Code of Colorado Regulations
1000 - Department of Public Health and Environment
1001 - Air Quality Control Commission
5 CCR 1001-29 - CONTRAL OF EMISSIONS FROM SURFACE COATING, SOLVENTS, ASPHALT, GRAPHIC ARTS AND PRINTING, AND PHARMACEUTICALS
Part C - Statements of Basis, Specific Statutory Authority and Purpose
Section 5 CCR 1001-29-C-II - December 18-20, 2024 (Revisions to Part A, Section II.C.2. and Part B, Sections I.L.6., I.O.5., and I.P.)
Current through Register Vol. 48, No. 6, March 25, 2025
This Statement of Basis, Specific Statutory Authority, and Purpose complies with the requirements of the State Administrative Procedure Act, § 24-4-101, C.R.S., et seq., the Colorado Air Pollution Prevention and Control Act, § 25-7-101, C.R.S., et seq., and the Air Quality Control Commission's (Commission) Procedural Rules, 5 C.C.R. §1001-1.
Basis
The Commission adopted revisions in response to EPA actions on Colorado's state implementation plan (SIP) submissions. Specifically, a disapproval related to recordkeeping and reporting requirements and a disapproval of contingency measures for the serious SIP under the 2008 ozone National Ambient Air Quality Standard (NAAQS). See 88 Fed. Reg. 29827 (May 9, 2023); 88 Fed. Reg. 76676 (Nov. 7, 2023).
Specific Statutory Authority
The State Air Act, specifically § 25-7-105(1), directs the Commission to promulgate such rules and regulations as are consistent with the legislative declaration set forth in § 25-7-102 and that are necessary for the proper implementation and administration of Article 7. The Act broadly defines air pollutant to include essentially any gas emitted into the atmosphere (and, as such, includes VOC, NOx, methane and other hydrocarbons) and provides the Commission broad authority to regulate air pollutants. § 105(1)(a)(I) directs the Commission to adopt a state implementation plan (SIP) to attain the NAAQS. § 25-7-106 provides the Commission maximum flexibility in developing an effective air quality program and promulgating such combination of regulations as may be necessary or desirable to carry out that program. § 25-7-106 also authorizes the Commission to promulgate emission control regulations applicable to the entire state, specified areas or zones, or a specified class of pollution. § 25-7-106(6) further authorizes the Commission to require owners and operators of any air pollution source to monitor, record, and report information. §§ 25-7-109(1)(a) and (2) of the Act authorize the Commission to promulgate regulations requiring effective and practical air pollution controls for significant sources and categories of sources and emission control regulations pertaining to nitrogen oxides and hydrocarbons.
Purpose
The following section sets forth the Commission's purpose in adopting the revisions to Regulation Number 25 and includes the technological and scientific rationale for the adoption of the revisions.
Periodic Reporting
To address EPA's concern with the lack of specified reporting and to avoid federal sanctions the Commission included requirements for major sources to include compliance demonstration information with the semi-annual reporting requirements in the operating permit, specifically wood coating operations. The Commission also included requirements for metal coating operations, which are a VOC source category subject to a CTG published by EPA and upon which the adopted provisions, including the recordkeeping without corresponding fixed frequency reporting recommendations, are based, to submit annual or semi-annual reports documenting compliance with coatings VOC content limits. See 88 Fed. Reg. 29827 (May 9, 2023) (EPA's limited disapproval, discussing EPA's perceived lack of periodic reporting sufficient to determine compliance by regulated entities). The semi-annual reports for major sources are intended to align with the sources' operating permit reporting requirements.
Contingency Measures
The Commission also updated the contingency measures adopted in 2022 in Section I.P. concerning automotive VOC content limits. These provisions were adopted as contingency measures for the moderate SIP under the 2015 ozone NAAQS. The revisions were adopted to include these contingency measures in the Serious SIP under the 2008 Ozone NAAQS, in response to EPA's disapproval. Under the federal Clean Air Act § 172(c)(9), nonattainment area SIPs must provide for the implementation of specific measures, termed contingency measures, if an area fails to attain the NAAQS or to demonstrate RFP by the required deadline. The Commission had adopted contingency measure for the Serious SIP in 2020 with anticipated future year emission reductions in VOC and NOx from on-road mobile sources. However, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in January 2021 interpreting the CAA requirements for contingency measures to require such measures be prospective and conditional, in contrast to previous EPA interpretation and corresponding state implementation. See 88 Fed. Reg. at 54978 discussing Sierra Club v EPA. Therefore, EPA disapproved Colorado's Serious SIP contingency measures, finding the measures did not satisfy the CAA requirements as interpreted by the DC Circuit. The Commission now includes the automotive VOC content limits and associated work practices in Regulation Number 25, Part B, Section I.P. as contingency measures for the 2008 Ozone NAAQS serious SIP. These requirements impact any person who supplies, sells, offers for sale, distributes for sale, or manufacturers for sale in Colorado certain products after a finding by EPA of failure to attain the 2008 ozone NAAQS by the serious ozone attainment date. The Commission adopted the contingency measures in order to ensure emission reductions within a reasonable timeframe after submission to EPA for approval of the measures.
The Commission also made typographical, grammatical, and formatting corrections throughout the regulations.
Incorporation by Reference
The Commission will update regulatory references as needed as opportunities arrive.
Additional Considerations
Colorado must revise Colorado's ozone SIP to address the ozone nonattainment area requirements. The CAA does not expressly address all of the provisions adopted by the Commission. Rather, federal law establishes the ozone NAAQS and requires Colorado to develop a SIP adequate to attain the NAAQS. Therefore, the Commission adopted certain revisions to Regulation Number 25 to satisfy Colorado's nonattainment area obligations and further achieve reductions of ozone precursor emissions. These revisions do not exceed or differ from the federal act due to state flexibility in determining what control strategies to implement to reduce emissions. However, where the proposal may differ from federal rules under the federal act, in accordance with § 25-7-110.5(5)(b), CRS, the Commission determines:
(I) The revisions to Regulation Number 25 address wood coating, metal coating, and automotive coatings operations. NESHAP JJ, NESHAP DDDD, NESHAP MMMM, NESHAP QQQQ, NESHAP XXXXXX and EPA's National Volatile Organic Compound Emission Standards for Automobile Refinish Coatings at 40 CFR Part 59 Subpart B may also apply to the above described operations. However, the revisions to Regulation Number 25 apply on a broader basis.
(II) The federal rules discussed in (I) are primarily technology-based in that they largely prescribe the use of specific technologies or work practices to comply.
(III) The CAA establishes the 2008 and 2015 ozone NAAQS and requires Colorado to develop SIP revisions that will ensure attainment of the NAAQS. The ozone NAAQS was not determined taking into account concerns unique to Colorado. Similarly, EPA develops NSPS or NESHAP considering national information and data, not Colorado specific issues or concerns. In addition, Colorado cannot rely exclusively on a federally enforceable permit or federally enforceable NSPS or NESHAP to satisfy Colorado's ozone nonattainment area RACT obligations. Instead, Colorado can adopt applicable provisions into its SIP directly, as the Commission has done here.
(IV) In addition to the 2008 NAAQS, Colorado must also comply with the lower 2015 ozone NAAQS. These current revisions may improve the ability of the regulated community to comply with new requirements needed to attain the lower NAAQS insofar as RACT analyses and efforts conducted to support the revisions adopted by the Commission may prevent or reduce the need to conduct additional RACT analyses for the more stringent NAAQS.
(V) EPA has established Colorado's SIP RACT implementation deadlines. There is no timing issue that might justify changing the time frame for implementation of federal requirements.
(VI) The revisions to Regulation Number 25 address EPA's May 9, 2023, disapproval. These sections currently address emissions from wood coating and metal coating operations, while allowing for continued growth of Colorado's industry.
(VII) The revisions to Regulation Number 25 establish reasonable equity for owners and operators subject to these rules by providing the same standards for similarly situated and sized sources.
(VIII) If EPA does not approve Colorado's SIP, EPA may promulgate a Federal Implementation Plan; thus potentially determining RACT for Colorado's sources. This outcome may subject others to increased costs.
(IX) Where necessary, the revisions to Regulation Number 25 include minimal monitoring, recordkeeping, and reporting requirements that correlate, where possible, to similar federal or state requirements.
(X) Demonstrated technology is available to comply with the revisions to Regulation Number 25. The revisions do not expand upon emission reduction requirements already applicable but minimally add additional reporting requirements.
(XI) As set forth in past Economic Impact Analyses, the revisions to Regulation Number 25 will reduce emissions in a cost-effective manner.
(XII) Alternative rules could also provide reductions in ozone, VOC, and NOx to help to attain the NAAQS. However, a no action alternative would very likely result in sanctions.
Findings of Fact
To the extent that § 25-7-110.8, C.R.S., requirements apply to this rulemaking, and after considering all the information in the record, the Commission hereby makes the determination that:
(I) These rules are based upon reasonably available, validated, reviewed, and sound scientific methodologies, and the Commission has considered all information submitted by interested parties.
(II) Evidence in the record supports the finding that the rules shall result in a demonstrable reduction of greenhouse gas and VOC emissions.
(III) Evidence in the record supports the finding that the rules shall bring about reductions in risks to human health and the environment that justify the costs to implement and comply with the rules.
(IV) The rules are the most cost-effective alternative to achieve the necessary reduction in air pollution and provide the regulated entity flexibility.
(V) The selected regulatory alternative will maximize the air quality benefits of regulation in the most cost-effective manner.
