[Federal Register Volume 77, Number 2 (Wednesday, January 4, 2012)]
[Proposed Rules]
[Pages 235-237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33760]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2011-0963; FRL-9615-6]
Approval and Promulgation of Air Quality Implementation Plans;
Colorado; Procedural Rules; Conflicts of Interest
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: We are proposing to approve Section 1.11 of Colorado's
procedural rules as adopted by the Air Quality Control Commission
(Commission) on January 16, 1998 and submitted to EPA as a State
Implementation Plan (SIP) revision on November 5, 1999. Section 1.11
specifies certain requirements regarding the composition of the
Commission and disclosure by its members of potential conflicts of
interest. We are also reproposing approval of a portion of Colorado's
January 7, 2008 submittal to meet the ``infrastructure'' requirements
of section 110(a)(2) of the Clean Air Act (CAA) for the 1997 8-hour
ozone National Ambient Air Quality Standards (NAAQS), specifically the
portion intended to address the requirements of section
110(a)(2)(E)(ii) of the CAA. We previously proposed approval, 76 FR
28707, of this portion as part of our action on the January 7, 2008
submittal. This action is being taken under section 110 of the CAA.
DATES: Comments must be received on or before February 3, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0963, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
Email: [email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. Such deliveries are only accepted Monday
through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0963. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA, without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to Section I. General
Information of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
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 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: Mark Komp, Air Program, Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-6022, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Purpose of This Action
II. Background of State's Submittals
III. EPA's Analysis of the State's Submittals
IV. Consideration of Section 110(l) of the CAA
V. Proposed Action
VI. Statutory and Executive Order Reviews
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.
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(iv) The words State or Colorado mean the State of Colorado,
unless the context indicates otherwise.
(v) The word Commission means the Colorado Air Quality Control
Commission.
I. Purpose of This Action
EPA is proposing to fully approve Section 1.11 of Colorado's
procedural rules, adopted by the State of Colorado on January 16, 1998
and submitted to EPA on November 5, 1999. The approval into Colorado's
SIP of Section 1.11 will make it federally enforceable. Section 1.11 of
Colorado's procedural rules mandates that the Commission have at least
a majority of members that represent the public interest and do not
derive a significant portion of their income from persons subject to
permits or enforcement orders under Colorado's air quality regulations
or the CAA. The proposed approval will also federally mandate that
Commission members disclose any potential conflicts of interest that
arise during their terms of membership to the other commissioners in a
public meeting of the Commission.
EPA is also reproposing approval of a portion of Colorado's January
7, 2008 submittal to meet the ``infrastructure'' requirements of
Section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. On May
18, 2011, EPA proposed approval of Colorado's submittal with respect to
(among other infrastructure requirements) the requirements of Section
110(a)(2)(E) for the 1997 8-hour ozone NAAQS. However, in a final
action on July 22, 2011, 76 FR 43906, EPA did not complete approval of
the submittal with respect to Section 110(a)(2)(E)(ii). In this action,
EPA reproposes, for reasons stated below, to approve the January 7,
2008 submittal with respect to the requirements of Section
110(a)(2)(E)(ii) for the 1997 ozone NAAQS.
II. Background of State's Submittals
Colorado adopted revisions to its procedural rules on January 16,
1998, and submitted part of the revised procedural rules to EPA on
November 5, 1999.\1\ Colorado's procedural rules govern all procedures
and hearings before the Commission and certain procedures and hearings
before the Air Pollution Control Division within the Colorado
Department of Public Health and Environment. The role of the Commission
is to adopt an air quality management program that fosters the health,
welfare, convenience, and comfort of the inhabitants of the State of
Colorado and implements this through its regulatory program. The
Commission also hears appeals from the regulated community and the
general public regarding the actions of the Air Pollution Control
Division, including appeals of Division compliance orders and
noncompliance penalty determinations, and challenges of Division
denials of proposed permits or of permit terms and conditions, for
construction permits and operating permits. The proposed revisions to
the Commission's procedural rules, last revised in 1984, were intended
to bring the Commission current with all applicable procedural
requirements for their official actions. In particular, Section 1.11
was intended to address the requirements of section 128 of the CAA.
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\1\ In a notice of proposed action dated January 25, 2011, EPA
erroneously stated that Colorado had not submitted this portion of
Colorado's procedural rules for approval into the SIP (76 FR 4268).
Due to this error, EPA disapproved the deletion of a provision
regarding disclosure of potential conflicts of interest from
Colorado's Common Provisions. EPA will correct the erroneous
disapproval in a subsequent action, if EPA finalizes the approval of
section 1.11 of Colorado's procedural rules for inclusion into the
SIP.
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Separately, on January 7, 2008, Colorado provided a submittal to
meet the requirements of Section 110(a)(2) of the CAA for the 1997 8-
hour ozone NAAQS. Under Section 110(a)(1) of the CAA, within three
years of EPA's promulgation of a new or revised standard, states are
required to make a submittal, known as an ``infrastructure SIP,'' to
meet the requirements of sections 110(a)(1) and (a)(2). Section
110(a)(1) provides the procedural and timing requirements for SIP
submissions after a new or revised NAAQS is promulgated. Section
110(a)(2) lists specific elements the SIP must contain or satisfy.
These infrastructure elements include requirements, such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS.
III. EPA Analysis of State's Submittals
In its November 5, 1999, submittal, Colorado stated that Section
1.11 is the only provision in the Commission's procedural rules that
the State intends to be part of the SIP and was submitted to EPA for
approval. Colorado intended that all other requirements found in the
procedural rules in all sections except Section 1.11 are not to be
acted on as part of the SIP. As noted in the statement of basis for the
Commission's adoption of section 1.11, the section is intended to
satisfy the requirements of section 128 of the CAA.
Section 128 of the CAA requires SIPs to contain provisions that:
(1) Any board or body which approves permits or enforcement orders
under the CAA have at least a majority of its members represent the
public interest and not derive any significant portion of their income
from persons subject to permits or enforcement orders under the CAA;
and (2) any potential conflicts of interest by members of such board or
body or the head of an executive agency with similar powers be
adequately disclosed.
Section 1.11 of Colorado's procedural rules provides that the
Commission shall have at least a majority of members who represent the
public interest and who do not derive a significant portion of their
income from persons subject to permits or enforcement orders under
Colorado's air quality regulations or under the CAA. Section 1.11 also
provides that members of the Commission shall disclose any potential
conflicts of interest that arise during their terms of membership to
the other Commissioners in a public meeting of the Commission. The
procedural rules elsewhere require that public meetings of the
Commission be recorded and that the recordings are made available to
the public at cost. These provisions meet the requirements of section
128 as stated above. EPA therefore proposes to approve section 1.11 of
Colorado's procedural rules for inclusion into the SIP.
On May 18, 2011, EPA proposed approval of Colorado's infrastructure
SIP submittal with respect to (among other infrastructure requirements)
the requirements of Section 110(a)(2)(E) for the 1997 8-hour ozone
NAAQS. EPA received adverse comments on, among other things, Colorado's
implementation of sections 128 and 110(a)(2)(E)(ii). As a result, in a
final action on July 22, 2011, 76 FR 43906, EPA deferred action on the
submittal with respect to Section 110(a)(2)(E)(ii). Section
110(a)(2)(E)(ii) requires SIPs to comply with the requirements
regarding state boards under Section 128 of the CAA. As discussed
above, approval of Section 1.11 of the State's procedural rules will
satisfy the requirements under section 128 regarding state boards, and
will therefore satisfy the requirements of Section 110(a)(2)(E)(ii), as
well. EPA therefore proposes to approve Colorado's January 7, 2008,
submittal with respect to the requirements of section 110(a)(2)(E)(ii),
which will complete EPA's action on all portions of the State's
submittal to meet infrastructure requirements for the 1997 8-hour ozone
NAAQS.
IV. Consideration of 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
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attainment and reasonable further progress toward attainment of the
NAAQS or any other applicable requirement of the Act. The Colorado SIP
revisions that are proposed for approval in this action do not
interfere with attainment of the NAAQS or any other applicable
requirement of the Act. The revisions do not make substantive changes
that relax the stringency of the Colorado SIP; instead, the submittal
of Section 1.11 of Colorado's procedural rule meets a requirement of
the CAA. Therefore, the revisions proposed for approval satisfy section
110(l) requirements.
V. Proposed Action
We are proposing for approval Section 1.11 of Colorado's procedural
rule as adopted by the Commission on January 16, 1998, and submitted to
EPA on November 5, 1999. We are also reproposing approval of a portion
of Colorado's January 7, 2008, submittal to meet the ``infrastructure''
requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS,
specifically the portion intended to address the requirements of
section 110(a)(2)(E)(ii) of the CAA.
VI. 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 proposed 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 proposed 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: December 23, 2011.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011-33760 Filed 1-3-12; 8:45 am]
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