[Federal Register Volume 77, Number 11 (Wednesday, January 18, 2012)]
[Rules and Regulations]
[Pages 2466-2469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-713]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0588; FRL-9614-8]


Approval, Disapproval and Promulgation of Air Quality 
Implementation Plans; Colorado: Smoke, Opacity and Sulfur Dioxide Rule 
Revisions; Regulation 1

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: EPA is partially approving and partially disapproving State 
Implementation Plan (SIP) revisions to Colorado's Regulation 1. The 
partial approval of the State's revisions allows for the use of 
obscurants during military exercises at the Fort Carson Military Base 
and Pin[oacute]n Canyon Maneuver Site in Colorado when precautionary 
steps are taken during the exercise to maintain air quality. EPA 
approves the State's revised determination of averaged over time 
emission rates and the expansion of recordkeeping requirements. EPA, 
however, is disapproving the revised provision governing fuel burning 
equipment. These revisions were adopted by the State of Colorado on 
July 21, 2005 and submitted to EPA on August 8, 2006. The proposed 
partial approval and partial disapproval appeared in the Federal 
Register on August 10, 2011 (76 FR 49391). EPA has determined that the 
approved revisions in Colorado's submittal are consistent with the 
Clean Air Act (CAA). This action is being taken under section 110 of 
the Clean Air Act.

DATES: Effective date: This final rule is effective February 17, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2011-0588. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through 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, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6022, [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 2467]]

Table of Contents

I. Summary of SIP Revisions
II. Response to Comments
III. Section 110(l) of the CAA
IV. Final Action
V. Statutory and Executive Orders Review

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    The words EPA, we, us or our mean or refer to the United States 
Environmental Protection Agency.
    The initials SIP mean or refer to State Implementation Plan.
    The words State or Colorado mean the State of Colorado, unless the 
context indicates otherwise.
    The initials NSR mean or refer to New Source Review, the initials 
PSD mean or refer to Prevention of Significant Deterioration and the 
initials NAAQS mean or refer to National Ambient Air Quality Standards.
    The initials CO mean Carbon Monoxide, NO2 mean Nitrogen 
Dioxide and SO2 mean Sulfur Dioxide.
    The initials BACT mean Best Available Control Technology.
    The word Base means United States Army Fort Carson Military Base 
and the word PCMS means Pin[oacute]n Canyon Maneuver Site.
    The initials CEM mean Continuous Emission Monitoring.

I. Summary of SIP Revisions

    Colorado's Regulation 1 governs opacity, particulates, sulfur 
dioxide (SO2), and carbon monoxide (CO) emissions from 
sources. Colorado adopted revisions to Regulation 1 on July 21, 2005 
and submitted them to EPA on August 8, 2006. The State revised 
regulations regarding the use of smoke during military operations, 
equipment requirements and work practices (abatement and control 
measures) intended to control the emissions of particulates, smokes and 
SO2 from new and existing stationary sources.
    The revision also provides a new numbering scheme for each section 
of the regulation. Previously, subsections were designated only by the 
letter or number (for example, A or 1) assigned to that subsection. In 
the revision, every subsection is designated by full reference to it 
(for example, I.A or I.A.1).
    Section I.A. provides that Regulation 1 provisions are applicable 
statewide. An exception is made if a provision within Regulation 1 is 
made specifically applicable to attainment, attainment/maintenance or 
nonattainment areas. Consistent with its use of the term elsewhere, the 
State added the attainment/maintenance nomenclature as a revision to 
Section I.A.
    The State adopted EPA test methods number 1 through 9 (40 CFR part 
60, appendix A-4) as it is applied to Standards of Performance for 
Steel Plants: Electric Arc Furnaces (40 CFR 60.275).
    In the ``Background'' section of our proposed rule for these 
Regulation 1 revisions (76 FR 49391), we said that the State had 
submitted a revision to Section II.A.1 requiring sources to use EPA 
Test Method 9 to determine opacity. Originally, the State had added 
language to the section stating that the use of the test method shall 
not preclude the use of other credible evidence. The use of other 
credible evidence was suggested by EPA during the State's drafting of 
the revisions. The intent of the suggestion was to clarify that the use 
of the test method was not the only evidence that could be used to 
determine opacity. The State decided that the addition of the credible 
evidence wording was unnecessary because Regulation 1 is subject to the 
credible evidence provisions found in the State's Common Provisions. 
Therefore, the State removed the credible evidence reference from their 
revisions to Regulation 1, and section II.A.1 was unchanged in this 
revision. The ``Proposed Action'' section of our notice did not propose 
action on this section, correctly reflecting that no substantive change 
to this section had been made.
    Section II.A.3 was revised to clarify that pilot plants and 
experimental operations shall not emit particulate matter in excess of 
30 percent opacity for more than six minutes during a sixty minute time 
period. Prior to the revision the sixty minute time period had not been 
defined.
    The State revised Regulation 1 to address the United States Army 
Fort Carson Military Base's (Base's) need to use military obscurants 
during training while, at the same time, maintaining the air quality in 
areas accessible to the public near the military base. Section II.A of 
Regulation 1 prior to the revision set general standards for all 
sources prohibiting emissions into the atmosphere of any air pollutant 
which is in excess of 20% opacity. However in 1998 the State revised 
Regulation 1 in recognition that obscurant generation training by the 
United States Army purposefully intends to be at or near 100 percent 
opacity. Section II.D set specific limitations for the use of 
obscurants at the Base and the Pin[oacute]n Canyon Maneuver Site (PCMS) 
at 100 percent opacity subject to specified limitations and conditions. 
These included using a buffer zone around the military's training 
operation and limitation of the quantity of obscurant being generated.
    The August 8, 2006 submittal revised Section II. of Regulation 1 by 
removing the daily limitation to the use of obscurants, and replaced a 
three-kilometer buffer zone within the military training area where 
obscurants could not be generated with a prohibition on transport of 
visible emissions from obscurants outside the boundaries of the 
facilities in order to protect the air quality in public areas outside 
the military boundary.
    Section III.A.1.d, prior to its revision by the State, stated that 
if two or more fuel burning units connect to any opening, the maximum 
allowable emission rate shall be calculated on a process rate of pound 
per million heat input (BTU) basis. The State revised this so that the 
maximum allowable emission rate shall be calculated on a design rate of 
pounds per hour.
    A revision to Section III.B.2.a of Regulation 1 clarified the areas 
where an incinerator emission standard applies. Previously, the 
emission rate limitation of 0.10 grain of particulate matter per 
standard cubic foot applied only to incinerators located in 
nonattainment areas. The revision, consistent with changes elsewhere, 
included attainment/maintenance areas as well.
    The August 8, 2006 submittal changed Section III.C.1.a. regarding 
manufacturing processes emission rates, to clarify that the 
applicability of the section is to process equipment with a design rate 
of 30 tons per hour or less.
    Under the revision averaging times for existing sources of 
SO2 (unless specified in other sections of Regulation 1) 
shall be a three hour rolling average (Section VI.A.1). Prior to the 
August 8, 2006 submittal only sources utilizing a CEM were subject to 
the 3 hour rolling average. Requirements regarding frequency of fuel 
sampling were eliminated from this section. Recordkeeping and reporting 
requirements were modified in Section VI.A.5 to allow the State to 
require a longer period than the two years for keeping records on site.
    We noted in the ``Background'' section of our proposed rule for 
these Regulation 1 revisions (76 FR 49391), that the State had 
submitted a revision to Section VI.B.4.i that addressed emission 
limitations for new cement manufacturing sources. This revision was 
removed by the State prior to the submittal of the revisions to EPA on

[[Page 2468]]

August 8, 2006. The State decided that new cement manufacturing plants 
will be included in the State's NSR permit program that will include 
more stringent SO2 emissions than are established in 
Regulation 1. Therefore, the State removed as unnecessary and redundant 
the reference to new cement manufacturing plants in Section VI.B.4.i. 
The ``Proposed Action'' section of the notice did not propose action on 
this section, correctly reflecting that no substantive change had been 
made.
    In Section VIII.A., Applicability, the reference to the U.S. 
Department of Energy, Rocky Flats Environmental Technology Site and 
Gates Rubber Company as sources using oil as a backup fuel is deleted 
since the sources no longer operate in the Denver, Colorado 
metropolitan area.

II. Response to Comments

    EPA did not receive comments regarding our proposed rule for 
Colorado's Regulation 1 revisions.

III. 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 National Ambient Air Quality Standards (NAAQS) 
or any other applicable requirement of the Act. The Colorado SIP 
revisions being approved that are the subject of this action do not 
interfere with attainment of the NAAQS or any other applicable 
requirement of the Act. In regard to the August 8, 2006 submittal, EPA 
is approving several revisions to the State's Regulation Number 1. 
These portions do not relax the stringency of the Colorado SIP. In 
particular, the State reinstated previous SO2 limits, where 
we had disapproved subsequent relaxations that the State submitted. 
Therefore, this action satisfies the requirements of section 110(l).

IV. Final Action

    We are not acting on purported substantive revisions made to 
Section II.C. regarding the State's Open Burning regulation. Upon 
review of the revisions, the language was unchanged from a previous 
revision the State had made to its Open Burning regulations under the 
Smoke and Opacity section of Regulation 1. EPA approved this revision 
in an earlier action (76 FR 4540, January 26, 2011). EPA therefore 
considers that no substantive revision was submitted for Section II.C. 
As discussed above, no substantive changes were made to sections II.A.1 
and VI.B.4.i.

What EPA Is Approving

    We are approving the new numbering scheme for Regulation 1. This 
approval does not constitute approval of any renumbered provisions that 
were not substantively modified, including sections II.A.1, II.C, and 
VII.B.4.i. We are approving the State's incorporation by reference into 
the SIP of EPA test method 9.
    We are also approving the use of obscurants by the United States 
Army for military exercises at Fort Carson and PCMS under the 
prescribed conditions stated in Section II.D. The use of design rates 
for determining allowable emissions rates for manufacturing processes 
as defined in Section III.C.1.a of Regulation 1 is also approved.
    The revision to the default averaging time (3 hour rolling average) 
for existing sources of SO2 (Section VI.A.1) is approved. 
The modification to recordkeeping and reporting requirements in Section 
VI.A.5 is also approved. The reinstatement of Section VI.B.5, 
requirements for new sources of SO2 emissions not regulated 
elsewhere in Regulation 1, is approved.
    EPA is approving the deletion of the Rocky Flats Environmental 
Technology Site and the Gates Rubber Company in Section VIII.A. Minor 
grammatical revisions made throughout the revisions are also being 
approved. The State's use of the term ``attainment/maintenance'' area 
in Sections I.A., III.B.2.a, IV.D.2, and IX is approved.

What EPA Is Disapproving

    EPA is disapproving the revision to Section III.A.1.d regarding the 
maximum allowable emission rate for multiple fuel units. We did not 
receive information from the State showing that changing the method for 
calculating emissions would not result in an increase in emissions. The 
State considered the issue and realized that the likelihood of two 
units venting to one stack where a pound per hour emission rate was 
needed would be rare. Therefore, the State did not provide the 
information and EPA is disapproving the revision to Section III.A.1.d

V. Statutory and Executive Orders Review

    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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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). This action 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 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.
    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.

[[Page 2469]]

272 note) do not apply. 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. section 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. 
section 804(2).
    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 March 19, 2012. 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: December 20, 2011.
James B. Martin,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart G--Colorado

0
2. Section 52.320 is amended by adding paragraph (c)(121) to read as 
follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (121) On August 8, 2006, the State of Colorado submitted revisions 
to Colorado's 5 CCR 1001-3, Regulation 1, that allows for the use of 
obscurants during military exercises at the Fort Carson Military Base 
and Pin[oacute]n Canyon Maneuver Site in Colorado while precautionary 
steps are taken during the exercise to maintain air quality. The State 
modified the equipment requirements and work practices (abatement and 
control measures) in Regulation 1 intended to control the emissions of 
particulates, smokes and SO2 from new and existing 
stationary sources. Consistent with its use of the term elsewhere, the 
State added the attainment/maintenance nomenclature. The revision also 
provides a new numbering scheme for each section of the regulation.
    The State adopted EPA test method 9 (part 60 of this title, 
Appendix A-4) as it is applied to Standards of Performance for Steel 
Plants (Sec.  60.275a of this title). The State revised manufacturing 
process emission rates, to clarify that the applicability of the 
section is to process equipment with a design rate of 30 tons per hour 
or less. The averaging time for emission standards of all existing 
sources of SO2 shall be a three hour rolling average. New 
sources of SO2 not specifically regulated within Regulation 
1 are limited to two tons per day and are subject to BACT.
    (i) Incorporation by reference.
    (A) 5 CCR 1001-3, Regulation 1, Emission Control for Particulate 
Matter, Smoke, Carbon Monoxide, and Sulfur Oxides, Section I., 
Applicability: Referenced Federal Regulations; Section II., Smoke and 
Opacity; Section III., Particulate Matter (except Subsection 
III.A.1.d.); Section IV., Continuous Emission Monitoring Requirements 
for New or Existing Sources; Section V., Emission Standards for 
Existing Iron and Steel Plant Operations; Section VI., Sulfur Dioxide 
Emission Regulations; Section VII., Emission Regulations for Certain 
Electric Generating Stations Owned and Operated by the Public Service 
Company of Colorado; Section VIII., Restrictions On The Use of Oil as a 
Backup Fuel; effective October 2, 2005.

[FR Doc. 2012-713 Filed 1-17-12; 8:45 am]
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