[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Proposed Rules]
[Pages 54975-54982]
[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:<PHONE_NUMBER>, 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

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

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

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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    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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

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


        Supporting Statement for Renewal of OECA Tips & Complaints
                      Regarding Environmental Violations
                                    Part A

1.	Identification of the Information Collection  -

 		1(a) 		Title of the Information Collection

              Tips and Complaints Regarding Environmental Violations (Renewal)
              EPA ICR Number 2219.07, OMB Control Number 2020-0032

 		1(b) 		Short Characterization/Abstract

              The Office of Enforcement and Compliance Assurance (OECA) is the component of the Environmental Protection Agency responsible for administrative, civil and criminal enforcement of the environmental laws that EPA administers. EPA's criminal enforcement program, and, to a lesser extent, its civil enforcement program are, like other federal law enforcement programs, dependent on tips and complaints from concerned citizens and members of the regulated community. The OECA Tips & Complaints web page provides a convenient means by which these individuals can voluntarily submit tips and complaints regarding suspected violations of environmental law

              Tips or complaints received are used by civil and/or criminal enforcement personnel at EPA to determine whether an investigation is warranted into the suspected or alleged misconduct. In some cases, EPA may decide to refer tips or complaints for investigation to other federal agencies or to State or local authorities within whose jurisdiction the matter may appropriately fall. The OECA Tips and Complaints web page or mobile-friendly versions does not replace or otherwise supplant other means of providing tips or complaints to EPA; it merely provides a convenient means by which to supply these tips or complaints.

              As with complaints provided by phone, fax, or electronic mail, we expect that tippers or complainants are already in the possession of information that leads them to suspect a violation of environmental law when they contact EPA to report the matter. Accordingly, EPA believes that the burden associated with the reporting is merely that arising from the need to read the instructions and type or select information into the appropriate fields.

2.	Need for and Use of the Collection

 		2(a) 		Need/Authority for the Collection

              Under the statutes that EPA is charged to administer, apprehending violators and responding to ongoing environmental violations is central to the Agency's mission.  See, e.g., 33 U.S.C. § 1319 (Clean Water Act), 42 U.S.C. § 7413 (Clean Air Act).  EPA's criminal enforcement program, and, to a lesser extent, its civil enforcement program are, like other federal law enforcement programs, dependent on tips and complaints from concerned citizens and members of the regulated community.  In fact, in some cases, the statute expressly contemplates that EPA will take action on citizen complaints.  See, e.g., 15 U.S.C. § 2647(d) (citizen complaints regarding asbestos hazards).  These tips and complaints help EPA focus its investigative resources on violations of environmental law that could otherwise escape detection.

 		2(b) 		Practical Utility/Users of the Data

              Tips and complaints regarding environmental violations are used principally by civil and criminal law enforcement personnel at EPA to investigate reported accidental violations and intentional misconduct.  When appropriate, the collected information may be shared with other law enforcement agencies that may have jurisdiction over the matter reported.

3. 	Non-duplication, Consultations, and Other Collection Criteria

 		3(a) 		Non-duplication

              OECA's tips and complaints webpage or mobile friendly version does not duplicate other EPA web-based information collections.  OECA's Senior Information Resources Management Office (SIRMO) has previously confirmed that the tips and complaints webpage does not duplicate other web-based information collections.

              As noted in Section 1, above, the OECA tips and complaints webform does not replace or otherwise supplant other means of providing tips or complaints to EPA; it merely provides a convenient means by which to supply these tips or complaints online.  Accordingly, tippers or complainants remain free to submit their tips or complaints in person or by telephone, fax, or e-mail.

 		3(b) 		Public Notice Required Prior to ICR Submission to OMB.

              EPA has published notice of its intent to renew the ICR for the OECA tips and complaints regarding environmental violations.  The Federal Register Notice was published at 87 FR 35763-01 on June 13, 2022. There were no comments received.

 		3(c)		Consultations

              In order to confirm its burden estimates, EPA timed the entries of actual tippers or complainants who have used the OECA tips and complaints webpage.  In order to preserve the confidentiality of these tippers or complainants, EPA did not record the names of these tippers or complainants or otherwise record any identifying information.

 		3(d) 		Effects of Less Frequent Collection

              Tips and Complaints are provided to EPA on an entirely voluntary basis; accordingly, there is no specified frequency with which tips or complaints should or must be provided.  There is, therefore, no basis to assess the effects of less frequent collection.

 		3(e) 		General Guidelines

              The information collection requirements covered by this ICR adhere to the guidelines specified by OMB.

 		3(f)			Confidentiality

              Tippers or complainants are not required to provide contact information in order to submit a tip or complaint.  However, if contact information is provided, EPA may use this information to initiate follow-up communications with the tipper or complainant and may be shared by EPA with appropriate administrative, law enforcement, and judicial entities engaged in investigating or adjudicating the tip or complaint.  The information is otherwise protected from disclosure to third parties to the extent permitted by law.

              Access to the database in which tips and complaints are stored is limited by system administrator to a small, known universe of users.  Before this access is granted, these users are informed that any misuse of the information stored in the database will cause them to lose access to the database and subject them to disciplinary action.  Contractors do not have access to the database.

              EPA does not maintain hardcopies of the information supplied through the webform.  Tips or complaints not acted upon within 30 days are automatically purged from the database.  Tips or complaints upon which some action is taken are preserved for a period of five years, pursuant to the record schedule for criminal investigations.

 		3(g)		Sensitive Questions

              The tips and complaints regarding environmental violations does not pose any sensitive questions.

4. 	The Respondents and the Information Requested

 		4(a) 		Respondents/SIC Codes

              Respondents are expected to be members of the general public as well as employees of any company subject to federal environmental regulation.  There is no specific industry or group of industries about which EPA expects tips or complaints.  For the foregoing reasons, it is not possible to classify the expected universe of respondents by SIC code.

 		4(b) 		Information Requested

              (i) Data items, including recordkeeping requirements

              The information requested on the tips and complaints regarding environmental violations is listed below.  Items of information that are required in order to submit a tip or complaint are shown in italics.

 If known, the suspected violator's name
 If known, the suspected violator's street address
 If known, the suspected violator's city
 If known, the suspected violator's state and zip code
 If applicable and known, on the lands of which federally recognized tribe did the violation occur?
 Tipper's name
 Tipper's email address
 Tipper's phone number
 Tipper's street address
 Tippers city
 Tipper's zip code
 Is the violation is ongoing?
 The date of the incident and whether or not it is an emergency
 If known, is the violation accidental or intentional?
 What type of act constitutes the violation? (Release, dumping, spill, spraying, etc.)
 Does the violation affect land, water, air, workers, or documents?
 A description of the incident or hazard.
 Directions to the site of the violation.
 Checkbox attestation of awareness and understanding of the meaning and significance of submitting a tips or complaint.
 Optional photo upload tool.

              Generally speaking, the items of information requested are not dictated by environmental statute or regulation; instead, the information is intended to make it possible to route the tip or complaint within EPA (or to another, appropriate law enforcement agency) and to provide inspectors and/or investigators the information that they need to follow-up on the tip or complaint.  The sole exception is the checkbox attestation at the end of the web form.  The items of knowledge to which a tipper or complainant attests by checking this box are dictated by the general false statements provision of the U.S. Criminal Code, 18 U.S.C. § 1001.  In the event that EPA prosecutes a tipper of complainant for deliberately supplying false information on this web form, this attestation is intended to frustrate a mistake-of-fact defense that the tipper or complainant did not understand the nature and/or significance of submitting a tip or complaint using this web form.

              (ii) Respondent Activities

              Tippers or complainants are generally expected to review the form and complete the form by answering the questions posed.  Those who choose to do so may also review a general information link on reporting an environmental violation and/or a link that describes the EPA web privacy policy.

              Generally speaking, EPA expects tippers to be either a general member of the public or an employee who believes that their employer has violated an environmental law.  In either case, EPA expects that tippers or complainants will come to the form already in possession of all of the information needed to submit a tip or complaint.  Even where the form calls for information that a general member of the public may not have (say, for example, the address of the suspected violator), the instructions on the form explain that the tipper or complainant may simply enter/select "unknown" in the field provided for their response.

              EPA expects that tippers or complainants who are an employee of the company about which they are filing a tip or complaint will maintain, as a matter of customary business practice, the name and address of the suspected violator.  In all other cases, EPA has no basis to presume that data items would be maintained as a matter of customary business practice.

5.	The Information Collected  -  Agency Activities, Collection Methodology, and Information Management

 		5(a) 		Agency Activities

              Many of the activities associated with this form are either one-time events that have already occurred or are ongoing agency activities that are fully automated (such that they do not constitute an ongoing burden or expense).  The only activities that are ongoing but not automated are as follows:

 Answer respondent questions
 Review and distribute tips or complaints

 		5(b) 		Collection Methodology and Management

              Previously the EPA tips and complaints web form was tested as a "pilot" at a less prominent location on EPA's website for a period of months.  Only after this evaluation period did EPA provide a link to the web form on its internet home page.

              EPA does not check the quality of data entry by tippers or complainants.  Of course, where a tip or complaints appears to warrant further investigation, EPA conducts an investigation into the tip or complaint.  Only in this respect does EPA check data quality.

              EPA does not employ special machines or processing technology in evaluating tips or complaints.  The information supplied by the tipper or complainant automatically populates a database that is regularly reviewed by EPA personnel for matters that warrant investigation.  The information stored in this database cannot be accessed by the public and, within EPA, access to the database is limited by system administrator to a small universe of people who are responsible for reviewing the tips and complaints.

              EPA has not eliminated more traditional means of collecting tips and complaints; the tips and complaints form simply adds an additional, convenient method of providing a tip or complaint for those with internet access.  EPA expects that this method of accepting tips or complaints will reduce burden for many individuals.  As expected, the prominence of the tips and complaint web form on our site, the ease with which the form may be completed, and the relative anonymity that the internet affords tippers or complainants has resulted in a significant increase in the number of tips or complaints received.  The web form also elicits specific items of information that allow EPA to efficiently route tips or complaints within EPA to the appropriate office.  The standardized format of the form also represents an advantage over tips or complaints received by phone, where items of information needed to evaluate a tip or complaints are more likely to be accidentally omitted.

 		5(c) 		Small Entity Flexibility

              The tips and complaints form is an addition to, not a substitution for, other methods of supplying tips or complaints to EPA; accordingly, the form, itself, constitutes an increase in agency flexibility with respect to small entities as well as anyone else who may wish to supply a tip or complaint.

 		5(d)		Collection Schedule

              Individuals may submit a tip or complaint at any time. There is no schedule associated with this collection.

 6.	Estimation of the Burden and Cost of the Collection

 	6(a)	Estimating Respondent Burden

 		6(b)Annual Respondent Burden & Cost

 Estimating Labor Costs
   Estimating Capital and Operations and Maintenance Costs
 Capital/Start-up vs. Operating and Maintenance (O&M) Costs
 Annualizing Capital Costs
              EPA receives approximately 1,585 tips or complaints per month through the webpage, for a total of approximately 19,020 responses per year.  Reading instructions and completing the form takes approximately a half hour per response; accordingly, respondents collectively spend approximately 9,510 hours per year providing tips or complaints through the tips and complaints form.  Assuming an average annual wage of $51.28 [$32.05 (Bureau of Labor Statistics average hourly wage) x 1.6 (benefits multiplier)], the opportunity cost of these burden hours is approximately $487,673 per year.

 		6(c) Estimating Agency Burden And Cost
 	6(d)Estimating the Respondent Universe and Total Burden and Costs

 Approximately $15,000 is spent each year for contractor operation of the website, bug fixes, and data storage.
 EPA technical staff spends approximately 7 hours per month directing contractor hours, for a total of 84 hours of technical work on the system per year.  At an hourly wage of $ 62.27 [$38.92 (Bureau of Labor Statistics average hourly wage for GS-12 analysis) x 1.6 (benefits multiplier)], system maintenance costs EPA approximately $5,231 per year.
 Review of tips and complaints takes place at EPA's headquarters and in the 10 EPA Regional Offices.
 Review for criminal enforcement at EPA's headquarters requires approximately 2 hours each day, for a total of 520 hours per year. At an hourly wage of $87.73 [$54.83 (Bureau of Labor Statistics average hourly wage for federal criminal investigators) x 1.6 (benefits multiplier)], these functions collectively cost EPA approximately $45,620 per year.
 Review for civil enforcement in the 10 EPA Regional Offices requires approximately 1.5 hours each day at each Regional Office, for a total of 3,900 hours each year. At an hourly wage of $51.23 [$32.02 (Bureau of Labor Statistics average hourly wage for mix of GS-11 and GS-13 analysts) x 1.6 (benefits multiplier)], these functions collectively cost EPA approximately $199,979 per year.

                 Total agency cost: $15,000 + $5,231 + 45,620 + 199,979 = $265,830

 		6(e)	 	Bottom Line Burden & Cost
 Respondent Tally
 The Agency Tally
 Variations In The Annual Bottom Line
                        (if applicable)

              The bottom-line estimates to respondents are 9,510 annual burden hours, 19,020 responses per year, and $487,673 labor cost per year.

 		6(f)			Reasons for Burden Change

              There is a 924-hour increase in the hours in the total estimated respondent burden compared with the ICR currently approved by OMB. This increase reflects the fact that tips and complaints are being filed at a higher rate as the website becomes more widely known, a strong indication of the success of this program. One question has been added but others have been deleted so that there is expected to be no net effect on the overall time needed to file a tip.  The  more substantial increase in Agency burden and cost reflects more widespread use of the filed tips and complaints within the Agency.

 		6(g)		Burden Statement

The annual public reporting and recordkeeping burden for this collection of information is estimated to average (1/2) hour per response.

 Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID Number EPA-HQ-OECA-2009-0494, which is available for online viewing at www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket and Information Center in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, D.C.  The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.  The telephone number for the Reading Room is<PHONE_NUMBER>, and the telephone number for the Enforcement and Compliance Docket and Information Center is<PHONE_NUMBER>.  An electronic version of the public docket is available at www.regulations.gov.  This site can be used to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically.  When in the system, select "search," then key in the Docket ID Number identified above.  Also, you can send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, D.C. 20503, Attention: Desk Officer for EPA.  Please include the EPA Docket ID Number EPA-HQ-OECA-2009-0494 and OMB Control Number 2020-0032 in any correspondence.