2010-17790. Approval and Disapproval and Promulgation of Air Quality Implementation Plans; Colorado; Revisions to Regulation 1

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to partially approve and partially disapprove a State Implementation Plan (SIP) revision submitted by the State of Colorado regarding its Regulation 1. Regulation 1 provides certain emission controls for opacity, particulates, carbon monoxide and sulfur dioxide. The revision involves the deletion of obsolete, the adoption of new, and the clarification of ambiguous provisions within Regulation 1. The intended effect of this proposed action is to make federally enforceable the revised portions of Colorado's Regulation 1 that EPA is proposing to approve and to disapprove portions of the regulation that EPA deems are not consistent with the Clean Air Act. This action is being taken under section 110 of the Clean Air Act.

DATES:

Comments must be received on or before August 20, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-1033, by one of the following methods:

• http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone] (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
• Mail: Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
• Hand Delivery: Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2007-1033. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm. For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the 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 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, U. S. Environmental Protection Agency, Region 8, Air Program, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information

II. What is the purpose of this action?

III. Background Information Regarding Colorado's Submittal

IV. EPA's Evaluation of State's Submittal

V. Consideration of Section 110(l) of the CAA

VI. Proposed Action

VII. Statutory and Executive Order Reviews

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 words Provision or Regulation refer to Colorado's Regulation 1.

(vi) The initials SO₂ mean or refer to sulfur dioxide, HC mean or refer to hydrocarbons and CO mean or refer to Carbon Monoxide.

(vii) The initials RACT mean or refer to Reasonably Available Control Technology.

I. General Information

A. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

d. Describe any assumptions and provide any technical information and/or data that you used.

e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

II. What is the purpose of this action?

EPA is proposing to partially approve and partially disapprove revisions to Colorado's Regulation 1 adopted by the State of Colorado on August 16, 2001 and submitted to EPA on July 31, 2002. The revisions involve the deletion of obsolete, adoption of new, and clarification of ambiguous provisions. Colorado's Regulation 1 governs opacity, and particulate, sulfur dioxide, and carbon monoxide emissions from sources. After our review of these revisions, we believe that some of the revisions are consistent with the Act and should be approved while some of the revisions are not and should be disapproved.

EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the Addresses section of this document.

III. Background Information Regarding Colorado's Submittal

On July 31, 2002, the State of Colorado submitted a formal revision to its SIP. The July 31, 2002 revision deleted obsolete provisions in Sections II.A.6, A.7, and A.9 ^[1] regarding, respectively, alfalfa dehydrating plant drum dryers, wigwam burners, and the static firing of Pershing missiles. The provisions were deleted from the regulation because these sources no longer exist in the State.

Colorado added language to its open burning provisions (Sections II.C.2.d and C.3) to clarify that the open burning of animal parts and carcasses are not exempt from permit requirements. However, a special allowance to conduct open burning activities without a permit is provided where the State Agricultural Commission declares a public health emergency or a contagious or infectious outbreak of disease that imperils livestock is evident. Such activities require a telephone notice to State and local health departments prior to conducting such open burning activities. All necessary safeguards must be used to minimize impacts on public health or welfare.

The State revised the method in Section III.A.1.d for calculating emissions from multiple fuel burning units ducting to a common stack. Emissions are to be calculated on a pound per million British thermal unit (lbs/mmBtu) input and must be based on a weighted average of the individual allowable limits for each unit.

The State added clarifying language in several provisions of Regulation 1 stating that alternative performance test methods may be used with approval from the State. It also specified that ASTM or equivalent methods approved by the State may be used for fuel sampling from sources subject to Regulation 1.

In sections VI A.3.e. and VI.B.4.g. regarding SO₂ emissions, the State changed the overall emission limit for petroleum and oil shale refineries from 0.3 lbs per barrel of oil processed per day to 0.7 lbs per barrel of oil processed per day. The State also added new language that modifies the method for calculating compliance with emission limits for petroleum refining and cement manufacturing. The State deleted Section VI.B.5, which stipulates that new sources of SO₂ emissions that do not fall in specific source categories are subject to a 2 ton per day emission limit and are to utilize best available control technology.

IV. EPA's Evaluation of State's Submittal

We have evaluated Colorado's July 31, 2002 submittal regarding revisions to the State's Regulation 1. We propose to approve some of the revisions but also propose to disapprove other revisions.

Proposed Approvals

We propose approval of the deletion of emission limits in Sections II.A.6, A.7, and A.9 of Regulation 1 for alfalfa dehydrating plant drum dryers, wigwam burners, and Pershing missiles because these sources no longer exist in the State and the emission limits have effectively become obsolete. For the same reasons, we propose to approve the revision to Section III.C.2 regarding the deletion of process weight emission standards for alfalfa drum dryers.

We also propose to approve clarifying language in Sections II.C.2.d and II.C.3 regarding the incineration of animal parts to prevent the outbreak of disease during a public health emergency. The clarification provides for the prompt notification of both State and local health officials and the use of all necessary safeguards to minimize the impact of emissions from the burning on public health and welfare.

Finally, we propose to approve the State's revision to the method of computing compliance with emission limits for cement manufacturing and petroleum refining (Sections VI.A.3.e, VI.A.3.f., VI.B.4.e, and VI.B.4.g(ii)). The revised method more accurately reflects the daily processed-based SO₂ emissions limits by using actual hours of operations as an averaging time when the facility does not operate for an entire 24-hour period. The State also revised the method in Section III.A.1.d for calculating particulate matter emission rates for two or more fuel burning units connected to a common opening. Previously, the method summed the allowable emissions from the fuel burning units; the revised method uses a weighted average of the individual allowable limits. The revised method more accurately ensures compliance with emission limits, and we, therefore, propose to approve it.

There are several provisions within Regulation 1 that we propose to disapprove. Our reasons are described below. As described separately below, we also propose to partially approve and partially disapprove specific portions of Section V regarding electric arc furnace shops at iron and steel operations.

Director's Discretion

EPA reviewed the July 31, 2002 Regulation 1 SIP revision submittal and found several instances throughout the sections within Regulation 1 where we believe “director's discretion” provisions provide the State with the ability to modify requirements for stationary sources. Such provisions are inconsistent with sections 110(a) and 110(i) of the CAA which provide for the review and approval of SIP revisions by the Administrator. Section 110(i) specifically prohibits States, except in certain limited circumstances, from taking any action to modify any requirement of a SIP with respect to any stationary source, except through a SIP revision.

For this submittal, we propose to disapprove the revised sections within Regulation 1 that contain director's discretion provisions. The revised sections are as follows:

Sections III.A.2 and III.C.3. Performance Tests

EPA proposes to disapprove the revisions to these sections, which specify particulate matter performance tests for fuel burning equipment (III.A.2) and manufacturing processes (III.A.C). Previously, the sections specified certain EPA-approved methods for performance tests. The revisions add the phrase “ * * * or other credible method approved by the Division to determine compliance with this subsection of this regulation.” EPA believes these are instances of director's discretion that are inconsistent with section 110(i) of the CAA, because they allow the State to modify stationary source requirements of the SIP without a SIP revision and without corresponding requirements such as public notice and comment and EPA approval.

Section VI.C. Fuel Sampling

EPA proposes to disapprove the revision to this section. The revision allows for the use equivalent test methods approved by the Division in fuel sampling plans. EPA believes that this is an instance of director's discretion that is inconsistent with section 110(i) of the CAA, because it allows the State to modify stationary source requirements of the SIP without a SIP revision and without corresponding requirements such as public notice and comment and EPA approval.

Section VI.F. Alternative Compliance Procedures

The State added Section VI.F to Regulation 1. This section provides for alternative compliance procedures to those in Section VI. Specifically, it provides for alternative test methods, methods of control, compliance periods, emission limits, and monitoring schedules. Section VI.F.3 states that Colorado shall obtain concurrence from EPA prior to approving an alternative test method. However, EPA believes that Section VI.F is inconsistent with section 110(i) of the CAA, as it allows the State to modify stationary source requirements without a SIP revision and without corresponding public notice and comment. Therefore, we propose to disapprove Sections III.A.2, III.C.3, VI.C, and VI.F.

The State may retain some flexibility through the authorities under 40 CFR 70.6(a)(1)(iii) and the policy in EPA's White Paper No. 2.^[2] These authorities allow adoption of enabling language in a SIP to provide for use of alternative, equally stringent requirements in the Title V permitting process so that source specific SIP revisions are not needed.

Sulfur Dioxide Emission Limits

Colorado revised Section VI (pertaining to sulfur dioxide emission regulations) by modifying emission limits for petroleum refineries (Section VI.B.4.e) and shale oil refineries (Section VI.B.4.g(ii)). The existing SIP approved rules for these sources limit SO₂ emissions to 0.3 pounds per barrel of oil processed per day. The State has revised the daily limit to 0.7 pounds per barrel of oil processed per day. Section 110(l) of the CAA provides that we cannot approve a revision to a SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. There has been no demonstration that the proposed relaxation of the SO₂ emission limits satisfies the requirements of Section 110(l). We believe these proposed changes pose a problem under Section 110(l) because they may result in an increase in SO₂ emissions within the State. The relaxation of SO₂ emission limits may also have an impact on the attainment status for other pollutants. Sulfur dioxide is a known precursor to the formation of particulate matter. As a result, the proposed changes may interfere with attainment of the NAAQS or other applicable requirements of the CAA. We therefore propose to disapprove the relaxation of the SO₂ emission limits in Sections VI.B.4.e and VI.B.4.g(ii).

Colorado later revised Section VI pertaining to sulfur dioxide emission regulations with regard to emission limits for petroleum (Section VI.B.4.e) and refining oil produced from shale (Section VI.B.4.g(ii)). The State revised the daily limit back to 0.3 pounds per barrel of oil processed per day. The State submitted this revision to Regulation 1 via the Governor's designee's letter dated August 8, 2006. We are not acting on the August 8, 2006 submittal with today's action but will act on the submittal in a separate action.

In the July 31, 2002 submittal we propose to act on, the State also deleted Section VI.B.5, which stipulates that new sources of SO₂ emissions that do not fall in specific source categories are subject to a 2 ton per day emission limit and are to utilize best available control technology. This deletion is a relaxation of the SIP's requirements. As we stated before, Section 110(l) of the CAA provides that we cannot approve a revision to a SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. There has been no demonstration that the proposed deletion will satisfy the requirements of Section 110(l). We believe the deletion of Section VI.B.5 poses a problem under Section 110(l) because it may result in an increase in SO₂ emissions within the State and interfere with attainment of the NAAQS or other applicable requirements of the CAA. Therefore, we propose to disapprove the deletion of Section VI.B.5.

Emission Limits for Existing Iron and Steel Operations

Colorado's Regulation 1 Section V provides for specific opacity and emission limits for gas-cleaning devices associated with electric arc furnace shops. Other sources of particulate emissions at iron and steel plants must comply with emission limits set forth in the Smoke and Opacity section of Regulation 1 (Section II). In the revision submitted July 31, 2002, the State deleted language from Section V regarding emission limits for existing iron and steel plant operations, because operations other than electric arc furnaces at the single existing iron and steel plant within the State have ceased, rendering the limits obsolete. EPA proposes to approve the submitted provisions with the following exception.

For the July 31, 2002 submittal, the State added in Section V.A.2 a director's discretion clause regarding the sampling methodology the source may use to determine that the mass emission rate does not exceed 0.00520 grains per dry standard cubic foot. As revised by the State, the source may use a credible method approved by the State. As discussed earlier in this proposal, this director's discretion provision provides the State with the ability to modify stationary source requirements in the SIP without going through the SIP revision process and without corresponding public notice and comment and EPA approval. EPA therefore proposes to disapprove the phrase “or by other credible method approved by the Division.”

Locomotive Opacity Limits

Although Colorado did not revise Section II.B, which sets opacity limits for locomotives, EPA is taking this opportunity to note that the provisions in Section II.B appear to be preempted. Under section 209(e)(1)(B) of the CAA, all state standards or other requirements relating to the control of emissions from new locomotives or new engines used in locomotives are expressly preempted. Under section 209(e)(2), state standards or other requirements relating to the control of emissions from all other locomotives or locomotive engines are impliedly preempted, with the following exception. EPA can authorize California to adopt such standards under certain circumstances; if EPA does so, other states may adopt identical standards.

Section II.B of Colorado's SIP imposes opacity limits on locomotives. These limits would appear to be a standard relating to control of emissions. Therefore, under section 209(e)(1)(B), the standards would be preempted as they relate to new locomotives or new engines used in locomotives, and, as EPA has not authorized California to adopt opacity limits for other locomotives or locomotive engines, the Colorado standards would appear to be preempted as they apply to such sources.

EPA's concern regarding Colorado's opacity limits should not be interpreted to mean that Colorado would be prohibited by the Clean Air Act from regulating the use and operation of locomotives and locomotive engines, although any such regulation would need to be evaluated. As described in 40 CFR Part 89, Appendix A to Subpart A:

“EPA believes that States are not precluded under section 209 from regulating the use and operation of non-road engines, such as regulations on hours of usage, daily mass emission limits, or sulfur limits on fuel; nor are permits regulating such operations precluded, once the engine is no longer new.”

V. Consideration of Section 110(l) of the CAA

Section 110(l) of the Clean Air Act 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. We believe that those portions of the revision to Colorado's Regulation 1 that we propose to approve satisfy section 110(l), because those portions do not relax existing SIP requirements. Instead, the portions of the July 31, 2002 submittal EPA proposes to approve either increase stringency of existing requirements, clarify those requirements, or remove obsolete requirements. Therefore, section 110(l) is satisfied.

VI. Proposed Action

For the reasons expressed above, we are proposing to approve revisions to the following provisions in Regulation 1: (1) Sections II.A.6, II.A.7, and II.A.9 regarding the deletion of emission limits for sources that no longer exist in the State; (2) Sections II.C.2.d. and II.C.3 regarding the burning of diseased animal carcasses to prevent a public health emergency; (3) Section III.A.1.d involving the State's method for calculating emissions from multiple fuel burning units ducted to a common stack; (4) Section III.C.2 regarding the deletion of process weight emission standards for alfalfa drum dryers; (5) Section V regarding emission standards for electric arc furnaces, except for the director's discretion provision provided for in Section V; (6) Sections VI.A.3.e, VI.A.3.f, VI.B.4.e, and VI.B.4.g(ii) regarding the methods used for the averaging of emissions over a 24 hour period.

For reasons expressed above, we propose to disapprove revisions to the following provisions in Regulation 1: (1) Section III.A.2. and Section III.C.3 involving director's discretion regarding the method for conducting performance tests; (2) the director's discretion provision in Section V regarding the method used to determine compliance with electric arc furnaces' emission standard; (3) Sections VI.B.4.e and VI.B.4.g(ii) regarding changes in the SO₂ emission limits for petroleum and oil shale refining; (4) VI.B.5 regarding SO₂ emission limits for new sources not falling in specified source categories; and (5) Sections VI.C. and VI.F. regarding the use of director's discretion for alternative methods to show compliance with fuel sampling plans and alternative compliance procedures respectively.

VII. 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 proposed 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 proposed 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 (Public Law 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.

List of Subjects in 40 CFR Part 52

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

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

Dated: July 12, 2010.

Carol Rushin,

Deputy Regional Administrator, Region 8.

Footnotes

1.  All references in this notice to particular section numbers are to the designated sections within Regulation 1.

2.  Under regulations in 40 CFR 70.6(a)(1)(iii) and policy expressed in EPA's March 5, 1996 Guidance Memorandum, “White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Program” by Lydia N. Wegman, a State may adopt enabling language in the SIP that allows the State to apply equivalent or more stringent limits, monitoring techniques, or recordkeeping and reporting requirements through the Title V permitting process.