[Federal Register Volume 63, Number 57 (Wednesday, March 25, 1998)]
[Rules and Regulations]
[Pages 14357-14360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7640]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-5977-5]
Approval and Promulgation of Implementation Plans; Colorado;
Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is promulgating corrections to the State Implementation
Plan (SIP) for the State of Colorado. First, EPA is correcting its
January 21, 1997 rulemaking in which EPA approved several Colorado new
source review (NSR) SIP revisions. Specifically, pursuant to a December
17, 1996 request from the state of Colorado, EPA is removing from the
approved SIP two sections of Colorado's prevention of significant
deterioration (PSD) rules in Regulation No. 3. EPA is also disapproving
a provision in the State's definition of ``Federally enforceable'' in
Regulation No. 3 that EPA inadvertently failed to disapprove in its
January 21, 1997 rulemaking. The provision in that definition which is
being disapproved states that provisions which are not required by the
Federal Clean Air Act (Act) shall not be submitted as part of the SIP
and shall not be federally enforceable. This provision is being
disapproved because the Act provides that any provision approved by EPA
as part of the SIP is federally enforceable unless and until the State
requests, and EPA approves, a SIP revision removing such provision.
Second, EPA is correcting an October 5, 1979 rulemaking in which
EPA incorrectly listed Colorado House Bill 1109 as being approved as
part of the Colorado SIP.
Last, EPA is correcting a September 23, 1980 rulemaking, in which
EPA mistakenly replaced a Colorado SIP approval in 40 CFR 52.320 with a
Montana SIP approval.
EPA proposed these corrections for public comment on December 17,
1997, and no comments were received within the 30-day public comment
period.
EFFECTIVE DATE: This rule is effective on April 24, 1998.
ADDRESSES: Copies of the documents relative to this action are
available for inspection during normal business hours at the Air
Program, Environmental Protection Agency, Region VIII, 999 18th Street,
suite 500, Denver, Colorado 80202-2466 and The Air and Radiation Docket
and Information Center, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, at
(303) 312-6445.
SUPPLEMENTARY INFORMATION: On December 17, 1997, EPA proposed several
corrections to previous Colorado SIP approvals (62 FR 66046-49). EPA
received no public comments on the proposed actions within the 30-day
public comment period. EPA received one comment letter, from the
Colorado Air Pollution Control Division (APCD), after the close of the
public comment period. EPA discusses the APCD's comment letter in
section I.B. of this notice. The APCD's comment letter does not warrant
any change to the proposed action. Therefore, EPA is promulgating the
corrections to the Colorado SIP as proposed in the December 17, 1997
Federal Register. The following provides background information on the
specific corrections being made to the Colorado SIP and EPA's
justification for these corrections:
I. Corrections to EPA's January 21, 1997 Rulemaking
On January 21, 1997, EPA promulgated approval of five Colorado SIP
revisions submitted on November 12, 1993, August 25, 1994, September
29, 1994, November 17, 1994, and January 29, 1996. (See 62 FR 2910-
2914.) All of these SIP submittals contained revisions to the State's
NSR and PSD provisions in Parts A and B of Colorado Regulation No. 3.
A. Correction to Exclude Sections V.B. and VII.A.5. of Part B of
Colorado Regulation No. 3 From the SIP
Although the State's November 12, 1993 submittal discussed above
only included a few changes to the State's construction permitting
requirements, the State submitted its construction permitting
regulations (including its PSD rules) in their entirety because the
State had also restructured and renumbered Regulation No. 3 in this
submittal. Subsequently, on December 17, 1996, the State submitted a
request to exclude two sections of Part B of Regulation No. 3 from its
November 12, 1993 SIP submittal, specifically Sections V.B. and
VII.A.5. (referred to herein as Sections V.B. and VII.A.5. or as ``the
two provisions.'') On January 21, 1997, EPA's approval of the State's
November 12, 1993 SIP submittal was published (62 FR 2910). The
approval did not exclude Sections V.B. and VII.A.5.
Section V.B. of Part B of Regulation No. 3 applies the Class I
sulfur dioxide PSD increment to certain pristine areas
[[Page 14358]]
in Colorado that are not designated Class I by the Federal PSD
regulations. This is not required by the Act or Federal PSD
regulations. Section VII.A.5. of Part B of Regulation No. 3 provides
that no new major stationary source or major modification shall
individually consume more than 75% of an applicable increment. No such
provision (or similar provision) is required by the Act or Federal PSD
regulations. Neither of the two provisions is necessary for the State
to demonstrate attainment and/or maintenance of the National Ambient
Air Quality Standards (NAAQS). Therefore, EPA believes that these two
provisions may be removed from the SIP.
In this instance, EPA believes it is appropriate to remove the two
provisions from the SIP pursuant to EPA's authority under section
110(k)(6) of the Act. Section 110(k)(6) of the Act provides as follows:
Whenever the Administrator determines that the Administrator's
action approving, disapproving, or promulgating any plan or plan
revision (or part thereof), area designation, redesignation,
classification, or reclassification was in error, the Administrator
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Such determination and the basis thereof
shall be provided to the State and public.
The State submitted its request well before EPA's final approval of
the State's November 12, 1993 SIP submittal was published in the
Federal Register or was otherwise announced to the public. Thus, EPA
had an opportunity to exclude the two provisions from the final
published rule, but failed to do so.
Although there may be instances where a request to withdraw
components of a SIP implicates the Act's requirement for State notice
and hearing, EPA does not believe this is one of them. First, these two
provisions had been part of the State's regulations for many years,\1\
but had been expressly excluded from the State's SIP submittals of
prior PSD revisions and had been expressly excluded from EPA's
rulemaking actions on those prior PSD rule revisions. (See 51 FR 31125,
September 2, 1986, and 56 FR 12850, March 28, 1991.) Second, the State
merely renumbered these two provisions at its July 15, 1993 hearing,
and there was no indication that the State intended to change course
and submit these two provisions to EPA for approval into the SIP.
Presumably, if the State had intended such a change in course, the
State would have focused its notice and public hearing on the two
provisions prior to adopting the renumbering of Regulation No. 3 and
submitting it to EPA. This did not occur, and the evidence suggests
that submittal of these two provisions to EPA was merely an oversight.
If EPA had reviewed the circumstances more carefully when it received
the State's December 17, 1996 letter, EPA could have corrected its
final rule before publication.
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\1\ The Colorado Air Quality Control Commission originally
adopted Section V.B. on March 10, 1983 and Section VII.A.5. on May
17, 1990.
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With respect to Section V.B., EPA also believes a correction is
necessary because Section V.B. (which, as stated above, applies the
Class I sulfur dioxide increment to certain pristine Class II areas in
Colorado) is inconsistent with the requirements of EPA's PSD
regulations. Specifically, 40 CFR 51.166(g) contains certain
requirements for redesignating an area from Class II to Class I, and
the State has not addressed those requirements for the areas listed in
Section V.B. Thus, EPA erred in approving Section V.B. as part of the
SIP. This position is consistent with EPA's prior rulemaking regarding
this provision. In a September 2, 1986 action, EPA did not approve this
provision into the SIP, explaining that the State had not followed the
specific procedures outlined in 40 CFR 51.166(g) for redesignating an
area from Class II to Class I. (See 51 FR 31125.)
For the reasons discussed above, EPA is correcting its January 21,
1997 SIP approval to remove Sections V.B. and VII.A.5. of Part B of
Regulation No. 3 from the approved SIP.
B. Correction to Disapprove Provision in Definition of ``Federally
Enforceable'' in Colorado Regulation No. 3
In the State's September 29, 1994 SIP submittal of revisions to
Regulation No. 3, the State revised its definition of ``Federally
Enforceable'' in Section I.B.22. of Part A of Colorado Regulation No.
3. EPA's nonattainment NSR and PSD permitting regulations in 40 CFR
51.165 and 51.166, respectively, require this term to be defined in
States' permitting programs, as it is used in various definitions and
provisions of the Federal preconstruction permitting regulations.
Colorado's definition of ``Federally enforceable'' basically
mirrors the Federal definition in 40 CFR 51.165(a)(1)(xiv) and
51.166(b)(17). However, on August 18, 1994, the State revised this
definition (among other things) to add a provision stating the
following: ``Notwithstanding the foregoing, and except for the
voluntarily accepted limitations and conditions described in the
preceding sentence, any provision, standard, or regulation that is not
required by the Federal Act or that is more stringent than the Federal
Act is adopted under powers reserved to the State of Colorado pursuant
to section 116 of the Federal Act, is not to be submitted to the EPA as
a provision of the SIP and shall not be federally enforceable.''
(Referred to hereafter as the ``quoted language.'') According to the
State, this revision was made to mirror the definition found in Section
25-7-105.1 of the Colorado Air Pollution Prevention and Control Act.
During the State's public comment period on this regulatory change,
EPA stated in an August 12, 1994 letter that it could not approve the
quoted language as part of the SIP. Any provision that has been
submitted by the State and approved by EPA as part of the SIP is
considered to be Federally enforceable regardless of whether it is
required by the Act or more stringent than the Act. Similarly, terms
and conditions incorporated into a permit that is issued under an EPA-
approved permitting program, such as new source review or title V
operating permits, are also generally considered to be Federally
enforceable.\2\ The only way a State can change the Federal
enforceability of any provision that has been approved by EPA as part
of the SIP is by submitting a request for revision to the SIP and by
receiving EPA approval of the SIP revision (through notice and comment
rulemaking via the Federal Register).
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\2\ States can designate certain provisions in a title V permit
that have not been approved as part of the SIP or that are not
otherwise Federally enforceable or Federally required as ``State-
only'' in a title V operating permit, and those terms would not be
considered Federally enforceable. [See 40 CFR 70.6(b)(2).]
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EPA believes the quoted language is thus misleading to the public
and the regulated community.
As noted earlier in this notice, EPA received one comment letter,
from the Colorado Air Pollution Control Division (APCD), after the
close of the public comment period.\3\ In its comment letter, the APCD
objects to EPA's proposal to disapprove the quoted language. The APCD
comments that EPA does not have the authority to expand the scope
[[Page 14359]]
of a SIP submittal by turning State-only provisions into Federally-
enforceable provisions and that EPA's disapproval of the quoted
language may preclude the State from submitting State-only provisions
to EPA for the purpose of providing complete information about the
State program.
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\3\ The APCD did not explain why it was submitting comments
after the deadline for comments, nor did it request an extension of
the comment period. EPA does not believe it has a legal obligation
to consider or respond to this late comment letter as part of this
rulemaking action. Nonetheless, because doing so will not
significantly delay EPA's final rulemaking action in this matter,
EPA is providing this brief response to the APCD's letter. EPA has
provided a separate response in a letter to the APCD.
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As to these assertions, the APCD does not explain how EPA's
disapproval of the quoted language would turn State-only provisions in
a SIP submittal into Federally-enforceable provisions. The State
remains free to explicitly identify State-only measures in a SIP
submittal and provide them to EPA for informational purposes only. EPA
has not approved such measures into the SIP in the past and does not
intend to do so in the future because EPA does not consider such
measures to be part of the official SIP submittal. EPA's disapproval of
the quoted language will not change EPA's approach to explicitly-
identified State-only measures in SIP submittals. Similarly, EPA's
disapproval of the quoted language will not give EPA the authority to
approve, into the Federally enforceable SIP, measures the State has not
submitted to EPA or force the State to submit measures that it would
not otherwise submit.
On the other hand, if the quoted language remains part of the
approved SIP, some may mistakenly believe that it renders unenforceable
by EPA a measure the Governor has asked EPA to approve and EPA has
approved into the SIP, simply because the measure is not required by
the Clean Air Act or is more stringent than Federally required. Such an
interpretation is inconsistent with the Clean Air Act (e.g., sections
110, 113, and 304 of the Act), and relevant case law. See, e.g., Union
Elec. Co. v. E.P.A., 96 S.Ct. 2518 (1976). Also, under such an
interpretation, the quoted language would make it impossible for the
general public, the regulated community, or EPA to have any certainty
regarding the contents of the Federally enforceable SIP in Colorado.
This result would clearly be contrary to Congressional intent. Thus,
EPA feels compelled to disapprove the quoted language. The APCD's
comments offer no reason for EPA to change its position on this matter.
In EPA's January 21, 1997 rulemaking, EPA approved the definition
of ``Federally enforceable'' into the SIP in its entirety. (See 62 FR
2914.) However, for the reasons discussed above and in EPA's August 12,
1994 letter to the State, EPA believes its approval of the quoted
language was made in error. Consequently, EPA is correcting its January
21, 1997 rulemaking by disapproving the language in the State's
definition of ``Federally enforceable'' which states that any
provision, standard or regulation not required by the Act is not to be
submitted as part of the SIP and shall not be Federally enforceable.
EPA is making this correction pursuant to section 110(k)(6) of the Act.
Because the quoted language is not required by the Act and will not
affect the State's ability to implement its permit program, EPA's
disapproval of the quoted language will not start any sanctions or
Federal implementation plan clocks.
II. Correction of October 5, 1979 Rulemaking
On October 5, 1979, EPA approved several submittals from the State
of Colorado, which were made pursuant to the 1977 revisions to the Act.
(See 44 FR 57401-57411.) In that action, EPA listed House Bill 1109 in
40 CFR 52.320(c)(14)as one of the submittals being approved (see 44 FR
57409, October 5, 1979). House Bill 1109 repealed and reenacted the
State's Air Quality Control Act. The bill was signed into law by the
Governor on June 20, 1979 and submitted to EPA on July 23, 1979, along
with House Bill 1090 (regarding burning of solid wastes) and Senate
Bill 1 (regarding provisions for reducing motor vehicle emissions). In
the preamble to the October 5, 1979 rulemaking, EPA discussed the
State's July 23, 1979 submittal of the three bills. EPA indicated that
it was taking no action on House Bill 1109 at that time and would
propose action in the Federal Register at a future date to take public
comment on the acceptability of the State's revised Air Quality Control
Act (see 44 FR 57403). Since EPA clearly stated in the preamble that it
was not taking action on House Bill 1109, EPA erred in listing House
Bill 1109 as being approved as part of the SIP in 40 CFR 52.320(c)(14).
Therefore, pursuant to section 110(k)(6) of the Act, EPA is correcting
the regulatory text regarding the State's July 23, 1979 submittal to
remove the reference to House Bill 1109.\4\
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\4\ Note that the provision in 40 CFR 52.320(c)(10) promulgated
on October 5, 1979 was renumbered as 40 CFR 52.320(c)(15) on June
27, 1980. See 45 FR 43411.
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Although EPA's October 5, 1979 rulemaking indicated that EPA would
propose action on House Bill 1109 at a future date, EPA no longer
believes it is necessary to take action on House Bill 1109 or any
successor provisions in the State's Air Quality Control Act. Generally,
EPA does not believe it is necessary to approve State authorizing
legislation into the SIP. Instead, EPA needs to be satisfied that such
authorizing legislation exists and that it shows that the State has
adequate legal authority to adopt, implement, and enforce the SIP.
Therefore, EPA will not be taking action on House Bill 1109.
III. Correction of September 23, 1980 Rulemaking
On September 23, 1980, EPA approved various SIP submittals from the
State of Montana intended to address the 1977 revisions to the Act. In
that action, EPA mistakenly revised 40 CFR 52.320, which identifies SIP
approvals for the State of Colorado, to reflect approval of these
various Montana SIP submittals (see 45 FR 62984). EPA's original
intention with the September 23, 1980 rulemaking was to revise 40 CFR
52.1370(c)(8) for the State of Montana's plan, but EPA promulgated the
language regarding Montana's SIP at 40 CFR 52.320(c)(8). On June 30,
1982, EPA partially corrected this error for Montana by promulgating
the September 23, 1980 approval at 40 CFR 52.1370(c)(10). (See 47 FR
28373.) However, no correction was ever made to the ``Identification of
Plan'' for Colorado at 40 CFR 52.320. Consequently, EPA is amending 40
CFR 52.320(c)(8) to reinstate the previous Colorado SIP approval
promulgated at 52.320(c)(8), as it was last revised on March 2, 1976
(see 41 FR 8958).
IV. Final Action
EPA is revising 40 CFR 52.320(c)(72)(i)(D) to exclude Sections V.B.
and VII.A.5. of Part B of Regulation No. 3, which pertain to the
State's PSD program, from the approved SIP.
EPA is correcting its January 21, 1997 approval of Section I.B. of
Part A of Regulation No. 3 (as in effect on September 30, 1994) to
disapprove the last sentence in the definition of ``Federally
enforceable'' which states that any provision, standard or regulation
not required by the Act is not to be submitted as part of the SIP and
shall not be Federally enforceable.
EPA is amending 40 CFR 52.320(c)(15) to remove the reference to
House Bill 1109, which was incorrectly listed as being approved in
EPA's October 5, 1979 Colorado rulemaking (see 44 FR 57409).
Last, EPA is amending 40 CFR 52.320(c)(8) to reinstate the Colorado
SIP approval promulgated on March 2, 1976 (see 41 FR 8958) that was
incorrectly replaced in a September 23, 1980 rulemaking (45 FR 62984).
EPA is making these corrections pursuant to section 110(k)(6) of
the Act.
[[Page 14360]]
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
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.
The corrections promulgated herein remove certain provisions from
the SIP. However, regardless of EPA's final action, these provisions
still apply as a matter of State law, and thus, EPA's action does not
affect any existing requirements applicable to small entities. Also,
EPA's action does not impose any new Federal requirements. Therefore,
EPA certifies that this correction action does not have a significant
impact on a substantial number of small entities.
C. 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
the 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 corrections promulgated do 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 imposes no new requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
E. 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 May 26, 1998. 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 must 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, Particulate matter, Reporting
and recordkeeping requirements.
Dated: March 5, 1998.
William P. Yellowtail,
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 revising paragraphs (c)(8),
(c)(15), and (c)(72)(i)(D) to read as follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(8) On June 7, 1974, the Governor submitted five Air Quality
Maintenance Area designations.
* * * * *
(15) On July 23, 1979, the Governor submitted House Bill 1090 and
Senate Bill 1 as part of the plan.
* * * * *
(72) * * *
(i) * * *
(D) Regulation No. 3, Air Contaminant Emissions Notices, 5 CCR
1001-5, revisions adopted 8/18/94, effective 9/30/94, as follows: Part
A (with the exception of the last sentence in the definition of
``Federally enforceable'' in Section I.B.22 and with the exception of
Section IV.C.) and Part B (with the exception of Sections V.B. and
VII.A.5.). This version of Regulation No. 3, as incorporated by
reference here, supersedes and replaces all versions of Regulation No.
3 approved by EPA in previous actions.
* * * * *
[FR Doc. 98-7640 Filed 3-24-98; 8:45 am]
BILLING CODE 6560-50-P
