[Federal Register Volume 86, Number 209 (Tuesday, November 2, 2021)]
[Proposed Rules]
[Pages 60434-60436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23876]



40 CFR Part 52

[EPA-R08-OAR-2020-0644; FRL-9164-01-R8]

Approval and Promulgation of Implementation Plans; Colorado; 
Denver Metro/North Front Range Nonattainment Area; Nonattainment NSR 
Permit Program Certification for the 2015 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
State of Colorado. The revision certifies that the State of Colorado 
has fulfilled, through a previous SIP revision, Nonattainment New 
Source Review (NNSR) Permit Program requirements under the 2015 8-hour 
ozone National Ambient Air Quality Standards (NAAQS) for the Denver 
Metro/North Front Range (DMNFR) area. The State of Colorado submitted 
the appropriate certification to meet the nonattainment requirements 
for Marginal ozone nonattainment areas (NAAs) for the 2015 8-hour ozone 
NAAQS. The EPA is taking this action pursuant to sections 110, 172, and 
173 of the Clean Air Act (CAA).

DATES: Written comments must be received on or before December 2, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2020-0644, 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.
    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 electronically in 
www.regulations.gov. To reduce the risk of COVID-19 transmission, for 
this action we do not plan to offer hard copy review of the docket. 
Please email or call the person listed in the FOR FURTHER INFORMATION 
CONTACT section if you need to make alternative arrangements for access 
to the docket.

FOR FURTHER INFORMATION CONTACT: Matthew Lang, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6709, [email protected].

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

I. Background

    Ground-level ozone is formed when nitrogen oxides (NOX) 
and volatile organic compounds (VOCs) react in the

[[Page 60435]]

presence of sunlight. Referred to as ozone precursors, these two 
pollutants are emitted by many types of pollution sources, including 
motor vehicles, power plants, industrial facilities, and area wide 
sources, such as consumer products and lawn and garden equipment. 
Scientific evidence indicates that adverse public health effects occur 
following a person's exposure to ozone. These effects are more 
pronounced in children and adults with lung disease. Breathing air 
containing ozone can reduce lung function and inflame airways, which 
can increase respiratory symptoms and aggravate asthma or other lung 
diseases. In 1979, in response to this scientific evidence, the EPA 
promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-
hour ozone NAAQS.\1\ The EPA had previously promulgated a NAAQS for 
total photochemical oxidants.

    \1\ Revisions to the National Ambient Air Quality Standards for 
Photochemical Oxidants, 44 FR 8202 (Feb. 8, 1979).

    On July 18, 1997, the EPA promulgated a revised ozone NAAQS of 0.08 
ppm, averaged over eight hours.\2\ This standard was determined to be 
more protective of public health than the previous 1979 1-hour ozone 
standard. In 2008, the EPA revised the 8- hour ozone NAAQS from 0.08 to 
0.075 ppm.\3\ On October 26, 2015, the EPA strengthened the ground-
level ozone NAAQS to 0.070 ppm, based on extensive scientific evidence 
about ozone's effects on public health and welfare.\4\ Effective August 
3, 2018, the DMNFR area was designated as Marginal nonattainment for 
the more stringent 2015 8-hour ozone NAAQS.\5\ The DMNFR NAA is 
comprised of Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas, 
Jefferson counties and portions of Larimer and Weld counties.\6\

    \2\ National Ambient Air Quality Standards for Ozone, 62 FR 
    \3\ National Ambient Air Quality Standards for Ozone, 73 FR 
16436 (March 27, 2008).
    \4\ National Ambient Air Quality Standards for Ozone, 80 FR 
    \5\ Additional Air Quality Designations for the 2015 Ozone 
National Ambient Air Quality Standards, 83 FR 25776 (June 4, 2018).
    \6\ The EPA excluded part of Weld Country from the DMNFR NAA, 
but that designation was remanded without vacatur in Clean Wisconsin 
v. EPA, 964 F.3d 1145, 1167-69, 1177 (D.C. Cir. 2020). To the extent 
the EPA's designation with respect to Weld County changes on remand, 
CO will be required to address the change in a future SIP revision.

    CAA sections 172 and 182 identify requirements for ozone NAAs. 
Under section 172(c)(5) of the CAA Colorado is required to implement a 
NNSR Permit Program.\7\ On July 27, 2020, through the Colorado 
Department of Public Health and Environment (CDPHE), Colorado submitted 
a SIP revision titled, ``2015 Ozone National Ambient Air Quality 
Standard (NAAQS)--Denver Metro/North Front Range Marginal Nonattainment 
Area Requirements'' to satisfy, in part, the NNSR permit program 
requirement under CAA section 172(c)(5).\8\ Colorado met the reasonable 
notice and public hearing requirements of CAA section 110(a) for the 
SIP revision through notice in the Denver Legal Post on May 23, 2020, 
and a public hearing held on June 18, 2020.\9\ Colorado's SIP revision 
also included a base year emission inventory and emission statement 
certification to satisfy additional Marginal nonattainment requirements 
under CAA sections 182(a)(1) and 182(a)(3)(B), respectively, which the 
EPA will act on separately from the NNSR certification that is the 
subject of this action.

    \7\ Id. 7502(c)(5).
    \8\ Letter dated July 6, 2020, from Jill Hunsaker Ryan, 
Executive Director, CDPHE, to Gregory Sopkin, Regional 
Administrator, EPA, Region 8 (``CO SIP Revision'').
    \9\ CO SIP Revision, Attachments 3 and 4.

II. Summary of SIP Revision

    NNSR is a preconstruction review permit program that applies to new 
major stationary sources or major modifications at existing sources 
within a NAA and is required pursuant to CAA sections 172(c)(5) and 

    \10\ 42 U.S.C 7502(c)(5), 7503.

    NNSR permit program requirements were adopted for the 2015 ozone 
NAAQS at 40 CFR 51.1314 by the implementation rule for the 2015 8-hour 
ozone NAAQS.\11\ The minimum SIP requirements for NNSR permitting 
programs for the 2015 8-hour ozone NAAQS are located at 40 CFR 
51.165.\12\ These NNSR program requirements include those promulgated 
in the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS, the 
2008 Ozone NAAQS SIP implementation Rule, and the 2015 SIP Requirements 
Rule.\13\ Under the Phase 2 Rule, the SIP for each ozone NAA must 
contain NNSR provisions that:

    \11\ Final Rule, Implementation of the 2015 National Ambient Air 
Quality Standards for Ozone: Nonattainment Area State Implementation 
Plan Requirements, 83 FR 62998 (Dec. 6, 2018).
    \12\ 40 CFR 51.1314 includes new source review requirements for 
the 2015 Ozone NAAQS with reference to specific requirements at 40 
CFR 51.165.
    \13\ 70 FR 71611 (November 29, 2005); 80 FR 12164 (March 6, 
2015); 83 FR 62998 (December 6, 2018).

     Set major source thresholds for NOX and VOCs 
pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2);
     Classify physical changes as a major source if the change 
would constitute a major source by itself pursuant to 40 CFR 
     Consider any significant net emissions increase of 
NOX as a significant net emissions increase for ozone 
pursuant to 40 CFR 51.165(a)(1)(v)(E);
     Consider certain increases of VOC emissions in extreme 
ozone NAAs as a significant net emissions increase and a major 
modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F);
     Set significant emissions rates for VOC and NOX 
as ozone precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E);
     Contain provisions for emissions reductions credits 
pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2);
     Provide that the requirements applicable to VOC also apply 
to NOX pursuant to 40 CFR 51.165(a)(8); and
     Set offset ratios for VOC and NOX pursuant to 
40 CFR 51.165(a)(9).\14\

    \14\ 40 CFR 51.165.

    Colorado's SIP Revision certifies that Colorado's existing NNSR 
permit program, covering the DMNFR NAA for the 2015 8-hour ozone NAAQS, 
is at least as stringent as the minimum requirements for NNSR 
permitting programs for the ozone NAAQS at 40 CFR 51.165.\15\ 
Colorado's SIP-approved NNSR program, established in the Colorado Code 
of Regulations (CCR), Regulation 3 Part D applies, in part, to any new 
major stationary source or major modification in a NAA which results in 
the emission of 100 tons per year or more of any NSR-regulated 
pollutant for which the area is nonattainment.\16\ Additionally, 
Regulation 3 Part D specifies that a stationary source that is 
considered major for VOCs or NOX will be considered major 
for ozone.\17\ General emission offset requirements of at least a 1.1:1 
in Marginal ozone NAAs pursuant to CAA section 182(a)(4) are met by 
Regulation 3 Part D, section V.A.3.a(i)(a).\18\ The EPA last approved 
revisions to Colorado's SIP-approved NNSR permit program on May 3, 
2019, in submitted revisions to Regulation 3, Part D.\19\ Furthermore, 
Colorado has previously submitted, and the EPA has approved on July 3, 
2018, a SIP revision certifying that the State's federally approved 
NNSR permit program met the requirement in 40 CFR 51.1114 under the 
2008 8-hour Ozone NAAQS, with the minimum SIP requirements for NNSR 
permit programs located in 40

[[Page 60436]]

CFR 51.165.\20\ The EPA is proposing to approve Colorado's 
certification that the SIP-approved New Source Review permitting 
requirements in Regulation 3, Part D of the CCR meet the requirements 
located in 40 CFR 51.1314 and 40 CFR 51.165.

    \15\ CO SIP Revision, Attachments 1 and 7.
    \16\ 5 CCR 1001-5:3D.II.A.25.b.
    \17\ 5 CCR 1001-5:3D.II.A.25.d.
    \18\ 5 CCR 1001-5:3D.V.A.3.a(i)(a).
    \19\ Final Rule, Approval and Promulgation of Air Quality 
Implementation Plans; Colorado; Revisions to Regulation Number 3, 84 
FR 18991 (May 3, 2019).
    \20\ Final Rule, Approval and Promulgation of State 
Implementation Plan Revisions; Colorado; Attainment Demonstration 
for the 2008 8-Hour Ozone Standard for the Denver Metro/North Front 
Range Nonattainment Area, and Approval of Related Revisions, 83 FR 
31068 (July 3, 2018).

III. Proposed Action

    We are proposing to approve the NNSR Permit Program certification 
provided in Colorado's SIP revision. The certified NNSR Permit Program 
was prepared in accordance with requirements of sections 172(c)(5) and 
173 of the CAA and fulfills the specific minimum SIP requirements of 40 
CFR 51.165. The EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

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 the criteria of the CAA. Accordingly, this 
action merely proposes to approve 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, 
     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.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     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
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    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 proposed 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).

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 

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

    Dated: October 25, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-23876 Filed 11-1-21; 8:45 am]