[Federal Register Volume 90, Number 88 (Thursday, May 8, 2025)]
[Rules and Regulations]
[Pages 19424-19426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-07938]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2024-0622; FRL-12746-02-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.
-----------------------------------------------------------------------
SUMMARY: In the Proposed Rules section of this Federal Register, EPA is
proposing approval of portions of State Implementation Plan (SIP)
submissions from the State of Colorado dated June 26, 2023, May 23,
2024, and April 2, 2025. The submissions relate to Colorado Air Quality
Control Commission Regulation Number 7 (Reg.
[[Page 19425]]
7) and Regulation Number 25 (Reg. 25) and address Colorado's SIP
obligations for the contingency measures Serious ozone nonattainment
area requirement for the 2008 ozone National Ambient Air Quality
Standard (NAAQS). In this action, the EPA is making an interim final
determination based on that proposed approval. The effect of this
interim final determination is that the imposition of sanctions that
were triggered by the EPA's November 7, 2023 disapproval are now
deferred. Although this action is effective upon publication, the EPA
will take comment on this interim final determination.
DATES: This interim final determination is effective May 8, 2025.
However, comments will be accepted until June 9, 2025.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2024-0622, 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 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: Matthew Lang, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-AQ-R, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, telephone number: (303) 312-6709, email
address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
On November 7, 2023, the EPA took final action disapproving
portions of the 2008 8-hour ozone serious attainment plan for the
Denver Metro/North Front Range (DMNFR) nonattainment area that were
submitted by the State of Colorado on March 22, 2021.\1\ The State made
the SIP submission in part to meet the contingency measures Serious
ozone nonattainment plan requirement for the DMNFR area, as required
under sections 172(c)(9) and 182(c)(9) of the Clean Air Act (CAA). On
April 2, 2025, Colorado submitted SIP revisions to address the
disapproved contingency measures requirement. In the Proposed Rules
section of this Federal Register, the EPA has proposed to approve
portions of Colorado's June 26, 2023, May 23, 2024, and April 2, 2025
SIP submittals that include SIP revisions needed to fully address the
disapproved contingency measures requirement.
---------------------------------------------------------------------------
\1\ Final rule, Air Plan Approval and Disapproval; Colorado;
Serious Attainment Plan Elements and Related Revisions for the 2008
8-Hour Ozone Standard for the Denver Metro/North Front Range
Nonattainment Area, 88 FR 76676 (Nov. 7, 2024).
---------------------------------------------------------------------------
II. What action is the EPA taking?
We are making an interim final determination to defer application
of the offset sanction for permitting of new or modified sources and
highway sanctions under CAA section 179 that are associated with the
November 7, 2023 disapproval. Under 40 CFR 52.31(d)(2)(i), if the State
has submitted a revised plan to correct the deficiencies identified in
the disapproval actions, and the 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
offset sanction for permitting of new and modified sources and highway
sanctions shall be deferred. If not deferred, the offset sanction for
permitting of new and modified sources would apply on June 7, 2025 for
the November 7, 2023 contingency measures disapproval in the DMNFR
nonattainment area. Additionally, highway sanctions would apply on
December 7, 2025, for the disapproval.
Based on the proposed approval of portions of Colorado's June 26,
2023, May 23, 2024, and April 2, 2025 SIP submittals set forth in this
document, Colorado has made revisions that adequately address the EPA's
disapproval relating to contingency measures. This interim final
determination is consistent with the requirements of the Administrative
Procedure Act (APA) \2\ 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.\3\ While in
this matter the EPA is not providing an opportunity for public comment
before the deferral of CAA section 179 sanctions is effective, the EPA
is providing an opportunity, after the fact, for the public to comment
on the interim final determination. The EPA will consider any comments
received in determining whether to reverse the interim final
determination. Additionally, the EPA is providing an opportunity to
comment on the proposed approval, within a separate action, that is 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.
---------------------------------------------------------------------------
\2\ 5 U.S.C. 551 et seq.
\3\ See 5 U.S.C. 553(b)-(d).
---------------------------------------------------------------------------
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.'' \4\ The EPA believes that notice-and-comment
rulemaking before the effective date of this action is impracticable
and contrary to the public interest. The EPA has reviewed the State's
SIP submissions, and for the reasons explained further in its proposed
action the EPA believes that it is more likely than not that the
State's submissions adequately address the Serious nonattainment area
contingency measures requirement for the 2008 ozone NAAQS. This is
accomplished by the State adopting an approvable contingency measure,
and through the inclusion of an infeasibility justification that
provides a reasoned explanation for why it is not feasible for Colorado
to adopt contingency measures
[[Page 19426]]
achieving emission reductions in the amount recommended by EPA.
Accordingly, CAA sanctions would not serve their intended purpose of
encouraging the state to develop a better SIP. The EPA also believes
that the risk of an inappropriate deferral is comparatively small,
given the limited scope of a deferral and given that sanctions would
become effective pursuant to 40 CFR 52.31(d)(2)(i) in the event the EPA
reverses its determination that the State has corrected the
deficiencies. Consequently, the 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.
---------------------------------------------------------------------------
\4\ 5 U.S.C. 553(b)(B).
---------------------------------------------------------------------------
The 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.'' \5\ The purpose of this provision is to ``give affected
parties a reasonable time to adjust their behavior before the final
rule takes effect.'' \6\ 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, the 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.
---------------------------------------------------------------------------
\5\ 5 U.S.C. 553(d).
\6\ 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).
---------------------------------------------------------------------------
As explained above, the EPA is making this interim final
determination based on our concurrent proposal to approve portions of
Colorado's June 26, 2023, May 23, 2024, and April 2, 2025 SIP
submittals that correct the deficiencies identified in our November 7,
2023 disapproval action with respect to the adequacy of contingency
measures submitted by Colorado for the Serious nonattainment
requirement in the DMNFR area under the 2008 ozone NAAQS. If the EPA
does not finalize the approval as proposed and instead disapproves or
proposes to disapprove these SIP revisions, then the offset sanction
for permitting of new and modified sources under CAA section 179(b)(2)
would apply in the affected area on the later of: (1) the date the EPA
issues such a proposed or final disapproval; or (2) June 7, 2025 (i.e.,
18 months from the effective date of the finding that started the
original sanctions clock).\7\ Subsequently, highway sanctions under
section 179(b)(1) would apply in the affected area six months after the
date the offset sanction applies.\8\
---------------------------------------------------------------------------
\7\ See 40 CFR 52.31(d)(2)(i). In this case, the finding that
started the original sanctions clock was the disapproval issued on
November 7, 2023, which was effective on December 7, 2023.
\8\ See id.
---------------------------------------------------------------------------
III. Statutory and Executive Order Reviews
This action defers Federal sanctions and imposes no additional
requirements. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian Tribe
has demonstrated that a Tribe has jurisdiction. 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).
This action is subject to the Congressional Review Act (CRA), and
EPA will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2). 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). The EPA has
made such a good cause finding, including the reasons thereof, and
established an effective date of May 8, 2025.
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 July 7, 2025. 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, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 21, 2025.
Cyrus M. Western,
Regional Administrator, Region 8.
[FR Doc. 2025-07938 Filed 5-7-25; 8:45 am]
BILLING CODE 6560-50-P