
[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 [www.gpo.gov]
[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 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: 
[email protected].

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:
     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.);

[[Page 76678]]

     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

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


