Approval and Promulgation of Implementation Plans; Colorado; Correction

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5977-5]

Approval and Promulgation of Implementation Plans; Colorado;

Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is promulgating corrections to the State Implementation

Plan (SIP) for the State of Colorado. First, EPA is correcting its

January 21, 1997 rulemaking in which EPA approved several Colorado new

source review (NSR) SIP revisions. Specifically, pursuant to a December

17, 1996 request from the state of Colorado, EPA is removing from the

approved SIP two sections of Colorado's prevention of significant

deterioration (PSD) rules in Regulation No. 3. EPA is also disapproving

a provision in the State's definition of ``Federally enforceable'' in

Regulation No. 3 that EPA inadvertently failed to disapprove in its

January 21, 1997 rulemaking. The provision in that definition which is

being disapproved states that provisions which are not required by the

Federal Clean Air Act (Act) shall not be submitted as part of the SIP

and shall not be federally enforceable. This provision is being

disapproved because the Act provides that any provision approved by EPA

as part of the SIP is federally enforceable unless and until the State

requests, and EPA approves, a SIP revision removing such provision.

Second, EPA is correcting an October 5, 1979 rulemaking in which

EPA incorrectly listed Colorado House Bill 1109 as being approved as

part of the Colorado SIP.

Last, EPA is correcting a September 23, 1980 rulemaking, in which

EPA mistakenly replaced a Colorado SIP approval in 40 CFR 52.320 with a

Montana SIP approval.

EPA proposed these corrections for public comment on December 17,

1997, and no comments were received within the 30-day public comment

period.

EFFECTIVE DATE: This rule is effective on April 24, 1998.

ADDRESSES: Copies of the documents relative to this action are

available for inspection during normal business hours at the Air

Program, Environmental Protection Agency, Region VIII, 999 18th Street,

suite 500, Denver, Colorado 80202-2466 and The Air and Radiation Docket

and Information Center, 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, at

(303) 312-6445.

SUPPLEMENTARY INFORMATION: On December 17, 1997, EPA proposed several

corrections to previous Colorado SIP approvals (62 FR 66046-49). EPA

received no public comments on the proposed actions within the 30-day

public comment period. EPA received one comment letter, from the

Colorado Air Pollution Control Division (APCD), after the close of the

public comment period. EPA discusses the APCD's comment letter in

section I.B. of this notice. The APCD's comment letter does not warrant

any change to the proposed action. Therefore, EPA is promulgating the

corrections to the Colorado SIP as proposed in the December 17, 1997

Federal Register. The following provides background information on the

specific corrections being made to the Colorado SIP and EPA's

justification for these corrections:

I. Corrections to EPA's January 21, 1997 Rulemaking

On January 21, 1997, EPA promulgated approval of five Colorado SIP

revisions submitted on November 12, 1993, August 25, 1994, September

29, 1994, November 17, 1994, and January 29, 1996. (See 62 FR 2910-

2914.) All of these SIP submittals contained revisions to the State's

NSR and PSD provisions in Parts A and B of Colorado Regulation No. 3.

A. Correction to Exclude Sections V.B. and VII.A.5. of Part B of

Colorado Regulation No. 3 From the SIP

Although the State's November 12, 1993 submittal discussed above

only included a few changes to the State's construction permitting

requirements, the State submitted its construction permitting

regulations (including its PSD rules) in their entirety because the

State had also restructured and renumbered Regulation No. 3 in this

submittal. Subsequently, on December 17, 1996, the State submitted a

request to exclude two sections of Part B of Regulation No. 3 from its

November 12, 1993 SIP submittal, specifically Sections V.B. and

VII.A.5. (referred to herein as Sections V.B. and VII.A.5. or as ``the

two provisions.'') On January 21, 1997, EPA's approval of the State's

November 12, 1993 SIP submittal was published (62 FR 2910). The

approval did not exclude Sections V.B. and VII.A.5.

Section V.B. of Part B of Regulation No. 3 applies the Class I

sulfur dioxide PSD increment to certain pristine areas

[[Page 14358]]

in Colorado that are not designated Class I by the Federal PSD

regulations. This is not required by the Act or Federal PSD

regulations. Section VII.A.5. of Part B of Regulation No. 3 provides

that no new major stationary source or major modification shall

individually consume more than 75% of an applicable increment. No such

provision (or similar provision) is required by the Act or Federal PSD

regulations. Neither of the two provisions is necessary for the State

to demonstrate attainment and/or maintenance of the National Ambient

Air Quality Standards (NAAQS). Therefore, EPA believes that these two

provisions may be removed from the SIP.

In this instance, EPA believes it is appropriate to remove the two

provisions from the SIP pursuant to EPA's authority under section

110(k)(6) of the Act. Section 110(k)(6) of the Act provides as follows:

Whenever the Administrator determines that the Administrator's

action approving, disapproving, or promulgating any plan or plan

revision (or part thereof), area designation, redesignation,

classification, or reclassification was in error, the Administrator

may in the same manner as the approval, disapproval, or promulgation

revise such action as appropriate without requiring any further

submission from the State. Such determination and the basis thereof

shall be provided to the State and public.

The State submitted its request well before EPA's final approval of

the State's November 12, 1993 SIP submittal was published in the

Federal Register or was otherwise announced to the public. Thus, EPA

had an opportunity to exclude the two provisions from the final

published rule, but failed to do so.

Although there may be instances where a request to withdraw

components of a SIP implicates the Act's requirement for State notice

and hearing, EPA does not believe this is one of them. First, these two

provisions had been part of the State's regulations for many years,\1\

but had been expressly excluded from the State's SIP submittals of

prior PSD revisions and had been expressly excluded from EPA's

rulemaking actions on those prior PSD rule revisions. (See 51 FR 31125,

September 2, 1986, and 56 FR 12850, March 28, 1991.) Second, the State

merely renumbered these two provisions at its July 15, 1993 hearing,

and there was no indication that the State intended to change course

and submit these two provisions to EPA for approval into the SIP.

Presumably, if the State had intended such a change in course, the

State would have focused its notice and public hearing on the two

provisions prior to adopting the renumbering of Regulation No. 3 and

submitting it to EPA. This did not occur, and the evidence suggests

that submittal of these two provisions to EPA was merely an oversight.

If EPA had reviewed the circumstances more carefully when it received

the State's December 17, 1996 letter, EPA could have corrected its

final rule before publication.

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\1\ The Colorado Air Quality Control Commission originally

adopted Section V.B. on March 10, 1983 and Section VII.A.5. on May

17, 1990.

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With respect to Section V.B., EPA also believes a correction is

necessary because Section V.B. (which, as stated above, applies the

Class I sulfur dioxide increment to certain pristine Class II areas in

Colorado) is inconsistent with the requirements of EPA's PSD

regulations. Specifically, 40 CFR 51.166(g) contains certain

requirements for redesignating an area from Class II to Class I, and

the State has not addressed those requirements for the areas listed in

Section V.B. Thus, EPA erred in approving Section V.B. as part of the

SIP. This position is consistent with EPA's prior rulemaking regarding

this provision. In a September 2, 1986 action, EPA did not approve this

provision into the SIP, explaining that the State had not followed the

specific procedures outlined in 40 CFR 51.166(g) for redesignating an

area from Class II to Class I. (See 51 FR 31125.)

For the reasons discussed above, EPA is correcting its January 21,

1997 SIP approval to remove Sections V.B. and VII.A.5. of Part B of

Regulation No. 3 from the approved SIP.

B. Correction to Disapprove Provision in Definition of ``Federally

Enforceable'' in Colorado Regulation No. 3

In the State's September 29, 1994 SIP submittal of revisions to

Regulation No. 3, the State revised its definition of ``Federally

Enforceable'' in Section I.B.22. of Part A of Colorado Regulation No.

3. EPA's nonattainment NSR and PSD permitting regulations in 40 CFR

51.165 and 51.166, respectively, require this term to be defined in

States' permitting programs, as it is used in various definitions and

provisions of the Federal preconstruction permitting regulations.

Colorado's definition of ``Federally enforceable'' basically

mirrors the Federal definition in 40 CFR 51.165(a)(1)(xiv) and

51.166(b)(17). However, on August 18, 1994, the State revised this

definition (among other things) to add a provision stating the

following: ``Notwithstanding the foregoing, and except for the

voluntarily accepted limitations and conditions described in the

preceding sentence, any provision, standard, or regulation that is not

required by the Federal Act or that is more stringent than the Federal

Act is adopted under powers reserved to the State of Colorado pursuant

to section 116 of the Federal Act, is not to be submitted to the EPA as

a provision of the SIP and shall not be federally enforceable.''

(Referred to hereafter as the ``quoted language.'') According to the

State, this revision was made to mirror the definition found in Section

25-7-105.1 of the Colorado Air Pollution Prevention and Control Act.

During the State's public comment period on this regulatory change,

EPA stated in an August 12, 1994 letter that it could not approve the

quoted language as part of the SIP. Any provision that has been

submitted by the State and approved by EPA as part of the SIP is

considered to be Federally enforceable regardless of whether it is

required by the Act or more stringent than the Act. Similarly, terms

and conditions incorporated into a permit that is issued under an EPA-

approved permitting program, such as new source review or title V

operating permits, are also generally considered to be Federally

enforceable.\2\ The only way a State can change the Federal

enforceability of any provision that has been approved by EPA as part

of the SIP is by submitting a request for revision to the SIP and by

receiving EPA approval of the SIP revision (through notice and comment

rulemaking via the Federal Register).

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\2\ States can designate certain provisions in a title V permit

that have not been approved as part of the SIP or that are not

otherwise Federally enforceable or Federally required as ``State-

only'' in a title V operating permit, and those terms would not be

considered Federally enforceable. [See 40 CFR 70.6(b)(2).]

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EPA believes the quoted language is thus misleading to the public

and the regulated community.

As noted earlier in this notice, EPA received one comment letter,

from the Colorado Air Pollution Control Division (APCD), after the

close of the public comment period.\3\ In its comment letter, the APCD

objects to EPA's proposal to disapprove the quoted language. The APCD

comments that EPA does not have the authority to expand the scope

[[Page 14359]]

of a SIP submittal by turning State-only provisions into Federally-

enforceable provisions and that EPA's disapproval of the quoted

language may preclude the State from submitting State-only provisions

to EPA for the purpose of providing complete information about the

State program.

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\3\ The APCD did not explain why it was submitting comments

after the deadline for comments, nor did it request an extension of

the comment period. EPA does not believe it has a legal obligation

to consider or respond to this late comment letter as part of this

rulemaking action. Nonetheless, because doing so will not

significantly delay EPA's final rulemaking action in this matter,

EPA is providing this brief response to the APCD's letter. EPA has

provided a separate response in a letter to the APCD.

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As to these assertions, the APCD does not explain how EPA's

disapproval of the quoted language would turn State-only provisions in

a SIP submittal into Federally-enforceable provisions. The State

remains free to explicitly identify State-only measures in a SIP

submittal and provide them to EPA for informational purposes only. EPA

has not approved such measures into the SIP in the past and does not

intend to do so in the future because EPA does not consider such

measures to be part of the official SIP submittal. EPA's disapproval of

the quoted language will not change EPA's approach to explicitly-

identified State-only measures in SIP submittals. Similarly, EPA's

disapproval of the quoted language will not give EPA the authority to

approve, into the Federally enforceable SIP, measures the State has not

submitted to EPA or force the State to submit measures that it would

not otherwise submit.

On the other hand, if the quoted language remains part of the

approved SIP, some may mistakenly believe that it renders unenforceable

by EPA a measure the Governor has asked EPA to approve and EPA has

approved into the SIP, simply because the measure is not required by

the Clean Air Act or is more stringent than Federally required. Such an

interpretation is inconsistent with the Clean Air Act (e.g., sections

110, 113, and 304 of the Act), and relevant case law. See, e.g., Union

Elec. Co. v. E.P.A., 96 S.Ct. 2518 (1976). Also, under such an

interpretation, the quoted language would make it impossible for the

general public, the regulated community, or EPA to have any certainty

regarding the contents of the Federally enforceable SIP in Colorado.

This result would clearly be contrary to Congressional intent. Thus,

EPA feels compelled to disapprove the quoted language. The APCD's

comments offer no reason for EPA to change its position on this matter.

In EPA's January 21, 1997 rulemaking, EPA approved the definition

of ``Federally enforceable'' into the SIP in its entirety. (See 62 FR

2914.) However, for the reasons discussed above and in EPA's August 12,

1994 letter to the State, EPA believes its approval of the quoted

language was made in error. Consequently, EPA is correcting its January

21, 1997 rulemaking by disapproving the language in the State's

definition of ``Federally enforceable'' which states that any

provision, standard or regulation not required by the Act is not to be

submitted as part of the SIP and shall not be Federally enforceable.

EPA is making this correction pursuant to section 110(k)(6) of the Act.

Because the quoted language is not required by the Act and will not

affect the State's ability to implement its permit program, EPA's

disapproval of the quoted language will not start any sanctions or

Federal implementation plan clocks.

II. Correction of October 5, 1979 Rulemaking

On October 5, 1979, EPA approved several submittals from the State

of Colorado, which were made pursuant to the 1977 revisions to the Act.

(See 44 FR 57401-57411.) In that action, EPA listed House Bill 1109 in

40 CFR 52.320(c)(14)as one of the submittals being approved (see 44 FR

57409, October 5, 1979). House Bill 1109 repealed and reenacted the

State's Air Quality Control Act. The bill was signed into law by the

Governor on June 20, 1979 and submitted to EPA on July 23, 1979, along

with House Bill 1090 (regarding burning of solid wastes) and Senate

Bill 1 (regarding provisions for reducing motor vehicle emissions). In

the preamble to the October 5, 1979 rulemaking, EPA discussed the

State's July 23, 1979 submittal of the three bills. EPA indicated that

it was taking no action on House Bill 1109 at that time and would

propose action in the Federal Register at a future date to take public

comment on the acceptability of the State's revised Air Quality Control

Act (see 44 FR 57403). Since EPA clearly stated in the preamble that it

was not taking action on House Bill 1109, EPA erred in listing House

Bill 1109 as being approved as part of the SIP in 40 CFR 52.320(c)(14).

Therefore, pursuant to section 110(k)(6) of the Act, EPA is correcting

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

remove the reference to House Bill 1109.\4\

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\4\ Note that the provision in 40 CFR 52.320(c)(10) promulgated

on October 5, 1979 was renumbered as 40 CFR 52.320(c)(15) on June

27, 1980. See 45 FR 43411.

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Although EPA's October 5, 1979 rulemaking indicated that EPA would

propose action on House Bill 1109 at a future date, EPA no longer

believes it is necessary to take action on House Bill 1109 or any

successor provisions in the State's Air Quality Control Act. Generally,

EPA does not believe it is necessary to approve State authorizing

legislation into the SIP. Instead, EPA needs to be satisfied that such

authorizing legislation exists and that it shows that the State has

adequate legal authority to adopt, implement, and enforce the SIP.

Therefore, EPA will not be taking action on House Bill 1109.

III. Correction of September 23, 1980 Rulemaking

On September 23, 1980, EPA approved various SIP submittals from the

State of Montana intended to address the 1977 revisions to the Act. In

that action, EPA mistakenly revised 40 CFR 52.320, which identifies SIP

approvals for the State of Colorado, to reflect approval of these

various Montana SIP submittals (see 45 FR 62984). EPA's original

intention with the September 23, 1980 rulemaking was to revise 40 CFR

52.1370(c)(8) for the State of Montana's plan, but EPA promulgated the

language regarding Montana's SIP at 40 CFR 52.320(c)(8). On June 30,

1982, EPA partially corrected this error for Montana by promulgating

the September 23, 1980 approval at 40 CFR 52.1370(c)(10). (See 47 FR

28373.) However, no correction was ever made to the ``Identification of

Plan'' for Colorado at 40 CFR 52.320. Consequently, EPA is amending 40

CFR 52.320(c)(8) to reinstate the previous Colorado SIP approval

promulgated at 52.320(c)(8), as it was last revised on March 2, 1976

(see 41 FR 8958).

IV. Final Action

EPA is revising 40 CFR 52.320(c)(72)(i)(D) to exclude Sections V.B.

and VII.A.5. of Part B of Regulation No. 3, which pertain to the

State's PSD program, from the approved SIP.

EPA is correcting its January 21, 1997 approval of Section I.B. of

Part A of Regulation No. 3 (as in effect on September 30, 1994) to

disapprove the last sentence in the definition of ``Federally

enforceable'' which states that any provision, standard or regulation

not required by the Act is not to be submitted as part of the SIP and

shall not be Federally enforceable.

EPA is amending 40 CFR 52.320(c)(15) to remove the reference to

House Bill 1109, which was incorrectly listed as being approved in

EPA's October 5, 1979 Colorado rulemaking (see 44 FR 57409).

Last, EPA is amending 40 CFR 52.320(c)(8) to reinstate the Colorado

SIP approval promulgated on March 2, 1976 (see 41 FR 8958) that was

incorrectly replaced in a September 23, 1980 rulemaking (45 FR 62984).

EPA is making these corrections pursuant to section 110(k)(6) of

the Act.

[[Page 14360]]

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

The corrections promulgated herein remove certain provisions from

the SIP. However, regardless of EPA's final action, these provisions

still apply as a matter of State law, and thus, EPA's action does not

affect any existing requirements applicable to small entities. Also,

EPA's action does not impose any new Federal requirements. Therefore,

EPA certifies that this correction action does not have a significant

impact on a substantial number of small entities.

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the corrections promulgated do not include

a Federal mandate that may result in estimated costs of $100 million or

more to either State, local, or tribal governments in the aggregate, or

to the private sector. This Federal action imposes no new requirements.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by May 26, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review must be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

Dated: March 5, 1998.

William P. Yellowtail,

Regional Administrator, Region VIII.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

2. Section 52.320 is amended by revising paragraphs (c)(8),

(c)(15), and (c)(72)(i)(D) to read as follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(8) On June 7, 1974, the Governor submitted five Air Quality

Maintenance Area designations.

* * * * *

(15) On July 23, 1979, the Governor submitted House Bill 1090 and

Senate Bill 1 as part of the plan.

* * * * *

(72) * * *

(i) * * *

(D) Regulation No. 3, Air Contaminant Emissions Notices, 5 CCR

1001-5, revisions adopted 8/18/94, effective 9/30/94, as follows: Part

A (with the exception of the last sentence in the definition of

``Federally enforceable'' in Section I.B.22 and with the exception of

Section IV.C.) and Part B (with the exception of Sections V.B. and

VII.A.5.). This version of Regulation No. 3, as incorporated by

reference here, supersedes and replaces all versions of Regulation No.

3 approved by EPA in previous actions.

* * * * *

[FR Doc. 98-7640 Filed 3-24-98; 8:45 am]

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