[Federal Register Volume 84, Number 158 (Thursday, August 15, 2019)]
[Proposed Rules]
[Pages 41674-41677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17405]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0354; FRL-9998-07-Region 8]


Finding of Failure To Attain and Reclassification of Denver Area 
for the 2008 Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of public hearing.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
determine that the Denver-Boulder-Greeley-Ft. Collins-Loveland, 
Colorado nonattainment area (Denver Area) failed to attain the 2008 
ozone National Ambient Air Quality Standard (NAAQS) by the applicable 
attainment date for ``Moderate'' nonattainment areas. The effect of 
failing to attain by the attainment date is that the area will be 
reclassified by operation of law to ``Serious'' upon the effective date 
of the final reclassification notice. The EPA is proposing deadlines 
for submittal of those SIP revisions and implementation of the related 
control requirements. This proposed action is necessary to fulfill the 
EPA's statutory obligation to determine whether the Denver Area 
attained the NAAQS by the attainment date, and, within six months of 
the attainment date, publish a document in the Federal Register 
identifying each area that is determined as having failed to attain and 
its reclassification. Previously, the EPA had proposed on November 14, 
2018, to grant a request by the State of Colorado for a 1-year 
attainment date extension for the Denver Area, but by letter dated 
March 26, 2019, the Governor of Colorado withdrew the State's previous 
request for this extension. This proposal withdraws the EPA's previous 
proposed approval of the State's now-withdrawn extension request. This 
document also announces a public comment period and details for a 
scheduled public hearing to provide the public with an opportunity to 
present oral testimony on the proposal. The comment period will ensure 
the public has sufficient time to comment on the proceedings of the 
public hearing and the proposal.

DATES: The public hearing will be held on September 6, 2019 beginning 
at 9 a.m. Mountain Time (MT). Written comments must be received on or 
before September 16, 2019. Please refer to the ADDRESSES for additional 
information on the public hearing and comment period.

ADDRESSES: 
    Public Hearing. The public hearing will be held on the 2nd floor of 
the EPA Region 8 office, 1595 Wynkoop St., Denver, CO 80202. The public 
hearing will convene at 9:00 a.m. and end one hour after the last 
registered speaker has spoken, or no later than 5:00 p.m. mountain time 
(MT) in any event. A lunch break is scheduled from 1:00 to 2:00 p.m. 
MT. The public hearing will be held in a federal building. Individuals 
planning to attend the hearing should be prepared to show valid picture 
identification to the security staff to gain access to the meeting 
room. The REAL ID Act, passed by Congress in 2005, established new 
requirements for entering federal facilities. These requirements took 
effect July 21, 2014. If your driver's license is issued by American 
Samoa, you must present an additional form of identification to enter 
the federal building where the public hearing will be held. Acceptable 
alternative forms of identification include Federal employee badges, 
passports, enhanced driver's licenses, and military identification 
cards. For additional information for the status of your state 
regarding REAL ID, go to http://www.dhs.gov/real-id-enforcement-brief.
    Oral testimony will be limited to five minutes for each commenter. 
The EPA encourages commenters to provide the EPA with a copy of their 
oral testimony electronically (by email) or in hard copy form.
    Written Comments: Submit your comments, identified by Docket ID No. 
EPA-R08-OAR-2019-0354, 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 
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 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 http://www2.epa.gov/dockets/commenting-epa-dockets. Written statements and 
supporting information that are submitted during the comment period 
will be considered with the same weight as any oral comments and 
supporting information presented at the public hearing. Written 
comments must be postmarked by the last day of the comment period.
    Pertinent comments submitted in response to the EPA's November 2018 
proposal to grant the State of Colorado's request for a 1-year 
attainment date extension for the Denver Area, which were part of a 
national rulemaking concerning Moderate areas, will be considered in 
this action and do not need to be re-submitted. Other documents from 
the national rulemaking that are relevant to this proposed action for 
the Denver Area will also be included in the docket for this action. 
However, we are not re-opening comment in this proposal on any of the 
final agency actions for the other Moderate Areas addressed in the 
national rulemaking.
    Docket: All documents in the docket are listed in the 
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 at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6563, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

[[Page 41675]]

I. What is the EPA proposing and what is the rationale?

    The EPA designated the Denver Area as nonattainment and classified 
the area as Marginal on July 20, 2012. On May 4, 2016, the EPA 
published its determination that the Denver Area had failed to attain 
the 2008 8-hour ozone NAAQS by the attainment deadline, and that the 
Denver area was accordingly reclassified to a Moderate ozone 
nonattainment area.\1\ On November 14, 2018, the EPA proposed to grant 
the request from the State of Colorado for a 1-year attainment date 
extension for the Denver Area for the 2008 ozone NAAQS.\2\ On March 26, 
2019, the Governor of Colorado sent a letter to EPA Region 8 
Administrator to withdraw the State's previous request for a 1-year 
attainment date extension for the 2008 ozone NAAQS.\3\ Accordingly, the 
EPA is now proposing to determine that the Denver Area failed to attain 
the 2008 ozone NAAQS by its applicable attainment date.\4\
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    \1\ See 81 FR 26697; 40 CFR 81.306.
    \2\ See 83 FR 56781. Upon a state's request, a nonattainment 
area for the 2008 ozone NAAQS may obtain a 1-year extension if, for 
the most recent year prior to the attainment date, the fourth-
highest daily maximum 8-hour average ozone concentration does not 
exceed 0.075 parts per million (ppm) and the area is complying with 
all obligations of its applicable implementation plan. See CAA 
section 181(a)(5)(B) and 40 CFR 51.1107.
    \3\ Letter, ``Withdrawal of Colorado's Request to Extend the 
2008 Ozone National Ambient Air Quality Standard Attainment Date for 
the Denver Metropolitan/North Front Range Nonattainment Area'' 
(March 26, 2019), available in the docket; see also Press release, 
``In an Effort to Improve Air Quality, Colorado to Withdraw 
Extension Request for National Air Standard Compliance,'' Colorado 
Governor Jared Polis (March 29, 2019), available at https://www.colorado.gov/governor/news/effort-improve-air-quality-colorado-withdraw-extension-request-national-air-standard (accessed June 25, 
2019).
    \4\ We note that there is ongoing litigation alleging that the 
EPA has failed to perform its nondiscretionary duty under CAA 
section 181(b)(2) to determine whether the Denver Area attained the 
ozone standard by the applicable date. WildEarth Guardians v. 
Wheeler, Civ. Act. No. 1:19-09cv-0900897-JLK (D. Colo.). The EPA 
believes that final action on this proposal would moot the claim 
raised in that litigation.
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    The 2008 ozone NAAQS is met at an ambient monitoring site when the 
design value \5\ does not exceed 0.075 parts per million (ppm). For 
areas classified as Moderate nonattainment for the 2008 ozone NAAQS, 
the attainment date was July 20, 2018. Because the design value is 
based on the three most recent complete calendar years of data prior to 
the attainment date, the EPA's proposed determination for the Denver 
Area is based upon the complete, quality-assured and certified ozone 
monitoring data from calendar years 2015, 2016, and 2017.
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    \5\ A design value is a statistic that describes the air quality 
status of a given location (i.e., air quality monitor) to the level 
of the NAAQS and is used to determine compliance with the standard. 
The design value is the 3-year average of the annual fourth highest 
daily maximum 8-hour average ozone concentrations. The design value 
is calculated for each air quality monitor in an area and the area's 
design value is the highest design value among the individual 
monitoring sites in the area. See 40 CFR part 50, appendix D--
Reference Measurement Principle and Calibration Procedure for the 
Measurement of Ozone in the Atmosphere (Chemiluminescence Method).
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    Data from all monitors in an area must be evaluated when 
determining if the area attains the NAAQS. For the EPA to make a 
determination as to whether an area has attained the NAAQS, each 
monitor must have a valid \6\ design value meeting the standard. If one 
or more monitors in an area have a design value that exceeds the 
standard, the area does not attain the NAAQS. The Denver Area's 2015-
2017 design value was 0.079 ppm, exceeding the standard of 0.075 ppm. 
See 83 FR 56784.
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    \6\ Design values attaining the 2008 ozone NAAQS must also meet 
minimum data completeness requirements specified in 40 CFR part 50, 
appendix P to be considered valid.
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    As noted above, the State has withdrawn its previous request for a 
1-year extension of the attainment date to July 20, 2019, and as a 
result the Denver Area is no longer eligible for a 1-year attainment 
date extension under section 181(a)(5) of the CAA and 40 CFR 51.1107. 
As stated in the Clean Air Act's attainment date extension provision 
for ozone nonattainment areas, section 181(a)(5), ``[u]pon application 
by any State,'' the EPA may extend an area's attainment date by one 
year provided certain criteria are met. The EPA interprets a state's 
application to be a necessary prerequisite to granting the 1-year 
extension.\7\ Therefore, based on the applicable ozone design value, in 
this document the EPA is proposing to determine that the Denver Area 
did not attain by the attainment date of July 20, 2018, and is 
providing notice of the area's proposed reclassification to Serious, as 
required under CAA section 181(b)(2). If the EPA finalizes the 
determination that the area failed to attain by the attainment date, it 
will be reclassified to Serious by operation of law. The reclassified 
area will then be subject to the Serious area requirement to attain the 
2008 ozone NAAQS as expeditiously as practicable, but not later than 9 
years from the date of original designation, or July 20, 2021.
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    \7\ Cf. Del. Dep't of Natural Res. and Envtl. Control v. EPA, 
895 F.3d 90 (D.C. Cir. 2018) (interpreting section 181(a)(5)'s 
reference to ``any'' state literally to provide EPA with authority 
to grant an extension to a multi-state nonattainment area based on 
the extension request of only one state in that area).
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II. Serious Area SIP Revision Submission Deadlines and Reasonably 
Available Control Technology (RACT) Implementation Deadlines

    Once an area is reclassified as Serious, the state must submit to 
the EPA the SIP revisions for the area that satisfy the statutory and 
regulatory requirements applicable to Serious areas established in CAA 
section 182(c) and in the 2008 Ozone NAAQS SIP Requirements Rule.\8\ 
Since the deadlines in section 182(c) were based on the 1990 date of 
enactment of amendments to the CAA and have already passed, in separate 
rulemakings the EPA is adjusting the deadlines \9\ for submitting the 
SIP revisions required for Serious areas.\10\ The EPA is finalizing SIP 
revision and RACT Implementation deadlines for reclassified Serious 
areas in an August 2019 national rulemaking.\11\ A copy of the pre-
publication version of the national rulemaking can be found at https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment.
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    \8\ 80 FR 12264 (March 6, 2015).
    \9\ Under CAA section 182(i), reclassified areas are required to 
meet the requirements associated with their newly reclassified 
status according to the schedules prescribed in connection with such 
requirements, except that the Administrator may adjust applicable 
deadlines (other than attainment dates) to the extent such 
adjustment is ``necessary or appropriate to assure consistency among 
the required submissions.'' Because these dates have already passed, 
the EPA is using its discretion granted under CAA section 182(i) to 
propose adjusting the deadlines for submitting SIP revisions that 
would otherwise apply under CAA section 182(c).
    \10\ Proposed rule, 83 FR at 56788 (Nov. 14, 2018); the final 
rule adjusting these deadlines is expected to be signed in August 
2019, and the pre-publication version of the final rule is at 
https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment.
    \11\ See docket ID number EPA-HQ-OAR-2018-0226.
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    In accordance with CAA section 182(i), in order to ``assure 
consistency among the required submissions'' for Moderate areas across 
the country that failed to attain by the July 20, 2018 attainment date, 
for the Denver Area we are proposing the same SIP submission due dates 
and implementation deadlines as we are finalizing in the August 2019 
national rulemaking.
    We note that these proposed deadlines will result in shorter 
timeframes between a final action on this determination and 
reclassification and the SIP submission and RACT implementation 
deadlines for Denver than for the other reclassified Moderate areas 
addressed in the national rulemaking. However, the governor's

[[Page 41676]]

letter withdrawing the extension request committed to ``moving 
aggressively forward and without delay in our efforts to reduce ground 
level ozone concentrations in the Denver Metro/North Front Range 
nonattainment area,'' and the EPA intends to support these efforts. As 
the Governor requested, we will continue to work with Colorado's air 
planning agencies to ``to develop appropriate and achievable schedules 
and strategies for continuing progress towards attainment of the 2008 
NAAQS.''
    Given the State's commitment to addressing its Serious Area 
obligations, and given section 182(i)'s focus on consistency, we 
propose that aligning Colorado's deadline with the national deadlines 
is appropriate and necessary for achieving ``consistency among the 
submissions'' of all reclassified areas across the country and supports 
achieving timely attainment in the Denver Area. A general discussion of 
CAA section 172(c) state submittal requirements for attainment plans 
and 182(c) SIP requirements that apply to Serious areas for the 2008 
ozone NAAQS is included in the preamble of the November 14, 2018 
proposed rulemaking.\12\
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    \12\ Id.
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    1. Due date for Serious area SIP revisions (including RACT tied to 
attainment), and implementation deadline for RACT tied to attainment.
    Consistent with the final national notice, we are proposing for the 
Denver Area the same August 3, 2020 due date to submit Serious area SIP 
revisions, including RACT measures the State determines necessary for 
meeting reasonable further progress (RFP) or demonstrating timely 
attainment in the area, and to implement those RACT measures that are 
tied to timely attainment.
    2. Due date for SIP revisions for Serious area RACT not tied to 
attainment, and implementation deadline for Serious area RACT not tied 
to attainment.
    For Serious areas reclassified from Moderate, the requirement for 
RACT expands to include all sources that emit, or have the potential to 
emit, 50 tons per year of volatile organic compounds (VOC) or nitrogen 
oxides (NOX).\13\ For the Denver Area, we are proposing the 
same due date for submitting SIP revisions for any RACT provisions not 
otherwise needed for attainment purposes as the date finalized in the 
August 2019 national rulemaking for other areas: 18 months from the 
effective date of that national rulemaking. Additionally, consistent 
with the national notice, we propose for the Denver Area the deadline 
of July 20, 2021 for implementation of any new RACT requirements not 
otherwise needed for RFP or timely attainment purposes.
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    \13\ 30 See CAA sections 182(c) and 182(f).
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    For further information and rationale supporting these proposed SIP 
due dates and implementation deadlines, please see our August 2019 
rulemaking.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not expected to be an Executive Order 13771 
regulatory action because this action is not significant under 
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This rulemaking does not impose any new information collection 
burden under the PRA not already approved by the Office of Management 
and Budget. This action proposes to: (1) Find that the Denver Area 
Moderate ozone nonattainment area failed to attain the 2008 NAAQS by 
the applicable attainment date; (2) identify the area subject to 
reclassification as Serious ozone nonattainment area by operation of 
law upon the effective date of the reclassification notice; and (3) 
adjust any applicable implementation deadlines. Thus, the proposed 
action does not establish any new information collection burden that 
has not already been identified and approved in the EPA's information 
collection request.\14\
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    \14\ On April 30, 2018, the OMB approved EPA's request for 
renewal of the previously approved information collection request 
(ICR). The renewed request expires on April 30, 2021, 3 years after 
the approval date (see OMB Control Number 2060-0695 and ICR 
Reference Number 201801-2060-003 for EPA ICR No. 2347.03).
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D. Regulatory Flexibility Act (RFA)

    I certify that 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. The proposed 
determination of failure to attain the 2008 ozone NAAQS (and resulting 
reclassification) does not in and of itself create any new requirements 
beyond what is mandated by the CAA. Instead, this rulemaking only makes 
factual determinations, and does not directly regulate any entities.

E. 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 imposes no enforceable duty on any 
state, local or tribal governments or the private sector.

F. Executive Order 13132: Federalism

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

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

    This action does not 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 proposed rule 
does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law

H. Executive Order 13045: Protection of Children From Environmental 
Health 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 it does not concern an environmental 
health risk or safety risk.

I. 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.

J. National Technology Transfer Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

[[Page 41677]]

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

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income, 
or indigenous populations. The results of this evaluation are contained 
in the section of the preamble titled ``Environmental Justice 
Considerations.''

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Greenhouse 
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: August 8, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2019-17405 Filed 8-14-19; 8:45 am]
 BILLING CODE 6560-50-P