Approval and Disapproval and Promulgation of Air Quality Implementation Plans; Colorado; Revision to Definitions; Construction Permit Program; Regulation 3, 6331-6335 [2011-2508]
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Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2007–1027; FRL–9251–1]
Approval and Disapproval and
Promulgation of Air Quality
Implementation Plans; Colorado;
Revision to Definitions; Construction
Permit Program; Regulation 3
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is partially approving
and partially disapproving State
Implementation Plan (SIP) revisions
submitted by the State of Colorado on
June 20, 2003 and April 12, 2004. This
final rule will approve those portions of
the revisions to Colorado’s Regulation 3
that place restrictions on increment
consumption, add innovative control
technology as an alternative to BACT
requirements and make other changes as
described in more detail below. EPA
will act separately on the portions of the
June 20, 2003 and April 12, 2004
submittals that revise Regulation 3, Part
A, Section II, Air Pollutant Emission
Notice (APEN) Requirements. Today’s
action on the Colorado Regulation 3
revisions will make federally
enforceable the revised portions of
Colorado’s Regulation 3 that EPA is
approving. This action is being taken
under section 110 of the Clean Air Act.
DATES: Effective Date: This final rule is
effective March 7, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2007–1027. 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, U.S.
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SUMMARY:
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Environmental Protection Agency,
Region 8, Mail Code 8P–AR, 1595
Wynkoop Street, Denver, Colorado
80202–1129, telephone number (303)
312–6022, fax number (303) 312–6064,
komp.mark@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The words or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
(ii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iii) The initials SIP mean or refer to
State Implementation Plan.
(iv) The words State or Colorado
mean the State of Colorado, unless the
context indicates otherwise.
(v) The initials APEN mean or refer to
Air Pollutant Emission Notice.
(vi) The initials NSR mean or refer to
New Source Review, the initials RACT
mean or refer to Reasonably Available
Control Technology, the initials BACT
mean or refer to Best Available Control
Technology and the initials NAAQS
mean or refer to National Ambient Air
Quality Standards.
Table of Contents
I. Background Information
II. Response to Comments
III. Section 110(l) of the CAA
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background Information
On June 20, 2003 and on April 12,
2004, the State of Colorado submitted
formal revisions to its SIP that changed
or deleted numerous definitions in Part
A of the State’s Regulation Number 3.
Primarily, these were minor changes
designed to fix ambiguous language, to
make the definitions more readable or to
delete obsolete or duplicative
definitions. In addition to the
clarifications, formatting and readability
changes were made to the definition
section and a number of definitions
were added or modified to reflect
developments in federal law. In the
April 12, 2004 submittal, the only
revision to Parts A and B of Regulation
3 was a minor change to Part A, Section
I.A 1 regarding the availability of
material incorporated by reference.
One modified definition was for nonroad engines. In response to the 1990
CAA Amendments, federal case law,
and EPA’s interpretation of the term,
1 All references in this notice to particular section
numbers are to the designated sections within
Regulation 3.
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6331
Colorado modified the definition of a
non-road engine. The definition was
also moved from the APEN section of
Regulation 3 (Part A, Section II) to the
definition section (Part A, Section I). In
addition, Colorado took steps to keep
track of these sources by requiring a
non-road engine rated at 1,200
horsepower or greater to file a Colorado
APEN. The filing of an APEN for nonroad engines is stipulated by Colorado’s
SIP revisions to be a State-only
requirement.
New definitions also included the
definition of Pollution Control Projects
at existing electric utility steam
generating units and the use of Clean
Coal Technology at these units.
Colorado also revised its definitions of
actual emissions and major modification
to include special provisions governing
physical or operational changes at
electric utility steam generating units.
These new definitions and revisions
responded to changes in the federal
regulations arising out of the decision in
the Wisconsin Electric Power Company
(‘‘WEPCO’’) case (Wisconsin Electric
Power Co. v. Reilly, 893 F.2d 901 (7th
Cir. 1990)). As a result of the WEPCO
decision, EPA’s NSR regulations were
changed in 1992 and Colorado
responded to the changes by adding
these definitions to its Regulation 3.
Revisions were also submitted
involving Part B of Colorado’s
Regulation 3. Part B describes the
process air emission sources must go
through to obtain a required
construction permit prior to
commencing operation. The State’s
submittals modified the exemptions
from construction permitting, modified
requirements for permit applicants,
added restrictions on increment
consumption, and added provisions
regarding innovative control technology.
Colorado added language to its area
classification section of Part B, Section
V stating that within certain Class II
areas in the State (for example, certain
National Monuments that are not Class
I areas), sulfur dioxide concentration
increases over baseline concentrations
are limited to the amount permitted in
Class I areas as established under
Section 163(b) of the federal CAA. Such
increases are not allowed if the Federal
Land Manager determines and the State
concurs that there would be an adverse
impact on air quality from the sulfur
dioxide concentration increase.
In Section III.D.1.c(iii), Colorado
modified the exemption from
construction permitting for stationary
internal combustion engines. The State
also limited to 75 percent the amount
that a new major stationary source or
major modification may consume of an
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applicable pollutant increment (Part B,
Section VII.A.5). Sources may ask for a
waiver from the limit.
II. Response to Comments
EPA received one letter from the State
of Colorado dated December 8, 2010 that
provided one comment on our
November 8, 2010 Federal Register
proposed action regarding the partial
approval and partial disapproval of
Colorado’s SIP revisions to their
Regulation 3. The comment addresses
our proposed disapproval of the portion
of the revision regarding sections IV.B.2
and IV.H.8 in Part B of Regulation 3.
The revision changed the existing
requirement for construction permit
applicants to submit in their application
an operating and maintenance plan and
recordkeeping format (collectively,
‘‘O&M plan’’). In its place, the revision
would require the owner or operator to
submit the O&M plan before final
permit approval. In this section EPA
responds to the comment made by the
State.
Comment—Colorado expressed its
concern that the disapproval would
delay permit issuance, create
inefficiencies, and result in increased
need for resources. Colorado stated that
the final version of the O&M plan is
dependent on conditions of the issued
permit and on performance testing after
the source has been authorized to
construct. As a result of the disapproval
of this portion of the revision, Colorado
believes that there will be insufficient
information to submit and review the
initial submission of the O&M plan, and
therefore there will be inefficient use of
resources when the State reviews both
the initial and final versions of it.
Colorado also expressed concern that
disapproval of the provision would
result in modifications of O&M plans
having to be submitted as SIP revisions,
a process that Colorado believes would
cause additional delays. As a result, the
State asked EPA to delay action on the
portion of the revision regarding
sections IV.B.2.
EPA Response—EPA notes that the
State did not take issue with the basis
for our proposed disapproval. In our
proposal, we stated that the operating
and maintenance plan and
recordkeeping format appeared to be
information on the operation of the
source that was necessary to determine
whether construction or modification of
the source would violate the applicable
portions of the control strategy or
interfere with attainment or
maintenance of a national standard. See
40 CFR 51.160(a), (c). Therefore, we
reasoned, such information must be
submitted by the owner or operator of
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the source and as a result must be
subject to public comment. See 40 CFR
51.161(a). As the State acknowledges,
the proposed revision removes the
existing requirement that the
information be submitted in the
application and only requires that it be
submitted before final permit approval.
As EPA noted in the proposal (and the
State does not dispute), this change does
not ensure that the public has 30 days
to comment on both the information and
the permitting agency’s analysis of the
effect on air quality, as required by 40
CFR 51.161. Furthermore, the State did
not take issue with our determination
that such information was necessary
under 40 CFR 51.160; and therefore,
must be subject to public comment
under 40 CFR 51.161. Thus, the State
comment described above does not
provide a basis for EPA to change its
proposed disapproval. In response to
the State’s request that EPA delay action
on the proposed revision, EPA notes
that under a consent decree entered in
the U.S. District Court for the District of
Colorado, EPA must take final action on
the submitted provision by December
31, 2010. (WildEarth Guardians v.
Jackson, Civ. No. 09–2148 (D. Colo.
2009)).
EPA appreciates the State’s concern
for efficient processing of construction
permits. However, requiring owners and
operators to submit the O&M plan and
recordkeeping format in their
application for a construction permit is
not unduly burdensome. If the
application contains sufficient other
information (such as the nature of the
facility, processes, and emissions units)
to enable the State to determine whether
construction or modification of the
source meets the requirements of 40
CFR 51.160(a), then the applicant is also
in a position to submit an O&M plan
and recordkeeping format. Furthermore,
the State is then in a position to
determine from the information in the
application the controls and other
applicable requirements that must be
reflected in the final permit, and as a
result modify the O&M plan
accordingly. To the extent that
performance testing subsequently
requires modification of the O&M plan,
the State does not need to submit a SIP
revision for such modification. O&M
plan revisions would constitute a
modification of the construction permit
to which the requirements of section
110(i) of the Act would not apply.
III. 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
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attainment and reasonable further
progress toward attainment of the
NAAQS or any other applicable
requirement of the Act. Those portions
of the revision to Colorado’s Regulation
3 that we are approving satisfy section
110(l), because those portions do not
relax existing SIP requirements. Instead,
the portions of the June 20, 2003 and
April 12, 2004 submittals EPA is
approving increase stringency of
existing requirements, clarify existing
requirements, or remove obsolete
requirements. Therefore, section 110(l)
is satisfied.
IV. Final Action
We have evaluated Colorado’s June
20, 2003 and April 12, 2004 submittals
regarding revisions to the State’s
Regulation 3, Parts A and B. We are
approving most of the revisions from the
two submittals but are disapproving
certain revisions within the June 20,
2003 submittal. Also, we are taking no
action on the State-only requirements in
sections I.B.40.c. and d. for nonroad
engines, as we regard these as submitted
only for informational purposes. We
will take separate action on the portion
of the June 20, 2003 and April 12, 2004
submittals regarding Regulation 3, Part
A, Section II, Air Pollutant Emission
Notice (APEN) Requirements.
What EPA Is Disapproving
The State added terms and definitions
(Section I.B.69) in response to EPA’s
1992 WEPCO rule. Under the definition
of ‘‘modification’’ (I.B.36), the State also
added provisions related to these
definitions, including for pollution
control projects (I.B.36.b (iii)(G) and
I.B.69.d). On June 24, 2005, the Court of
Appeals for the DC Circuit vacated the
Pollution Control Project portion of the
WEPCO rule as well as the
corresponding portion of EPA’s 2002
NSR rule (State of New York et al. v.
EPA, 413 F.3d 3 (DC Cir. 2005)).
Therefore, EPA is disapproving Part A,
Section I.B.36.b(iii)(G) and Section
I.B.69.d in Regulation 3.
EPA is disapproving the new
provisions in Part A, Section IV.C.
regarding emissions trading under
permit caps. These new provisions
apply to both construction permits and
to CAA Title V operating permits. For
operating permits, the provisions should
not be incorporated into the federally
enforceable version of the Colorado SIP.
Instead, they should be submitted
separately under 40 CFR 70.4(i) as a
revision of Colorado’s approved
operating permit program. To the extent
that these new provisions apply to
Prevention of Significant Deterioration
(PSD) or nonattainment NSR for major
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sources or major modifications, they are
not allowed by the regulations in 40
CFR 51.166 or 51.165. EPA provides a
mechanism for establishing permit caps
through plant wide applicability
limitations (PALs). The provisions in
IV.C for emissions trading under permit
caps do not meet the requirements for
PALs in 40 CFR 51.165(f) and 40 CFR
51.166(w). Therefore, EPA is
disapproving the provisions for
emissions trading under permit caps set
forth in Section IV.C.
In Part A, Section V.F.5, Colorado
expanded the acronym Lowest
Achievable Emission Rate (LAER) as
one instance of a regulation-wide style
change that expanded many acronyms.
The revision apparently inadvertently
deleted the requirement that trading
transactions may not be used
inconsistently with or to circumvent
requirements of LAER. EPA is
disapproving this change because
emissions trading must be consistent
with other requirements of the CAA,
including LAER.
Turning to Part B of Regulation 3, in
Section III.D.1.c(iii), the State modified
the requirements for stationary internal
combustion engines to be exempt from
construction permitting. Previously, all
such engines were exempt if they had
actual emissions of less than five tons
per year or were rated less than fifty
horsepower. Under the revision, in
attainment areas such engines are
exempt if they have uncontrolled actual
emissions of less than ten tons per year
or are rated less than one hundred
horsepower; thus, more engines may be
exempt from construction permitting
under the revision. Under section 110(l)
of the CAA, EPA cannot approve a SIP
revision that would interfere with any
applicable requirement concerning
attainment or reasonable further
progress, as defined in Section 171 of
the CAA, or any other applicable
requirement of the CAA. The State did
not provide a demonstration or other
analysis that the expansion of the
exemption satisfies the requirements of
section 110(l). Exempting a potentially
greater number of stationary engines
from construction permitting may result
in increased emissions of criteria
pollutants such as NOx. EPA therefore
disapproves the revision to Section
III.D.I.c(iii).
Finally, for the reasons discussed in
the Response to Comments, EPA is
disapproving the revision to Part B,
Section IV.B.2 and Section IV.H.8
regarding operating and maintenance
plans and recordkeeping formats.
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What EPA Is Approving
The State added language to its
definition of actual emissions (Section
I.B.1.d) for electric utility steam
generating units. The State defined
actual emissions by allowing the actual
emissions from the unit following a
physical or operational change of the
unit to equal the actual annual
emissions of the unit provided the
owner or operator can provide
information from a five year period
showing no emission increase resulting
from the unit’s physical or operational
change. This revised definition is
consistent with EPA’s 1992 WEPCO rule
discussed earlier in this proposed rule.
Although a term used (‘‘representative
actual annual emissions’’) is that of the
WEPCO rule, the substance of the
revised definition is also consistent with
current federal regulations in 40 CFR
51.165 and 51.166, and EPA, therefore,
is approving the revised definition.
The State also modified its definition
for commenced construction in Section
I.B.13 by excluding certain construction
activities from the requirement for a
permit. Planning activities, site clearing
and grading, ordering equipment and
materials, storing of equipment,
constructing personnel trailers,
engineering and design changes, and
geotechnical investigation do not
require that a permit be issued prior to
these activities. EPA is approving this
change in the definition of commenced
construction as it is consistent with EPA
guidance interpreting the equivalent
term, ‘‘begin actual construction.’’ 2 As
noted in that guidance, though, such
activity, if undertaken prior to issuance
of a permit, is at the risk of the owner
or operator and would not guarantee
that the permit would be forthcoming.
The revisions to Regulation 3
excluded the consideration of clean coal
technology demonstration projects as a
major modification when the projects do
not result in an increase in the potential
to emit of any regulated pollutant. EPA
is approving this revision since the
revision is consistent with the Federal
NSR regulations described at 40 CFR
51.165 and 51.166.
Earlier in this final rule EPA stated
that we were disapproving Pollution
Control Projects as defined in Section
I.B.36.b(iii)(G) and Section I.B.69.d of
Colorado’s Regulation 3. However, the
remainder of the revised definitions
within Part A, Section I.B.36 and
Section I. B. 69 are consistent with
EPA’s 1992 WEPCO rule and with
2 Memorandum from Edward E. Reich entitled
Construction Activities prior to Issuance of a PSD
Permit with Respect to ‘‘Begin Actual Construction’’
(March 28, 1986).
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current federal NSR regulations. EPA is
therefore approving the definitions for
clean coal technology, electric utility
steam generating unit, reactivation of
very clean coal-fired electric utility
steam generating unit, repowering,
representative actual annual emissions,
temporary clean coal technology
demonstration project and wet
screening operations.
Colorado revised its fee schedule in
Part A, Section VI.D by eliminating the
dollar amount of the annual fee and
referring the fee applicant to provisions
provided in Colorado’s Revised Statutes
Section 25–7–114.7. Colorado also
revised the filing of claims regarding
confidential information and how the
State elevates such claims (Part A,
Section VII.). EPA is approving these
revisions.
Turning to Part B of Regulation 3,
EPA is approving the construction
permit review requirements regarding
RACT for minor sources in attainment/
maintenance areas that were added in
Part B, Section IV.D.3.e. These
requirements mirror the existing
requirements in Section IV.D.2.d for
minor sources in nonattainment areas.
As noted in Section II of this
proposed rule, in Part B, Section V of
Colorado’s Regulation 3, the State made
the restrictions on maximum allowable
increases of sulfur dioxide
concentrations over baseline
concentrations in Class I areas also
applicable to certain Class II areas, such
as certain National Monuments that are
not Class I areas. This change
strengthens the SIP by making the more
stringent Class I restrictions also
applicable in the listed Class II areas;
EPA is therefore approving the revision.
Increment consumption restrictions
were added to Part B, Section VII.A.5 of
Colorado’s Regulation 3. EPA is
approving this revision as the revision
is more stringent than federal
requirements regarding increment
consumption.
Finally, the State added Part B,
Section IX regarding the use of
innovative control technology. EPA is
approving this revision since the
revision is consistent with the federal
NSR regulations described at 40 CFR
51.166(b)(19).
Minor changes designed to fix
ambiguous language, to make the
definitions more readable or to delete
obsolete or duplicative definitions were
made throughout the entirety of Parts A
and B. These changes are approved by
EPA.
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V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves 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 seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
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costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by April 5, 2011.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2))
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by Reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: December 29, 2010.
Carol Rushin,
Deputy Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart G—Colorado
2. Section 52.320 is amended by
adding paragraph (c)(116) to read as
follows:
■
§ 52.320
*
Identification of plan.
*
*
(c) * * *
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(116) On June 20, 2003, the State of
Colorado submitted revisions to
Colorado’s Regulation 3 Regulation, 5
CCR 1001–5, that place restrictions on
increment consumption, add innovative
control technology as an alternative to
BACT requirements, and changed or
deleted numerous definitions in Part A.
The State in Part B revised construction
permit review requirements regarding
RACT for minor sources in attainment/
maintenance areas. The State made the
restrictions on maximum allowable
increases of sulfur dioxide
concentrations over baseline
concentrations in Class I areas also
applicable to certain Class II areas, such
as certain National Monuments that are
not Class I areas. Increment
consumption restrictions were added to
limit major stationary sources from
consuming more than 75 percent of an
applicable increment. The State added
the use of innovative control technology
by a source in lieu of BACT
requirements in order to encourage the
use of such technology. The revisions to
both Parts and B also included minor
changes designed to fix ambiguous
language, to make the definitions more
readable or to delete obsolete or
duplicative definitions. On April 12,
2004, the State of Colorado submitted a
minor revision to Part A, Section I.A
regarding the availability of material
incorporated by reference.
(i) Incorporation by reference.
(A) Regulation 3, 5 CCR 1001–5, AIR
CONTAMINANT EMISSIONS
NOTICES, Part A, Concerning General
Provisions Applicable to Construction
Permits and Operating Permits, effective
December 2002 and April 2003 with the
following exceptions:
(1) Section I.B.36.b.(iii)(G) provisions
related to Pollution Control Projects
(2) Section I.B.40.c.(ii) Submittal of an
application for a nonroad engine permit,
State-only requirement
(3) Section IV. C., Emissions Trading
under Permit Caps
(4) Section V.F.5, Criteria for
Approval of all Transactions, deleting
the requirement that trading
transactions may not be used
inconsistently with or to circumvent
requirements of LAER
(B) Regulation 3, 5 CCR 1001–5, AIR
CONTAMINANT EMISSIONS
NOTICES, Part B, Concerning
Construction Permits including
Regulations for the Prevention of
Significant Deterioration (PSD), Area
Classifications, Part B, Section V.B.,
effective December 2002 with the
following exceptions:
(1) Section III.D.1.c(iii), Exemption
from Construction Permit Requirements,
Uncontrolled Emissions
E:\FR\FM\04FER1.SGM
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Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations
(2) Section IV.B.2, Application for a
Construction Permit, and Section
IV.H.8, Application for a Final Permit,
regarding operating and maintenance
plans and recordkeeping formats.
[FR Doc. 2011–2508 Filed 2–3–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2009–0098; FRL–8861–9]
Sodium and Potassium Salts of N-alkyl
(C8–C18)-beta-iminodipropionic acid;
Exemption From the Requirement of a
Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes an
exemption from the requirement of a
tolerance for residues of sodium and
potassium salts of N-alkyl (C8–C18)-betaiminodipropionic acid where the C8–C18
is linear and may be saturated and/or
unsaturated, (CAS Reg. Nos. 110676–
19–2, 3655–00–3, 61791–56–8, 14960–
06–6, 26256–79–1, 90170–43–7, 91696–
17–2, and 97862–48–1), herein referred
to in this document as SSNAs, when
used as inert ingredients for pre- and
post-harvest uses and for application to
animals at a maximum of 30% by
weight in pesticide formulations. The
Joint Inerts Task Force (JITF), Cluster
Support Team Number 14, submitted a
petition to EPA under the Federal Food,
Drug, and Cosmetic Act (FFDCA),
requesting the establishment of an
exemption from the requirement of a
tolerance. This regulation eliminates the
need to establish a maximum
permissible level for residues of SSNAs.
DATES: This regulation is effective
February 4, 2011. Objections and
requests for hearings must be received
on or before April 5, 2011, and must be
filed in accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
SUMMARY:
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0098. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
jdjones on DSK8KYBLC1PROD with RULES
ADDRESSES:
VerDate Mar<15>2010
14:40 Feb 03, 2011
Jkt 223001
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Karen Samek, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
(703) 347–8825; e-mail address:
samek.karen@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How can i get electronic access to
other related information?
You may access a frequently updated
electronic version of 40 CFR part 180
through the Government Printing
Office’s e-CFR site at https://
www.gpoaccess.gov/ecfr. To access the
harmonized test guidelines referenced
in this document electronically, please
go to https://www.epa.gov/ocspp and
select ‘‘Test Methods and Guidelines.’’
PO 00000
Frm 00025
Fmt 4700
Sfmt 4700
6335
C. How can I file an objection or hearing
request?
Under FFDCA section 408(g), 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
or request a hearing on this regulation
in accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2009–0098 in the subject line on
the first page of your submission. All
objections and requests for a hearing
must be in writing, and must be
received by the Hearing Clerk on or
before April 5, 2011. Addresses for mail
and hand delivery of objections and
hearing requests are provided in 40 CFR
178.25(b).
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing that does not
contain any CBI for inclusion in the
public docket. Information not marked
confidential pursuant to 40 CFR part 2
may be disclosed publicly by EPA
without prior notice. Submit a copy of
your non-CBI objection or hearing
request, identified by docket ID number
EPA–HQ–OPP–2009–0098, by one of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Mail: Office of Pesticide Programs
(OPP) Regulatory Public Docket (7502P),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001.
• Delivery: OPP Regulatory Public
Docket (7502P), Environmental
Protection Agency, Rm. S–4400, One
Potomac Yard (South Bldg.), 2777 S.
Crystal Dr., Arlington, VA. Deliveries
are only accepted during the Docket
Facility’s normal hours of operation
(8:30 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays).
Special arrangements should be made
for deliveries of boxed information. The
Docket Facility telephone number is
(703) 305–5805.
II. Petition for Exemption
In the Federal Register of March 19,
2010 (75 FR 132771) (FRL–8813–2),
EPA issued a notice pursuant to section
408 of FFDCA, 21 U.S.C. 346a,
announcing the filing of a pesticide
petition (PP 9E7631) by The Joint Inerts
Task Force, Cluster Support Team 14
(CST 14), c/o CropLife America, 1156
15th Street, NW., Suite 400,
Washington, DC 20005. The petition
requested that 40 CFR 180.910 and 40
E:\FR\FM\04FER1.SGM
04FER1
]]>Agencies
[Federal Register Volume 76, Number 24 (Friday, February 4, 2011)]
[Rules and Regulations]
[Pages 6331-6335]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2508]
[[Page 6331]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2007-1027; FRL-9251-1]
Approval and Disapproval and Promulgation of Air Quality
Implementation Plans; Colorado; Revision to Definitions; Construction
Permit Program; Regulation 3
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is partially approving and partially disapproving State
Implementation Plan (SIP) revisions submitted by the State of Colorado
on June 20, 2003 and April 12, 2004. This final rule will approve those
portions of the revisions to Colorado's Regulation 3 that place
restrictions on increment consumption, add innovative control
technology as an alternative to BACT requirements and make other
changes as described in more detail below. EPA will act separately on
the portions of the June 20, 2003 and April 12, 2004 submittals that
revise Regulation 3, Part A, Section II, Air Pollutant Emission Notice
(APEN) Requirements. Today's action on the Colorado Regulation 3
revisions will make federally enforceable the revised portions of
Colorado's Regulation 3 that EPA is approving. This action is being
taken under section 110 of the Clean Air Act.
DATES: Effective Date: This final rule is effective March 7, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2007-1027. 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, U.S.
Environmental Protection Agency, Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, telephone number (303)
312-6022, fax number (303) 312-6064, komp.mark@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation Plan.
(iv) The words State or Colorado mean the State of Colorado, unless
the context indicates otherwise.
(v) The initials APEN mean or refer to Air Pollutant Emission
Notice.
(vi) The initials NSR mean or refer to New Source Review, the
initials RACT mean or refer to Reasonably Available Control Technology,
the initials BACT mean or refer to Best Available Control Technology
and the initials NAAQS mean or refer to National Ambient Air Quality
Standards.
Table of Contents
I. Background Information
II. Response to Comments
III. Section 110(l) of the CAA
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background Information
On June 20, 2003 and on April 12, 2004, the State of Colorado
submitted formal revisions to its SIP that changed or deleted numerous
definitions in Part A of the State's Regulation Number 3. Primarily,
these were minor changes designed to fix ambiguous language, to make
the definitions more readable or to delete obsolete or duplicative
definitions. In addition to the clarifications, formatting and
readability changes were made to the definition section and a number of
definitions were added or modified to reflect developments in federal
law. In the April 12, 2004 submittal, the only revision to Parts A and
B of Regulation 3 was a minor change to Part A, Section I.A \1\
regarding the availability of material incorporated by reference.
---------------------------------------------------------------------------
\1\ All references in this notice to particular section numbers
are to the designated sections within Regulation 3.
---------------------------------------------------------------------------
One modified definition was for non-road engines. In response to
the 1990 CAA Amendments, federal case law, and EPA's interpretation of
the term, Colorado modified the definition of a non-road engine. The
definition was also moved from the APEN section of Regulation 3 (Part
A, Section II) to the definition section (Part A, Section I). In
addition, Colorado took steps to keep track of these sources by
requiring a non-road engine rated at 1,200 horsepower or greater to
file a Colorado APEN. The filing of an APEN for non-road engines is
stipulated by Colorado's SIP revisions to be a State-only requirement.
New definitions also included the definition of Pollution Control
Projects at existing electric utility steam generating units and the
use of Clean Coal Technology at these units. Colorado also revised its
definitions of actual emissions and major modification to include
special provisions governing physical or operational changes at
electric utility steam generating units. These new definitions and
revisions responded to changes in the federal regulations arising out
of the decision in the Wisconsin Electric Power Company (``WEPCO'')
case (Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir.
1990)). As a result of the WEPCO decision, EPA's NSR regulations were
changed in 1992 and Colorado responded to the changes by adding these
definitions to its Regulation 3.
Revisions were also submitted involving Part B of Colorado's
Regulation 3. Part B describes the process air emission sources must go
through to obtain a required construction permit prior to commencing
operation. The State's submittals modified the exemptions from
construction permitting, modified requirements for permit applicants,
added restrictions on increment consumption, and added provisions
regarding innovative control technology.
Colorado added language to its area classification section of Part
B, Section V stating that within certain Class II areas in the State
(for example, certain National Monuments that are not Class I areas),
sulfur dioxide concentration increases over baseline concentrations are
limited to the amount permitted in Class I areas as established under
Section 163(b) of the federal CAA. Such increases are not allowed if
the Federal Land Manager determines and the State concurs that there
would be an adverse impact on air quality from the sulfur dioxide
concentration increase.
In Section III.D.1.c(iii), Colorado modified the exemption from
construction permitting for stationary internal combustion engines. The
State also limited to 75 percent the amount that a new major stationary
source or major modification may consume of an
[[Page 6332]]
applicable pollutant increment (Part B, Section VII.A.5). Sources may
ask for a waiver from the limit.
II. Response to Comments
EPA received one letter from the State of Colorado dated December
8, 2010 that provided one comment on our November 8, 2010 Federal
Register proposed action regarding the partial approval and partial
disapproval of Colorado's SIP revisions to their Regulation 3. The
comment addresses our proposed disapproval of the portion of the
revision regarding sections IV.B.2 and IV.H.8 in Part B of Regulation
3. The revision changed the existing requirement for construction
permit applicants to submit in their application an operating and
maintenance plan and recordkeeping format (collectively, ``O&M plan'').
In its place, the revision would require the owner or operator to
submit the O&M plan before final permit approval. In this section EPA
responds to the comment made by the State.
Comment--Colorado expressed its concern that the disapproval would
delay permit issuance, create inefficiencies, and result in increased
need for resources. Colorado stated that the final version of the O&M
plan is dependent on conditions of the issued permit and on performance
testing after the source has been authorized to construct. As a result
of the disapproval of this portion of the revision, Colorado believes
that there will be insufficient information to submit and review the
initial submission of the O&M plan, and therefore there will be
inefficient use of resources when the State reviews both the initial
and final versions of it. Colorado also expressed concern that
disapproval of the provision would result in modifications of O&M plans
having to be submitted as SIP revisions, a process that Colorado
believes would cause additional delays. As a result, the State asked
EPA to delay action on the portion of the revision regarding sections
IV.B.2.
EPA Response--EPA notes that the State did not take issue with the
basis for our proposed disapproval. In our proposal, we stated that the
operating and maintenance plan and recordkeeping format appeared to be
information on the operation of the source that was necessary to
determine whether construction or modification of the source would
violate the applicable portions of the control strategy or interfere
with attainment or maintenance of a national standard. See 40 CFR
51.160(a), (c). Therefore, we reasoned, such information must be
submitted by the owner or operator of the source and as a result must
be subject to public comment. See 40 CFR 51.161(a). As the State
acknowledges, the proposed revision removes the existing requirement
that the information be submitted in the application and only requires
that it be submitted before final permit approval. As EPA noted in the
proposal (and the State does not dispute), this change does not ensure
that the public has 30 days to comment on both the information and the
permitting agency's analysis of the effect on air quality, as required
by 40 CFR 51.161. Furthermore, the State did not take issue with our
determination that such information was necessary under 40 CFR 51.160;
and therefore, must be subject to public comment under 40 CFR 51.161.
Thus, the State comment described above does not provide a basis for
EPA to change its proposed disapproval. In response to the State's
request that EPA delay action on the proposed revision, EPA notes that
under a consent decree entered in the U.S. District Court for the
District of Colorado, EPA must take final action on the submitted
provision by December 31, 2010. (WildEarth Guardians v. Jackson, Civ.
No. 09-2148 (D. Colo. 2009)).
EPA appreciates the State's concern for efficient processing of
construction permits. However, requiring owners and operators to submit
the O&M plan and recordkeeping format in their application for a
construction permit is not unduly burdensome. If the application
contains sufficient other information (such as the nature of the
facility, processes, and emissions units) to enable the State to
determine whether construction or modification of the source meets the
requirements of 40 CFR 51.160(a), then the applicant is also in a
position to submit an O&M plan and recordkeeping format. Furthermore,
the State is then in a position to determine from the information in
the application the controls and other applicable requirements that
must be reflected in the final permit, and as a result modify the O&M
plan accordingly. To the extent that performance testing subsequently
requires modification of the O&M plan, the State does not need to
submit a SIP revision for such modification. O&M plan revisions would
constitute a modification of the construction permit to which the
requirements of section 110(i) of the Act would not apply.
III. 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. Those portions of the revision to Colorado's Regulation 3 that
we are approving satisfy section 110(l), because those portions do not
relax existing SIP requirements. Instead, the portions of the June 20,
2003 and April 12, 2004 submittals EPA is approving increase stringency
of existing requirements, clarify existing requirements, or remove
obsolete requirements. Therefore, section 110(l) is satisfied.
IV. Final Action
We have evaluated Colorado's June 20, 2003 and April 12, 2004
submittals regarding revisions to the State's Regulation 3, Parts A and
B. We are approving most of the revisions from the two submittals but
are disapproving certain revisions within the June 20, 2003 submittal.
Also, we are taking no action on the State-only requirements in
sections I.B.40.c. and d. for nonroad engines, as we regard these as
submitted only for informational purposes. We will take separate action
on the portion of the June 20, 2003 and April 12, 2004 submittals
regarding Regulation 3, Part A, Section II, Air Pollutant Emission
Notice (APEN) Requirements.
What EPA Is Disapproving
The State added terms and definitions (Section I.B.69) in response
to EPA's 1992 WEPCO rule. Under the definition of ``modification''
(I.B.36), the State also added provisions related to these definitions,
including for pollution control projects (I.B.36.b (iii)(G) and
I.B.69.d). On June 24, 2005, the Court of Appeals for the DC Circuit
vacated the Pollution Control Project portion of the WEPCO rule as well
as the corresponding portion of EPA's 2002 NSR rule (State of New York
et al. v. EPA, 413 F.3d 3 (DC Cir. 2005)). Therefore, EPA is
disapproving Part A, Section I.B.36.b(iii)(G) and Section I.B.69.d in
Regulation 3.
EPA is disapproving the new provisions in Part A, Section IV.C.
regarding emissions trading under permit caps. These new provisions
apply to both construction permits and to CAA Title V operating
permits. For operating permits, the provisions should not be
incorporated into the federally enforceable version of the Colorado
SIP. Instead, they should be submitted separately under 40 CFR 70.4(i)
as a revision of Colorado's approved operating permit program. To the
extent that these new provisions apply to Prevention of Significant
Deterioration (PSD) or nonattainment NSR for major
[[Page 6333]]
sources or major modifications, they are not allowed by the regulations
in 40 CFR 51.166 or 51.165. EPA provides a mechanism for establishing
permit caps through plant wide applicability limitations (PALs). The
provisions in IV.C for emissions trading under permit caps do not meet
the requirements for PALs in 40 CFR 51.165(f) and 40 CFR 51.166(w).
Therefore, EPA is disapproving the provisions for emissions trading
under permit caps set forth in Section IV.C.
In Part A, Section V.F.5, Colorado expanded the acronym Lowest
Achievable Emission Rate (LAER) as one instance of a regulation-wide
style change that expanded many acronyms. The revision apparently
inadvertently deleted the requirement that trading transactions may not
be used inconsistently with or to circumvent requirements of LAER. EPA
is disapproving this change because emissions trading must be
consistent with other requirements of the CAA, including LAER.
Turning to Part B of Regulation 3, in Section III.D.1.c(iii), the
State modified the requirements for stationary internal combustion
engines to be exempt from construction permitting. Previously, all such
engines were exempt if they had actual emissions of less than five tons
per year or were rated less than fifty horsepower. Under the revision,
in attainment areas such engines are exempt if they have uncontrolled
actual emissions of less than ten tons per year or are rated less than
one hundred horsepower; thus, more engines may be exempt from
construction permitting under the revision. Under section 110(l) of the
CAA, EPA cannot approve a SIP revision that would interfere with any
applicable requirement concerning attainment or reasonable further
progress, as defined in Section 171 of the CAA, or any other applicable
requirement of the CAA. The State did not provide a demonstration or
other analysis that the expansion of the exemption satisfies the
requirements of section 110(l). Exempting a potentially greater number
of stationary engines from construction permitting may result in
increased emissions of criteria pollutants such as NOx. EPA therefore
disapproves the revision to Section III.D.I.c(iii).
Finally, for the reasons discussed in the Response to Comments, EPA
is disapproving the revision to Part B, Section IV.B.2 and Section
IV.H.8 regarding operating and maintenance plans and recordkeeping
formats.
What EPA Is Approving
The State added language to its definition of actual emissions
(Section I.B.1.d) for electric utility steam generating units. The
State defined actual emissions by allowing the actual emissions from
the unit following a physical or operational change of the unit to
equal the actual annual emissions of the unit provided the owner or
operator can provide information from a five year period showing no
emission increase resulting from the unit's physical or operational
change. This revised definition is consistent with EPA's 1992 WEPCO
rule discussed earlier in this proposed rule. Although a term used
(``representative actual annual emissions'') is that of the WEPCO rule,
the substance of the revised definition is also consistent with current
federal regulations in 40 CFR 51.165 and 51.166, and EPA, therefore, is
approving the revised definition.
The State also modified its definition for commenced construction
in Section I.B.13 by excluding certain construction activities from the
requirement for a permit. Planning activities, site clearing and
grading, ordering equipment and materials, storing of equipment,
constructing personnel trailers, engineering and design changes, and
geotechnical investigation do not require that a permit be issued prior
to these activities. EPA is approving this change in the definition of
commenced construction as it is consistent with EPA guidance
interpreting the equivalent term, ``begin actual construction.'' \2\ As
noted in that guidance, though, such activity, if undertaken prior to
issuance of a permit, is at the risk of the owner or operator and would
not guarantee that the permit would be forthcoming.
---------------------------------------------------------------------------
\2\ Memorandum from Edward E. Reich entitled Construction
Activities prior to Issuance of a PSD Permit with Respect to ``Begin
Actual Construction'' (March 28, 1986).
---------------------------------------------------------------------------
The revisions to Regulation 3 excluded the consideration of clean
coal technology demonstration projects as a major modification when the
projects do not result in an increase in the potential to emit of any
regulated pollutant. EPA is approving this revision since the revision
is consistent with the Federal NSR regulations described at 40 CFR
51.165 and 51.166.
Earlier in this final rule EPA stated that we were disapproving
Pollution Control Projects as defined in Section I.B.36.b(iii)(G) and
Section I.B.69.d of Colorado's Regulation 3. However, the remainder of
the revised definitions within Part A, Section I.B.36 and Section I. B.
69 are consistent with EPA's 1992 WEPCO rule and with current federal
NSR regulations. EPA is therefore approving the definitions for clean
coal technology, electric utility steam generating unit, reactivation
of very clean coal-fired electric utility steam generating unit,
repowering, representative actual annual emissions, temporary clean
coal technology demonstration project and wet screening operations.
Colorado revised its fee schedule in Part A, Section VI.D by
eliminating the dollar amount of the annual fee and referring the fee
applicant to provisions provided in Colorado's Revised Statutes Section
25-7-114.7. Colorado also revised the filing of claims regarding
confidential information and how the State elevates such claims (Part
A, Section VII.). EPA is approving these revisions.
Turning to Part B of Regulation 3, EPA is approving the
construction permit review requirements regarding RACT for minor
sources in attainment/maintenance areas that were added in Part B,
Section IV.D.3.e. These requirements mirror the existing requirements
in Section IV.D.2.d for minor sources in nonattainment areas.
As noted in Section II of this proposed rule, in Part B, Section V
of Colorado's Regulation 3, the State made the restrictions on maximum
allowable increases of sulfur dioxide concentrations over baseline
concentrations in Class I areas also applicable to certain Class II
areas, such as certain National Monuments that are not Class I areas.
This change strengthens the SIP by making the more stringent Class I
restrictions also applicable in the listed Class II areas; EPA is
therefore approving the revision.
Increment consumption restrictions were added to Part B, Section
VII.A.5 of Colorado's Regulation 3. EPA is approving this revision as
the revision is more stringent than federal requirements regarding
increment consumption.
Finally, the State added Part B, Section IX regarding the use of
innovative control technology. EPA is approving this revision since the
revision is consistent with the federal NSR regulations described at 40
CFR 51.166(b)(19).
Minor changes designed to fix ambiguous language, to make the
definitions more readable or to delete obsolete or duplicative
definitions were made throughout the entirety of Parts A and B. These
changes are approved by EPA.
[[Page 6334]]
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves 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 seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 5, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2))
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by Reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 29, 2010.
Carol Rushin,
Deputy Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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 52.320 is amended by adding paragraph (c)(116) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(116) On June 20, 2003, the State of Colorado submitted revisions
to Colorado's Regulation 3 Regulation, 5 CCR 1001-5, that place
restrictions on increment consumption, add innovative control
technology as an alternative to BACT requirements, and changed or
deleted numerous definitions in Part A. The State in Part B revised
construction permit review requirements regarding RACT for minor
sources in attainment/maintenance areas. The State made the
restrictions on maximum allowable increases of sulfur dioxide
concentrations over baseline concentrations in Class I areas also
applicable to certain Class II areas, such as certain National
Monuments that are not Class I areas. Increment consumption
restrictions were added to limit major stationary sources from
consuming more than 75 percent of an applicable increment. The State
added the use of innovative control technology by a source in lieu of
BACT requirements in order to encourage the use of such technology. The
revisions to both Parts and B also included minor changes designed to
fix ambiguous language, to make the definitions more readable or to
delete obsolete or duplicative definitions. On April 12, 2004, the
State of Colorado submitted a minor revision to Part A, Section I.A
regarding the availability of material incorporated by reference.
(i) Incorporation by reference.
(A) Regulation 3, 5 CCR 1001-5, AIR CONTAMINANT EMISSIONS NOTICES,
Part A, Concerning General Provisions Applicable to Construction
Permits and Operating Permits, effective December 2002 and April 2003
with the following exceptions:
(1) Section I.B.36.b.(iii)(G) provisions related to Pollution
Control Projects
(2) Section I.B.40.c.(ii) Submittal of an application for a nonroad
engine permit, State-only requirement
(3) Section IV. C., Emissions Trading under Permit Caps
(4) Section V.F.5, Criteria for Approval of all Transactions,
deleting the requirement that trading transactions may not be used
inconsistently with or to circumvent requirements of LAER
(B) Regulation 3, 5 CCR 1001-5, AIR CONTAMINANT EMISSIONS NOTICES,
Part B, Concerning Construction Permits including Regulations for the
Prevention of Significant Deterioration (PSD), Area Classifications,
Part B, Section V.B., effective December 2002 with the following
exceptions:
(1) Section III.D.1.c(iii), Exemption from Construction Permit
Requirements, Uncontrolled Emissions
[[Page 6335]]
(2) Section IV.B.2, Application for a Construction Permit, and
Section IV.H.8, Application for a Final Permit, regarding operating and
maintenance plans and recordkeeping formats.
[FR Doc. 2011-2508 Filed 2-3-11; 8:45 am]
BILLING CODE 6560-50-P
