2011-21233. Approval and Promulgation of Air Quality Implementation Plans; Colorado; Revised Definitions; Construction Permit Program Fee Increases; Regulation 3

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving the two State Implementation Plan (SIP) revision packages submitted by the State of Colorado on August 1, 2007. EPA is approving the August 1, 2007 submittal revisions to Regulation 3, Part A, Section I where the State expanded on the definition of nitrogen dioxide (NO₂) to include it as a precursor to ozone. An increase in the amount of the fees charged for pollutant emissions and minor wording additions as specified in Regulation 3, Part A, Section VI.D.1 is approved. EPA is also approving one grammatical change the State made to Regulation 3 in the August 1, 2007 submittal. In addition, EPA is taking no action on several revisions to Colorado's Regulation 3 regarding New Source Review (NSR), that are contained in this submittal, where previously proposed, pending, or future actions by EPA have addressed or will address these revisions. EPA is also not acting on three provisions in the submittals that are not in Colorado's SIP and revisions to the State's requirements to file Air Pollution Emission Notices (APENs). This action is being taken under section 110 of the Clean Air Act (CAA).

DATES: Effective Date:

This final rule is effective September 19, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2011-0340. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Mark Komp, Air Program, U.S. Environmental Protection Agency, Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number [phone], fax number [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words State or Colorado mean the State of Colorado, unless the context indicates otherwise.

(v) The initials APEN mean or refer to Air Pollutant Emission Notice.

(vi) The initials NSR mean or refer to New Source Review, the initials PSD mean or refer to Prevention of Significant Deterioration and the initials NAAQS mean or refer to National Ambient Air Quality Standards.

(vii) The initials NO₂ mean Nitrogen Dioxide.

Table of Contents

I. Background Information

II. Response to Comments

III. Section 110(l) of the CAA

IV. Final Action

V. Statutory and Executive Order Reviews

I. Background Information

The State's August 1, 2007 submittal consisted of two packages of revisions to the State's Regulation 3. The first package of revisions was adopted by the State on August 17, 2006 and corrected minor issues EPA had identified regarding Colorado's NSR program. The State adopted the revisions in order to ensure that the State would continue to have Federal approval of its NSR program. In the definitions section of Regulation 3, Part A, Section I.B.16, Colorado adopted language to treat NO₂ as an ozone precursor. The State added in Part A, Section II.C.2.b(ii) under its APEN requirements that an increase of one ton per year or greater of nitrogen oxides emissions from a source with annual actual emissions less than one hundred tons and located in an ozone nonattainment area constituted a significant change. A significant change meant that a new APEN must be submitted to the State.

In the same revision, Methyl Ethyl Ketone was removed as a reportable compound from Appendix B of Regulation 3. The State added T-Butyl Acetate as a non-criteria reportable pollutant in Regulation 3, Appendix B.

The second package of revisions adopted on December 14, 2006 contained annual emission fee increases in Part A, Section VI.D.1 of Regulation 3. The increase in fees is used to pay for the State's increased workload from the processing of APENs and permits.

One grammatical change was made by the State in Part A, Section I.B.9.d. in their Regulation 3. The grammatical change is listed as follows:

• Section I.B.9.d. Applicable Requirement.

The right double parenthesis around the wording “Regulation No. 8” was removed and replaced with a single right parenthesis.

II. Response to Comments

EPA did not receive comments regarding our proposed rule for Colorado's Regulation 3 revisions.

III. Section 110(l) of the CAA

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirement of the Act. The Colorado SIP revisions being approved that are the subject of this action do not interfere with attainment of the NAAQS or any other applicable requirement of the Act. In regard to the August 1, 2007 submittals, EPA is approving several revisions to the State's Regulation Number 3. These portions do not relax the stringency of the Colorado SIP since they are housekeeping in nature. Therefore, the portions of the revisions proposed for approval satisfy section 110(l) requirements because they do not relax existing SIP requirements.

IV. Final Action

What EPA Is Approving

On May 27, 2011 (76 FR 30894), we proposed approval of the revisions to the State's Regulation Number 3 as identified above. In this action we are approving the State's adding of the definition within Part A, Section I.B.16. as it pertains to NO₂ as a precursor to ozone. We are also approving the increase in the amount of the fees charged for pollutant emissions and minor wording additions as specified in Regulation 3, Part A, Section VI.D.1.

One minor grammatical revision made to Section I.B.9.d., as identified above, is also being approved.

Where EPA Is Taking No Action

The August 1, 2007 submittal included three revisions that are not approved as part of the SIP. First, changes to Appendix B of Regulation 3 where the State removed Methyl Ethyl Ketone as a reportable compound. Second, the State added T-Butyl Acetate as a non-criteria reportable pollutant in Regulation 3, Appendix B. Third, changes made to Part C, Concerning Operating Permits (Part C. X.A.5). These revisions are not part of the EPA-approved SIP and these Appendices are not incorporated by reference into 40 CFR 52.320.

The State corrected minor issues EPA had identified regarding Colorado's NSR program. The State adopted the revisions in order to ensure that the State would continue to have Federal approval of its NSR program. EPA has proposed to approve Colorado's NSR program in a separate action on December 7, 2005 (70 FR 72744). Therefore, we are not taking action on Colorado's NSR program within the context of today's action rather we will act on these revisions in a future action.

The State's submittal also contains minor corrections to its APEN requirements that we have proposed to approve in a separate action on January 25, 2011 (76 FR 4271); therefore, we are not acting on those here.

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 18, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: July 14, 2011.

Stephen S. Tuber,

Acting Regional Administrator, Region 8.

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. Add paragraph (d) to § 52.329 as follows:

§ 52.329

Rules and regulations.

* * * * *

(d) On August 7, 2007, the Colorado submitted two packages with revisions to Colorado's Regulation 3 Regulation, 5 CCR 1001-5, Part A. One change adopts language to treat nitrogen dioxide as an ozone precursor. The State also adopted an increase in fees used to pay for the State's increased workload from the processing of Air Pollutant Emission Notices (APENs) and permits. Annual and permit processing fees shall be $16.54 for regulated pollutants and $114.96 for Hazardous Air Pollutants. One grammatical change was made to the text of Part A, Section 1.B.9.d:

(1) Regulation 3, 5 CCR 1001-5, Air Contaminant Emissions Notices, Part A, Concerning General Provisions Applicable to Reporting and Permitting, Section I, Applicability, Section I.B.9.d, Applicable Requirement, effective October 2006: Any standard or other requirement under section 112 of the Federal Act (hazardous air pollutants, including any requirement concerning accident prevention under section 112(r)(7) of the Federal Act) (Regulation No. 8) but not including the contents of any risk management plan required under section 112(r) of the Federal Act.

(2) Regulation 3, 5 CCR 1001-5, Air Contaminant Emissions Notices, Part A, Concerning General Provisions Applicable to Reporting and Permitting, Section I, Applicability, Section I.B.16, Criteria Pollutants, effective October 2006:

(i) Those pollutants for which the U.S. EPA has established national ambient air quality standards, including: carbon monoxide, nitrogen dioxide (direct emissions and as a precursor to ozone), sulfur dioxide, PM10, total suspended particulate matter, ozone, volatile organic compounds (as a precursor to ozone), and lead.

(ii) For the purpose of Air Pollutant Emission Notice reporting, criteria pollutants shall also include nitrogen oxides, fluorides, sulfuric acid mist, hydrogen sulfide, total reduced sulfur, reduced sulfur compounds, municipal waste combustor organics, municipal waste combustor metals, and municipal waste combustor acid gases.

(3) Regulation 3, 5 CCR 1001-5, Air Contaminant Emissions Notices, Part A, Concerning General Provisions Applicable to Reporting and Permitting, Section VI Fees; Section VI.D.1, Fee Schedule, effective February 2007: Annual and permit processing fees shall be charged in accordance with and in the amounts specified in the provisions of Colorado Revised Statues section 25-7-114.7. Annual fees for regulated pollutants shall be $16.54. Annual fees for hazardous air pollutants shall be $114.96.