Approval and Disapproval and Promulgation of Air Quality Implementation Plans; Colorado; Revision to Definitions; Common Provisions Regulation, 4268-4271 [2011-1475]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Proposed Rules]
[Pages 4268-4271]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1475]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0036; FRL-9256-6]


Approval and Disapproval and Promulgation of Air Quality 
Implementation Plans; Colorado; Revision to Definitions; Common 
Provisions Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan (SIP) revisions submitted by the State of 
Colorado on June 20, 2003. The intended effect of this proposal is to 
approve and make federally enforceable those portions of the revisions 
to Colorado's Common Provisions that are consistent with the Clean Air 
Act (CAA). Primarily, the revisions involved changes designed to fix 
ambiguous language, to make the definitions more readable or to delete 
obsolete definitions. In addition, a number of definitions were revised 
to reflect developments in federal law or were deleted to eliminate 
duplicative provisions that appear in other Colorado regulations. EPA 
is proposing to approve parts of the revision that delete duplicative 
or obsolete definitions, or that clarify existing definitions in a 
manner consistent with the CAA. In addition, EPA proposes to disapprove 
those portions of the rule revisions that EPA determined are 
inconsistent with the CAA. This action is being taken under section 110 
of the CAA.

DATES: Comments must be received on or before February 24, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0036, by one of the following methods:
     https://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: komp.mark@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0036. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through https://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional instructions on submitting 
comments, go to Section I. General Information of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mark Komp, Air Program, 1595 Wynkoop 
Street, Mailcode: P-AR, Denver, Colorado 80202-1129, (303) 312-6022, 
komp.mark@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background of State's Submittal
III. EPA Analysis of State's Submittal
IV. Consideration of Section 110(l) of the CAA
V. Proposed Action
VI. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Colorado mean the State of Colorado, unless 
the context indicates otherwise.
    (v) The initials AQCC mean or refer to Air Quality Control 
Commission.
    (vi) The initials BACT mean or refer to Best Available Control 
Technology, and the initials LAER means or refers to Lowest Achievable 
Emission Rate.
    (vii) The initials ASTM means or refers to the American Society for 
Testing and Materials.

[[Page 4269]]

I. General Information

A. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
https://regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background of State's Submittal

    On June 20, 2003, the State of Colorado submitted formal revisions 
to its SIP that changed or deleted numerous definitions in its Common 
Provisions. Colorado's Common Provisions provide definitions, statement 
of intent and general provisions that are applicable to all emission 
control regulations adopted by the State. Primarily, this revision 
involved changes designed to fix ambiguous language, to make the 
definitions more readable or to delete obsolete definitions. In 
addition, a number of definitions were revised to reflect developments 
in federal law or deleted to eliminate duplicative provisions that 
appear in other Colorado regulations.
    Definitions deleted include: Actual emissions, allowable emissions, 
BACT, LAER and the modification of a source. These definitions were 
deleted from the Common Provisions because the State placed these 
definitions in their Regulation 3.
    Revisions to the Common Provisions also include grammatical, 
formatting and stylistic changes designed to make the regulation more 
readable. The State made these revisions to achieve consistency in the 
language used in the State's air quality regulations. These revisions 
do not change the applicability of any of the air quality regulation 
requirements. The State also added a number of abbreviations to the 
existing list.
    The State clarified when fuel burning equipment would be considered 
part of a manufacturing process. The revisions to the Common Provisions 
change the definition of fuel burning and added a definition for 
manufacturing process equipment. The result was to clarify that fuel 
burning emissions are counted as manufacturing process emissions when 
they are vented through a common stack with other emissions from the 
manufacturing process. When fuel burning emissions are vented 
separately, the emissions are subject to regulations unique to fuel 
burning equipment.
    The definition of construction was changed to clarify the 
distinction between the State's definition and the definition in 
federal programs. The clarification acknowledges that federal programs 
may utilize different definitions of construction and, in cases where 
enforceability of Federal programs are involved, the federal program 
definitions apply.
    The State determined that many of its definitions in the Common 
Provisions were either obsolete or found in other State air quality 
regulations. In those cases, the State eliminated the definitions from 
the Common Provisions. Section III refers to smoking gasoline powered 
motor vehicles. Section IV addresses conflict of interest by AQCC 
members. The State deleted these sections because they are duplicated 
in other State regulations.

III. EPA Analysis of State's Submittal

    We have evaluated Colorado's June 20, 2003 submittal regarding 
revisions to the State's Common Provisions. We propose to approve most 
of the revisions, but also propose to disapprove certain revisions 
within the June 20, 2003 submittal.

What EPA Is Proposing To Disapprove

    The State provided, within Section I of the Common Provisions, a 
new definition for what constitutes the meaning of the word ``day.'' 
The new definition gives the Colorado Air Pollution Control Division 
discretion to change the meaning of day from the standard one to any 
other twenty-four hour period. Given that a day is often the time 
period for expressing emissions limitations, the revised definition 
potentially gives the State discretion, without going through a SIP 
revision, to modify emissions limitations for stationary sources. Such 
discretion violates section 110(i) of the CAA, which prohibits States 
(except in certain limited circumstances) from taking any action to 
modify requirements of a SIP with respect to stationary sources, except 
through a SIP revision. EPA proposes to disapprove this definition.
    The State added language to its definition of ``construction'' for 
the purposes of prevention of significant deterioration (PSD) and new 
source review (NSR). The revised definition, for the most part, tracks 
those given at 40 CFR 51.165(a)(1)(xviii) and 51.166(b)(8). However, 
instead of providing that construction encompasses those changes that 
would result in an increase in emissions, the State's revision 
encompasses only those changes that would result in an increase in 
``actual emissions.'' ``Actual emissions,'' in the context of PSD and 
NSR, is a defined term that in general equals past emissions over a 
consecutive 24-month period that is representative of normal operations 
(see 40 CFR 51.165(a)(1)(xii)(B), 51.166(b)(21)(ii)). It is not clear 
how past emissions, prior to a change due to construction, could be 
representative of normal operations after the change. In any case, the 
revision is less stringent than Federal requirements and EPA therefore 
proposes to disapprove it.
    Colorado revised section II.I, relating to compliance 
certifications. Section II.I in the current SIP governs the use of 
credible evidence or information in compliance certifications and in 
establishing violations of the Colorado SIP. It reflects language at 40 
CFR 51.212(c), promulgated by EPA on February 24, 1997 in the 
``Credible Evidence Rule'' (62 FR 8314). The revision adds (in part) 
the following language: ``Evidence that has the effect of making any 
relevant standard or permit term more stringent shall not be

[[Page 4270]]

credible for proving a violation of the standard or permit term.'' In 
the preamble to the Credible Evidence Rule, EPA stated that it was not 
EPA's intent to increase the stringency of any applicable requirement 
and that the Credible Evidence Rule did not do so (62 FR at 8323). EPA 
discussed at length and rejected the arguments made by commenters to 
the contrary (62 FR at 8323-27). For the reasons discussed within the 
preamble to the Credible Evidence Rule, credible evidence does not 
increase the stringency of any applicable requirement. EPA therefore 
proposes to disapprove the revision to section II.I.
    EPA proposes to disapprove the deletion of Section IV of the Common 
Provisions. Section IV refers to provisions regarding potential 
conflicts of interest of members of the Colorado AQCC. These provisions 
require the disclosure of information when a potential conflict of 
interest has been identified. Section 128(a)(2) of the CAA requires 
that each SIP contain requirements for disclosure of potential 
conflicts of interest of heads of executive agencies or members of 
state boards that approve permits or enforcement orders under the CAA. 
In deleting Section IV, Colorado had intended to submit substitute 
provisions contained within the rules of procedure for the AQCC; 
however, Colorado has not submitted them to EPA for inclusion into 
Colorado's SIP. As the SIP is required to have such provisions, EPA 
proposes to disapprove the deletion of Section IV.
    Finally, the State revised the provision of Affirmative Defense for 
excess emissions during start up, shutdown and malfunction of 
equipment. The State in subsequent revisions sent to EPA modified the 
Affirmative Defense provision. EPA acted on these subsequent revisions 
in 2008 and the results of the action can be found in 40 CFR 
52.320(c)113. Therefore, we are taking no action on the portion of the 
revision modifying the Affirmative Defense provision within the June 
20, 2003 submittal because our subsequent action on the provision has 
superseded this revision.

What EPA Is Proposing To Approve

    EPA proposes to approve specific definitions that were added or 
modified with the June 20, 2003 Common Provisions. These include the 
definitions for a continuous monitoring system, emergency power 
generator, manufacturing process, enforceable, federally enforceable, 
manufacturing process or processing equipment, and volatile organic 
compounds. The new and modified definitions are consistent with the 
requirements of the CAA and do not change the stringency of any 
requirements of the SIP.
    Changes that correct numerous grammatical, stylistic and formatting 
errors within the Common Provisions are proposed for approval by EPA. 
EPA also proposes to approve the deletion of definitions and Section 
III that are obsolete or duplicated elsewhere in Colorado's SIP.

IV. Consideration of Section 110(l) of the CAA

    Section 110(l) of the CAA states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
toward attainment of the NAAQS or any other applicable requirement of 
the Act. The Colorado SIP revisions being approved that are the subject 
of this document do not interfere with attainment of the NAAQS or any 
other applicable requirement of the Act. In regard to the June 20, 2003 
submittal, EPA proposes to approve several portions of the revisions to 
the State's Common Provisions. These portions do not relax the 
stringency of the Colorado SIP and in some cases strengthen it. 
Therefore, the portions of the revisions proposed for approval satisfy 
section 110(l).

V. Proposed Action

    For the reasons expressed above, we propose to approve and 
disapprove revisions to the Common Provisions as submitted on June 20, 
2003. EPA proposes to approve specific definitions that were added or 
modified with the June 20, 2003 Common Provisions. These include the 
definitions for continuous monitoring system, emergency power 
generator, manufacturing process, enforceable, federally enforceable, 
manufacturing process or processing equipment, and volatile organic 
compounds.
    Changes that correct numerous grammatical, stylistic and formatting 
errors, duplicative and obsolete provisions, and the addition of 
several abbreviations within the Common Provisions are also proposed 
for approval by EPA. This includes the deletion of Section III of the 
Common Provisions regarding smoking gasoline powered motor vehicles.
    EPA proposes to disapprove the modified definitions of 
``construction'' and ``day.'' The additional language added to Section 
II.I regarding credible evidence in submitting compliance 
certifications is disapproved. EPA proposes to disapprove the deletion 
of Section IV of the Common Provisions. Section IV refers to provisions 
regarding the conflicts of interest involving members of the AQCC. 
These provisions provide for the disclosure of information when a 
potential conflict of interest has been identified.
    EPA will not act on Sections II.E and II.J, defining the provision 
of Affirmative Defense for excess emissions during start up, shutdown 
and malfunction of equipment. The State in subsequent revisions sent to 
EPA modified the Affirmative Defense provision. EPA acted on these 
subsequent revisions in 2008 (40 CFR 52.320(c)(113)).

VI. Statutory and Executive Order Review

    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, 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 Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et sq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because

[[Page 4271]]

application of those requirements would be inconsistent with the CAA; 
and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

List of Subjects in 40 CFR Part 52

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

    Dated: January 13, 2011.
Carol Rushin,
Deputy Regional Administrator, Region 8.
[FR Doc. 2011-1475 Filed 1-24-11; 8:45 am]
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