Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 45879 

Michigan or his on-scene representative 

to obtain permission to do so. Vessel 

operators given permission to enter or 

operate in the safety zone must comply 

with all directions given to them by the 

Captain of the Port Lake Michigan or his 

on-scene representative. 

Dated: July 29, 2008. 

Peter V. Neffenger, 

Rear Admiral, U.S. Coast Guard Commander, 

Ninth Coast Guard District. 

[FR Doc. E8–18078 Filed 8–6–08; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–1030; FRL–8573–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Colorado; Affirmative Defense 

Provisions for Malfunctions; Common 

Provisions Regulation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action approving a State 

Implementation Plan (SIP) revision 

submitted by the State of Colorado on 

August 1, 2007. This revision 

establishes affirmative defense 

provisions for source owners and 

operators for excess emissions during 

periods of malfunction. The affirmative 

defense provisions are contained in the 

State of Colorado’s Common Provisions 

regulation. The intended effect of this 

action is to approve only those portions 

of Colorado’s Common Provisions 

regulation submitted on August 1, 2007 

that relate to the affirmative defense for 

malfunctions. This action is being taken 

under section 110 of the Clean Air Act. 

DATES: This rule is effective on October 

6, 2008, without further notice, unless 

EPA receives adverse comment by 

September 8, 2008. If adverse comment 

is received, EPA will publish a timely 

withdrawal of this direct final rule in 

the Federal Register informing the 

public that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08–

OAR–2007–1030, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: videtich.callie@epa.gov and 

komp.mark@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT section if you are 

faxing comments). 

• Mail: Callie Videtich, Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P–

A, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Callie Videtich, 

Director, Air Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–A, 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–2007–

1030. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://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 e-mail comment directly 

to EPA, without going through http:// 

www.regulations.gov, your e-mail 

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 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 http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Mark Komp, Air Program, 1595 

Wynkoop Street, Mailcode: 8P–A, 

Denver, Colorado 80202–1129, (303) 

312–6022, komp.mark@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

II. Background of State Submittal 

III. EPA Analysis of State Submittal 

IV. Consideration of Section 110 (l) of the 

CAA 

V. Final 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. 

(iv) The words State or Colorado 

mean the State of Colorado unless the 

context indicates otherwise. 

I. General Information 

A. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

regulations.gov or e-mail. Clearly mark 

the part or all of the information that 

you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 


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45880 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 

1Earlier expressions of EPA’s interpretations 

regarding excess emissions during malfunctions, 

startup, and shutdown are contained in two 

memoranda, one dated September 28, 1992, the 

other February 15, 1983, both titled ‘‘Policy on 

Excess Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions’’ and signed by 

Kathleen M. Bennett. However, the September 1999 

memorandum directly addresses the creation of 

affirmative defenses in SIPs and, therefore, is most 

relevant to this action. 

2EPA’s September 20, 1999 memorandum 

indicates that the term affirmative defense means, 

in the context of an enforcement proceeding, a 

response or defense put forward by a defendant, 

regarding which the defendant has the burden of 

proof, and the merits of which are independently 

and objectively evaluated in a judicial or 

administrative proceeding. See footnote 4 of the 

attachment to the memorandum. 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

a. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

b. Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

c. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

d. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

e. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

f. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

g. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

h. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background of State Submittal 

On August 1 2007, the State of 

Colorado submitted a formal revision to 

its State Implementation Plan (SIP) that 

added affirmative defense provisions for 

excess emissions during periods of 

malfunctions and removed existing 

provisions regarding upsets. These 

affirmative defense provisions are 

contained in the Common Provisions 

Regulation at sections I.G. and II.E. The 

Colorado Air Quality Control 

Commission (AQCC) adopted these 

revisions on December 15, 2006. 

Previously, EPA, in a letter dated June 

13, 2001 from Richard L. Long, Director, 

EPA Region 8 Air and Radiation 

Program, to Margie Perkins, Director, 

Colorado’s Air Pollution Control 

Division, identified concerns with 

Colorado’s existing upset rule in the 

State’s Common Provisions Regulation. 

We believed that Colorado’s existing 

upset rule did not conform to the Clean 

Air Act requirements to protect National 

Ambient Air Quality Standards 

(NAAQS) and Prevention of Significant 

Deterioration (PSD) increments and 

should be revised. Specifically, the 

existing upset rule allowed an 

exemption from enforcement for excess 

emissions that occurred during certain 

defined ‘‘upset conditions.’’ EPA’s 

interpretation was and continues to be 

that the Clean Air Act requires that all 

periods of excess emissions be treated as 

violations and not exempted from 

enforcement. 

During 2002, the AQCC considered 

EPA’s position but ultimately rejected 

EPA’s request for revision and suggested 

language to the Common Provisions 

Regulation to address our findings. On 

December 22, 2005 we received a 

petition to issue a SIP call to require 

Colorado to revise aspects of its 

Common Provisions regulation related 

to upset conditions. The petitioners 

were Rocky Mountain Clean Air Action, 

Center for Native Ecosystems, and 

Jeremy Nichols. The petition alleged 

that Colorado’s exemption for excess 

emissions during upsets was 

inconsistent with the Clean Air Act. The 

petition referred to our previous 

statement that Colorado’s upset rule did 

not conform to the Clean Air Act. 

The State indicated a willingness to 

renew efforts to revise the upset 

provisions in the Common Provisions 

regulation, and related provisions in 

other regulations. The State’s December 

15, 2006 Statement of Basis, Specific 

Statutory Authority and Purpose for 

Revisions to the Common Provisions 

(that was later submitted on August 1, 

2007) indicates that revisions were 

made regarding upset conditions and 

malfunctions to ‘‘clarify the process by 

which a source must identify an upset 

or malfunction.’’ The State changed the 

term ‘‘upset’’ to ‘‘malfunction’’ for 

consistency with EPA policy. In 

addition, provisions within the 

Common Provisions were revised to 

clarify that an affirmative defense is 

available to claims of violation of the 

AQCC’s regulations for civil penalties in 

enforcement actions regarding excess 

emissions arising from malfunctions. 

III. EPA Analysis of State Submittal 

EPA’s interpretations of the Act 

regarding excess emissions during 

malfunctions are contained in, among 

other documents, a September 20, 1999 

memorandum titled ‘‘State 

Implementation Plans: Policy Regarding 

Excess Emissions During Malfunctions, 

Startup, and Shutdown,’’ from Steven 

A. Herman, Assistant Administrator for 

Enforcement and Compliance 

Assurance, and Robert Perciasepe, 

Assistant Administrator for Air and 

Radiation.1 That memorandum 

indicates that because excess emissions 

might aggravate air quality so as to 

prevent attainment and maintenance of 

the NAAQS or jeopardize the PSD 

increments, all periods of excess 

emissions are considered violations of 

the applicable emission limitation. 

However, the memorandum recognizes 

that in certain circumstances states and 

EPA have enforcement discretion to 

refrain from taking enforcement action 

for excess emissions. In addition, the 

memorandum also indicates that states 

can include provisions in their SIPs that 

would, in the context of an enforcement 

action for excess emissions, excuse a 

source from penalties (but not 

injunctive relief) if the source can 

demonstrate that it meets certain criteria 

(an ‘‘affirmative defense’’).2 Finally, the 

memorandum indicates that EPA does 

not intend to approve SIP revisions that 

would recognize a state director’s 

decision to bar EPA’s or citizens’ ability 

to enforce applicable requirements. 

We have evaluated Colorado’s 

affirmative defense provisions for 

malfunctions and find that they are 

consistent with our interpretations 

under the Act regarding the types of 

affirmative defense provisions we can 

approve in SIPs. The Affirmative 

Defense provisions in the Common 

Provisions Regulation, sections I.G and 

II.E, are consistent with the provisions 

for malfunctions we suggested in our 

September 20, 1999 memorandum. 

More specifically, section II.E of the 

Common Provisions Regulation 

provides owners and operators with an 

affirmative defense, to civil penalties 

only, for excess emissions during 

periods of malfunction. To establish the 

affirmative defense in an enforcement 

action and to be relieved of a civil 

penalty, the owner or operator of the 

facility must meet the notification 

requirements in section II.E.2 of the 

Common Provisions Regulation and 

prove by a preponderance of evidence 

the following: 

1. The excess emissions were caused 

by a sudden, unavoidable breakdown of 

equipment, or a sudden, unavoidable 

failure of a process to operate in the 

normal or usual manner, beyond the 

reasonable control of the owner or 

operator; 


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Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 45881 

3 It is our understanding that the State intended 

to include with this submittal a minor revision to 

AQCC Regulation No. 1, section IV.G.5, to conform 

its provisions to the affirmative defense provisions 

in the Common Provisions Regulation. That 

provision reads, ‘‘Compliance with the reporting 

requirements of this Section IV.G. shall not relieve 

the owner or operator of the reporting requirements 

of Section II.E of the Common Provisions 

Regulation concerning upset conditions and 

breakdowns.’’ The State intended to change the 

words ‘‘upset conditions and breakdowns’’ to 

‘‘malfunctions.’’ We have been told that this 

revision was inadvertently overlooked, but that it 

will be made this year. This omission does not 

affect the approvability of sections I.G and II.E of 

the Common Provisions Regulation. And, even 

though we have not received and approved the 

correction to section IV.G.5 of Regulation No. 1, we 

nonetheless believe it is reasonable to interpret 

section IV.G.5 of Regulation No.1 as crossreferencing the reporting requirements for 

malfunctions under section II.E of the Common 

Provisions Regulation, which we are approving 

today. 

2. The excess emissions did not stem 

from any activity or event that could 

have reasonably been foreseen and 

avoided, or planned for, and could not 

have been avoided by better operation 

and maintenance practices; 

3. Repairs were made as expeditiously 

as possible when the applicable 

emission limitations were being 

exceeded. 

4. The amount and duration of the 

excess emissions (including any bypass) 

were minimized to the maximum extent 

practicable during periods of such 

emissions; 

5. All reasonably possible steps were 

taken to minimize the impact of the 

excess emissions on ambient air quality; 

6. All emissions monitoring systems 

were kept in operation (if at all 

possible); 

7. The owner or operator’s actions 

during the period of excess emissions 

were documented by properly signed, 

contemporaneous operating logs or 

other relevant evidence; 

8. The excess emissions were not part 

of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance; 

9. At all times, the facility was 

operated in a manner consistent with 

good practices for minimizing 

emissions; and 

10. During the period of excess 

emissions, there were no exceedances of 

the relevant ambient air quality 

standards that could be attributed to the 

emitting source. 

Per section II.E.3 of the Common 

Provisions Regulation, the affirmative 

defense is not available to claims for 

injunctive relief. Also, per section II.E.4 

of the Common Provisions Regulation, 

the affirmative defense provision does 

not apply to failures to meet federally 

promulgated performance standards or 

emission limits, such as New Source 

Performance Standards or National 

Emission Standards for Hazardous Air 

Pollutants. It also does not apply to SIP 

limits or permit limits that have been set 

taking into account potential emissions 

during malfunctions, such as certain 

limits with 30-day or longer averaging 

times, limits that indicate that they 

apply during malfunctions, or limits 

that indicate that they apply at all times 

without exception. 

Section II.E.2 of the Common 

Provisions Regulation provides that an 

owner or operator of a facility 

experiencing excess emissions during a 

malfunction must notify the Colorado 

Air Pollution Control Division verbally 

as soon as possible, but no later than 

noon of the Division’s next working day, 

and in writing by the end of the source’s 

next reporting period. The written 

notification must address the elements 

of the affirmative defense. 

Section I.G of the Common Provisions 

Regulation defines ‘‘malfunction’’ as 

any sudden and unavoidable failure of 

air pollution control equipment or 

process equipment or unintended 

failure of a process to operate in a 

normal or usual manner and indicates 

that failures that are primarily caused by 

poor maintenance, careless operation, or 

any other preventable upset condition 

or preventable equipment breakdown 

shall not be considered malfunctions. 

We interpret the affirmative defense 

as applying in an enforcement 

proceeding, and the merits of the 

defense in a particular case would be 

determined by an independent judicial 

or administrative tribunal. Accordingly, 

the State’s decision in a particular case 

that an enforcement action was not 

warranted, or that an owner or operator 

had proved the elements of the 

affirmative defense, would not bar an 

EPA or citizen enforcement action and 

would not bind a judicial or 

administrative tribunal. The rule that 

we are approving preserves the right of 

the State, EPA, and citizens to 

independently exercise enforcement 

discretion. 

The provisions of sections I.G and II.E 

will provide sources with appropriate 

incentives to comply with their 

emissions limitations and help ensure 

protection of the NAAQS and 

increments and compliance with other 

Act requirements.3

IV. Consideration of Section 110(l) of 

the CAA 

Section 110(l) of the Clean Air Act 

states that a SIP revision cannot be 

approved if the revision would interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress toward attainment of 

the NAAQS or any other applicable 

requirement of the Act. The Colorado 

SIP revision that is the subject of this 

document does not interfere with 

attainment of the NAAQS or any other 

applicable requirement of the Act. The 

August 1, 2007 submittal removes a 

provision from the Colorado SIP that 

provided an outright exemption from 

emission limits during upsets and 

replaces it with a provision that 

establishes an affirmative defense, to 

civil penalties only, for excess 

emissions during malfunctions. The 

affirmative defense does not apply to 

claims for injunctive relief, and the 

elements of the affirmative defense are 

rigorous and well-defined. The need to 

meet these elements will provide 

sources with significant incentives to 

minimize their emissions, comply with 

their emission limits, and protect the 

NAAQS and increments. Therefore, 

section 110(l) requirements are satisfied. 

V. Final Action 

For the reasons expressed above, we 

are approving sections I.G and II.E of the 

Common Provisions Regulation 

submitted on August 1, 2007. EPA is 

publishing this rule without prior 

proposal because the Agency views this 

as a noncontroversial amendment and 

anticipates no adverse comments. 

However, in the ‘‘Proposed Rules’’

section of today’s Federal Register 

publication, EPA is publishing a 

separate document that will serve as the 

proposal to approve the SIP revision if 

adverse comments are filed. This rule 

will be effective October 6, 2008 

without further notice unless the 

Agency receives adverse comments by 

September 8, 2008. If the EPA receives 

adverse comments, EPA will publish a 

timely withdrawal in the Federal 

Register informing the public that this 

rule will not take effect. EPA will 

address all public comments 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 must do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. 

VI. Statutory and Executive Order 

Review 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 


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45882 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq. as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by October 6, 2008. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: May 12, 2008. 

Carol Rushin, 

Acting Regional Administrator, Region 8. 

■ 40 CFR part 52 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 et seq. 

Subpart G—Colorado 

■ 2. Section 52.320 is amended by 

adding paragraph (c)(113) to read as 

follows: 

§ 52.320 Identification of plan. 

(c) * * * 

(113) On August 1, 2007, the State of 

Colorado submitted revisions to 

Colorado’s Common Provisions 

Regulation, 5 CCR 1001–2, that made 

changes and additions to Section I, 

‘‘Definitions, Statement of Intent, and 

General Provisions Applicable to All 

Emission Control Regulations Adopted 

by the Colorado Air Quality Control 

Commission,’’ and Section II, 

‘‘General.’’

(i) Incorporation by reference. 

(A) Common Provisions Regulation, 5 

CCR 1001–2, Section I.G, ‘‘Definitions,’’

effective on March 4, 2007. 

(1) The submittal revises Section I.G 

by removing the definition of ‘‘upset 

conditions’’ and replacing it with the 

definition of ‘‘malfunction.’’

(B) Common Provisions Regulation, 5 

CCR 1001–2, Section II.E, ‘‘Affirmative 

Defense Provision for Excess Emissions 

During Malfunctions,’’ effective on 

March 4, 2007. 

(2) The submittal revises Section II.E 

by removing language which provided 

an exemption for excess emissions 

during upset conditions and 

breakdowns and replacing it with an 

affirmative defense provision for source 

owners and operators for excess 

emissions during malfunctions. 

[FR Doc. E8–16268 Filed 8–6–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 071030625–7696–02] 

RIN 0648–XJ37 

Fisheries of the Northeastern United 

States; Summer Flounder Fishery; 

Commercial Quota Harvested for the 

Commonwealth of Massachusetts 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS announces that the 

2008 summer flounder commercial 

quota allocated to the Commonwealth of 

Massachusetts has been harvested. 

Vessels issued a commercial Federal 

fisheries permit for the summer 

flounder fishery may not land summer 

flounder in Massachusetts for the 

remainder of calendar year 2008, unless 

additional quota becomes available 

through a transfer from another state. 

Regulations governing the summer 

flounder fishery require publication of 

this notification to advise Massachusetts 

that the quota has been harvested and to 

advise vessel permit holders and dealer 

permit holders that no commercial 

quota is available for landing summer 

flounder in Massachusetts. 


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