Clean Air Act Approval and Promulgation of State Implementation Plan; Colorado; Revisions Regarding Negligibly Reactive Volatile Organic Compounds and Other Regulatory Revisions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0027a, CO-001-0028a, & CO-001-0033a; FRL-6358-6]

Clean Air Act Approval and Promulgation of State Implementation

Plan; Colorado; Revisions Regarding Negligibly Reactive Volatile

Organic Compounds and Other Regulatory Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves three revisions to the Colorado State

Implementation Plan (SIP). The SIP revisions being approved include: an

update to the State's list of negligibly reactive volatile organic

compounds (VOCs) to add acetone. The State also consolidated the list

of negligibly reactive VOCs from Regulations No. 3 and 7 into the

Common Provisions Regulation. These revisions were submitted for

approval on September 16, 1997; a clarification to the definition of

``applicable requirement'' and corrections of typographical errors in

parts A and B of Colorado Regulation No. 3. These revisions were also

submitted on September 16, 1997; and an update to the list of

negligibly reactive VOCs in the Common Provisions Regulation to add

perchloroethylene. The State also repealed its requirements in

Regulation No. 7 that required control of VOC emissions from dry

cleaning facilities using perchloroethylene as a solvent. These

revisions were submitted for approval on August 19, 1998. We approve

these revisions because they are consistent with the requirements of

the Clean Air Act (Act) and the Federal regulations.

DATES: This rule is effective on August 16, 1999 without further

notice, unless we receive adverse comment by July 19, 1999. If we

receive adverse comments, we will publish a timely withdrawal of the

direct final rule in the Federal Register and inform the public that

the rule will not take effect.

ADDRESSES: You should mail your written comments to Richard R. Long,

Director, Air and Radiation Program, Mailcode 8P-AR, Environmental

Protection Agency (EPA), Region VIII, 999 18th Street, Suite 500,

Denver, Colorado, 80202. Copies of the documents relative to this

action are available for inspection during normal business hours at the

Air and Radiation Program, Environmental Protection Agency, Region

VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466. Copies

of the Incorporation by Reference material are available at the Air and

Radiation Docket and Information Center, Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State

documents relevant to this action are available for public inspection

at the Air Pollution Control Division, Colorado Department of Public

Health and Environment, 4300 Cherry Creek Drive South, Denver,

Colorado.

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

312-6445.

SUPPLEMENTARY INFORMATION:

[[Page 32419]]

I. What Action Is EPA Taking Today?

EPA approves three SIP revisions from the State of Colorado. Those

SIP revisions include the following:

A. The State updated its list of negligibly reactive VOCs to add

acetone, as a result of revisions to the Federal definition of VOC. The

State also consolidated the list of negligibly reactive VOCs from

Regulations No. 3 and 7 into the Common Provisions Regulation. These

regulation revisions were submitted by the Governor for approval on

September 16, 1997. EPA approves all of these revisions, except for the

deletion of the definition of VOC in part A of Regulation No. 3 which

EPA is not acting;

B. The State adopted a clarification of the definition of

``applicable requirement'' and corrections of typographical errors in

the State's new source review (NSR) permitting program in parts A and B

of Colorado Regulation No. 3. This regulation revision was also

submitted on September 16, 1997; and

C. The State updated its list of negligibly reactive VOCs in the

Common Provisions Regulation to add perchloroethylene, as a result of

revisions to the Federal definition of VOC. The State also repealed its

requirements in section XII. of Regulation No. 7, which required

control of VOC emissions from dry cleaning facilities using

perchloroethylene as a solvent. These revisions were submitted on

August 19, 1998. This submittal also included revisions to the

Appendices of Regulation No. 3, which EPA is not acting on.

Note that the State's September 16, 1997 SIP submittal consisted of

ten other separate revisions to rules and/or elements of the SIP. The

other ten revisions will be, or have already been, acted on in separate

Federal Register actions.

In addition, the State's August 19, 1998 SIP submittal included

four other separate revisions to rules and/or elements of the SIP.

Those other four SIP revisions will be, or have already been, acted on

in separate Federal Register actions.

Part A of Regulation No. 3 is part of both the State's SIP and the

State's title V operating permit program. Consequently, EPA will also

address the revisions to Part A of Regulation No. 3 as revisions to the

State's title V operating permit program in the near future.

We are publishing this rule without prior proposal because we view

this as a noncontroversial amendment and anticipate no adverse

comments. However, in the ``Proposed Rules'' section of today's Federal

Register publication, we are publishing a separate document that will

serve as the proposal to approve the SIP revision if adverse comments

are filed. This rule will be effective August 16, 1999 without further

notice unless we receive adverse comments by July 19, 1999. If we

receive adverse comments, we will publish a timely withdrawal in the

Federal Register informing the public that the rule will not take

effect. We will address all public comments in a subsequent final rule

based on the proposed rule. We will not institute a second comment

period on this action. Any parties interested in commenting must do so

at this time.

II. What Specific Changes Were Made to Colorado SIP?

A. September 16, 1997 Submittal Regarding Negligibly Reactive VOCs

The September 16, 1997 SIP revisions regarding negligibly reactive

VOCs included the following regulatory revisions:

1. The State added a definition of negligibly reactive VOCs to

section I.G. of the Common Provisions Regulation. In section I.G., the

State incorporated by reference the Federal list of VOCs with

negligible photochemical reactivity from 40 CFR 51.100(s)(1) as revised

on June 16, 1995 (61 FR 31633-31637). EPA added acetone to its list of

negligibly reactive VOCs in the June 16, 1995 revisions. Section I.G.

of the Common Provisions Regulation also includes, for easier

reference, a list of the negligibly reactive VOCs identified in 40 CFR

51.100(s)(1).

2. The State deleted the lists of negligibly reactive VOCs in the

following provisions: (a) the definition of ``net emissions increase''

in section I.G. of the Common Provisions Regulation; (b) section

I.B.36.h. in part A of Regulation No. 3; (c) section I.D.4. in part B

of Regulation No. 3; and (d) section II.B. of Regulation No. 7. These

provisions now refer to the definition of negligibly reactive VOCs in

the Common Provisions Regulation.

3. Last, the State deleted the definition of VOC in section I.B.67.

of part A of Regulation No. 3 and instead referred to the definition of

VOC in the Common Provisions Regulation.

The State made these revisions in part so that the next time the

State needs to update the definition of negligibly reactive VOCs to

reflect changes to the Federal definition, the State only has to revise

one regulation.

B. September 16, 1997 Submittal of Clarifications and Corrections in

Regulation No. 3

The September 16, 1997 submittal of Regulation No. 3 consisted of

the following revisions:

1. A revision to the definition of ``applicable requirement'' in

section I.B.9. of part A of Regulation No. 3 to indicate that permits

issued by EPA under part C or D of the Act are also considered to be

applicable requirements of the State's operating permit program.

2. Corrections of typographical errors in sections I.B.59(b) and

V.C.12. of part A and in section III.D.2. of part B in Regulation No.

3.

C. August 19, 1998 Submittal of Revisions to the Common Provisions

Regulation and Regulation No. 7

The State's August 19, 1998 submittal included the following

regulatory revisions:

1. The State revised the definition of negligibly reactive VOCs in

the Common Provisions Regulation to add perchloroethylene. This change

was made pursuant to EPA's listing of perchloroethylene as a negligibly

reactive VOC on February 7, 1996 (61 FR 4588).

2. The State also repealed the requirements in section XII. of

Regulation No. 7, which required control of VOC emissions from dry

cleaning facilities using perchloroethylene as a solvent. Since

perchloroethylene is no longer considered to be a precursor to ozone

formation, these requirements are no longer needed to protect the

national ambient air quality standards (NAAQS) for ozone.

3. In addition, the State revised appendices B, C, and D of

Regulation No. 3 to revise its list of hazardous air pollutants,

pursuant to changes in the Federal list of hazardous air pollutants.

However, these Appendices have not been approved as part of the SIP

because they are not related to protection of the NAAQS. Thus, EPA is

taking no action on the revisions to the Appendices of Regulation No.

3.

III. Why is EPA Taking This Action?

A. Revisions to Regulations No. 3 and 7 and the Common Provisions

Regulation Regarding Negligibly Reactive VOCs

EPA finds the consolidation of the list of negligibly reactive VOCs

from provisions in Regulations No. 3 and 7 into the Common Provisions

Regulation to be approvable. In addition, EPA approves the revisions to

the definition of negligibly reactive VOCs in the

[[Page 32420]]

Common Provisions Regulation since they implement revisions made to

EPA's list of negligibly reactive VOCs in 40 CFR 51.100(s)(1).

However, the State's list of negligibly reactive VOCs contains some

typographical errors and is not entirely consistent with the list in 40

CFR 51.100(s)(1). Because the State has incorporated by reference the

Federal definition of negligibly reactive VOCs in 40 CFR 51.100(s)(1),

EPA doesn't believe these typographical errors in the State's list pose

any approvability concerns. EPA has notified the State of these errors

and expects the State to correct these errors the next time it revises

its definition of negligibly reactive VOCs. The State's definition of

negligibly reactive VOCs is also not current with recent additions to

the list of negligibly reactive VOCs in 40 CFR 51.100(s)(1).

Specifically, on October 8, 1996, EPA added three compounds to the list

of negligibly reactive VOCs (see 61 FR 52848). On August 25, 1997, EPA

added sixteen compounds to the list of negligibly reactive VOCs (see 62

FR 44900). Last, on April 9, 1998, EPA added one compound to the list

of negligibly reactive VOCs (see 63 FR 17331). States are not obligated

to exclude from control as a VOC those compounds which EPA has found to

be negligibly reactive. However, States should not include these

compounds in their VOC emission inventories for determining reasonable

further progress under section 182(b)(1) of the Act and should not take

credit for controlling these compounds in their ozone control strategy.

EPA is not acting on the deletion of the definition of VOC in

section I.B.67. of part A of Regulation No. 3, which now references the

definition of VOC in the Common Provisions Regulation. The definition

of VOC in the Common Provisions Regulation allows for the use of

alternative or equivalent test methods to measure VOCs, rather than EPA

reference test methods, upon approval by the Colorado Air Pollution

Control Division. This essentially allows for a variance from the SIP,

which is not allowed by section 110(i) of the Act. The same issue

exists in the State's definition of VOC in Regulation No. 7. EPA

notified the State of these deficiencies in a June 5, 1998 letter and

informed the State that the definition of VOC in the Common Provisions

Regulation and Regulation No. 7 must be revised to require EPA approval

of alternative or equivalent test methods. The definition of VOC in

Regulation No. 3 that is currently approved as part of the SIP provides

that a source must obtain prior approval from EPA in order to use an

equivalent or alternative method. Thus, EPA will not act on the

deletion of the definition of VOC in Regulation No. 3 until the State

corrects the definition of VOC in the Common Provisions Regulation.

This definition in Regulation No. 3, which is consistent with the Act,

will remain part of the EPA-approved SIP.

B. Clarifications and Minor Corrections in Regulation No. 3

EPA finds that the State's revision to the definition of

``applicable requirement'' in part A of Regulation No. 3 is necessary

to ensure the State has adequate authority to incorporate into title V

operating permits requirements from preconstruction permits issued by

EPA. Thus, this revision strengthens the State's permit program, as

does the correction of typographical errors in Regulation No. 3.

C. Revisions to Regulation No. 7 Repealing the Requirements for Dry

Cleaners That Use Perchloroethylene as a Solvent

As stated above, EPA listed perchloroethylene as a VOC with

negligible photochemical reactivity in a February 7, 1996 rulemaking

(61 FR 4588). Thus, perchloroethylene is not considered to be a

precursor to ozone formation and does not need to be included in SIPs

to protect the ozone NAAQS. Consequently, the State repealed the

provisions in section XII. of Regulation No. 7, entitled ``Control of

VOC Emissions from Dry Cleaning Facilities Using Perchloroethylene as a

Solvent,'' which had previously regulated dry-cleaning plants as a

source of VOCs contributing to the formation of tropospheric ozone.

This is acceptable to EPA as States have the option to exclude from

control those VOC compounds that EPA has found to be negligibly

reactive. See, e.g., 61 FR 4588, 4590, February 7, 1996.

EPA notes, however, that perchloroethylene is listed as a hazardous

air pollutant (HAP) under section 112(b) of the Act. Pursuant to

section 112(d) of the Act, EPA issued national emission standards for

hazardous air pollutants (NESHAPs) for two major perchloroethylene

source categories: perchloroethylene dry cleaning (58 FR 49354,

September 22, 1993) and halogenated solvent cleaning (59 FR 61801,

December 2, 1994). Currently, the use of perchloroethylene in dry-

cleaning plants is regulated as a HAP in Colorado. The provisions to

address this HAP are found in 40 CFR part 63, subpart M, ``National

Perchloroethylene Air Emissions Standards for Dry Cleaning

Facilities,'' which were incorporated by reference by Colorado into its

Regulation No. 8 on December 21, 1995.

D. Procedural Requirements for SIP Revisions

We also find that the State met the applicable public participation

requirements of sections 110(a)(2) and 110(l) of the Act in the

adoption and submittal of these SIP revisions. Sections 110(a)(2) and

110(l) of the Act provide that each revision to an implementation plan

submitted by a State must be adopted after reasonable notice and public

hearing.

Specifically, Colorado held a public hearing on December 21, 1995

on the revisions to Regulations No. 3 and 7 and the Common Provisions

Regulation regarding the State's definition of negligibly reactive

VOCs, after providing thirty days of public notice. On June 20, 1996,

Colorado held a public hearing on the clarification to the definition

of ``applicable requirement'' and the correction of typographical

errors in Regulation No. 3, after providing thirty days of public

notice. Both of these regulatory revisions were submitted by the

Governor for approval on September 16, 1997.

On November 21, 1996, Colorado held a public hearing on the

revisions to the Common Provisions Regulation and Regulation No. 7

regarding perchloroethylene, after providing thirty days of public

notice. This regulation revision was submitted by the Governor for

approval on August 19, 1998.

We did not issue a completeness or incompleteness finding for these

revisions to the SIP. Thus, pursuant to section 110(k)(1)(B) of the

Act, these submittals were deemed complete by operation of law on March

22, 1998 and on January 20, 1999, respectively.

IV. What Are the Administrative Requirements Associated With This

Action?

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local,

or tribal government, unless the Federal government provides the funds

[[Page 32421]]

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local, or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, Protection of Children from Environmental

Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to

any rule that: (1) is determined to be ``economically significant'' as

defined under E.O. 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency. This rule is not subject to

Executive Order 13045 because it does not involve decisions intended to

mitigate environmental health or safety risks.

D. Executive Order 13084

Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly affects or uniquely affects

the communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments, or EPA consults

with those governments. If EPA complies by consulting, Executive Order

13084 requires EPA to provide to the Office of Management and Budget,

in a separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

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 small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 of the Clean Air 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 create any new

requirements, I certify that this action will not have a significant

economic impact on a substantial number of small entities. Moreover,

due to the nature of the Federal-State relationship under the Clean Air

Act, preparation of flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The Clean Air

Act forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

F. 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

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 approval action promulgated does 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 approves pre-

existing requirements under State or local law, and imposes no new

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

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

G. Submission to Congress and the Comptroller General

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 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).

H. Audit Privilege and Immunity Law

Nothing in this action should be construed as making any

determination or expressing any position regarding Colorado's audit

privilege and penalty immunity law (sections 13-25-126.5, 13-90-107,

and 25-1-114.5 Colorado Revised Statutes (C.R.S.); S.B. 94-139,

effective June 1, 1994) or its impact upon any approved provision in

the SIP, including the submittal at issue here. The action taken herein

does not express or imply any viewpoint on the question of whether

there are legal deficiencies in this or any other Clean Air Act program

resulting from the effect of Colorado's audit privilege and immunity

law. A State audit privilege and immunity law can affect only State

[[Page 32422]]

enforcement and cannot have any impact on federal enforcement

authorities. EPA may at any time invoke its authority under the Clean

Air Act, including, for example, sections 113, 114, 167, 205, 211 or

213, to enforce the requirements or prohibitions of the State Plan,

independently of any State enforcement effort. In addition, citizen

enforcement under section 304 of the Clean Air Act is likewise

unaffected by a State audit privilege or immunity law.

I. 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 August 16, 1999. 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 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, Reporting and recordkeeping

requirements, and Volatile organic compounds.

Dated: June 2, 1999.

Carol Rushin,

Acting Regional Administrator, Region VIII.

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 et seq.

Subpart G--Colorado

2. Section 52.320 is amended by adding paragraph (c)(87) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(87) On September 16, 1997, the Governor of Colorado submitted

revisions to Regulations No. 3 and 7 and the Common Provisions

Regulation to update the State's list of negligibly reactive volatile

organic compounds (VOCs) and to consolidate the list of negligibly

reactive VOCs from Regulations No. 3 and 7 into the Common Provisions

Regulation. The Governor also submitted revisions to Parts A and B of

Regulation No. 3 on September 16, 1997 to amend the definition of

``applicable requirement'' and to correct typographical errors. On

August 19, 1998, the Governor submitted revisions to the Common

Provisions Regulation to update its list of negligibly reactive VOCs.

The Governor also submitted revisions to Regulation No. 7 to repeal the

requirements for control of VOC emissions from dry cleaning facilities

using perchloroethylene as a solvent.

(i) Incorporation by reference.

(A) Common Provisions Regulation, 5 CCR 1001-2, Section I.G.,

definition of ``negligibly reactive VOCs (NRVOCs)'' and subsection h.

of the definition of ``net emissions increase,'' adopted 12/21/95,

effective 3/1/96.

(B) Regulation No. 3, ``Air Contaminant Emission Notices,'' 5 CCR

1001-5, adopted 12/21/95, effective 3/1/96, as follows: Part A,

subsection h. of the definition of ``net emissions increase'' in

Section I.B.37.; and Part B, Section IV.D.4.

(C) Regulation No. 7, ``Emissions of Volatile Organic Compounds,''

5 CCR 1001-9, Section II.B., adopted 12/21/95, effective 3/1/96.

(D) Regulation No. 3, ``Air Contaminant Emission Notices,'' 5 CCR

1001-5, adopted 6/20/96, effective 8/30/96, as follows: Part A,

definition of ``applicable requirement'' in Section I.B.9., definition

of ``major source (for the purposes of Part C--operating permits)'' in

Section I.B.59., and Section V.C.12; and Part B, Section III.D.2.

(E) Common Provisions Regulation, 5 CCR 1001-2, Section I.G.,

definition of ``negligibly reactive VOCs (NRVOCs)'' adopted 11/21/96,

effective 1/30/97.

(F) Regulation No. 7, ``Emissions of Volatile Organic Compounds,''

5 CCR 1001-9, Section XII., adopted 11/21/96, effective 1/30/97.

[FR Doc. 99-15161 Filed 6-16-99; 8:45 am]

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