Proposed Rule2022-06172
Air Plan Approval; CO; Reg 3 NSR and APEN Updates
Primary source
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Published
March 23, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) revisions submitted by the State of Colorado on May 13, 2020. The revisions contain amendments to the State's New Source Review (NSR) permitting program and Air Pollution Emission Notices (APENs). The EPA is taking this action pursuant to the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 87 Issue 56 (Wednesday, March 23, 2022)</title>
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[Federal Register Volume 87, Number 56 (Wednesday, March 23, 2022)]
[Proposed Rules]
[Pages 16439-16442]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-06172]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2022-0103; FRL-9624-01-R8]
Air Plan Approval; CO; Reg 3 NSR and APEN Updates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve state implementation plan (SIP) revisions submitted by the
State of Colorado on May 13, 2020. The revisions contain amendments to
the State's New Source Review (NSR) permitting program and Air
Pollution Emission Notices (APENs). The EPA is taking this action
pursuant to the Clean Air Act (CAA).
DATES: Written comments must be received on or before April 22, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2022-0103, to the Federal Rulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://www.regulations.gov">www.regulations.gov</a>. 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 <a href="http://www2.epa.gov/dockets/commenting-epa-dockets">http://www2.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: All documents in the docket are listed in the
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 electronically in
<a href="http://www.regulations.gov">www.regulations.gov</a>. To reduce the risk of COVID-19 transmission, for
this action we do not plan to offer hard copy review of the docket.
Please email or call the person listed in the FOR FURTHER INFORMATION
CONTACT section if you need to make alternative arrangements for access
to the docket.
FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver,
Colorado, 80202-1129, telephone number: (303) 312-6227, email address:
<a href="/cdn-cgi/l/email-protection#701c151f1e155e1b1506191e301500115e171f06"><span class="__cf_email__" data-cfemail="325e575d5c571c5957445b5c725742531c555d44">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever
[[Page 16440]]
``we,'' ``us,'' or ``our'' is used, we mean the EPA.
I. Background
On May 13, 2020, the State of Colorado adopted and repealed
revisions to Regulation Number 3 (Stationary Source Permitting and Air
Pollution Emission Notice Requirements) Part A (Concerning General
Provisions Applicable to Reporting and Permitting), Part B (Concerning
Construction Permits) and Part C (Concerning Operating Permits.) The
revisions we are acting on are in Colorado's minor source permitting
program. The EPA is proposing to approve all of the revisions submitted
on May 13, 2020, with the exception of the revision to Part A, Section
II.A.2.a, which was not extended by the Colorado General Assembly and
expired effective May 15, 2021. As a result, this section is no longer
in Regulation Number 3. We received a letter from Colorado requesting
to withdraw this provision from the May 13, 2020 submittal on October
15, 2021 (See docket.) along with revisions to Appendix B (Non-Criteria
Reportable Pollutants), as they are not part of the SIP. We will also
not be acting on the revisions to Regulation Number 7, as they were
acted on in a separate action on November 5, 2021 (86 FR 61071).
The May 13, 2020 submittal contains the following revisions to
Regulation 3, Parts A, B and C:
1. Revises existing definitions and adds an existing definition
used in Regulation Number 7 (Control of Ozone via Ozone Precursors
and Hydrocarbons via Oil and Gas Emissions);
2. Updates the APEN reporting and permitting requirements for
oil and gas well production facilities;
3. Clarifies and narrows certain exemptions and repeal certain
exemptions related to oil and gas wastewater impoundments;
4. Revises the SIP to more closely align language with Colorado
Statutes;
5. Clarifies when transfer of ownership forms are due and where
the compliance responsibilities lie during the transfer process; and
6. Corrects typographical, grammatical and formatting errors
found throughout the regulations.
II. The EPA's Evaluation
A. Revisions to Regulation 3, Part A
I.--Applicability
(1) I.B.47
The definition of ``Well Production Facility'' is added. This is
approvable, as the definition already exists in Regulation Number 7,
I.B.30. This definition was added to Regulation Number 3 to promote
consistency throughout the State's permitting regulations. This
definition was previously referred to as the undefined term
``exploration and production.'' This revision meets the statutory and
regulatory requirements as outlined in Section III. below of this
proposed rulemaking.
(2) I.B.12
The definition of ``Commencement of Operation'' is revised. This
revision is approvable. The definition reflects that when permanent
equipment is on-site and operating, commencement of operation has
occurred, even if there is temporary equipment on-site. For example, if
a well is producing into one temporary tank and two permanent storage
tanks, the storage tanks have commenced operation for purposes of
Regulation Number 3. The revision separates the requirement from any
specific stage of well operation. The revised definition clarifies that
commencement of operation is not always determined by the transition of
well completion operations into startup of production as those terms
are defined in 40 CFR 60.5430a (subpart OOOOa). However, to ensure that
an operator cannot continue to produce into temporary tanks
indefinitely and thus avoid APEN reporting and permitting requirements,
this revision clarifies that the end of the flowback is the latest date
at which commencement of operation may occur.
This revision also ensures consistency across Colorado's State air
regulations, as the revised definition of ``commencement of operation''
in Regulation Number 3 is the same as the federally approved definition
of ``commencement of operation'' in Regulation Number 7, Part D, I.D.7.
II. Air Pollution Emission Notice Requirements
(1) II.A.1
This paragraph adds the phrase ``provided in Section II.A.2 below,
or as'' to reflect the addition of new paragraph II.A.2. Colorado has
withdrawn Section II.A.2 and, as a result, we are not taking action on
this revision.
(2) II.A.2.a
As mentioned in Section I. of this action, the addition of this
paragraph has been withdrawn by the State of Colorado, thus, this
revision will not be acted on. As a result, owners or operators of well
production facilities must submit APENs prior to the construction,
modification, or alteration of the facility, as specified for all other
sources in Section II.A.1, which requires that facilities cannot emit
air pollutants from a stationary source unless an APEN and associated
fees have been filed with the Division.
In other words, owners and operators of well production facilities
must apply for an APEN prior to commencement of operation. APENs
require owners or operators to specify the location at which the
proposed emission source will occur, the name and address of the
persons operating and owning such a facility, the nature of the
facility, process or activity, an estimate of the quantity and
composition of the expected emissions, among other requirements. Thus,
this revision meets the statutory and regulatory requirements as
outlined in Section III. of this proposed rulemaking.
(3) II.A.2(b)
This paragraph requires owners or operators of well production
facilities to file an APEN prior to the modification of well production
facilities. This is a similar requirement as stated in II.A.1. This
revision meets the statutory and regulatory requirements as outlined in
Section III of this proposed rulemaking.
III. Exemptions From Air Pollution Emission Notice Requirements
(1) Section II.D.1.III
This exemption was repealed to reflect the withdrawal of Part A
Section II.A.2.a. Section II.D.1.III. provides that the owner or
operator of an oil and gas exploration and production operation shall
file an APEN with the Division thirty days after well completion. If
production will result in reportable emissions, the owner or operator
shall file an APEN within thirty days after the report of first
production is filed with the State, but no later than ninety days. As a
result of this section being repealed, owners or operators are now
required to file an APEN prior to commencement of operations, as
required in Part A, Section II.A.1.
B. Revisions to Regulation 3, Part B (Concerning Construction Permits)
II.A--General Requirements for Construction Permits
(1) II.A.1 and III.I.2.a
In Section II.A.1, the phrase ``commence construction of'' is
replaced with the phrase ``construct, modify or operate'' and the
phrase ``modification of a stationary source'' is replaced by the
phrase ``commence the conduct of and such activity.'' Similar language
changes were made in Section III.I.2.a.
These language revisions align with the existing language in the
Air Pollution Prevention and Control Act
[[Page 16441]]
provisions regarding permits (See 25-7-114.2. C.R.S.) These revisions
reflect how the Colorado construction permitting program has been
operated and implemented, and to ensure consistency with the governing
statute. These revisions will not change the timing of the requirement
to obtain a construction permit.
II.B--Transfer or Assignment of Ownership
(1) II.B
Colorado revised Section II.B. to clarify that a transfer of
ownership form is due to the State within 30 days of the completion of
a transfer or assignment of ownership for re-issuing of existing
permits. The current language indicates that a ``prospective'' owner
must submit the transfer of ownership form, indicating that the form
must be submitted prior to acquisition. The revised language provides
clarity for sources about this requirement. The language has also been
modified to state that the requirements for compliance with existing
permitting requirements transfer to the new owner or operator when the
forms are submitted.
II.D.--Exemptions From Air Pollution Notice Requirements
(1) II.D.7
Section II.D.7 was repealed to reflect the removal of Part A
Section II.A.2.a. Section II.D.7 provides that oil and gas exploration
and production operations that are required to obtain a construction
permit are not required to file an application for a construction
permit until they are required to file an APEN. This section was not
extended by the Colorado General Assembly and expired effective May 15,
2021; thus, it is no longer in Regulation Number 3. As a result, all
well production facilities must file for a construction permit prior to
commencement of operation, as stated in Part A, Section II.A.1.
III.B.--Application for a Construction Permit
(1) III.B.2
The phrase ``or alternate forms required by the division'' was
added to this section to give owners or operators additional
application form options, as described in Regulation 3, Part
A.III.H.1.--General Construction Permits.
(2) III.I.2
The term ``commence construction'' was replaced with the term
``construct, operate.'' This revision clarifies that an owner or
operator cannot operate a new or modified source until a general
construction permit is received.
C. Additional Exemptions Repealed and Clarifications in Parts A, B and
C
(1) Part A, Section II.D.1.zzz and Part C, Section II.E.dddd
contain exemptions from filing an APEN and operating permit for venting
of natural gas lines for safety purposes. The revisions add that this
exemption does not apply to ``routine or predictable emissions at or
associated with a stationary source.''
(2) The exemptions in Part A, Section II.D.1.uuu, Part B, Section
II.D.1.m, Part C, Section II.E.3.uu and II.E.3.yyy are being revised to
no longer exempt oil and gas production wastewater impoundments that
contain less than 1 percent by volume crude oil on an annual average
from APEN and reporting requirements.
III. Proposed Action
Based on the above discussion, the EPA finds that the repealed and
revised sections of Colorado's air permitting regulations outlined in
Section II., as submitted by the State of Colorado on May 13, 2020,
will not interfere with attainment or maintenance of any national
ambient air quality standard (NAAQS) in the State and would not
interfere with any other applicable requirement of the CAA. Thus, we
are proposing to approve all SIP revisions in this proposed rulemaking,
as the revisions to Parts A, B and C corresponding to APEN,
construction permitting and operating permitting requirements do not
exceed or differ from the requirements of the CAA or Federal
regulations; in particular, as outlined below:
(1) The statutory requirements under CAA section 110(a)(2)(c),
which requires states to include a minor NSR program in their SIP to
regulate modifications and new construction of stationary sources
within the area as necessary to assure the NAAQS are achieved;
(2) The regulatory requirements under 40 CFR 51.160, including
Sec. 51.160(a), which require that the SIP include legally enforceable
procedures that enable a state or local agency to determine whether
construction or modification of a facility, building, structure or
installation, or a combination of these will result in a violation of
applicable portions of the control strategy; or interference with
attainment or maintenance of a national standard in the state in which
the proposed source (or modification) is located or in a neighboring
state; Sec. 51.160(b), which requires states to have legally
enforceable procedures to prevent construction or modification of a
source if it would violate any SIP control strategies or interfere with
attainment or maintenance of the NAAQS; and
(3) The statutory requirements under CAA section 110(l), which
provides that EPA cannot approve a SIP revision if the revision would
interfere with any applicable requirement concerning attainment and
reasonable further progress (RFP), or any other applicable requirement
of the CAA. Therefore, EPA will approve a SIP revision only after a
state has demonstrated that such a revision will not interfere
(``noninterference'') with attainment of the NAAQS, RFP or any other
applicable requirement of the CAA.
EPA has determined that these revisions are approvable under CAA
110(a)(2)(C), 40 CFR 51.160-164 and CAA section 110(l). Therefore, we
are proposing to approve the revisions as submitted by the State of
Colorado on May 13, 2020.
IV. Incorporation by Reference
In this document, the EPA is proposing to include regulatory text
in an EPA final rule that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference the revisions described in Section II. of this
preamble. The EPA has made, and will continue to make, these materials
generally available through <a href="http://www.regulations.gov">www.regulations.gov</a> 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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions
[[Page 16442]]
of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where 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,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
(Authority: 42 U.S.C. 7401 et seq.)
Dated: March 18, 2022.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2022-06172 Filed 3-22-22; 8:45 am]
BILLING CODE 6560-50-P
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