[Federal Register Volume 84, Number 40 (Thursday, February 28, 2019)]
[Proposed Rules]
[Pages 6732-6736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03545]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2018-0593; FRL-9989-63-Region 8]
Approval and Promulgation of Air Quality Implementation Plans;
Colorado; Revisions to Regulation Number 3
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
approval of State Implementation Plan (SIP) revisions submitted by the
State of Colorado on February 25, 2015. We are also proposing approval
of two SIP revisions submitted by the State of Colorado on May 24,
2017. These SIP revisions are necessary for Colorado to incorporate
current federal prevention of significant deterioration (PSD) and
nonattainment new source review (N-NSR) regulations. The intended
effect of this action is to strengthen Colorado's SIP. The EPA is
taking this action pursuant to section 110 of the Clean Air Act (CAA).
DATES: Written comments must be received on or before April 1, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2018-0593, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.regulations.gov. The EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
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. The 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, EPA, Region
8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado, 80202-1129,
(303) 312-6227, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
On February 25, 2015, the State of Colorado submitted SIP revisions
to Colorado Air Quality Control Commission Regulation Number 3. On
October 12, 2017 (82 FR 47380), the EPA finalized approval of portions
the February 25, 2015 submittal, specifically: (1) Colorado's revisions
to fine particulate matter (PM2.5) significant impact level
(SIL) and significant monitoring concentration (SMC) provisions; (2)
Revisions to Colorado's air pollution emission notices; and (3)
Revisions to public notice requirements located in Regulation Number 3,
Part B. Therefore, we do not need to take action on these portions of
Colorado's February 25, 2015 submittal since they were acted on
[[Page 6733]]
previously. In addition, we are not acting on revisions to Regulation
Number 3, Part C (concerning operating permits) because it is not part
of the SIP. The remaining portions of the February 25, 2015 submittal
include revisions to the state's PSD program, in particular the
definitions of CO2e and regulated NSR pollutant, and the addition of
plantwide applicability limit (PAL) provisions for GHGs. We describe
these revisions and related EPA rulemakings in detail in the next
section.
On March 24, 2017, the State of Colorado submitted two sets of SIP
revisions to Colorado Air Quality Control Commission Regulation Number
3. The first submittal pertains to the June 23, 2014, U.S. Supreme
Court decision in Utility Air Regulatory Group (UARG) v. EPA. The
second addresses nonattainment NSR applicability in (among other
things) ozone nonattainment areas that have been classified or
reclassified as serious, severe, or extreme. We also describe these
revisions and related EPA rulemakings in detail in the next section.
II. Analysis of Submittals
February 25, 2015 Submittal
Revisions to the Definition of CO2e
On November 29, 2013, the EPA published a final rulemaking titled:
``2013 Revisions to the Greenhouse Gas Reporting Rule (Rule) and Final
Confidentiality Determinations for New or Substantially Revised Data
Elements'' (78 FR 71904). In 87 FR 71904, the EPA amended the Rule's
table of global warming potentials (GWPs) to revise the values of
certain greenhouse gases, which are codified in 40 CFR part 98, subpart
A, Table A-1, (Part 98). Part 98 was initially promulgated on October
31, 2009 (74 FR 56260) and requires reporting of GHG's from certain
facilities and suppliers. In this action, Colorado is updating its
definition of CO2e to incorporate the applicable GWPs in Part 98 in
effect as of November 29, 2013. The State's amendment is consistent
with the EPA's regulations and we propose to approve the updated
definition.
Revisions to the Definition of Regulated NSR Pollutant
In this action, Colorado is updating its definition of ``Regulated
NSR Pollutant'' in response to an October 25, 2012 rulemaking by the
EPA titled: ``Implementation of New Source Review (NSR) Program for
Particulate Matter less than 2.5 micrometers (PM2.5):
Amendment to the definition of `Regulated NSR Pollutant' Concerning
Condensable Particulate Matter (77 FR 65107).'' In that rulemaking, the
EPA removed a general requirement in the definition of ``Regulated NSR
Pollutant'' to include condensable particulate matter (PM) when
measuring one of the emission-related indicators for PM known as
``particulate matter emissions'' in the context of PSD and NSR
regulations. The rulemaking did not change the requirement for
measurement of condensable PM for two other emissions-related
indicators for emissions of PM particles with an aerodynamic diameter
of less than or equal to 10 micrometers (PM10 emissions) and
PM2.5 emissions. The update to Colorado's definition of
``Regulated NSR Pollutant'' is consistent with the EPA's October 25,
2012 rulemaking and we therefore propose to approve it.
Colorado is also revising its definition of ``Regulated NSR
Pollutant'' with regards to GHGs. The EPA defines ``Regulated NSR
Pollutant'' to include any pollutant subject to any standard
promulgated under the Clean Air Act Section 111. Colorado's revised
definition of ``Regulated NSR Pollutant'' excludes, for the purposes of
the definition, GHG from being considered as subject to any standard
promulgated under the Clean Air Act Section 111. The State notes that
GHGs continue to be a regulated NSR pollutant under the next portion of
the definition, as a ``pollutant subject to regulation.'' Colorado's
revision stems from their concern that the EPA did not revise the
definition of ``Regulated NSR pollutant'' when promulgating CAA section
111(b) standards (known as New Source Performance Standards) for GHG
emissions from new, modified, and reconstructed electric utility
generating units. See 80 FR 64510 (Oct. 23, 2015). We note that the
October 23, 2015 action addressed this by promulgating 40 CFR 60.5515,
which clarifies the meaning within the PSD definition ``regulated NSR
pollutant'' of the phrase ``subject to any standard promulgated under
section 111 of the Act'' for GHGs. Colorado's revision achieves the
same result with respect to the NSPS for electric utility generating
units. We therefore propose to approve it.
GHG PALs
On July 12, 2012, the EPA published a final rulemaking titled
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule Step 3 and GHG Plantwide Applicability Limits'' (77 FR
41051.) This rulemaking represented Step 3 of the EPA's phased-in
approach to permitting sources of GHG emissions as stated in the GHG
Tailoring Rule. The rulemaking promulgated revisions to the federal PSD
program in 40 CFR 52.21 for better implementation of the GHG Tailoring
Rule by providing for PALs for GHG emissions. A PAL establishes a site-
specific plantwide emission level for a pollutant that allows the
source to make changes at the facility without triggering the
requirements of the PSD program, provided that emissions do not exceed
the PAL level. 77 FR 41051, 41052. This streamlining approach provides
for the use of GHG PALs on either a mass (tons per year) or CO2e basis,
which includes the option to use the CO2e based increases provided in
the subject to regulation applicability thresholds in setting the PAL,
and to allow the PALs to be used as an alternative approach for
determining whether a project is a major modification and whether GHG
emissions are subject to regulation.
The EPA did not adopt the changes into the regulations for state
PSD programs, 40 CFR 51.166, because the changes were not minimum
requirements that must be adopted by states in their SIP-approved PSD
programs. However, we noted that nothing in the rulemaking was intended
to prevent states from adopting the PAL changes in 40 CFR 52.21. into
their approved PSD programs. 77 FR 41070.
On April 24, 2014, the EPA approved PSD revisions submitted by the
State of Colorado that establish: (1) GHG emissions are a regulated
pollutant under Colorado's NSR PSD program, and (2) 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. (79 FR 22772.)
Colorado's February 25, 2015 submittal requests to revise its PSD
permitting regulations to correspond to PAL revisions in the EPA's July
12, 2012 rulemaking. Colorado is revising its Part A (General
Provisions Applicable to Reporting and Permitting) and Part D (Major
Stationary Source New Source Review and Prevention of Significant
Deterioration) regulations to incorporate GHG PALs on either a mass
basis or a CO2e basis for existing major PSD sources, or any existing
GHG-only source. These revisions would allow, among other things, that
GHGs shall not be subject to regulation if a stationary source
maintains its total source-wide emissions below the GHG PAL level,
meets the requirements in Part D, and complies with the PAL permit
containing the GHG PAL.
Colorado's incorporation of GHG PALs still applies to determining
[[Page 6734]]
whether sources are subject to regulatory emission thresholds in
setting the PAL, and in allowing the PALs to be used as an alternative
approach for determining whether a project is a major modification and
whether GHG emissions are subject to regulation for ``anyway'' sources.
Based on our review, we propose to find that Colorado's revisions
are consistent with the EPA's PAL regulations. The docket for this
action contains a crosswalk between the revisions in Colorado's May 24,
2017 submittal and the PAL provisions in 40 CFR 52.21 as revised in the
EPA's July 12, 2012 rulemaking. The crosswalk shows that Colorado has
essentially adopted the GHG PAL revisions unchanged, as suggested by
the preamble to the July 12, 2012 rulemaking.
May 24, 2017 Submittal
Revisions to Regulation Number 3, Part A
On June 3, 2010, the EPA published a final rule, known as the GHG
Tailoring Rule, which phased in permitting requirements for GHG
emissions from stationary sources under the CAA PSD permitting program
in three steps (75 FR 31514.) Under its interpretation of the CAA at
the time, the EPA determined it was necessary to avoid an unmanageable
increase in the number of sources that would be required to obtain PSD
permits under the CAA because the sources emitted or had the potential
to emit GHGs above the applicable major source and major modification
thresholds. In Step 1 of the GHG Tailoring Rule, the EPA limited
application of PSD requirements to sources only if they were subject to
PSD ``anyway'' due to the emissions of other non-GHG pollutants. These
sources were referred to as ``anyway'' sources. In Step 2 of the GHG
Tailoring Rule, the EPA applied the PSD permitting requirements under
the CAA to sources that were classified as major based solely on their
GHG emissions or potential to emit GHGs, and to modifications of
otherwise major sources that require a PSD permit because they
increased only GHG emissions above the level in the EPA regulations.
On June 23, 2014, the United States Supreme Court addressed the
application of PSD permitting requirements to GHG emissions. Utility
Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427
(2014). The Supreme Court held that the EPA may not treat GHGs as an
air pollutant for purposes of determining whether a source is a major
source required to obtain a PSD permit. The Court also held that the
EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs (anyway sources),
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F.
App'x. 6, at *7-8 (DC Cir. April 10, 2015), issued an amended judgment
vacating the regulations that implemented Step 2 of the EPA's PSD and
Title V Greenhouse Gas Tailoring Rule. Step 2 applied to sources that
emitted only GHGs above the thresholds triggering the requirement to
obtain a PSD permit. The amended judgment preserves, without the need
for additional rulemaking by the EPA, the application of the BACT
requirement to GHG emissions from Step 1 or ``anyway sources.'' With
respect to Step 2 sources, the D.C. Circuit's amended judgment vacated
the regulations at issue in the litigation, including 40 CFR
51.166(b)(48)(v) and 52.21(b)(49)(v) ``to the extent they require a
stationary source to obtain a PSD permit if greenhouse gases are the
only pollutant (i) that the source emits or has the potential to emit
above the applicable major source thresholds, or (ii) for which there
is a significant emission increase from a modification.''
In accordance with the D.C. Circuit's amended judgment, on August
19, 2015, the EPA published a final rulemaking titled: ``Prevention of
Significant Deterioration and Title V Permitting for Greenhouse Gases:
Removal of Vacated Elements.'' In this rulemaking, the EPA removed GHG
Tailoring Rule Step 2 PSD permitting requirements in 40 CFR
51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v) from the CFR.
In response to the court's decision and the subsequent EPA
rulemaking, the May 24, 2017 submittal revises the definition of
``subject to regulation'' by removing Regulation 3, Part A, Section
I.B.44.e. from the regulation. The removal is consistent with the EPA's
revised definition of ``subject to regulation''; we therefore propose
to approve it.
Revisions to Regulation Number 3, Part D
Colorado is revising their definition of ``major stationary
source'' contained in Regulation Number 3, Part D, Section II, the
nonattainment NSR program, to include the ozone nonattainment area
major source thresholds. This revision is consistent with the federal
definition for ``major stationary source'' located in 40 CFR
51.165(a)(1)(iv)(A)(1). Colorado's current definition of ``major
stationary source'' does not contain thresholds for determining what is
a major source based on ozone nonattainment area classification. Thus,
if an ozone nonattainment area were ever classified, or reclassified as
serious, severe, or extreme, Colorado would need to adopt the same
lower major source thresholds that would apply on a federal basis
before permitting new or modified sources. Therefore, should a Colorado
moderate ozone nonattainment area ever be reclassified to a more
stringent classification, this revision to the definition of ``major
stationary source'' ensures consistency with the federal definition and
provides regulatory certainty if Colorado's ozone nonattainment area
should ever be reclassified. We propose to approve these changes as
they are consistent with the EPA's regulation.
Colorado is also revising their definition of ``major emissions
unit'' in the PAL provisions for the PSD program. The federal
definition for ``major emissions unit'' located in 40 CFR
51.166(w)(2)(iv)(b) contains both a meaning of the phrase and an
example of when an emissions unit would be a major emissions unit for
volatile organic compounds (VOC) if the emissions unit were located in
a serious ozone nonattainment area. The revision removes the example
from Colorado's provision. We propose to approve this change to the SIP
because the state has updated the definition of ``major stationary
source'' in the nonattainment NSR program to reflect the thresholds for
serious, severe, and extreme ozone nonattainment areas, and the first
part of Colorado's definition for ``major emissions unit'' refers to
this updated definition.
Colorado is also revising their definition of ``significant'' in
the nonattainment NSR program. Currently, Colorado's definition of
``significant'' does not contain emissions rates pertaining to serious,
severe, or extreme ozone nonattainment areas. Colorado's revision to
their definition of ``significant'' is consistent with the serious,
severe, or extreme ozone thresholds located in 40 CFR 51.165(a)(1)(x).
The EPA proposes to approve this change.
III. What are the changes that EPA is proposing to approve?
Except for the revisions the EPA acted on previously in 82 FR
47380, we are
[[Page 6735]]
proposing to approve all of the changes as submitted by the State of
Colorado on February 25, 2015, and May 24, 2017, as outlined in Tables
1 and 2 below.
Table 1--List of February 2015 Colorado Revisions That EPA Is Proposing
To Approve
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Revised sections in February 25, 2015 submission proposed for approval
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Regulation Number 3, Part A:
I.B.10, I.B.23., I.B.25.c., I.B.28, I.B.28.e., I.B.43., I.B.44.b.,
I.B.44.c., I.B.44.e., V.C.6-8., V.C.12., V.I.1.
Regulation Number 3, Part B:
N/A.
Regulation Number 3, Part C:
N/A.
Regulation Number 3, Part D:
I.A.2., I.A.3., I.B.1., I.B.2., I.B.3., I.C., II.A.1.d., II.A.2,
II.A.4., II.A.4.e.-f., II.A.5.c.,II.A.13.a., II.A.13.a.(i)-(ii),
II.A.13.b., II.A.13.b.(i)-(ii), II.A.16.-22., II.A.22.a-c.,II.A.23-
31., II.A.32-35, II.A.36-39, .., , II.A.40.a.-c., II.A.40.d,
II.A.40.e.-g., II.A.41-45.,., II.A.46, II.A.46.a-b, II.A.47,
II.A.47.a-b, II.A.48, V.A.3.c, V.A.7.c., V.A.7.c.(i)(C).,
V.A.7.c.(v)., VI.A.6.,VI.B.5., VI.B.5.a.(iii).,VI.B.5.e.; XV.A.1.;
XV.A.2.; XV.A.2.c-d; XV.A.3; XV.B; XV.B.1; XV.B.4.; XV.C.1.;
XV.C.1.a.; XV.C.1.d.; XV.C.1.g; XV.D.; XV.E.1.; XV.E.4; XV.E.6.;
XV.E.6.a.; XV.E.6.b; XV.E.6.c.; XV.F.; XV.F.1.; XV.F.3.; XV.F.5.;
XV.F.6.; XV.F.7.; XV.F.11; XV.G.2.b.; XV.H.1.a.; XV.H.4.; XV.H.5.;
XV.I.1.; XV.I.2.; XV.I.4.c.(i)-(ii); XV.J.1.; XV.J.1.a.; XV.J.1.b.;
XV.K.1.a: XV.N.1.b; XV.N.1.d.; and XV.N.2.
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Table 2--List of May 2017 Colorado Revisions That EPA Is Proposing To
Approve
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Revised sections in May 24, 2017 submissions proposed for approval
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Regulation Number 3, Part A:
I.B.44.e.
Regulation Number 3, Part B:
N/A.
Regulation Number 3, Part C:
N/A.
Regulation Number 3, Part D:
II.A.22.b II.A.25.b; II.A.44.a.
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IV. Incorporation by Reference
In this document, the EPA is proposing to include in a final EPA
rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference the amendments described in section III. The
EPA has made, and will continue to make, these materials generally
available through www.regulations.gov and at the EPA Region 8 Office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this preamble for more information).
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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 the 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the proposed rule does not have tribal implications and
will not impose substantial direct costs on tribal governments or
preempt tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
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.
Authority: 42 U.S.C. 7401 et seq.
[[Page 6736]]
Dated: February 22, 2019.
Douglas Benevento,
Regional Administrator, EPA Region 8.
[FR Doc. 2019-03545 Filed 2-27-19; 8:45 am]
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