[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.
------------------------------------------------------------------------

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.


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    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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