[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Rules and Regulations]
[Pages 8632-8635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03114]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2013-0552, FRL-9903-94-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: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving two
State Implementation Plan (SIP) revision packages submitted by the
State of Colorado on June 18, 2009 and May 25, 2011. EPA approves the
June 18, 2009 submittal revisions, which supersede revisions submitted
on June 11, 2008, to Regulation 3, Part A, Section VI.D.1., regarding
construction permit processing fees. EPA approves Colorado's May 25,
2011 submittal, which addresses regulation of fine particulate matter
(PM2.5) under Colorado's construction permit program. EPA
also approves 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: This rule is effective March 17, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2013-0552. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through 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:
Table of Contents
I. Background Information
II. Response to Comments
III. EPA's Evaluation of Part D Revisions to Regulation Number 3
IV. Final Action
V. Statutory and Executive Orders Review
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 or initials APEN mean or refer to Air Pollution
Emission Notice.
(iii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iv) The initials SIP mean or refer to State Implementation Plan.
(v) The words State or Colorado mean the State of Colorado, unless
the context indicates otherwise.
(vi) The initials NAAQS mean or refer to national ambient air
quality standards.
(vii) The initials NSR mean or refer to New Source Review.
(viii) The initials PM mean or refer to particulate matter.
(ix) The initials PM2.5 mean or refer to particulate matter with an
aerodynamic diameter of less than 2.5 micrometers (fine particulate
matter).
(x) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(xi) The initials SIP mean or refer to State Implementation Plan.
(xii) The initials tpy mean or refer to tons per year.
I. Background Information
On September 6, 2013, 78 FR 76781, EPA published a notice of
proposed rulemaking (NPR) for action on certain SIP submittals by the
State of Colorado. The NPR proposed approval of revisions to Regulation
3, Part A, Section VI.D.1. to the extent the revisions reflect changes
to construction permit processing fees as set forth in Colorado Revised
Statute Section 27-7-114.7.
In addition, the NPR proposed to approve revisions to Parts A of
Regulation 3 to add PM2.5 to the definitions of ``air
pollutant'' and ``criteria pollutant,'' and to approve revisions to
Part B of Regulation 3 to regulate PM2.5 in the State's
construction permit program, including PM2.5 thresholds. We
also proposed to approve Colorado's reinstatement of volatile organic
compound (VOC) sources to reasonably available control technology
(RACT) requirements in Part B. Finally, minor editorial changes made
throughout Regulation 3, Parts A, B, and D were proposed for approval.
The formal SIP revisions were submitted by the State of Colorado on
June 11, 2008, June 18, 2009 and May 25, 2011. The State's June 11,
2008 and June 18, 2009 submittals 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
[[Page 8633]]
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. The 2009
submittal was adopted by the State on September 18, 2008 and became
effective on October 30, 2008.
EPA determined that both submittals contain increased emission fees
that appear to be for the purpose of implementing and enforcing the
State's Title V operating permit 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, with respect to the processing of construction permits, are
appropriate for approval into the SIP. (see, CAA Section
110(a)(2)(L)(i)). Therefore, we are approving the submitted provisions
only to the extent that they impose fees on processing of construction
permits.
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 September 23, 2013 (78 FR 58186), we approved revisions
to Colorado's 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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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. The State adopted the revisions
on February 21, 2008 and became effective on April 30, 2008. EPA
proposed to approve these revisions to Parts A and B.
In addition, in paragraph III.D.2 of Part B, which contains RACT
requirements for certain new or modified minor sources, Colorado added
sources of 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 proposed 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 Prevention of Significant Deterioration (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. EPA takes no action on these non-SIP regulatory
changes in Part C.
II. Response to Comments
EPA received no comments regarding our proposed approval of
Colorado's revisions to its Regulation 3.
III. EPA's Evaluation of Part D Revisions to Regulation Number 3
The May 25, 2011 submittal contains revisions to the Part D portion
of the State's Regulation 3 for major stationary sources subject to NSR
and PSD. As discussed in earlier notices regarding revisions to Part D
of Colorado's Regulation Number 3, for example 77 FR 1027 (Jan. 9,
2012), Colorado reorganized Regulation No. 3 in previous SIP
submissions by moving much of the previously approved language from
other sections of Regulation 3 into newly created Part D. The
submissions then incorporated EPA's December 31, 2002 NSR Reform rule
(67 FR 80186) into Part D, applying the reforms to both the State's PSD
and nonattainment NSR permit programs. In its submissions, Colorado
distinguished the revised language that incorporated NSR Reform from
the language for the existing PSD and NSR programs (as reorganized into
part D) by italicizing language that was to be added to the existing
programs and by underlining language that was to be removed from the
existing programs. Colorado's submissions indicated that the addition
of the italicized language and removal of the underlined language was
to become effective only after EPA approved those changes into
Colorado's SIP. The same convention regarding italicized and underlined
language applies to the May 25, 2011 submittal.
EPA completed its approval of Colorado's NSR Reform revisions on
April 10, 2012. 77 FR 21453. EPA also has also completed approval of
subsequent revisions to Part D that renumbered Part D to reflect the
removal of provisions that had been vacated or remanded by the U.S.
Court of Appeals for the District of Columbia. 78 FR 5140 (Jan. 24,
2013). As a result, the italicized language in Part D is effective and
the underlined language is removed. Our approval of editorial changes
to Part D reflects this. In addition, on September 23, 2013, EPA
approved more recent revisions to certain provisions in Part D. See 78
FR 58186 (Sept. 23, 2013). These provisions, addressing
PM2.5 precursors and increments, were submitted by Colorado
on May 11, 2012 and May 13, 2013, respectively. As those two submittals
were made after the May 25, 2011 submittal we are approving today, the
provisions we approved on September 23, 2013 already reflect and
supersede the editorial changes made to the corresponding provisions in
the State's May 25, 2011 submittal. We are therefore not reapproving
those provisions already approved in our September 23, 2013 action.
In addition, in a previous final rule regarding Regulation Number
3, 76 FR 61054 (Oct. 3, 2011), we partially disapproved Colorado's SIP
revisions for air pollutant emission notice (APEN) requirements and
exemptions. In a subsequent submittal, dated May 11, 2012, Colorado
repealed certain APEN provisions that we disapproved on October 3,
2011. As a result, we consider those provisions effectively withdrawn
from the May 25, 2011 submittal.
IV. Final Action
We are approving revisions to Regulation 3 as submitted on June 18,
2009, and May 25, 2011. EPA is approving permitting fee revisions in
the June 18, 2009 submittal to Part A, Section VI.D.1. of Regulation 3,
to the extent that the revisions apply to construction permits. The
June 18, 2009 submittal supersedes the June 11, 2008 submittal, which
also revised fee provisions.
The May 25, 2011 submittal revised the definition of ``air
pollutant'' in Part A of Regulation Number 3 to add PM2.5
and 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. The submittal also added
PM2.5 emission thresholds for exemptions from the
construction permit requirements in Part B. In areas which are
[[Page 8634]]
nonattainment for any criteria pollutant, facilities with total annual
uncontrolled emissions of PM2.5 less than one 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. 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.
In addition, in paragraph III.D.2 of Part B, which contains RACT
requirements for certain new or modified minor sources, Colorado added
sources of VOCs. EPA approves these revisions to Parts A and B.
The May 25, 2011 submittal included minor editorial changes in
Parts A, B, and D of Regulation 3. We are approving these changes. For
reasons discussed in the NPR, 78 FR 76871, EPA will not act on
editorial changes made to Part C of the regulation. Part C is the
State's Title V operating permit program and 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 USC 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 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 USC 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 USC 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 USC 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 14, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 8, 2013.
Howard M. Cantor,
Deputy Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart G--Colorado
0
2. Section 52.320 is amended by adding paragraph (c)(127) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(127) On June 11, 2008, June 18, 2009, and May 25, 2011 the State
of Colorado submitted revisions to 5 CCR 1001-5, Regulation 3, Parts A,
B, and D. The June 11, 2008 and June 18, 2009 submittals incorporated
changes to fee amounts which the State charges for the processing and
annual renewal of air emission permits. These fees support Colorado's
construction and operating permit programs. EPA is approving fees
submitted by the State on June 18, 2009, which superseded changes
submitted on June 11, 2008, to the extent that the fees support the
construction permit program. EPA is also approving revisions made to 5
CCR 1001-5, Regulation 3, Parts A, B, and D submitted by the State on
May 25, 2011 for Parts A, B and D.
(i) Incorporation by reference.
(A) 5 CCR 1001-5, Regulation Number 3, Stationary Source Permitting
and Air Pollutant Emission Notice Requirements, Part A, Concerning
General Provisions Applicable to Reporting and Permitting, VI. Fees,
VI.D. Fee Schedule, VI.D.1.; adopted September 18, 2008 and effective
October 30, 2008.
(B) 5 CCR 1001-5, Regulation Number 3, Stationary Source Permitting
and Air Pollutant Emission Notice Requirements, Part A, Concerning
General Provisions Applicable to Reporting and Permitting, except
Section II., Air Pollutant Emission
[[Page 8635]]
Notice (APEN) Requirements, II.D., Exemptions from Air Pollutant
Emission Notice Requirements, Section II.D.1.sss, II.D.1.ttt,
II.D.1.xxx, and II.D.1.ffff; and Section VI., Fees, VI.D., Fee
Schedule, VI.D.1., adopted February 21, 2008 and effective April 30,
2008.
(C) 5 CCR 1001-5, Regulation Number 3, Stationary Source Permitting
and Air Pollutant Emission Notice Requirements, Part B, Concerning
Construction Permits; adopted February 21, 2008 and effective April 30,
2008.
(D) 5 CCR 1001-5, Regulation Number 3, Stationary Source Permitting
and Air Pollutant Emission Notice Requirements, Part D, Concerning
Major Stationary Source New Source Review and Prevention of Significant
Deterioration; adopted February 21, 2008 and effective April 30, 2008:
(1) Excluding underlined text in Section II, Definitions, Section
II.A.1., Actual Emissions, II.A.1.a., II.A.1.c., and II.A.1.e.;
II.A.8., Best Available Control Technology (BACT), first paragraph;
II.A.20., Lowest Achievable Emissions Rate (LAER), II.A.20.b.;
II.A.22., Major Modification, introductory paragraph; II.A.24., Major
Stationary Source, II.A.24.b.; II.A.26., Net Emissions Increase,
II.A.26.a.(i) and II.A.26.g.(iii); II.A.40.5, Representative Actual
Annual Emissions, introductory paragraph and II.A.40.5(a); and, VI.
Requirements applicable to attainment and unclassifiable areas and
pollutants implemented under Section 110 of the Federal Act (Prevention
of Significant Deterioration Program), VI.A. Major Stationary Sources
and Major Modifications, VI.A.1., Control Technology Review, VI.A.1.c.;
and
(2) With the following exceptions: Section II, Definitions, Section
II.A.5., Baseline Area, II.A.5.a. and II.A.5.b.; Section II.A.23.,
Major Source Baseline Date; II.A.25., Minor Source Baseline Date,
II.A.25.a., II.A.25.b., introductory text, and II.A.25.b(i); II.A.38,
Regulated NSR Pollutant, II.A.38.c.; II.A.42., Significant, II.A.42.a.;
Section X, Air Quality Limitations, X.A., Ambient Air Increments,
X.A.1.
[FR Doc. 2014-03114 Filed 2-12-14; 8:45 am]
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