[Federal Register Volume 65, Number 245 (Wednesday, December 20, 2000)]
[Rules and Regulations]
[Pages 79750-79752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32021]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0043a; FRL-6875-6]


Approval of Air Quality Implementation Plan Revisions and Section 
112(l) Program; Colorado; Issuance of Permits To Limit Potential To 
Emit Criteria and Hazardous Air Pollutants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving revisions to Colorado's construction 
permit requirements in Regulation No. 3 and hazardous air pollutant 
requirements in Regulation No. 8 of the State Air Quality Control 
Commission (AQCC) regulations, regarding permits to limit potential to 
emit criteria and hazardous air pollutants (HAPs). These revisions were 
submitted to EPA on April 26, 1996. Colorado submitted these revisions 
to create federally enforceable limits on criteria pollutants and HAPs, 
for both new and existing sources, through the State's construction 
permit program. EPA is approving the revisions to Regulation No. 3 
regarding criteria pollutants as part of Colorado's state 
implementation plan (SIP) under section 110 of the Clean Air Act (CAA).
    SIP approval under section 110 of the CAA, however, only extends to 
the control of HAPs that are criteria pollutants, such as volatile 
organic compounds or particulate matter, whereas section 112 of the CAA 
provides the underlying authority for controlling all HAPs listed in 
section 112(b) of the CAA. Therefore, the EPA is also approving the 
revisions to Regulation No. 3 and Regulation No. 8 under section 112(l) 
of the CAA.

DATES: This direct final rule is effective on February 20, 2001 without 
further notice, unless EPA receives adverse comments by January 19, 
2001. If adverse comments are received, EPA 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: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection 
Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver, Colorado 
80202. Copies of the documents relevant to this action are available 
for public inspection during normal business hours at the Air and 
Radiation Program, Environmental Protection Agency, Region VIII, 999 
18th Street, Suite 300, Denver, Colorado, 80202. Copies of the State 
documents relevant to this action are also available for public 
inspection at the Colorado Department of Public Health and Environment, 
Air Pollution Control Division, 4300 Cherry Creek Drive South, Denver, 
Colorado 80246-1530.

FOR FURTHER INFORMATION CONTACT: Megan Williams, EPA, Region VIII, 
(303) 312-6431.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' are used, we mean the Environmental Protection 
Agency.

Table of Contents

I. Background Information
    A. What Action is EPA Taking?
    B. What Are the Procedural Requirements Colorado Must Follow for 
EPA Approval?
    C. What Was Included in Colorado's Submittal?
    D. Why is EPA Approving These Revisions to Regulation No. 3 and 
Regulation No. 8?
II. Final Action
III. Administrative Requirements

I. Background Information

A. What Action Is EPA Taking?

    In this action, we are approving Colorado's revisions to AQCC 
Regulations No. 3 and 8 regarding permits to limit potential to emit 
criteria and hazardous air pollutants. We are approving, under section 
112(l) of the CAA, the provisions in Regulations No. 3 and 8 that 
pertain to limiting potential to emit HAPs. We are also approving, 
under section 110 of the CAA, the revisions to Colorado's construction 
permit rules in Regulation No. 3 that provide for limiting potential to 
emit criteria pollutants.

B. What Are the Procedural Requirements Colorado Must Follow for EPA 
Approval?

    Section 110(k) of the CAA authorizes our action on a submission of 
SIP revisions. The CAA also requires that States observe certain 
procedural requirements in developing SIP revisions for submittal to 
EPA. Section 110(a)(2) of the CAA requires that the State adopt each 
SIP revision after reasonable notice and public hearing.
    Colorado held a public hearing on the proposed rule changes on 
March 16, 1995, continued on May 18, 1995. The changes were adopted by 
the AQCC directly after the May 18, 1995 hearing and were formally 
submitted to EPA by the Governor on April 26, 1996. We reviewed the 
submission against our completeness criteria in 40 CFR part 51, 
appendix V. We determined the submission was complete and notified the 
State in a letter dated July 3, 1996.

[[Page 79751]]

C. What Was Included in Colorado's Submittal?

    On April 26, 1996, Colorado submitted revisions to Regulations No. 
3 and 8 to EPA for approval. Specifically, the State requested approval 
of provisions to limit the potential to emit criteria and hazardous air 
pollutants. The provisions apply to new and modified stationary 
sources, and also allow existing sources (through the addition of 
section III.A.7 of Regulation No. 3, part B) to voluntarily request a 
construction permit to limit their potential to emit. These limits on 
potential to emit will potentially enable the source to avoid 
classification as a major source.
    The revisions to Regulations No. 3 and 8 include several provisions 
to ensure that permits containing limits on potential to emit will meet 
all applicable requirements and will be practically enforceable. For 
example, Regulation No. 8, part E, section IV.B.3 requires that all 
permit conditions for sources requesting voluntary limits on potential 
to emit HAPs must be at least as stringent as any applicable 
requirement in the Colorado SIP or that is otherwise federally 
enforceable (e.g., any section 112 or other CAA requirement). In 
addition, Regulation No. 8, part E, sections IV.G and IV.B.2 require 
continuous compliance with emission limits and practically enforceable 
permit conditions for all permits issued to sources requesting limits 
on potential to emit HAPs. Furthermore, pursuant to the provisions in 
Regulation No. 3, part B, section IV.C, all permits to limit potential 
to emit criteria or hazardous air pollutants are subject to public 
participation requirements and will be sent to the EPA for comment.
    Thus, Colorado's revisions to Regulations No. 3 and 8 to create 
limits on potential to emit criteria and hazardous air pollutants were 
made to ensure that such permits would meet all applicable requirements 
and be both practically and federally enforceable.

D. Why is EPA Approving These Revisions to Regulation No. 3 and 
Regulation No. 8?

    We are approving these revisions to Regulations No. 3 and 8 because 
the revisions are consistent with all requirements of the CAA and with 
EPA guidance. Specifically, we are approving the revisions to 
Regulation No. 3 that pertain to criteria pollutants as part of the SIP 
under section 110 of the CAA. Because we don't have authority under 
section 110 to approve provisions relating to HAPs, except for HAPs 
that are constituents of criteria pollutants, we are approving the 
provisions in Regulation No. 3 and Regulation No. 8 pertaining to 
creating limits on potential to emit HAPs under section 112(l) of the 
CAA.
    In the July 10, 1996 Federal Register (61 FR 36295-36298) EPA 
revised 40 CFR part 63, subpart E, to provide for approval of programs 
designed to limit sources' potential to emit hazardous air pollutants 
under section 112(l) of the CAA. We previously found that Colorado met 
all requirements for approval of a State program under section 112(l) 
for implementing and enforcing emission standards for HAPs, when we 
granted interim approval of Colorado's operating permit program under 
Title V of the CAA on January 24, 1995 (60 FR 4568). We found, in our 
review of the State's program, that it contained adequate authorities, 
adequate resources for implementation, and an expeditious compliance 
schedule and therefore met the requirements in section 112(l)(5) and 40 
CFR 63.91.
    The effect of this approval under sections 110 and 112(l) of the 
CAA will be that the relevant provisions of AQCC Regulations No. 3 and 
8 and the permits issued under these provisions will be federally 
enforceable. We reserve the right to deem permit conditions not 
federally enforceable. Such a determination will be based upon the 
permit, permit approval procedures, or permit requirements which do not 
conform with the permit program requirements or the requirements of our 
underlying regulations.

II. Final Action

    We are approving Colorado's provisions in Regulations No. 3 and 8 
to limit potential to emit HAPs (submitted on April 26, 1996) under 
section 112(l) of the CAA. Our approval under section 112(l) of the CAA 
includes the new section in Colorado's Regulation No. 8 titled ``Air 
Pollution Permits to Limit the Potential to Emit Hazardous Air 
Pollutants'' (Regulation No. 8, part E, section IV), and the associated 
provisions for issuing such permits in Colorado's Regulation No. 3.
    In addition, we are approving the revisions to Regulation No. 3 
that were included as part of Colorado's submittal and that pertain to 
criteria pollutants as part of the SIP under section 110 of the CAA. 
These revisions to Regulation No. 3, specifically, part B, sections 
III.A.4, III.A.7 and IV.C.4, allow sources to voluntarily request a 
permit to limit potential to emit criteria pollutants. We are not 
taking action under section 110 of the CAA on the revisions to 
Regulation No. 3, specifically, part B, section IV.C.1.c, that pertain 
only to hazardous air pollutants.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective February 20, 
2001 without further notice unless the Agency receives adverse comments 
by January 19, 2001.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Any parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on February 20, 2001 and no 
further action will be taken on the proposed rule.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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). For the same reason, this 
rule also does not

[[Page 79752]]

significantly or uniquely affect the communities of tribal governments, 
as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This 
rule will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999), because it merely approves a state rule implementing a 
federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. This rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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 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. 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). This rule will be effective February 20, 2001 unless EPA 
receives adverse written comments by January 19, 2001.
    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 February 20, 2001. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 8, 2000.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    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)(88) to read as 
follows:


Sec. 52.320  Identification of plan.

* * * * *
    (c) * * *
    (88) On April 26, 1996, the Governor of Colorado submitted 
revisions to Regulation No. 3 to allow a source to voluntarily request 
a permit to limit potential to emit and to require that such permits be 
subject to public participation.
    (i) Incorporation by reference.
    (A) Regulation No. 3, ``Air Contaminant Emissions Notices,'' 5 CCR 
1001-5, revisions adopted 5/18/95, effective 7/30/95, as follows: part 
B, sections III.A.4, III.A.7, and IV.C.4.

[FR Doc. 00-32021 Filed 12-19-00; 8:45 am]
BILLING CODE 6560-50-P