[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 The State also repealed its requirements in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