Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Rules and Regulations 47443 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Add a temporary § 165.T07–0713 to 

read as follows: 

§ 165.T07–0713 Safety Zone; Apache Pier 

Labor Day Weekend Fireworks Display, 

Atlantic Ocean, Myrtle Beach, SC. 

(a) Regulated area. The following 

regulated area is a safety zone: All 

waters of the Atlantic Ocean in the 

vicinity of Apache Pier within a 1000 

foot radius from position 33°45′42′′ N, 

78°46′48′′ W. All coordinates are North 

American Datum 1983. 

(b) Definition. The term ‘‘designated 

representative’’ means Coast Guard 

Patrol Commanders, including Coast 

Guard coxswains, petty officers, and 

other officers operating Coast Guard 

vessels, and Federal, state, and local 

officers designated by or assisting the 

Captain of the Port Charleston in the 

enforcement of the regulated area. 

(c) Regulations. (1) All persons and 

vessels are prohibited from entering, 

transiting through, anchoring in, or 

remaining within the regulated area 

unless authorized by the Captain of the 

Port Charleston or a designated 

representative. 

(2) Persons and vessels desiring to 

enter, transit through, anchor in, or 

remain within the regulated area may 

contact the Captain of the Charleston by 

telephone at 843–740–7050, or a 

designated representative via VHF radio 

on channel 16, to request authorization. 

If authorization to enter, transit through, 

anchor in, or remain within the 

regulated area is granted by the Captain 

of the Port Charleston or a designated 

representative, all persons and vessels 

receiving such authorization must 

comply with the instructions of the 

Captain of the Port Charleston or a 

designated representative. 

(3) The Coast Guard will provide 

notice of the regulated area by Marine 

Safety Information Bulletin, Broadcast 

Notice to Mariners, and on-scene 

designated representatives. 

(d) Effective date and enforcement 

period. This rule is effective from 9 p.m. 

on September 3, 2011 through 10:15 

p.m. on September 4, 2011. This rule 

will be enforced from 9 p.m. until 10:15 

p.m. on September 3, 2011. If the event 

is postponed due to inclement weather, 

then this rule will be enforced from 9 

p.m. until 10:15 p.m. on September 4, 

2011. 

Dated: July 22, 2011. 

M.F. White, 

Captain, U.S. Coast Guard, Captain of the 

Port Charleston. 

[FR Doc. 2011–19857 Filed 8–4–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0285; FRL–9276–8] 

Approval and Promulgation of State 

Implementation Plans; State of 

Colorado; Attainment Demonstration 

for the 1997 8-Hour Ozone Standard, 

and Approval of Related Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

and partially disapproving revisions to 

Colorado’s State Implementation Plan 

(SIP). On June 18, 2009, Colorado 

submitted proposed SIP revisions 

intended to ensure attainment of the 

1997 ozone National Ambient Air 

Quality Standards (NAAQS) in the 

Denver Metro Area/North Front Range 

(DMA/NFR) nonattainment area by 

November 20, 2010. The June 18, 2009 

submittal consisted of an ozone 

attainment plan, which included 

emission inventories, a modeled 

attainment demonstration using 

photochemical grid modeling, a weight 

of evidence analysis, and 2010 motor 

vehicle emissions budgets for 

transportation conformity. The 

submittal also included revisions to 

Colorado Regulation Numbers 3 and 7 

and to Colorado’s Ambient Air Quality 

Standards Regulation. On October 7, 

2010, Colorado submitted revised 

photochemical modeling results to us 

for the DMA/NFR ozone SIP. The 

revised modeling corrected the latitude/ 

longitude locations of certain point 

sources but still projected attainment of 

the 1997 ozone NAAQS. EPA is 

approving the attainment 

demonstration, the rest of the ozone 

attainment plan, with limited 

exceptions, and the revisions to 

Colorado Regulation Number 3, parts A 

and B. EPA is approving portions of the 

revisions to Colorado Regulation 

Number 7 and disapproving other 

portions. EPA is not acting on Colorado 

Regulation Number 3, part C, and 

Colorado’s Ambient Air Quality 

Standards Regulation as Colorado 

withdrew these submissions on 

September 10, 2010. EPA is taking these 

actions pursuant to section 110 and part 

D of the Clean Air Act (CAA) and EPA’s 

regulations. 

DATES: Effective Date: This final rule is 

effective September 6, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0285. 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: 

Scott Jackson, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6107, 

jackson.scott@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 State or Colorado 

mean the State of Colorado, unless the 

context indicates otherwise. 


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47444 Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Rules and Regulations 

1As we indicated in our proposed rulemaking (75 

FR 42353), we are treating provisions in Regulation 

No. 7 that Colorado designated as ‘‘State Only’’ as 

not having been submitted to us for approval, and 

we are not acting on those provisions. 

(v) The initials OAP mean or refer to 

Colorado’s 8-Hour Ozone Attainment 

Plan, which Colorado submitted on June 

18, 2009. 

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 a 

revised 8-hour ozone standard of 0.08 

parts per million (ppm) (62 FR 38855). 

Ozone is formed from the 

photochemical reaction of nitrogen 

oxides (NOX) with volatile organic 

compounds (VOCs). Under EPA 

regulations (40 CFR part 50, Appendix 

I), the 1997 0.08 ppm 8-hour ozone 

NAAQS is attained when the 3-year 

average of the annual fourth highest 

daily maximum 8-hour average ambient 

ozone concentrations is less than or 

equal to 0.08 ppm. Forty CFR part 50, 

Appendix I, section 2.3, directs that the 

third decimal place of the computed 3- 

year average be rounded, with values 

equal to or greater than 0.005 rounding 

up. Thus, under our regulations, a 

computed 3-year average ozone 

concentration of 0.085 ppm is the 

smallest value that is considered to be 

greater than 0.08 ppm and a violation of 

the standard. 

On April 30, 2004, we designated 

areas as attaining or not attaining the 

1997 8-hour ozone NAAQS. As part of 

that rule, we deferred the effective date 

of nonattainment designations for 

multiple areas of the country, including 

the DMA/NFR area. These areas, which 

were called Early Action Compact (EAC) 

areas, agreed to follow a program to 

achieve early reductions of emissions in 

order to attain the 1997 8-hour standard 

no later than December 31, 2007 (69 FR 

23857). Because the DMA/NFR area 

violated the 1997 8-hour standard based 

on air quality data from 2005–2007, the 

nonattainment designation for the area 

became effective on November 20, 2007. 

The DMA/NFR nonattainment area 

includes Adams, Arapahoe, Boulder, 

Broomfield, Denver, Douglas, and 

Jefferson Counties, and portions of 

Larimer and Weld Counties (40 CFR 

81.306). 

Our regulations addressing EAC areas 

that failed to attain the 1997 8-hour 

ozone standard by December 31, 2007 

required that Colorado submit an 

attainment demonstration SIP for the 

1997 8-hour standard (40 CFR 

81.300(e)(3)(ii)(D)). Colorado submitted 

its attainment demonstration SIP for the 

DMA/NFR area on June 18, 2009 as part 

of a larger SIP submission. This 

submittal consisted of the following 

parts: 

• 8-Hour Ozone Attainment Plan 

(OAP), which includes monitoring 

information, emission inventories, a 

modeled attainment demonstration 

using photochemical grid modeling, a 

weight of evidence analysis, and 2010 

motor vehicle emissions budgets 

(MVEBs) for transportation conformity. 

• Revisions to Regulation Number 3, 

Parts A, B, and C. 

• Revisions to Regulation Number 7.1

• Revisions to Colorado’s Ambient 

Air Quality Standards Regulation. 

On July 21, 2010 (75 FR 42346), we 

published our proposed action 

regarding Colorado’s revisions. We 

proposed to approve Colorado’s 2010 

attainment demonstration for the 1997 

8-hour ozone NAAQS, the motor vehicle 

emissions budgets contained in the 

OAP, and all other aspects of the OAP 

except the last paragraph on page IV–1 

and the first paragraph on page IV–2, 

the words ‘‘federally enforceable’’ in the 

second to last paragraph on page V–6, 

and the reference to Attachment A in 

the Table of Contents and on page 

IV–3. 

We proposed to approve the revisions 

to Colorado Regulation Number 3, parts 

A and B. We proposed to disapprove the 

revisions to Colorado Regulation 

Number 3, part C. 

We proposed to approve the following 

portions of the revisions to Colorado 

Regulation Number 7: 

• Revisions to Sections I through XI, 

except for Colorado’s repeal of Section 

II.D. 

• Revisions to Sections XIII through 

XVI. 

We proposed to disapprove the 

following portions of the revisions to 

Colorado Regulation Number 7: 

• Colorado’s proposed repeal of 

Section II.D. 

• Revisions to Section XII. 

We proposed to disapprove the 

revisions to Colorado’s Ambient Air 

Quality Standards Regulation. 

In our proposed action, we fully 

explained the bases for our proposed 

approvals and disapprovals. See 75 FR 

42351 (July 21, 2010). We received one 

letter commenting on our proposed rule. 

On September 10, 2010, Colorado 

withdrew from our consideration the 

proposed revisions to Regulation 

Number 3, Part C, and Colorado’s 

Ambient Air Quality Standards 

Regulation. Consequently, we are not 

taking final action on the proposed 

disapproval of Regulation Number 3, 

Part C, and Colorado’s Ambient Air 

Quality Standards Regulation. 

In September 2010, Colorado 

discovered that its 2008 photochemical 

grid modeling for the OAP contained 

inaccurate coordinates for some point 

sources. Colorado re-ran the model with 

the correct coordinates and submitted 

the revised modeling results to us in 

October 2010. 

On December 17, 2010 (75 FR 78950), 

we published a notice in the Federal 

Register in which we announced the 

availability of Colorado’s revised 

modeling and provided an opportunity 

for public comment through January 18, 

2011, including comment on how the 

revised modeling might affect our 

determinations in our July 21, 2010 

proposed rulemaking. As we explained 

in our December 17, 2010 notice, the 

revised modeling predicted design 

values for 2010 that remained below the 

85.0 ppb ozone NAAQS; for the SIP’s 

2010 base case, the maximum projected 

design values were found at the Rocky 

Flats North and Fort Collins West 

monitoring sites—84.7 ppb ozone at 

both locations. This is 0.2 ppb lower 

than Colorado’s 2008 modeling 

projected using incorrect point source 

locations. We concluded that the 

revised modeling supported the 

conclusions that we proposed in July 

2010 regarding the 2008 modeling. See 

75 FR 78952. We received no comments 

in response to our December 17, 2010 

notice. 

II. Response to Comments 

We received one letter from 

WildEarth Guardians (WEG) 

commenting on our July 2010 proposed 

action. In this section EPA responds to 

the significant adverse comments made 

by WEG. We have carefully considered 

the comments, and nothing in them has 

caused us to change our action from 

what we proposed. 

Comment No. 1—WEG asserts that 

EPA gave Colorado a ‘‘major break’’ by 

deferring the nonattainment designation 

for the DMA/NFR area under EPA’s EAC 

program. Instead of having to attain in 

2007, Colorado got to defer the 

attainment date until 2010. According to 

WEG, EPA allowed the State to delay 

clearing the air and avoid more stringent 

clean up requirements. 

EPA Response—WEG’s comments 

regarding our past deferral of the 

nonattainment designation are not 

timely in the context of this rulemaking 

action because EPA took final action 

deferring the effective date of the 

nonattainment designation in 2006 (71 

FR 69022 (November 29, 2006)). While 

WEG challenged EPA’s 2006 deferral of 


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Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Rules and Regulations 47445 

2As indicated above, Colorado’s October 2010 

revised modeling confirmed design values for 2010 

below the NAAQS at all monitoring sites. 

3The original 2008 modeling and the October 

2010 revised modeling both predict a value above 

the NAAQS in 2010 in one grid cell west of the Fort 

Collins West monitor. 

the nonattainment designation for the 

DMA/NFR area, WEG agreed to settle 

that matter. One element of the 

settlement agreement, as modified, calls 

for EPA to act on Colorado’s SIP 

submission by February 28, 2011, and 

we are meeting that obligation through 

this action. WEG may not challenge this 

action based on EPA’s prior deferral of 

the nonattainment designation for the 

DMA/NFR area; this action solely 

concerns the adequacy of Colorado’s SIP 

submission. We note, however, that we 

disagree with WEG’s claim that the 

deferral of the effective date allowed the 

area to delay cleaning the air. Colorado 

previously submitted SIP control 

measures, under EPA’s regulations for 

EAC areas, that achieved reductions of 

ozone precursors before such reductions 

were required under the CAA. 

Comment No. 2—WEG indicates that 

it supports aspects of EPA’s proposal, 

including EPA’s proposed disapproval 

of certain revisions to Regulation 

Number 7. 

EPA Response—We acknowledge 

WEG’s support for aspects of our 

proposal. 

Comment No. 3—WEG asserts that 

EPA’s proposed approval of Colorado’s 

attainment demonstration overlooked 

key modeling information. Specifically, 

WEG alleges that neither the baseline 

modeling nor the control strategy 

modeling demonstrate attainment. 

WEG’s assertion centers on the baseline 

modeling for an area west of Fort 

Collins that models a violation of the 

NAAQS and Colorado’s statement that 

such a violation ‘‘does not seem 

implausible.’’ WEG’s position is that 

EPA cannot approve the attainment 

demonstration as it overlooked key 

information, or at least failed to explain 

why the modeled violations do not 

matter in the context of the proposed 

attainment demonstration. 

EPA Response—EPA disagrees with 

the commenter’s characterization of 

EPA’s analysis and the commenter’s 

interpretation of the modeling 

information. 

Colorado’s attainment demonstration 

is consistent with EPA’s modeling 

guidance. (See ‘‘Guidance on the Use of 

Models and Other Analyses for 

Demonstrating Attainment of Air 

Quality Goals for Ozone, PM2.5, and 

Regional Haze,’’ EPA–454/B–07–002, 

April 2007 (‘‘2007 modeling 

guidance’’).) The 2007 modeling 

guidance describes the modeled 

attainment test for the 8-hour ozone 

standard as an exercise in which an air 

quality model is used to simulate 

current and future air quality. The 

guidance recommends that model 

estimates be used in a ‘‘relative’’ rather 

than ‘‘absolute’’ sense. Specifically, the 

analysis focuses on the ratio of the 

model’s future to current (baseline) 

predictions near ambient air quality 

monitors. EPA refers to these ratios as 

‘‘relative response factors.’’ Future 

ozone concentrations are estimated at 

existing monitoring sites by multiplying 

the relative response factor for locations 

‘‘near’’ each monitor by the observationbased, monitor-specific, ‘‘baseline’’ 

design value. The resulting predicted 

future ozone concentrations are then 

compared to the NAAQS. (See 2007 

modeling guidance, section 2.1, page 15; 

section 3.0, pages 20–28; section 4.2, 

page 40.) Colorado followed this 

procedure in demonstrating that the 

DMA/NFR area will attain the ozone 

NAAQS.2

The use of observed concentrations as 

the base value in the attainment test 

reduces problems in interpreting model 

results. In the relative attainment test, 

observed data is used to define the 

target concentration. This has the effect 

of anchoring the future concentrations 

to a ‘‘real’’ ambient value. Although 

good model performance remains a 

prerequisite for use of a model in an 

attainment demonstration, problems 

posed by less than ideal model 

performance on individual days are 

reduced through the use of this 

procedure. 

EPA guidance also recommends an 

unmonitored area analysis (UAA) in 

attainment demonstrations. (See 2007 

modeling guidance, section 3.4, pages 

29–30.) The UAA uses a combination of 

model output and ambient data to 

identify areas that might exceed the 

NAAQS if a monitor were placed in the 

given location. In general, the UAA 

review is intended to ensure that a 

control strategy leads to reductions in 

ozone at other locations which could 

have baseline (and future) design values 

exceeding the NAAQS if a monitor were 

deployed there. It was this analysis in 

Colorado’s attainment demonstration 

that indicated potential future 

concentrations above the level of the 

NAAQS in the elevated terrain areas 

west of Fort Collins. 

The 2007 modeling guidance 

indicates that NAAQS violations in the 

UAA should be handled on a case-bycase basis. However, the guidance 

stresses that due to the lack of 

observation-based, measured data, the 

examination of ozone concentrations as 

part of the UAA is more uncertain than 

the monitor-based attainment test. As a 

result, the guidance recommends that 

the UAA be treated as a separate test 

from the monitor-based attainment test. 

While it is expected that States will 

implement additional emission controls 

to eliminate predicted violations of the 

monitor-based test, the same 

requirements may not be appropriate in 

unmonitored areas. The guidance 

recommends that it may be appropriate 

to deploy additional monitors in an area 

where the UAA indicates a potential 

future year violation. (See 2007 

modeling guidance, section 3.4.3, page 

32.) 

The UAA submitted by Colorado 

shows potential ozone concentrations 

above the NAAQS in the elevated 

terrain area west of Fort Collins.3

Historical ambient ozone monitoring 

data are sparse in the foothill and 

mountain areas west of the Front Range. 

The complex terrain has a strong 

influence on wind and pollutant 

transport patterns in the area and 

contributes to uncertainty in the model 

predictions. We have carefully 

considered the model’s predicted 

concentrations west of the Fort Collins 

West monitor (FTCW). Given the 

inherent uncertainty associated with 

UAA and the uncertainty associated 

with modeling in this specific location, 

we conclude that it is not appropriate to 

insist on additional control measures at 

this time to address the modeled ozone 

concentrations west of FTCW. (See 2007 

modeling guidance, section 3.4.3, page 

33.) Other factors also support our 

decision. 

First, in accordance with our 

guidance, Colorado installed an 

additional ozone monitor in the area 

west of FTCW to determine whether the 

model-predicted ozone concentrations 

are, in fact, valid. The special purpose 

monitor, located in Rist Canyon, began 

operation on May 14, 2009. The Rist 

Canyon monitoring station has collected 

data for two ozone seasons 

(approximately 20 months) since it 

began operating. The Rist Canyon 

monitoring station uses a Federal 

Equivalent Method (FEM) and follows 

the quality assurance requirements of 40 

CFR part 58, Appendix A. 

Ozone data collected at this 

monitoring station is eligible for 

comparison to the ozone NAAQS after 

the monitor has operated for more than 

24 months per 40 CFR 58.30(c). Design 

values, however, are based on the 3-year 

average of the annual fourth highest 

daily maximum 8-hour average ozone 

concentration (see 40 CFR part 50, 


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47446 Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Rules and Regulations 

4As evidenced by the following language, we did 

evaluate this issue in our proposed action: ‘‘Because 

Colorado’s modeling demonstrates attainment in 

2010 based on existing SIP-approved measures, and 

it is now 2010, such SIP-approved measures 

represent all measures necessary to demonstrate 

attainment as expeditiously as practicable as per 

section 172 of the CAA. Additional control 

measures would not advance the attainment date.’’ 

75 FR 42351. 

5WEG mistakenly cites the language as referring 

to Regulation Number 3, part B, Section II.D.2. 

6We note that we previously approved 

Regulation Number 7 requirements as meeting VOC 

RACT requirements for the 1-hour ozone standard. 

60 FR 28055, May 30, 1995. The revisions we 

approved in that action were intended to address 

a variety of deficiencies that EPA had identified in 

Regulation Number 7, including enforceability 

concerns. In other words, the requirements were 

established through the SIP revision process to 

ensure enforceability, and the public had a chance 

to comment on our rulemaking at that time. 

Regulation Number 7 contains requirements and 

limits for a wide range of sources and source 

categories, based on the Control Techniques 

Guidelines documents (CTGs) EPA had issued 

when Colorado adopted the various Regulation 

Number 7 requirements in 1989 and 1990. 

Appendix D). While the monitor has not 

operated for these periods, the data is 

informative. An analysis of the data 

shows the fourth highest daily 

maximum 8-hour average ozone 

concentration reading is 69 ppb for May 

through December of 2009 and 71 ppb 

for January through December 2010. 

This data indicates that the area west of 

FTCW is not currently being exposed to 

ozone concentrations above the 1997 8- 

hour ozone standard. Also, these values 

are lower than the fourth highest daily 

maximums—73 ppb and 75 ppb—for 

FTCW for 2009 and 2010. 

Second, Colorado’s UAA explains that 

the high design value of 86 ppb at 

FTCW was based on only two years 

(2006–2007) of monitoring data, not the 

normal three years. (See Appendix I of 

Colorado’s technical support document, 

titled ‘‘Final 2010 Ozone Attainment 

Demonstration Modeling for the Denver 

8-Hour Ozone State Implementation 

Plan.’’) At the time the SIP was 

prepared, three full years of data were 

not available because the monitor did 

not start operating until 2006. This high 

design value drove the high 2010 

projected design values at FTCW and 

the unmonitored area values west of the 

monitor. When a third year of 

monitoring data is included (2008), the 

2010 projected design value at FTCW is 

reduced from 86 ppb to 82 ppb. If 

Colorado’s UAA had used the 82 ppb 

design value at FTCW instead of 86 ppb, 

no grid cells would have exceeded the 

8-hour ozone NAAQS in the UAA. 

Given that Colorado followed our 

2007 modeling guidance and the 

supporting evidence discussed above, 

Colorado properly modeled attainment. 

Comment No. 4—WEG asserts that 

there is no analysis showing that 

Regulation Number 7 imposes RACM/ 

RACT as required by CAA section 

172(c)(1). Regulation Number 7 does not 

impose RACT requirements for all 

sources of ozone precursors in the 

DMA/NFR area and does not impose 

controls for NOX. RACT cannot mean no 

air pollution controls for certain sources 

like refineries or sources of NOX. 

Regulation Number 7 is contrary to the 

CAA. 

EPA Response—Our longstanding 

interpretation of CAA section 172(c)(1) 

is that it only requires implementation 

of control measures that contribute to 

attainment as expeditiously as 

practicable; measures that would not 

advance the attainment date need not be 

considered RACM/RACT. See, e.g., 57 

FR 13498, 13560 (April 16, 1992); 70 FR 

71612, 71617, 71653–71654 (November 

29, 2005). This interpretation has been 

upheld by the courts. See, e.g., NRDC v. 

EPA, 571 F.3d 1245, 1253 (DC Cir. 

2009); Sierra Club v. EPA, 294 F.3d 155, 

162 (DC Cir. 2002); Sierra Club v. EPA, 

314 F.3d 735, 743–745 (5th Cir. 2002). 

As we noted in our proposed action (75 

FR 42351), Colorado’s modeling 

demonstrates attainment in 2010 based 

on existing SIP-approved control 

measures, including the measures in 

Regulation Number 7. Because the 

submission demonstrates attainment by 

November 2010, and it is already 2011, 

these SIP-approved measures represent 

all measures necessary to demonstrate 

attainment as expeditiously as 

practicable. At this point in time, 

additional control measures, whether 

for VOCs or for NOX, would not advance 

the attainment date and are not needed 

to satisfy the requirements of CAA 

section 172(c)(1).4 WEG has not 

demonstrated that the attainment 

demonstration is flawed. Additional 

controls on NOX and controls in other 

parts of the nonattainment area may be 

desirable from WEG’s perspective, but 

WEG has not demonstrated that such 

controls are necessary to demonstrate 

attainment as expeditiously as 

practicable. 

Comment No. 5—WEG asserts that the 

requirements in Regulation Number 7, 

Sections II.C.1.c and II.C.1.d, are 

unenforceable because these sections 

defer solely to the discretion of Division 

staff the establishment of RACT limits at 

a later date. The proposed SIP revisions 

do not specify what RACT emission 

limits will be for each VOC source. In 

addition, Sections II.C.1.c and II.C.1.d 

fail to provide for appropriate public 

notice and involvement in the 

development and adoption of RACT 

requirements. EPA must ensure that 

facility-specific RACT emission limits 

are adopted through the SIP to ensure 

the enforceability of any RACT 

requirements and to ensure that 

Regulation 7 represents RACT 

consistent with the CAA. 

EPA Response—The State designated 

Sections II.C.1.c and II.C.1.d ‘‘State 

Only.’’ As we indicated in our proposed 

action, our interpretation is that 

provisions designated ‘‘State Only’’ 

have not been submitted to us for 

approval. Instead, we interpret these 

provisions to have been submitted for 

informational purposes. See 75 FR 

42353. We are not acting on Sections 

II.C.1.c and II.C.1.d in this action, and, 

thus, we consider these comments 

irrelevant to our action. Because we are 

not acting on Sections II.C.1.c and 

II.C.1.d, we are not incorporating them 

by reference into the Code of Federal 

Regulations. WEG has not indicated any 

way in which these state-only 

provisions affect the federally 

enforceable aspects of Regulation 

Number 7. As noted above, we have 

determined that the State has fully met 

the applicable RACT requirement in 

section 172(c)(1) and thus this Stateonly provision is not a necessary 

component of the attainment 

demonstration on which we are acting 

through this rule. 

Comment No. 6—WEG asserts that 

Section II.C.2 also imposes 

unenforceable RACT requirements. 

WEG does not agree with EPA that 

Colorado’s revisions to Section II.C are 

minor clerical changes. WEG asserts that 

the new cross-reference to Regulation 

Numbers 3 and 7 in Section II.C.2 is 

unclear. 

EPA Response—In the current EPAapproved SIP, Section II.C.2 reads, ‘‘All 

new sources shall utilize controls 

representing Reasonably Available 

Control Technology (RACT.)’’ The 

State’s revised language reads, ‘‘All new 

sources shall utilize controls 

representing RACT, pursuant to 

Regulation Number 7 and Regulation 

Number 3, Part B, Section III.D., upon 

commencement of operation.’’ 5

We view the language change to 

Section II.C.2 as a minor clarifying 

change. The new reference to Regulation 

Number 7 is intended to indicate that 

new sources need to comply with any 

applicable RACT requirements specified 

in Regulation Number 7. As we 

indicated in our proposed action, 

Regulation Number 7 specifies emission 

limits for various industries and generic 

requirements.6 These limits and 

requirements already apply to new 

sources (in addition to existing sources) 

(see Regulation Number 7, Section 

I.B.1.a); the added reference to 


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7There is currently a discrepancy between the 

numbering of the SIP-approved version of 

Regulation Number 3 and the State-approved 

version. In the SIP-approved version, Regulation 

Number 3, part B, Section III.D specifies 

exemptions from permitting requirements. But in 

the State-approved version, Section III.D specifies 

construction permit review requirements. We 

interpret the State’s reference to Regulation Number 

3, part B, Section III.D as referring to the Stateapproved version of Section III.D. Colorado 

previously submitted revisions to Regulation 

Number 3, Part B, that contain the renumbering of 

the provisions of Part B, Section III; we will be 

acting on those revisions separately. 

8We explain below that we do not view these 

limits as being necessary to satisfy RACM/RACT 

requirements under CAA section 172(c)(1). This is 

the reason we have placed the word ‘‘RACT’’ in 

quotes in the text above. 

9The State’s reference to ‘‘RACT’’ may be 

confusing, but we think it merely reflects the State’s 

intent to require that new sources use reasonable 

controls, even if not covered by the source-categoryspecific requirements in Regulation Number 7. We 

note that Colorado’s permitting regulations provide 

for public notice and involvement so that WEG and 

others have the opportunity to participate in any 

control technology determinations Colorado makes 

in the permitting process. 

Regulation Number 7 simply clarifies 

where (i.e., in Regulation Number 7) 

RACT requirements are specified. 

The reference to Regulation Number 

3, part B, Section III.D, merely clarifies 

that new sources need to comply with 

the permitting requirements in 

Colorado’s ‘‘Construction Permit Review 

Requirements.’’ 7 This revision does not 

alter the status quo; new sources are 

required to get permits under Reg. 3 

irrespective of the language of Section 

II.C.2 of Regulation Number 7. 

Additionally, Colorado has historically 

used its permit process to establish VOC 

‘‘RACT’’ limits for new sources covered 

by Section II.C.2 for those limited cases 

in which the other sections of 

Regulation Number 7 do not specify 

limits or requirements.8 Thus, we 

continue to view the change to Section 

II.C.2 as a minor clerical change. 

Finally, the revised rule specifies that 

the new source must comply with RACT 

from commencement of operation, as 

opposed to some later date. This merely 

reiterates the requirement that is already 

specified by existing Section I.B.1.a. 

WEG’s comments reflect a concern 

about Section II.C.2’s alleged deferral of 

the establishment of RACT limits to the 

State’s permitting process. Our view, 

however, is that Section II.C.2’s 

requirements are actually surplus to 

necessary RACT requirements under 

CAA section 172(c)(1). This is because 

Regulation Number 7’s various sourcecategory-specific VOC limits and 

requirements apply to sources 

regardless of Section II.C.2’s 

requirements. Thus, for sources subject 

to these source-category-specific limits 

and requirements, Section II.C.2 does 

not defer the establishment of controls 

to the State’s permitting process. 

Additionally, as indicated above, we 

have determined that such limits and 

requirements, along with other SIP 

control measures, contribute to 

attainment as expeditiously as 

practicable, thus satisfying RACM/ 

RACT under CAA section 172(c)(1). 

Accordingly, the imposition, pursuant 

to Section II.C.2, of VOC controls on 

new sources beyond those contained in 

the other sections of Regulation Number 

7, while potentially beneficial, is not 

necessary to satisfy RACT requirements 

under CAA section 172(c)(1), the State’s 

use of the term ‘‘RACT’’ in Section II.C.2 

notwithstanding.9

Comment No. 7—WEG asserts that the 

SIP submission fails to comply with 

applicable Part D, Subpart 1 and 2 

requirements under the CAA. In 

particular, section 172(c) requires states 

to enact RACM in their ozone 

nonattainment SIPs, to the extent more 

specific RACM requirements are not set 

forth under Subpart 2. Section 181 

requires that marginal nonattainment 

SIPs meet the requirements of sections 

181 and 182 as well as 172. It does not 

appear as if EPA made any assessment 

whether Colorado’s submission 

complies with Subpart 1 and 2 

requirements. WEG is particularly 

concerned that the SIP doesn’t ensure 

RACT for NOX emissions or that RACT 

corrections are made in areas of the 

DMA/NFR nonattainment area that were 

not originally part of the Denver Metro 

1-hour ozone nonattainment area. 

Instead of requiring RACM/RACT, the 

proposed SIP only focuses on the less 

stringent requirements for ozone 

nonattainment areas. The proposed SIP 

admits that RACM is one of the core 

elements for an attainment plan but goes 

on to say that RACT is not required to 

be applied. 

EPA Response—EPA’s regulation 

placing certain areas only under the 

planning provisions of CAA title I, part 

D, subpart 1 was vacated by the DC 

Circuit in South Coast Air Quality 

Management District, et al. v . EPA, 472 

F.3d 882 (DC Cir. 2006) on the basis that 

it was unreasonable. EPA has not yet 

finalized a rule in which it either places 

all of these areas in subpart 2 or in 

which it provides a reasonable 

explanation for placing all or some of 

the areas only under the planning 

provisions of subpart 1. However, 

unless and until EPA takes final action 

classifying the DMA/NFR area under 

subpart 2, it remains solely subject to 

the nonattainment planning provisions 

in subpart 1. Thus, the RACT 

requirement in subpart 2 does not 

currently apply to the DMA/NFR area. 

As explained above, because the State 

has demonstrated that it has adopted all 

controls necessary to attain as 

expeditiously as practicable (i.e., it 

cannot advance the attainment date 

from November 2010), we have 

determined that the area has met the 

RACM requirement in section 172 (i.e., 

‘‘subpart 1’’). We note that for purposes 

of section 172(c) in subpart 1, RACT is 

a subset of RACM. Thus a determination 

that an area has met the RACM 

requirement of section 172(c) means 

that the area has also met the RACT 

requirement in that section. See, e.g., 

NRDC v. EPA, 571 F.3d 1245, 1253 (DC 

Cir. 2009). 

We note that in response to the court’s 

vacatur, EPA has proposed to place all 

areas under subpart 2. If EPA finalizes 

that proposal as proposed, Denver 

would be classified as marginal under 

subpart 2. See 74 FR 2936 (January 16, 

2009). Even if EPA were to finalize a 

subpart 2 classification for the DMA/ 

NFR area, we anticipate, as outlined in 

our proposal, that a SIP addressing 

subpart 2 requirements (including the 

RACT corrections applicable to 

marginal areas) would not be due until 

one year after a final rule classifying the 

DMA/NFR area under subpart 2. For 

these reasons, we did not evaluate the 

SIP submission against subpart 2 

requirements in the proposed rule, nor 

are we doing so for this final rule. 

Comment No. 8—WEG asserts that 

Colorado must update past RACT 

determinations made for the 1-hour 

ozone standard in light of the new 8- 

hour ozone NAAQS nonattainment 

designation. 

EPA Response—Per our discussion 

above, the only RACM/RACT 

requirement that is applicable at this 

time is the requirement under CAA 

section 172(c)(1). That requirement is 

met if the State has adopted all controls 

necessary to attain as expeditiously as 

practicable and thus, that additional 

controls will not advance the attainment 

date. As explained above, we believe 

Colorado has met that requirement. 

Comment No. 9— WEG asserts that 

172(c)(1) coupled with 182(f) requires 

owners and operators of sources in 

ozone nonattainment areas to 

implement RACT requirements for 

sources that are subject to Control 

Technology Guidelines issued by EPA 

and for major sources of VOC and NOX, 

which are ozone precursors. Significant 

sources of ozone precursors are to be 

controlled to a reasonable extent. The 

proposed SIP does not even contain the 

bare minimum with regard to RACT, 

implementing only limited controls to 

address emissions of VOCs from oil and 


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gas production operations in the area 

and from a limited number of other 

stationary sources in the Front Range. 

RACT for emissions of VOCs from other 

industrial sources is woefully lacking. 

The SIP contains no RACT requirements 

for industrial sources of NOX emissions 

anywhere in the nonattainment area. 

EPA Response—As provided above, 

we have concluded that the SIP 

submission satisfies applicable RACM/ 

RACT requirements. We note, however, 

that we disagree with WEG’s 

characterization of the scope of VOC 

controls as being ‘‘limited.’’ 

Comment No. 10—WEG refers to 

legislative history to support its views 

regarding VOC and NOX RACT 

requirements having to apply to all 

nonattainment areas. WEG quotes the 

following language from the Senate 

Environment and Public Works 

Committee: ‘‘[s]tate and local agencies 

are not authorized to ignore [RACT] 

controls on NOX and VOC sources for 

which no CTG has been issued. Sources 

of the size specified in the bill must be 

controlled to levels achievable through 

the use of measures that are 

technologically and economically 

feasible for a class or category of 

sources.’’ 

EPA Response—The language WEG 

cites is from a Senate report discussing 

the anticipated provisions in section 

182(b) of subpart 2, which was added by 

the 1990 Amendments to the CAA. 

Specifically, under section 182(b)(2)(C), 

which applies to areas classified under 

subpart 2 as moderate or higher, RACT 

applies to all major stationary sources of 

VOC that are not covered by subsections 

(A) and (B). Subsections (A) and (B) 

address RACT for sources for which a 

CTG has been issued. Section 182(f) 

extends the subpart 2 RACT 

requirements to major stationary sources 

of NOX. As indicated above, we are not 

evaluating the SIP submission against 

subpart 2 requirements because those 

requirements are not currently 

applicable. Also as indicated above, 

courts have upheld our interpretation of 

RACM/RACT under CAA section 

172(c)(1). 

Comment No. 11—WEG asserts that a 

SIP that fails to contain RACT for major 

VOC and NOXcommercial sources will 

significantly increase the likelihood of 

continued nonattainment and 

jeopardize maintenance. It does not 

appear that EPA has assessed the 

adequacy of the SIP in this light. 

EPA Response—As we have stated, 

the SIP demonstrates attainment of the 

1997 ozone NAAQS as expeditiously as 

practicable. The State is not under a 

current obligation to submit a SIP that 

demonstrates long-term maintenance of 

the ozone standard and this SIP was not 

submitted for that purpose. Under 

Union Electric v. EPA, 427 U.S. 246 

(1976), EPA’s job in reviewing a SIP is 

to determine whether it meets the 

minimum requirements of the CAA. The 

SIP submission demonstrates attainment 

based on enforceable measures that we 

previously approved into the existing 

SIP. While additional controls might be 

desirable because they would provide 

additional emission reductions beyond 

those needed for attainment, we cannot 

disapprove the attainment 

demonstration SIP on that basis. 

Comment No. 12—WEG asserts that if 

EPA is not assessing whether Colorado’s 

SIP complies with subparts 1 and 2 of 

the CAA, EPA must make a finding of 

failure to submit for Colorado’s failure 

to submit a required SIP under subparts 

1 and 2. 

EPA Response—Colorado submitted a 

SIP revision as required by 40 CFR 

81.300(e)(3)(ii)(D), which requires EAC 

areas that failed to attain the 1997 8- 

hour ozone standard by December 31, 

2007 to submit a revised attainment 

demonstration SIP. As explained above, 

EPA has assessed the Colorado SIP 

under the attainment demonstration and 

RACM/RACT requirements of section 

172(c) in subpart 1. Also, as explained 

above, Denver is not currently classified 

under subpart 2 and thus, at this time, 

no SIP revision is required under 

subpart 2. Thus, there is no basis at this 

time for evaluating the SIP under the 

provisions of subpart 2 or for making a 

finding of failure to submit a SIP 

revision under subpart 2. 

Comment No. 13—WEG asserts that 

EPA’s proposed approval fails to 

comply with section 110(l) of the CAA. 

The SIP submission does not 

demonstrate that it will not interfere 

with the 2008 ozone NAAQS, which are 

currently applicable. Thus, EPA cannot 

approve the revision. It is contrary to 

section 110(l) for EPA to assume that its 

duties are limited to protecting the 1997 

ozone NAAQS. Section 110(a)(1) 

provides that a State must submit a SIP 

for a new NAAQS within three years of 

promulgation. Where a statutory duty 

applies within that three year period, 

the State and EPA are compelled to 

meet that requirement given that it falls 

within the three year window provided 

by section 110(a)(1). WEG also asserts 

that the revision would significantly 

interfere with nonattainment of the 

NAAQS in downwind states. 

EPA Response—We disagree that our 

approval does not comply with CAA 

section 110(l) or that section 110(l) 

requires disapproval of Colorado’s 

attainment demonstration or other 

aspects of the SIP submission we are 

approving. CAA section 110(l) provides 

that EPA ‘‘shall not approve a revision 

of a plan if the revision would interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress * * *, or any other 

applicable requirement of’’ the CAA. 

Contrary to WEG’s assertion, we do not 

assume our duties under section 110(l) 

are limited to protecting the 1997 8-hour 

ozone NAAQS—we simply do not agree 

that our approval will interfere with 

attainment of the 2008 ozone NAAQS or 

any other requirement of the CAA. 

Through our action, no SIP-approved 

control measures for ozone precursors 

are being relaxed; in fact, we are 

approving changes to Regulation 

Number 3 that will strengthen the SIP 

and disapproving revisions to 

Regulation Number 7 that would 

weaken the SIP. WEG has not explained 

how Colorado’s attainment 

demonstration and the other parts of the 

SIP we’re approving would interfere 

with the 2008 ozone NAAQS. 

At this time, no areas are designated 

nonattainment for the 2008 ozone 

NAAQS and no attainment 

demonstration SIPs are due for that 

NAAQS. EPA does not interpret section 

110(l) to require a full attainment or 

maintenance demonstration for all 

NAAQS before any changes to a SIP 

may be approved. See Kentucky 

Resources Council, Inc. v. EPA, 467 F.3d 

986 (6th Cir. 2006); see also e.g., 70 FR 

53 (Jan. 3, 2005), 70 FR 28429 (May 18, 

2005) (proposed and final rules, upheld 

in Kentucky Resources, which discuss 

EPA’s interpretation of section 110(l)). 

EPA has concluded that preservation of 

the status quo air quality prior to the 

time new attainment or maintenance 

demonstrations are due will prevent 

interference with CAA requirements, 

including the States’ obligations to 

develop timely demonstrations. Thus, 

areas do not have to produce a complete 

attainment demonstration to make any 

revisions to the SIP, provided the status 

quo air quality is preserved. 

As noted above, as a result of today’s 

action, the SIP will be strengthened and 

air quality maintained. This conclusion 

is sufficient to satisfy the requirements 

of section 110(l) with respect to the 

2008 ozone standard. We have not and 

are not required to evaluate whether the 

current attainment demonstration also 

demonstrates attainment for the 2008 

ozone standard or the SIP contains 

measures to attain that standard. The 

CAA and our regulations designate 

specific time frames for areas to submit 

SIPs and demonstrate attainment 

following a nonattainment designation 

for a new standard. See, e.g., CAA 

sections 110(a)(1) and 172(b). Since this 


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10Colorado previously submitted revisions to part 

B that contain changes to the numbering of part B 

provisions; we will be acting on those revisions 

separately. 

action will not interfere with status quo 

air quality, and thus with Colorado’s 

ability to develop a SIP to attain the 

2008 ozone standard, it is appropriate 

under the CAA to approve this action 

and allow Colorado to address the 2008 

ozone standard according to the 

statutory framework. 

We do not understand WEG’s 

comment about the deadline under CAA 

section 110(a)(1). It appears WEG may 

be asserting that the State had to submit 

a 110(a)(1) SIP for the 2008 standard at 

the same time it submitted its SIP for 

the 1997 standard simply because the 

deadline for the SIP for the 1997 

standard fell within the three-year 

period specified by section 110(a)(1) for 

submission of a SIP for the 2008 

standard. WEG cites no legal or policy 

support for this theory, and it is not 

supported by section 110(a)(1), section 

110(l), or any other provision of the 

CAA. To the extent WEG is claiming 

that our approval action will interfere 

with the SIP required by CAA section 

110(a)(1), we disagree. Section 110(a)(1) 

SIPs are merely infrastructure SIPs, not 

complete attainment demonstration 

SIPs, and, as noted by WEG, these 

infrastructure SIPs are not due until 

three years after designation. Approval 

of the 1997 ozone attainment 

demonstration will in no way interfere 

with the State’s obligation or ability to 

submit an infrastructure SIP for the 

2008 standard. 

WEG provides no support for its 

assertion that the revision would 

significantly interfere with 

nonattainment of the NAAQS in 

downwind states. We are not required to 

respond to unsupported assertions. In 

any event, because our action will not 

result in an increase in emissions, we 

disagree with WEG that the revision will 

significantly interfere with attainment of 

the NAAQS in downwind states. 

III. Final Action 

A. Approval 

For the reasons provided in our July 

21, 2010 proposal (75 FR 42351), our 

December 17, 2010 notice of availability 

of revised modeling (75 FR 78950), and 

herein, we are approving the following 

elements of the 1997 8-hour ozone SIP 

revisions that Colorado submitted on 

June 18, 2009: 

(1) Colorado’s 2010 attainment 

demonstration for the 1997 8-hour 

ozone NAAQS. 

(2) The MVEBs contained in the OAP, 

which are identified in the following 

table: 

Area of applicability 

2010 NOX

emissions 

(tons per day) 

2010 VOC 

emissions 

(tons per day) 

Northern Subarea ............................................................................................................................................ 20.5 19.5 

Southern Subarea ............................................................................................................................................ 102.4 89.7 

Total Nonattainment Area ........................................................................................................................ 122.9 109.2 

The Northern Subarea is defined in the 

OAP as the area denoted by the ozone 

nonattainment area north of the Boulder 

County northern boundary and 

extended through southern Weld 

County to the Morgan County line. The 

Southern Subarea is defined in the OAP 

as the area denoted by the ozone 

nonattainment area south of the Boulder 

County northern boundary and 

extended through southern Weld 

County to the Morgan County line. Both 

subareas are further identified in Figure 

2: ‘‘8-hour Ozone Emission Budget 

Subareas’’ at page VI–6 in the OAP. 

In addition to approving the MVEBs, 

we are also approving the process 

described in the OAP for use of the 

Total Nonattainment Area MVEBs and 

the subarea MVEBs. Per the OAP, the 

initial conformity determination must 

use the Total Nonattainment Area 

MVEBs for NOX and VOCs. After the 

initial conformity determination, the 

Denver Regional Council of 

Governments and North Front Range 

Transportation and Air Quality 

Planning Council may switch from 

using the Total Nonattainment Area 

MVEBs to using the subarea MVEBs for 

determining conformity. To switch to 

use of the subarea MVEBs (or to 

subsequently switch back to use of the 

Total Nonattainment Area MVEBs), the 

Denver Regional Council of 

Governments and the North Front Range 

Transportation and Air Quality 

Planning Council must use the process 

described in the OAP at pages VI–4 and 

VI–5. 

(3) All other aspects of the OAP 

except the last paragraph on page IV–1 

and the first paragraph on page IV–2, 

the words ‘‘federally enforceable’’ in the 

second to last paragraph on page V–6, 

and the reference to Attachment A in 

the Table of Contents and on page IV– 

3. 

(4) The revisions to Parts A and B of 

Colorado Regulation Number 3. 

(5) The revisions to Sections I through 

XI and XIII through XVI of Colorado 

Regulation Number 7, except for the 

repeal of Section II.D. 

Regarding part B of Regulation 

Number 3, as we noted in our July 21, 

2010 proposal, there is a discrepancy 

between the numbering of the submitted 

revisions and the EPA-approved SIP. 

Colorado added new Sections II.D.1.k, l, 

m, and n to Part B to specify the four 

types of emissions points that will 

continue to be exempt from minor 

source construction permitting 

requirements. However, in the current 

EPA-approved SIP, Section III.D.1 of 

part B lists the types of emissions points 

that are exempt from minor source 

construction permitting requirements.10

These emissions points are listed in 

Sections III.D.1.a through j. For 

purposes of this action, we are 

interpreting Colorado’s proposed 

revisions to Part B, in the form of 

Sections II.D.1.k through n, as being an 

addition to Section III.D.1, and 

following immediately after Section 

III.D.1.j of part B of the EPA-approved 

SIP. 

B. Disapproval 

For the reasons provided in our July 

21, 2010 proposal, we are disapproving 

the following elements of the 1997 8- 

hour ozone SIP revisions that Colorado 

submitted on June 18, 2009: 

(1) In the OAP: the last paragraph on 

page IV–1 and the first paragraph on 

page IV–2, the words ‘‘federally 

enforceable’’ in the second to last 

paragraph on page V–6, and the 

reference to Attachment A in the Table 

of Contents and on page IV–3. 

(2) The repeal of Section II.D of 

Colorado Regulation Number 7. 

(3) The revisions to Section XII of 

Colorado Regulation Number 7. 

Our disapproval of these provisions 

does not trigger sanctions or a FIP 

obligation because our disapproval does 

not leave a deficiency in the SIP. The 

effect of our disapproval is to excise 

proposed SIP revisions that would 


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11See our July 21, 2010 proposal for further 

discussion on this issue (75 FR 42351). 

weaken the SIP and potentially 

undermine the attainment 

demonstration. The provisions we are 

approving today and provisions that 

will remain in the SIP as a result of our 

action today fully support the 

attainment demonstration and meet all 

applicable requirements of the Clean Air 

Act. Thus, our action does not trigger 

sanctions or a FIP obligation.11

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 some state law as meeting 

Federal requirements and disapproves 

other state law because it does not meet 

Federal requirements; this action 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 October 4, 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, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: February 18, 2011. 

Carol Rushin, 

Acting Regional Administrator, Region 8. 

40 CFR part 52 is amended to read 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 52.320 is amended by 

adding paragraphs (c)(72)(i)(G) and 

(c)(117) to read as follows: 

§ 52.320 Identification of plan. 

* * * * * 

(c) * * * 

(72) * * * 

(i) * * * 

(G) 1001–5, Colorado Regulation No. 

3, Air Contaminant Emissions Notices, 

Part A, Concerning General Provisions 

Applicable to Reporting and Permitting, 

Sections II.D.1.m, II.D.1.ee, II.D.1.uu, 

II.D.1.ddd, and II.D.1.eeee, previously 

approved in paragraph (c)(72)(i)(D) of 

this section, were repealed by the State 

of Colorado effective January 30, 2009 

and are removed without replacement. 

* * * * * 

(117) On June 18, 2009, the State of 

Colorado submitted an 8–Hour Ozone 

Attainment Plan for the Denver Metro 

Area/North Front Range area to meet the 

requirements of 40 CFR 

81.300(e)(3)(ii)(D) for the 1997 8-hour 

ozone NAAQS. On the same date, the 

State of Colorado also submitted 

revisions to portions of Part A, 

‘‘Concerning General Provisions 

Applicable to Reporting and 

Permitting,’’ and Part B, ‘‘Concerning 

Construction Permits,’’ of Colorado’s 

Regulation No. 3, ‘‘Air Contaminant 

Emissions Notices,’’ and to Sections I 

through XVI of Colorado’s Regulation 

No. 7, ‘‘Control of Ozone Via Ozone 

Precursors (Emissions of Volatile 

Organic Compounds and Nitrogen 

Oxides).’’ EPA is approving the Ozone 

Attainment Plan except for the last 

paragraph on page IV–1 and the first 

paragraph on page IV–2, the words 

‘‘federally enforceable’’ in the second to 

last paragraph on page V–6, and the 

reference to Attachment A in the Table 

of Contents and on page IV–3. EPA is 

disapproving the excepted language 

from the Ozone Attainment Plan. EPA is 

approving the revisions to portions of 

Parts A and B of Colorado’s Regulation 

No. 3. For purposes of this action, 

Colorado Regulation No. 3, Part B, 

Sections II.D.1.k, l, m, and n, as 

incorporated below, should be 

considered an addition to and as 

immediately following Colorado 

Regulation Number 3, Part B, Sections 

III.D.1.a through j, as previously 

approved by EPA. EPA is approving the 

revisions to Sections I through XI and 


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Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Rules and Regulations 47451 

XIII through XVI of Colorado’s 

Regulation No. 7, except for Colorado’s 

repeal of section II.D. EPA is 

disapproving Colorado’s repeal of 

Section II.D and Colorado’s revisions to 

Section XII of Regulation No. 7. EPA is 

not acting on the provisions in 

Regulation No. 7 that are designated 

‘‘State Only.’’ 

(i) Incorporation by reference. 

(A) 5 CCR 1001–5, Colorado 

Regulation No. 3, ‘‘Air Contaminant 

Emissions Notices,’’ Part A, 

‘‘Concerning General Provisions 

Applicable to Reporting and 

Permitting,’’ Sections II.D.1.m, II.D.1.ee, 

II.D.1.uu, II.D.1.ccc, II.D.1.ddd, 

II.D.1.uuu, and II.D.1.eeee, effective 

January 30, 2009. 

(B) 5 CCR 1001–5, Colorado 

Regulation No. 3, ‘‘Air Contaminant 

Emissions Notices,’’ Part B, ‘‘Concerning 

Construction Permits,’’ Sections II.D.1.k, 

l, m, and n, effective January 30, 2009. 

(C) Letter dated November 18, 2009 

from the Office of the Colorado Attorney 

General, signed by Jerry Goad, to Candy 

Herring, Office of the Colorado 

Secretary of State, regarding clerical 

errors in Regulation No. 7, and those 

portions of 5 CCR 1001–9, Colorado 

Regulation No. 7, ‘‘Control of Ozone Via 

Ozone Precursors (Emissions of Volatile 

Organic Compounds and Nitrogen 

Oxides),’’ Section II.C.1 that 

accompanied such letter, except for the 

following: the parenthetical phrase 

‘‘(State Only: Located in any Ozone 

Nonattainment Area or Attainment 

Maintenance Area)’’ at II.C.1; Section 

II.C.1.a.(v); Section II.C.1.c; and Section 

II.C.1.d. 

(D) 5 CCR 1001–9, Colorado 

Regulation No. 7, ‘‘Control of Ozone Via 

Ozone Precursors (Emissions of Volatile 

Organic Compounds and Nitrogen 

Oxides),’’ Sections I through XI and XIII 

through XVI, effective January 30, 2009, 

except for the following: Section I.A.1.b; 

Section I.B.1.b; Section I.B.2.b; Section 

I.B.2.d; Section II.A.12; Section II.C.1; 

and the repeal of Section II.D. 

■ 3. Section 52.350 is amended by 

adding paragraph (c) to read as follows: 

§ 52.350 Control strategy: ozone. 

* * * * * 

(c) Revisions to the Colorado State 

Implementation Plan for the 1997 8- 

hour ozone NAAQS entitled ‘‘Denver 

Metro Area & North Front Range 8–Hour 

Ozone Attainment Plan,’’ excluding the 

last paragraph on page IV–1, the first 

paragraph on page IV–2, the words 

‘‘federally enforceable’’ in the second to 

last paragraph on page V–6, and the 

reference to Attachment A in the Table 

of Contents and on page IV–3, as 

adopted by the Colorado Air Quality 

Control Commission on December 12, 

2008, and submitted by the Governor to 

EPA on June 18, 2009. 

[FR Doc. 2011–19807 Filed 8–4–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2010–1040; FRL–9448–4] 

RIN 2060–AQ82 

Protection of Stratospheric Ozone: 

Adjustments to the Allowance System 

for Controlling HCFC Production, 

Import, and Export 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim final rule. 

SUMMARY: EPA is adjusting the 

allowance system controlling U.S. 

consumption and production of 

hydrochlorofluorocarbons (HCFCs) as a 

result of a recent court decision vacating 

a portion of the rule titled ‘‘Protection 

of Stratospheric Ozone: Adjustments to 

the Allowance System for Controlling 

HCFC Production, Import, and Export; 

Final Rule.’’ EPA interprets the court’s 

vacatur as applying to the part of the 

rule that establishes the company-bycompany baselines and calendar-year 

allowances for HCFC–22 and HCFC– 

142b. This action relieves the regulatory 

ban on production and consumption of 

these two chemicals following the 

court’s vacatur by establishing new 

company-by-company HCFC–22 and 

HCFC–142b baselines and allocating 

production and consumption 

allowances for 2011. 

DATES: This rule is effective August 5, 

2011. While the urgent need for 

certainty regarding the consumption 

allowance allocations in the 2011 

control period precludes the Agency 

from considering any adjustments to the 

consumption allowances allocated in 

this action, EPA will consider all 

written comments received by 

September 6, 2011 to determine whether 

to issue additional production 

allowances for the time period covered 

by this action. Commenters may also 

submit comments on the issues 

addressed in this action as they pertain 

to future control periods. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–1040, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: 202–566–1741. 

• Mail: Docket # EPA–HQ–OAR– 

2010–1040, Air and Radiation Docket 

and Information Center, U.S. 

Environmental Protection Agency, Mail 

code: 6102T, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. 

• Hand Delivery: Docket #EPA–HQ– 

OAR–2010–1040 Air and Radiation 

Docket at EPA West, 1301 Constitution 

Avenue NW., Room B108, Mail Code 

6102T, Washington, DC 20004. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

1040. 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 information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

FOR FURTHER INFORMATION CONTACT: 

Luke H. Hall-Jordan by telephone at 

(202) 343–9591, or by e-mail at halljordan.luke@epa.gov, or by mail at U.S. 

Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 


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