[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Rules and Regulations]
[Pages 28055-28060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13118]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO9-3-5603; FRL-5201-9]
Approval and Promulgation of Air Quality Implementation Plans;
Colorado; Regulation 7
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving revisions to the Colorado Ozone State
Implementation Plan (SIP) submitted by the Governor on September 27,
1989, and August 30, 1990. The revisions consisted of amendments to
Regulation No. 7, ``Regulation To Control Emissions of Volatile Organic
Compounds.'' In its review of the September 27, 1989 State submittal,
EPA identified several areas where the regulation still did not meet
EPA requirements. On August 30, 1990, the State submitted additional
revisions to Regulation No. 7 to address these deficiencies. This
Federal Register action applies to both of these submittals. The
amendments were made to conform Regulation No. 7 to federal
requirements, and to improve the clarity and enforceability of the
regulation. EPA's approval will serve to make the revisions federally
enforceable and was requested by the State of Colorado.
EFFECTIVE DATE: This action will be effective on June 29, 1995.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection between 8 a.m. and 4 p.m., Monday
through Friday at the following office:
United States Environmental Protection Agency, Region VIII, Air
Programs Branch, 999 18th Street, Suite 500, Denver, Colorado 80202-
2466.
FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Programs Branch (8ART-
AP), United States Environmental Protection Agency, Region VIII, 999
18th Street, Suite 500, Denver, Colorado 80202-2466, (303) 293-1814.
SUPPLEMENTARY INFORMATION: Section 110(a)(2)(H)(i) of the Clean Air Act
(CAA), as amended in 1990, provides the State the opportunity to amend
its SIP from time to time as may be necessary. The State is utilizing
this authority of the CAA to update and revise existing regulations
which were promulgated pursuant to section 172 of the pre-amendment Act
and are a part of the current SIP. In addition, these submittals are in
fulfillment of the RACT requirement of amended section 172.
I. Background
On March 3, 1978, EPA designated the Denver-Boulder metropolitan
area as nonattainment for the National Ambient Air Quality Standards
(NAAQS) for ozone (43 FR 8976). This designation was reaffirmed by EPA
on November 6, 1991 (56 FR 56694) pursuant to section 107(d)(1) of the
CAA, as amended in 1990. Furthermore, since the Denver-Boulder area had
not shown a violation of the ozone standard during the three-year
period from January 1, 1987 to December 31, 1989, the Denver-Boulder
area was classified as a ``transitional'' ozone nonattainment area
under section 185A of the amended Act. In order to meet the Reasonably
Available Control Technology (RACT) requirements of the CAA,
transitional areas must correct any RACT deficiencies regarding
enforceability.
The current Colorado Ozone SIP was approved by EPA in the Federal
Register on December 12, 1983 (48 FR 55284). The SIP contains
Regulation No. 7 (Reg. 7), which applies RACT to stationary sources of
Volatile Organic Compounds (VOC). Reg. 7 was adopted to meet the
requirements of section 172(b) (2) and (3) of the 1977 CAA (concerning
the application of RACT to stationary sources 1.) However, the
approved Ozone SIP did not rely on the emissions reduction credit that
Reg. 7 would produce in order to demonstrate attainment; rather, the
SIP relied only on mobile source controls in order to demonstrate
attainment.
\1\ The requirement to apply RACT to existing stationary sources
of VOC emissions was carried forth under the amended Act in section
172(c)(1).
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During 1987 and 1988, EPA Region VIII conducted a review of Reg. 7
for consistency with the Control Techniques Guidelines documents (CTGs)
and regulatory guidance, for enforceability and for clarity. The CTGs,
which are guidance documents issued by EPA, set forth measures that are
presumptively RACT for specific categories of sources that emit VOCs. A
substantial number of deficiencies were identified in Reg. 7. In 1987,
EPA published a proposed policy document that included, among other
things, an interpretation of the RACT requirements as they applied to
VOC nonattainment areas (52 FR 45044, November 24, 1987, Post-87
Policy). On May 25, 1988, EPA published a guidance document entitled
``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations, Clarification to Appendix D of the November 24, 1987
Federal Register Notice'' (the ``Blue Book''). A review of Reg. 7
against these documents uncovered additional deficiencies in the
regulation.
On May 26, 1988, EPA notified the Governor of Colorado that the
Carbon Monoxide (CO) SIPs for Colorado Springs and Fort Collins were
inadequate to achieve the CO NAAQS. In that letter, EPA also notified
the Governor that the Ozone SIP had significant deficiencies in design
and implementation, and requested that these deficiencies be remedied.
EPA did not make a formal call for a revised Ozone SIP in the May 1988
letter,2 even though the Denver-Boulder area was,
[[Page 28056]] and continues to be, designated nonattainment for ozone.
The reason for this decision was that no violations of the ozone NAAQS
had been recorded in the nonattainment area for the previous three
years. However, EPA indicated that the deficiencies, if uncorrected,
could jeopardize the area's ability to obtain eventual redesignation as
an attainment area for ozone.
\2\ Under the pre-amended Act, EPA had the authority under
section 110(a)(2)(H) to issue a ``SIP Call'' requiring a State to
correct deficiencies in an existing SIP. Section 110(a)(2)(H) was
not modified by the 1990 Amendments. In addition, the amended Act
contains new section 110(k)(5) which also provides authority for a
SIP Call.
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1. 1989 SIP Revision Submittal
In a letter dated September 27, 1989, the Governor of Colorado
submitted revisions to Reg. 7 to partially address EPA's concerns with
the Ozone SIP. A detailed description of the specific revisions to the
regulation is contained in the Docket for this Federal Register
document. Revisions were made to the following sections of Reg. 7:
7.I Applicability
7.II General Provisions
7.III General Requirements for Storage and Transfer of Volatile
Organic Compounds
7.IV Storage of Highly Volatile Organic Compounds
7.V Disposal of Volatile Organic Compounds
7.VI Storage and Transfer of Petroleum Liquid
7.VIII Petroleum Processing and Refining
7.IX Surface Coating Operations
7.X Use of Solvents for Degreasing and Cleaning
7.XI Use of Cutback Asphalt
7.XII Control of VOC Emissions from Dry Cleaning Facilities Using
Perchloroethylene As a Solvent
7.XIII Graphic Arts
7.XIV Pharmaceutical Synthesis
7.XV Control of Volatile Organic Compound Leaks from Vapor
Collection Systems Located At Gasoline Terminals, Bulk Plants, and
Gasoline Dispensing Facilities
Appendix A Criteria for Control of Vapors from Gasoline Transfer to
Storage Tanks
Appendix B Criteria for Control of Vapors from Gasoline Transfer at
Bulk Plants (Vapor Balance System)
Appendix D Test Procedures for Annual Pressure/Vacuum Testing of
Gasoline Transport Trucks
In addition, the following new emission sources and appendices were
added to Reg. 7:
7.IX.A.7 Fugitive Emission Control
7.IX.N. Flat Wood Paneling Coating
7.IX.O. Manufacture of Pneumatic Rubber Tires
7.XI.D. Coal Tar
Appendix E Emission Limit Conversion Procedure
In a letter dated September 27, 1989, the Governor of Colorado
submitted revisions to Reg. 7 to address EPA's concerns with how the
State was addressing RACT for major non-CTG sources of VOC. A detailed
description of the specific revisions to the regulation is contained in
the Docket for this Federal Register document. In summary, Section
7.II.C. of Reg. 7 applies this new non-CTG RACT requirement to sources
not specifically covered by the regulation as follows:
(a) Sources with actual emissions of 100 tons per year or more of
VOCs must apply RACT.
(b) Sources with potential emissions of 100 tons per year or more
of VOCs, but with actual emissions of less than 100 tons per year, may
avoid having to apply RACT by obtaining a federally enforceable permit
to limit production or hours of operation to keep actual emissions
below 100 tons per year.
(c) Sources with potential emissions of 100 tons per year or more
of VOCs, but with actual emissions of less than 50 tons per year on a
12-month rolling average, may avoid RACT and permit requirements by:
(1) Submitting a report each year demonstrating that the 50 tons per
year threshold has not been exceeded and (2) maintaining monthly
records of VOC usage and emissions to enable the State to verify these
reports.
EPA is approving section 7.II.C. of the State's rules for its
strengthening effect on the SIP.
2. 1990 SIP Revision Submittal
In general, the revised Reg. 7 ( as submitted by the Governor on
September 27, 1989) met the CAA requirements, which were interpreted in
the CTGs, the Blue Book, and the Post-87 Policy. However, in its
review, EPA identified two remaining issues where the regulation was
not consistent with EPA guidance: A. The compliance schedule, and B.
Clarification of the Graphic Arts definition for potential to emit.
These remaining two issues were addressed by the State in its August
30, 1990 submittal.
In a letter dated August 30, 1990, the Governor of Colorado
submitted revisions to Reg. 7 to address EPA's remaining concerns with
the September 27, 1989 Ozone SIP revision. A detailed description of
the additional specific revisions to Reg. 7 is contained in the Docket
for this Federal Register document. Revisions were made to the
following sections of Reg. 7:
7.I Applicability
7.XI Use of Cutback Asphalt
7.XIII Graphic Arts
A. Compliance Schedule: Reg. 7 did not contain an explicit deadline
for compliance with the revised regulation. In response to EPA
comments, the State adopted additional revisions (Section 7.I.B. and
7.I.C.) to Section 7.I. (Applicability) of Reg. 7, requiring all
sources to come into compliance with the revised Reg. 7 by October 30,
1991.
B. Graphic Arts definition: The Graphic Arts definition of
potential to emit, contained in Section 7.XIII.A.2. of Reg. 7, was
somewhat unclear. The definition referenced the EPA requirement that
potential to emit be determined at maximum capacity before control (per
the Appendix D Clarification document), but also included a requirement
that potential emissions be based on historical records of solvent and
ink consumption (per the previous regulatory guidance document,
Guidance to State and Local Agencies in Preparing Regulations to
Control Volatile Organic Compounds from Ten Stationary Source
Categories, September, 1979). As a result, the definition could have
been interpreted to require potential to emit to be calculated at both
maximum and historical operating rates, which in most cases will be
different. The Reg. 7 revisions, submitted by the Governor on August
30, 1990, addressed this concern by not including a reference to the
historical records.
C. Capture Efficiency: As a final issue, on January 13, 1992, EPA
notified the State that, prior to proposing this action, it was
necessary to document the State's position with regard to capture
efficiency (CE) determination. The CE provision adopted by the State in
Section IX.A.5.e of Reg. 7 does address the requirement that testing
for CE be performed on a case-by-case basis, and that this testing be
consistent with EPA guidance. In a letter dated February 5, 1992, from
John Leary, Acting Director, Colorado Air Pollution Control Division,
to Douglas Skie, Chief, Air Programs Branch, EPA Region VIII, the State
committed to adopt and use all new CE methods as they are developed and
promulgated by EPA's rule-making process. In that same letter, the
State indicated that until changes are promulgated, the Air Pollution
Control Division will use the CE protocols that were published by EPA
on June 29, 1990 (55 FR 26814, codified at 40 CFR 52.741(a)(4)(iii) and
Appendix B).
Due to additional information received after the adoption of
revisions to Reg. 7 in September, 1989, the State reconsidered its
regulation of coal tar under Section 7.XI. (Use of Cutback Asphalt). In
revisions submitted on August 30, 1990, Section 7.XI.D., covering coal
tar, was deleted. Regulation of coal tar is not covered by the CTG for
cutback asphalt use; EPA believes that it is not needed to meet the
RACT requirement of the CAA.
In this action, EPA is also approving the State's VOC definition as
submitted in the 1989 and 1990 revisions to Reg. 7. However, on
February 3, 1992, EPA [[Page 28057]] published a revised definition of
volatile organic compounds (57 FR 3941). This definition was further
revised on October 5, 1994, (59 FR 50693) and became effective on
December 5, 1994. EPA's definition excludes a number of organic
compounds from the definition of VOC on the basis that they are of
negligible reactivity and do not contribute to tropospheric ozone
formation. The State's definition excludes some, but not all, of these
compounds. Therefore, the State's definition of VOC provides for the
regulation of some compounds which are no longer considered VOCs by
EPA. In light of EPA's most recent definition of VOC, EPA will not
enforce against sources for failure to control the emission of
compounds that are exempt from the federal VOC definition. EPA has
informed the Region VIII States of the revised definition of VOC and
has requested that future SIP revisions reflect the most recent federal
VOC definition.
This action was previously published as a Direct Final Rule on June
26, 1992 (57 FR 28614). This Direct Final Rule was withdrawn on August
12, 1992 (57 FR 36004) as EPA Region VIII received a letter, dated July
16, 1992, from William Owens, Executive Director of the Colorado
Petroleum Association (CPA), to Jeff Houk of EPA Region VIII,
expressing adverse comments. EPA published a Proposed Rule on November
16, 1994 (59 FR 59189) proposing approval of these revisions to Reg. 7.
Comments regarding the November 16, 1994, Proposed Rule were received
from Stanley Dempsey Jr. on behalf of the Colorado Association of
Commerce and Industry (CACI). These comments, in addition to those
received earlier, are hereby addressed in this Final Rule as follows:
CPA Comment 1: In its first comment, CPA states that ``EPA was
required by the amended Clean Air Act to determine by June 30, 1992,
whether the transitional area had attained the NAAQS. EPA failed to
issue this determination by the required date. This determination will
re-establish the purpose of the SIP and, therefore, should be
considered prior to any SIP approval. At a minimum, the SIP approval
should be proposed to allow the opportunity for comment based on the
required determination of current attainment status.''
Response to CPA Comment 1: As indicated in the proposed rule for
this action (59 FR 59189, dated November 16, 1994), EPA had previously
reviewed the available ambient air quality data. In a letter dated
October 22, 1992, from Jack McGraw, EPA Region VIII Acting Regional
Administrator, to Governor Roy Romer, EPA advised the State that the
Agency had reviewed the ambient air quality data which had been entered
by the State into the Aerometric Information and Retrieval System
(AIRS) national database. EPA further advised that these data indicated
that the Denver-Boulder metropolitan transitional ozone nonattainment
area had not violated the ozone NAAQS during the period beginning
January 1, 1987, and ending December 31, 1991. EPA's October 22, 1992,
letter was not a determination that the Denver-Boulder nonattainment
area had met the CAA's section 107(d)(3)(E) criteria for redesignation
to attainment, but rather served as an affirmation that no violation of
the ozone standard for this area was found. EPA cannot make a
determination under section 107(d)(3)(E) until the State submits a
complete redesignation request and maintenance plan. One criterion for
redesignation to attainment for transitional ozone nonattainment areas,
is that to satisfy section 172(c)(1), transitional areas must ensure
that any deficiencies regarding enforceability of an existing RACT rule
are corrected (refer to 57 FR 13525 dated April 16, 1992).
CPA Comment 2: In its second comment, CPA states ``In addition, the
basis for the EPA's determination of deficiencies in Regulation No. 7
is based on the ``Post-87'' policy which includes the proposed policy
regarding the application of RACT in non-attainment areas. CPA
questions the application of this policy to areas designated
transitional under the amended Clean Air Act.''
Response to CPA Comment 2: The Denver-Boulder area, while
classified as transitional, continues to be a designated ozone
nonattainment area. Therefore, the Post-87 policy retains its validity
for the Denver-Boulder area. Although the Denver-Boulder transitional
ozone nonattainment area was not subject to the RACT fix-up
requirement, section 182(a)(2)(A), of the amended CAA, the RACT
requirement of section 172(c)(1) is applicable. Pursuant to that
provision, EPA has determined that it is necessary for the State to
correct previously identified significant deficiencies in design,
implementation and enforcement in the provisions of Reg. 7.
In a letter dated May 26, 1988, from James Scherer, Regional
Administrator for EPA Region VIII, to Governor Roy Romer, EPA notified
the State that the Carbon Monoxide SIPs for Colorado Springs and Fort
Collins were inadequate to achieve the CO NAAQS. In that same letter,
EPA also notified the Governor that the Ozone SIP for the Denver-
Boulder metropolitan area had significant deficiencies in design and
implementation and requested that those deficiencies be remedied. These
specific deficiencies were subsequently documented to the State in a
letter, dated June 17, 1988, from Irwin L. Dickstein, Director of the
Air and Toxics Division for EPA Region VIII, to Thomas M. Vernon Jr.
M.D., the Executive Director of the Colorado Department of Health. The
General Preamble to Title I of the 1990 amended CAA (57 FR 13525, dated
April 16, 1992) reaffirmed EPA's RACT policy. It provides that to
satisfy requirements in section 172(c)(1) of the CAA (``NONATTAINMENT
PLAN PROVISIONS IN GENERAL''), transitional ozone nonattainment areas
must ensure that any deficiencies regarding enforceability of an
existing rule are corrected. The General Preamble to Title I continues
by stating that States should be aware that in order to be redesignated
to attainment, such transitional ozone nonattainment areas need to
correct any RACT deficiencies regarding enforceability prior to
redesignation. For the reasons stated above, EPA believes that the 1989
and 1990 revisions to Reg. 7 that have been adopted by the State, are
necessary in order to ensure that the RACT requirements of the CAA are
met.
CPA Comment 3: In its third comment, CPA states ``The provisions
for application of RACT under the revisions to Regulation No. 7 will
have a direct impact on CPA's membership. Such revisions may not be
needed to demonstrate maintenance of the ozone NAAQS and may result in
unreasonable requirements in light of current regulatory
developments.''
Response to CPA Comment 3: EPA is convinced that the revisions to
Reg. 7 strengthen the Ozone SIP and are necessary for the Denver-
Boulder metropolitan area to continue to achieve the ozone NAAQS as the
area continues to experience the significant growth which has occurred
in the past few years. EPA believes the benefits from the 1989 and 1990
revisions to Reg. 7 are likely contributing to the improvement in ozone
levels that have been observed when compared to prior years. However,
the ambient air quality data in AIRS indicates there were still ozone
NAAQS exceedences in 1989 (0.130 ppm) and 1993 (0.128 ppm) with near-
exceedence values in 1990 (0.120 ppm) and 1992 (0.123 ppm). The above
values do appear to be improving, however, when compared to the 28
ozone NAAQS exceedences that were observed from 1980 through 1988.
[[Page 28058]]
CACI Comment 1: In its first comment, CACI states ``The Denver-
Boulder area has not exceeded the ozone National Ambient Air Quality
Standards since 1987. The current SIP has, therefore, appropriately
allowed the area to attain the NAAQS. Therefore, there is no need for
more stringent control of stationary source emissions of volatile
organic compounds (VOC).''
Response to CACI Comment 1: CACI's comment is not correct. Based on
data archived in the AIRS national database, the Denver-Boulder ozone
nonattainment area has exceeded the ozone NAAQS as follows: 1988
(twice, 0.125 ppm and 0.136 ppm), 1989 (0.130 ppm), and 1993 (0.128
ppm). Although exceedences of the ozone standard have been recorded,
EPA believes that the 1989 and 1990 revisions to Reg. 7 likely
contributed to the decreased frequency of exceedences after 1990 and
the fact that the Denver-Boulder nonattainment area has not violated
the ozone standard.
CACI Comment 2: In its second comment, CACI provides an ozone
emission inventory, whose source is not referenced, of ``Mobile
sources, Minor stationary sources, Consumer products, and Major point
sources.'' CACI then states ``Major stationary sources contribute only
ten percent to an approximate daily inventory of 200 tons per day.
Attachment 4 shows the Denver VOC emissions contributions. We question
why Reg 7 is a SIP requirement for stationary sources, whose daily
contribution is minor compared to mobile sources, while mobile sources
have little or no control.''
Response to CACI Comment 2: Under both the pre-amended Act and the
Act as amended in 1990, certain stationary sources are required to
implement RACT. The purpose of the 1989 and 1990 revisions to Reg. 7
was that EPA required the State to correct identified concerns within
Reg. 7, which was already part of Colorado's SIP, that involved
significant design, implementation, and enforceability problems. With
regard to the CACI provided emissions inventory, EPA cannot validate
this emissions inventory as, to date, no current ozone emissions
inventory has been submitted by the State. Correspondence in EPA's
files indicates the State prepared a preliminary ozone emission
inventory in 1987-1988, which was submitted to EPA in 1989. This
inventory was not finalized. CACI's comment implies that mobile sources
have little or no control of emissions. EPA disagrees as Colorado has
had an inspection and maintenance program, for on-road vehicles, since
1983. This program was replaced with an enhanced inspection and
maintenance program which began implementation on January 1, 1995.
Also, mobile source emission reductions have been realized with the
implementation of Federal Motor Vehicle Control Programs (FMVCP).
CACI Comment 3: CACI's third comment states ``The current Colorado
Ozone SIP was approved by EPA in 1983 (48 FR 55284). The SIP contains a
1981 version of Reg 7 which applies RACT to stationary sources of VOC.
The approved Ozone SIP did not rely on the emissions reduction credit
that Reg 7 would produce in order to demonstrate attainment; rather,
the SIP relied only on mobile source controls in order to demonstrate
attainment. There is no ozone attainment demonstration which requires
any Reg 7 emission reductions from stationary sources, based on our
information and belief. Therefore, there is no demonstrated need for a
more stringent revision to the Ozone SIP.''
Response to CACI Comment 3: The reader is referred to EPA's
response to CPA Comment 2 above as it is directly applicable to CACI's
Comment 3. It should be noted that the Denver-Boulder ozone
nonattainment area exceeded the ozone NAAQS 25 times during the years
1981 through 1988. This fact was also considered when EPA sent the
Governor the May 16, 1988, letter referenced above. Therefore, although
the 1981 attainment demonstration relied solely on the mobile source
controls, the Denver-Boulder area failed to attain the ozone standard
in accordance with that demonstration. In addition, the Denver-Boulder
area retained its nonattainment designation under the amended CAA and
EPA believes the continued applicability of the RACT requirement makes
it necessary for the State to correct existing deficiencies in its RACT
rules.
CACI Comment 4: CACI's fourth comment states ``The current Ozone
SIP contains a definition of VOC that was based on a threshold vapor
pressure of 0.1 mm Hg vapor cutoff. EPA modified this definition of VOC
(40 CFR 51.100(s)) in 1988. The current Ozone SIP approval of Reg 7 was
written with the 0.1 mm Hg vapor cutoff in mind as de minimis
threshold. In 1991 the AQCC modified the VOC definition in Colorado
Regulations, which inadvertently removed the Reg 7 de minimis
threshold. A comparison of other state's de minimis voc thresholds is
shown in Attachment 1. A comparison of other state's de minimis size
cutoffs and vapor pressure cutoffs is shown in Attachment 2. An example
of the extreme cost and minimal air quality benefit of Reg 7 without
correcting the inadvertent error of eliminating the de minimis cutoffs
is shown in Attachment 3. Therefore, revising the Ozone SIP by adopting
the 1989 and 1990 Reg 7 submittal is without legal basis and is more
stringent than EPA requires or the AQCC intended.''
Response to CACI Comment 4: As an initial matter, EPA cannot
disapprove a SIP revision merely because it may be more stringent than
required by the CAA. See CAA section 116. Similarly, EPA cannot
unilaterally determine that a rule will have a more stringent effect
than the State intended and rely on such a determination for
disapproval. With respect to the comment that there is no legal basis,
EPA notes that EPA's approved definition of a Volatile Organic Compound
(VOC) is found in 40 CFR Part 51, Subpart F--Procedural Requirements,
at 51.100 Definitions, (s) Volatile organic compounds (VOC). In
51.100(s), a VOC is defined as ``. . . any compound of carbon,
excluding . . . which participates in atmospheric photochemical
reactions.'' As stated in 40 CFR 51.100(s), a VOC is defined based upon
atmospheric photochemical reactivity. There is no provision for a VOC
to be defined, or exempted, based upon vapor pressure. This vapor
cutoff provision was rescinded by EPA in 1988, as such a definition for
VOCs would exempt compounds of low volatility, which, under certain
processes, could volatilize and, therefore, participate in atmospheric
photochemical reactions (refer to EPA's ``ISSUES RELATING TO VOC
REGULATION CUTPOINTS, DEFICIENCIES, AND DEVIATIONS, Clarification to
Appendix D of [the] November 24, 1987 Federal Register'', dated May 25,
1988 and revised November 11, 1990. This document is more commonly
referred to as the ``Blue Book''). The only acceptable method to exempt
a carbon compound from being classified as a VOC is that it must be
determined that the compound has negligible photochemical reactivity
(refer to 40 CFR 51.100(s)(1), (2), (3), and (4)).
As stated above and in the proposed rule (59 FR 59189) for this
action, EPA is approving the State's VOC definition as submitted in the
1989 and 1990 revisions to Reg. 7. However, on February 3, 1992, EPA
published a revised definition of volatile organic compounds (57 FR
3941) with a further revision on October 5, 1994 (59 FR 50693,
effective December 5, 1994). The definition excludes a number of
organic compounds from the definition of VOC on the basis that they are
of negligible [[Page 28059]] reactivity and do not contribute to
tropospheric ozone formation. The State's definition excludes some, but
not all, of these compounds. Therefore, the State's definition of VOC
provides for the regulation of some compounds which are no longer
considered VOCs by EPA. In light of EPA's most recent definition of
VOC, EPA will not enforce against sources for failure to control the
emission of compounds that are exempt from the federal VOC definition.
CACI Comment 5: CACI's fifth comment states ``The 1989 Reg 7
rulemaking which took place over five years ago did not anticipate the
lack of de minimis thresholds for a federally enforceable condition.
Upon information and belief, since 1988 there has been no ozone
attainment demonstration to examine the impact of this revised Reg 7 on
our area, i.e., do not know the need for or the impact of Reg 7.
However, now that the program is largely self-administering, if Reg 7
becomes a federally enforceable condition, CACI believes many sources
in the Denver-Boulder area will be out of compliance with their Title V
permits. Therefore, without knowing the impacts of revised Reg 7, we
are putting Denver-Boulder industry at risk of enforcement action. To
prevent this result, we propose the submittal be delayed until the AQCC
can address this issue through rulemaking.''
Response to CACI Comment 5: EPA does not understand CACI's comment
that the 1989 rulemaking did not anticipate the lack of de minimis
thresholds. EPA believes that the 1989 and 1990 revisions to Reg. 7
contain ``de minimis thresholds'' in that exemptions and/or
applicability thresholds do appear in Sections II., III., IV., VI.,
VII., VIII., IX., X., XI., XII., XIII., XIV., and XV. of Reg. 7. These
exemptions and applicability thresholds were developed by the State and
determined appropriate in consideration of the RACT requirement of the
CAA and EPA policy and guidance. With respect to enforcement, EPA notes
the 1989 and 1990 revisions to Reg. 7 were legally adopted by the
State. Therefore, as stated in Section I. ``APPLICABILITY, B., 2.
Existing Sources, c.'' of the revised Reg. 7, all applicable existing
sources were required to be in compliance with Reg. 7 on or after
October 30, 1991. Additionally, Section I. ``APPLICABILITY, B., 1. New
Sources'' provides that ``New sources, defined as any sources which * *
* commence operation on or after October 30, 1989, must comply with the
provisions of this regulation upon commencement of operation.'' Based
on the above, the 1989 and 1990 revisions have been State-enforceable
since November 1, 1991, for existing sources, and November 1, 1989, for
new sources. Therefore, the impacts from the enforcement of the 1989
and 1990 revisions to Reg. 7 have already been realized by applicable
sources in the Denver-Boulder area.
It is unclear to EPA the intent of CACI's statement that sources
would be out of compliance with their Title V permits when EPA fully
approves the 1989 and 1990 revisions to Reg. 7. The Title V permits
will not include any new VOC control requirements, but they will
include all federally enforceable requirements and State enforceable
requirements. As stated above, compliance with Reg. 7 should have
already occurred as existing sources and new sources were required to
comply with the applicable provisions of Reg. 7 since November 1, 1991,
and November 1, 1989, respectively. Moreover, to the extent that these
new requirements are not included in a Title V permit that has been
issued prior to the effective date of this final action, the approval
of these requirements into the SIP will not in and of itself render
such a source out of compliance with its Title V permit. However,
consistent with 40 CFR 70.7(f)(1)(i), a source with three or more years
remaining on the term of its permit would need to reopen the permit to
incorporate these requirements, while a Title V source with less than
three years remaining on the permit could incorporate them at renewal.
Finally, EPA does note, however, that sources which are subsequently
discovered, during the process of applying for a Title V permit, that
are not complying with the applicable provisions of Reg. 7, may receive
an enforcement action by either the State or EPA depending upon the
situation.
Also, approval by EPA of the 1989 and 1990 revisions to Reg. 7
additionally make these revisions federally enforceable and officially
revises and updates the State's SIP.
CACI Comment 6: In its sixth comment, CACI states ``Finally, EPA's
approval of Reg 7 without de minimis thresholds does not meet the
spirit of President Clinton's Common Sense Initiative, and it is
inconsistent with the Economic Incentive Program (EIP) Rule. CACI urges
the AQCC and EPA to review Reg 7 to determine proper de minimis
threshold provisions prior to adopting Reg 7 into the SIP.''
Response to CACI Comment 6: As stated above in EPA's response to
CACI's Comment 5, the 1989 and 1990 revisions to Reg. 7 contain ``de
minimis thresholds'' in that exemptions and/or applicability thresholds
appear in Sections II., III., IV., VI., VII., VIII., IX., X., XI.,
XII., XIII., XIV., and XV. of Reg. 7. These exemptions and
applicability thresholds were developed by the State and determined
appropriate in consideration of the RACT requirement of the CAA and EPA
policy and guidance. EPA also participated in the development and
review of these revisions to Reg. 7 and has determined the 1989 and
1990 Reg. 7 revisions to the SIP to be fully federally approvable.
EPA disagrees with the CACI statement that approval of the 1989 and
1990 revisions to Reg. 7 is inconsistent with the EIP rules. The 1989
and 1990 Reg. 7 revisions were required by EPA to address design,
implementation, and enforceability problems with Reg. 7. The EIP rules,
promulgated on April 7, 1994 (59 FR 16710), and codified at 40 CFR Part
51, ``Subpart U-Economic Incentive Programs'', do not determine source
specific or category specific RACT requirements. Instead, the EIP rules
set forth an alternative program, in this particular reference, for
implementing new and/or previously existing RACT requirements through
emissions trading (reference 40 CFR 51.493). EIPs were required as a
SIP revision for certain ozone and carbon monoxide nonattainment areas
as indicated in sections 182(g)(3), 182(g)(5), 187(d)(3), and 187(g) of
the CAA. The Denver-Boulder transitional ozone nonattainment area was
not required to submit an EIP. EPA notes, however; as provided in 40
CFR 51.490(b), the Denver-Boulder area may elect to submit a
discretionary EIP revision to the Colorado SIP.
CACI Comment 7: In its seventh comment CACI states ``The Denver-
Boulder area, as indicated above, has had no exceedences of the ozone
standard since 1987. The area is designated transitional and it is
subject to redesignation as attainment. In the `Background' statements
to the proposed rule (59 FR 59191) EPA states: `For a maintenance plan
to be approved and the Denver-Boulder metropolitan area to be
redesignated as attainment pursuant to section 107(d)(3)(E), the State,
may have to develop specific RACT regulations for major non-CTG
sources. Information available to EPA suggests that there has been
growth in emissions from some non-CTG sources in the area; RACT
regulations for these sources may be necessary to ensure maintenance of
the NAAQS for the initial 10-year redesignation attainment period, as
is required by section 175A of the ACT.' CACI asks that EPA not act on
the Governor's 1989 and 1990 proposal until after a request for
redesignation is submitted so that [the] current Reg 7 can
[[Page 28060]] be reviewed and modified as part of the maintenance
plan.''
Response to CACI Comment 7: The reader is referred to EPA's
responses to CACI's Comment 1 and CPA's Comment 2. In addition, EPA
notes that it does not have the discretion to unilaterally withhold
action on the submittals of the 1989 and 1990 Reg. 7 revisions until
the State submits its redesignation request and maintenance plan. EPA
will work with the State in developing its redesignation request and
maintenance plan, if so requested, to determine if any modifications to
Reg. 7 are legally supported.
Final Action
EPA is approving Colorado's Ozone SIP revisions, submitted by the
Governor on September 27, 1989, and August 30, 1990. These revisions
consist of amendments to Reg. 7.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Implementation Plan. Each request for revision to
any State Implementation Plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
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.
SIP approvals under section 110 and Subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 31, 1995. 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)).
Approval of this specific revision to the SIP does not indicate EPA
approval of the SIP in its entirety.
Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of Colorado was approved by the Director of the
Federal Register on July 1, 1980.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 19, 1995.
William P. Yellowtail,
Regional Administrator.
40 CFR part 52, subpart G, is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(70) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(70) Revisions to the Colorado State Implementation Plan were
submitted by the Governor on September 27, 1989, and August 30, 1990.
The revisions consist of amendments to the Ozone provisions in
Regulation No. 7, ``Regulation To Control Emissions of Volatile Organic
Compounds.''
(i) Incorporation by reference.
(A) Revisions to Regulation No. 7, Sections 7.I (Applicability),
7.II (General Provisions), 7.III (General Requirements for Storage and
Transfer of Volatile Organic Compounds), 7.IV (Storage of Highly
Volatile Organic Compounds), 7.V (Disposal of Volatile Organic
Compounds), 7.VI (Storage and Transfer of Petroleum Liquid), 7.VIII
(Petroleum Processing and Refining), 7.IX (Surface Coating Operations),
7.X (Use of Solvents for Degreasing and Cleaning), 7.XI (Use of Cutback
Asphalt), 7.XII (Control of VOC Emissions from Dry Cleaning Facilities
Using Perchloroethylene as a Solvent), 7.XIII (Graphic Arts), 7.XIV
(Pharmaceutical Synthesis), 7.XV (Control of Volatile Organic Compound
Leaks from Vapor Collection Systems Located at Gasoline Terminals, Bulk
Plants, and Gasoline Dispensing Facilities), and Appendices A (Criteria
for Control of Vapors from Gasoline Transfer to Storage Tanks), B
(Criteria for Control of Vapors from Gasoline Transfer at Bulk Plants-
Vapor Balance System), and D (Test Procedures for Annual Pressure/
Vacuum Testing of Gasoline Transport Trucks). The following new
emission sources and appendices were added to Regulation No. 7:
7.IX.A.7 (Fugitive Emission Control), 7.IX.N. (Flat Wood Paneling
Coating), 7.IX.O. (Manufacture of Pneumatic Rubber Tires), and Appendix
E (Emission Limit Conversion Procedure). These revisions became
effective on October 30, 1989, and August 30, 1990.
(ii) Additional material.
(A) February 5, 1992, letter from John Leary, Acting Director,
Colorado Air Pollution Control Division, to Douglas Skie, EPA. This
letter contained the State's commitment to conduct capture efficiency
testing using the most recent EPA capture efficiency protocols, and the
commitment to adopt federal capture efficiency test methods after they
are officially promulgated by EPA.
[FR Doc. 95-13118 Filed 5-26-95; 8:45 am]
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