43906 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

1Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, ‘‘Guidance on 

SIP Elements Required Under Sections 110(a)(1) 

and (2) for the 1997 8-hour Ozone and PM2.5

National Ambient Air Quality Standards’’ (Oct. 2, 

2007). 

2See the NPR (76 FR 28707) for further 

explanation regarding the omission of elements 

110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal. 

§ 52.2355 Section 110(a)(2) infrastructure 

requirements. 

On December 3, 2007 Jon L. 

Huntsman, Jr., Governor, State of Utah, 

submitted a certification letter which 

provides the State of Utah’s SIP 

provisions which meet the requirements 

of CAA Section 110(a)(1) and (2) 

relevant to the 1997 Ozone NAAQS. On 

December 21, 2009 M. Cheryl Heying, 

Director, Utah Division of Air Quality, 

Department of Environmental Quality 

for the State of Utah, submitted 

supporting documentation which 

provides the State of Utah’s SIP 

provisions which meet the requirements 

of CAA Section 110(a)(1) and (2) 

relevant to the 1997 Ozone NAAQS. 

[FR Doc. 2011–18416 Filed 7–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–R08–OAR–2009–0809; FRL–9442–1] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standard; Colorado 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State 

Implementation Plan (SIP) submission 

from the State of Colorado to 

demonstrate that the SIP meets the 

requirements of Sections 110(a)(1) and 

(2) of the Clean Air Act (CAA) for the 

National Ambient Air Quality Standards 

(NAAQS) promulgated for ozone on July 

18, 1997. Section 110(a)(1) of the CAA 

requires that each state, after a new or 

revised NAAQS is promulgated, review 

their SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’ of section 110(a)(2). The State 

of Colorado submitted a certification, 

dated January 7, 2008, that its SIP met 

these requirements for the 1997 ozone 

NAAQS. The certification was 

determined to be complete on March 27, 

2008 (73 FR 16205). 

DATES: Effective Date: This final rule is 

effective August 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2009–0809. 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: 

Kathy Dolan, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–6142, 

dolan.kathy@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. 

Table of Contents 

I. Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm (62 

FR 38856). By statute, SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) are to be submitted by states within 

three years after promulgation of a new 

or revised standard. Section 110(a)(2) 

provides basic requirements for SIPs, 

including emissions inventories, 

monitoring, and modeling, to assure 

attainment and maintenance of the 

standards. These requirements are set 

out in several ‘‘infrastructure elements,’’ 

listed in section 110(a)(2). 

Section 110(a) imposes the obligation 

upon states to make a SIP submission to 

EPA for a new or revised NAAQS, and 

the contents of that submission may 

vary depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

a state develops and submits its SIP for 

a new or revised NAAQS affects the 

content of the submission. The contents 

of such SIP submissions may also vary 

depending upon what provisions a 

state’s existing SIP already contains. In 

the case of the 1997 ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. In a guidance issued 

on October 2, 2007, EPA noted that, to 

the extent an existing SIP already meets 

the section 110(a)(2) requirements, 

states need only to certify that fact via 

a letter to EPA.1

On March 27, 2008, EPA published a 

final rule entitled, ‘‘Completeness 

Findings for Section 110(a) State 

Implementation Plans for the 8-hour 

Ozone NAAQS’’ (73 FR 16205). In the 

rule, EPA made a finding for each state 

that it had submitted or had failed to 

submit a complete SIP that provided the 

basic program elements of section 

110(a)(2) necessary to implement the 

1997 8-hour ozone NAAQS. In 

particular, EPA found that Colorado had 

submitted a complete SIP 

(‘‘Infrastructure SIP’’) to meet these 

requirements. 

On May 18, 2011, EPA published a 

notice of proposed rulemaking (NPR) for 

the State of Colorado (76 FR 28707) to 

act on the State’s Infrastructure SIP for 

the 1997 ozone NAAQS. Specifically, in 

the NPR EPA proposed approval of 

Colorado’s SIP as meeting the 

requirements of all section 110(a)(2) 

elements with respect to the 1997 ozone 

NAAQS, aside from elements 

110(a)(2)(D)(i), 110(a)(2)(I), and the 

visibility protection requirement of 

element 110(a)(2)(J), on which EPA did 

not propose action.2 EPA received a 

comment on section 110(a)(2)(E)(ii), and 

EPA is not finalizing today its proposed 

approval for this sub-element in order to 

fully respond to that comment. 

EPA proposed to approve element 

110(a)(2)(C) for the 1997 ozone NAAQS 

in the event that the State clarified (or 

modified) its January 7, 2008 

certification to ensure consistency with 

two rules related to regulation of 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43907 

3Colorado’s May 10, 2011 clarification letter is 

available in the docket for this action. 

4See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

greenhouse gas (GHG) emissions: 

‘‘Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring 

Rule’’ (‘‘Tailoring Rule’’), 75 FR 31514 

(June 3, 2010), and ‘‘Limitation of 

Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans’’ (‘‘PSD SIP 

Narrowing Rule’’), 75 FR 82536 (Dec. 

30, 2010). In the PSD SIP Narrowing 

Rule, EPA withdrew its previous 

approval of Colorado’s prevention of 

significant deterioration (PSD) program 

to the extent that it applied PSD 

permitting to GHG-emissions increases 

from GHG-emitting sources below 

thresholds set in the Tailoring Rule. 

EPA withdrew its approval on the basis 

that the State lacked sufficient resources 

to issue PSD permits to such sources at 

the statutory thresholds in effect in the 

previously-approved PSD program. 

After the PSD SIP Narrowing Rule, the 

portion of Colorado’s PSD SIP from 

which EPA withdrew its approval had 

the status of having been submitted to 

EPA but not yet acted upon. In its 

February 1, 2008 certification, Colorado 

relied on its PSD program as approved 

at that date—which was before 

December 30, 2010, the effective date of 

the PSD SIP Narrowing Rule—to satisfy 

the requirements of infrastructure 

element 110(a)(2)(C). Given EPA’s basis 

for the PSD SIP Narrowing Rule, EPA 

proposed approval of the Colorado 

Infrastructure SIP for infrastructure 

element (C) if either the State clarified 

(or modified) its certification to make 

clear that the State relies only on the 

portion of the PSD program that remains 

approved after the PSD SIP Narrowing 

Rule issued on December 30, 2010, and 

for which the State has sufficient 

resources to implement, or the State 

acted to withdraw from EPA 

consideration the remaining portion of 

its PSD program submission that would 

have applied PSD permitting to GHG 

sources below the Tailoring Rule 

thresholds. On May 10, 2011, EPA 

received a letter from Colorado 

clarifying that the State relies only on 

the portion of the PSD program that 

remains approved after the PSD SIP 

Narrowing Rule issued on December 30, 

2010.3

Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on the infrastructure SIP 

submissions.4 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (‘‘director’s discretion’’). 

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) Existing provisions 

for minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source new source 

review (NSR)’’); and (ii) existing 

provisions for PSD programs that may 

be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80,186 

(December 31, 2002), as amended by 72 

FR 32,526 (June 13, 2007) (‘‘NSR 

Reform’’). In light of the comments, EPA 

now believes that its statements in 

various proposed actions on 

infrastructure SIPs with respect to these 

four individual issues should be 

explained in greater depth with respect 

to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issue in the context of the infrastructure 

SIPs. This was not EPA’s intention. To 

the contrary, EPA only meant to convey 

its awareness of the potential for certain 

types of deficiencies in existing SIPs, 

and to prevent any misunderstanding 

that it was reapproving any such 

existing provisions. EPA’s intention was 

to convey its position that the statute 

does not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements, however, we want to 

explain more fully the Agency’s reasons 

for concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘within 3 years (or such 

shorter period as the Administrator may 


emcdonald on DSK2BSOYB1PROD with RULES
43908 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

5For example, section 110(a)(2)(E) provides that 

states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

6For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each SIP contains adequate 

provisions to prevent significant contribution to 

nonattainment of the NAAQS in other states. This 

provision contains numerous terms that require 

substantial rulemaking by EPA in order to 

determine such basic points as what constitutes 

significant contribution. See, e.g., ‘‘Rule To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to the NOX SIP Call; Final 

Rule,’’ 70 FR 25,162 (May 12, 2005)(defining, 

among other things, the phrase ‘‘contribute 

significantly to nonattainment’’). 

7See, e.g., Id., 70 FR 25,162, at 63–65 (May 12, 

2005) (explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

8EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

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

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions To Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

9For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

10See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). EPA issued comparable guidance for 

the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP 

Elements Required Under Sections 110(a)(1) and (2) 

for the 2006 24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards (NAAQS),’’ from 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof)’’ and 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, NSR permitting program 

submissions required to address the 

requirements of part D, and a host of 

other specific types of SIP submissions 

that address other specific matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, the list of required elements 

provided in section 110(a)(2) contains a 

wide variety of disparate provisions, 

some of which pertain to required legal 

authority, some of which pertain to 

required substantive provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.5 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.6

Notwithstanding that section 110(a)(2) 

states that ‘‘each’’ SIP submission must 

meet the list of requirements therein, 

EPA has long noted that this literal 

reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).7 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.8 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the SIP. Finally, EPA notes 

that not every element of section 

110(a)(2) would be relevant, or as 

relevant, or relevant in the same way, 

for each new or revised NAAQS and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.9

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirement applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.10 Within this 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43909 

William T, Harnett, Director Air Quality Policy 

Division, to Regional Air Division Directors, 

Regions I–X, dated September 25, 2009 (the ‘‘2009 

Guidance’’). 

11 Id., at page 2. 

12 Id., at attachment A, page 1. 

13 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

14EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21,639 

(April 18, 2011). 

15EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82,536 (Dec. 30, 2010). EPA has previously 

used its authority under CAA 110(k)(6) to remove 

numerous other SIP provisions that the Agency 

determined it had approved in error. See, e.g., 61 

FR 38,664 (July 25, 1996) and 62 FR 34,641 (June 

27, 1997) (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67,062 

(November 16, 2004) (corrections to California SIP); 

and 74 FR 57,051 (November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

16EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42,342 at 

42,344 (July 21,2010) (proposed disapproval of 

director’s discretion provisions); 76 FR 4,540 (Jan. 

26, 2011) (final disapproval of such provisions). 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 11 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 12 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’13 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each state would work with its 

corresponding EPA regional office to 

refine the scope of a state’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the SIP for the NAAQS in question. 

Significantly, the 2007 Guidance did 

not explicitly refer to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance, 

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s proposals 

mentioned these issues not because the 

Agency considers them issues that must 

be addressed in the context of an 

infrastructure SIP as required by section 

110(a)(1) and (2), but rather because 

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a SIP is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or otherwise to comply with the CAA.14

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.15

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.16

II. Response to Comments 

EPA received one letter on June 17, 

2011 containing comments from 


emcdonald on DSK2BSOYB1PROD with RULES
43910 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

17 In the case of Colorado, the Title V program is 

not part of the SIP, with the exception of the fee 

program. Section 110(a)(2)(E)(i) requires adequate 

resources to carry out the SIP. As the Title V 

program—except the fee program itself—is not part 

of the SIP, 110(a)(2)(E)(i) does not require an 

assessment of whether the fees are adequate to 

implement the Title V program in its entirety. 

18This provision was previously in part B of 

Regulation Number 3. On May 31, 2011, Region 8 

finalized an action that (among other things) 

approved Colorado’s reorganization of its PSD 

program into the new part D of Regulation Number 

3. The notice of the final action has not yet been 

published in the Federal Register, but a copy of 

Colorado’s submittal and the signed notice can be 

found in Docket No. [xxx]. 

WildEarth Guardians (WG), an 

environmental organization. The 

significant comments made in WG’s 

June 17, 2011 letter and EPA’s responses 

to those comments are given below. 

Comment No. 1: The commenter 

claimed that Colorado ‘‘lacks adequate 

funding in accordance with CAA 

section 110(a)(2)(E)(i).’’ As evidence of 

this question of sufficient funding, the 

commenter cited a Colorado Legislative 

Council (CLC) fiscal note stating that the 

Colorado Air Pollution Control 

Division’s (APCD) resources are 

inadequate to process all of the 

approximately 2,500 to 3,000 air permit 

applications the State receives annually, 

causing a backlog of approximately 

1,200 unprocessed permits as of April 

2011. The commenter argued that this 

indicates Colorado lacks adequate 

resources to implement its SIP (in 

particular, permitting programs) and 

that the SIP is therefore deficient with 

respect to section 110(a)(2)(E)(i). 

The commenter attributed APCD’s 

lack of adequate resources to the State 

charging Title V permit applicants 

permit fees ‘‘far below the minimum 

requirements under Title V.’’ The 

commenter described the fees charged 

by the State and compared them to 

amounts in an EPA memorandum 

discussing the presumptive minimum 

fee for 40 CFR part 70 (title V) programs. 

Although the commenter noted that the 

State does charge a variety of fees in 

connection with the title V program, the 

commenter argued that there is no 

indication that the fees charged by the 

State, in aggregate, meet the 

presumptive minimum fee. 

Finally, the commenter used the same 

arguments to claim EPA does not have 

an adequate basis to approve Colorado’s 

SIP for the requirements of CAA section 

110(a)(2)(L). 

EPA Response: EPA disagrees with 

the commenter’s conclusions 

concerning the adequacy of the 

Colorado infrastructure SIP with respect 

to both section 110(a)(2)(E)(i) and (L). 

First, with regard to the reported 

statement by the CLC, EPA notes that 

the commenter in a number of places 

referred to this as a statement by 

‘‘Colorado’’ as though the CLC is the 

equivalent of the State. However, the 

cited document is an analysis by the 

CLC staff of a Colorado Senate bill. The 

CLC staff is a nonpartisan research arm 

of the State Assembly; in other words, 

the CLC staff is part of the legislative 

branch of the State government. EPA 

has no reason to question the 

conclusions of the CLC, but those 

conclusions are not the equivalent of an 

official statement by the State itself with 

respect to the issue relevant in this 

action. 

On the other hand, Colorado’s 

infrastructure SIP certification that is 

before EPA for approval was submitted 

by the director of the Colorado 

Department of Public Health and 

Environment (CDPHE), an executive 

branch agency that includes the 

Colorado APCD. EPA considers the 

submission to have come from the 

organization within the State that is the 

best judge of the overall resources 

available for implementation of the SIP. 

In its certification, CDPHE discussed the 

budget and staff of the APCD and 

indicated that both were sufficient to 

carry out Colorado’s SIP. Section 

110(a)(2)(E) requires that the SIP 

provide (among other things) necessary 

assurances that the State have adequate 

personnel and funding to carry out the 

SIP. EPA concludes that the certification 

provides these necessary assurances. 

In addition, EPA notes that the CLC 

statements cited by the commenter 

speak only to the resources available to 

process permits. Based on the 

information provided by the 

commenter, the backlog would appear 

to amount to a delay of approximately 

5–6 months for a permit. While delays 

are very problematic, such delays are 

not evidence of an inability to 

implement the requirements of the SIP 

at all. Moreover, the CLC staff analysis 

noted that the purpose of the bill is to 

address the backlog; the bill does so by 

providing for APCD-approved third 

party contractors to perform modeling 

for sources not subject to PSD. The bill 

was signed into law by the Governor of 

Colorado on June 9, 2011. EPA therefore 

disagrees with the commenter’s 

conclusion that EPA cannot approve 

Colorado’s infrastructure SIP for section 

110(a)(2)(E)(i) on the basis of the 

statement in the CLC staff analysis. 

Turning to fees charged by Colorado 

under its title V program, EPA notes 

that, in general, title V programs are not 

part of the SIP.17 Thus, such programs 

are not part of the requirements of 

section 110(a)(2). Furthermore, section 

502(b)(3) of the Act requires not only 

that title V program fees cover the 

reasonable direct and indirect costs of 

developing and administering the title V 

program, but also requires that the fees 

be used only to cover those costs. EPA 

therefore disagrees with the comment 

that the alleged flaws in the title V 

program with respect to the amount of 

fees charged by the State prevent EPA 

from approving the Colorado 

infrastructure SIP for the 1997 ozone 

NAAQS for element 110(a)(2)(E)(i). The 

State provided evidence that its overall 

budget is sufficient to carry out its 

obligations and the issue raised by the 

commenter does not refute that overall 

budget. 

EPA also disagrees with the 

commenter’s argument that the amount 

of fees charged by the State in its title 

V program renders the infrastructure SIP 

unapprovable with respect to section 

110(a)(2)(L). As stated in the text of the 

section, 110(a)(2)(L) is no longer 

applicable to title V operating permit 

programs after approval of such 

programs. As noted in the NPR, 76 FR 

at 28714, final approval of Colorado’s 

title V operating permit program became 

effective October 16, 2000 (65 FR 

49919). EPA therefore disagrees with the 

comment that EPA cannot approve 

Colorado’s infrastructure SIP for section 

110(a)(2)(L) on the basis of alleged flaws 

in Colorado’s title V program. 

Comment No. 2: The commenter 

argued that Colorado’s SIP fails to meet 

the PSD requirements of section 

110(a)(2)(J) due to a lack of ozone 

impact analysis for new or modified 

major sources. The commenter alleged a 

number of specific inadequacies, which 

EPA discusses separately below. 

Comment 2.a: The commenter 

asserted that the SIP does not require 

the APCD to ensure that a new or 

modified source does not cause or 

contribute to violations of the ozone 

NAAQS prior to issuance. The 

commenter cited section 165(a)(3) of the 

Act and quoted the language of 40 CFR 

51.166(k)(1). The commenter later stated 

that nothing in the Colorado SIP 

explicitly requires that ozone impacts be 

addressed in the context of issuing a 

PSD permit. 

EPA Response: EPA disagrees with 

the commenter’s interpretation of the 

Colorado SIP. Section VI.A.2 of part D 

of Regulation Number 3 in the Colorado 

SIP, applicable to sources subject to 

PSD, specifically requires a source 

impact analysis.18 The language of 

section VI.A.2 mirrors the language in 

40 CFR 51.166(k)(1) quoted by the 

commenter. In addition, there is nothing 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43911 

19For an explanation and discussion of SILs, in 

the context of PM2.5, see 75 FR 64864 (Oct. 20, 

2010). 

in this section or any other section of 

the SIP that exempts sources from 

carrying out the source impact analysis 

for the 1997 ozone NAAQS. Nor does 

the commenter cite any provision of the 

SIP that creates such an exemption. EPA 

concludes that the commenter is 

therefore in error in stating that the 

Colorado SIP does not require the 

source impact analysis set out in 40 CFR 

51.166(k)(1). Furthermore, section 

VI.A.2 requires the owner or operator of 

the proposed new source or 

modification to demonstrate that the 

construction or modification of the 

source will not cause or contribute to a 

violation of any NAAQS. Such language 

includes the 1997 8-hour ozone 

NAAQS; thus the commenter is also in 

error in stating that the SIP does not 

specifically require ozone impacts to be 

addressed. 

Comment 2.b: The commenter stated 

that the SIP is deficient because it does 

not identify any significant impact 

levels for ozone. 

EPA Response: EPA has not identified 

significant impact levels (SILs) for 

ozone.19 The comment therefore does 

not provide any basis for EPA to change 

its proposed approval of the Colorado 

infrastructure SIP for section 

110(a)(2)(C) or (J) for the 1997 ozone 

NAAQS. 

Comment 2.c: The commenter 

asserted that section VI.A.3.e of Part D 

of Regulation Number 3 ‘‘explicitly 

allows the owner or operator of a 

proposed major source or major 

modification to forego a preconstruction ozone analysis altogether.’’ 

EPA Response: EPA disagrees with 

the commenter’s characterization of the 

Colorado SIP. First, EPA notes that 

section VI.A.3.e (and the parallel 

provision in 40 CFR 51.166(m)(1)(v)) 

applies only if a proposed major 

stationary source or major modification 

of volatile organic compounds (VOCs) 

meets the requirements of 40 CFR part 

51, Appendix S, Section IV, including, 

in particular, the requirement to satisfy 

the lowest achievable emissions rate 

(LAER) for VOCs. Second, the 

commenter appears to misunderstand 

the scope of this provision. Contrary to 

the commenter’s assertion, the provision 

does not exempt any sources from the 

requirement to perform the source 

impact analysis in section VI.A.2 

(discussed in the response to comment 

2.a above). Instead, the provision allows 

sources that (among other things) 

employ LAER for VOCs to use postconstruction monitoring to replace the 

pre-application air quality analysis 

requirements of section VI.A.3.a. This 

option is specifically provided for in 40 

CFR 51.166(m)(1)(v). 

Comment 2.d: The commenter alleged 

that the SIP does not meet the 

requirements of 40 CFR 51.166(l)(1), 

which requires the SIP to base 

applications of air quality modeling in 

PSD permitting on the applicable 

models, data bases, and other 

requirements specified in Appendix W 

of 40 CFR part 51, and requires 

modification and substitution of such 

models to be approved by the 

Administrator. The commenter also 

asserted that the Colorado SIP does not 

specify any approved methodology for 

analyzing ozone impacts, contrary to 

PSD requirements under the CAA. 

EPA Response: EPA disagrees with 

the commenter’s reading of the 

requirements of the Colorado SIP. The 

Colorado SIP includes section VIII.A of 

part A of Regulation Number 3, which 

specifically requires estimates of 

ambient air concentrations required 

under Regulation Number 3 to be based 

on applicable models, data bases, and 

other requirements generally required 

by the EPA. Although section VIII.A 

does not specifically reference 

Appendix W, in the context of the 

source impact analysis in section VI.A.2 

for PSD permitting, we interpret this 

language to include the requirements 

specified in Appendix W. In addition, 

section VIII.A requires any modification 

or substitution of a model to be subject 

to public notice and comment and to be 

approved in writing by EPA (which we 

interpret to mean the Administrator or 

her delegee). EPA therefore disagrees 

with the comment that the Colorado SIP 

does not meet the requirements of 40 

CFR 51.166(l)(1). Furthermore, the 

comment implies that the Colorado SIP 

must specify an approved methodology 

for analyzing ozone impacts, but did not 

explain what provision creates such a 

requirement for the Colorado SIP. EPA 

therefore disagrees with the comment 

that the Colorado SIP is contrary to PSD 

requirements under the Act. 

Comment 2.e: The commenter stated 

that the APCD has not interpreted its 

SIP to require an analysis of ozone 

impacts. As evidence, the commenter 

quoted the following statement in 

APCD’s modeling guidance: ‘‘ozone 

modeling is not routinely requested for 

construction permits, although it could 

be in unusual cases such as situations 

where the Division believes ozone 

standards could realistically be violated 

by the proposed source or 

modification.’’ 

EPA Response: EPA disagrees with 

the commenter’s characterization of 

APCD’s position. EPA first notes that 

the quoted language is in the chapter of 

the APCD modeling guidance regarding 

the demonstration to be made for 

construction permits for minor sources. 

While the relevant chapter of the APCD 

modeling guidance (regarding new 

major stationary sources and major 

modifications) does refer to the minor 

source chapter, it is not clear that the 

statement in the minor source chapter 

about the frequency of requests for 

ozone modeling applies to sources 

subject to PSD. Furthermore, the 

modeling guidance elsewhere states (see 

pages 7–9) that a source impact analysis 

(as discussed in the response to 

comment 2.a above and as required by 

the SIP) must be performed for sources 

subject to PSD. 

As discussed above in the response to 

comment 2.d, the Colorado SIP requires 

estimates of ambient air concentrations 

to be based on the applicable models, 

data bases, and other requirements 

generally required by the EPA, which 

EPA interprets to include the 

requirements of Appendix W of 40 CFR 

part 51, Guideline on Air Quality 

Models. Section 5.2.1 of Appendix W 

includes the Guideline 

recommendations for models to be 

utilized in assessing ambient air quality 

impacts for ozone. Section 5.2.1.c 

provides that the model users (state and 

local permitting authorities and 

permitting applicants) should work with 

the appropriate EPA Regional Office on 

a case-by-case basis to determine an 

adequate method for performing an air 

quality analysis for assessing ozone 

impacts. Due to the complexity of 

modeling ozone and the dependency on 

the regional characteristics of 

atmospheric conditions, this is an 

appropriate approach for assessing 

ozone impacts rather than specifying 

one particular preferred model 

nationwide, which may not be 

appropriate in all circumstances. 

Instead, the choice of method ‘‘depends 

on the nature of the source and its 

emissions. Thus, model users should 

consult with the Regional Office * * * 

’’ Appendix W Section 5.2.1.c. 

Therefore, it is appropriate for 

permitting authorities to consult and 

work with EPA Regional Offices as 

described in Appendix W, including 

section 3.0.b and c, 3.2.2, and 3.3, to 

determine the appropriate approach to 

assess ozone impacts as required for 

sources subject to PSD. Although EPA 

has not selected one particular preferred 

model in Appendix A to Appendix W 

(Summaries of Preferred Air Quality 

Models) for conducting ozone impact 

analyses for individual sources, state/ 


emcdonald on DSK2BSOYB1PROD with RULES
43912 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

local permitting authorities must 

comply with the appropriate PSD 

Federal Implementation Plan (FIP) or 

SIP requirements with respect to ozone. 

EPA has had a standard approach in 

its PSD SIP and FIP rules of not 

mandating the use of a particular model 

for all circumstances, instead treating 

the choice of a particular method for 

analyzing ozone impacts as 

circumstance-dependent. EPA then 

determines whether the State’s 

implementation plan revision submittal 

meets the PSD SIP requirements. As 

explained above, in this case the 

Colorado SIP meets the requirements of 

40 CFR part 51.166(k) and (l). 

III. Final Action 

In this action, EPA is approving in 

full the following section 110(a)(2) 

infrastructure elements for Colorado for 

the 1997 ozone NAAQS: (A), (B), (C), 

(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), 

(L), and (M). EPA is taking no action 

today on section 110(a)(2)(E)(ii) for the 

1997 ozone NAAQS. EPA will address 

this sub-element in a later action. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations 

(42 USC 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 CAA. 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 USC 272 note) because 

application of those requirements would 

be inconsistent with the CAA; 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 September 20, 

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, Carbon monoxide, 

Incoporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 30, 2011. 

James B. Martin, 

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 52.353 is added to read as 

follows: 

§ 52.353 Section 110(a)(2) infrastructure 

requirements. 

On January 7, 2008 James B. Martin, 

Executive Director of the Colorado 

Department of Public Health and 

Environment for the State of Colorado, 

submitted a certification letter which 

provides the State of Colorado’s SIP 

provisions which meet the requirements 

of CAA Section 110(a)(1) and (2) 

relevant to the 1997 Ozone NAAQS. 

[FR Doc. 2011–18421 Filed 7–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0301; FRL–9441–6] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-hour Ozone National Ambient 

Air Quality Standards; South Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State 

Implementation Plan (SIP) submission 

from the State of South Dakota to 

demonstrate that the SIP meets the 

requirements of the Clean Air Act (CAA) 

for the National Ambient Air Quality 

Standards (NAAQS) promulgated for 

ozone on July 18, 1997. The CAA 

requires that each state, after a new or 

revised NAAQS is promulgated, review 

their SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’. The State of South Dakota 


emcdonald on DSK2BSOYB1PROD with RULES