[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:
    <bullet> http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#eb8084869bc5868a9980ab8e9b8ac58c849d"><span class="__cf_email__" data-cfemail="aac1c5c7da84c7cbd8c1eacfdacb84cdc5dc">[email protected]</span></a>.
    <bullet> Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
    <bullet> Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
    <bullet> 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, <a href="/cdn-cgi/l/email-protection#fd9692908dd3909c8f96bd988d9cd39a928b"><span class="__cf_email__" data-cfemail="ff9490928fd1929e8d94bf9a8f9ed1989089">[email protected]</span></a>.

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.

[[Page 236]]

    (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

[[Page 237]]

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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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]
BILLING CODE 6560-50-P


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