[Federal Register Volume 89, Number 151 (Tuesday, August 6, 2024)]
[Rules and Regulations]
[Pages 63818-63821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17087]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2024-0225; FRL-12122-02-R8]


Air Plan Approval; Colorado; Interim Final Determination To Stay 
and Defer Sanctions in the Denver Metro/North Front Range 2008 Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: In the Proposed Rules section of this Federal Register, EPA is 
proposing approval and conditional approval of portions of a State 
Implementation Plan (SIP) submission from the State of Colorado dated 
May 3, 2024. The submission relates to Colorado Air Quality Control 
Commission Regulation Number 7 (Reg. 7) and Regulation Number 21 (Reg. 
21), and addresses Colorado's SIP obligation to require sources to meet 
reasonably available control technology (RACT) requirements for 
nonattainment areas for the 2008 ozone National Ambient Air Quality 
Standard (NAAQS), which includes requiring adequate reporting by 
sources. In this action, EPA is making an interim final determination 
based on that proposed approval and conditional approval. The effect of 
this interim final determination is that the imposition of sanctions 
that were triggered by EPA's May 9, 2023 limited disapproval are now 
deferred. Although this action is effective upon publication, EPA will 
take comment on this interim final determination.

DATES: This interim final determination is effective August 6, 2024. 
However, comments will be accepted until September 5, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2024-0225, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
https://www.regulations.gov. The EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points

[[Page 63819]]

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 https://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically in 
https://www.regulations.gov. Please email or call the person listed in 
the FOR FURTHER INFORMATION CONTACT section if you need to make 
alternative arrangements for access to the docket.

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

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

I. Background

    On May 9, 2023, EPA took final action approving portions of the 
2008 8-hour ozone Serious area attainment plan for the Denver Metro/
North Front Range (DMNFR) Area submitted by the State of Colorado on 
March 22, 2021, and portions of additional state implementation plan 
(SIP) submissions made by the State related to those requirements on 
May 8, 2019; May 13, 2020; March 22, 2021; May 18, 2021; and May 20, 
2022.\1\ The State made these SIP submissions to meet Serious ozone 
nonattainment plan requirements for the DMNFR Area, to address 
reasonably available control technology (RACT) requirements for certain 
source categories in the DMNFR Area, and to adopt volatile organic 
compounds (VOC) standards for consumer products and architectural and 
industrial maintenance coatings. In the May 9, 2023 action, EPA also 
finalized a limited approval and limited disapproval of parts of the 
SIP submissions made on May 14, 2018; May 13, 2020; March 22, 2021; May 
18, 2021; and May 20, 2022, with respect to certain RACT categories and 
VOC controls,\2\ and finalized a limited conditional approval and 
limited disapproval of specific provisions intended to meet RACT 
requirements and control VOC emissions.\3\ The limited disapproval 
portions of the May 9, 2023 final rule resulted from the Agency's 
determination that although the rules met RACT requirements with 
respect to stringency, they lacked adequate periodic reporting 
requirements as required under the Clean Air Act (CAA) and EPA 
regulations.
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    \1\ 88 FR 29827, table 1, 29829-29830 (May 9, 2023).
    \2\ Id. at 29830-29831, table 2 (listing portions subject to 
limited approval and limited disapproval), table 3 (RACT 
categories).
    \3\ Id. at 29830-29831, table 3.
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    On July 10, 2023, the State submitted a Petition for 
Reconsideration asking EPA to reconsider the limited disapproval 
portions of the May 9, 2023 final rule. EPA responded to the Petition 
for Reconsideration in a letter dated August 31, 2023, informing the 
State that EPA was granting the petition as to the limited disapproval 
portions of the May 9, 2023 final rule.\4\ Since granting the petition 
for reconsideration, EPA has offered Colorado the opportunity to 
explain more fully how the State's regulations provide for adequate 
reporting, to inform EPA of various actions taken by the Colorado Air 
Pollution Control Division to enhance access to public records and 
information, and to consider what changes to existing regulations would 
improve reporting requirements to address deficiencies. As a result of 
these discussions, Colorado resubmitted Reg. 7 and Reg. 21 with 
additional explanations to support proposed approval of some provisions 
and a commitment to make changes to support proposed conditional 
approval of others.
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    \4\ See letter from EPA Regional Administrator KC Becker to 
Colorado Attorney General Phil Weiser (Aug. 31, 2023), in the docket 
for this action.
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    Under section 110(k)(4) of the CAA, EPA may conditionally approve a 
SIP submission based on a commitment from the State to adopt specific 
enforceable measures within one year from the date of approval. On May 
3, 2024, the State of Colorado resubmitted portions of the prior SIP 
submissions that were the subject of the limited disapproval and also 
submitted a letter committing to undertake additional steps to improve 
public access to regulatory compliance information and clarify existing 
SIP reporting requirements (``Commitment Letter'').\5\ In its 
Commitment Letter, the State committed to submit the necessary SIP 
revisions to EPA by May 31, 2025.\6\
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    \5\ ``Resubmittal of SIP revisions following Reconsideration. 
II. EPA Docket ID Nos.: EPA-R08-OAR-2022-0632; EPA-R08-OAR-2022-
0857; and FRL-10362-02-R8'' commitment letter. Available in the 
docket for this action.
    \6\ ``Resubmittal of SIP revisions following Reconsideration. 
EPA Docket ID Nos.: EPA-R08-OAR-2022-0632; EPA-R08-OAR-2022-0857; 
and FRL-10362-02-R8'' commitment letter. Available in the docket for 
this action.
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    In the Proposed Rules section of this Federal Register, EPA has 
proposed to conditionally approve portions of Colorado's May 3, 2024 
submittal, pending timely submittal of the specified rule revisions by 
May 31, 2025. The underlying SIP provisions that we are proposing to 
conditionally approve are already part of the SIP due to our May 9, 
2023 limited approval and thus are federally enforceable by the State 
and EPA, notwithstanding our conclusion that the current reporting 
requirements may limit potential enforceability by others under CAA 
section 304 citizen suit authority.

II. What action is EPA taking?

    We are making an interim final determination to defer application 
of CAA section 179 sanctions associated with the May 9, 2023 limited 
disapproval. Under 40 CFR 52.31(d)(2)(i), if the State has submitted a 
revised plan to correct the deficiencies identified in the May 9, 2023 
limited disapproval, and EPA proposes to fully or conditionally approve 
the plan and issues an interim final determination that the revised 
plan corrects the identified deficiencies, application of the new 
source offset and highway sanctions shall be deferred. If not deferred, 
the offset sanction would apply on December 8, 2024, and the highway 
sanction would apply on June 8, 2025, in the DMNFR Area.
    Based on the proposed approval and conditional approval of portions 
of Colorado's May 3, 2024 submittal set forth in this document, it is 
more likely than not that Colorado has met the requirement to establish 
that these provisions have reporting requirements for certain source 
categories, or has committed to make revisions for other source 
categories that will include reporting requirements, adequate to comply 
with the relevant CAA requirements under section 110 and EPA 
regulations at 40 CFR 51.211(a), as well as to make the provisions 
legally and practicably enforceable by citizens as authorized under CAA 
section 304. Therefore, EPA is making this interim final determination 
based on our

[[Page 63820]]

concurrent proposal to approve and conditionally approve Colorado's May 
3, 2024 SIP submission that corrects and commits to correct the 
deficiencies identified in our May 9, 2023 limited disapproval with 
respect to the adequacy of reporting requirements of the identified 
provisions.\7\
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    \7\ 88 FR 29827.
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    This interim final determination is consistent with the 
requirements of the Administrative Procedure Act (APA) \8\ for federal 
agency rulemaking. Generally, under the APA, agency rulemaking 
affecting the rights of individuals must comply with certain minimum 
procedural requirements, including publishing a notice of proposed 
rulemaking in the Federal Register and providing an opportunity for the 
public to submit written comments on the proposal before the rulemaking 
can have final effect.\9\ While in this matter EPA is not providing an 
opportunity for public comment before the deferral of CAA section 179 
sanctions is effective, EPA is providing an opportunity, after the 
fact, for the public to comment on the interim final determination. EPA 
will consider any comments received in determining whether to reverse 
the interim final determination. Additionally, EPA is providing an 
opportunity to comment on the proposed approval and conditional 
approval, within a separate action, that are the basis for this interim 
final determination, so the public has an opportunity to comment on 
that action before any sanctions clock could be permanently terminated.
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    \8\ 5 U.S.C. 551 et seq.
    \9\ See 5 U.S.C. 553(b)-(d).
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    The basis for allowing such an interim final action stems from the 
APA, which provides that the notice and opportunity for comment 
requirements do not apply when the Agency ``for good cause finds'' that 
those procedures are ``impracticable, unnecessary, or contrary to the 
public interest.'' \10\ EPA believes that notice-and-comment rulemaking 
before the effective date of this action is impracticable and contrary 
to the public interest. EPA has reviewed the State's SIP submission and 
the additional information that the State has provided, and for the 
reasons explained further in its proposed action EPA believes that it 
is more likely than not that the State's submission (1) provides for 
adequate reporting requirements and (2) commits to correct the other 
deficiencies that were the basis for the limited disapproval that 
started the sanctions clocks. Accordingly, CAA sanctions would not 
serve their intended purpose of encouraging the state to develop a 
better SIP. EPA also believes that the risk of an inappropriate 
deferral is comparatively small, given the limited scope and duration 
of a deferral has and given that sanctions would become effective 
pursuant to 40 CFR 52.31(d)(2)(i) in the event EPA reverses its 
determination that the State has corrected the deficiencies. 
Consequently, EPA finds that the ``good cause'' exception to the APA 
notice and comment requirement applies, and that notice and comment 
procedures are not required before the deferral and stay of sanctions 
become effective.
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    \10\ 5 U.S.C. 553(b)(B).
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    EPA is also invoking the ``good cause'' exception to the 30-day 
publication requirement of the APA. Section 553(d)(1) of the APA 
provides that final rules shall not become effective until 30 days 
after publication in the Federal Register ``except . . . a substantive 
rule which grants or recognizes an exemption or relieves a 
restriction.'' \11\ The purpose of this provision is to ``give affected 
parties a reasonable time to adjust their behavior before the final 
rule takes effect.'' \12\ However, when the agency grants or recognizes 
an exemption or relieves a restriction, affected parties do not need a 
reasonable time to adjust because the effect is not adverse. Because 
this rule relieves a restriction, in that it defers imposition of 
sanctions upon the state, EPA finds that there is good cause under 5 
U.S.C. 553(d)(1) for this action to become effective on the date of 
publication of this action.
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    \11\ 5 U.S.C. 553(d).
    \12\ Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 
1099, 1104 (8th Cir. 1977) (quoting legislative history).
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    As explained above, EPA is making this interim final determination 
based on our concurrent proposal to approve and conditionally approve 
Colorado's May 3, 2024 SIP submission that corrects and commits to 
correct the deficiencies identified in our May 9, 2023 limited 
disapproval with respect to the adequacy of reporting requirements of 
certain provisions. If the conditional approval converts to a 
disapproval due to the State's failure to meet its commitment, then the 
offset sanction under CAA section 179(b)(2) would apply in the affected 
area on the later of the date: (1) when the approval becomes a 
disapproval or EPA issues such a proposed or final disapproval, 
whichever is applicable; or (2) 18 months following the finding that 
started the original sanctions clock.\13\ Subsequently, the highway 
sanction under CAA section 179(b)(1) would apply in the affected area 
six months after the date the offset sanction applies.\14\
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    \13\ See 40 CFR 52.31(d)(2)(i). In this case, the finding that 
started the original sanctions clock was the May 9, 2023 limited 
disapproval.
    \14\ See id.
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III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements.
     This action is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).
     This rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).
     This action 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.).
     This action 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).
     This action does not have federalism implications. It will 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
     This rule does not have tribal implications, as specified 
in Executive Order 13175 because it will not have substantial direct 
effects on tribal governments. Thus, Executive Order 13175 does not 
apply to this rule.
     This action is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not an 
economically significant regulatory action.
     This action is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866.
     This rulemaking does not involve technical standards. 
Therefore, the EPA is not considering the use of any voluntary 
consensus standards.

[[Page 63821]]

     EPA believes that this action does not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations, and/or 
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, 
February 16, 1994).
     This action is subject to the Congressional Review Act, 
and EPA will submit a rule report to each House of the Congress and to 
the Comptroller General of the United States. However, section 808 
provides that any rule for which the issuing agency for good cause 
finds that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest, shall take effect at 
such time as the agency promulgating the rule determines. 5 U.S.C. 
808(2). EPA has made such a good cause finding, including the reasons 
thereof, and established an effective date of August 6, 2024. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under 
section 307(b)(1) of the CAA, petitions for judicial review of this 
action must be filed in the United States Court of Appeals for the 
appropriate circuit by October 7, 2024. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Sulfur oxides.

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

    Dated: July 29, 2024.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2024-17087 Filed 8-5-24; 8:45 am]
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