Air Plan Approval; Colorado; Reg 3 NSR and APEN Updates, 71258-71262 [2022-24858]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[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 [www.gpo.gov]
[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 https://www.regulations.gov 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 https://www.regulations.gov, 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 
[email protected].

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 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). 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:
     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);
     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, 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 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.

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    (c) * * *

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                                          State       EPA effective   Final rule citation/
               Title                 effective date       date                date                 Comments
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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
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                                                  * * * * * * *
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]
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