[Federal Register Volume 87, Number 93 (Friday, May 13, 2022)]
[Rules and Regulations]
[Pages 29232-29236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10211]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2020-0644; FRL-9164-02-R8]


Air Plan Approval; 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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the State of Colorado. 
The submittal certifies that the State of Colorado has fulfilled, 
through previous SIP revisions, 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 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, 173, and 182 of the Clean Air Act 
(CAA).

DATES: This rule is effective on June 13, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2020-0644. 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 http://www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Matthew Lang, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-6709, email address: 
[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 
November 2, 2021 proposal.\1\ In that document we proposed to approve a 
NNSR permit program certification for the DMNFR Marginal NAA because 
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 
finalizing its proposed approval of the NNSR certification submitted by 
the State of Colorado for the DMNFR Marginal NAA under the 2015 8-hour 
ozone NAAQS. With this final rulemaking Colorado will have met the NNSR 
permit program requirement stemming from the Marginal nonattainment 
designation of the DMNFR area.
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    \1\ 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, 86 
FR 60434 (November 2, 2021).
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    EPA held a 30-day comment period on the proposed rulemaking 
beginning on November 1, 2021 and closing on December 2, 2021. We 
received comments on the proposal from two commenters. One individual 
expressed support for our proposed rulemaking. We also received 
comments from the Center for Biological Diversity (CBD) claiming that 
EPA must hold a new comment period and that Colorado's SIP is 
inadequate with respect to NNSR permit program requirements. We thank 
the commenters and our responses to the comments received are included 
below.

II. Response to Comments

Commenter 1

    One commenter expressed support of the proposed approval and 
provided a general suggestion that sources be given time to make any 
needed changes to practices.
    Response: With respect to the commenter's concern that sources be 
given time to make changes to practices, we note that this rulemaking 
does not impose any additional regulatory requirements on sources that 
would take time to implement. NNSR is a preconstruction review program 
that only applies to new sources and major modifications at existing 
sources. This action solely approves the certification submitted by the 
State of Colorado explaining that the existing federally-approved NNSR 
permit program meets the requirements of 172(c)(5) and 173 of the CAA 
and fulfills the specific minimum SIP requirements of 40 CFR 51.165 for 
NNSR permit programs for the 2015 8-hour ozone NAAQS.

[[Page 29233]]

Comments From the Center for Biological Diversity

Comment 1
    CBD asserts that EPA must hold a new comment period since EPA did 
not include the regulatory provisions that it is proposing to approve 
in the docket.
    Response: In this rulemaking, EPA proposed to approve a NNSR permit 
program certification that was submitted by Colorado and which 
certified that the State's existing SIP-approved NNSR permit program 
meets the marginal nonattainment requirement for implementation of a 
NNSR permit program. As such, our action does not approve any actual 
revisions to the text of the Colorado SIP, as was stated in our 
proposed rulemaking. The provisions which have been approved by EPA 
into the Colorado SIP via past rulemaking actions are publicly 
available, and were publicly available at the time of our proposed 
rulemaking, on EPA's web page showing approved statutes and regulations 
in the Colorado SIP.\2\ Links to the EPA actions that have most 
recently approved revisions to each section of the Colorado SIP are 
available at this EPA web page and can also be found at 40 CFR part 52, 
subpart G.\3\
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    \2\ See https://www.epa.gov/sips-co/epa-approved-statutes-and-regulations-colorado-sip. We note that this compilation of EPA-
approved statutes and regulations had not yet been updated at the 
time of our proposed rulemaking to reflect the revisions to 
Colorado's NNSR program that were approved by EPA in 2019 at 84 FR 
18991 (May 3, 2019). However, that action (84 FR 18991) was 
specifically referenced in our notice of proposed rulemaking as 
being the most recent approval of revisions to Colorado's SIP-
approved NNSR permit program.
    \3\ See https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-52/subpart-G.
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    Furthermore, the provisions of Colorado's SIP that the state 
certified as meeting the requirements for NNSR programs for new major 
sources and major modifications at existing sources in ozone 
nonattainment areas are specifically listed in the ``Clean Air Act 
Elements Table'' provided at attachment 7 of Colorado's SIP submittal. 
Attachment 7 of the submittal was referenced in the proposed rulemaking 
as being the NNSR provisions that Colorado is certifying. See 86 FR 
60435. According to that attachment, the relevant SIP provisions for 
the NNSR permit program are found in sections I, II, and V of 
Regulation 3, Part D of the Colorado Code of Regulations (CCR). Instead 
of approving new revisions to the text of the existing SIP, this action 
approves those existing regulations which have already been 
incorporated into the SIP as meeting NNSR permit program requirements 
for ozone NAAs under the 2015 8-hour ozone NAAQS. Since no revisions to 
the Colorado SIP were submitted by the State and because, as mentioned 
previously, the existing SIP is available to the public and specific 
sections of the submittal highlighted the relevant provisions in the 
SIP, it is not necessary to include a copy of the SIP-approved NNSR 
permit program in the docket of the proposed rulemaking. Furthermore, 
it is not necessary to include a copy of the SIP-approved NNSR permit 
program in the docket since the opportunity for public comment was 
previously provided on each occasion that revisions to the NNSR permit 
program were approved into the SIP. This is consistent with other 
actions taken by EPA in approving certification SIP submittals to meet 
the 2008 and 2015 Marginal area SIP revision requirement for NNSR 
permit programs in which the State submittals and EPA approvals make 
reference to the relevant State regulations that are already federally 
approved while noting the most recent approval of revisions to the NNSR 
provisions.\4\
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    \4\ Air Plan Approval; Texas; Clean Air Act Requirements for 
Nonattainment New Source Review and Emission Statements for the 2015 
Ozone National Ambient Air Quality Standards, 86 FR 50456 (September 
9, 2021). Approval and Promulgation of Air Quality Implementation 
Plans; Pennsylvania; Nonattainment New Source Review Requirements 
for 2008 8-Hour Ozone Standard, 84 FR 5598 (February 22, 2019).
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Comment 2
    CBD asserts that EPA must disapprove Colorado's NNSR permit program 
certification because the NNSR program does not address the designation 
of northern Weld County as nonattainment given that this designation is 
effective beginning on December 30, 2021.
    Response: This comment concerns the applicability of Colorado's 
NNSR permit program to the portion of Weld County that was newly 
designated as nonattainment as part of the DMNFR NAA, effective on 
December 30, 2021. Colorado's SIP-approved NNSR program applies 
generally to all ozone NAAs within the State of Colorado.\5\ Thus, upon 
the effective date of designation of northern Weld County as 
nonattainment through inclusion in the DMNFR NAA, the existing NNSR 
permit program applies by operation of law to new major sources and 
major modifications in the portion of northern Weld County that has 
been newly designated as nonattainment. Since the 2015 nonattainment 
boundary was remanded without vacatur, the NAA boundary that did not 
include northern Weld County was effective at the time of publication 
of our proposed rule. Therefore, our proposed rule noted that to the 
extent that EPA's designation changes on remand, Colorado will be 
required to address the change as part of a future SIP revision. Upon 
further review, EPA acknowledges that the footnote in EPA's proposal 
that commenters reference (footnote 6 at 86 FR 60435) could be 
clearer.\6\ That footnote was not intended to speak directly to the 
NNSR permit program requirement, but rather was intended to make a 
general point that additional supplements or revisions could be needed 
to fulfill Marginal area SIP revision requirements should a change in 
the NAA boundary be made final. This footnote is consistent with the 
language used in EPA's final action regarding designations for remanded 
areas at 86 FR 67869.\7\ Since EPA interprets Colorado's NNSR permit 
program as being generally applicable to any ozone NAA within the 
State, it became applicable to the newly-designated portion of Weld 
County on the effective date of this designation (Dec. 30, 2021). There 
is no need for additional revisions to the existing NNSR permit program 
to make it applicable to the area of northern Weld County designated as 
nonattainment in 2021.\8\
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    \5\ 5 CCR 1001-5:3D.II.A.25.b; 5 CCR 1001-5:3D.V.A.3.
    \6\ Footnote 6 at 86 FR 60435 of EPA's proposal is copied here 
for reader convenience: The EPA excluded part of Weld County 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.
    \7\ Additional Revised Air Quality Designations for the 2015 
Ozone National Ambient Air Quality Standards: El Paso County, Texas 
and Weld County, Colorado, 86 FR 67864 (November 30, 2021).
    \8\ EPA acknowledges that 2021 revised designations action 
amending the boundary line for Denver Metro/North Front Range NAA to 
include the northern portion of Weld County has been challenged in 
court. Board of County Commissioners of Weld County, CO v. EPA, No. 
21-1263 (D.C. Cir., Dec. 15, 2021). On March 15, 2021, the court 
denied Petitioners' request to stay the Agency's revised 
designations action. If the court eventually takes an action that 
results in northern Weld county's exclusion from the Denver Metro/
North Front Range NAA, then Colorado's existing NNSR permit program 
would no longer apply there until such time northern Weld County is 
again part of an ozone nonattainment area.
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Comment 3
    CBD asserts that EPA must disapprove Colorado's certification of 
the state's NNSR permit program because the program does not ensure 
that minor sources in the DMNFR NAA will not cause or contribute to 
increment violations.
    Response: The NNSR permit program requirements that are the focus 
of this action are specific to new major sources and modifications at 
existing sources in

[[Page 29234]]

ozone NAAs and include the requirements that were promulgated in the 
``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS and which are 
listed in our proposed rulemaking.\9\ Therefore, since none of the 
requirements for NNSR major source permit programs at 40 CFR 51.165 
concern contributions to consumption of PSD increment, this comment 
falls outside the scope of this proposed rulemaking. Furthermore, we 
again note for clarity that the EPA is not approving any revision to 
the Colorado SIP. Instead, EPA is approving Colorado's certification 
that the existing SIP-approved NNSR permit program continues to meet 
the minimum requirements for NNSR permit programs in Marginal ozone 
NAAs under the 2015 8-hour ozone NAAQS. Colorado's SIP certification 
did not, and need not, address the PSD or minor source permitting 
requirements under 40 CFR 51.166 or 51.160. Further, there is no PSD 
increment for ozone in section 51.166(c).
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    \9\ Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard-Phase2; Final Rule to Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention 
of Significant Deterioration as They Apply in Carbon Monoxide, 
Particulate Matter and Ozone NAAQS; Final Rule for Reformulated 
Gasoline, 70 FR 71612 (November 29, 2005).
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Comment 4
    CBD asserts that EPA must disapprove Colorado's certification of 
their NNSR permit program because the program provides for exclusions 
of temporary emissions and emissions from internal combustion engines 
on vehicles from being used in the determination of whether a source is 
a major stationary source subject to NNSR permitting. CBD claims these 
exclusions are not allowed by the CAA.
    Response: As referenced by the commenter, the definition of 
potential to emit at 40 CFR 51.165(a)(1)(iii) excludes secondary 
emissions in determining the potential to emit of a stationary source. 
Secondary emissions are defined at 40 CFR 51.165(a)(1)(viii) to include 
emissions which would occur because of the construction or operation of 
a major stationary source or major modification, but do not come from 
the major stationary source or major modification itself. NNSR 
permitting concerns continuous operating emissions of a stationary 
source and not temporary emissions or emissions associated with 
construction. Therefore, the exclusion of emissions from temporary 
activities contained at Section II.A.25.f of Regulation 3, Part D in 
the CCR is allowable per the definition of secondary emissions and 
exclusion of secondary emissions under the definition of potential to 
emit at 40 CFR 51.165. The exclusion of emissions from internal 
combustion engines on any vehicle at Section II.A.25.f of Regulation 3, 
Part D is appropriate since mobile source emissions from nonroad mobile 
and on-road mobile sources are not considered as part of the operating 
emissions of a stationary source. However, under the definition of 
``Nonroad engine'' at 40 CFR 1068.30 an internal combustion engine is 
not a nonroad engine if it remains or will remain at a location for 
more than 12 consecutive months and would instead become a stationary 
engine as specified by 40 CFR 1068.31(e)(1). This definition is 
reflected in Section I.B.31.b.(iii) of Regulation 3, Part A of the CCR 
which is incorporated into the SIP.\10\ Mobile source emissions are 
regulated by Title II of the CAA which includes emissions standards for 
moving sources and therefore mobile source emissions are not included 
in the determination of whether a stationary source is a major source 
for NNSR purposes. Section II.G of Appendix S to 40 CFR part 51, which 
set forth EPA's interpretive ruling on preconstruction review, details 
that ``since EPA's authority to perform or require indirect source 
review relating to mobile sources regulated under Title II of the Act 
(motor vehicles and aircraft) has been restricted by statute, 
consideration of the indirect impacts of motor vehicles and aircraft is 
not required under this Ruling.'' We therefore disagree with the 
assertion by the commenter that the exclusion of temporary emissions 
and emissions from internal combustion engines on vehicles are not 
allowable in the determination of whether a source is major with 
respect to NNSR permitting.
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    \10\ 5 CCR 1001-5:3A.I.B.31.b.(iii).
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Comment 5
    CBD asserts EPA must disapprove Colorado's certification of their 
NNSR permit program because the program provides for exemptions 
relating to offset requirements not allowed under the CAA or EPA's 
regulations. Specifically, the commenter claims that the following 
exemptions from offset requirements that are located in Regulation 3, 
Part D are not allowed: Portable sources that will relocate outside a 
NAA in less than one year, pilot plants that operate an aggregate of 
less than six months, construction phases of a new or modified 
building/facility/structure/installation, temporary processes or 
activities of less than one year in duration, and sources undergoing 
fuel switches.\11\
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    \11\ 5 CCR 1001-5:3D.V.A.8.a(i)(A)-(E)
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    Response: Appendix S to 40 CFR part 51 is a codification of EPA's 
Emissions Offset Interpretive Ruling on the preconstruction review 
requirements for stationary sources under 40 CFR part 51, subpart I. 
Section IV.B of Appendix S contains exemptions consistent with those 
that the commenter objects to. These exemptions include temporary 
emission sources such as portable facilities that will be relocated 
outside of the NAA after a short period of time, pilot plants, and 
emissions resulting from the construction phase of a new source. We 
highlight that this Appendix S provision concerning offset exemptions 
for temporary emissions from construction phases does not prohibit 
reviewing authorities from concluding that emissions associated with 
construction phases exceeding a period of one year are temporary 
emissions. The language of section IV.B of Appendix S is general enough 
to allow the reviewing authority to exempt emissions resulting from a 
construction phase exceeding one year from offset requirements. Section 
IV.B of Appendix S also includes an exemption for sources which must 
switch fuels due to lack of adequate fuel supplies or where a source is 
required to be modified as a result of EPA regulations. This exemption 
applies only if an applicant has demonstrated that it has made its best 
efforts to obtain sufficient emission offsets and that efforts were 
unsuccessful, the applicant has secured all available emission offsets, 
and the applicant will continue to seek the necessary emission offsets 
and apply them when they become available. Appendix S currently serves 
as a NNSR permitting program that may be applied by states that do not 
have an approved NNSR program in their SIP or lack a particular element 
of such a program. The omission of the Appendix S offset exemptions at 
40 CFR 51.165 does not preclude the inclusion of the same exemptions in 
the Colorado SIP. The Emissions Offset Interpretive Ruling reflects a 
longstanding EPA interpretation of the CAA. EPA does not consider it 
appropriate to allow states without an approved NNSR program to apply 
the exemptions in Appendix S, while denying states who have taken on 
the task of developing an NNSR program for EPA approval the same 
opportunity to implement exemptions that EPA has previously-determined 
to be permissible under the Act. The exemption from offset requirements 
at Section IV.B of Appendix S to 40 CFR

[[Page 29235]]

part 51 specifically for emissions resulting from the construction 
phase of a new source was most recently recognized as an appropriate 
exemption in a permit issued by EPA for the South Fork Windfarm on the 
Outer Continental Shelf (OCS).\12\ Therefore, we disagree with the 
claim made by the commenter that the exemptions at section V.A.8 of 
Regulation 3, Part D are not allowed under the CAA or EPA's regulations 
since, as detailed previously, these exemptions are in section IV.B of 
Appendix S to 40 CFR part 51.
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    \12\ See EPA Response to Comments for South Fork Windfarm OCS 
Air Permit at p. 14. Available online at https://www.epa.gov/system/files/documents/2022-01/sfw-response-comments-final-permit-ocs-r1-04.pdf.
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III. Final Action

    The EPA is finalizing approval of the NNSR permit program 
certification submitted by the State of Colorado because 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.

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 approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     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 
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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the 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 July 12, 2022. 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 52

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

    Dated: May 8, 2022.
KC Becker,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. In Sec.  52.320, the table in paragraph (e) is amended by revising 
the center heading ``Maintenance Plans'' and adding the entry ``Ozone 
(8-hour, 2015) DMNFR NNSR Certification'' at the end of the ``Denver 
Metropolitan Area'' subheading to read as follows:


Sec.  52.320   Identification of plan.

* * * * *
    (e) * * *

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                                         State        EPA  effective  Final rule  citation/
               Title                effective  date        date               date                Comments
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                                                  * * * * * * *
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                                    Maintenance and Attainment Plan Elements
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                                                  * * * * * * *
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                                            Denver Metropolitan Area
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                                                  * * * * * * *
Ozone (8-hour, 2015) DMNFR NNSR           7/6/2020        6/13/2022   May 13, 2022,         ....................
 Certification.                                                        [insert Federal
                                                                       Register citation].
 
                                                  * * * * * * *
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[FR Doc. 2022-10211 Filed 5-12-22; 8:45 am]
BILLING CODE 6560-50-P