Approval and Promulgation of Implementation Plans; Colorado; Correction

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5933-7]

Approval and Promulgation of Implementation Plans; Colorado;

Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing corrections to the State Implementation Plan

(SIP) for the State of Colorado. First, EPA is proposing corrections to

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 proposing

to remove from the approved SIP two sections of Colorado's prevention

of significant deterioration (PSD) rules in Regulation No. 3. EPA is

also proposing to disapprove 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. Specifically,

the provision in that definition 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 proposed for disapproval 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 proposing to correct 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 proposing to correct a September 23, 1980 rulemaking,

in which EPA mistakenly replaced a Colorado SIP approval in 40 CFR

52.320 with a Montana SIP approval.

DATES: Comments must be received in writing on or before January 16,

1998.

ADDRESSES: Written comments on this action should be addressed to Vicki

Stamper, 8P2-A, Environmental Protection Agency, Region VIII, 999 18th

Street, suite 500, Denver, Colorado 80202-2466. Copies of the documents

relative to this action are available for inspection during normal

business hours at the following location: Air Program, Environmental

Protection Agency, Region VIII, 999 18th Street, suite 500, Denver,

Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII,(303)

312-6445.

SUPPLEMENTARY INFORMATION:

I. Corrections to 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

The November 12, 1993 SIP submittal contained revisions to

Regulation No. 3 that were adopted by the Colorado Air Quality Control

Commission (AQCC) at a July 15, 1993 public hearing. The primary

purpose of the State's July 1993 rulemaking was to adopt an operating

permit program to address the requirements of title V of the Clean Air

Act Amendments of 1990 and 40 CFR part 70. Concurrent with the adoption

of its operating permit program, the State made revisions to its

construction permit regulations, which are also in Regulation No. 3, to

make the two programs work together and to allow for the implementation

of certain title V operating permit provisions. At the same time, the

State also completely restructured and renumbered the provisions in

Regulation No. 3. While the majority of the provisions in the

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State's construction permitting regulations were unchanged, the State's

November 12, 1993 SIP submittal included the State's entire

construction permitting regulations (including its PSD rules) because

of the restructuring and renumbering of Regulation No. 3.

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 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

provisins 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 AQCC 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.''

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

statement quoted above 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

[[Page 66048]]

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 statement in the State's definition of ``federally

enforceable'' quoted above is thus misleading to the public and the

regulated community.

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 above-quoted

statement was made in error. Consequently, EPA is proposing to correct

its January 21, 1997 rulemaking to disapprove the statement 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 proposing this correction pursuant to section 110(k)(6) of the

Act.

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 proposing

to amend the regulatory text regarding the State's July 23, 1979

submittal to remove the reference to House Bill 1109. 3

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\3\ 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 proposing to

revise 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. Proposed Action

EPA is proposing to revise 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 proposing to correct 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 proposing to amend 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 proposing to amend 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.

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 economic 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 proposed corrections would remove certain requirements from the

SIP. However, regardless of EPA's final action, these requirements will

still apply as a matter of State law. Thus, the proposed corrections

would not alter the impact of these requirements on small entities, and

EPA certifies that the removal of such requirements from the SIP would

not have a significant economic impact on a substantial number of small

entities.

The proposed corrections would also result in a disapproval of

certain language in the State's definition of federally enforceable in

its permitting regulations. Disapproval of this language would not

create any new requirements and would not alter requirements that the

State is already imposing. Therefore, EPA certifies that this

disapproval would not have a significant economic impact on a

substantial number of small entities.

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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 proposed corrections 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 would impose no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, would result from this

action.

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: November 17, 1997.

Patricia D. Hull,

Acting Regional Administrator, Region VIII.

[FR Doc. 97-32926 Filed 12-16-97; 8:45 am]

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