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[Federal Register Volume 78, Number 16 (Thursday, January 24, 2013)]
[Rules and Regulations]
[Pages 5140-5143]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00579]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-1025, FRL-9762-5]

Approval and Promulgation of Air Quality Implementation Plans; 
Colorado; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions adopted by the 
State of Colorado on December 15, 2005, to Regulation No. 3 (Air 
Pollutant Emission Notice and Permitting 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remove repealed provisions in Regulation No. 3 that pertain to the 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 take final action 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: This final rule is effective February 25, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2011-1025. All documents in the docket are listed in 
the www.regulations.gov Web site. 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 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 Information
II. Response to Comments
III. What are the changes EPA is taking final action to approve?
IV. What action is EPA taking today?
V. 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 Information

    On December 31, 2002, EPA published revisions to the federal 
Prevention of Significant Deterioration (PSD) and non-attainment 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 Federal Rule. The court also concluded that EPA lacks the authority 
to create pollution control project 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 Federal NSR rule, the court 
terminated those exemptions to new 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; including 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 pollution control project 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

[[Page 5141]]

updated. The submittal also included other minor administrative changes 
to Regulation No. 3.
    Colorado's August 21, 2006 submittal supersedes the portions of the 
Colorado's July 11, 2005 and October 25, 2005, submittals which were 
considered withdrawn in our April 10, 2012 action. EPA is taking final 
action on these revisions in this rulemaking.

II. Response to Comments

    EPA proposed action on these revisions on July 9, 2012 (77 FR 
40315.) We accepted comments from the public on this proposal through 
August 8, 2012. EPA received no comments during the public comment 
period.

III. What are the changes EPA is taking final action to approve?

    EPA is taking final action to approve all revisions to Regulation 
No. 3 as submitted on August 21, 2006, with one exception, including 
renumbering that resulted from removing provisions that were vacated or 
remanded in the June 24, 2005 court decision, as well as minor 
administrative changes. We are not approving the removal of provisions 
that were considered withdrawn in our April 10, 2012 action (77 FR 
21453), as these provisions were never approved into the SIP. We are 
only approving the renumbering that resulted from Colorado's removal of 
those provisions from Regulation Number 3. In a number of instances, 
the provisions that were approved in our April 10, 2012 action contain 
italicized and underlined text. As explained in our April 10, 2012 
notice, the italicized text was to be added to the SIP and the 
underlined text removed from the SIP upon our approval of the NSR 
reform provisions. As that approval was completed in our April 10, 2012 
action, in this action we incorporate only the plain and italicized 
text of the renumbered provisions.
    The exception stems from a final action EPA took on January 9, 2012 
(77 FR 1027). In that action, we approved revisions to Regulation 
Number 3, Part C, that were submitted on August 1, 2007 to meet the 
requirements of the Phase 2 Implementation Rule for the 1997 ozone 
NAAQs (70 FR 71612, Nov. 29, 2005). As the August 1, 2007 submittal was 
subsequent to the August 21, 2006 submittal we are approving today, the 
provisions we approved in our January 9, 2012 action (listed in Table 2 
of 77 FR 1027) already reflect the renumbering of Part C and supersede 
the provisions in the August 21, 2006 submittal. As explained in our 
January 9, 2012 notice, the subsequent approval of the remaining 
renumbering of Part C--which we are carrying out today--resolves any 
discrepancy in the numbering of Part C.
    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 federal 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 June 24, 2005, DC Circuit court opinion also addressed the 
recordkeeping and reporting requirements of the federal rule. The 2002 
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 21, 
2007, EPA published a final rule in response to the DC Circuit Court's 
remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules 
(see 72 FR 72607) in which EPA clarified what constitutes ``reasonable 
possibility''. 72 FR 72607 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-to-projected-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 non-enforceable 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 (April 10, 2012). EPA 
finds that the current Regulation No. 3 recordkeeping requirements are 
at least as stringent as in 72 FR 72607.

IV. What action is EPA taking today?

    Based on the discussion in this notice, EPA finds that the 
renumbering resulting from Colorado's removal of vacated and remanded 
provisions from the June 24, 2005, court decision, and other minor 
administrative changes meet applicable requirements of the Act; and 
thus, the revisions are approvable under CAA section 110. Therefore, we 
are taking final action to approve Colorado's Regulation No. 3 
revisions as submitted on August 21, 2006.
    Specifically, we are taking final action to approve the 
renumbering--with the exception of renumbered provisions already 
approved in our January 9, 2012 action--resulting from the deletion of 
the following provisions:\1\
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    \1\ The provisions approved in our January 9, 2012 action are 
Regulation Number 3, Part C, Sections II.A.22.a, II.A.24.d, 
II.A.38.c, and II.A.42.a. Also, in our proposal for this action we 
proposed to delete Part A, Sections V.E.10 and V.E.11, and Part C, 
Section I.A.7.j from the SIP. However, these provisions were never 
approved into the SIP so deletion of them is unnecessary. The 
deletion of Part A, Sections V.E.10 and V.E.11 did not cause any 
renumbering; however, the deletion of Part C, Section I.A.7.j did 
cause renumbering and we are approving the renumbered sections.

Part C, Section I.A.7.j
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.D.
Part D, Section II.A.11.
Part D, Section II.A.35.
Part D, Section XV.
Part D, Section XVI.

    We are approving the renumbering of the existing Regulation No. 3 
rule because these changes are non-substantive and do not affect the 
meaning of the rule. The renumbering

[[Page 5142]]

changes are outlined in the August 21, 2006 state submittal (see 
docket).

V. 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 final action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 25, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds, Incorporation 
by reference.

    Dated: November 27, 2012.
Howard M. Cantor,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. Section 52.320 is amended by adding paragraph (c)(125) to read as 
follows:

Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (125) On August 21, 2006, the State of Colorado submitted revisions 
to 5 CCR 1001-5, Regulation Number 3, Air Pollution Emission Notice and 
Permitting Requirements. The August 21, 2006, submittal included 
renumbering and deletions of Regulation Number 3. The incorporation by 
reference in paragraphs (c)(125)(i)(A) and (B) of this section reflect 
the renumbered sections, deletions and reference changes as of the 
August 21, 2006, submittal.
    (i) Incorporation by reference
    (A) 5 CCR 1001-5, Regulation Number 3, Stationary Source Permitting 
and Air Contaminant Emission Notice Requirements, Part C, Concerning 
Operating Permits, Section I, Applicability, I.A., Definitions; 
I.A.7.j., adopted December 15, 2005 and effective March 2, 2006.
    (B) 5 CCR 1001-5, Regulation Number 3, Stationary Source Permitting 
and Air Contaminant Emission Notice Requirements, Part D, Concerning 
Major Stationary Source New Source Review and Prevention of Significant 
Deterioration, adopted December 15, 2005 and effective March 2, 2006:
    (1) Section I, Applicability, I.A., General Applicability; I.A.2., 
I.B., Applicability Tests; I.B.3., I.B.4.
    (2) Section II, Definitions; II.A.; II.A.1., Actual Emissions; 
II.A.1.d.; II.A.11., Complete; II.A.12., Construction; II.A.13., 
Emissions Unit; II.A.14., Electric Utility Steam Generating Unit; 
II.A.15., Federal Land Manager (FLM); II.A.16., High Terrain; II.A.17., 
Hydrocarbon combustion flare; II.A.18., Innovative Control Technology; 
II.A.19., Low Terrain; II.A.20., Lowest Achievable Emission Rates 
(LAER) (excluding underlined text); II.A.21., Major Emissions Unit; 
II.A.22., Major Modification (excluding II.A.22.a. and underlined 
text); II.A.23., Major Source Baseline Date; II.A.24., Major Stationary 
Source (excluding II.A.24.d. and underlined text); II.A.25., Minor 
Source Baseline Date; II.A.26., Net Emissions Increase (excluding 
underlined text); II.A.27., Nonattainment Major New Source Review (NSR) 
Program; II.A.28., PAL Effective Date; II.A.29., PAL Effective Period; 
II.A.30., PAL Major Modification; II.A.31., PAL Permit; II.A.32., PAL 
Pollutant; II.A.33., Plantwide Applicability Limitation (PAL); 
II.A.34., Prevention of Significant Deterioration (PSD) Permit; 
II.A.35., Project; II.A.36., Projected Actual Emissions; II.A.37., 
Reactivation of Very Clean Coal-fired Electric Utility Steam Generating 
Unit; II.A.38., Regulated

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NSR Pollutant (excluding II.A.38.c.); II.A.39., Replacement Unit; 
II.A.40., Repowering (excluding underlined text); II.A.41., Secondary 
Emissions; II.A.42., Significant (excluding II.A.42.a.) ; II.A.43., 
Significant Emissions Increase; II.A.44., Significant Emissions Unit; 
II.A.45., Small Emissions Unit; II.A.46., Temporary Clean Coal 
Technology Demonstration Project; XV., Actual PALs.
    (ii) Additional material.
    (A) Notice of Final Adoption, dated 12/15/2005, signed by Douglas 
A. Lempke, Administrator, for revisions made to Regulation Number 3, 
Air Pollution Emission Notice and Permitting Requirements.

[FR Doc. 2013-00579 Filed 1-23-13; 8:45 am]
BILLING CODE 6560-50-P
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