[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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