Federal Register / Vol. 76, No. 16 / Tuesday, January 25, 2011 / Proposed Rules 4271 

application of those requirements would 

be inconsistent with the CAA; 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). 

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: January 13, 2011. 

Carol Rushin, 

Deputy Regional Administrator, Region 8. 

[FR Doc. 2011–1475 Filed 1–24–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–0649; FRL–9256–5] 

Approval and Promulgation of State 

Implementation Plans; State of 

Colorado Regulation Number 3: 

Revisions to the Air Pollutant Emission 

Notice Requirements and Exemptions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing partial 

approval and partial disapproval of 

State Implementation Plan (SIP) 

revisions regarding the Air Pollutant 

Emission Notice (APEN) regulations 

submitted by the State of Colorado on 

September 16, 1997, June 20, 2003, July 

11, 2005, August 8, 2006 and August 1, 

2007. The APEN provisions in Sections 

II.A. through II.D., Part A of Colorado’s 

Regulation Number 3, specify the APEN 

filing requirements for stationary 

sources and exemptions from such 

requirements. This action is being taken 

under section 110 of the Clean Air Act 

(CAA). 

DATES: Comments must be received on 

or before February 24, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2007–0649, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: freeman.crystal@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Callie Videtich, Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Callie Videtich, 

Director, Air Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop, 

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– 

0649. 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, 

Mailcode 8P–AR, 1595 Wynkoop, 

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: 

Crystal Freeman, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop, Denver, Colorado 80202– 

1129, (303) 312–6602, 

freeman.crystal@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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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1EPA’s Technical Support Document (TSD), part 

of the docket for this proposed action (accessible on 

the regulations.gov Web site under Docket Number 

EPA–R08–OAR–2007–0649) clearly identifies for 

each of the APEN provisions the cumulative effect 

of the revisions (if any) adopted by the State 

between 1997 and 2007. The TSD’s Table 1 lists all 

the APEN provisions (requirements and 

exemptions) and for each it provides: the provision 

number in the 1997 EPA-approved SIP, and in the 

2007 State submittal; a short description or title of 

the provision, and cumulative language changes 

from 1997 to 2007; EPA’s proposed action 

(Approval, Disapproval, or No Action); and EPA’s 

comments summarizing the nature of the changes, 

and providing a rationale for supporting the 

proposed action. EPA believes that this approach 

allows a clear understanding of the overall revisions 

adopted by the State for each provision and of the 

rationale for the Agency’s proposed action. The 

cumulative revisions identified in Table 1 of the 

TSD were part of the Colorado submissions dated 

September 16, 1997, June 20, 2003, July 11, 2005, 

August 8, 2006 and August 1, 2007. 

(iv) The words Colorado and State 

mean the State of Colorado. 

Table of Contents 

I. General Information 

II. Background 

III. What action is EPA proposing? 

IV. What is the State process to submit these 

materials to EPA? 

V. EPA’s Review and Technical Information 

VI. Proposed Action 

VII. Statutory and Executive Order Reviews 

I. General Information 

1. Submitting CBI. Do not submit CBI 

to EPA through http:// 

www.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 

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 

The Colorado APEN provisions in 

Regulation Number 3, Part A, Sections 

II.A. through II.C., specify requirements 

for stationary sources (major and minor) 

to file emission notices. These notices 

provide information such as the location 

where a source’s emissions will occur, 

the nature of the source or of the activity 

generating the expected emissions, and 

an estimate of the emissions’ quantity 

and composition. The Colorado APEN 

provisions in Regulation Number 3, Part 

A, Section II.D. exempt specific 

categories of sources from APEN 

requirements. 

EPA’s last final rulemaking action 

addressing revisions to Colorado’s 

APEN provisions was published January 

21, 1997 (62 FR 2910). The action 

proposed today addresses the APEN SIP 

revisions submitted by the State of 

Colorado between 1997 and 2007 with 

Governor’s letters dated as follows: 

September 16, 1997; June 20, 2003; July 

11, 2005; August 8, 2006; and August 1, 

2007. EPA’s evaluation of the revisions 

submitted by the State does not trace the 

APEN provision changes through each 

of the submissions noted above. For 

reasons of efficiency and clarity, EPA 

compared the language of each APEN 

provision as submitted by the State on 

August 1, 2007 with the EPA-approved 

text of the same APEN provision in the 

1997 Colorado SIP. For each provision, 

the substantive language changes, EPA’s 

proposed action, EPA’s comments about 

the general nature of the changes, and 

the rationale for the Agency action are 

reported in Table 1 of the Technical 

Support Document (TSD) underpinning 

our proposed action.1 For actions 

involving a provision’s proposed 

disapproval our analysis does reference 

and address relevant material 

supporting the revision’s adoption by 

the State. In some cases, EPA asked the 

State for clarification of revisions; these 

clarifications are also available in the 

docket. Through this approach to the 

cumulative revisions, EPA intends for 

this proposed rule action to address all 

APEN revisions as submitted by the 

State of Colorado on September 16, 

1997, June 20, 2003, July 11, 2005, 

August 8, 2006, and August 1, 2007. 

III. What action is EPA proposing? 

EPA is proposing: (a) To approve 

some of the revisions to the Colorado 

APEN provisions submitted to EPA on 

September 16, 1997; June 20, 2003; July 

11, 2005; August 8, 2006; and August 1, 

2007; (b) to disapprove some of the 

revisions; and (c) to not take action on 

a few revisions unrelated to the SIP or 

to maintenance of the National Ambient 

Air Quality Standards (NAAQS). As 

mentioned in section II above, the 

specific provisions we propose to 

approve, disapprove, or not act on are 

identified in the TSD; those that require 

extended analysis are discussed in 

section V below. 

IV. What is the State process to submit 

these materials to EPA? 

Section 110(k) of the CAA addresses 

EPA’s rulemaking action on SIP 

submissions by states. The CAA 

requires states to observe certain 

procedural requirements in developing 

SIP revisions for submittal to EPA. 

Section 110(a)(2) of the CAA requires 

that each SIP revision be adopted after 

reasonable notice and public hearing. 

This must occur prior to the revision 

being submitted by a state to EPA. 

The Colorado Air Quality Control 

Commission (AQCC) held public 

hearings for, and adopted, on March 31, 

1996 the APEN revisions submitted to 

EPA September 16, 1997. On June 20, 

2003 Colorado submitted two APEN 

revision packages. For the first package, 

public hearing and adoption dates were 

respectively February 21 and July 18, 

2002. For the second, the revisions were 

submitted to public hearing and 

adopted on the same October 17, 2002 

date. For APEN revisions submitted to 

EPA on July 11, 2005, the Colorado 

AQCC held public hearings February 19, 

April 15, and April 16, 2004, and 

adopted the revisions on the latter date. 

The Colorado AQCC held a public 

hearing on December 16, 2004 for APEN 

revisions adopted the same day and 

submitted to EPA August 8, 2006. For 

the last of the submissions considered 

in this action, APEN revisions 

submitted to EPA on August 1, 2007, the 

Colorado AQCC public hearing and 

adoption took place on August 17, 2006. 

EPA has reviewed the submittals by 

the State of Colorado and has 

determined that the State met the 

requirements for reasonable notice and 

public hearing under section 110(a)(2) 

of the CAA. All Colorado APEN 


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2 62 FR 2910, January 21, 1997. 

3Unless otherwise specified, all references to 

sections in the remainder of this notice are to 

sections in Part A of Regulation 3. 

4This revision was adopted by Colorado AQCC 

July 18, 2002. 

revisions submittals referenced above, 

and addressed in this action, became 

complete by operation of law under 

section 110(k)(1)(B) of the CAA six 

months after their submittal dates. 

V. EPA’s Review and Technical 

Information 

As indicated in the Background 

section of this action, for each of the 

APEN provisions in Regulation Number 

3, Part A, Sections II.A. through II.D., 

EPA’s TSD identifies the cumulative 

revisions submitted by the State 

between 1997 and 2007, provides EPA’s 

assessment of the revisions, and 

indicates EPA’s proposed action 

(approval, no action, or disapproval). 

The TSD compares the cumulative 

revisions of each APEN provision with 

the current EPA-approved language of 

the same provision, effective as of 

February 20, 1997.2 For revisions to 

APEN provisions that must be 

addressed in greater detail, EPA’s 

evaluation references the specific 

submittal or submittals affecting the 

changes, their related material, as well 

as any subsequent information/ 

clarification provided to EPA by the 

State of Colorado. All material 

contributing to EPA’s proposed action is 

referenced appropriately and made 

available for review as part of the docket 

supporting the Agency’s proposed 

rulemaking. 

For clarity, EPA’s evaluation of the 

APEN revisions submitted by the State 

of Colorado between 1997 and 2007 

considers four groups identified 

according to EPA’s action. The first 

group consists of the APEN provisions 

that the State did not revise between 

September 1997 and August 2007. 

These provisions retained in the 2007 

APEN submission are the same language 

as the provisions in the 1997 EPAapproved Colorado SIP. For this group 

of APEN provisions there are no SIP 

revisions for EPA to propose action on. 

The second group consists of the APEN 

provisions for which the State had 

adopted only clerical changes, such as 

grammar or style changes, that do not 

reflect any substantive modifications. 

For example, some of the changes 

expanded abbreviations such as 

‘‘APEN,’’ and others replaced the digits 

of a numerical value with its equivalent 

text—i.e., ‘‘four hundred’’ instead of 

‘‘400.’’ EPA proposes to approve all the 

clerical revisions submitted by the State 

of Colorado between September 16, 

1997 and August 1, 2007. 

The third and fourth groups consist of 

the Colorado APEN provisions that 

underwent substantive revisions; the 

third group are those provisions EPA 

proposes to approve and the fourth 

those EPA proposes to disapprove. In 

general, our evaluation of each 

substantive revision assesses whether 

the revision makes the SIP more or less 

stringent, or weakens protection of the 

NAAQS. In carrying this out, we 

consider whether the revisions satisfied 

recordkeeping and reporting 

requirements set out in 40 CFR 51.211. 

We also consider whether the revisions 

affected the applicability of substantive 

provisions elsewhere within the SIP. In 

particular, a source that is exempt from 

APEN requirements is also exempt from 

construction permitting requirements 

(see Regulation 3, Part B, Section 

III.D.1.a). As a result, the requirements 

for stationary sources at 40 CFR 51.160 

are implicated by the submitted APEN 

exemptions we review in this proposal. 

For many of the provisions affected by 

the substantive revisions submitted by 

the State, EPA’s rationale for its 

proposed action is explained and 

provided in Table 1 of the TSD. For the 

remaining provisions, affected by 

revisions requiring more complex and 

detailed evaluations, we do so in the 

following paragraphs. 

We examine first the revisions that 

EPA proposes to approve, in the order 

as they appear in Regulation 3. 

Provision II.B.1.b.3 pertains to 

alternative methods for emissions 

estimates. The language of the 1997 

EPA-approved provision included a 

reference to ‘‘Section II.E.2. of this 

Regulation No. 3, Part A.,’’ which 

addressed deferrals of APEN reporting 

timelines—a subject unrelated to the 

issue of emissions estimates and 

alternative methods. This reference was 

an obvious clerical error corrected by 

the State, with the June 20, 2003 

submission,4 to ‘‘Section II.C.2.’’ The 

corrected reference, on the other hand, 

specifies thresholds for significant 

emission changes, which relate to the 

accuracy required for emission 

estimates. The lower the significant 

emission changes threshold, the greater 

the precision required of an acceptable 

alternate emissions estimate. EPA 

therefore proposes to approve this 

correction. 

EPA also proposes to approve 

revisions to II.B.3.a., which sets 

thresholds (in tons per year) of criteria 

pollutants for APEN applicability. The 

revisions clarify the understanding that 

the one ton per year (tpy) threshold in 

nonattainment areas applies to the 

pollutants for which the area is in 

nonattainment. EPA proposes approval 

of this revision because the change does 

not make the SIP less stringent or affect 

the ambient air quality. 

Next, APEN provision II.B.9. of the 

EPA-approved SIP identifies criteria 

pollutants for the purpose of APEN 

applicability. The Colorado AQCC 

adopted on April 16, 2004 the revised 

provision that was submitted to EPA on 

July 11, 2005; Colorado retained the 

same language in the August 8, 2006 

and August 1, 2007 submissions. The 

revision generally defines criteria 

pollutants as those for which EPA has 

established a NAAQS. The revision also 

identifies NOx and volatile organic 

compounds (VOCs) as precursors to 

ozone. EPA proposes approval of this 

revision because it makes the definition 

of criteria pollutants (for the purposes of 

APEN applicability) consistent with the 

federal definition. In the same 

submittal, the AQCC renumbered the 

provision to I.B.16. EPA is also 

proposing to approve this renumbering, 

which does not affect the applicability 

of the provision. EPA notes that since 

prior to this renumbering Section I.B.16 

was ‘‘reserved,’’ the move of II.B.9 to 

this section does not replace any other 

provision, and therefore does not impact 

the stringency of the SIP. 

EPA is also proposing to approve the 

revision to II.C.1.h. submitted on July 

11, 2005. The revision is intended to 

update the reference to the definition of 

‘‘major stationary source.’’ However, the 

reference specified, Section II.A.25., 

gives the definition of ‘‘Minor Source 

Baseline Date,’’ while Section II.A.24. 

defines ‘‘Major Stationary Source.’’ EPA 

has discussed this with the State; the 

State concurs that the reference should 

be ‘‘Section II.A.24.’’ and has agreed to 

correct this discrepancy in a later 

submittal to EPA. Given that the correct 

reference can be determined from the 

context, EPA proposes approval of the 

revision. 

A revision to II.C.3.d was submitted to 

EPA on August 8, 2006. The revised 

provision changes the time APENs are 

due for control equipment at condensate 

storage tanks located at oil and gas 

exploration facilities. However, the 

revision does not exempt such sources 

from reporting and therefore does not 

relieve them from any substantive 

requirements of the SIP. As the revision 

does not impact emission levels and 

ambient air quality standards, EPA is 

proposing to approve it. 

We turn to exemptions from APEN 

requirements that have been added to 

Section II.D.1 in the submittals. First, 

II.D.1.nnn exempts ‘‘Fugitive emissions 


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5 In addition, 40 CFR 51.160(a)(1) requires SIPs 

contain legally enforceable procedures for 

determining whether construction or modification 

of a stationary source will violate applicable 

portions of the control strategy, and 40 CFR 

51.211(b) requires SIPs contain legally enforceable 

procedures for requiring owners and operators of 

stationary sources to keep records necessary to 

determine compliance with applicable portions of 

the control strategy. 

of hazardous air pollutants that are 

natural constituents of native soils and 

rock (not added or concentrated by 

chemical or mechanical processes) from 

underground mines or surface mines 

unless such source is a major source of 

hazardous air pollutants under Part C of 

Regulation No. 3.’’ The provision was 

adopted on March 31, 1996, and 

submitted to the EPA on September 16, 

1997. This exemption will not affect any 

substantive requirement in the SIP 

relating to emissions of criteria 

pollutants and thus EPA is proposing 

approval. 

EPA is also proposing approval of the 

exemption in APEN provision 

II.D.1.ooo: ‘‘The use of pesticides, 

fumigants, and herbicides when used in 

accordance with requirements 

established under the Federal 

Insecticide, Fungicide and Rodenticide 

Act as established by the U.S. EPA 

(United States Code Title 7, Section 136 

et seq.).’’ The exemption was adopted 

on March 31, 1996, and submitted to the 

EPA on September 16, 1997. Such 

sources are not elsewhere regulated in 

the SIP and therefore EPA proposes 

approval of this exemption. 

The exemption in II.D.1.ppp, 

‘‘Ventilation of emissions from mobile 

sources operating within a tunnel, 

garage, or building,’’ was submitted to 

EPA on September 16, 1997. EPA 

proposes approval of this revision to the 

Colorado APEN SIP on the basis of the 

following considerations. The Colorado 

APEN reporting requirements are 

applicable only to stationary sources 

(see Regulation Number 3, Part A, 

Section II.A.). Section 302(z) of the 

(CAA) defines stationary sources as 

‘‘any source of an air pollutant except 

those emissions resulting from an 

internal combustion engine for 

transportation purposes * * *.’’ The 

exemption applies only when a mobile 

source (as defined in Regulation 3) is 

operating for transportation purposes. 

We recommend that in a future SIP 

revision the State of Colorado clarify the 

applicability of the current provision. 

EPA also proposes to approve the 

exemption in Section II.D.1.dddd., 

applicable to ‘‘Non-road engines as 

defined in Section I.B.29. of this Part A, 

except certain non-road engines subject 

to state-only air pollutant emission 

notice and permitting requirements 

pursuant to Section I.B.29.c. of this 

part.’’ The definition of non-road 

engines in Section I.B.29 is consistent 

with the federal definition of non-road 

engine at 40 CFR 1068.30. Under section 

302(z) of the CAA non-road engines are 

specifically excluded from the 

definition of stationary sources, to 

which the Colorado APEN requirements 

apply (see Section II.A.). 

APEN substantive revisions submitted 

by the State to EPA between September 

16, 1997 and August 1, 2007 include 

revisions to or additions of five 

exemption provisions that EPA 

proposes to disapprove. The first 

revision we propose to disapprove 

regards the APEN exemption for open 

burning activities, in Section II.D.1.q. 

During the period considered here, 

some of the open burning provisions 

were moved by the State from 

Regulation Number 1 to Regulation 

Number 9 (which is a State-only 

Regulation, and therefore outside the 

Colorado SIP) and then back to 

Regulation Number 1. At the same time, 

Colorado submitted a June 20, 2003 

revision of the ‘‘Open burning 

activities’’ provision in Section II.D.1.q. 

that changed a reference to Regulation 

Number 1 (part of the Colorado SIP) into 

a reference to Regulation Number 9. 

Since, as noted above, Regulation 

Number 9 is enforceable only by the 

State, EPA proposes to disapprove the 

change to the reference to Regulation 

Number 9. 

EPA is proposing to disapprove the 

APEN provision at Section II.D.1.xxx. 

exempting ‘‘Deaerator/vacuum pump 

exhausts,’’ adopted on March 31, 1996 

and submitted to EPA on September 16, 

1997. This provision would potentially 

exempt emissions both from the devices 

and from the liquid or gas the device 

operates on. If the liquid or gas operated 

on contains high levels of criteria 

pollutants or their precursors (either in 

a dissolved form in liquid or mixed in 

gas), then high levels of criteria 

pollutants may be emitted from these 

devices. As APEN exemptions are 

linked to exemption from construction 

permitting, this exemption may increase 

emissions of criteria pollutants (or their 

precursors). Under section 110(l) of the 

Act, EPA cannot approve a SIP revision 

if it would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of the Act. 

Furthermore, as these stationary sources 

may emit significant amounts of criteria 

pollutants, the exemption from 

permitting fails to ensure that 

construction or modification of these 

sources will not interfere with 

attainment or maintenance of the 

NAAQS (see 40 CFR 51.160(a)(2)). EPA 

therefore proposes to disapprove the 

exemption in II.D.1.xxx. 

EPA also proposes to disapprove 

APEN exemption A–II.D.1.sss and its 

subprovisions A–II.D.1.sss.(i) through 

A–II.D.1.sss.(iii). This provision 

exempts three tiers of stationary internal 

combustion engines from APEN 

requirements. The tiers are defined by 

engine horsepower and hours of 

operation per year: (1) Those engines 

less than or equal to 175 horsepower 

that operate less than 1450 hours per 

year; (2) those greater than 175 

horsepower and less than or equal to 

300 horsepower that operate less than 

850 hours per year; and (3) those greater 

than 300 horsepower that operate less 

than 340 hours per year. As a result of 

the exemption from APEN 

requirements, such engines are also 

exempt from construction permit 

requirements in Part B of Regulation 3 

(see Part B, Section III.D.1.a). 

The provision does not require 

owners or operators that claim the 

exemption to keep records of the hours 

of operation. As a result, the limit on the 

hours of operation is unenforceable. In 

parallel instances where a source seeks 

to limit its potential to emit (‘‘PTE’’) 

through an operational limitation (such 

as on hours of operation) in a permit, 

EPA guidance recommends that the 

limitation be enforceable as a practical 

matter. (Memorandum from Terrell E. 

Hunt & John S. Seitz entitled ‘‘Guidance 

on Limiting Potential to Emit in New 

Source Permitting’’ (June 13, 1989).) The 

guidance specifically notes, ‘‘permits 

with limits on hours of operation * * * 

should require an operating log in 

which the actual hours of operation 

* * * are recorded.’’ (Id. at 6.) The logs 

should be made available to the 

permitting authority, which allows it to 

verify compliance with the limit. 

Although this recommendation is in the 

context of practical enforceability of 

operational limitations in a permit, the 

underlying principle applies to 

enforceability of SIP provisions. Section 

110(a)(2)(A) of the CAA requires that 

emission limitations in a SIP be 

enforceable.5 Under the principle set 

out in the guidance discussed above, the 

provision is unenforceable, as there is 

no requirement to keep records of hours 

of operation. 

Without an enforceable limit on the 

hours of operations, engines in even the 

lowest tier (175 horsepower or less) may 

emit up to 8.4 tons per year (‘‘tpy’’) of 

NOX for gasoline fuel or 23.8 tpy of NOX

for diesel fuel, if operated for the full 

year. This is considerably above the 

level for the existing source-specific 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 16 / Tuesday, January 25, 2011 / Proposed Rules 4275 

exemption from construction permitting 

for stationary internal combustion 

engines (Part B, III.D.1.c(iii)), which is 

capped at 5 tons per year. 

This in turn raises another issue. 

Section 110(l) of the Act provides that 

EPA shall not approve a SIP revision if 

it would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of the Act. Due 

to the linked exemption from 

construction permitting, emissions of 

criteria pollutants and their precursors 

(such as, again, NOX) may increase as a 

result of the exemption from APEN 

requirements. For this reason, and for 

the reason that the provision appears to 

be unenforceable, EPA proposes to 

disapprove the addition of the 

exemption in A.II.D.1.sss to the SIP. 

Similar issues are raised by the 

exemption in A–II.D.1.ttt. This 

provision exempts three tiers of 

emergency power generators from APEN 

requirements: (1) Those with a rated 

horsepower of less than 260; (2) those 

that operate no more than 250 hours per 

year and have a rated horsepower of less 

than 737; and (3) those that operate no 

more than 100 hours per year and have 

a rated horsepower of less than 1,840. 

For similar reasons to those discussed 

above, EPA regards the limitations on 

hours in tiers 2 and 3 as unenforceable 

and therefore proposes to disapprove 

subprovisions A–II.D.1.ttt.(ii) and A– 

II.D.1.ttt.(iii). Sources in tier 1, on the 

other hand, do not have a limit on hours 

of operation. However, as tier 1 includes 

generators up to 260 hp, emissions from 

these sources may be even greater than 

the emissions from the first tier 

stationary internal combustion engines 

discussed above. As with those engines, 

this raises the issue of compliance with 

section 110(l) of the Act. EPA therefore 

proposes to also disapprove the 

exemption in A–II.D.1.ttt.(i). 

EPA also proposes to disapprove the 

exemption in Section II.D.1.ffff., 

applicable to ‘‘Air Curtain Destructors 

burning only yard waste, wood waste, 

and clean lumber, or any mixture 

thereof generated as a result of projects 

to reduce the risk of wildfire and are not 

located at a commercial or industrial 

facility.’’ The exemption does not apply 

to ‘‘[a]ir curtain incinerators that are 

considered incinerators as defined by 

the Common Provisions.’’ The 

exemption in II.D.1.ffff. was submitted 

to EPA on August 1, 2007. 

Under the definition of ‘‘incinerator’’ 

in a subsequent revision to the Common 

Provisions of Colorado’s SIP, air curtain 

destructors that are subject to a New 

Source Performance Standard (NSPS) 

are considered ‘‘incinerators.’’ On 

December 16, 2005, EPA published a 

final rule (70 FR 74870) for NSPS and 

emission guidelines for new and 

existing ‘‘other’’ solid waste 

incineration units (OSWI). Under this 

rule, air curtain destructors (called air 

curtain incinerators in the rule) are 

subject to an NSPS. As a result, this 

exemption, II.D.1.ffff., is superseded. 

Additionally, Colorado has agreed that 

this exemption, II.D.1.ffff., is no longer 

valid and thus EPA is proposing 

disapproval. 

APEN revisions submitted by the 

State to EPA between September 16, 

1997 and August 1, 2007 include 

revisions to six provisions that EPA 

proposes to take no action on. The first 

revisions we propose to take no action 

on are: II.D.1.m; II.D.1.ee; II.D.1.uu; 

II.D.1.ddd; and II.D.1.eeee. EPA is 

proposing to not act on these provisions 

in this Federal Register action, because 

EPA has already proposed approval of 

the repeal of these exemptions in a 

separate action published on July 21, 

2010 (75 FR 42346). Additionally, EPA 

is not proposing action on the revision 

to APEN exemption II.D.1.uuu., because 

we proposed approval of the revision in 

the same July 21, 2010 proposal. 

VI. Proposed Action 

EPA is proposing partial approval and 

partial disapproval of the Colorado SIP 

revisions for APEN requirements and 

exemptions submitted by the State on 

September 16, 1997, June 20, 2003, July 

11, 2005, August 8, 2006, and August 1, 

2007. As noted above, EPA’s evaluation 

of the revisions submitted by the State 

does not track the APEN provision 

changes through each of the 

submissions (to avoid having to evaluate 

revisions that may be significantly 

modified or even reversed in subsequent 

submittals), but for each provision 

compares the textual changes between 

the EPA-approved Colorado APEN 

provisions effective February 21, 1997, 

and the Colorado-adopted APEN 

provisions included with the August 1, 

2007 submittal. This approach allows 

EPA to evaluate, for each provision, the 

cumulative revisions submitted by the 

State on the dates specified above. 

A comprehensive summary of the 

Colorado APEN provisions in 

Regulation Number 3, Part A, Section II, 

organized by EPA’s proposed rule 

action, is provided in Table 2 below. 

The APEN provision numbers are as 

codified in the August 1, 2007 

submission. 

TABLE 2—LIST OF COLORADO APEN PROVISIONS (REQUIREMENTS AND EXEMPTION IN SECTIONS II.A THROUGH II.D OF

PART A, REGULATION NUMBER 3) BY EPA PROPOSED RULE ACTION

EPA’s proposed action APEN provision number in August 1, 2007 submission 

Approval—Substantially Revised Provisions ...... II.A; II.B.1.b; II.B.3; II.B.3.a; II.C.1.h; II.C.2.b.(ii); II.C.3.c; II.C.3.d; II.D.1; 

II.D.1.a; II.D.1.f; II.D.1.g; II.D.1.i; II.D.1.nn; II.D.1.oo; II.D.1.ccc; II.D.1.fff; II.D.1.lll; 

II.D.1.nnn. through II.D.1.qqq; II.D.1.rrr; II.D.1.vvv; II.D.1.www; II.D.1.yyy through II.D.1.dddd; 

II.D.4. through II.D.6. 

Approval—Provisions with Clerical Revisions ..... II.B.1; II.B.2; II.B.4.a. through II.B.4.f; II.C. through II.C.1.a; II.C.2; 

II.C.2.b; II.C.2.b.(i); II.C.2.b.(iii). through II.C.3.b; II.D; II.D.1.h; II.D.1.j; II.D.1.k; 

II.D.1.n; II.D.1.x; II.D.1.y; II.D.1.aa; II.D.1.bb; II.D.1.kk; II.D.1.aaa; 

II.D.1.bbb; II.D.1.ggg; II.D.2; II.D.3. 

Disapproval—Substantially Revised Provisions .. II.D.1.q; II.D.1.sss; II.D.1.ttt; II.D.1.xxx; II.D.1.ffff. 

No Action—EPA’s Prior Proposed Action ........... II.D.1.m; II.D.1.ee; II.D.1.uu; II.D.1.ddd; II.D.1.uuu; II.D.1.eeee. 

No Action—Un-Revised Provisions ..................... II.B; II.B.1.a; II.B.3.b; II.B.4; II.B.5; II.B.6; II.C.1.b. through II.C.1.g; 

II.C.2.a; II.D.1.b. through II.D.1.e; II.D.1.i.(i). through II.D.1.i.(iii); II.D.1.l; 

II.D.1.o; II.D.1.p; II.D.1.r. through II.D.1.w; II.D.1.z; II.D.1.cc; II.D.1.dd; 

II.D.1.ff. through II.D.1.jj; II.D.1.ll; II.D.1.mm; II.D.1.pp. through II.D.1.tt; 

II.D.1.vv. through II.D.1.zz; II.D.1.eee; II.D.1.hhh. through II.D.1.kkk; 

II.D.1.mmm. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
4276 Federal Register / Vol. 76, No. 16 / Tuesday, January 25, 2011 / Proposed Rules 

In addition, EPA is proposing 

approval of certain other deletion and 

renumbering of APEN requirements. 

The provisions (using the numbering 

from the EPA-approved SIP, effective 

February 21, 1997) that are proposed for 

deletion are: II.B.8., II.B.10., and 

II.D.4.b. Deletion of the exemptions in 

II.D.4.b. makes the SIP more stringent, 

and deletion of the other provisions 

does not impact APEN requirements 

and exemptions, nor any other SIP 

provisions. EPA therefore proposes to 

approve these deletions. EPA’s 

proposed approval of the renumbering 

of APEN requirements will be for the 

entirety of the language and their new 

location in Section I.B. The provision 

references, before the renumbering, 

were: II.B.5. and II.B. 9. The references, 

after the renumbering, are, respectively: 

I.B.43 and I.B.16. The renumbering of 

these provisions does not impact APEN 

requirements and exemptions, nor any 

other SIP provisions. 

As indicated in the Background 

section of this action, for each of the 

APEN provisions in Regulation Number 

3, Part A, Sections II.A. through II.D., 

EPA’s TSD identifies the cumulative 

revisions (if any) submitted by the State 

between 1997 and 2007, provides its 

assessment of the revisions within the 

regulatory context referenced earlier in 

this action, and indicates EPA’s 

proposed action (approval, no action, or 

disapproval.) 

VII. 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 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile Organic 

Compounds. 

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

Dated: January 13, 2011. 

Carol Rushin, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2011–1477 Filed 1–24–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 174 

[Docket No. FRA–2011–0004] 

Hazardous Materials: Improving the 

Safety of Railroad Transportation of 

Hazardous Materials 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of Public Meeting. 

SUMMARY: This notice announces that 

FRA has scheduled a public meeting in 

Washington, DC, to discuss its process 

of issuing movement approvals 

pursuant to Title 49 Code of Federal 

Regulations (CFR) 174.50. In an effort to 

continually improve this aspect of its 

safety program, FRA is undertaking a 

comprehensive review of its process of 

issuing movement approvals, and 

through this public meeting seeks to 

gain input from all persons and 

stakeholders affected or interested in 

this aspect of FRA’s hazardous materials 

program. 

DATES: The public meeting will be held 

on Tuesday, February 22, 2011, starting 

at 1 p.m. 

ADDRESSES: The public meeting will be 

held at the DOT Conference Center, 

located at 1200 New Jersey Avenue, SE., 

Washington, DC 20590 in the Oklahoma 

Conference Room (Rooms A–B–C). 

Oral Presentations: In order to ensure 

all interested parties are provided ample 

opportunity to speak at the meeting, any 

person wishing to present an oral 

statement should notify Mr. Karl Alexy, 

P.E., Engineer—Hazardous Materials, 

FRA Office of Safety Assurance and 

Compliance, at least 4 business days 

before the date of the public meeting. 

Mr. Alexy can be reached by e-mail at 

Karl.Alexy@dot.gov or by phone at (202) 

493–6245. For information on facilities 

or services for persons with disabilities, 

or to request special assistance at the 

meeting, contact Mr. Alexy as soon as 

possible. 

FRA will make a teleconference line 

available for any interested party who 

wishes to attend the meeting by phone. 

Any interested party desiring to attend 

the meeting by phone should contact 

Mr. Alexy as soon as possible. 

Written Comments: We invite 

interested parties who are unable to 

attend the meeting, or who otherwise 

desire to submit written comments or 

data, to submit any relevant 

information, data, or comments to the 

above-referenced docket (FRA–2011– 


srobinson on DSKHWCL6B1PROD with PROPOSALS