2023-24230. Air Plan Approval and Disapproval; Colorado; Serious Attainment Plan Elements and Related Revisions for the 2008 8-Hour Ozone Standard for the Denver Metro/North Front Range Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving portions and disapproving portions of a state implementation plan (SIP) revision submitted by the State of Colorado to meet Clean Air Act (CAA) requirements for the 2008 8-hour ozone national ambient air quality standards (NAAQS) in the Denver Metro/North Front Range nonattainment area (DMNFR Area). Specifically, the EPA is approving the submitted enhanced monitoring SIP element as meeting applicable Serious area requirements for the 2008 8-hour ozone NAAQS, and is disapproving the contingency measure element of the SIP submittal. The EPA is taking this action pursuant to the CAA.

DATES:

This rule is effective December 7, 2023.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA–R08–OAR–2023–0272. All documents in the dockets 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:

Abby Fulton, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD–IO, 1595 Wynkoop Street, Denver, Colorado, 80202–1129, telephone number: (303) 312–6563, email address: [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” means the EPA.

I. Background

The background and rationale for this action are discussed in detail in our August 14, 2023 proposed rule and our Response to Comments document for this action.^[1] In the proposed rule, we proposed to approve the enhanced monitoring element and to disapprove the contingency measures element of the March 22, 2021 8-hour ozone attainment plan SIP submission from the State of Colorado for the DMNFR Area. Additionally, we proposed to disapprove certain provisions submitted by the State to meet reasonably available control technology (RACT) requirements in SIP submissions from March 22, 2021 and May 20, 2022. Specifically, we proposed disapproval of the categorical RACT rules for refinery fueled process heaters as well as landfill or biogas fired reciprocating internal combustion engines and the State's RACT determination for the Golden Aluminum facility. This action does not take final action on the RACT portion of the proposal. EPA will take final action on the RACT portion of the August 14, 2023 proposal via a separate action.

II. Comments

We received comments on the August 14, 2023 proposal from several commenters: the Center for Biological Diversity, the Air Pollution Control Division of the Colorado Department of Public Health and Environment, William Weese Pepple & Ferguson on behalf of Suncor Energy Inc., and one citizen. All comments received are in the docket for this action. The comments included views concerning the timing, process, and approach for EPA to act on Colorado's SIP submittals; supportive and adverse comments related to our proposed action on the contingency measures element; and adverse comments related to our proposed action on certain RACT elements. A summary of the comments that are relevant to this final action and the EPA's responses are provided in the Response to Comments document, which is in the docket for this action. Comments related to RACT will be addressed in a separate action.

III. Final Action

The EPA is approving the enhanced monitoring portion of Colorado's ozone attainment plan submitted on March 22, 2021 because we find that it satisfies the requirements under CAA section 182(c)(1) for the DMNFR Area with respect to the 2008 ozone NAAQS. We are disapproving the contingency measures portion of Colorado's ozone attainment plan submitted on March 22, 2021 because we find that it does not satisfy the requirements under CAA sections 172(c)(9) or 182(c)(9) for the DMNFR Area with respect to the 2008 ozone NAAQS. We will be finalizing action on the RACT requirements in SIP submissions from March 22, 2021 and May 20, 2022 in a separate action. EPA has previously acted on all other parts of these submittals.^[2]

Section 110(c)(1) of the CAA requires the Administrator to promulgate a Federal implementation plan (FIP) at any time within two years after the Administrator finds that a state has failed to make a required SIP submission, finds a SIP submission to be incomplete, or disapproves a SIP submission, unless the state corrects the deficiency, and the Administrator approves the SIP revision, before the Administrator promulgates a FIP. Therefore, EPA will be obligated under CAA section 110(c)(1) to promulgate a FIP within two years after the effective date of this disapproval, unless the state submits, and the EPA approves, SIP revisions to correct the identified deficiencies before EPA promulgates the FIP.

In addition, this final disapproval will trigger mandatory sanctions in accordance with the timelines and provisions of CAA section 179 and 40 CFR 52.31 unless the state submits, and EPA approves, SIP revisions that correct the identified deficiencies within 18 months of the effective date of the final disapproval action.

IV. Environmental Justice Considerations

The EPA reviewed demographic data, which provides an assessment of individual demographic groups of populations living within the DMNFR Area. The EPA then compared the data to the national averages for each of the demographic groups. The results of this analysis are being provided for informational and transparency purposes. The results of the demographic analysis indicate that for populations within the DMNFR Area, there are census block groups with the percent of people of color (persons who reported their race as a category other than White alone and/or Hispanic or Latino) is greater than the national average (39%) and above the 80th percentile.^[3] There are also census block groups within the DMNFR Area that are below the national average (33%) poverty level and above the 80th percentile.^[4]

This final SIP action identifies deficiencies in the contingency measure element of the March 22, 2021 SIP submittal for the DMNFR Area under the 2008 8-hour ozone NAAQS. The EPA's disapproval of these contingency measures, if finalized, would require that Colorado submit plans for the DMNFR Area containing contingency measures consistent with the requirements of the CAA as explained in Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021). Such measures would help to improve air quality in the entire affected nonattainment area through ongoing reductions of ozone precursor emissions should the measures be triggered.

The CAA requires this action, and the EPA recognizes the adverse impacts of ozone. Information on ozone and its relationship to negative health impacts can be found in the National Ambient Air Quality Standards for Ozone.^[5] We expect that this action and resulting emission reductions will generally be neutral or contribute to reduced environmental and health impacts on all populations in the DMNFR Area, including people of color and low income populations. At a minimum, this action would not worsen any existing air quality and is expected to ensure the area is meeting requirements to attain and/or maintain air quality standards. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

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

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The Colorado Air Quality Control Division did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 8, 2024. Filing a petition for reconsideration by the Administrator of this final rule will not affect the finality of this action for the purposes of judicial review, nor will it extend the time within which a petition for judicial review may be filed or postpone the effectiveness of this rule. 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: October 26, 2023.

KC 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

1. The authority citation for part 52 continues to read as follows:

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

Subpart G—Colorado

2. In § 52.320, the table in paragraph (e) is amended by revising the entry “2008 Ozone Serious Area Attainment Plan” to read as follows:

§ 52.320

Identification of plan.

* * * * *

(e) * * *

Title	State effective date	EPA effective date	Final rule citation/date	Comments
*         *         *         *         *         *         *
Maintenance and Attainment Plan Elements
*         *         *         *         *         *         *
Denver Metropolitan Area
*         *         *         *         *         *         *
2008 Ozone Serious Area Attainment Plan	2/14/2020	12/7/2023	[insert Federal Register citation], 11/7/2023	Disapproval of contingency measures. RACM and attainment demonstration withdrawn.
*         *         *         *         *         *         *

Footnotes

1.  Proposed rule, Air Plan Approval and Disapproval; Colorado; Serious Attainment Plan Elements and Related Revisions for the 2008 8-Hour Ozone Standard for the Denver Metro/North Front Range Nonattainment Area, 88 FR 54975; the response to comments document is in the docket.

2.  Final rule, Air Plan Approval, Conditional Approval, Limited Approval and Limited Disapproval; Colorado; Serious Attainment Plan Elements and Related Revisions for the 2008 8-Hour Ozone Standard for the Denver Metro/North Front Range Nonattainment Area, 88 FR 29827 (May 9, 2023).

3.  See “EJSCREEN Maps” pdf, available within the docket.

4.   Id.

5.  Final rule, 73 FR 16436 (March 12, 2008).