[Federal Register Volume 84, Number 145 (Monday, July 29, 2019)]
[Proposed Rules]
[Pages 36516-36534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15797]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0140; FRL-9996-89-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2015 Ozone National Ambient Air 
Quality Standards; Colorado and North Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On October 1, 2015, the Environmental Protection Agency (EPA) 
promulgated the 2015 ozone NAAQS, revising the standard to 0.070 parts 
per million. Whenever a new or revised National Ambient Air Quality 
Standard (NAAQS) is promulgated, the Clean Air Act (CAA or Act) 
requires each state to submit a State Implementation Plan (SIP) 
revision for the implementation, maintenance, and enforcement of the 
new standard. This submission is commonly referred to as an 
infrastructure SIP. In this action we are proposing to approve multiple 
elements and disapprove a single element of the following 
infrastructure SIP submissions with respect to infrastructure 
requirements for the 2015 ozone NAAQS: Colorado, submitted to the EPA 
on September 17, 2018; and North Dakota, submitted to the EPA on 
November 6, 2018. We are also proposing to approve a portion of North 
Dakota's May 2, 2019 submission of chapter 33.1-15-15, the air 
pollution control rules of the State of North Dakota, that updates the 
date of incorporation by reference (IBR) of Federal rules.

DATES: Written comments must be received on or before August 28, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0140, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
www.regulations.gov. The EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation 
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The 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, 8:00 a.m. 
to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Amrita Singh, (303) 312-6103, 
singh.amrita@epa.gov; or Clayton Bean, (303) 312-6143, 
bean.clayton@epa.gov. Mail can be directed to the Air and Radiation 
Division, U.S. EPA, Region 8, Mail-code 8ARD-QP, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.

SUPPLEMENTARY INFORMATION: Throughout this document, ``reviewing 
authority,'' ``we,'' ``us,'' and ``our'' refer to the EPA.

Table of Contents

I. Background
    A. What infrastructure elements are required under sections 
110(a)(1) and (2)?
    B. How did the states address the infrastructure elements of 
sections 110(a)(1) and (2)?
    1. Colorado
    2. North Dakota
II. What is the scope of this proposed rule?
III. The EPA's Evaluation of the State Submittals
    A. CAA Section 110(a)(2)(A): Emission Limits and Other Control 
Measures

[[Page 36517]]

    1. Colorado
    2. North Dakota
    B. CAA Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data 
System
    1. Colorado
    2. North Dakota
    C. CAA Section 110(a)(2)(C): Program for Enforcement of Control 
Measures
    1. Colorado
    2. North Dakota
    D. CAA Section 110(a)(2)(D): Interstate Transport
    1. Colorado
    Prongs 1 and 2: Significant Contribution to Nonattainment and 
Interference With Maintenance
    Prong 3: Interference With PSD Measures
    Prong 4: Interference With Measures to Protect Visibility
    110(a)(2)(D)(ii): Interstate and International Transport 
Provisions
    2. North Dakota
    Prongs 1 and 2: Significant Contribution to Nonattainment and 
Interference With Maintenance
    Prong 3: Interference With PSD Measures
    Prong 4: Interference With Measures to Protect Visibility
    110(a)(2)(D)(ii): Interstate and International Transport 
Provisions
    E. CAA Section 110(a)(2)(E): Adequate Resources
    1. Colorado
    2. North Dakota
    F. CAA Section 110(a)(2)(F): Stationary Source Monitoring System
    1. Colorado
    2. North Dakota
    G. CAA Section 110(a)(2)(G): Emergency Episodes
    1. Colorado
    2. North Dakota
    H. CAA Section 110(a)(2)(H): Future SIP Revisions
    1. Colorado
    2. North Dakota
    I. CAA Section 110(a)(2)(I): Nonattainment Area Plan Revision 
Under Part D
    J. CAA Section 110(a)(2)(J): Consultation With Government 
Officials, Public Notification, PSD and Visibility Protection
    1. Colorado
    2. North Dakota
    K. CAA Section 110(a)(2)(K): Air Quality and Modeling/Data
    1. Colorado
    2. North Dakota
    L. CAA Section 110(a)(2)(L): Permitting Fees
    1. Colorado
    2. North Dakota
    M. CAA Section 110(a)(2)(M): Consultation/Participation by 
Affected Local Entities
    1. Colorado
    2. North Dakota
    N. Revisions to North Dakota Air Pollution Control Rules
IV. Proposed Action
    Table 1: Infrastructure Elements That the EPA Is Proposing To 
Act On
V. Incorporation by Reference
VI. Statutory and Executive Orders Review

I. Background

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone, 
revising the levels of the primary and secondary 8-hour ozone standards 
from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). More 
recently, on October 1, 2015, the EPA promulgated and revised the NAAQS 
for ozone, further strengthening the primary and secondary 8-hour 
standards to 0.070 ppm (80 FR 65292). The October 1, 2015 standards are 
known as the 2015 ozone NAAQS.
    Under sections 110(a)(1) and (2) of the CAA, after the promulgation 
of a new or revised NAAQS states are required to submit infrastructure 
SIPs to ensure their SIPs provide for implementation, maintenance, and 
enforcement of the NAAQS. These submissions must contain any revisions 
needed for meeting the applicable SIP requirements of section 
110(a)(2), or certifications that the existing SIPs already meet those 
requirements. The EPA highlighted this statutory requirement in an 
October 2, 2007 guidance document entitled ``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'' (2007 Memo). 
On September 25, 2009, the EPA issued an additional guidance document 
pertaining to 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)'' (2009 Memo), followed by the October 14, 2011 
``Guidance on Infrastructure SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS)'' (2011 Memo). Most recently, the EPA issued 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 
(2013 Memo).

A. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section 110(a)(2) lists specific elements the SIP must 
contain or satisfy. These infrastructure elements include requirements 
such as modeling, monitoring, and emissions inventories, which are 
designed to assure attainment and maintenance of the NAAQS. The 
elements that are the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements for Colorado and 
North Dakota is contained in section III of this document.

B. How did the states address the infrastructure elements of sections 
110(a)(1) and (2)?

    The Colorado and North Dakota 2015 ozone NAAQS infrastructure SIP 
submissions demonstrate how the states, where applicable, have plans in 
place that meet the requirements of section 110 for the 2015 ozone 
NAAQS. The state submittals are available within the electronic docket 
for today's proposed action at www.regulations.gov.
1. Colorado
    The Colorado Department of Public Health and Environment (CDPHE) 
submitted a certification of Colorado's infrastructure SIP for the 2015 
ozone NAAQS on September 17, 2018. The State's submission references 
the current Air Quality Control Commission (AQCC) regulations and 
Colorado Revised Statutes (C.R.S.). The AQCC regulations referenced in 
the submittal are publicly available at https://www.colorado.gov/pacific/cdphe/aqcc-regs and http://www.lexisnexis.com/hottopics/colorado/. Colorado's approved SIP can be found at 40 CFR 52.320.
2. North Dakota
    The North Dakota Department of Health/Department of Environmental 
Quality (NDEQ) \1\ submitted certification

[[Page 36518]]

for North Dakota's infrastructure SIP for the 2015 ozone NAAQS on 
November 6, 2018. The State's submission references the North Dakota 
Century Code (NDCC) and the North Dakota Air Pollution Control Rules 
(APCR) contained in the North Dakota Administrative Code (NDAC). The 
NDCC and NDAC referenced in the submittals are publicly available at 
http://www.legis.nd.gov/general-information/north-dakota-century-code 
and http://www.legis.nd.gov/cencode/t23c25.html. North Dakota's 
approved SIP can be found at 40 CFR 52.1820.
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    \1\ The EPA notes that the North Dakota state legislature 
created the North Dakota Department of Environmental Quality (NDEQ) 
in 2017. The EPA approved changes to the North Dakota SIP for 
purposes of transferring authority from the North Dakota Department 
of Health (NDDH) to the NDEQ. We approved the transfer of authority 
to implement and enforce the EPA-approved SIP on February 5, 2019 
(84 FR 1610). We also approved a recodification of the state's 
previously-approved APCR. Given this transfer of authority and 
change in numbering of North Dakota's codified regulations, the 
state's submittal for this proposed action references rules and 
regulations prior to the EPA's final approval, but under the new 
codification. See also, 84 FR 8260, March 7, 2019.
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II. What is the scope of this proposed rule?

    The EPA is acting upon the SIP submissions from Colorado and North 
Dakota that address the infrastructure requirements of CAA sections 
110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS. The requirement for 
states to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon the EPA 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    Whenever the EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity 
in some of the language of CAA section 110(a)(2), the EPA finds that it 
is appropriate to interpret these provisions in the specific context of 
acting on infrastructure SIP submissions. The EPA has previously 
provided comprehensive guidance on the application of these provisions 
through a guidance document for infrastructure SIP submissions and 
through regional actions on infrastructure submissions.\2\ Unless 
otherwise noted below, we are following that existing approach in 
acting on this submission. In addition, in the context of acting on 
such infrastructure submissions, the EPA evaluates the state's SIP for 
facial compliance with statutory and regulatory requirements, not for 
the state's implementation of its SIP.\3\ The EPA has other authority 
to address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \2\ The EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013 Infrastructure 
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/. Guidance on 
Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as 
well as in numerous agency actions, including the EPA's prior action 
on South Dakota's infrastructure SIP to address 1997 and 2006 
PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 
NAAQS (79 FR 71040, (December 1, 2014)).
    \3\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, No. 16-71933 
(August 30, 2018).
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III. The EPA's Evaluation of the State Submittals

A. CAA Section 110(a)(2)(A): Emission Limits and Other Control Measures

    Section 110(a)(2)(A) requires SIPs to include enforceable emission 
limitations and other control measures, means, or techniques (including 
economic incentives such as fees, marketable permits, and auctions of 
emissions rights), as well as schedules and timetables for compliance 
as may be necessary or appropriate to meet the applicable requirements 
of the Act.
1. Colorado
    The State's submission and the EPA's analysis:
    Multiple SIP-approved AQCC regulations cited in Colorado's 
certifications provide enforceable emission limitations and other 
control measures, means or techniques, schedules for compliance, and 
other related matters necessary to meet the requirements of the CAA 
section 110(a)(2)(A) for the 2015 NAAQS subject to the following 
clarification.
    The EPA does not consider SIP requirements triggered by the 
nonattainment area mandates in part D of Title I of the CAA to be 
governed by the submission deadline of section 110(a)(1). Nevertheless, 
Colorado has included some SIP provisions originally submitted in 
response to part D requirements in its certification for the 
infrastructure requirements of section 110(a)(2).). For the purposes of 
this action, the EPA is reviewing any rules originally submitted in 
response to part D requirements solely for the purposes of determining 
whether they support a finding that the State has met the basic 
infrastructure requirements of section 110(a)(2). For example, in 
response to the requirement to have enforceable emission limitations 
under section 110(a)(2)(A), Colorado cited to rules in Regulation 
Number 7 that were submitted to meet the reasonably available control 
technology (RACT) requirements of part D. The EPA is approving those 
rules as meeting the requirement to have enforceable emission 
limitations on ozone precursors; any judgment about whether those 
emission limitations discharge the State's obligation to impose RACT 
under part D will be made separately, in an action reviewing those 
rules pursuant to the requirements of part D. Colorado also referenced 
other SIP provisions that are relevant, such as the motor vehicle 
inspection and maintenance program in Regulation 11 and the State's 
minor new source review (NSR) and Prevention of Significant 
Deterioration (PSD) Programs in Regulation 3. We propose to find these 
provisions adequately address the requirements of element (A), again 
subject to the clarifications made in this document.
2. North Dakota
    The State's submission and the EPA's analysis:
    Multiple SIP-approved State air quality regulations within the NDAC 
cited in North Dakota's certifications provide enforceable emission 
limitations and other control measures, means or techniques, schedules 
for compliance, and other related matters necessary to meet the 
requirements of the CAA section 110(a)(2)(A) for the 2015 ozone NAAQS, 
subject to the following clarification.
    The EPA does not consider the SIP requirements triggered by the 
nonattainment area mandates in part D of Title 1 of the CAA to be 
governed by the submission deadline of section 110(a)(1). Furthermore, 
North Dakota has no areas designated as nonattainment for the 2015 
ozone NAAQS. North Dakota's certifications (contained within this 
docket) generally listed provisions within its SIP which regulate 
pollutants through various

[[Page 36519]]

programs, including major or minor source permit programs. This 
suffices, in the case of North Dakota, to meet the requirements of 
section 110(a)(2)(A) for the 2015 ozone NAAQS.

B. CAA Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System

    Section 110(a)(2)(B) requires SIPs to provide for establishment and 
operation of appropriate devices, methods, systems, and procedures 
necessary to ``(i) monitor, compile, and analyze data on ambient air 
quality, and (ii) upon request, make such data available to the 
Administrator.''
1. Colorado
    (i) The State's submission:
    As discussed in Colorado's submission, the Colorado Air Pollution 
Control Division (APCD) periodically submits a Quality Management Plan 
and a Quality Assurance Project Plan to the EPA. These plans cover 
procedures to monitor and analyze data. The provisions for episode 
monitoring, data compilation and reporting, public availability of 
information, and annual network reviews are found in the statewide 
monitoring SIP (58 FR 49435, September 23, 1993). As part of the 
monitoring SIP, Colorado submits an Annual Monitoring Network Plan 
(AMNP) each year for the EPA's approval.
    (ii) The EPA's analysis:
    A comprehensive Annual Monitoring Network Plan (AMNP), intended to 
fully meet the Federal requirements, was submitted to the EPA by 
Colorado on June 29, 2018, and subsequently approved by the EPA. We 
propose to find that Colorado's SIP and practices are adequate for the 
ambient air quality monitoring and data system requirements for the 
2015 ozone NAAQS; and therefore, propose to approve the infrastructure 
SIP for the 2015 ozone NAAQS for this element.
2. North Dakota
    (i) The State's submission:
    North Dakota references NDCC 23.1-06-04.1.1 as the provision that 
provides authority to conduct ambient air monitoring. Additionally, 
North Dakota's SIP (45 FR 53475, August 12, 1980) provides for the 
design and operation of its monitoring network, reporting of data 
obtained from the monitors, and annual network review including 
notification to the EPA of any changes, and public notification of 
exceedances of NAAQS.
    (ii) The EPA's analysis:
    The comprehensive 2018 Annual Monitoring Network Plan (AMNP), 
intended to fully meet Federal requirements, was submitted to the EPA 
by North Dakota on October 31, 2018 and subsequently approved by the 
EPA. In accordance with 40 CFR 58.10, beginning in July 2008, and every 
five years thereafter, North Dakota develops a periodic network 
assessment to ensure the effective implementation of an adequate 
ambient air quality surveillance system. The plan includes statutory 
and regulatory authority to establish and operate an air quality 
monitoring network, including ozone monitoring.
    North Dakota's SIP-approved regulations provide for the design and 
operation of its monitoring network, reporting of data obtained from 
the monitors, and annual network review including notification to the 
EPA of any changes, and public notification of exceedances of NAAQS. As 
described in its submission, North Dakota operates a comprehensive 
monitoring network, including ozone monitoring, compiles and analyzes 
collected data, and submits the data to the EPA's Air Quality System on 
a quarterly basis. Therefore, we are proposing to approve the North 
Dakota SIP as meeting the requirements of CAA section 110(a)(2)(B) for 
the 2015 ozone NAAQS.

C. CAA Section 110(a)(2)(C): Program for Enforcement of Control 
Measures

    CAA section 110(a)(2)(C) requires each state to have a program that 
provides for the following three sub-elements; enforcement, state-wide 
regulation of new and modified minor sources and minor modifications of 
major sources; and preconstruction permitting of major sources and 
major modifications in areas designated attainment or unclassifiable 
for the 2015 ozone NAAQS as required by CAA Title I part C (i.e., the 
major source PSD program).
1. Colorado
    (i) The State's submission:
    The Colorado submission refers to the following SIP-approved Code 
of Colorado Regulations (CCR) which address and provide for meeting all 
requirements of CAA section 110(a)(2)(C):

 Regulation 1, Particulates, Smokes, Carbon Monoxide, and 
Sulfur Dioxides
 Regulation 3, Stationary Source Permitting and Air Pollution 
Emission Notice Requirements
 Regulation 4, Woodburning Controls
 Regulation 7, Control of Ozone via Ozone Precursors and 
Nitrogen Oxides
 Regulation 11, Motor Vehicle Inspection
 Regulation 16, Street Sanding and Sweeping
 Common Provisions Regulation

    (ii) The EPA's analysis:
    With regard to the sub-element requirement of a program providing 
for enforcement of all SIP measures, we are proposing to find that 
Colorado's regulations provide broad authority to allow the State to 
enforce applicable laws, regulations, and standards; to seek injunctive 
relief; and to provide authority to prevent construction, modification, 
or operation of any stationary source at any location where emissions 
from such source will prevent the attainment or maintenance of a 
national standard or interfere with PSD requirements. Many of the AQCC 
regulations above address Colorado's program for enforcement of control 
measures.\4\
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    \4\ We note also that, for element 110(a)(2)(E)(i), the state 
cited 25-7-111, C.R.S., as providing the general authority for the 
Division to enforce the SIP.
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    Turning to the second sub-element, regulation of new and modified 
minor sources and minor modifications of major sources, Colorado has a 
SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of 
the Act. The minor NSR program is found in Regulation 3 of the Colorado 
SIP. The EPA originally approved Colorado's minor NSR program into the 
SIP as Regulation 3 (68 FR 37744, June 25, 2003), and over the years, 
the EPA has subsequently approved revisions to this program as 
consistent with the CAA and Federal minor NSR requirements codified at 
40 CFR 51.160 through 40 CFR 51.164. The State and the EPA have relied 
on the State's existing minor NSR program to assure that new and 
modified sources not captured by the major NSR permitting program do 
not interfere with attainment and maintenance of the NAAQS. We propose 
to determine that this program regulates construction of new and 
modified minor sources of ozone precursors for purposes of the 2015 
ozone NAAQS.
    Lastly, to generally meet the requirements of CAA section 
110(a)(2)(C) with regard to the sub-element of preconstruction 
permitting of major sources and major modifications in areas designated 
attainment or unclassifiable for the subject NAAQS as required by CAA 
Title I part C, a state is required to have PSD, NNSR, and minor NSR 
permitting programs adequate to implement the 2015 ozone NAAQS. The EPA 
interprets the CAA to require each state to make an infrastructure SIP 
submission for a new or revised NAAQS that demonstrates

[[Page 36520]]

that the air agency has a complete PSD permitting program meeting the 
current requirements for all regulated NSR pollutants. To meet this 
requirement, Colorado cited its Colorado's SIP-approved PSD program 
codified at 5 CCR 1001-5, known as Regulation 3. We most recently 
approved revisions to Colorado's PSD (and NNSR) programs on May 3, 2019 
(84 FR 18991). The EPA is proposing to approve Colorado's 
infrastructure SIP for the 2015 ozone NAAQS with respect to the general 
requirement in section 110(a)(2)(C) to include a PSD program in the SIP 
that covers all regulated pollutants including greenhouse gases (GHGs).
    In addition to these requirements, there are four other revisions 
to the Colorado SIP that are necessary to meet the requirements of 
infrastructure element 110(a)(2)(C). These four revisions are related 
to (1) the Ozone Implementation NSR Update (November 29, 2005, 70 FR 
71612); (2) the ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule'' (June 3, 2010, 75 FR 31514); (3) the 
NSR PM2.5 Rule (May 16, 2008, 73 FR 28321); and (4) the 
final rulemaking entitled ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864, Oct. 20, 
2010).
    On January 9, 2012 (77 FR 1027), we approved revisions to 
Colorado's PSD program that addressed the PSD requirements of the Phase 
2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 
71612). As a result, the approved Colorado PSD program meets the 
current requirements for ozone.
    With respect to GHGs, on June 23, 2014, the United States Supreme 
Court addressed the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S Ct. 2427 (2014). The Supreme Court held that the EPA may 
not treat GHGs as an air pollutant for purposes of determining whether 
a source is a major source required to obtain a PSD permit. The Court 
also held that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
(anyway sources) \5\ contain limitations on GHG emissions based on the 
application of Best Available Control Technology (BACT).
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    \5\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition 
of ``anyway'' sources).
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    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. 
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended 
judgment vacating the regulations that implemented Step 2 of the EPA's 
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations 
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers 
sources that are required to obtain a PSD permit based on emissions of 
pollutants other than GHGs. Step 2 applied to sources that emitted only 
GHGs above the thresholds triggering the requirement to obtain a PSD 
permit. The amended judgment preserves, without the need for additional 
rulemaking by the EPA, the application of the BACT requirement to GHG 
emissions from Step 1 or ``anyway sources.'' With respect to Step 2 
sources, the D.C. Circuit's amended judgment vacated the regulations at 
issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the 
extent they require a stationary source to obtain a PSD permit if 
greenhouse gases are the only pollutant (i) that the source emits or 
has the potential to emit above the applicable major source thresholds, 
or (ii) for which there is a significant emission increase from a 
modification.'' The EPA subsequently revised our PSD regulations to 
remove the vacated provisions. 80 FR 50199 (Aug. 19, 2015).
    The EPA has subsequently revised our PSD regulations in response to 
the Court's decision and the subsequent amended judgment by the U.S. 
Court of Appeals for the District of Columbia Circuit (the D.C. 
Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. App'x. 
6, at *7-8 (D.C. Cir. April 10, 2015). We recently approved revisions 
to the Colorado PSD program that are consistent with our revised 
regulations. See 84 FR 6732 (Feb. 28, 2019) (proposal); 84 FR 18991 
(May 3, 2019) (final). Thus, Colorado's PSD program is current with 
respect to regulation of GHGs.
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, the 
EPA promulgated the rule, ``Implementation of the New Source Review 
Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (73 FR 28321) and on October 20, 2010, the EPA 
promulgated the rule, ``Prevention of Significant Deterioration (PSD) 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of these 
PM2.5 rules as a necessary requirement when assessing a PSD 
program for the purposes of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), remanded the EPA's 
2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The 
Court ordered the EPA to ``repromulgate these rules pursuant to Subpart 
4 consistent with this opinion.'' Id. at 437. Subpart 4 of part D, 
Title 1 of the CAA establishes additional provisions for PM 
nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5)'' (73 FR 28321, May 
16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in nonattainment areas (nonattainment NSR (NNSR)) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, the EPA does not consider the 
portions of the 2008 Implementation rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected by 
the decision. Moreover, the EPA does not anticipate the need to revise 
any PSD requirements promulgated in the 2008 Implementation rule in 
order to comply with the court's decision. Accordingly, the EPA's 
proposed approval of Colorado's infrastructure SIP for elements C or J 
with respect to the PSD requirements promulgated by the 2008 
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the NNSR requirements 
promulgated by the 2008 Implementation rule also does not affect the 
EPA's action on the present infrastructure action. The EPA interprets 
the Act to exclude nonattainment area requirements, including 
requirements associated with a NNSR program, from infrastructure SIP 
submissions due three years after adoption or revision of a NAAQS. 
Instead, these elements are typically referred to as nonattainment SIP 
or attainment plan elements, which would be due by the dates 
statutorily prescribed under subpart 2 through 5 under part D, 
extending as far as 10 years following designations for some elements.
    The second PSD requirement for PM2.5 is contained in the 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring

[[Page 36521]]

Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of the 
PM2.5 increments as a necessary requirement when assessing a 
PSD program for the purposes of element (C).
    On May 11, 2012, the State submitted revisions to Regulation 3 that 
adopted all elements of the 2008 Implementation Rule and the 2010 
PM2.5 Increment Rule. However, the submittal contained a 
definition of Major Source Baseline Date which was inconsistent with 40 
CFR 51.166(b)(14)(i). On May 13, 2013, the State submitted revisions to 
Regulation 3 which incorporate the definition of Major Source Baseline 
Date which was consistent with 40 CFR 51.166(b)(14)(i). These submitted 
revisions make Colorado's PSD program up to date with respect to 
current requirements for PM2.5. The EPA approved the 
necessary portions of Colorado's May 11, 2012 and May 13, 2013 
submissions which incorporate the requirements of the 2008 
PM2.5 Implementation Rule and the 2010 PM2.5 
Increment Rule on September 23, 2013 (78 FR 58186). Colorado's SIP-
approved PSD program meets current requirements for PM2.5.
    The EPA therefore is proposing to approve Colorado's SIP for the 
2015 ozone NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a permit program in the SIP as required by part 
C of the Act.
    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program is found in 
Regulation 3 of the Colorado SIP, and was originally approved by the 
EPA as Regulation 3 of the SIP (see 68 FR 37744, June 25, 2003). Since 
approval of the minor NSR program, the State and the EPA have relied on 
the program to ensure that new and modified sources not captured by the 
major NSR permitting programs do not interfere with attainment and 
maintenance of the NAAQS. Therefore, based on the foregoing, the EPA is 
proposing to fully approve Colorado's infrastructure SIP for the 2015 
ozone NAAQS with respect to the general requirement in section 
110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved.
2. North Dakota
    (i) The State's submission:
    The North Dakota submission refers to the following state rules and 
regulations which are also SIP-approved, that address and provide for 
meeting all provisions and requirements of CAA section 110(a)(2)(C):

 NDCC 23.1-06-04.1
 NDCC 23.1-06-09
 NDCC 23.1-06-14
 NDAC 33.1-15-01-17
 NDAC 33.1-15-14-02
 NDAC 33.1-15-14-03
 NDAC 33.1-15-14-06
 NDAC 33.1-15-02
 NDAC 33.1-15-15

    (ii) The EPA's analysis:
    With regard to the sub-element requirement to have a program 
providing for enforcement of all SIP measures, we concur with the State 
that NDCC 23.1-06-14, Enforcement--Penalties--Injunctions provides the 
authority for enforcement and specifies penalties for violations of all 
North Dakota APCR (NDAPCR). Additionally, we find that NDAC 33.1-15-01-
17, Enforcement, (69 FR 61762, November 22, 2004) also provides a 
general interpretation of enforcement for the NDAPCR, thus North Dakota 
meets the first sub-element for enforcement for 110(a)(2)(C).
    Turning to the second sub-element of the state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources, North Dakota has a SIP-approved minor NSR program. The minor 
NSR program is found in NDAC 33.1-15-14-02, Permit to Construct; NDAC 
33.1-15-14-03, Minor Source Permit to Operate; and NDAC 33.1-15-14-
06.1, Title V Permit to Operate. The EPA previously approved North 
Dakota's minor NSR program into the SIP, with our most recent approved 
revision occurring on October 21, 2016 (81 FR 72718). The EPA has 
approved revisions to this program as consistent with the CAA and 
Federal minor NSR requirements codified at 40 CFR 51.160 through 40 CFR 
51.164. The State and the EPA have relied on the State's existing minor 
NSR program to assure that new and modified sources not captured by the 
major NSR permitting program do not interfere with attainment and 
maintenance of the NAAQS. We propose to determine that this program 
regulates construction of new and modified minor sources of ozone 
precursors for purposes of the 2015 ozone NAAQS, thereby meeting the 
second sub-element for regulation of minor sources and minor 
modifications for 110(a)(2)(C).
    Lastly, to generally meet the requirements of CAA section 
110(a)(2)(C) with regard to the sub-element of preconstruction 
permitting of major sources and major modifications in areas designated 
attainment or unclassifiable for the subject NAAQS as required by CAA 
title I part C, a state is required to have PSD, NNSR, and minor NSR 
permitting programs adequate to implement the 2015 ozone NAAQS.
    With respect to Elements (C) and (J), the EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS demonstrating that the air agency has a complete PSD 
permitting program meeting the current requirements for all regulated 
NSR pollutants. The requirements of Element D(i)(II) prong 3 may also 
be satisfied by demonstrating the air agency has a complete PSD 
permitting program that applies to all regulated NSR pollutants. North 
Dakota has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    On June 3, 2010 (75 FR 31291), we approved a revision to the North 
Dakota PSD program that addressed the PSD requirements of the Phase 2 
Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 
71612). We most recently approved revisions to North Dakota's PSD 
program on October 21, 2016 (81 FR 72718). North Dakota's SIP approved 
PSD program is codified in NDAC 33.1-15-15 and incorporates by 
reference all Federal PSD regulations. As a result, the EPA-approved 
North Dakota PSD program meets the current requirements for ozone.
    Similarly, on October 23, 2012 (77 FR 64736), we approved a North 
Dakota SIP revision that revised the date of incorporation by reference 
of the Federal PSD program to July 2, 2010. As explained in the notice 
for that action, that revision addressed the PSD requirements related 
to GHGs provided in the EPA's June 3, 2010 ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (75 FR 
31514). The approved North Dakota PSD program thus also meets current 
requirements for GHGs.
    Based on the Supreme Court GHG decision discussion above, the EPA 
has determined that North Dakota's SIP is sufficient to satisfy 
Elements (C), (D)(i)(II) prong 3 and (J) with respect to GHGs. This is 
due to the PSD permitting program previously approved by the EPA into 
the SIP continues to require that PSD permits issued to ``anyway 
sources'' contain limitations on GHG emissions based on the application 
of BACT. The approved North Dakota PSD permitting program still 
contains some provisions regarding Step 2 sources that are no longer 
necessary in light of the Supreme Court decision and D.C. Circuit's 
amended judgment. Nevertheless, the presence of these provisions in the 
previously-approved

[[Page 36522]]

plan does not render the infrastructure SIP submission inadequate to 
satisfy Elements (C), (D)(i)(II) prong 3 and (J). The SIP contains the 
PSD requirements for applying the BACT requirement to greenhouse gas 
emissions from ``anyway sources'' that are necessary at this time. The 
application of those requirements is not impeded by the presence of 
other previously-approved provisions regarding the permitting of Step 2 
sources. Accordingly, the Supreme Court decision and subsequent D.C. 
Circuit judgment do not prevent the EPA's approval of North Dakota's 
infrastructure SIP as to the requirements of Elements (C), (D)(i)(II) 
prong 3, and (J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. Noting the PM2.5 
discussion above the EPA's proposed approval of North Dakota's 
infrastructure SIP as to Elements (C), (D)(i)(II) prong 3, and (J) with 
respect to the PSD requirements promulgated by the 2008 Ozone 
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the NNSR requirements 
promulgated by the 2008 Implementation Rule also does not affect the 
EPA's action on the present infrastructure action. The EPA interprets 
the Act to exclude nonattainment area requirements, including 
requirements associated with a NNSR program, from infrastructure SIP 
submissions due three years after adoption or revision of a NAAQS. 
Instead, these elements are typically referred to as nonattainment SIP 
or attainment plan elements, which would be due by the dates 
statutorily prescribed under subpart 2 through 5 under part D, 
extending as far as 10 years following designations for some elements.
    The second PSD requirement for PM2.5 is contained in the 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA 
regards adoption of the PM2.5 increments as a necessary 
requirement when assessing a PSD program for the purposes of Element 
(C).
    On October 23, 2012 (77 FR 64736), the EPA approved SIP revisions 
that revised North Dakota's PSD program which incorporated the 2008 
Implementation Rule. On July 30, 2013 (78 FR 45866), the EPA approved 
revisions to the North Dakota SIP to reflect the 2010 PM2.5 
Increment Rule. Therefore, North Dakota's SIP approved PSD program 
meets current requirements for PM2.5.
    Therefore, the EPA is proposing to approve North Dakota's 
infrastructure SIP for the 2015 ozone NAAQS with respect to the 
requirement in section 110(a)(2)(C) to include a PSD permitting program 
in the SIP that covers the requirements for all regulated NSR 
pollutants as required by part C of the Act.
    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act, originally approved by the EPA on 
August 21, 1995 (60 FR 43401). The minor NSR program is found in NDAC 
33.1-15-14-02, Permit to Construct; NDAC 33.1-15-14-03, Minor Source 
Permit to Operate; and NDAC 33.1-15-14-06, Title V Permit to Operate. 
Since approval of the minor NSR program, the State and the EPA have 
relied on the State's existing minor NSR program to assure that new and 
modified sources not captured by the major NSR permitting program do 
not interfere with attainment and maintenance of the NAAQS.
    Therefore, based on the foregoing, the EPA is proposing to approve 
North Dakota's infrastructure SIP for the 2015 ozone NAAQS with respect 
to the general requirement in section 110(a)(2)(C) to include a program 
in the SIP that regulates the enforcement of control measures in the 
SIP, and the modification and construction of any stationary source as 
necessary to assure that the NAAQS are achieved.

D. CAA Section 110(a)(2)(D): Interstate Transport

    CAA section 110(a)(2)(D)(i) consists of four separate elements, or 
``prongs.'' CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain 
adequate provisions prohibiting emissions which will contribute 
significantly to nonattainment of the NAAQS in any other state (prong 
1), and adequate provisions prohibiting emissions which will interfere 
with maintenance of the NAAQS by any other state (prong 2). CAA section 
110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions 
prohibiting emissions which will interfere with any other state's 
required measures to prevent significant deterioration of its air 
quality (prong 3), and adequate provisions prohibiting emissions which 
will interfere with any other state's required measures to protect 
visibility (prong 4). Under section 110(a)(2)(D)(i)(I) of the CAA, the 
EPA and states must give independent significance to prong 1 and prong 
2 when evaluating downwind air quality problems under section 
110(a)(2)(D)(i)(i)(I).\6\
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    \6\ See North Carolina v. EPA, 531 F.3d 896, 909-911 (2008).
---------------------------------------------------------------------------

    With regard to the prong 1 and prong 2 requirements of CAA section 
110(a)(2)(D)(i)(I), the EPA has addressed these requirements with 
respect to prior ozone NAAQS in several regional regulatory actions, 
including the Cross-State Air Pollution Rule (CSAPR), which addressed 
interstate transport with respect to the 1997 ozone NAAQS as well as 
the 1997 and 2006 fine PM standards, and the Cross-State Air Pollution 
Rule Update for the 2008 ozone NAAQS (CSAPR Update).\7\ These actions 
only addressed interstate transport in the Eastern United States \8\ 
and did not address the 2015 ozone NAAQS.
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    \7\ See 76 FR 48208 (August 8, 2011) (i.e., CSAPR) and 81 FR 
74504 (October 26, 2016) (i.e., CSAPR Update).
    \8\ For purposes of the CSAPR and CSAPR Update actions, the 
Western U.S. (or the West) was considered to consist of the 11 
western contiguous states of Arizona, California, Colorado, Idaho, 
Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. 
The Eastern U.S. (or the East) was considered to consist of the 37 
states east of the 11 Western states.
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    Through the development and implementation of CSAPR, the CSAPR 
Update and previous regional rulemakings pursuant to the good neighbor 
provision,\9\ the EPA, working in partnership with states, developed 
the following four-step interstate transport framework to address the 
requirements of the good neighbor provision for the ozone NAAQS: \10\ 
(1) Identify downwind air quality problems; (2) identify upwind states 
that impact those downwind air quality problems sufficiently such that 
they are considered ``linked'' and therefore warrant further review and 
analysis; (3) identify the emissions reductions necessary (if any), 
considering cost and air quality factors, to prevent linked upwind 
states identified in step 2 from contributing significantly to 
nonattainment or interfering with maintenance of the NAAQS at the 
locations of the downwind air quality problems; and (4) adopt permanent 
and enforceable measures needed to achieve those emissions reductions.
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    \9\ Other regional rulemakings addressing ozone transport 
include the NOX SIP Call, 63 FR 57356 (October 27, 1998), 
and the Clean Air Interstate Rule (CAIR), 70 FR 25162 (May 12, 
2005).
    \10\ The four-step interstate framework has also been used to 
address requirements of the good neighbor provision for some 
previous particulate matter and ozone NAAQS, including in the 
Western United States. See, e.g., 83 FR 30380 (June 28, 2018) and 83 
FR 5375, 5376-77 (February 7, 2018).
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    The EPA has released several documents containing information 
relevant to evaluating interstate

[[Page 36523]]

transport with respect to the 2015 ozone NAAQS. First, on January 6, 
2017, the EPA published a notice of data availability (NODA) with 
preliminary interstate ozone transport modeling with projected ozone 
design values for 2023, on which we requested comment.\11\ The year 
2023 was used as the analytic year for this preliminary modeling 
because that year aligns with the expected attainment year for Moderate 
ozone nonattainment areas.\12\ On October 27, 2017, we released a 
memorandum (October 2017 Memo) containing updated modeling data for 
2023, which incorporated changes made in response to comments on the 
NODA.\13\ Although the October 2017 Memo released data for a 2023 
modeling year, we specifically stated that the modeling may be useful 
for states developing SIPs to address remaining good neighbor 
obligations for the 2008 ozone NAAQS but did not address the 2015 ozone 
NAAQS. And, on March 27, 2018, we issued a memorandum (March 2018 Memo) 
indicating the same 2023 modeling data released in the October 2017 
Memo could also be useful for evaluating potential downwind air quality 
problems with respect to the 2015 ozone NAAQS (step 1 of the four-step 
framework). The March 2018 Memo included newly available contribution 
modeling results to assist states in evaluating their impact on 
potential downwind air quality problems (step 2 of the four-step 
framework) in their efforts to develop good neighbor SIPs for the 2015 
ozone NAAQS to address their interstate transport obligations.\14\ The 
EPA subsequently issued two more memoranda in August and October 2018, 
providing guidance to states developing good neighbor SIPs for the 2015 
NAAQS concerning, respectively, potential contribution thresholds that 
may be appropriate to apply in step 2 and considerations for 
identifying downwind areas that may have problems maintaining the 
standard (under interstate transport prong 2) at step 1 of the 
framework.\15\
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    \11\ See Notice of Availability of the Environmental Protection 
Agency's Preliminary Interstate Ozone Transport Modeling Data for 
the 2015 Ozone National Ambient Air Quality Standard (NAAQS), 82 FR 
1733 (January 6, 2017).
    \12\ 82 FR 1735 (January 6, 2017).
    \13\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2008 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), October 27, 2017, available in the docket for 
this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
    \14\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), March 27, 2018, available in the docket for this 
action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
    \15\ See Analysis of Contribution Thresholds for Use in Clean 
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards, August 31, 2018) (``August 2018 
memorandum''), and Considerations for Identifying Maintenance 
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I) 
Interstate Transport State Implementation Plan Submissions for the 
2015 Ozone National Ambient Air Quality Standards, October 19, 2018, 
available in the docket for this action or at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
---------------------------------------------------------------------------

    The March 2018 Memo describes the process and results of the 
updated photochemical and source-apportionment modeling used to project 
ambient ozone concentrations for the year 2023 and the state-by state 
impacts on those concentrations. The March 2018 Memo also explains that 
the selection of the 2023 analytic year aligns with the 2015 NAAQS 
attainment year for Moderate nonattainment areas. As described in more 
detail in the October 2017 and March 2018 memoranda, the EPA used the 
Comprehensive Air Quality Model with Extensions (CAMx version 6.40) to 
model average and maximum design values in 2023 to identify potential 
nonattainment and maintenance receptors (i.e., monitoring sites that 
are projected to have problems attaining or maintaining the 2015 ozone 
NAAQS). The March 2018 Memo presents design values calculated in two 
ways: First, following the EPA's historic ``3 x 3'' approach\16\ to 
evaluating all sites, and second, following a modified approach for 
coastal monitoring sites in which ``overwater'' modeling data were not 
included in the calculation of future year design values (referred to 
as the ``no water'' approach).
---------------------------------------------------------------------------

    \16\ See March 2018 Memo, at 4.
---------------------------------------------------------------------------

    For purposes of identifying potential nonattainment and maintenance 
receptors in 2023, the EPA applied the same approach used in the CSAPR 
Update, wherein the EPA considered a combination of monitoring data and 
modeling projections to identify monitoring sites that are projected to 
have problems attaining or maintaining the NAAQS. Specifically, the EPA 
identified nonattainment receptors as those monitoring sites with 
measured values \17\ exceeding the NAAQS that also have projected 
(i.e., in 2023) average design values exceeding the NAAQS. The EPA 
identified maintenance receptors as those monitoring sites with 
projected maximum design values exceeding the NAAQS. This included 
sites with measured values below the NAAQS but with projected average 
and maximum design values exceeding the NAAQS, and monitoring sites 
with projected average design values below the NAAQS but with projected 
maximum design values exceeding the NAAQS. The EPA included the design 
values and monitoring data for all monitoring sites projected to be 
potential nonattainment or maintenance receptors based on the updated 
2023 modeling in Attachment B to the March 2018 Memo.
---------------------------------------------------------------------------

    \17\ The EPA used 2016 ozone design values, based on 2014-2016 
measured data, which were the most current data at the time of the 
analysis. See attachment B of the March 2018 Memo, at B-1.
---------------------------------------------------------------------------

    After identifying potential downwind nonattainment and maintenance 
receptors, the EPA next performed nationwide, state-level ozone source-
apportionment modeling to estimate the expected impact from each state 
to each nonattainment and maintenance receptor.\18\ The EPA included 
contribution information resulting from the source-apportionment 
modeling in Attachment C to the March 2018 Memo. For more specific 
information on the modeling and analysis, please see the 2017 and March 
2018 memoranda, the NODA for the preliminary interstate transport 
assessment, and the supporting technical documents included in the 
docket for this action.
---------------------------------------------------------------------------

    \18\ As discussed in the March 2018 Memo, the EPA performed 
source-apportionment model runs for a modeling domain that covers 
the 48 contiguous United States and the District of Columbia, and 
adjacent portions of Canada and Mexico.
---------------------------------------------------------------------------

    In the CSAPR and the CSAPR Update, the EPA used a threshold of one 
percent of the NAAQS to determine whether a given upwind state was 
``linked'' at step 2 of the four-step framework and would therefore 
contribute to downwind nonattainment and maintenance sites identified 
in step 1. If a state's impact did not equal or exceed the one percent 
threshold, the upwind state was not ``linked'' to a downwind air 
quality problem, and the EPA therefore concluded the state will not 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS in the downwind states. However, if a state's impact 
equaled or exceeded the one percent threshold, the state's emissions 
were further evaluated in step 3, taking into account both air quality 
and cost considerations, to determine what, if any, emissions 
reductions might be necessary to address the good neighbor provision.
    As noted previously, on August 31, 2018, the EPA issued a 
memorandum (August 2018 Memo) providing guidance concerning potential

[[Page 36524]]

contribution thresholds that may be appropriate to apply with respect 
to the 2015 NAAQS in step 2. Consistent with the process for selecting 
the one percent threshold in CSAPR and the CSAPR Update, the August 
2018 Memo included analytical information regarding the degree to which 
potential air quality thresholds would capture the collective amount of 
upwind contribution from upwind states to downwind receptors for the 
2015 ozone NAAQS. The August 2018 Memo indicated that, based on the 
EPA's analysis of its most recent modeling data, the amount of upwind 
collective contribution captured using a 1 ppb threshold is generally 
comparable, overall, to the amount captured using a threshold 
equivalent to one percent of the 2015 ozone NAAQS. Accordingly, the EPA 
indicated that it may be reasonable and appropriate for states to use a 
1 ppb contribution threshold, as an alternative to the one percent 
threshold, at step 2 of the four-step framework in developing their SIP 
revisions addressing the good neighbor provision for the 2015 ozone 
NAAQS.\19\
---------------------------------------------------------------------------

    \19\ See August 2018 Memo, at 4.
---------------------------------------------------------------------------

    While the March 2018 Memo presented information regarding the EPA's 
latest analysis of ozone transport following the approaches the EPA has 
taken in prior regional rulemaking actions, the EPA has not made any 
final determinations regarding how states should identify downwind 
receptors with respect to the 2015 ozone NAAQS at step 1 of the four-
step framework. Rather, the EPA noted that states have flexibility in 
developing their own SIPs to follow different analytical approaches 
than the EPA's, so long as their chosen approach has an adequate 
technical justification and is consistent with the requirements of the 
CAA.
    The prong 3 (PSD) requirement of CAA section 110(a)(2)(D)(II) may 
be met for all NAAQS by a state's confirmation in an infrastructure SIP 
submission that new major sources and major modifications in the state 
are subject to a comprehensive EPA-approved PSD permitting program in 
the SIP that applies to all regulated NSR pollutants and that satisfies 
the requirements of the EPA's PSD implementation rule(s).\20\
---------------------------------------------------------------------------

    \20\ See 2013 Memo.
---------------------------------------------------------------------------

    To meet the prong 4 (visibility) requirement of CAA section 
110(a)(2)(D)(i)(II) under the 2015 ozone NAAQS, a SIP must address the 
potential for interference with visibility protection caused by ozone, 
including precursors. An approved regional haze SIP that fully meets 
the regional haze requirements in 40 CFR 51.308 satisfies the 
110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures 
that emissions from the state will not interfere with measures required 
to be included in other state SIPs to protect visibility. In the 
absence of a fully approved regional haze SIP, a state can still make a 
demonstration that satisfies the visibility requirement section of 
110(a)(2)(D)(i)(II).\21\
---------------------------------------------------------------------------

    \21\ See 2013 Memo. In addition, the EPA approved the visibility 
requirement of 110(a)(2)(D)(i) for the 1997 Ozone and 
PM2.5 NAAQS for Colorado before taking action on the 
State's regional haze SIP. 76 FR 22036 (April 20, 2011).
---------------------------------------------------------------------------

    CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions 
ensuring compliance with the applicable requirements of CAA sections 
126 and 115 (relating to interstate and international pollution 
abatement). CAA section 126 requires notification to neighboring states 
of potential impacts from a new or modified major stationary source and 
specifies how a State may petition the EPA when a major source or group 
of stationary sources in a state is thought to contribute to certain 
pollution problems in another state. CAA section 115 governs the 
process for addressing air pollutants emitted in the United States that 
cause or contribute to air pollution that may reasonably be anticipated 
to endanger public health or welfare in a foreign country.
1. Colorado
    (i) The State's submission:
    Colorado's September 17, 2018 submission includes an interstate 
transport analysis for prongs 1 and 2 that focused on the modeling 
information provided in the EPA's March 2018 Memo. The State notes that 
its highest projected ozone contribution to any nonattainment or 
maintenance receptor outside of Colorado was 0.33 ppb at site ID 
484392003 in Tarrant, TX. Colorado concludes that the modeling results 
from the March 2018 Memo indicate that Colorado sources do not 
contribute significantly to nonattainment or interfere with maintenance 
of the 2015 ozone NAAQS in any other state.
    To address prong 3, Colorado references the PSD program in AQCC 
Regulation Number 3 of the Colorado SIP, which the State asserts meets 
all Federal requirements and applies to all regulated pollutants. 
Colorado's submission states that it cannot issue a PSD permit unless 
the new or modified source demonstrates that emissions from the 
construction or operation of the facility will not cause or contribute 
to air pollution in any area that exceeds any NAAQS. Colorado also 
asserts that it cannot issue a NNSR permit unless the source shows it 
has obtained sufficient emissions reductions to offset increases in 
emissions of the pollutants for which an area is in nonattainment, 
consistent with reasonable further progress toward attainment. For 
these reasons, Colorado concludes that its SIP is sufficient to meet 
the prong 3 requirements of CAA section 110(a)(2)(D)(i)(II).
    To address prong 4, Colorado references its EPA-approved Regional 
Haze SIP to demonstrate that the state does not interfere with 
visibility for the 2015 ozone NAAQS in any other state (77 FR 76871, 
December 31, 2012).
    To address CAA section 110(a)(2)(D)(ii), Colorado states that there 
are no petitions or pending actions before the EPA under sections 115, 
126(b) and 126(c) of the CAA regarding interstate or international 
transport. Colorado also states that its approved NSR program has a 
regulatory provision in place that requires notification of neighboring 
states of potential impacts from sources, specifically, AQCC Regulation 
Number 3, Part D, Section IV, provides for notice to any state, tribal 
governing body, Federal land manager (FLM) or local agency that may be 
affected by emissions from a major source or major modification subject 
to the PSD program. For these reasons, Colorado asserts that its SIP 
meets the requirements of CAA section 110(a)(2)(D)(ii) for the 2015 
ozone NAAQS.
    (ii) The EPA's Analysis:
Prongs 1 and 2: Significant Contribution to Nonattainment and 
Interference With Maintenance
    The EPA primarily relied on the air quality results presented in 
our March 2018 Memo for our analysis of prongs 1 and 2 for Colorado. As 
previously discussed, the March 2018 Memo identifies potential downwind 
nonattainment and maintenance receptors, using the definitions applied 
in the CSAPR Update and using both the ``3 x 3'' and the ``no water'' 
approaches to calculating future year design values. The March 2018 
memorandum identifies 75 potential nonattainment and maintenance 
receptors in the contiguous U.S.\22\ The

[[Page 36525]]

March 2018 memorandum also provides contribution data regarding the 
impact of other states on the potential receptors. For purposes of 
evaluating Colorado's 2015 ozone NAAQS interstate transport SIP 
submission, we propose that, at least where a state's impacts are less 
than one percent to downwind nonattainment and maintenance sites, it is 
reasonable to conclude that the state's impact will not significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in any other state. This is consistent with our prior action on 
Colorado's SIP with respect to the 2008 ozone NAAQS \23\ and with the 
EPA's approach to both the 1997 and 2008 ozone NAAQS in CSAPR and the 
CSAPR Update. The EPA notes, nonetheless, that consistent with the 
August 2018 memorandum, it may be reasonable and appropriate for states 
to use a 1 ppb contribution threshold, as an alternative to a one 
percent threshold, at step 2 of the four-step framework in developing 
their SIP revisions addressing the good neighbor provision for the 2015 
ozone NAAQS. However, for the reasons discussed below, it is 
unnecessary for the EPA to determine whether it may be appropriate to 
apply a 1 ppb threshold for purposes of this action.
---------------------------------------------------------------------------

    \22\ The number of receptors in the contiguous United states is 
75. Of these, 73 are projected as nonattainment and/or maintenance 
receptors in 2023 irrespective of whether the ``3 x 3'' or ``no 
water'' approach is used. Two receptors, located in Richmond County, 
New York and Milwaukee County, Wisconsin, respectively, are 
projected as nonattainment and maintenance under one approach, but 
are projected as neither nonattainment nor maintenance under the 
second approach. Although the EPA has indicated that states may have 
flexibilities to apply a different analytic approach to evaluating 
interstate transport, including identifying downwind air quality 
problems, because the EPA is also proposing in this action that 
Colorado will have an insignificant impact on any potential 
receptors identified in its analysis, Colorado need not definitively 
determine whether the identified monitoring sites should be treated 
as receptors for the 2015 ozone standard.
    \23\ 81 FR 7706 (February 16, 2016).
---------------------------------------------------------------------------

    The EPA's updated 2023 modeling discussed in the March 2018 Memo 
indicates that Colorado's largest impact on any potential downwind 
nonattainment and maintenance receptor in the United States are 0.33 
ppb and 0.27 ppb, respectively.\24\ These values are less than 0.70 ppb 
(one percent of the 2015 ozone NAAQS),\25\ demonstrating that emissions 
from Colorado are not linked to any 2023 downwind potential 
nonattainment and maintenance receptors identified in the March 2018 
Memo. Thus, Colorado will not impact downwind air quality problems at a 
level that warrants further review and analysis at step 2 of the 4-step 
interstate transport framework. Accordingly, we propose to conclude 
that emissions from Colorado will not contribute to any potential 
receptors, and thus, will not significantly contribute to nonattainment 
or interfere with maintenance of the NAAQS in any other state.
---------------------------------------------------------------------------

    \24\ The EPA's analysis indicates that Colorado will have a 0.33 
ppb impact at the potential nonattainment receptor in Tarrant 
County, Texas (Site ID 484392003), which has a 2023 projected 
average design value of 74.8 ppb, a 2023 projected maximum design 
value of 72.5 ppb, and had a 2014-2016 design value of 73 ppb. The 
EPA's analysis further indicates that Colorado will have a 0.27 ppb 
impact at a potential maintenance receptor in Denton County, Texas 
(Site ID 481210034), which has which has a projected 2023 average 
design value of 72 ppb, a 2023 projected maximum design value of 
69.7 ppb, and had a 2014-2016 design value of 80 ppb. See the March 
2018 Memo, attachment C.
    \25\ Because none of Colorado's impacts exceed 0.70 ppb, they 
necessarily also do not exceed the 1 ppb contribution threshold 
discussed in the August 2018 memorandum.
---------------------------------------------------------------------------

    We also note that the EPA has assessed potential transport to the 
Shoshone-Bannock Tribes of the Fort Hall Reservation in southeast 
Idaho, which the EPA approved to be treated as an affected downwind 
state for CAA sections 110(a)(2)(D) and 126. While the Shoshone-Bannock 
Tribes do not operate an ozone monitor, the nearest ozone monitors to 
the Fort Hall Reservation are in Ada County, Idaho, in the Boise area 
and in Butte County, Idaho, in the Idaho Falls area. As discussed 
previously, the EPA's modeling did not identify receptors in Idaho and 
the ozone monitoring sites nearest to the Fort Hall Reservation were 
projected to remain below the current standard. For the Idaho Falls 
area monitoring site (Site ID 160230101), which had a 2014-2016 design 
value of 60 ppb, the EPA's modeling projects a 2023 maximum design 
value of 60.2 ppb and a 2023 average design value of 59.6 ppb, both 
below the 70 ppb standard. For the Boise area monitoring site with the 
highest projected ozone concentrations (Site ID 160010017), which had a 
2014-2016 design value of 67 ppb, the EPA's modeling projects a 2023 
maximum design value of 59.8 ppb and a 2023 average design value of 
59.4 ppb.\26\ We therefore propose to find that emissions from Colorado 
will not significantly contribute to nonattainment or interfere with 
maintenance of the 2015 ozone NAAQS at the Fort Hall Reservation.
---------------------------------------------------------------------------

    \26\ In attachment A of the October 2017 Memo, the EPA provided 
the projected ozone design values at individual monitoring sites 
nationwide. The data for the Idaho monitors is presented on page A-
10.
---------------------------------------------------------------------------

Prong 3: Interference With PSD Measures
    As noted, the PSD portion of section 110(a)(2)(D)(i)(II) may be met 
by a state's confirmation in an infrastructure SIP submission that new 
major sources and major modifications in the state are subject to a 
comprehensive EPA-approved PSD permitting program in the SIP that 
applies to all regulated NSR pollutants and that satisfies the 
requirements of the EPA's PSD implementation rule(s).\27\ As noted in 
Section III.(c)(1) of this proposed action, Colorado has such a 
program, and the EPA is therefore proposing to approve Colorado's SIP 
for the 2015 ozone NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a permit program in the SIP as required by part 
C of the Act.
---------------------------------------------------------------------------

    \27\ See September 2013 Guidance at 31.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for 
any one or more of the pollutants subject to regulation under the CAA 
because they are in a nonattainment area for a NAAQS related to those 
particular pollutants may also have the potential to interfere with PSD 
in an attainment or unclassifiable area of another state. One way a 
state may satisfy prong 3 with respect to these sources is by citing 
EPA-approved NNSR provisions addressing any pollutants for which the 
state has designated nonattainment areas. Colorado has a SIP-approved 
NNSR program that ensures regulation of major sources and major 
modifications in nonattainment areas.\28\
---------------------------------------------------------------------------

    \28\ See Colorado Regulation No. 3, Part D, Section V, which was 
most recently approved by the EPA in a final rulemaking dated May 3, 
2019 (84 FR 18991).
---------------------------------------------------------------------------

    As Colorado's SIP meets PSD requirements for all regulated NSR 
pollutants, and contains a fully approved NNSR program, the EPA is 
proposing to approve the infrastructure SIP submission as meeting the 
applicable requirements of prong 3 of section 110(a)(2)(D)(i) for the 
2015 ozone NAAQS.
Prong 4: Interference With Measures To Protect Visibility
    In our prong 4 review, the EPA primarily reviewed Colorado's 
regional haze SIP. Colorado submitted a regional haze SIP to the EPA on 
May 25, 2011. The EPA approved Colorado's regional haze SIP on December 
31, 2012 (77 FR 76871). Colorado submitted an updated regional haze SIP 
to the EPA on May 26, 2017, to incorporate an updated Best Available 
Retrofit Technology (BART) limit for Craig Unit 1 and an updated 
reasonable progress determination to incorporate a new limit for the 
Nucla Station. The EPA approved these updates to the Colorado regional 
haze SIP in a final action published July 5, 2018 (83 FR 31332). 
Because Colorado has a fully approved regional haze SIP, we are 
proposing to approve the Colorado SIP as meeting the requirements of 
element 4 of CAA section 110(a)(2)(D)(i) for the 2015 ozone NAAQS.

[[Page 36526]]

110(a)(2)(D)(ii): Interstate and International Transport Provisions
    Regarding CAA section 110(a)(2)(D)(ii), Colorado's SIP approved PSD 
program requires notice to states whose lands may be affected by the 
emissions of sources subject to PSD, as required by 40 CFR 
51.166(q)(2)(iv).\29\ This suffices to meet the notice requirement of 
section 126(a). Colorado also has no pending obligations under sections 
126(c) or 115(b). Therefore, the Colorado SIP currently meets the 
requirements of those sections. In summary, the SIP satisfies the 
requirements of CAA section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.
---------------------------------------------------------------------------

    \29\ See Colorado AQCC Regulation Number 3, Part D. IV.A.1.
---------------------------------------------------------------------------

2. North Dakota
    (i) The State's submission:
    In its November 6, 2018 submission, North Dakota's transport 
analysis for prongs 1 and 2 focused on the modeling information 
provided in the EPA's March 2018 Memo. North Dakota notes that the 
maximum concentration of ozone that North Dakota sources are projected 
to contribute to any nonattainment or maintenance receptor in the March 
2018 Memo is 0.23 ppb, substantially less than the one percent 
significant contribution level. North Dakota also states that it 
reviewed the modeled emissions inventory from the March 2018 Memo and 
determined that the 2011 base emissions inventory is correct, and the 
2023 projected emissions are reasonable. For these reasons, North 
Dakota concludes that sources in its state do not significantly 
contribute to nonattainment or interfere with maintenance of the 2015 
ozone NAAQS in any other state.
    To address prong 3, North Dakota asserts that new major sources and 
modifications of existing major sources are subject to review for all 
regulated NSR pollutants in accordance with North Dakota's EPA-approved 
PSD program in the SIP. Specifically, North Dakota references its 
incorporation by reference of the Federal PSD program into the North 
Dakota SIP at 33.1-15-15, which it has incorporated through July 1, 
2018. North Dakota notes that these rules incorporate all existing 
requirements for ozone.
    To address prong 4, North Dakota points to existing portions in the 
North Dakota SIP to certify that the State meets the visibility 
requirements of section 110(a)(2)(D)(i). North Dakota specifically 
references the North Dakota regional haze SIP as well as the EPA's 
regional haze FIP, asserting that together the SIP and FIP provide all 
measures necessary to achieve North Dakota's fair share of emissions 
reductions based on that regional process.\30\ The State also 
references the PSD (NDAC 33-15-15.1) and Visibility Protection (NDAC 
33-15-19.1) portions of its SIP, both of which address visibility 
impairment. North Dakota's submission also included analysis of 
regional haze 5-year progress reports for Federal Class I areas in 
neighboring states to which North Dakota was initially modeled to 
significantly contribute to visibility impairment.\31\ North Dakota 
asserts that these Class I areas are either meeting their reasonable 
progress goals or, in the case of Medicine Lake in Montana, is not 
meeting its reasonable progress goals due to international sources 
rather than sources in North Dakota. North Dakota concludes that its 
sources are making reasonable progress in remedying visibility 
impairment in North Dakota's Class I areas and are not interfering with 
other states plans for visibility improvement in their Class I areas, 
and therefore the state meets the requirements of CAA section 
110(a)(2)(D)(i)(II), prong 4, for the 2015 ozone NAAQS.
---------------------------------------------------------------------------

    \30\ See 77 FR 20894, April 6, 2012, and 78 FR 16452, March 15, 
2013.
    \31\ The Five-Year Progress Reports that North Dakota included 
in its analysis, for South Dakota (see https://denr.sd.gov/des/aq/aqnews/RH5YearReport.pdf), Montana (see https://deq.mt.gov/Portals/112/Public/Air/ProgressReport_DRAFT_7-2017.pdf), and Minnesota (see 
https://www.pca.state.mn.us/sites/default/files/aq-sip2-17.pdf), 
respectively, are all available in the docket for this proposed 
action.
---------------------------------------------------------------------------

    To address CAA section 110(a)(2)(D)(ii), North Dakota states that 
provisions in the PSD portion of its SIP, specifically NDAC-33.1-15-15-
01.2.1(q)(2)(d), require notification of neighboring states whose land 
may be significantly affected by emissions from a new or modified 
source in North Dakota. North Dakota also states that no sources within 
North Dakota are the subject of an active finding under CAA section 126 
with respect to any pollutant, and that there are no findings under CAA 
section 115 against North Dakota with respect to any pollutant. For 
these reasons, North Dakota concludes that its SIP meets the 
requirements of CAA section 110(a)(2)(D)(ii).
    (ii) The EPA's analysis:
Prongs 1 and 2: Significant Contribution to Nonattainment and 
Interference With Maintenance
    The EPA primarily relied on the air quality results presented in 
our March 2018 Memo for our analysis of prongs 1 and 2 for North 
Dakota. As previously discussed, the March 2018 Memo identifies 
potential downwind nonattainment and maintenance receptors, using the 
definitions applied in the CSAPR Update and using both the ``3 x 3'' 
and the ``no water'' approaches to calculating future year design 
values. The March 2018 memorandum identifies 75 potential nonattainment 
and maintenance receptors in the contiguous U.S. The March 2018 
memorandum also provides contribution data regarding the impact of 
other states on the potential receptors. For purposes of evaluating 
North Dakota's 2015 ozone NAAQS infrastructure SIP submission, we 
propose that, at least where a state's impacts are less than one 
percent to downwind nonattainment and maintenance sites, it is 
reasonable to conclude that the state's impact will not significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in any other state. This is consistent with our prior action on North 
Dakota's SIP with respect to the 2008 ozone NAAQS \32\ and with the 
EPA's approach to both the 1997 and 2008 ozone NAAQS in CSAPR and the 
CSAPR Update. The EPA notes, nonetheless, that consistent with the 
August 2018 memorandum, it may be reasonable and appropriate for states 
to use a 1 ppb contribution threshold, as an alternative to a one 
percent threshold, at step 2 of the four-step framework in developing 
their SIP revisions addressing the good neighbor provision for the 2015 
ozone NAAQS. However, for the reasons discussed below, it is 
unnecessary for the EPA to determine whether it may be appropriate to 
apply a 1 ppb threshold for purposes of this action.
---------------------------------------------------------------------------

    \32\ 81 FR 7706 (February 16, 2016).
---------------------------------------------------------------------------

    The EPA's updated 2023 modeling discussed in the March 2018 Memo 
indicates that North Dakota's largest impact on any potential downwind 
nonattainment and maintenance receptor in the United States are 0.23 
ppb and 0.15 ppb, respectively.\33\ These values are less than 0.70 ppb 
(one

[[Page 36527]]

percent of the 2015 ozone NAAQS),\34\ and as a result, demonstrate that 
emissions from North Dakota are not linked to any 2023 downwind 
potential nonattainment and maintenance receptors identified in the 
March 2018 Memo. Accordingly, we propose to conclude that emissions 
from North Dakota will not contribute to any potential receptors, and 
thus, the state will not significantly contribute to nonattainment or 
interfere with maintenance of the NAAQS in any other state.
---------------------------------------------------------------------------

    \33\ The EPA's analysis indicates that North Dakota will have a 
0.23 ppb impact at the potential nonattainment receptor in Milwaukee 
County, Wisconsin (Site ID 550790085). The Milwaukee County site has 
a 2023 projected average design value of 73 ppb, a 2023 projected 
maximum design value of 71.2 ppb, and had a 2014-2016 design value 
of 71 ppb. The EPA's analysis further indicates that North Dakota 
will have a 0.15 ppb impact at a potential maintenance receptor in 
New Haven County, Connecticut (Site ID 90099002), which has which 
has a projected 2023 average design value of 72.6 ppb, a 2023 
projected maximum design value of 69.9 ppb, and had a 2014-2016 
design value of 76 ppb. See the March 2018 Memo, attachment C.
    \34\ Because none of North Dakota's impacts exceed 0.70 ppb, 
they necessarily also do not exceed the 1 ppb contribution threshold 
discussed in the August 2018 memorandum.
---------------------------------------------------------------------------

    We also note that the EPA has assessed potential transport to the 
Shoshone-Bannock Tribes of the Fort Hall Reservation in southeast 
Idaho, which the EPA approved to be treated as an affected downwind 
state for CAA sections 110(a)(2)(D) and 126. While the Shoshone-Bannock 
Tribes do not operate an ozone monitor, the nearest ozone monitors to 
the Fort Hall Reservation are in Ada County, Idaho, in the Boise area 
and in Butte County, Idaho, in the Idaho Falls area. As discussed 
previously, the EPA's modeling did not identify receptors in Idaho and 
the ozone monitoring sites nearest to the Fort Hall Reservation were 
projected to remain below the current standard. For the Idaho Falls 
area monitoring site (Site ID 160230101), which had a 2014-2016 design 
value of 60 ppb, the EPA's modeling projects a 2023 maximum design 
value of 60.2 ppb and a 2023 average design value of 59.6 ppb, both 
below the 70 ppb standard. For the Boise area monitoring site with the 
highest projected ozone concentrations (Site ID 160010017), which had a 
2014-2016 design value of 67 ppb, the EPA's modeling projects a 2023 
maximum design value of 59.8 ppb and a 2023 average design value of 
59.4 ppb.\35\ We therefore propose to find that emissions from North 
Dakota will not significantly contribute to nonattainment or interfere 
with maintenance of the 2015 ozone NAAQS at the Fort Hall Reservation.
---------------------------------------------------------------------------

    \35\ In attachment A of the October 2017 Memo, the EPA provided 
the projected ozone design values at individual monitoring sites 
nationwide. The data for the Idaho monitors is presented on page A-
10.
---------------------------------------------------------------------------

Prong 3: Interference With PSD Measures
    As noted, the PSD portion of section 110(a)(2)(D)(i)(II) may be met 
by a state's confirmation in an infrastructure SIP submission that new 
major sources and major modifications in the state are subject to a 
comprehensive EPA-approved PSD permitting program in the SIP that 
applies to all regulated NSR pollutants and that satisfies the 
requirements of the EPA's PSD implementation rule(s).\36\ As noted in 
Section III.(c)(2) of this proposed action, North Dakota has such a 
program, and the EPA is therefore proposing to approve North Dakota's 
SIP for the 2015 ozone NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a permit program in the SIP as required by part 
C of the Act.
---------------------------------------------------------------------------

    \36\ See September 2013 Guidance at 31.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for 
any one or more of the pollutants subject to regulation under the CAA 
because they are in a nonattainment area for a NAAQS related to those 
particular pollutants may also have the potential to interfere with PSD 
in an attainment or unclassifiable area of another state. North Dakota 
does not contain any nonattainment areas. The consideration of NNSR for 
prong 3 is therefore not relevant as all major sources locating in the 
state are subject to PSD. As North Dakota's SIP meets PSD requirements 
for all regulated NSR pollutants, and North Dakota does not contain any 
nonattainment areas, the EPA is proposing to approve the infrastructure 
SIP submission as meeting the applicable requirements of prong 3 of 
section 110(a)(2)(D)(i) for the 2015 ozone NAAQS.
Prong 4: Interference With Measures To Protect Visibility
    For the EPA's prong 4 analysis for North Dakota, the EPA reviewed 
several pieces of information including the North Dakota regional haze 
SIP and FIP. The 2013 Memo lays out two ways in which a state's 
infrastructure SIP submittal may satisfy prong 4. One way is through a 
state's confirmation in its infrastructure SIP submittal that it has an 
EPA-approved regional haze SIP in place. Alternatively, in the absence 
of a fully approved regional haze SIP, a state can make a demonstration 
in its infrastructure SIP submittal that emissions within its 
jurisdiction do not interfere with other states' plans to protect 
visibility. Such a submittal should point to measures in the SIP that 
limit visibility-impairing pollutants and ensure that the resulting 
reductions conform to any mutually agreed emission reductions under the 
relevant regional haze regional planning organization (RPO) 
process.\37\
---------------------------------------------------------------------------

    \37\ See id. at 34, and also 76 FR 22036 (April 20, 2011) 
containing the EPA's approval of the visibility requirement of 
110(a)(2)(D)(i)(II) based on a demonstration by Colorado that did 
not rely on the Colorado Regional Haze SIP.
---------------------------------------------------------------------------

    North Dakota worked through its RPO, the Western Regional Air 
Partnership (WRAP), to develop strategies to address regional haze. To 
help states in establishing reasonable progress goals for improving 
visibility in Class I areas, the WRAP modeled future visibility 
conditions based on the mutually agreed emissions reductions from each 
state. The WRAP states then relied on this modeling in setting their 
respective reasonable progress goals. As a result, we consider 
emissions reductions from measures in North Dakota's SIP that conform 
with the level of emission reductions the State agreed to include in 
the WRAP modeling to meet the visibility requirement of CAA section 
110(a)(2)(D)(i)(II).
    In this action, we are proposing to disapprove North Dakota's prong 
4 infrastructure SIP submittal for the 2015 ozone NAAQS. The EPA's 
disapproval of the North Dakota regional haze SIP included the specific 
disapprovals of North Dakota's selection of nitrogen oxides 
(NOX) BART for Great River Energy's Coal Creek Station and 
the state's reasonable progress determination for Basin Electric's 
Antelope Valley Station (77 FR 20894, April 6, 2012). Based on the 
EPA's disapproval of these portions of North Dakota's regional haze 
SIP, we propose to determine that North Dakota's SIP does not include 
measures needed to ensure that its emissions will not interfere with 
other states' plans to protect visibility from the effects of NAAQS 
pollutants impacted by NOX. Specifically, NOX is 
a precursor of ozone, and is also a term which refers to both nitrogen 
oxide (NO) and nitrogen dioxide (NO2). The EPA is therefore 
proposing to disapprove prong 4 of North Dakota's infrastructure SIP 
with regard to the 2015 ozone NAAQS.
    If the EPA disapproves an infrastructure SIP submission for prong 
4, as we are proposing, a FIP obligation will be created. However, the 
EPA was previously under an obligation to promulgate a FIP for North 
Dakota that corrects all regional haze SIP deficiencies (77 FR 20894, 
April 6, 2012). Therefore, there will be no additional practical 
consequences from the disapproval for the State, the sources within its 
jurisdiction, or the EPA, as this disapproval will not add any new FIP 
obligation for the EPA (See 2013 Memo at 34-35). Additionally, since 
the infrastructure SIP submission is not required under CAA title I 
part D or in response to a SIP call under CAA section 110(k)(5), 
mandatory sanctions under CAA section 179 would not apply. Id.

[[Page 36528]]

110(a)(2)(D)(ii): Interstate and International Transport Provisions
    For the EPA's analysis of CAA section 110(a)(2)(D)(ii), we reviewed 
the sections of the North Dakota SIP referenced by the State in its 
2015 Ozone infrastructure SIP submission. As required by 40 CFR 
51.166(q)(2)(iv), North Dakota's SIP-approved PSD program requires 
notice of proposed new sources or modifications to states whose lands 
may be significantly affected by emissions from the source or 
modification (see NDAC 33-15-15-01.2.1(q)(2)(d)). This provision 
satisfies the notice requirement of section 126(a). North Dakota also 
has no pending obligations under sections 126(c) or 115(b). Therefore, 
the North Dakota SIP currently meets the requirements of those 
sections. On these bases, the EPA is proposing to find that the North 
Dakota SIP meets the requirements of CAA section 110(a)(2)(D)(ii) for 
the 2015 ozone NAAQS.

E. CAA Section 110(a)(2)(E): Adequate Resources

    Section 110(a)(2)(E)(i) requires states to provide necessary 
assurances that the State will have adequate personnel, funding, and 
authority under state law to carry out the SIP (and is not prohibited 
by any provision of Federal or state law from carrying out the SIP or 
portion thereof). Section 110(a)(2)(E)(ii) requires each state to 
comply with the requirements respecting state boards under CAA section 
128. Section 110(a)(2)(E)(iii) requires states to ``provide necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
[SIP] provision, the State has responsibility for ensuring adequate 
implementation of such [SIP] provision.''
1. Colorado
    The State's submission and the EPA's analysis:
    Sub-elements (i) and (iii): Adequate personnel, funding, and legal 
authority under state law to carry out its SIP, and related issues.
    Colorado Revised Statutes, specifically the Colorado Air Pollution 
Prevention and Control Act (APPCA) Sections 25-7-105, 25-7-11, 42-4 
301, to 42-4-414 and Article 7 of Title 25, provide adequate authority 
for the State of Colorado APCD and AQCC to carry out its SIP 
obligations with respect to the 2015 ozone NAQQS. The submission states 
the APCD has an annual budget to operate its six programs which employs 
176 people, and for fiscal year 2018 the APCD had a budget of $18 
million. The budget indicates that 50 percent of funding was derived 
from stationary source fees, 30 percent being from mobile source fees, 
17 percent from Federal grants, and the remaining three percent coming 
from other cash sources.
    The State also receives Sections 103 and 105 grand funds through 
its Performance Partnership Grant (PPG) along with required state 
matching funds to provide funding necessary to carry out Colorado's SIP 
requirements. The regulations cited by Colorado in their certifications 
and contained within this docket also provide the necessary assurances 
that the State has responsibility for adequate implementation of SIP 
provisions by local governments. Therefore, we propose to approve 
Colorado's SIP as meeting the requirements of section 110(a)(E)(i) and 
(E)(iii) for the 2015 ozone NAAQS.
    Sub-element (ii): State boards.
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
Section 128 requires SIPs to contain two explicit requirements: (i) 
That any board or body which approves permits or enforcement orders 
under the CAA shall have at least a majority of members who represent 
the public interest and do not derive a significant portion of their 
income from persons subject to such permits and enforcement orders; and 
(ii) that any potential conflicts of interest by members of such board 
or body or the head of an executive agency with similar powers be 
adequately disclosed.\38\
---------------------------------------------------------------------------

    \38\ EPA's proposed rule document (79 FR 71040, Dec. 1, 2014) 
includes a discussion of the legislative history of CAA section 128.
---------------------------------------------------------------------------

    On April 10, 2012 (77 FR 21453) the EPA approved the Procedural 
Rules, Section 1.11.0, as adopted by the AQCC on January 16, 1998, into 
the Colorado SIP as meeting the requirements of section 128 of the Act. 
Section 1.11.0 specifies certain requirements regarding the composition 
of the AQCC and disclosure by its members of potential conflicts of 
interest. Details on how this portion of the Procedural Rules meet the 
requirements of section 128 are provided in our January 4, 2012 
proposal document (77 FR 235). In our April 10, 2012 action, we 
correspondingly approved Colorado's infrastructure SIP for the 1997 
ozone NAAQS for element (E)(ii). Colorado's SIP continues to meet the 
requirements of section 110(a)(2)(E)(ii), and we propose to approve 
Colorado's infrastructure SIP for the 2015 ozone NAAQS for this 
element.
2. North Dakota
    The State's submission and the EPA's analysis:
    Sub-elements (i) and (iii): Adequate personnel, funding, and legal 
authority under state law to carry out its SIP, and related issues.
    The North Dakota submission cites NDCC 23.1-06-04.1.1 which 
provides the NDEQ adequate personnel, funding, and legal authority to 
carry out its SIP and related issues. In addition, the NDEQ currently 
has 17 full time staff dedicated to permitting of new or modified 
sources of air pollution and the enforcement of the APCR. NDCC 23-25-
03.1 provides adequate authority for the State of North Dakota and the 
NDEQ to carry out its SIP obligations with respect to the 2015 ozone 
NAAQS. North Dakota's resources meet the requirements of CAA section 
110(a)(2)(E).
    We propose to approve North Dakota's SIP as meeting the 
requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2015 ozone 
NAAQS.
    Sub-element (ii): State boards.
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
Section 128 requires SIPs to contain two explicit requirements: (i) 
That any board or body which approves permits or enforcements orders 
under the CAA shall have at least a majority of members who represent 
the public interest and do not derive a significant portion of their 
income from persons subject to such permits and enforcement orders; and 
(ii) that any potential conflicts of interest by members of such board 
or body or the head of an executive agency with similar powers be 
adequately disclosed. On July 30, 2013 (78 FR 45866) the EPA approved 
revised language in North Dakota's SIP, chapter 2, section 15, 
Respecting Boards that addresses conflict of interest requirements. 
Details on how this portion of chapter 2, section 15 meets the 
requirements of CAA section 128 are provided in the May 13, 2013 
proposal document (78 FR 27888). North Dakota's SIP continues to meet 
the requirements of section 110(a)(2)(E)(ii), and we propose to approve 
the infrastructure SIP for the 2015 ozone NAAQS for this element.

F. CAA Section 110(a)(2)(F): Stationary Source Monitoring System

    Section 110(a)(2)(F) requires the SIP to require, as may be 
prescribed by the EPA: (i) The installation, maintenance, and 
replacement of equipment, and the

[[Page 36529]]

implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
Periodic reports on the nature and amounts of emissions and emissions-
related data from such sources, and (iii) Correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to the Act, which reports shall be available at 
reasonable times for public inspection.
1. Colorado
    The State's submission and the EPA's analysis:
    The Colorado AQCC Regulations listed in the State's certifications 
(Regulations 1, 3, 7, and Common Provisions Regulation) and contained 
within this docket provide authority to establish a program for 
measurements and testing of sources, including requirements for 
sampling and testing. Air Pollutant Emission Notice (APEN) requirements 
are defined in Regulation 3 and requires stationary sources to report 
their emissions on a regular basis through APENs. Regulation 3 also 
requires monitoring to be performed in accordance with EPA-accepted 
procedures, and recordkeeping of air pollutants. Additionally, 
Regulation 3 provides for a permitting program that establishes 
emission limitations and standards. Emissions must be reported by 
sources to the state for correlation with applicable emissions 
limitations and standards. Monitoring may be required for both 
construction and operating permits.
    Additionally, Colorado is required to submit emissions data to the 
EPA for purposes of the National Emissions Inventory (NEI). The NEI is 
the EPA's central repository for air emissions data. The EPA published 
the Air Emissions Reporting Rule (AERR) on December 5, 2008, which 
modified the requirements for collecting and reporting air emissions 
data (73 FR 76539). The AERR shortened the time states had to report 
emissions data from 17 to 12 months, giving states one calendar year to 
submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System (EIS). States report emissions data for six 
criteria pollutants and their associated precursors--NOX, 
sulfur dioxide (SO2), ammonia, Pb, carbon monoxide (CO), PM, 
and volatile organic compounds (VOCs). Colorado made its latest update 
to the NEI on March 5, 2019. The EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the website http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the Colorado's 
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 
2015 ozone NAAQS.
2. North Dakota
    The State's submission and the EPA's analysis:
    The North Dakota statutory provisions listed in the State's 
certifications (NDCC 23-25-03) and contained within this docket provide 
authority to establish a program for measurement and testing of 
sources, including requirements for sampling and testing. North 
Dakota's SIP-approved minor source and PSD programs provide for 
monitoring, recordkeeping, and reporting requirements for sources 
subject to minor and major source permitting. The State cites several 
regulations (NDAC 33-15-14-02.9.1, 33-15-14-03.6.1, 33-15-14-06.5.1 and 
contained within this docket) requiring monitoring of emissions from 
stationary sources, recordkeeping, and reporting of emissions, 
monitoring date. Source surveillance is also addressed in Chapter 8 of 
the SIP. The chapter provides for the permitting of sources, inspection 
of the sources, recordkeeping and reporting by sources, and compliance 
determinations. Section 8.2 of the SIP commits the NDEQ of the 
correlation of data with the applicable requirements. All reports are 
available for public inspection in accordance with NDAC 33-15-01-
16.1.1. Additionally, North Dakota is required to submit emissions data 
to the EPA for purposes of the NEI, as detailed above.
    Based on the analysis above, we propose to approve North Dakota SIP 
as meeting the requirements of CAA section 110(a)(2)(F) for the 2015 
ozone NAAQS.

G. CAA Section 110(a)(2)(G): Emergency Powers

    Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to 
``provide for authority comparable to that in [CAA Section 303] and 
adequate contingency plans to implement such authority.''
    Under CAA section 303, the Administrator has authority to 
immediately restrain an air pollution source that presents an imminent 
and substantial endangerment to public health or welfare, or the 
environment. If such action may not practicably assure prompt 
protection, then the Administrator has authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if the EPA subsequently 
files a civil suit.
1. Colorado
    The State's submission and the EPA's analysis:
    APPCA Sections 25-7-112 and 25-7-113 provide APCD with general 
emergency authority comparable to that in section 303 of the Act. APPCA 
section 25-7-112(1) provides the Division of Administration in the 
CDPHE with the authority to maintain civil actions over the sources of 
air pollution discharges that constitute ``a clear, present, and 
immediate danger to the environment or to the health of the public.'' 
Specifically, the APCD can seek a ``temporary restraining order, 
temporary injunction, or permanent injunction as provided for in the 
Colorado rules of civil procedure'' (C.R.S. section 25-7-112(1)(b)). 
This authority extends to discharges that constitute ``an immediate 
danger to the welfare of the public because such pollutants make 
habitation of residences or the conduct of businesses subjected to the 
pollutants extremely unhealthy or disruptive.'' (C.R.S. Section 25-7-
113(1)).
    These civil actions may be maintained ``in any district court of 
this state for the district in which the said activity or discharge is 
occurring.'' (C.R.S. Sections 25-7-112(1)(b); 25-7-113(1)(b)). 
Additionally, the action ``shall be given precedence over all other 
matters pending in such district court.'' (Id). As such, Colorado law 
provides statutory authority over sources of air pollution discharges 
that cause an ``immediate danger'' to public health, welfare, or the 
environment. This authority allows for the pursuit of immediate relief 
and provides precedence for such matters. Therefore, Colorado has 
comparable judicial authority to that provided to the Administrator in 
Section 303.
    Similarly, APPCA section 25-7-112(1)(a) provides the APCD with the 
authority to issue ``cease-and-desist orders . . . requiring immediate 
discontinuance of such activity or the discharge of such pollutant into 
the atmosphere'' when the activity or discharge ``constitutes a clear, 
present, and immediate danger to the environment or to the health of 
the public.'' (C.R.S. Section 25-7-112(1)(a)). Further, ``upon receipt 
of such order, such person shall immediately discontinue such activity 
or discharge.'' (Id). This authority extends to discharges that 
constitute ``an immediate danger to the welfare of the public because 
such pollutants make

[[Page 36530]]

habitation of residences or the conduct of businesses subjected to the 
pollutants extremely unhealthy or disruptive.'' (C.R.S. Section 25-7-
113(1)).
    These provisions also allow the APCD to ``both issue such a cease-
and-desist order and apply for any such restraining order or 
injunction'' (C.R.S. Sections 25-7-112(1)(c); 25-7-113(c)). Colorado 
law provides administrative authority over sources of air pollution 
discharges that cause an ``immediate danger'' to public health, 
welfare, or the environment. Furthermore, C.R.S. Sections 25-7-
112(2)(b) allows the Governor to declare a state of air pollution 
emergency and take any and all actions necessary to protect the health 
of the public. This authority is comparable to that provided to the 
Administrator in Section 303.
    The SIP therefore meets the requirements of 110(a)(2)(G). Based on 
the above analysis, we propose approval of Colorado's SIP as meeting 
the requirements of CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.
2. North Dakota
    The State's submission and the EPA's analysis:
    Chapter 23-25 of the NDCC provides relevant language and authority 
for ``Air Pollution Control.'' The purpose of this chapter is ``to 
achieve and maintain the best air quality possible'' and to ``protect 
human health, welfare and property, [and] prevent injury to plant and 
animal life'' (NDCC 23-25-01.1(2)). NDCC 23-25-01.1 defines ``air 
pollution'' as ``the presence in the outdoor atmosphere of one or more 
air contaminants in such quantities and duration as is or may be 
injurious to human health, welfare, or property, animal or plant life, 
or which unreasonably interferes with the enjoyment of life or 
property.'' As such, the chapter aims to protect all three areas 
required by section 303; human health, welfare, and environment. The 
``Air Pollution Control'' chapter provides general grants of authority 
to maintain actions in certain situations. We find these grants provide 
comparable authority to that provided in Section 303. Furthermore, the 
NDAC 33-15-01-15.1(1) makes it unlawful to ``permit or cause air 
pollution'' as defined in NDCC 23-25-01.1. A person causing or 
contributing to emissions that endanger public health, welfare, or the 
environment, would be causing ``air pollution'' within the meaning of 
North Dakota law, and would therefore be in violation of NDAC 33-15-01-
15.1(1). This could occur in either an emergency or non-emergency 
situation.
    NDCC 23-25-10.1(5) provides that ``the department has the authority 
to maintain an action in the name of the state against any person to 
enjoin any threatened or continuing violation of any provision of this 
chapter or any permit condition, rule, order, limitation, or other 
applicable requirement implementing this chapter.'' Under NDCC 23-25-
10.1(5), the NDEQ has the authority to bring an action to enjoin a 
violation of NDCC 23-25.1 or its rules. The NDEQ may seek a court order 
to restrain a source from causing or contributing to emissions that 
endanger public health, welfare, or the environment. In an emergency, 
this may take the form of an injunction or temporary restraining order 
(see NDCC 32-06-02.1). Therefore, the NDEQ has the authority to seek 
judicial actions during emergency situations.
    North Dakota's statutes also provide the NDEQ with the authority to 
issue administrative orders and emergency rules to protect the public 
health, welfare, and the environment under certain circumstances. NDCC 
23-25-08.1, as cited in North Dakota's SIP submittals, authorizes that 
in the event of ``an emergency requiring immediate action to protect 
the public health and safety,'' the NDEQ has the authority to ``issue 
an order reciting the existence of such emergency and requiring that 
such action be taken as is necessary'' to meet the emergency. The 
emergency order is effective immediately. Any person who violates the 
order is subject to enforcement, penalties, and injunctions under NDCC 
23-25-10.1.
    Furthermore, as cited in North Dakota's SIP submittals, the NDEQ 
has the authority to ``use an emergency adjudicative proceeding, in its 
discretion, in an emergency situation involving imminent peril to the 
public health, safety, or welfare'' (NDCC 28-32-32.1). Accordingly, 
``in an emergency, the administrative agency may take action pursuant 
to a specific statute as is necessary to prevent or avoid imminent 
peril to the public health, safety, or welfare'' (NDCC-28-32-32.1.1). 
In the absence of a specific statute requiring other administrative 
action, ``the administrative agency shall issue an order'' (NDCC 28-32-
32.1(4)).
    Further supplemental authority is found in a broad provision, cited 
by the State in their SIP submittals, granting additional authority to 
the NDEQ. The NDEQ has the authority to ``[i]ssue such orders as may be 
necessary to effectuate the purposes'' of the ``Air Pollution Control'' 
chapter NDCC 23-25-03.5.1. These orders can be enforced ``by all 
appropriate administrative and judicial procedures'' (NDCC 23-25-
03.5.1). Thus, this broad grant of authority includes the authority to 
issue administrative orders during air pollution emergencies which 
would disrupt protection of human health, welfare, and animal and plant 
life.
    The combination of NDCC and NDAC provisions discussed above provide 
for authority comparable to section 303 to immediately bring suit to 
restrain, issue emergency orders against, and use special rule adoption 
procedures for applicable emergencies to take prompt administrative 
action against, any person causing or contributing to air pollution 
that presents an imminent and substantial endangerment to public health 
or welfare, or the environment. We propose that they are sufficient to 
meet the authority requirement of CAA section 110(a)(2)(G).
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). Requirements for contingency plans are set forth in 
40 CFR part 51, subpart H.
    Subpart H of 40 CFR part 51 requires states to classify regions and 
to develop contingency plans (also known as emergency episode plans) 
after ambient concentrations of certain criteria pollutants in an area 
have exceeded specified levels. For example, if ambient concentrations 
of NO2 in an area have exceeded 0.06 parts per million (ppm) 
(annual arithmetic mean), then the area is classified as a Priority I 
region, and the state must develop a contingency plan that meets the 
requirements of Sec. Sec.  51.151.1 and 51.152.1 North Dakota has not 
monitored any values above the priority cut point for ozone or 
NO2.
    Prevention of air pollution emergency episodes is addressed in 
Section 5 of North Dakota's SIP, which was approved on May 31, 1972 (37 
FR 10842). We find that North Dakota's air pollution emergency 
provisions establish stages of episode criteria (Section 5.2), provide 
for public announcement whenever any episode stage has been determined 
to exist (Section 5.3), and specify emission control actions to be 
taken at each episode stage (Section 5.5) consistent with the EPA 
emergency episode SIP requirements set forth at the 40 CFR part 51, 
subpart H (prevention of air pollution emergency episode) for ozone and 
NO2.
    Based on the above analysis, we propose approval of North Dakota's 
SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 
2015 ozone NAAQS.

[[Page 36531]]

H. CAA Section 110(a)(2)(H): Future SIP Revisions

    Section 110(a)(2)(H) requires that SIPs provide for revision of 
such plan: (i) From time to time as may be necessary to take account of 
revisions of such national primary or secondary ambient air quality 
standard or the availability of improved or more expeditious methods of 
attaining such standard, and (ii), except as provided in paragraph 
(3)(C), whenever the Administrator finds on the basis of information 
available to the Administrator that the SIP is substantially inadequate 
to attain the NAAQS which it implements or to otherwise comply with any 
additional requirements under this [Act].
1. Colorado
    The State's submission and the EPA's analysis:
    The Colorado submission refers to the Colorado APPCA Section 25-7-
105(1)(a)(I) which directs the AQCC to promulgate a comprehensive SIP 
that meets all Federal requirements and to revise the SIP whenever 
necessary or appropriate. In addition, the Colorado APPCA Section 25-7-
109 C.R.S. gives the AQCC the authority to promulgate emissions control 
regulations.
    Colorado's statutory provision at APPCA Section 25-7-105(1)(a)(I) 
directs the AQCC to promulgate a comprehensive SIP that meets all 
Federal requirements and to revise the SIP whenever necessary or 
appropriate. Therefore, we propose to approve Colorado's SIP as meeting 
the requirements of CAA section 110(a)(2)(H).
2. North Dakota
    The State's submission and the EPA's analysis:
    The EPA approved section 1.14 of the North Dakota SIP on September 
17, 2012 (77 FR 57029). Section 1.14 commits the State to revise the 
SIP in the circumstances covered by CAA section 110(a)(2)(H). North 
Dakota's statutory provision at NDCC 23-25-03.1 provides adequate 
authority for the NDEQ to carry out such revisions. Therefore, we 
propose to approve North Dakota's SIP as meeting the requirements of 
CAA section 110(a)(2)(H).

I. CAA Section 110(a)(2)(I): Nonattainment Area Plan Revision Under 
Part D

    There are two elements identified in CAA section 110(a)(2) are not 
governed by the three-year submission deadline of CAA section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area controls 
are due on nonattainment area plan schedules pursuant to section 172 
and the various pollutant-specific subparts 2 through 5 of part D. 
These are submissions required by: (i) CAA section 110(a)(2)(C) to the 
extent that subsection refers to a permit program as required in part 
D, Title I of the CAA, and (ii) section 110(a)(2)(I) which pertain to 
the nonattainment planning requirements of part D, Title I of the CAA. 
As a result, this action does not address CAA section 110(a)(2)(C) with 
respect to NNSR or CAA section 110(a)(2)(I).

J. CAA Section 110(a)(2)(J): Consultation With Government Officials, 
Public Notification, PSD and Visibility Protection

    CAA section 110(a)(2)(J) requires states to provide a process for 
consultation with local governments and FLMs pursuant to CAA section 
121. CAA section 110(a)(2)(J) further requires states to notify the 
public if NAAQS are exceeded in an area and to enhance public awareness 
of measures that can be taken to prevent exceedances pursuant to CAA 
section 127. Lastly, CAA section 110(a)(2)(J) requires states to meet 
applicable requirements of part C, Title I of the CAA related to 
prevention of significant deterioration and visibility protection.
1. Colorado
    (i) State's submission:
    The Colorado submission references the following laws and 
regulations relating to consultation with identified officials on 
certain air agency actions; public notification; PSD; and visibility 
protection:
     APPCA 25-7-105(1)(d).
     APPCA 25-7-118.
     APPCA 25-7-128.
     AQCC Regulation 3 (Stationary Source Permitting and Air 
Pollution Emission Notice Requirements).
     AQCC Regulation 6 (Standards of Performance for New 
Stationary Sources).
     AQCC Regulation 10, Part III (Transportation Conformity 
Rule).
     Colorado's Regional Haze SIP.
     Colorado's Interstate Transport SIP.
    (ii) The EPA's analysis:
    Colorado has demonstrated that it has the authority and rules in 
place to provide a process of consultation with general purpose local 
governments, designated organizations of elected officials of local 
governments and any FLM having authority over Federal land to which the 
SIP applies, consistent with the requirements of CAA section 121. 
Moreover, the EPA previously addressed the requirements of CAA section 
127 for the Colorado SIP and determined public notification 
requirements are appropriate (45 FR 53147, Aug. 11, 1980).
    Addressing the requirement in CAA section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C, Title I of the CAA, we have 
evaluated this requirement in the context of CAA section 110(a)(2)(C). 
The EPA most recently approved revisions to Colorado's PSD program on 
May 3, 2019 (84 FR 18991), updating the program for current Federal 
requirements. Therefore, we are proposing to approve the Colorado SIP 
as meeting the requirements of CAA 110(a)(2)(J) with respect to PSD for 
the 2015 ozone NAAQS.
    With regard to applicable visibility protection requirements, the 
EPA recognizes that states are subject to visibility and regional haze 
program requirements under part C of the Act. In the event of the 
establishment of a new NAAQS, however, the visibility and regional haze 
program requirements under part C do not change. Consequently, we find 
that there is no new applicable requirement relating to visibility 
triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes 
effective.
    Based on the above analysis, we are proposing to approve the 
Colorado SIP as meeting the requirements of CAA section 110(a)(2)(J) 
for the 2015 ozone NAAQS.
2. North Dakota
    (i) State's submission:
    The North Dakota submission references the following specific laws 
and regulations relating to consultation with identified officials on 
certain air agency actions, public notification, prevention of 
significant deterioration, and visibility protection:

 North Dakota SIP, Chapter 10
 North Dakota SIP, Section 6.9
 NDCC 23.1-06-12
 NDCC 23.1-06-13
 NDCC 28-32
 NDAC 33.1-15-11-03.1
 NDAC 33.1-15-14-02.6
 NDAC 33.1-15-15-01.2(k)(i)
 NDAC 33.1-15-15-01.2(p)
 NDAC 33.1-15-15-01.2(q)

    (ii) EPA's analysis:
    North Dakota has demonstrated that it has the authority and rules 
in place to provide for a process of consultation with local 
governments, designated organizations of elected officials of local 
governments and any FLM having authority over Federal land to which the 
SIP applies, consistent with the requirements of CAA section 121. 
Moreover, the EPA previously

[[Page 36532]]

addressed the requirements of CAA section 127 for the North Dakota SIP 
and determined public notification requirements are appropriate (45 FR 
53475, Aug. 12, 1980).
    Addressing the requirement in CAA section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C, Title I of the CAA, we have 
evaluated this requirement in the context of CAA section 110(a)(2)(C). 
The EPA most recently approved revisions to North Dakota's PSD program 
on June 3, 2010 (75 FR 31291), updating the program for current Federal 
PSD requirements. Additionally, the North Dakota's SIP-approved PSD 
program incorporates by reference the Federal program at 40 CFR 52.21. 
Accordingly, we are proposing to approve the North Dakota SIP as 
meeting the requirements of CAA 110(a)(2)(J) with respect to PSD for 
the 2015 ozone NAAQS.
    With regard to applicable visibility protection requirements, the 
EPA recognizes that states are subject to visibility and regional haze 
program requirements under part C of the Act. In the event of the 
establishment of a new NAAQS, however, the visibility and regional haze 
program requirements under part C do not change. Consequently, we find 
that there is no new applicable requirement relating to visibility 
triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes 
effective.
    Based on the above analysis, we are proposing to approve the North 
Dakota SIP as meeting the requirements of CAA section 110(a)(2)(J) for 
the 2015 ozone NAAQS.

K. CAA Section 110(a)(2)(K): Air Quality and Modeling/Data

    CAA section 110(a)(2)(K) requires that SIPs provide for (i) the 
performance of air quality modeling as the Administrator may prescribe 
for the purpose of predicting the effect on ambient air quality of any 
emissions of any air pollutant for which the Administrator has 
established a NAAQS, and (ii) the submission, upon request, of data 
related to such air quality modeling to the Administrator.
    The EPA's requirements for air quality modeling for criteria 
pollutants are found in 40 CFR part 51, appendix W, Guideline on Air 
Quality Models. On January 17, 2017 (82 FR 5182), the EPA revised 
appendix W, effective February 16, 2017. The Federal Register notice 
stated: ``For all regulatory applications covered under the Guideline, 
except for transportation conformity, the changes to the appendix A 
preferred models and revisions to the requirements and recommendations 
of the Guideline must be integrated into the regulatory processes of 
respective reviewing authorities and followed by applicants by no later 
than January 17, 2018.''
1. Colorado
    (i) State's submission:
    The Colorado submission refers to Colorado's Regulation 3 Part 
A.VIII (Technical Modeling and Monitoring Requirements) which requires 
that estimates of ambient air concentrations are based on applicable 
air quality models approved by the EPA. Further, Regulation 3 Part D, 
Section VI.C. requires the APCD to transmit to the Administrator of the 
EPA a copy of each permit application relating to a major stationary 
source or major modification subject to this regulation and provide 
notice of every action related to the consideration of such permit. The 
State also references the following rules and regulations which require 
and provide authority for air quality modeling and submission of such 
data to the EPA Administrator:
     Regulation 3.
     Regulation 3 Part A, Section VIII.
     Regulation 3, Part D, Section X.A.4.
     Regulation 3, Part D, Section VI.C.
     AQCC Regulation 4.
     Denver PM10 SIP.
    (ii) The EPA's analysis:
    Colorado has broad authority and resources to model for all 
criteria pollutants. Air quality modeling is done for SIP revisions, 
transportation conformity, and permitting. AQCC Regulation 3 
(Stationary Source Permitting and Air Pollution Emission Notice 
Requirements) requires stationary sources to predict the effect of air 
pollutants in attainment areas. Regulation 3 also details the State of 
Colorado's program regarding permitting as related to air quality 
modeling and data handling in predicting the effect of emissions of a 
pollutant with an established NAAQS.
    Colorado Regulation 3 Part A, Section VIII, ``Technical Modeling 
and Monitoring Requirements,'' most recently approved by the EPA on 
January 25, 2016 (81 FR 3963), states that all estimates of ambient 
concentrations required under Regulation 3 shall be based on the 
applicable air quality models, data bases, and other requirements 
generally approved by the EPA and specifically approved by the APCD. 
Part A also requires all modeling data used to determine compliance to 
be appropriate given the topography, meteorology and other 
characteristics of the region. In previous actions, the EPA has 
interpreted Colorado's provisions on permit modeling to mean that the 
modeling is performed in accordance with appendix W of 40 CFR part 51. 
Because the provision requires use of EPA-approved models without 
setting any cutoff date for that approval, we interpret the provision 
to mean EPA-approved models as they are currently approved. As 
confirmation, Colorado's May 2018 draft modeling guidance (contained in 
the docket), ``Colorado Modeling Guideline for Air Quality Permits'' 
has been revised and updated to refer to the most recent version of 
appendix W described above.\39\
---------------------------------------------------------------------------

    \39\ For our most recent Colorado infrastructure SIP approval, 
see 82 FR 39030, September 18, 2017. See also https://www3.epa.gov/airquality/urbanair/sipstatus/reports/co_infrabypoll.html.
---------------------------------------------------------------------------

    The state submits data to the EPA as required under Regulation 3, 
Part D, Section VI.C., most recently approved by the EPA on January 25, 
2016 (81 FR 3963), requiring Colorado to transmit to the EPA 
Administrator a copy of each permit application relating to a major 
stationary source or major modification subject to the regulation, and 
provide notice of every action related to the consideration of such 
permit. Additionally, the State also has the authority to submit any 
modeling data to the EPA upon request under the Colorado Open Records 
Act.\40\
---------------------------------------------------------------------------

    \40\ See 24-72-201 to 24-72-309, C.R.S.
---------------------------------------------------------------------------

    Based on the above information, we are proposing to approve the 
Colorado SIP as meeting the requirements of CAA section 110(a)(2)(K) 
for the 2015 ozone NAAQS.
2. North Dakota
    (i) State's submission:
    The North Dakota submission refers to the following rules and 
regulations that provide for NAAQS pollutant air quality modeling and 
the submission of such data to EPA:

 North Dakota SIP, section 7.7, Air Quality Modeling
 NDAC 33.1-15-14-02.4
 NDCC 23.1-06-04.1

    (ii) EPA's analysis:
    North Dakota's PSD program requires that estimates of ambient air 
concentrations are based on applicable air quality models specified in 
appendix W of 40 CFR part 51, and incorporates by reference \41\ the 
provisions at 40 CFR 52.21(i)(2) requiring that modification or 
substitution of a model specified in appendix W must be approved by the 
Administrator (see NDAC 33.1-15-14-

[[Page 36533]]

02.4 and NDAC 33.1-15-15-01.2). Section 7.7, Air Quality Modeling, last 
approved by the EPA on September 17, 2009 (77 FR 10842) of North 
Dakota's SIP commits the state to perform air quality modeling to 
predict the impact of a source on air quality, and to provide data to 
the EPA upon request. As a result, the SIP provides for such air 
quality modeling as the Administrator has prescribed.
---------------------------------------------------------------------------

    \41\ In this action, the EPA is also proposing to approve a 
revision to NDAC chapter 33.1-15-15 by updating the date of 
incorporation by reference to July 1, 2018. This proposed action 
thus will update the State's regulations to the most current version 
of appendix W found in 40 CFR part 51 as of July 1, 2018.
---------------------------------------------------------------------------

    Based on the above information, we are proposing to approve the 
North Dakota SIP as meeting the requirements of CAA section 
110(a)(2)(K) for the 2015 ozone NAAQS.

L. CAA Section 110(a)(2)(L): Permitting Fees

    CAA section 110(a)(2)(L) directs SIPs to require each major 
stationary source to pay permitting fees to cover the cost of 
reviewing, approving, implementing and enforcing a permit.
1. Colorado
    (i) State's submission:
    The Colorado submission refers to AQCC Regulation 3, Part A, 
Section VI; which requires owners or operators of major stationary 
sources to pay the APCD annual fees, based on total emissions, 
necessary to recover the direct and indirect costs incurred by CDPHE in 
processing permit applications, issuing permits, and in conducting a 
compliance monitoring and enforcement program. Fees collected are used 
by Colorado to administer stationary source air pollution control 
programs.
    (ii) The EPA's analysis:
    The EPA-approved Regulation 3, Part A, Section VI adequately 
addresses requirements in CAA section 110(a)(2)(L) regarding 
construction (i.e., NSR) permits. With respect to title V permits, on 
October 16, 2000, the EPA fully approved Colorado's part 70 title V 
operating permit program (65 FR 49919). The fully approved Colorado 
title V program and Colorado's Air Quality Control Commission 
Regulation 3 demonstrate that fees will be adequate to fund the title V 
and NSR programs, and that the State will collect fees above the 
presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). Therefore, 
we are proposing that Colorado has satisfied the requirements of CAA 
section 110(a)(2)(L) for the 2015 ozone NAAQS.
2. North Dakota
    (i) State's submission:
    The North Dakota submission refers to its fully approved title V 
operating permit program and references the NDAC for permit processing 
and annual fees for reviewing, approving, implementing and enforcing a 
permit. The state references the regulations of NDCC as its authority 
for fees.
     NDAC 33.1-15-23.1.
     NDCC 23.1-06-10.1.
    (ii) The EPA's analysis:
    NDAC 33.1-15-23.1 requires applicants for permits to construct or 
modify stationary sources to pay fees. With respect to title V fees, on 
August 16, 1999, the EPA fully approved North Dakota's part 70 title V 
operating permit program (64 FR 32433). Therefore, we are proposing 
that North Dakota has satisfied the requirements of CAA section 
110(a)(2)(L) for the 2015 ozone NAAQS.

M. CAA Section 110(a)(2)(M): Consultation/Participation by Affected 
Local Entities

    CAA section 110(a)(2)(M) requires states to provide for 
consultation and participation in SIP development by local political 
subdivisions affected by the SIP.
1. Colorado
    (i) State's submission:
    Colorado refers to the following rules and regulations, which 
require and provide authority for public hearings, notice of hearings, 
public comment periods, and the consultation and coordination between 
state and local governments:
     APPCA 25-7-105(1)(d).
     APPCA 25-7-110.
     APPCA 25-7-128.
     AQCC Reg. 3, Part D. Section IV.A.1.
     AQCC Reg. 10.
    (ii) The EPA's analysis:
    The rules and regulations cited by Colorado provide for the 
consultation and participation by local political subdivisions affected 
by the SIP; therefore, we are proposing to approve the Colorado SIP as 
meeting the requirements of CAA section 110(a)(2)(M) for the 2015 ozone 
NAAQS.
2. North Dakota
    (i) State's submission:
    North Dakota refers to the following NDAC and NDCC rules and 
regulations, which require and provide authority for public hearings, 
notice of hearings, public comment periods; and the advisement, 
consultation and cooperation with other public agencies and with 
affected groups and industries:
     NDCC 23.1-06-03.1.
     NDCC 23.1-06-04.1.d.
     NDAC 28-32.1.
    (ii) The EPA's analysis:
    The rules and regulations cited by North Dakota provide for the 
consultation and participation by local political subdivisions affected 
by the SIP; therefore, we are proposing to approve the North Dakota SIP 
as meeting the requirements of CAA section 110(a)(2)(M) for the 2015 
ozone NAAQS.

N. Revisions to North Dakota Air Pollution Control Rules

    On May 2, 2019, the EPA received revisions for the APCR for the 
State of North Dakota. The EPA is proposing to approve one portion of 
the submittal, a revision to chapter 33.1-15-15, the State's PSD 
program. For the most part, North Dakota incorporates by reference the 
Federal program at 40 CFR 52.21. However, the provision that we propose 
to approve replaces 40 CFR 52.21(l)(1) with a specific reference to 40 
CFR part 51, appendix Was it existed on July 1, 2018. The revised 
provision is consistent with the parallel requirement for state PSD 
programs in 40 CFR 51.166(l). The submittal was signed by the Governor 
and received a public hearing on October 10, 2018. The EPA is proposing 
to approve this specific provision in chapter 33.1-15-15 at this time 
and will act on other portions of the submitted revisions to the North 
Dakota APCR in a separate notice.

IV. Proposed Action

    In this rulemaking, we are proposing approval for multiple elements 
of the infrastructure SIP requirements for the 2015 ozone NAAQS for 
Colorado and North Dakota and a proposed approval to chapter 33.1-15-15 
of North Dakota's APCR, along with a proposed disapproval for one 
infrastructure element for North Dakota. Our proposed actions are 
contained in Table 1 below.
    With respect to Colorado, the EPA is proposing to approve 
Colorado's September 17, 2018 SIP submission for the following CAA 
section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: 
(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M).
    With respect to North Dakota, the EPA is proposing to approve North 
Dakota's November 6, 2018 SIP submission for the following CAA section 
110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), 
(C), (D)(i)(I) Prong 1 Interstate transport--significant contribution, 
(D)(i)(I) Prong 2 Interstate transport--interference with maintenance, 
(D)(i)(II) Prong 3 Interstate transport--prevention of significant 
deterioration, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The 
EPA is also proposing to disapprove (D)(i)(II) Prong 4 Interstate 
transport--visibility. Additionally, the EPA is proposing to

[[Page 36534]]

approve a revision to chapter 33.1-15-15 of North Dakota's APCR.

  Table 1--Infrastructure Elements That the EPA Is Proposing To Act on
------------------------------------------------------------------------
                                                                 North
  2015 Ozone NAAQS Infrastructure SIP Elements     Colorado     Dakota
------------------------------------------------------------------------
(A): Emission Limits and Other Control Measures.          A           A
(B): Ambient Air Quality Monitoring/Data System.          A           A
(C): Program for Enforcement of Control Measures          A           A
(D)(i)(I): Prong 1 Interstate Transport--                 A           A
 significant contribution.......................
(D)(i)(I): Prong 2 Interstate Transport--                 A           A
 interference with maintenance..................
(D)(i)(II): Prong 3 Interstate Transport--                A           A
 prevention of significant deterioration........
(D)(i)(II): Prong 4 Interstate Transport--                A           D
 visibility.....................................
(D)(ii): Interstate and International Pollution           A           A
 Abatement......................................
(E): Adequate Resources.........................          A           A
(F): Stationary Source Monitoring System........          A           A
(G): Emergency Episodes.........................          A           A
(H): Future SIP revisions.......................          A           A
(J): Consultation with Government Officials,              A           A
 Public Notification, PSD and Visibility
 Protection.....................................
(K): Air Quality and Modeling/Data..............          A           A
(L): Permitting Fees............................          A           A
(M): Consultation/Participation by Affected               A           A
 Local Entities.................................
North Dakota APCR Chapter 33.1-15-15............         NA           A
------------------------------------------------------------------------
In the table above, the key is as follows:
A--Approve.
D--Disapprove.
NA--No Action.

V. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference North Dakota's May 2, 2019 submission of 
chapter 33.1-15-15, the APCR of the State of North Dakota, that updates 
the date of incorporation by reference of Federal rules. The EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov and at the EPA Region 8 Office (please 
contact the persons identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).

VI. 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 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 CAA; and
     Does not provide the 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the proposed rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

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

    Dated: July 19, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2019-15797 Filed 7-26-19; 8:45 am]
BILLING CODE 6560-50-P


