[Federal Register Volume 85, Number 70 (Friday, April 10, 2020)]
[Rules and Regulations]
[Pages 20165-20178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06685]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0140; FRL-10006-29-Region 8]


Approval and 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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on Colorado and North Dakota's Clean Air Act (CAA) state 
implementation plan (SIP) submissions with respect to infrastructure 
requirements for the 2015 ozone National Ambient Air Quality Standards 
(NAAQS). Specifically, the EPA is approving Colorado's September 17, 
2018, infrastructure SIP in full, and approving North Dakota's November 
6, 2018 infrastructure SIP in part (and disapproving in part). We are 
also approving 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.

[[Page 20166]]


DATES: This rule is effective on May 11, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2019-0140 All documents in the docket are 
listed on the http://www.regulations.gov website. 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, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through http://www.regulations.gov, or please contact the persons identified in the 
FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

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-IO, 1595 Wynkoop Street, 
Denver, Colorado, 80202-1129.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone, 
revising the levels of 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.
    Section 110(a)(1) of the CAA directs each state to make an 
infrastructure SIP submission to the EPA within 3 years of promulgation 
of a new or revised NAAQS. Infrastructure requirements for SIPs are 
provided in section 110(a)(1) and (2) of the CAA. Section 110(a)(2) 
lists the specific infrastructure elements that a SIP must contain or 
satisfy. The elements that are the subject of the action are described 
in detail in our notice of proposed rulemaking (NPRM) published on July 
29, 2019 (84 FR 36516).

II. Response to Comments

    Comments on our NPRM were due on or before August 28, 2019. The EPA 
received two substantive comments on the NPRM. The first comment, 
pertaining to the Colorado portion of the NPRM, was submitted by the 
Center for Biological Diversity (CBD); the second comment, pertaining 
to the North Dakota portion of the NPRM, was submitted by the Dakota 
Resource Council (DRC). The comments are summarized, and the EPA 
responds to the comments in the following paragraphs.

Colorado Comment and Response

    Comment: Commenter asserts that Colorado's Air Quality Control 
Commission (AQCC) did not adequately consider its comments before 
voting to approve Colorado's 2015 ozone infrastructure SIP for 
submission to the EPA. The commenter states that the AQCC admitted on 
the record at the public hearing that it had not reviewed its comment, 
including the supporting exhibits that the commenter had submitted 
prior to the public hearing and that Colorado's public comment period 
was not adequate. The commenter maintains that it is arbitrary and 
contrary to the public comment requirement for a state to grant an 
opportunity for public comment, but then admit that it did not review 
the submissions. The commenter acknowledges that the Colorado Air 
Pollution Control Division (APCD) provided verbal responses to their 
comments during the hearing, but characterizes these remarks as ``off 
the cuff'' statements, which were insufficient because they were not 
made by the decision-maker itself--the AQCC--and because the comments 
could only be addressed by performing new air quality modeling.\1\
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    \1\ CBD provided supporting material to its written comment in 
the form of an audio file, which was delivered to the EPA Region 8 
offices in Denver, CO. The regulations.gov site does not support the 
upload of audio files into the docket, however, the audio file is 
available for public inspection per our instructions in the 
ADDRESSES section of the preamble.
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    Response: As noted, the Colorado 2015 ozone infrastructure SIP was 
submitted to the EPA on September 17, 2018, following a public hearing 
held by the State on August 16, 2018. Subsequently, on September 17, 
2019, Colorado supplemented its submission and transmitted CBD's 
original comment and exhibits to the EPA (available in the docket to 
this action).
    After reviewing the comment, exhibits, and audio file of the AQCC 
hearing, the EPA concludes that CBD's comment fails to demonstrate that 
the State's public comment period was not adequate. On the date of the 
hearing, CBD sent an email to the State, commenting, in relevant part, 
``Attached are two papers I intend to discuss in my comments today on 
the proposed good neighbor SIP for the 2015 ozone NAAQS.'' The email 
contained two exhibits: An article titled ``Unexpected slowdown of US 
pollutant emission reduction in the past decade'' and an article titled 
``Agriculture is a major source of NOX pollution in 
California.'' At the hearing, CBD asserted that the AQCC must consider 
the two reports. The first report, according to CBD, ``finds that the 
reductions of NOX''--an ozone precursor--``are becoming much 
slower than what was predicted.'' Thus, CBD concludes, the AQCC must 
``take that into account.'' The second report concerns NOX 
emissions from agricultural fertilizer in California. While CBD 
acknowledges that the report addresses California, CBD claims the AQCC 
must determine whether agricultural emissions are adequately accounted 
for ``in all relevant states.''
    The commenter had the opportunity, at the public hearing, to 
explain the significance of the documents it submitted to support its 
oral comments and, the commenter did so. The audio record of the 
hearing indicates that a commissioner of the AQCC stated that because 
the commenter had submitted the documents shortly before the hearing, 
the AQCC had not had a chance to look at them. Nevertheless, a 
commissioner of the AQCC invited a response from ``staff'' to the 
issues raised by the commenter at the hearing. In response, a 
representative from the APCD stated, in part, that its interstate 
transport SIP submission is not designed to address other states' 
contributions to Colorado's nonattainment areas. A second state 
representative explained that Colorado's ``highest value is at 0.33 
[ppb of ozone?], which is less than half of the value that is deemed 
significant'' and there would need to be a ``dramatic change'' to show 
that Colorado was significantly contributing to another state. These 
statements indicate that the State did consider the commenters' 
concerns at the public hearing, even if the State disagreed with the 
commenter and the relevance of the submitted documents.
    CAA section 110(a) requires that each state provide ``reasonable 
notice and public hearing'' in connection with SIP submissions. The 
EPA's regulations further require, in part, that states provide notice 
and the opportunity to submit written comments. 40 CFR 51.102. Under 
the specific circumstances, here, although Colorado's response to the 
comment was not robust, the commenter has not demonstrated that 
Colorado's public hearing was not adequate, nor that Colorado had 
failed to provide an

[[Page 20167]]

opportunity to submit comments. Despite being provided the opportunity 
to explain the significance of the submitted documents (either orally 
or in writing), the commenter's remarks about the significance of the 
documents were brief and general.\2\ The AQCC did not ignore the 
commenter, but provided the commenter with an opportunity to explain 
concerns based on the submitted documents, apparently attended to that 
explanation, and invited (and received) input from APCD staff 
concerning the material submitted by the commenter. The commenter's 
suggestion that the remarks by APCD staff were speculative and 
meaningless and that it was necessary for Colorado to re-run modeling 
based on the submitted documents is not adequately supported.\3\ Under 
the circumstances, including the commenter's very limited explanation 
concerning the significance of the documents submitted at the hearing, 
the input from APCD staff at the hearing, and the apparent nature of 
the documents (including that they were prepared in other contexts and 
not directly germane to the SIP submission at issue), Colorado not 
conducting additional photochemical grid modeling based on a general 
request to take the reports ``into account'' was reasonable. Given the 
lack of specificity in CBD's comments and with respect to the 
significance of the submitted documents, the agency does not agree that 
the public comment opportunity provided by Colorado was not adequate. 
It is a commenter's responsibility to make assertions with reasonable 
specificity during the public comment period.
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    \2\ It is worth noting that the commenter, in submitting 
comments in response to the NPRM, did not submit to the EPA the 
papers it had tendered to the AQCC and it made only passing 
reference to exhibits it had submitted to the AQCC. The commenter 
made no attempt to meaningfully discuss the exhibits or clearly 
explain the significance of the material.
    \3\ The commenter ``cannot undermine'' a model simply by 
``pointing to variable not taken into account that might conceivably 
have pulled the analysis's sting.'' Appalachian Power v. EPA, 135 
F.3d 791, 805 (D.C. Cir. 1998). CBD must show how that failure 
``would have a significant effect'' on the outcome. Id.
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    Comment: Commenter asserts that the EPA must disapprove the CAA 
section 110(a)(2)(D)(i)(I) (interstate transport prongs 1 and 2) 
portion of Colorado's SIP for the 2015 ozone NAAQS because the proposed 
approval relied on the EPA's source-apportionment modeling for the year 
2023 that was released with the EPA's March 2018 Memo.\4\ The commenter 
states that this modeling is not reliable because the ``EPA is actively 
working to undo a number of major rules that underpin the 2023 modeling 
results.'' The commenter specifically cites the EPA's proposed repeal 
of the ``Glider Rule'' establishing emission requirements for glider 
vehicles, glider engines, and glider kits; \5\ the Department of 
Transportation's National Highway Traffic Safety Administration (NHTSA) 
proposed repeal of the Corporate Average Fuel Economy (CAFE) standards 
for light-duty vehicles and the EPA's simultaneous proposed repeal of 
vehicle Greenhouse Gas (GHG) standards; \6\ and the proposed withdrawal 
the Control Techniques Guidelines (CTG) for the oil and gas 
industry.\7\ The commenter also cites the repeal of the Clean Power 
Plan and its replacement with the ``more-polluting'' Affordable Clean 
Energy (ACE) rule. The commenter states that all of these actions 
``erode the accuracy of EPA's 2023 modeling projections and further 
demonstrates the arbitrariness of EPA's reliance on that modeling to 
approve Colorado's Good Neighbor provision.'' The commenter asserts 
that reliance on the modeling is arbitrary with regard to both steps 1 
and 2 of the EPA's analysis because it underestimates values at 
downwind receptors as well as Colorado's contributions to those 
receptors.
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    \4\ 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),'' (Mar. 27, 2018), available in the docket for 
this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-airpollution-transport-memos-and-notices.
    \5\ See ``Repeal of Emission Requirements for Glider Vehicles, 
Glider Engines, and Glider Kits'' 82 FR 53442 (Nov. 16, 2017).
    \6\ See ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles 
Rule for Model Years 2021-2026 Passenger Cars and Light Trucks,'' 83 
FR 42986 (Aug. 24, 2018).
    See ``2017 and Later Model Year Light-Duty Vehicle Greenhouse 
Gas Emissions and Corporate Average Fuel Economy Standards,'' 77 FR 
62624, 62899-900 (Oct. 15, 2012).
    \7\ See ``Notice of Proposed Withdrawal of the Control 
Techniques Guidelines for the Oil and Natural Gas Industry,'' 83 FR 
10478 (Mar. 9, 2018).
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    The commenter also states that the EPA's 2023 modeling projections 
failed to account for non-air quality regulations that had been rolled 
back, stating without reference ``both the coal combustion waste and 
the steam electric effluent limitation guidance rules'' and ``state 
level bailouts for dirty sources of pollution, like in Ohio.'' The 
commenter states that ``these rollbacks are designed to make dirty 
forms of energy more economic so that they are dispatched more, which 
results in more pollution.''
    Response: The EPA disagrees with the commenter that its 2023 
modeling projections are unreliable because of potential changes to 
other regulations. The EPA first notes that the Agency has not 
finalized proposed regulatory changes to the Glider Rule or the oil and 
gas CTG. The EPA's normal practice is to only include changes in 
emissions from final regulatory actions in its modeling because, until 
such rules are finalized, any potential changes in NOX or 
VOC emissions are speculative.
    The EPA did finalize a portion of the revisions to the CAFE 
standards for light duty vehicles, specifically the withdrawal of the 
waiver the agency had previously provided to California for its GHG and 
Zero Emissions Vehicle programs under section 209 of the CAA.\8\ This 
final action does not have any impact on Colorado's modeled 2023 
emissions. The model year 2017-2025 GHG regulations for cars and light 
trucks were projected to yield small but measurable criteria and toxic 
emissions reductions from vehicles. Because the vehicles affected by 
the 2017-2025 GHG standards would still need to meet applicable 
criteria pollutant emissions standards (e.g., the Tier 3 emissions 
standards; 79 FR 23414), the regulatory impact analysis that 
accompanied the proposed revision to the GHG standards estimated a very 
limited impact on criteria and toxic pollutant emissions (increases in 
upstream emissions \9\ and decreases in tailpipe emissions). Moreover, 
the proposed SAFE Vehicles Rule specifically notes that none of the 
regulatory alternatives considered ``would noticeably impact net 
emissions of smog-forming or other `criteria' or toxic air 
pollutants.'' 83 FR 42996. Although on September 19, 2019, the EPA 
signed a final rule withdrawing a waiver for the State of California's 
GHG and zero emissions vehicle programs under CAA section 209, the EPA 
has not yet acted on the regulatory alternatives identified in the 
proposed SAFE Vehicles Rule.\10\ In general, the mobile source and non-
EGU emissions inventories do not reflect changes in emissions resulting 
from rulemakings finalized in calendar year 2016 or later, nor do they 
reflect any rules proposed but not yet finalized since 2016, as only

[[Page 20168]]

finalized rules are reflected in modeling inventories.
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    \8\ See ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles 
Rule Part One: One National Program,'' 84 FR 51310 (Sep. 27, 2019).
    \9\ In this context, ``upstream emissions'' refer to the 
estimated emissions attributed to the extraction and transportation 
of crude oil, refining of crude oil, and distribution and storage of 
finished gasoline. See the NPRM for ``The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule Part One: One National Program,'' at 
83 FR 42986, August 24, 2018.
    \10\ See prepublication version of The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule Part One: One National Program, Final 
Rule (signed September 19, 2019).
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    Further, the commenter has not demonstrated that the potential 
changes to nationally applicable rules noted by the commenter might 
reasonably be expected to impact Colorado's modeled contributions to 
projected downwind nonattainment and maintenance receptors, to the 
degree that Colorado sources might contribute significantly to 
nonattainment or interfere with maintenance at any of these receptors. 
In the 2011 Cross-State Air Pollution Rule (CSAPR) and the 2016 CSAPR 
Update, the EPA used a threshold of one percent of the NAAQS (0.7 ppb 
of ozone) 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 
on this basis the EPA concluded the state will not significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in the downwind states.
    As stated in the NPRM, the EPA's updated 2023 modeling, discussed 
in the March 2018 Memo, indicates that Colorado's largest impacts on 
any potential downwind nonattainment and maintenance receptor in the 
United States are 0.33 ppb and 0.27 ppb, respectively. These values are 
less than half of 0.70 ppb, or the value equivalent to one percent of 
the 2015 ozone NAAQS.\11\ The commenter has not provided any 
information to demonstrate how ozone precursor emissions from sources 
located in Colorado might be expected to increase in such a way as to 
cause Colorado's projected impact to approach a 0.70 ppb contribution 
at any downwind receptor. Therefore, the EPA disagrees with the 
commenter that the EPA's 2023 modeling projections cannot be relied 
upon to conclude that emissions from Colorado will not significantly 
contribute to nonattainment or interfere with maintenance of the 2015 
ozone NAAQS in any other state.
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    \11\ Because none of Colorado's impacts to nonattainment or 
maintenance receptors exceed 0.70 ppb, they necessarily also do not 
exceed the 1 ppb contribution threshold discussed in the EPA's 
memorandum ``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,'' (Aug. 31, 2018).
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    The commenter also has not demonstrated that the potential changes 
to nationally applicable rules noted by the commenter might reasonably 
be expected to cause our 2023 modeling analysis to underestimate values 
at downwind receptors, and specifically to underestimate these values 
in such a way that would cause receptors to which Colorado contributes 
above 0.70 ppb to be considered nonattainment and/or maintenance in 
2023. Table 1 below lists the downwind receptors in the 2023 modeling 
to which Colorado was projected to contribute above 0.70 ppb. As shown, 
none of these downwind receptors is projected to come near the 
nonattainment or maintenance level of 71.0 ppb. For this reason, even 
if downwind receptor 2023 projections were expected to increase (which 
we do not anticipate), such increases would be very unlikely to convert 
these receptors to nonattainment or maintenance for the 2015 ozone 
NAAQS.

                  Table 1--Downwind State Receptors With Colorado Contributions Above 0.70 ppb
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                                                                                                      2023 CO
                Site ID                           State             2023 avg DV     2023 max DV    contribution
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560210100.............................  Wyoming.................            62.4            62.4            7.99
350451005.............................  New Mexico..............            55.3            57.0            2.04
350450009.............................  New Mexico..............            56.7            59.0            1.24
460930001.............................  South Dakota............            52.0            53.3            1.13
350450018.............................  New Mexico..............            62.0            62.0            1.00
560050123.............................  Wyoming.................            59.3            60.5            0.80
400159008.............................  Oklahoma................            61.2            63.1            0.71
201730010.............................  Kansas..................            61.9            63.2            0.70
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    Regarding the commenter's assertion that the EPA's 2023 modeling 
projections failed to account for non-air quality related ``rules'' and 
``bailouts,'' \12\ the EPA finds that the commenter has failed to 
provide any data or other information to show how these actions ``would 
have a significant effect'' on the EPA's modeling results.\13\ Based on 
this particular comment's lack of both context and information, the EPA 
finds that the comment does not present evidence that the EPA's 2023 
modeling projections are not a sufficient basis for the EPA to conclude 
that Colorado does not significantly contribute to nonattainment or 
interfere with maintenance of the 2015 ozone NAAQS in the downwind 
states.
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    \12\ As noted, the commenter did not provide references for any 
of these actions (other than an oblique reference to ``like in 
Ohio''), and the EPA therefore lacks the context necessary to 
accurately describe them.
    \13\ See Appalachian Power v. EPA, 135 F.3d at 805: ``The party 
challenging the use'' of, in this case, an air quality modeling 
analysis, ``must identify clearly major variables the omission of 
which renders the analysis suspect,'' including ``data to support 
the assertion that additional factors . . . would have a significant 
effect'' on the modeling results.
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    Comment: Commenter asserts that the EPA's reliance on the 2023 
modeling projections from the March 2018 Memo was inappropriate because 
the Marginal attainment date for the 2015 ozone NAAQS falls before 
2023, and ``most of the downwind areas are marginal nonattainment 
areas.'' The commenter explains that the EPA's use of the attainment 
date for Moderate areas is contrary to the good neighbor provision of 
section 110(a)(2)(D)(i)(I), as well as the CAA requirements for 
expeditious attainment of the NAAQS. Thus, the commenter concludes that 
the EPA must use a date in its future year modeling analysis no later 
than the attainment date for marginal nonattainment areas, which would 
both increase the number of nonattainment and maintenance receptors and 
increase Colorado's contribution to those receptors.
    Response: The EPA disagrees with the commenter that it is 
inappropriate to rely on the EPA's modeling from the March 2018 Memo 
because our 2023 projections are aligned with the Moderate rather than 
Marginal attainment date for the 2015 ozone NAAQS. The EPA further 
notes that, even if it were appropriate to evaluate downwind air 
quality and upwind contributions consistent with the

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Marginal area attainment date of 2021, Colorado's impacts on these 
areas in 2021 would be similar to those projected in 2023, as detailed 
further below. EPA modeling in support of the CSAPR Update Rule for the 
2008 ozone NAAQS projected that Colorado's largest impact to any 
downwind nonattainment or maintenance receptor in 2017 was 0.31 
ppb.\14\ As noted, in the March 2018 Memo we projected a maximum impact 
of 0.33 ppb to any downwind nonattainment or maintenance receptor in 
2023. Both of these maximum impacts were projected at the same receptor 
in Tarrant County, Texas. To estimate Colorado's maximum contribution 
to a potential nonattainment or maintenance receptor in 2021, the EPA 
used a linear interpolation which calculated the average contribution 
from Colorado to the Tarrant County receptor using the underlying daily 
2023 contribution data for the same days that were used to calculate 
the average contribution for 2017. Specifically, the 2017 contribution 
analysis included 5 days and we used the daily contributions from these 
same 5 days to calculate the Transport Future Year 2023 average 
contribution. Using this consistent methodology, the contribution from 
Colorado to the Tarrant County receptor in 2023 is 0.3135 ppb, 
virtually unchanged from the 0.3137 ppb contribution modeled in 2017. 
The EPA calculated the linear rate of decline for contribution from 
Colorado to the Tarrant County receptor to calculate a 2021 
contribution of 0.3136 ppb.\15\ Based on this analysis, the EPA finds 
it reasonable to conclude that Colorado impacts to downwind 
nonattainment and maintenance receptors in any years between 2017 and 
2023, including 2021, would also be projected to be well below 0.70 
ppb.
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    \14\ See the EPA's ``Air Quality Modeling Technical Support 
Document for the Final Cross State Air Pollution Rule Update'' 
(August 2016), in the docket for this action.
    \15\ A spreadsheet with the calculations from this linear 
interpolation is included in the docket for this action.
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    The EPA also believes that 2023 is an appropriate year for analysis 
of good neighbor obligations for the 2015 ozone NAAQS because the 2023 
ozone season is the last relevant ozone season during which achieved 
emissions reductions in linked upwind states could assist downwind 
states with meeting the August 2, 2024 Moderate area attainment date 
for the 2015 ozone NAAQS. The EPA recognizes that the attainment date 
for nonattainment areas classified as Marginal for the 2015 ozone NAAQS 
is August 2, 2021, which currently applies in several nonattainment 
areas downwind of Colorado evaluated in the EPA's modeling.\16\ The EPA 
is further cognizant of the D.C. Circuit's September 13, 2019 decision 
in Wisconsin v. EPA. 938 F.3d 303. In this ruling, the court addressed 
legal challenges to the CSAPR Update, in which the EPA partially 
addressed certain upwind states' prongs 1 and 2 obligations for the 
2008 ozone NAAQS. While the court generally upheld the rule as to most 
of the challenges raised in the litigation, the court remanded the 
CSAPR Update to the extent it failed to require upwind states to 
eliminate their significant contributions in accordance with the 
attainment dates found in CAA section 181 by which downwind states must 
come into compliance with the NAAQS. Id. at 313. However, as explained 
below, the EPA does not believe that either the statute or applicable 
case law requires the evaluation of good neighbor obligations in a 
future year aligned with the attainment date for nonattainment areas 
classified as Marginal.
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    \16\ The Marginal area attainment date is not applicable for 
nonattainment areas already classified as Moderate or higher, such 
as the New York Metropolitan Area. For the status of all 
nonattainment areas under the 2015 ozone NAAQS, see U.S. EPA, 8-Hour 
Ozone (2015) Designated Area/State Information, https://www3.epa.gov/airquality/greenbook/jbtc.html (last updated Sept. 30, 
2019).
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    The good neighbor provision instructs the EPA and states to apply 
its requirements ``consistent with the provisions of'' title I of the 
CAA. CAA section 110(a)(2)(D)(i); see also North Carolina v. EPA, 531 
F.3d 896, 911-12 (D.C. Cir. 2008). This consistency instruction follows 
the requirement that plans ``contain adequate provisions prohibiting'' 
certain emissions in the good neighbor provision. As the D.C. Circuit 
held in North Carolina, and more recently in Wisconsin, the good 
neighbor provision must be applied in a manner consistent with the 
designation and planning requirements in title I that apply in downwind 
states and, in particular, the timeframe within which downwind states 
are required to implement specific emissions control measures in 
nonattainment areas and submit plans demonstrating how those areas will 
attain, relative to the applicable attainment dates. See North 
Carolina, 896 F.3d at 912 (holding that the good neighbor provision's 
reference to title I requires consideration of both procedural and 
substantive provisions in title I); Wisconsin, 938 F.3d at 313-18.
    While the EPA recognizes, as the court held in North Carolina and 
Wisconsin, that upwind emissions-reduction obligations therefore must 
generally be aligned with downwind receptors' attainment dates, unique 
features of the statutory requirements associated with the Marginal 
area planning requirements and attainment date under CAA section 182 
lead the EPA to conclude that it is more reasonable and appropriate to 
require the alignment of upwind good neighbor obligations with later 
attainment dates applicable for Moderate or higher classifications. 
Under the CAA, states with areas designated nonattainment are generally 
required to submit, as part of their state implementation plan, an 
``attainment demonstration'' that shows, usually through air quality 
modeling, how an area will attain the NAAQS by the applicable 
attainment date. See CAA section 172(c)(1).\17\ Such plans must also 
include, among other things, the adoption of all ``reasonably 
available'' control measures on existing sources, a demonstration of 
``reasonable further progress'' toward attainment, and contingency 
measures, which are specific controls that will take effect if the area 
fails to attain by its attainment date or fails to make reasonable 
further progress toward attainment. See, e.g., CAA section 172(c)(1); 
172(c)(2); 172(c)(9). Ozone nonattainment areas classified as Marginal 
are excepted from these general requirements under the CAA--unlike 
other areas designated nonattainment under the Act (including for other 
NAAQS pollutants), Marginal ozone nonattainment areas are specifically 
exempt from submitting an attainment demonstration and are not required 
to implement any specific emissions controls at existing sources in 
order to meet the planning requirements applicable to such areas. See 
CAA section 182(a) (``The requirements of this subsection shall apply 
in lieu of any requirement that the State submit a demonstration that 
the applicable implementation plan provides for attainment of the ozone 
standard by the applicable attainment date in any Marginal Area.'') 
\18\ Marginal ozone

[[Page 20170]]

nonattainment areas are also exempt from demonstrating reasonable 
further progress towards attainment and submitting contingency 
measures. See CAA section 182(a) (does not include a reasonable further 
progress requirement and specifically notes that ``Section [172(c)(9)] 
of this title (relating to contingency measures) shall not apply to 
Marginal Areas'').
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    \17\ Part D of title I of the Clean Air Act provides the plan 
requirements for all nonattainment areas. Subpart 1, which includes 
section 172(c), applies to all nonattainment areas. Congress 
provided in subparts 2-5 additional requirements specific to the 
various NAAQS pollutants that nonattainment areas must meet.
    \18\ States with Marginal nonattainment areas are required to 
implement new source review permitting for new and modified sources, 
but the purpose of those requirements is to ensure that potential 
emissions increases do not interfere with progress towards 
attainment, as opposed to reducing existing emissions. Moreover, the 
EPA acknowledges that states within ozone transport regions must 
implement certain emission control measures at existing sources in 
accordance with CAA section 184, but those requirements apply 
regardless of the applicable area designation or classification.
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    Existing regulations--either local, state, or Federal--are 
typically a part of the reason why ``additional'' local controls are 
not needed to bring Marginal nonattainment areas into attainment. As 
described in the EPA's record for its final rule defining area 
classifications for the 2015 ozone NAAQS and establishing associated 
attainment dates, history has shown that the majority of areas 
classified as Marginal for prior ozone standards attained the 
respective standards by the Marginal area attainment date (i.e., 
without being re-classified to a Moderate designation). 83 FR 10376. As 
part of a historical lookback, the EPA calculated that by the relevant 
attainment date for areas classified as Marginal, 85 percent of such 
areas attained the 1979 1-hour ozone NAAQS, and 64 percent attained the 
2008 ozone NAAQS. See Response to Comments, section A.2.4.\19\ Based on 
these historical data, the EPA expects that many areas classified 
Marginal for the 2015 ozone NAAQS will also attain by the relevant 
attainment date as a result of emissions reductions that are already 
expected to occur through implementation of existing local, state, and 
Federal emissions reduction programs. To the extent states have 
concerns about meeting their attainment date for a Marginal area, the 
CAA under section 181(b)(3) provides authority for them to voluntarily 
request a higher classification for individual areas, if needed.
---------------------------------------------------------------------------

    \19\ Available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0202-0122.
---------------------------------------------------------------------------

    Areas that are classified as Moderate typically have more 
pronounced air quality problems than Marginal areas or have been unable 
to attain the NAAQS under the minimal requirements that apply to 
Marginal areas. See CAA sections 181(a)(1) (classifying areas based on 
the degree of nonattainment relative to the NAAQS) and (b)(2) 
(providing for reclassification to the next highest designation upon 
failure to attain the standard by the attainment date). Thus, unlike 
Marginal areas, the statute explicitly requires a state with an ozone 
nonattainment area classified as Moderate or higher to develop an 
attainment plan demonstrating how the state will address the more 
significant air quality problem, which generally requires the 
application of various control measures to existing sources of 
emissions located in the nonattainment area. See generally CAA sections 
172(c) and 182(b)-(e).
    Given that downwind states are not required to demonstrate 
attainment by the attainment date or impose additional controls on 
existing sources in a Marginal nonattainment area, the EPA believes 
that it would be inconsistent to interpret the good neighbor provision 
as requiring the EPA to evaluate the necessity for upwind state 
emissions reductions based on air quality modeled in a future year 
aligned with the Marginal area attainment date. Rather, the EPA 
believes it is more appropriate and consistent with the nonattainment 
planning provisions in title I of the Act to evaluate downwind air 
quality and upwind state contributions, and, therefore, the necessity 
for upwind state emissions reductions, in a year aligned with an area 
classification in connection with which downwind states are also 
required to demonstrate attainment and implement controls on existing 
sources -- i.e., with the Moderate area attainment date, rather than 
the Marginal area date. With respect to the 2015 ozone NAAQS, the 
Moderate area attainment date will be in the summer of 2024, and the 
last full year of monitored ozone-season data that will inform 
attainment demonstrations is, therefore, 2023.
    The EPA's interpretation of the good neighbor requirements in 
relation to the Marginal area attainment date is consistent with the 
Wisconsin opinion. For the reasons explained below, the court's holding 
does not contradict the EPA's view that 2023 is an appropriate analytic 
year in evaluating good neighbor SIPs for the 2015 ozone NAAQS. The 
court in Wisconsin was concerned that allowing upwind emission 
reductions to be implemented after the applicable attainment date would 
require downwind states to obtain more emissions reductions than the 
Act requires of them, to make up for the absence of sufficient 
emissions reductions from upwind states. See 938 F.3d at 316. As 
discussed previously, however, this equitable concern only arises for 
nonattainment areas classified as Moderate or higher for which downwind 
states are required by the CAA to develop attainment plans securing 
reductions from existing sources and demonstrating how such areas will 
attain by the attainment date. See, e.g., CAA section 182(b)(1) & (2) 
(establishing ``reasonable further progress'' and ``reasonably 
available control technology'' requirements for Moderate nonattainment 
areas). Ozone nonattainment areas classified as Marginal are not 
required to meet these same planning requirements, and thus the 
equitable concerns raised by the Wisconsin court do not arise with 
respect to downwind areas subject to the Marginal area attainment date.
    The distinction between planning obligations for Marginal 
nonattainment areas and higher classifications was not before the court 
in Wisconsin. Rather, the court was considering whether the EPA, in 
implementing its obligation to promulgate Federal implementation plans 
under CAA section 110(c), was required to fully resolve good neighbor 
obligations by the 2018 Moderate area attainment date for the 2008 
ozone NAAQS. See 938 F.3d at 312-13. Although the court noted that 
petitioners had not ``forfeited'' an argument with respect to the 
Marginal area attainment date, see id. at 314, the court did not 
address whether its holding with respect to the 2018 Moderate area date 
would have applied with equal force to the Marginal area attainment 
date because that date had already passed. Thus, the court did not have 
the opportunity to consider these differential planning obligations in 
reaching its decision regarding the EPA's obligations relative to the 
then-applicable 2018 Moderate area attainment date because such 
considerations were not applicable to the case before the court.\20\ 
For the reasons discussed here, the equitable concerns supporting the 
Wisconsin court's holding as to upwind state obligations relative to 
the Moderate area attainment date also support the EPA's interpretation 
of the good neighbor

[[Page 20171]]

provision relative to the Marginal area attainment date. Thus, the EPA 
concludes that its reliance on an evaluation of air quality in the 2023 
analytical year for purposes of assessing good neighbor obligations 
with respect to the 2015 ozone NAAQS is based on a reasonable 
interpretation of the CAA and legal precedent.
---------------------------------------------------------------------------

    \20\ The D.C. Circuit, in a short judgment, subsequently vacated 
and remanded the EPA's action purporting to fully resolve good 
neighbor obligations for certain states for the 2008 ozone NAAQS, 
referred to as the CSAPR Close-Out, 83 FR 65878 (Dec. 21, 2018). New 
York v. EPA, No. 19-1019 (Oct. 1, 2019). That result necessarily 
followed from the Wisconsin decision, because as the EPA conceded, 
the Close-Out ``relied upon the same statutory interpretation of the 
Good Neighbor Provision'' rejected in Wisconsin. Id. slip op. at 3. 
In the Close-Out, the EPA had analyzed the year 2023, which was two 
years after the Serious area attainment date for the 2008 ozone 
NAAQS and not aligned with any attainment date for that NAAQS. Id. 
at 2. In New York, as in Wisconsin, the court was not faced with 
addressing specific issues associated with the unique planning 
requirements associated with the Marginal area attainment date.
---------------------------------------------------------------------------

    Comment: Commenter asserts that the EPA must disapprove the SIP 
under CAA section 110(a)(2)(E) (Adequate resources and authority) 
because the State of Colorado lacks adequate legal authority to 
regulate emissions from agriculture sources. The commenter quotes 
Colorado Revised Statues 25-7-109(8)(a) to state that this provision 
prohibits Colorado from being able to protect visibility and air 
quality in Class 1 areas from agricultural sources. Furthermore, the 
commenter asserts that the EPA must disapprove the SIP under CAA 
sections 110(a)(2)(D) (interstate transport prong 4) and 110(a)(2)(J) 
(consultation with government officials, public notification, and PSD 
and visibility protection) because of visibility impairment caused by 
agricultural emissions. Finally, the commenter also calls on the EPA to 
disapprove the SIP under CAA section 110(a)(2)(A) (emissions limits and 
other control measures) by explaining the State is unable to maintain 
the NAAQS because Colorado lacks the authority to control emissions 
from agriculture and pesticides, ``even if such sources are not major 
stationary sources . . . .''
    Response: Colorado's infrastructure SIP submission confirms that 
``[t]here are no state or federal provisions prohibiting the 
implementation of any provision of the Colorado SIP.'' Specifically, 
Colorado cites to ``general authority to adopt the rules and 
regulations necessary to implement the SIP'' as ``set out in the 
Colorado Air Pollution Prevention and Control Act Section 25-7-105 of 
the Colorado Revised Statutes (C.R.S.),'' general authority to 
administer and enforce the program in 25-7-111, C.R.S, additional 
authority to regulate air pollution and implement provisions in the SIP 
in the Colorado Air Pollution Prevention and Control Act, Article 7 of 
title 25, and authority delegated under Sections 42-4-301 through 42-4-
316, C.R.S. (concerning motor vehicle emissions) and 42-4-414, C.R.S. 
(concerning emissions from diesel-powered vehicles).
    The statutory provision cited by commenter does not bar the State 
from carrying out its existing SIP; indeed, the provision requires 
regulation of agricultural, horticultural, or floricultural production, 
certain animal feeding operations, and pesticide application ``if they 
are `major stationary sources', . . . or are required by Part C 
(prevention of significant deterioration), Part D (nonattainment), or 
Title V (minimum elements of a permit program) . . . .'' Whether 
Colorado will need additional emission limitations and other control 
measures for areas designated nonattainment for the 2015 ozone NAAQS 
will be reviewed and acted upon as part of the State's attainment plan 
under CAA title I part D through a separate process at a later time.
    While the EPA recognizes the commenter's concern about the impact 
of agricultural and pesticide emissions, in the context of this 
rulemaking, the EPA does not find the State deficient in its ability to 
carry out its infrastructure SIP requirements.
    CAA section 110(a)(2)(D)(i)(II) (interstate transport prong 4) 
generally requires a SIP to contain adequate provisions prohibiting 
emissions within the state from ``interfering with measures required to 
be in the applicable implementation plan for any other State under part 
C of this subchapter . . . to protect visibility.'' Under the 2013 
Infrastructure SIP guidance,\21\ a state's infrastructure SIP 
submission may satisfy prong 4 through confirmation that the state has 
a fully-approved regional haze SIP. The EPA approved Colorado's 
Regional Haze SIP for the first implementation period for regional haze 
on December 31, 2012 (77 FR 76871), which the State identified to 
demonstrate that Colorado does not interfere with visibility in any 
other state. The EPA subsequently approved an update to Colorado's 
Regional Haze SIP on July 5, 2018, meaning that the Colorado Regional 
Haze SIP for the first implementation period remains fully approved (83 
FR 31332). Accordingly, this is a sufficient basis on which to approve 
the State's prong 4 submittal here.
---------------------------------------------------------------------------

    \21\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
---------------------------------------------------------------------------

    With respect to CAA section 110(a)(2)(J) (consultation with 
government officials, public notification, and PSD and visibility 
protection), the EPA also disagrees with the commenter. Section 
110(a)(2)(J) visibility requirements do not need to be addressed in 
this rulemaking because a state's requirements relating to visibility 
protection are not affected when the EPA establishes or revises a 
NAAQS. As the EPA noted in the 2013 Infrastructure SIP guidance, when 
the EPA establishes or revises a NAAQS, the visibility requirements 
under Part C of title I of the CAA do not change. There are no new 
visibility protection requirements under Part C as a result of the 
revised NAAQS. Accordingly, air agencies do not need to address the 
visibility sub-element of Element J in an infrastructure SIP 
submission.
    The EPA recognizes the concern for meeting visibility requirements. 
However, Colorado has a fully approved regional haze SIP for the first 
implementation period, and the EPA and states, including Colorado, 
along with various stakeholders have been engaged in an ongoing process 
of developing SIPs for the second implementation period under the 
regional haze regulations, 40 CFR part 51, subpart P, which are due to 
the EPA by July 31, 2021.
    Comment: Commenter asserts that the EPA must disapprove the SIP 
under CAA sections 110(a)(2)(E)(i) and 110(a)(2)(L) stating that in the 
NPRM, the EPA fails to provide analyses that prove Colorado's resources 
are adequate. Commenter believes Colorado lacks adequate funding 
because the State ``has missed the statutory deadline to make a final 
decision'' on renewal applications for ``dozens of Title V facilities'' 
(asserting that ``Colorado does not have the resources to hire enough 
title V permit writers.'' Moreover, commenter assumes Colorado lacks 
adequate resources to enforce its air program because the State ``has 
approximately 9 inspectors to inspect . . . 50,000 plus oil and gas 
wells.'' Commenter believes Colorado's ``Taxpayer Bill of Rights'' 
(TABOR) amendment operates as a legal impediment to the State's budget 
that impacts its ability to implement the SIP.
    Response: The EPA disagrees with the commenter's conclusions 
concerning the adequacy of the Colorado infrastructure SIP with respect 
to both CAA sections 110(a)(2)(E)(i) and (L). As stated in the NPRM, 
CAA section 110(a)(2)(E)(i) requires that each SIP provides, in part, 
``necessary assurances that the State . . . will have adequate 
personnel, funding, and authority under State . . . law to carry out 
such implementation plan'' and CAA section 110(a)(2)(L) requires that 
each state have a permit fee program (although the requirement is 
suspended when the EPA approves the state's title V fee program, which 
does not need to be approved into the SIP).
    With respect to CAA section 110(a)(2)(E)(i), the EPA evaluates the 
submitting state's infrastructure SIP submission for evidence that the 
state has adequate resources. Element E does

[[Page 20172]]

not require an audit of resources or personnel. As stated in the NPRM 
for this action, Colorado's infrastructure SIP submission for the 2015 
ozone NAQQS indicated that ``[t]he Divison has staff and annual budget 
to operate its six programs (Stationary Sources, Mobile Sources, Indoor 
Environment, Technical Services, Planning and Policy, Administrative 
Services).'' Further, the Division employed 176 people and had a budget 
of about $18 million for fiscal year 2018. Of the total budget, about 
17 percent was derived from Federal grants, 30 percent from mobile 
source fees, 50 percent from stationary source fees, and 3 percent from 
other cash sources. These budget and staff levels have been consistent 
over the past number of years and over these years Colorado has been 
able to meet its statutory commitments, including submitting the 
required air quality data, attainment plans, and monitoring 
networks.\22\
---------------------------------------------------------------------------

    \22\ See, e.g., 76 FR 43906 (July 22, 2011) (EPA-R08-OAR-2009-
0809-004 for FY2006); 78 FR 58186 (Sept. 23, 2013) (EPA-R08-OAR-
0810-0002 for FY2009); 80 FR 50205 (Aug. 19, 2015) (EPA-R08-OAR-
2012-0972-0002 for FY2011); 82 FR 39030 (Aug. 17, 2017) (EPA-R08-
OAR-2013-0557-0004 for FY2012 and EPA-R08-OAR-2013-0557-0002 for 
FY2014).
---------------------------------------------------------------------------

    Commenter expresses specific concerns that Colorado ``has 
approximately 9 inspectors to inspect its 50,000 plus oil and gas 
wells,'' and concludes from this that the State ``lacks the resources 
to adequately enforce its air program.'' In general, the EPA believes 
that questions about the specific number of inspectors needed in a 
given state involve the issue of enforcement discretion and are thus 
within the state's discretion, within reason. The EPA notes that it 
does not require physical inspection of every stationary source of 
emissions. The EPA's stationary source compliance monitoring guidance 
explains that states are encouraged to use a variety of techniques to 
determine compliance, including, for example, on-site compliance 
evaluations and off-site record reviews.\23\ Furthermore, state choices 
such as focusing resources on and targeting inspections to larger 
sources (such as title V major stationary sources) are consistent with 
the EPA's inspection guidance, which calls for more frequent 
inspections of larger sources but does not specify an inspection 
frequency for smaller sources. And though commenter asserts that there 
are ``50,000 plus oil and gas wells'' in Colorado, commenter does not 
differentiate between smaller sources (or even inactive wells) and 
major stationary sources, which must be permitted in accordance with 
the CAA. Indeed, a recent report suggests that only 11,000 of those 
wells are ``permitted'' wells.\24\ Because the report does not specify 
the type of permit that the State issued (e.g., whether the permitted 
source is a major source or a minor source), in evaluation of this 
comment the EPA has reviewed the Colorado's title V operating permits 
database \25\ and identified only one permit for an oil and gas 
production facility.\26\ Although the State issued numerous permits 
(but fewer than 60) for compressor stations that may be located at or 
near a well-site, such sources may not necessitate a site-visit to 
assess compliance.\27\ Accordingly, commenter's assertion does not, at 
this juncture, contravene Colorado's assurance that the State has 
adequate resources and personnel to carry out its SIP. Accordingly, the 
EPA concludes that Colorado's Infrastructure SIP submission provides 
the necessary assurances that the State has the staffing and resources 
needed to meet its SIP obligations in accordance with section 
110(a)(2)(E) of the CAA.
---------------------------------------------------------------------------

    \23\ CAA Stationary Source Compliance Monitoring Strategy 
(October 4, 2016), available at https://www.epa.gov/sites/production/files/2013-09/documents/cmspolicy.pdf. The EPA's guidance 
even notes that some regulated facilities may not require an on-site 
visit to assess compliance, such as gas-fired compressor stations.
    \24\ https://www.denverpost.com/2019/04/21/colorado-air-pollution-oil-gas-sites/.
    \25\ https://www.colorado.gov/pacific/cdphe/operating-permits-company-index.
    \26\ See SandRidge Exploration and Production Company--Bighorn 
Pad, https://drive.google.com/drive/folders/1YqoDMY5a0jSZaMOV8qBNPFh_32CLwQnv.
    \27\ CAA Stationary Source Compliance Monitoring Strategy, at 6.
---------------------------------------------------------------------------

    Commenter's reliance on the alleged title V permit backlog and 
perceived shortage of inspectors are not determinative. While the 
agency agrees that permitting delays are problematic, such delays are 
not necessarily evidence of insufficient state resources that rise to 
the level of an inability to implement the requirements of a SIP. In 
addition, approved title V programs are not a component of a state's 
SIP and such programs, therefore, are not part of the requirements that 
states must address in the context of an Infrastructure SIP submission.
    Commenter also fails to explain why Colorado's submission does not 
satisfy CAA section 110(a)(2)(L) and, indeed, fails to acknowledge that 
Colorado has an EPA-approved fee program under title V (see 65 FR 
49919). To the extent commenter alleges that Colorado is not adequately 
administering and enforcing its title V program, the EPA's review and 
approval of an infrastructure SIP is not the appropriate time to raise 
those issues. Instead, CAA section 502(i) authorizes the Administrator 
to consider such allegations.
    Lastly, commenter's general concern with respect to Colorado's 
constitutional amendment does not provide an adequate basis to 
disapprove Colorado's SIP with respect to CAA sections 110(a)(2)(E)(i) 
or 110(a)(2)(L). Commenter provides no explanation as to how the TABOR 
undermines Colorado's assurances that the State will have adequate 
personnel, funding, and authority to carry out its SIP or invalidates 
the EPA-approved fee program under title V.
    Comment: Commenter asserts that the EPA must disapprove all of the 
PSD related infrastructure elements (i.e., 110(a)(2)(C), (D)(i) (prong 
3) and (J)) because of the State's ``90 day timing rule.'' The 
commenter explains that the rule allows major stationary sources to 
construct ``without a PSD or NSSR [sic] permit'' in violation of the 
CAA.
    Response: Although commenter does not offer a citation to a ``90 
day timing rule,'' the EPA believes commenter intended to refer to AQCC 
Regulation No. 3, Part A, Sec. II.D.1.lll (Exemptions from Air 
Pollutant Emission Notice Requirements: Oil and exploration and 
production operations). That rule requires owners or operators of oil 
and gas exploration and production operations to file an Air Pollution 
Emission Notice (APEN) no later than ninety days following the first 
day of production ``[i]f production will result in reportable 
emissions.'' Commenter presumably believes that because an APEN need 
not be filed until after production begins, this rule exempts major 
stationary sources from new source review permitting (i.e., PSD or 
NNSR).
    The EPA believes commenter may be misunderstanding AQCC regulations 
and, accordingly, disagrees with commenter's conclusion. AQCC 
Regulation 3, Part A, Sec. II addresses Colorado's APEN requirements. 
Under that program, ``no person shall allow emission of air pollutants 
from, or construction, modification or alteration of, any facility, 
process, or activity which constitutes a stationary source, except 
residential structures, from which air pollutants are, or are to be, 
emitted unless and until'' an APEN has been filed with the Division. 
See AQCC Regulation 3, Part A, Sec. II.A. Each APEN must specify the 
location at which the proposed emission will occur and provide certain 
details concerning the facility, process, or activity, including an 
estimate of the quantity

[[Page 20173]]

and composition of the expected emission, among other information. Id.
    If a source is exempted from the filing of an APEN under Part A, 
such sources may also be exempted from the State's construction permit 
program under Part B. See AQCC Regulation 3, Part B, Sec. II.D.1.a. 
However, Colorado's Part B construction permit program is not the 
State's EPA-approved major source new source review program, which is 
found in AQCC Regulation 3, Part D. This may be the source of 
commenter's misunderstanding. AQCC Regulation 3, Part B is clear that 
``[p]ermit exemptions taken under this section do not affect the 
applicability of any State or Federal regulations that are otherwise 
applicable to the source.'' See AQCC Regulation 3, Part B, Sec. II.D. 
Thus, otherwise applicable permitting requirements in Regulation 3, 
Part D are not affected by the exemptions in Part B.
    Furthermore, AQCC Regulation 3, Part A, Sec. II.D.1 also expressly 
states that any source that is exempt from filing an APEN ``must 
nevertheless comply with all requirements that are otherwise applicable 
. . . including, but not limited to: Title V, Prevention of Significant 
Deterioration, nonattainment New Source Review, opacity limitations, 
odor limitations, particulate matter limitations and volatile organic 
compounds controls.'' Further, AQCC Regulation 3, Part D (Colorado's 
major stationary source new source review and PSD program) expressly 
states that ``[a]ny new major stationary source or major modification, 
to which the requirements of this Part D apply, shall not begin actual 
construction in a nonattainment, attainment, or unclassifiable area 
unless a permit has been issued containing all applicable state and 
federal requirements.'' AQCC Regulation 3, Part D, Sec. I.A.1. 
Accordingly, the EPA disagrees with commenter's allegation that the 
``90-day timing rule'' allows major stationary sources to construct 
without a PSD or NNSR permit in violation of the CAA.

North Dakota Comment and Response

    Comment: The DRC submitted a comment letter and supporting 
documentation to the EPA on August 28, 2019, in which the DRC raises 
concerns that North Dakota's SIP does not adequately regulate VOC 
emissions for upstream oil and gas industry operations, and therefore 
the State risks future ozone nonattainment status. Specifically, the 
DRC contends that the North Dakota infrastructure SIP submittal is 
deficient because oil and gas activities ``are not covered by North 
Dakota's minor source permitting program.'' The DRC asserts that while 
oil and gas production facilities are required to file registration 
notices, these sources are otherwise exempt from permitting. The DRC 
explains that upstream oil and gas facilities have a significant 
emissions impact (pointing to the EPA's 2014 National Emissions 
Inventory) and will continue to grow over the coming years. The DRC 
believes North Dakota has failed to aggregate emissions from production 
facilities because of a lack of personnel and funding (contrary to CAA 
section 110(a)(2)(E)). Accordingly, the DRC declares that the EPA has a 
mandatory duty to reject North Dakota's SIP and issue a SIP call for a 
revised plan for its deficiencies under section 110(a)(2)(C).
    Response: The EPA recognizes that the DRC is concerned that North 
Dakota's minor NSR program exempts upstream oil and gas facilities from 
more rigorous permitting and believes North Dakota's SIP should include 
mandatory emission limits, monitoring, and recordkeeping for such 
sources. However, the EPA disagrees with the DRC's conclusion that the 
North Dakota infrastructure SIP submission for the 2015 ozone NAAQS is 
thereby deficient.
    Section 110(a) of the CAA requires states to make SIP submissions 
to establish they already have, or are adding, the SIP infrastructure 
to provide for the implementation, maintenance, and enforcement of a 
new or revised NAAQS within three years following the promulgation of 
such NAAQS, or within such shorter period as the EPA may prescribe. 
Specifically, section 110(a)(1) provides the procedural and timing 
requirements for such SIPs (commonly referred to as infrastructure 
SIPs), and section 110(a)(2) lists specific elements that a state's 
infrastructure SIP must meet for a newly established or revised NAAQS. 
These requirements include basic SIP elements, such as requirements for 
monitoring, basic program requirements, and legal authority, that are 
designed to assure attainment and maintenance of the NAAQS. 
Consequently, the EPA considers action on infrastructure SIP 
submissions required by sections 110(a)(1) and (2) to be an exercise to 
assure that a state's SIP meets the basic structural requirements for 
the new or revised NAAQS.
    For example, EPA's review of infrastructure SIP submissions with 
respect to the PSD program requirements in section 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address construction and modification of major sources and 
all regulated NSR pollutants, including greenhouse gases, in accordance 
with the requirements of the EPA's PSD regulation at 40 CFR 51.166.
    Similarly, section 110(a)(2)(C), includes, among other things, the 
requirement that states have a program to regulate construction of 
minor new sources, but the EPA's regulations provide states with more 
discretion than the EPA's PSD regulations as to which sources must be 
covered by such a program. Thus, to satisfy the sub-element for 
preconstruction regulation of the modification and construction of 
minor stationary sources and the minor modification of major stationary 
sources, an infrastructure SIP submission should identify the existing 
EPA-approved SIP provisions and/or include new provisions that govern 
the minor source pre-construction program that regulates emissions of 
the relevant NAAQS pollutant(s). The EPA's rules addressing SIP 
requirements for such programs are at 40 CFR 51.160 through 51.614. The 
EPA's focus in the infrastructure SIP context is on evaluation of 
whether the state has an EPA-approved minor NSR program and whether the 
program addresses the pollutants relevant to that NAAQS. In the context 
of acting on an infrastructure SIP submission, therefore, the EPA does 
not think it is necessary to re-review each and every provision of a 
state's existing minor source program (i.e., already in the existing 
SIP) for compliance with the requirements of the CAA and the EPA's 
regulations that pertain to such programs.\28\ We have previously found 
that North Dakota's program meets all minor new source review 
permitting requirements set forth at 40 CFR 51.160 through 51.164, 
including the requirement that a SIP-approved minor source program 
specifically identify the types and sizes of facilities that will be 
subject to review (see 40 CFR 51.160(e)).
---------------------------------------------------------------------------

    \28\ See, e.g., 82 FR 22082, May 12, 2017 (final rule); 82 FR 
39090, August 17, 2017 (proposed rule); 80 FR 13315, March 13, 2015 
(proposed rule).
---------------------------------------------------------------------------

    With respect to the North Dakota infrastructure SIP submission 
presently before us, the EPA reviewed the submission itself, and 
evaluated the text of its provisions for compliance with the relevant 
elements of section 110(a)(2). In the NPRM, the EPA explicitly 
evaluated the State's infrastructure SIP submission on a requirement-
by-requirement basis and explained its views on the adequacy of the 
State's submission for purposes of meeting the applicable 
infrastructure SIP requirements. Specifically, we

[[Page 20174]]

found that North Dakota has EPA-approved minor NSR and major NSR 
permitting programs, which regulate ozone precursors for the purposes 
of the 2015 ozone NAAQS. Accordingly, North Dakota's infrastructure SIP 
submission satisfies the general requirement in section 110(a)(2)(C) to 
include a program in the SIP that regulates the modification and 
construction of stationary sources as necessary to assure the 
maintenance and attainment of the NAAQS. See 2013 Infrastructure SIP 
guidance at page 24.
    Nevertheless, the EPA appreciates and takes seriously the DRC's 
concern and assertions that North Dakota's minor NSR permitting program 
may not adequately capture upstream oil and gas emissions, and that the 
aggregate emissions from the oil and gas industry may interfere with 
attainment and maintenance of the 2015 ozone NAAQS now or in the 
future. However, these concerns are best addressed outside the context 
of an infrastructure SIP action. The EPA has previously explained, as 
part of infrastructure SIP approvals, that EPA does not need to 
reconsider whether it should have approved or disapproved a state's 
existing minor NSR program.\29\ The statutory requirements of CAA 
section 110(a)(2)(C) provide for considerable flexibility in designing 
minor NSR programs. Furthermore, states have some discretion with 
respect to sources that are subject to minor NSR permitting 
requirements, and the EPA has previously approved the States' exercise 
of that discretion with regard to their minor NSR programs.\30\ A 
detailed re-review of how the State has chosen to exercise this 
discretion is not needed in the context of an infrastructure SIP review 
to ensure that the minor NSR portion of a SIP meets basic structural 
requirements.
---------------------------------------------------------------------------

    \29\ See, e.g., 77 FR 58957, September 25, 2012; 79 FR 62838, 
October 21, 2014; 84 FR 18187, April 30, 2019; 85 FR 55, January 2, 
2020.
    \30\ See, e.g., 76 FR 81373-76, Dec. 28, 2011.
---------------------------------------------------------------------------

    Because this action involves a review of the infrastructure SIP and 
North Dakota already has an approved minor source NSR program that 
covers the necessary pollutants, we have not conducted a detailed 
examination of the DRC's assertions concerning the perceived inadequate 
regulation of upstream oil and gas production facilities in the State's 
minor NSR program. The EPA understands that North Dakota's previously-
approved regulations exempt certain oil and gas production facilities 
from needing a permit to construct (provided there is no Federal 
requirement for a permit or approval for construction or operation), 
but such sources are subject to registration and reporting requirements 
under North Dakota Administrative Code (NDAC) Chapter 33.1-15-20. That 
regulation requires registration forms to ``contain sufficient 
information to allow the department to determine if the oil or gas well 
and associated production facility is in compliance with all applicable 
sections of this chapter,'' and mandates compliance with major source 
permitting under PSD for any oil or gas well production facility that 
is a major stationary source (or that has undertaken a major 
modification). Chapter 33.1-15-20-04 also contains requirements for the 
control of production facility emissions and specifically notes that 
``any volatile organic compound gas or vapor may be subject to controls 
as specified in chapter 33.1-15-07.'' Accordingly, upstream oil and gas 
production facilities are not wholly exempt from regulation in the 
State's SIP.
    If the DRC believes these previously-approved provisions are 
substantively inadequate considering the nature of oil and gas 
operations in North Dakota, the DRC can petition the EPA to evaluate 
the merits of these assertions, separate from this action. We note that 
multiple statutory tools and avenues exist that the EPA can use to 
rectify potential deficiencies with a SIP and a state's implementation 
thereof, and the existence of these tools is consistent with the EPA's 
interpretation of section 110(a)(2) with respect to the EPA's role in 
reviewing infrastructure SIP submissions. For example, the CAA provides 
the EPA the authority to issue a SIP call, 42 U.S.C. 7410(k)(5); make a 
finding of failure to implement, id. sections[thinsp]7410(m), 
7509(a)(4); and take measures to address specific permits pursuant to 
the EPA's case-by-case permitting oversight. See, e.g., id. 
section[thinsp]7661d(b). The appropriateness of employing these 
authorities depends on the nature and extent of the particular problems 
at issue; however, the public is encouraged to use such avenues and 
tools to provide the EPA with notice of any alleged problem or 
deficiency.
    In the meantime, the EPA is finalizing its approval of the North 
Dakota infrastructure SIP submission that is currently before the EPA 
with respect to the general requirement in section 110(a)(2)(C). If the 
EPA was to later determine that the scope of the minor source 
permitting program administered by the State is not sufficient to 
protect the NAAQS, we could at that time take appropriate action to 
ensure those problems and deficiencies are rectified using whatever 
statutory tools are appropriate. The EPA is committed to working with 
states and the public to correct SIP deficiencies.
    Finally, addressing the commenter's assertion that North Dakota has 
a deficiency pertaining to section 110(a)(2)(E), i.e., a lack of 
personnel and funding, given that the DRC has not provided any 
information to support this claim or to counter our prior analysis of 
the State's submittal with respect to section 110(a)(2)(E), we are 
approving this action in accordance with our analysis from the NPRM.
    Comment: The DRC asserts that the North Dakota submittal has 
problematic ozone monitoring data, which ``masks rising ozone pollution 
in North Dakota.'' The DRC also explains that they expect ``that when 
the 2016 data falls away and is replaced by the 2019 data from this 
year, that North Dakota's 3-year average ozone emissions in western 
North Dakota will increase significantly.'' Accordingly, the DRC 
concludes that the EPA must ``object to North Dakota's plan now, 
because this SIP is intended to carry North Dakota well into the future 
. . . .''
    Response: The EPA disagrees with the DRC that North Dakota's 
submittal is erroneous, and we disagree that the monitoring data \31\ 
provided by the State disguises ozone data. The State's submission 
includes a time-series bar graph (without discrete values noted) 
showing nine distinct monitoring sites' ozone design values in 
increments of 5 parts per billion (ppb), beginning in 2003 and ending 
in 2017. The EPA notes that this State-provided graph \32\ depicts 
ozone design value data for monitoring sites, not annual fourth-highest 
daily maximum 8-hour average ozone concentration monitoring data. A 
design value is a statistical representation of the air quality status 
of a given location relative to the level of the NAAQS. The DRC has 
calculated its own data table in page three of their comment; the 
values that DRC has calculated correspond to the EPA's own truncated 
\33\ data for annual fourth-highest daily maximum 8-hour average ozone 
concentration monitoring data. Although a design value for an ozone air 
quality monitoring site is related to the annual fourth-highest daily 
maximum 8-hour average ozone concentration (the design value being the 
rolling three-year average of that data), the values are not

[[Page 20175]]

equivalent. The EPA has provided a table of design values that supports 
the graph provided by the State. See Table 2. Furthermore, the EPA has 
provided a graph (current to year 2018) of the ozone design value long-
term trends for North Dakota; both Oliver County and Williams County 
are labeled as to their design value trends. See Graph 1. We also note 
that design values are typically used to designate and classify 
nonattainment areas, as well as to assess progress towards meeting the 
NAAQS. It should be noted that North Dakota has not violated the 2008 
or 2015 ozone NAAQS, nor is North Dakota classified as nonattainment 
for the 2008 or 2015 ozone NAAQS; moreover, the trend lines in Graph 1 
indicate generally that the design values for ozone monitoring sites in 
North Dakota show a somewhat downward to level trend, excluding Oliver 
and Williams counties which show a slight upward trend.
---------------------------------------------------------------------------

    \31\ See North Dakota's 2015 ozone NAAQS submittal, attachment 
2, ``North Dakota Ozone Monitoring Data'' at 21.
    \32\ The original spreadsheet which North Dakota used to create 
the graph is included in the docket.
    \33\ See 40 CFR part 50, appendix I--Interpretation of the 8-
Hour Primary and Secondary National Ambient Air Quality Standards 
for Ozone.
---------------------------------------------------------------------------

    While the EPA acknowledges that ozone monitoring data may change 
over time, such factors are not relevant to the EPA's review of the 
State's infrastructure SIP submission.
---------------------------------------------------------------------------

    \34\ Data source: EPA Air Quality System (AQS).

               Table 2--Three-Year Average of Annual Fourth-Highest Daily Maximum 8-Hour Average Ozone Concentration (Design Values) \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Ozone monitoring site design values (ppm)
---------------------------------------------------------------------------------------------------------------------------------------------------------
                   Year                      Billings    Burke     Burleigh     Cass       Dunn     McKenzie    Mercer     Oliver      Ward     Williams
--------------------------------------------------------------------------------------------------------------------------------------------------------
2000......................................  .........  .........  .........  .........  .........  .........  .........  .........  .........  .........
2001......................................  .........  .........  .........  .........  .........  .........  .........  .........  .........  .........
2002......................................      0.059  .........  .........      0.062  .........  .........      0.058      0.056  .........  .........
2003......................................  .........  .........  .........      0.063       0.06      0.062      0.062      0.058  .........  .........
2004......................................  .........  .........  .........      0.061      0.058      0.063       0.06      0.056  .........  .........
2005......................................  .........  .........  .........       0.06      0.056      0.062      0.058      0.056  .........  .........
2006......................................       0.06      0.057  .........       0.06      0.055       0.06      0.059      0.057  .........  .........
2007......................................      0.063      0.058  .........       0.06      0.057      0.062      0.061       0.06  .........  .........
2008......................................      0.063      0.059      0.059      0.058      0.059      0.064      0.062      0.061  .........  .........
2009......................................       0.06      0.059      0.056      0.055      0.057      0.061      0.058      0.058  .........  .........
2010......................................      0.059       0.06      0.057      0.058      0.057       0.06      0.059      0.059  .........  .........
2011......................................      0.058       0.06      0.057      0.059      0.055      0.059      0.058      0.058  .........  .........
2012......................................      0.058      0.059      0.058      0.061      0.056      0.059       0.06      0.058  .........  .........
2013......................................      0.057      0.058      0.058      0.059      0.056      0.058      0.059      0.058  .........  .........
2014......................................      0.056      0.057      0.059       0.06      0.057      0.057      0.058      0.059  .........  .........
2015......................................      0.058      0.061      0.061      0.058      0.059      0.058      0.057      0.061  .........      0.058
2016......................................      0.058      0.059      0.057      0.056      0.058      0.057      0.055      0.059  .........      0.056
2017......................................       0.06      0.059      0.057      0.057      0.058      0.058      0.057       0.06  .........      0.057
2018......................................      0.059      0.058      0.055      0.059      0.057      0.058      0.059      0.059  .........      0.058
--------------------------------------------------------------------------------------------------------------------------------------------------------

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[[Page 20176]]

[GRAPHIC] [TIFF OMITTED] TR10AP20.000

BILLING CODE 6560-50-C

III. Final Action
---------------------------------------------------------------------------

    \35\ Id. This graph, printed here in grayscale, is also 
available in color at Design Value History for ND--EPA in the 
docket.
---------------------------------------------------------------------------

    The EPA is approving multiple elements and disapproving a single 
element of the following infrastructure SIP submissions with respect to 
infrastructure requirements for the 2015 ozone NAAQS for Colorado and 
North Dakota.
    With respect to Colorado, the EPA is approving Colorado's September 
17, 2018 infrastructure SIP submission as meeting all of the CAA 
section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS.
    With respect to North Dakota, the EPA is approving North Dakota's 
November 6, 2018 SIP submission \36\ 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

[[Page 20177]]

transport--prevention of significant deterioration, (D)(ii), (E), (F), 
(G), (H), (J), (K), (L), and (M).
---------------------------------------------------------------------------

    \36\ The EPA notes that in few instances our July 29, 2019 NPRM 
(84 FR 36516) erroneously referenced certain North Dakota rules and 
regulations that had been renumbered due to the transfer of 
authority from the North Dakota Department of Health (NDDH) to the 
North Dakota Department of Environmental Quality (NDEQ) (for more 
information, please see footnote 1 in our July 29, 2019 NPRM). The 
NDDH rules and regulations were EPA-approved, however with the 
transfer of authority to the NDEQ, those rules and regulations were 
repealed and have been recodified and EPA-approved (see 84 FR 1610, 
February 5, 2019). The difference between the rule and regulation 
changes from NDDH to NDEQ is resolved by adding a ``decimal point 
one'' (.1); e.g. under the NDDH, North Dakota Administrative Code 
(NDAC) 33-15 changed to NDAC 33.1-15 under the NDEQ. We further note 
that the State's submittal correctly references the EPA-approved 
NDEQ rules and regulations. Although our July 29, 2019 NPRM contains 
these errors in some instances, our analysis for the July 29, 2019 
NPRM evaluated the approvability of the North Dakota infrastructure 
SIP submission based on the correct NDEQ statutes.
---------------------------------------------------------------------------

    For the reasons stated in the NPRM, the EPA is partially 
disapproving North Dakota's SIP submittal as to 110(a)(2)(D)(i)(II) 
prong 4 Interstate transport--visibility. 84 FR 36527. As noted in the 
NPRM, the EPA is not required to take further action with regard to the 
prong 4 disapproval. The EPA has an obligation to disapprove prong 4 
requirements as a result of disapproving portions of a state's regional 
haze SIP submission. However, as discussed in the NPRM, FIP 
requirements promulgated by the EPA are already in effect that correct 
all regional haze SIP deficiencies for the first planning period for 
North Dakota. All of North Dakota's obligations under 40 CFR 51.308 and 
51.309, including those relevant to participation in a regional haze 
planning process and achieving the State's apportionment of emission 
reduction obligations as to Class I areas in other states, are being 
addressed either through FIPs or SIPs for the first planning period. 
This ensures that emissions from sources within North Dakota are not 
interfering with measures required to be included in other air 
agencies' plans to protect visibility. Under the EPA's 2013 iSIP 
guidance, this is sufficient to satisfy prong 4 requirements for the 
first planning period. See 2013 Guidance at 33. Thus, there are no 
additional practical consequences from this disapproval for the State, 
the sources within its jurisdiction, or the EPA. See id. at 34-35. The 
EPA finds its prong 4 obligations for North Dakota for the 2015 ozone 
NAAQS are satisfied.
    Finally, we are approving 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, which updates the date of IBR of Federal 
rules. The EPA is solely approving the revision applicable to the IBR 
date for 40 CFR 52.21(l)(1).

IV. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, the EPA is finalizing the incorporation by reference of 
North Dakota Administrative Code Chapter 33.1-15-15 described in 
Section III of this preamble. 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). Therefore, these materials have been approved by the 
EPA for inclusion in the State implementation plan, have been 
incorporated by reference by the EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of the EPA's approval, and will 
be incorporated by reference in the next update to the SIP 
compilation.\37\
---------------------------------------------------------------------------

    \37\ See 62 FR 27968, May 22, 1997.
---------------------------------------------------------------------------

V. 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 approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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, 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 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 9, 2020. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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


[[Page 20178]]


    Dated: March 25, 2020.
Gregory Sopkin,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. Section 52.353 is amended by adding paragraph (e) to read as 
follows:


Sec.  52.353   Section 110(a)(2) infrastructure requirements.

* * * * *
    (e) The Colorado Department of Environmental Quality submitted 
certification of Colorado's infrastructure SIP for the 2015 
O3 NAAQS on September 17, 2018. Colorado's infrastructure 
certification demonstrates how the State, where applicable, has plans 
in place that meet the requirements of section 110 for the 2015 
O3 NAAQS. The State's Infrastructure SIP for 2015 
O3 NAAQS is approved with respect to CAA section 110(a)(1) 
and (2).

Subpart JJ--North Dakota

0
3. In Sec.  52.1820, the table in paragraph (c) is amended by revising 
the entry ``33.1-15-15-01.2'' to read as follows:


Sec.  52.1820   Identification of plan.

* * * * *
    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                     State       EPA effective     Final rule
           Rule No.               Rule title    effective date       date        citation/date       Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                       33.1-15-15. Prevention of Significant Deterioration of Air Quality
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
33.1-15-15-01.2..............  Scope..........        1/1/2019       5/11/2020  [insert Federal  Originally
                                                                                 Register         approved as 33-
                                                                                 citation], 4/    15-15-01 on 10/
                                                                                 10/2020.         21/2016, 81 FR
                                                                                                  72718.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
4. Section 52.1833 is amended by adding paragraph (i) to read as 
follows:


Sec.  52.1833   Section 110(a)(2) infrastructure requirements.

* * * * *
    (i) The North Dakota Department of Environmental Quality submitted 
certification of North Dakota's infrastructure SIP for the 2015 
O3 NAAQS on November 6, 2018. North Dakota's infrastructure 
certification demonstrates how the State, where applicable, has plans 
in place that meet the requirements of section 110 for (A), (B), (C), 
(D)(i)(I) (Prongs 1 and 2), (D)(i)(II) (Prong 3), (D)(ii), (E), (F), 
(G), (H), (J), (K), (L), and (M). The EPA is disapproving (D)(i)(II) 
(Prong 4).

[FR Doc. 2020-06685 Filed 4-9-20; 8:45 am]
BILLING CODE 6560-50-P


