Clean Air Act Reclassification; Colorado; Reclassification of the Denver Metro/North Front Range 2015 Ozone Nonattainment Area to Serious

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is granting a request by the State of Colorado to reclassify the Denver Metro/North Front Range ozone nonattainment area (“DMNFR) from “Moderate” to “Serious” for the 2015 8-hour ozone national ambient air quality standards (NAAQS).

DATES:

This rule is effective on July 24, 2024.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2024-0318 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., confidential business information (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. If you need assistance in a language other than English or if you are a person with disabilities who needs a reasonable accommodation at no cost to you, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Amrita Singh, Air and Radiation Division, US EPA, Region 8, Mail-code 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, telephone number: (303) 312-6103, email address: singh.amrita@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “reviewing authority,” “we,” “us,” and “our” refer to the EPA.

I. Reclassification of the DMNFR Area to “Serious” Ozone Nonattainment

On October 1, 2015, the EPA strengthened the primary and secondary NAAQS for ozone to a level of 0.070 parts per million, to be assessed using the “design value” metric: the annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years. Effective August 3, 2018, based on what were then the three most recent years (2014-2016) of air monitoring data, EPA designated all areas that were violating the 2015 8-hour ozone NAAQS as nonattainment. In that action, EPA designated the DMNFR Area as nonattainment and classified the area as “Marginal” based on the area's design value. As a general matter, higher-classified ozone nonattainment areas are subject to a greater number of, and more stringent, CAA planning requirements than lower-classified areas, but are allowed more time to attain the ozone NAAQS. States with areas designated as nonattainment and classified as “Marginal” were required to attain the 2015 8-hour ozone NAAQs as expeditiously as practicable, but no later than August 3, 2021, based on 2018-2020 monitoring data. Effective November 7, 2022, EPA determined that the DMNFR Area, among other areas, had failed to attain the 2015 8-hour ozone NAAQS by the applicable “Marginal” area attainment deadline, and accordingly reclassified the area as “Moderate”.

On June 8, 2024, the State of Colorado requested that EPA reclassify the DMNFR Area from “Moderate” to “Serious”. We are approving Colorado's reclassification request under the Act's “voluntary reclassification” provisions: “The Administrator shall grant the request of any State to reclassify a nonattainment area in that State . . . to a higher classification.” Similarly, by regulation EPA has provided that a state “may request, and the Administrator must approve, a higher classification for any reason in accordance with CAA section 181(b)(3).” Because the plain language of the statute and regulation mandates that we approve this request, EPA is granting Colorado's request for voluntary reclassification for the DMNFR Area for the 2015 ozone NAAQS, and accordingly is reclassifying the area from “Moderate” to “Serious”. As a result of this action, Colorado must now attain the 2015 ozone standard as expeditiously as practicable but no later than August 3, 2027, which is nine years from the area's date of designation as nonattainment.

The EPA has determined that this action falls under section 553(b)(B) of the Administrative Procedure Act (APA), which authorizes agencies, upon finding “good cause,” to take rulemaking actions without public notice and comment when these procedures are “impracticable, unnecessary or contrary to the public interest.” We have determined that public notice and comment procedures are unnecessary here because EPA's action to approve voluntary reclassification requests under CAA section 181(b)(3) is nondiscretionary both in its issuance and in its content. Therefore, notice and comment rulemaking procedures would serve no useful purpose in connection with this action.

The EPA also finds that there is good cause under APA section 553(d)(3) for this reclassification to become effective on the date of publication. That section allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period generally prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements that would cause affected parties to need time to prepare before the rule takes effect. Applicable SIP requirements and deadlines associated with the reclassification will be addressed in a separate notice, which will include an opportunity for public comment. For this reason, EPA finds good cause under APA section 553(d)(3) for this reclassification to become effective on the date of publication.

II. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993) this final action is not a “significant regulatory action” and therefore is not subject to a requirement for Executive Order 12866 review. With respect to lands under state jurisdiction, voluntary reclassifications under CAA section 181(b)(3) of the CAA are based solely upon requests by the state, and the EPA is required under the CAA to grant them. These actions do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by reclassification, reclassification does not impose a materially adverse impact under Executive Order 12866. For those reasons, this final action is also not subject to Executive Order 13211. “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2021).

In addition, I certify that this final rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and this final rule does not contain any unfunded mandate or significantly or uniquely affect small governments as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), because the EPA is required to grant requests by states for voluntary reclassifications and such reclassifications in and of themselves do not impose any Federal intergovernmental mandate.

This rule also does not have any tribal implications under Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. In addition, tribes are not subject to implementation plan submittal deadlines that apply to states as result of reclassifications.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. It directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing as appropriate, disproportionately high and adverse human health or environmental effects on their programs, policies, and activities on minority populations and low-income populations in the United States. This reclassification action relates to ozone, a pollutant that is regional in nature, and is not the type of action that could result in the types of local impacts addressed in Executive Order 12898.

This final action does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the National Government, and the states, nor on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999. This final action does not alter the relationship or the distribution of power and responsibilities established in the CAA.

This rule is not subject to Executive Order 13045, “Protection of the Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because EPA interprets Executive Order 13045 as applying only to those regulatory actions considered significant under section 3(f)(1) of Executive Order 12866 and that also concern environmental health or safety risks that EPA has reason to believe may disproportionally affect children per the definition of “covered regulatory action” in section 2-202 of Executive Order 13045.

Reclassification actions do not involve technical standards, and thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an informative collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act (CRA), 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. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in section I. of the preamble, including the basis for the finding. 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 circuits by September 23, 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 81

• Environmental protection
• Air pollution control
• Carbon monoxide
• Greenhouse gases
• 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.

For the reasons set forth in the preamble, 40 CFR part 81 is amended as follows:

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

2. In § 81.306, the table entitled “Colorado-2015 8-hour Ozone NAAQS [Primary and Secondary]” is amended by revising the entry “Denver Metro/North Front Range, CO” to read as follows: