[Federal Register Volume 59, Number 220 (Wednesday, November 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28291]
[[Page Unknown]]
[Federal Register: November 16, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO9-3-5603; FRL-5106-6]
Approval and Promulgation of Air Quality Implementation Plans;
Colorado; Regulation 7
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions to the Colorado Ozone
State Implementation Plan (SIP) submitted by the Governor on September
27, 1989, and August 30, 1990. The revisions consist of amendments to
Regulation No. 7, ``Regulation To Control Emissions of Volatile Organic
Compounds.'' In its review of the September 27, 1989 State submittal,
EPA identified several areas where the regulation still did not meet
EPA requirements. On August 30, 1990, the State submitted additional
revisions to Regulation No. 7 to address these deficiencies. This
Federal Register action applies to both of these submittals. The
amendments were made to conform Regulation No. 7 to federal
requirements, and to improve the clarity and enforceability of the
regulation. EPA's approval will serve to make the revisions federally
enforceable and was requested by the State of Colorado.
DATES: Comments must be received on or before December 16, 1994.
ADDRESSES: Written comments should be addressed to: Douglas M. Skie,
Chief Air Programs Branch (8ART-AP), United States Environmental
Protection Agency, Region VIII, 999 18th Street, suite 500, Denver,
Colorado 80202-2466.
Copies of the documents relevant to this action are available for
public inspection between 8 a.m. and 4 p.m., Monday through Friday at
the following office: United States Environmental Protection Agency,
Region VIII, Air Programs Branch, 999 18th Street, suite 500, Denver,
Colorado 80202-2466.
FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Programs Branch (8ART-
AP), United States Environmental Protection Agency, Region VIII, 999
18th Street, Suite 500, Denver, Colorado 80202-2466 (303) 293-1814.
SUPPLEMENTARY INFORMATION: Section 110(a)(2)(H)(i) of the Clean Air Act
(CAA), as amended in 1990, provides the State the opportunity to amend
its SIP from time to time as may be necessary. The State is utilizing
this authority of the CAA to update and revise existing regulations
which are a part of the SIP.
I. Background
On March 3, 1978, EPA designated the Denver-Boulder metropolitan
area as nonattainment for the National Ambient Air Quality Standards
(NAAQS) for ozone (43 FR 8976). This designation was reaffirmed by EPA
on November 6, 1991 (56 FR 56694) pursuant to section 107(d)(1) of the
CAA, as amended in 1990. Furthermore, since the Denver-Boulder area had
not shown a violation of the ozone standard during the three-year
period from January 1, 1987 to December 31, 1989, the Denver-Boulder
area was classified as a ``transitional'' ozone nonattainment area
under section 185A of the amended Act. In order to meet the Reasonably
Available Control Technology (RACT) requirements of the CAA,
transitional areas must correct any RACT deficiencies regarding
enforceability.
The current Colorado Ozone SIP was approved by EPA in the Federal
Register on December 12, 1983 (48 FR 55284). The SIP contains
Regulation No. 7 (Reg 7), which applies RACT to stationary sources of
Volatile Organic Compounds (VOC). Reg 7 was adopted to meet the
requirements of Section 172(b)(2) and (3) of the 1977 CAA (concerning
the application of RACT to stationary sources.1) However, the
approved Ozone SIP did not rely on the emissions reduction credit that
Reg 7 would produce in order to demonstrate attainment; rather, the SIP
relied only on mobile source controls in order to demonstrate
attainment.
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\1\The requirement to apply RACT to existing stationary sources
of VOC emissions was carried forth under the amended Act in section
172(c)(1).
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During 1987 and 1988, EPA Region VIII conducted a review of Reg 7
for consistency with the Control Techniques Guidelines documents (CTGs)
and regulatory guidance, for enforceability and for clarity. The CTGs,
which are guidance documents issued by EPA, set forth measures that are
presumptively RACT for specific categories of sources that emit VOCs. A
substantial number of deficiencies were identified in Reg 7. In 1987,
EPA published a proposed policy document that included, among other
things, an interpretation of the RACT requirements as they applied to
VOC nonattainment areas (52 FR 45044, November 24, 1987, Post-87
Policy). On May 25, 1988, EPA published a guidance document entitled
``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations, Clarification to Appendix D of the November 24, 1987
Federal Register Notice'' (the ``Blue Book''). A review of Reg 7
against these documents uncovered additional deficiencies in the
regulation.
On May 26, 1988, EPA notified the Governor of Colorado that the
Carbon Monoxide (CO) SIPs for Colorado Springs and Fort Collins were
inadequate to achieve the CO NAAQS. In that letter, EPA also notified
the Governor that the Ozone SIP had significant deficiencies in design
and implementation, and requested that these deficiencies be remedied.
EPA did not make a formal call for a revised Ozone SIP in the May 1988
letter,2 even though the Denver-Boulder area was, and continues to
be, designated nonattainment for ozone. The reason for this decision
was that no violations of the ozone NAAQS had been recorded in the
nonattainment area for the previous three years. However, EPA indicated
that the deficiencies, if uncorrected, could jeopardize the area's
ability to obtain eventual redesignation as an attainment area for
ozone.
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\2\Under the pre-amended Act, EPA had the authority under
section 110(a)(2)(H) to issue a ``SIP Call'' requiring a State to
correct deficiencies in an existing SIP. Section 110(a)(2)(H) was
not modified by the 1990 Amendments. In addition, the amended Act
contains new section 110(k)(5) which also provides authority for a
SIP Call.
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1. 1989 SIP Revision Submittal
In a letter dated September 27, 1989, the Governor of Colorado
submitted revisions to Reg 7 to partially address EPA's concerns with
the Ozone SIP. A detailed description of the specific revisions to the
regulation is contained in the Docket for this Federal Register
document. Revisions were made to the following sections of Reg 7:
7.I Applicability
7.II General Provisions
7.III General Requirements for Storage and Transfer of Volatile
Organic Compounds
7.IV Storage of Highly Volatile Organic Compounds
7.V Disposal of Volatile Organic Compounds
7.VI Storage and Transfer of Petroleum Liquid
7.VIII Petroleum Processing and Refining
7.IX Surface Coating Operations
7.X Use of Solvents for Degreasing and Cleaning
7.XI Use of Cutback Asphalt
7.XII Control of VOC Emissions from Dry Cleaning Facilities Using
Perchloroethylene As a Solvent
7.XIII Graphic Arts
7.XIV Pharmaceutical Synthesis
7.XV Control of Volatile Organic Compound Leaks from Vapor
Collection Systems Located At Gasoline Terminals, Bulk Plants, and
Gasoline Dispensing Facilities
Appendix A Criteria for Control of Vapors from Gasoline Transfer to
Storage Tanks
Appendix B Criteria for Control of Vapors from Gasoline Transfer at
Bulk Plants (Vapor Balance System)
Appendix D Test Procedures for Annual Pressure/Vacuum Testing of
Gasoline Transport Trucks
In addition, the following new emission sources and appendices were
added to Reg 7:
7.IX.A.7 Fugitive Emission Control
7.IX.N. Flat Wood Paneling Coating
7.IX.O. Manufacture of Pneumatic Rubber Tires
7.XI.D. Coal Tar
Appendix E Emission Limit Conversion Procedure
In a letter dated September 27, 1989, the Governor of Colorado
submitted revisions to Reg 7 to address EPA's concerns with how the
State was addressing RACT for major non-CTG sources of VOC. A detailed
description of the specific revisions to the regulation is contained in
the Docket for this Federal Register document. Based upon the reasons
stated below, EPA is approving the State's non-CTG rule for its
strengthening effect on the SIP.
Areas of the country which requested extensions of the attainment
date for the ozone NAAQS beyond the initial 1982 target specified in
the CAA, as amended in 1977, were required to submit SIP revisions by
July 1, 1982 (46 FR 7182, January 22, 1981). This requirement applied
to the Denver-Boulder metropolitan area. The 1982 submittal was
required to include RACT regulations for all sources of VOC covered by
a CTG and for all remaining stationary sources in the nonattainment
area with potential to emit VOC emissions (before control) of 100 tons
per year or greater (``major non-CTG sources'').
This 1982 Ozone SIP revision was submitted to EPA on June 24, 1982.
Among other deficiencies, the SIP did not contain regulations requiring
RACT on major non-CTG sources of VOC. EPA noted this deficiency in
February 3, 1983, but proposed approval of the submitted SIP revision
(48 FR 5030). The State responded by committing to adopt RACT for any
VOC sources covered by a CTG and EPA approved this revision on December
12, 1983 (48 FR 55284).
EPA's review of the Ozone SIP during 1987 and 1988 revealed that
the intent of the requirement for RACT for major non-CTG sources had
not been met. EPA tentatively identified several stationary sources
which should have applied RACT since 1982, but were as yet unregulated.
Reg 7 contained no mechanism for requiring control of these sources,
other than a ``General Emission Limitation,'' for sources not
specifically regulated by Reg 7, of 450 pounds per hour or 3000 pounds
per day. This general limitation allowed sources to have actual
emissions of up to nearly 550 tons per year before control was
required. This provision clearly did not meet the 1982 SIP requirement,
which was reiterated in the May 25, 1998, Appendix D Clarification
document.
To address this concern, the State revised Reg 7 to delete the
existing ``General Emission Limitation'' and to require RACT for
stationary sources with potential emissions of VOC of 100 tons per year
or more, under certain conditions. Section 7.II.C. applies this new
RACT requirement to sources not specifically covered by the regulation
as follows:
(a) Sources with actual emissions of 100 tons per year or more of
VOCs must apply RACT.
(b) Sources with potential emissions of 100 tons per year or more
of VOCs, but with actual emissions of less than 100 tons per year, may
avoid having to apply RACT by obtaining a federally enforceable permit
to limit production or hours of operation to keep actual emissions
below 100 tons per year.
(c) Sources with potential emissions of 100 tons per year or more
of VOCs, but with actual emissions of less than 50 tons per year on a
12-month rolling average, may avoid RACT and permit requirements by:
(1) Submitting a report each year demonstrating that the 50 tons per
year threshold has not been exceeded; and (2) maintaining monthly
records of VOC usage and emissions to enable the State to verify these
reports.
The State developed this approach to regulating 100 tons per year
non-CTG sources after receiving comments on the proposed Reg 7
revisions from several industries in the Denver-Boulder area. These
sources indicated that their processes involved a number of non-CTG
category operations that are performed infrequently (such as painting
letters on four production units per year), resulting in low actual
emissions, but which would result in large potential emissions when
calculated on an 8760 hour per year basis.
EPA is approving section 7.II.C. of the State's rules for its
strengthening effect on the SIP. The submitted rule is stronger than
the pre-existing non-CTG RACT rule because it specifically applies to
sources that have a potential to emit more than 100 tons per year of
VOCs and that are not yet covered by a CTG. The rule requires those
sources to adopt RACT on a case-by-case basis. The previous rule, which
was a commitment of the State and did not directly affect non-CTG
sources, only applied to those sources for which EPA subsequently
issued a CTG. Therefore, the submitted rule strengthens the SIP because
it applies to major sources not covered by a CTG. It should be noted
that EPA is not addressing whether this rule establishes RACT for major
stationary sources not subject to a CTG.
The Denver-Boulder metropolitan area is classified as
``transitional'' for ozone under the CAA. This means that the area is
legally designated as an ozone nonattainment area, although it did not
experience violations of the ozone NAAQS during the 1987-1989 period
used to classify areas under the 1990 CAA amendments. Therefore, the
Denver-Boulder metropolitan area is not subject to the RACT fix-up
requirement of Section 182(a)(2)(A) of the CAA.
Under the transitional ozone classification, EPA must review the
available ambient air quality data and make a determination whether the
Denver-Boulder metropolitan area has, in fact, attained the ozone
NAAQS. In a letter dated October 22, 1992, from Jack McGraw, EPA Region
VIII Acting Regional Administrator, to Governor Roy Romer, EPA Region
VIII advised the State that EPA had reviewed ambient air quality data
which had been entered by the State into the Aerometric Information and
Retrieval System (AIRS) national database. EPA further advised that
these data indicated that the Denver-Boulder metropolitan transitional
ozone area, as defined in the November 6, 1991 Federal Register (56 FR
56694, codified at 40 CFR 81.306), had not violated the ozone NAAQS
during the period beginning January 1, 1987, and ending on December 31,
1991. EPA's October 22, 1992 letter was not a determination that the
Denver-Boulder nonattainment area had met the CAA's Section
107(d)(3)(E) criteria for redesignation to attainment, but rather
served as an affirmation that no violation of the ozone standard for
this area was found.
The State has indicated, in the current State-EPA Agreement (SEA),
that it will begin developing an ozone redesignation request and
maintenance plan for the Denver-Boulder metropolitan area. The
maintenance plan must demonstrate that the ozone NAAQS will be
maintained for an initial period of 10 years after the redesignation
request is approved by EPA. The maintenance plan must be updated, after
8 years into the initial 10-year period, to demonstrate that the NAAQS
will be maintained for an additional 10 years. During the development
of the maintenance plan, the State may consider additional revisions to
the ozone control strategy in order to demonstrate maintenance of the
ozone standard; such revisions could include further modification of
the VOC control requirements of Reg 7. For a maintenance plan to be
approved and the Denver-Boulder metropolitan area to be redesignated as
attainment pursuant to Section 107(d)(3)(E), the State may have to
develop specific RACT regulations for major non-CTG sources.
Information available to EPA suggests that there has been growth in
emissions from some non-CTG sources in the area; RACT regulations for
these sources may be necessary to ensure maintenance of the NAAQS for
the initial 10-year redesignation attainment period, as is required by
Section 175A of the Act.
2. 1990 SIP Revision Submittal
In general, the revised Reg 7 ( as submitted by the Governor on
September 27, 1989) met the CAA requirements, which were interpreted in
the CTGs, the Blue Book, and the Post-87 Policy. However, in its
review, EPA identified two remaining issues where the regulation did
not explicitly follow EPA guidance: A. The compliance schedule, and B.
Clarification of the Graphic Arts definition for potential to emit.
These remaining two issues were addressed by the State in its August
30, 1990 submittal and are described below.
In a letter dated August 30, 1990, the Governor of Colorado
submitted revisions to Reg 7 to address EPA's remaining concerns with
the September 27, 1989 Ozone SIP revision. A detailed description of
the additional specific revisions to Reg 7 is contained in the Docket
for this Federal Register document. Revisions were made to the
following sections of Reg 7:
7.I Applicability
7.XI Use of Cutback Asphalt
7.XIII Graphic Arts
A. Compliance Schedule: Reg 7 did not contain an explicit deadline
for compliance with the revised regulation. In response to EPA
comments, the State adopted additional revisions (Section 7.I.B. and
7.I.C.) to Section 7.I. (Applicability) of Reg 7, requiring all sources
to come into compliance with the revised Reg 7 by October 31, 1991. EPA
considered a 2-year timeframe for compliance with the Reg 7 revisions
to be acceptable because no ozone SIP Call was made in 1988 (no
violations of the ozone NAAQS have been monitored in the Denver-Boulder
area since 1984) and thus, the revisions were not immediately necessary
for the area to attain the NAAQS. The 2-year compliance timeframe
applies only to the regulation revisions, and not to requirements which
existed prior to October 30, 1989. Sources which were in existence
prior to the regulation revisions and which were covered by the
regulations at that time were required to maintain compliance with
those provisions.
B. Graphic Arts definition: The Graphic Arts definition of
potential to emit, contained in Section 7.XIII.A.2. of Reg 7, was
somewhat unclear. The definition referenced the EPA requirement that
potential to emit be determined at maximum capacity before control (per
the Appendix D Clarification document), but also included a requirement
that potential emissions be based on historical records of solvent and
ink consumption (per the previous regulatory guidance document,
Guidance to State and Local Agencies in Preparing Regulations to
Control Volatile Organic Compounds from Ten Stationary Source
Categories, September, 1979). As a result, the definition could have
been interpreted to require potential to emit to be calculated at both
maximum and historical operating rates, which in most cases will be
different. EPA's interpretation of this definition was that potential
to emit should be calculated at maximum capacity before control;
historical records of solvent and ink consumption should be used to
determine VOC emissions at a given operating rate, not to determine the
historical maximum operating rate. The Reg 7 revisions, submitted by
the Governor on August 30, 1990, addressed this concern by not
including a reference to the historical records.
C. Capture Efficiency: As a final issue, on January 13, 1992, EPA
notified the State that, prior to proposing this action, it was
necessary to document the State's position with regard to capture
efficiency (CE) determination. During earlier reviews of the State's
VOC regulations, EPA Region VIII indicated that, because EPA had not
issued final, generally-applicable CE test methods, an acceptable State
approach to CE was a commitment to develop test methods consistent with
the most recent EPA guidance on CE testing on a case-by-case basis as
needed, and a commitment to adopt test methods after EPA issued final
CE test methods. The CE provision adopted by the State in Section
IX.A.5.e of Reg 7 does address the requirement that testing for CE be
performed on a case-by-case basis, and that this testing be consistent
with EPA guidance. In a letter dated February 5, 1992, from John Leary,
Acting Director, Colorado Air Pollution Control Division, to Douglas
Skie, Chief, Air Programs Branch, EPA Region VIII, the State committed
to adopt and use all new CE methods as they are developed and
promulgated by EPA's rule-making process. In that same letter, the
State indicated that until changes are promulgated, the Air Pollution
Control Division will use the CE protocols that were published by EPA
on June 29, 1990 (55 FR 26814, codified at 40 CFR 52.741(a)(4)(iii) and
Appendix B).
Due to additional information received after the adoption of
revisions to Reg 7 in September, 1989, the State reconsidered its
regulation of coal tar under Section 7.XI. (Use of Cutback Asphalt). In
revisions submitted on August 30, 1990, Section 7.XI.D., covering coal
tar, was deleted. Regulation of coal tar is not covered by the CTG for
cutback asphalt use; EPA believes that it is not needed to meet the
RACT requirement of the CAA.3
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\3\Under section 193 of the amended CAA, States cannot delete
control requirements in effect prior to enactment of the amendments
unless the modification ensures equivalent or greater emission
reductions of the same air pollutant. By this same submittal, the
State has submitted additional control requirements that more than
compensate for any greater emissions that may result from the
deletion of the coal tar regulation.
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In this action, EPA is proposing to approve the State's VOC
definition as submitted in the 1989 and 1990 revisions to Reg 7.
However, on February 3, 1992, EPA published a revised definition of
volatile organic compounds (57 FR 3941). The definition excludes a
number of organic compounds from the definition of VOC on the basis
that they are of negligible reactivity and do not contribute to
tropospheric ozone formation. The State's definition excludes some, but
not all, of these compounds. Therefore, the State's definition of VOC
provides for the regulation of some compounds which are no longer
considered VOCs by EPA. In light of EPA's most recent definition of
VOC, EPA will not enforce against sources for failure to control the
emission of compounds that are exempt from the federal VOC definition.
EPA has informed the Region VIII States of the revised definition of
VOC and will request that future SIP revisions reflect the most recent
federal VOC definition.
Based on the above revisions, EPA believes that Colorado has met
the ozone RACT requirement of the CAA as it applies to the Denver-
Boulder metropolitan area. Colorado has corrected its RACT rule
deficiencies regarding enforceability.
This action was previously published as a Direct Final Rule on June
26, 1992 (57 FR 28614). This Direct Final Rule was withdrawn on August
12, 1992 (57 FR 36004) as EPA Region VIII received a letter, dated July
16, 1992, from William Owens, Executive Director of the Colorado
Petroleum Association (CPA), to Jeff Houk of EPA Region VIII,
expressing adverse comments. These comments will be considered by EPA
during the comment period, along with any other comments that are
received on this proposed rule.
II. Proposed Action
EPA proposes to approve Colorado's Ozone SIP revisions, submitted
by the Governor on September 27, 1989, and August 30, 1990. These
revisions consist of amendments to Reg 7.
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
any 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.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
The Agency has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments
to the Clean Air Act enacted on November 15, 1990. The Agency has
determined that this action conforms with those requirements
irrespective of the fact that the submittal preceded the date of
enactment.
Approval of this specific revision to the SIP does not indicate EPA
approval of the SIP in its entirety.
Interested parties are invited to comment on all aspects of this
proposed action.
Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of Colorado was approved by the Director of the
Federal Register on July 1, 1980.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 13, 1994.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 94-28291 Filed 11-15-94; 8:45 am]
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