[Federal Register Volume 87, Number 56 (Wednesday, March 23, 2022)]
[Proposed Rules]
[Pages 16439-16442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06172]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2022-0103; FRL-9624-01-R8]


 Air Plan Approval; CO; Reg 3 NSR and APEN Updates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve state implementation plan (SIP) revisions submitted by the 
State of Colorado on May 13, 2020. The revisions contain amendments to 
the State's New Source Review (NSR) permitting program and Air 
Pollution Emission Notices (APENs). The EPA is taking this action 
pursuant to the Clean Air Act (CAA).

DATES: Written comments must be received on or before April 22, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2022-0103, to the Federal Rulemaking Portal: https://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.
    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. 
Publicly available docket materials are available electronically in 
www.regulations.gov. To reduce the risk of COVID-19 transmission, for 
this action we do not plan to offer hard copy review of the docket. 
Please email or call the person listed in the FOR FURTHER INFORMATION 
CONTACT section if you need to make alternative arrangements for access 
to the docket.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado, 80202-1129, telephone number: (303) 312-6227, email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever

[[Page 16440]]

``we,'' ``us,'' or ``our'' is used, we mean the EPA.

I. Background

    On May 13, 2020, the State of Colorado adopted and repealed 
revisions to Regulation Number 3 (Stationary Source Permitting and Air 
Pollution Emission Notice Requirements) Part A (Concerning General 
Provisions Applicable to Reporting and Permitting), Part B (Concerning 
Construction Permits) and Part C (Concerning Operating Permits.) The 
revisions we are acting on are in Colorado's minor source permitting 
program. The EPA is proposing to approve all of the revisions submitted 
on May 13, 2020, with the exception of the revision to Part A, Section 
II.A.2.a, which was not extended by the Colorado General Assembly and 
expired effective May 15, 2021. As a result, this section is no longer 
in Regulation Number 3. We received a letter from Colorado requesting 
to withdraw this provision from the May 13, 2020 submittal on October 
15, 2021 (See docket.) along with revisions to Appendix B (Non-Criteria 
Reportable Pollutants), as they are not part of the SIP. We will also 
not be acting on the revisions to Regulation Number 7, as they were 
acted on in a separate action on November 5, 2021 (86 FR 61071).
    The May 13, 2020 submittal contains the following revisions to 
Regulation 3, Parts A, B and C:

    1. Revises existing definitions and adds an existing definition 
used in Regulation Number 7 (Control of Ozone via Ozone Precursors 
and Hydrocarbons via Oil and Gas Emissions);
    2. Updates the APEN reporting and permitting requirements for 
oil and gas well production facilities;
    3. Clarifies and narrows certain exemptions and repeal certain 
exemptions related to oil and gas wastewater impoundments;
    4. Revises the SIP to more closely align language with Colorado 
Statutes;
    5. Clarifies when transfer of ownership forms are due and where 
the compliance responsibilities lie during the transfer process; and
    6. Corrects typographical, grammatical and formatting errors 
found throughout the regulations.

II. The EPA's Evaluation

A. Revisions to Regulation 3, Part A

I.--Applicability
(1) I.B.47
    The definition of ``Well Production Facility'' is added. This is 
approvable, as the definition already exists in Regulation Number 7, 
I.B.30. This definition was added to Regulation Number 3 to promote 
consistency throughout the State's permitting regulations. This 
definition was previously referred to as the undefined term 
``exploration and production.'' This revision meets the statutory and 
regulatory requirements as outlined in Section III. below of this 
proposed rulemaking.
(2) I.B.12
    The definition of ``Commencement of Operation'' is revised. This 
revision is approvable. The definition reflects that when permanent 
equipment is on-site and operating, commencement of operation has 
occurred, even if there is temporary equipment on-site. For example, if 
a well is producing into one temporary tank and two permanent storage 
tanks, the storage tanks have commenced operation for purposes of 
Regulation Number 3. The revision separates the requirement from any 
specific stage of well operation. The revised definition clarifies that 
commencement of operation is not always determined by the transition of 
well completion operations into startup of production as those terms 
are defined in 40 CFR 60.5430a (subpart OOOOa). However, to ensure that 
an operator cannot continue to produce into temporary tanks 
indefinitely and thus avoid APEN reporting and permitting requirements, 
this revision clarifies that the end of the flowback is the latest date 
at which commencement of operation may occur.
    This revision also ensures consistency across Colorado's State air 
regulations, as the revised definition of ``commencement of operation'' 
in Regulation Number 3 is the same as the federally approved definition 
of ``commencement of operation'' in Regulation Number 7, Part D, I.D.7.
II. Air Pollution Emission Notice Requirements
(1) II.A.1
    This paragraph adds the phrase ``provided in Section II.A.2 below, 
or as'' to reflect the addition of new paragraph II.A.2. Colorado has 
withdrawn Section II.A.2 and, as a result, we are not taking action on 
this revision.
(2) II.A.2.a
    As mentioned in Section I. of this action, the addition of this 
paragraph has been withdrawn by the State of Colorado, thus, this 
revision will not be acted on. As a result, owners or operators of well 
production facilities must submit APENs prior to the construction, 
modification, or alteration of the facility, as specified for all other 
sources in Section II.A.1, which requires that facilities cannot emit 
air pollutants from a stationary source unless an APEN and associated 
fees have been filed with the Division.
    In other words, owners and operators of well production facilities 
must apply for an APEN prior to commencement of operation. APENs 
require owners or operators to specify the location at which the 
proposed emission source will occur, the name and address of the 
persons operating and owning such a facility, the nature of the 
facility, process or activity, an estimate of the quantity and 
composition of the expected emissions, among other requirements. Thus, 
this revision meets the statutory and regulatory requirements as 
outlined in Section III. of this proposed rulemaking.
(3) II.A.2(b)
    This paragraph requires owners or operators of well production 
facilities to file an APEN prior to the modification of well production 
facilities. This is a similar requirement as stated in II.A.1. This 
revision meets the statutory and regulatory requirements as outlined in 
Section III of this proposed rulemaking.

III. Exemptions From Air Pollution Emission Notice Requirements

(1) Section II.D.1.III
    This exemption was repealed to reflect the withdrawal of Part A 
Section II.A.2.a. Section II.D.1.III. provides that the owner or 
operator of an oil and gas exploration and production operation shall 
file an APEN with the Division thirty days after well completion. If 
production will result in reportable emissions, the owner or operator 
shall file an APEN within thirty days after the report of first 
production is filed with the State, but no later than ninety days. As a 
result of this section being repealed, owners or operators are now 
required to file an APEN prior to commencement of operations, as 
required in Part A, Section II.A.1.

B. Revisions to Regulation 3, Part B (Concerning Construction Permits)

II.A--General Requirements for Construction Permits
(1) II.A.1 and III.I.2.a
    In Section II.A.1, the phrase ``commence construction of'' is 
replaced with the phrase ``construct, modify or operate'' and the 
phrase ``modification of a stationary source'' is replaced by the 
phrase ``commence the conduct of and such activity.'' Similar language 
changes were made in Section III.I.2.a.
    These language revisions align with the existing language in the 
Air Pollution Prevention and Control Act

[[Page 16441]]

provisions regarding permits (See 25-7-114.2. C.R.S.) These revisions 
reflect how the Colorado construction permitting program has been 
operated and implemented, and to ensure consistency with the governing 
statute. These revisions will not change the timing of the requirement 
to obtain a construction permit.
II.B--Transfer or Assignment of Ownership
(1) II.B
    Colorado revised Section II.B. to clarify that a transfer of 
ownership form is due to the State within 30 days of the completion of 
a transfer or assignment of ownership for re-issuing of existing 
permits. The current language indicates that a ``prospective'' owner 
must submit the transfer of ownership form, indicating that the form 
must be submitted prior to acquisition. The revised language provides 
clarity for sources about this requirement. The language has also been 
modified to state that the requirements for compliance with existing 
permitting requirements transfer to the new owner or operator when the 
forms are submitted.
II.D.--Exemptions From Air Pollution Notice Requirements
(1) II.D.7
    Section II.D.7 was repealed to reflect the removal of Part A 
Section II.A.2.a. Section II.D.7 provides that oil and gas exploration 
and production operations that are required to obtain a construction 
permit are not required to file an application for a construction 
permit until they are required to file an APEN. This section was not 
extended by the Colorado General Assembly and expired effective May 15, 
2021; thus, it is no longer in Regulation Number 3. As a result, all 
well production facilities must file for a construction permit prior to 
commencement of operation, as stated in Part A, Section II.A.1.
III.B.--Application for a Construction Permit
(1) III.B.2
    The phrase ``or alternate forms required by the division'' was 
added to this section to give owners or operators additional 
application form options, as described in Regulation 3, Part 
A.III.H.1.--General Construction Permits.
(2) III.I.2
    The term ``commence construction'' was replaced with the term 
``construct, operate.'' This revision clarifies that an owner or 
operator cannot operate a new or modified source until a general 
construction permit is received.

C. Additional Exemptions Repealed and Clarifications in Parts A, B and 
C

    (1) Part A, Section II.D.1.zzz and Part C, Section II.E.dddd 
contain exemptions from filing an APEN and operating permit for venting 
of natural gas lines for safety purposes. The revisions add that this 
exemption does not apply to ``routine or predictable emissions at or 
associated with a stationary source.''
    (2) The exemptions in Part A, Section II.D.1.uuu, Part B, Section 
II.D.1.m, Part C, Section II.E.3.uu and II.E.3.yyy are being revised to 
no longer exempt oil and gas production wastewater impoundments that 
contain less than 1 percent by volume crude oil on an annual average 
from APEN and reporting requirements.

III. Proposed Action

    Based on the above discussion, the EPA finds that the repealed and 
revised sections of Colorado's air permitting regulations outlined in 
Section II., as submitted by the State of Colorado on May 13, 2020, 
will not interfere with attainment or maintenance of any national 
ambient air quality standard (NAAQS) in the State and would not 
interfere with any other applicable requirement of the CAA. Thus, we 
are proposing to approve all SIP revisions in this proposed rulemaking, 
as the revisions to Parts A, B and C corresponding to APEN, 
construction permitting and operating permitting requirements do not 
exceed or differ from the requirements of the CAA or Federal 
regulations; in particular, as outlined below:
    (1) The statutory requirements under CAA section 110(a)(2)(c), 
which requires states to include a minor NSR program in their SIP to 
regulate modifications and new construction of stationary sources 
within the area as necessary to assure the NAAQS are achieved;
    (2) The regulatory requirements under 40 CFR 51.160, including 
Sec.  51.160(a), which require that the SIP include legally enforceable 
procedures that enable a state or local agency to determine whether 
construction or modification of a facility, building, structure or 
installation, or a combination of these will result in a violation of 
applicable portions of the control strategy; or interference with 
attainment or maintenance of a national standard in the state in which 
the proposed source (or modification) is located or in a neighboring 
state; Sec.  51.160(b), which requires states to have legally 
enforceable procedures to prevent construction or modification of a 
source if it would violate any SIP control strategies or interfere with 
attainment or maintenance of the NAAQS; and
    (3) The statutory requirements under CAA section 110(l), which 
provides that EPA cannot approve a SIP revision if the revision would 
interfere with any applicable requirement concerning attainment and 
reasonable further progress (RFP), or any other applicable requirement 
of the CAA. Therefore, EPA will approve a SIP revision only after a 
state has demonstrated that such a revision will not interfere 
(``noninterference'') with attainment of the NAAQS, RFP or any other 
applicable requirement of the CAA.
    EPA has determined that these revisions are approvable under CAA 
110(a)(2)(C), 40 CFR 51.160-164 and CAA section 110(l). Therefore, we 
are proposing to approve the revisions as submitted by the State of 
Colorado on May 13, 2020.

IV. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the revisions described in Section II. of this 
preamble. The EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 8 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

    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 
action merely proposes to approve 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions

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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 (Public Law 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 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the proposed 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, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

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

    Dated: March 18, 2022.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2022-06172 Filed 3-22-22; 8:45 am]
BILLING CODE 6560-50-P


