Rule2023-26949
Air Plan Disapproval; Colorado; RACT Elements for the 2008 8-Hour Ozone Standard for the Denver Metro/North Front Range Nonattainment Area
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Published
December 8, 2023
Effective
January 8, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is 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 disapproving certain reasonably available control technology (RACT) SIP submittals.
Full Text
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<title>Federal Register, Volume 88 Issue 235 (Friday, December 8, 2023)</title>
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[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Rules and Regulations]
[Pages 85511-85513]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26949]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2023-0272; FRL-11237-03-R8]
Air Plan Disapproval; Colorado; RACT Elements 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 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 disapproving certain reasonably available
control technology (RACT) SIP submittals.
DATES: This rule is effective on January 8, 2024.
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#7b1d0e170f1415551a1919023b1e0b1a551c140d"><span class="__cf_email__" data-cfemail="791f0c150d161757181b1b00391c0918571e160f">[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 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. We also 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. Final action on the enhanced
monitoring and contingency measures elements was taken on November 07,
2023.\2\ In this action, we are finalizing action on the remaining RACT
provisions.
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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.
\2\ Final 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 76676.
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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.
[[Page 85512]]
Comments related to contingency measures were addressed in our November
7, 2023 final rule.
III. Final Action
The EPA is disapproving certain provisions submitted by the State
to meet RACT requirements in SIP submissions from March 22, 2021, and
May 20, 2022, because we find they do not satisfy the requirements
under CAA sections 182(b) and 182(c). EPA has previously acted on all
other parts of these submittals.\3\
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\3\ 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) and 88 FR 76676 (Nov. 7, 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 in which the percentage 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.\4\ There are also census
block groups within the DMNFR Area that are below the national average
(33%) poverty level and above the 80th percentile.\5\
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\4\ See ``EJSCREEN Maps'' pdf, available within the docket.
\5\ Id.
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This final SIP action identifies deficiencies in the State's March
22, 2021 and May 20, 2022 RACT submittals. The EPA has defined RACT as
the lowest emission limitation that a particular source is capable of
meeting by the application of control technology that is reasonably
available considering technological and economic feasibility. The EPA's
disapproval of these RACT submittals will require that Colorado submit
RACT plans for the DMNFR Area consistent with the requirements of the
CAA. Such measures may help to improve air quality in the entire
affected nonattainment area through reductions of ozone precursor
emissions.
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.\6\ 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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\6\ 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.);
<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
[[Page 85513]]
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 February 6, 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: December 4, 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 entries ``Reasonably Available Control Technology for the 2008 8-
Hour Ozone National Ambient Air Quality Standard (NAAQS) Moderate State
Implementation Plan (RACT SIP)'' and ``Reasonably Available Control
Technology for the 2008 8-Hour Ozone National Ambient Air Quality
Standard (NAAQS) Serious State Implementation Plan (RACT SIP)'' to read
as follows:
Sec. 52.320 Identification of plan.
* * * * *
(e) * * *
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State EPA effective Final rule citation/
Title effective 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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* * * * * * *
Reasonably Available Control 11/21/2017 1/8/2024 [insert Federal Previous SIP
Technology for the 2008 8-Hour Register citation], approvals 7/03/2018,
Ozone National Ambient Air 12/8/2023. 2/24/2021, and 11/05/
Quality Standard (NAAQS) Moderate 2021. Limited
State Implementation Plan (RACT approval/limited
SIP). disapproval of RACT
regulations 5/9/
2023. Disapproval of
refinery fueled
process heaters
located at major
sources of NOX on
December 8, 2023.
* * * * * * *
Reasonably Available Control 2/14/2020 1/8/2024 [insert Federal Disapproval of RACT
Technology for the 2008 8-Hour Register citation], for certain major
Ozone National Ambient Air 12/8/2023. sources of NOX on
Quality Standard (NAAQS) Serious December 8, 2023.
State Implementation Plan (RACT
SIP).
* * * * * * *
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[FR Doc. 2023-26949 Filed 12-7-23; 8:45 am]
BILLING CODE 6560-50-P
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