[Federal Register Volume 78, Number 173 (Friday, September 6, 2013)]
[Proposed Rules]
[Pages 54813-54816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21614]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0552; FRL-9900-67-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
Colorado; Construction Permit Program Fee Increases; Construction 
Permit Regulation of PM2.5; Regulation 3

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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[[Page 54814]]

SUMMARY: EPA proposes to approve the three State Implementation Plan 
(SIP) revision packages submitted by the State of Colorado on June 11, 
2008, June 18, 2009, and May 25, 2011. EPA is proposing to approve the 
June 11, 2008 and June 18, 2009 submittal revisions to Regulation 3, 
Part A, Section VI.D.1., in which the State, among other things, 
increased the construction permit processing fees. EPA proposes 
approval of Colorado's May 25, 2011 submittal, which addresses 
regulation of fine particulate matter (PM2.5) under 
Colorado's construction permit program. EPA also proposes to approve 
minor editorial changes to Regulation 3, Parts A, B, and D in the May 
25, 2011 submittal. This action is being taken under section 110 of the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before September 27, 
2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0552, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 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-
2013-0552. 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: Mark Komp, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6022, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows: The words or initials Act or CAA mean or 
refer to the Clean Air Act, unless the context indicates otherwise.

    (i) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (ii) The initials NAAQS mean or refer to national ambient air 
quality standards.
    (iii) The initials NSR mean or refer to New Source Review.
    (iv) The initials PM mean or refer to particulate matter.
    (v) The initials PM2.5 mean or refer to particulate 
matter with an aerodynamic diameter of less than 2.5 micrometers 
(fine particulate matter).
    (vi) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
    (vii) The initials SIP mean or refer to State Implementation 
Plan.
    (viii) The initials tpy mean or refer to tons per year.

Table of Contents

I. General Information
II. Background
III. EPA Analysis of State's Submittals
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for 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 on a disk or CD-ROM that you mail to 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, 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

[[Page 54815]]

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

    The State's June 11, 2008 and June 18, 2009 revisions, adopted on 
October 18, 2007 and September 18, 2008 respectively, contain fee 
increases in Part A, Section VI.D.1. of Regulation 3. The fee increases 
for processing construction permits reflect increased fees in Colorado 
Revised Statute Section 25-7-114.7.
    In the State's May 25, 2011 submittal, the State addressed 
requirements for regulation of PM2.5 in the State's 
construction permit program. In particular, Colorado included 
PM2.5 in the ``air pollutant'' and ``criteria pollutant'' 
definitions in Part A, Sections I.B.6 and I.B.16, and set 
PM2.5 permitting thresholds in Part B, Sections II.D.2 and 
II.D.3. Sources located in a nonattainment area for any criteria 
pollutant are exempt from obtaining a construction permit if the 
source's annual uncontrolled actual emissions of PM2.5 are 
less than one ton per year (tpy). In areas that are in attainment for 
all criteria pollutants, sources with uncontrolled actual emissions 
less than five tpy are exempt from construction permits.
    The State also made minor editorial changes throughout Regulation 
3, as documented in the May 25, 2011 submittal. Finally, the cover 
letter for the May 25, 2011 submittal indicated that the revision 
addressed the exclusion of ethanol production facilities from chemical 
process plants in the definition of major stationary source. However, 
as the submittal itself reflects, the State of Colorado did not submit 
the exclusion and instead deferred any decision on the exclusion until 
all relevant pending matters at the federal level are resolved.

III. EPA Analysis of State's Submittals

    The State's June 11, 2008 and June 18, 2009 revisions contained 
permitting fee increases in Part A, Section VI.D.1. of Regulation 3. 
The State increased its fees with the 2008 submittal to $17.97 per ton 
for regulated pollutants and $119.96 per ton for hazardous air 
pollutants. In the State's 2009 submittal, these fees were increased to 
$22.90 and $152.10, respectively. Section VI.D.1. also requires permit 
processing fees to be collected. We note that the Colorado Legislature 
increased the fees for permit processing in a 2008 bill that revised 
Colorado Revised Statute Section 25-7-114.7 as referenced in Section 
VI.D.1. We consider the new submittal to reflect these revised fees.
    Based on EPA's review of the submittals, it appears that Colorado 
intended to replace the first revision of fees appearing in the June 
11, 2008 with the June 18, 2009 submittal. Therefore, the latter 
revision supersedes the earlier revision. As of the day of the 2009 
submittal, the Colorado Legislature revised the fees in Colorado 
Revised Statute Section 25-7-114.7 as referenced in Section VI.D.1.
    However, both submittals contain increased emission fees that 
appear to be for the purpose of implementing and enforcing the State's 
Title V program. These emission fee increases are non-SIP regulatory 
fees and therefore any increases are outside the scope of the SIP 
revision process. Conversely, the permit processing fees, at least with 
respect to the processing of construction permits, are appropriate for 
approval into the SIP. See, CAA Section 110(a)(2)(L)(i). To the extent 
these fee increases impact processing of construction permits, EPA 
approves the increase.
    The May 25, 2011 submittal revised the definition of ``air 
pollutant'' in Part A of Regulation Number 3 to add PM2.5. 
Consistent with EPA's 2008 PM2.5 New Source Review (NSR) 
Implementation Rule (73 FR 28321), the submittal revised the definition 
of ``criteria pollutant'' in Part A to include PM2.5 and to 
recognize sulfur dioxide and nitrogen oxides as precursors to 
PM2.5. With these changes, PM2.5 and its 
precursors are regulated under Colorado's construction permit program 
in Part B of Regulation Number 3.\1\
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    \1\ On May 23, 2013 (78 FR 30830), we separately proposed 
approval of revisions to Colorado's Prevention of Significant 
Deterioration (PSD) program in Part D of Regulation Number 3 to 
address the requirements for PSD programs set out in the 2008 
PM2.5 NSR Implementation Rule, including recognition of 
PM2.5 precursors in the definition of ``regulated NSR 
pollutant.''
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    The State correspondingly revised Part B to reflect regulation of 
PM2.5. In particular, Colorado added emission thresholds 
below which sources of PM2.5 are exempt from construction 
permit requirements. In areas which are nonattainment for any criteria 
pollutant, facilities with total annual uncontrolled emissions of 
PM2.5 less than one ton per year (tpy) are exempt; in areas 
that are in attainment for all criteria pollutants, facilities with 
total annual uncontrolled emissions of PM2.5 less than five 
tpy are exempt. These levels are identical to the existing 
PM10 permit thresholds. The State also retained the existing 
thresholds for the pollutants identified as PM2.5 
precursors, sulfur dioxide and nitrogen oxides: five tpy in areas which 
are nonattainment for any criteria pollutants, and ten tpy in areas 
that are in attainment for all criteria pollutants.
    EPA proposes to approve these revisions to Parts A and B. In 
particular, we note that the revised construction permit program must 
be adequate to ensure that construction or modification of a stationary 
source will not interfere with attainment or maintenance of the 
PM2.5 standards. See 40 CFR 51.160(a)(2). A technical 
support document provided in the docket for this rulemaking reviews 
monitored PM2.5 design values in Colorado since 2001. As 
detailed in the document, with respect to the PM2.5 
standards, air quality in Colorado is generally good. Based on the 
combination of this air quality data and the particular threshold 
levels selected by Colorado, EPA proposes to approve the thresholds.
    In addition, in paragraph III.D.2 of Part B, which contains 
reasonably available control technology (RACT) requirements for certain 
new or modified minor sources, Colorado added sources of volatile 
organic compounds (VOCs). This responded to Colorado's previous removal 
of these sources, which would have relaxed the stringency of the SIP. 
As Colorado's reinstatement of VOC sources restores this provision to 
its previous state, we propose to approve the change.
    The cover letter to Colorado's May 25, 2011 submittal identified 
the specific regulations the State requested that EPA approve into the 
SIP, including minor editorial changes in Parts A, B, and D of 
Regulation 3. These Parts of Colorado's Regulation 3 address the 
State's permitting and PSD program. However, editorial changes were 
also made to Part C of the regulation. Part C is the State's Title V 
permitting program and is not part of the SIP. Since the State included 
these non-SIP regulatory changes in Part C, EPA is taking no action on 
them.

IV. What action is EPA taking?

    We have evaluated Colorado's June 11, 2008, June 18, 2009 and May 
25, 2011 submittals regarding revisions to the State's Regulation 3. We 
are proposing to approve the revisions. Specifically, we are proposing 
to approve the revision in the June 18, 2009 submittal to Regulation 3, 
Part A, Section VI.D.1. to the extent it increases construction permit 
processing fees as set forth in Colorado Revised Statute

[[Page 54816]]

Section 27-7-114.7. All other fee increases are outside the scope of 
this SIP revision action.
    We also propose to approve the revisions to Parts A and B of 
Regulation 3 in the May 25, 2011 submittal to approve the addition of 
PM2.5 to the definitions of ``air pollutant'' and ``criteria 
pollutant'' in Part A, and the revisions of Part B to reflect 
Colorado's regulation of PM2.5 in the State's construction 
permit program, including PM2.5 thresholds. We also propose 
to approve Colorado's reinstatement of VOC sources to RACT requirements 
in Part B. Finally, we propose to approve the minor editorial changes 
made throughout Regulation 3, Parts A, B, and D.

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, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves 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 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, 
Incorporation by reference, Intergovernmental relations, Greenhouse 
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 28, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-21614 Filed 9-5-13; 8:45 am]
BILLING CODE 6560-50-P