Air Plan Approval; Colorado; 2017 Base Year Inventory and Emission Statement Rule Marginal Nonattainment Requirements, Revisions to Regulation 3

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving elements of state implementation plan (SIP) revisions submitted by the State of Colorado on July 27, 2020, March 22, 2021, and June 26, 2023, to meet certain Clean Air Act (CAA) requirements related to the Denver Metro/North Front Range (DMNFR) area's classification as Marginal nonattainment for the 2015 8-hour ozone national ambient air quality standards (NAAQS). The revisions contain a base year emissions inventory for the nonattainment area and certify that the State's existing Air Pollutant Emission Notice (APEN) program for stationary sources fulfills the CAA's emission statement rule requirement. The revisions also include a new requirement for annual certification of APEN reported emissions for certain stationary sources. Unrelated to Colorado's Marginal ozone nonattainment obligations, the EPA is also approving the State's revisions to Regulation Number 3 concerning an update to the date of incorporation by reference of global warming potentials used in the computation of the carbon dioxide equivalent for comparing emissions from various greenhouse gases (GHGs). The EPA is taking this action pursuant to the CAA.

DATES:

This rule is effective on August 21, 2024.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2023-0441. All documents in the docket are listed on the https://www.regulations.gov website. 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, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Matthew Lang, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number: (303) 312-6709, email address: lang.matthew@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” means the EPA.

I. Background

The background for this action is discussed in detail in our April 10, 2024 proposal (89 FR 25216). In that document we proposed to approve elements of Colorado's Marginal ozone nonattainment SIP submission, namely its 2017 base year emissions inventory and its certification that its APEN reporting program and the addition of an annual certification requirement meet the CAA's emission statement rule requirements. We found that these two SIP elements were prepared in accordance with the requirements of CAA sections 172(c)(3) and 182(a)(1) (for emissions inventories) and 182(a)(3)(B) (for emission statement rules). We also proposed to approve revisions to Regulation Number 3, including incorporation of updated global warming potentials and the removal of outdated language. The EPA is finalizing its proposed approval of the 2017 base year emissions inventory, emission statement rule certification, and revisions to Regulation Number 3 that were submitted by the State of Colorado.

II. Response to Comments

EPA held a 30-day comment period on the proposed rulemaking for this action, beginning on April 10, 2024, and ending on May 10, 2024. No comments were received.

III. Final Action

For the reasons described in our April 10, 2024 notice of proposed rulemaking at 89 FR 25216, we are taking final action to approve elements of Colorado's July 27, 2020, March 22, 2021, and June 26, 2023 SIP Submittals. Specifically, we are approving Colorado's 2017 base year emissions inventory under CAA sections 172(c)(3) and 182(a)(1). We are approving Colorado's certification of its APEN reporting program (July 27, 2020 SIP Submittal) and the addition of the annual certification requirement in section II.A.3. to Regulation Number 3, Part A (June 26, 2023 SIP Submittal) as meeting the emission statement rule requirements of CAA section 182(a)(3)(B). We are also approving certain revisions to Regulation Number 3, Part A, specifically to the date of incorporation by reference of global warming potentials in sections 1.B.10 and 1.B.44.b.(i) (March 22, 2021 and June 26, 2023 SIP Submittals) and to the computation of the mass of carbon dioxide equivalent in section 1.B.44.b.(i) (June 26, 2023 SIP Submittal).

IV. Incorporation by Reference

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Regulation Number 3, Part A as described in sections I. and III. of this preamble and set forth below in the amendments to 40 CFR part 52. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. 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.”

Colorado did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 20, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart G—Colorado

2. In § 52.320:

a. In the table in paragraph (c):

i. Revise the entries “I. Applicability” and “II. Air Pollution Emission Notice (APEN) Requirements” under the center heading “5 CCR 1001-05, Regulation Number 3, Part A, Concerning General Provisions Applicable to Reporting and Permitting”.

b. In the table in paragraph (e):

i. Add the entry “Ozone (8-hour, 2015) DMNFR 2017 Base Year Inventory” after the entry “Reasonably Available Control Technology for the 2008 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) Serious State Implementation Plan (RACT SIP)”.

The revisions and addition read as follows: