
[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Proposed Rules]
[Pages 68532-68534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21970]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2023-0483; FRL-11439-01-R8]


Air Plan Approval; 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: Proposed rule.

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SUMMARY: On May 9, 2023, the EPA took final action on State 
Implementation Plan (SIP) submissions made by the State of Colorado on 
March 22, 2021, related to Clean Air Act (CAA) requirements for the 
2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) for 
the Denver Metro/North Front Range (DMNFR) Serious nonattainment area. 
In that action we finalized a limited approval and limited disapproval 
of specific provisions intended to meet reasonably available control 
technology (RACT) requirements that were included in SIP submissions 
made by the State on May 14, 2018, May 8, 2019, May 13, 2020, March 22, 
2021, May 18, 2021, and May 20, 2022. Further, we finalized a limited 
conditional approval and limited disapproval of additional provisions 
intended to address RACT requirements and that were within SIP 
submissions from May 31, 2017, and May 10, 2019. The EPA is now 
proposing to stay the limited disapproval portions of the May 9, 2023 
final rule until June 1, 2024.

DATES: Written comments must be received on or before November 3, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2023-0483, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
https://www.regulations.gov. 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

[[Page 68533]]

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 https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the https://www.regulations.gov 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 
https://www.regulations.gov. 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: 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: In this document, ``we,'' ``us,'' and 
``our'' refer to the EPA.

I. Background

    On May 9, 2023, EPA took final action approving portions of the 8-
hour ozone attainment plan for the DNFR area that were submitted by the 
State of Colorado on March 22, 2021, and portions of additional SIP 
submissions made by the State on May 8, 2019, May 13, 2020, March 22, 
2021, May 18, 2021, and May 20, 2022.\1\ The State made these SIP 
submissions to meet CAA requirements for the DMNFR area classified as 
Serious nonattainment, to address RACT requirements for certain source 
categories in the DMNFR area, and to adopt VOC standards for consumer 
products and architectural and industrial maintenance coatings. We also 
finalized a limited approval and limited disapproval of parts of the 
SIP submissions made on May 14, 2018, May 13, 2020, March 22, 2021, May 
18, 2021, and May 20, 2022, and of certain RACT categories,\2\ and we 
finalized a limited conditional approval and limited disapproval of 
specific provisions intended to meet RACT requirements.\3\ The limited 
disapproval portions of the May 9, 2023 final rule resulted from the 
Agency's determination that although the rules met RACT requirements 
concerning stringency, they lacked adequate reporting or other 
mechanisms to make them legally and practically enforceable by citizens 
in accordance with CAA section 304.
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    \1\ 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, Table 1, 29829-29830 (May 9, 2023).
    \2\ Id. at 29830-29831, Table 2 (listing portions subject to 
limited approval and limited disapproval), Table 3 (RACT 
categories).
    \3\ Id. at 29830-29831, Table 3.
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    On July 10, 2023, the State submitted a Petition for 
Reconsideration asking the EPA to reconsider the issuance of the 
limited disapproval portions of the May 9, 2023 final rule. The EPA 
responded to the Petition for Reconsideration on August 31, 2023, 
informing the State that the EPA was granting the petition as to the 
limited disapproval portions of the May 9, 2023 final rule.\4\ The EPA 
intends to reopen the rulemaking for the limited purpose of accepting 
comment and considering whether these SIP provisions are enforceable by 
citizens as required under the CAA,\5\ or what revisions may be 
necessary to make them so.
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    \4\ See letter from EPA Regional Administrator KC Becker to 
Colorado Attorney General Phil Weiser (Aug. 31, 2023), in the docket 
for this action.
    \5\ See CAA section 304(a).
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II. Proposed Action

    In this action, we are proposing to stay the limited disapproval 
actions listed in Tables 2 and 3 of the May 9, 2023 final rule until 
June 1, 2024. All other portions of the final rule were effective as of 
June 8, 2023, and remain in effect. The EPA is proposing this action to 
provide additional time for consideration of the Petition for 
Reconsideration, which will occur through a separate notice and comment 
process that the Agency will be describing in more detail in a later 
document. The effect of the stay, if finalized as proposed, and 
depending on the outcome of the reconsideration process, will be that 
the federal implementation plan and sanctions clocks \6\ for the 
limited disapprovals in Tables 2 and 3 of the May 9, 2023 final rule, 
restart on June 2, 2024. We are taking comment on today's proposal for 
30 days. Any comments on this proposal should address only the issue of 
the stay of the limited disapproval actions; comments on other items 
will not be pertinent to this action.
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    \6\ See CAA sections 100(c)(1) and 179.
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III. Environmental Justice Considerations

    As discussed in our May 9, 2023 final rule, 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 of 39% with 
some census block groups ranking above the 80th percentile.\7\ There 
are also census block groups within the DMNFR Area where the percentage 
of low income population is above the national average of 33% with some 
census block groups ranking above the 80th percentile.\8\
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    \7\ See ``EJSCREEN Maps'' pdf, available within the docket.
    \8\ Id.
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    This proposed action stays the limited disapproval portions of our 
May 9, 2023 final action. The limited disapprovals in that action 
related to the EPA's concern that certain Colorado regulations do not 
have adequate reporting requirements or other mechanisms to make them 
enforceable under the citizen suit provision of CAA section 304. The 
purpose of the stay of the disapproval portions is to allow the EPA to 
more fully evaluate a petition for reconsideration from the State. The 
reconsideration will allow public input from all parties concerning the 
adequacy, with respect to CAA requirements for enforceability, of the 
provisions that were subject to limited disapproval. We expect that 
this action will generally be neutral or (combined with the anticipated 
final action following reconsideration) 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, we 
expect that this action will not worsen any existing air quality. 
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.

[[Page 68534]]

IV. 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 CAA criteria. Accordingly, this action merely 
proposes to stay the limited disapprovals from our May 9, 2023 final 
rule and does not impose additional requirements beyond those imposed 
by state law.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094, and was 
therefore not subject to a requirement for Executive Order 12866 
review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the PRA, because this proposed action, if finalized, will not in and of 
itself create any new information collection burdens, but will simply 
stay the limited disapprovals from our May 9, 2023 final rule.

C. Regulatory Flexibility Act (RFA)

    This action will not have a significant economic impact on a 
substantial number of small entities under the RFA. This action will 
not impose any requirements on small entities. This proposed action, if 
finalized, will not in and of itself create any new requirements but 
will simply stay the limited disapprovals from our May 9, 2023 final 
rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action proposes to stay the limited 
disapprovals from our May 9, 2023 final rule and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the proposed action would not 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 and will 
not impose substantial direct costs on tribal governments or preempt 
tribal law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because this proposed action, if finalized, will 
not in and of itself create any new regulations, but will simply stay 
the limited disapprovals from our May 9, 2023 final rule.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color and/or Indigenous 
peoples) and low-income populations.
    The EPA believes that human health or environmental conditions 
existing prior to this action result in or have the potential to result 
in disproportionate and adverse human health or environmental effects 
on people of color, low-income populations, and/or Indigenous peoples. 
The results of our demographic analysis (see section III., 
Environmental Justice Considerations, above) indicate that for 
populations within the DMNFR Area, there are census block groups in 
which the percentage of people of color is greater than the national 
average of 39%, with some census block groups ranking above the 80th 
percentile. There are also census block groups within the DMNFR Area 
where the percentage of low-income population is above the national 
average of 33%, with some census block groups ranking above the 80th 
percentile.
    The EPA believes that this action is not likely to change existing 
disproportionate and adverse effects on people of color, low-income 
populations, or Indigenous peoples. While the EPA recognizes the 
importance of assessing impacts of our actions on potentially 
overburdened communities, a final approval of the proposed stay of the 
limited disapprovals from our May 9, 2023 final action would not 
exacerbate existing pollution exposure or burdens for populations in 
the DMNFR Area.
    As discussed in the Environmental Justice Considerations section of 
this preamble, there is no information to support a conclusion that 
staying the limited disapproval of the May 9, 2023 final rule would 
result in additional disparate impact on minority populations (people 
of color and/or Indigenous peoples) or low-income populations.

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: September 28, 2023.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2023-21970 Filed 10-3-23; 8:45 am]
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