Rule2023-24230
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
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Published
November 7, 2023
Effective
December 7, 2023
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 214 (Tuesday, November 7, 2023)</title>
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[Federal Register Volume 88, Number 214 (Tuesday, November 7, 2023)]
[Rules and Regulations]
[Pages 76676-76679]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24230]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2023-0272; FRL-11237-02-R8]
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.
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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 <a href="https://www.regulations.gov">https://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="https://www.regulations.gov">https://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: 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:
<a href="/cdn-cgi/l/email-protection#7016051c041f1e5e11121209301500115e171f06"><span class="__cf_email__" data-cfemail="4a2c3f263e2524642b2828330a2f3a2b642d253c">[email protected]</span></a>.
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
[[Page 76677]]
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.
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\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.
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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\
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\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).
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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\
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\3\ See ``EJSCREEN Maps'' pdf, available within the docket.
\4\ Id.
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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.
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\5\ Final rule, 73 FR 16436 (March 12, 2008).
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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.);
[[Page 76678]]
<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
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
0
1. The authority 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, the table in paragraph (e) is amended by revising
the entry ``2008 Ozone Serious Area Attainment Plan'' to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(e) * * *
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State effective EPA effective Final rule citation/
Title date date date Comments
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* * * * * * *
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Maintenance and Attainment Plan Elements
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* * * * * * *
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Denver Metropolitan Area
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[[Page 76679]]
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2008 Ozone Serious Area Attainment 2/14/2020 12/7/2023 [insert Federal Disapproval of
Plan. Register citation], contingency
11/7/2023. measures. RACM and
attainment
demonstration
withdrawn.
* * * * * * *
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[FR Doc. 2023-24230 Filed 11-6-23; 8:45 am]
BILLING CODE 6560-50-P
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