Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28055

1The requirement to apply RACT to existing

stationary sources of VOC emissions was carried

forth under the amended Act in section 172(c)(1).

2Under the pre-amended Act, EPA had the

authority under section 110(a)(2)(H) to issue a ‘‘SIP

Call’’ requiring a State to correct deficiencies in an

existing SIP. Section 110(a)(2)(H) was not modified

by the 1990 Amendments. In addition, the amended

Act contains new section 110(k)(5) which also

provides authority for a SIP Call.

3.2.4 Repeat the procedure in

Section 3.2.3 two times, i.e., until three

injections are made at each dilution

level. Calculate the average instrument

response for each triplicate injection at

each dilution level. No single injection

shall differ by more than ±2 percent

from the average instrument response

for that dilution.

3.2.5 For each level of dilution,

calculate the difference between the

average concentration output recorded

by the analyzer and the predicted

concentration calculated in Section

3.2.2. The average concentration output

from the analyzer shall be within ±2

percent of the predicted value.

3.2.6 Introduce the mid-level supply

gas directly into the analyzer, bypassing

the gas dilution system. Repeat the

procedure twice more, for a total of

three mid-level supply gas injections.

Calculate the average analyzer output

concentration for the mid-level supply

gas. The difference between the certified

concentration of the mid-level supply

gas and the average instrument response

shall be within ±2 percent.

3.3 If the gas dilution system meets

the criteria listed in Section 3.2, the gas

dilution system may be used throughout

that field test. If the gas dilution system

fails any of the criteria listed in Section

3.2, and the tester corrects the problem

with the gas dilution system, the

procedure in Section 3.2 must be

repeated in its entirety and all the

criteria in Section 3.2 must be met in

order for the gas dilution system to be

utilized in the test.

4. References

1. ‘‘EPA Traceability Protocol for

Assay and Certification of Gaseous

Calibration Standards,’’ EPA–600/R93/

224, Revised September 1993.

[FR Doc. 95–13152 Filed 5–26–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[CO9–3–5603; FRL–5201–9]

Approval and Promulgation of Air

Quality Implementation Plans;

Colorado; Regulation 7

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving revisions to

the Colorado Ozone State

Implementation Plan (SIP) submitted by

the Governor on September 27, 1989,

and August 30, 1990. The revisions

consisted of amendments to Regulation

No. 7, ‘‘Regulation To Control Emissions

of Volatile Organic Compounds.’’ In its

review of the September 27, 1989 State

submittal, EPA identified several areas

where the regulation still did not meet

EPA requirements. On August 30, 1990,

the State submitted additional revisions

to Regulation No. 7 to address these

deficiencies. This Federal Register

action applies to both of these

submittals. The amendments were made

to conform Regulation No. 7 to federal

requirements, and to improve the clarity

and enforceability of the regulation.

EPA’s approval will serve to make the

revisions federally enforceable and was

requested by the State of Colorado.

EFFECTIVE DATE: This action will be

effective on June 29, 1995.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection between 8 a.m. and 4

p.m., Monday through Friday at the

following office:

United States Environmental

Protection Agency, Region VIII, Air

Programs Branch, 999 18th Street, Suite

500, Denver, Colorado 80202–2466.

FOR FURTHER INFORMATION CONTACT: Tim

Russ, Air Programs Branch (8ART–AP),

United States Environmental Protection

Agency, Region VIII, 999 18th Street,

Suite 500, Denver, Colorado 80202–

2466, (303) 293–1814.

SUPPLEMENTARY INFORMATION: Section

110(a)(2)(H)(i) of the Clean Air Act

(CAA), as amended in 1990, provides

the State the opportunity to amend its

SIP from time to time as may be

necessary. The State is utilizing this

authority of the CAA to update and

revise existing regulations which were

promulgated pursuant to section 172 of

the pre-amendment Act and are a part

of the current SIP. In addition, these

submittals are in fulfillment of the

RACT requirement of amended section

172.

I. Background

On March 3, 1978, EPA designated

the Denver-Boulder metropolitan area as

nonattainment for the National Ambient

Air Quality Standards (NAAQS) for

ozone (43 FR 8976). This designation

was reaffirmed by EPA on November 6,

1991 (56 FR 56694) pursuant to section

107(d)(1) of the CAA, as amended in

1990. Furthermore, since the DenverBoulder area had not shown a violation

of the ozone standard during the threeyear period from January 1, 1987 to

December 31, 1989, the Denver-Boulder

area was classified as a ‘‘transitional’’

ozone nonattainment area under section

185A of the amended Act. In order to

meet the Reasonably Available Control

Technology (RACT) requirements of the

CAA, transitional areas must correct any

RACT deficiencies regarding

enforceability.

The current Colorado Ozone SIP was

approved by EPA in the Federal

Register on December 12, 1983 (48 FR

55284). The SIP contains Regulation No.

7 (Reg. 7), which applies RACT to

stationary sources of Volatile Organic

Compounds (VOC). Reg. 7 was adopted

to meet the requirements of section

172(b) (2) and (3) of the 1977 CAA

(concerning the application of RACT to

stationary sources 1.) However, the

approved Ozone SIP did not rely on the

emissions reduction credit that Reg. 7

would produce in order to demonstrate

attainment; rather, the SIP relied only

on mobile source controls in order to

demonstrate attainment.

During 1987 and 1988, EPA Region

VIII conducted a review of Reg. 7 for

consistency with the Control

Techniques Guidelines documents

(CTGs) and regulatory guidance, for

enforceability and for clarity. The CTGs,

which are guidance documents issued

by EPA, set forth measures that are

presumptively RACT for specific

categories of sources that emit VOCs. A

substantial number of deficiencies were

identified in Reg. 7. In 1987, EPA

published a proposed policy document

that included, among other things, an

interpretation of the RACT requirements

as they applied to VOC nonattainment

areas (52 FR 45044, November 24, 1987,

Post-87 Policy). On May 25, 1988, EPA

published a guidance document entitled

‘‘Issues Relating to VOC Regulation

Cutpoints, Deficiencies, and Deviations,

Clarification to Appendix D of the

November 24, 1987 Federal Register

Notice’’ (the ‘‘Blue Book’’). A review of

Reg. 7 against these documents

uncovered additional deficiencies in the

regulation.

On May 26, 1988, EPA notified the

Governor of Colorado that the Carbon

Monoxide (CO) SIPs for Colorado

Springs and Fort Collins were

inadequate to achieve the CO NAAQS.

In that letter, EPA also notified the

Governor that the Ozone SIP had

significant deficiencies in design and

implementation, and requested that

these deficiencies be remedied. EPA did

not make a formal call for a revised

Ozone SIP in the May 1988 letter,2 even

though the Denver-Boulder area was,
28056 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

and continues to be, designated

nonattainment for ozone. The reason for

this decision was that no violations of

the ozone NAAQS had been recorded in

the nonattainment area for the previous

three years. However, EPA indicated

that the deficiencies, if uncorrected,

could jeopardize the area’s ability to

obtain eventual redesignation as an

attainment area for ozone.

1. 1989 SIP Revision Submittal

In a letter dated September 27, 1989,

the Governor of Colorado submitted

revisions to Reg. 7 to partially address

EPA’s concerns with the Ozone SIP. A

detailed description of the specific

revisions to the regulation is contained

in the Docket for this Federal Register

document. Revisions were made to the

following sections of Reg. 7:

7.I Applicability

7.II General Provisions

7.III General Requirements for Storage and

Transfer of Volatile Organic Compounds

7.IV Storage of Highly Volatile Organic

Compounds

7.V Disposal of Volatile Organic

Compounds

7.VI Storage and Transfer of Petroleum

Liquid

7.VIII Petroleum Processing and Refining

7.IX Surface Coating Operations

7.X Use of Solvents for Degreasing and

Cleaning

7.XI Use of Cutback Asphalt

7.XII Control of VOC Emissions from Dry

Cleaning Facilities Using

Perchloroethylene As a Solvent

7.XIII Graphic Arts

7.XIV Pharmaceutical Synthesis

7.XV Control of Volatile Organic

Compound Leaks from Vapor Collection

Systems Located At Gasoline Terminals,

Bulk Plants, and Gasoline Dispensing

Facilities

Appendix A Criteria for Control of Vapors

from Gasoline Transfer to Storage Tanks

Appendix B Criteria for Control of Vapors

from Gasoline Transfer at Bulk Plants

(Vapor Balance System)

Appendix D Test Procedures for Annual

Pressure/Vacuum Testing of Gasoline

Transport Trucks

In addition, the following new

emission sources and appendices were

added to Reg. 7:

7.IX.A.7 Fugitive Emission Control

7.IX.N. Flat Wood Paneling Coating

7.IX.O. Manufacture of Pneumatic Rubber

Tires

7.XI.D. Coal Tar

Appendix E Emission Limit Conversion

Procedure

In a letter dated September 27, 1989,

the Governor of Colorado submitted

revisions to Reg. 7 to address EPA’s

concerns with how the State was

addressing RACT for major non-CTG

sources of VOC. A detailed description

of the specific revisions to the

regulation is contained in the Docket for

this Federal Register document. In

summary, Section 7.II.C. of Reg. 7

applies this new non-CTG RACT

requirement to sources not specifically

covered by the regulation as follows:

(a) Sources with actual emissions of

100 tons per year or more of VOCs must

apply RACT.

(b) Sources with potential emissions

of 100 tons per year or more of VOCs,

but with actual emissions of less than

100 tons per year, may avoid having to

apply RACT by obtaining a federally

enforceable permit to limit production

or hours of operation to keep actual

emissions below 100 tons per year.

(c) Sources with potential emissions

of 100 tons per year or more of VOCs,

but with actual emissions of less than 50

tons per year on a 12-month rolling

average, may avoid RACT and permit

requirements by: (1) Submitting a report

each year demonstrating that the 50 tons

per year threshold has not been

exceeded and (2) maintaining monthly

records of VOC usage and emissions to

enable the State to verify these reports.

EPA is approving section 7.II.C. of the

State’s rules for its strengthening effect

on the SIP.

2. 1990 SIP Revision Submittal

In general, the revised Reg. 7 ( as

submitted by the Governor on

September 27, 1989) met the CAA

requirements, which were interpreted in

the CTGs, the Blue Book, and the Post87 Policy. However, in its review, EPA

identified two remaining issues where

the regulation was not consistent with

EPA guidance: A. The compliance

schedule, and B. Clarification of the

Graphic Arts definition for potential to

emit. These remaining two issues were

addressed by the State in its August 30,

1990 submittal.

In a letter dated August 30, 1990, the

Governor of Colorado submitted

revisions to Reg. 7 to address EPA’s

remaining concerns with the September

27, 1989 Ozone SIP revision. A detailed

description of the additional specific

revisions to Reg. 7 is contained in the

Docket for this Federal Register

document. Revisions were made to the

following sections of Reg. 7:

7.I Applicability

7.XI Use of Cutback Asphalt

7.XIII Graphic Arts

A. Compliance Schedule: Reg. 7 did

not contain an explicit deadline for

compliance with the revised regulation.

In response to EPA comments, the State

adopted additional revisions (Section

7.I.B. and 7.I.C.) to Section 7.I.

(Applicability) of Reg. 7, requiring all

sources to come into compliance with

the revised Reg. 7 by October 30, 1991.

B. Graphic Arts definition: The

Graphic Arts definition of potential to

emit, contained in Section 7.XIII.A.2. of

Reg. 7, was somewhat unclear. The

definition referenced the EPA

requirement that potential to emit be

determined at maximum capacity before

control (per the Appendix D

Clarification document), but also

included a requirement that potential

emissions be based on historical records

of solvent and ink consumption (per the

previous regulatory guidance document,

Guidance to State and Local Agencies in

Preparing Regulations to Control

Volatile Organic Compounds from Ten

Stationary Source Categories,

September, 1979). As a result, the

definition could have been interpreted

to require potential to emit to be

calculated at both maximum and

historical operating rates, which in most

cases will be different. The Reg. 7

revisions, submitted by the Governor on

August 30, 1990, addressed this concern

by not including a reference to the

historical records.

C. Capture Efficiency: As a final issue,

on January 13, 1992, EPA notified the

State that, prior to proposing this action,

it was necessary to document the State’s

position with regard to capture

efficiency (CE) determination. The CE

provision adopted by the State in

Section IX.A.5.e of Reg. 7 does address

the requirement that testing for CE be

performed on a case-by-case basis, and

that this testing be consistent with EPA

guidance. In a letter dated February 5,

1992, from John Leary, Acting Director,

Colorado Air Pollution Control Division,

to Douglas Skie, Chief, Air Programs

Branch, EPA Region VIII, the State

committed to adopt and use all new CE

methods as they are developed and

promulgated by EPA’s rule-making

process. In that same letter, the State

indicated that until changes are

promulgated, the Air Pollution Control

Division will use the CE protocols that

were published by EPA on June 29,

1990 (55 FR 26814, codified at 40 CFR

52.741(a)(4)(iii) and Appendix B).

Due to additional information

received after the adoption of revisions

to Reg. 7 in September, 1989, the State

reconsidered its regulation of coal tar

under Section 7.XI. (Use of Cutback

Asphalt). In revisions submitted on

August 30, 1990, Section 7.XI.D.,

covering coal tar, was deleted.

Regulation of coal tar is not covered by

the CTG for cutback asphalt use; EPA

believes that it is not needed to meet the

RACT requirement of the CAA.

In this action, EPA is also approving

the State’s VOC definition as submitted

in the 1989 and 1990 revisions to Reg.

7. However, on February 3, 1992, EPA
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28057

published a revised definition of

volatile organic compounds (57 FR

3941). This definition was further

revised on October 5, 1994, (59 FR

50693) and became effective on

December 5, 1994. EPA’s definition

excludes a number of organic

compounds from the definition of VOC

on the basis that they are of negligible

reactivity and do not contribute to

tropospheric ozone formation. The

State’s definition excludes some, but not

all, of these compounds. Therefore, the

State’s definition of VOC provides for

the regulation of some compounds

which are no longer considered VOCs

by EPA. In light of EPA’s most recent

definition of VOC, EPA will not enforce

against sources for failure to control the

emission of compounds that are exempt

from the federal VOC definition. EPA

has informed the Region VIII States of

the revised definition of VOC and has

requested that future SIP revisions

reflect the most recent federal VOC

definition.

This action was previously published

as a Direct Final Rule on June 26, 1992

(57 FR 28614). This Direct Final Rule

was withdrawn on August 12, 1992 (57

FR 36004) as EPA Region VIII received

a letter, dated July 16, 1992, from

William Owens, Executive Director of

the Colorado Petroleum Association

(CPA), to Jeff Houk of EPA Region VIII,

expressing adverse comments. EPA

published a Proposed Rule on

November 16, 1994 (59 FR 59189)

proposing approval of these revisions to

Reg. 7. Comments regarding the

November 16, 1994, Proposed Rule were

received from Stanley Dempsey Jr. on

behalf of the Colorado Association of

Commerce and Industry (CACI). These

comments, in addition to those received

earlier, are hereby addressed in this

Final Rule as follows:

CPA Comment 1: In its first comment,

CPA states that ‘‘EPA was required by

the amended Clean Air Act to determine

by June 30, 1992, whether the

transitional area had attained the

NAAQS. EPA failed to issue this

determination by the required date. This

determination will re-establish the

purpose of the SIP and, therefore,

should be considered prior to any SIP

approval. At a minimum, the SIP

approval should be proposed to allow

the opportunity for comment based on

the required determination of current

attainment status.’’

Response to CPA Comment 1: As

indicated in the proposed rule for this

action (59 FR 59189, dated November

16, 1994), EPA had previously reviewed

the available ambient air quality data. In

a letter dated October 22, 1992, from

Jack McGraw, EPA Region VIII Acting

Regional Administrator, to Governor

Roy Romer, EPA advised the State that

the Agency had reviewed the ambient

air quality data which had been entered

by the State into the Aerometric

Information and Retrieval System

(AIRS) national database. EPA further

advised that these data indicated that

the Denver-Boulder metropolitan

transitional ozone nonattainment area

had not violated the ozone NAAQS

during the period beginning January 1,

1987, and ending December 31, 1991.

EPA’s October 22, 1992, letter was not

a determination that the Denver-Boulder

nonattainment area had met the CAA’s

section 107(d)(3)(E) criteria for

redesignation to attainment, but rather

served as an affirmation that no

violation of the ozone standard for this

area was found. EPA cannot make a

determination under section

107(d)(3)(E) until the State submits a

complete redesignation request and

maintenance plan. One criterion for

redesignation to attainment for

transitional ozone nonattainment areas,

is that to satisfy section 172(c)(1),

transitional areas must ensure that any

deficiencies regarding enforceability of

an existing RACT rule are corrected

(refer to 57 FR 13525 dated April 16,

1992).

CPA Comment 2: In its second

comment, CPA states ‘‘In addition, the

basis for the EPA’s determination of

deficiencies in Regulation No. 7 is based

on the ‘‘Post-87’’ policy which includes

the proposed policy regarding the

application of RACT in non-attainment

areas. CPA questions the application of

this policy to areas designated

transitional under the amended Clean

Air Act.’’

Response to CPA Comment 2: The

Denver-Boulder area, while classified as

transitional, continues to be a

designated ozone nonattainment area.

Therefore, the Post-87 policy retains its

validity for the Denver-Boulder area.

Although the Denver-Boulder

transitional ozone nonattainment area

was not subject to the RACT fix-up

requirement, section 182(a)(2)(A), of the

amended CAA, the RACT requirement

of section 172(c)(1) is applicable.

Pursuant to that provision, EPA has

determined that it is necessary for the

State to correct previously identified

significant deficiencies in design,

implementation and enforcement in the

provisions of Reg. 7.

In a letter dated May 26, 1988, from

James Scherer, Regional Administrator

for EPA Region VIII, to Governor Roy

Romer, EPA notified the State that the

Carbon Monoxide SIPs for Colorado

Springs and Fort Collins were

inadequate to achieve the CO NAAQS.

In that same letter, EPA also notified the

Governor that the Ozone SIP for the

Denver-Boulder metropolitan area had

significant deficiencies in design and

implementation and requested that

those deficiencies be remedied. These

specific deficiencies were subsequently

documented to the State in a letter,

dated June 17, 1988, from Irwin L.

Dickstein, Director of the Air and Toxics

Division for EPA Region VIII, to Thomas

M. Vernon Jr. M.D., the Executive

Director of the Colorado Department of

Health. The General Preamble to Title I

of the 1990 amended CAA (57 FR

13525, dated April 16, 1992) reaffirmed

EPA’s RACT policy. It provides that to

satisfy requirements in section 172(c)(1)

of the CAA (‘‘NONATTAINMENT PLAN

PROVISIONS IN GENERAL’’),

transitional ozone nonattainment areas

must ensure that any deficiencies

regarding enforceability of an existing

rule are corrected. The General

Preamble to Title I continues by stating

that States should be aware that in order

to be redesignated to attainment, such

transitional ozone nonattainment areas

need to correct any RACT deficiencies

regarding enforceability prior to

redesignation. For the reasons stated

above, EPA believes that the 1989 and

1990 revisions to Reg. 7 that have been

adopted by the State, are necessary in

order to ensure that the RACT

requirements of the CAA are met.

CPA Comment 3: In its third

comment, CPA states ‘‘The provisions

for application of RACT under the

revisions to Regulation No. 7 will have

a direct impact on CPA’s membership.

Such revisions may not be needed to

demonstrate maintenance of the ozone

NAAQS and may result in unreasonable

requirements in light of current

regulatory developments.’’

Response to CPA Comment 3: EPA is

convinced that the revisions to Reg. 7

strengthen the Ozone SIP and are

necessary for the Denver-Boulder

metropolitan area to continue to achieve

the ozone NAAQS as the area continues

to experience the significant growth

which has occurred in the past few

years. EPA believes the benefits from

the 1989 and 1990 revisions to Reg. 7

are likely contributing to the

improvement in ozone levels that have

been observed when compared to prior

years. However, the ambient air quality

data in AIRS indicates there were still

ozone NAAQS exceedences in 1989

(0.130 ppm) and 1993 (0.128 ppm) with

near-exceedence values in 1990 (0.120

ppm) and 1992 (0.123 ppm). The above

values do appear to be improving,

however, when compared to the 28

ozone NAAQS exceedences that were

observed from 1980 through 1988.
28058 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

CACI Comment 1: In its first

comment, CACI states ‘‘The DenverBoulder area has not exceeded the

ozone National Ambient Air Quality

Standards since 1987. The current SIP

has, therefore, appropriately allowed the

area to attain the NAAQS. Therefore,

there is no need for more stringent

control of stationary source emissions of

volatile organic compounds (VOC).’’

Response to CACI Comment 1: CACI’s

comment is not correct. Based on data

archived in the AIRS national database,

the Denver-Boulder ozone

nonattainment area has exceeded the

ozone NAAQS as follows: 1988 (twice,

0.125 ppm and 0.136 ppm), 1989 (0.130

ppm), and 1993 (0.128 ppm). Although

exceedences of the ozone standard have

been recorded, EPA believes that the

1989 and 1990 revisions to Reg. 7 likely

contributed to the decreased frequency

of exceedences after 1990 and the fact

that the Denver-Boulder nonattainment

area has not violated the ozone

standard.

CACI Comment 2: In its second

comment, CACI provides an ozone

emission inventory, whose source is not

referenced, of ‘‘Mobile sources, Minor

stationary sources, Consumer products,

and Major point sources.’’ CACI then

states ‘‘Major stationary sources

contribute only ten percent to an

approximate daily inventory of 200 tons

per day. Attachment 4 shows the Denver

VOC emissions contributions. We

question why Reg 7 is a SIP requirement

for stationary sources, whose daily

contribution is minor compared to

mobile sources, while mobile sources

have little or no control.’’

Response to CACI Comment 2: Under

both the pre-amended Act and the Act

as amended in 1990, certain stationary

sources are required to implement

RACT. The purpose of the 1989 and

1990 revisions to Reg. 7 was that EPA

required the State to correct identified

concerns within Reg. 7, which was

already part of Colorado’s SIP, that

involved significant design,

implementation, and enforceability

problems. With regard to the CACI

provided emissions inventory, EPA

cannot validate this emissions inventory

as, to date, no current ozone emissions

inventory has been submitted by the

State. Correspondence in EPA’s files

indicates the State prepared a

preliminary ozone emission inventory

in 1987–1988, which was submitted to

EPA in 1989. This inventory was not

finalized. CACI’s comment implies that

mobile sources have little or no control

of emissions. EPA disagrees as Colorado

has had an inspection and maintenance

program, for on-road vehicles, since

1983. This program was replaced with

an enhanced inspection and

maintenance program which began

implementation on January 1, 1995.

Also, mobile source emission reductions

have been realized with the

implementation of Federal Motor

Vehicle Control Programs (FMVCP).

CACI Comment 3: CACI’s third

comment states ‘‘The current Colorado

Ozone SIP was approved by EPA in

1983 (48 FR 55284). The SIP contains a

1981 version of Reg 7 which applies

RACT to stationary sources of VOC. The

approved Ozone SIP did not rely on the

emissions reduction credit that Reg 7

would produce in order to demonstrate

attainment; rather, the SIP relied only

on mobile source controls in order to

demonstrate attainment. There is no

ozone attainment demonstration which

requires any Reg 7 emission reductions

from stationary sources, based on our

information and belief. Therefore, there

is no demonstrated need for a more

stringent revision to the Ozone SIP.’’

Response to CACI Comment 3: The

reader is referred to EPA’s response to

CPA Comment 2 above as it is directly

applicable to CACI’s Comment 3. It

should be noted that the DenverBoulder ozone nonattainment area

exceeded the ozone NAAQS 25 times

during the years 1981 through 1988.

This fact was also considered when EPA

sent the Governor the May 16, 1988,

letter referenced above. Therefore,

although the 1981 attainment

demonstration relied solely on the

mobile source controls, the DenverBoulder area failed to attain the ozone

standard in accordance with that

demonstration. In addition, the DenverBoulder area retained its nonattainment

designation under the amended CAA

and EPA believes the continued

applicability of the RACT requirement

makes it necessary for the State to

correct existing deficiencies in its RACT

rules.

CACI Comment 4: CACI’s fourth

comment states ‘‘The current Ozone SIP

contains a definition of VOC that was

based on a threshold vapor pressure of

0.1 mm Hg vapor cutoff. EPA modified

this definition of VOC (40 CFR

51.100(s)) in 1988. The current Ozone

SIP approval of Reg 7 was written with

the 0.1 mm Hg vapor cutoff in mind as

de minimis threshold. In 1991 the

AQCC modified the VOC definition in

Colorado Regulations, which

inadvertently removed the Reg 7 de

minimis threshold. A comparison of

other state’s de minimis voc thresholds

is shown in Attachment 1. A

comparison of other state’s de minimis

size cutoffs and vapor pressure cutoffs

is shown in Attachment 2. An example

of the extreme cost and minimal air

quality benefit of Reg 7 without

correcting the inadvertent error of

eliminating the de minimis cutoffs is

shown in Attachment 3. Therefore,

revising the Ozone SIP by adopting the

1989 and 1990 Reg 7 submittal is

without legal basis and is more stringent

than EPA requires or the AQCC

intended.’’

Response to CACI Comment 4: As an

initial matter, EPA cannot disapprove a

SIP revision merely because it may be

more stringent than required by the

CAA. See CAA section 116. Similarly,

EPA cannot unilaterally determine that

a rule will have a more stringent effect

than the State intended and rely on such

a determination for disapproval. With

respect to the comment that there is no

legal basis, EPA notes that EPA’s

approved definition of a Volatile

Organic Compound (VOC) is found in

40 CFR Part 51, Subpart F—Procedural

Requirements, at 51.100 Definitions, (s)

Volatile organic compounds (VOC). In

51.100(s), a VOC is defined as ‘‘. . . any

compound of carbon, excluding . . .

which participates in atmospheric

photochemical reactions.’’ As stated in

40 CFR 51.100(s), a VOC is defined

based upon atmospheric photochemical

reactivity. There is no provision for a

VOC to be defined, or exempted, based

upon vapor pressure. This vapor cutoff

provision was rescinded by EPA in

1988, as such a definition for VOCs

would exempt compounds of low

volatility, which, under certain

processes, could volatilize and,

therefore, participate in atmospheric

photochemical reactions (refer to EPA’s

‘‘ISSUES RELATING TO VOC

REGULATION CUTPOINTS,

DEFICIENCIES, AND DEVIATIONS,

Clarification to Appendix D of [the]

November 24, 1987 Federal Register’’,

dated May 25, 1988 and revised

November 11, 1990. This document is

more commonly referred to as the ‘‘Blue

Book’’). The only acceptable method to

exempt a carbon compound from being

classified as a VOC is that it must be

determined that the compound has

negligible photochemical reactivity

(refer to 40 CFR 51.100(s)(1), (2), (3),

and (4)).

As stated above and in the proposed

rule (59 FR 59189) for this action, EPA

is approving the State’s VOC definition

as submitted in the 1989 and 1990

revisions to Reg. 7. However, on

February 3, 1992, EPA published a

revised definition of volatile organic

compounds (57 FR 3941) with a further

revision on October 5, 1994 (59 FR

50693, effective December 5, 1994). The

definition excludes a number of organic

compounds from the definition of VOC

on the basis that they are of negligible
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28059

reactivity and do not contribute to

tropospheric ozone formation. The

State’s definition excludes some, but not

all, of these compounds. Therefore, the

State’s definition of VOC provides for

the regulation of some compounds

which are no longer considered VOCs

by EPA. In light of EPA’s most recent

definition of VOC, EPA will not enforce

against sources for failure to control the

emission of compounds that are exempt

from the federal VOC definition.

CACI Comment 5: CACI’s fifth

comment states ‘‘The 1989 Reg 7

rulemaking which took place over five

years ago did not anticipate the lack of

de minimis thresholds for a federally

enforceable condition. Upon

information and belief, since 1988 there

has been no ozone attainment

demonstration to examine the impact of

this revised Reg 7 on our area, i.e., do

not know the need for or the impact of

Reg 7. However, now that the program

is largely self-administering, if Reg 7

becomes a federally enforceable

condition, CACI believes many sources

in the Denver-Boulder area will be out

of compliance with their Title V

permits. Therefore, without knowing the

impacts of revised Reg 7, we are putting

Denver-Boulder industry at risk of

enforcement action. To prevent this

result, we propose the submittal be

delayed until the AQCC can address this

issue through rulemaking.’’

Response to CACI Comment 5: EPA

does not understand CACI’s comment

that the 1989 rulemaking did not

anticipate the lack of de minimis

thresholds. EPA believes that the 1989

and 1990 revisions to Reg. 7 contain ‘‘de

minimis thresholds’’ in that exemptions

and/or applicability thresholds do

appear in Sections II., III., IV., VI., VII.,

VIII., IX., X., XI., XII., XIII., XIV., and

XV. of Reg. 7. These exemptions and

applicability thresholds were developed

by the State and determined appropriate

in consideration of the RACT

requirement of the CAA and EPA policy

and guidance. With respect to

enforcement, EPA notes the 1989 and

1990 revisions to Reg. 7 were legally

adopted by the State. Therefore, as

stated in Section I. ‘‘APPLICABILITY,

B., 2. Existing Sources, c.’’ of the revised

Reg. 7, all applicable existing sources

were required to be in compliance with

Reg. 7 on or after October 30, 1991.

Additionally, Section I.

‘‘APPLICABILITY, B., 1. New Sources’’

provides that ‘‘New sources, defined as

any sources which * * * commence

operation on or after October 30, 1989,

must comply with the provisions of this

regulation upon commencement of

operation.’’ Based on the above, the

1989 and 1990 revisions have been

State-enforceable since November 1,

1991, for existing sources, and

November 1, 1989, for new sources.

Therefore, the impacts from the

enforcement of the 1989 and 1990

revisions to Reg. 7 have already been

realized by applicable sources in the

Denver-Boulder area.

It is unclear to EPA the intent of

CACI’s statement that sources would be

out of compliance with their Title V

permits when EPA fully approves the

1989 and 1990 revisions to Reg. 7. The

Title V permits will not include any

new VOC control requirements, but they

will include all federally enforceable

requirements and State enforceable

requirements. As stated above,

compliance with Reg. 7 should have

already occurred as existing sources and

new sources were required to comply

with the applicable provisions of Reg. 7

since November 1, 1991, and November

1, 1989, respectively. Moreover, to the

extent that these new requirements are

not included in a Title V permit that has

been issued prior to the effective date of

this final action, the approval of these

requirements into the SIP will not in

and of itself render such a source out of

compliance with its Title V permit.

However, consistent with 40 CFR

70.7(f)(1)(i), a source with three or more

years remaining on the term of its

permit would need to reopen the permit

to incorporate these requirements, while

a Title V source with less than three

years remaining on the permit could

incorporate them at renewal. Finally,

EPA does note, however, that sources

which are subsequently discovered,

during the process of applying for a

Title V permit, that are not complying

with the applicable provisions of Reg. 7,

may receive an enforcement action by

either the State or EPA depending upon

the situation.

Also, approval by EPA of the 1989

and 1990 revisions to Reg. 7

additionally make these revisions

federally enforceable and officially

revises and updates the State’s SIP.

CACI Comment 6: In its sixth

comment, CACI states ‘‘Finally, EPA’s

approval of Reg 7 without de minimis

thresholds does not meet the spirit of

President Clinton’s Common Sense

Initiative, and it is inconsistent with the

Economic Incentive Program (EIP) Rule.

CACI urges the AQCC and EPA to

review Reg 7 to determine proper de

minimis threshold provisions prior to

adopting Reg 7 into the SIP.’’

Response to CACI Comment 6: As

stated above in EPA’s response to

CACI’s Comment 5, the 1989 and 1990

revisions to Reg. 7 contain ‘‘de minimis

thresholds’’ in that exemptions and/or

applicability thresholds appear in

Sections II., III., IV., VI., VII., VIII., IX.,

X., XI., XII., XIII., XIV., and XV. of Reg.

7. These exemptions and applicability

thresholds were developed by the State

and determined appropriate in

consideration of the RACT requirement

of the CAA and EPA policy and

guidance. EPA also participated in the

development and review of these

revisions to Reg. 7 and has determined

the 1989 and 1990 Reg. 7 revisions to

the SIP to be fully federally approvable.

EPA disagrees with the CACI

statement that approval of the 1989 and

1990 revisions to Reg. 7 is inconsistent

with the EIP rules. The 1989 and 1990

Reg. 7 revisions were required by EPA

to address design, implementation, and

enforceability problems with Reg. 7. The

EIP rules, promulgated on April 7, 1994

(59 FR 16710), and codified at 40 CFR

Part 51, ‘‘Subpart U-Economic Incentive

Programs’’, do not determine source

specific or category specific RACT

requirements. Instead, the EIP rules set

forth an alternative program, in this

particular reference, for implementing

new and/or previously existing RACT

requirements through emissions trading

(reference 40 CFR 51.493). EIPs were

required as a SIP revision for certain

ozone and carbon monoxide

nonattainment areas as indicated in

sections 182(g)(3), 182(g)(5), 187(d)(3),

and 187(g) of the CAA. The DenverBoulder transitional ozone

nonattainment area was not required to

submit an EIP. EPA notes, however; as

provided in 40 CFR 51.490(b), the

Denver-Boulder area may elect to

submit a discretionary EIP revision to

the Colorado SIP.

CACI Comment 7: In its seventh

comment CACI states ‘‘The DenverBoulder area, as indicated above, has

had no exceedences of the ozone

standard since 1987. The area is

designated transitional and it is subject

to redesignation as attainment. In the

‘Background’ statements to the proposed

rule (59 FR 59191) EPA states: ‘For a

maintenance plan to be approved and

the Denver-Boulder metropolitan area to

be redesignated as attainment pursuant

to section 107(d)(3)(E), the State, may

have to develop specific RACT

regulations for major non-CTG sources.

Information available to EPA suggests

that there has been growth in emissions

from some non-CTG sources in the area;

RACT regulations for these sources may

be necessary to ensure maintenance of

the NAAQS for the initial 10-year

redesignation attainment period, as is

required by section 175A of the ACT.’

CACI asks that EPA not act on the

Governor’s 1989 and 1990 proposal

until after a request for redesignation is

submitted so that [the] current Reg 7 can
28060 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

be reviewed and modified as part of the

maintenance plan.’’

Response to CACI Comment 7: The

reader is referred to EPA’s responses to

CACI’s Comment 1 and CPA’s Comment

2. In addition, EPA notes that it does not

have the discretion to unilaterally

withhold action on the submittals of the

1989 and 1990 Reg. 7 revisions until the

State submits its redesignation request

and maintenance plan. EPA will work

with the State in developing its

redesignation request and maintenance

plan, if so requested, to determine if any

modifications to Reg. 7 are legally

supported.

Final Action

EPA is approving Colorado’s Ozone

SIP revisions, submitted by the

Governor on September 27, 1989, and

August 30, 1990. These revisions consist

of amendments to Reg. 7.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any State

Implementation Plan. Each request for

revision to any State Implementation

Plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under section 110 and

Subchapter I, Part D of the CAA do not

create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the federal SIP-approval does

not impose any new requirements, I

certify that it does not have significant

impact on any small entities affected.

Moreover, due to the nature of the

federal-state relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

federal inquiry into the economic

reasonableness of state action. The CAA

forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C.

7410(a)(2).

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993,

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. The Office of

Management and Budget has exempted

this regulatory action from Executive

Order 12866 review.

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by July 31, 1995. Filing a petition

for reconsideration by the Administrator

of this final rule does not affect the

finality of this rule for the purposes of

judicial review nor does it extend the

time within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

Approval of this specific revision to

the SIP does not indicate EPA approval

of the SIP in its entirety.

Executive Order 12866

The Office of Management and Budget

has exempted this rule from the

requirements of Section 6 of Executive

Order 12866.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

Note: Incorporation by reference of the

State Implementation Plan for the State of

Colorado was approved by the Director of the

Federal Register on July 1, 1980.

Authority: 42 U.S.C. 7401–7671q.

Dated: April 19, 1995.

William P. Yellowtail,

Regional Administrator.

40 CFR part 52, subpart G, is amended

as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart G—Colorado

2. Section 52.320 is amended by

adding paragraph (c)(70) to read as

follows:

§ 52.320 Identification of plan.

* * * * *

(c) * * *

(70) Revisions to the Colorado State

Implementation Plan were submitted by

the Governor on September 27, 1989,

and August 30, 1990. The revisions

consist of amendments to the Ozone

provisions in Regulation No. 7,

‘‘Regulation To Control Emissions of

Volatile Organic Compounds.’’

(i) Incorporation by reference.

(A) Revisions to Regulation No. 7,

Sections 7.I (Applicability), 7.II (General

Provisions), 7.III (General Requirements

for Storage and Transfer of Volatile

Organic Compounds), 7.IV (Storage of

Highly Volatile Organic Compounds),

7.V (Disposal of Volatile Organic

Compounds), 7.VI (Storage and Transfer

of Petroleum Liquid), 7.VIII (Petroleum

Processing and Refining), 7.IX (Surface

Coating Operations), 7.X (Use of

Solvents for Degreasing and Cleaning),

7.XI (Use of Cutback Asphalt), 7.XII

(Control of VOC Emissions from Dry

Cleaning Facilities Using

Perchloroethylene as a Solvent), 7.XIII

(Graphic Arts), 7.XIV (Pharmaceutical

Synthesis), 7.XV (Control of Volatile

Organic Compound Leaks from Vapor

Collection Systems Located at Gasoline

Terminals, Bulk Plants, and Gasoline

Dispensing Facilities), and Appendices

A (Criteria for Control of Vapors from

Gasoline Transfer to Storage Tanks), B

(Criteria for Control of Vapors from

Gasoline Transfer at Bulk Plants-Vapor

Balance System), and D (Test

Procedures for Annual Pressure/

Vacuum Testing of Gasoline Transport

Trucks). The following new emission

sources and appendices were added to

Regulation No. 7: 7.IX.A.7 (Fugitive

Emission Control), 7.IX.N. (Flat Wood

Paneling Coating), 7.IX.O. (Manufacture

of Pneumatic Rubber Tires), and

Appendix E (Emission Limit Conversion

Procedure). These revisions became

effective on October 30, 1989, and

August 30, 1990.

(ii) Additional material.

(A) February 5, 1992, letter from John

Leary, Acting Director, Colorado Air

Pollution Control Division, to Douglas

Skie, EPA. This letter contained the

State’s commitment to conduct capture

efficiency testing using the most recent

EPA capture efficiency protocols, and

the commitment to adopt federal

capture efficiency test methods after

they are officially promulgated by EPA.

[FR Doc. 95–13118 Filed 5–26–95; 8:45 am]

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