[Federal Register Volume 84, Number 247 (Thursday, December 26, 2019)]
[Rules and Regulations]
[Pages 70897-70902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27485]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R08-OAR-2019-0354; FRL-10003-43-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: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is determining 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 this final
reclassification action. Along with the reclassification, the EPA is
finalizing deadlines for submittal of SIP revisions required under the
new classification and implementation of related control requirements.
This final 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, to
publish a document in the Federal Register identifying each area that
is determined as having failed to attain and its reclassification.
DATES: This rule is effective on January 27, 2020.
ADDRESSES: The EPA has established a docket for this action under
docket ID no. EPA-R08-OAR-2019-0354. All documents in the docket are
listed on the http://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; you may 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, (303) 312-6563, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our August
15, 2019 proposal, in which we proposed to determine that the Denver
Area failed to attain the 2008 ozone NAAQS by the applicable attainment
date.\1\ The proposed determination was based upon complete, quality-
assured, and certified ozone monitoring data that showed that, at 0.079
parts per million (ppm), the 8-hour ozone design value for the area
exceeded 0.075 ppm for the period 2015-2017.\2\ The EPA proposed that
the
[[Page 70898]]
Denver Area would be reclassified as a Serious nonattainment area by
operation of law on the effective date of a final action finding that
the area failed to attain the 2008 ozone NAAQS by the applicable
attainment date for Moderate areas.\3\ For the Denver Area, we also
proposed deadlines for submittal of SIP revisions and implementation of
the related control requirements for the Serious nonattainment area
consistent with due dates and implementation deadlines for Moderate
areas across the country that failed to attain by the July 20, 2018
attainment date.\4\
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\1\ Proposed Rule and Notice of Public Hearing, Finding of
Failure to Attain and Reclassification of Denver Area for the 2008
Ozone National Ambient Air Quality Standard, 84 FR 41674 (Aug. 15,
2019).
\2\ See id.; Proposed Rule, Determinations of Attainment by the
Attainment Date, Extensions of the Attainment Date, and
Reclassification of Several Areas Classified as Moderate for the
2008 Ozone National Ambient Air Quality Standards, 83 FR 56781,
56784 (Nov. 14, 2018), Docket ID no. EPA-HQ-OAR-2018-0226; and Air
Quality System (AQS, https://www.epa.gov/aqs) data, monitor ID 08-
059-0011. A design value is a statistic that describes the air
quality status of a given location (i.e., air quality monitor) with
respect to 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).
\3\ See CAA section 181(b)(2)(A), 42 U.S.C. 7511(b)(2)(A).
\4\ See Final Rule, Determinations of Attainment by the
Attainment Date, Extensions of the Attainment Date, and
Reclassification of Several Areas Classified as Moderate for the
2008 Ozone National Ambient Air Quality Standards, 84 FR 44238 (Aug.
23, 2019).
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II. Final Action
The EPA held a public hearing on the proposal at the Denver
regional offices on September 6, 2019 and accepted written public
comments through September 16, 2019. All comments received during the
public comment period, as well as 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 was part of a national rulemaking concerning
Moderate areas) may be found in the electronic docket for this final
action. Key comments and the agency's responses are included in this
section, below. A Response to Comments document including all
significant comments received on the EPA's proposal and the agency's
responses to those comments is in the docket for this rulemaking. To
access the full set of comments received and the Response to Comments,
please go to http://www.regulations.gov and search for Docket No. EPA-
R08-OAR-2019-0354, or contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.
A. Determination of Failure To Attain and Reclassification
In accordance with CAA section 181(b)(2), the EPA is finalizing its
proposed determination that the Denver Area failed to attain the 2008
ozone NAAQS by the applicable attainment date of July 20, 2018.\5\
Therefore, on the effective date of this final action, the area will be
reclassified by operation of law from Moderate to Serious for the 2008
ozone NAAQS.\6\ Once reclassified to Serious, the Denver Area will be
required to attain the standard ``as expeditiously as practicable'' but
no later than nine years after the initial designation as
nonattainment, which in this case would be no later than July 20, 2021.
If the area attains the 2008 ozone NAAQS before the Serious area
attainment date, Colorado may request redesignation to attainment,
provided the State can demonstrate that it has met the criteria under
CAA section 107(d)(3)(E).\7\
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\5\ See 42 U.S.C. 7511(b)(2); 84 FR 41674.
\6\ The revised classification will appear in the Federal
Register at 40 CFR 81.306.
\7\ 42 U.S.C. 7407(d)(3)(E). Redesignation guidance and more
information about the Clean Data Policy are available at https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp.
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B. Summary of Major Comments and Responses
The EPA received about 460 comments on its proposal to determine
that the Denver Area failed to attain by the applicable attainment date
and to reclassify the area to Serious nonattainment. We also received
and are considering in this action 14 pertinent comments on our
previous proposal to grant the State's since-withdrawn request for an
attainment date extension.\8\ All comments received are posted in the
docket for this action, and responses to all significant comments are
in the Response to Comments document in the docket. Below is a summary
of the major adverse comments and our responses to them.
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\8\ 83 FR 56781; these comments are available at docket ID no.
EPA-R08-OAR-2019-0354-0011.
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Comments concerning the withdrawn extension request: Several
commenters requested that the EPA reinstate the one-year attainment
date extension to give the Denver Area time to attain the NAAQS. Some
expressed concern that withdrawal of the one-year extension of the
attainment date would not improve air quality as expeditiously as
possible. One commenter pointed to a lawsuit at the Colorado Court of
Appeals \9\ and stated that the Court could possibly invalidate the
withdrawal of the attainment date extension request.
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\9\ See Defend Colorado comment letter, docket ID no. EPA-R08-
OAR-2019-0354-0334.
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Response: By letter dated June 4, 2018,\10\ the Colorado Department
of Public Health and Environment (CDPHE) requested an extension of the
Denver Area Moderate attainment date and certified that the State of
Colorado complied with all the requirements and commitments pertaining
to the Denver Area Moderate ozone area SIP, in accordance with CAA
section 181(a)(5)(A). On November 14, 2018, the EPA proposed in our
national Determination of Attainment by the Attainment date (DAAD)
action to grant a 1-year extension of the attainment date for the
Denver Area.\11\ In a letter dated March 26, 2019, Colorado Governor
Jared Polis informed the EPA that the State was withdrawing its June 4,
2018, request for a one-year attainment date extension for the 2008
ozone NAAQS.\12\ We therefore stated in our final national DAAD action
that we were not taking final action on the extension but would be
addressing whether the Denver area attained the 2008 NAAQS by the July
20, 2018 attainment date and any associated reclassification in a
separate action.\13\ We proceeded in this fashion because the EPA
interprets CAA section 181(a)(5) to require a request from a state
before the EPA may consider granting a one-year attainment date
extension.\14\ Accordingly, because the Governor has withdrawn the
State's request, the EPA is not taking final action to grant a one-year
extension for the Denver Area, and instead is determining that the
Denver Area failed to attain by the attainment date.
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\10\ Letter from Garrison Kaufman, Director, Air Pollution
Control Division, CDPHE to Doug Benevento, ``Submittal of
Exceptional Events Demonstration and Request to Extend 2008 Ozone
National Ambient Air Quality Standard Attainment Deadline for the
Denver Metropolitan/North Front Range Nonattainment Area'' (June 4,
2018), docket ID no. EPA-R08-OAR-2019-0354-0002.
\11\ 84 FR at 56784.
\12\ Letter from Governor Jared Polis to Doug Benevento,
Regional Administrator, EPA Region 8, ``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 Areas'' (March 26, 2019), docket ID no. EPA-R08-
OAR-2019-0354-0012.
\13\ 84 FR at 44242.
\14\ See id.
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Comments opposing reclassification: Several commenters disagreed
with the EPA's proposal to reclassify the Denver Area from a Moderate
to a Serious nonattainment area. The commenters cited various reasons
for their opposition. One asserted that but for international
emissions, Colorado would comply with the applicable ozone NAAQS, while
another asserted
[[Page 70899]]
that the State's decision not to pursue a CAA section 179B
international emissions demonstration was ``misguided.'' Another
commenter alleged that the Denver Area cannot attain the standard by
July 20, 2021, and that reclassification would force businesses to
adopt new control strategies ``with no scientific evidence that such
strategies will achieve any reduction in ozone.'' One comment focused
on data, claiming that the CDPHE annual air quality data is
``incomplete and materially flawed'' because it does not account for
international emissions and exceptional events, and that the ``based
on'' language of section 181(b)(2) gives the EPA the discretion to
consider factors other than the air quality data submitted by the
state. The commenter asked the EPA to reopen the public comment period
so that it can ``more fully evaluate the impact of international
emissions and exceptional events on ozone concentrations in Colorado.''
Also, the commenter urged the EPA to propose a new rule finding that
the Denver Area attained the 2008 ozone NAAQS.
Response: Detailed responses to the above comments are in the
Response to Comments document in the docket for this action. A summary
of those responses follows. The EPA has a mandatory duty under CAA
section 181(b)(2) to determine whether the Denver area attained by its
July 20, 2018 attainment date based on the area's design value as of
the attainment date. The area's 2015-2017 design value of 0.079 parts
per million is based on certified, quality-assured air quality
monitoring data. None of the air quality considerations raised by
commenters permits the EPA to make a different determination of
attainment for the Denver area.
With respect to the influence of international emissions on a
nonattainment area, CAA section 179B(b) \15\ specifies that ``any
state'' that establishes to the satisfaction of the Administrator that
an ozone nonattainment area in such state would have attained the ozone
NAAQS ``but for emissions emanating from outside the United States'' is
not subject to CAA requirements for reclassification upon failure to
attain.\16\ The clear statutory text of CAA section 179B(b) limits the
option to make the section 179B(b) demonstration to the state with
jurisdiction over the relevant ozone nonattainment area. There is no
statute or rule requiring the state to submit a 179B(b) demonstration.
As noted by some of the commenters, the CAA is based on a cooperative
federalism structure, and in that structure, Congress reserved for each
state the discretion, based on its expertise and judgment, whether to
seek relief under CAA section 179B(b). The EPA has no authority to
require the state to make a different decision, nor may any party make
such a demonstration on behalf of the state. The EPA has not received a
section 179B(b) demonstration from Colorado.
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\15\ 42 U.S.C. 7509a(b). Section 179B(a) is not relevant to this
action, because it concerns the approvability of attainment
demonstrations, and does not apply to reclassifications.
Accordingly, our discussion focuses on section 179B(b).
\16\ The text of that section contains an erroneous reference to
section 18l(a)(2) instead of 181(b)(2); our response to the comment
would be the same regardless of the cross-referenced section. See
General Preamble for the Implementation of Title I of the Clean Air
Act Amendments of 1990, 57 FR 13498, 13569 (Apr. 16, 1992).
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As to exceptional events, an acceptable demonstration must meet
requirements of the Exceptional Events Rule, promulgated at 40 CFR
50.14. Under this rule, demonstrating that an event meets these
requirements begins with a state identifying monitoring data that were
affected by an exceptional event and resulted in exceedances or
violations of any NAAQS for purposes of a regulatory determination.
Once a state identifies such data, it may choose to notify the Regional
EPA office of its intent to submit an exceptional event
demonstration.\17\ If the state chooses to submit a demonstration, it
flags the associated data and creates an initial event description in
the EPA's Air Quality System. The state and the EPA communicate about
any potential issues or deadlines that may be pertinent to the
submission, and once the demonstration is finalized, the state must
provide notice and opportunity for public comment. After these steps
have been completed, the state submits the demonstration to the
Regional EPA office for analyses and potential concurrence.
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\17\ 40 CFR 50.14(a).
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As some commenters note, the EPA previously reviewed two
exceptional event demonstrations submitted as a part of Colorado's now-
withdrawn request for an attainment date extension.\18\ These
demonstrations were considered in calculating the design value for the
Denver Area that this action is based on. That is, the 0.079 ppm design
value for the Denver Area excludes the two days covered by the
previously submitted exceptional event demonstrations. While the
exclusion of those two days of data qualified the Denver Area for the
1-year extension of the attainment date, the area's design value as of
the attainment date exceeds the NAAQS whether or not the exceptional
events days are excluded. The EPA will review any exceptional event
demonstrations that may be provided by Colorado in the future, as
potentially relevant to future actions, but we have received no other
demonstrations that relate to this action. As noted above, CAA section
181(b)(2)(A) requires the EPA Administrator to determine whether an
area attained the 2008 ozone 8-hour NAAQS based on the area's design
value as of the July 20, 2018 attainment date, which in this case was
0.079 ppm, based on data from calendar years 2015-2017.
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\18\ See Letter from Garrison Kaufman (June 4, 2018), docket ID
no. EPA-R08-OAR-2019-0354-0002.
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Finally, the EPA disagrees with the assertion that section
181(b)(2) affords the agency the discretion to consider other factors
besides an area's air quality design value in determining whether an
area attained by its attainment date. But even if the commenters'
interpretations were correct, for the reasons explained above and in
the Response to Comments, it would be reasonable in this case not to
exercise that discretion, and to consider only the design value.
Comment: Several commenters urged the EPA not to finalize
reclassification of the Denver Area to Serious because it will result
in ``immediate and long-term damage'' to the State's economy and have
``immeasurable economic impacts on the business community'' and
elsewhere. Several commenters claimed that reclassification would
result in the loss of federal highway funds.
Response: The CAA does not allow the EPA to consider economic
impacts in assessing whether an area has attained the NAAQS by the
applicable date. Instead, CAA section 181(b)(2) requires the EPA to
make the determination of attainment based solely on the design value,
which is derived entirely from monitored air quality data. Here, we
find that the Denver Area did not attain the 2008 Ozone NAAQS by the
Moderate attainment date, based on the area's 2015-2017 design value of
0.079 ppm--which unequivocally exceeds the standard of 0.075 ppm.\19\
As required by CAA section 181(b)(2)(A), the determination that the
Denver Area failed to attain by the attainment date results in a
reclassification to Serious by operation of law.
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\19\ See 83 FR 56784.
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As to loss of highway funds, the mere reclassification of an area
does not
[[Page 70900]]
automatically trigger highway sanctions or increased offset
requirements under section 179(b)(1). Sanctions would only be a
possibility if the EPA finds that the State has failed to submit a plan
under section 110, disapproves a submission, or finds that any
requirement of an approved plan is not being properly implemented, and
would only be required if the State fails to remedy the deficiency
within 18 months.
Comment: Several commenters were concerned about the need for
businesses to obtain major source permits because the major source
threshold drops with a Serious classification, and about the potential
of an increased backlog at CDPHE for issuing permits.
Response: We acknowledge commenters' concerns regarding resource
needs for permitting new major sources under a Serious
reclassification. However, as previously discussed, CAA section
181(b)(2) sets forth the requirements for the EPA to make an attainment
determination and subsequent reclassification due to failure to attain,
and does not afford the agency any discretion to refrain from
reclassification because of commenters' concerns about permitting. The
EPA recognizes the challenges posed by a Serious classification,
though, and is committed to working closely with Colorado to help them
with planning requirements associated with this classification.
C. Comments Concerning Serious Area SIP Revision Submission Deadlines
and Reasonably Available Control Technology (RACT) Implementation
Deadlines
The EPA received comments on the proposed Serious area deadlines
for submitting SIP and RACT revisions, and on the deadlines for
implementation of RACT. After full consideration of those comments, and
pursuant to CAA section 182(i), the EPA is finalizing the following SIP
submission due dates and RACT implementation deadlines for Colorado.
The due date for Serious area SIP revisions, including RACT measures
tied to attainment for the Denver Area, will be August 3, 2020. That is
also the implementation deadline for RACT measures tied to attainment.
For SIP revisions for RACT measures not tied to attainment, the EPA is
finalizing a due date of March 23, 2021 and an implementation deadline
of July 20, 2021. All of these deadlines are consistent with deadlines
finalized in the August 2019 national rulemaking that reclassified
several other areas classified as Moderate to Serious for the 2008
ozone NAAQS.\20\ August 3, 2020, is also the deadline for areas
classified Moderate and higher for the 2015 ozone NAAQS to submit RACT
SIP revisions.\21\
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\20\ See 84 FR 44238.
\21\ See Final Rule, Implementation of the 2015 National Ambient
Air Quality Standards for Ozone: Nonattainment Area State
Implementation Plan Requirements, 83 FR 62998, 63007 (Dec. 6, 2018)
(setting RACT submission deadlines at ``no later than 24 months
after the effective date of nonattainment designation''); Final
Rule, Additional Air Quality Designations for the 2015 Ozone
National Ambient Air Quality Standards, 83 FR 25776 (June 4, 2018)
(designating areas effective August 3, 2018).
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Comments on August 3, 2020 deadlines: Some commenters opposed the
deadline for SIP submissions and implementation of RACT measures tied
to attainment because they asserted that deadline would not provide a
reasonable amount of time to evaluate control options, conduct
rulemaking, and give affected sources sufficient time to implement
control requirements. Several commenters said that it would not be
achievable for Colorado to develop and submit a SIP by the August 3,
2020 deadline, especially because of Colorado's legislative process.
These commenters preferred a period of 18 months or more, or at least
the same amount of time as other reclassified areas, for Serious Area
SIP submission due dates and implementation deadline for RACT measures
tied to attainment. Several comments suggested that an extended
deadline for SIP submittal could result in more significant emission
reduction measures than a shortened deadline. On the other hand, other
comments supported the August 2, 2020 deadline based on the need to
``rapidly address the pollution problem,'' and one commenter claimed
that the EPA's ``history of repeated delay in implementing the 2008
NAAQS further justifies EPA's proposal to adopt the same SIP submission
due dates and implementation deadlines that were finalized in EPA's
August 2019 national rulemaking.''
Response: CAA section 182(i) gives the Administrator the authority
to adjust SIP submission due dates as necessary or appropriate to
assure consistency among SIP submissions.\22\ In interpreting
``consistency among the required submissions,'' the EPA is not only
considering submissions for multiple ozone NAAQS that are currently
being implemented, but also consistency among the various similarly
situated nonattainment areas that are being reclassified. As stated in
section II of the proposal's preamble, ``given the State's commitment
to addressing its Serious Area obligations, and given section 182(i)'s
focus on consistency, we [find] 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.'' \23\
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\22\ 42 U.S.C. 7511a(i).
\23\ 84 FR at 41676.
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With regard to the requests for a period of 18 months or longer for
submitting SIP revisions, the governor's 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.'' We will work with Colorado's air planning agencies as they
develop additional attainment plans. Furthermore, Colorado has known
that revised implementation plans would be due soon after
reclassification, in order to provide for expeditious attainment of the
2008 ozone NAAQS, and has had the opportunity to make progress on plan
development activities before issuance of this final action. Colorado
was aware of proposed Serious SIP due dates since the November 14, 2018
proposed DAAD, which is evident from the comment letter submitted by
CDPHE in connection with that proceeding.\24\ And previously, when the
Denver Area was reclassified from Marginal to Moderate
nonattainment,\25\ the State only had seven months from the effective
date of reclassification to submit Moderate and RACT SIPs. The Colorado
Air Quality Control Commission has adopted new and revised rules in
2019 to prepare for the development and submission of a Serious SIP.
Some of these include adoption of Regulation Number 21 to establish VOC
content limits for consumer products and architectural and industrial
maintenance coatings manufactured and/or sold in Colorado, revisions to
Regulation Number 7 to minimize emissions from the oil and gas sector,
and adoption of certain RACT for major sources with VOC and/or
NOx emissions equal to or greater than 50 tons per year
(tpy). Nonetheless, the EPA recognizes the challenges posed by these
due dates and deadlines and is committed to working closely with
[[Page 70901]]
states to help them as they prepare SIP revisions in a timely manner.
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\24\ Comment submitted by Garry Kaufman, Director, Air Pollution
Control Division, CDPHE and Mike Silverstein, Executive Director,
Regional Air Quality Council, docket ID no. EPA-R08-OAR-2019-0354-
0011.
\25\ Final Rule, Determinations of Attainment by the Attainment
Date, Extensions of Attainment Date, and Reclassification of Several
Areas for the 2008 Ozone National Ambient Air Quality Standards, 81
FR 26697 (May 4, 2017).
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Comment on deadline for implementing RACT measures not tied to
attainment: One commenter stated that adopting and enforcing RACT by
July 20, 2021 is a significant regulatory burden, and that the
legislative framework in Colorado ``makes it unworkable for Colorado to
meet the proposed deadlines for RACT revisions and the proposed
deadlines are therefore arbitrary and capricious.'' CDPHE's comment on
the November 14, 2018 proposal recommended aligning the Serious SIP
submittals, including RACT, with the Moderate area SIP submittal for
the 2015 ozone standard.\26\ Alternatively, the State asked for a
period of 18 months to two years from the effective date of
reclassification to submit a Serious RACT SIP. Several commenters on
this action supported the time frames that CDPHE recommended.
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\26\ 83 FR 56781.
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CDPHE preferred a RACT implementation deadline of January 1, 2024,
as proposed in the national notice, to allow more time for Colorado to
identify, adopt, and implement measures for ozone precursor reductions.
One commenter agreed with this deadline and claimed that it would be
``unlikely that Colorado [could] consider any measures not already in
place for sources over 100 tpy'' with an implementation date of August
3, 2020. Other commenters supported the proposal to adopt the same SIP
submission due dates and implementation deadlines that were finalized
in the EPA's August 2019 national rulemaking, citing to the need for
national consistency under Section 182(i).
Response: As previously discussed, the EPA has concluded that it is
appropriate under CAA section 182(i) to align the submission and
implementation deadlines for RACT not needed for attainment with other
areas recently reclassified to Serious for the 2008 ozone NAAQS. The
deadlines that the State has requested are well beyond the Serious area
attainment date, and it is self-evident that an implementation deadline
beyond the attainment date cannot serve timely attainment. Also, the
deadlines being finalized today best support the State's expressed
commitment to reducing ground level ozone concentrations in the Denver
Area. The approach being finalized sets a later deadline for RACT
implementation than for submission, which allows some time to implement
RACT measures where it is possible to do so. As noted in the August 23,
2019 rulemaking, we believe that a slightly longer timeframe for
measures that are not directly tied to the area's attainment can be
appropriate, especially where an area is simultaneously implementing
two ozone standards, such that additional controls will help the area
attain both standards more expeditiously.
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 an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This rule does not impose any new information collection burden
under the PRA not already approved by the Office of Management and
Budget.\27\ This action does not contain any information collection
activities and serves only to make final: (1) A determination that the
Denver Area Moderate ozone nonattainment area failed to attain the 2008
NAAQS by the July 20, 2018 where such area will be reclassified to
Serious nonattainment for the 2008 ozone standards by operation of law
upon the effective date of the final reclassification action; and (2)
establishment of adjusted due dates for SIP revisions, including RACT
SIP revisions, and RACT implementation deadlines.
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\27\ On April 30, 2018, the OMB approved the EPA's request for
renewal of the previously approved information collection request
(ICR). The renewed request expires on April 30, 2021, three 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
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 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 70902]]
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This action does not provide EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods.
L. Congressional Review Act (CRA)
This rule is exempt from the CRA because it is a rule of particular
applicability. The rule makes factual determinations for specific
entities and does not directly regulate any entities. The determination
of failure to attain the 2008 ozone NAAQS (and resulting
reclassification) does not in itself create any new requirements beyond
what is mandated by the CAA.
M. Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 24, 2020. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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 81
Environmental protection, Air pollution control, Carbon monoxide,
Designations and classifications, Greenhouse gases, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Dated: December 16, 2019.
Gregory Sopkin,
Regional Administrator, Region 8.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 81 as follows:
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--Section 107 Attainment Status Designations
0
2. In Sec. 81.306, the table ``Colorado--2008 8-Hour Ozone NAAQS
(Primary and secondary)'' is amended by revising the ``Date'' and
``Type'' entries under ``Classification'' for ``Denver-Boulder-Greeley-
Ft. Collins-Loveland, CO:2'' to read as follows:
Sec. 81.306 Colorado.
* * * * *
Colorado--2008 8-Hour Ozone NAAQS
[Primary and secondary]
----------------------------------------------------------------------------------------------------------------
Designation Classification
----------------------------------------------------------------------------------------------------------------
Designated Area Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
Denver-Boulder-Greeley-Ft. Collins- .............. Nonattainment........ 1/27/2020. Serious.
Loveland, CO: \2\.
* * * * * * *
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* * * * *
[FR Doc. 2019-27485 Filed 12-23-19; 8:45 am]
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