[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)] [Rules and Regulations] [Pages 32418-32422] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-15161] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [CO-001-0027a, CO-001-0028a, & CO-001-0033a; FRL-6358-6] Clean Air Act Approval and Promulgation of State Implementation Plan; Colorado; Revisions Regarding Negligibly Reactive Volatile Organic Compounds and Other Regulatory Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: EPA approves three revisions to the Colorado State Implementation Plan (SIP). The SIP revisions being approved include: an update to the State's list of negligibly reactive volatile organic compounds (VOCs) to add acetone. The State also consolidated the list of negligibly reactive VOCs from Regulations No. 3 and 7 into the Common Provisions Regulation. These revisions were submitted for approval on September 16, 1997; a clarification to the definition of ``applicable requirement'' and corrections of typographical errors in parts A and B of Colorado Regulation No. 3. These revisions were also submitted on September 16, 1997; and an update to the list of negligibly reactive VOCs in the Common Provisions Regulation to add perchloroethylene. The State also repealed its requirements in Regulation No. 7 that required control of VOC emissions from dry cleaning facilities using perchloroethylene as a solvent. These revisions were submitted for approval on August 19, 1998. We approve these revisions because they are consistent with the requirements of the Clean Air Act (Act) and the Federal regulations. DATES: This rule is effective on August 16, 1999 without further notice, unless we receive adverse comment by July 19, 1999. If we receive adverse comments, we will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. ADDRESSES: You should mail your written comments to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver, Colorado, 80202. Copies of the documents relative to this action are available for inspection during normal business hours at the Air and Radiation Program, Environmental Protection Agency, Region VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466. Copies of the Incorporation by Reference material are available at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State documents relevant to this action are available for public inspection at the Air Pollution Control Division, Colorado Department of Public Health and Environment, 4300 Cherry Creek Drive South, Denver, Colorado. FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303) 312-6445. SUPPLEMENTARY INFORMATION: [[Page 32419]] I. What Action Is EPA Taking Today? EPA approves three SIP revisions from the State of Colorado. Those SIP revisions include the following: A. The State updated its list of negligibly reactive VOCs to add acetone, as a result of revisions to the Federal definition of VOC. The State also consolidated the list of negligibly reactive VOCs from Regulations No. 3 and 7 into the Common Provisions Regulation. These regulation revisions were submitted by the Governor for approval on September 16, 1997. EPA approves all of these revisions, except for the deletion of the definition of VOC in part A of Regulation No. 3 which EPA is not acting; B. The State adopted a clarification of the definition of ``applicable requirement'' and corrections of typographical errors in the State's new source review (NSR) permitting program in parts A and B of Colorado Regulation No. 3. This regulation revision was also submitted on September 16, 1997; and C. The State updated its list of negligibly reactive VOCs in the Common Provisions Regulation to add perchloroethylene, as a result of revisions to the Federal definition of VOC. The State also repealed its requirements in section XII. of Regulation No. 7, which required control of VOC emissions from dry cleaning facilities using perchloroethylene as a solvent. These revisions were submitted on August 19, 1998. This submittal also included revisions to the Appendices of Regulation No. 3, which EPA is not acting on. Note that the State's September 16, 1997 SIP submittal consisted of ten other separate revisions to rules and/or elements of the SIP. The other ten revisions will be, or have already been, acted on in separate Federal Register actions. In addition, the State's August 19, 1998 SIP submittal included four other separate revisions to rules and/or elements of the SIP. Those other four SIP revisions will be, or have already been, acted on in separate Federal Register actions. Part A of Regulation No. 3 is part of both the State's SIP and the State's title V operating permit program. Consequently, EPA will also address the revisions to Part A of Regulation No. 3 as revisions to the State's title V operating permit program in the near future. We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the ``Proposed Rules'' section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective August 16, 1999 without further notice unless we receive adverse comments by July 19, 1999. If we receive adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. II. What Specific Changes Were Made to Colorado SIP? A. September 16, 1997 Submittal Regarding Negligibly Reactive VOCs The September 16, 1997 SIP revisions regarding negligibly reactive VOCs included the following regulatory revisions: 1. The State added a definition of negligibly reactive VOCs to section I.G. of the Common Provisions Regulation. In section I.G., the State incorporated by reference the Federal list of VOCs with negligible photochemical reactivity from 40 CFR 51.100(s)(1) as revised on June 16, 1995 (61 FR 31633-31637). EPA added acetone to its list of negligibly reactive VOCs in the June 16, 1995 revisions. Section I.G. of the Common Provisions Regulation also includes, for easier reference, a list of the negligibly reactive VOCs identified in 40 CFR 51.100(s)(1). 2. The State deleted the lists of negligibly reactive VOCs in the following provisions: (a) the definition of ``net emissions increase'' in section I.G. of the Common Provisions Regulation; (b) section I.B.36.h. in part A of Regulation No. 3; (c) section I.D.4. in part B of Regulation No. 3; and (d) section II.B. of Regulation No. 7. These provisions now refer to the definition of negligibly reactive VOCs in the Common Provisions Regulation. 3. Last, the State deleted the definition of VOC in section I.B.67. of part A of Regulation No. 3 and instead referred to the definition of VOC in the Common Provisions Regulation. The State made these revisions in part so that the next time the State needs to update the definition of negligibly reactive VOCs to reflect changes to the Federal definition, the State only has to revise one regulation. B. September 16, 1997 Submittal of Clarifications and Corrections in Regulation No. 3 The September 16, 1997 submittal of Regulation No. 3 consisted of the following revisions: 1. A revision to the definition of ``applicable requirement'' in section I.B.9. of part A of Regulation No. 3 to indicate that permits issued by EPA under part C or D of the Act are also considered to be applicable requirements of the State's operating permit program. 2. Corrections of typographical errors in sections I.B.59(b) and V.C.12. of part A and in section III.D.2. of part B in Regulation No. 3. C. August 19, 1998 Submittal of Revisions to the Common Provisions Regulation and Regulation No. 7 The State's August 19, 1998 submittal included the following regulatory revisions: 1. The State revised the definition of negligibly reactive VOCs in the Common Provisions Regulation to add perchloroethylene. This change was made pursuant to EPA's listing of perchloroethylene as a negligibly reactive VOC on February 7, 1996 (61 FR 4588). 2. The State also repealed the requirements in section XII. of Regulation No. 7, which required control of VOC emissions from dry cleaning facilities using perchloroethylene as a solvent. Since perchloroethylene is no longer considered to be a precursor to ozone formation, these requirements are no longer needed to protect the national ambient air quality standards (NAAQS) for ozone. 3. In addition, the State revised appendices B, C, and D of Regulation No. 3 to revise its list of hazardous air pollutants, pursuant to changes in the Federal list of hazardous air pollutants. However, these Appendices have not been approved as part of the SIP because they are not related to protection of the NAAQS. Thus, EPA is taking no action on the revisions to the Appendices of Regulation No. 3. III. Why is EPA Taking This Action? A. Revisions to Regulations No. 3 and 7 and the Common Provisions Regulation Regarding Negligibly Reactive VOCs EPA finds the consolidation of the list of negligibly reactive VOCs from provisions in Regulations No. 3 and 7 into the Common Provisions Regulation to be approvable. In addition, EPA approves the revisions to the definition of negligibly reactive VOCs in the [[Page 32420]] Common Provisions Regulation since they implement revisions made to EPA's list of negligibly reactive VOCs in 40 CFR 51.100(s)(1). However, the State's list of negligibly reactive VOCs contains some typographical errors and is not entirely consistent with the list in 40 CFR 51.100(s)(1). Because the State has incorporated by reference the Federal definition of negligibly reactive VOCs in 40 CFR 51.100(s)(1), EPA doesn't believe these typographical errors in the State's list pose any approvability concerns. EPA has notified the State of these errors and expects the State to correct these errors the next time it revises its definition of negligibly reactive VOCs. The State's definition of negligibly reactive VOCs is also not current with recent additions to the list of negligibly reactive VOCs in 40 CFR 51.100(s)(1). Specifically, on October 8, 1996, EPA added three compounds to the list of negligibly reactive VOCs (see 61 FR 52848). On August 25, 1997, EPA added sixteen compounds to the list of negligibly reactive VOCs (see 62 FR 44900). Last, on April 9, 1998, EPA added one compound to the list of negligibly reactive VOCs (see 63 FR 17331). States are not obligated to exclude from control as a VOC those compounds which EPA has found to be negligibly reactive. However, States should not include these compounds in their VOC emission inventories for determining reasonable further progress under section 182(b)(1) of the Act and should not take credit for controlling these compounds in their ozone control strategy. EPA is not acting on the deletion of the definition of VOC in section I.B.67. of part A of Regulation No. 3, which now references the definition of VOC in the Common Provisions Regulation. The definition of VOC in the Common Provisions Regulation allows for the use of alternative or equivalent test methods to measure VOCs, rather than EPA reference test methods, upon approval by the Colorado Air Pollution Control Division. This essentially allows for a variance from the SIP, which is not allowed by section 110(i) of the Act. The same issue exists in the State's definition of VOC in Regulation No. 7. EPA notified the State of these deficiencies in a June 5, 1998 letter and informed the State that the definition of VOC in the Common Provisions Regulation and Regulation No. 7 must be revised to require EPA approval of alternative or equivalent test methods. The definition of VOC in Regulation No. 3 that is currently approved as part of the SIP provides that a source must obtain prior approval from EPA in order to use an equivalent or alternative method. Thus, EPA will not act on the deletion of the definition of VOC in Regulation No. 3 until the State corrects the definition of VOC in the Common Provisions Regulation. This definition in Regulation No. 3, which is consistent with the Act, will remain part of the EPA-approved SIP. B. Clarifications and Minor Corrections in Regulation No. 3 EPA finds that the State's revision to the definition of ``applicable requirement'' in part A of Regulation No. 3 is necessary to ensure the State has adequate authority to incorporate into title V operating permits requirements from preconstruction permits issued by EPA. Thus, this revision strengthens the State's permit program, as does the correction of typographical errors in Regulation No. 3. C. Revisions to Regulation No. 7 Repealing the Requirements for Dry Cleaners That Use Perchloroethylene as a Solvent As stated above, EPA listed perchloroethylene as a VOC with negligible photochemical reactivity in a February 7, 1996 rulemaking (61 FR 4588). Thus, perchloroethylene is not considered to be a precursor to ozone formation and does not need to be included in SIPs to protect the ozone NAAQS. Consequently, the State repealed the provisions in section XII. of Regulation No. 7, entitled ``Control of VOC Emissions from Dry Cleaning Facilities Using Perchloroethylene as a Solvent,'' which had previously regulated dry-cleaning plants as a source of VOCs contributing to the formation of tropospheric ozone. This is acceptable to EPA as States have the option to exclude from control those VOC compounds that EPA has found to be negligibly reactive. See, e.g., 61 FR 4588, 4590, February 7, 1996. EPA notes, however, that perchloroethylene is listed as a hazardous air pollutant (HAP) under section 112(b) of the Act. Pursuant to section 112(d) of the Act, EPA issued national emission standards for hazardous air pollutants (NESHAPs) for two major perchloroethylene source categories: perchloroethylene dry cleaning (58 FR 49354, September 22, 1993) and halogenated solvent cleaning (59 FR 61801, December 2, 1994). Currently, the use of perchloroethylene in dry- cleaning plants is regulated as a HAP in Colorado. The provisions to address this HAP are found in 40 CFR part 63, subpart M, ``National Perchloroethylene Air Emissions Standards for Dry Cleaning Facilities,'' which were incorporated by reference by Colorado into its Regulation No. 8 on December 21, 1995. D. Procedural Requirements for SIP Revisions We also find that the State met the applicable public participation requirements of sections 110(a)(2) and 110(l) of the Act in the adoption and submittal of these SIP revisions. Sections 110(a)(2) and 110(l) of the Act provide that each revision to an implementation plan submitted by a State must be adopted after reasonable notice and public hearing. Specifically, Colorado held a public hearing on December 21, 1995 on the revisions to Regulations No. 3 and 7 and the Common Provisions Regulation regarding the State's definition of negligibly reactive VOCs, after providing thirty days of public notice. On June 20, 1996, Colorado held a public hearing on the clarification to the definition of ``applicable requirement'' and the correction of typographical errors in Regulation No. 3, after providing thirty days of public notice. Both of these regulatory revisions were submitted by the Governor for approval on September 16, 1997. On November 21, 1996, Colorado held a public hearing on the revisions to the Common Provisions Regulation and Regulation No. 7 regarding perchloroethylene, after providing thirty days of public notice. This regulation revision was submitted by the Governor for approval on August 19, 1998. We did not issue a completeness or incompleteness finding for these revisions to the SIP. Thus, pursuant to section 110(k)(1)(B) of the Act, these submittals were deemed complete by operation of law on March 22, 1998 and on January 20, 1999, respectively. IV. What Are the Administrative Requirements Associated With This Action? A. Executive Order 12866 The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled ``Regulatory Planning and Review.'' B. Executive Order 12875 Enhancing the Intergovernmental Partnership Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds [[Page 32421]] necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.'' Today's rule does not create a mandate on State, local, or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule. C. Executive Order 13045 Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be ``economically significant'' as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks. D. Executive Order 13084 Consultation and Coordination With Indian Tribal Governments Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule. E. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). F. Unfunded Mandates Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre- existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. G. Submission to Congress and the Comptroller General 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 Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule 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. This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2). H. Audit Privilege and Immunity Law Nothing in this action should be construed as making any determination or expressing any position regarding Colorado's audit privilege and penalty immunity law (sections 13-25-126.5, 13-90-107, and 25-1-114.5 Colorado Revised Statutes (C.R.S.); S.B. 94-139, effective June 1, 1994) or its impact upon any approved provision in the SIP, including the submittal at issue here. The action taken herein does not express or imply any viewpoint on the question of whether there are legal deficiencies in this or any other Clean Air Act program resulting from the effect of Colorado's audit privilege and immunity law. A State audit privilege and immunity law can affect only State [[Page 32422]] enforcement and cannot have any impact on federal enforcement authorities. EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 114, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the State Plan, independently of any State enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by a State audit privilege or immunity law. I. Petitions for Judicial Review 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 August 16, 1999. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, and Volatile organic compounds. Dated: June 2, 1999. Carol Rushin, Acting Regional Administrator, Region VIII. Part 52, Chapter I, title 40 of the Code of Federal Regulations 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)(87) to read as follows: Sec. 52.320 Identification of plan. * * * * * (c) * * * (87) On September 16, 1997, the Governor of Colorado submitted revisions to Regulations No. 3 and 7 and the Common Provisions Regulation to update the State's list of negligibly reactive volatile organic compounds (VOCs) and to consolidate the list of negligibly reactive VOCs from Regulations No. 3 and 7 into the Common Provisions Regulation. The Governor also submitted revisions to Parts A and B of Regulation No. 3 on September 16, 1997 to amend the definition of ``applicable requirement'' and to correct typographical errors. On August 19, 1998, the Governor submitted revisions to the Common Provisions Regulation to update its list of negligibly reactive VOCs. The Governor also submitted revisions to Regulation No. 7 to repeal the requirements for control of VOC emissions from dry cleaning facilities using perchloroethylene as a solvent. (i) Incorporation by reference. (A) Common Provisions Regulation, 5 CCR 1001-2, Section I.G., definition of ``negligibly reactive VOCs (NRVOCs)'' and subsection h. of the definition of ``net emissions increase,'' adopted 12/21/95, effective 3/1/96. (B) Regulation No. 3, ``Air Contaminant Emission Notices,'' 5 CCR 1001-5, adopted 12/21/95, effective 3/1/96, as follows: Part A, subsection h. of the definition of ``net emissions increase'' in Section I.B.37.; and Part B, Section IV.D.4. (C) Regulation No. 7, ``Emissions of Volatile Organic Compounds,'' 5 CCR 1001-9, Section II.B., adopted 12/21/95, effective 3/1/96. (D) Regulation No. 3, ``Air Contaminant Emission Notices,'' 5 CCR 1001-5, adopted 6/20/96, effective 8/30/96, as follows: Part A, definition of ``applicable requirement'' in Section I.B.9., definition of ``major source (for the purposes of Part C--operating permits)'' in Section I.B.59., and Section V.C.12; and Part B, Section III.D.2. (E) Common Provisions Regulation, 5 CCR 1001-2, Section I.G., definition of ``negligibly reactive VOCs (NRVOCs)'' adopted 11/21/96, effective 1/30/97. (F) Regulation No. 7, ``Emissions of Volatile Organic Compounds,'' 5 CCR 1001-9, Section XII., adopted 11/21/96, effective 1/30/97. [FR Doc. 99-15161 Filed 6-16-99; 8:45 am] BILLING CODE 6560-50-P