Federal Register / Vol. 77, No. 131 / Monday, July 9, 2012 / Proposed Rules 40315 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2011–1025, FRL–9696–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Colorado; Revisions to New Source 

Review Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing approval of 

revisions adopted by the State of 

Colorado on December 15, 2005, to 

Regulation No. 3 (Stationary Source 

Permitting and Air Pollutant Emission 

Notice Requirements.) Colorado 

submitted the request for approval of 

these rule revisions into the State 

Implementation Plan (SIP) on August 

21, 2006. The revisions remove repealed 

provisions in Regulation No. 3 that 

pertain to the issuance of Colorado air 

quality permits; the revisions also 

implement other minor administrative 

changes and renumbering. The intended 

effect of this action is to propose to 

approve the rules that are consistent 

with the Clean Air Act (CAA.) This 

action is being taken under section 110 

of the CAA. 

DATES: Comments must be received on 

or before August 8, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2011–1025, by one of the 

following methods: 

• www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• Email: leone.kevin@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Carl Daly, Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Carl Daly, Director, 

Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. Such deliveries 

are only accepted Monday through 

Friday, 8:00 a.m. to 4:30 p.m., excluding 

Federal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2011– 

1025. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA, without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to Section I. 

General Information of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publiclyavailable 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.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Leone, Air Program, Mailcode 

8P–AR, 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. Background for This Action 

II. What are the changes EPA is proposing to 

approve? 

III. What action is EPA taking today? 

IV. Statutory and Executive Order Reviews 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

(iv) The words State or Colorado 

mean the State of Colorado, unless the 

context indicates otherwise. 

I. Background for This Action 

On December 31, 2002, EPA 

published revisions to the federal 

Prevention of Significant Deterioration 

(PSD) and non-attainment New Source 

Review (NSR) regulations. These 

revisions are commonly referred to as 

‘‘NSR Reform’’ and became effective 

nationally in areas not covered by a SIP 

on March 3, 2003. The NSR Reform 

revisions included provisions for 

baseline emissions determinations, 

actual-to-future actual methodology, 

plantwide applicability limits (PALs), 

clean units, and pollution control 

projects (PCPs). On June 24, 2005, the 

United States Court of Appeals for the 

District of Columbia Circuit issued its 

decision and opinion in the case of New 

York v. U.S. Environmental Protection 

Agency, 413 F.3d 3 (D.C. Cir. 2005). The 

court concluded that, regarding the 

clean unit exemption from NSR, the 

plain language of the Clean Air Act 

indicated that Congress intended to 

apply NSR to changes that increase 

actual emissions instead of potential or 

allowable emissions. As a result, the 

court vacated the clean units portions of 

the NSR Reform rule. The court also 

concluded that EPA lacks the authority 

to create PCP exemptions from NSR and 

vacated the PCP portions of both the 

1992 WEPCO Rule and the 2002 NSR 

Reform rule. By vacating those portions 

of the NSR Reform rule, the court 

terminated those exemptions to new 


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40316 Federal Register / Vol. 77, No. 131 / Monday, July 9, 2012 / Proposed Rules 

source review. The court also remanded 

back to EPA the ‘‘reasonable possibility’’ 

standard for when a source must keep 

certain project related records. 

The State of Colorado submitted a 

formal SIP revision on July 11, 2005 

followed by a supplemental submittal 

on October 25, 2005. These submittals 

requested approval for regulations to 

implement the NSR Reform provisions 

that were not vacated or remanded by 

the June 24, 2005 court decision; the 

submittals also included renumbering, 

reorganizing, and revised definitions. 

On April 10, 2012 (77 FR 21453), EPA 

published a notice of final rulemaking 

for the July 11, 2005 and October 25, 

2005 submittals. In that action, EPA 

approved renumbering, reorganizing 

and portions of Colorado’s revisions to 

the Stationary Source Permitting and 

Air Pollutant Emission Notice 

Requirements (Regulation No. 3) that 

incorporate EPA’s December 31, 2002 

NSR Reform; however, EPA considered 

as withdrawn the portions of the 

submittals that implemented the clean 

unit and PCP exemptions. EPA also 

approved a version of the recordkeeping 

requirements that removed the 

‘‘reasonable possibility’’ standard. 

Colorado adopted revisions on 

December 15, 2005, and submitted these 

revisions, which we are addressing in 

this action, on August 21, 2006. These 

revisions reflect the removal of 

references to clean units, pollution 

control projects, and the ‘‘reasonable 

possibility’’ standard from the State’s 

rules. As a result of the deletion of these 

references, many provisions were 

renumbered and references to them 

updated. The submittal also included 

other minor administrative changes to 

Regulation No. 3. EPA is taking 

proposed action on these revisions in 

this notice. 

II. What are the changes EPA is 

proposing to approve? 

EPA is proposing to approve all 

revisions to Regulation No. 3 as 

submitted on August 21, 2006 which 

were not acted on in 77 FR 21453, April 

10, 2012, relating to the removal of 

provisions that were vacated or 

remanded in the June 24, 2005 court 

decision, as well as renumbering and 

minor administrative changes. 

In view of the D.C. Circuit court’s 

June 24, 2005, decision, EPA concludes 

that there is no basis to retain the clean 

unit and PCP provisions in Regulation 

No. 3. The NSR Reform rule no longer 

allows operators to use those provisions 

to determine applicability of NSR to the 

source and Colorado law and the 

Colorado State Implementation Plan 

should be conformed to Federal law in 

this instance. 

As part of the NSR Reform rule, EPA 

allowed sources to calculate their actual 

and projected actual emissions to 

determine whether a modification will 

trigger NSR. If a source concludes that 

there is no ‘‘reasonable possibility’’ that 

emissions from a project will trigger 

NSR, the source is not required to keep 

records substantiating that calculation. 

However, the data and records would 

necessarily be generated by the owner or 

operator to calculate its emissions. 

Colorado did not follow the NSR 

Reform rule in this regard. In Section 

I.B.5., Colorado imposes a requirement 

that owners or operators using the 

actual-to-projected-actual applicability 

test for a project that requires a minor 

source permit or modification [pursuant 

to Part A, Section I.B.26.; Part C, Section 

I.A.3.; or Part C, Section X.; or any 

minor source permit under any 

provisions of Part B], submit an 

otherwise required permit application 

and include documentation adequate to 

substantiate calculations made for the 

test. 

The D.C. Circuit court also addressed 

the recordkeeping and reporting 

requirements related to the ‘‘reasonable 

possibility’’ portions of the NSR Reform 

rule. The NSR Reform rule excused a 

source from maintaining records of the 

information and calculations used in the 

actual-to-projected actual applicability 

test if the source determined that there 

was no ‘‘reasonable possibility’’ that the 

modification would trigger NSR. These 

are the same records necessary to 

substantiate calculations made for the 

applicability test. The court concluded 

that lack of evidence, in the form of data 

and records, could inhibit enforceability 

of the NSR program in this context. The 

court remanded this part of the rule. On 

December 12, 2007, EPA published a 

final rule in response to the D.C. Circuit 

Court’s remand of the recordkeeping 

provisions of EPA’s 2002 NSR Reform 

Rules (see 72 FR 70607) in which EPA 

clarified what constitutes ‘‘reasonable 

possibility’’. 72 FR 70607 established a 

‘‘percentage increase trigger’’ by which 

there is a reasonable possibility that a 

change would result in a significant 

emissions increase if the projected 

emissions increase of a pollutant— 

determined by comparing baseline 

actual emissions to projected actual 

emissions—equaled or exceeded fifty 

percent of the applicable NSR 

significant level for that pollutant. 

The State of Colorado requires sources 

retain records that, among other things, 

are essential to substantiate sources’ 

calculations using the actual-toprojected-actual applicability test. 

Colorado also requires that a source 

submit its data and calculations along 

with a permit application that would 

otherwise be required for the physical or 

operational change. Colorado reviews 

the data and calculations only to 

confirm a source’s conclusions whether 

it triggers NSR. The information 

submitted is then included in a nonenforceable appendix to a source’s Title 

V Permit or as a permit note in the 

source’s construction permit. 

Accordingly, Colorado elected not to 

modify Part D, Section I.B.5. and to 

modify Part D, Sections V.A.7.c. and 

VI.B.5. in a manner that maintains 

consistency with Section I.B.5. Part D, 

Sections V.A.7.c. and VI.B.5 were 

previously approved in 77 FR 21453. 

EPA proposes to find that the current 

Regulation No. 3 recordkeeping 

requirements are at least as stringent as 

in 72 FR 70607. 

III. What action is EPA taking today? 

Based on the above discussion, EPA 

proposes to find that removing vacated 

and remanded provisions from the June 

24, 2005 court decision, renumbering, 

and other minor administrative changes 

meet applicable requirements of the Act; 

and thus, the revisions are approvable 

under CAA section 110. Therefore, we 

propose to approve Colorado’s 

Regulation No. 3 revisions as submitted 

on August 21, 2006. Specifically, we 

propose to approve the deletion of the 

following sections from Regulation No. 

3 and the renumbering associated with 

the deletion: 

Part A, Section V.E.10. 

Part A, Section V.E.11. 

Part C, Section I.A.7.j. 

EPA is acting only on the 

renumbering resulting from the deletion 

of the following provisions, as these 

provisions were considered withdrawn 

by the state in the 77 FR 21453 final 

rulemaking and were not approved into 

the SIP: 

Part D, Section II.A.23.d.(viii) 

Part D, Section II.A.27.c.(iv) 

Part D, Section II.A.27.g.(v) 

Part D, Section I.B.3. 

Part D, Section I.B.4. (second sentence) 

Part D, Section I.D. 

Part D, Section II.A.11. 

Part D, Section II.A.35. 

Part D, Section XV. 

Part D, Section XVI. 

EPA is also approving the 

renumbering of Regulation No. 3, Part D, 

as submitted on August 21, 2006, 

including changes to references. These 

changes are detailed in the August 21, 

2006 submittal (see docket.) 

We are also affirming that the 

recordkeeping provisions in Regulation 


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Federal Register / Vol. 77, No. 131 / Monday, July 9, 2012 / Proposed Rules 40317 

No. 3 are at least as stringent as those 

required in the December 21, 2007, 

‘‘Reasonable Possibility’’ rule. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

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

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

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this proposed action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this 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, 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. 

Dated: June 25, 2012. 

Howard M. Cantor, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2012–16721 Filed 7–6–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0021; FRL–9696–8] 

Approval, Disapproval and 

Promulgation of Air Quality 

Implementation Plans; Arizona; 

Regional Haze State and Federal 

Implementation Plans 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; announcement of 

public hearing. 

SUMMARY: EPA is announcing that a 

public hearing will be held on July 31, 

2012 for the proposed rule, ‘‘Approval, 

Disapproval and Promulgation of Air 

Quality Implementation Plans; Arizona; 

Regional Haze State and Federal 

Implementation Plans’’, which will be 

posted on EPA’s Web site by July 5, 

2012. 

DATES: The public hearing will be held 

on July 31, 2012. See the Supplementary 

Information section for further details 

about the public hearing. 

ADDRESSES: See the SUPPLEMENTARY

INFORMATION section for hearing 

location. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about the public 

hearing, please contact Thomas Webb, 

U.S. EPA, Region 9, phone (415) 947– 

4139, email webb.thomas@epa.gov. If 

you are a person with a disability under 

the ADA and require a reasonable 

accommodation for this event, please 

contact Philip Kum at 

kum.philip@epa.gov or at (415) 947– 

3566 by July 15, 2012. 

SUPPLEMENTARY INFORMATION: Section 

169A of the Clean Air Act (CAA) 

establishes as a national goal the 

‘‘prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory Class I 

Federal areas which impairment results 

from manmade air pollution.’’ Arizona 

has twelve mandatory Class I areas; 

several Class I areas in other states are 

also affected by emissions from Arizona 

facilities. 

Regional haze is visibility impairment 

caused by the cumulative air pollutant 

emissions from numerous sources over 

a wide geographic area. EPA’s proposed 

Regional Haze Federal Implementation 

Plan (FIP) for Arizona will address the 

requirements of the CAA and EPA’s 

regional haze regulations pertaining to 

Best Available Retrofit Technology 

(BART) for three electric generating 

stations in Arizona: Apache Generating 

Station, Cholla Power Plant and 

Coronado Generating Station. EPA will 

propose to address other facilities and 

other elements of the Arizona SIP in a 

later action. The proposed rule, 

‘‘Approval, Disapproval and 

Promulgation of Air Quality 

Implementation Plans; Arizona; 

Regional Haze State and Federal 

Implementation Plans’’, will be 

available by July 5, 2012 on the 

following Web site: http://www.epa.gov/ 

region9/air/actions/arizona.html and 

will subsequently be published in the 

Federal Register. 

The proposed rule and information on 

which the proposed rule relies will also 

be available in the docket for this action. 

Generally, documents in the docket will 

be available electronically at 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), and some may not 

be publicly available in either location 

(e.g., Confidential Business 

Information). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

Public hearing: EPA will hold a 

public hearing at the following date, 

time and location to accept oral and 

written comments into the record: 

Date: July 31, 2012. 

Time: Open House: 4:00–5:00 p.m. 

Public Hearing: 6:00–8:00 p.m. 

Location: Sandra Day O’Connor 

Federal Courthouse, in the atrium and 

juror room, 401 W. Washington Street, 

Phoenix, AZ 85003–2118. 


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