ENVIRONMENTAL PROTECTION AGENCY
 

40 CFR Part 52
 

(EPA-R08-0AR-2009-0790); FRL-


Approval and Promulgation of Air Quality Implementation Plans; Colorado;
 

Revisions to Regulation Number 1
 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Direct Final Rule 

SUMMARY: EPA is taking direct tinal action approving State Implementation Plan revisions 

submitted by the State of Colorado on August 3, 2007 to Colorado's Regulation Nun1ber 1 

(revisions to the performance testing requirements for air curtain destructors). Colorado adopted 

these rule revisions on October 2, 2006. All other actions submitted by the State of Colorado 

concurrent with Colorado's Regulation Number 1 revision request will be acted on at a later date. 

This action is being taken under section 110 of the CI~an Air Act. 

DATES: Comments luust be received on or before [insert date 30 days after publication in the 

Federal Register]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-0AR-2009­

0790, by one of the following methods: 

•	 www.regulations.gov. Follow the on-line instructions for submitting comments. 

•	 E-mail: videtich.callie(tv,epa.gov and leone.kevin((l1epa.goY 

•	 Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER 

INFORMATION CONTACT if you are faxing con1n1ents). 
•	 Mail: Callie A. Videtich, Director, Air Program, Environmental Protection Agency 

(EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202­

1129. 

•	 Hand Delivery: Callie A. Videtich. Director, Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, DenveL Colorado 

80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 

4:30 p.m., excluding Federal holidays. Special arrangements should be made for 

deliveries of boxed infonnation. 

Instructions: Direct your comments to Docket ID No. EPA-R08-0AR-2009-0790. 

EPA's policy is that all comments received will be included in the public docket without change 

and may be made available online at Vv"\\tw.regulations.gov, including any personal infonnation 

provided, unless the comment includes infonnation claimed to be Confidential Business 

Infonnation (CBI) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CHI or otherwise protected through Vvww.regulations.gov or 

e~mail. The wvvw.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 

WWVv'.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 el'ectronic 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 

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characters, any form of encryption, and be free of ~ny 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 1. 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, 8:00 a.m. to 4:00 p.lTI., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Progranl, MaiIcode 8PAR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 

80202-1129, (303) 312-6227, or leone.kevin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

A. What Should I Consider as I Prepare My Comments for EPA? 

II.	 What is being addressed in this document? 

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III. What are the changes that EPA is proposing to approve? 

IV. Final Action 

V. Statutory and Executive 9rder Reviews 

Definitions 

For the purpose of this document~ we are giving meaning to certain words or initials as follows: 

(i) The word Act or initials CAA mean or refer to the Clean Air Act, unless the conte~<t indicates 

otherwise. 

(ii) The words EPA~ we~ us or our mean or refer to the United States Enviromnental Protection 

Agency. 

(iii) The initials SIP mean Qr refer to State Implementation Plan. 

(iv) The words State or Colorado nlean 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 eBI Do not submit this information to EPA through 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 clailned as CBI. In addition to one conlplete version of the comment that 

includes infornlation claimed as CBI, a copy of the comment that does not contain the 

information claimed as CHI lnust 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. 

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2. Tips/or Preparing Your Comments. When submitting comments, remember to: 

a.	 ldentify 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 inforn1ation 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 identitied. 

II. What Is Being Addressed In This Document? 

EPA is approving a revision to the Colorado State Implementation Plan (SIP). On 

August 3, 2007, the State of Colorado submitted a revision to its SIP, regarding the applicability, 

provisions for incinerator performance testing requirements. This revision addressed Regulation 

Number 1 of the Colorado Air Quality Control Commission (AQCC) Regulations, entitled 

"'Emission Control for Particulate Matter, Smoke, Carbon Monoxide, and SUlfl.lr Oxides." Colo. 

Code Reg. § 1001-3, and provides an exemption for air curtain destructors. 

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III. What are the changes that EPA is proposing to approve'! 

Prior to Colorado~s revision~ Regulation Number 1 Section IILB provided that all 

incinerators~ with the exception of bion1edical waste incinerators~ meet certain particulate matter 

grain loading standards. To ensure compliance with these standards~ the regulation provides the 

Colorado Air Pollution Control Division with the ability to require performance tests. in 

accordance with 40 CFR part 60. appendix A. The revision to Colorado's SIP and regulations 

adds an additional exemption to Section IILB for air curtain destructors that are subject to 40 

CFR part 60. 

Under the definition set forth in Colorado's Common Provisions Regulation. 5 Colo. 

Code. Regs. § 1001-2. air curtain destructors are considered incinerators, if they are subject to 

New Source Performance Standards (NSPS) for incinerators in 40 CFR part 60. However. at the 

time Section III.B of Regulation 1 was enacted, there were no federal NSPS requirements 

governing air curtain destructors. Air curtain destructors were not considered incinerators and 

were not subject to 40 CFR part 60. On December 1~ 2000, EPA promulgated NSPS for 

Commercial and Industrial Waste Incineration Units at 40 CFR part 60, subpart CCCC. On 

December 16~ 2005, EPA promulgated NSPS for Other Solid Waste Incineration Units at 40 

CFR part 60. subpart EEEE. Both standards apply to air curtain destructors that meet limited 

applicability criteria and establish opacity standards and appropriate performance testing 

requirements for those units. 

Prior to the revision, Regulation Number 1. Section IILB required that air curtain 

destructors subject to incinerator requirements under 40 CFR part 60 meet state grain loading 

standards and performance testing requirements, as specified in 40CFR part 60, appendix A, to 

demonstrate compliance with these standards. It is not feasible~ however, to conduct such 

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performance tests on air cu~ain destructors due to their lack of a distinct stack. Colorado has 

revised its regulations to exempt air curtain destructors fronl these requirements in order to 

ensure that air curtain destnlctors are subject to appropriate and reasonable perfonnance test 

requirements. Accordingly, Regulation Nunlber 1, Section IILB has been revised to clarify that 

air curtain destructors subject to 40 CFR part 60 are not subject to Section III.B. This revision 

will result in the requirement for air curtain destru~tors subject to NSPS to meet the standards 

and conduct perfonnance testing as provided"in 40 eFR part 60, subpart CCCC or "40 CFR part 

60, subpart EEEE. 

IV. Final Action 

EPA is approving this revision to Colorado's SIP which would revise Regulation Number 

I, Section lII.B. This revision would exclude air curtain destructors that are subject to a NSPS 

from complying with infeasible performance testing requirements in Regulation Number 1, 

Section III.B. This revision will maintain consistency between state and federal law. 

EPA considers this change to be consistent with the provisions in CAA § 110(1). CAA 

Section 110(1) states: ""Each revision to an implementation plan submitted by a State under this 

chapter shall be adopted by such State after reasonable notice and public hearing. The 

Administrator shall not approve a revision of a plan if the revision would interfere with any 

applicable requirement concerning attainment and reasonable further progress (as defined in 

section 7501 of this title), or any other applicable requirement of this chapter:' Thus, under 

Section 110(1), this SIP revision must not interfere with attainment or reasonable further progress 

or any other applicable requiren1ent of the Act. When Section IILBwas approved into 

Colorado's SIP, air curtain destructors were not subject to any 40 CFR part 60 requirements. 

Before EPA's promulgation of 40 CFR part' 60, subpart ecee and 40 eFR part, 60 subpart 

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EEEE, air curtain destructors would not have been considered "incinerators" under the definition 

in the Common Provisions Regulation, 5 Colo. Code Regs. § 1001-2, and no air curtain 

destructors would have been regulated under Section IILB. Therefore, this revision exempting 

air curtain destructors from the requ~reI]1ents of Section III.B does not substantively change the 

requirements of Colorado's SIP. Because EPA's approval of this SIP revision \vould not 

interfere with reasonable further progress or any other applicable requirement of CAA, it is 

consistent with CAA § 110(1). 

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 conlments are filed. This 

rule will be effective [Insert date 60 days after publication in the Federal Register] without 

further notice unless the Agency receives adverse comments by [Insert date 30 days after 

publication in the Federal Register.] If the EPA receives adverse conlments, EPA will publish a 

timely withdrawal in the Federal Register infonning the public that the 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 

cOlnmenting 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. 

v. Statutory and Executive Order Reviews 

Under the Clean Air Act, the Adnlinistrator is required to approve a SIP sublnission that 

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complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 741 O(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 direct final action 

merely approves state law as nleeting Federal requirements and does not inlpose additional 

requirements beyond those imposed by state law. For that reason, this direct final action: 

•	 is not a "significant regulatory action" subject to revie'w 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 econOlnic 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 (Public Law 

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 1.9885, April 23, 1997); 

•	 is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, 

May 22,2001): 

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• 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 hUlnan 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 ilnpose 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, Incorporation by reference. 

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

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IDENTIFICATION OF DOCUMENT: Approval and Promulgation of Air Quality 

Implementation Plans; Colorado; Revisions to Regulation Number 1 (EPA-R08-0AR-2009­

0790) Page 11 of 11 

Dated:	 Carol Rushin 

Acting Regional Adlninistrator 

Region 8 

I 1