Rule2022-24858
Air Plan Approval; Colorado; Reg 3 NSR and APEN Updates
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 22, 2022
Effective
December 22, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is finalizing approval of regulatory amendments submitted by the State of Colorado on May 13, 2020. The revisions make limited amendments to the State's New Source Review (NSR) and Air Pollution Emission Notices (APEN). 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 224 (Tuesday, November 22, 2022)</title>
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[Federal Register Volume 87, Number 224 (Tuesday, November 22, 2022)]
[Rules and Regulations]
[Pages 71258-71262]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24858]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2022-0103; FRL-9624-02-R8]
Air Plan Approval; Colorado; Reg 3 NSR and APEN Updates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
approval of regulatory amendments submitted by the State of Colorado on
May 13, 2020. The revisions make limited amendments to the State's New
Source Review (NSR) and Air Pollution Emission Notices (APEN). The EPA
is taking this action pursuant to the Clean Air Act (CAA).
DATES: This rule is effective on December 22, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R08-OAR-2022-0103. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. 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, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available through <a href="http://www.regulations.gov">http://www.regulations.gov</a>, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
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#e488818b8a81ca8f81928d8aa4819485ca838b92"><span class="__cf_email__" data-cfemail="0468616b6a612a6f61726d6a446174652a636b72">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our March
23, 2022 proposed rulemaking (87 FR 16439). In that document we
proposed to approve revisions to Colorado's minor source NSR permitting
program. Specifically, EPA proposed to approve revisions to Regulation
Number 3 (Stationary Source Permitting and Air Pollution Emission
Notice Requirements), including Part A (General Provisions Applicable
to Reporting and Permitting), Part B (Construction Permits), and Part C
(Operating Permits).
We invited comment on all aspects of our proposal and provided a
30-day comment period. The comment period ended on April 22, 2022. We
received comments on our proposed rulemaking. The comments and our
responses are listed below.
II. Response to Comments
On April 22, 2022, the EPA received comments from The Center for
Biological Diversity, Henceforth referred to as ``commenter.''
Comment: Commenter asserts, ``EPA must disapprove the Colorado
permitting program because it excludes emissions prior to operations
such as drilling, fracking, and completion which may cause or
contribute to violations of the NAAQS.'' In support of this assertion,
commenter offers three arguments. First, Commenter states that EPA has
not supported its approval of the State's revised definition of
``Commencement of Operation'' with modeling data to demonstrate that
the revised definition will not cause or contribute to NAAQS
violations. Commenter states that such modeling is required by EPA
regulations to be included in State Implementation Plan (SIP)
submittals. Second, Commenter states that available evidence indicates
that ``pre-production'' emissions from
[[Page 71259]]
oil and gas facilities endanger the National Ambient Air Quality
Standards (NAAQS). Commenter cites broadly to Colorado Air Mobile
Monitoring Lab (CAMML) data, asserting that it shows that ``activities
which EPA proposes to approve into the SIP can endanger the NAAQS in
violation of EPA's regulations for minor source permitting programs.''
Commenter also states that, ``Preproduction emissions from oil and gas
well pads are significant emitters of VOCs which contributes to
ozone.'' Finally, Commenter states that the revised definition of
Commencement of Operation ``excludes oil and gas pollution emitting
activities such as drilling wells, `fracking' wells, and completing
wells.'' Commenter argues, ``40 CFR 51.160(e) requires states to
justify the exclusion of any types of sources from review which is what
the definition of commencement of operations does. But no justification
has been provided here.''
Response: This SIP revision is approving limited rule revisions by
Colorado that update the State's permitting regulations to reflect
consistency within the permitting program and with Colorado Statutes.
This comment raises issues that extend beyond those presented by the
two changes to Part A, Section I.B of Regulation 3, that EPA is
approving. This includes the addition of clarifying language to the
definition of ``Commencement of Operation'' at Section I.B.12 and a new
definition of the term ``Well Production Facility'' at Section I.B.47.
Prior to these changes, ``Commencement of Operation'' at any facility
was defined to occur when the facility ``first conduct[ed] the activity
that it was designed and permitted for.'' This part of the definition
has not been revised and remains applicable to all facilities. With the
two additions, however, ``Commencement of Operation'' at an oil and gas
well production facility has been clarified and is now defined to occur
on ``the date any permanent production equipment is in use and product
is consistently flowing to sales lines, gathering lines or storage
tanks from the first producing well at the stationary source, but no
later than end of well completion operations (including flowback).''
These additions, while limited in scope, provide improved clarity for
operators of oil and gas well production facilities and for the State
as to the timelines for certain actions required in the minor NSR
permit application process in Part B of Regulation 3. This includes
establishing a clear date for assessing compliance and impacts under
Section III.B and a firm deadline for submitting notices and
demonstrations under Section III.G. These regulatory changes are
essentially procedural in nature and do not alter Colorado's approach
to issuing construction permits for emissions from facilities that have
completed construction and begun operating.
This comment does not address the revisions described above and,
instead, is based entirely on the part of the definition of
``Commencement of Operation'' that was not revised or addressed in the
proposal. As described above, the State has retained its original,
already approved definition and added language to clarify how that
definition applies to oil and gas well production facilities. The
limited revisions submitted for EPA's review in this instance do not
create a need for EPA to review the original definition language that
has not been amended.
Commenter contends that EPA must use modeling data to support its
conclusion that the revised definition does not cause or contribute to
a violation of the NAAQS. However, Commenter bases this argument on an
assertion that the revised definition ``excludes oil and gas pollution
emitting activities such as drilling wells, `fracking' wells, and
completing wells.'' This comment conflates the revisions being approved
today with the original definition that is not being revised. This
comment seeks to have EPA and the State conduct air quality modeling
for already approved SIP elements.
Because the two revisions being approved today serve only to
clarify timelines for making assessments and deadlines for making
submissions during the permit application process, the changes will
have no impact on emissions from facilities and no impact on the NAAQS.
The State has not revised the nature of the discussion of air quality
data under its regulations in a way that requires EPA to reevaluate
compliance with 40 CFR 51.160(f). Given the limited effect of the
revision here, there was no need for Colorado to submit air quality
modeling to support approval of these revisions.
Commenter also argues that EPA must disapprove the revisions being
approved today because ``pre-production'' emissions from oil and gas
facilities endanger the NAAQS. Again, this is outside the scope of the
rulemaking because the Commenter does not tie this assertion to the
actual revisions to Part A, Section I.B, but instead points to the
existing part of the definition of ``Commencement of Operation'' that
is not being revised. Commenter provides links to the CAMML dataset,
but does not explain how this data relates to EPA's approval of the
revisions being approved today. Contrary to the Commenter's assertion,
the State is not required to consider air quality data concerning
already approved SIP elements when it revises other elements in a SIP
and did not do so here. And, because the revisions being approved today
are essentially procedural and only serve to establish timelines for
conducting assessments or deadlines for making submissions during the
permit application process, there is no air quality data available or
that can be generated to assess the effect of the State's revisions on
the NAAQS for this action. Moreover, the provisions of Regulation 3
contain requirements for Stationary Source Permitting and Air Pollution
Emission Notice Requirements. Drilling and fracking are not subject to
regulation under Regulation 3. Instead, completion (pre-production
flowback requirements) and production are regulated by Colorado's
Regulation 7, part D, which sources must be in compliance with
immediately, upon commencement of operation.
Commenter also argues that the definition of ``Commencement of
Operation'' excludes certain types of oil and gas well development
activities and that the State must justify this exclusion. Commenter
again relies on the existing part of the definition of ``Commencement
of Operation'' that is not being modified or revised, rather than the
revisions to Part A, Section I.B that EPA is approving today. As
explained above, those additions serve to clarify certain timelines for
the minor NSR permit application process for oil and gas well
production facilities and have no impact on the State's determination
as to what facilities will be subject to review under the construction
permit program. Because these revisions provide clarity on procedures,
and do not by themselves exclude any types of sources from review, they
do not create a need in this rulemaking for EPA to review whether
unamended elements of the State's rule meet the requirements in 40 CFR
51.160(e).
On the basis of the above arguments, Commenter states that EPA must
disapprove the entire Colorado minor NSR permitting program. This
assertion is incorrect. Under Section 110(l) of the CAA, ``The
Administrator shall not approve a revision to a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress (as defined in section 171), or any
other applicable requirement of this
[[Page 71260]]
chapter.'' This is captured in 40 CFR 51.105, which provides,
``Revisions of a plan, or any portion thereof, will not be considered
part of an applicable plan until such revisions have been approved by
the Administrator in accordance with this part.'' Even if the Commenter
had identified deficiencies with the actual revisions being approved
today, which they did not, the proper action for EPA would be to
disapprove the revisions we are acting on in this rulemaking, not the
entire Colorado minor NSR program. In this case, because the revisions
to Part A, Section I.B of Regulation 3 serve only to clarify the
timelines for certain actions required in the minor NSR permit
application process in Part B of Regulation 3, there is sufficient
basis to conclude that the revisions will not interfere with
attainment, reasonable further progress, or any other applicable
requirement of the CAA. EPA has made no changes to its proposed action
in response to this comment.
Comment: Commenter states, ``EPA must disapprove Colorado's SIP
submittal because Colorado cannot prevent the construction of a source
authorized to pollute by a general permit even if the source will cause
or contribute to a violation of a NAAQS or interfer [sic] with
reasonable further progress.'' In support of this comment, Commenter
states that Part B, Section III.I.2.a authorizes a source to construct
and operate once they have obtained a valid general construction
permit. Commenter then argues that because Colorado's GP10 version 10
is considered valid upon receipt of a complete APEN registration for a
source, Section III.I.2.a allows a source to begin constructing and
operating before the Division takes any action on a general permit for
that source. Commenter explains that sources are not required to
demonstrate that they will not cause or contribute to a violation of
the NAAQS, that the Division does not require modeling for these
sources, that there is no public comment period during which the public
can submit modeling for these sources, and that when the Division does
require modeling for sources obtaining individual construction permits,
the Division uses significant impact levels (SILs) to allow sources to
avoid cumulative modeling. Commenter states that because EPA has
provided no evidence that allowing sources to construct and operate
pursuant to a general construction permit will not cumulatively or
individually cause or contribute to a NAAQS violation or interfere with
reasonable further progress, EPA cannot approve this SIP submittal.
Commenter notes that Section 110(a)(2)(C) provides that a state
minor source program must ``include . . . regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that [NAAQS] are achieved.''
Commenter asserts that ``EPA's minor source permitting regulations
require that the state minor source program must enable the permitting
agency to reject any permit application if it will interfere with
attainment,'' citing to 40 CFR 51.160(a)-(b). Commenter further asserts
that ``this requires the prevention of construction'' and that because
Colorado allows a source to construct and operate under a general
permit prior to Division review of the registration, EPA must
disapprove the SIP submittal.
Finally, commenter asserts that Section III.I.2.a authorizes
sources to commence construction and operations by obtaining a valid
general construction permit without any opportunity for public notice
and comment with regard to that source. Commenter asserts that the
single public notice and comment period the State offers on a general
permit is insufficient, and that EPA and the Division must ensure that
all sources which obtain coverage under a general permit are subjected
to public notice and a public comment period.
Response: Part B, Section III.I.2 of Regulation 3 provides that
``[a] source shall not perform'' the activities listed in Sections
III.I.2.a through III.I.2.e without first obtaining a valid
construction general permit. The State is revising Part B, Section
III.I.2.a by removing the words ``Commence construction'' and replacing
them with ``Construct, operate.'' Before the change, sources could not
commence construction or modify any facility without a valid permit.
After the change, sources cannot construct, operate or modify any
facility without a valid permit. The effect of the change is to make
the regulation textually consistent with Section 25-7-114.2 C.R.S.,
which provides that ``No person shall construct or substantially alter
any building, facility, structure, or installation . . . or commence
operations of any of the same . . . without first obtaining or having a
valid construction permit.''
Because the Division implemented its construction permit program to
include operation with construction or modification, the change to the
wording within this provision has no effect on the scope or NAAQS
protection of the existing general permits program, or timing of when
permit coverage under the program is required. As such, the comment is
unrelated to the revised language that EPA is approving today and does
not demonstrate that EPA should not approve the submission addressed by
EPA in this rulemaking.
In addition, EPA notes that the State's general permit regulation
includes provisions by which the State can prevent ``construction or
modification'' of a source under a permit, as required by 40 CFR
51.160(b). This includes denying a permit under Section III.I.4,
requiring a source to apply for and obtain an individual permit under
Section III.I.3.c.(i), or revoking or terminating a permit under
Section III.I.3.a.
III. Final Action
The EPA is taking final action to approve the repealing and
addition of new and revised rules to Regulation 3 that were submitted
by the State of Colorado on May 13, 2020. Specifically, the EPA is
approving the following revisions: Regulation Number 3, Part A: I.
(Applicability)--I.B.12; I.B.47; Regulation Number 3, Part A: II (Air
Pollution Emission Notice (APEN) Requirements--II.A.1; II.A.2;
II.A.2(a); II.D.1.III; II.D.1.uuu; II.D.1.zzz; Regulation Number 3,
Part B: II. (General Requirements for Construction Permits)--II.A.1;
II.B; II.D.7;; Regulation Number 3, Part B: III. (Construction Permit
Review Procedures)--III.B.1; III.B.2; and III.G.1.a., III.I.2(a).
IV. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the
State of Colorado's revisions to regulations for its minor source NSR
permitting program into the SIP as described in section III of this
preamble. The EPA 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). Therefore,
these materials have been approved by the EPA for inclusion in the
State implementation plan, have been incorporated by reference by the
EPA into that plan, are fully federally enforceable under sections 110
and 113 of the CAA as of the effective date of the final rulemaking of
the EPA's approval, and will be incorporated by reference in the next
update to the SIP compilation.\1\
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\1\ 62 FR 27968 (May 22, 1997).
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[[Page 71261]]
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 approves 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 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, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 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 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).
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 January 23, 2023. 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,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Dated: November 8, 2022.
K.C. Becker,
Regional Administrator, Region 8.
For the reasons set forth in the preamble, 40 CFR part 52 is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority for citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart G--Colorado
0
2. In Sec. 52.320, in the table in paragraph (c):
0
a. Revise, under the center heading ``5 CCR 1001-05, Regulation Number
3, Part A, Concerning General Provisions Applicable to Reporting and
Permitting'' the entries: ``I. Applicability'' and ``II. Air Pollution
Emission Notice (APEN) Requirements''.
0
b. Revise, under the center heading ``5 CCR 1001-05, Regulation Number
3, Part B, Concerning Construction Permits the entries: ``II. General
Requirements for Construction Permits'' and ``III. Construction Permit
Review Procedures''.
The revisions read as follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
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State EPA effective Final rule citation/
Title effective date date date Comments
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* * * * * * *
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5 CCR 1001-05, Regulation Number 3, Part A, Concerning General Provisions Applicable to Reporting and Permitting
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I. Applicability................... 2/14/2020 12/22/2022 [insert Federal
Register citation],
11/22/2022.
II. Air Pollution Emission Notice 2/14/2020 12/22/2022 [insert Federal
(APEN) Requirements. Register citation],
11/22/2022.
[[Page 71262]]
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5 CCR 1001-05, Regulation Number 3, Part B, Concerning Construction Permits
----------------------------------------------------------------------------------------------------------------
* * * * * * *
II. General Requirements for 2/14/2020 12/22/2022 [insert Federal
Construction Permits. Register citation],
11/22/2022.
III. Construction Permit Review 2/14/2020 12/22/2022 [insert Federal
Procedures. Register citation],
11/22/2022.
* * * * * * *
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[FR Doc. 2022-24858 Filed 11-21-22; 8:45 am]
BILLING CODE 6560-50-P
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