[Federal Register Volume 82, Number 159 (Friday, August 18, 2017)]
[Proposed Rules]
[Pages 39396-39399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17219]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2017-0446; FRL-9966-04-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
Colorado; Revisions to Regulation Number 3

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing 
approval of a portion of the State Implementation Plan (SIP) revisions 
submitted by the State of Colorado on February 25, 2015. The revisions 
are to Colorado Air Quality Control Commission (Commission) Regulation 
Number 3, Parts A, B and D. The amendments the EPA is proposing to act 
on include: Revisions to provisions for permitting emissions for 
particulate matter less than 2.5 micrograms (PM<INF>2.5</INF>) in Part 
D, modifications to the provisions for filing revised Air Pollution 
Emission Notices (APEN) in Part A and updates to public notice 
publication requirements in Part B. This action is being taken under 
section 110 of the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 18, 
2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2015-0493 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the Web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, 
<a href="/cdn-cgi/l/email-protection#5c30393332397237392a35321c392c3d723b332a"><span class="__cf_email__" data-cfemail="2c40494342490247495a45426c495c4d024b435a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

What should I consider as I prepare my comments for the EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or email. 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 the EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, date 
and page number);
    <bullet> Follow directions and organize your comments;
    <bullet> Explain why you agree or disagree;
    <bullet> Suggest alternatives and substitute language for your 
requested changes;
    <bullet> Describe any assumptions and provide any technical 
information and or data that you used;
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives;
    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
    <bullet> Make sure to submit your comments by the comment period 
deadline identified.

II. Background

Revisions to PM<INF>2.5</INF> Significant Impact Level (SIL) and 
Significant Monitoring Concentration (SMC) Provisions

    Colorado's SIP submittal revises the SIL and SMC provisions for 
PM<INF>2.5</INF> in the State's Prevention of Significant Deterioration 
(PSD) permitting program. On January 22, 2013, the United States Court 
of Appeals for the District of Columbia Circuit vacated the SILs for 
PM<INF>2.5</INF> and allowed the EPA to reconsider the provisions for 
SMCs. Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013). On December 9, 
2013, the EPA issued a final rule that removes the PM<INF>2.5</INF> SIL 
from EPA's PSD regulations and revised the threshold for SMCs (78 FR 
73698). The EPA set the PM<INF>2.5</INF> SMC concentration at zero 
micrograms per cubic meter instead of removing PM<INF>2.5</INF> 
entirely from the SMC provisions because a zero micrograms per cubic 
meter threshold means there is no air quality impact below which a 
reviewing authority has the discretion to exempt a source from the 
PM<INF>2.5</INF> monitoring requirements, but that monitoring is still 
required. As a result of this court decision and the EPA's rulemaking, 
Colorado removed the SILs for PM<INF>2.5</INF> from Part D, Section 
V.A.2.c set the SMC monitoring concentration to zero in Part D, Section 
VI.B.3.a(iii).

[[Page 39397]]

Revisions to APEN Reporting

    Colorado's regulations in Part A, Section II.A. require:


    [N]o person shall allow emissions of air pollutants from, or 
construction, modification or alteration of, any facility, process, 
or activity which constitutes a stationary source, except 
residential structures, from which air pollutants are, or are to be, 
emitted unless and until an Air Pollution Emission Notice and the 
associated Air Pollution Emission Notice fee has been filed with the 
Division with respect to such emission.

    Colorado has revised its APEN reporting requirements to clarify 
when a revised APEN is required due to a significant change in annual 
actual emissions. The revision would clarify that the thresholds for 
determining significant changes are based on individual emission units, 
not facility-wide, actual emissions on a pollutant-by-pollutant basis. 
For example, an APEN reporting 150 tons per year (tpy) of carbon 
monoxide (CO) and 10 tpy of PM<INF>2.5</INF> would need to update CO 
emissions using the ``one hundred tpy or more'' threshold in Part A, 
Section II.C.2.b.(iii), and update PM<INF>2.5</INF> emissions using the 
``less than one hundred tpy'' threshold in Part A, Section 
II.C.2.b.(i). Without this proposed clarification (actual emissions on 
a pollutant-by-pollutant basis) a significant change was based on the 
source's aggregate annual actual emissions, which required sources to 
file revised APENs more often.
    Colorado has also revised Part A, Section II.C.b(i)-(iii), Section 
II.C.4.a. and b. to clarify that APENs filed solely to update an 
expired APEN, change the owner or operator, or report a significant 
change in emissions need only report actual annual emissions (which is 
the equivalent of controlled emissions if the source utilizes emission 
control equipment). APENs filed to update control equipment or modify a 
permit limitation would continue to report both uncontrolled actual and 
controlled actual emissions. This revision simplifies and streamlines 
the requirements for filing revised APENs, because the source's actual 
annual emissions are the relevant information for inventory and fee 
purposes when reporting past years' emissions or reporting significant 
changes in annual actual emissions.

Revisions to Public Notice Requirements

    Colorado has revised its provisions for public notice of a minor 
source permit application to update the publication requirements in 
Part B, Section III.C.4. Regulation 3 in the SIP requires the State to 
publish public notice of certain proposed minor source construction 
permit applications, including sources that apply for a permit to limit 
the potential to emit criteria pollutants, in a newspaper of general 
distribution in the area where the proposed project will be located or 
by other such method reasonably designed to ensure effective public 
notice. Recently, Colorado has found that some areas where construction 
permitting projects require public notice are proposed no longer have 
newspapers of general circulation. Therefore, in order to provide 
effective public notice, Colorado has revised its minor source public 
notice publication requirements to include other means authorized by 
state statute and federal regulation that are designed to provide 
public notice of the applicable permitting action. Further, by 
utilizing other means of public notice such as the State Web site, 
Colorado will provide broader notice for a longer timeframe than a one-
day publication in a newspaper.

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

    Under CAA section 110(l), EPA cannot approve a SIP revision that 
interferes with any requirement concerning attainment, reasonable 
further progress, or any other applicable requirement of the Act. The 
February 25, 2015 revisions to Regulation 3 Part D, Section VI.A.2.c 
and VI.B.3.a.(iii) of the Colorado SIP would not interfere with the 
applicable requirements of the Act. The revisions to the PSD program in 
Part D, Regulation 3 comply with the requirements of 40 CFR 51.166 as 
revised by the EPA in response to the D.C. Circuit Court of Appeals 
decision regarding PM<INF>2.5</INF> SILs and SMCs. See 78 FR 73698. 
This proposal is limited to the revisions pertaining to 
PM<INF>2.5</INF>; we are not proposing to re-approve any existing 
provisions in the Colorado SIP regarding source impact analysis and 
ambient monitoring. As the revisions removing PM<INF>2.5</INF> SILs and 
SMCs are in accordance with the EPA's 2013 removal of PM<INF>2.5</INF> 
SILs and SMCs from 40 CFR 51.166 and the revisions strengthen the SIP, 
we are proposing to approve the revisions. We are also proposing to 
approve the conforming change to the introductory statement in VI.A.2., 
which includes the deletion of the phrase at the end of the sentence 
(``, as clarified for any relevant air pollutant in Section 
VI.A.2.c.:''). The revisions to Part A, Section II.C.b(i)-(iii), 
Section II.C.4.a. and b. comply with section 110(l) because the 
revisions are limited to the filing of revised APENs that are designed 
to update Colorado's emissions inventory or used to calculate emissions 
fees. The revisions to the public notice minor source permitting 
requirements comply with section 110(l) because as discussed below, we 
propose to interpret that revisions are consistent with our regulations 
and guidance.
    Colorado's February 25, 2015 submittal also revises its APEN 
requirements. The APEN revisions in Part A clarify that, for purposes 
of filing a revised APEN, the thresholds for determining significant 
changes are based on the emission unit's actual emissions on a 
pollutant-by-pollutant basis, not total facility-wide emissions. These 
revisions also clarify that APENs filed for the following purposes need 
only report actual emissions: Solely to update an APEN before it 
expires; change in the owner or operator of any facility, process of 
activity; or report a significant change in emissions. APENs filed to 
update control equipment or modify a permit limitation would continue 
to report both uncontrolled actual and controlled actual emissions. The 
revisions to Part A, Section II.C.2.b(i)-(iii), Section II.C.4.a. and b 
streamline the requirements for filing revised APENs because the 
sources actual annual emissions is the relevant information for 
emissions inventory and fee purposes.
    The CAA contains three programs governing construction of new and 
modified stationary sources, collectively referred to as new source 
review (NSR): Minor NSR, PSD, and nonattainment NSR.\1\ The revisions 
in the February 25, 2015 submittal to the public notice requirements in 
Regulation 3, Part B, Section III.C.4 apply only to the minor NSR 
program. They do not apply to the PSD and nonattainment NSR permit 
programs, which have separate public notice requirements in Regulation 
3, Part D, Section IV.A.
---------------------------------------------------------------------------

    \1\ For a detailed discussion of the three programs, please see 
(for example) 76 FR 38748 (July 1, 2011).
---------------------------------------------------------------------------

    Requirements for the minor NSR program are provided in 40 CFR 
51.160 to 51.164. With respect to public notice of minor NSR approvals, 
the state must provide ``a notice by prominent advertisement in the 
area affected.'' 40 CFR 51.161(b)(3). On April 17, 2012, the EPA issued 
a guidance memorandum stating that we intended to interpret ``prominent 
advertisement'' in a media-neutral fashion.\2\ The memorandum explained 
that states could meet the requirement by publication of the notice

[[Page 39398]]

in appropriate newspaper, or could opt to publish the notice using 
other media so long as it would be reasonable to conclude that the 
public would have routine and ready access to the alternative 
publishing venue and the use of the alternative venue would be 
consistent with the state's law or SIP.\3\
---------------------------------------------------------------------------

    \2\ Memorandum from Janet McCabe, Principal Deputy Assistant 
Administrator, Office of Air and Radiation, to Regional 
Administrators, entitled ``Minor New Source Review Program Public 
Notice Requirements under 40 CFR 51.161(b)(3) (Apr. 17, 2012), 
available at https://www.epa.gov/sites/production/files/2015-07/documents/pubnot.pdf.
    \3\ Id. at 1.
---------------------------------------------------------------------------

    On October 18, 2016 (81 FR 71613) the EPA revised the public notice 
requirements for Clean Air Act permitting programs.\4\ In the 2016 
final action, the EPA also revised the April 17, 2012 interpretation of 
``prominent advertisement'' in 40 CFR 51.161(b)(3) for the minor NSR 
program by extending it to ``synthetic minor'' permits, that is, 
permits that contain legally and practically enforceable restrictions 
that result in the source not being subject to major NSR requirements. 
81 FR 71617.
---------------------------------------------------------------------------

    \4\ The EPA also revised requirements for posting approval 
documents for public inspection to allow for posting the documents 
at a physical location or on a public Web site identified by the 
state or local agency. 81 FR 71629. Colorado's February 25, 2015 
submittal retains (with a minor grammatical change) the currently 
approved method of posting the materials at the county clerk's 
office for the county in which the source is or will be located.
---------------------------------------------------------------------------

    In this action, the EPA proposes to interpret ``prominent 
advertisement'' in similar fashion, that is, as media neutral and 
satisfied by any publishing venue to which it would be reasonable to 
conclude the public has routine and ready access. The February 25, 2015 
SIP revisions require the public notice to be published in either a 
newspaper of general distribution in the area in which the source is or 
will be located, or by other means necessary to assure notice to the 
affected public, including posting notice on the publicly accessible 
portion of the Division's Web site. We propose to determine that this 
is adequate as ``prominent advertisement.'' We are not proposing to 
reassess Colorado's minor NSR program with respect to public 
participation processes generally; we are only proposing to act on 
revisions that affect the publication of the notice specifically. This 
proposal is limited to the revisions as they apply to the SIP and 
criteria pollutants; we are not proposing action on provisions 
regarding ``federal hazardous air pollutants'' that are covered under 
authorities.
    For the reasons expressed above, EPA is proposing to approve 
revisions to Regulation 3, Parts A, B and D and Appendix A from the 
February 25, 2015 submittal as shown in Table 1 below. Appendix A was 
revised as a conforming change to the APEN revisions. We are also 
proposing to approve the renumbering and formatting changes for the 
definition of ``emission unit'' in Regulation 3, Part D, I.A.13.a.; and 
II.A.13.a.(i)-(ii).

  Table 1--List of Colorado Revisions That EPA Is Proposing To Approve
------------------------------------------------------------------------
 Revised sections in February 10, 2015  submission proposed for approval
-------------------------------------------------------------------------
Regulation Number 3, Part A:
    II.C.2.b.(i)-(iii); and II.C.4.a. and b.
Regulation Number 3, Part B:
    III.C.4.
Regulation Number 3, Part D:
    I.A.13.a.; II.A.13.a.(i)-(ii); VI.A.2.; VI.A.2.c.; and
     VI.B.3.a.(iii)
Appendix A
------------------------------------------------------------------------

    The EPA is not acting on revisions from Colorado's February 25, 
2015 submittal related to greenhouse gas and carbon dioxide equivalent 
(CO2e) revisions and the associated renumbering which was a result of 
Colorado's proposed greenhouse gas revisions in Parts A and D. These 
revisions will be acted on in a separate future rulemaking.

IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the Colorado Air Quality Control Commission (Commission) 
Regulation Number 3, Parts A, B and D discussed in section III of this 
preamble. The EPA has made, and will continue to make, these documents 
generally available electronically through www.regulations.gov and/or 
in hard copy at the appropriate EPA office (see the ADDRESSES section 
of this preamble for more information).

V. Statutory and Executive Orders Review

    Under the CAA, 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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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 CAA; and,
    <bullet> Does not provide the 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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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


[[Page 39399]]


    Dated: July 26, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-17219 Filed 8-17-17; 8:45 am]
BILLING CODE 6560-50-P?>


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>