Clean Air Act Full Approval of Operating Permit Program; Approval of Expansion of State Program Under Section 112(l); State of Colorado

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is promulgating full approval of the Operating Permit Program submitted by the State of Colorado. Colorado's operating permit program was submitted for the purpose of meeting the federal Clean Air Act (Act) directive that States develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources within the State's jurisdiction. EPA is also approving the expansion of Colorado's program for receiving delegation of section 112 standards to include non-part 70 sources.

DATES:

This direct final rule is effective on October 16, 2000, without further notice, unless EPA receives adverse comment by September 15, 2000. If adverse comment is received, EPA 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:

Written comments may be mailed to Richard R. Long, Director, Air and Radiation Program, Mail Code 8P-AR, Environmental Protection Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466. Copies of the documents relevant to this action are available for public 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 and are also available during normal business hours at the Colorado Department of Public Health and Environment, Air Pollution Control Division, 4300 Cherry Creek Drive South, Denver, CO 80222-1530.

FOR FURTHER INFORMATION CONTACT:

Patricia Reisbeck, Mail Code 8P-AR, Environmental Protection Agency, Region 8, 999 18th Street, Denver, Colorado 80202-2466; (303) 312-6435.

SUPPLEMENTARY INFORMATION:

I. Background

As required under title V of the Clean Air Act (“the Act”) as amended (42 U.S.C. 7401 et seq.), EPA has promulgated rules that define the minimum elements of an approvable State operating permit program and the corresponding standards and procedures by which the EPA will approve, oversee, and withdraw approval of State operating permit programs (see 57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of Federal Regulations (CFR) part 70 (“part 70”). Title V directs States to develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources.

The Act directs States to develop and submit operating permit programs to the EPA by November 15, 1993, and requires that EPA act to approve or disapprove each program within one year after receiving the submittal. The EPA's program review occurs pursuant to section 502 of the Act (42 U.S.C. 7661a) and the part 70 regulations, which together outline criteria for approval or disapproval. Where a program substantially, but not fully, meets the requirements of part 70, EPA may grant the program interim approval. If EPA has not fully approved a program by two years after the November 15, 1993 date, or before the expiration of an interim program approval, it must establish and implement a federal program.

The State of Colorado was granted final interim approval of its program on January 24, 1995 (see 60 FR 4563) and the program became effective on February 23, 1995. Interim approval of the Colorado program expires on December 1, 2001.

II. Analysis of State Submission

The Governor of Colorado submitted an administratively complete Title V operating permit program for the State of Colorado on November 5, 1993. This Colorado program, including the operating permit regulations at part C of Regulation No. 3, substantially met the requirements of part 70. EPA deemed the program administratively complete in a letter to the Governor dated January 4, 1994. The program submittal included a legal opinion from the Colorado Attorney General stating that the laws of the State provide adequate legal authority to carry out all aspects of the program, a description of how the State would implement the program regulations, application and permit forms, and a permit fee demonstration.

EPA's comments noting deficiencies in the Colorado program were sent to the State in a letter dated April 8, 1994. The deficiencies were segregated into those that would require corrective action prior to interim program approval, and those that would require corrective action prior to full program approval. The State committed to address the program deficiencies that would require corrective action prior to interim program approval in a letter dated May 12, 1994, and subsequently held a public hearing to consider and adopt the necessary changes on August 18, 1994.

The State submitted its revised part 70 program and a supplemental Attorney General's opinion with letters dated September 29, 1994 and October 3, 1994. EPA reviewed these corrective actions and determined them to be adequate to allow for interim program approval. On January 24, 1995, EPA published a Federal Register document promulgating final interim approval of the Colorado program. See 60 FR 4563.

Areas of the Colorado program that were identified by EPA in the January 24, 1995 Federal Register as deficient and the State's corrective actions for full program approval are as follows:

(1) The State was required to revise its administrative process in section II.D.5 of part A of Air Quality Control Commission Regulation 3, for adding additional activities to the list of insignificant activities allowed as exemptions under 40 CFR 70.5(c), to require approval by the EPA of any new exemptions before such exemptions can be utilized by a source.

Correction: In a letter dated March 7, 1996, the State submitted a copy of Colorado's revised section II.D.5 of part A of Regulation No. 3, adopted August 17, 1995, requiring EPA approval of any new additions to the State's insignificant activities list. EPA reviewed the revised regulation and determined that it is adequate to allow for full program approval.

(2) The State was asked to revise the Colorado Air Quality Control Act (Colo. Rev. Stat. section 25-7-109.6(5)(1999)) to remove the condition that an accidental release prevention program pursuant to section 112(r) of the Act will only be implemented if Federal funds are available. A guidance memo, dated April 13, 1993, from John Seitz, Director of the Office of Air Quality Planning and Standards, entitled “Title V Program Approval Criteria for Section 112 Activities” provides that in order to obtain full Title V approval from EPA the State must have authority to “* * * issue Part 70 permits that assure compliance with all currently applicable requirements * * *”. Such requirements include requirements under section 112(r)(7) of the Act for certain sources to prepare and implement a risk management plan to prevent and minimize accidental releases of hazardous air pollutants, and to submit the plan to EPA.

Correction: In a letter dated March 13, 1996, the State indicated that it does comply with the April 13, 1993 memorandum from John Seitz and has the necessary authority to implement all of the current requirements of section 112, including section 112(r). This position was affirmed in an opinion letter from the Office of the Attorney General for the State of Colorado, dated June 23, 1997. The opinion concluded that, although State law prohibited Colorado from establishing its own section 112(r) accidental release program in the absence of federal funding, the State had adequate authority to incorporate pertinent requirements from the federal program in State-issued Title V operating permits and, therefore, a statutory amendment would not be required to comply with Title V. EPA concurred with the State's opinion, as discussed in a letter from Richard Long, dated July 9, 1997.

In addition to providing the opinion letter, the State made a commitment to work toward resolving any issues that the final 112(r) rule might raise. The final 112(r) rule, which was promulgated on June 20, 1996, did not require additional involvement by the State and thus raised no new issues. See 40 CFR 68.215; see also 61 FR 31728 (June 20, 1996). Therefore, after further review, EPA believes that the State of Colorado has authority to implement all the section 112(r) requirements that are necessary for full program approval.

In a letter dated June 24, 1997, Colorado documented its actions that corrected the interim approval deficiencies and requested EPA's review and full approval of its program. The letter also acknowledged that full approval action might be delayed because EPA had identified concerns that Colorado's audit privilege and immunity law (SB 94-139) (“self-audit law”) might impair the State's ability to enforce federally authorized programs, including the Title V program. After lengthy negotiations between EPA and the State, Colorado proposed to amend the self-audit law. The statutory amendments were adopted by the State legislature and signed by the Governor on May 30, 2000.

In addition, on April 14, 2000, the Attorney General for Colorado issued a formal opinion interpreting various provisions of the self-audit law, resolving certain other enforcement issues not addressed by the statutory amendments. Finally, on May 30, 2000, EPA and the State of Colorado entered into a memorandum of agreement concerning implementation of the self-audit law. The memorandum of agreement was intended as a companion document to be read in conjunction with the Attorney General's April 14 opinion.

Taken altogether, the statutory amendments, the Attorney General's opinion, and the memorandum of agreement effectively resolved all the issues EPA identified concerning the effect of the self-audit law on Colorado's ability to enforce federally authorized programs. Accordingly, EPA is free to proceed with rulemaking to grant full approval of the Colorado Title V program.

III. Program for Straight Delegation of Section 112 Standards

Requirements for program approval, specified in 40 CFR 70.4(b), encompass requirements under section 112(l)(5) of the Act for delegation of National Emission Standards for Hazardous Air Pollutants (NESHAPs) promulgated by EPA under 40 CFR parts 61 and 63, as well as other section 112 standards and requirements. Section 112(l)(5) requires that the State's hazardous air pollutant control program contain adequate authorities to implement and enforce the program, adequate resources for implementation, and an expeditious compliance schedule.

These criteria are also requirements for approval of a State operating permit program under part 70. Because Colorado had satisfied those requirements, EPA granted approval of the State's program under section 112(l)(5) and 40 CFR 63.91, for receiving delegation of section 112 standards that are unchanged from the Federal standards, in the Federal Register document promulgating final interim approval of the Colorado operating permit program. See 60 FR 4563, 4568.

EPA's approval of Colorado's section 112(l) program was limited, however, to delegation of standards as they apply to part 70 sources. Based on the State's request, dated February 2, 1996, EPA is expanding this approval to include non-part 70 sources. EPA believes that this expanded approval is warranted, because State law does not differentiate between part 70 and non-part 70 sources for purposes of implementation and enforcement of section 112 standards that the State has adopted. This approval establishes a basis for the State to receive direct delegation of authority to implement and enforce, for non-part 70 sources, section 112 standards that the State adopts without change from the federal standards. Such direct delegation includes section 112 standards that EPA may promulgate in the future. See 61 FR 36295 (July 10, 1996).

IV. Final Action

In this document, EPA is granting full approval of the Colorado part 70 operating permit program for all areas within the State except the following: any sources of air pollution located in “Indian Country” as defined in 18 U.S.C. 1151, including the following Indian reservations in the State: Southern Ute Indian Reservation and the Ute Mountain Ute Indian Reservation, or any other sources of air pollution over which an Indian Tribe has jurisdiction. See section 301(d)(2)(B) of the Act; see also 63 FR 7254 (February 12, 1998).

The term “Indian Tribe” is defined under the Act as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village, which is federally recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” See section 302(r) of the Act; see also 58 FR 54364 (October 21, 1993).

Based on the State's request, EPA is also expanding its approval of the State's program under section 112(l)(5) of the Act and 40 CFR 63.91 for receiving delegation of section 112 standards that are unchanged from the Federal standards, to include non-part 70 sources.

The EPA is publishing this rule without prior proposal because the State is currently implementing its part 70 program and the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to grant full approval of the operating permit program submitted by the State of Colorado should adverse comments be filed. This rule will be effective October 16, 2000, without further notice unless the Agency receives adverse comments by September 15, 2000.

If the EPA receives such comments, then EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this rule must do so at this time.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This final rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

C. 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 Executive Order 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 is not an economically significant regulatory action as defined by Executive Order 12866, and it does not establish a further health or risk-based standard because it approves state rules which implement a previously promulgated health or safety-based standard.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly 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. This action does not involve or impose any requirements that affect Indian tribes. 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 part 70 approvals under section 502 of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this 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.

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 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 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. 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 October 16, 2000. 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 70

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Intergovernmental relations
• Operating permits
• Reporting and recordkeeping requirements

40 CFR part 70 is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. In appendix A to part 70 the entry for Colorado is amended by adding paragraph (b) to read as follows:

Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs

Colorado

(b) The Colorado Department of Public Health and Environment—Air Pollution Control Division submitted an operating permits program on November 5, 1993; interim approval effective on February 23, 1995; revised June 24, 1997; full approval effective on October 16, 2000.