Air Plan Approval; Revisions to Colorado Common Provisions Regulation, 86305-86309 [2024-25228]
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409(c)(5) of the FD&C Act, FDA is to
‘‘consider among other relevant factors’’
the following: (1) probable consumption
of the additive; (2) cumulative effect of
such additive ‘‘in the diet of man or
animals, taking into account any
chemically or pharmacologically related
substance or substances in such diet;’’
and (3) safety factors ‘‘generally
recognized’’ by qualified experts ‘‘as
appropriate for the use of animal
experimentation data.’’
Section 409(c)(5) of the FD&C Act
does not impose a ‘‘legal obligation’’ for
FDA to consider exposure from nondietary sources in determining safety.
Rather, section 409(c)(5) of the FD&C
Act makes clear that FDA has discretion
to review a number of factors to
determine whether a food additive is
safe. Besides the factors enumerated in
subparagraphs (A), (B), and (C), section
409(c)(5) of the FD&C Act gives us
discretion to decide, in our scientific
expertise, whether there are other
factors that are ‘‘relevant’’ to the safety
of a food additive in the context of a
particular petition. Moreover, the text of
subparagraphs (A) and (B), which
contemplate FDA considering foodrelated uses in assessing safety,
provides additional support that it is not
required for FDA to consider exposure
from non-dietary sources as a relevant
factor. Specifically, subparagraph (A)
states that in determining safety, the
Secretary shall consider ‘‘the probable
consumption of the additive and of any
substance formed in or on food because
of the use of the additive,’’ and
subparagraph (B) refers to the diet of
man or animals’’ (emphasis added).
Subparagraph 409(c)(5)(C) of the FD&C
Act, which directs FDA to consider
safety factors that ‘‘are generally
recognized as appropriate for the use of
animal experimentation data,’’ does not
suggest that FDA must consider
exposure from non-dietary sources.
Therefore, the objectors’ argument that
non-dietary exposure must be part of the
safety analysis under section 409(c)(5)
of the FD&C Act is incorrect. While the
objectors state that other federal
agencies ‘‘frequently consider
background exposures when evaluating
and regulating harmful chemicals,’’ we
administer the FD&C Act and not
authorities that are applicable to other
Federal agencies.
V. Summary and Conclusions
After evaluating the objections, we
conclude that the submission does not
provide a basis to support modifying or
revoking the denial of FAP 6B4815.
Therefore, we are overruling the
objections and denying the requests for
a public hearing.
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VI. References
The following references marked with
an asterisk (*) are on display at the
Dockets Management Staff, (HFA–305),
Food and Drug Administration, 5630
Fishers Lane, Rm. 1061, Rockville, MD
20852, 240–402–7500 and are available
for viewing by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday; they also are available
electronically at https://
www.regulations.gov. References
without asterisks are not on public
display at https://www.regulations.gov
because they have copyright restriction.
Some may be available at the website
address, if listed. References without
asterisks are available for viewing only
at the Dockets Management Staff.
Although FDA verified the website
addresses in this document, please note
that websites are subject to change over
time.
1. * FDA Memorandum from J. Urbelis to
Administrative File for Food Additive
Petition (FAP) 6B4815, May 11, 2022.
2. * FDA, Guidance for Industry,
‘‘Toxicological Principles for the Safety
Assessment of Food Ingredients:
Redbook 2000,’’ July 2007 (available at
https://www.fda.gov/media/79074/
download).
3. * FDA Chemistry Memorandum from R.
Brinas to J. Urbelis, May 11, 2022.
4. * FDA Toxicology Memorandum from T–
F. Cheng to J. Urbelis, May 11, 2022.
5. * Agency for Toxic Substances and Disease
Registry (ATSDR) ‘‘Toxicological Profile
for Di(2-ethylhexyl) Phthalate (DEHP),’’
January 2022.
6. * ‘‘NTP Technical Report on the
Toxicology and Carcinogenesis Studies
of Di(2-ethylhexyl) Phthalate
Administered in Feed to Sprague Dawley
Rats,’’ December 2021.
7. European Food Safety Authority Panel on
Food Contact Materials, Enzymes and
Processing Aids, ‘‘Update of the Risk
Assessment of Di-Butylphthalate (DBP),
Butyl-Benzyl-Phthalate (BBP), Bis(2ethylhexyl)Phthalate (DEHP), DiIsononylphthalate (DINP) and DiIsodecylphthalate (DIDP) for Use in Food
Contact Materials,’’ European Food
Safety Authority Journal, 17(12):5838,
2019.
8. Conley, J., C.S. Lambright, N. Evans, et. al.,
‘‘A Mixture of 15 Phthalates and
Pesticides Below Individual Chemical
No Observed Adverse Effects Levels
(NOAELs) Produces Reproductive Tract
Malformations in the Male Rat,’’
Environment International, 156:106615,
2021.
9. ** 2014 Organization for Economic
Cooperation and Development (OECD)
Guidance on Grouping of Chemicals.
10. ** 2014 Chronic Hazard Advisory Panel
(CHAP) on Phthalates and Phthalate
Alternatives Final Report.
11. Howdeshell, K., A.K. Hotchkiss, L.E. Gray
Jr., et al., ‘‘Cumulative Effects of
Antiandrogenic Chemical Mixtures and
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Their Relevance to Human Health Risk
Assessment,’’ International Journal of
Hygiene and Environmental Health 220
(2Pt A):179, 2017.
12. Conley, J., C.S. Lambright, N. Evans, et.
al., ‘‘Mixed Antiandrogenic Chemicals at
Low Individual Doses Produce
Reproductive Tract Malformations in the
Male Rat,’’ Toxicological Sciences
164(1):166, 2018.
Dated: October 22, 2024.
Kimberlee Trzeciak,
Deputy Commissioner for Policy, Legislation,
and International Affairs.
[FR Doc. 2024–25120 Filed 10–29–24; 8:45 am]
BILLING CODE 4164–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2024–0207; FRL–12341–
01–R8]
Air Plan Approval; Revisions to
Colorado Common Provisions
Regulation
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the Common Provisions
Regulation of the Colorado State
Implementation Plan (SIP). These
revisions were submitted by the State of
Colorado in response to the EPA’s June
12, 2015, Findings of Substantial
Inadequacy and ‘‘SIP call’’ for certain
provisions in the SIP related to
affirmative defenses applicable to excess
emissions during startup, shutdown,
and malfunction (SSM) events. The EPA
is proposing approval of these SIP
revisions because the Agency has
determined that they are in accordance
with the requirements for SIP provisions
under the Clean Air Act (CAA or the
Act).
SUMMARY:
Written comments must be
received on or before November 29,
2024.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2024–0207, to the Federal
Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from https://
www.regulations.gov. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
ADDRESSES:
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Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
generally not consider comments or
comment contents located outside of the
primary submission (i.e., on the web,
cloud, or other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available electronically in
https://www.regulations.gov. Please
email or call the person listed in the FOR
FURTHER INFORMATION CONTACT section if
you need to make alternative
arrangements for access to the docket.
FOR FURTHER INFORMATION CONTACT:
Adam Clark, Air and Radiation
Division, EPA, Region 8, Mailcode
8ARD–AQ, 1595 Wynkoop Street,
Denver, Colorado 80202–1129,
telephone number: (303) 312–7104,
email address: clark.adam@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
I. Background
Prior to the EPA’s 2015 SSM SIP
Action,1 which is discussed later in this
section, the Agency had a longstanding
interpretation of the CAA with respect
to the treatment of excess emissions
during periods of SSM in SIPs. This
statutory interpretation had been
expressed, reiterated, and elaborated
upon in a series of guidance documents
issued in 1982, 1983, and 1999
described below.
In the 1982 SSM Guidance, the EPA
recommended the exercise of
enforcement discretion to address
1 ‘‘State
Implementation Plans: Response to
Petition for Rulemaking; Restatement and Update of
EPA’s SSM Policy Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown and Malfunction.’’ 80
FR 33840, June 12, 2015.
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periods of excess emissions occurring
during SSM events.2 Subsequently, in
the 1983 SSM Guidance, the EPA
expanded on this approach by
recommending that a State could elect
to adopt SIP provisions providing
parameters for the exercise of
enforcement discretion by the State’s
personnel.3 In our 1999 SSM Guidance,
the EPA interpreted that States could
elect to create ‘‘affirmative defense’’
provisions applicable to SSM events in
their SIPs.4 The EPA has defined the
term affirmative defense provision as a
State law provision in a SIP that
specifies particular criteria or
preconditions that, if met, would
purport to preclude a court from
imposing monetary penalties or other
forms of relief for violations of SIP
requirements in accordance with CAA
section 113 or CAA section 304.5 Also
in the 1999 Guidance, the EPA
established parameters that should be
included as part of such an affirmative
defense in order to ensure that it would
be available only in certain narrow
circumstances.6 Both of the provisions
being addressed in today’s action,
Colorado Common Provisions
Regulation 7 sections II.E. (applicable to
qualifying sources during malfunctions),
and II.J. (applicable to qualifying
sources during periods of startup and
shutdown) were approved by the EPA
based on our finding that they were
consistent with the recommendations of
the 1999 Guidance.8
On February 22, 2013, the EPA
proposed to take action on a petition for
rulemaking that the Sierra Club filed
with the EPA Administrator on June 30,
2011 (78 FR 12460). In that action, the
EPA proposed to grant the Petitioner’s
claim in part. The EPA proposed to
revise its SSM policy with respect to
2 Memorandum to Regional Administrators,
Region I–X; From: Kathleen M. Bennett, Assistant
Administrator for Air, Noise and Radiation; Subject:
Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions.
September 28, 1982.
3 Memorandum to Regional Administrators,
Regions I–X; From: Kathleen M. Bennett, Assistant
Administrator for Air, Noise and Radiation; Subject:
Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions.
February 15, 1983.
4 Memorandum to Regional Administrators,
Regions I–X; From: Steven A. Herman, Assistant
Administrator for Enforcement and Compliance
Assurance, and Bob Perciasepe, Assistant
Administrator for Air and Radiation; Subject: Policy
on Excess Emissions During Malfunctions, Startup,
and Shutdown. September 20, 1999.
5 79 FR 55923 (September 17, 2014).
6 1999 SSM Guidance.
7 The Common Provisions Regulation is codified
at 5 Colorado Code of Regulations (CCR) 1001–2 of
the Colorado SIP.
8 71 FR 8958 (February 22, 2006) and 73 FR 45880
(August 7, 2008).
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affirmative defenses for violations due
to excess emissions that occur during
startup and shutdown, thus rescinding
our prior interpretation that the SSM
policy allows for those types of
affirmative defenses in SIPs. This was a
change from the EPA’s interpretation of
the CAA in the 1999 SSM Guidance, in
which the EPA had interpreted that
States could elect to create such
affirmative defense provisions for
startup and shutdown events, so long as
the provisions were narrowly drawn
and consistent with the established
criteria to assure that they met CAA
requirements. The EPA’s evaluation of
the petition and the statutory basis for
affirmative defense provisions initiated
a review of the appropriateness of
affirmative defense provisions
applicable during startup and
shutdown, which are ordinary modes of
operation that are generally predictable
and within the control of the source. As
explained in more detail in the February
22, 2013, proposal document, the EPA’s
evaluation of the Sierra Club Petition in
light of then-recent case law 9 caused
the EPA to alter its view on the
appropriateness of affirmative defenses
applicable to planned events such as
startup and shutdown. Specifically, the
EPA stated that ‘‘because these events
are modes of normal operation, the EPA
believes that sources should be expected
to comply with applicable emission
limitations during such events.’’ 10
The EPA distinguished between
affirmative defense provisions for
startup and shutdown and those for
malfunctions, stating ‘‘the distinction
that makes affirmative defenses
appropriate for malfunctions is that by
definition those events are unforeseen
and could not have been avoided by the
owner or operator of the source, and the
owner or operator of the source will
have taken steps to prevent the violation
and to minimize the effects of the
violation after it occurs.’’ 11 Because of
this distinction, in the February 22,
2013 proposal, the EPA proposed to
grant the Sierra Club’s petition with
respect to Colorado Common Provisions
section II.J., ‘‘Affirmative Defense
Provision for Excess Emissions During
Startup and Shutdown,’’ but to deny the
Sierra Club’s petition with respect to
Common Provisions section II.E.,
‘‘Affirmative Defense Provision for
9 Court decisions confirmed that this requirement
for continuous compliance prohibits exemptions for
excess emissions during SSM events. See, e.g.,
Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir.
2008); US Magnesium, LLC v. EPA, 690 F.3d 1157,
1170 (10th Cir. 2012).
10 78 FR 12480.
11 78 FR 12480.
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Excess Emissions During
Malfunctions.’’ 12
Subsequent to the EPA’s issuance of
the February 22, 2013 proposal, on
April 18, 2014, the U.S. Court of
Appeals for the District of Columbia
Circuit ruled that CAA sections 113 and
304 preclude the EPA the authority to
create affirmative defense provisions in
the Agency’s own regulations imposing
emission limits on sources, because
such provisions purport to alter the
jurisdiction of Federal courts to assess
liability and impose penalties for
violations of those limits in private civil
enforcement cases.13 In light of this
decision, on September 17, 2014, the
EPA issued a supplemental proposed
rulemaking which outlined our updated
policy that affirmative defense SIP
provisions, even if they are narrowly
tailored and applicable only to
malfunctions, are not consistent with
CAA requirements. Accordingly, the
EPA proposed to grant the portion of the
Sierra Club’s petition with regard to
affirmative defenses in the case of
malfunctions that it had previously
proposed to deny, including Colorado
Common Provisions section II.E.14 In
that supplemental proposal, the EPA
stated that the reasoning of the court in
that decision indicates that the States,
like the EPA, have no authority in SIP
provisions to alter the statutory
jurisdiction of Federal courts under
CAA section 113 and 304 to assess
penalties for violations of CAA
requirements through affirmative
defense provisions. We additionally
noted that if States lack authority under
the CAA to alter the jurisdiction of the
Federal courts through affirmative
defense provisions in SIPs, then the
EPA also lacks authority to approve any
such provision in a SIP. (Id. at 79 FR
55929).
On June 12, 2015, pursuant to CAA
section 110(k)(5), the EPA finalized
‘‘State Implementation Plans: Response
to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy
Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess
Emissions During Periods of Startup,
Shutdown and Malfunction,’’ (80 FR
33839, June 12, 2015), hereafter referred
to as the ‘‘2015 SSM SIP Action.’’ The
12 78
FR 12530.
13 NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
14 ‘‘State Implementation Plans: Response to
Petition for Rulemaking; Findings of Substantial
Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction; Supplemental
Proposal To Address Affirmative Defense
Provisions in States Included in the Petition for
Rulemaking and in Additional States.’’ 79 FR
55920, September 17, 2014.
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2015 SSM SIP Action clarified, restated,
and updated the EPA’s interpretation
that SSM exemptions and affirmative
defense SIP provisions are inconsistent
with CAA requirements. The 2015 SSM
SIP Action found that certain SIP
provisions in 36 States, including
Colorado, were substantially inadequate
to meet CAA requirements and issued a
SIP call to those States to submit SIP
revisions to address these inadequacies.
The EPA established an 18-month
deadline by which the affected States
had to submit such SIP revisions. With
regard to the Colorado SIP, in the 2015
SSM SIP Action, the EPA determined
that two affirmative defense provisions
in the Colorado SIP (Common
Provisions Regulation sections II.E. and
II.J.) were substantially inadequate to
meet CAA requirements (80 FR 33840,
33970).
On November 21, 2016, Colorado
submitted SIP revisions to Common
Provisions Regulation sections II.E. and
II.J. in response to the SIP call issued in
the 2015 SSM SIP Action, which did not
include removal of the affirmative
defense provisions. On September 8,
2021, Plaintiffs Sierra Club,
Environmental Integrity Project, and
Natural Resources Defense Council
(collectively, Plaintiffs) filed a
complaint in the United States District
Court for the Northern District of
California, Oakland Division, alleging
that the EPA had failed to, among other
things, take final rulemaking action on
Colorado’s November 21, 2016 SIP
submission.15 The EPA established a
consent decree with the Plaintiffs which
required the EPA to take final action on
the Colorado November 21, 2016
submission by May 31, 2023, unless
Colorado withdrew the submission.16
On May 31, 2023, Colorado withdrew
the November 21, 2016, submission. As
discussed further below, Colorado
submitted new revisions to Common
Provisions Regulation sections II.E. and
II.J. on June 26, 2023.
The EPA issued a Memorandum in
October 2020 (2020 Memorandum),
which stated that certain provisions
governing SSM periods in SIPs,
including affirmative defense
provisions, could be viewed as
consistent with CAA requirements.17
15 Sierra Club et al. v. Regan, No. 21–cv–6956
(N.D. Cal, September 8, 2021).
16 87 FR 21118 (April 11, 2022).
17 October 9, 2020 memorandum ‘‘Inclusion of
Provisions Governing Periods of Startup,
Shutdown, and Malfunctions in State
Implementation Plans,’’ from Andrew R. Wheeler,
Administrator. The 2020 Memorandum stated that
it ‘‘did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified
specific State SIP provisions that were substantially
inadequate to meet the requirements of the Act.’’
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However, on September 30, 2021, the
EPA’s Deputy Administrator withdrew
the 2020 Memorandum and announced
the EPA’s return to the policy
articulated in the 2015 SSM SIP Action
(2021 Memorandum).18 As articulated
in the 2021 Memorandum, SIP
provisions that contain exemptions or
affirmative defense provisions are not
consistent with CAA requirements and,
therefore, generally are not approvable if
contained in a SIP submission.
On March 1, 2024, the D.C. Circuit
Court of Appeals issued a decision in
Environ. Comm. Fl. Elec. Power v. EPA,
94 F.4th 77, 115 (D.C. Cir. 2024). The
case was a consolidated set of petitions
for review of the 2015 SSM SIP Action.
The Court granted the petitions in part,
vacating the SIP call with respect to SIP
provisions that the EPA identified as
automatic exemptions, director’s
discretion provisions, and affirmative
defenses that are functionally
exemptions; and denied the petitions in
part as to other provisions that the EPA
identified as overbroad enforcement
discretion provisions or affirmative
defense provisions that would preclude
or limit a court from imposing relief in
the case of violations, which the Court
also refers to as ‘‘specific relief.’’ This is
juxtaposed against the Court’s granting
of the petition as to affirmative defenses
that are functionally exemptions
because they ‘‘create an exemption from
the normal emission rule.’’ 19 The EPA
finds that the affirmative defense
provision in the 2008 Billings/Laurel
SO2 FIP to be ‘‘specific relief’’ as
interpreted by the Court, as the
provision specifically states that an
owner or operator ‘‘may assert an
affirmative defense to a claim for civil
penalties for exceedances of such limits
during periods of malfunction, startup,
or shutdown,’’ and ‘‘to establish the
affirmative defense and to be relieved of
a civil penalty in any action to enforce
such a limit, the owner or operator of
the facility must meet the notification
requirements of paragraph (i)(2) of this
section in a timely manner and prove by
a preponderance of evidence. . .’’ 20
The EPA has assessed the impact of the
decision with respect to our proposed
approval of Colorado’s removal of the
specific affirmative defense provisions
Accordingly, the 2020 Memorandum had no direct
impact on the SIP call issued in 2015.
18 September 30, 2021, memorandum
‘‘Withdrawal of the October 9, 2020, Memorandum
Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation
of the Prior Policy,’’ from Janet McCabe, Deputy
Administrator.
19 See Environ. Comm. Fl. Elec. Power v. EPA, 94
F.4th 77, 115 (D.C. Cir. 2024).
20 See 40 CFR 52.1392(i)(1).
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at issue in the State’s June 26, 2023,
submission. We have concluded that the
previously stated reasons for the
inappropriateness of affirmative defense
provisions like Common Provisions
sections II.E. and II.J., as articulated in
the 2015 SSM SIP Action and 2021
Memorandum, are consistent with the
recent D.C. Circuit decision, as these are
affirmative defense provisions against
specific relief.21 The Court upheld the
EPA’s 2015 SSM SIP Action with regard
to affirmative defenses against specific
relief, finding that because CAA 304(a)
and 113(b) authorize citizens and the
EPA to seek injunctive relief and
monetary penalties against sources that
violate a SIP’s emission rules, such an
affirmative defense would ‘‘block that
aspect of the Act’s enforcement
regime.’’ 22
On June 26, 2023, Colorado
submitted, among other revisions to the
Colorado SIP that will be addressed in
a separate rulemaking action, revisions
to sections II.E. and II.J. of the Common
Provisions Regulation which removed
these rules from the Colorado SIP by
making them State-only and therefore
not federally enforceable under the
CAA. The June 26, 2023, revision to
sections II.E. and II.J. of the Common
Provisions Regulation was submitted in
response to the SIP call in the 2015 SSM
SIP Action, and it is this SIP revision
that the EPA is proposing to approve
with today’s action.
II. Analysis of SIP Submission
As discussed in detail in the 2015
SSM SIP Action, affirmative defense
provisions like those in the Colorado
SIP at sections II.E. and II.J. of the
Common Provisions Regulation are
inconsistent with CAA requirements.
The EPA is proposing to find that the
portion of Colorado’s June 26, 2023, SIP
submission removing these provisions
from the SIP by making them State-only
is consistent with CAA requirements
and that it adequately addresses the
specific deficiencies that the EPA
identified in the 2015 SSM SIP Action
with respect to the Colorado SIP.
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III. Proposed Action
The EPA is proposing to approve the
portion of Colorado’s June 26, 2023, SIP
submission revising the Colorado SIP by
removing Common Provisions
Regulation sections II.E. and II.J. from
the SIP by making them State-only. We
are proposing approval of the SIP
revisions because we have determined
21 80 FR 33840, 33970 (June 12, 2015) and 79 FR
55920, 55946 (September 17, 2014).
22 Environ. Comm. Fl. Elec. Power v. EPA, 94
F.4th 77, 114–115 (D.C. Cir. 2024).
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that they are consistent with the
requirements for SIP provisions under
the CAA. The EPA is further proposing
to determine that finalizing such SIP
revisions would correct the deficiencies
identified in the 2015 SSM SIP Action.
The EPA is not reopening the 2015 SSM
SIP Action and is only taking comment
on whether these SIP revisions are
consistent with CAA requirements and
whether they address the ‘‘substantial
inadequacy’’ of the specific Colorado
SIP provisions identified in the 2015
SSM SIP Action.
IV. Incorporation by Reference
In this action, we are proposing to
include in a final rule regulatory text
that includes incorporation by
reference. In accordance with the
requirements of 1 CFR 51.5 the EPA is
proposing to incorporate by reference
the revisions that would designate them
as State-only, and thus remove from ‘‘5
CCR 1001–02, Common Provisions
Regulation’’ of the Colorado SIP,
sections II.E., ‘‘Affirmative Defense
Provision for Excess Emissions During
Malfunctions,’’ and II.J., ‘‘Affirmative
Defense Provision for Excess Emissions
During Startup and Shutdown,’’ as
described in section III. of this
preamble. The EPA has made, and will
continue to make, these documents
generally available electronically
through https://www.regulations.gov
and in hard copy at the EPA Region 8
office.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve State choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve State law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by State law. For
that reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 14094 (88 FR
21879, April 11, 2023);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a State program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian Tribe has demonstrated that a
Tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have Tribal implications and will
not impose substantial direct costs on
Tribal governments or preempt Tribal
law as specified by Executive Order
13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
Feb. 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.’’ The 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.’’
Colorado 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 did not perform an EJ analysis
and did not consider EJ in this proposed
E:\FR\FM\30OCP1.SGM
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Federal Register / Vol. 89, No. 210 / Wednesday, October 30, 2024 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
action. Due to the nature of the action
being proposed here, this action is
expected to have a neutral to positive
impact on the air quality of the affected
area. Consideration of EJ is not required
as part of this proposed action, and
there is no information in the record
inconsistent with the stated goal of E.O.
12898 of achieving EJ for people of
VerDate Sep<11>2014
16:12 Oct 29, 2024
Jkt 265001
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
PO 00000
Frm 00023
Fmt 4702
Sfmt 9990
86309
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 22, 2024.
K.C. Becker,
Regional Administrator, Region 8.
[FR Doc. 2024–25228 Filed 10–29–24; 8:45 am]
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]]>Agencies
[Federal Register Volume 89, Number 210 (Wednesday, October 30, 2024)]
[Proposed Rules]
[Pages 86305-86309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25228]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2024-0207; FRL-12341-01-R8]
Air Plan Approval; Revisions to Colorado Common Provisions
Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Common Provisions Regulation of the Colorado
State Implementation Plan (SIP). These revisions were submitted by the
State of Colorado in response to the EPA's June 12, 2015, Findings of
Substantial Inadequacy and ``SIP call'' for certain provisions in the
SIP related to affirmative defenses applicable to excess emissions
during startup, shutdown, and malfunction (SSM) events. The EPA is
proposing approval of these SIP revisions because the Agency has
determined that they are in accordance with the requirements for SIP
provisions under the Clean Air Act (CAA or the Act).
DATES: Written comments must be received on or before November 29,
2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2024-0207, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
https://www.regulations.gov. The EPA may publish any comment received
to its public docket. Do not submit electronically any information you
consider to be Confidential Business
[[Page 86306]]
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically in
https://www.regulations.gov. Please email or call the person listed in
the FOR FURTHER INFORMATION CONTACT section if you need to make
alternative arrangements for access to the docket.
FOR FURTHER INFORMATION CONTACT: Adam Clark, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-AQ, 1595 Wynkoop Street, Denver,
Colorado 80202-1129, telephone number: (303) 312-7104, email address:
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
Prior to the EPA's 2015 SSM SIP Action,\1\ which is discussed later
in this section, the Agency had a longstanding interpretation of the
CAA with respect to the treatment of excess emissions during periods of
SSM in SIPs. This statutory interpretation had been expressed,
reiterated, and elaborated upon in a series of guidance documents
issued in 1982, 1983, and 1999 described below.
---------------------------------------------------------------------------
\1\ ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction.'' 80 FR 33840, June 12, 2015.
---------------------------------------------------------------------------
In the 1982 SSM Guidance, the EPA recommended the exercise of
enforcement discretion to address periods of excess emissions occurring
during SSM events.\2\ Subsequently, in the 1983 SSM Guidance, the EPA
expanded on this approach by recommending that a State could elect to
adopt SIP provisions providing parameters for the exercise of
enforcement discretion by the State's personnel.\3\ In our 1999 SSM
Guidance, the EPA interpreted that States could elect to create
``affirmative defense'' provisions applicable to SSM events in their
SIPs.\4\ The EPA has defined the term affirmative defense provision as
a State law provision in a SIP that specifies particular criteria or
preconditions that, if met, would purport to preclude a court from
imposing monetary penalties or other forms of relief for violations of
SIP requirements in accordance with CAA section 113 or CAA section
304.\5\ Also in the 1999 Guidance, the EPA established parameters that
should be included as part of such an affirmative defense in order to
ensure that it would be available only in certain narrow
circumstances.\6\ Both of the provisions being addressed in today's
action, Colorado Common Provisions Regulation \7\ sections II.E.
(applicable to qualifying sources during malfunctions), and II.J.
(applicable to qualifying sources during periods of startup and
shutdown) were approved by the EPA based on our finding that they were
consistent with the recommendations of the 1999 Guidance.\8\
---------------------------------------------------------------------------
\2\ Memorandum to Regional Administrators, Region I-X; From:
Kathleen M. Bennett, Assistant Administrator for Air, Noise and
Radiation; Subject: Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions. September 28, 1982.
\3\ Memorandum to Regional Administrators, Regions I-X; From:
Kathleen M. Bennett, Assistant Administrator for Air, Noise and
Radiation; Subject: Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions. February 15, 1983.
\4\ Memorandum to Regional Administrators, Regions I-X; From:
Steven A. Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Bob Perciasepe, Assistant Administrator
for Air and Radiation; Subject: Policy on Excess Emissions During
Malfunctions, Startup, and Shutdown. September 20, 1999.
\5\ 79 FR 55923 (September 17, 2014).
\6\ 1999 SSM Guidance.
\7\ The Common Provisions Regulation is codified at 5 Colorado
Code of Regulations (CCR) 1001-2 of the Colorado SIP.
\8\ 71 FR 8958 (February 22, 2006) and 73 FR 45880 (August 7,
2008).
---------------------------------------------------------------------------
On February 22, 2013, the EPA proposed to take action on a petition
for rulemaking that the Sierra Club filed with the EPA Administrator on
June 30, 2011 (78 FR 12460). In that action, the EPA proposed to grant
the Petitioner's claim in part. The EPA proposed to revise its SSM
policy with respect to affirmative defenses for violations due to
excess emissions that occur during startup and shutdown, thus
rescinding our prior interpretation that the SSM policy allows for
those types of affirmative defenses in SIPs. This was a change from the
EPA's interpretation of the CAA in the 1999 SSM Guidance, in which the
EPA had interpreted that States could elect to create such affirmative
defense provisions for startup and shutdown events, so long as the
provisions were narrowly drawn and consistent with the established
criteria to assure that they met CAA requirements. The EPA's evaluation
of the petition and the statutory basis for affirmative defense
provisions initiated a review of the appropriateness of affirmative
defense provisions applicable during startup and shutdown, which are
ordinary modes of operation that are generally predictable and within
the control of the source. As explained in more detail in the February
22, 2013, proposal document, the EPA's evaluation of the Sierra Club
Petition in light of then-recent case law \9\ caused the EPA to alter
its view on the appropriateness of affirmative defenses applicable to
planned events such as startup and shutdown. Specifically, the EPA
stated that ``because these events are modes of normal operation, the
EPA believes that sources should be expected to comply with applicable
emission limitations during such events.'' \10\
---------------------------------------------------------------------------
\9\ Court decisions confirmed that this requirement for
continuous compliance prohibits exemptions for excess emissions
during SSM events. See, e.g., Sierra Club v. EPA, 551 F.3d 1019,
1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170
(10th Cir. 2012).
\10\ 78 FR 12480.
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The EPA distinguished between affirmative defense provisions for
startup and shutdown and those for malfunctions, stating ``the
distinction that makes affirmative defenses appropriate for
malfunctions is that by definition those events are unforeseen and
could not have been avoided by the owner or operator of the source, and
the owner or operator of the source will have taken steps to prevent
the violation and to minimize the effects of the violation after it
occurs.'' \11\ Because of this distinction, in the February 22, 2013
proposal, the EPA proposed to grant the Sierra Club's petition with
respect to Colorado Common Provisions section II.J., ``Affirmative
Defense Provision for Excess Emissions During Startup and Shutdown,''
but to deny the Sierra Club's petition with respect to Common
Provisions section II.E., ``Affirmative Defense Provision for
[[Page 86307]]
Excess Emissions During Malfunctions.'' \12\
---------------------------------------------------------------------------
\11\ 78 FR 12480.
\12\ 78 FR 12530.
---------------------------------------------------------------------------
Subsequent to the EPA's issuance of the February 22, 2013 proposal,
on April 18, 2014, the U.S. Court of Appeals for the District of
Columbia Circuit ruled that CAA sections 113 and 304 preclude the EPA
the authority to create affirmative defense provisions in the Agency's
own regulations imposing emission limits on sources, because such
provisions purport to alter the jurisdiction of Federal courts to
assess liability and impose penalties for violations of those limits in
private civil enforcement cases.\13\ In light of this decision, on
September 17, 2014, the EPA issued a supplemental proposed rulemaking
which outlined our updated policy that affirmative defense SIP
provisions, even if they are narrowly tailored and applicable only to
malfunctions, are not consistent with CAA requirements. Accordingly,
the EPA proposed to grant the portion of the Sierra Club's petition
with regard to affirmative defenses in the case of malfunctions that it
had previously proposed to deny, including Colorado Common Provisions
section II.E.\14\ In that supplemental proposal, the EPA stated that
the reasoning of the court in that decision indicates that the States,
like the EPA, have no authority in SIP provisions to alter the
statutory jurisdiction of Federal courts under CAA section 113 and 304
to assess penalties for violations of CAA requirements through
affirmative defense provisions. We additionally noted that if States
lack authority under the CAA to alter the jurisdiction of the Federal
courts through affirmative defense provisions in SIPs, then the EPA
also lacks authority to approve any such provision in a SIP. (Id. at 79
FR 55929).
---------------------------------------------------------------------------
\13\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
\14\ ``State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction; Supplemental Proposal To Address
Affirmative Defense Provisions in States Included in the Petition
for Rulemaking and in Additional States.'' 79 FR 55920, September
17, 2014.
---------------------------------------------------------------------------
On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA
finalized ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' (80 FR 33839, June 12, 2015), hereafter
referred to as the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action
clarified, restated, and updated the EPA's interpretation that SSM
exemptions and affirmative defense SIP provisions are inconsistent with
CAA requirements. The 2015 SSM SIP Action found that certain SIP
provisions in 36 States, including Colorado, were substantially
inadequate to meet CAA requirements and issued a SIP call to those
States to submit SIP revisions to address these inadequacies. The EPA
established an 18-month deadline by which the affected States had to
submit such SIP revisions. With regard to the Colorado SIP, in the 2015
SSM SIP Action, the EPA determined that two affirmative defense
provisions in the Colorado SIP (Common Provisions Regulation sections
II.E. and II.J.) were substantially inadequate to meet CAA requirements
(80 FR 33840, 33970).
On November 21, 2016, Colorado submitted SIP revisions to Common
Provisions Regulation sections II.E. and II.J. in response to the SIP
call issued in the 2015 SSM SIP Action, which did not include removal
of the affirmative defense provisions. On September 8, 2021, Plaintiffs
Sierra Club, Environmental Integrity Project, and Natural Resources
Defense Council (collectively, Plaintiffs) filed a complaint in the
United States District Court for the Northern District of California,
Oakland Division, alleging that the EPA had failed to, among other
things, take final rulemaking action on Colorado's November 21, 2016
SIP submission.\15\ The EPA established a consent decree with the
Plaintiffs which required the EPA to take final action on the Colorado
November 21, 2016 submission by May 31, 2023, unless Colorado withdrew
the submission.\16\ On May 31, 2023, Colorado withdrew the November 21,
2016, submission. As discussed further below, Colorado submitted new
revisions to Common Provisions Regulation sections II.E. and II.J. on
June 26, 2023.
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\15\ Sierra Club et al. v. Regan, No. 21-cv-6956 (N.D. Cal,
September 8, 2021).
\16\ 87 FR 21118 (April 11, 2022).
---------------------------------------------------------------------------
The EPA issued a Memorandum in October 2020 (2020 Memorandum),
which stated that certain provisions governing SSM periods in SIPs,
including affirmative defense provisions, could be viewed as consistent
with CAA requirements.\17\ However, on September 30, 2021, the EPA's
Deputy Administrator withdrew the 2020 Memorandum and announced the
EPA's return to the policy articulated in the 2015 SSM SIP Action (2021
Memorandum).\18\ As articulated in the 2021 Memorandum, SIP provisions
that contain exemptions or affirmative defense provisions are not
consistent with CAA requirements and, therefore, generally are not
approvable if contained in a SIP submission.
---------------------------------------------------------------------------
\17\ October 9, 2020 memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator. The
2020 Memorandum stated that it ``did not alter in any way the
determinations made in the 2015 SSM SIP Action that identified
specific State SIP provisions that were substantially inadequate to
meet the requirements of the Act.'' Accordingly, the 2020 Memorandum
had no direct impact on the SIP call issued in 2015.
\18\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
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On March 1, 2024, the D.C. Circuit Court of Appeals issued a
decision in Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115
(D.C. Cir. 2024). The case was a consolidated set of petitions for
review of the 2015 SSM SIP Action. The Court granted the petitions in
part, vacating the SIP call with respect to SIP provisions that the EPA
identified as automatic exemptions, director's discretion provisions,
and affirmative defenses that are functionally exemptions; and denied
the petitions in part as to other provisions that the EPA identified as
overbroad enforcement discretion provisions or affirmative defense
provisions that would preclude or limit a court from imposing relief in
the case of violations, which the Court also refers to as ``specific
relief.'' This is juxtaposed against the Court's granting of the
petition as to affirmative defenses that are functionally exemptions
because they ``create an exemption from the normal emission rule.''
\19\ The EPA finds that the affirmative defense provision in the 2008
Billings/Laurel SO2 FIP to be ``specific relief'' as
interpreted by the Court, as the provision specifically states that an
owner or operator ``may assert an affirmative defense to a claim for
civil penalties for exceedances of such limits during periods of
malfunction, startup, or shutdown,'' and ``to establish the affirmative
defense and to be relieved of a civil penalty in any action to enforce
such a limit, the owner or operator of the facility must meet the
notification requirements of paragraph (i)(2) of this section in a
timely manner and prove by a preponderance of evidence. . .'' \20\ The
EPA has assessed the impact of the decision with respect to our
proposed approval of Colorado's removal of the specific affirmative
defense provisions
[[Page 86308]]
at issue in the State's June 26, 2023, submission. We have concluded
that the previously stated reasons for the inappropriateness of
affirmative defense provisions like Common Provisions sections II.E.
and II.J., as articulated in the 2015 SSM SIP Action and 2021
Memorandum, are consistent with the recent D.C. Circuit decision, as
these are affirmative defense provisions against specific relief.\21\
The Court upheld the EPA's 2015 SSM SIP Action with regard to
affirmative defenses against specific relief, finding that because CAA
304(a) and 113(b) authorize citizens and the EPA to seek injunctive
relief and monetary penalties against sources that violate a SIP's
emission rules, such an affirmative defense would ``block that aspect
of the Act's enforcement regime.'' \22\
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\19\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115
(D.C. Cir. 2024).
\20\ See 40 CFR 52.1392(i)(1).
\21\ 80 FR 33840, 33970 (June 12, 2015) and 79 FR 55920, 55946
(September 17, 2014).
\22\ Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 114-115
(D.C. Cir. 2024).
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On June 26, 2023, Colorado submitted, among other revisions to the
Colorado SIP that will be addressed in a separate rulemaking action,
revisions to sections II.E. and II.J. of the Common Provisions
Regulation which removed these rules from the Colorado SIP by making
them State-only and therefore not federally enforceable under the CAA.
The June 26, 2023, revision to sections II.E. and II.J. of the Common
Provisions Regulation was submitted in response to the SIP call in the
2015 SSM SIP Action, and it is this SIP revision that the EPA is
proposing to approve with today's action.
II. Analysis of SIP Submission
As discussed in detail in the 2015 SSM SIP Action, affirmative
defense provisions like those in the Colorado SIP at sections II.E. and
II.J. of the Common Provisions Regulation are inconsistent with CAA
requirements. The EPA is proposing to find that the portion of
Colorado's June 26, 2023, SIP submission removing these provisions from
the SIP by making them State-only is consistent with CAA requirements
and that it adequately addresses the specific deficiencies that the EPA
identified in the 2015 SSM SIP Action with respect to the Colorado SIP.
III. Proposed Action
The EPA is proposing to approve the portion of Colorado's June 26,
2023, SIP submission revising the Colorado SIP by removing Common
Provisions Regulation sections II.E. and II.J. from the SIP by making
them State-only. We are proposing approval of the SIP revisions because
we have determined that they are consistent with the requirements for
SIP provisions under the CAA. The EPA is further proposing to determine
that finalizing such SIP revisions would correct the deficiencies
identified in the 2015 SSM SIP Action. The EPA is not reopening the
2015 SSM SIP Action and is only taking comment on whether these SIP
revisions are consistent with CAA requirements and whether they address
the ``substantial inadequacy'' of the specific Colorado SIP provisions
identified in the 2015 SSM SIP Action.
IV. Incorporation by Reference
In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5 the EPA is proposing to incorporate
by reference the revisions that would designate them as State-only, and
thus remove from ``5 CCR 1001-02, Common Provisions Regulation'' of the
Colorado SIP, sections II.E., ``Affirmative Defense Provision for
Excess Emissions During Malfunctions,'' and II.J., ``Affirmative
Defense Provision for Excess Emissions During Startup and Shutdown,''
as described in section III. of this preamble. The EPA has made, and
will continue to make, these documents generally available
electronically through https://www.regulations.gov and in hard copy at
the EPA Region 8 office.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian Tribe has
demonstrated that a Tribe has jurisdiction. In those areas of Indian
country, the proposed rule does not have Tribal implications and will
not impose substantial direct costs on Tribal governments or preempt
Tribal law as specified by Executive Order 13175 (65 FR 67249, November
9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 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.'' The 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.''
Colorado 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 did not perform an EJ
analysis and did not consider EJ in this proposed
[[Page 86309]]
action. Due to the nature of the action being proposed here, this
action is expected to have a neutral to positive impact on the air
quality of the affected area. Consideration of EJ is not required as
part of this proposed action, and there is no information in the record
inconsistent with the stated goal of E.O. 12898 of achieving EJ 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: October 22, 2024.
K.C. Becker,
Regional Administrator, Region 8.
[FR Doc. 2024-25228 Filed 10-29-24; 8:45 am]
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