[Federal Register Volume 77, Number 131 (Monday, July 9, 2012)]
[Proposed Rules]
[Pages 40315-40317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16721]



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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.

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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remove repealed provisions in Regulation No. 3 that pertain to the 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: [email protected].
     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. 
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 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 [email protected].

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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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-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. 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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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]
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