Air Plan Approval; Colorado; Interim Final Determination To Stay and Defer Sanctions in the Denver Metro/North Front Range 2008 Ozone Nonattainment Area

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R08-OAR-2024-0225; FRL-12122-02-R8]</DEPDOC> <SUBJECT>Air Plan Approval; Colorado; Interim Final Determination To Stay and Defer Sanctions in the Denver Metro/North Front Range 2008 Ozone Nonattainment Area</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Interim final determination. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In the Proposed Rules section of this <E T="04">Federal Register</E> , EPA is proposing approval and conditional approval of portions of a State Implementation Plan (SIP) submission from the State of Colorado dated May 3, 2024. The submission relates to Colorado Air Quality Control Commission Regulation Number 7 (Reg. 7) and Regulation Number 21 (Reg. 21), and addresses Colorado's SIP obligation to require sources to meet reasonably available control technology (RACT) requirements for nonattainment areas for the 2008 ozone National Ambient Air Quality Standard (NAAQS), which includes requiring adequate reporting by sources. In this action, EPA is making an interim final determination based on that proposed approval and conditional approval. The effect of this interim final determination is that the imposition of sanctions that were triggered by EPA's May 9, 2023 limited disapproval are now deferred. Although this action is effective upon publication, EPA will take comment on this interim final determination. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim final determination is effective August 6, 2024. However, comments will be accepted until September 5, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R08-OAR-2024-0225, to the Federal Rulemaking Portal: <E T="03">https://www.regulations.gov.</E> Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">https://www.regulations.gov.</E> 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 ( <E T="03">i.e.,</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 <E T="03">https://www2.epa.gov/dockets/commenting-epa-dockets.</E> <E T="03">Docket:</E> All documents in the docket are listed in the <E T="03">https://www.regulations.gov</E> index. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 <E T="03">https://www.regulations.gov.</E> Please email or call the person listed in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section if you need to make alternative arrangements for access to the docket. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Abby Fulton, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, telephone number: (303) 312-6563, email address: <E T="03">fulton.abby@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. <HD SOURCE="HD1">I. Background</HD> On May 9, 2023, EPA took final action approving portions of the 2008 8-hour ozone Serious area attainment plan for the Denver Metro/North Front Range (DMNFR) Area submitted by the State of Colorado on March 22, 2021, and portions of additional state implementation plan (SIP) submissions made by the State related to those requirements on May 8, 2019; May 13, 2020; March 22, 2021; May 18, 2021; and May 20, 2022. <SU>1</SU> <FTREF/> The State made these SIP submissions to meet Serious ozone nonattainment plan requirements for the DMNFR Area, to address reasonably available control technology (RACT) requirements for certain source categories in the DMNFR Area, and to adopt volatile organic compounds (VOC) standards for consumer products and architectural and industrial maintenance coatings. In the May 9, 2023 action, EPA 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, with respect to certain RACT categories and VOC controls, <SU>2</SU> <FTREF/> and finalized a limited conditional approval and limited disapproval of specific provisions intended to meet RACT requirements and control VOC emissions. <SU>3</SU> <FTREF/> The limited disapproval portions of the May 9, 2023 final rule resulted from the Agency's determination that although the rules met RACT requirements with respect to stringency, they lacked adequate periodic reporting requirements as required under the Clean Air Act (CAA) and EPA regulations. <FTNT> <SU>1</SU>  88 FR 29827, table 1, 29829-29830 (May 9, 2023). </FTNT> <FTNT> <SU>2</SU>   <E T="03">Id.</E> at 29830-29831, table 2 (listing portions subject to limited approval and limited disapproval), table 3 (RACT categories). </FTNT> <FTNT> <SU>3</SU>   <E T="03">Id.</E> at 29830-29831, table 3. </FTNT> On July 10, 2023, the State submitted a Petition for Reconsideration asking EPA to reconsider the limited disapproval portions of the May 9, 2023 final rule. EPA responded to the Petition for Reconsideration in a letter dated August 31, 2023, informing the State that EPA was granting the petition as to the limited disapproval portions of the May 9, 2023 final rule. <SU>4</SU> <FTREF/> Since granting the petition for reconsideration, EPA has offered Colorado the opportunity to explain more fully how the State's regulations provide for adequate reporting, to inform EPA of various actions taken by the Colorado Air Pollution Control Division to enhance access to public records and information, and to consider what changes to existing regulations would improve reporting requirements to address deficiencies. As a result of these discussions, Colorado resubmitted Reg. 7 and Reg. 21 with additional explanations to support proposed approval of some provisions and a commitment to make changes to support proposed conditional approval of others. <FTNT> <SU>4</SU>  See letter from EPA Regional Administrator KC Becker to Colorado Attorney General Phil Weiser (Aug. 31, 2023), in the docket for this action. </FTNT> Under section 110(k)(4) of the CAA, EPA may conditionally approve a SIP submission based on a commitment from the State to adopt specific enforceable measures within one year from the date of approval. On May 3, 2024, the State of Colorado resubmitted portions of the prior SIP submissions that were the subject of the limited disapproval and also submitted a letter committing to undertake additional steps to improve public access to regulatory compliance information and clarify existing SIP reporting requirements (“Commitment Letter”). <SU>5</SU> <FTREF/> In its Commitment Letter, the State committed to submit the necessary SIP revisions to EPA by May 31, 2025. <SU>6</SU> <FTREF/> <FTNT> <SU>5</SU>  “Resubmittal of SIP revisions following Reconsideration. II. EPA Docket ID Nos.: EPA-R08-OAR-2022-0632; EPA-R08-OAR-2022-0857; and FRL-10362-02-R8” commitment letter. Available in the docket for this action. </FTNT> <FTNT> <SU>6</SU>  “Resubmittal of SIP revisions following Reconsideration. EPA Docket ID Nos.: EPA-R08-OAR-2022-0632; EPA-R08-OAR-2022-0857; and FRL-10362-02-R8” commitment letter. Available in the docket for this action. </FTNT> In the Proposed Rules section of this <E T="04">Federal Register</E> , EPA has proposed to conditionally approve portions of Colorado's May 3, 2024 submittal, pending timely submittal of the specified rule revisions by May 31, 2025. The underlying SIP provisions that we are proposing to conditionally approve are already part of the SIP due to our May 9, 2023 limited approval and thus are federally enforceable by the State and EPA, notwithstanding our conclusion that the current reporting requirements may limit potential enforceability by others under CAA section 304 citizen suit authority. <HD SOURCE="HD1">II. What action is EPA taking?</HD> We are making an interim final determination to defer application of CAA section 179 sanctions associated with the May 9, 2023 limited disapproval. Under 40 CFR 52.31(d)(2)(i), if the State has submitted a revised plan to correct the deficiencies identified in the May 9, 2023 limited disapproval, and EPA proposes to fully or conditionally approve the plan and issues an interim final determination that the revised plan corrects the identified deficiencies, application of the new source offset and highway sanctions shall be deferred. If not deferred, the offset sanction would apply on December 8, 2024, and the highway sanction would apply on June 8, 2025, in the DMNFR Area. Based on the proposed approval and conditional approval of portions of Colorado's May 3, 2024 submittal set forth in this document, it is more likely than not that Colorado has met the requirement to establish that these provisions have reporting re ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 20k characters. 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