[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Proposed Rules]
[Pages 4268-4271]
[FR Doc No: 2011-1475]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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:
     http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER> (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
http://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 http://www.regulations.gov or e-mail. The http://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 http://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 http://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 http://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,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
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.

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
http://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

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

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]
BILLING CODE 6560-50-P