Rule2025-11266
Air Plan Approval; Colorado; Interim Final Determination to Stay and Defer Sanctions in the Denver Metro/North Front Range 2008 Ozone Nonattainment Area
Primary source
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Published
June 18, 2025
Effective
June 18, 2025
Issuing agencies
Environmental Protection Agency
Abstract
In the Proposed Rules section of this Federal Register, EPA is proposing approval of portions of State Implementation Plan (SIP) submissions from the State of Colorado dated June 26, 2023, May 23, 2024, May 30, 2024, and April 2, 2025. The submissions relate to Colorado Air Quality Control Commission Regulation Number 7 (Reg. 7) and Regulation Number 26 (Reg. 26), and address Colorado's SIP obligations for the Reasonably Available Control Technology (RACT) Serious ozone nonattainment area requirement for the 2008 ozone National Ambient Air Quality Standard (NAAQS). In this action, the EPA is making an interim final determination based on that proposed approval. The effect of this interim final determination is that the imposition of sanctions that were triggered by the EPA's December 8, 2023 disapproval are now deferred. Although this action is effective on publication, the EPA will take comment on this interim final determination.
Full Text
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<title>Federal Register, Volume 90 Issue 116 (Wednesday, June 18, 2025)</title>
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[Federal Register Volume 90, Number 116 (Wednesday, June 18, 2025)]
[Rules and Regulations]
[Pages 25901-25903]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11266]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2025-0233; FRL-12746-04-R8]
Air Plan Approval; Colorado; Interim Final Determination to Stay
and Defer Sanctions in the Denver Metro/North Front Range 2008 Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final determination.
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SUMMARY: In the Proposed Rules section of this Federal Register, EPA is
proposing approval of portions of State Implementation Plan (SIP)
submissions from the State of Colorado dated June 26, 2023, May 23,
2024, May 30, 2024, and April 2, 2025. The submissions relate to
Colorado Air Quality Control Commission Regulation Number 7 (Reg. 7)
and Regulation Number 26 (Reg. 26), and address Colorado's SIP
obligations for the Reasonably Available Control Technology (RACT)
Serious ozone nonattainment area requirement for the 2008 ozone
National Ambient Air Quality Standard (NAAQS). In this action, the EPA
is making an interim final determination based on that proposed
approval. The effect of this interim final determination is that the
imposition of sanctions that were triggered by the EPA's December 8,
2023 disapproval are now deferred. Although this action is effective on
publication, the EPA will take comment on this interim final
determination.
DATES: This interim final determination is effective June 18, 2025.
However, comments will be accepted until July 18, 2025.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2025-0233, to the Federal Rulemaking Portal: https://
[[Page 25902]]
www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: All documents in the docket are listed in the <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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: Matthew Lang, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-AQ-R, 1595 Wynkoop Street,
Denver, Colorado, 80202-1129, telephone number: (303) 312-6709, email
address: <a href="/cdn-cgi/l/email-protection#5e323f303970333f2a2a363b291e3b2e3f70393128"><span class="__cf_email__" data-cfemail="f09c919e97de9d918484989587b0958091de979f86">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
On December 8, 2023, the EPA took final action disapproving
portions of the 2008 8-hour ozone serious attainment plan for the
Denver Metro/North Front Range (DMNFR) nonattainment area that were
submitted by the State of Colorado on March 22, 2021.\1\ The State made
the SIP submission in part to meet the RACT Serious ozone nonattainment
plan requirement for the DMNFR area, as required under sections
172(c)(1) and 182(b)(2) of the Clean Air Act (CAA). On May 30, 2024 and
April 2, 2025, Colorado submitted SIP revisions to address the
disapproved RACT requirement. In the Proposed Rules section of this
Federal Register, the EPA has proposed to approve portions of
Colorado's June 26, 2023, May 23, 2024, May 30, 2024, and April 2, 2025
SIP submittals that include SIP revisions needed to fully address the
disapproved RACT requirement.
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\1\ Final Rule, Air Plan Disapproval; Colorado; RACT Elements
for the 2008 8-Hour Ozone Standard for the Denver Metro/North Front
Range Nonattainment Area; 88 FR 85511 (Dec. 8, 2023).
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II. What action is the EPA taking?
We are making an interim final determination to defer application
of the offset sanction for permitting of new or modified major sources
and highway sanctions under CAA section 179 that are associated with
the December 8, 2023 disapproval. Under 40 CFR 52.31(d)(2)(i), if the
State has submitted a revised plan to correct the deficiencies
identified in the disapproval actions, and the 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 offset sanction for permitting of new
and modified major sources and highway sanctions shall be deferred. If
not deferred, the offset sanction for permitting of new and modified
major sources would apply on July 8, 2025 for the December 8, 2023 RACT
disapproval in the DMNFR nonattainment area. Additionally, highway
sanctions would apply on January 8, 2026, for the disapproval.
Based on the proposed approval of portions of Colorado's June 26,
2023, May 23, 2024, May 30, 2024, and April 2, 2025 SIP submittals, EPA
is making an interim final determination that Colorado has made
revisions that adequately address the EPA's disapproval relating to
RACT. This interim final determination is consistent with the
requirements of the Administrative Procedure Act (APA) \2\ 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.\3\ While in this matter the EPA is not providing
an opportunity for public comment before the deferral of CAA section
179 sanctions is effective, the EPA is providing an opportunity, after
the fact, for the public to comment on the interim final determination.
The EPA will consider any comments received in determining whether to
reverse the interim final determination. Additionally, the EPA is
providing an opportunity to comment on the proposed approval, within a
separate action, that is 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.
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\2\ 5 U.S.C. 551 et seq.
\3\ See 5 U.S.C. 553(b)-(d).
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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.'' \4\ The EPA believes that notice-and-comment
rulemaking before the effective date of this action is impracticable
and contrary to the public interest. The EPA has reviewed the State's
SIP submissions, and for the reasons explained further in its proposed
action, the EPA believes that it is more likely than not that the
State's submissions adequately address the Serious nonattainment area
RACT requirement for the 2008 ozone NAAQS. This is accomplished by the
State's submission of revised regulations that establish RACT, with
supporting analysis, for landfill/biogas fired RICE, refinery fuel
process heaters, and a cold rolling mill. Accordingly, CAA sanctions
would not serve their intended purpose of encouraging the state to
develop a better SIP. The EPA also believes that the risk of an
inappropriate deferral is comparatively small, given the limited scope
of a deferral and given that sanctions would become effective pursuant
to 40 CFR 52.31(d)(2)(i) in the event the EPA reverses its
determination that the State has corrected the deficiencies.
Consequently, the 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.
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\4\ 5 U.S.C. 553(b)(B).
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The 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
[[Page 25903]]
in the Federal Register ``except . . . a substantive rule which grants
or recognizes an exemption or relieves a restriction.'' \5\ The purpose
of this provision is to ``give affected parties a reasonable time to
adjust their behavior before the final rule takes effect.'' \6\
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,
the 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.
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\5\ 5 U.S.C. 553(d).
\6\ 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).
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As explained above, the EPA is making this interim final
determination based on our concurrent proposal to approve portions of
Colorado's June 26, 2023, May 23, 2024, May 30, 2024, and April 2, 2025
SIP submittals that correct the deficiencies identified in our December
8, 2023 disapproval action with respect to the adequacy of Colorado's
RACT determinations for the Serious nonattainment requirement in the
DMNFR area under the 2008 ozone NAAQS. If the EPA does not finalize the
approval as proposed and instead disapproves or proposes to disapprove
these SIP revisions, then the offset sanction for permitting of new and
modified sources under CAA section 179(b)(2) would apply in the DMNFR
area on the later of: (1) the date the EPA issues such a proposed or
final disapproval; or (2) July 8, 2025 (i.e. 18 months from the
effective date of the finding that started the original sanctions
clock).\7\ Subsequently, highway sanctions under section 179(b)(1)
would apply in the affected area six months after the date the offset
sanction applies.\8\
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\7\ See 40 CFR 52.31(d)(2)(i). In this case, the finding that
started the original sanctions clock was the disapproval issued on
December 8, 2023, which was effective on January 8, 2024.
\8\ See Id.
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III. Statutory and Executive Order Reviews
This action defers Federal sanctions and imposes no additional
requirements. For that reason, this action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866;
<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, as 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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<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.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian Tribe
has demonstrated that a Tribe has jurisdiction. 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).
This action is subject to the Congressional Review Act (CRA), and
EPA will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2). 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). The EPA has
made such a good cause finding, including the reasons thereof, and
established an effective date of June 18, 2025.
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 August 18, 2025. 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, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 2, 2025.
Cyrus M. Western,
Regional Administrator, Region 8.
[FR Doc. 2025-11266 Filed 6-17-25; 8:45 am]
BILLING CODE 6560-50-P
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