies used in the Transport Rule proposal (75 FR 5210, Aug. 2,
2010) to identify nonattainment and maintenance receptors. In the
Transport Rule proposal, base period (2003-2007) ambient data were
projected to the future (using model outputs) to identify both
nonattainment and maintenance receptors. In both cases, receptors were
identified by projected future design values; however, because more
conservative data were used for the maintenance analysis, this analysis
could identify receptors that were projected by the nonattainment
analysis to be in attainment; yet might have difficulty attaining the
standard due to historic variability of air quality at that site. To
identify future nonattainment sites we calculated the future year
design values by projecting the 5-year weighted average design value
for each site. Only if this future year design value exceeded the NAAQS
was the site considered to be a nonattainment receptor. However, to
identify projected maintenance sites we used a different methodology
that took into account historic variability in air quality at each
receptor. For this approach we calculated the maximum future year
design value by processing each of the three base design value periods
(2003-2005, 2004-2006, and 2005-2007) separately. The highest of the
three future values is the maximum design value, which is used to
determine maintenance receptors.
In this way, EPA's analysis identifies those areas that are
projected to be attainment, but may have difficulty maintaining
attainment of the standard, for example in a year with particularly
severe meteorology (weather that is conducive to ozone and/or
particulate formation). In other words, this analysis does exactly what
the DC Circuit directed EPA to do in North Carolina. It gives
independent meaning to the ``interfere with maintenance'' prong of
110(a)(2)(D)(i) and provides protection to any areas that, although
they are predicted to attain the standard (and thus upwind sources
could not be found to significantly contribute to nonattainment in that
area) may have difficulty maintaining the standard.\8\
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\8\ Id. at 45246.
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EPA used this same approach to identify any potential maintenance
receptors for purposes of evaluating Colorado's SIP submission. For the
reasons explained above, this approach is both reasonable and
consistent with the direction given to EPA by the DC Circuit in North
Carolina.
Comment No. 2--In its comments under section B., ``Even Under EPA's
Definition of Maintenance, Maintenance Receptors are not Consistently
Defined,'' WG argues that EPA's approach to evaluating interference
with maintenance is inappropriate because it did not take into account
current high ambient concentrations in certain places. The commenter
thus contends that EPA's identification of maintenance receptors is
inconsistently applied. The commenter identifies several areas that it
believes should have been considered as at risk for maintenance for the
1997 8-hour ozone NAAQS. WG specifies the Wasatch Front and Uintah
County in Utah, the Phoenix area in Arizona, portions of western
Wyoming, and San Juan County in New Mexico, as areas appropriate for an
assessment of whether emissions from Colorado interfere with their
difficulty (in the commenter's view) in maintaining the 1997 8-hour
ozone NAAQS.\9\
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\9\ This comment also argues about the Denver Metropolitan Area/
North Front Range (DMA/NFR) area as at risk for maintenance for the
1997 8-hour ozone NAAQS. We are examining this part of the comment
within EPA's final rulemaking action for the North Dakota Interstate
Transport SIP, since the issue of the DMA/NFR area as at risk for
maintenance does not affect our September 17, 2010 proposed rule
assessment of whether Colorado's emissions interfere with
maintenance of the NAAQS by any other states.
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EPA Response--EPA shares the commenter's concern about areas
presently affected by elevated ozone concentrations, but disagrees with
the commenter's assertion that the September 17, 2010, proposed rule
action for the Colorado SIP ``overlooked areas impacted by Colorado
that are projected to barely attain the 1997 ozone NAAQS.'' First, the
underlying issue raised in this comment is substantively the same as
that raised in comment no. 3 below, which argues that EPA's analysis is
faulty because it identifies receptors likely to have difficulty
maintaining the standard in 2012 and not at the present time. EPA's
response to comment no. 3 below illustrates how its approach, based on
modeling analyses that identify receptors at risk for maintenance in
the year 2012, is appropriate and consistent with the D.C. Circuit
decision in North Carolina v. EPA.
Second, EPA has developed in the Transport Rule Proposal of August
2, 2010 an approach that necessarily requires years of data, and an
analysis that evaluates where there may be difficulties with
maintaining attainment at a specific point in time (in this instance
2012) to evaluate whether there is interference with maintenance to
meet the statutory requirement of section 110(a)(2)(D)(i).\10\ To
assist in the evaluation of whether states' emissions interfere with
maintenance of the NAAQS in western states, EPA has developed,
independent of the Transport Rule Proposal, a modeling analysis using
an approach similar to the Transport Rule Proposal for the
identification of monitors at risk for maintenance of the NAAQS within
a modeling domain that includes the western states. The analysis is
presented in the August 23, 2010 memo, ``Documentation of Future Year
Ozone and Annual PM2.5 Design Values for Western States''
(Western States Design Values).\11\ Because none of the areas of
concern to the commenter was identified by EPA as a maintenance
receptor through that analysis,\12\ it was appropriate for the
September 17, 2010 proposed rule not to assess whether emissions from
Colorado sources impact the areas noted by the commenter, such as
Uintah County and Wasatch Front in Utah, the Phoenix area in Arizona,
portions of western Wyoming, and San Juan County in New Mexico. In
short, based on EPA's analysis, none of the areas named by the
commenter is appropriate for consideration as a maintenance receptor at
this time.
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\10\ 75 FR 45210.
\11\ A memorandum in the docket for this action provides the
information EPA used in order to identify monitors that are
receptors for evaluation of interference with maintenance for
certain states in the western United States. See, Memorandum from
Brian Timin of EPA's Office of Air Quality Planning and Standards,
Air Quality Modeling Group entitled ``Documentation of Future Year
Ozone and Annual PM2.5 Design Values for Western
States,'' under ``Memorandum to Docket EPA-R08-OAR-2007-1035,'' EPA,
August 23, 2010.
\12\ Design Values for Western States, EPA (August 23, 2010).
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EPA also notes that, except for Uintah County, the commenter
provides no specific facts--such as the location of monitoring
receptors, ozone concentrations, or time span during which high ozone
concentrations were monitored--to support its arguments concerning
these areas. Thus, WG has not identified any reasons that EPA
[[Page 71032]]
should consider these areas as maintenance receptors, making it
difficult for EPA to address properly WG's concerns about interference
with maintenance in the Wasatch Front, the Phoenix area in Arizona,
portions of western Wyoming, or San Juan County in New Mexico. As for
the commenter's reference to Uintah County, where in February 2010
monitors in Ouray and Red Wash registered ozone concentrations above
120 ppb, EPA notes that the two monitors were installed as recently as
July 2009, and therefore their data does not provide the historical
variability background that is an essential component for the
identification of maintenance receptors.\13\ EPA is concerned about the
ambient levels of ozone in this area, but at present EPA does not have
the necessary years of data to evaluate whether this area is
appropriate for use as a maintenance receptor for the 1997 8-hour ozone
NAAQS in accordance with the Agency's approach to this requirement.\14\
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\13\ See above, in EPA Response to Comment No. 1, the
methodology used for the identification of maintenance monitors in
the August 2, 2010 Transport Rule Proposal, and the August 23, 2010
Western States Design Values memo. The monitor in Ouray is
identified as Site ID number 49-047-2003, and in Red Wash as Site ID
number 49-047-2002.
\14\ EPA notes that the installation and operation expenses for
the Ouray and Red Wash monitoring stations referenced above were
funded by several companies because of court orders resulting from
litigation initiated by EPA, affected states and tribes. See, for
example, the Consent Decree signed by Kerr-McGee Corporation and EPA
on May 8, and May 16, 2007, lodged May 17, 2007, and entered by the
court on March 26, 2008.
.
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Comment No. 3--In its comment under section C., ``EPA has not
Assessed New Mexico's [sic] Interference with Maintenance in the
Present,'' WG asserts that EPA's analysis ignores whether Colorado is,
at the present, interfering with maintenance in other States. It argues
EPA erred by considering only whether emissions from Colorado will
interfere with maintenance of the 1997 8-hour ozone NAAQS in areas that
would be considered ``maintenance receptors'' as of 2012.
WG argues that this approach is inconsistent with the approach
taken in a previous action regarding significant contribution to
nonattainment in other states (citing 75 FR 33174-90). The commenter
agrees that ``EPA should ensure that Colorado does not interfere with
maintenance or contribute significantly to nonattainment in other
states in the future'' but argues that ``the agency's duties under
Section 110(a)(2)(D)(i)(I) apply both in the present and the future.''
EPA's approach is flawed, WG concludes, because EPA identifies
maintenance areas likely to exist by 2012 and does not identify
interference with maintenance that currently exists. WG also asserts
that EPA's approach ignores whether Colorado is presently interfering
with maintenance of the 1997 8-hour ozone NAAQS in downwind states.\15\
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\15\ Before addressing the substantive issues raised in this
comment, we would like to clarify that we presume that the reference
to New Mexico in the comment's title is a clerical error, and that
the commenter intended to refer to either Colorado or North Dakota.
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EPA Response--EPA disagrees with the commenter concerning the
evaluation of significant contribution versus interference with
maintenance. Section 110(a)(2)(D)(i)(I) of the Clean Air Act requires
that a state SIP ``contain adequate provisions prohibiting * * * any
source or other type of emission activities within the state from
emitting any air pollutants in amount which will contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state with respect to any [ ] national primary or secondary
ambient air quality standard.''
In determining the appropriate year to analyze to determine whether
emissions from Colorado will interfere with maintenance by any other
state, EPA used an approach upheld by the DC Circuit in North Carolina
v. EPA. In that case, the Court examined EPA's definition of ``will''
in ``will contribute significantly.'' The placement of the word
``will'' at the end of section 110(a)(2)(D)(i) clarifies that it
applies to all of the provisions that follow--both those in
110(a)(2)(D)(i)(I) and those in 110(a)(2)(D)(i)(II). Thus the DC
Circuit's discussion of the meaning of the word ``will'' in ``will
significantly contribute'' also applies to the meaning of the word will
in ``will * * * interfere with maintenance.''
In North Carolina v. EPA, the DC Circuit rejected North Carolina's
argument that EPA erred in limiting its analysis of downwind areas by
excluding areas that were currently monitored nonattainment but
projected to be in attainment at a future date. Like WG argues here,
North Carolina had argued that EPA was obligated to analyze the
significant contribution of states that were contributing to areas of
North Carolina that were in nonattainment at the time the rule was
promulgated even though those areas were projected to come into
attainment by the year selected for the future base case analysis. In
rejecting this argument, the DC Circuit explained that the approach
used by EPA was identical to the one used previously in the
NOX SIP Call and that ``because `will' can mean either
certainty or indicate the future tense,'' EPA's approach was
reasonable. In other words, the court approved EPA's approach that
entailed the evaluation of interstate transport impacts at a future
date in time.
Contrary to the assertions of the commenter, EPA believes that
evaluation of interference with maintenance using a future date is the
most appropriate approach for that requirement. As explained in the
proposed action, the court decision affecting the CAIR rule required
EPA to reevaluate its approach to the interfere with maintenance
requirement of section 110(a)(2)(D) and to develop a new approach to
give that requirement separate meaning. In doing so, EPA has developed
an approach that necessarily requires a number of years of data, and an
analysis that evaluates where there may be difficulties with
maintaining attainment at a specific point in time, in this instance
2012. In the prior action cited by WG, EPA's evaluation of whether
emissions would significantly contribute to nonattainment in other
states was based on the data available at the time of that evaluation
and before EPA had developed its approach for evaluating interference
with maintenance. It is reasonable and appropriate for EPA to use, in
this rulemaking, the current approach to identifying maintenance
receptors for purposes of section 110(a)(2)(D)(i) that EPA developed to
be consistent with the direction given to EPA in North Carolina v. EPA.
Finally, we note that comments on the validity or reasonableness of
the approach to determining significant contribution in prior actions
are not directly relevant to this rulemaking. This rulemaking addresses
only the ``interfere with maintenance'' requirement of section
110(a)(2)(D)(i). EPA published a prior proposal (75 FR 16032) and final
rule (75 FR 31306) analyzing the Colorado SIP submission for the
``significant contribution'' prong of section 110(a)(2)(D)(i).
III. Final Action
EPA is partially approving the Interstate Transport SIP submitted
by the State of Colorado on June 18, 2009. Specifically, in this action
EPA is approving the portions of that SIP submission that address the
requirement of Section 110(a)(2)(D)(i)(I) that emissions from sources
in that State do not ``interfere with maintenance'' of the 1997 8-hour
ozone NAAQS by any other state. EPA has concluded that the State's
submission, and additional evidence evaluated by EPA, establish that
[[Page 71033]]
emissions from Colorado sources do not have such an impact on other
states for purposes of the 1997 8-hour ozone NAAQS. Therefore, the
State's SIP does not need to include additional substantive controls to
reduce emissions for purposes of section 110(a)(2)(D)(i)(I) for these
NAAQS. In a Federal Register action of June 3, 2010 EPA approved those
portions of the Interstate Transport SIP submitted by the State of
Colorado on June 18, 2009 addressing the requirement of Section
110(a)(2)(D)(i)(I) that emissions from sources in that State do not
``significantly contribute'' to violations of the 1997 8-hour ozone
NAAQS in any other state.
IV. Statutory and Executive Order Review
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves 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 January 21, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 9, 2010.
Carol Rushin,
Acting Regional Administrator, Region 8.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart G--Colorado
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2. Section 52.352 is revised to read as follows:
Sec. 52.352 Interstate transport.
Addition to the Colorado State Implementation Plan of the Colorado
Interstate Transport SIP regarding the 1997 8-Hour Ozone Standard for
the ``significant contribution'' and the ``interfere with maintenance''
requirements, as adopted by the Colorado Air Quality Control Commission
on December 30, 2008, State effective January 30, 2009, and submitted
by the Governor's designee on June 18, 2009.
[FR Doc. 2010-29245 Filed 11-19-10; 8:45 am]
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