[Federal Register Volume 79, Number 8 (Monday, January 13, 2014)]
[Proposed Rules]
[Pages 2144-2146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00397]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 79, No. 8 / Monday, January 13, 2014 / 
Proposed Rules  

[[Page 2144]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0801; FRL-9905-24-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
Colorado; Prevention of Significant Deterioration; Greenhouse Gas 
Tailoring Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions and additions to the Colorado State Implementation 
Plan (SIP) submitted by the Colorado Department of Public Health and 
the Environment (CDPHE) to EPA on May 25, 2011. The proposed SIP 
revision to Colorado Regulation Number 3 and the Common Provisions 
Regulation addresses the permitting of sources of greenhouse gases 
(GHGs). Specifically, we propose to approve revisions to Portions of 
Parts A, B and D of Regulation Number 3 to incorporate the provisions 
of the Prevention of Significant Deterioration (PSD) and Title V 
Greenhouse Gas Tailoring Rule. The proposed SIP revisions establish 
emission thresholds for determining which new stationary sources and 
modifications to existing stationary sources become subject to 
Colorado's PSD permitting requirements for their GHG emissions. EPA is 
proposing to approve the May 25, 2011 SIP revision to the Colorado PSD 
permitting program as being consistent with federal requirements for 
PSD permitting. EPA also proposes to approve several grammar and 
punctuation changes to Regulation Number 3 made by the State and 
included in the May 25, 2011 submittal. EPA is proposing this action 
under the Clean Air Act (the Act or CAA).

DATES: Comments must be received on or before February 12, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0801, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the online 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: Carl Daly, Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop St., 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop St., 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-
2013-0801. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or email, if you believe that it is 
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means that 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 http://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 along with any disk or CD-ROM 
submitted. 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 and any form of encryption and should 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.
    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 St., 
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: Jody Ostendorf, Air Program, Mailcode 
8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
St., Denver, Colorado 80202-1129, (303) 312-7814, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. Information is organized as 
follows:

Table of Contents

I. Background for Our Proposed Action
II. History of EPA's GHG-Related Actions
III. EPA's Analysis of the State's Submittal
IV. Proposed Action
V. Statutory and Executive Orders Review

I. Background for Our Proposed Action

    CAA section 110(a)(2)(C) requires states to develop and submit to 
EPA for approval into the state SIP preconstruction review and 
permitting programs applicable to certain new and modified stationary 
sources of air pollutants. There are three separate programs: PSD, 
Nonattainment New Source Review (NNSR), and Minor NSR. The PSD program 
is established in part

[[Page 2145]]

C of title I of the CAA and applies in areas that meet the National 
Ambient Air Quality Standards (NAAQS)--``attainment areas''--as well as 
areas where there is insufficient information to determine if the area 
meets the NAAQS--``unclassifiable areas.'' The NNSR program is 
established in part D of title I of the CAA and applies in areas that 
are not in attainment of the NAAQS--``nonattainment areas.'' The Minor 
NSR program (1) addresses construction or modification activities that 
do not emit, or have the potential to emit, beyond certain major source 
thresholds and thus do not qualify as ``major,'' and (2) applies 
regardless of the designation of the area in which a source is located. 
EPA regulations governing the criteria that states must satisfy for EPA 
approval of the NSR programs as part of the SIP are contained in 40 CFR 
51.160-51.166.
    On May 25, 2011, Colorado submitted revisions for approval by EPA 
into the Colorado SIP, including some regulations specific to the 
Colorado NSR PSD permitting program. For Part A, General Provisions 
Applicable to Reporting and Permitting, the State added new definitions 
of GHGs and carbon dioxide equivalent (CO2e), incorporating 
by reference EPA's global warming potential (GWP) codified via the GHG 
Mandatory Reporting Rule (Sections I.B.10 and I.B. 23); revise the 
major source definition so that it applies to regulated NSR pollutants 
(which includes GHGs) as well as to air pollutants (which does not 
include GHG), so that GHG is addressed and the definition may be used 
to establish the mass-based GHG threshold (Section I.B.25.b); and 
revise annual emission fees to exclude GHGs (Section VI.D). The 
submittal also adds to Part A a new definition of Subject to Regulation 
consistent with the ``PSD and Title V Greenhouse Gas Tailoring Final 
Rule'' (75 FR 31514, June 3, 2010) hereafter referred to as the 
``Tailoring Rule'' (Section I.B.44). The new definition of Subject to 
Regulation includes a rescission clause which states, ``If there is a 
change in federal law or the District of Columbia Circuit Court of 
Appeals or the United States Supreme Court directs or issues an order, 
which limits or renders ineffective the regulation of GHG emissions at 
stationary sources under the NSR PSD or Title V provisions of the 
Federal Act, the regulation of GHG emissions under the corresponding 
programs in this Regulation Number 3 shall be limited or rendered 
ineffective to the same extent'' (Section I.B.44.f). EPA interprets 
this clause to mean, 1) Colorado will wait for EPA's timely 
interpretation of a Court action; and, 2) Colorado will provide public 
notice of any rescission, based on a letter of clarification submitted 
to EPA on December 12, 2013.
    In Part B, Construction Permits, the SIP revises the general 
permitting requirements to authorize the issuance of synthetic minor 
permits for GHGs if stationary sources choose to seek federally 
enforceable limits for GHGs, if they would otherwise be subject to PSD 
or Title V permitting programs (Section II.A.4 and II.A.7). In Part D, 
Major Stationary Source New Source Review (NSR) and Prevention of 
Significant Deterioration (PSD), the SIP revises the Definitions of 
``best available control technology'' (BACT), ``major modification'' 
and ``major stationary source'' to use the term ``regulated NSR 
pollutant'' for consistency with the Tailoring Rule (Sections II.A.8, 
II.A.22, II.A.24.a, II.A.24.a.(ii) and II.A.24.b); and revise ``NSR 
Pollutant'' to be consistent with EPA's Tailoring Rule (Section 
II.A.38.e and II.A.38.f).
    The SIP also added definitions to Section I.G. of the Common 
Provisions Regulation to include ``greenhouse gas'' and 
``CO2e,'' to be consistent with the federal definitions. 
Grammatical and punctuation changes to Regulation Number 3 were made by 
the State throughout Regulation Number 3 as documented in the May 25, 
2011 submittal.
    These revisions (1) establish that GHG is a regulated pollutant 
under Colorado's NSR PSD program, and (2) establish emission thresholds 
for determining which new stationary sources and modification projects 
become subject to Colorado's NSR PSD permitting requirements for their 
GHG emissions consistent with the Tailoring Rule. Today's proposed 
action presents our rationale for approving these regulations as 
meeting the minimum federal requirements for the adoption and 
implementation of NSR PSD SIP permitting programs.

II. History of EPA's GHG-Related Actions

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for this action. Please see the preambles 
for the identified GHG-related rulemakings for more information.
    Beginning in 2010, EPA undertook a series of actions pertaining to 
the regulation of GHGs that established the overall framework for 
today's proposed action on the Colorado SIP. These actions include, as 
they are commonly called, the ``Endangerment Finding'' and ``Cause or 
Contribute Finding,'' which EPA issued in a single final action,\1\ the 
``Johnson Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' 
\3\ and the ``Tailoring Rule.'' \4\ Taken together and in conjunction 
with the CAA, these actions established regulatory requirements for 
GHGs emitted from new motor vehicles and new motor vehicle engines; 
determined that such regulations, when they took effect on January 2, 
2011, subjected GHGs emitted from stationary sources to PSD 
requirements; and limited the applicability of PSD requirements to GHG 
sources on a phased-in basis. EPA took this last action in the 
Tailoring Rule, which, more specifically, established appropriate GHG 
emission thresholds for determining the applicability of PSD 
requirements to GHG-emitting sources.
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    \1\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \2\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \4\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    At the same time, EPA recognized that many states had approved SIP 
PSD programs that do apply PSD to GHGs, but that do so for sources that 
emit as little as 100 or 250 tons per year (tpy) of GHG, and that do 
not limit PSD applicability to GHGs to the higher thresholds in the 
Tailoring Rule. Therefore, EPA issued the GHG PSD SIP Narrowing 
Rule,\5\ under which, EPA converted its previous full approval of the 
affected SIPs, including Colorado's, to a partial approval and partial 
disapproval, to the extent those SIPs covered GHG-emitting sources 
below the Tailoring Rule thresholds. EPA based its action primarily on 
the ``error correction'' provisions of CAA section 110(k)(6). Many of 
those states have since submitted SIP revisions that have established 
the Tailoring Rule thresholds, and EPA has approved those SIP revisions 
and rescinded the partial disapprovals.
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    \5\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting Sources 
in State Implementation Plans,'' 75 FR 82536 (December 30, 2010).
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III. EPA's Analysis of the State's Submittal

    These revisions to Colorado's SIP are necessary because without 
them, and notwithstanding the GHG PSD SIP Narrowing Rule, PSD 
requirements would apply, as of January 2, 2011, at

[[Page 2146]]

the 100- or 250-tpy levels provided under the CAA. This would greatly 
increase the number of required permits, impose undue costs on small 
sources and overwhelm Colorado's permitting program. The May 25, 2011 
proposed revisions establish thresholds for determining which 
stationary sources and modification projects become subject to 
permitting requirements for GHG emissions under Colorado's NSR PSD 
program. Colorado is currently a SIP-approved state for the PSD 
program, and has incorporated EPA's 2002 NSR reform revisions for PSD 
into its SIP.
    Colorado has adopted and submitted regulations that are 
substantively similar to the federal requirements for the permitting of 
GHG-emitting sources subject to PSD. The revisions incorporate the 
Tailoring Rule into Colorado's PSD Permitting Programs, and support 
synthetic minor permitting at stationary sources seeking federally 
enforceable limits to avoid major source or major stationary source 
applicability thresholds specific to GHG. The State revisions add the 
definitions of GHG, CO2e and subject to regulation, revise 
the definitions of major source and regulated pollutant, allow for 
synthetic minor source permitting and make the Tailoring Rule effective 
January 2, 2011. We propose to conclude that the revisions are 
consistent with the requirements of 40 CFR 51.166, in particular 
requirements set out in EPA's final GHG Tailoring Rule, and that the 
revisions should be approved into Colorado's SIP.
    The cover letter to Colorado's May 25, 2011 submittal identified 
the specific regulations the State requested that EPA approve into the 
SIP including grammatical and capitalization changes. The State made 
these minor changes to Parts A, B, and D of Regulation Number 3. These 
Parts of Colorado's Regulation Number 3 address the State's permitting 
and PSD program. However, grammatical changes were also made to Part C 
of the regulation. Part C is the State's Title V permitting program 
that is not part of the SIP. Since the State included these non-SIP 
regulatory changes, EPA is taking no action on changes made to Part C.

IV. Proposed Action

    EPA proposes to approve the May 25, 2011 submittal for 
incorporation into the SIP. Specifically, EPA proposes to approve 
revisions to Regulation Number 3 Parts A, B and D and the Common 
Provisions Regulation. EPA has made the preliminary determination that 
these May 25, 2011 revisions are approvable because they were adopted 
and submitted in accordance with the CAA and EPA regulations regarding 
PSD permitting for GHGs.
    Minor grammatical and capitalization changes made throughout the 
May 25, 2011 revisions are proposed for approval. These include minor 
changes to all sections to the following provisions in Regulation 
Number 3, Part A, Part B, and Part D. The changes do not revise the 
regulatory language in Regulation Number 3 and are, therefore, proposed 
for approval without reference. We are not acting on grammatical 
revisions to Part C of Regulation Number 3 since this is the State's 
Title V operating permit program and it is not part of the SIP.

V. Statutory and Executive Orders Review

    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 action merely approves state law that meets federal 
requirements and disapproves state law that does not meet federal 
requirements; when finalized, this action would 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, and 
Volatile organic compounds.

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

    Dated: December 20, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2014-00397 Filed 1-10-14; 8:45 am]
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