Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations 71029 

Name of nonregulatory SIP provision 

Applicable 

geographic or 

non-attainment 

area 

State submittal 

date/ 

adopted date 

EPA approval date 

and citation 3 Explanations 

*******

(22) Section 7.8, Interstate Transport of 

Air Pollution (only portion of 7.8.1.B.).

Statewide .............. Submitted: 4/09/ 

09; Adopted: 4/ 

01/09.

11/22/10 [insert FR 

page number 

where document 

begins].

Includes portions of Subsection 

7.8.1.B., ‘‘Nonattainment and Maintenance Area Impact,’’ that specifically address the ‘‘interference with 

maintenance’’ requirement of CAA 

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

3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular pro 

[FR Doc. 2010–29244 Filed 11–19–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–1035; FRL–9229–2] 

Approval and Promulgation of State 

Implementation Plans; State of 

Colorado; Interstate Transport of 

Pollution Revisions for the 1997 8-Hour 

Ozone NAAQS: ‘‘Interference With 

Maintenance’’ Requirement 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

State Implementation Plan (SIP) 

revisions submitted by the State of 

Colorado on June 18, 2009. Specifically, 

EPA is approving the portions of the 

‘‘State of Colorado Implementation Plan 

to Meet the Requirements of Clean Air 

Act (CAA) Section 110(a)(2)(D)(i)(I)— 

Interstate Transport Regarding the 1997 

8-Hour Ozone Standard’’ addressing the 

‘‘interference with maintenance’’ 

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

for the 1997 8-hour ozone National 

Ambient Air Quality Standards 

(NAAQS) by any other state. The 

‘‘interference with maintenance’’ 

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

prohibits a state’s emissions from 

interfering with maintenance of the 

NAAQS by any other state. This action 

is being taken under section 110 of the 

CAA. 

DATES: Effective Date: This final rule is 

effective December 22, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2007–1035. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov, or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Domenico Mastrangelo, Air Program, 

U.S. Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6416, 

mastrangelo.domenico@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

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

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

(iv) The words Colorado and State 

mean the State of Colorado. 

Table of Contents 

I . Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Review 

I. Background 

On July 18, 1997, EPA promulgated 

new standards for 8-hour ozone and fine 

particulate matter (PM2.5). This action is 

being taken in response to the July 18, 

1997 revision to the 8-hour ozone 

NAAQS. This action does not address 

the requirements for the 1997 PM2.5

NAAQS, the 2006 PM2.5 NAAQS, or the 

2008 8-hour ozone NAAQS; those 

standards will be addressed in a later 

action. 

Section 110(a)(1) of the CAA requires 

states to submit SIPs to address a new 

or revised NAAQS within 3 years after 

promulgation of such standards, or 

within such shorter period as EPA may 

prescribe. Section 110(a)(2) lists the 

elements that such new SIPs must 

address, as applicable, including section 

110(a)(2)(D)(i) which pertains to 

interstate transport of certain emissions. 

Section 110(a)(2)(D)(i) of the CAA 

requires that a state’s SIP must contain 

adequate provisions prohibiting any 

source or other type of emissions 

activity within the state from emitting 

any air pollutant in amounts which will: 

(1) Contribute significantly to 

nonattainment of the NAAQS in any 

other state; (2) interfere with 

maintenance of the NAAQS by any 

other state; (3) interfere with any other 

state’s required measures to prevent 

significant deterioration of air quality; 

or (4) interfere with any other state’s 

required measures to protect visibility. 

On June 18, 2009 the State of 

Colorado submitted a SIP addressing the 

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

(1) and (2), noted above, for the 1997 

8-hour ozone NAAQS. The state based 

its submittal on EPA’s 2006 Guidance 

discussed below. As noted earlier, in 

this rulemaking EPA is addressing the 

requirement that pertains to preventing 

sources in the State from emitting 

pollutants in amounts which will 

interfere with the maintenance of the 

1997 8-hour ozone NAAQS by any other 

state. 

On August 15, 2006, EPA issued its 

‘‘Guidance for State Implementation 

Plan (SIP) Submission to Meet Current 

Outstanding Obligations Under Section 

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

PM2.5 National Ambient Air Quality 

Standards’’ (2006 Guidance) for SIP 

submissions that states should use to 


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71030 Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations 

1Similarly, in our response to the same WG 

comments in our action finalizing the proposed rule 

action of September 17, 2010 for the North Dakota 

‘‘interference with maintenance’’ requirement, we 

address WG’s comments as if they were directed to 

the proposed rule action for North Dakota (75 FR 

56928). 

2As EPA noted in the proposal, the term 

‘‘interfere with maintenance’’ is not defined in the 

CAA. As such, the term is ambiguous and EPA’s 

interpretation of that term in this action is both 

reasonable and consistent with the text and the 

overall goals of the CAA. By this approach, EPA is 

giving independent meaning to the term and 

supporting that interpretation with technical 

analysis to apply it to the facts in this action. 

3 531 F.3d at 910. 

4 Id. 

5 Id. at 910–11. 

6The process that defines the monitors at risk for 

maintenance was summarized in the September 17, 

2010 proposed rule action for the Colorado 

Interstate Transport SIP (75 FR 56938). 

address the requirements of section 

110(a)(2)(D)(i). EPA developed this 

guidance to make recommendations to 

states for making submissions to meet 

the requirements of section 

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

NAAQS and 1997 PM2.5 NAAQS. 

In a Federal Register action dated 

September 17, 2010, EPA proposed 

approval of the Colorado Interstate 

Transport SIP portions addressing the 

interference with maintenance 

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

EPA concluded in its proposed action 

that the various factual and technical 

considerations supported a 

determination that emissions from 

Colorado do not interfere with 

maintenance by any states with areas at 

risk for maintenance of the 1997 8-hour 

ozone NAAQS. EPA did not receive 

comments that persuade the Agency 

that there is such interference, and thus 

in today’s final action EPA is making a 

final regulatory determination that 

Colorado emissions sources do not 

interfere with maintenance of the 1997 

8-hour ozone NAAQS in any other state. 

II. Response to Comments 

EPA received one letter dated October 

18, 2010 with comments from the 

WildEarth Guardians (WG) 

environmental organization. The WG 

letter includes three separate comments 

under sections A., B., and C., and is 

accessible online at regulations.gov 

under Docket No. EPA–R08–OAR– 

2007–1035. Later in this section EPA 

responds to the significant comments 

made by the commenter. WG clarifies in 

its introductory remarks on the letter’s 

first page that its comments are directed 

to both the Colorado and the North 

Dakota Federal Register proposed rule 

actions of September 17, 2010 (75 FR 

56935 and 75 FR 56928) because ‘‘EPA’s 

rationale for approving both SIPs is the 

same.’’ EPA will consider WG’s 

comments, as appropriate, equally 

applicable to the referenced EPA 

proposed rule actions. For clarity, 

however, in this action EPA will 

address WG’s comments as if they were 

directed only to the proposed rule 

action for Colorado (75 FR 56935).1

Comment No. 1—In its comments 

under section A., ‘‘Maintenance is 

Inappropriately Defined,’’ WG states that 

EPA’s definition of interference with 

maintenance, and by implication the 

identification of maintenance receptors, 

appeared to be ‘‘inappropriately 

conflated with the definition of 

nonattainment.’’ It argues that the 

definition of maintenance appeared to 

be tied to nonattainment, asserting that 

‘‘unless an area has violated or is in 

violation of the NAAQS, the agency will 

not consider whether * * * Colorado 

[is] interfering with that area’s ability to 

maintain compliance with the NAAQS.’’ 

For this reason, WG argues EPA did not 

give independent meaning to the 

interfere with maintenance prong of 

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

EPA Response—The methodology 

EPA used to identify maintenance 

receptors gives independent meaning to 

the term ‘‘interfere with maintenance’’ 

and establishes a process to identify 

projected attainment receptors that, 

based on the historic variability of air 

quality at that site (which may be due 

to variability in emissions and/or 

meteorology), may have difficulty 

maintaining the standard. As explained 

in greater detail below, the commenter’s 

objection to EPA’s approach appears to 

be based on the misconception that the 

methodology EPA used to identify 

maintenance sites was dependent on 

base year NAAQS violations. 

The definition of maintenance used 

by EPA is consistent with the direction 

given to EPA by the Court of Appeals for 

the D.C. Circuit in North Carolina v. 

EPA, 531 F.3d 896 (D.C. Cir. 2008).2 In 

that case, the court analyzed the 

definition of ‘‘interfere with 

maintenance’’ used in the Clean Air 

Interstate Rule (CAIR) rule. The court 

found that the definition EPA used 

‘‘gave no independent significance to the 

‘interfere with maintenance’ prong of 

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

identify upwind sources interfering 

with downwind maintenance.’’ 3 It 

further reasoned that ‘‘[u]nder EPA’s 

reading of the statute, a state can never 

‘interfere with maintenance’ unless EPA 

determines that at one point it 

‘contribute[d] significantly to 

nonattainment’.’’ 4 Based on this 

analysis, the court found the definition 

unlawful, holding that ‘‘[b]ecause EPA 

describes CAIR as a complete remedy to 

a section 110(a)(2)(D)(i)(I) violation and 

does not give independent significance 

to the ‘interfere with maintenance’ 

language to identify upwind states that 

interfere with downwind maintenance, 

it unlawfully nullifies that aspect of the 

statute and provides no protection for 

downwind areas that, despite EPA’s 

predictions, still find themselves 

struggling to meet NAAQS due to 

upwind interference in 2010.’’ 5

The approach used by EPA in its 

September 17, 2010 proposal to assess 

whether emissions from sources in 

Colorado interfere with maintenance of 

the NAAQS in any other state takes into 

account the flaws identified by the 

court, by giving independent meaning to 

the section 110(a)(2)(D)(i) ‘‘interference 

with maintenance’’ requirement. Our 

September 17, 2010 proposed action 

relies on a process established by EPA’s 

August 2, 2010 Transport Rule Proposal 

to identify any specific receptors in 

downwind states that, even though they 

are projected to be in attainment and 

thus would not be nonattainment 

receptors, may have difficulty 

maintaining the NAAQS in question. 

These receptors are referred to as 

maintenance receptors. 

The commenter’s statement that 

EPA’s designation of maintenance 

receptors is ‘‘firmly hitched to a finding 

that the maximum design value based 

on a single three-year period between 

2003 and 2007 is in excess of the 

NAAQS’’ appears to be based on a 

misunderstanding of the methodology 

used by EPA to identify maintenance 

receptors. EPA’s methodology did not, 

as the commenter appears to assume, 

require a site to have a design value 

above the NAAQS for one of the three 

base periods (2003–2005, 2004–2006, 

2005–2007) to be considered a 

maintenance site. The methodology is 

based on an analysis of the future year 

average and future year maximum 

design values.6 It does not depend on 

the whether the base year design values 

exceed the NAAQS. The Transport Rule 

Proposal explained that EPA used the 

average concentrations of the three 

design values for the three base periods 

noted above to determine the 2012 

average design value at monitoring sites. 

Monitoring sites with projected average 

design values above the NAAQS would 

be in nonattainment, while those with 

projected average design values below 

the NAAQS would be in attainment in 

2012. To identify among the attainment 

monitoring sites those at risk for 

maintenance of the NAAQS, EPA also 

projected to 2012 each of the three 

design values for the base periods noted 


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7 75 FR 45210, at 45246. 

8 Id. at 45246. 

9This comment also argues about the Denver 

Metropolitan Area/North Front Range (DMA/NFR) 

area as at risk for maintenance for the 1997 8-hour 

ozone NAAQS. We are examining this part of the 

comment within EPA’s final rulemaking action for 

the North Dakota Interstate Transport SIP, since the 

issue of the DMA/NFR area as at risk for 

maintenance does not affect our September 17, 2010 

proposed rule assessment of whether Colorado’s 

emissions interfere with maintenance of the 

NAAQS by any other states. 

10 75 FR 45210. 

11A memorandum in the docket for this action 

provides the information EPA used in order to 

identify monitors that are receptors for evaluation 

of interference with maintenance for certain states 

in the western United States. See, Memorandum 

from Brian Timin of EPA’s Office of Air Quality 

Planning and Standards, Air Quality Modeling 

Group entitled ‘‘Documentation of Future Year 

Ozone and Annual PM2.5 Design Values for Western 

States,’’ under ‘‘Memorandum to Docket EPA–R08– 

OAR–2007–1035,’’ EPA, August 23, 2010. 

12 Design Values for Western States, EPA (August 

23, 2010). 

above. If the maximum of the three was 

above the NAAQS, then monitoring site 

was identified as at risk for maintenance 

of the NAAQS, or as a ‘‘maintenance 

receptor.’’ 7 The maximum design value 

referenced in this sentence is the 

maximum future design value 

calculated using each of the three base 

design value periods separately. 

Whether or not one of the three base 

period design values exceeded the 

NAAQS was not a factor considered in 

determining whether a site was a 

maintenance receptor. 

To better understand this concept, it 

is useful to compare the methodologies 

used in the Transport Rule proposal 

(75 FR 5210, Aug. 2, 2010) to identify 

nonattainment and maintenance 

receptors. In the Transport Rule 

proposal, base period (2003–2007) 

ambient data were projected to the 

future (using model outputs) to identify 

both nonattainment and maintenance 

receptors. In both cases, receptors were 

identified by projected future design 

values; however, because more 

conservative data were used for the 

maintenance analysis, this analysis 

could identify receptors that were 

projected by the nonattainment analysis 

to be in attainment; yet might have 

difficulty attaining the standard due to 

historic variability of air quality at that 

site. To identify future nonattainment 

sites we calculated the future year 

design values by projecting the 5-year 

weighted average design value for each 

site. Only if this future year design 

value exceeded the NAAQS was the site 

considered to be a nonattainment 

receptor. However, to identify projected 

maintenance sites we used a different 

methodology that took into account 

historic variability in air quality at each 

receptor. For this approach we 

calculated the maximum future year 

design value by processing each of the 

three base design value periods (2003– 

2005, 2004–2006, and 2005–2007) 

separately. The highest of the three 

future values is the maximum design 

value, which is used to determine 

maintenance receptors. 

In this way, EPA’s analysis identifies 

those areas that are projected to be 

attainment, but may have difficulty 

maintaining attainment of the standard, 

for example in a year with particularly 

severe meteorology (weather that is 

conducive to ozone and/or particulate 

formation). In other words, this analysis 

does exactly what the DC Circuit 

directed EPA to do in North Carolina. It 

gives independent meaning to the 

‘‘interfere with maintenance’’ prong of 

110(a)(2)(D)(i) and provides protection 

to any areas that, although they are 

predicted to attain the standard (and 

thus upwind sources could not be found 

to significantly contribute to 

nonattainment in that area) may have 

difficulty maintaining the standard.8

EPA used this same approach to 

identify any potential maintenance 

receptors for purposes of evaluating 

Colorado’s SIP submission. For the 

reasons explained above, this approach 

is both reasonable and consistent with 

the direction given to EPA by the DC 

Circuit in North Carolina. 

Comment No. 2—In its comments 

under section B., ‘‘Even Under EPA’s 

Definition of Maintenance, Maintenance 

Receptors are not Consistently Defined,’’ 

WG argues that EPA’s approach to 

evaluating interference with 

maintenance is inappropriate because it 

did not take into account current high 

ambient concentrations in certain 

places. The commenter thus contends 

that EPA’s identification of maintenance 

receptors is inconsistently applied. The 

commenter identifies several areas that 

it believes should have been considered 

as at risk for maintenance for the 1997 

8-hour ozone NAAQS. WG specifies the 

Wasatch Front and Uintah County in 

Utah, the Phoenix area in Arizona, 

portions of western Wyoming, and San 

Juan County in New Mexico, as areas 

appropriate for an assessment of 

whether emissions from Colorado 

interfere with their difficulty (in the 

commenter’s view) in maintaining the 

1997 8-hour ozone NAAQS.9

EPA Response—EPA shares the 

commenter’s concern about areas 

presently affected by elevated ozone 

concentrations, but disagrees with the 

commenter’s assertion that the 

September 17, 2010, proposed rule 

action for the Colorado SIP ‘‘overlooked 

areas impacted by Colorado that are 

projected to barely attain the 1997 ozone 

NAAQS.’’ First, the underlying issue 

raised in this comment is substantively 

the same as that raised in comment no. 

3 below, which argues that EPA’s 

analysis is faulty because it identifies 

receptors likely to have difficulty 

maintaining the standard in 2012 and 

not at the present time. EPA’s response 

to comment no. 3 below illustrates how 

its approach, based on modeling 

analyses that identify receptors at risk 

for maintenance in the year 2012, is 

appropriate and consistent with the D.C. 

Circuit decision in North Carolina v. 

EPA. 

Second, EPA has developed in the 

Transport Rule Proposal of August 2, 

2010 an approach that necessarily 

requires years of data, and an analysis 

that evaluates where there may be 

difficulties with maintaining attainment 

at a specific point in time (in this 

instance 2012) to evaluate whether there 

is interference with maintenance to 

meet the statutory requirement of 

section 110(a)(2)(D)(i).10 To assist in the 

evaluation of whether states’ emissions 

interfere with maintenance of the 

NAAQS in western states, EPA has 

developed, independent of the 

Transport Rule Proposal, a modeling 

analysis using an approach similar to 

the Transport Rule Proposal for the 

identification of monitors at risk for 

maintenance of the NAAQS within a 

modeling domain that includes the 

western states. The analysis is presented 

in the August 23, 2010 memo, 

‘‘Documentation of Future Year Ozone 

and Annual PM2.5 Design Values for 

Western States’’ (Western States Design 

Values).11 Because none of the areas of 

concern to the commenter was 

identified by EPA as a maintenance 

receptor through that analysis,12 it was 

appropriate for the September 17, 2010 

proposed rule not to assess whether 

emissions from Colorado sources impact 

the areas noted by the commenter, such 

as Uintah County and Wasatch Front in 

Utah, the Phoenix area in Arizona, 

portions of western Wyoming, and San 

Juan County in New Mexico. In short, 

based on EPA’s analysis, none of the 

areas named by the commenter is 

appropriate for consideration as a 

maintenance receptor at this time. 

EPA also notes that, except for Uintah 

County, the commenter provides no 

specific facts—such as the location of 

monitoring receptors, ozone 

concentrations, or time span during 

which high ozone concentrations were 

monitored—to support its arguments 

concerning these areas. Thus, WG has 

not identified any reasons that EPA 


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71032 Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations 

13See above, in EPA Response to Comment No. 

1, the methodology used for the identification of 

maintenance monitors in the August 2, 2010 

Transport Rule Proposal, and the August 23, 2010 

Western States Design Values memo. The monitor 

in Ouray is identified as Site ID number 49–047– 

2003, and in Red Wash as Site ID number 49–047– 

2002. 

14EPA notes that the installation and operation 

expenses for the Ouray and Red Wash monitoring 

stations referenced above were funded by several 

companies because of court orders resulting from 

litigation initiated by EPA, affected states and 

tribes. See, for example, the Consent Decree signed 

by Kerr-McGee Corporation and EPA on May 8, and 

May 16, 2007, lodged May 17, 2007, and entered 

by the court on March 26, 2008. 

. 

15Before addressing the substantive issues raised 

in this comment, we would like to clarify that we 

presume that the reference to New Mexico in the 

comment’s title is a clerical error, and that the 

commenter intended to refer to either Colorado or 

North Dakota. 

should consider these areas as 

maintenance receptors, making it 

difficult for EPA to address properly 

WG’s concerns about interference with 

maintenance in the Wasatch Front, the 

Phoenix area in Arizona, portions of 

western Wyoming, or San Juan County 

in New Mexico. As for the commenter’s 

reference to Uintah County, where in 

February 2010 monitors in Ouray and 

Red Wash registered ozone 

concentrations above 120 ppb, EPA 

notes that the two monitors were 

installed as recently as July 2009, and 

therefore their data does not provide the 

historical variability background that is 

an essential component for the 

identification of maintenance 

receptors.13 EPA is concerned about the 

ambient levels of ozone in this area, but 

at present EPA does not have the 

necessary years of data to evaluate 

whether this area is appropriate for use 

as a maintenance receptor for the 1997 

8-hour ozone NAAQS in accordance 

with the Agency’s approach to this 

requirement.14

Comment No. 3—In its comment 

under section C., ‘‘EPA has not Assessed 

New Mexico’s [sic] Interference with 

Maintenance in the Present,’’ WG asserts 

that EPA’s analysis ignores whether 

Colorado is, at the present, interfering 

with maintenance in other States. It 

argues EPA erred by considering only 

whether emissions from Colorado will 

interfere with maintenance of the 1997 

8-hour ozone NAAQS in areas that 

would be considered ‘‘maintenance 

receptors’’ as of 2012. 

WG argues that this approach is 

inconsistent with the approach taken in 

a previous action regarding significant 

contribution to nonattainment in other 

states (citing 75 FR 33174–90). The 

commenter agrees that ‘‘EPA should 

ensure that Colorado does not interfere 

with maintenance or contribute 

significantly to nonattainment in other 

states in the future’’ but argues that ‘‘the 

agency’s duties under Section 

110(a)(2)(D)(i)(I) apply both in the 

present and the future.’’ EPA’s approach 

is flawed, WG concludes, because EPA 

identifies maintenance areas likely to 

exist by 2012 and does not identify 

interference with maintenance that 

currently exists. WG also asserts that 

EPA’s approach ignores whether 

Colorado is presently interfering with 

maintenance of the 1997 8-hour ozone 

NAAQS in downwind states.15

EPA Response—EPA disagrees with 

the commenter concerning the 

evaluation of significant contribution 

versus interference with maintenance. 

Section 110(a)(2)(D)(i)(I) of the Clean 

Air Act requires that a state SIP ‘‘contain 

adequate provisions prohibiting * * * 

any source or other type of emission 

activities within the state from emitting 

any air pollutants in amount which will 

contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state with 

respect to any [ ] national primary or 

secondary ambient air quality standard.’’ 

In determining the appropriate year to 

analyze to determine whether emissions 

from Colorado will interfere with 

maintenance by any other state, EPA 

used an approach upheld by the DC 

Circuit in North Carolina v. EPA. In that 

case, the Court examined EPA’s 

definition of ‘‘will’’ in ‘‘will contribute 

significantly.’’ The placement of the 

word ‘‘will’’ at the end of section 

110(a)(2)(D)(i) clarifies that it applies to 

all of the provisions that follow—both 

those in 110(a)(2)(D)(i)(I) and those in 

110(a)(2)(D)(i)(II). Thus the DC Circuit’s 

discussion of the meaning of the word 

‘‘will’’ in ‘‘will significantly contribute’’ 

also applies to the meaning of the word 

will in ‘‘will * * * interfere with 

maintenance.’’ 

In North Carolina v. EPA, the DC 

Circuit rejected North Carolina’s 

argument that EPA erred in limiting its 

analysis of downwind areas by 

excluding areas that were currently 

monitored nonattainment but projected 

to be in attainment at a future date. Like 

WG argues here, North Carolina had 

argued that EPA was obligated to 

analyze the significant contribution of 

states that were contributing to areas of 

North Carolina that were in 

nonattainment at the time the rule was 

promulgated even though those areas 

were projected to come into attainment 

by the year selected for the future base 

case analysis. In rejecting this argument, 

the DC Circuit explained that the 

approach used by EPA was identical to 

the one used previously in the NOX SIP 

Call and that ‘‘because ‘will’ can mean 

either certainty or indicate the future 

tense,’’ EPA’s approach was reasonable. 

In other words, the court approved 

EPA’s approach that entailed the 

evaluation of interstate transport 

impacts at a future date in time. 

Contrary to the assertions of the 

commenter, EPA believes that 

evaluation of interference with 

maintenance using a future date is the 

most appropriate approach for that 

requirement. As explained in the 

proposed action, the court decision 

affecting the CAIR rule required EPA to 

reevaluate its approach to the interfere 

with maintenance requirement of 

section 110(a)(2)(D) and to develop a 

new approach to give that requirement 

separate meaning. In doing so, EPA has 

developed an approach that necessarily 

requires a number of years of data, and 

an analysis that evaluates where there 

may be difficulties with maintaining 

attainment at a specific point in time, in 

this instance 2012. In the prior action 

cited by WG, EPA’s evaluation of 

whether emissions would significantly 

contribute to nonattainment in other 

states was based on the data available at 

the time of that evaluation and before 

EPA had developed its approach for 

evaluating interference with 

maintenance. It is reasonable and 

appropriate for EPA to use, in this 

rulemaking, the current approach to 

identifying maintenance receptors for 

purposes of section 110(a)(2)(D)(i) that 

EPA developed to be consistent with the 

direction given to EPA in North 

Carolina v. EPA. 

Finally, we note that comments on the 

validity or reasonableness of the 

approach to determining significant 

contribution in prior actions are not 

directly relevant to this rulemaking. 

This rulemaking addresses only the 

‘‘interfere with maintenance’’ 

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

EPA published a prior proposal (75 FR 

16032) and final rule (75 FR 31306) 

analyzing the Colorado SIP submission 

for the ‘‘significant contribution’’ prong 

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

III. Final Action 

EPA is partially approving the 

Interstate Transport SIP submitted by 

the State of Colorado on June 18, 2009. 

Specifically, in this action EPA is 

approving the portions of that SIP 

submission that address the requirement 

of Section 110(a)(2)(D)(i)(I) that 

emissions from sources in that State do 

not ‘‘interfere with maintenance’’ of the 

1997 8-hour ozone NAAQS by any other 

state. EPA has concluded that the State’s 

submission, and additional evidence 

evaluated by EPA, establish that 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations 71033 

emissions from Colorado sources do not 

have such an impact on other states for 

purposes of the 1997 8-hour ozone 

NAAQS. Therefore, the State’s SIP does 

not need to include additional 

substantive controls to reduce emissions 

for purposes of section 110(a)(2)(D)(i)(I) 

for these NAAQS. In a Federal Register 

action of June 3, 2010 EPA approved 

those portions of the Interstate 

Transport SIP submitted by the State of 

Colorado on June 18, 2009 addressing 

the requirement of Section 

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

sources in that State do not 

‘‘significantly contribute’’ to violations 

of the 1997 8-hour ozone NAAQS in any 

other state. 

IV. Statutory and Executive Order 

Review 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

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

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

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 21, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: November 9, 2010. 

Carol Rushin, 

Acting Regional Administrator, Region 8. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart G—Colorado 

■ 2. Section 52.352 is revised to read as 

follows: 

§ 52.352 Interstate transport. 

Addition to the Colorado State 

Implementation Plan of the Colorado 

Interstate Transport SIP regarding the 

1997 8-Hour Ozone Standard for the 

‘‘significant contribution’’ and the 

‘‘interfere with maintenance’’ 

requirements, as adopted by the 

Colorado Air Quality Control 

Commission on December 30, 2008, 

State effective January 30, 2009, and 

submitted by the Governor’s designee 

on June 18, 2009. 

[FR Doc. 2010–29245 Filed 11–19–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–HQ–OAR–2009–0443; FRL–9230–4] 

RIN–2060–AP78 

Air Quality Designations for the 2008 

Lead (Pb) National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This rule establishes air 

quality designations for certain areas in 

the United States for the 2008 lead (Pb) 

National Ambient Air Quality Standards 

(NAAQS). Based on air quality 

monitoring data, EPA is issuing this rule 

to identify areas that do not meet the 

2008 Pb NAAQS and areas that 

contribute to Pb air pollution in a 

nearby area that does not meet the Pb 

NAAQS. EPA is deferring designation 

for all other areas of the United States, 

including Indian country, pending 

collection and review of additional data 

from recently deployed Pb monitors. 

The Clean Air Act (CAA) requires areas 

designated nonattainment by this rule to 

undertake certain planning and 

pollution control activities to attain the 

standards as quickly as reasonably 

possible. 


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