[Federal Register Volume 79, Number 8 (Monday, January 13, 2014)]
[Proposed Rules]
[Pages 2144-2146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00397]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 79, No. 8 / Monday, January 13, 2014 /
Proposed Rules
[[Page 2144]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2013-0801; FRL-9905-24-Region 8]
Approval and Promulgation of Air Quality Implementation Plans;
Colorado; Prevention of Significant Deterioration; Greenhouse Gas
Tailoring Rule Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions and additions to the Colorado State Implementation
Plan (SIP) submitted by the Colorado Department of Public Health and
the Environment (CDPHE) to EPA on May 25, 2011. The proposed SIP
revision to Colorado Regulation Number 3 and the Common Provisions
Regulation addresses the permitting of sources of greenhouse gases
(GHGs). Specifically, we propose to approve revisions to Portions of
Parts A, B and D of Regulation Number 3 to incorporate the provisions
of the Prevention of Significant Deterioration (PSD) and Title V
Greenhouse Gas Tailoring Rule. The proposed SIP revisions establish
emission thresholds for determining which new stationary sources and
modifications to existing stationary sources become subject to
Colorado's PSD permitting requirements for their GHG emissions. EPA is
proposing to approve the May 25, 2011 SIP revision to the Colorado PSD
permitting program as being consistent with federal requirements for
PSD permitting. EPA also proposes to approve several grammar and
punctuation changes to Regulation Number 3 made by the State and
included in the May 25, 2011 submittal. EPA is proposing this action
under the Clean Air Act (the Act or CAA).
DATES: Comments must be received on or before February 12, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0801, by one of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Email: [email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Carl Daly, Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop St.,
Denver, Colorado 80202-1129.
Hand Delivery: Carl Daly, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop St., Denver, Colorado 80202-1129. Such deliveries are only
accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding
Federal holidays. Special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2013-0801. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or email, if you believe that it is
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means that EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment along with any disk or CD-ROM
submitted. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters and any form of encryption and should be free of any
defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St.,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Air Program, Mailcode
8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
St., Denver, Colorado 80202-1129, (303) 312-7814,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. Information is organized as
follows:
Table of Contents
I. Background for Our Proposed Action
II. History of EPA's GHG-Related Actions
III. EPA's Analysis of the State's Submittal
IV. Proposed Action
V. Statutory and Executive Orders Review
I. Background for Our Proposed Action
CAA section 110(a)(2)(C) requires states to develop and submit to
EPA for approval into the state SIP preconstruction review and
permitting programs applicable to certain new and modified stationary
sources of air pollutants. There are three separate programs: PSD,
Nonattainment New Source Review (NNSR), and Minor NSR. The PSD program
is established in part
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C of title I of the CAA and applies in areas that meet the National
Ambient Air Quality Standards (NAAQS)--``attainment areas''--as well as
areas where there is insufficient information to determine if the area
meets the NAAQS--``unclassifiable areas.'' The NNSR program is
established in part D of title I of the CAA and applies in areas that
are not in attainment of the NAAQS--``nonattainment areas.'' The Minor
NSR program (1) addresses construction or modification activities that
do not emit, or have the potential to emit, beyond certain major source
thresholds and thus do not qualify as ``major,'' and (2) applies
regardless of the designation of the area in which a source is located.
EPA regulations governing the criteria that states must satisfy for EPA
approval of the NSR programs as part of the SIP are contained in 40 CFR
51.160-51.166.
On May 25, 2011, Colorado submitted revisions for approval by EPA
into the Colorado SIP, including some regulations specific to the
Colorado NSR PSD permitting program. For Part A, General Provisions
Applicable to Reporting and Permitting, the State added new definitions
of GHGs and carbon dioxide equivalent (CO2e), incorporating
by reference EPA's global warming potential (GWP) codified via the GHG
Mandatory Reporting Rule (Sections I.B.10 and I.B. 23); revise the
major source definition so that it applies to regulated NSR pollutants
(which includes GHGs) as well as to air pollutants (which does not
include GHG), so that GHG is addressed and the definition may be used
to establish the mass-based GHG threshold (Section I.B.25.b); and
revise annual emission fees to exclude GHGs (Section VI.D). The
submittal also adds to Part A a new definition of Subject to Regulation
consistent with the ``PSD and Title V Greenhouse Gas Tailoring Final
Rule'' (75 FR 31514, June 3, 2010) hereafter referred to as the
``Tailoring Rule'' (Section I.B.44). The new definition of Subject to
Regulation includes a rescission clause which states, ``If there is a
change in federal law or the District of Columbia Circuit Court of
Appeals or the United States Supreme Court directs or issues an order,
which limits or renders ineffective the regulation of GHG emissions at
stationary sources under the NSR PSD or Title V provisions of the
Federal Act, the regulation of GHG emissions under the corresponding
programs in this Regulation Number 3 shall be limited or rendered
ineffective to the same extent'' (Section I.B.44.f). EPA interprets
this clause to mean, 1) Colorado will wait for EPA's timely
interpretation of a Court action; and, 2) Colorado will provide public
notice of any rescission, based on a letter of clarification submitted
to EPA on December 12, 2013.
In Part B, Construction Permits, the SIP revises the general
permitting requirements to authorize the issuance of synthetic minor
permits for GHGs if stationary sources choose to seek federally
enforceable limits for GHGs, if they would otherwise be subject to PSD
or Title V permitting programs (Section II.A.4 and II.A.7). In Part D,
Major Stationary Source New Source Review (NSR) and Prevention of
Significant Deterioration (PSD), the SIP revises the Definitions of
``best available control technology'' (BACT), ``major modification''
and ``major stationary source'' to use the term ``regulated NSR
pollutant'' for consistency with the Tailoring Rule (Sections II.A.8,
II.A.22, II.A.24.a, II.A.24.a.(ii) and II.A.24.b); and revise ``NSR
Pollutant'' to be consistent with EPA's Tailoring Rule (Section
II.A.38.e and II.A.38.f).
The SIP also added definitions to Section I.G. of the Common
Provisions Regulation to include ``greenhouse gas'' and
``CO2e,'' to be consistent with the federal definitions.
Grammatical and punctuation changes to Regulation Number 3 were made by
the State throughout Regulation Number 3 as documented in the May 25,
2011 submittal.
These revisions (1) establish that GHG is a regulated pollutant
under Colorado's NSR PSD program, and (2) establish emission thresholds
for determining which new stationary sources and modification projects
become subject to Colorado's NSR PSD permitting requirements for their
GHG emissions consistent with the Tailoring Rule. Today's proposed
action presents our rationale for approving these regulations as
meeting the minimum federal requirements for the adoption and
implementation of NSR PSD SIP permitting programs.
II. History of EPA's GHG-Related Actions
This section briefly summarizes EPA's recent GHG-related actions
that provide the background for this action. Please see the preambles
for the identified GHG-related rulemakings for more information.
Beginning in 2010, EPA undertook a series of actions pertaining to
the regulation of GHGs that established the overall framework for
today's proposed action on the Colorado SIP. These actions include, as
they are commonly called, the ``Endangerment Finding'' and ``Cause or
Contribute Finding,'' which EPA issued in a single final action,\1\ the
``Johnson Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,''
\3\ and the ``Tailoring Rule.'' \4\ Taken together and in conjunction
with the CAA, these actions established regulatory requirements for
GHGs emitted from new motor vehicles and new motor vehicle engines;
determined that such regulations, when they took effect on January 2,
2011, subjected GHGs emitted from stationary sources to PSD
requirements; and limited the applicability of PSD requirements to GHG
sources on a phased-in basis. EPA took this last action in the
Tailoring Rule, which, more specifically, established appropriate GHG
emission thresholds for determining the applicability of PSD
requirements to GHG-emitting sources.
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\1\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\2\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
\3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\4\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
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At the same time, EPA recognized that many states had approved SIP
PSD programs that do apply PSD to GHGs, but that do so for sources that
emit as little as 100 or 250 tons per year (tpy) of GHG, and that do
not limit PSD applicability to GHGs to the higher thresholds in the
Tailoring Rule. Therefore, EPA issued the GHG PSD SIP Narrowing
Rule,\5\ under which, EPA converted its previous full approval of the
affected SIPs, including Colorado's, to a partial approval and partial
disapproval, to the extent those SIPs covered GHG-emitting sources
below the Tailoring Rule thresholds. EPA based its action primarily on
the ``error correction'' provisions of CAA section 110(k)(6). Many of
those states have since submitted SIP revisions that have established
the Tailoring Rule thresholds, and EPA has approved those SIP revisions
and rescinded the partial disapprovals.
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\5\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting Sources
in State Implementation Plans,'' 75 FR 82536 (December 30, 2010).
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III. EPA's Analysis of the State's Submittal
These revisions to Colorado's SIP are necessary because without
them, and notwithstanding the GHG PSD SIP Narrowing Rule, PSD
requirements would apply, as of January 2, 2011, at
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the 100- or 250-tpy levels provided under the CAA. This would greatly
increase the number of required permits, impose undue costs on small
sources and overwhelm Colorado's permitting program. The May 25, 2011
proposed revisions establish thresholds for determining which
stationary sources and modification projects become subject to
permitting requirements for GHG emissions under Colorado's NSR PSD
program. Colorado is currently a SIP-approved state for the PSD
program, and has incorporated EPA's 2002 NSR reform revisions for PSD
into its SIP.
Colorado has adopted and submitted regulations that are
substantively similar to the federal requirements for the permitting of
GHG-emitting sources subject to PSD. The revisions incorporate the
Tailoring Rule into Colorado's PSD Permitting Programs, and support
synthetic minor permitting at stationary sources seeking federally
enforceable limits to avoid major source or major stationary source
applicability thresholds specific to GHG. The State revisions add the
definitions of GHG, CO2e and subject to regulation, revise
the definitions of major source and regulated pollutant, allow for
synthetic minor source permitting and make the Tailoring Rule effective
January 2, 2011. We propose to conclude that the revisions are
consistent with the requirements of 40 CFR 51.166, in particular
requirements set out in EPA's final GHG Tailoring Rule, and that the
revisions should be approved into Colorado's SIP.
The cover letter to Colorado's May 25, 2011 submittal identified
the specific regulations the State requested that EPA approve into the
SIP including grammatical and capitalization changes. The State made
these minor changes to Parts A, B, and D of Regulation Number 3. These
Parts of Colorado's Regulation Number 3 address the State's permitting
and PSD program. However, grammatical changes were also made to Part C
of the regulation. Part C is the State's Title V permitting program
that is not part of the SIP. Since the State included these non-SIP
regulatory changes, EPA is taking no action on changes made to Part C.
IV. Proposed Action
EPA proposes to approve the May 25, 2011 submittal for
incorporation into the SIP. Specifically, EPA proposes to approve
revisions to Regulation Number 3 Parts A, B and D and the Common
Provisions Regulation. EPA has made the preliminary determination that
these May 25, 2011 revisions are approvable because they were adopted
and submitted in accordance with the CAA and EPA regulations regarding
PSD permitting for GHGs.
Minor grammatical and capitalization changes made throughout the
May 25, 2011 revisions are proposed for approval. These include minor
changes to all sections to the following provisions in Regulation
Number 3, Part A, Part B, and Part D. The changes do not revise the
regulatory language in Regulation Number 3 and are, therefore, proposed
for approval without reference. We are not acting on grammatical
revisions to Part C of Regulation Number 3 since this is the State's
Title V operating permit program and it is not part of the SIP.
V. Statutory and Executive Orders Review
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law that meets federal
requirements and disapproves state law that does not meet federal
requirements; when finalized, this action would not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994). In addition,
this rule does not have tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not
approved to apply in Indian country located in the state, and EPA notes
that it will not impose substantial direct costs on tribal governments
or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides, and
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq
Dated: December 20, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2014-00397 Filed 1-10-14; 8:45 am]
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