The commenter notes the same problems with the definition of "secondary emissions" at 40 CFR § 52.21(b)(18) that were identified by the commenter above. Similarly, EPA responds that the commenter's recommendations will be evaluated and may decide to make corrections in conjunction with resolving the legal issues associated with whether and when to count vessel emissions. Accordingly, only the corrections proposed for the definition of "secondary emissions" at § 51.165(a)(1)(viii) will be included in today's final Error Corrections Rule.
Citation Errors and Formatting Corrections
Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      A. Citation Errors
Sections
Proposed Change
Recommended Alternative Change
Notes
Appendix S IV.D.
D. Location of offsetting emissions. The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this Ruling for increased emissions of any air pollutant only by obtaining emissions reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the reviewing authority may allow the owner or operator of a source to obtain such emissions reductions in another nonattainment area if the conditions inunder paragraphs V.D.1 and 2 of this Ruling are met.
D. Location of offsetting emissions. The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this Ruling for increased emissions of any air pollutant only by obtaining emissions reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the reviewing authority may allow the owner or operator of a source to obtain such emissions reductions in another nonattainment area if the conditions inunder paragraphs IV.D.1 and 2 of this Ruling are met.
EPA inadvertently changed paragraph IV to Paragraph V in the amendatory language. The text should continue to refer to paragraph IV.
Appendix S V.A.  [2[nd] paragraph]
The form of the SIP revision may be a State or local regulation, *** If a SIP revision is required, the public hearing on the revision may be substituted for the normal public comment procedure required for all major sources under 40 CFR 51.18§ 51.165.***
The form of the SIP revision may be a State or local regulation, ***  If a SIP revision is required, the public hearing on the revision may be substituted for the normal public comment procedure required for  major sources under 40 CFR 51.18§ 51.161.
EPA's §51.165 regulations do not contain public comment procedures. The proper reference should be to §51.161.

52.21(u)(3)
(3) In the case of a source or modification which proposes to construct in a class Class III area, emissions from which would cause or contribute to air quality exceeding the maximum allowable increase applicable if the area were designated a class Class III area, and where no standard under section 111 of the actAct has been promulgated for such source category, the Administrator must approve the determination of best available control technology as set forth in the permit.
(3) In the case of a source or modification which proposes to construct in a class Class III area, emissions from which would cause or contribute to air quality exceeding the maximum allowable increase applicable if the area were designated a class Class II III area, and where no standard under section 111 of the actAct has been promulgated for such source category, the Administrator must approve the determination of best available control technology as set forth in the permit.
EPA inadvertently revised the second reference in the paragraph to a Class III area in the amendatory text.  The original text references a Class II area and should be retained.

Response:
EPA agrees with the commenters suggested edits with the exception of part 51 Appendix S V.A [2[nd] paragraph] recommending a change to the cross reference from 40 CFR § 51.165 to 40 CFR § 51.161. In 1986, the NSR provisions in 40 CFR § 51.18 were moved  in a restructuring rule that placed them under new subpart I of part 51. Section 51.18 is an obsolete reference to the NSR regulations that were applicable to minor sources, major sources locating in areas that do not meet the National Ambient Air Quality Standards (NAAQS) (§ 51.18(j)), and major sources locating in areas that meet the NAAQS, but significantly impact an area that is not meeting the NAAQS (§ 51.18(k)). Subpart I now contains the preconstruction review requirements for state minor NSR programs (§§ 51.160-164) as well as state major NNSR programs (§ 51.165) and state PSD programs (§ 51.166). EPA proposed to update the reference to § 51.18 in Appendix S V.A.1 by replacing it with a reference to § 51.165, which includes NSR requirements for major stationary sources in nonattainment areas. See proposed section V.A.1 of 40 CFR part 51 Appendix S. EPA received two comments supporting this change as proposed and received no adverse comments regarding this proposed change. Upon review for the final rule, EPA determined that the citation referencing 40 CFR § 51.165 should be changed to 40 CFR § 51.102 since the reference in Appendix S Paragraph V.A.1 concerns the proper public participation process for a state implementation revision if necessary to make an offset enforceable. 40 CFR § 51.102 addresses the public notice for the preparation, adoption and submittal of implementation plans and is therefore a more appropriate reference than the proposed reference to 40 CFR § 51.165.
Further, the commenter is correct that EPA inadvertently replaced the reference to "paragraphs IV.1 and 2" with "paragraphs V.1 and 2." Therefore, the final rule represents no change to the existing language, i.e., retains reference to "paragraphs IV.1 and 2," at Appendix S IV.D. The commenter also correctly points out that EPA inadvertently replaced the existing term "Class II" with the term "Class III" at § 52.21(u)(3). Therefore, the final rule reverses the proposed change and retains the term "Class II" at § 52.21(u)(3).

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      B. Citation Format

Sections
Proposed Change
Recommended Alternative Change
51.165(a)(1)(v)(C)(5)(i)
Appendix S II.A.5.(iii)(e)(1)
(i) The source was capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally enforceable permit condition which was established after December 12, 1976 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I, or § 51.166.

(i) The source was  capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally enforceable permit condition which was established after December 12, 1976 pursuant to 40 CFR 52.21 §52.21 of this chapter or under regulations approved pursuant to 40 CFR part 51, subpart I of this part, or § 51.166
51.166(b)(2)(iii)(e)(1)
(1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I or § 51.166.

(1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 §52.21 of this chapter or under regulations approved pursuant to 40 CFR part 51, subpart I of this part. or § 51.166.

52.21(b)(2)(iii)(e)(1)
(1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I or 40 CFR 51.166; or
 (1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 this section or under regulations approved pursuant to 40 CFR part 51, subpart I of this chapter. or 40 CFR 51.166; or
51.165(a)(v)(C)(6)
Appendix S II.A.5.(iii)(f)

An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition which was established after December 21, 1976 pursuant to 40 CFR 52.21 or regulations approved pursuant to 40 CFR part 51, subpart Ior 40 CFR 51.166
 An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition which was established after December 21, 1976 pursuant to 40 CFR 52.21 §52.21 of this chapter or regulations approved pursuant to 40 CFR part 51, subpart I of this part.or 40 CFR 51.166.

51.166(b)(2)(iii)(f)

(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to  40 CFR part 51, subpart I or §51.166.
(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 §52.21 of this chapter or under regulations approved pursuant to  40 CFR part 51, subpart I of this part. or §51.166.
52.21(b)(2)(iii)(f)
(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart Ior 40 CFR 51.166.
(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21  of this section or under regulations approved pursuant to 40 CFR part 51, subpart I of this chapter.or 40 CFR 51.166.
51.166(j)(1)
52.21(j)(1)

(1) A major stationary source or major modification shall meet each applicable emissions limitation under the State Implementation Plan implementation plan and each applicable emission standards and standard of performance under 40 CFR parts 60, and 61, and 63.
(1) A major stationary source or major modification shall meet each applicable emissions limitation under the State Implementation Plan implementation plan and each applicable emission standards and standard of performance under 40 CFR parts 60, and 61, and 63 of this chapter.

Response:
EPA appreciates the commenter's suggested edits to the regulatory text to make the regulations consistent with the 2019 Document Drafting Handbook. However, EPA has decided not to make these edits in this final rule because to make these conforming changes to all of the NSR regulations would be impractical at this time given the amount of formatting inconsistencies in the various NSR regulations. Therefore, EPA is only modifying the edits as noted in this final rule.

With regard to commenter's suggested revision of 51.166(j)(1) and 52.21(j)(1), EPA will be finalizing the change as proposed because, as stated above, the format proposed is consistent with the Document Drafting Handbook. EPA would, however, like to note that it is making an adjustment to the proposal by substituting "or" for "and" in the language "standard of performance under 40 CFR parts 60, 61, and 63," such that it will now read "standard of performance under 40 CFR parts 60, 61, or 63" to provide clarification to the regulatory language.
Requests for Clarification
Comments:
EPA-HQ-OAR-2019-0435-0006  -  Iowa Department of Natural Resources
      EPA explains that the proposed changes to the New Source Review (NSR) Regulations noted above relate to the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) stay and subsequent vacatur of the NSR provisions known as the Equipment Replacement Provisions (ERP), which amended the Routine Maintenance, Repair and Replacement Exclusion (RMRR) from the NSR requirements in a 2003 final rule. In particular, EPA states in preamble section II.B.4.a that two components of the 2003 ERP rule, the criteria for "basic design parameters" and the definition of "process units," are used in conjunction with the definition of "replacement unit," which was not part of the D.C. Circuit decision and vacatur. EPA further states that since EPA is proposing to remove all of the ERP provisions in response to the D.C. Circuit decision and vacatur, EPA is proposing to "add back" criteria to determine "basic design parameters" and portions of the definition of "process unit" not affected by the vacatur into the definition of "replacement unit" in the CFR sections noted above.

      Because of the D.C. Court vacatur of the 2003 ERP amendments to RMRR, Iowa DNR did not adopt the "basic design parameters" criteria or the definition of "process unit" into Iowa's administrative rules. Because EPA is now stating that these provisions were excluded from the vacatur and that these provisions should be included within the definition of "replacement," Iowa DNR wants to ensure that at such time as EPA's proposed rule changes are finalized, Iowa DNR appropriately adopts these provisions into Iowa's administrative rules and, more importantly, implements these provisions as EPA intended.

   So that Iowa DNR and affected Iowa stakeholders may fully understand any final revisions to federal NSR regulations, and also so Iowa DNR may properly implement such regulations, Iowa DNR respectfully requests that EPA address the following questions:

 Is EPA intending to change what can be considered a "replacement unit" under NSR by including and expanding the definition of "basic design parameters" and "process unit"?
 Does the affected source need to show that the "basic design parameters" could have been met? For example, Iowa DNR has worked with several sources that could not achieve the basic design parameters or power output once the process unit was constructed.
 EPA proposes in paragraph 52.21(b)(32)(v)(a), and in the other parallel proposals in Part 51, that "...for a process at a steam electric generating facility, the owner or operator may select as its basic design parameters either... or maximum hourly electric output rate and maximum steam flow rate...." It appears that under these provisions going from a gas-fired to a coal-fired unit could be considered a replacement, as long as the electric output rate and steam flow remained the same. Is this interpretation correct?
 EPA proposes in 52.21(b)(32)(v)(e), and in the other parallel proposals in Part 51, that "if design information is not available for a process unit, then the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the process unit in the five-year period immediately preceding the planned activity." Over what averaging period (e.g. one hour, 24 hours, monthly, etc.) is the maximum value determined?
Response:
 Is EPA intending to change what can be considered a "replacement unit" under NSR by including and expanding the definition of "basic design parameters" and "process unit"?
 EPA is not taking final action to relocate the definition of "basic design parameter" and "process unit" in this final rule based upon comments received. Therefore, the commenter's concern about adoption time for such definitions into their administrative rules should not be a concern at this point. Further, EPA recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR interpretation as the intent of this final rule was to provide minor administrative edits to existing rules without any change in existing policy or interpretation.
Response:
 Does the affected source need to show that the "basic design parameters" could have been met? For example, Iowa DNR has worked with several sources that could not achieve the basic design parameters or power output once the process unit was constructed.
EPA developed this rule to correct minor, non-controversial and non-substantive errors, and not to interpret regulation or set new policy in this final rule. Therefore, EPA is not responding to this comment, and recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR.

Response:
 EPA proposes in paragraph 52.21(b)(32)(v)(a), and in the other parallel proposals in Part 51, that "...for a process at a steam electric generating facility, the owner or operator may select as its basic design parameters either... or maximum hourly electric output rate and maximum steam flow rate...." It appears that under these provisions going from a gas-fired to a coal-fired unit could be considered a replacement, as long as the electric output rate and steam flow remained the same. Is this interpretation correct?
EPA developed this rule to correct minor, non-controversial and non-substantive errors, and not to provide regulation interpretation or set new policy in this final rule. The commenter further appears to miscite an edit made in the rule to 40 CFR § 52.21(b)(32)(v)(a) which we did not propose modify in the rule proposal or in this final rule. Therefore, EPA is not responding to this comment, and recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR.

Response:
 EPA proposes in 52.21(b)(32)(v)(e), and in the other parallel proposals in Part 51, that "if design information is not available for a process unit, then the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the process unit in the five-year period immediately preceding the planned activity." Over what averaging period (e.g. one hour, 24 hours, monthly, etc.) is the maximum value determined?
EPA developed this rule to correct minor, non-controversial and non-substantive errors, and not to provide regulation interpretation or set new policy in this final rule. The commenter further appears to miscite an edit made in the rule to 40 CFR § 52.21(b)(32)(v)(e) which we did not propose modify in the rule proposal or in this final rule. Therefore, EPA is not responding to this comment, and recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR.

Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Certain Other Proposed Changes are Incorrectly Made to the NSR Programs or Otherwise Require Additional Clarification.

      AFPM suggests the following changes to certain NSR regulatory language that EPA proposed to update in this rulemaking:

 At §52.21(a)(2)(iv)(a), the EPA deletes a comma after "of this section)" but this comma does not exist in the current rules. AFPM requests that EPA confirm that this error exists and the version of the Code of Federal Regulations ("CFR") for which this error was identified.

 EPA requests comment on retaining or removing outdated exemption provisions at §§51.166(i)(6)-(10), 52.21(i)(1)(i)-(v), 52.21(i)(viii) - (x), 52.21(i)(4), 52.21(i)(6) - (11), and 52.21(m)(1)(v), and 52.21(m)(1)(vii) - (viii). AFPM suggests that EPA affirm in the preamble that these requirements remain valid for permits or projects in these earlier time frames. Relatedly, the EPA should include the language removed in §§51.166(b)(48)(ii)(a) and 52.21(b)(49)(ii)(a) regarding biogenic carbon dioxide in the category of removing outdated regulations.
Response:
With regard to the commenter's claim that there is no comma after the words "of this section)" EPA has determined that the words "...of this section)" appear twice in the first sentence of § 52.21(a)(2)(iv)(a). The Reference Table of New Source Review Error Corrections in the docket to the NPRM has incorrectly proposed adding a comma to the second use of the words, which actually contains a period rather than a comma. The proposed action was intended to delete the comma from the first use of the words, which reads "a significant emissions increase (as defined in paragraph (b)(40) of this section),". It should be noted that the Reference Table in the docket to this rulemaking correctly identified the removal of the comma in similar sentences contained in §§ 51.166(a)(7)(iv)(a) and 51.165(a)(2)(ii)(A).

With regard to the commenter's second concern -- the possible retroactive effect of EPA's removal of outdated exemption provisions from the NSR regulations -- when EPA revises a portion of a rule, it does not typically consider the change to have a retroactive effect. Accordingly, the effect of any provision that was applicable for a permit or project at the time of its existence will not be negated by a later change in such provision in a future rulemaking action unless such provision expressly states otherwise.

Finally, with regard to the commenter's request for EPA to include in the final Error Corrections Rule the removal of regulatory text regarding biogenic carbon dioxide at §§ 51.166(b)(48)(ii)(a) and 52.21(b)(49)(ii)(a), EPA is not persuaded by commenter's concerns that the vacated and outdated provision be retained in the regulations. If anyone seeks to understand the basis of older NSR permitting decisions, they can consult the version of the Code of Federal Regulations that applied at the time of those decisions. Therefore, EPA is finalizing removal of the vacated and outdated exclusion of carbon dioxide emissions from biogenic material from the definition of "subject to regulation."
Miscellaneous Comments
Comments:
EPA-HQ-OAR-2019-0435-0016  -  Wisconsin Department of Natural Resources
      In the proposed rule, EPA states that it does not intend to establish deadlines by which states must submit implementation plan revision to incorporate the corrections. Given the purely administrative character of the proposed changes, WDNR agrees that EPA should provide this kind of flexibility to states that may need time to make revisions, especially because rule changes may be required

Response:
We appreciate the commenter's support for our proposed position to not establish a deadline for state and local air agencies to make the changes resulting from this final NSR Error Corrections Rule. EPA continues to believe that it is appropriate not to establish a deadline for making the administrative changes contained in this rulemaking. In completing these kinds of changes, this rulemaking is not intended to create a burden for state and local air agencies and such changes can be made at any time that agencies make other regulatory revisions of a more substantive nature.

Comments:
EPA-HQ-OAR-2019-0435-0004 - Anonymous public comment
      This is just another corrupt give-away to polluting industries so that they can escape pollution control measures, and thus worsen air quality in the surrounding communities. The change will likely to be of greatest benefit to industries with large plots of land that would be difficult to fence in, such as timber and lumber, or plants in rural areas. As usual, the EPA is making it easier, not tougher, for companies to skirt the Clean Air Act. Shame on you. You no longer work for the public good.

EPA-HQ-OAR-2019-0435-0007 - Anonymous public comment
      Another means to escape pollution control measures, and thus worsen air quality in surrounding communities. When will this end?

EPA-HQ-OAR-2019-0435-0008  -  M. Evans, Private Citizen
      First of all, something this profound needs a longer comment period.

      Secondly, the definition of a "source" is the foundation of air permitting. Yet for many years, one of the most vexing questions has been how to determine which air emission sources located near each other and under common ownership or control need to be aggregated into a 'single source' when determining if air permitting thresholds are met. EPA recently issued a guidance document to return to its 1980 position that "adjacent" means physical proximity, not functional interrelatedness or other relationship criteria - which need to be included in order to ensure that adjacent areas are monitored.

      Your guidance attempt to address this is not adequate: "The guidance posted Tuesday would allow industries to use other "non-physical barriers" to enclose those spaces, such as no trespassing signs or even patrol by drones, something air quality experts say exempts industries from installing pollution controls."

      Applying the clean air act to a facility and assuming signs are all that are needed to protect the public and the environment is a fallacy. At the very least please extend the comment period.

EPA-HQ-OAR-2019-0435-0009 - Anonymous public comment
      Keep the fences and the physical barriers! If a corporation releases dangerous pollutants, we need to be sure they won't be accessible by the general public. Using signs or drones is not sufficient. Young children can't read, pets can't read, wildlife can't read. Let's keep hazardous releases difficult to come in contact with.

EPA-HQ-OAR-2019-0435-0010 - Anonymous public comment
      Any changes that makes it easier to skirt the intent of the Clean Air Act, including allowing non-physical barriers instead of the currently required physical barriers around harmful air sources is unacceptable. Building a fence around a harmful air source is a simple requirement. It would be better for the health of all of our communities if air polluting sources were not permitted in the first place; but if permitted, fencing them off is not an undue burden.

Response:
These comments do not pertain to the NSR Error Corrections Rule; instead, all appear to be either outside the scope of this rulemaking or to address EPA's recently revised Ambient Air policy which is not a part of this current rulemaking. Therefore, EPA does not consider the comments relevant to this rulemaking and will not be responding to the comments in this RTC or the final rule.


[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Notices]
[Pages 75366-75367]
[FR Doc No: 2023-24199]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2023-0002-N-22]

Proposed Agency Information Collection Activities; Comment
Request

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Notice of information collection; request for comment.

-----------------------------------------------------------------------

SUMMARY: Under the Paperwork Reduction Act of 1995 (PRA) and its
implementing regulations, this notice announces that FRA is forwarding
the Information Collection Request (ICR) summarized below to the Office
of Management and Budget (OMB) for review and comment. The ICR
describes the information collection and its expected burden. On August
25, 2023, FRA published a notice providing a 60-day period for public
comment on the ICR.

DATES: Interested persons are invited to submit comments on or before
December 4, 2023.

ADDRESSES: Written comments and recommendations for the proposed ICR
should be sent within 30 days of publication of this notice to
www.reginfo.gov/public/do/PRAMain. Find the particular ICR by selecting
``Currently under Review--Open for Public Comments'' or by using the
search function.

FOR FURTHER INFORMATION CONTACT: Ms. Arlette Mussington, Information
Collection Clearance Officer, at email: [email protected] or
telephone:<PHONE_NUMBER> or Ms. Joanne Swafford, Information
Collection Clearance Officer, at email: [email protected] or
telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The PRA, 44 U.S.C. 3501-3520, and its
implementing regulations, 5 CFR part 1320, require Federal agencies to
issue two notices seeking public comment on information collection
activities before OMB may approve paperwork packages. See 44 U.S.C.
3506, 3507; 5 CFR 1320.8 through 1320.12. On August 25, 2023, FRA
published a 60-day notice in the Federal Register soliciting public
comment on the ICR for which it is now seeking OMB approval. See 88 FR
58435. FRA has received no comments related to the proposed collection
of information.
    Before OMB decides whether to approve this proposed collection of
information, it must provide 30-days' notice for public comment.
Federal law requires OMB to approve or disapprove paperwork packages
between 30 and 60 days after the 30-day notice is published. 44 U.S.C.
3507(b)-(c); 5 CFR 1320.12(d); see also 60 FR 44978, 44983, Aug. 29,
1995. OMB believes the 30-day notice informs the regulated community to
file relevant comments and affords the agency adequate time to digest
public comments before it renders a decision. 60 FR 44983, Aug. 29,
1995. Therefore, respondents should submit their respective comments to
OMB within 30 days of publication to best ensure having their full
effect.
    Comments are invited on the following ICR regarding: (1) Whether
the information collection activities are necessary for FRA to properly
execute its functions, including whether the information will have
practical utility; (2) the accuracy of FRA's estimates of the burden of
the information collection activities, including the validity of the
methodology and assumptions used to determine the estimates; (3) ways
for FRA to enhance the quality, utility, and clarity of the information
being collected; and (4) ways to minimize the burden of information
collection activities on the public, including the use of automated
collection techniques or other forms of information technology.
    The summary below describes the ICR that FRA will submit for OMB
clearance as the PRA requires:
    Title: Critical Incident Stress Plans.
    OMB Control Number: 2130-0602.
    Abstract: Under 49 CFR part 272, Class I, intercity passenger, and
commuter railroads are required to develop, and submit to FRA for
approval, a critical incident stress plan

(CISP) that provides for appropriate support services to be offered to
their employees who are affected by a critical incident as defined in
49 CFR 272.9. FRA uses the information collected to ensure the minimum
standards of part 272 are met.
    Type of Request: Extension without change (with changes in
estimates) of a currently approved collection.
    Affected Public: Businesses (Railroads)/Rail Labor Unions.
    Form(s): N/A.
    Respondent Universe: 40 railroads.
    Frequency of Submission: On occasion.
    Total Estimated Annual Responses: 2,546.
    Total Estimated Annual Burden: 246 hours.
    Total Estimated Annual Burden Hour Dollar Cost Equivalent: $21,109.
    FRA informs all interested parties that it may not conduct or
sponsor, and a respondent is not required to respond to, a collection
of information that does not display a currently valid OMB control
number.
    Authority: 44 U.S.C. 3501-3520.

Christopher S. Van Nostrand,
Acting Deputy Chief Counsel.
[FR Doc. 2023-24199 Filed 11-1-23; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register Volume 82, Number 107 (Tuesday, June 6, 2017)]
[Proposed Rules]
[Pages 25999-26007]
[FR Doc No: 2017-11574]

-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 http://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 http://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,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
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 http://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.

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?''
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

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
http://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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

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.''
---------------------------------------------------------------------------

    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition
of ``anyway'' sources).
---------------------------------------------------------------------------

    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

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

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

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
http://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

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

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