2024-17087. Air Plan Approval; Colorado; Interim Final Determination To Stay and Defer Sanctions in the Denver Metro/North Front Range 2008 Ozone Nonattainment Area

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Environmental Protection Agency

1. 40 CFR Part 52
2. [EPA-R08-OAR-2024-0225; FRL-12122-02-R8]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Interim final determination.

SUMMARY:

In the Proposed Rules section of this Federal Register , EPA is proposing approval and conditional approval of portions of a State Implementation Plan (SIP) submission from the State of Colorado dated May 3, 2024. The submission relates to Colorado Air Quality Control Commission Regulation Number 7 (Reg. 7) and Regulation Number 21 (Reg. 21), and addresses Colorado's SIP obligation to require sources to meet reasonably available control technology (RACT) requirements for nonattainment areas for the 2008 ozone National Ambient Air Quality Standard (NAAQS), which includes requiring adequate reporting by sources. In this action, EPA is making an interim final determination based on that proposed approval and conditional approval. The effect of this interim final determination is that the imposition of sanctions that were triggered by EPA's May 9, 2023 limited disapproval are now deferred. Although this action is effective upon publication, EPA will take comment on this interim final determination.

DATES:

This interim final determination is effective August 6, 2024. However, comments will be accepted until September 5, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2024-0225, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from https://www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/​dockets/​commenting-epa-dockets.

Docket: All documents in the docket are listed in the https://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 electronically in https://www.regulations.gov. 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:

Abby Fulton, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, telephone number: [phone], email address: [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

I. Background

On May 9, 2023, EPA took final action approving portions of the 2008 8-hour ozone Serious area attainment plan for the Denver Metro/North Front Range (DMNFR) Area submitted by the State of Colorado on March 22, 2021, and portions of additional state implementation plan (SIP) submissions made by the State related to those requirements on May 8, 2019; May 13, 2020; March 22, 2021; May 18, 2021; and May 20, 2022.^[1] The State made these SIP submissions to meet Serious ozone nonattainment plan requirements for the DMNFR Area, to address reasonably available control technology (RACT) requirements for certain source categories in the DMNFR Area, and to adopt volatile organic compounds (VOC) standards for consumer products and architectural and industrial maintenance coatings. In the May 9, 2023 action, EPA also finalized a limited approval and limited disapproval of parts of the SIP submissions made on May 14, 2018; May 13, 2020; March 22, 2021; May 18, 2021; and May 20, 2022, with respect to certain RACT categories and VOC controls,^[2] and finalized a limited conditional approval and limited disapproval of specific provisions intended to meet RACT requirements and control VOC emissions.^[3] The limited disapproval portions of the May 9, 2023 final rule resulted from the Agency's determination that although the rules met RACT requirements with respect to stringency, they lacked adequate periodic reporting requirements as required under the Clean Air Act (CAA) and EPA regulations.

On July 10, 2023, the State submitted a Petition for Reconsideration asking EPA to reconsider the limited disapproval portions of the May 9, 2023 final rule. EPA responded to the Petition for Reconsideration in a letter dated August 31, 2023, informing the State that EPA was granting the petition as to the limited disapproval portions of the May 9, 2023 final rule.^[4] Since granting the petition for reconsideration, EPA has offered Colorado the opportunity to explain more fully how the State's regulations provide for adequate reporting, to inform EPA of various actions taken by the Colorado Air Pollution Control Division to enhance access to public records and information, and to consider what changes to existing regulations would improve reporting requirements to address deficiencies. As a result of these discussions, Colorado resubmitted Reg. 7 and Reg. 21 with additional explanations to support proposed approval of some provisions and a commitment to make changes to support proposed conditional approval of others.

Under section 110(k)(4) of the CAA, EPA may conditionally approve a SIP submission based on a commitment from the State to adopt specific enforceable measures within one year from the date of approval. On May 3, 2024, the State of Colorado resubmitted portions of the prior SIP submissions that were the subject of the limited disapproval and also submitted a letter committing to undertake additional steps to improve public access to regulatory compliance information and clarify existing SIP reporting requirements (“Commitment Letter”).^[5] In its Commitment Letter, the State committed to submit the necessary SIP revisions to EPA by May 31, 2025.^[6]

In the Proposed Rules section of this Federal Register , EPA has proposed to conditionally approve portions of Colorado's May 3, 2024 submittal, pending timely submittal of the specified rule revisions by May 31, 2025. The underlying SIP provisions that we are proposing to conditionally approve are already part of the SIP due to our May 9, 2023 limited approval and thus are federally enforceable by the State and EPA, notwithstanding our conclusion that the current reporting requirements may limit potential enforceability by others under CAA section 304 citizen suit authority.

II. What action is EPA taking?

We are making an interim final determination to defer application of CAA section 179 sanctions associated with the May 9, 2023 limited disapproval. Under 40 CFR 52.31(d)(2)(i), if the State has submitted a revised plan to correct the deficiencies identified in the May 9, 2023 limited disapproval, and EPA proposes to fully or conditionally approve the plan and issues an interim final determination that the revised plan corrects the identified deficiencies, application of the new source offset and highway sanctions shall be deferred. If not deferred, the offset sanction would apply on December 8, 2024, and the highway sanction would apply on June 8, 2025, in the DMNFR Area.

Based on the proposed approval and conditional approval of portions of Colorado's May 3, 2024 submittal set forth in this document, it is more likely than not that Colorado has met the requirement to establish that these provisions have reporting requirements for certain source categories, or has committed to make revisions for other source categories that will include reporting requirements, adequate to comply with the relevant CAA requirements under section 110 and EPA regulations at 40 CFR 51.211(a), as well as to make the provisions legally and practicably enforceable by citizens as authorized under CAA section 304. Therefore, EPA is making this interim final determination based on our concurrent proposal to approve and conditionally approve Colorado's May 3, 2024 SIP submission that corrects and commits to correct the deficiencies identified in our May 9, 2023 limited disapproval with respect to the adequacy of reporting requirements of the identified provisions.^[7]

This interim final determination is consistent with the requirements of the Administrative Procedure Act (APA) ^[8] for federal agency rulemaking. Generally, under the APA, agency rulemaking affecting the rights of individuals must comply with certain minimum procedural requirements, including publishing a notice of proposed rulemaking in the Federal Register and providing an opportunity for the public to submit written comments on the proposal before the rulemaking can have final effect.^[9] While in this matter EPA is not providing an opportunity for public comment before the deferral of CAA section 179 sanctions is effective, EPA is providing an opportunity, after the fact, for the public to comment on the interim final determination. EPA will consider any comments received in determining whether to reverse the interim final determination. Additionally, EPA is providing an opportunity to comment on the proposed approval and conditional approval, within a separate action, that are the basis for this interim final determination, so the public has an opportunity to comment on that action before any sanctions clock could be permanently terminated.

The basis for allowing such an interim final action stems from the APA, which provides that the notice and opportunity for comment requirements do not apply when the Agency “for good cause finds” that those procedures are “impracticable, unnecessary, or contrary to the public interest.” ^[10] EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. EPA has reviewed the State's SIP submission and the additional information that the State has provided, and for the reasons explained further in its proposed action EPA believes that it is more likely than not that the State's submission (1) provides for adequate reporting requirements and (2) commits to correct the other deficiencies that were the basis for the limited disapproval that started the sanctions clocks. Accordingly, CAA sanctions would not serve their intended purpose of encouraging the state to develop a better SIP. EPA also believes that the risk of an inappropriate deferral is comparatively small, given the limited scope and duration of a deferral has and given that sanctions would become effective pursuant to 40 CFR 52.31(d)(2)(i) in the event EPA reverses its determination that the State has corrected the deficiencies. Consequently, EPA finds that the “good cause” exception to the APA notice and comment requirement applies, and that notice and comment procedures are not required before the deferral and stay of sanctions become effective.

EPA is also invoking the “good cause” exception to the 30-day publication requirement of the APA. Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” ^[11] The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” ^[12] However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. Because this rule relieves a restriction, in that it defers imposition of sanctions upon the state, EPA finds that there is good cause under 5 U.S.C. 553(d)(1) for this action to become effective on the date of publication of this action.

As explained above, EPA is making this interim final determination based on our concurrent proposal to approve and conditionally approve Colorado's May 3, 2024 SIP submission that corrects and commits to correct the deficiencies identified in our May 9, 2023 limited disapproval with respect to the adequacy of reporting requirements of certain provisions. If the conditional approval converts to a disapproval due to the State's failure to meet its commitment, then the offset sanction under CAA section 179(b)(2) would apply in the affected area on the later of the date: (1) when the approval becomes a disapproval or EPA issues such a proposed or final disapproval, whichever is applicable; or (2) 18 months following the finding that started the original sanctions clock.^[13] Subsequently, the highway sanction under CAA section 179(b)(1) would apply in the affected area six months after the date the offset sanction applies.^[14]

III. Statutory and Executive Order Reviews

This action defers sanctions and imposes no additional requirements.

• This action is not a “significant regulatory action” under the terms ofExecutive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
• This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
• This action 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.).
• This action 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).
• This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999).
• This rule does not have tribal implications, as specified inExecutive Order 13175 because it will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.
• This action is not subject toExecutive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not an economically significant regulatory action.
• This action is not subject toExecutive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
• This rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.
• EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified inExecutive Order 12898 (59 FR 7629, February 16, 1994).
• This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. However, section 808 provides that any rule for which the issuing agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines.5 U.S.C. 808(2). EPA has made such a good cause finding, including the reasons thereof, and established an effective date of August 6, 2024. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 7, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Sulfur oxides

Authority: 42 U.S.C. 7401 et seq.

Dated: July 29, 2024.

KC Becker,

Regional Administrator, Region 8.

Footnotes

1.  88 FR 29827, table 1, 29829-29830 (May 9, 2023).

2.   Id. at 29830-29831, table 2 (listing portions subject to limited approval and limited disapproval), table 3 (RACT categories).

3.   Id. at 29830-29831, table 3.

4.  See letter from EPA Regional Administrator KC Becker to Colorado Attorney General Phil Weiser (Aug. 31, 2023), in the docket for this action.

5.  “Resubmittal of SIP revisions following Reconsideration. II. EPA Docket ID Nos.: EPA-R08-OAR-2022-0632; EPA-R08-OAR-2022-0857; and FRL-10362-02-R8” commitment letter. Available in the docket for this action.

6.  “Resubmittal of SIP revisions following Reconsideration. EPA Docket ID Nos.: EPA-R08-OAR-2022-0632; EPA-R08-OAR-2022-0857; and FRL-10362-02-R8” commitment letter. Available in the docket for this action.

7.  88 FR 29827.

8.  5 U.S.C. 551 et seq.

9.   See5 U.S.C. 553(b)-(d).

10.  5 U.S.C. 553(b)(B).

11.  5 U.S.C. 553(d).

12.   Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history).

13.   See40 CFR 52.31(d)(2)(i). In this case, the finding that started the original sanctions clock was the May 9, 2023 limited disapproval.

14.   See id.