[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Rules and Regulations]
[Pages 76871-76883]
[FR Doc No: 2012-31192]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0770, FRL-9734-8]

Approval and Promulgation of Implementation Plans; State of
Colorado; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Colorado on May 25, 2011 that addresses
regional haze. Colorado submitted this SIP revision to meet the
requirements of the Clean Air Act (CAA or ``the Act'') and our rules
that require states to prevent any future and remedy any existing man-
made impairment of visibility in mandatory Class I areas caused by
emissions of air pollutants from numerous sources located over a wide
geographic area (also referred to as the ``regional haze program'').
EPA is taking this action pursuant to section 110 of the CAA.

DATES: This final rule is effective January 30, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2011-0770. All documents in the docket are listed on
the www.regulations.gov Web site.
    Publicly available docket materials are available either
electronically through www.regulations.gov, or in hard copy at the Air
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. EPA requests that if, at all
possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, Air Program, Mailcode
8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Regional Haze
    B. Lawsuits
    C. Our Proposal
    D. Public Participation
II. Final Action
III. Basis for Our Final Action
IV. Issues Raised by Commenters and EPA's Response
    A. NOX BART for Tri-State Craig Unit 1 and Unit 2
    B. NOX BART Determination for Martin Drake Units 5,
6, and 7
    C. BART Determination for Colorado Energy Nations (CENC) Unit 4
and Unit 5
    D. NOX BART Determination for Cemex Lyons Kiln
    E. NOX BART Determination for Comanche Unit 1 and
Unit 2
    F. NOX Reasonable Progress Determination for Craig
Unit 3
    G. NOX Reasonable Progress Determination for Nucla
    H. Reasonable Progress for Rio Grande Cement Company (GCC)
    I. Legal Issues
    1. Public Service Company of Colorado (PSCO) BART Alternative
    2. Timing of Implementation
    3. Compliance With Section 110(l)
    J. Comments Generally in Favor of Our Proposal
V. Statutory and Executive Order Reviews

Definitions

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

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

    ii. The initials APEN mean or refer to Air Pollution Emissions
Notice.
    iii. The initials AQCC mean or refer to the Air Quality Control
Commission.
    iv. The initials BACT mean or refer to Best Available Control
Technology.
    v. The initials BART mean or refer to Best Available Retrofit
Technology.
    vi. The initials CMA mean or refer to the Colorado Mining
Association.
    vii. The words Colorado and the State mean the State of
Colorado.
    viii. The initials EGUs mean or refer to Electric Generating
Units.
    ix. The words EPA, we, us, our, or the Agency mean or refer to
the United States Environmental Protection Agency.
    x. The initials LNB mean or refer to low NOX burner.
    xi. The initials NAAQS mean or refer to the National Ambient Air
Quality Standards.
    xii. The initials NOX mean or refer to nitrogen
oxides.
    xiii. The initials NPS mean or refer to National Park Service.
    xiv. The initials PM2.5 mean or refer to particulate
matter with an aerodynamic diameter of less than 2.5 micrometers.
    xv. The initials SCR mean or refer to selective catalytic
reduction.
    xvi. The initials SIP mean or refer to State Implementation
Plan.
    xvii. The initials SNCR mean or refer to selective non-catalytic
reduction.
    xviii. The initials SO2 mean or refer to sulfur
dioxide.
    xix. The initials TSD mean or refer to Technical Support
Document.

I. Background

    The CAA requires each state to develop plans, referred to as SIPs,
to meet various air quality requirements. A state must submit its SIPs
and SIP revisions to us for approval. Once approved, a SIP is
enforceable by EPA and citizens under the CAA, also known as being
federally enforceable. This action addresses the requirement that
states have SIPs that address regional haze.

A. Regional Haze

    In 1990, Congress added section 169B to the CAA to address regional
haze issues, and we promulgated regulations addressing regional haze in
1999 (64 FR 35714, July 1, 1999, codified at 40 CFR part 51, subpart
P). The requirements for regional haze, found at 40 CFR 51.308 and
51.309, are included in our visibility protection regulations at 40 CFR
51.300-309. The requirement to submit a regional haze SIP applies to
all 50 states, the District of Columbia and the Virgin Islands. States
were required to submit a SIP addressing regional haze visibility
impairment no later than December 17, 2007 (40 CFR 51.308(b)).
    Few states submitted a regional haze SIP prior to the December 17,
2007, deadline, and on January 15, 2009, EPA found that 37 states,
including Colorado, the District of Columbia, and the Virgin Islands,
had failed to submit SIPs addressing the regional haze requirements (74
FR 2392). Once EPA has found that a state has failed to make a required
submission, EPA is required to promulgate a Federal Implementation Plan
(FIP) within 2 years unless the state submits a SIP and the Agency
approves it within the 2-year period. CAA section 110(c)(1).
    Colorado submitted a SIP addressing regional haze on May 25, 2011.

B. Lawsuits

    In a lawsuit in the U.S. District Court for the District of
Colorado, environmental groups sued us for our failure to take timely
action with respect to the regional haze requirements of the CAA and
our regulations. In particular, the lawsuits alleged that we had failed
to promulgate FIPs for these requirements within the 2-year period
allowed by CAA section 110(c) or, in the alternative, fully approve
SIPs addressing these requirements.
    As a result of these lawsuits, we entered into a consent decree.
The consent decree requires that we sign a notice of final rulemaking
addressing the regional haze requirements for Colorado by September 10,
2012. We are meeting that requirement with the signing of this notice
of final rulemaking.

C. Our Proposal

    We signed our notice of proposed rulemaking on March 15, 2012, and
it was published in the Federal Register on March 26, 2012 (77 FR
18052). In that notice, we provided a detailed description of the
various regional haze requirements. We are not repeating that
description here; instead, the reader should refer to our notice of
proposed rulemaking for further detail.\1\ In our proposal, we proposed
to approve Colorado's May 25, 2011, regional haze SIP.
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    \1\ We note that our proposed rule contained certain errors, as
follows: (1) In Table 2, at 77 FR 18060, ``Tri-State Generation and
Transmission, Inc.'' should have read ``Tri-State Generation and
Transmission Association, Inc.;'' (2) In Table 13, at 77 FR 18068,
the visibility improvement for SCR for Craig Unit 2 should have read
0.98 deciviews instead of 1.01 deciviews; and (3) In Table 38, at 77
FR 18085, the annualized costs for the limestone injection
improvements (LII) option should have read $2,188,595 instead of
$914,290. None of these errors impact our analysis or decision. In
particular, the cost effectiveness value for the LII option in Table
38 already accounted for the correct annualized cost value.
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D. Public Participation

    We requested comments on all aspects of our proposed action and
provided a 60-day comment period, with the comment period closing on
May 25, 2012. We received comments on our proposed rule that generally
supported our proposed action and comments that were critical of
certain aspects of our proposed action. In this action, we are
responding to the comments we have received, taking final rulemaking
action, and explaining the bases for our action.

II. Final Action

    With this action, EPA is approving a SIP revision submitted by the
State of Colorado on May 25, 2011, that addresses regional haze. We are
approving the State's regional haze SIP, including revisions submitted
as part of the regional haze SIP to:
     Regulation No. 3, Part F, Section VI and Section VII.
     Regulation No. 3, Part D, Section XIV.F.
     Regulation No. 7, Section XVII.E.3.a.

III. Basis for Our Final Action

    We have fully considered all significant comments on our proposal
and have concluded that no changes from our proposal are warranted. Our
action is based on an evaluation of Colorado's regional haze SIP
submittal against the regional haze requirements at 40 CFR 51.300-
51.309 and CAA sections 169A and 169B. All general SIP requirements
contained in CAA section 110, other provisions of the CAA, and our
regulations applicable to this action were also evaluated. The purpose
of this action is to ensure compliance with these requirements. Our
authority for action on Colorado's SIP submittal is based on CAA
section 110(k).
    We are approving the State's regional haze SIP provisions because
they meet the relevant regional haze requirements. Most of the adverse
comments we received concerning our proposed approval of the regional
haze SIP pertained to the State's best available retrofit technology
(BART) and reasonable progress determinations. With respect to the BART
determinations, we understand that there is room for disagreement about
certain aspects of the State's analyses. Furthermore, we may have
reached different conclusions had we been performing the determinations
in the first instance. However, the comments have not convinced us that
the State, conducting specific case-by-case analyses for the relevant
units, acted unreasonably or that we should disapprove the State's BART
determinations.
    With respect to the State's reasonable progress determinations, the
State

included emission limits in the SIP that reflect reasonable levels of
control for reasonable progress for this initial planning period. Here
again, we understand that there is room for disagreement about the
State's analyses and appropriate limits. And, again, we may have
reached different conclusions had we been performing the
determinations. However, the comments have not convinced us that the
State, conducting specific case-by-case analyses for the relevant
units, made unreasonable determinations for this initial planning
period or that we should disapprove the State's SIP.

IV. Issues Raised by Commenters and EPA's Response

A. NOX BART for Tri-State Craig Unit 1 and Unit 2

    Comment: We received comments that the State and EPA did not follow
the BART guidelines or otherwise meet the intent of the BART
requirements because the State and we did not evaluate the most
stringent control efficiencies associated with operating selective
catalytic reduction (SCR). The commenters pointed out that State and
EPA evaluations assumed that SCR is capable of achieving 0.07 lb/MMBtu
on an annual average and 0.07-0.08 lb/MMBtu on a 30-day rolling
average. Commenters stated that this level reflects 74-75% reduction
from baseline emissions from these units, and SCR is well known to be
capable of control efficiencies greater than 90% and limits of 0.05 lb/
MMBtu or less on a 30-day rolling average. One commenter pointed out
that in a November 2010 report, Tri-State's own consultants evaluated a
0.05 lb/MMBtu design emission rate for SCR. One commenter also pointed
out that previous statements by EPA and the National Park Service (NPS)
to the State about the Colorado regional haze plan reflect
this.2 3
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    \2\ Letter from Callie A. Videtich, Director, Air Program, EPA
Region 8, to Paul Tourangeau, Air Director, Colorado Department of
Public Health and the Environment, October 26, 2010, Re: Regional
Haze State Implementation Plan. (October 26, 2010 letter).
    \3\ NPS Comments on Best Available Retrofit Technology (BART)
Analysis of Control Options for Tri-State Generation & Transmission
Association, Inc.--Craig Station Units 1 & 2, December 1, 2010.
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    One commenter went on to say that if an emission rate of 0.05 lb/
MMBtu had been used to assess the cost of SCR, the State would have
found the cost to be $5,879 per ton of NOX reduced for Unit
1 and $5,728 per ton of NOX reduced for Unit 2. Commenters
provided numerous examples of electric generating units (EGUs) that are
achieving or will be required to achieve a NOX emission rate
of 0.05 lb/MMBtu or less on an annual and 30-day rolling average.
    Response: We agree that SCR in some cases can achieve annual
NOX emission rates as low as 0.05 lb/MMBtu. However, the
annual emission rate assumed by Colorado, 0.07 lb/MMBtu, is within the
range of actual emission rates demonstrated at similar facilities in
EPA's Clean Air Markets Division (CAMD) emission database.
    Comment: The proposed emission limit of 0.27 lb/MMBtu for selective
non-catalytic reduction (SNCR) does not reflect what is achievable for
that control technology. The State's technical support document (TSD)
shows that Craig Unit 1 is already meeting an emission rate of 0.27 lb/
MMBtu, even without SNCR. Furthermore, as noted by EPA in its October
26, 2010, letter, SNCR is capable of achieving emission reductions of
20-30% below baseline. This would mean that SNCR would actually be
capable of achieving an emission rate of around 0.20 lb/MMBtu or lower
at Units 1 and 2, not 0.27 lb/MMBtu.
    Response: We disagree that the State's TSD shows that Craig 1 is
already achieving a 30-day rolling average emission rate of 0.27 lb/
MMBtu, even without SNCR. The commenter has confused actual average
annual emission rates that Colorado used for cost calculations with 30-
day rolling average emission rates. Colorado's TSD shows that the
maximum actual 30-day rolling average emission rate during this period
was 0.304 lb/MMBtu. Therefore, Craig 1 is currently operating above,
not below, the BART emission limit. However, we understand that the
commenter's larger point is that the emission limit for Craig Unit 1
does not reflect the level of control that can be achieved with SNCR.
    As noted by the commenter, SNCR can typically achieve a 20-30%
reduction after combustion controls. By contrast, Colorado assumed that
at Craig SNCR could achieve a 15% reduction after combustion controls.
This in turn was based on Tri-State's assertion that the Craig BART
units can only meet this level of control since the effectiveness of
SNCR is lower for wall-fired boilers similar to those at Craig. Under
the circumstances, we do not find that the State's conclusion was
unreasonable.
    Comment: EPA provided no insight as to what it considers
presumptive BART to be for Craig Units 1 and 2. Presumptive BART for
the Craig units should be based on the primary type of coal burned
there, which is sub-bituminous. EPA should establish the presumptive
BART limit for Craig at 0.23 lb/MMBtu. On this basis, the limits
proposed by EPA exceed presumptive BART.
    Response: The presumptive limits for EGUs, which are reflective of
combustion controls for all but cyclone boilers, are clearly stated in
the BART guidelines. The presumptive limit for dry-bottom wall-fired
EGUs firing sub-bituminous coal, such as the Craig BART units, is 0.23
lb/MMBtu (70 FR 39172, July 6, 2005).
    Colorado has stated that the Craig BART units fire sub-bituminous
coal that is ``bituminous-like'' with respect to NOX
formation.\4\ That is, they exhibit relatively higher NOX
emissions. This is supported by actual emissions data, which show that
the units fail to achieve the presumptive limit with the existing ultra
low-NOX burners and overfire air, the same combustion
controls that EPA assumed for sources when it established the
presumptive limit. The State's analysis of CEMs data in EPA's CAMD
emissions database shows an actual maximum 30-day rolling average
emission rate of 0.304 lb/MMBtu at each unit (2006-2008). Thus, we
conclude that the presumptive limit that applies to Craig--0.23 lb/
MMBtu--does not provide a meaningful benchmark for evaluating the State
selected limits at Craig. Furthermore, our BART guidelines are clear
that the BART analysis may result in a limit that differs from the
presumptive limit.
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    \4\ The presumptive limit for dry-bottom wall-fired EGUs firing
bituminous coal is 0.39 lb/MMBtu (70 FR 39172).
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    Comment: One of the options suggested by the BART Guidelines to
evaluate cost effectiveness is cost/deciview. Applying the cost/
deciview metric to SCR at Craig yields about $10 million/deciview for
Mt. Zirkel and $2.6 million/deciview on a cumulative basis. Both values
are reasonable when compared to the national average of $14-$18
million/deciview.
    Response: The BART Guidelines require that cost effectiveness be
calculated in terms of annualized dollars per ton of pollutant removed,
or $/ton (70 FR 39167). The commenters are correct in that the BART
Guidelines list the $/deciview ratio as an additional cost
effectiveness metric that can be employed along with $/ton for use in a
BART evaluation. However, the State was not required to use this
metric. We do not generally recommend the use of this metric as it can
be complicated to use and the results can be difficult to assess. We
also note that the $/deciview metric has not been widely used as a
comparative tool. It is sufficient to analyze the cost effectiveness of

potential BART controls using $/ton, in conjunction with an assessment
of the modeled visibility benefits of the BART control.
    Comment: Because the control efficiency for SCR was underestimated,
the visibility benefits from SCR are underestimated by the modeling.
    Response: We disagree with this comment. As stated above, while we
recognize that lower annual emission rates for SCR have been
demonstrated at some facilities, the annual emission rate of 0.07 lb/
MMBtu assumed by Colorado in estimating the costs and benefits of SCR
is within the overall range for similar facilities in EPA's CAMD
emission database. Given this, we find that it was not unreasonable for
Colorado to use 0.07 lb/MMBtu to model the predicted visibility
improvement from SCR.
    Other Comments: A number of commenters objected to our proposed
approval of the State's BART determination for Craig Unit 1 on other
grounds and asserted that the State should have selected SCR as BART.
These commenters articulated several bases for their comments. The
comments fall into four main categories, as follows:
(1) Costs
    We received numerous comments that the State, relying on Tri-
State's cost analysis, significantly overestimated capital costs for
SCR at Craig Unit 1 and Unit 2, and that EPA did not conduct a detailed
review of Tri-State's cost analysis. Commenters cited numerous sources
to show that the expected capital costs for SCR at Unit 1 and Unit 2
should be lower than what Tri-State assumed in its cost estimates.
Commenters noted limited or missing information, such as lack of vendor
quotes or detailed cost estimates. According to a commenter, this type
of information is necessary for the public or other agencies to be able
to thoroughly review and comment on the proposed determinations.
According to commenters, the absence of this underlying information
renders EPA's proposed approval of the BART determinations for these
sources arbitrary. Commenters said that, to the extent that the State
or EPA relied on such information, failure to include it in the docket
further illegally impaired and deprived the public of its notice and
comment rights, by concealing important grounds for the proposed action
and preventing the public from examining and offering meaningful
comment thereon.
    Commenters noted several items in Tri-State's and the State's cost
analyses that are not allowed by or are inconsistent with EPA's Control
Cost Manual (CCM). According to commenters, Tri-State and the State:
(1) Disregarded EPA's cost method, often referred to as the ``overnight
cost method;'' \5\ (2) included Allowance for Funds During Construction
(AFUDC);\6\ (3) used escalation, which is inappropriate and generally
not allowed; (4) included lost generation costs with no support or
justification for the costs, the duration of outages needed, and why
time beyond normal scheduled outages would be necessary; (5) provided
no justification for the inclusion of owner's costs as 10% of the
direct cost; (6) included a 50-hour workweek in their cost estimate
without any justification; (6) included no consideration of the cost
savings when controls like SCR are applied to multiple units at the
same facility; and (7) used an unrealistic equipment life and interest
rate.
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    \5\ The overnight cost method represents the cost of building
the plant as if all the supplies could be purchased and all the
labor paid within a very short period of time. In contrast, when
forecasting revenue requirements for environmental retrofits,
utilities typically attempt to estimate the costs that would
actually be reflected in their future rate cases as a result of the
retrofits in what is known as the ``all in'' method. According to
commenters, the results from these two cost calculating methods
cannot and should not be compared. Commenters also asserted the
following: (1) Relative to the EPA CCM, the utility method typically
overstates the cost of control per ton of avoided emissions by about
36%; and (2) National consistency in cost allocation method is
necessary to ensure that no company or state receives an economic
advantage by using a different cost method.
    \6\ According to commenters, this cost is not allowed because
Tri-State is not a rate-regulated utility and the AFUDC cost is not
already included in the base case, as per a utility commission
decision.
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    Commenters provided revised cost analyses for SCR at Craig Units 1
and 2. One commenter calculated that a more accurate cost effectiveness
value would be no higher than $3,460/ton and $3,370/ton at Unit 1 and
Unit 2, respectively. Another commenter calculated that average costs
would be $2,209/ton for Unit 1 and $1,962/ton for Unit 2. Commenters
pointed out that these costs were below the threshold established by
the State for choosing SCR.
(2) Visibility Improvement
    Commenters point out that EPA only provides the impacts to the most
impacted Class I area, Mt. Zirkel, and that the cumulative impact of a
source's emissions on visibility, as well as the cumulative benefit of
emission reductions, is a necessary consideration as part of the fifth
step in the BART analysis. Commenters provided examples where other EPA
regions (Region 6 and Region 9) have considered cumulative visibility
benefits. The NPS performed modeling and submitted the results as part
of its comments. NPS modeling shows that the cumulative visibility
impact from Craig Units 1 and 2 is 17.61 deciviews, while SCR at both
units would provide a cumulative visibility improvement of 8.99
deciviews. The modeling also shows that SCR at both units would achieve
at least a 0.5 deciview improvement at each of five Class I areas.
(3) Determination of BART
    Commenters identified numerous issues with the State's
determination of BART and consideration of the five factors. First,
commenters pointed out that the State relied on a predetermined set of
thresholds applicable only to post-combustion NOX controls
for determining what is BART,\7\ and that the State attempted to
justify this by a short discussion of its belief that ``the costs of
control should have a relationship to visibility improvement.''
According to commenters, the State articulated no governing principle
or rational explanation for how it considered the five factors within
the context of this threshold.
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    \7\ For the highest-performing NOX post-combustion
control options (i.e., SCR systems for EGUs) that do not exceed
$5,000/ton of pollutant reduced by the State's calculation, and
which provide a modeled visibility benefit of 0.5 deciview or
greater at the primary Class I Area affected, the State views that
level of control as generally reasonable. For lesser-performing
NOX post-combustion control options (e.g., SNCR
technologies for EGUs) that do not exceed $5,000/ton of pollutant
reduced by the State's calculation, and which provide a modeled
visibility benefit of 0.2 deciview or greater at the primary Class I
Area affected, the State views that level of control as generally
reasonable.
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    Commenters asserted that EPA, in its October 26, 2010, comment
letter to Colorado, anticipated some of the reasons the State's
threshold is untenable. One commenter went on to say that in the
unlikely scenario that the appropriate cost of SCR at Craig Units 1 and
2 is in fact above $5,000/ton, the State's criteria ``preclude a
reasonable weighing of the five factors,'' as EPA had foretold.
Commenters indicated that EPA relied on the State's vague and
unsubstantiated criteria without resolving or even discussing its prior
concerns.
    Commenters noted that the Craig analysis presented data for each of
the five BART factors, but pointed out that when it came to the crux of
the BART determination, the actual weighing of the factors, EPA's
proposed rulemaking failed to explain how EPA determined

that costs were unjustified in light of anticipated visibility benefits
and the other considerations. As such, commenters said that EPA had
failed to require a reasoned basis for weighing the five factors in the
Craig BART analysis and determination. One commenter went on to say
that to comply with the Administrative Procedure Act, the Agency must
provide a reasoned basis for its BART determination, including a
reasonable explanation why certain benefits do not justify certain
costs, why EPA's chosen methods for evaluating costs and benefits are
appropriate, and what significance the Agency has accorded to each of
the five BART factors. The commenter argued that EPA's failure to
identify its method of decision making amounts to an arbitrary
decision.
    One commenter stated that it was concerned that, although the State
found SCR to be reasonable as BART for Craig Unit 2, it found the
control technology to be unreasonable for Unit 1, even though according
to the five factors, it would meet the same reasonability threshold as
for Unit 2. Notably, the State found the cost of SCR for Unit 2, $5,728
per ton of NOX reduced, to be reasonable as it was
ultimately adopted as BART.
(4) BART Alternative
    Commenters pointed out that the Craig BART alternative fails to
provide for greater reasonable progress than would be achieved if an
adequate source-specific BART limit were required of both subject-to-
BART Craig units. Commenters went on to say that BART should have been
SCR on both Craig units and thus, the BART alternative of SNCR on Unit
1 and SCR on Unit 2 is not better than BART. According to commenters,
given that 40 CFR 51.308(e)(2)(C) requires states to make a BART
determination for any source subject to an alternative to BART, the
State's flawed BART analysis fails to support an alternative to BART
pursuant to EPA regulations.
    Response: While we agree with some aspects of the commenters'
assertions in these four categories, we disagree with others and
ultimately conclude that Colorado's plan achieves a reasonable result
overall. We acknowledged in our October 26, 2010, comment letter to the
State that the cost analysis was not conducted by Colorado in
accordance with EPA's Control Cost Manual, and we agreed that the costs
for SCR at Craig Units 1 and 2 appeared to be substantially
overestimated, which the commenters also pointed out. In addition, as
we suggested during the State's public comment period, the State should
have more thoroughly considered the visibility impacts of controlling
emissions from Craig 1 on the various impacted Class I areas and not
just have focused on the most impacted Class I area.
    EPA acknowledges that Colorado's approach appears to be a novel and
comprehensive strategy for addressing regional haze requirements and
other air quality goals. In 2010, the Colorado General Assembly adopted
legislation authorizing the Air Quality Control Commission and the
Public Utilities Commission to develop a comprehensive plan for coal-
fired electric generating units in the state that would address not
only regional haze but also potential new ozone standards and mercury
standards, as well as other requirements that, in the State's view,
could apply to coal-fired electric generation units in the foreseeable
future. The State desired to address these issues in a coordinated way
in order to achieve the most cost-effective strategy that accounted for
not only current, but other imminent regulatory requirements. This
approach appears to be unique and, as noted below, will yield
significant emissions reductions not only of pollutants that affect
visibility in Class I areas, but also significant reductions in
pollutants that contribute to ozone formation, nitrogen deposition, and
mercury emissions and deposition. The State spent considerable time and
conducted sequential and extended hearings to develop a plan which
seeks to balance a number of variables beyond those that would be
involved in a simpler and narrower regional haze determination.
    Colorado's BART requirements for the Craig units reflect a balance
struck by Tri-State Generation & Transmission Association, Inc. and
several environmental groups before the Colorado Air Quality Control
Commission during an extensive and formal proceeding; at the conclusion
of the proceeding, the Commission adopted the agreement reached by Tri-
State and those environmental groups as part of Colorado's regional
haze plan. As a result, the plan requires installation of SCR at one of
the two Craig BART-eligible units even though the Commission previously
had concluded that installation of SCR was not warranted at either
unit. In addition, we note that Colorado has imposed SCR as BART on two
other EGUs in western Colorado--Hayden Units 1 and 2--and at the Pawnee
plant in eastern Colorado. Moreover, Colorado has exceeded the minimum
requirements for BART and reasonable progress for sources included in
the PSCO BART Alternative (as described in our notice of proposed
rulemaking, 77 FR 18073-18075), and has imposed substantial and
meaningful controls, that go beyond what EPA's regulations otherwise
might have required, to address reasonable progress sources for the
initial planning period.
    Under the unique circumstances discussed above, EPA concludes that
Colorado's plan achieves a reasonable result overall. Based on this, we
are approving the entirety of the Colorado regional haze SIP, even
though the State's BART analysis for Craig 1 only analyzed visibility
impacts at the most impacted Class I area and appears to overestimate
the costs of SCR controls. We expect Colorado to revisit the
appropriateness of SCR controls on Craig Unit 1 in the next reasonable
progress planning period.
    Finally, we note that the State's plan will result in
NOX emission reductions of 34,774 tons per year,
SO2 emission reductions of 35,776 tons per year, and PM
reductions of 532 tons per year. As many of the NOX emission
reductions will occur along Colorado's Front Range, the State's plan
should help reduce ozone levels in Colorado's ozone non-attainment area
and nitrogen deposition in Rocky Mountain National Park. In addition,
portions of Colorado's plan includes retirement and fuel-switching of
existing coal-fired units, resulting in significant reductions of
emissions of mercury into the atmosphere at levels that exceed what a
straightforward application of emission reduction technology to satisfy
BART and reasonable progress would have conferred on sources throughout
the state.

B. NOX BART Determination for Martin Drake Units 5, 6, and 7

    Comment: The NOX BART determination for Martin Drake
underestimates the control efficiency of SCR. A conservative, but more
appropriate control efficiency would be an annual average of 0.05 lb/
MMBtu. This would result in additional reductions of 41, 69, and 105
tons of NOX per year at Units 5, 6, and 7, respectively.
This would also result in larger modeled visibility benefits.
    Response: We agree that at some facilities, SCR has achieved annual
NOX emission rates as low as 0.05 lb/MMBtu; however, the
annual emission rate of 0.07 lb/MMBtu assumed by Colorado in estimating
the costs and benefits of SCR is within the range of actual emission
rates demonstrated at similar facilities in EPA's CAMD emission
database. Given this, we find that it was not unreasonable for Colorado
to use 0.07 lb/MMBtu to model the predicted

visibility improvement from SCR. Moreover, while we do agree that
assuming a control efficiency of 0.05 lb/MMBtu would have resulted in
greater modeled visibility benefits, we do not agree that the
difference in visibility benefits would have led Colorado to a
different conclusion given the magnitude of the benefits associated
with SCR.
    Comment: The costs of SCR were overestimated in the Martin Drake
analysis in the following ways: (1) The SCR costs were estimated using
the Integrated Emissions Control Cost (IECCOST) model, not the CCM as
required by the BART Guidelines; (2) the calculated costs included
items that are expressly disallowed or typically excluded when
following the CCM methodology, including royalties, initial catalyst
and chemicals, and escalation. These costs add millions of dollars to
the total amount attributed to SCR; (3) the $/kW costs were extremely
high. While SCR retrofits typically range from $83--$300/kW, including
the most complex and space constrained projects, the costs for the
Martin Drake units were $558/kW, $448/kW, and $325/kW, for Units 5, 6,
and 7, respectively; and (4) the analysis did not consider the cost
savings when controls like SCR are applied to multiple units at the
same facility. This discount is on the order of 4-10%.
    Response: We agree with several points in this comment. In fact, we
raised many of the same issues related to cost analysis in our October
26, 2010, comment letter to the State. However, we note that Colorado
eliminated SCR from consideration for the Martin Drake BART units
primarily on the basis of the level of visibility improvement. The
visibility improvement associated with SCR at Units 5, 6, and 7, is
0.12, 0.27, and 0.37 deciviews, respectively. In addition, as the State
noted, the incremental visibility improvement from SCR versus ultra-low
NOX burners and overfire air (the control technology upon
which the State's NOX BART limits are based) is even lower--
0.04, 0.07, and 0.11 deciview, respectively, at Units 5, 6, and 7. The
State concluded that lower costs would not change its BART
determination. Based on these visibility improvement values and the
expectation that cost effectiveness values for SCR calculated in
accordance with the CCM would still be relatively high compared to the
selected control option, we find that the State's NOX BART
determination for Martin Drake Units 5, 6, and 7 was reasonable.
    Comment: A cost analysis consistent with the CCM would indicate
that SCR is cost effective for the Martin Drake units. A revised costs
analysis would show that the revised cost effectiveness for SCR is
under the State's $5000/ton threshold.
    Response: The commenter did not provide sufficient data or analysis
to support this assertion regarding a revised cost analysis.
Regardless, for the reasons stated above, we conclude that the State's
BART determination was reasonable. Even if a control technology is
arguably cost-effective on a dollar per ton basis, a State may conclude
that the control technology is not warranted based on a consideration
of all BART factors.
    Comment: EPA failed to consider the cumulative visibility benefits
on all of the impacted Class I areas. Additionally, the predicted
improvement for SCR at the most affected Class I area, at least 0.12
deciview, 0.27 deciview, and 0.37 deciview, for Units 5, 6, and 7,
respectively, are not insignificant.
    Response: While we agree that Colorado should have considered
impacts to the various impacted Class I areas, we have no reason to
believe that the cumulative visibility benefits would warrant a change
in our approval of the State's NOX BART determination for
Martin Drake Units 5, 6, and 7. Regarding the predicted improvement at
the most affected Class I area, while we agree that the levels are not
insignificant, they are not significant enough for us to conclude that
the State's BART determination was unreasonable, particularly when the
incremental visibility improvement and expected costs of SCR are
considered.
    Comment: Cost-effective visibility benefits were rejected as a
result of Colorado's criteria that holds post-combustion controls and
SCR in particular to a higher standard of visibility benefits. As EPA
itself previously pointed out in its October 26, 2010, letter: ``* * *
the criteria appear to discriminate against SCR as a potential control
option. Under the criteria, if the cost of SCR is under $5,000/ton and
the modeled visibility benefit is 0.20 delta-deciview or greater but
less than 0.50 delta-deciview, the State would reject SCR. Using the
State's criteria, the State would find SNCR reasonable with the same $/
ton and delta-deciview values. We are not aware of a valid basis for
applying different criteria to the two control options.''
    This example proves EPA's point. By this logic, if the evaluated
technology in this instance were SNCR instead of SCR, it would be BART
for at least Units 6 and 7, and possibly Unit 5. We concur with EPA's
previous critique: this distinction has no basis and is untenable.
    Response: While we do not necessarily agree with the State's
criteria for post-combustion controls, we find the State's
NOX BART determination for Martin Drake Units 5, 6, and 7 to
be reasonable within the context of the five factors for the reasons
stated above.

C. BART Determination for Colorado Energy Nations (CENC) Unit 4 and
Unit 5

    Comment: In determining BART for Units 4 and 5, the State failed to
identify and analyze alternative fueling scenarios that would lead to
greater reductions in NOX, sulfur dioxide (SO2),
and particulate matter. The proposed rule notes, and the underlying
record clearly explains, that Units 4 and 5 are capable of burning (and
do in fact burn) fuels other than coal. In particular, the proposed
rule states that Unit 4 can and does burn natural gas or fuel oil and
that Unit 5 can and does burn fuel oil. Both boilers may fire ethanol
or sludge from the Coors Brewery.
    Despite this, the State did not assess whether alternative fueling
scenarios, such as a full or partial shift from coal to natural gas or
fuel oil at Units 4 and 5 would represent BART. This is a concern
because according to the CAA Title V Operating Permit for the facility,
both Units 4 and 5 could meet stronger SO2 and
NOX emission rates than have been proposed by the State as
BART. The operating permit shows that the permitted emission rates for
Units 4 and 5, when firing natural gas and/or fuel oil, are already
lower than the proposed BART emission rates.\8\ Given that permitted
emission rates are higher than actual emissions, this means that the
facility is most likely capable of achieving far greater emission
reductions under an alternative fueling scenario. Indeed, for Unit 4,
whether firing natural gas or fuel oil, both permitted SO2
and NOX emission rates are lower than the proposed BART
limits. For Unit 5, when firing fuel oil, the permitted SO2
emission rate is lower than proposed BART. Furthermore, although the
permitted NOX emission rate for Unit 5 when firing fuel oil
is higher than the proposed BART, it is based on a 3-hour average (as
opposed to a 30-day average) and even then, actual emissions are likely
to be lower than the proposed BART
---------------------------------------------------------------------------

    \8\ See Colorado Department of Public Health and Environment,
Operating Permit, Trigen-Colorado Energy Corporation Golden Facility
(Feb. 1, 2003). Attached as Exhibit 1 to the comment.
---------------------------------------------------------------------------

    Here, alternative fueling scenarios, such as a full or partial
shift away from

coal to fuels that are already being burned in Units 4 and 5 (including
natural gas and fuel oil) both seem to represent the ``best system of
continuous emission control technology'' and seem entirely reasonable
when considering the five factors required to be assessed by states
when determining BART. The State failed to analyze alternative fueling
in its SIP. Alternative fueling is an available technology that should
have been analyzed by the State given that the visibility benefits to
Class I areas could be tremendous. Although the State purported to
identify ``all available technologies'' in its BART analysis, clearly
it did not identify all available technologies.
    The failure to analyze alternative fueling scenarios is especially
confusing because the State did, apparently, identify in its TSD for
the CENC facility a fuel switch to natural gas as an available
technology and in analyzing ``SO2 Emissions Management'' as
potential BART, noted that an option to reduce emissions could involve
a ``dispatch [of] natural gas-fired capacity.'' There is, however, no
explanation in the TSD as to why ``fuel switching,'' or otherwise
increased reliance on natural gas, would not constitute BART or would
be contrary to the five factors required to be considered in
establishing BART under the CAA.
    The failure to analyze alternative fueling scenarios is further
confusing because the EPA's BART guidelines indicate that alternative
fueling scenarios should be analyzed by states when determining BART.
The guidelines specifically state that ``potentially applicable
retrofit control alternatives'' can include the ``use of inherently
lower-emitting processes/practices'' or ``combinations of inherently
lower-emitting processes and add-on controls.'' Appendix Y at Section
IV.D.3. Above all, states should ``identify potentially applicable
retrofit technologies that represent the full range of demonstrated
alternatives.'' Id. The guidelines clearly indicate that inherently
``lower-emitting processes,'' such as alternative fueling, are squarely
within the realm of what may be considered BART.
    Given the State's failure to take into consideration an available
technology, the EPA must disapprove the BART determinations for CENC
Units 4 and 5 and in accordance with the CAA promulgate a FIP that
establishes BART limits based on a full consideration of alternative
fueling scenarios.
    Response: Although the State did not present the information in the
SIP and was not required to analyze such scenarios, the State in fact
analyzed alternative fueling scenarios for Unit 4 and Unit 5.\9\ The
State examined fuel switching to a number of different fuels. The State
determined that Units 4 and 5 are not capable of burning wood or other
biomass fuels and the use of sludge as the primary fuel is not
technically feasible due to handling and storage issues. The State
determined residual oil, distillate oil, ethanol, and natural gas were
technically feasible options.
---------------------------------------------------------------------------

    \9\ The State sent an email to EPA Region 8 on July 16, 2012
containing its cost estimates for fuel switching. The cost analysis
can be found in the docket.
---------------------------------------------------------------------------

    The State determined residual oil would not result in pollutant
reductions, and that distillate oil, ethanol, and biodiesel are high
cost fuels for boilers of this size, with prices about two to three
times the cost of natural gas, and six to seven times the cost of coal
(at the time of analysis--December 2009) and highly volatile. Thus, the
State eliminated these fuels from further consideration.
    Furthermore, the State determined the cost effectiveness of fuel-
switching to natural gas for SO2 and NOX control
for Units 4 and 5. The State determined the costs for fuel switching to
natural gas for SO2 would be $29,985/ton removed for Unit 4
and $30,945/ton removed for Unit 5. The State determined the costs for
fuel switching to natural gas for NOX would be $64,102/ton
removed for Unit 4 and $82,834/ton removed for Unit 5. Because of the
high cost effectiveness values, the State did not perform any
visibility modeling for fuel switching to natural gas and the State
eliminated it from further consideration for BART. We have reviewed the
State's cost calculations and find them reasonable.
    Based on the above statement from our BART guidelines, and based on
the State's analysis, we agree with the State's conclusion that fuel
switching to natural gas is not BART at CENC Units 4 and 5.

D. NOX BART Determination for Cemex Lyons Kiln

    Comment: Colorado did not appropriately analyze whether SCR was
reasonable as BART for the kiln at the Cemex Lyons cement plant. In
particular, the State rejected SCR as not an available technology. EPA
itself did not agree with this finding. Despite this, EPA allowed the
State to reject SCR due to perceived uncertainty over its cost
effectiveness. However, because the State rejected SCR as an available
technology, no analysis of the costs of SCR was actually undertaken and
therefore, EPA's claims are baseless.
    SCR has been an available emission control technology for
NOX emissions for many years. Although its use on cement
kilns has come about recently, several sources indicate that the
technology is available and cost-effective, contrary to claims by the
State. A report commissioned by Rocky Mountain Clean Air Action, which
later merged with WildEarth Guardians, found that SCR ``is an effective
and proven technology to reduce nitrogen oxide emissions from cement
kilns.'' \10\ The report concluded that: ``The installation of SCR on
the [Cemex] Lyons Cement Plant could be expected to achieve substantial
reductions (85-95%) in emissions of NOX.'' The report also
found that the cost effectiveness of utilizing SCR ranges between
$1,500 and $3,800 per ton of NOX reduced, which is ``easily
within regulatory cost thresholds for many NOX control
programs.'' Follow up correspondence from the author of the report, Dr.
Armendariz to the State further confirmed that SCR was available and
cost-effective.\11\
---------------------------------------------------------------------------

    \10\ See Armendariz, A, The Costs and Benefits of Selective
Catalytic Reduction on Cement Kilns for Multi-Pollutant Control and
the Applicability to the CEMEX Lyons Cement Plant (February 15,
2008) at 19. This report is attached as Exhibit 2 to this comment.
    \11\ See Letter from Armendariz, A. to Dann, C. in re: SCR and
Cement Kilns (July 22, 2008). This letter is attached as Exhibit 3
to this comment.
---------------------------------------------------------------------------

    EPA cannot come to conclusions on the cost effectiveness of SCR
without analytical support, and there is no support for approving the
State BART determination for the Cemex Lyons cement kiln. We request
the EPA promulgate a FIP that objectively and thoroughly analyzes SCR
as an available technology for purposes of establishing BART limits for
the Cemex Lyons cement kiln.
    Response: We disagree with this comment and stand by the rationale
presented in our proposal (77 FR 18062). As we said there, we accept
the State's decision, not to analyze SCR further for the purposes of
regional haze. EPA has acknowledged, in the context of establishing the
New Source Performance Standards (NSPS) for Portland Cement Plants,
substantial uncertainty regarding the cost effectiveness associated
with the use of SCR at such plants (75 FR 54995). In particular, while
EPA noted that SCR had been used at three cement kilns in Europe, and
had been agreed to by one domestic cement kiln as part of a settlement,
EPA also noted the potential for dust buildup on the catalyst, ``which

[could] be influenced by site specific raw material characteristics
present in the facility's proprietary quarry, such as trace
contaminants that may produce a stickier particulate than is
experienced at sites where the technology has been installed.'' Id. at
54994, 54995. EPA went on to state in the NSPS rulemaking that ``[t]his
buildup could reduce the effectiveness of the SCR technology, and make
cleaning of the catalyst difficult resulting in kiln downtime and
significant costs.'' Id. Because of the uncertainty, EPA was unable to
estimate these costs. Id. For the reasons stated in our NSPS rulemaking
and in the State's regional haze SIP, there is also substantial
uncertainty regarding the costs and control effectiveness of SCR at
Cemex. We are not convinced that cost and control effectiveness
information from the European plants or from SCR applications at other
types of sources is sufficiently reliable to guide a BART determination
for Cemex.\12\ Under the circumstances, we find that Colorado
reasonably eliminated SCR as a potential BART control technology. As we
stated in our proposal, we expect the State to reevaluate SCR
technology in subsequent reasonable progress planning periods as more
information regarding the use of SCR at cement kilns becomes available.
---------------------------------------------------------------------------

    \12\ The State indicated that CEMEX consulted four potential SCR
vendors but was unable to obtain meaningful quotes from any of them.
---------------------------------------------------------------------------

E. NOX BART Determination for Comanche Unit 1 and Unit 2

    Comment: Comanche Units 1 and 2 are currently meeting lower
NOX emission rates than the emission limits the State
proposed for BART. With regard to the proposed BART limits, the State
has proposed, and EPA has proposed to approve, a 30-day emission rate
for Units 1 and 2 of 0.20 lb/MMBtu and a combined annual average
emission rate of 0.15 lb/MMBtu for Units 1 and 2. According to the
State, these limits will be met with no additional controls on Unit 1
or Unit 2.
    The State's own BART analysis notes that currently Unit 1 is
emitting at an average annual rate of 0.124 lb/MMBtu and Unit 2 is
emitting at an average annual rate of 0.165 lb/MMBtu. This means that
both on a 30-day rolling average basis and on an annual average basis,
both units are capable of emitting, and indeed do emit, at rates below
the proposed BART limits of 0.20 lb/MMBtu on a 30-day rolling average
and 0.15 lb/MMBtu on an annual basis. In essence, Colorado's BART
proposal actually allows Comanche Units 1 and 2 to emit more pollution
than what they currently emit.
    Under the State's proposed BART, emissions will be allowed to
increase on an annual basis. Using annual heat input totals from the
baseline year of 2009 obtained from the EPA's Air Markets Program Data
Web site (24,247,113.27 MMBtu for unit 1 and 27,423,612.26 MMBtu for
unit 2) and using the proposed annual combined average BART limits, it
appears that under the annual BART limits, NOX emissions
will be allowed to increase by at least 14 tons per year (tpy).
    Concerning the 30-day rolling average limits, there will definitely
be allowed emission increases. During the baseline year of 2009, both
Comanche Unit 1 and Unit 2 emitted far lower than the proposed BART
limit of 0.20 lb/MMBtu. During the baseline year of 2009, 30-day
rolling average NOX emissions were consistently far below
0.20 lb/MMBtu for the year. Even the peak 30-day rolling averages of
0.142 and 0.179 lb/MMBtu for Units 1 and 2, respectively, are below the
proposed limit. Based on this, the proposed BART would actually allow
Unit 1 to emit at least 40% more NOX than the baseline 30-
day rolling average peak and Unit 2 to emit 12% more NOX.
However, this is just in the context of the baseline peak 30-day
rolling average. In all reality, actual 30-day rolling average emission
will remain even further below the proposed BART limit of 0.20 lb/
MMBtu.
    Clearly, Comanche Units 1 and 2 could easily meet lower emission
limits as BART. We do not suggest that the State was required to set
the emission limits exactly at the levels emitted, but clearly when the
data demonstrates that Unit 1 could meet a 30-day rolling average
NOX emission limit of 0.15 lb/MMBtu and Unit 2 could meet a
limit of 0.18 lb/MMBtu without any trouble, the BART limits should
reflect what is achievable.
    Although the State and the EPA may claim the proposed limits are
necessary to provide a margin or cushion of compliance, nothing in the
CAA or the EPA's regulations suggests that it is appropriate to build
in such margins or cushions into BART limits, especially given that
BART must represent that ``best system of continuous emission
reduction.'' If Comanche Units 1 and 2 can do better, than clearly, the
proposed BART limits are not the best. Nothing in the CAA or the EPA's
regulations implementing the regional haze program suggest or remotely
imply that a state could allow emission increases as BART.
    Accordingly, EPA must disapprove of Colorado's NOX BART
determinations for Comanche Unit 1 and Unit 2 and adopt a FIP that
establishes BART limits that are consistent with the CAA and that
represent actual emission reductions.
    Response: In our October 26, 2010, comment letter to Colorado, we
asked Colorado to evaluate tightening Comanche's NOX limits
as potential BART. As discussed in Colorado's BART analysis for the
Comanche units, Colorado did in fact evaluate emission limit tightening
in response to our concerns. Colorado subsequently concluded that a
0.20 lb/MMBtu 30-day rolling average emission limit was necessary to
account for uncertainty regarding load fluctuations, cold-weather
operating, start-up, and cycling for renewable energy. Colorado noted
that greater future reliance on renewable energy will lead to increased
cycling of the Comanche units and more frequent start-ups. This in turn
may lead to increased emissions over shorter averaging periods compared
to past actual emissions. Colorado also noted the limited amount of
actual emissions data for the two units since controls were installed
for SO2, and the same is true for NOX. Thus,
while Colorado established an annual NOX BART limit of 0.15
lb/MMBtu that is lower than the average actual emissions of 0.16 lb/
MMBtu for Units 1 and 2 between January and October 2010, Colorado
allowed greater leeway in the 30-day rolling average limit than would
result from the strict application of a 15% buffer to 0.16 lb/MMBtu
(0.20 lb/MMBtu versus 0.184 lb/MMBtu). Given some of the uncertainties
regarding future operations and emissions, we have determined that the
State acted reasonably in setting the emission limits for Comanche
Units 1 and 2. We also note that commenter's own analysis suggests that
the difference in annual emissions between maximum emissions under the
BART limit using 2009 heat inputs and 2009 actuals would only be 14
tons per year. This is not significant when compared to Comanche's
annual NOX emissions of approximately 3,860 tons; it does
not warrant disapproval and a subsequent FIP.
    In addition, Comanche's actual emissions following the installation
of low NOX burners and over-fire air occurred under permit
limits that are identical to those the State selected as BART. The
commenter has provided no evidence that the State's adoption of the
same limits as BART limits will cause an increase in actual emissions.
    Comment: The State failed to assess appropriately the cost of SCR.
In particular, the State assumed that SCR would achieve an emission
rate of 0.07

lb/MMBtu. However, as EPA itself noted in its October 26, 2010, comment
letter to the State, SCR does achieve emission rates as low as 0.04 lb/
MMBtu on an annual basis, and a 0.05 lb/MMBtu emission rate is a more
appropriate benchmark from which to assess the cost effectiveness of
SCR.
    In this case, the State did not assess the cost effectiveness of
SCR based on a rate of 0.05 lb/MMBtu. Thus, it did not reasonably take
into account the cost of compliance with SCR in accordance with the
CAA. Without an adequate case-specific cost analysis, there is simply
no support for concluding SCR, particularly for Unit 2, is
unreasonable.
    Response: As stated above, we agree that SCR has in some cases
achieved annual NOX emission rates as low as 0.05 lb/MMBtu,
the emission rate that commenters suggest would have been a more
appropriate benchmark in assessing the costs of SCR at Commanche;
however, the 0.07 lb/MMBtu annual emission rate assumed by Colorado in
estimating the costs and visibility benefits associated with SCR is
within the range of actual emission rates demonstrated at similar
facilities in EPA's CAMD emission database. Moreover, as with Martin
Drake, we do not believe that if Colorado had used a more stringent
emission rate that the impact on the BART analysis would have led
Colorado to a different conclusion given the magnitude of the benefits
associated with SCR. Given this, we conclude that the State's use of
0.07 lb/MMBtu to evaluate the cost effectiveness of SCR at Comanche was
not unreasonable.
    Comment: The State appears to have overestimated the capital cost
of SCR. Both the EPA and the NPS previously commented to the State that
the State should have used the EPA's CCM and noted that the CUECost
model relied upon by the State is not appropriate. Nowhere in the
record does the State explain why CUECost was reasonable, particularly
in light of the concerns expressed by the EPA and the NPS. It appears
that the reliance on CUECost led to artificially inflated capital
costs, which in turn overestimated the true cost of SCR.
    Response: We agree that there were flaws in Colorado's approach to
estimating the costs of SCR for the Comanche BART units. However, we
find that the State's NOX BART determination to be
reasonable within the context of the five factors, particularly based
on the relatively modest visibility improvement associated with SCR--
0.14 deciviews at Unit 1, and 0.17 deciviews at Unit 2--and the
expectation that cost effectiveness values for SCR calculated in
accordance with the CCM would still be relatively high compared to the
selected control option.
    Comment: Although the State and EPA may claim that, even if the
costs were accurately assessed, the visibility benefits of SCR would
not be significant, even for Unit 2, there is no support for this
assertion. In particular, it appears as if the State's assessment of
visibility improvements is based on an assumption that the proposed
BART limits (i.e., the ``do nothing'' BART) would actually improve
visibility. Given that the proposed BART limits would allow increased
emissions, it would not actually improve visibility. When compared to
the real impacts of the State's proposed BART for Comanche unit 1, SCR
would appear to provide significant visibility improvements because, as
opposed to the proposed BART, SCR would actually achieve improvements.
For Unit 2, this is especially significant because SCR was the only
available technology analyzed for BART. Thus, by all indications, SCR
is the only means of actually achieving visibility improvements at
Comanche Unit 2.
    Response: We disagree with this comment. As shown in Colorado's
visibility impact analysis for the Comanche BART units, Colorado
assessed the benefit of control options relative to both the subject-
to-BART baseline and to the installation of new LNB in 2007 and 2008.
In addition, the subject-to-BART modeling emission rates were based on
the maximum 24-hr rate consistent with the BART guidelines. Colorado's
analysis shows visibility benefits for all of the control options
considered, not just SCR. Moreover, relative to the subject-to-BART
baseline, Colorado's BART selection (combustion controls), does in fact
show visibility improvement (0.16 deciview and 0.31 deciview for Units
1 and 2, respectively). Therefore, EPA finds that no changes to the
BART determinations or to the SIP are needed in response to this
comment.
    Comment: It is unclear why the State rejected SNCR for Comanche
Unit 1, particularly given that the proposed BART limit for Unit 1 is
less stringent than Unit 1's current actual emissions. Under an SNCR
scenario, Unit 1 would meet a 30-day rolling average emission rate of
0.10 lb/MMBtu according to the EPA. According to the State, the cost,
coupled with the State's perceived ``low visibility improvement''
warranted a determination that SNCR was not reasonable. However,
according to the State's analysis, SNCR is cost effective at Unit 1,
costing $3,644 per ton of NOX reduced, which is squarely
within the range of what the State considers to be cost-effective.
    Response: We find that the State's rejection of SNCR was reasonable
based on its weighing of the BART factors. The State reasonably
concluded that the cost of SNCR was not warranted given the relatively
modest visibility improvement that would result--0.11 deciviews. Even
if a control technology is arguably cost-effective on a dollar per ton
basis, a State may conclude that the control technology is not
warranted based on a reasonable consideration of all BART factors.
    Comment: With regard to visibility benefits, the State's analysis
also indicates that SNCR would achieve greater improvement than an
emission rate of 0.20 lb/MMBtu on a 30-day rolling average. Although
the State asserts that the improvement would amount to 0.11 deciviews,
it is unclear why such improvements are not reasonable or are otherwise
insignificant, particularly given that the purpose of BART is to reduce
or eliminate visibility impairment, and indeed there is no explanation
in the record supporting the State's assertion. It also appears as if
the State's assessment of visibility improvements is based on an
assumption that the proposed BART limits would actually improve
visibility. Given that the proposed BART allows increased emissions, it
would not improve visibility. When compared to the real impacts of the
State's proposed BART for Comanche Unit 1, SNCR appears to provide
significant visibility improvements because, as opposed to the proposed
BART, SNCR would actually achieve improvements. This further
underscores why the State's BART determination for Comanche Unit 1 is
flawed and why EPA must promulgate a FIP that establishes appropriate
NOX BART limits.
    Response: The commenter is correct that the State predicted that
SNCR would result in additional improvement in visibility over the
control technology the State selected as BART. However, this does not
mean the CAA or our regulations required the State to select SNCR as
BART. For the reasons stated above, we find that it was reasonable for
the State to reject SNCR based on consideration of all the BART
factors. Regarding the commenter's suggestion that the State's selected
limits will lead to an increase in emissions, as noted above, the
commenter has presented no evidence that this will occur. Moreover, as
indicated in a separate response to comments, above, Colorado assessed
the benefit of control options relative to

both the subject-to-BART baseline and to the installation of new LNB in
2007 and 2008. Relative to the subject-to-BART baseline, Colorado's
BART determination does in fact result in visibility benefits. The
installation of LNB resulted in a visibility improvement of 0.16
deciview and 0.31 deciview for Comanche Units 1 and 2, respectively.

F. NOX Reasonable Progress Determination for Craig Unit 3

    Comment: We received comments that the reasonable progress
evaluation of Craig Unit 3 includes the same flaws as for Units 1 and 2
(see comments in section IV.A.1--4 above). One commenter indicated that
the estimated cost effectiveness is no higher than $3,190/ton, and
likely lower, considering the conservative $300/kW starting point for
their analysis. Another commenter estimated the cost effectiveness of
SCR at Unit 3 as $2,385/ton.
    Based on visibility modeling from the NPS, commenters pointed out
that the visibility benefits of adding SCR to Unit 3 are similar to
those at Units 1 and 2--over 0.5 deciview at five Class I areas, and
additional benefits at several more. The commenters asserted that,
cumulatively, Unit 3 has an 8.39 deciview impact, with SCR providing a
cumulative visibility improvement of 4.56 deciviews. Commenters went on
to say that SCR at a limit of 0.05 lb/MMBtu should be required as
reasonable progress for Craig Unit 3.
    Response: We agree that the State likely overestimated the cost
associated with SCR at Unit 3, but we are not prepared to disapprove
the State's reasonable progress determination for Craig Unit 3.
Assuming the commenters' assessments of the cost effectiveness of SCR
are reasonably accurate, the values are not so low that it is clear
that the State would have been unreasonable to reject SCR, especially
given the State's requirement that Craig Unit 3 install SNCR and the
resulting visibility benefits. We expect the State to re-evaluate SCR
for Unit 3 in the next planning period.

G. NOX Reasonable Progress Determination for Nucla

    Comment: The State's proposed SIP appears to allow increased
emissions from the Nucla coal fired power plant under the reasonable
progress aspect of the proposed SIP. In light of this, it is unclear
how the proposed emission limits for NOX and SO2
actually meet the State's reasonable progress goals. Under the
reasonable progress prong of the regional haze requirements of the CAA,
the State determined that additional controls at the Nucla plant were
reasonable to protect Class I areas. Accordingly, the State proposed to
require the power plant to achieve a NOX emission limit of
0.5 lb/MMBtu and an SO2 limit of 0.4 lb/MMBtu, both over a
30-day rolling average period. However, according to data from EPA's
Air Markets Program Database, Nucla has been meeting emission rates far
below these proposed reasonable progress limits.
    Indeed, data from the EPA demonstrates that between January 1,
2009, and December 31, 2011, Nucla has been meeting an average monthly
NOX emission rate of 0.367 lb/MMBtu and an average monthly
SO2 emission rate of 0.301 lb/MMBtu. These rates indicate
that Nucla is able to meet more stringent emission rates at no
additional cost. The monthly SO2 and NOX emission
rates actually achieved by Nucla in the past 3 years clearly
demonstrate that the power plant has consistently emitted at rates
below the reasonable progress limits proposed by the State. Nucla is
capable of achieving NOX and SO2 emission rates
lower than 0.30 lb/MMBtu on a 30-day basis.
    More importantly though, these rates indicate that the State's
proposed reasonable progress limits actually allow more air pollution
to be emitted from Nucla than is currently emitted. An increase in
emissions would not appear to ensure reasonable progress in restoring
visibility in Colorado's Class I areas. Thus, the State's proposed SIP
is not approvable by EPA because it fails to ensure reasonable progress
in accordance with 42 U.S.C. 7491(g)(1) and 40 CFR 51.308(d)(1)(i). At
the least, the proposed reasonable progress emission limits for Nucla
demonstrate that the State failed to appropriately assess the costs of
compliance in accordance with the CAA. Indeed, if the State had
appropriately assessed the costs of compliance, it would have found
that lower emission rates would be equally cost-effective and more
protective of visibility. Such a flawed analysis of reasonable progress
in relation to the Nucla plant cannot be approved by EPA.
    The EPA must promulgate a FIP that establishes reasonable progress
limits at the Nucla plant that actually achieve cost-effective
emissions reductions. To this end, we request EPA adopt reasonable
progress limits that limit NOX emissions to no more than
0.25 lb/MMBtu and SO2 emissions to no more than 0.28 lb/
MMBtu. Such limits are achievable and appear to be very cost-effective
given that they would cost nothing.
    Response: We disagree with this comment. Colorado based the
SO2 emission limit of 0.4 lb/MMBtu on the existing limestone
injection system for SO2, and it based the NOX
limit of 0.5 lb/MMBtu on the inherent low-NOX nature of the
circulating fluidized bed boiler. A review of recent (2008-2010)
monthly data in EPA's CAMD emissions database shows monthly
NOX emission rates as high as 0.45 lb/MMBtu and monthly
SO2 emission rates as high as 0.33 lb/MMBtu. These rates are
commensurate with the reasonable progress emission limits established
by Colorado. Based on its reasonable progress analysis, Colorado
concluded that no additional controls were reasonable. We concur with
that conclusion.

H. Reasonable Progress for Rio Grande Cement Company (GCC)

    Comment: The State should have analyzed visibility impacts due to
GCC, as either a permit modification or as a reasonable progress
source. To date, the State has not considered the impacts of the source
under either program. Had the State compared GCC's emissions (Q) as a
function of distance (d) to the threshold Q/d > 20 used to determine
whether a source would be included in the reasonable progress analysis,
GCC would have qualified for reasonable progress review. The State
contends that GCC was not included in the reasonable progress review
because the State used 2007 emissions to determine which sources were
subject to reasonable progress review, and GCC did not begin normal
operations until 2009. However, in its analysis of the proposed permit
modification, the State asserts that GCC's actual emissions should be
based upon the current permit limits, not zero emissions. In that case,
GCC's permit emissions should have been used to trigger inclusion in
the Colorado reasonable progress analysis.
    It is essential that any regulatory program try to maintain a
``level playing field.'' There are two other cement plants in Colorado,
and additional NOX controls are being required on both under
Colorado's regional haze SIP.
    GCC has installed SNCR but the current permit does not require
these controls to be operated. We believe that, because the GCC permit
allows emissions that exceed the State's threshold for determining
which sources are subject to a reasonable progress analysis, GCC should
have been included as a reasonable progress source. It is likely, based
on the State's actions regarding the other two cement plants that the
State would have required continuous operation of SNCR.

EPA should require GCC to reduce NOX emissions by 45% on a
continuous basis.
    Response: The State based its evaluation of potential reasonable
progress sources on stationary sources with actual emissions of 100 tpy
or greater of PM, NOX, and SO2 based on Air
Pollution Emissions Notice (APEN) reports from 2007. The APEN reports
for 2007 are based on data reported to the State by April 30, 2007,
which is based on the previous full year of production (2006). The
State formalized its reasonable progress analysis process in 2009. At
that time, the APEN report data the State had (that had undergone full
quality assurance and quality control) were the 2007 APEN reports based
on the source reported 2006 data.
    In 2006, Rio Grande Cement reported zero emissions because it did
not operate. In 2007, Rio Grande Cement did report APEN emissions
(based on permitted limits) resulting in a Q/d>20, but those emissions
were not actual emissions because the source did not actually begin
producing cement until April 2008. Because the State based its
reasonable progress evaluation on 2006 actual emissions, we find it
reasonable that the State did not further evaluate GCC for purposes of
reasonable progress. We expect the State to do so for the next
reasonable progress planning period.

I. Legal Issues

1. Public Service Company of Colorado (PSCO) BART Alternative
    Comment: Phase III of the SIP Rulemaking (at which the PSCO BART
Alternative was adopted), to which Colorado Mining Association (CMA)
was a party, was based upon numerous irregularities and violations of
the Colorado Administrative Procedures Act, the Colorado Air Pollution
Prevention and Control Act, and H. B. 10-1365. CMA filed a complaint
challenging the Air Quality Control Commission's (AQCC) SIP Rulemaking
on March 16, 2011, in Denver District Court. The CMA case is pending
review by the District Court. The issues before the court are numerous
and establish the AQCC's Phase III rulemaking was improper and that the
PSCO BART Alternative should be stricken from the Colorado regional
haze SIP. If the Court determines that the Phase III rulemaking was
improper, and therefore, portions of the proposed Colorado SIP were
invalid under State law, those same portions of the proposed Colorado
SIP would be unenforceable under federal law.
    As a result of the AQCC's egregious failures in Phase III of the
SIP Rulemaking, the PSCO BART Alternative should not be included in the
Colorado regional haze SIP. Until the Court has completed its review,
EPA should not act to include the PSCO BART Alternative in the State's
regional haze SIP.
    Response: Once a state has submitted a SIP revision to us, we must
approve it if it meets the CAA's minimum requirements. One of the
relevant requirements is that the State have adequate authority under
State law to carry out the plan. See CAA section 110(a)(2)(E). Absent a
stay or determination by a court that a plan is invalid, or some other
clear indication that the State lacks authority to implement the plan,
we have no basis to disapprove it under 110(a)(2)(E). Here, there is no
indication that Colorado lacks authority to implement the PSCO BART
Alternative. Indeed, it is our understanding that CMA's lawsuit has
been dismissed by the Denver District Court as moot. We have included a
copy of the court's June 6, 2012 order in the docket for this action.
If a court subsequently invalidates the PSCO BART Alternative, we will
need to evaluate the Colorado SIP at that time, but the possibility of
future invalidation does not provide a basis for us to disapprove the
PSCO BART Alternative.
2. Timing of Implementation
    Comment: Colorado's proposed SIP appears to contain a blanket
schedule of BART compliance that states, ``sources must comply as
expeditiously as practicable, but no later than 5 years from EPA
approval of the SIP.'' This blanket schedule of compliance, which
applies to all subject-to-BART sources under the proposed Colorado SIP,
is contrary to the CAA. It is true that the CAA requires that subject-
to-BART sources ``procure, install, and operate, as expeditiously as
practicable'' any additional controls that may represent BART. However,
simply stating verbatim in the SIP that ``sources must comply as
expeditiously as practicable'' fails to give force and effect to this
statutory provision. In this case, it is unclear what ``as
expeditiously as practicable'' means, particularly in the context of
individual subject-to-BART sources. The lack of any specificity renders
this provision unenforceable, which further undermines the adequacy of
the SIP under CAA section 110 and frustrates the statutory mandate set
forth under the CAA.
    Additionally, the CAA is clear that in mandating ``expeditious''
compliance, SIPs must ensure that subject-to-BART sources comply as
soon as possible. In this case, Colorado's SIP simply fails to ensure
compliance with BART as soon as possible. It lacks any concrete dates
by which subject-to-BART sources must comply, other than to state that
sources must comply within the statutory maximum compliance date of 5
years. However, the CAA is clear that if a source can comply with BART
before 5 years, it must comply by that earlier date. See 42 U.S.C.
7491(g)(4). Simply deferring to the 5-year deadline undermines the
Congressional intent behind the ``as expeditiously as practicable''
provision.
    It is notable that in other situations, the EPA has proposed to
require concrete compliance dates to satisfy the CAA's ``as
expeditiously as practicable'' provisions under the regional haze
program. For example, in proposing a FIP for BART for the San Juan
Generating Station in New Mexico, the EPA proposed a 3-year compliance
date, finding it to be ``as expeditiously as practicable'' (76 FR 504).
Although EPA ultimately concluded that a 5-year schedule of compliance
was appropriate, the Agency's proposed action clearly signaled that a
concrete date is needed to satisfy the CAA.
    The EPA must therefore disapprove of Colorado's blanket schedule of
BART compliance. In its place, the Agency must promulgate a FIP that
sets forth concrete dates by which all subject-to-BART sources must
``procure, install, and operate'' BART that represent the most
expeditious dates practicable.
    Response: We have reviewed the compliance dates for meeting BART
limits that are contained in the SIP. These dates are reasonable given
the magnitude of the retrofits being undertaken. We note that the
State's Regulation Number 3--Stationary Source Permitting And Air
Pollutant Emission Notice Requirements that we are approving as part of
this action provides for compliance as expeditiously as practicable,
but in no event later than 5 years from EPA final approval of the SIP.
3. Compliance With Section 110(l)
    Comment: The EPA is duty-bound to ensure the proposed SIP does not
interfere with attainment and maintenance of the National Ambient Air
Quality Standards (NAAQS), in accordance with section 110(l) of the
CAA. Thus, the EPA must ensure that the proposed SIP adequately limits
air pollution in order to safeguard public health.
    In this case, we are concerned that in proposing to approve
Colorado's regional haze plan that the EPA has not demonstrated that
the proposal

adequately safeguards the 2008 8-hour ozone NAAQS, the newly
promulgated 1-hour nitrogen dioxide NAAQS, the newly promulgated 1-hour
SO2 NAAQS, and the 2006 fine particulate matter
(PM2.5) NAAQS. Thus, EPA has not shown the extent to which
public health is likely to be protected under the proposed SIP.
    We are particularly concerned that the EPA overlooked its 110(l)
obligations under the CAA given that, although the proposed rule may
lead to emission reductions, no analysis or assessment has been
prepared to demonstrate that even after these emission reductions, the
recently promulgated NAAQS will be met. In this case, we are
particularly concerned that the recently promulgated 1-hour
NO2 and SO2 NAAQS could be jeopardized. Indeed,
many, if not most, of the proposed emission rates are based on 30-day
rolling averages. There is no indication that meeting emission rates on
a 30-day rolling average will ensure that 1-hour NAAQS will be
sufficiently protected. Indeed, a source could comply with a 30-day
rolling average limit, yet still emit enough pollution on an hourly
basis to cause or contribute to violations of the NAAQS, thereby
interfering with attainment or maintenance.
    We are further concerned over the fact that several BART limits
allow for increased emissions. For example, the proposed NOX
BART determinations for Comanche Units 1 and 2 allow for greater
emissions than are currently released by the units. This raises
concerns over the impacts to the NAAQS. These impacts must be addressed
by EPA.
    In this case, the EPA must either disapprove of the Colorado SIP
over the State's failure to perform a 110(l) analysis or prepare its
own 110(l) analysis to demonstrate that the SIP will effectively
protect public health and not interfere with attainment or maintenance
of the NAAQS.
    Response: CAA section 110(l) provides that EPA ``shall not approve
a revision of a plan if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress * * *, or any other applicable requirement of'' the CAA. It is
not clear that the regional haze SIP submitted by Colorado is a
``revision of a plan'' within the meaning of CAA section 110(l) as it
is the first implementation plan due under the regional haze program.
See, e.g., Sec.  51.308(b). However, even if such an analysis were
required, the commenter has not provided any evidence that the Colorado
regional haze SIP will interfere with any applicable requirement
concerning attainment and reasonable progress or any other applicable
requirement of the CAA, or that further analysis under 110(l) is
necessary.
    Although the Colorado regional haze SIP will lead to emission
reductions, the commenter asserts that that even so EPA must determine
that the SIP revision will ensure the NAAQS are met. We disagree with
this interpretation of CAA section 110(l). The Act and EPA's
regulations require the regional haze SIP to address visibility
impairment in mandatory Class I areas--attainment of the NAAQS is
provided for through a separate SIP process. It is EPA's consistent
interpretation of section 110(l) that a SIP revision does not interfere
with attainment and maintenance of the NAAQS if the revision at least
preserves the status quo air quality by not relaxing or removing any
existing emissions limitation or other SIP requirement. EPA does not
interpret section 110(l) to require a full attainment or maintenance
demonstration for each NAAQS for every SIP revision. See, e.g.,
Kentucky Resources Council, Inc., v. EPA, 467 F.3d 986 (6th Cir. 2006);
see also, 61 FR 16050, 16051 (April 11, 1996) (actions on which the
Kentucky Resources Council case were based).
    Thus, in this action, we need not determine whether a 30-day limit
is adequate to protect a shorter-term NAAQS because the regional haze
SIP is not required to ensure attainment of the NAAQS. The fact that
the regional haze SIP specifies 30-day limits will not preclude
Colorado from adopting limits with a shorter averaging time, if at some
future date such limits are found to be necessary and required by the
CAA to protect the NAAQS.
    The commenter also alleges that ``several BART limits allow for
increased emissions'' over current actual source emissions and cites as
an example the NOX BART limits for Comanche Units 1 and 2.
The commenter claims this raises concerns over impacts to the NAAQS.
However, the Colorado regional haze SIP imposes new emissions limits on
a number of existing sources, and it does not relax any existing
emissions limits or other SIP requirements. In fact, the regional haze
SIP makes violations of the NAAQS less likely because without the BART
limits, actual emissions could increase even more. And, the regional
haze SIP does not prevent the State from adopting lower limits in the
future as necessary to protect the NAAQS. Thus, the regional haze SIP
revision and its BART limits will not interfere with ``any applicable
requirement concerning attainment and reasonable further progress * *
*, or any other applicable requirement of'' the CAA.

J. Comments Generally in Favor of our Proposal

    Comment: We received comment letters fully in support of our
rulemaking from Xcel Energy, Tri-State Generation, and a letter on
behalf of Colorado Environmental Coalition, Environment Colorado,
Environmental Defense Fund, and Western Resource Advocates. We received
84 comments from members of National Parks Conservation Association
generally in support of our action. These comments from National Parks
Conservation Association members also urged EPA to finalize stricter
NOX controls on Tri-State Craig Unit 1, which we have
addressed above. We also received comments from National Parks
Conservation Association, the NPS, and WildEarth Guardians that
supported the majority of our action, but pointed out some concerns, to
which we have responded above.
    Response: We acknowledge the support of these commenters for part
or all of our proposed action.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive

Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 1, 2013. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

    Dated: September 10, 2012.
James B. Martin,
Regional Administrator, Region 8.
    For the reasons discussed in the preamble, 40 CFR chapter I is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. Section 52.320 is amended by adding paragraph (c)(108)(i)(C) and
adding paragraph (c)(124) to read as follows:

Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (108) * * *
    (i) * * *
    (C) Colorado Air Quality Control Commission, Regulation Number 3, 5
CCR 1001-5, Stationary Source Permitting and Air Pollutant Emission
Notice Requirements, Part D, Concerning Major Stationary Source New
Source Review and Prevention of Significant Deterioration, Section
XIV.F, Long Term Strategy, subsection XIV.F.1. introductory text and
XIV.F.1.c; adopted January 7, 2011; effective February 14, 2011.
* * * * *
    (124) On May 25, 2011 the State of Colorado submitted revisions to
its State Implementation Plan to address the requirements of EPA's
regional haze rule.
    (i) Incorporation by reference.
    (A) Colorado Air Quality Control Commission, Regulation Number 3, 5
CCR 1001-5, Stationary Source Permitting and Air Pollutant Emission
Notice Requirements, Part F, Regional Haze Limits--Best Available
Retrofit Technology (BART) and Reasonable Progress (RP), Section VI,
Regional Haze Determinations, and Section VII, Monitoring,
Recordkeeping, and Reporting for Regional Haze Limits; adopted January
7, 2011; effective February 14, 2011.
    (B) Colorado Air Quality Control Commission, Regulation Number 7, 5
CCR 1001-9, Control of Ozone via Ozone Precursors (Emissions of
Volatile Organic Compounds and Nitrogen Oxides), Section XVII, (State
Only, except Section XVII.E.3.a. which was submitted as part of the
Regional Haze SIP) Statewide Controls for Oil and Gas Operations and
Natural Gas-Fired Reciprocating Internal Combustion Engines, subsection
E.3.a, (Regional Haze SIP) Rich Burn Reciprocating Internal Combustion
Engines; adopted January 7, 2011; effective February 14, 2011.

[FR Doc. 2012-31192 Filed 12-28-12; 8:45 am]
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[Federal Register: April 23, 2009 (Volume 74, Number 77)]
[Notices]
[Page 18604]
[DOCID:fr23ap09-75]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Notice of Intent To Request Revision From the Office of
Management and

    Budget of a Currently Approved Information Collection Activity,
Request for
    Comments; FAA Acquisition Management System (FAAAMS) Including ARRA
Requirements
AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice and request for comments.

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SUMMARY: The FAA invites public comments about our intention to request
the Office of Management and Budget (OMB) to approve a current
information collection. Pursuant to Public Law 104-50. the FAA has
implemented an acquisition management system that addresses the unique
needs of the agency. This document established the policies and
internal procedures for the FAA's acquisition system.

DATES: Please submit comments by June 22, 2009.

FOR FURTHER INFORMATION CONTACT: Carla Mauney on<PHONE_NUMBER>, or by
e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Federal Aviation Administration (FAA)

    Title: FAA Acquisition Management System (FAAAMS) Including ARRA
Requirements.
    Type of Request: Extension without change of an approved
collection.
    OMB Control Number: 2120-0595.
    Forms(s): Forms available at http://fast.faa/gov/docs/forms.
    Affected Public: A total of 15,298 Respondents.
    Frequency: The information is collected on occasion.
    Estimated Average Burden per Response: Approximately 7.5 hours per
response.
    Estimated Annual Burden Hours: An estimated 2,003,059 hours
annually.
    Abstract: Pursuant to Public Law 104-50, the FAA has implemented an
acquisition management system that addresses the unique needs of the
agency. This document established the policies and internal procedures
for the FAA's acquisition system. This collection includes burden
requirements per the American Recovery and Reimbursement Act of 2009
(ARRA).

ADDRESSES: Send comments to the FAA at the following address: Ms. Carla
Mauney, Room 712, Federal Aviation Administration, IT Enterprises
Business Services Division, AES-200, 800 Independence Ave., SW.,
Washington, DC 20591.
    Comments are invited on: Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Department, including whether the information will have practical
utility: The accuracy of the Department's estimates of the burden of
the proposed information collection; ways to enhance the quality,
utility and clarity of the information to be collected: and ways to
minimize the burden of the collection of information on respondents,
including the use of automated collection techniques or other forms of
information technology.

    Issued in Washington, DC, on April 15, 2009.
Carla Mauney,
FAA Information Collection Clearance Officer, IT Enterprises Business
Services Division, AES-200.
[FR Doc. E9-9205 Filed 4-22-09; 8:45 am]

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