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, 54975-54982 [2023-16578]
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Federal Register / Vol. 88, No. 155 / Monday, August 14, 2023 / Proposed Rules
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[FR Doc. 2023–17318 Filed 8–11–23; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2023–0272; FRL–11237–
01–R8]
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
and disapprove portions of a state
implementation plan (SIP) revision
submitted by the State of Colorado to
meet Clean Air Act (CAA) requirements
for the 2008 8-hour ozone national
ambient air quality standards (NAAQS)
in the Denver Metro/North Front Range
nonattainment area (DMNFR Area).
Specifically, the EPA is proposing
approval of the submitted enhanced
monitoring SIP element as meeting
applicable Serious area requirements for
the 2008 8-hour ozone NAAQS, and is
proposing disapproval of the
contingency measure element and
certain reasonably available control
technology (RACT) SIP submittals. The
EPA is taking this action pursuant to the
CAA.
DATES: Written comments must be
received on or before September 13,
2023.
SUMMARY:
Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2023–0272, 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
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ADDRESSES:
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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 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.
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: fulton.abby@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
I. What action is the EPA taking?
As explained below, the EPA is
proposing various actions on Colorado’s
proposed SIP revisions that were
submitted respectively on March 22,
2021, and May 20, 2022. Specifically,
we are proposing to approve the
submitted enhanced monitoring SIP
element as meeting applicable Serious
area requirements for the 2008 8-hour
ozone NAAQS. We are proposing
disapproval of the contingency
measures and the categorical RACT
rules for refinery fueled process heaters
as well as landfill or biogas fired
reciprocating internal combustion
engines (RICE) and the State’s RACT
determination for the Golden
Aluminum facility.
The basis for our proposed action is
discussed in this proposed rulemaking.
II. Background
On March 12, 2008, the EPA revised
both the primary and secondary NAAQS
for ozone to a level of 0.075 parts per
million (ppm) (based on the annual
fourth-highest daily maximum 8-hour
average concentration, averaged over
three years), to provide increased
protection of public health and the
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environment.1 The 2008 ozone NAAQS
retains the same general form and
averaging time as the 0.08 ppm NAAQS
set in 1997, but is set at a more
protective level. Specifically, the 2008
8-hour ozone NAAQS is attained when
the 3-year average of the annual fourthhighest daily maximum 8-hour average
ambient air quality ozone
concentrations is less than or equal to
0.075 ppm.2 Effective July 20, 2012, the
EPA designated as nonattainment any
area that was violating the 2008 8-hour
ozone NAAQS based on the three most
recent years (2008–2010) of air
monitoring data.3 With that rulemaking,
the DMNFR Area was designated
nonattainment and classified as
Marginal.4 Ozone nonattainment areas
are classified based on the severity of
their ozone levels, as determined using
the area’s design value. The design
value is the 3-year average of the annual
fourth highest daily maximum 8-hour
average ozone concentration at a
monitoring site.5 Areas designated as
nonattainment at the Marginal
classification level were required to
attain the 2008 8-hour ozone NAAQS no
later than July 20, 2015, based on 2012–
2014 monitoring data.6
On May 4, 2016, the EPA published
its determination that the DMNFR Area,
among other areas, had failed to attain
the 2008 8-hour ozone NAAQS by the
attainment deadline, and that it was
accordingly reclassified to Moderate
ozone nonattainment status.7 Colorado
submitted SIP revisions to the EPA on
May 31, 2017 to meet the DMNFR
Area’s requirements under the Moderate
classification.8 The EPA took final
action on July 3, 2018, approving the
majority of the May 31, 2017 submittal,
but deferring action on portions of the
1 Final rule, National Ambient Air Quality
Standards for Ozone, 73 FR 16436 (March 27, 2008).
The EPA has since further strengthened the ozone
NAAQS, but the 2008 8-hour standard remains in
effect. See Final Rule, National Ambient Air Quality
Standards for Ozone, 80 FR 65292 (Oct. 26, 2015).
2 40 CFR 50.15(b).
3 Final rule, Air Quality Designations for the 2008
Ozone National Ambient Air Quality Standards, 77
FR 30088 (May 21, 2012).
4 Id. at 30110. The nonattainment area includes
Adams, Arapahoe, Boulder, Broomfield, Denver,
Douglas and Jefferson Counties, and portions of
Larimer and Weld Counties. See 40 CFR 81.306.
5 40 CFR part 50, appendix I.
6 40 CFR 51.903.
7 Final rule, Determinations of Attainment by the
Attainment Date, Extensions of the Attainment
Date, and Reclassification of Several Areas for the
2008 Ozone National Ambient Air Quality
Standards, 81 FR 26697 (May 4, 2016).
8 CAA section 182, 42 U.S.C. 7511a, outlines SIP
requirements applicable to ozone nonattainment
areas in each classification category. Areas
reclassified as Moderate under the 2008 8-hour
ozone NAAQS had a submittal deadline of January
1, 2017 for these SIP revisions (81 FR 26699).
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Federal Register / Vol. 88, No. 155 / Monday, August 14, 2023 / Proposed Rules
submitted Regulation Number 7 (Reg. 7)
RACT rules.9 On February 24, 2021, the
EPA took final action approving
additional measures as addressing
Colorado’s RACT SIP obligations for
Moderate ozone nonattainment areas.10
Areas that were designated as Moderate
nonattainment were required to attain
the 2008 8-hour ozone NAAQS no later
than July 20, 2018, based on 2015–2017
monitoring data.11
On December 26, 2019, the EPA
published its determination that the
DMNFR Area, among other areas, had
failed to attain the 2008 8-hour ozone
NAAQS by the attainment deadline for
Moderate areas, and that it was
accordingly reclassified as Serious.12
Colorado submitted SIP revisions to the
EPA on May 13, 2020, March 22, 2021,
and May 20, 2022 to meet the DMNFR
Area’s requirements under the Serious
classification. The EPA took final action
on the majority of these revisions on
November 5, 2021,13 and May 9, 2023.14
The submittals that we are now
proposing to act on include those
revisions that we have not previously
acted on that are addressing RACT for
certain major sources of volatile organic
compounds (VOC) or nitrogen oxides
(NOX) as well as certain elements from
the State’s Serious ozone attainment
plan.
III. Summary of the State’s SIP
Submittals
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March 22, 2021 Submittal
This submittal contains the State’s
Serious Ozone Attainment Plan (OAP)
and revisions to Reg. 7 to include RACT
requirements in Colorado’s ozone SIP
that apply a major source threshold of
9 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).
10 Final rule, Approval and Promulgation of
Implementation Plans; Colorado; Revisions to
Regulation Number 7 and RACT Requirements for
2008 8-Hour Ozone Standard for the Denver Metro/
North Front Range Nonattainment Area, 86 FR
11125.
11 See 40 CFR 51.903.
12 Final rule, Finding of Failure to Attain and
Reclassification of Denver Area for the 2008 Ozone
National Ambient Air Quality Standard, 84 FR
70897 (Dec. 26, 2019); see 40 CFR 81.306.
13 Final rule, Approval and Promulgation of
Implementation Plans; Colorado; Revisions to
Regulation Number 7; Aerospace, Oil and Gas, and
Other RACT Requirements for the 2008 8-Hour
Ozone Standard for the Denver Metro/North Front
Range Nonattainment Area, 86 FR 61071 (Nov. 5,
2021).
14 Final rule, Air Plan Approval, Conditional
Approval, Limited Approval and Limited
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 29827).
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50 tons per year (tpy) for sources of VOC
and/or NOX.15 The Reg. 7 revisions
include expansion of categorical
requirements to reduce VOC emissions
related to wood surface coatings in part
C, section I.O.; adding NOX emission
limits for turbines, boilers, and landfill
or biogas engines in part E, section II.;
and adding categorical requirements to
reduce VOC emissions related to foam
manufacturing in part E, section V. The
Reg. 7 revisions also include
typographical, grammatical, and
formatting corrections. We previously
acted on all parts of this SIP submittal 16
except for limited portions of Reg. 7 and
parts of the OAP including the
enhanced monitoring, contingency
measures, attainment demonstration,
and RACM elements. Here, we are
proposing action on enhanced
monitoring, contingency measures, the
remaining outstanding Reg. 7
revisions,17 and RACT for landfill and
biogas engines at Golden Aluminum.
The EPA is not reopening previous
actions where the Agency acted on other
parts of this SIP submittal.
May 20, 2022 Submittal
This submittal contains amendments
to Reg. 7 that establish categorical RACT
requirements for major sources of NOX
and certain control techniques
guidelines (CTG)-covered sources in the
DMNFR Area. Specifically, on July 16,
2021, Colorado’s Air Quality Control
Commission (AQCC) adopted RACT
requirements in Part C, section I. for
miscellaneous metal parts coatings and
Part E, section II. RACT requirements
for process heaters at major sources of
NOX emissions, along with various
typographical, grammatical, and
formatting corrections.
We previously acted on all parts of
this SIP submittal 18 except for revisions
in Reg. 7, Part E, section II.A.4.
concerning categorical RACT rules for
refinery fuel gas process heaters, which
we are now proposing to act on. The
EPA is not reopening previous actions
where the Agency acted on other parts
of this SIP submittal.
15 See
CAA sections 182(c) and 182(f).
rule, Air Plan Approval, Conditional
Approval, Limited Approval and Limited
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 29827 (May 9,
2023).
17 By letter dated July 5, 2023, the state withdrew
its previous submission of an attainment
demonstration and RACM for the Serious area SIP.
Accordingly, the EPA does not have these items
before it to act on, and we are therefore not
proposing any action with respect to these two
Serious area SIP elements.
18 Id.
16 Final
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IV. Procedural Requirements
The CAA requires that states meet
certain procedural requirements before
submitting SIP revisions to the EPA,
including the requirement that states
adopt SIP revisions after reasonable
notice and public hearing.19 For the
March 22, 2021 submittal, the AQCC
provided notice in the Colorado Register
(CR) on October 10, 2020,20 and held a
public hearing on the revisions on
December 16, 2020. The Commission
adopted the revisions on December 18,
2020. The revisions became stateeffective on February 14, 2021.
For the May 20, 2022 submittal, the
AQCC provided notice in the Colorado
Register on May 10, 2021,21 and held a
public hearing on the revisions on July
16, 2021. The Commission adopted the
revisions on July 16, 2021. The revisions
became state-effective on September 14,
2021.
V. The EPA’s Evaluation of Colorado’s
Submittals
2008 Ozone Serious SIP Submittal
CAA section 182 outlines SIP
requirements applicable to ozone
nonattainment areas in each
classification category. A Serious area
classification triggers requirements for
state submittals described in CAA
section 182(c) and further clarified in
the EPA’s regulations implementing the
2008 8-hour ozone NAAQS.22 Examples
of these requirements include an
attainment demonstration, reasonable
further progress (RFP), an enhanced
inspection and maintenance program,
RACT, and RACM.
Colorado submitted SIP revisions to
the EPA on March 22, 2021, to meet the
requirements of a Serious area
classification for the DMNFR Area.
The following subsections A through
C discuss in turn each part of this SIP
submittal that we are proposing to act
on.
A. Enhanced Monitoring
1. Background
Section 182(c)(1) of the CAA requires
that SIPs for all ozone nonattainment
areas classified as Serious or higher
‘‘contain measures to improve the
ambient monitoring’’ of ozone, NOX,
and VOC. This subsection also requires
the EPA to promulgate regulations for
enhanced monitoring of these
pollutants. As highlighted in the 2008
Ozone SIP Requirements Rule (SRR), the
EPA’s monitoring regulations, including
19 CAA
section 110(a)(2), 42 U.S.C. 7410(a)(2).
CR 19.
21 44 CR 9.
22 See 40 CFR part 51, subpart AA.
20 43
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the enhanced monitoring network for
ozone referred to as the Photochemical
Assessment Monitoring Stations
(PAMS) network, are in 40 CFR part
58.23
In 2006, the EPA significantly revised
and reorganized 40 CFR part 58.24 As
revised, 40 CFR part 58 no longer
requires that SIPs contain a
demonstration of compliance with
monitoring regulations. Instead,
compliance with the EPA’s monitoring
regulations is established through the
Agency’s review of required annual
monitoring network plans.25 The 2008
Ozone SRR made no changes to these
requirements. The 2015 ozone SRR
noted that the PAMS provisions in 40
CFR part 58 had been revised, with the
intent ‘‘to provide a more spatially
dispersed monitoring network, reduce
potential redundancy and improve data
value while providing monitoring
agencies flexibility in collecting
additional information needed to
understand their specific ozone
issues.’’ 26 These revisions did not alter
the 40 CFR part 58 approach under
which compliance with monitoring
regulations is established by EPA review
of annual monitoring network plans.
2. Evaluation
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Colorado’s March 21, 2021 SIP
submittal contained a section
addressing the enhanced monitoring
requirement of CAA 182(c)(1) by
reference to existing provisions that the
EPA previously approved into the SIP.27
On September 23, 1993, the EPA
approved revisions to Colorado’s SIP for
air quality monitoring, consistent with
the requirements of 40 CFR part 58, as
part 58 was written at that time.28 The
revisions addressed air quality
surveillance network design, network
description, station designations, air
quality monitoring criteria, data
reporting, annual review of the State’s
monitoring network, prevention of
significant deterioration monitoring,
and public notification. The monitoring
provisions are located in Colorado’s Air
Quality Monitoring SIP 29 and provide
for the continued implementation,
maintenance, and enforcement of the
State air pollution control program for
23 The 2008 ozone SIP requirements rule
addresses PAMS-related requirements. See 80 FR
12264 at 12291 (March 6, 2015).
24 71 FR 61236 (Oct. 17, 2006).
25 40 CFR 58.2(b) now provides that, ‘‘The
requirements pertaining to provisions for an air
quality surveillance system in the SIP are contained
in this part.’’
26 83 FR 62998, 63008 (Dec. 06, 2018).
27 See p. 2–1 of the OAP.
28 58 FR 49434.
29 Contained within the docket for this action.
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meeting the NAAQS. Additionally, the
OAP SIP chapter 2 provides an
overview of PAMS requirements and
describes how the State is complying
with the requirements. This includes
the development and implementation of
an Enhanced Monitoring Plan (EMP)
detailing enhanced ozone and ozone
precursor monitoring activities to be
performed. The EMP was sent to the
EPA on October 2, 2019, after a 30-day
comment period,30 and is included as a
Technical Support Document attached
to the Serious OAP. The OAP also
explains that the State operates an air
quality monitoring network of State/
Local Air Monitoring Systems (SLAMS)
monitors in accordance with EPA
regulations.31 Furthermore, the EPA
approved Colorado’s most recent annual
monitoring network plan, which
includes a description of the State’s
PAMS, on August 3, 2022.32
Colorado collected 2006–2019 ozone
monitoring data in accordance with
monitoring requirements in 40 CFR part
58 as well as with the EPA’s ‘‘Quality
Assurance Handbook for Air Pollution
Measurement Systems, Vol. II—Ambient
Air Quality Monitoring Program’’; 33 the
APCD Quality Management Plan; 34 the
APCD Quality Assurance Project Plan; 35
and Colorado’s monitoring network
plan.36
The monitoring section of Colorado’s
OAP includes:
• A description of the State’s EMP
and PAMS monitoring plan;
• A reference to Colorado’s
monitoring SIP;
• Information on the location of
ozone monitors in Colorado, from
30 See ‘‘State of Colorado Enhanced Monitoring
Plan for Ozone’’, CDPHE, Air Pollution Control
Division (Oct. 1, 2019), contained within the March
22, 2021 submittal, available in the docket. https://
www.colorado.gov/airquality/tech_doc_
repository.aspx#network_plan.
31 P. 2–8 of the OAP.
32 Letter from Monica Morales, EPA, to Michael
Ogletree, CDPHE, available in the docket for this
action.
33 QA Handbook for Air Pollution Measurement
Systems: ‘‘Volume II: Ambient Air Quality
Monitoring Program’’ (EPA–454/B–13–003, May
2013) (available in the docket). The current version
of the Handbook is available at https://
www3.epa.gov/ttn/amtic/files/ambient/pm25/qa/
FinalHandbookDocument1_17.pdf (EPA–454/B–
17–001, Jan. 2017).
34 Colorado Department of Public Health and
Environment, Quality Management Plan (Feb 2018),
available at https://www.colorado.gov/airquality/
tech_doc_repository.aspx?action=open&file=APCD_
QMP_03102016.pdf.
35 Colorado Department of Public Health and
Environment, Quality Assurance Project Plan (July
2015), available at https://www.colorado.gov/
airquality/tech_doc_
repository.aspx?action=open&file=QAPP_2018.pdf.
36 Annual Network Plans available at https://
www.colorado.gov/airquality/tech_doc_
repository.aspx.
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southern Metropolitan Denver to
northern Fort Collins (including Rocky
Mountain National Park);
• A list of fourth-maximum
monitored 8-hour ozone values from
2006 through 2019, including levels
recorded above the 75 parts per billion
(ppb) 2008 ozone NAAQS; 37
• A description of the State’s ambient
air quality data assurance program; and
• Relevant 8-hour-average ozone
monitoring data and recovery rates from
2006 through 2019.
Based on our review and approval of
the State’s monitoring SIPs and the 2022
annual monitoring network plan, we
propose to find that Colorado has
satisfied the enhanced monitoring
requirements under CAA section
182(c)(1) for the DMNFR Area with
respect to the 2008 ozone NAAQS.
B. Contingency Measures
1. Background
Under the CAA, states with ozone
nonattainment areas classified under
subpart 2 as Moderate or higher must
adopt and submit nonattainment plans
that include contingency measures
consistent with section 172(c)(9).
Similarly, states with ozone
nonattainment areas classified as
Serious or higher must include
contingency measures consistent with
section 182(c)(9). Contingency measures
are additional controls or measures to be
implemented in the event the area fails
to meet RFP or fails to attain the
NAAQS by the applicable attainment
date. The SIP submittal should identify
such controls or measures, specify a
schedule for implementation, and
indicate that the measures will be
implemented without significant further
action by the state or the EPA.38
In the September 12, 2016 decision by
the U.S. Court of Appeals for the Ninth
Circuit in Bahr v. EPA, the court
concluded that contingency measures
must be measures that only take effect
when an area fails to meet RFP or attain
by the applicable attainment date, not
before.39 After the Bahr decision, the
EPA recognized that within the
geographic jurisdiction of the Ninth
Circuit (which does not include
Colorado), the language of CAA sections
172(c)(9) and 182(c)(9) require
contingency measures to be both
prospective (i.e., that they be
undertaken in the future) and
conditional (i.e., that implementation is
conditional upon the area’s failure to
37 OAP
Table 10, p. 2–3.
70 FR 71612 (November 29, 2005); see also
80 FR 12264, 12285 (March 6, 2015).
39 836 F.3d 1218, 1235–1237.
38 See
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meet RFP or to attain by the applicable
attainment date).40
On January 29, 2021, the U.S. Court
of Appeals for the District of Columbia
Circuit in Sierra Club v. EPA issued a
decision in response to challenges to the
EPA’s rule implementing the 2015
ozone NAAQS.41 In Sierra Club v. EPA,
the D.C. Circuit endorsed the holding of
Bahr and vacated the EPA’s
interpretation of the CAA that had
allowed states to rely on alreadyimplemented control measures to meet
the statutory requirements of section
172(c)(9) or 182(c)(9) for contingency
measures in nonattainment plans for the
ozone NAAQS.42 The effect of this
decision is that the CAA interpretation
that contingency measures must be
prospective and conditional applies
across the U.S.43
At the time Colorado was developing
its Serious OAP, the EPA’s longstanding interpretation of section
172(c)(9) was that states could rely on
surplus emission reductions from
already-implemented measures (i.e.,
implemented as of the time that the EPA
acts on the SIP submittal) to meet the
contingency measures requirements.
Thus, states could rely on surplus
emissions reductions from alreadyimplemented Federal measures (e.g.,
Federal mobile source measures based
on the incremental turnover of the
motor vehicle fleet each year) or surplus
emission reductions from alreadyimplemented state or local measures in
the SIP.
The EPA has previously approved
nonattainment area plan submittals
under the now invalidated
interpretation that already-implemented
measures were permissible as
contingency measures. That is, we have
approved contingency measures that
consisted of one or more Federal or state
control measures already in place that
provided reductions in excess of the
reductions needed to meet other
requirements or relied upon in the
40 The Bahr v. EPA decision involved a challenge
to an EPA approval of contingency measures under
the general nonattainment area plan provisions for
contingency measures in CAA section 172(c)(9),
but, given the similarity between the statutory
language in section 172(c)(9) and the additional
ozone-specific contingency measure provision in
section 182(c)(9), the EPA found that the decision
affected how it should interpret both sections of the
Act in the Ninth Circuit.
41 985 F.3d 1055, 1067–68; 83 FR 62998 (Dec. 6,
2018).
42 See 985 F.3d at 1067–68; 83 FR at 63026–27.
43 In Sierra Club, the D.C. Circuit held that
‘‘Contingency measures that are to take effect upon
failure to satisfy standards are likewise not
measures that have been implemented before such
failure occurs.’’ 985 F.3d at 1067–68 (internal
quotations omitted).
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modeled attainment demonstration.44
However, after the D.C. Circuit’s January
2021 Sierra Club decision, the EPA can
no longer interpret the CAA to allow
approval of already-implemented
measures as meeting the requirements of
CAA sections 172(c)(9) or 182(c)(9) for
any nonattainment plan submittal (even
if, as is the case here, the development
of the submittal was nearing conclusion
when the decision was issued).
Contingency measures must be
prospective and conditional—they must
be measures that would take effect when
the area fails to meet RFP or attain by
the applicable attainment date, not
before.
2. Evaluation
For the DMNFR Area 2008 ozone
NAAQS Serious nonattainment area, the
contingency measures the State
submitted as part of the March 22, 2021
SIP submittal consist of surplus
emissions reductions from alreadyimplemented control measures. The
State relied on the surplus emissions
reductions from such alreadyimplemented measures to demonstrate
compliance with the contingency
measure requirements of the CAA.45
The State determined the emissions
reductions from these measures to be
surplus, in that the State did not rely
upon them in the OAP for
demonstrating RFP or attainment, and
in that no additional actions are
required to garner these additional
emission reductions after the attainment
year regardless of whether the area
attained. The March 22, 2021 SIP
submittal explained that these surplus
emission reductions would occur after
the July 20, 2021 Serious attainment
date, and thus the State identified them
as contingency measures for the DMNFR
Area. These measures consist of
projected emission reductions from
Federal vehicle and engine emissions
certification programs and from fuel
control programs for both on-road and
non-road vehicles which were already
adopted by the EPA, the
implementation of which does not
depend on whether a nonattainment
area attains or meets its RFP
requirements.46 The State concluded
44 See, e.g., 62 FR 15844 (April 3, 1997) (direct
final rule approving an Indiana ozone SIP revision);
62 FR 66279 (December 18, 1997) (final rule
approving an Illinois ozone SIP revision); 66 FR
30811 (June 8, 2001) (direct final rule approving a
Rhode Island ozone SIP revision); 66 FR 586 (Jan.
3, 2001) (final rule approving District of Columbia,
Maryland, and Virginia ozone SIP revisions); and 66
FR 634 (Jan. 3, 2001) (final rule approving a
Connecticut ozone SIP revision).
45 See Chapter 10 of the OAP.
46 See chapter 4 of the OAP for a description of
mobile source emission reduction measures.
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that the projected combined VOC and
NOX emissions reductions of over three
percent for the DMNFR Area to be
achieved in 2022 (from the 2011
baseline) satisfies the CAA requirements
for contingency measures.
In evaluating the DMNFR Area
contingency measures in the March 22,
2021 SIP submittal, we must consider
whether they are both prospective and
conditional, consistent with the D.C.
Circuit’s decision in Sierra Club.
Because these contingency measures
consist entirely of emission reductions
from measures that will occur regardless
of whether the nonattainment area fails
to meet RFP or to attain by the
applicable attainment date, they do not
satisfy the requirements of CAA sections
172(c)(9) and 182(c)(9) that contingency
measures be both prospective and
conditional. Thus, we must propose to
disapprove the contingency measures
element of the March 22, 2021 SIP
submittal.
This proposed action concerning
contingency measures will have no
impact on the EPA’s prior
determinations with respect to RFP or
other attainment plan requirements for
the area and this NAAQS.
C. Reasonably Available Control
Technology (RACT)
1. Background
Section 172(c)(1) of the CAA requires
that SIPs for nonattainment areas
‘‘provide for the implementation of all
reasonably available control measures as
expeditiously as practicable (including
such reductions in emissions from
existing sources in the area as may be
obtained through the adoption, at a
minimum, of reasonably available
control technology [RACT]).’’ CAA
section 182(b)(2) specifies that RACT is
required for certain types of sources and
pollutants within ozone nonattainment
areas classified Moderate and higher.
The EPA has defined RACT as ‘‘[t]he
lowest emissions limitation that a
particular source is capable of meeting
by the application of control technology
that is reasonably available considering
technological and economic
feasibility.’’ 47 States must submit a SIP
revision requiring the implementation
of RACT for each source in the area
covered by a CTG, and for any major
source of VOC or NOX in the area.48
47 General Preamble for Proposed Rulemaking on
Approval of Plan Revisions for Nonattainment
Areas—Supplement (on Control Techniques
Guidelines), 44 FR 53761 (Sep. 17, 1979).
48 See CAA section 182(b)(2), 42 U.S.C.
7511a(b)(2)); see also Note, RACT Qs & As—
Reasonably Available Control Technology (RACT):
Questions and Answers, William Harnett, Director,
Air Quality Policy Division, EPA (May 2006),
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For a Moderate, Serious, or Severe
area, a major stationary source is one
that emits, or has the potential to emit,
100, 50, or 25 tpy or more, respectively,
of VOCs or NOX.49 Accordingly, for the
DMNFR Serious nonattainment area, a
major stationary source is one that
emits, or has the potential to emit, 50
tpy or more of VOCs or NOX.50
On reclassification as Serious
nonattainment, the DMNFR Area was
required to implement RACT as
expeditiously as practicable, but no later
than August 3, 2020, for RACT needed
for demonstrating attainment and July
20, 2021, for RACT not needed for
demonstrating attainment.51 The
Division conducted a series of analyses
and rulemakings to address 2008 ozone
Moderate and Serious RACT
requirements.
The EPA approved the majority of the
State’s CTG RACT analysis on July 3,
2018.52 On February 24, 2021, the EPA
approved categorical RACT
requirements for combustion equipment
at major sources, RACT requirements for
major sources of VOC and NOX, and
additional CTG VOC source RACT
rules.53 On November 5, 2021, the EPA
approved additional RACT
requirements for major sources of VOC
and NOX in the DMNFR Area under the
Serious classification, including
expanded categorical combustion
equipment and new categorical general
solvent use requirements.54 Finally, the
available at https://www.regulations.gov/document/
EPA-R08-OAR-2020-0114-0008.
49 See CAA sections 182(b), 182(c), 182(d),
182(f)(1), and 302(j).
50 On October 7, 2022 the EPA finalized an action
that reclassified the DMNFR Area to Severe
nonattainment status for the 2008 ozone NAAQS.
See Final rule, Determinations of Attainment by the
Attainment Date, Extensions of the Attainment
Date, and Reclassification of Areas Classified as
Serious for the 2008 Ozone National Ambient Air
Quality Standards, 87 FR 60926. Accordingly, the
State of Colorado is required to submit a
demonstration that the area will attain the Severe
standard, and other elements of a Severe SIP.
51 Final rule, Finding of Failure to Attain and
Reclassification of Denver Area for the 2008 Ozone
National Ambient Air Quality Standard, 84 FR
70897, 70900 (Dec. 26, 2019); see also Final rule,
Determination of 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).
52 See 83 FR 31068. A negative declaration as to
RACT for sources covered by the aerospace CTG
was approved on November 5, 2021 (86 FR 61071).
Colorado’s RACT demonstrations for sources
covered by the industrial cleaning solvents, metal
furniture coatings (2007), and wood furniture CTGs
were approved on February 24, 2021 (86 FR 11127);
and the State’s RACT demonstration for sources
covered by the oil and gas CTG was conditionally
approved on May 13, 2022 (87 FR 29228).
53 86 FR 11127.
54 Final rule, Approval and Promulgation of
Implementation Plans; Colorado; Revisions to
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below 1.5 g NOX/hp-hr.59 It is therefore
unclear how a 2.0 g NOX/bhp-hr limit
could be representative of RACT.
Colorado has not provided sufficient
information within the SIP submittal
and associated documents for the EPA
to determine that the proposed limit of
2.0 g NOX/bhp-hr constitutes RACT.
Additionally, there are no emission
2. Evaluation
monitoring requirements to determine
In preparing its RACT determinations, NOX emission rates for landfill or biogas
fired engines in section II.A.4.f. Without
Colorado reviewed source permits,
such requirements, the EPA cannot
consulted with Division permitting and
determine compliance with the
enforcement staff involved with each
applicable numerical emissions
source, and consulted with the sources
limitation. This is a problem for
themselves.56 Colorado also considered
control strategies identified in the CTGs, purposes of meeting the RACT
Alternative Control Techniques (ACTs), requirement. We conclude that this was
likely inadvertently excluded from the
RACT/Best Available Control
regulation, because the statement of
Technology/Lowest Achievable
basis provides that ‘‘owners or operators
Emission Rate Clearinghouse (RBLC),
EPA’s Menu of Control Measures,57 New of these engines will continue to comply
with the combustion process
Source Performance Standards (NSPS),
adjustment, periodic performance
National Emission Standards for
testing, and recordkeeping
Hazardous Air Pollutants (NESHAP),
requirements.’’ 60 Finally, the
and Colorado’s regulations. For major
recordkeeping provisions in Reg. 7, Part
sources, Colorado identified a list of
E, section II.A.7., require owners and
major VOC and NOX sources in the
operators to maintain records for a
DMNFR Area subject to RACT
period of five years and to make those
requirements under Moderate and
records available to the Division upon
58
Serious classifications.
request. In a recent final action by the
a. Landfill and Biogas Fired RICE
EPA, we explained that records must be
periodically submitted to the State and
Colorado’s March 22, 2021 submittal
made publicly available for citizens’
contains categorical RACT rules for
ability to participate in the enforcement
landfill gas or biogas fired reciprocating
of the SIP as allowed by CAA section
internal combustion engines (RICE) in
304.61
Reg. 7, Part E, section II.A.4.f. Colorado
For these reasons, we propose to
evaluated technical information
disapprove the categorical RACT rules
submitted by operators of five landfill or for landfill and biogas fired RICE.
biogas-fired spark ignition engines and
b. Golden Aluminum
determined that additional add on
emission controls are not RACT.
Colorado’s March 22, 2021 submittal
Colorado then established a limit of 2.0
identifies Golden Aluminum, an
grams NOX per brake horsepower hour
individual aluminum sheet
(g/bhp-hr) based on a 30-day rolling
manufacturing facility, as a major VOC
average for landfill or biogas-fired
and NOX source. Equipment and
engines with a design power output
operations at the facility include rigid
greater than or equal to 500 hp and less
can stock shredders, a delacquering
than 1,350 hp.
kiln, three furnaces, degassing boxes,
hot mill press and coiling, annealing
The EPA’s evaluation of the RACT
furnaces, cold mill and spray, recoiling,
analyses submitted to the AQCC by the
coil coating line, packaging and an
two facilities that still have engines
emergency generator. To address these
subject to section II.A.4.f., appears to
emitting points the State reviewed the
show that they are meeting a limit
EPA’s RBLC for metal coil surface
coating and miscellaneous boilers,
Regulation Number 7; Aerospace, Oil and Gas, and
furnaces, and heaters. The RBLC, which
Other RACT Requirements for the 2008 8-Hour
EPA took action on several other RACT
categories as part of its May 9, 2023
rulemaking.55
The RACT submittals that we are now
proposing to act on include those that
we have not previously acted on that
address RACT for several non-CTG VOC
and NOX sources and categories.
Ozone Standard for the Denver Metro/North Front
Range Nonattainment Area 86 FR 61071 (Nov. 5,
2021).
55 88 FR 29827.
56 See Colorado’s Technical Support Document
for Reasonably Available Control Technology for
Major Sources, December 14, 2020. Available
within the docket.
57 See https://www.epa.gov/air-qualityimplementation-plans/menu-control-measuresnaaqs-implementation.
58 See chapter 6.3 of the OAP.
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59 See Leprino Foods and Waste Management
RACT Analyses, available within the docket. We
note that at the time of rule development, there
were biogas engines located at Boulder Wastewater
Treatment Plant with higher limits, but these
engines are no longer in use. The engines were
removed from the facility and appropriate
cancellations were submitted.
60 See ‘‘Reg Lang & SBSP Adopted_R7’’ within the
March 22, 2021 submittal.
61 88 FR 29827 (May 9, 2023).
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is an EPA database of air permit
determinations that can help identify
appropriate emissions control
technologies, did not list any control
measures for metal coil surface coating.
For miscellaneous boilers, furnaces, and
heaters, the RBLC listed low-NOX
combustion technology, natural gas as
fuel, selective catalytic reduction,
efficient boiler design, low-NOX
burners, and good combustion practices
as potential control measures. For
annealing furnaces, the RBLC listed
low-NOX burners, combustion of clean
fuel, and good combustion practices as
potential control measures. The
Division also conducted an analysis for
operating the three furnaces at the
facility in a natural gas/oxygen/air
mixture mode. Colorado determined
that compliance with the EPA CTG for
coil coating operations,62 on which Reg.
7, Part C, section I.D. is based, and with
combustion process adjustments in Reg.
7, Part E, section II., constitutes RACT
for the Golden Aluminum facility.
There is one cold rolling mill at the
facility with a permit limit of 67.38 tpy
of VOC, which is above the applicable
50 tpy major source threshold for RACT.
Emissions from this unit are controlled
with an air purifier centrifugal
separator. Beyond referencing the coil
coatings requirements in Reg. 7 that are
based on the EPA’s Coil Coating CTG,
and which apply to the coil coating
operation at the facility, VOC emitting
points such as the cold rolling mill were
not further analyzed for RACT. This
cold rolling mill is not covered by the
Coil Coating CTG, and therefore that
CTG is not relevant for purposes of
determining RACT for the cold rolling
mill. The level of analysis provided in
the submittal is not sufficient for
purposes of demonstrating that the cold
rolling mill is subject to RACT-level
controls. The Reg. 7 coil coating
requirements apply to the coating
applicators, ovens, and quench areas of
coil coating operations occurring after
the cold rolling process, and are
therefore not relevant to the control of
VOC emissions associated with
lubricant oil use during operation of the
cold rolling mill. The Reg. 7, Part C,
section I.D. coil coating requirements
that are referenced in the State’s RACT
analysis, and which are based on the
applicable CTG, apply only to the coil
coating operation, which is a different
process than the cold rolling mill,
which functions to shape the metal to a
62 Control of Volatile Organic Emissions from
Existing Stationary Sources, Volume II: Surface
Coating of Cans, Coils, Paper, Fabrics, Automobiles,
and Light-Duty Trucks, EPA.–450/2–77–008 (May
1977). ‘‘Coil Coating CTG’’.
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specified thickness.63 Therefore, the
State’s SIP submittal does not contain
any RACT analysis that is specific to the
VOC emissions from the cold rolling
mill itself. The cold rolling mill has not
been sufficiently analyzed with respect
to RACT.
In its 2008 ozone SIP requirements
rule, the EPA described how states
should meet RACT requirements. States
are to consider existing CTGs and
(ACTs) ‘‘as well as all relevant
information (including recent technical
information and information received
during the public comment period) that
is available at the time that they are
developing their RACT SIPs for the 2008
ozone NAAQS.’’ 64 In June 1992, the
EPA released a technical guidance
project report titled ‘‘Control of VOC
Emissions from Nonferrous Metal
Rolling Processes,’’ 65 which presents
information on nonferrous metal rolling
processes, VOC emissions generated
during these operations, emission
control techniques and their
effectiveness, and costs associated with
process changes and emission control
options. This report includes
information regarding the control of
VOC emissions from cold rolling
process equipment like the cold rolling
mill at Golden Aluminum. The report
was available at the time the Division
was developing their RACT SIP for the
2008 ozone NAAQS under the Serious
classification. Also, other states have
evaluated RACT for cold rolling mills
independently from CTG-covered
emission points.66 The aforementioned
technical report, relevant regulations in
other states, the RBLC Clearinghouse,
the EPA’s Menu of Control Measures,
NSPS, and NESHAP are all resources
that may be considered in evaluating
RACT for cold rolling process
equipment.
Because we conclude that RACT was
not fully evaluated for the cold mill
located at Golden Aluminum, we are
proposing to disapprove the State’s
determination that RACT has been met
for this facility. To address this
disapproval, if it is finalized, we
recommend that the Division evaluate
63 See Technical Support Document for
Reasonably Available Control Technology for Major
Sources, Dec. 2020. Contained within the State’s
March 22, 2021 SIP submittal. Available within the
docket.
64 Final rule, ‘‘Implementation of the 2008
National Ambient Air Quality Standards for Ozone:
State Implementation Plan Requirements,’’ 80 FR
12264, 12279 (March 6, 2015).
65 EPA–453/R–92–001.
66 For example, see the Missouri non-CTG RACT
rule for control of VOC emissions from aluminum
foil rolling at 76 FR 66013 (October 25, 2011).
Available at https://www.regulations.gov/
document/EPA-R07-OAR-2011-0859-0001.
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the current emissions from the cold
rolling mill and the effectiveness of the
control device, conduct an analysis of
whether further VOC reduction is
technically and economically feasible
for the cold rolling mill through the
application of RACT, and determine if
appropriate emission limits (including
work practices) and associated
monitoring and recordkeeping should
be adopted as a SIP revision for
purposes of meeting RACT.
c. Refinery Fueled Process Heaters
Colorado’s May 20, 2022 submittal
contains categorical RACT rules for
refinery fueled process heaters in Reg. 7,
Part E, section II.A. The rules establish
an emission limit of 0.1 pounds of NOX
per million British thermal units (lb
NOX/MMBtu) for refinery gas-fired
process heaters with a heat input rate
greater than or equal to 5 MMBtu/hr.
Reg. 7, Part E, section II.A. also
establishes performance testing
requirements, and associated
recordkeeping, for refinery gas-fired
process heaters greater than or equal to
100 MMBtu/hr. We proposed approval
of the revisions on November 9, 2022.67
During the comment period, we
received adverse comments regarding
the categorical RACT limit for refineryfueled process heaters. We did not act
on this category in our May 9, 2023 final
rule.
After further evaluation of the State’s
submitted RACT rules and technical
information, we are proposing to find
that the proposed emission limit in Reg.
7 is not enforceable for all refinery
fueled process heaters, either because
performance testing is not required or
feasible, or because the unit does not
have a continuous emission monitoring
system (CEMS). Colorado’s Technical
Support Document for Reasonably
Available Control Technology for Major
Sources 68 explains that there are
significant challenges for performance
testing including ‘‘lack of test ports, lack
of platforms and safe access, and a
refractory lining in some stacks.’’ 69
Nonetheless, CAA 110(a)(2)(A) requires
the SIP to include ‘‘enforceable
emission limitations.’’ The lack of
testing or CEMS for some sources means
that neither the State nor the EPA have
a method to determine whether those
sources are meeting the numerical
emission limit of 0.1 lb NOX/MMBtu.
There is no way to determine whether
these sources are complying with the
limit or whether the limit represents
67 87
FR 67617.
12, 2021, contained within the May 16,
2022 submittal.
69 Id. at p. 11.
68 July
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RACT for the specific units. Therefore,
the categorical RACT limit is not
enforceable for all refinery fueled
process heaters controlled in Reg. 7.
Furthermore, the State’s record that
accompanies the SIP submittal does not
adequately demonstrate how the state
determined that the limit of 0.1 lb NOX/
MMBtu constitutes RACT for these
sources. As explained above, the
majority of refinery fueled process
heaters have not had testing to establish
an emission baseline. As such, the
submittal is unclear on the amount of
emissions coming from these sources.
The State’s RACT analysis does not
assess emission reductions that could be
achievable through the application of
lower emitting technology, nor does is
discuss costs of such technology,
presumably in part due to the lack of
baseline emissions information. The
EPA cannot fully determine that the
State’s limit constitutes RACT without
additional information regarding
baseline emissions as well as potential
control options and associated costs.
Lastly, there are some units covered by
the regulation that have low NOX
burners and ultra low NOX burners,
which have been shown through initial
performance testing or the operation of
CEMS to meet emission rates below the
proposed categorical limit of 0.1 lb
NOX/MMBtu.70 This demonstrates to
the EPA that the categorical limit may
not be appropriate for these units. The
State does not explain why its proposed
limit represents RACT when
information included in the record
indicates these sources are capable of
achieving a lower limit. The State has
not provided sufficient information in
its SIP submittal and associated
documents to allow the EPA to
conclude that the categorical RACT
limit for refinery fueled process heaters
is representative of RACT. For these
reasons, we propose to disapprove the
categorical RACT rules for refinery
fueled process heaters.
VI. Proposed Action
We propose to approve the enhanced
monitoring element of the OAP
submittal from the State of Colorado for
the DMNFR Area submitted on March
22, 2021, as explained in section V.A. of
this document. In light of the D.C.
Circuit’s decision in Sierra Club v. EPA,
we propose to disapprove the
contingency measure element of the
March 22, 2021 OAP for the Serious
nonattainment area under the 2008 8hour ozone NAAQS. Additionally, we
propose to disapprove certain RACT SIP
70 See columns N and V of the Suncor Heaters
spreadsheet, available within the docket.
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revisions, as explained in section V.C. of
this document. The EPA proposes
disapproval of the contingency
measures with respect to the
requirements of CAA 172(c)(9) and
182(c)(9). The EPA proposes
disapproval of RACT requirements with
respect to the requirements of CAA
sections 172(c)(1), 182(b)(2), and 182(c).
Under section 179(a) of the CAA, final
disapproval of a submittal that
addresses a requirement of part D, title
I of the CAA starts sanctions clocks. The
March 22, 2021 and May 20, 2021 SIP
revision submittals, including the
contingency measures and RACT
elements for the DMNFR 2008 ozone
NAAQS nonattainment area, do address
requirements of part D, and thus if the
EPA finalizes this proposed
disapproval, the sanctions clocks for
these elements would start on the
effective date of the final action.71
Additionally, section 110(c)(1) of the
CAA requires the Administrator to
promulgate a Federal implementation
plan (FIP) at any time within two years
after the Administrator finds that a state
has failed to make a required SIP
submittal, finds a SIP submittal to be
incomplete, or disapproves a SIP
submittal, unless the state corrects the
deficiency, and the Administrator
approves the SIP revision, before the
Administrator promulgates a FIP.
Therefore, if the EPA finalizes this
proposed disapproval, the EPA will be
obligated under CAA section 110(c)(1)
to promulgate a FIP within two years
after the effective date of the
disapproval, unless the State submits
and the EPA approves SIP revisions to
correct the identified deficiencies in the
rules before the EPA promulgates the
FIP.
The EPA is soliciting public
comments on the proposed actions
discussed in this document. We will
accept comments from the public on
this proposal for the next 30 days and
will consider comments before taking
final action.
VII. Environmental Justice
Considerations
The EPA reviewed demographic data,
which provides an assessment of
individual demographic groups of
populations living within the DMNFR
Area. The EPA then compared the data
71 Under 40 CFR 52.31, the offset sanction in CAA
section 179(b)(2) would be imposed 18 months after
the effective date of that final disapproval action,
and, unless an exemption applies, the highway
funding sanction in CAA section 179(b)(1) would be
imposed six months after the offset sanction.
Sanctions would not be imposed if the EPA
determined, via a final approval, that a subsequent
SIP submittal corrected the identified deficiencies
before the applicable deadlines.
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to the national averages for each of the
demographic groups. The results of this
analysis are being provided for
informational and transparency
purposes. The results of the
demographic analysis indicate that for
populations within the DMNFR Area,
there are census block groups in which
the percentage of people of color
(persons who reported their race as a
category other than White alone and/or
Hispanic or Latino) is greater than the
national average of 39% with some
census block groups ranking above the
80th percentile.72 There are also census
block groups within the DMNFR Area
where the percentage of low income
population is above the national average
of 33% with some census block groups
ranking above the 80th percentile.73
This proposed action identifies
deficiencies in the contingency measure
element of the March 22, 2021 SIP
submittal for the DMNFR Area under
the 2008 8-hour ozone NAAQS. The
EPA’s disapproval of these contingency
measures, if finalized, would require
that Colorado submit plans for the
DMNFR Area containing prospective
and conditional contingency measures
consistent with the D.C. Circuit
decision, which would help to improve
air quality in the entire affected
nonattainment area through ongoing
reductions of ozone precursor emissions
should those measures be triggered.
Additionally, this action identifies
deficiencies in the State’s March 22,
2021 and May 20, 2022 RACT
submittals. The EPA has defined RACT
as the lowest emission limitation that a
particular source is capable of meeting
by the application of control technology
that is reasonably available considering
technological and economic feasibility.
The CAA requires this action, and the
EPA recognizes the adverse impacts of
ozone. Information on ozone and its
relationship to negative health impacts
can be found in the National Ambient
Air Quality Standards for Ozone.74 We
expect that this action and resulting
emissions reductions will generally be
neutral or contribute to reduced
environmental and health impacts on all
populations in the DMNFR Area,
including people of color and lowincome populations. At a minimum,
this action would not worsen any
existing air quality and is expected to
ensure the area is meeting requirements
to attain and/or maintain air quality
standards. Further, there is no
information in the record indicating that
72 See ‘‘EJSCREEN Maps’’ pdf, available within
the docket.
73 Id.
74 Final rule, 73 FR 16436 (March 12, 2008).
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this action is expected to have
disproportionately high or adverse
human health or environmental effects
on a particular group of people.
VIII. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This proposed action is not a
significant regulatory action and was
therefore not submitted to the Office of
Management and Budget (OMB) for
review.
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA, because this proposed SIP
disapproval, if finalized, will not in and
of itself create any new information
collection burdens, but will simply
disapprove certain State requirements
for inclusion in the SIP.
C. 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. This proposed SIP disapproval,
if finalized, will not in and of itself
create any new requirements but will
simply disapprove certain State
requirements for inclusion in the SIP.
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D. 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 proposes to
disapprove certain pre-existing
requirements under State or local law,
and imposes no new requirements.
Accordingly, no additional costs to
State, local, or tribal governments, or to
the private sector, result from this
action.
E. Executive Order 13132: Federalism
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.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
VerDate Sep<11>2014
16:45 Aug 11, 2023
Jkt 259001
Order 13175, because the SIP revision
that the EPA is proposing to disapprove
would not 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 and will not impose
substantial direct costs on tribal
governments or preempt tribal law.
Thus, Executive Order 13175 does not
apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks 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 this proposed SIP disapproval,
if finalized, will not in and of itself
create any new regulations, but will
simply disapprove certain State
requirements for inclusion in the SIP.
H. 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.
I. National Technology Transfer and
Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs
the EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. The EPA believes that this
action is not subject to the requirements
of section 12(d) of the NTTAA because
application of those requirements would
be inconsistent with the CAA.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as the ‘‘fair
PO 00000
Frm 00075
Fmt 4702
Sfmt 9990
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ EPA further
defines the term fair treatment to mean
that ‘‘no group of people should bear a
disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The State did not evaluate EJ
considerations as part of its SIP
submittal; the CAA and applicable
implementing regulations neither
prohibit nor require such an evaluation.
The EPA performed an EJ analysis, as is
described above in the section titled
‘‘Environmental Justice
Considerations.’’ The analysis was done
for the purpose of providing additional
context and information about this
rulemaking to the public, not as a basis
of the action. Due to the nature of the
action being taken here, this action is
expected to have a positive impact on
the air quality of the affected area. In
addition, there is no information in the
record upon which this decision is
based inconsistent with the stated goal
of E.O. 12898 of achieving
environmental justice for people of
color, low-income populations, and
Indigenous peoples.
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: July 31, 2023.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2023–16578 Filed 8–11–23; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\14AUP1.SGM
14AUP1
]]>Agencies
[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Proposed Rules]
[Pages 54975-54982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16578]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2023-0272; FRL-11237-01-R8]
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
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve and disapprove portions of a state implementation plan (SIP)
revision submitted by the State of Colorado to meet Clean Air Act (CAA)
requirements for the 2008 8-hour ozone national ambient air quality
standards (NAAQS) in the Denver Metro/North Front Range nonattainment
area (DMNFR Area). Specifically, the EPA is proposing approval of the
submitted enhanced monitoring SIP element as meeting applicable Serious
area requirements for the 2008 8-hour ozone NAAQS, and is proposing
disapproval of the contingency measure element and certain reasonably
available control technology (RACT) SIP submittals. The EPA is taking
this action pursuant to the CAA.
DATES: Written comments must be received on or before September 13,
2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2023-0272, 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 https://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.
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. What action is the EPA taking?
As explained below, the EPA is proposing various actions on
Colorado's proposed SIP revisions that were submitted respectively on
March 22, 2021, and May 20, 2022. Specifically, we are proposing to
approve the submitted enhanced monitoring SIP element as meeting
applicable Serious area requirements for the 2008 8-hour ozone NAAQS.
We are proposing disapproval of the contingency measures and the
categorical RACT rules for refinery fueled process heaters as well as
landfill or biogas fired reciprocating internal combustion engines
(RICE) and the State's RACT determination for the Golden Aluminum
facility.
The basis for our proposed action is discussed in this proposed
rulemaking.
II. Background
On March 12, 2008, the EPA revised both the primary and secondary
NAAQS for ozone to a level of 0.075 parts per million (ppm) (based on
the annual fourth-highest daily maximum 8-hour average concentration,
averaged over three years), to provide increased protection of public
health and the environment.\1\ The 2008 ozone NAAQS retains the same
general form and averaging time as the 0.08 ppm NAAQS set in 1997, but
is set at a more protective level. Specifically, the 2008 8-hour ozone
NAAQS is attained when the 3-year average of the annual fourth-highest
daily maximum 8-hour average ambient air quality ozone concentrations
is less than or equal to 0.075 ppm.\2\ Effective July 20, 2012, the EPA
designated as nonattainment any area that was violating the 2008 8-hour
ozone NAAQS based on the three most recent years (2008-2010) of air
monitoring data.\3\ With that rulemaking, the DMNFR Area was designated
nonattainment and classified as Marginal.\4\ Ozone nonattainment areas
are classified based on the severity of their ozone levels, as
determined using the area's design value. The design value is the 3-
year average of the annual fourth highest daily maximum 8-hour average
ozone concentration at a monitoring site.\5\ Areas designated as
nonattainment at the Marginal classification level were required to
attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based
on 2012-2014 monitoring data.\6\
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\1\ Final rule, National Ambient Air Quality Standards for
Ozone, 73 FR 16436 (March 27, 2008). The EPA has since further
strengthened the ozone NAAQS, but the 2008 8-hour standard remains
in effect. See Final Rule, National Ambient Air Quality Standards
for Ozone, 80 FR 65292 (Oct. 26, 2015).
\2\ 40 CFR 50.15(b).
\3\ Final rule, Air Quality Designations for the 2008 Ozone
National Ambient Air Quality Standards, 77 FR 30088 (May 21, 2012).
\4\ Id. at 30110. The nonattainment area includes Adams,
Arapahoe, Boulder, Broomfield, Denver, Douglas and Jefferson
Counties, and portions of Larimer and Weld Counties. See 40 CFR
81.306.
\5\ 40 CFR part 50, appendix I.
\6\ 40 CFR 51.903.
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On May 4, 2016, the EPA published its determination that the DMNFR
Area, among other areas, had failed to attain the 2008 8-hour ozone
NAAQS by the attainment deadline, and that it was accordingly
reclassified to Moderate ozone nonattainment status.\7\ Colorado
submitted SIP revisions to the EPA on May 31, 2017 to meet the DMNFR
Area's requirements under the Moderate classification.\8\ The EPA took
final action on July 3, 2018, approving the majority of the May 31,
2017 submittal, but deferring action on portions of the
[[Page 54976]]
submitted Regulation Number 7 (Reg. 7) RACT rules.\9\ On February 24,
2021, the EPA took final action approving additional measures as
addressing Colorado's RACT SIP obligations for Moderate ozone
nonattainment areas.\10\ Areas that were designated as Moderate
nonattainment were required to attain the 2008 8-hour ozone NAAQS no
later than July 20, 2018, based on 2015-2017 monitoring data.\11\
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\7\ Final rule, Determinations of Attainment by the Attainment
Date, Extensions of the Attainment Date, and Reclassification of
Several Areas for the 2008 Ozone National Ambient Air Quality
Standards, 81 FR 26697 (May 4, 2016).
\8\ CAA section 182, 42 U.S.C. 7511a, outlines SIP requirements
applicable to ozone nonattainment areas in each classification
category. Areas reclassified as Moderate under the 2008 8-hour ozone
NAAQS had a submittal deadline of January 1, 2017 for these SIP
revisions (81 FR 26699).
\9\ 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).
\10\ Final rule, Approval and Promulgation of Implementation
Plans; Colorado; Revisions to Regulation Number 7 and RACT
Requirements for 2008 8-Hour Ozone Standard for the Denver Metro/
North Front Range Nonattainment Area, 86 FR 11125.
\11\ See 40 CFR 51.903.
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On December 26, 2019, the EPA published its determination that the
DMNFR Area, among other areas, had failed to attain the 2008 8-hour
ozone NAAQS by the attainment deadline for Moderate areas, and that it
was accordingly reclassified as Serious.\12\ Colorado submitted SIP
revisions to the EPA on May 13, 2020, March 22, 2021, and May 20, 2022
to meet the DMNFR Area's requirements under the Serious classification.
The EPA took final action on the majority of these revisions on
November 5, 2021,\13\ and May 9, 2023.\14\
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\12\ Final rule, Finding of Failure to Attain and
Reclassification of Denver Area for the 2008 Ozone National Ambient
Air Quality Standard, 84 FR 70897 (Dec. 26, 2019); see 40 CFR
81.306.
\13\ Final rule, Approval and Promulgation of Implementation
Plans; Colorado; Revisions to Regulation Number 7; Aerospace, Oil
and Gas, and Other RACT Requirements for the 2008 8-Hour Ozone
Standard for the Denver Metro/North Front Range Nonattainment Area,
86 FR 61071 (Nov. 5, 2021).
\14\ Final rule, Air Plan Approval, Conditional Approval,
Limited Approval and Limited 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 29827).
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The submittals that we are now proposing to act on include those
revisions that we have not previously acted on that are addressing RACT
for certain major sources of volatile organic compounds (VOC) or
nitrogen oxides (NOX) as well as certain elements from the
State's Serious ozone attainment plan.
III. Summary of the State's SIP Submittals
March 22, 2021 Submittal
This submittal contains the State's Serious Ozone Attainment Plan
(OAP) and revisions to Reg. 7 to include RACT requirements in
Colorado's ozone SIP that apply a major source threshold of 50 tons per
year (tpy) for sources of VOC and/or NOX.\15\ The Reg. 7
revisions include expansion of categorical requirements to reduce VOC
emissions related to wood surface coatings in part C, section I.O.;
adding NOX emission limits for turbines, boilers, and
landfill or biogas engines in part E, section II.; and adding
categorical requirements to reduce VOC emissions related to foam
manufacturing in part E, section V. The Reg. 7 revisions also include
typographical, grammatical, and formatting corrections. We previously
acted on all parts of this SIP submittal \16\ except for limited
portions of Reg. 7 and parts of the OAP including the enhanced
monitoring, contingency measures, attainment demonstration, and RACM
elements. Here, we are proposing action on enhanced monitoring,
contingency measures, the remaining outstanding Reg. 7 revisions,\17\
and RACT for landfill and biogas engines at Golden Aluminum. The EPA is
not reopening previous actions where the Agency acted on other parts of
this SIP submittal.
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\15\ See CAA sections 182(c) and 182(f).
\16\ Final rule, Air Plan Approval, Conditional Approval,
Limited Approval and Limited 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 29827 (May 9, 2023).
\17\ By letter dated July 5, 2023, the state withdrew its
previous submission of an attainment demonstration and RACM for the
Serious area SIP. Accordingly, the EPA does not have these items
before it to act on, and we are therefore not proposing any action
with respect to these two Serious area SIP elements.
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May 20, 2022 Submittal
This submittal contains amendments to Reg. 7 that establish
categorical RACT requirements for major sources of NOX and
certain control techniques guidelines (CTG)-covered sources in the
DMNFR Area. Specifically, on July 16, 2021, Colorado's Air Quality
Control Commission (AQCC) adopted RACT requirements in Part C, section
I. for miscellaneous metal parts coatings and Part E, section II. RACT
requirements for process heaters at major sources of NOX
emissions, along with various typographical, grammatical, and
formatting corrections.
We previously acted on all parts of this SIP submittal \18\ except
for revisions in Reg. 7, Part E, section II.A.4. concerning categorical
RACT rules for refinery fuel gas process heaters, which we are now
proposing to act on. The EPA is not reopening previous actions where
the Agency acted on other parts of this SIP submittal.
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\18\ Id.
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IV. Procedural Requirements
The CAA requires that states meet certain procedural requirements
before submitting SIP revisions to the EPA, including the requirement
that states adopt SIP revisions after reasonable notice and public
hearing.\19\ For the March 22, 2021 submittal, the AQCC provided notice
in the Colorado Register (CR) on October 10, 2020,\20\ and held a
public hearing on the revisions on December 16, 2020. The Commission
adopted the revisions on December 18, 2020. The revisions became state-
effective on February 14, 2021.
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\19\ CAA section 110(a)(2), 42 U.S.C. 7410(a)(2).
\20\ 43 CR 19.
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For the May 20, 2022 submittal, the AQCC provided notice in the
Colorado Register on May 10, 2021,\21\ and held a public hearing on the
revisions on July 16, 2021. The Commission adopted the revisions on
July 16, 2021. The revisions became state-effective on September 14,
2021.
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\21\ 44 CR 9.
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V. The EPA's Evaluation of Colorado's Submittals
2008 Ozone Serious SIP Submittal
CAA section 182 outlines SIP requirements applicable to ozone
nonattainment areas in each classification category. A Serious area
classification triggers requirements for state submittals described in
CAA section 182(c) and further clarified in the EPA's regulations
implementing the 2008 8-hour ozone NAAQS.\22\ Examples of these
requirements include an attainment demonstration, reasonable further
progress (RFP), an enhanced inspection and maintenance program, RACT,
and RACM.
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\22\ See 40 CFR part 51, subpart AA.
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Colorado submitted SIP revisions to the EPA on March 22, 2021, to
meet the requirements of a Serious area classification for the DMNFR
Area.
The following subsections A through C discuss in turn each part of
this SIP submittal that we are proposing to act on.
A. Enhanced Monitoring
1. Background
Section 182(c)(1) of the CAA requires that SIPs for all ozone
nonattainment areas classified as Serious or higher ``contain measures
to improve the ambient monitoring'' of ozone, NOX, and VOC.
This subsection also requires the EPA to promulgate regulations for
enhanced monitoring of these pollutants. As highlighted in the 2008
Ozone SIP Requirements Rule (SRR), the EPA's monitoring regulations,
including
[[Page 54977]]
the enhanced monitoring network for ozone referred to as the
Photochemical Assessment Monitoring Stations (PAMS) network, are in 40
CFR part 58.\23\
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\23\ The 2008 ozone SIP requirements rule addresses PAMS-related
requirements. See 80 FR 12264 at 12291 (March 6, 2015).
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In 2006, the EPA significantly revised and reorganized 40 CFR part
58.\24\ As revised, 40 CFR part 58 no longer requires that SIPs contain
a demonstration of compliance with monitoring regulations. Instead,
compliance with the EPA's monitoring regulations is established through
the Agency's review of required annual monitoring network plans.\25\
The 2008 Ozone SRR made no changes to these requirements. The 2015
ozone SRR noted that the PAMS provisions in 40 CFR part 58 had been
revised, with the intent ``to provide a more spatially dispersed
monitoring network, reduce potential redundancy and improve data value
while providing monitoring agencies flexibility in collecting
additional information needed to understand their specific ozone
issues.'' \26\ These revisions did not alter the 40 CFR part 58
approach under which compliance with monitoring regulations is
established by EPA review of annual monitoring network plans.
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\24\ 71 FR 61236 (Oct. 17, 2006).
\25\ 40 CFR 58.2(b) now provides that, ``The requirements
pertaining to provisions for an air quality surveillance system in
the SIP are contained in this part.''
\26\ 83 FR 62998, 63008 (Dec. 06, 2018).
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2. Evaluation
Colorado's March 21, 2021 SIP submittal contained a section
addressing the enhanced monitoring requirement of CAA 182(c)(1) by
reference to existing provisions that the EPA previously approved into
the SIP.\27\ On September 23, 1993, the EPA approved revisions to
Colorado's SIP for air quality monitoring, consistent with the
requirements of 40 CFR part 58, as part 58 was written at that
time.\28\ The revisions addressed air quality surveillance network
design, network description, station designations, air quality
monitoring criteria, data reporting, annual review of the State's
monitoring network, prevention of significant deterioration monitoring,
and public notification. The monitoring provisions are located in
Colorado's Air Quality Monitoring SIP \29\ and provide for the
continued implementation, maintenance, and enforcement of the State air
pollution control program for meeting the NAAQS. Additionally, the OAP
SIP chapter 2 provides an overview of PAMS requirements and describes
how the State is complying with the requirements. This includes the
development and implementation of an Enhanced Monitoring Plan (EMP)
detailing enhanced ozone and ozone precursor monitoring activities to
be performed. The EMP was sent to the EPA on October 2, 2019, after a
30-day comment period,\30\ and is included as a Technical Support
Document attached to the Serious OAP. The OAP also explains that the
State operates an air quality monitoring network of State/Local Air
Monitoring Systems (SLAMS) monitors in accordance with EPA
regulations.\31\ Furthermore, the EPA approved Colorado's most recent
annual monitoring network plan, which includes a description of the
State's PAMS, on August 3, 2022.\32\
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\27\ See p. 2-1 of the OAP.
\28\ 58 FR 49434.
\29\ Contained within the docket for this action.
\30\ See ``State of Colorado Enhanced Monitoring Plan for
Ozone'', CDPHE, Air Pollution Control Division (Oct. 1, 2019),
contained within the March 22, 2021 submittal, available in the
docket. https://www.colorado.gov/airquality/tech_doc_repository.aspx#network_plan.
\31\ P. 2-8 of the OAP.
\32\ Letter from Monica Morales, EPA, to Michael Ogletree,
CDPHE, available in the docket for this action.
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Colorado collected 2006-2019 ozone monitoring data in accordance
with monitoring requirements in 40 CFR part 58 as well as with the
EPA's ``Quality Assurance Handbook for Air Pollution Measurement
Systems, Vol. II--Ambient Air Quality Monitoring Program''; \33\ the
APCD Quality Management Plan; \34\ the APCD Quality Assurance Project
Plan; \35\ and Colorado's monitoring network plan.\36\
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\33\ QA Handbook for Air Pollution Measurement Systems: ``Volume
II: Ambient Air Quality Monitoring Program'' (EPA-454/B-13-003, May
2013) (available in the docket). The current version of the Handbook
is available at https://www3.epa.gov/ttn/amtic/files/ambient/pm25/qa/FinalHandbookDocument1_17.pdf (EPA-454/B-17-001, Jan. 2017).
\34\ Colorado Department of Public Health and Environment,
Quality Management Plan (Feb 2018), available at https://www.colorado.gov/airquality/tech_doc_repository.aspx?action=open&file=APCD_QMP_03102016.pdf.
\35\ Colorado Department of Public Health and Environment,
Quality Assurance Project Plan (July 2015), available at https://www.colorado.gov/airquality/tech_doc_repository.aspx?action=open&file=QAPP_2018.pdf.
\36\ Annual Network Plans available at https://www.colorado.gov/airquality/tech_doc_repository.aspx.
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The monitoring section of Colorado's OAP includes:
A description of the State's EMP and PAMS monitoring plan;
A reference to Colorado's monitoring SIP;
Information on the location of ozone monitors in Colorado,
from southern Metropolitan Denver to northern Fort Collins (including
Rocky Mountain National Park);
A list of fourth-maximum monitored 8-hour ozone values
from 2006 through 2019, including levels recorded above the 75 parts
per billion (ppb) 2008 ozone NAAQS; \37\
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\37\ OAP Table 10, p. 2-3.
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A description of the State's ambient air quality data
assurance program; and
Relevant 8-hour-average ozone monitoring data and recovery
rates from 2006 through 2019.
Based on our review and approval of the State's monitoring SIPs and
the 2022 annual monitoring network plan, we propose to find that
Colorado has satisfied the enhanced monitoring requirements under CAA
section 182(c)(1) for the DMNFR Area with respect to the 2008 ozone
NAAQS.
B. Contingency Measures
1. Background
Under the CAA, states with ozone nonattainment areas classified
under subpart 2 as Moderate or higher must adopt and submit
nonattainment plans that include contingency measures consistent with
section 172(c)(9). Similarly, states with ozone nonattainment areas
classified as Serious or higher must include contingency measures
consistent with section 182(c)(9). Contingency measures are additional
controls or measures to be implemented in the event the area fails to
meet RFP or fails to attain the NAAQS by the applicable attainment
date. The SIP submittal should identify such controls or measures,
specify a schedule for implementation, and indicate that the measures
will be implemented without significant further action by the state or
the EPA.\38\
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\38\ See 70 FR 71612 (November 29, 2005); see also 80 FR 12264,
12285 (March 6, 2015).
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In the September 12, 2016 decision by the U.S. Court of Appeals for
the Ninth Circuit in Bahr v. EPA, the court concluded that contingency
measures must be measures that only take effect when an area fails to
meet RFP or attain by the applicable attainment date, not before.\39\
After the Bahr decision, the EPA recognized that within the geographic
jurisdiction of the Ninth Circuit (which does not include Colorado),
the language of CAA sections 172(c)(9) and 182(c)(9) require
contingency measures to be both prospective (i.e., that they be
undertaken in the future) and conditional (i.e., that implementation is
conditional upon the area's failure to
[[Page 54978]]
meet RFP or to attain by the applicable attainment date).\40\
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\39\ 836 F.3d 1218, 1235-1237.
\40\ The Bahr v. EPA decision involved a challenge to an EPA
approval of contingency measures under the general nonattainment
area plan provisions for contingency measures in CAA section
172(c)(9), but, given the similarity between the statutory language
in section 172(c)(9) and the additional ozone-specific contingency
measure provision in section 182(c)(9), the EPA found that the
decision affected how it should interpret both sections of the Act
in the Ninth Circuit.
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On January 29, 2021, the U.S. Court of Appeals for the District of
Columbia Circuit in Sierra Club v. EPA issued a decision in response to
challenges to the EPA's rule implementing the 2015 ozone NAAQS.\41\ In
Sierra Club v. EPA, the D.C. Circuit endorsed the holding of Bahr and
vacated the EPA's interpretation of the CAA that had allowed states to
rely on already-implemented control measures to meet the statutory
requirements of section 172(c)(9) or 182(c)(9) for contingency measures
in nonattainment plans for the ozone NAAQS.\42\ The effect of this
decision is that the CAA interpretation that contingency measures must
be prospective and conditional applies across the U.S.\43\
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\41\ 985 F.3d 1055, 1067-68; 83 FR 62998 (Dec. 6, 2018).
\42\ See 985 F.3d at 1067-68; 83 FR at 63026-27.
\43\ In Sierra Club, the D.C. Circuit held that ``Contingency
measures that are to take effect upon failure to satisfy standards
are likewise not measures that have been implemented before such
failure occurs.'' 985 F.3d at 1067-68 (internal quotations omitted).
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At the time Colorado was developing its Serious OAP, the EPA's
long-standing interpretation of section 172(c)(9) was that states could
rely on surplus emission reductions from already-implemented measures
(i.e., implemented as of the time that the EPA acts on the SIP
submittal) to meet the contingency measures requirements. Thus, states
could rely on surplus emissions reductions from already-implemented
Federal measures (e.g., Federal mobile source measures based on the
incremental turnover of the motor vehicle fleet each year) or surplus
emission reductions from already-implemented state or local measures in
the SIP.
The EPA has previously approved nonattainment area plan submittals
under the now invalidated interpretation that already-implemented
measures were permissible as contingency measures. That is, we have
approved contingency measures that consisted of one or more Federal or
state control measures already in place that provided reductions in
excess of the reductions needed to meet other requirements or relied
upon in the modeled attainment demonstration.\44\ However, after the
D.C. Circuit's January 2021 Sierra Club decision, the EPA can no longer
interpret the CAA to allow approval of already-implemented measures as
meeting the requirements of CAA sections 172(c)(9) or 182(c)(9) for any
nonattainment plan submittal (even if, as is the case here, the
development of the submittal was nearing conclusion when the decision
was issued). Contingency measures must be prospective and conditional--
they must be measures that would take effect when the area fails to
meet RFP or attain by the applicable attainment date, not before.
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\44\ See, e.g., 62 FR 15844 (April 3, 1997) (direct final rule
approving an Indiana ozone SIP revision); 62 FR 66279 (December 18,
1997) (final rule approving an Illinois ozone SIP revision); 66 FR
30811 (June 8, 2001) (direct final rule approving a Rhode Island
ozone SIP revision); 66 FR 586 (Jan. 3, 2001) (final rule approving
District of Columbia, Maryland, and Virginia ozone SIP revisions);
and 66 FR 634 (Jan. 3, 2001) (final rule approving a Connecticut
ozone SIP revision).
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2. Evaluation
For the DMNFR Area 2008 ozone NAAQS Serious nonattainment area, the
contingency measures the State submitted as part of the March 22, 2021
SIP submittal consist of surplus emissions reductions from already-
implemented control measures. The State relied on the surplus emissions
reductions from such already-implemented measures to demonstrate
compliance with the contingency measure requirements of the CAA.\45\
The State determined the emissions reductions from these measures to be
surplus, in that the State did not rely upon them in the OAP for
demonstrating RFP or attainment, and in that no additional actions are
required to garner these additional emission reductions after the
attainment year regardless of whether the area attained. The March 22,
2021 SIP submittal explained that these surplus emission reductions
would occur after the July 20, 2021 Serious attainment date, and thus
the State identified them as contingency measures for the DMNFR Area.
These measures consist of projected emission reductions from Federal
vehicle and engine emissions certification programs and from fuel
control programs for both on-road and non-road vehicles which were
already adopted by the EPA, the implementation of which does not depend
on whether a nonattainment area attains or meets its RFP
requirements.\46\ The State concluded that the projected combined VOC
and NOX emissions reductions of over three percent for the
DMNFR Area to be achieved in 2022 (from the 2011 baseline) satisfies
the CAA requirements for contingency measures.
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\45\ See Chapter 10 of the OAP.
\46\ See chapter 4 of the OAP for a description of mobile source
emission reduction measures.
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In evaluating the DMNFR Area contingency measures in the March 22,
2021 SIP submittal, we must consider whether they are both prospective
and conditional, consistent with the D.C. Circuit's decision in Sierra
Club. Because these contingency measures consist entirely of emission
reductions from measures that will occur regardless of whether the
nonattainment area fails to meet RFP or to attain by the applicable
attainment date, they do not satisfy the requirements of CAA sections
172(c)(9) and 182(c)(9) that contingency measures be both prospective
and conditional. Thus, we must propose to disapprove the contingency
measures element of the March 22, 2021 SIP submittal.
This proposed action concerning contingency measures will have no
impact on the EPA's prior determinations with respect to RFP or other
attainment plan requirements for the area and this NAAQS.
C. Reasonably Available Control Technology (RACT)
1. Background
Section 172(c)(1) of the CAA requires that SIPs for nonattainment
areas ``provide for the implementation of all reasonably available
control measures as expeditiously as practicable (including such
reductions in emissions from existing sources in the area as may be
obtained through the adoption, at a minimum, of reasonably available
control technology [RACT]).'' CAA section 182(b)(2) specifies that RACT
is required for certain types of sources and pollutants within ozone
nonattainment areas classified Moderate and higher. The EPA has defined
RACT as ``[t]he lowest emissions limitation that a particular source is
capable of meeting by the application of control technology that is
reasonably available considering technological and economic
feasibility.'' \47\ States must submit a SIP revision requiring the
implementation of RACT for each source in the area covered by a CTG,
and for any major source of VOC or NOX in the area.\48\
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\47\ General Preamble for Proposed Rulemaking on Approval of
Plan Revisions for Nonattainment Areas--Supplement (on Control
Techniques Guidelines), 44 FR 53761 (Sep. 17, 1979).
\48\ See CAA section 182(b)(2), 42 U.S.C. 7511a(b)(2)); see also
Note, RACT Qs & As--Reasonably Available Control Technology (RACT):
Questions and Answers, William Harnett, Director, Air Quality Policy
Division, EPA (May 2006), available at https://www.regulations.gov/document/EPA-R08-OAR-2020-0114-0008.
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[[Page 54979]]
For a Moderate, Serious, or Severe area, a major stationary source
is one that emits, or has the potential to emit, 100, 50, or 25 tpy or
more, respectively, of VOCs or NOX.\49\ Accordingly, for the
DMNFR Serious nonattainment area, a major stationary source is one that
emits, or has the potential to emit, 50 tpy or more of VOCs or
NOX.\50\
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\49\ See CAA sections 182(b), 182(c), 182(d), 182(f)(1), and
302(j).
\50\ On October 7, 2022 the EPA finalized an action that
reclassified the DMNFR Area to Severe nonattainment status for the
2008 ozone NAAQS. See Final rule, Determinations of Attainment by
the Attainment Date, Extensions of the Attainment Date, and
Reclassification of Areas Classified as Serious for the 2008 Ozone
National Ambient Air Quality Standards, 87 FR 60926. Accordingly,
the State of Colorado is required to submit a demonstration that the
area will attain the Severe standard, and other elements of a Severe
SIP.
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On reclassification as Serious nonattainment, the DMNFR Area was
required to implement RACT as expeditiously as practicable, but no
later than August 3, 2020, for RACT needed for demonstrating attainment
and July 20, 2021, for RACT not needed for demonstrating
attainment.\51\ The Division conducted a series of analyses and
rulemakings to address 2008 ozone Moderate and Serious RACT
requirements.
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\51\ Final rule, Finding of Failure to Attain and
Reclassification of Denver Area for the 2008 Ozone National Ambient
Air Quality Standard, 84 FR 70897, 70900 (Dec. 26, 2019); see also
Final rule, Determination of 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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The EPA approved the majority of the State's CTG RACT analysis on
July 3, 2018.\52\ On February 24, 2021, the EPA approved categorical
RACT requirements for combustion equipment at major sources, RACT
requirements for major sources of VOC and NOX, and
additional CTG VOC source RACT rules.\53\ On November 5, 2021, the EPA
approved additional RACT requirements for major sources of VOC and
NOX in the DMNFR Area under the Serious classification,
including expanded categorical combustion equipment and new categorical
general solvent use requirements.\54\ Finally, the EPA took action on
several other RACT categories as part of its May 9, 2023
rulemaking.\55\
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\52\ See 83 FR 31068. A negative declaration as to RACT for
sources covered by the aerospace CTG was approved on November 5,
2021 (86 FR 61071). Colorado's RACT demonstrations for sources
covered by the industrial cleaning solvents, metal furniture
coatings (2007), and wood furniture CTGs were approved on February
24, 2021 (86 FR 11127); and the State's RACT demonstration for
sources covered by the oil and gas CTG was conditionally approved on
May 13, 2022 (87 FR 29228).
\53\ 86 FR 11127.
\54\ Final rule, Approval and Promulgation of Implementation
Plans; Colorado; Revisions to Regulation Number 7; Aerospace, Oil
and Gas, and Other RACT Requirements for the 2008 8-Hour Ozone
Standard for the Denver Metro/North Front Range Nonattainment Area
86 FR 61071 (Nov. 5, 2021).
\55\ 88 FR 29827.
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The RACT submittals that we are now proposing to act on include
those that we have not previously acted on that address RACT for
several non-CTG VOC and NOX sources and categories.
2. Evaluation
In preparing its RACT determinations, Colorado reviewed source
permits, consulted with Division permitting and enforcement staff
involved with each source, and consulted with the sources
themselves.\56\ Colorado also considered control strategies identified
in the CTGs, Alternative Control Techniques (ACTs), RACT/Best Available
Control Technology/Lowest Achievable Emission Rate Clearinghouse
(RBLC), EPA's Menu of Control Measures,\57\ New Source Performance
Standards (NSPS), National Emission Standards for Hazardous Air
Pollutants (NESHAP), and Colorado's regulations. For major sources,
Colorado identified a list of major VOC and NOX sources in
the DMNFR Area subject to RACT requirements under Moderate and Serious
classifications.\58\
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\56\ See Colorado's Technical Support Document for Reasonably
Available Control Technology for Major Sources, December 14, 2020.
Available within the docket.
\57\ See https://www.epa.gov/air-quality-implementation-plans/menu-control-measures-naaqs-implementation.
\58\ See chapter 6.3 of the OAP.
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a. Landfill and Biogas Fired RICE
Colorado's March 22, 2021 submittal contains categorical RACT rules
for landfill gas or biogas fired reciprocating internal combustion
engines (RICE) in Reg. 7, Part E, section II.A.4.f. Colorado evaluated
technical information submitted by operators of five landfill or
biogas-fired spark ignition engines and determined that additional add
on emission controls are not RACT. Colorado then established a limit of
2.0 grams NOX per brake horsepower hour (g/bhp-hr) based on
a 30-day rolling average for landfill or biogas-fired engines with a
design power output greater than or equal to 500 hp and less than 1,350
hp.
The EPA's evaluation of the RACT analyses submitted to the AQCC by
the two facilities that still have engines subject to section
II.A.4.f., appears to show that they are meeting a limit below 1.5 g
NOX/hp-hr.\59\ It is therefore unclear how a 2.0 g
NOX/bhp-hr limit could be representative of RACT. Colorado
has not provided sufficient information within the SIP submittal and
associated documents for the EPA to determine that the proposed limit
of 2.0 g NOX/bhp-hr constitutes RACT. Additionally, there
are no emission monitoring requirements to determine NOX
emission rates for landfill or biogas fired engines in section
II.A.4.f. Without such requirements, the EPA cannot determine
compliance with the applicable numerical emissions limitation. This is
a problem for purposes of meeting the RACT requirement. We conclude
that this was likely inadvertently excluded from the regulation,
because the statement of basis provides that ``owners or operators of
these engines will continue to comply with the combustion process
adjustment, periodic performance testing, and recordkeeping
requirements.'' \60\ Finally, the recordkeeping provisions in Reg. 7,
Part E, section II.A.7., require owners and operators to maintain
records for a period of five years and to make those records available
to the Division upon request. In a recent final action by the EPA, we
explained that records must be periodically submitted to the State and
made publicly available for citizens' ability to participate in the
enforcement of the SIP as allowed by CAA section 304.\61\
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\59\ See Leprino Foods and Waste Management RACT Analyses,
available within the docket. We note that at the time of rule
development, there were biogas engines located at Boulder Wastewater
Treatment Plant with higher limits, but these engines are no longer
in use. The engines were removed from the facility and appropriate
cancellations were submitted.
\60\ See ``Reg Lang & SBSP Adopted_R7'' within the March 22,
2021 submittal.
\61\ 88 FR 29827 (May 9, 2023).
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For these reasons, we propose to disapprove the categorical RACT
rules for landfill and biogas fired RICE.
b. Golden Aluminum
Colorado's March 22, 2021 submittal identifies Golden Aluminum, an
individual aluminum sheet manufacturing facility, as a major VOC and
NOX source. Equipment and operations at the facility include
rigid can stock shredders, a delacquering kiln, three furnaces,
degassing boxes, hot mill press and coiling, annealing furnaces, cold
mill and spray, recoiling, coil coating line, packaging and an
emergency generator. To address these emitting points the State
reviewed the EPA's RBLC for metal coil surface coating and
miscellaneous boilers, furnaces, and heaters. The RBLC, which
[[Page 54980]]
is an EPA database of air permit determinations that can help identify
appropriate emissions control technologies, did not list any control
measures for metal coil surface coating. For miscellaneous boilers,
furnaces, and heaters, the RBLC listed low-NOX combustion
technology, natural gas as fuel, selective catalytic reduction,
efficient boiler design, low-NOX burners, and good
combustion practices as potential control measures. For annealing
furnaces, the RBLC listed low-NOX burners, combustion of
clean fuel, and good combustion practices as potential control
measures. The Division also conducted an analysis for operating the
three furnaces at the facility in a natural gas/oxygen/air mixture
mode. Colorado determined that compliance with the EPA CTG for coil
coating operations,\62\ on which Reg. 7, Part C, section I.D. is based,
and with combustion process adjustments in Reg. 7, Part E, section II.,
constitutes RACT for the Golden Aluminum facility.
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\62\ Control of Volatile Organic Emissions from Existing
Stationary Sources, Volume II: Surface Coating of Cans, Coils,
Paper, Fabrics, Automobiles, and Light-Duty Trucks, EPA.-450/2-77-
008 (May 1977). ``Coil Coating CTG''.
---------------------------------------------------------------------------
There is one cold rolling mill at the facility with a permit limit
of 67.38 tpy of VOC, which is above the applicable 50 tpy major source
threshold for RACT. Emissions from this unit are controlled with an air
purifier centrifugal separator. Beyond referencing the coil coatings
requirements in Reg. 7 that are based on the EPA's Coil Coating CTG,
and which apply to the coil coating operation at the facility, VOC
emitting points such as the cold rolling mill were not further analyzed
for RACT. This cold rolling mill is not covered by the Coil Coating
CTG, and therefore that CTG is not relevant for purposes of determining
RACT for the cold rolling mill. The level of analysis provided in the
submittal is not sufficient for purposes of demonstrating that the cold
rolling mill is subject to RACT-level controls. The Reg. 7 coil coating
requirements apply to the coating applicators, ovens, and quench areas
of coil coating operations occurring after the cold rolling process,
and are therefore not relevant to the control of VOC emissions
associated with lubricant oil use during operation of the cold rolling
mill. The Reg. 7, Part C, section I.D. coil coating requirements that
are referenced in the State's RACT analysis, and which are based on the
applicable CTG, apply only to the coil coating operation, which is a
different process than the cold rolling mill, which functions to shape
the metal to a specified thickness.\63\ Therefore, the State's SIP
submittal does not contain any RACT analysis that is specific to the
VOC emissions from the cold rolling mill itself. The cold rolling mill
has not been sufficiently analyzed with respect to RACT.
---------------------------------------------------------------------------
\63\ See Technical Support Document for Reasonably Available
Control Technology for Major Sources, Dec. 2020. Contained within
the State's March 22, 2021 SIP submittal. Available within the
docket.
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In its 2008 ozone SIP requirements rule, the EPA described how
states should meet RACT requirements. States are to consider existing
CTGs and (ACTs) ``as well as all relevant information (including recent
technical information and information received during the public
comment period) that is available at the time that they are developing
their RACT SIPs for the 2008 ozone NAAQS.'' \64\ In June 1992, the EPA
released a technical guidance project report titled ``Control of VOC
Emissions from Nonferrous Metal Rolling Processes,'' \65\ which
presents information on nonferrous metal rolling processes, VOC
emissions generated during these operations, emission control
techniques and their effectiveness, and costs associated with process
changes and emission control options. This report includes information
regarding the control of VOC emissions from cold rolling process
equipment like the cold rolling mill at Golden Aluminum. The report was
available at the time the Division was developing their RACT SIP for
the 2008 ozone NAAQS under the Serious classification. Also, other
states have evaluated RACT for cold rolling mills independently from
CTG-covered emission points.\66\ The aforementioned technical report,
relevant regulations in other states, the RBLC Clearinghouse, the EPA's
Menu of Control Measures, NSPS, and NESHAP are all resources that may
be considered in evaluating RACT for cold rolling process equipment.
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\64\ Final rule, ``Implementation of the 2008 National Ambient
Air Quality Standards for Ozone: State Implementation Plan
Requirements,'' 80 FR 12264, 12279 (March 6, 2015).
\65\ EPA-453/R-92-001.
\66\ For example, see the Missouri non-CTG RACT rule for control
of VOC emissions from aluminum foil rolling at 76 FR 66013 (October
25, 2011). Available at https://www.regulations.gov/document/EPA-R07-OAR-2011-0859-0001.
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Because we conclude that RACT was not fully evaluated for the cold
mill located at Golden Aluminum, we are proposing to disapprove the
State's determination that RACT has been met for this facility. To
address this disapproval, if it is finalized, we recommend that the
Division evaluate the current emissions from the cold rolling mill and
the effectiveness of the control device, conduct an analysis of whether
further VOC reduction is technically and economically feasible for the
cold rolling mill through the application of RACT, and determine if
appropriate emission limits (including work practices) and associated
monitoring and recordkeeping should be adopted as a SIP revision for
purposes of meeting RACT.
c. Refinery Fueled Process Heaters
Colorado's May 20, 2022 submittal contains categorical RACT rules
for refinery fueled process heaters in Reg. 7, Part E, section II.A.
The rules establish an emission limit of 0.1 pounds of NOX
per million British thermal units (lb NOX/MMBtu) for
refinery gas-fired process heaters with a heat input rate greater than
or equal to 5 MMBtu/hr. Reg. 7, Part E, section II.A. also establishes
performance testing requirements, and associated recordkeeping, for
refinery gas-fired process heaters greater than or equal to 100 MMBtu/
hr. We proposed approval of the revisions on November 9, 2022.\67\
During the comment period, we received adverse comments regarding the
categorical RACT limit for refinery-fueled process heaters. We did not
act on this category in our May 9, 2023 final rule.
---------------------------------------------------------------------------
\67\ 87 FR 67617.
---------------------------------------------------------------------------
After further evaluation of the State's submitted RACT rules and
technical information, we are proposing to find that the proposed
emission limit in Reg. 7 is not enforceable for all refinery fueled
process heaters, either because performance testing is not required or
feasible, or because the unit does not have a continuous emission
monitoring system (CEMS). Colorado's Technical Support Document for
Reasonably Available Control Technology for Major Sources \68\ explains
that there are significant challenges for performance testing including
``lack of test ports, lack of platforms and safe access, and a
refractory lining in some stacks.'' \69\ Nonetheless, CAA 110(a)(2)(A)
requires the SIP to include ``enforceable emission limitations.'' The
lack of testing or CEMS for some sources means that neither the State
nor the EPA have a method to determine whether those sources are
meeting the numerical emission limit of 0.1 lb NOX/MMBtu.
There is no way to determine whether these sources are complying with
the limit or whether the limit represents
[[Page 54981]]
RACT for the specific units. Therefore, the categorical RACT limit is
not enforceable for all refinery fueled process heaters controlled in
Reg. 7.
---------------------------------------------------------------------------
\68\ July 12, 2021, contained within the May 16, 2022 submittal.
\69\ Id. at p. 11.
---------------------------------------------------------------------------
Furthermore, the State's record that accompanies the SIP submittal
does not adequately demonstrate how the state determined that the limit
of 0.1 lb NOX/MMBtu constitutes RACT for these sources. As
explained above, the majority of refinery fueled process heaters have
not had testing to establish an emission baseline. As such, the
submittal is unclear on the amount of emissions coming from these
sources. The State's RACT analysis does not assess emission reductions
that could be achievable through the application of lower emitting
technology, nor does is discuss costs of such technology, presumably in
part due to the lack of baseline emissions information. The EPA cannot
fully determine that the State's limit constitutes RACT without
additional information regarding baseline emissions as well as
potential control options and associated costs. Lastly, there are some
units covered by the regulation that have low NOX burners
and ultra low NOX burners, which have been shown through
initial performance testing or the operation of CEMS to meet emission
rates below the proposed categorical limit of 0.1 lb NOX/
MMBtu.\70\ This demonstrates to the EPA that the categorical limit may
not be appropriate for these units. The State does not explain why its
proposed limit represents RACT when information included in the record
indicates these sources are capable of achieving a lower limit. The
State has not provided sufficient information in its SIP submittal and
associated documents to allow the EPA to conclude that the categorical
RACT limit for refinery fueled process heaters is representative of
RACT. For these reasons, we propose to disapprove the categorical RACT
rules for refinery fueled process heaters.
---------------------------------------------------------------------------
\70\ See columns N and V of the Suncor Heaters spreadsheet,
available within the docket.
---------------------------------------------------------------------------
VI. Proposed Action
We propose to approve the enhanced monitoring element of the OAP
submittal from the State of Colorado for the DMNFR Area submitted on
March 22, 2021, as explained in section V.A. of this document. In light
of the D.C. Circuit's decision in Sierra Club v. EPA, we propose to
disapprove the contingency measure element of the March 22, 2021 OAP
for the Serious nonattainment area under the 2008 8-hour ozone NAAQS.
Additionally, we propose to disapprove certain RACT SIP revisions, as
explained in section V.C. of this document. The EPA proposes
disapproval of the contingency measures with respect to the
requirements of CAA 172(c)(9) and 182(c)(9). The EPA proposes
disapproval of RACT requirements with respect to the requirements of
CAA sections 172(c)(1), 182(b)(2), and 182(c).
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of part D, title I of the CAA starts
sanctions clocks. The March 22, 2021 and May 20, 2021 SIP revision
submittals, including the contingency measures and RACT elements for
the DMNFR 2008 ozone NAAQS nonattainment area, do address requirements
of part D, and thus if the EPA finalizes this proposed disapproval, the
sanctions clocks for these elements would start on the effective date
of the final action.\71\
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\71\ Under 40 CFR 52.31, the offset sanction in CAA section
179(b)(2) would be imposed 18 months after the effective date of
that final disapproval action, and, unless an exemption applies, the
highway funding sanction in CAA section 179(b)(1) would be imposed
six months after the offset sanction. Sanctions would not be imposed
if the EPA determined, via a final approval, that a subsequent SIP
submittal corrected the identified deficiencies before the
applicable deadlines.
---------------------------------------------------------------------------
Additionally, section 110(c)(1) of the CAA requires the
Administrator to promulgate a Federal implementation plan (FIP) at any
time within two years after the Administrator finds that a state has
failed to make a required SIP submittal, finds a SIP submittal to be
incomplete, or disapproves a SIP submittal, unless the state corrects
the deficiency, and the Administrator approves the SIP revision, before
the Administrator promulgates a FIP. Therefore, if the EPA finalizes
this proposed disapproval, the EPA will be obligated under CAA section
110(c)(1) to promulgate a FIP within two years after the effective date
of the disapproval, unless the State submits and the EPA approves SIP
revisions to correct the identified deficiencies in the rules before
the EPA promulgates the FIP.
The EPA is soliciting public comments on the proposed actions
discussed in this document. We will accept comments from the public on
this proposal for the next 30 days and will consider comments before
taking final action.
VII. Environmental Justice Considerations
The EPA reviewed demographic data, which provides an assessment of
individual demographic groups of populations living within the DMNFR
Area. The EPA then compared the data to the national averages for each
of the demographic groups. The results of this analysis are being
provided for informational and transparency purposes. The results of
the demographic analysis indicate that for populations within the DMNFR
Area, there are census block groups in which the percentage of people
of color (persons who reported their race as a category other than
White alone and/or Hispanic or Latino) is greater than the national
average of 39% with some census block groups ranking above the 80th
percentile.\72\ There are also census block groups within the DMNFR
Area where the percentage of low income population is above the
national average of 33% with some census block groups ranking above the
80th percentile.\73\
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\72\ See ``EJSCREEN Maps'' pdf, available within the docket.
\73\ Id.
---------------------------------------------------------------------------
This proposed action identifies deficiencies in the contingency
measure element of the March 22, 2021 SIP submittal for the DMNFR Area
under the 2008 8-hour ozone NAAQS. The EPA's disapproval of these
contingency measures, if finalized, would require that Colorado submit
plans for the DMNFR Area containing prospective and conditional
contingency measures consistent with the D.C. Circuit decision, which
would help to improve air quality in the entire affected nonattainment
area through ongoing reductions of ozone precursor emissions should
those measures be triggered. Additionally, this action identifies
deficiencies in the State's March 22, 2021 and May 20, 2022 RACT
submittals. The EPA has defined RACT as the lowest emission limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility. The CAA requires this action,
and the EPA recognizes the adverse impacts of ozone. Information on
ozone and its relationship to negative health impacts can be found in
the National Ambient Air Quality Standards for Ozone.\74\ We expect
that this action and resulting emissions reductions will generally be
neutral or contribute to reduced environmental and health impacts on
all populations in the DMNFR Area, including people of color and low-
income populations. At a minimum, this action would not worsen any
existing air quality and is expected to ensure the area is meeting
requirements to attain and/or maintain air quality standards. Further,
there is no information in the record indicating that
[[Page 54982]]
this action is expected to have disproportionately high or adverse
human health or environmental effects on a particular group of people.
---------------------------------------------------------------------------
\74\ Final rule, 73 FR 16436 (March 12, 2008).
---------------------------------------------------------------------------
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA, because this proposed SIP disapproval, if finalized, will not
in and of itself create any new information collection burdens, but
will simply disapprove certain State requirements for inclusion in the
SIP.
C. 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. This
proposed SIP disapproval, if finalized, will not in and of itself
create any new requirements but will simply disapprove certain State
requirements for inclusion in the SIP.
D. 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 proposes to disapprove certain pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Executive Order 13132: Federalism
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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP revision that the EPA is
proposing to disapprove would not 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 and will not impose substantial direct
costs on tribal governments or preempt tribal law. Thus, Executive
Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks 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 this proposed SIP disapproval, if
finalized, will not in and of itself create any new regulations, but
will simply disapprove certain State requirements for inclusion in the
SIP.
H. 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.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as the ``fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The State did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. The EPA performed an EJ
analysis, as is described above in the section titled ``Environmental
Justice Considerations.'' The analysis was done for the purpose of
providing additional context and information about this rulemaking to
the public, not as a basis of the action. Due to the nature of the
action being taken here, this action is expected to have a positive
impact on the air quality of the affected area. In addition, there is
no information in the record upon which this decision is based
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
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: July 31, 2023.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2023-16578 Filed 8-11-23; 8:45 am]
BILLING CODE 6560-50-P
