[Federal Register Volume 59, Number 159 (Thursday, August 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20344]
[[Page Unknown]]
[Federal Register: August 18, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO27-1-5754a; FRL-5012-6]
Approval and Promulgation of Air Quality Implementation Plans;
Colorado; New Source Review and Prevention of Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rulemaking.
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SUMMARY: In this document, EPA is partially approving revisions to the
State Implementation Plan (SIP) submitted by the Governor of Colorado
on January 14, 1993. The submittal included revisions to the State's
new source review (NSR) and prevention of significant deterioration
(PSD) regulations, which were made to bring the State's regulations up-
to-date with the amended Clean Air Act (Act) and the Federal
regulations. EPA finds that the revised State rules meet the Federal
nonattainment NSR permitting requirements of the Act for the State's
carbon monoxide and ozone nonattainment areas. EPA also finds that the
State regulations only partially meet the nonattainment NSR
requirements of the Act for the State's PM-10 nonattainment areas
because the State has not addressed the NSR requirements for new and
modified major sources of PM-10 precursors in some of the State's PM-10
nonattainment areas. Last, EPA finds that the other revisions submitted
are consistent with the amended Act and the Federal regulations in 40
CFR 51 and that the revisions correct previous EPA disapprovals
promulgated in 40 CFR 52, Subpart G--Colorado.
DATES: This action will become effective on October 17, 1994 unless
adverse or critical comments are received by September 19, 1994. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Comments should be addressed to Vicki Stamper, 8ART-AP, U.S.
Environmental Protection Agency, Region VIII, 999 18th Street, suite
500, Denver, Colorado 80202-2466. Copies of the State's submittal and
other relevant information are available for inspection during normal
business hours at the following locations: Air Programs Branch, U.S.
Environmental Protection Agency, Region VIII, 999 18th Street, suite
500, Denver, Colorado 80202-2466; and Air Pollution Control Division,
Colorado Department of Health, 4300 Cherry Creek Drive South, Denver,
Colorado 80222-1530.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, (303) 293-1765.
SUPPLEMENTARY INFORMATION:
I. Background
A. Nonattainment NSR Requirements of the Amended Act
The air quality planning requirements for nonattainment NSR are set
out in part D of title I of the Act. The EPA has issued a ``General
Preamble'' describing EPA's preliminary views on how EPA intends to
review SIPs and SIP revisions submitted under part D, including those
State submittals containing nonattainment area NSR SIP requirements
(see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)).
Because EPA is describing its interpretations here only in broad terms,
the reader should refer to the General Preamble for a more detailed
discussion of the interpretations of part D advanced in this notice and
the supporting rationale. A brief discussion of the specific elements
required in a State's NSR program is also included in Section II.B. of
this notice.
EPA is currently developing rule revisions to implement the changes
under the 1990 Clean Air Act Amendments in the NSR provisions of parts
C and D of title I of the Act. The EPA anticipates that the proposed
rule will be published for public comment in the fall of 1994. If EPA
has not taken final action on States' NSR submittals by that time, EPA
may generally refer to the proposed rule as the most authoritative
guidance available regarding the approvability of the submittals. EPA
expects to take final action to promulgate the rule revisions to
implement the part C and D changes sometime during 1995. Upon
promulgation of those revised regulations, EPA will review NSR SIPs to
determine whether additional SIP revisions are necessary to satisfy the
requirements of the rulemaking.
Prior to EPA approval of a State's NSR SIP submission, the State
may continue permitting only in accordance with the new statutory
requirements for permit applications completed after the relevant SIP
submittal date. This policy was explained in transition guidance
memoranda from John Seitz dated March 11, 1991 and September 3, 1992.
As explained in the March 11 memorandum, EPA does not believe
Congress intended to mandate the more stringent title I NSR
requirements during the time provided for SIP development. States were
thus allowed to continue to issue permits consistent with requirements
in their current NSR SIPs during that period, or to apply 40 CFR 51,
Appendix S for newly designated areas that did not previously have NSR
SIP requirements.
The September 3, 1992 memorandum also addressed the situation where
States did not submit the part D NSR SIP revisions by the applicable
statutory deadline. For permit applications complete by the SIP
submittal deadline, States may issue final permits under the prior NSR
rules, assuming certain conditions in the September 3 memorandum are
met. However, for applications completed after the SIP submittal
deadline, EPA will consider the source to be in compliance with the Act
where the source obtains from the State a permit that is consistent
with the substantive new NSR part D provisions in the amended Act. EPA
believes this guidance continues to apply to permitting pending final
action on Colorado's NSR SIP submittal.
B. Correction of Deficiencies in Colorado's NSR/PSD Regulations
Aside from the new provisions of the amended Act, EPA has
previously identified many deficiencies in the State's NSR and PSD
permitting regulations. On June 28, 1985, EPA disapproved certain
provisions in the State's NSR rules (see 50 FR 26734), and on February
13, 1987, EPA disapproved specific provisions in the State's PSD rules
(see 52 FR 4622). In addition, after completing a thorough evaluation
of the State's NSR and PSD regulations, EPA notified the State on
February 17, 1988 of various other deficiencies in Regulation No. 3 and
the Common Provisions Regulation.
On May 26, 1988, EPA issued a SIP call to the State due to the
failure of many areas to attain the national ambient air quality
standards (NAAQS) for ozone and carbon monoxide (CO). Pursuant to the
SIP call, EPA required the State to correct all of the deficiencies in
its PSD and NSR permitting rules.
The State subsequently adopted some of the required NSR and PSD
rule revisions on August 17, 1988. These revisions were submitted to
EPA for approval in the SIP on November 17, 1988. However, EPA found in
its review of the State submittal that many of the previously
identified deficiencies had not been corrected.
Thus, on March 26, 1991, EPA again notified the State of all
outstanding deficiencies and disapprovals in its NSR and PSD
regulations and required that the State provide EPA with a commitment
and a schedule for correcting these deficiencies. On April 29, 1991,
Colorado responded with a list of the deficiencies that the Air Quality
Control Commission (AQCC) had the existing authority to address and a
list of deficiencies that would require changes in the State statute
before the State regulations could be revised. The State committed in
that letter to adopt the revisions for which they had the existing
authority to correct by October of 1991. The State also committed to
present the statutory revisions necessary to correct the remaining NSR
and PSD deficiencies to the Colorado legislature in January of 1992 and
to revise the regulations subsequent to the enactment of the statutory
revisions. EPA subsequently approved the November 1988 revisions on
June 17, 1992 (57 FR 27000), based on the State's April 29, 1991 letter
of commitments.
On October 17, 1991, the State adopted the revisions to its NSR and
PSD rules for which the State had the existing authority to correct.
The Governor of Colorado subsequently submitted the revisions to EPA
for approval on April 9, 1992, and EPA approved these revisions on
September 27, 1993 (58 FR 50270).
The State also enacted legislation in August of 1992 which, among
other things, addressed the remaining NSR and PSD statutory
deficiencies. Subsequently, the State adopted regulatory revisions
addressing the remaining deficiencies on November 19, 1992 and
submitted those revisions, along with other revisions necessary to
bring the State's NSR regulations up-to-date with the amended Act and
amended Federal regulations, on January 14, 1993.
II. Analysis of State Submission
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566).
A. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.1 Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a State under the
Act must be adopted by such State after reasonable notice and public
hearing.
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\1\Section 172(c)(7) of the Act provides that plan provisions
for nonattainment areas shall meet the applicable provisions of
section 110(a)(2).
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The EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action (see section 110(k)(1)
and 57 FR 13565). The EPA's completeness criteria for SIP submittals
are set out at 40 CFR 51, Appendix V (1992). The EPA attempts to make
completeness determinations within 60 days of receiving a submission.
However, a submittal is deemed complete by operation of law under
section 110(k)(1)(B) if a completeness determination is not made by EPA
within 6 months after receipt of the submission.
The State of Colorado held a public hearing on November 19, 1992 to
entertain public comment on the proposed revisions to the SIP.
Following the public hearing, the plan was adopted by the State and
submitted by the Governor on January 14, 1993 as a revision to the SIP.
Specifically, the State submitted revisions to its NSR and PSD
permitting regulations in Colorado Regulation No. 3 and the Common
Provisions Regulation. Also submitted was a revision to the list of
volatile organic compounds which have been determined to have
negligible photochemical reactivity, to be consistent with the Federal
definition of ``volatile organic compounds'' (VOCs), in Regulation No.
7. The revisions to the State's NSR and PSD regulations were made to
bring the State's rules up-to-date with the amended Act and revised
Federal regulations, to correct outstanding deficiencies in the State's
regulations previously identified by EPA, and to make other minor
changes to the State's permitting rules.
The SIP revision was reviewed by EPA to determine completeness
shortly after its submittal. The submittal was found to be complete,
and a letter dated March 11, 1993 was forwarded to the Governor
indicating the completeness of the submittal and the next steps to be
taken in the review process. In this action, EPA partially approves the
State's SIP submittal. EPA finds that the revisions provide for
consistency with the Act and corresponding Federal regulations, and
that the revisions meet the new nonattainment NSR provisions for all of
the State's nonattainment areas, with one exception: The State's
regulations do not meet the NSR provisions for new and modified major
sources of PM-10 precursors in the State's PM-10 nonattainment areas
for which EPA has not made a determination that such sources do not
contribute significantly to exceedances of the PM-10 NAAQS. EPA is also
deleting previous EPA disapprovals of the State's regulations which the
State has corrected in this submittal.
B. Nonattainment NSR Requirements of the Act
The general statutory requirements for nonattainment NSR SIPs and
permitting as amended by the 1990 Amendments are found in sections 172
and 173 of the Act. These requirements apply in all nonattainment
areas. The State of Colorado's nonattainment NSR regulations which had
been approved prior to the 1990 Amendments were not written to be
nonattainment area-specific; the NSR permitting requirements applied to
new or modified sources proposing to locate in any nonattainment area
in the State, including those designated pursuant to enactment of the
1990 Amendments.
Thus, in order to meet the nonattainment NSR program submittal
requirements, the State only needed to revise its existing-approved NSR
regulations to address the new NSR requirements of the amended Act that
were not included in its existing-approved regulations, rather than
submitting a comprehensive NSR SIP submittal for each of its
nonattainment areas.
Since some of the revisions to sections 172 and 173 of the Act as
discussed in the General Preamble clarified previously existing Federal
regulations and policy, many of the new NSR requirements had already
been included in the State's regulations and approved by EPA in the
SIP. Thus, the following represents EPA's review of the State's
submittal and/or existing approved regulations in meeting the new
requirements of the amended Act:
(1) The amended Act repealed the construction ban provisions
previously found in section 110(a)(2)(I) with certain exceptions.
No construction bans are currently imposed in Colorado, so this
requirement is inapplicable.
(2) Section 173(a)(1)(A) of the Act requires a demonstration for
permit issuance that the new source growth does not interfere with
reasonable further progress (RFP) for the area (e.g., greater than 1:1
emission offsets should insure no interference with RFP). In addition,
calculations of emissions offsets must be based on the same emissions
baseline used in the demonstration of RFP.
In previously-approved Sections IV.D.2.a.(iii) and V.E.2. of
Regulation No. 3, the State has established provisions which adequately
address section 173(a)(1).
(3) Section 173(c)(1) of the Act requires that offsets must
generally be obtained by the same source or other sources in the same
nonattainment area. However, offsets may be obtained from other
nonattainment areas if: the area in which the offsets are obtained has
an equal or higher nonattainment classification; and emissions from the
nonattainment area in which the offsets are obtained contribute to a
NAAQS violation in the area in which the source would construct.
In Sections IV.D.2.a.(iii)(B) and (C) of Regulation No. 3, the
State has established provisions that adequately meet the requirements
of section 173(c)(1).
(4) Section 173(c)(1) of the Act requires that any emissions
offsets obtained in conjunction with the issuance of a permit to a new
or modified source must be in effect and enforceable by the time the
new or modified source commences operation.
In previously-approved Sections IV.D.2.a.(iii) and (v) of
Regulation No. 3, the State has established provisions that adequately
meet the requirements of section 173(c)(1).
(5) Section 173(c)(1) of the Act requires that emissions increases
from new or modified major stationary sources are offset by real
reductions in actual emissions.
In previously-approved Section V.E.1.b. of Regulation No. 3, the
State has established provisions for nonattainment areas with approved
demonstrations of attainment which adequately meet the requirements of
section 173(c)(1). For areas which need but lack an approved
demonstration of attainment, previously-approved Section V.F.13.k. of
Regulation No. 3 provides that emissions trades, including offsets, can
only be approved through SIP revisions. Thus, such offsets would be
subject to EPA's criteria, including the requirements of Section
173(c)(1).
(6) Section 173(c)(2) of the Act prohibits emissions reductions
otherwise required by the Act from being credited for purposes of
satisfying the part D offset requirements.
In Sections V.E.9 of Regulation No. 3, the State has established
provisions that adequately meet the requirements of section 173(c)(2).
(7) Revised sections 172(c)(4), 173(a)(1)(B), and 173(b) of the Act
limit and invalidate use of certain growth allowances in nonattainment
areas.
This requirement is inapplicable because the State of Colorado has
not established any growth allowances in its nonattainment area SIPs.
(8) Revised section 173(a)(5) of the Act requires that, as a
prerequisite to issuing any part D permit, an analysis of alternative
sites, sizes, production processes, and environmental control
techniques for a proposed source must be completed which demonstrates
that the benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification.
In previously-approved Section IV.D.2.a.(iv) of Regulation No. 3,
the State has established provisions which adequately address the
requirements of section 173(a)(5).
(9) Section 173(d) of the Act requires States to submit control
technology information from permits to EPA for the purposes of making
such information available through the RACT/BACT/LAER clearinghouse.
Colorado and EPA have established provisions in the annual State-
EPA agreement requiring the State to submit information from
nonattainment NSR permits to EPA's RACT/BACT/LAER clearinghouse. EPA
believes this is acceptable to meet this requirement.
(10) Section 173(e) of the Act provides that States may allow any
existing or modified source that tests rocket engines or motors to use
alternative or innovative means to offset emissions increases from
firing and related cleaning, under certain conditions.
In lieu of imposing any alternative offset measures the permitting
authority may impose an emission limit amounting to no more than 1.5
times the average cost of stationary control measures adopted in that
area during the previous three years.
The State has not adopted provisions for innovative offsetting for
rocket engine and motor firing because there are no such sources in the
State of Colorado.
(11) Section 328 requires that sources located on the outer
continental shelf (OCS) must be subject to the same requirements as
would be applicable if the source were located in the corresponding
onshore area.
Since the State of Colorado is land-locked and not adjacent to any
oceans, this requirement is inapplicable.
(12) Revised section 302(z) of the Act set forth a new definition
of ``stationary source'' reflecting Congressional intent that certain
internal combustion engines must be subject to control under State
permit programs, while requiring the exclusion of the newly defined
category of ``nonroad engines.''
This submittal did not include any revisions to the State's
definition of ``stationary source'' relating to non-road engines.
However, the State intends to revise its regulations to exempt nonroad
engines from construction permitting requirements during its annual
update of its regulations in 1994. Further, EPA believes it is
difficult for states to make the regulatory revisions to exclude
nonroad engines until EPA promulgates regulatory revisions for the
definition and exclusion of ``non-road engines.'' When the Federal
regulations concerning ``non-road engines'' and new source review
permitting requirements are promulgated, EPA will re-evaluate the
State's regulations for consistency with the Federal requirements. If
revisions are needed, EPA will require the State to make the necessary
changes to its regulations and the SIP.
In addition to all of the general nonattainment NSR provision
mentioned above, there are also nonattainment area-specific NSR
provisions in subparts 2, 3, and 4 of part D of the Act, some of which
supersede these general NSR provisions because they are more stringent.
The following provisions are the additional NSR provisions that apply
in Colorado's nonattainment areas:
1. Ozone Nonattainment Areas
The State of Colorado currently has one ozone nonattainment area.
It is defined as the Denver-Boulder area, and it is currently
classified as transitional. (See 40 CFR 81.306 for Colorado's ozone
nonattainment area designations.) States with transitional ozone
nonattainment areas were required to submit NSR rules meeting the
general NSR requirements discussed above by November 15, 1992. These
rules must reflect the 100 tons per year (tpy) major stationary source
threshold for emissions of VOCs for determining NSR applicability. In
addition, States must establish a 40 tpy significance level for
defining major modifications, in order to be consistent with the
current significance level in 40 CFR 51.165(a)(1)(x). None of the
additional NSR provisions of subpart 2 of part D apply in transitional
ozone nonattainment areas.
In previously-approved Section I.B.3.d. of Regulation No. 3, the
State has established a provision which states that any source that is
major for VOCs is considered major for ozone, and the State has
established a major stationary source threshold of 100 tpy in
previously-approved Section I.B.3.a. In addition, in the previously-
approved definition of ``significant'' in the Common Provisions
Regulation, the State has established a major modification significance
level of 40 tpy for VOCs. Because the State has adequately addressed
all of the other general NSR requirements, EPA finds that the State's
NSR program meets all of the requirements for its transitional ozone
nonattainment area.
2. Carbon Monoxide Nonattainment Areas
The State of Colorado has five CO nonattainment areas, four of
which are currently designated as moderate: Denver Metro/Boulder,
Longmont, Colorado Springs, and Fort Collins; and one of which is
currently not classified: Greeley. (See 40 CFR 81.306 for Colorado's CO
nonattainment area designations.) States with moderate CO nonattainment
areas are required to submit NSR rules meeting the general NSR
requirements discussed above and any additional requirements of subpart
3 of part D by either November 15, 1992 or November 15, 1993, depending
on the design value for the area. (For those nonattainment areas with a
design value of 12.7 parts per million (ppm) or less, States were
required to submit the NSR revisions by November 15, 1993. Otherwise,
the NSR revisions were to be submitted by November 15, 1992.) States
with ``not classified'' CO nonattainment areas were required to submit
the NSR revisions meeting the general NSR requirements discussed above
by November 15, 1993. These rules must reflect the 100 tpy major
stationary source threshold for emissions of CO for determining NSR
applicability. In addition, States must establish a 100 tpy
significance level for defining major modifications, in order to be
consistent with the current significance level in 40 CFR
51.165(a)(1)(x). No additional NSR provisions in subpart 3 of part D
apply.
In Section I.B.3.a. of Regulation No. 3, the State has established
a major stationary source threshold of 100 tpy. Also, in the
previously-approved definition of ``significant'' in the Common
Provisions Regulation, the State has established a major modification
significance level of 100 tpy. Of the State's CO nonattainment areas,
only the Denver area had a design value of greater than 12.7 ppm. Thus,
the nonattainment NSR provisions for the other CO nonattainment areas
were not due until November 15, 1993. However, the State's NSR
regulations are not written to be nonattainment area-specific; the
State regulations apply in all nonattainment areas. Because the State
has adequately addressed all of the other general NSR requirements, EPA
finds that the State's NSR rules meets all of the requirements for all
of its CO nonattainment areas.
3. PM-10 Nonattainment Areas
The State of Colorado has seven PM-10 nonattainment areas, all of
which are currently designated as moderate: Denver Metro, Aspen, Canon
City, Lamar, Pagosa Springs, Telluride, and Steamboat Springs. (See 40
CFR 81.306 for Colorado's PM-10 nonattainment area designations.)
States with moderate PM-10 nonattainment areas which were designated
upon enactment of the 1990 Amendments were required to submit NSR rules
meeting the general requirements discussed above and any additional
requirements of subpart 4 of part D by June 30, 1992. However, for the
Steamboat Springs PM-10 nonattainment area, whose designation was not
effective until January 20, 1994, the State has eighteen months after
the date of redesignation (or until July 20, 1995) to submit a PM-10
attainment plan for the area which must include, among other things,
provisions meeting the NSR requirements of part D (see section
189(a)(2)(B) of the Act). States' NSR rules for moderate PM-10
nonattainment areas must include a definition of ``major stationary
source'' reflecting the section 302(j) 100 tpy PM-10 threshold for
determining NSR applicability.
In addition, section 189(e) of the amended Act requires that the
control requirements applicable to major stationary sources of PM-10
must also apply to major stationary sources of PM-10 precursors, except
where the Administrator of EPA has determined that such sources do not
contribute significantly to PM-10 levels which exceed the standard in
the area. Thus, unless the EPA Administrator finds otherwise, States
must submit rules meeting all of the NSR provisions mentioned above,
including the section 302(j) 100 tpy threshold, for new and modified
major stationary sources of PM-10 precursors. PM-10 precursors may
include VOCs, which form secondary organic compounds, SO2, which
forms sulfate compounds, and nitrogen oxides (NOx), which form
nitrate compounds.
Since the State's NSR regulations are not written to be
nonattainment area-specific, the State's NSR regulations apply in all
of its nonattainment areas. The State has established a 100 tpy
threshold for major stationary sources in Section I.B.3.a. of
Regulation No. 3, as well as a 15 tpy major significance level for
major modifications of PM-10 in the previously-approved definition of
``significant'' in the Common Provisions Regulation. In addition, the
State has adequately addressed all of the other general NSR provisions.
Thus, EPA believes the State regulations adequately address the
nonattainment NSR requirements for new and modified sources of PM-10 in
all of its moderate PM-10 nonattainment areas. However, the State's
submittal did not include NSR regulations for new and modified major
stationary sources of PM-10 precursors.
EPA plans to make findings of whether major stationary sources of
PM-10 precursors do not contribute significantly to PM-10 levels in
excess of the NAAQS (and thus whether the requirements of section
189(e) do not apply) concurrent with EPA's action on the State's PM-10
SIP submittals.2 As of the date of this notice, EPA has
promulgated findings that such sources of PM-10 precursors do not
contribute significantly to PM-10 exceedances in the Canon City, Pagosa
Springs, and Lamar PM-10 nonattainment areas (see, respectively, 58 FR
68037 (December 23, 1993), 59 FR 26127 (May 19, 1994), and 59 FR 29734
(June 9, 1994)). Further, EPA has proposed to find that such sources of
PM-10 precursors also do not contribute significantly in the Aspen and
Telluride PM-10 nonattainment areas (see 58 FR 68098 (December 23,
1993) and 59 FR 32402 (June 23, 1994), and EPA anticipates to
promulgate those findings. However, on December 20, 1993, EPA indicated
that major stationary sources of PM-10 precursors (specifically
NOx and SO2) do contribute significantly to exceedances of
the PM-10 NAAQS in the Denver metro PM-10 nonattainment area (see 58 FR
66331). Thus, the State is required to submit nonattainment NSR
provisions for sources of PM-10 precursors for at least one of its
nonattainment areas. Since the State is not required to submit NSR
provisions for the Steamboat Springs PM-10 nonattainment area until
July 20, 1995, EPA will determine the approvability of the State's NSR
provisions for that nonattainment area when EPA takes action on the
Steamboat Springs' attainment plan.
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\2\Note that EPA's findings are based on the current character
of an area including, for example, the existing mix of sources in an
area. It is possible, therefore, that future growth could change the
significance of precursors in an area.
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On February 17, 1994, the State adopted nonattainment NSR
provisions for sources of PM-10 precursors (specifically, SO2 and
NOx) in the Denver metro PM-10 nonattainment area. The State
believes that such sources contribute significantly to PM-10
exceedances only in the Denver metro nonattainment area. While EPA does
not anticipate any disagreement with the State on this matter, until
EPA promulgates findings on whether such sources contribute
significantly in the Aspen and Telluride PM-10 nonattainment areas, the
State is required to adopt NSR provisions meeting the requirements of
section 189(e) for these PM-10 nonattainment areas also. Because the
State has not yet submitted these NSR provisions for sources of PM-10
precursors for those areas subject to the June 30, 1992 submittal
deadline, EPA is only partially approving the State's NSR submittal.
Once the State submits adequate nonattainment NSR provisions for new
and modified major stationary sources of PM-10 precursors in the PM-10
nonattainment areas where EPA has not found that such sources do not
contribute significantly to PM-10 exceedances, EPA will be able to
fully approve the State's NSR program as meeting all of the
nonattainment NSR requirements of the amended Act. As noted above, EPA
will address the applicability of section 189(e) of the Act in the
Steamboat Springs nonattainment area at the time EPA takes action on
the State's attainment plan for that area.
Thus, EPA finds that the State has met all of the nonattainment NSR
requirements for the Canon City, Lamar, and Pagosa Springs PM-10
nonattainment areas, and EPA finds that the State has only partially
met the nonattainment NSR requirements for the Aspen, Denver, and
Telluride PM-10 nonattainment areas. Because the State has adopted
nonattainment NSR provisions for the Denver PM-10 nonattainment area
and since EPA does not anticipate any disagreement with the State on
whether such provisions should apply in the Aspen or Telluride PM-10
nonattainment areas, EPA is not partially disapproving the State's
submittal at this time. If the State fails to timely submit the
recently adopted rules and/or if EPA does not promulgate findings that
source of PM-10 precursors do not contribute significantly in the Aspen
and Telluride PM-10 nonattainment areas, then EPA will promulgate the
partial disapproval that is the companion of this approval.
For further information on these requirements and the State's
provisions which meet these requirements, please see the Technical
Support Document (TSD) accompanying this notice.
C. Correction of Deficiencies in Colorado's NSR/PSD Regulations
EPA's review of the State's submittal found that the State had
corrected all of the deficiencies that the State had committed to
correct in its April 29, 1991 letter. These corrections addressed
numerous EPA disapprovals which were promulgated at 40 CFR 52.329 and
52.343. Specifically, the State addressed the following disapprovals:
1. The definition of ``stationary source'' in the Common Provisions
Regulation was revised to delete an exemption due to right-of-way
provisions. This revision addresses an EPA disapproval promulgated at
40 CFR 52.343(a)(4). However, EPA is not acting on this revision in
this notice because the State has previously made other revisions in
the definition of ``stationary source'' which the State has not yet
formally submitted for approval in the SIP. When the State formally
submits the other revisions to this definition for approval, EPA will
act on this deficiency correction.
2. In the definition of ``major modification'' in Regulation No. 3,
the alternative fuel exemption in Section I.B.2.c.(vii) was deleted.
This addresses EPA disapprovals promulgated at 40 CFR 52.329(a)(1) and
40 CFR 52.343(a)(3).
3. The definitions of ``major modification'' and ``major stationary
source'' in Sections I.B.2. and I.B.3 of Regulation No. 3 were revised
to delete the exemption of fugitive emissions in determining major
stationary source and major modification applicability for certain
source categories. This addresses EPA disapprovals promulgated at 40
CFR 52.329(a)(2), and 40 CFR 52.343(a)(1), (2), and (8).
4. Section IV.H.4. of Regulation No. 3, which allowed an
administrative compliance waiver for as long as six months to a new
source which violated a term of its permit, was deleted. This addresses
an EPA disapproval promulgated at 40 CFR 52.343(a)(7).
5. The State deleted Section IV.D.3.b.(i)(B) of Regulation No. 3,
which contained an exemption from PSD requirements for sources whose
emissions consisted of fugitive dust. EPA only allows a PSD exemption
for sources considered to be major based on fugitive emissions that are
not included in the list of 28 sources categories in the definition of
``major stationary source'' (see 51.166(b)(1)(iii)). (See
51.166(i)(4)(ii).) This addresses an EPA disapproval promulgated at 40
CFR 52.343(a)(2).
6. The State deleted Section IV.F. of Regulation No. 3, which
provided for default issuance of a permit if the State failed to issue
the permit in accordance with set timelines. This addresses an EPA
disapproval promulgated at 40 CFR 52.343(a)(6).
7. The State deleted the exemption of fugitive dust from increment
consumption in Section XI.A.4 of Regulation No. 3, in order to be
consistent with 40 CFR 51.166(f). This addresses an EPA disapproval
promulgated at 40 CFR 52.343(a)(2).
EPA is deleting all of these disapprovals, except 40 CFR
52.343(a)(4), from 40 CFR 52.
The State also included revisions to address other revisions to the
Act and to Federal regulations. Those revisions included:
1. To be consistent with sections 162(a) and 164(a) of the Act,
Section VIII.A. of Regulation No. 3 was revised to delete the August 7,
1977 effective date of the boundaries of Class I areas, thus clarifying
that the Class I area boundaries for those areas designated by the 1977
Act must now conform to all boundary changes made between August 7,
1977 and November 15, 1990, as well as all future boundary changes to
these areas.
2. Section 112(b)(6) of the amended Act excludes the hazardous air
pollutants listed in Section 112(b)(1) of the Act from the PSD
requirements of part C of the Act. Thus, certain pollutants, which were
previously regulated under PSD because the pollutants were covered by
the section 112 national emission standards for hazardous air pollutant
(NESHAP) requirements, are no longer regulated under PSD. The State has
addressed these new provisions by deleting the significance levels for
asbestos, beryllium, mercury, and vinyl chloride from the definition of
``significant'' in the Common Provisions Regulation.
3. On March 18, 1991, EPA revised a previously-issued policy
statement and added 5 halocarbon compounds and 4 classes of
perfluorocarbons to the list of organic compounds considered to be
negligibly reactive. On February 2, 1992, EPA promulgated a revised
definition of ``VOCs'' to specifically exclude these compounds from the
definition of VOCs in 40 CFR 51.100(s), as well as to make other
clarifications. The State has revised its regulations to be consistent
with the new definition as follows: Section IV.D.4. of Regulation No.
3, the definition of ``net emissions increase'' in the Common
Provisions Regulation, and Section II.B. of Regulation No. 7 were
revised to incorporate the list of negligibly reactive VOCs. In
addition, the definition of ``VOCs'' in the Common Provisions
Regulation and Regulation No. 7 were revised to be consistent with the
definition in 40 CFR 51.100(s).
4. The State revised the definition of ``significant'' in the
Common Provisions Regulation to add the significance levels for
municipal waste combustor emissions, which were promulgated with the
New Source Performance Standard (NSPS) on February 11, 1991 (56 FR
5507).
Other revisions which were made to the State's regulations were
made to bring the State's regulations up-to-date with the State's
recently amended Act. EPA is approving these revisions because they
provide for clarity and consistency with the Federal requirements in
the Act and 40 CFR 51.165 and 51.166. For further information on the
revisions and the deficiencies addressed in this submittal, please see
the TSD accompanying this notice.
Final Action
EPA is partially approving the revisions to Colorado Regulations
No. 3 and 7 and the Common Provisions Regulation, which were submitted
by the Governor on January 14, 1993 for approval in the SIP.
Specifically, EPA is approving the State's submittal for meeting the
NSR requirements of the amended Act for the State's CO and ozone
nonattainment areas and for the Canon City, Lamar, and Pagosa Springs
PM-10 nonattainment areas. However, for those PM-10 nonattainment areas
where EPA has not promulgated findings that major sources of PM-10
precursors do not contribute significantly to PM-10 exceedances in the
area (which currently include the Aspen, Denver, and Telluride PM-10
nonattainment areas), EPA is only partially approving the submittal
because it did not include NSR provisions for new and modified major
sources of PM-10 precursors proposing to locate in these areas. EPA is
approving the other revisions to the State's PSD and minor source NSR
regulations, as well as the revisions to Regulation No. 7.
This submittal also adequately addresses deficiencies in the
State's PSD and NSR regulations, which EPA previously identified in a
March 26, 1991 letter and which the State committed to correct in an
April 29, 1991 letter. Therefore, EPA is deleting the disapprovals
promulgated at 40 CFR 52.329(a) (1) and (2) and at 40 CFR 52.343
(a)(1)-(a)(3) and (a)(6)-(a)(8).
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. Under the procedures
established in the May 10, 1994 Federal Register (59 FR 24054), this
action will be effective on October 17, 1994, unless within 30 days of
its publication, adverse or critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective on October 17, 1994.
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 any SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
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 (OMB) has
exempted this regulatory action from Executive Order 12866 review.
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 economic impact on a substantial number of small entities.
Small entities include small business, 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 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 impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-state relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Act 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).
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 October 17, 1994. 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 file, 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,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. sections 7401-7671q.
Dated: July 6, 1994.
Kerrigan G. Clough,
Acting Regional Administrator.
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. 7401-7671q.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(66) to read as
follows:
Sec. 52.320 Identification of Plan.
* * * * *
(c) * * *
(66) On January 14, 1993, the Governor of Colorado submitted
revisions to the new source review and prevention of significant
deterioration requirements in the Common Provisions Regulation and
Regulation No. 3, as well as a revision to Regulation No. 7 pertaining
to volatile organic compounds of negligible photochemical reactivity.
(i) Incorporation by reference.
(A) Air Quality Control Commission Common Provisions Regulation,
Section I.C. and Section I.G., definitions of ``adverse environmental
effect,'' ``air pollutant,'' ``best available control technology,''
``federal act,'' ``federally enforceable,'' ``hazardous air
pollutant,'' paragraph h. in ``net emissions increase,'' ``ozone
depleting compound,'' and ``significant;'' revised 11/19/92, effective
12/30/92.
(B) Air Quality Control Commission Regulation No. 3 Air Contaminant
Emission Notices, Sections I.B.1., I.B.2.c-e., I.B.3.e-f., IV.B.3-5,
IV.D.2.a.(iii), IV.D.2.c., IV.D.3., IV.D.4., IV.E., IV.F., IV.H.,
V.E.9., VI.B.1., VI.B.4., VI.B.5., VI.C., VII.C., VIII.A., VIII.C.1.,
XI.A., and XIII.A. and B.; revised 11/19/92, effective 12/30/92.
(C) Air Quality Control Commission Regulation No. 7 Emissions of
Volatile Organic Compounds, Section II.B.; revised 11/19/92, effective
12/30/92.
3. Section 52.329 is amended by removing paragraphs (a) (1) and (2)
and revising paragraph (a) to read as follows:
Sec. 52.329 Rules and regulations.
(a) On January 14, 1993, the Governor of Colorado submitted
revisions to the State's nonattainment area new source review
permitting regulations to bring the State's regulations up to date with
the 1990 Amendments to the Clean Air Act. With these revisions, the
State's regulations satisfy the part D new source review permitting
requirements for the following nonattainment areas: the Canon City,
Lamar, and Pagosa Springs moderate PM-10 nonattainment areas, the
Denver/Metro Boulder, Longmont, Colorado Springs, and Fort Collins
moderate carbon monoxide nonattainment areas, the Greeley not
classified carbon monoxide nonattainment area, and the Denver
transitional ozone nonattainment area.
Sec. 52.343 [Amended]
4. Section 52.343 is amended by removing paragraphs (a)(1) through
(a)(3) and (a)(6) through (a)(8) and by redesignating paragraphs (a)(4)
as (a)(1), (a)(5) as (a)(2), (a)(9) as (a)(3), and (a)(10) as (a)(4).
[FR Doc. 94-20344 Filed 8-17-94; 8:45 am]
BILLING CODE 6560-50-P
