[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Proposed Rules]
[Pages 68532-68534]
[FR Doc No: 2023-21970]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2023-0483; FRL-11439-01-R8]

Air Plan Approval; 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: On May 9, 2023, the EPA took final action on State
Implementation Plan (SIP) submissions made by the State of Colorado on
March 22, 2021, related to Clean Air Act (CAA) requirements for the
2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) for
the Denver Metro/North Front Range (DMNFR) Serious nonattainment area.
In that action we finalized a limited approval and limited disapproval
of specific provisions intended to meet reasonably available control
technology (RACT) requirements that were included in SIP submissions
made by the State on May 14, 2018, May 8, 2019, May 13, 2020, March 22,
2021, May 18, 2021, and May 20, 2022. Further, we finalized a limited
conditional approval and limited disapproval of additional provisions
intended to address RACT requirements and that were within SIP
submissions from May 31, 2017, and May 10, 2019. The EPA is now
proposing to stay the limited disapproval portions of the May 9, 2023
final rule until June 1, 2024.

DATES: Written comments must be received on or before November 3, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2023-0483, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
https://www.regulations.gov. The EPA may publish any comment received
to its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the

primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically in
https://www.regulations.gov. Please email or call the person listed in
the FOR FURTHER INFORMATION CONTACT section if you need to make
alternative arrangements for access to the docket.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver,
Colorado 80202-1129, telephone number:<PHONE_NUMBER>; email address:
[email protected].

SUPPLEMENTARY INFORMATION: In this document, ``we,'' ``us,'' and
``our'' refer to the EPA.

I. Background

    On May 9, 2023, EPA took final action approving portions of the 8-
hour ozone attainment plan for the DNFR area that were submitted by the
State of Colorado on March 22, 2021, and portions of additional SIP
submissions made by the State on May 8, 2019, May 13, 2020, March 22,
2021, May 18, 2021, and May 20, 2022.\1\ The State made these SIP
submissions to meet CAA requirements for the DMNFR area classified as
Serious nonattainment, to address RACT requirements for certain source
categories in the DMNFR area, and to adopt VOC standards for consumer
products and architectural and industrial maintenance coatings. We also
finalized a limited approval and limited disapproval of parts of the
SIP submissions made on May 14, 2018, May 13, 2020, March 22, 2021, May
18, 2021, and May 20, 2022, and of certain RACT categories,\2\ and we
finalized a limited conditional approval and limited disapproval of
specific provisions intended to meet RACT requirements.\3\ The limited
disapproval portions of the May 9, 2023 final rule resulted from the
Agency's determination that although the rules met RACT requirements
concerning stringency, they lacked adequate reporting or other
mechanisms to make them legally and practically enforceable by citizens
in accordance with CAA section 304.
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    \1\ 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, Table 1, 29829-29830 (May 9, 2023).
    \2\ Id. at 29830-29831, Table 2 (listing portions subject to
limited approval and limited disapproval), Table 3 (RACT
categories).
    \3\ Id. at 29830-29831, Table 3.
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    On July 10, 2023, the State submitted a Petition for
Reconsideration asking the EPA to reconsider the issuance of the
limited disapproval portions of the May 9, 2023 final rule. The EPA
responded to the Petition for Reconsideration on August 31, 2023,
informing the State that the EPA was granting the petition as to the
limited disapproval portions of the May 9, 2023 final rule.\4\ The EPA
intends to reopen the rulemaking for the limited purpose of accepting
comment and considering whether these SIP provisions are enforceable by
citizens as required under the CAA,\5\ or what revisions may be
necessary to make them so.
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    \4\ See letter from EPA Regional Administrator KC Becker to
Colorado Attorney General Phil Weiser (Aug. 31, 2023), in the docket
for this action.
    \5\ See CAA section 304(a).
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II. Proposed Action

    In this action, we are proposing to stay the limited disapproval
actions listed in Tables 2 and 3 of the May 9, 2023 final rule until
June 1, 2024. All other portions of the final rule were effective as of
June 8, 2023, and remain in effect. The EPA is proposing this action to
provide additional time for consideration of the Petition for
Reconsideration, which will occur through a separate notice and comment
process that the Agency will be describing in more detail in a later
document. The effect of the stay, if finalized as proposed, and
depending on the outcome of the reconsideration process, will be that
the federal implementation plan and sanctions clocks \6\ for the
limited disapprovals in Tables 2 and 3 of the May 9, 2023 final rule,
restart on June 2, 2024. We are taking comment on today's proposal for
30 days. Any comments on this proposal should address only the issue of
the stay of the limited disapproval actions; comments on other items
will not be pertinent to this action.
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    \6\ See CAA sections 100(c)(1) and 179.
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III. Environmental Justice Considerations

    As discussed in our May 9, 2023 final rule, 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.\7\ 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.\8\
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    \7\ See ``EJSCREEN Maps'' pdf, available within the docket.
    \8\ Id.
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    This proposed action stays the limited disapproval portions of our
May 9, 2023 final action. The limited disapprovals in that action
related to the EPA's concern that certain Colorado regulations do not
have adequate reporting requirements or other mechanisms to make them
enforceable under the citizen suit provision of CAA section 304. The
purpose of the stay of the disapproval portions is to allow the EPA to
more fully evaluate a petition for reconsideration from the State. The
reconsideration will allow public input from all parties concerning the
adequacy, with respect to CAA requirements for enforceability, of the
provisions that were subject to limited disapproval. We expect that
this action will generally be neutral or (combined with the anticipated
final action following reconsideration) 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, we
expect that this action will not worsen any existing air quality.
Further, there is no information in the record indicating that this
action is expected to have disproportionately high or adverse human
health or environmental effects on a particular group of people.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet CAA criteria. Accordingly, this action merely
proposes to stay the limited disapprovals from our May 9, 2023 final
rule and does not impose additional requirements beyond those imposed
by state law.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the PRA, because this proposed action, if finalized, will not in and of
itself create any new information collection burdens, but will simply
stay the limited disapprovals from our May 9, 2023 final rule.

C. Regulatory Flexibility Act (RFA)

    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 action, if
finalized, will not in and of itself create any new requirements but
will simply stay the limited disapprovals from our May 9, 2023 final
rule.

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 stay the limited
disapprovals from our May 9, 2023 final rule 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 proposed action 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 action, if finalized, will
not in and of itself create any new regulations, but will simply stay
the limited disapprovals from our May 9, 2023 final rule.

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)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color and/or Indigenous
peoples) and low-income populations.
    The EPA believes that human health or environmental conditions
existing prior to this action result in or have the potential to result
in disproportionate and adverse human health or environmental effects
on people of color, low-income populations, and/or Indigenous peoples.
The results of our demographic analysis (see section III.,
Environmental Justice Considerations, above) indicate that for
populations within the DMNFR Area, there are census block groups in
which the percentage of people of color is greater than the national
average of 39%, with some census block groups ranking above the 80th
percentile. 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.
    The EPA believes that this action is not likely to change existing
disproportionate and adverse effects on people of color, low-income
populations, or Indigenous peoples. While the EPA recognizes the
importance of assessing impacts of our actions on potentially
overburdened communities, a final approval of the proposed stay of the
limited disapprovals from our May 9, 2023 final action would not
exacerbate existing pollution exposure or burdens for populations in
the DMNFR Area.
    As discussed in the Environmental Justice Considerations section of
this preamble, there is no information to support a conclusion that
staying the limited disapproval of the May 9, 2023 final rule would
result in additional disparate impact on minority populations (people
of color and/or Indigenous peoples) or low-income populations.

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: September 28, 2023.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2023-21970 Filed 10-3-23; 8:45 am]
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