
[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]



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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.



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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 (PM2.5) 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, 

leone.kevin@epa.gov.



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:

     Identify the rulemaking by docket number and other 

identifying information (subject heading, Federal Register volume, date 

and page number);

     Follow directions and organize your comments;

     Explain why you agree or disagree;

     Suggest alternatives and substitute language for your 

requested changes;

     Describe any assumptions and provide any technical 

information and or data that you used;

     If you estimate potential costs or burdens, explain how 

you arrived at your estimate in sufficient detail to allow for it to be 

reproduced;

     Provide specific examples to illustrate your concerns, and 

suggest alternatives;

     Explain your views as clearly as possible, avoiding the 

use of profanity or personal threats; and,

     Make sure to submit your comments by the comment period 

deadline identified.



II. Background



Revisions to PM2.5 Significant Impact Level (SIL) and 

Significant Monitoring Concentration (SMC) Provisions



    Colorado's SIP submittal revises the SIL and SMC provisions for 

PM2.5 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 

PM2.5 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 PM2.5 SIL 

from EPA's PSD regulations and revised the threshold for SMCs (78 FR 

73698). The EPA set the PM2.5 SMC concentration at zero 

micrograms per cubic meter instead of removing PM2.5 

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 

PM2.5 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 PM2.5 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 PM2.5 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 PM2.5 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 PM2.5 SILs and SMCs. See 78 FR 73698. 

This proposal is limited to the revisions pertaining to 

PM2.5; 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 PM2.5 SILs and 

SMCs are in accordance with the EPA's 2013 removal of PM2.5 

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.

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    \1\ For a detailed discussion of the three programs, please see 

(for example) 76 FR 38748 (July 1, 2011).

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    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\

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    \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.

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    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.

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    \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.

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    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

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 Revised sections in February 10, 2015  submission proposed for approval

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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

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    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:

     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 CAA; and,

     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?>




