
[Federal Register Volume 76, Number 191 (Monday, October 3, 2011)]
[Rules and Regulations]
[Pages 61054-61056]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25292]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-0649; FRL-9290-2]


Approval and Promulgation of State Implementation Plans; State of 
Colorado Regulation Number 3: Revisions to the Air Pollutant Emission 
Notice Requirements and Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is partially approving and partially disapproving State 
Implementation Plan (SIP) revisions regarding the Air Pollutant 
Emission Notice (APEN) regulations submitted by the State of Colorado 
on September 16, 1997, June 20, 2003, July 11, 2005, August 8, 2006 and 
August 1, 2007. The APEN provisions in Sections II.A. through II.D., 
Part A of Colorado's Regulation Number 3, specify the APEN filing 
requirements for stationary sources and exemptions from such 
requirements. This action is being taken under section 110 of the Clean 
Air Act (CAA).

DATES: This final rule is effective November 2, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2007-0649. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the Air 
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Crystal Freeman, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-6602, 
freeman.crystal@epa.gov.

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Colorado mean the State of Colorado, unless 
the context indicates otherwise.

Table of Contents

I. Background
II. Response to Comments
III. Section 110(l) of the CAA
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    The State of Colorado submitted formal revisions to their SIP 
between 1997 and 2007 with Governor's letters dated as follows: 
September 16, 1997; June 20, 2003; July 11, 2005; August 8, 2006; and 
August 1, 2007. These submittals included revisions to the Colorado 
APEN provisions in Regulation Number 3, Part A, Sections II.A. through 
II.D. The Colorado APEN provisions in Regulation Number 3, Part A, 
Sections II.A. through II.C., specify requirements for stationary 
sources (major and minor) to file emission notices. These notices 
provide information such as the location where a source's emissions 
will occur, the nature of the source or of the activity generating the 
expected emissions, and an estimate of the emissions' quantity and 
composition. The Colorado APEN provisions in Regulation Number 3, Part 
A, Section II.D. exempt specific categories of sources from APEN 
requirements.
    EPA's last final rulemaking action addressing revisions to 
Colorado's APEN provisions was published January 21, 1997 (62 FR 2910). 
The final rule today addresses the APEN SIP revisions discussed above. 
EPA's final rule action on the revisions submitted by the State does 
not trace the APEN provision changes through each of the submissions 
noted above. For reasons of efficiency and clarity, EPA compared the 
language of each APEN provision as submitted by the State on August 1, 
2007 with the EPA-approved text of the same APEN provision in the 1997 
Colorado SIP. These changes are detailed in the technical support 
document available in the docket for this action. In Table 1 of Section 
IV. below, EPA provides the approvals, disapprovals and no actions 
being taken for each provision number as of the August 1, 2007 
submittal. The reasons for EPA's final action are discussed in our 
notice proposing action on these revisions and in the associated 
technical support document. (76 FR 4271 (Jan. 25, 2011)). Through this 
approach to the cumulative revisions, EPA is taking final action on all 
APEN revisions--with certain exceptions noted below--as submitted by 
the State of Colorado on September 16, 1997, June 20, 2003, July 11, 
2005, August 8, 2006, and August 1, 2007.

II. Response to Comments

    EPA did not receive comments on our January 25, 2011 Federal 
Register proposed action regarding the partial approval and partial 
disapproval of Colorado's SIP revisions to their Regulation Number 3, 
Part A, Sections II.A. through II.D.

 III. Section 110(l) of the CAA

    Section 110(l) of the CAA states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
toward attainment of the National Ambient Air Quality Standards (NAAQS) 
or any other applicable requirements of the Act. Those portions of the 
revisions to Colorado's Regulation Number 3, Part A, Sections II.A. 
through II.D. that we are approving satisfy section 110(l), because 
those portions do not relax existing SIP requirements. Instead, the 
revisions that EPA is approving increase stringency of existing 
provisions, clarify existing provisions, or remove obsolete provisions. 
Therefore, section 110(l) is satisfied for the provisions that EPA is 
approving. However, EPA is disapproving some exemptions in part because 
those provisions relax existing SIP requirements. (See 76 FR 4271.) 
Because EPA is disapproving those provisions, section 110(l) is 
satisfied.

IV. Final Action

    EPA is partially approving and partially disapproving the Colorado 
SIP revisions for APEN requirements and exemptions submitted by the 
State on September 16, 1997, June 20, 2003, July 11, 2005, August 8, 
2006, and August 1, 2007. As noted above, EPA's evaluation of the 
revisions submitted by the State

[[Page 61055]]

does not track the APEN provision changes through each of the 
submissions, but instead, for each provision, compared the textual 
changes between the EPA-approved Colorado APEN provisions effective 
February 21, 1997, and the Colorado-adopted APEN provisions included 
with the August 1, 2007 submittal. Below is a comprehensive summary of 
EPA's final action--approval, disapproval or no action--for each of the 
Colorado APEN provisions in Regulation Number 3, Part A, Section II. 
The APEN provision numbers are as codified in the August 1, 2007 
submission.
    In addition to Table 1 below, EPA is approving revisions to the 
following provisions in Regulation Number 3, Part A, Section II: (1) 
Deletion of provisions II.B.8., II.B.10., and II.D.4.b.; and (2) 
renumbering of APEN requirements, the entirety of the language and 
their new location in Section I.B. The provision references, before the 
renumbering, were: II.B.5. and II.B.9. The references, after the 
renumbering, are, respectively, I.B.43 and I.B.16.
    EPA is disapproving revisions to the following provisions in 
Regulation Number 3, Part A, Section II, which can also be found in 
Table 1 below: (1) A revision to II.D.1.q., regarding the APEN 
exemption for open burning activities; \1\ (2) new exemption 
II.D.1.sss. and its subprovisions, which would exempt three tiers of 
stationary internal combustion engines from APEN requirements; (3) new 
exemption II.D.1.ttt. and its subprovisions, which would exempt three 
tiers of emergency power generators from APEN requirements; (4) new 
exemption II.D.1.xxx., which exempts deaerator/vacuum pump exhausts; 
and (5) new exemption II.D.1.ffff., applicable to Air Curtain 
Destructors.
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    \1\ The revision changes the reference from Regulation Number 1 
to Regulation Number 9, which is enforceable only by the State.
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    EPA is taking no action on the following provisions, also found in 
Table 1 below, in Regulation Number 3, Part A, Section II: (1) 
II.D.1.m; II.D.1.ee; II.D.1.uu; II.D.1.ddd; and II.D.1.eeee., because 
EPA already proposed approval of the repeal of these exemptions in a 
separate action published on July 21, 2010 (75 FR 42346); and (2) the 
revision to APEN exemption II.D.1.uuu., because we proposed approval of 
the revision in the same July 21, 2010 proposal. The remaining 
provisions listed in the ``No Action'' section of the table were not 
revised by the State in any of the submittals that are the subject of 
this action.

 Table 1--List of Colorado APEN Provisions (Requirements and Exemption in Sections II.A Through II.D of Part A,
                                     Regulation Number 3) by EPA--Final Rule
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              EPA's final rule                        APEN provision number in August 1, 2007 submission
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Approval....................................  II.A; II.B.1; II.B.1.b; II.B.2; II.B.3; II.B.3.a; II.B.4.a.
                                               through II.B.4.f; II.B.5; II.B.6 \2\; II.C., II.C.1, II.C.1.a;
                                               II.C.1.h; II.C.2; II.C.2.b; II.C.2.b.(i) through II.C.2.b.(iv);
                                               II.C.3; II.C.3.a through II.C.3.d; II.D; II.D.1; II.D.1.a;
                                               II.D.1.f through II.D.1.i; II.D.1.j; II.D.1.k; II.D.1.n;
                                               II.D.1.x; II.D.1.y; II.D.1.aa; II.D.1.bb; II.D.1.kk; II.D.1.nn;
                                               II.D.1.oo; II.D.1.aaa; II.D.1.bbb; II.D.1.ccc; II.D.1.fff;
                                               II.D.1.ggg; II.D.1.lll; II.D.1.nnn. through II.D.1.rrr;
                                               II.D.1.vvv; II.D.1.www; II.D.1.yyy through II.D.1.dddd; II.D.2
                                               through II.D.6.
Disapproval.................................  II.D.1.q; II.D.1.sss; II.D.1.sss(i); II.D.1.sss(ii);
                                               II.D.1.sss(iii); II.D.1.ttt; II.D.1.ttt(i); II.D.1.ttt(ii);
                                               II.D.1.ttt(iii); II.D.1.xxx; II.D.1.ffff.
No Action...................................  II.B; II.B.1.a; II.B.3.b; II.B.4; II.C.1.b. through II.C.1.g;
                                               II.C.2.a; II.D.1.b. through II.D.1.e; II.D.1.i.(i). through
                                               II.D.1.i.(iii); II.D.1.l; II.D.1.m; II.D.1.o; II.D.1.p; II.D.1.r.
                                               through II.D.1.w; II.D.1.z; II.D.1.cc; II.D.1.dd; II.D.1.ee;
                                               II.D.1.ff. through II.D.1.jj; II.D.1.ll; II.D.1.mm; II.D.1.pp.
                                               through II.D.1.tt; II.D.1.uu; II.D.1.vv. through II.D.1.zz;
                                               II.D.1.ddd; II.D.1.eee; II.D.1.hhh. through II.D.1.kkk;
                                               II.D.1.mmm; II.D.1.uuu; II.D.1.eeee.
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\2\ For provisions II.B.5. and II.B.6., we are approving the renumbering.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

[[Page 61056]]

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 2, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: March 24, 2011.
Carol Rushin,
Deputy Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. Section 52.320 is amended by adding paragraphs (c)(72)(i)(F) and 
(c)(119) to read as follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (72) * * *
    (i) * * *
    (F) Previously approved in paragraph (c)(72)(i)(D) under Regulation 
No. 3, Air Contaminant Emissions Notices, 5 CCR 1001-5. These sections 
are now deleted without replacement: II.B.7., II.B.8., II.B.9., 
II.B.10., and II.D.7, effective October 30, 2006.
* * * * *
    (119) The State of Colorado submitted revisions on September 16, 
1997, June 20, 2003, July 11, 2005, August 8, 2006 and August 1, 2007 
to Colorado's 5 CCR 1001-5 Regulation Number 3, Part A, Section II. The 
August 1, 2007 submittal included a renumbering of sections in II.B and 
II.D. The incorporation by reference in (c)(119)(i)(A) reflects the 
renumbered provisions as of the August 1, 2007 submittal. Additionally, 
the State of Colorado deleted sections II.B.7., II.B.8., II.B.9., 
II.B.10., and II.D.7. without replacement. The deletion of these 
provisions has been incorporated by reference at (c)(72)(i)(F) of this 
section, the paragraph containing the original incorporation by 
reference of the provisions.
    (i) Incorporation by reference.
    (A) 5 CCR 1001-5, Regulation 3, Stationary Source Permitting and 
Air Pollutant Emission Notice Requirements, Part A, Concerning General 
Provisions Applicable to Reporting and Permitting, Section II, Air 
Pollutant Emission Notice (APEN) Requirements, Sections II.A, Air 
Pollutant Emission Notices for New, Modified, and Existing Sources; II. 
B, General; II.B.1, Emission Estimate; II.B.1.b, Other engineering 
calculations; II.B.2, Air Pollutant Emission Notice Term; II.B.3, APEN 
Applicability; II.B.3.a, Criteria Pollutants; II.B.4.a; II.B.4.b; 
II.B.4.c; II.B.4.d; II.B.4.e; II.B.4.f; the undesignated text 
immediately following II.B.4.f and preceding II.B.5; II.B.5; II.B.6; 
II.C, Revised Air Pollutant Emission Notices; II.C.1; II.C.1.a; 
II.C.1.h; II.C.2; II.C.2.b; II.C.3; II.D, Exemptions from Air Pollutant 
Emission Notice Requirements; II.D.1; the undesignated text immediately 
following II.D.1 and preceding II.D.1.a; II.D.1.a; II.D.1.f; II.D.1.g; 
II.D.1.h; II.D.1.i (excluding subprovisions); II.D.1.j; II.D.1.k; 
II.D.1.n; II.D.1.x; II.D.1.y; II.D.1.aa; II.D.1.bb; II.D.1.kk; 
II.D.1.nn; II.D.1.oo; II.D.1.aaa; II.D.1.bbb; II.D.1.ccc; II.D.1.fff; 
II.D.1.ggg; II.D.1.lll; the undesignated text immediately following 
II.D.1.lll and preceding II.D.1.mmm; II.D.1.nnn., II.D.1.ooo; 
II.D.1.ppp; II.D.1.qqq; II.D.1.rrr; II.D.1.vvv; II.D.1.www; II.D.1.yyy; 
II.D.1.zzz; II.D.1.aaaa; II.D.1.bbbb; II.D.1.cccc; II.D.1.dddd; II.D.2; 
II.D.3; II.D.4; II.D.5; II.D.6; effective October 30, 2006.

0
3. Add paragraph (e) to Sec.  52.329 as follows:


Sec.  52.329  Rules and regulations.

* * * * *
    (e) The State of Colorado submitted revisions on September 16, 
1997, June 20, 2003, July 11, 2005, August 8, 2006 and August 1, 2007 
to Colorado's 5 CCR 1001-5 Regulation Number 3, Part A, Section II. One 
of the revisions deleted two provisions from Section II and moved them 
to Section I of Regulation Number 3, Part A. The revised regulatory 
provisions read as follows:
    (1) 5 CCR 1001-5, Regulation 3, Stationary Source Permitting and 
Air Pollutant Emission Notice Requirements, Part A, Concerning General 
Provisions Applicable to Reporting and Permitting, Section I, 
Applicability, Section I.B.16, Criteria Pollutants,; effective June 30, 
2004:
    (i) Those pollutants for which the U.S. EPA has established 
national ambient air quality standards, including: carbon monoxide, 
nitrogen dioxide, sulfur dioxide, PM10, total suspended 
particulate matter, ozone, volatile organic compounds (as a precursor 
to ozone), and lead. For the purposes of Air Pollutant Emission Notice 
reporting, criteria pollutants shall also include nitrogen oxides, 
fluorides, sulfuric acid mist, hydrogen sulfide, total reduced sulfur, 
reduced sulfur compounds, municipal waste combustor organics, municipal 
waste combustor metals, and municipal waste combustor acid gases.
    (2) 5 CCR 1001-5, Regulation 3, Stationary Source Permitting and 
Air Pollutant Emission Notice Requirements, Part A, Concerning General 
Provisions Applicable to Reporting and Permitting, Section I, 
Applicability, Section I.B.43, Uncontrolled Actual Emissions; effective 
June 30, 2004:
    (i) The annual emission rate corresponding to the annual process 
rate listed on the Air Pollutant Emission Notice form, without 
consideration of any emission control equipment or procedures. The 
division may allow a source to forego calculating or estimating its 
uncontrolled actual emissions of hazardous air pollutants upon a 
showing by the source and a determination by the division that the 
creation of such data is unreasonably costly, technically impractical 
or not reasonably related to information necessary for making 
regulatory decisions with respect to that source. The division's final 
determination may be appealed to the commission by the source.

[FR Doc. 2011-25292 Filed 9-30-11; 8:45 am]
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