Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 21835 

distributing royalties for this period. If not, 

what would be a better alternative? 

4. Is the disaggregation by type of service 

proposed in § 370.4(f) (i.e., nonsubscription 

transmission service, preexisting satellite 

digital audio radio service, new subscription 

service, or business establishment service) 

sufficient to determine a reasonable proxy for 

generating corresponding reports of use for 

similar types of non-reporting services? 

Is further disaggregation of some service 

types, as currently referenced in 37 CFR Part 

380 (e.g., disaggregation of nonsubscription 

transmission services into commercial 

webcasters, noncommercial webcasters, 

broadcasters, or noncommercial educational 

webcasters) desirable to determine a better 

proxy for generating corresponding reports of 

use for such non-reporting services? Would 

this type of further disaggregation be 

practicable? Would the benefits yielded by 

such further disaggregation, if any, justify the 

incremental costs of doing so? 

5. Does the proposed regulatory language 

in §§ 370.3(i) and 370.4(f) (i.e., ‘‘* * * service 

has not provided a report of use required 

under this section * * *’’) clearly encompass 

both the failure of a service to provide reports 

of use as well as instances where the service 

files an unusable report of use? 

SoundExchange’s petition is posted 

on the Copyright Royalty Board Web 

site at http://www.loc.gov/crb/3-24-11- 

SoundExchange-petition-proxy.pdf. 

List of Subjects 

37 CFR Part 370 

Copyright, Sound recordings. 

37 CFR Part 382 

Copyright, Digital audio 

transmissions, Performance right, Sound 

recordings. 

Proposed Regulations 

For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

propose amending 37 CFR parts 370 and 

382 as follows: 

PART 370—NOTICE AND 

RECORDKEEPING REQUIREMENTS 

FOR STATUTORY LICENSES 

1. The authority citation for part 370 

continues to read as follows: 

Authority: 17 U.S.C. 112(e)(4), 114(f)(4)(A). 

2. Section 370.3 is amended by 

adding new paragraph (i) to read as 

follows: 

§ 370.3 Reports of use of sound 

recordings under statutory license for 

preexisting subscription services. 

* * * * * 

(i) In any case in which a preexisting 

subscription service has not provided a 

report of use required under this section 

for use of sound recordings under 

section 112(e) or section 114 of title 17 

of the United States Code, or both, prior 

to January 1, 2010, reports of use for the 

corresponding calendar year filed by 

other preexisting subscription services 

shall serve as the reports of use for the 

non-reporting service, solely for 

purposes of distribution of any 

corresponding royalties by the 

Collective. 

3. Section 370.4 is amended by 

adding new paragraph (f) to read as 

follows: 

§ 370.4 Reports of use of sound 

recordings under statutory license for 

nonsubscription transmission services, 

preexisting satellite digital audio radio 

services, new subscription services and 

business establishment services. 

* * * * * 

(f) In any case in which a 

nonsubscription transmission service, 

preexisting satellite digital audio radio 

service, new subscription service, or 

business establishment service has not 

provided a report of use required under 

this section for use of sound recordings 

under section 112(e) or section 114 of 

title 17 of the United States Code, or 

both, prior to January 1, 2010, reports of 

use for the corresponding calendar year 

filed by other services of the same type 

shall serve as the reports of use for the 

non-reporting service, solely for 

purposes of distribution of any 

corresponding royalties by the 

Collective. 

PART 382—RATES AND TERMS FOR 

DIGITAL TRANSMISSIONS OF SOUND 

RECORDINGS AND THE 

REPRODUCTION OF EPHEMERAL 

RECORDINGS BY PREEXISTING 

SUBSCRIPTION SERVICES AND 

PREEXISTING SATELLITE DIGITAL 

AUDIO RADIO SERVICES 

4. The authority citation of part 382 

continues to read as follows: 

Authority: 17 U.S.C. 112(e), 114, and 

801(b)(1). 

§ 382.3 [Amended] 

5. Section 382.3(c)(1) is amended by 

removing ‘‘§ 370.2’’ and adding ‘‘§ 370.3’’ 

in its place. 

§ 382.13 [Amended] 

6. Section 382.13(f)(1) is amended by 

removing ‘‘§ 370.3’’ and adding ‘‘§ 370.4’’ 

in its place. 

Dated: April 14, 2011. 

James Scott Sledge, 

Chief U.S. Copyright Royalty Judge. 

[FR Doc. 2011–9455 Filed 4–18–11; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–1037; FRL–9297–4] 

Approval and Promulgation of State 

Implementation Plans; State of 

Colorado; Interstate Transport of 

Pollution Revisions for the 1997 PM2.5

and 8-Hour Ozone NAAQS: ‘‘Significant 

Contribution,’’ ‘‘Interference with 

Maintenance,’’ and ‘‘Interference with 

Prevention of Significant 

Deterioration’’ Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

portions of a State Implementation Plan 

(SIP) revision submitted by the State of 

Colorado for the purpose of addressing 

the ‘‘good neighbor’’ provisions of Clean 

Air Act (‘‘Act’’ or ‘‘CAA’’) section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

National Ambient Air Quality Standards 

(‘‘NAAQS’’ or ‘‘standards’’) and the 1997 

fine particulate matter (‘‘PM2.5’’) 

NAAQS. This SIP revision addresses the 

requirement that the State of Colorado’s 

SIP (‘‘Interstate Transport SIP’’) have 

adequate provisions to prohibit air 

emissions from adversely affecting 

another state’s air quality through 

interstate transport. In this action, EPA 

is proposing to approve the Colorado 

Interstate Transport SIP provisions that 

address the requirement of section 

110(a)(2)(D)(i) that emissions from 

Colorado sources do not significantly 

contribute to nonattainment of the 1997 

PM2.5 NAAQS in any other state, 

interfere with maintenance of the 1997 

PM2.5 NAAQS by any other state, or 

interfere with any other state’s required 

measures to prevent significant 

deterioration of air quality for the 1997 

PM2.5 and 8-hour ozone NAAQS. This 

action is being taken under section 110 

of the CAA. 

DATES: Comments must be received on 

or before May 19, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2007–1037, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: clark.adam@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Deborah Lebow Aal, Acting 

Director, Air Program, Environmental 


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21836 Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 

1The March 31, 2010 submission superseded 

earlier SIP submissions with respect to the section 

110(a)(2)(D)(i) requirements that are the subject of 

this proposed action. 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129. 

• Hand Delivery: Deborah Lebow Aal, 

Acting Director, Air Program, 

Environmental Protection Agency 

(EPA), Region 8, Mailcode 8P–AR, 1595 

Wynkoop, Denver, Colorado 80202– 

1129. Such deliveries are only accepted 

Monday through Friday, 8 a.m. to 

4:30 p.m., excluding Federal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2007– 

1037. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA, without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section I. 

General Information of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly-available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop, 

Denver, Colorado 80202–1129. EPA 

requests that if at all possible, you 

contact the individual listed in the FOR

FURTHER INFORMATION CONTACT section to 

view the hard copy of the docket. You 

may view the hard copy of the docket 

Monday through Friday, 8 a.m. to 

4 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Adam Clark, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop, Denver, Colorado 80202– 

1129, (303) 312–7104, 

clark.adam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

(iv) The words Colorado and State 

mean the State of Colorado. 

Table of Contents 

I. General Information 

What should I consider as I prepare my 

comments for EPA? 

II. What proposed action is EPA taking? 

III. What is the background for this proposed 

action? 

IV. What is the state process to submit these 

materials to EPA? 

V. EPA’s Review and Technical Information 

A. Background on Section 110(a)(2)(D)(i)(I) 

B. EPA’s Evaluation of Colorado’s 

Significant Contribution to 

Nonattainment 

C. EPA’s Evaluation of Colorado’s 

Interference With Maintenance 

D. EPA’s Evaluation of Colorado’s 

Prevention of Significant Deterioration 

(PSD) 

VI. Summary of Proposed Action 

VII. Statutory and Executive Order Review 

I. General Information 

What should I consider as I prepare my 

comments for EPA? 

1. Submitting CBI. Do not submit CBI 

to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

a. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

b. Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

c. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

d. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

e. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

f. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

g. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

h. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. What proposed action is EPA taking? 

EPA is proposing to approve a portion 

of Colorado’s Interstate Transport SIP 

revision for the 1997 8-hour ozone and 

1997 PM2.5 NAAQS. This revision was 

submitted by the State on March 31, 

2010.1 Specifically, we are proposing to 

approve the portion of the plan that 

addresses the following requirements of 

CAA section 110(a)(2)(D)(i) which 

prohibit air pollutant emissions within 

the State that: (1) Significantly 

contribute to nonattainment of the 1997 

PM2.5 NAAQS in any other state; (2) 

interfere with maintenance of the 1997 

PM2.5 NAAQS by any other state; and (3) 

interfere with any other state’s required 

measures to prevent significant 

deterioration of its air quality with 


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Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 21837 

2Memorandum from William T. Harnett entitled, 

‘‘Guidance for State Implementation Plan (SIP) 

Submissions To Meet Current Outstanding 

Obligations Under Section 110(a)(2)(D)(i) for the 8- 

hour Ozone and PM2.5 National Ambient Air 

Quality Standards’’ (Aug. 15, 2006). 

3 ‘‘Federal Implementation Plans To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone,’’ 75 FR 45210 (Aug. 2, 2010). 

respect to the 1997 PM2.5 and 8-hour 

ozone NAAQS. 

III. What is the background for this 

proposed action? 

On July 18, 1997, EPA promulgated 

new NAAQS for ozone and for PM2.5. 

This action is being taken in response to 

the promulgation of both the 1997 ozone 

and PM2.5 NAAQS. Section 110(a)(1) of 

the CAA requires states to submit SIPs 

to address a new or revised NAAQS 

within 3 years after promulgation of 

such standards, or within such shorter 

period as EPA may prescribe. Section 

110(a)(2) lists the elements that such 

new SIPs must address, as applicable, 

including section 110(a)(2)(D)(i), which 

pertains to interstate transport of certain 

emissions. On August 15, 2006, EPA 

issued its ‘‘Guidance for State 

Implementation Plan (SIP) Submissions 

to Meet Current Outstanding 

Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and 

PM2.5 National Ambient Air Quality 

Standards’’ (‘‘2006 Guidance’’).2 The 

2006 Guidance recommends ways states 

may, in their submissions, meet the 

requirements of section 110(a)(2)(D)(i) 

for the 1997 8-hour ozone and PM2.5

standards. 

As identified in the 2006 Guidance, 

the ‘‘good neighbor’’ provisions in 

section 110(a)(2)(D)(i) require each state 

to submit a SIP that prohibits emissions 

that adversely affect another state in the 

ways contemplated in the statute. 

Section 110(a)(2)(D)(i) identifies four 

distinct requirements related to the 

impacts of interstate transport. The SIP 

must prevent sources in the state from 

emitting pollutants in amounts which 

will: (1) Contribute significantly to 

nonattainment of the NAAQS in any 

other state; (2) interfere with 

maintenance of the NAAQS by any 

other state; (3) interfere with required 

measures to prevent significant 

deterioration of air quality in any other 

state; or (4) interfere with efforts to 

protect visibility in any other state. In 

this rulemaking EPA is addressing the 

first three requirements of section 

110(a)(2)(D)(i). 

On June 11, 2008, the State of 

Colorado submitted to EPA an Interstate 

Transport SIP addressing all four 

requirements of CAA section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

and PM2.5 NAAQS. In response to EPA’s 

concerns regarding the June 11, 2008 

submission, the State later submitted 

two superseding interstate transport SIP 

revisions: (a) A June 18, 2009 

submission addressing requirements (1) 

and (2) of section 110(a)(2)(D)(i) for the 

1997 8-hour ozone NAAQS; and (b) a 

March 31, 2010 submission addressing 

requirements (3) and (4) for the 1997 8- 

hour ozone NAAQS and requirements 

(1) through (4) for the 1997 PM2.5

NAAQS. EPA has previously approved 

the ‘‘significant contribution to 

nonattainment’’ and the ‘‘interfere with 

maintenance’’ requirements for the State 

of Colorado for the 1997 8-hour ozone 

NAAQS in final rule actions published 

June 3 and November 22, 2010 (75 FR 

31306; 75 FR 71029). EPA proposed 

approval of the ‘‘interfere with 

visibility’’ requirement for the 1997 8- 

hour ozone and PM2.5 NAAQS on 

February 14, 2011 (76 FR 8326). In this 

rulemaking EPA is evaluating only the 

portions of Colorado’s March 31, 2010 

submission that address requirements 

(1), (2), and (3) for the 1997 PM2.5

NAAQS, and requirement (3) for the 

1997 8-hour ozone NAAQS. In its 

submission, the State indicated that its 

current SIP already contains provisions 

adequate to prevent such contribution 

and interference. EPA is proposing to 

find that, as stated by Colorado in the 

March 31, 2010 submission, the 

Colorado Interstate Transport SIP has 

adequate provisions addressing 

requirements (1), (2), and (3) of section 

110(a)(2)(D)(i) for the 1997 PM2.5

NAAQS and requirement (3) for the 

1997 8-hour ozone NAAQS. 

IV. What is the state process to submit 

these materials to EPA? 

Section 110(k) of the CAA addresses 

EPA’s rulemaking action on SIP 

submissions by states. The CAA 

requires states to observe certain 

procedural requirements in developing 

SIP revisions for submission to EPA. 

Sections 110(a)(1) and (2) of the CAA 

require that each SIP revision be 

adopted after reasonable notice and 

public hearing. This must occur prior to 

the revision being submitted by a state 

to EPA. 

The Colorado Air Quality Control 

Commission (AQCC) held a public 

hearing in December 2009 for the 

Interstate Transport SIP revision: ‘‘State 

of Colorado Implementation Plan To 

Meet the Requirements of the Clean Air 

Act Section 110(a)(2)(D)(i)(I) and (II)— 

Regarding Interstate Transport for the 

1997 8-Hour Ozone and PM2.5 NAAQS.’’ 

The AQCC adopted this revision on 

January 13, 2010, and the State 

submitted it to EPA on March 31, 2010. 

As discussed above, the March 31, 2010 

submission addresses the elements of 

110(a)(2)(D)(i) that are the subject of this 

proposed action. 

EPA has reviewed the March 31, 

2010, submission from the State of 

Colorado and has determined that the 

State met the requirements for 

reasonable notice and public hearing 

under section 110(a)(1) and (2) of the 

CAA. 

V. EPA’s Review and Technical 

Information 

EPA is evaluating the State’s 

submission in light of the statutory 

requirements of section 110(a)(2)(D)(i). 

In particular, section 110(a)(2)(D)(i)(I) 

requires that a SIP contain provisions 

adequate to prevent emissions from 

sources in that state from contributing 

significantly to nonattainment of the 

relevant NAAQS, or interfering with 

maintenance of the relevant NAAQS, in 

any other state. Section 

110(a)(2)(D)(i)(II) contains a similar 

requirement that a SIP contain 

provisions adequate to prevent 

emissions from sources in the state from 

interfering with measures required to 

prevent significant deterioration of air 

quality in any other state. 

To assist states with SIP submissions 

for the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS, EPA issued the 

2006 Guidance to make 

recommendations with respect to all 

four requirements of section 

110(a)(2)(D)(i). More recently, EPA has 

proposed a rule (‘‘Transport Rule 

Proposal’’) addressing the ‘‘significant 

contribution to nonattainment’’ and 

‘‘interfere with maintenance’’ 

requirements of 110(a)(2)(D)(i) for many 

states located in the eastern United 

States.3 Although Colorado is not among 

the states that EPA is considering for 

inclusion within the geographic region 

that may be covered by the final rule 

that will be based upon the Transport 

Rule Proposal, EPA is using a 

comparable approach to evaluate the 

emissions from sources in Colorado, as 

well as considering certain data 

developed to support the Transport Rule 

Proposal as discussed in more detail 

below, as part of evaluating the issue of 

interstate transport from Colorado for 

the first two requirements. For the third 

requirement, EPA is evaluating the SIP 

submission from the state in light of the 

recommendations contained in the 

Agency’s prior 2006 guidance document 

and in light of other subsequent actions 

as discussed below. 


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21838 Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 

4See, 63 FR 57356 (Oct. 27, 1998). EPA’s general 

approach to section 110(a)(2)(D) was upheld in 

Michigan v. EPA, 213 F.3d 663 (DC Cir. 2000), cert. 

denied, 532 U.S. 904 (2001). However, EPA’s 

approach to interference with maintenance in the 

NOX SIP Call was not explicitly reviewed by the 

court. See, North Carolina v. EPA, 531 F.3d 896, 

907–09 (DC Cir. 2008). 

5See, 70 FR 25162 (May 12, 2005). 

6 2006 Guidance at 5. 

7See, North Carolina v. EPA, 531 F.3d 896 (DC 

Cir. 2008). 

8 Id. at 909. 

9 Id. 10 75 FR 45210 (Aug. 2, 2010). 

A. Background on Section 

110(a)(2)(D)(i)(I) 

The first two elements of section 

110(a)(2)(D)(i) require states to have 

SIPs with adequate provisions to 

prevent any source or other type of 

emissions activity within the state from 

emitting air pollutants in amounts that 

will ‘‘contribute significantly’’ to 

nonattainment in other states or will 

‘‘interfere with maintenance’’ of the 

NAAQS by any other state. The terms 

‘‘contribute significantly’’ and ‘‘interfere 

with maintenance’’ are not defined in 

the statute. Therefore, EPA has 

interpreted these terms in past 

regulatory actions addressing interstate 

transport, such as the 1998 NOX SIP 

Call, in which EPA took action to 

eliminate emissions of NOX that 

significantly contributed to 

nonattainment, or interfered with 

maintenance of, the then applicable 

ozone NAAQS through interstate 

transport of NOX and the resulting 

ozone.4 The NOX SIP Call was the 

mechanism through which EPA 

evaluated whether or not the NOX

emissions from sources in certain states 

had such prohibited interstate impacts, 

and if they had such impacts, required 

the states to adopt substantive SIP 

revisions to eliminate the NOX

emissions, whether through 

participation in a regional cap and trade 

program or by other means. 

After promulgation of the 1997 8-hour 

ozone and PM2.5 NAAQS, EPA again 

recognized that regional transport was a 

serious concern throughout the eastern 

U.S. and therefore developed the 2005 

Clean Air Interstate Rule (CAIR) to 

address emissions of SO2 and NOX that 

exacerbate ambient ozone and PM2.5

levels in many downwind areas through 

interstate transport.5 Within CAIR, EPA 

likewise interpreted the terms 

‘‘contribute significantly’’ and ‘‘interfere 

with maintenance’’ as part of the 

evaluation of whether or not the 

emissions of sources in certain states 

had such impacts on areas that EPA 

determined would either be in violation 

of the NAAQS, or would be in jeopardy 

of violating the NAAQS, in a modeled 

future year unless actions were taken by 

upwind states to reduce SO2 and NOX

emissions. Through CAIR, EPA again 

required states that had such interstate 

impacts to adopt substantive SIP 

revisions to eliminate the SO2 and NOX

emissions, whether through 

participation in a regional cap and trade 

program or by other means. 

EPA’s 2006 Guidance addressed 

section 110(a)(2)(D)(i) requirements for 

the 1997 8-hour ozone and PM2.5

NAAQS. For those states subject to 

CAIR, EPA indicated that compliance 

with CAIR would meet the two 

requirements of section 110(a)(2)(D)(i)(I) 

for these NAAQS. For states not within 

the CAIR region, EPA recommended 

that states evaluate whether or not 

emissions from their sources would 

‘‘contribute significantly’’ or ‘‘interfere 

with maintenance’’ in other states, 

following the conceptual approach 

adopted by EPA in CAIR. After 

recommending various types of 

information that could be relevant for 

the technical analysis to support the SIP 

submission, such as the amount of 

emissions and meteorological 

conditions in the state, EPA further 

indicated that it would be appropriate 

for the state to assess impacts of its 

emissions on other states using 

considerations comparable to those used 

by EPA ‘‘in evaluating significant 

contribution to nonattainment in the 

CAIR.’’ 6 EPA did not make specific 

recommendations for how states should 

assess ‘‘interfere with maintenance’’ 

separately, and discussed the first two 

elements of section 110(a)(2)(D) together 

without explicitly differentiating 

between them. 

In 2008, however, the U.S. Court of 

Appeals for the D.C. Circuit found that 

CAIR and the related CAIR federal 

implementation plans were unlawful.7

Among other issues, the court held that 

EPA had not correctly addressed the 

second element of section 

110(a)(2)(D)(i)(I) in CAIR. The court 

noted that ‘‘EPA gave no independent 

significance to the ‘interfere with 

maintenance’ prong of section 

110(a)(2)(D)(i)(I) to separately identify 

upwind sources interfering with 

downwind maintenance.’’ 8 EPA’s 

approach, the court reasoned, would 

leave areas that are ‘‘barely meeting 

attainment’’ with ‘‘no recourse’’ to 

address upwind emissions sources.9

The court therefore concluded that a 

plain language reading of the statute 

requires EPA to give independent 

meaning to the interfere with 

maintenance requirement of section 

110(a)(2)(D) and that the approach used 

by EPA in CAIR failed to do so. 

In addition to affecting CAIR directly, 

the court’s decision in the North 

Carolina case indirectly affects EPA’s 

recommendations to states in the 2006 

Guidance with respect to the interfere 

with maintenance element of section 

110(a)(2)(D)(i)(I) because the agency’s 

guidance suggested that states use an 

approach comparable to that used by 

EPA in CAIR. States such as Colorado 

developed and adopted their Interstate 

Transport SIPs not long after the Court’s 

July 2008 decision, but well before EPA, 

in the Transport Rule Proposal (see 

below), was able to propose a new 

approach for the interference with 

maintenance element. Without 

recommendations from EPA, Colorado’s 

SIP may not have sufficiently 

differentiated between the significant 

contribution to nonattainment and 

interference with maintenance elements 

of the statute, and relied in a general 

way on the difference between 

monitored concentrations and the 1997 

PM2.5 NAAQS to evaluate the impacts of 

State emissions on maintenance of the 

NAAQS in other states. It is necessary 

to evaluate these state submissions for 

section 110(a)(2)(D)(i)(I) in such a way 

as to assure that the interfere with 

maintenance element of the statute is 

given independent meaning and is 

appropriately evaluated using the types 

of information that EPA recommended 

in the 2006 Guidance. To accomplish 

this, it is necessary to use an updated 

approach to this issue and to 

supplement the technical analysis 

provided by the State in order to 

evaluate the submissions with respect to 

both the significant contribution and the 

interfere with maintenance elements of 

section 110(a)(2)(D)(i)(I). 

EPA has recently proposed a new 

rule, the ‘‘Federal Implementation Plans 

to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone’’ 

(‘‘Transport Rule Proposal’’), in order to 

address interstate transport under 

section 110(a)(2)(D)(i)(I) and the judicial 

remand of CAIR.10 As part of the 

Transport Rule Proposal, EPA 

specifically reexamined the section 

110(a)(2)(D)(i)(I) requirement that 

emissions from sources in a state must 

not ‘‘interfere with maintenance’’ of the 

1997 8-hour ozone NAAQS and 1997 

PM2.5 NAAQS by other states. In the 

proposal, EPA developed an approach 

to identify areas that it predicts to be 

close to the level of the 1997 8-hour 

ozone NAAQS and 1997 PM2.5 NAAQS 

in the future, and therefore at risk to 

become or continue to be nonattainment 


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11The 2006 24-hour PM2.5 NAAQS, which is not 

the subject of this action, is met when the 3-year 

average of the annual 98th percentile PM2.5

concentrations is 35 μg/m3 or less. 

12Transport Rule Proposal, 75 FR at 45246–51. 

Additional information concerning these weighted 

averages is provided in the Western States Design 

Values Memo. 

13 2006 Guidance at 3. 

14 Id. at 5. 

15Transport Rule Proposal, 75 FR at 45227. 

for these NAAQS unless emissions from 

sources in other states are appropriately 

controlled. This approach starts by 

identifying those specific geographic 

areas for which further evaluation is 

appropriate and differentiating between 

areas where the concern is with 

interference with maintenance with 

those where the concern is with 

significant contribution to 

nonattainment. 

As described in more detail below, 

EPA’s Transport Rule analysis evaluates 

data from existing monitors over three 

overlapping three-year periods (i.e., 

2003–2005, 2004–2006, and 2005– 

2007), as well as air quality modeling 

data, in order to determine which areas 

are predicted to be violating the 1997 8- 

hour ozone and PM2.5 NAAQS in 2012, 

and which areas are predicted 

potentially to have difficulty with 

maintaining attainment as of that date. 

In essence, if an area’s projected data for 

2012 indicates that it would be violating 

the NAAQS based on the average of 

these three overlapping periods, then 

this monitor location is appropriate for 

comparison for purposes of the 

significant contribution to 

nonattainment element of section 

110(a)(2)(D)(i). If, however, an area’s 

projected data indicate that it would be 

violating the NAAQS based on the 

highest single three year period, but not 

over the average of the three periods, 

then this monitor location is appropriate 

for comparison for purposes of the 

interfere with maintenance element of 

the statute. 

For the PM2.5 NAAQS, EPA evaluated 

concentrations of both the annual PM2.5

NAAQS and the 24-hour PM2.5 NAAQS. 

The 1997 annual PM2.5 NAAQS is met 

when the 3-year average of the annual 

mean concentration is 15.0 micrograms 

per cubic meter (μg/m3) or less. The 3- 

year average annual mean concentration 

is computed at each site by averaging 

the daily Federal Reference Method 

(FRM) samples by quarter, averaging 

these quarterly averages to obtain an 

annual average, and then averaging the 

three annual averages to get the design 

value. The 1997 24-hour PM2.5 NAAQS 

is met when the 3-year average of the 

annual 98th percentiles is 65 μg/m3 or 

less.11 The 3-year average mean 98th 

percentile concentration is computed at 

each site by averaging the 3 individual 

annual 98th percentile values at each 

site. The 3-year average 98th percentile 

concentration is referred to as the 

24-hour average design value. 

To project future annual PM2.5 design 

values, EPA relied on monitoring data 

from the AQS combined with 

photochemical air quality modeling 

results. The Transport Rule Proposal 

generates the projected future PM2.5

values based on an average of three 

design value periods which include the 

years 2003–2007 (i.e., design values for 

2003–2005, 2004–2006, and 2005– 

2007). The average of the three design 

values creates a 5-year ‘‘weighted 

average’’ value. The 5-year weighted 

average values were then projected to 

the future years that were analyzed for 

the Transport Rule Proposal.12 EPA 

used the 5-year weighted average 

concentrations to project concentrations 

anticipated in 2012 to determine which 

monitoring sites are expected to be 

nonattainment in this future year. EPA 

also projected 2012 design values based 

on each of the three base design value 

year periods (i.e., 2003–2005, 2004– 

2006, and 2005–2007). The highest 

future projection is referred to as the 

‘‘maximum design value’’ and gives an 

indication of potential variability in 

future projections due to differences in 

actual meteorology and emissions from 

what was modeled. 

EPA then used these weighted 

averages and maximum design values to 

identify nonattainment and 

maintenance receptors. For the 1997 

annual PM2.5 NAAQS, EPA defined 

nonattainment receptors as those sites 

with an annual PM2.5 5-year weighted 

average concentration (average design 

value) above 15.05 μg/m3 in 2012. EPA 

then defined as maintenance receptors 

those sites that are projected to be 

attainment based on the 5-year weighted 

average design value, but that have a 

maximum design value (based on a 

projected single three year period) above 

15.05 μg/m3 in 2012. These maintenance 

sites are attaining the NAAQS based on 

the projected average design values, but 

EPA anticipates that there will be more 

difficulty in maintaining attainment of 

the NAAQS at these locations if there 

are adverse variations in meteorology or 

emissions. 

By this method, EPA has identified 

those areas—the nonattainment 

receptors—that are appropriate for 

evaluating whether emissions from 

sources in another state could 

significantly contribute to 

nonattainment. Likewise, EPA has 

identified those areas—the maintenance 

receptors—that are appropriate for 

evaluating whether the emissions from 

sources in another state could interfere 

with maintenance. EPA then uses a 

‘‘weight-of-evidence’’ analysis, separate 

from that used in the Transport Rule 

Proposal, to examine the potential 

impacts of emissions from upwind 

states on these nonattainment and 

maintenance receptors in downwind 

states. This proposed approach for 

identifying those areas that are 

predicted to have nonattainment or 

maintenance problems is appropriate to 

evaluate the section 110(a)(2)(D)(i) SIP 

submission of a state for the significant 

contribution and interfere with 

maintenance elements. EPA’s 2006 

Guidance did not provide this specific 

recommendation to states, but in light of 

the court’s decision on CAIR, EPA will 

itself follow this approach in acting 

upon the Colorado submission. 

As explained in the 2006 Guidance, 

section 110(a)(2)(D)(i) SIP submissions 

from all states do not necessarily need 

to follow precisely the same analytical 

approach as CAIR. In the 2006 

Guidance, EPA stated that: ‘‘EPA 

believes that the contents of the SIP 

submission required by section 

110(a)(2)(D)(i) may vary depending 

upon the facts and circumstances 

related to the specific NAAQS. In 

particular, the data and analytical tools 

available at the time the State develops 

and submits a SIP for a new or revised 

NAAQS necessarily affects the contents 

of the required submission.’’ 13 EPA also 

indicated in the 2006 Guidance that it 

did not anticipate that sources in states 

outside the geographic area covered by 

CAIR were significantly contributing to 

nonattainment, or interfering with 

maintenance, in other states.14 As noted 

in the Transport Rule Proposal, the 

more widespread and serious transport 

problems in the eastern United States 

are analytically distinct. For the 1997 

8-hour ozone NAAQS and the 1997 

PM2.5 NAAQS, nonattainment and 

maintenance problems in the western 

United States are relatively local in 

nature with only limited impacts from 

interstate transport.15 In the Transport 

Rule Proposal, EPA did not calculate 

interstate ozone or PM2.5 contributions 

to or from western states, including 

Colorado. 

Accordingly, section 110(a)(2)(D)(i) 

SIP submissions for states not evaluated 

in the Transport Rule Proposal may be 

evaluated using a weight-of-evidence 

approach that takes into account 

available relevant information, such as 


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16See ‘‘State of Colorado Implementation Plan to 

Meet the Requirements of the Clean Air Act Section 

110(a)(2)(d)(i)(I) and (II)—Regarding Interstate 

Transport for the 1997 8-Hour Ozone and PM2.5

NAAQS’’ at 46, available in the docket for this 

action. 

17Specifically, from CAIR, EPA considers only 

CAIR Proposal PM2.5 zero-out modeling analysis. 

From the Transport Rule Proposal, EPA considers: 

(a) Projected annual PM2.5 nonattainment receptor 

locations; (b) projected statewide SO2 and NOX

emission data for Colorado and three states east of 

Colorado (Kansas, Nebraska, and Oklahoma); and 

(c) projected downwind contributions to annual 

PM2.5 nonattainment receptors for Kansas, 

Nebraska, and Oklahoma. 

18Memorandum from Brian Timin, EPA Office of 

Air Quality Planning and Standards, 

‘‘Documentation of Future Year Ozone and Annual 

PM2.5 Design Values for Western States,’’ (Aug. 23, 

2010) (‘‘Western States Design Values Memo’’), 

available in the docket for this action. 

19Transport Rule Proposal, 75 FR at 45247–48 

(Table IV.C–7). 

20 Id. at 45249–51 (Table IV.C–9). 

21 ‘‘Technical Support Document for the Interstate 

Air Quality Rule Air Quality Modeling Analyses 

Appendix H, PM2.5 Contributions to Downwind 

Nonattainment Counties in 2010’’ (Jan. 30, 2004), 

available in the docket for this action. 

22Transport Rule Proposal, 75 FR at 45247–48 

(Table IV.C–7). 

23As technical support for the Transport Rule 

Proposal, all 48 contiguous states were modeled 

using a horizontal grid resolution of 36 x 36 km. 

States in the eastern U.S. modeled for contribution 

in the Transport Rule Proposal, including Kansas, 

Nebraska and Oklahoma, were also modeled using 

a finer horizontal grid resolution of 12 x 12 km. 

Contribution was determined using zero-out 

modeling. 

that recommended by EPA in the 2006 

Guidance for states outside the area 

affected by CAIR. Such information may 

include, but is not limited to, the 

amount of emissions in the state 

relevant to the NAAQS in question, the 

meteorological conditions in the area, 

the distance from the state to the nearest 

monitors in other states that are 

appropriate receptors, or such other 

information as may be probative to 

consider whether sources in the state 

may significantly contribute to 

nonattainment or interfere with 

maintenance of the 1997 PM2.5 NAAQS 

in other states. These submissions can 

rely on modeling when acceptable 

modeling technical analyses are 

available, but modeling is not 

necessarily required if other available 

information is sufficient to evaluate the 

presence or degree of interstate 

transport in a given situation. 

B. EPA’s Evaluation of Colorado’s 

Significant Contribution to 

Nonattainment 

To meet the requirements of section 

110(a)(2)(D)(i), the State of Colorado on 

March 31, 2010 made a submission to 

EPA addressing all four 110(a)(2)(D)(i) 

requirements for the 1997 PM2.5

NAAQS, and requirements (3) and (4) 

for the 1997 8-hour ozone NAAQS. The 

State used many of the methods 

recommended in the 2006 Guidance. 

This included consideration of 

information such as the geographic 

location of violating areas and 

meteorological data. The State’s 

submission also considered AQS 

monitoring data from Colorado and 

surrounding states. The State’s 

submission concluded that its own 

analysis ‘‘supports the assertion that 

Colorado does not contribute 

significantly to nonattainment in, or 

interfere with maintenance by, any 

other state with respect to the 1997 

PM2.5 NAAQS.’’ 16 In its submission, the 

State of Colorado further indicated that 

its current SIP is adequate to prevent 

such contribution and interference, and 

therefore no additional reductions 

would be necessary to prevent such 

contribution or interference. 

Colorado submitted its Interstate 

Transport SIP before the Transport Rule 

Proposal was completed and available. 

Therefore, the State could not have 

anticipated which nonattainment 

receptors EPA would consider most 

appropriate for the analysis of the 

impact of transport from Colorado’s 

sources on PM2.5 levels in other states. 

In this proposal, EPA therefore conducts 

additional analysis, using a weight-ofevidence approach separate from that 

used in the Transport Rule Proposal, to 

determine if emissions from Colorado 

sources significantly contribute to 

nonattainment of the 1997 PM2.5

NAAQS in any other state. This analysis 

considers: (a) Portions of EPA modeling 

and analysis conducted for the 2005 

CAIR and the 2010 Transport Rule 

Proposal;17 (b) projections of western 

nonattainment and maintenance 

receptors based on Transport Rule 

modeling; 18 and (c) geographical, 

topographical and meteorological 

factors relevant to the potential for 

pollution transport. None of these 

factors is by itself determinative of 

whether emissions from Colorado 

significantly contribute to 

nonattainment of the 1997 PM2.5

NAAQS in any other state. However, 

when considered together through the 

weight-of-evidence approach, the factors 

provide the basis for a reliable 

qualitative assessment of significant 

contribution. 

As described in detail above, in the 

Transport Rule Proposal, EPA projected 

future concentrations of PM2.5 to 

identify receptors that are expected to 

be violating the 1997 PM2.5 NAAQS in 

2012. For the 1997 annual PM2.5

NAAQS, the receptors EPA identified in 

the Transport Rule Proposal nearest to 

Colorado are located in Chicago, IL to 

the northeast, East St. Louis, IL to the 

east, and Birmingham, AL to the 

southeast.19 No monitoring sites within 

the geographic region addressed in the 

Transport Rule Proposal analysis were 

projected to be violating the 1997 

24-hour PM2.5 NAAQS.20

Available information indicates that 

emissions from Colorado are unlikely to 

contribute significantly to violations of 

the 1997 annual PM2.5 NAAQS in 

Chicago, IL, in East St. Louis, IL, or in 

Birmingham, AL. In our rulemaking 

process for CAIR, EPA modeled the 

contribution from individual states to 

counties in the eastern U.S. projected to 

be nonattainment for the 1997 annual 

PM2.5 NAAQS in 2010. According to 

this modeling, EPA projected annual 

PM2.5 contributions from Colorado 

sources to Cook County (Chicago), IL in 

2010 to be 0.03 μg/m3,21 which is well 

below the significance threshold of one 

percent of the NAAQS (0.15 μg/m3 for 

the 1997 annual PM2.5 NAAQS) used in 

the Transport Rule Proposal. 

Contributions from Colorado to annual 

PM2.5 emissions in Saint Clair County 

(East St. Louis), IL in 2010 were 

modeled to be 0.04 μg/m3. Finally, 

projected contributions from Colorado 

to annual PM2.5 emissions in Jefferson 

County (Birmingham), AL were 

modeled to be 0.03 μg/m3, also far below 

the significance threshold. The CAIR 

Proposal modeling used a 2010 future 

year assessment versus the 2012 year 

used in the Transport Rule Proposal, so 

it is not determinative of significant 

contribution from Colorado to these 

receptors, but it does provide an initial 

piece of evidence for EPA’s weight-ofevidence analysis. 

Certain portions of the Transport Rule 

Proposal modeling analysis provide 

more evidence that emissions of PM2.5

or its precursors from Colorado sources 

are not likely to contribute significantly 

to the nonattainment receptors 

(identified above) in Illinois and 

Alabama, or to any nonattainment 

receptors located in states further east.22

EPA did not model the impacts of 

emissions from Colorado sources on 

receptors in other states as part of the 

Transport Rule Proposal. However, 

Kansas, Nebraska and Oklahoma were 

among the states whose interstate 

contribution to annual PM2.5

nonattainment receptors in other states 

EPA did model for the Transport Rule 

Proposal.23 None of these three states 

(Kansas, Oklahoma and Nebraska) was 

projected to contribute more than 0.09 

μg/m3 (60% of the significance 

threshold) to any annual PM2.5

nonattainment receptor inside the 


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24Transport Rule Proposal, 75 FR at 45255 (Table 

IV.C–13). 

25See ‘‘Technical Support Document (TSD) for 

the Transport Rule Docket ID No. EPA–HQ–OAR– 

2009–0491. Emission Inventories’’ at 40–43 (June 

2010). Based on these projections, in 2012, Kansas 

will have higher NOX (∼24%) and SO2 (∼35%) 

emissions than Colorado, Oklahoma will have 

higher NOX (∼54%) and SO2 (∼147%) emissions 

than Colorado, and Nebraska will have lower NOX

(∼23%) and higher SO2 (∼94%) emissions than 

Colorado. 

26At the shortest possible distance for each 

measurement, the eastern Colorado border is 

approximately 320 miles west of the eastern 

Nebraska border, 370 miles west of the eastern 

Kansas border, and 410 miles west of the eastern 

Oklahoma border. It should be noted that the 

measured distance represents that of the straight 

(and shortest) path, which does not reflect the more 

circuitous paths typically followed by air parcels. 

27Supra n. 18. 

28 Id. at 5. 

29Western States Design Values Memo, Appendix 

A. 

30 Id. 

31 Data from EPA’s Air Quality System, which is 

EPA’s repository of ambient air quality data. (See 

http://www.epa.gov/ttn/airs/airsaqs/). 

32The AQS design value data shows 2009 design 

values in Bakersfield of roughly 70 μg/m3. 

Transport Rule Proposal domain in 

2012.24

For the Transport Rule Proposal, EPA 

projected total emissions for NOX and 

SO2, the two major precursors for PM2.5, 

for each of the 48 contiguous states in 

2012 and 2014. Colorado’s NOX and SO2

emissions were generally less than or 

similar to those in Kansas, Oklahoma 

and Nebraska.25 Under prevailing 

meteorological conditions, all three 

states are typically downwind from 

Colorado and upwind of the 

nonattainment receptors in the eastern 

U.S. Furthermore, emissions from 

Colorado must travel a greater distance 

(compared to these three states) to reach 

nonattainment receptors in the eastern 

U.S.26 Though distance by itself is not 

an obstacle to long range transport of 

PM2.5 and/or its precursors, and 

therefore by itself not determinative of 

significant contribution, greater distance 

provides greater opportunities for PM2.5

and precursor dispersion and/or 

removal from the atmosphere due to the 

effect of winds or chemical sink 

processes. In summary, EPA-projected 

PM2.5 precursor emissions from 

Colorado are lower or similar to those in 

Kansas, Nebraska or Oklahoma, and, 

based on geography and meteorology, 

emissions from these three states are 

more likely to reach nonattainment 

receptors in the eastern U.S. than are 

emissions from Colorado. Therefore, 

because Kansas, Nebraska and 

Oklahoma are each well below the 

significance threshold for contribution 

for the annual PM2.5 NAAQS in the 

Transport Rule Proposal, Colorado is 

likely to be even further below the 

significance threshold. This 

consideration, along with the 2004 CAIR 

Proposal modeling, when taken into 

account under the weight-of-evidence 

approach, shows that Colorado 

emissions are very unlikely to 

contribute significantly to violations of 

the 1997 annual PM2.5 standard at 

nonattainment receptors in Illinois, 

Alabama or any states further east. 

To assist in the evaluation of whether 

emissions from a state’s sources 

contribute significantly to 

nonattainment of the NAAQS in 

western states, EPA has also developed 

an analysis identifying monitors 

projected to be in nonattainment or at 

risk for maintenance of the NAAQS 

within a modeling domain that includes 

the western states. The analysis 

presented in the memo, ‘‘Documentation 

of Future Year Ozone and Annual PM2.5

Design Values for Western States,’’ 27

(‘‘Western State Design Values Memo’’) 

uses model results from the Transport 

Rule Proposal based on a continental 

U.S. 36 km grid, which is coarser than 

the final 12 km grid used in the 

Transport Rule for the eastern states. 

Though the 36 km grid is more coarse, 

EPA considers these modeling results 

sufficient to determine the appropriate 

nonattainment and maintenance 

receptors for analysis of interstate 

transport from Colorado to other 

western states. In identifying these 

receptors, the Western States Design 

Values Memo takes the same approach 

as the Transport Rule Proposal (5 year 

weighted average design values to 

project 2012 concentrations).28 For the 

1997 annual PM2.5 NAAQS, the 

nonattainment receptors identified in 

the Memo are all located in southern 

and central California, and the 

nonattainment receptor nearest to 

Colorado is located in San Bernardino, 

CA. 

In the Western States Design Values 

Memo, EPA did not calculate interstate 

PM2.5 contributions to or from western 

states. Therefore, EPA is using a weightof-evidence approach to determine if the 

emissions from Colorado sources 

contribute significantly to 

nonattainment for receptors in San 

Bernardino, CA, or other nonattainment 

receptors in California further west. 

Distance and topography, although not 

determinative by themselves, indicate 

that PM2.5 transport from Colorado to 

California is unlikely. The southwestern 

corner of Colorado is approximately 500 

miles from San Bernardino, making 

distance an obstacle for PM2.5 emissions 

transport. Moreover, the mountainous 

topography between Colorado’s sources 

and California’s nearest nonattainment 

receptors presents a large obstacle to 

PM2.5 transport. The prevailing wind 

orientation also provides evidence that 

Colorado’s emissions are unlikely to 

contribute significantly to 

nonattainment of the 1997 annual PM2.5

NAAQS in California. West of the 

Continental Divide the prevailing winds 

generally move from south-westerly, 

westerly, or north-westerly directions, 

as indicated by the typical movement of 

weather systems. 

Finally, projected design values 

presented in the Western States Design 

Values Memo provide some evidence 

that significant contribution from 

Colorado sources to annual PM2.5

nonattainment receptors in California is 

unlikely. The highest projected average 

PM2.5 design value for 2012 in Colorado 

is 9.36 μg/m3, or 64% of the 1997 

annual PM2.5 NAAQS.29 The highest 

projected average PM2.5 design value for 

2012 throughout Utah, Arizona and 

Nevada, the states between Colorado 

and California, is 12.7 μg/m3, or 84.6% 

of the NAAQS.30 Given the distance 

between Colorado sources and 

California nonattainment receptors, the 

intervening mountainous topography, 

the general west-to-east direction of 

transport winds in the western U.S., and 

the low projected PM2.5 design values in 

Colorado and intervening states, the 

weight-of-evidence makes it reasonable 

to conclude that Colorado sources are 

very unlikely to contribute significantly 

to nonattainment of the 1997 annual 

PM2.5 NAAQS in California. 

EPA did not project 2012 design 

values for the 1997 24-hour PM2.5

NAAQS in the Western States Design 

Values Memo. EPA therefore used the 

most recent AQS monitoring data to 

determine the monitor nearest to 

Colorado with a design value above the 

1997 24-hour PM2.5 NAAQS. Based on 

recent monitoring data (2009 design 

values), the highest 24-hour PM2.5

design value in 47 of the 48 states of the 

continental U.S. (not including 

California) is 50 μg/m3, which is well 

below the level of the 1997 24-hour 

PM2.5 NAAQS of 65 μg/m3.31 In 

California, the most recent (2009) 

24-hour PM2.5 design values show that 

the monitor nearest Colorado that might 

be violating the 1997 24-hour PM2.5

NAAQS is in Bakersfield.32 Transport of 

emissions from Colorado sources to 

PM2.5 receptors in Bakersfield is very 

unlikely, based on a similar weight-ofevidence analysis as for San Bernardino 

above. Bakersfield is roughly 570 miles 

from the nearest Colorado border. The 

topography between Colorado sources 

and California monitors is largely 


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33Areas east of the Rockies were modeled for the 

Transport Rule Proposal using a 12km grid. Areas 

west of the Rockies were modeled using a 36km 

grid. EPA did not model projections for the 24-hour 

PM2.5 NAAQS in the 36km grid modeling domain. 

For the states included in the eastern domain, see 

Table IV.C–13, Transport Rule Proposal, 75 FR at 

45255–56. 

34As technical support for the Transport Rule 

Proposal, all 48 contiguous states were modeled 

using a horizontal grid resolution of 36 x 36 km. 

States in the eastern U.S. modeled for contribution 

in the Transport Rule Proposal, including Kansas 

and Nebraska, were also modeled using a finer 

mountainous, presenting an obstacle to 

transport of emissions. Winds typically 

travel west to east in the western United 

States, making transport of emissions 

from Colorado to California unlikely. 

Under the weight-of-evidence approach, 

these factors combined lead EPA to the 

conclusion that significant contribution 

from Colorado sources to 24-hour PM2.5

nonattainment monitors in California is 

very unlikely. 

In conclusion, our analysis indicates 

that emissions of PM2.5 and/or its 

precursors from the sources in Colorado 

are unlikely to contribute significantly 

to nonattainment of the 1997 24-hour 

and annual PM2.5 NAAQS in any other 

state. 

C. EPA’s Evaluation of Colorado’s 

Interference With Maintenance 

As discussed above, following the 

2006 Guidance and consistent with 

EPA’s approach in CAIR, Colorado’s 

submission for section 110(a)(2)(D)(i) for 

the 1997 PM2.5 NAAQS did not evaluate 

whether emissions from the sources in 

the state interfere with maintenance of 

these NAAQS by other states, separately 

from evaluation of significant 

contribution to nonattainment in other 

states. Instead, the State presumed that 

if Colorado sources did not significantly 

contribute to violations of the NAAQS 

in other states, then no further specific 

evaluation was necessary for purposes 

of the interference with maintenance 

element of section 110(a)(2)(D)(i)(I). As 

explained above, however, CAIR was 

remanded to EPA, in part because the 

court found that EPA had failed to give 

independent meaning to the ‘‘interfere 

with maintenance’’ requirement, a 

concern that EPA has addressed in the 

Transport Rule Proposal. However, 

Colorado submitted its Interstate 

Transport SIP without the benefit of 

EPA’s new approach. Accordingly, we 

are evaluating the state’s submission 

using additional information to address 

the issue of interference with 

maintenance. 

In particular, EPA has developed an 

approach to identify those monitors for 

PM2.5 that are located in areas 

appropriate for consideration as 

receptors for evaluating the potential for 

inference with maintenance of the 1997 

PM2.5 NAAQS. As discussed in more 

detail above in section A, EPA has 

examined data from existing monitors 

for three overlapping three year periods 

to predict what areas may have 

difficultly attaining the NAAQS in 2012. 

By identifying these monitors, EPA can 

then use available analytical tools to 

determine whether emissions from 

sources in a state are having an impact 

on other states, and the degree of that 

impact. 

EPA did not model the contribution of 

emissions from Colorado sources 

(because Colorado and other western 

states are not fully inside the Transport 

Rule Proposal’s modeling domain) to 

PM2.5 maintenance receptors in other 

states. Therefore, EPA’s assessment of 

whether emissions from Colorado 

sources interfere with maintenance in 

other states relies on a weight-ofevidence approach that considers 

relevant information (such as 

identification of maintenance receptors 

and estimates of PM2.5 contributions) 

from the Transport Rule Proposal 

pertaining to states within its modeling 

domain, modeling analysis results from 

other studies, additional material such 

as geographical, topographical and 

meteorological factors, and back 

trajectory analyses. While conclusions 

reached for each of the factors 

considered in the following analysis are 

not themselves determinative, 

consideration of these factors together 

provides a reliable qualitative 

conclusion that emissions from 

Colorado are not likely to interfere with 

maintenance of the 1997 PM2.5 NAAQS 

at monitors in other states. 

It should be noted that the 

maintenance receptors analyzed are 

separate from the nonattainment 

receptors analyzed for purposes of 

significant contribution to 

nonattainment. EPA is evaluating 

impacts on these monitors specifically 

to address the independent interference 

with maintenance requirement of 

section 110(a)(2)(D)(i)(I). However, the 

maintenance receptors in Cook County, 

IL are geographically close to the 

nonattainment receptors in that same 

county, especially relative to the 

distance from Colorado. The following 

analysis therefore uses similar evidence 

to evaluate interference with 

maintenance as that used for the 

evaluation of the potential for 

significant contribution to 

nonattainment. EPA uses similar 

evidence only because these 

nonattainment and maintenance 

receptors are in similar locations, and 

recognizes that the two types of 

receptors are analytically distinct. 

In connection with the Transport Rule 

Proposal, EPA evaluated monitor data 

for states within the geographic scope of 

that rulemaking to project future 

concentrations of PM2.5 to identify 

receptors that are expected to have 

difficulty maintaining compliance with 

the NAAQS in 2012, referred to as 

maintenance receptors. For the 1997 

annual PM2.5 NAAQS, this analysis 

identified 16 maintenance receptors in 

its modeling analysis domain (i.e. states 

east of the Rocky Mountains). The 

maintenance receptors for the 1997 

PM2.5 NAAQS nearest to Colorado are 

two monitoring sites located in Cook 

County, Illinois in the Chicago area, and 

a monitoring site in Harris County, 

Texas, in the Houston-GalvestonBrazoria area. For the 1997 24-hour 

PM2.5 NAAQS, EPA did not evaluate 

maintenance receptors because there 

were no violations of these standards in 

the 37 states east of the Rockies.33

EPA analyzed contribution of annual 

PM2.5 emissions from Colorado sources 

to maintenance receptors in Cook 

County, Illinois using the same evidence 

as was used in Section B of this action 

to determine the potential impact of 

Colorado sources on the projected 

nonattainment receptor in the same 

county. As noted in that section, 

modeling conducted for the 2004 CAIR 

Proposal projected 2010 emissions from 

Colorado sources to contribute 0.03 μg/ 

m3 annual PM2.5 emissions to Cook 

County, just 20% of the significance 

threshold (0.15 μg/m3) for interference 

with maintenance used in the Transport 

Rule Proposal for the 1997 annual PM2.5

NAAQS. The CAIR Proposal modeling 

therefore provides the initial evidence— 

not determinative by itself—that 

emissions from Colorado sources are not 

likely to interfere with maintenance of 

the annual PM2.5 NAAQS in Cook 

County, IL. 

Portions of the modeling analysis and 

projected emission levels calculated for 

the Transport Rule Proposal provide 

further evidence for the conclusion that 

emissions from Colorado sources are 

unlikely to interfere with maintenance 

at the Cook County, IL receptors. As 

noted above, in the Transport Rule 

Proposal, EPA did not directly model 

the impacts of emissions from Colorado, 

but EPA did model the impacts of 

emissions from other states that are 

within the modeling domain for the 

Transport Rule Proposal. Kansas and 

Nebraska were among the states whose 

interstate contribution to annual PM2.5

maintenance receptors in other states 

EPA did model for the Transport Rule 

Proposal.34 Neither of these two states 


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horizontal grid resolution of 12 x 12 km. 

Contribution was determined using zero-out 

modeling. 

35Transport Rule Proposal, 75 FR at 47255 (Table 

IV.C–13). 

36See ‘‘Technical Support Document (TSD) for 

the Transport Rule Docket ID No. EPA–HQ–OAR– 

2009–0491. Emission Inventories’’ at 40–43 (June 

2010). Based on these projections, in 2012, Kansas 

will have higher NOX (∼24%) and SO2 (∼35%) 

emissions than Colorado, and Nebraska will have 

lower NOX (∼23%) and higher SO2 (∼94%) 

emissions than Colorado. 

37At the shortest possible distance for each 

measurement, the eastern Colorado border is 

approximately 320 miles west of the eastern 

Nebraska border and 370 miles west of the eastern 

Kansas border. 

38Transport Rule Proposal, 75 FR at 45255 (Table 

IV.C–13). 39See ‘‘Eight-Site SA Speciation Trends Final 

Report. Appendix G: Graphical Representation of 

the Source Apportionment Results for Houston, 

Texas,’’ (September 24, 2003), available in the 

docket for this action. 

40The Houston area is approximately 270 miles 

from the nearest Oklahoma border. The Houston 

area is approximately 630 miles from the nearest 

Colorado border. 

41See ‘‘Technical Support Document (TSD) for 

the Transport Rule Docket ID No. EPA–HQ–OAR– 

2009–0491. Emission Inventories’’ at 40–43 (June 

2010). Based on these projections, Oklahoma will 

have higher NOX (∼54%) and SO2 (∼147%) 

emissions than Colorado in 2012. 

42Western States Design Values Memo. 

43 Id. at 5. 

44Western States Design Values Memo, Appendix 

A. 

(Kansas or Nebraska) was projected to 

contribute more than 0.06 μg/m3,35 or 

40% of the significance threshold, to 

any maintenance receptor covered by 

the Transport Rule Proposal, which 

included the Cook County, IL monitors. 

For the Transport Rule Proposal, EPA 

projected total emissions for NOX and 

SO2, the two major precursors for PM2.5, 

for each of the 48 contiguous states in 

2012 and 2014. Nebraska and Kansas 

were each projected to have similar 

amounts of PM2.5 precursor emissions 

(NOX and SO2) to those of Colorado.36

Both states are also upwind of Cook 

County, IL, but are much closer to the 

Cook County maintenance receptors 

than is Colorado.37 Distance by itself is 

not an obstacle to long range transport 

of PM2.5 and/or its precursors, and is 

therefore not determinative of 

interference with maintenance. 

However, with increasing distance there 

are greater opportunities for PM2.5 or 

precursor dispersion and/or removal 

from the atmosphere due to the effect of 

winds or chemical sink processes. In 

summary, EPA-projected PM2.5

precursor emissions from Colorado are 

lower or similar to those in Kansas or 

Nebraska, and, based on geography and 

meteorology, emissions from each of 

these states are more likely to reach 

maintenance receptors in the eastern 

U.S. than are emissions from Colorado. 

Therefore, because Kansas and Nebraska 

are each well below the significance 

threshold for interference with 

maintenance for the annual PM2.5

NAAQS in the Transport Rule Proposal, 

Colorado is likely to be even further 

below the significance threshold. Based 

on the modeling analysis from the CAIR 

Proposal and the Transport Rule 

Proposal, the weight of evidence shows 

that it is very unlikely that emissions 

from Colorado sources would interfere 

with maintenance of the 1997 annual 

PM2.5 NAAQS at any monitor in Cook 

County, IL. 

EPA did not calculate the impact of 

Colorado’s emissions on the Houston 

area as part of the CAIR modeling 

analysis or the Transport Rule Proposal 

modeling analysis. EPA is therefore 

using other evidence in a weight-ofevidence assessment to determine if 

Colorado emissions interfere with 

maintenance of the 1997 annual PM2.5

NAAQS at the Harris County monitor. 

Our assessment considers modeling 

analysis from the Transport Rule 

Proposal, geographical and 

meteorological factors, and back 

trajectory analyses. 

Oklahoma was among the states EPA 

modeled for the Transport Rule 

Proposal to estimate their interstate 

contribution of annual PM2.5 emissions 

to nonattainment and maintenance 

monitors in other states. Oklahoma’s 

estimated maximum contribution to any 

maintenance monitor covered by the 

Transport Rule Proposal, which 

included the Harris County, TX 

monitor, was 0.05 μg/m3,38 or 33% of 

the significance threshold. 

Back trajectory analysis indicates that 

air parcel pathways that reach Houston 

will pass through Oklahoma more 

frequently than they will pass through 

Colorado.39 Because back trajectory 

analysis results map pathways of air 

parcels that may or may not transport 

pollutants, they cannot be considered 

determinative as to the transport of 

PM2.5 and its precursors, or of the 

absence of such transport, from 

Colorado sources. However, this back 

trajectory analysis provides evidence 

that PM2.5 emissions and PM2.5

precursor emissions from Oklahoma are 

more likely to reach Houston than 

Colorado emissions, based simply on 

wind patterns. In addition, emissions 

from Oklahoma sources travel a much 

shorter distance to the Houston area 

than emissions from Colorado sources.40

Furthermore, the emissions of SO2 and 

NOX, the two major PM2.5 precursors, 

are significantly lower in Colorado than 

in Oklahoma.41 The weight of evidence 

from these factors combined shows that 

emissions from Oklahoma sources are 

much more likely to reach the Houston 

area than are emissions from Colorado 

sources. Given that Oklahoma is far 

below the Transport Rule Proposal 

threshold for interference with 

maintenance at annual PM2.5

maintenance receptors, including the 

Harris County receptor, the weight of 

evidence shows it is highly unlikely that 

Colorado sources will interfere with 

maintenance of the 1997 annual PM2.5

NAAQS at the Harris County receptor. 

As discussed above in section B, EPA 

developed the Western States Design 

Values Memo to identify nonattainment 

and maintenance receptors within a 

modeling domain that includes the 

western states.42 The Western States 

Design Values Memo analysis uses the 

same general approach as the Transport 

Rule Proposal (5 year weighted average 

design values to project 2012 

concentrations) to project 

nonattainment and maintenance 

receptors.43 For the 1997 annual PM2.5

NAAQS, the two maintenance receptors 

identified in the Western States Design 

Values Memo are in Orange and Los 

Angeles counties in California. 

Distance and topography, while not 

determinative in of themselves, indicate 

that PM2.5 and precursor transport from 

Colorado to California is unlikely. The 

southwestern corner of the Colorado 

border is approximately 545 miles from 

Anaheim, the city with the nearest 

maintenance receptor for these NAAQS. 

The mountainous topography between 

Colorado sources and California 

maintenance receptors also presents a 

large obstacle to PM2.5 transport. Thus, 

geography and topography significantly 

reduce the likelihood of transport from 

Colorado to California’s maintenance 

receptors. 

Prevailing wind orientation also 

provides strong evidence that 

Colorado’s emissions are unlikely to 

interfere with maintenance of the 1997 

annual PM2.5 standards in California. 

West of the Continental Divide the 

prevailing winds generally move from 

south-westerly, westerly, or northwesterly directions, as indicated by the 

typical movement of weather systems. 

In addition, projected design values 

presented in the Western States Design 

Values Memo provide some evidence 

that interference with maintenance by 

emissions from Colorado sources to 

maintenance receptors for the 1997 

annual PM2.5 NAAQS in California is 

unlikely. The highest projected average 

PM2.5 design value for 2012 in Colorado 

is 9.36 μg/m3, or 64% of the 1997 

annual PM2.5 NAAQS.44 The highest 


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45 Id. 46 Data from EPA’s Air Quality System, which is 

EPA’s repository of ambient air quality data. (See 

http://www.epa.gov/ttn/airs/airsaqs/). 47The AQS design value data shows that in 2009 

design values at monitors in these locations ranged 

from 60 μg/m3 in Fresno and Turlock, to 70 μg/m3

in Bakersfield. 

48 2006 Guidance at 6. 

49 42 U.S.C. 7475(a)(3); 40 CFR 51.166(k). 

50 42 U.S.C. 7503(a)(1); 40 CFR 51.165(a)(3). 

51 70 FR 71612. 

52See 70 FR at 71675, 71698–99. 

53 40 CFR 51.165(a)(8). 

54 40 CFR 51.165(a)(1)(iv), (a)(1)(v), (a)(1)(x), 

(a)(8), (a)(9). 

projected average PM2.5 design value for 

2012 throughout Utah, Arizona and 

Nevada, the states between Colorado 

and California, is 12.7 μg/m3, or 84.6% 

of the NAAQS.45 Given the distance 

between Colorado sources and 

California maintenance receptors, the 

intervening mountainous topography, 

the general west-to-east direction of 

transport winds in the western U.S., and 

the low level of emissions from 

Colorado sources, EPA concludes that 

Colorado sources are not likely to 

interfere with maintenance of the 1997 

annual PM2.5 NAAQS in California. 

EPA did not project 2012 design 

values for the 1997 24-hour PM2.5

NAAQS in the Western States Design 

Values Memo. Based on recent 

monitoring data (2009 design values), 

the highest 24-hour PM2.5 design value 

in 47 of the 48 states of the continental 

U.S. (not including California) is 50 μg/ 

m3, which is well below the level of the 

1997 24-hour PM2.5 NAAQS of 65 μg/ 

m3.46 Therefore, outside of California, 

there are no areas that we would expect 

to have difficulty in maintaining the 

1997 24-hour PM2.5 NAAQS. In 

California, the most recent (2009) 24- 

hour PM2.5 design values show that the 

only monitors that might be at risk for 

maintenance of the 1997 24-hour PM2.5

NAAQS are in Turlock, Fresno, and 

Bakersfield, in the northern, central and 

southern sections of the San Joaquin 

Valley.47 Of these, the monitor located 

in Bakersfield is nearest Colorado. 

Transport of emissions from Colorado 

sources to potential PM2.5 maintenance 

receptors in Bakersfield, or any 

monitors in California further west, is 

very unlikely, based on a weight-ofevidence analysis. Bakersfield is 

roughly 570 miles from the nearest 

Colorado border. The topography 

between Colorado sources and 

California monitors is largely 

mountainous, presenting an obstacle to 

transport of emissions. Transport winds 

typically travel west to east in the 

western United States, making transport 

of emissions from Colorado to California 

unlikely. These factors combined lead 

EPA to the conclusion that interference 

with maintenance by Colorado sources 

at 1997 PM2.5 NAAQS maintenance 

receptors in California is very unlikely. 

In conclusion, our analysis of the 

weight of evidence indicates that 

emissions of PM2.5 and/or its precursors 

from the sources in Colorado are 

unlikely to interfere with maintenance 

of the 1997 24-hour and the annual 

PM2.5 NAAQS by any other state. 

D. EPA’s Evaluation of Colorado’s 

Prevention of Significant Deterioration 

(PSD) 

The third element of section 

110(a)(2)(D)(i) requires a SIP to contain 

adequate provisions prohibiting 

emissions that interfere with any other 

state’s required measures to prevent 

significant deterioration of its air quality 

(CAA section 110(a)(2)(D)(i)(II)). EPA’s 

2006 Guidance made recommendations 

to states for making SIP submissions to 

meet this requirement with respect to 

both the 1997 8-hour ozone and PM2.5

NAAQS. 

The 2006 Guidance states that the 

PSD requirement of section 

110(a)(2)(D)(i)(II) may be met by the 

State’s confirmation in a SIP submission 

that new major sources and major 

modifications in the State are subject to 

PSD and (if the State contains a 

nonattainment area for the relevant 

pollutant) Nonattainment New Source 

Review (NNSR) programs that 

implement the relevant standards.48 The 

Guidance explains that the requirements 

for PSD and NNSR programs include 

provisions that protect air quality in 

other states. Specifically, a PSD permit 

may not be issued unless the new or 

modified source demonstrates that 

emissions from the construction or 

operation of the facility will not cause 

or contribute to air pollution in any 

area—including areas in other States— 

that exceeds any NAAQS or any 

maximum allowable increase (i.e., PSD 

increment).49 An NNSR permit may not 

be issued unless the new or modified 

source shows it has obtained sufficient 

emissions reductions to offset increases 

in emissions of the pollutants for which 

an area is designated nonattainment, 

consistent with reasonable further 

progress toward attainment.50 Because 

the PSD and NNSR permitting programs 

currently applicable in each area require 

a demonstration that new or modified 

sources will not cause or contribute to 

air pollution in excess of the NAAQS in 

neighboring states or that sources in 

nonattainment areas procure offsets, 

States may satisfy the requirement of 

section 110(a)(2)(D)(i)(II) regarding other 

States’ required measures to prevent 

significant deterioration of air quality by 

submitting SIPs confirming that new 

major sources and major modifications 

in the State are subject to PSD and (if 

applicable) NNSR programs that 

implement the relevant standards. 

1. PSD and NNSR SIP Requirements for 

the 1997 8-Hour Ozone NAAQS 

On November 29, 2005, EPA 

published the Phase 2 implementation 

rule for the 1997 8-hour ozone NAAQS 

(‘‘Phase 2 Rule’’).51 For ozone 

nonattainment areas, the Phase 2 Rule 

requires revisions to States’ NNSR SIPs 

to implement the requirements of the 

CAA Amendments of 1990, as 

applicable based on each area’s 

classification for the ozone standard.52

Specifically, the Phase 2 Rule requires 

that NNSR SIPs apply all NNSR 

requirements that apply to major 

sources of volatile organic compounds 

(VOCs) to major NOX emissions sources, 

except where a NOX waiver applies 

under section 182(f) of the Act.53 In 

addition, NNSR SIPs must include 

provisions establishing the applicable 

major stationary source thresholds, 

significant emissions rates, and offset 

ratios for VOCs and NOX based on each 

area’s classification, as listed in Table 

1.54

TABLE 1—VOC AND NOX THRESHOLDS AND OFFSET RATIOS BY OZONE CLASSIFICATION

Classification Subpart 1 55 Marginal Moderate Serious Severe Extreme 

Major Source (tons per year (tpy)) ......................... 100 .............. 100 .............. 100 .............. 25 ................ 25 ................ 10. 

Significant Emissions Rate (tpy) ............................ 40 ................ 40 ................ 40 ................ 25 ................ 25 ................ 0. 

Offset Ratio 56 ......................................................... 1 to 1 ........... 1.1 to 1 ........ 1.15 to 1 ...... 1.2 to 1 ........ 1.3 to 1 ........ 1.5 to 1. 


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55Although the ‘‘subpart 1’’ category is not a 

classification, the general requirements of subpart 1, 

part D of title I of the CAA apply in all ozone 

nonattainment areas (to the extent they are not 

superseded by the more specific requirements of 

subpart 2), including those areas now referred to as 

‘‘former subpart 1 areas’’ under the DC Circuit Court 

of Appeals’ vacatur of certain elements of EPA’s 

Phase 1 ozone implementation rule. See S. Coast 

Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (DC 

Cir. 2006), reh’g denied, 489 F.3d 1245 (clarifying 

that the vacatur was limited to the issues on which 

the court granted the petitions for review). 

56For any nonattainment area classified as severe 

or extreme, if the approved plan requires all 

existing major sources in such an area to use BACT 

to control VOC and NOX, then the ratio must be at 

least 1.2 to 1. CAA sections 182(d)(2), (e)(1) and 

182(f). 

57See 70 FR at 71679, 71699–700; 40 CFR 

51.166(b)(1)(ii), (b)(2)(ii), (b)(23)(i). 

58 70 FR at 71683. 

59See 69 FR at 23951 (Apr. 30, 2004). 

60See S. Coast Air Quality Mgmt. Dist. v. EPA, 

472 F.3d 882 (DC Cir. 2006), reh’g denied, 489 F.3d 

1245. 

61 74 FR 2936, 2944 (Jan. 16, 2009). 

62 51 FR 31125. 

63 70 FR at 71698–700. 

64 75 FR 64864. 

65 Id. at 64887–88, 64898. 

For areas designated unclassifiable/ 

attainment for the 1997 ozone NAAQS, 

the Phase 2 Rule requires revisions to 

PSD SIPs to require explicit 

identification of NOx as an ozone 

precursor.57 States were required to 

submit the relevant PSD and NNSR SIP 

revisions to address the 1997 8-hour 

ozone NAAQS by June 15, 2007.58 In the 

2006 Guidance, issued before the 

deadline for States to submit the SIP 

revisions described above, EPA 

recommended States make a submission 

confirming they were on track to meet 

this deadline. At that point, Colorado 

had no areas designated nonattainment 

for ozone. However, on November 20, 

2007, the Denver Metropolitan Area/ 

North Front Range (‘‘DMA/NFR’’) area 

was designated nonattainment for the 

1997 8-hour ozone standard and, 

consistent with the approach taken in 

the Phase 1 ozone implementation 

rule,59 was made subject solely to the 

requirements of subpart 1 discussed 

above. Subsequently, the D.C. Circuit 

Court of Appeals vacated those elements 

of EPA’s Phase 1 ozone implementation 

rule that placed areas solely under the 

implementation requirements of subpart 

1.60 As a result, areas such as the DMA/ 

NFR are now referred to as ‘‘former 

subpart 1 areas.’’ EPA has proposed to 

classify the DMA/NFR under subpart 2 

of part D, title I of the Act as a 

‘‘marginal’’ area but has not yet finalized 

this rulemaking.61 In the interim, the 

DMA/NFR area is still subject to the 

subpart 1 requirements discussed above. 

In Colorado’s March 31, 2010 

submission, the State cites August 17, 

2006 revisions to Colorado Regulation 

No. 3 Part D to assert that they are on 

track to meet the requirements of the 

Phase 2 Rule within three years of the 

DMA/NFR November 20, 2007 

nonattainment designation. In this 

action, EPA proposes to approve 

portions of the August 17, 2006 

revisions, submitted to EPA August 1, 

2007, that implement the Phase 2 Rule. 

Specifically, we propose approval of the 

sections that adopt language to treat 

nitrogen oxides as an ozone precursor. 

Other portions of the August 17, 2006 

revisions are being acted upon 

separately. The sections that we propose 

to approve are set out in the table below. 

Provision location in 

Colorado’s 8/17/06 Reg 3 

Revision 

Description of provision—language adopted August 17, 2006 to conform to 

the Phase II Ozone Implementation Rule is underlined 

Corresponding provision in 

40 CFR 51.166 

D—II.A.22.a ........................ Significant Emissions Increase or Net Emissions Increase (at a major source) 

that is significant for VOCs or NOX is significant for ozone.

40 CFR 51.166(b)(2)(ii). 

D—II.A.24.d ........................ Major source that is major for VOCs or NOX is major for ozone ...................... 40 CFR 51.166(b)(1)(ii). 

D—II.A.38.c ........................ VOCs and NOX are precursors for ozone ......................................................... 40 CFR 51.166(b)(49)(i). 

D—II.A.42.a ........................ Significant rate of emissions for ozone means 40 tons per year of VOCs or 

NOX.

40 CFR 51.166(b)(23)(i). 

These revisions are contained with 

Colorado’s rules for its SIP-approved 

PSD program. Colorado also has a 

generic SIP-approved NNSR program 

that applies in any nonattainment area 

and that relies on the definitions 

provided in the PSD program, but 

separately imposes requirements that 

sources achieve the lowest achievable 

emission rate (‘‘LAER’’) and obtain 

offsets in a ratio greater than one to one. 

As a result of the structure of Colorado’s 

NNSR program, the revisions to the PSD 

program discussed above also apply to 

it. Under these revisions, the State’s SIPapproved NNSR program meets the 

currently applicable requirements of the 

Phase 2 Rule (prior to reclassification of 

the DMA/NFR nonattainment area) and 

satisfies the requirements for the PSD 

element of 110(a)(2)(D)(i) for the 1997 

8-hour ozone NAAQS. 

Colorado’s March 31, 2010 Interstate 

Transport SIP submission is consistent 

with the 2006 Guidance, when 

considered in conjunction with the 

Colorado PSD program revisions that 

EPA is also proposing to approve in this 

action. EPA’s proposed approval of 

Colorado’s Interstate Transport SIP for 

the purposes of meeting the third 

element of section 110(a)(2)(D)(i) is 

contingent upon the final approval of 

the PSD program revisions in the form 

specified in EPA’s proposed approval, 

referenced above. Colorado’s SIP 

regulations for its PSD program were 

federally-approved and made part of the 

SIP on September 2, 1986.62 EPA is 

proposing to approve, concurrent with 

this action, Colorado’s PSD rule 

revisions incorporating into the State’s 

regulations the provisions of EPA’s 

November 29, 2005 Phase 2 rule that 

treat NOX as a precursor for ozone for 

the 1997 8-hour ozone NAAQS.63

2. PSD SIP Requirements for the 1997 

PM2.5 NAAQS 

Colorado has no areas designated 

nonattainment for PM2.5 and 

correspondingly no NNSR program for 

PM2.5. EPA thus considers only whether 

Colorado’s SIP-approved PSD program 

satisfies the requirements of the PSD 

element of 110(a)(2)(D)(i) for the 1997 

PM2.5 NAAQS. First, the 2006 Guidance 

noted that EPA had not yet established 

PSD increments for PM2.5 and therefore, 

at that point it was difficult for states to 

determine if additional measures were 

needed to satisfy the requirements of the 

PSD element of section 110(a)(2)(D)(i). 

However, in a final rule published 

October 20, 2010, EPA established PM2.5

increments.64 EPA set an applicability 

date of October 20, 2011 for the new 

increments and required States with 

SIP-approved PSD programs to submit 

updates incorporating these increments 

by July 20, 2012.65 At this point, though, 

incorporation of the PM2.5 increments is 

not required to satisfy the PSD element 

of section 110(a)(2)(D)(i). 

The 2006 Guidance also discusses the 

use of PM10 as a surrogate for PM2.5 in 

PSD programs. As recommended in the 

2006 Guidance, Colorado’s SIP declares 


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66See 2006 Guidance at 7. 

67Letter from Paul Tourangeau, Director, 

Colorado APCD, Clarifying use of PM10 Surrogacy 

Policy (Jan 13, 2011), available in the docket for this 

action. 

68See 75 FR 6827, 6831–32 (Feb. 11, 2010). 

69 Id. at 6834. 

70 75 FR 82536 (Dec. 30, 2010). 

71 75 FR 31514. 

72EPA specified how to accomplish this in the 

PSD SIP Narrowing Rule, 75 FR at 82538, 82540. 

73 Id. 

that the State will follow EPA’s interim 

guidance on use of PM10 as a surrogate 

for PM2.5.66 In response to EPA’s request 

of December 1, 2010, the Colorado Air 

Pollution Control Division, in a January 

13, 2011 letter to the EPA Region 8 Air 

Program, has clarified an ambiguity in 

its interpretation of the interim 

guidance.67 The letter states that, until 

the guidance is ended or replaced, 

Colorado will apply it consistent with 

EPA’s interpretation of the federal case 

law relevant to the use of the PM10

Surrogate Policy.68 The State will also 

take into account the limits provided in 

the policy itself, such as the need to 

identify the technical difficulties that 

justify the application of the policy in 

each specific case.69 With that 

clarification, the Colorado Interstate 

Transport SIP satisfies the requirements 

of the third element of section 

110(a)(2)(D)(i) for the 1997 PM2.5

NAAQS. 

3. PSD SIP Requirements for 

Greenhouse Gases 

EPA notes a potential inconsistency 

between Colorado’s Interstate Transport 

SIP submission and EPA’s recently 

promulgated rule, ‘‘Limitation of 

Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans’’ (‘‘PSD SIP 

Narrowing Rule’’).70 In the PSD SIP 

Narrowing Rule, EPA withdrew its 

previous approval of Colorado’s PSD 

program to the extent that it applied 

PSD permitting to greenhouse gas (GHG) 

emissions increases from GHG-emitting 

sources below thresholds set in EPA’s 

June 3, 2010 ‘‘Prevention of Significant 

Deterioration and Title V Greenhouse 

Gas Tailoring Rule’’ (‘‘Tailoring Rule’’).71

EPA withdrew its approval on the basis 

that the State lacked sufficient resources 

to issue PSD permits to such sources at 

the statutory thresholds in effect in the 

previously-approved PSD program. 

After the PSD SIP Narrowing Rule, the 

portion of Colorado’s PSD SIP from 

which EPA withdrew its approval had 

the status of having been submitted to 

EPA but not yet acted upon. In 

Colorado’s March 31, 2010 submission, 

Colorado relied on its PSD program as 

approved at that date—which was 

before December 30, 2010, the effective 

date of the PSD SIP Narrowing Rule— 

to satisfy the ‘‘interference with PSD’’ 

requirements of 110(a)(2)(D)(i). Given 

EPA’s basis for the PSD SIP Narrowing 

Rule, EPA proposes approval of the 

Colorado Interstate Transport SIP 

submission in its entirety if either the 

State clarifies (or modifies) its 

submission to make clear that the State 

relies only on the portion of the PSD 

program that remains approved after the 

PSD SIP Narrowing Rule issued on 

December 30, 2010, and for which the 

State has sufficient resources to 

implement, or the State acts to 

withdraw from EPA consideration the 

remaining portion of its PSD program 

submission that would have applied 

PSD permitting to GHG sources below 

the Tailoring Rule thresholds.72 In the 

alternative, if Colorado does not take 

either action, EPA proposes to 

disapprove the Interstate Transport SIP 

to the extent it incorporates that portion 

of the previously-approved PSD 

program from which EPA withdrew its 

approval in the PSD SIP Narrowing 

Rule, which is the portion which would 

have applied PSD permitting 

requirements to GHG emissions 

increases from GHG-emitting sources 

below the Tailoring Rule thresholds. 

Such disapproval, if finalized, would 

not result in a need for Colorado to 

resubmit a SIP revision, sanctions, or a 

federal implementation plan (FIP).73

VI. Summary of Proposed Action 

In light of the data and the weight-ofevidence analysis presented above, EPA 

is proposing approval of portions of the 

Colorado Interstate Transport SIP 

addressing the requirements of CAA 

section 110(a)(2)(D)(i) for the 1997 PM2.5

and 8-hour ozone NAAQS. On January 

13, 2010, the Colorado AQCC adopted 

interstate transport SIP revisions 

addressing requirements (3) and (4) of 

CAA section 110(a)(2)(D)(i) for the 1997 

8-hour ozone NAAQS, and all four 

requirements of CAA section 

110(a)(2)(D)(i) for the 1997 PM2.5

NAAQS. Colorado submitted these 

revisions to EPA on March 31, 2010. 

Specifically, EPA is proposing to 

approve the language and 

demonstration of the March 31, 2010 

submission that addresses three 

requirements of section 110(a)(2)(D)(i) 

with respect to the 1997 PM2.5 NAAQS: 

(1) Prohibition of significant 

contribution to nonattainment of the 

NAAQS in any other state, (2) 

prohibition of interference with 

maintenance of the NAAQS by any 

other state, and (3) prohibition of 

interference with other states’ required 

measures to prevent significant 

deterioration of air quality. EPA is also 

proposing to approve the language and 

demonstration that addresses 

requirement (3) of section 

110(a)(2)(D)(i)—prohibition of 

interference with other states’ required 

measures to prevent significant 

deterioration of air quality—with 

respect to the 1997 8-hour ozone 

NAAQS. 

VII. Statutory and Executive Order 

Review 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 21847 

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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile Organic 

Compounds. 

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

Dated: April 12, 2011. 

Carol Rushin, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2011–9451 Filed 4–18–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 212, and 252 

RIN 0750–AH02 

Defense Federal Acquisition 

Regulation Supplement (DFARS), 

Alternative Line-Item Structure (DFARS 

Case 2010–D017) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

establish a standard procedure for 

offerors to propose an alternative lineitem structure that reflects the offeror’s 

business practices for selling and billing 

commercial items and initial 

provisioning spares for weapon systems. 

A new solicitation provision is provided 

to facilitate offerors’ ability to propose 

such changes to the solicitation 

structure in their offer. 

DATES: Comments on this proposed rule 

should be submitted in writing to the 

address shown below on or before June 

20, 2011, to be considered in the 

formation of the final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2010–D017, 

using any of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘DFARS Case 2010–D017’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2010– 

D017.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2010– 

D017’’ on your attached document. 

Follow the instructions for submitting 

comments. 

• E-mail: dfars@osd.mil. Include 

DFARS Case 2010–D017 in the subject 

line of the message. 

• Fax: 703–602–0350. 

• Mail: Defense Acquisition 

Regulations System, Attn: Mr. Julian 

Thrash, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check http://www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian Thrash, 703–602–0310. 

I. Background 

DoD is proposing to add new DFARS 

language that provides offerors the 

opportunity to propose an alternative 

line-item structure in solicitations for 

commercial items and initial 

provisioning spares. This proposed 

DFARS change will allow offerors to 

provide information about their 

products that may not have been known 

to the Government prior to issuance of 

the solicitation. 

DoD identified the need to propose an 

alternative line-item structure during 

process reviews and working group 

sessions that assessed destinationacceptance procedures. The process 

reviews performed by DoD cross-service 

working groups, which were chartered 

by the Defense Finance and Accounting 

System, examined issues causing 

problems in the receipt and acceptance 

phase for contract deliverables and 

payments. 

This group determined that the level 

of detail in the requirements description 

and line-item structure is not always 

sufficient for delivery, payment, and 

subsequent inventory management of 

the items delivered. For example, the 

contract line item may be for a desktop 

computer, but the actual items 

delivered, invoiced, and inventoried 

may reflect a separate monitor, 

keyboard, and central processing unit. 

The resultant misalignment of 

transaction detail (i.e., contract line 

item, invoiced unit, delivery and 

inventory unit) is the cause of failures 

in the electronic processes of the DoD’s 

business enterprise requiring manual 

intervention with potential delays in 

contractor payment. 

To address this recurring problem, 

this rule is establishing and 

standardizing a process to enable 

offerors to propose changes in their offer 

to the solicitation’s line-item structure. 

Establishing such a process is a first step 

towards managing variation in these 

transactions by eliminating or reducing 

manual intervention. 

II. Proposed DFARS Changes 

DoD is proposing to revise the DFARS 

by adding— 

—Paragraph (g) at 204.7103–1, Criteria 

for establishing; 

—A provision prescription at 

204.7109(b); 

—Reference to the new provision at 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items; and 

—A provision at 252.204–70XX, 

Alternative Line-Item Structure. 

Although DoD believes the authority 

to use an alternative line-item structure 

currently exists within the Federal 

Acquisition Regulation (FAR), offerors 

may not be aware of, or be reluctant to 

use, this authority to propose an 

alternative line-item structure. For 

example— 

—FAR 15.203(a)(2) permits the 

contracting officer to authorize 

offerors to propose alternative terms, 

conditions, and contract line-item 

number structure. 

—FAR 12.213, Other Commercial 

Practices, encourages the contracting 

officer to consider other commercial 

practices for incorporation into the 

solicitation and contract, if 

appropriate. FAR 52.212–1(e), 

Instructions to Offerors—Commercial 

Items, Multiple Offers, encourages 

offerors to submit multiple offers 

presenting alternative terms and 

conditions for commercial items for 

satisfying the requirements of the 

solicitation. 

Notwithstanding the above, offerors 

may not understand that they have this 

latitude as they are not proposing 

alternate line-item structure to reflect 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1