[Federal Register Volume 66, Number 176 (Tuesday, September 11, 2001)]
[Rules and Regulations]
[Pages 47086-47093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22610]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[CO-001-0054; FRL-7044-8]
Approval and Promulgation of Air Quality Implementation Plans;
State of Colorado; Denver 1-Hour Ozone Redesignation to Attainment,
Designation of Areas for Air Quality Planning Purposes, and Approval of
Related Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On May 11, 2001, EPA published a notice of proposed rulemaking
(NPR) that used EPA's parallel processing procedure to propose approval
of the State of Colorado's request to redesignate the Denver-Boulder
metropolitan (Denver) ``transitional'' ozone nonattainment area to
attainment for the 1-hour ozone National Ambient Air Quality Standard
(NAAQS). In that NPR, EPA proposed to approve the maintenance plan for
the Denver area and the additional State Implementation Plan (SIP)
elements involving revisions to Colorado's Regulation No. 3 ``Air
Contaminant Emissions Notices'' and Colorado's Regulation No. 7
``Emissions of Volatile Organic Compounds'' that were previously
submitted by Governor Roy Romer, for our approval, on August 8, 1996.
In this action, EPA is approving the Denver 1-hour ozone
redesignation request, the maintenance plan, the revisions to
Regulation No. 3 and Regulation No. 7, and the Volatile Organic
Compounds (VOC) and Nitrogen Oxides (NOX) transportation
conformity budgets.
EFFECTIVE DATE: October 11, 2001.
ADDRESSES: Richard R. Long, Director, Air and Radiation Program,
Mailcode 8P-AR, United States Environmental Protection Agency, Region
VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the following
offices: United States Environmental Protection Agency, Region VIII,
Air and Radiation Program, 999 18th Street, Suite 300, Denver, Colorado
80202-2466.
Copies of the State documents relevant to this action are available
for public inspection at: Colorado Department of Health and
Environment, Air Pollution Control Division, 4300 Cherry Creek Drive
South, Denver, Colorado 80246-1530.
FOR FURTHER INFORMATION CONTACT: Tim Russ, Air and Radiation Program,
Mailcode 8P-AR, United States Environmental Protection Agency, Region
VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466,
Telephone number: (303) 312-6479.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' are used we mean the Environmental Protection
Agency.
I. What Is the Purpose of This Action?
In this final rulemaking action, we are approving the Denver 1-hour
ozone redesignation request, maintenance plan, and the associated
additional SIP elements.
With the publication of our NPR on May 11, 2001, (66 FR 24075), we
utilized our parallel processing procedure for public comment to
consider a proposed maintenance plan that the Colorado Air Quality
Control Commission (AQCC) proposed for public comment at the State
level on October 19, 2000. The AQCC adopted the maintenance plan, with
minor technical changes that we did not consider significant, on
January 11, 2001. Parallel processing allows EPA to propose rulemaking
on a SIP revision, and solicit public comment, at the same time the
State is processing the SIP revision. For further information regarding
parallel processing, please see 40 CFR part 51, appendix V, section
2.3.1.
On May 7, 2001, the Governor submitted to us for approval the final
Denver redesignation request and maintenance plan. The revisions to
Regulation No. 3 and Regulation No. 7 were submitted on August 8, 1996,
by former Governor Roy Romer.
In this final action, we are approving the change in the legal
designation of the Denver area from nonattainment to attainment for the
1-hour ozone NAAQS (hereafter referred to as ``ozone NAAQS'' or ``ozone
standard''), we're approving the AQCC-adopted maintenance plan that is
designed to keep the area in attainment for ozone for the next 13
years, and we're approving the changes to AQCC Regulation No. 3 and
AQCC Regulation No. 7. We also note that in his November 30, 2000,
letter, the Governor asked that we parallel process a potential
alternative provision for the maintenance plan that
[[Page 47087]]
had been proposed by the Colorado Department of Transportation (CDOT).
CDOT's alternative provision involved the conversion of the Santa Fe
Boulevard High Occupancy Vehicle (HOV) lanes to general service lanes
and the provision of funds to provide additional light rail transit
cars to compensate for the loss of the HOV emission reductions.
However, in a December 6, 2000, letter (that we received on December
19, 2000) from CDOT to the AQCC, CDOT withdrew its request for this
alternative provision indicating that it could not guarantee light rail
transit cars to replace the HOV lanes. Based on our understanding that
this CDOT proposed alternative provision is moot, we are not taking
action on this alternative.
We originally designated the Denver area as nonattainment for ozone
under the provisions of the 1977 CAA Amendments (see 43 FR 8962, March
3, 1978). On November 15, 1990, the Clean Air Act Amendments of 1990
were enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q). Under section 107(d)(1)(C) of the Clean Air Act (CAA), EPA
designated the Denver area as nonattainment for ozone because the area
had been previously designated as nonattainment before November 15,
1990. The Denver area was classified under section 185A of the CAA as a
``transitional'' ozone nonattainment area as the area had not violated
the ozone NAAQS in the years 1987, 1988, and 1989.\1\
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\1\ The CAA describes areas as ``transitional'' if they were
designated nonattainment both prior to enactment and (pursuant to
CAA section 107(d)(1)(C)) at enactment, and if the area did not
violate the primary ozone NAAQS in the 3-year period of 1987 through
1989. Refer to section 185A of the CAA and the ``General Preamble
for the Implementation of Title I of the Clean Air Act Amendments of
1990,'' 57 FR 13498, April 16, 1992. See specifically 57 FR 13523,
April 16, 1992.
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Under the CAA, designations can be changed if sufficient data are
available to warrant such changes and if certain other requirements are
met. See CAA section 107(d)(3)(D). Section 107(d)(3)(E) of the CAA
provides that the Administrator may not promulgate a redesignation of a
nonattainment area to attainment unless:
(i) The Administrator determines that the area has attained the
national ambient air quality standard;
(ii) the Administrator has fully approved the applicable
implementation plan for the area under CAA section 110(k);
(iii) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable implementation plan and
applicable Federal air pollutant control regulations and other
permanent and enforceable reductions;
(iv) the Administrator has fully approved a maintenance plan for
the area as meeting the requirements of CAA section 175A; and
(v) the State containing such area has met all requirements
applicable to the area under section 110 and part D of the CAA.
Before we can approve the redesignation request, EPA must find,
among other things, that all applicable SIP elements have been fully
approved. Approval of the applicable SIP elements may occur prior to
final approval of the redesignation request or simultaneously with
final approval of the redesignation request. We note there are no
outstanding SIP elements necessary for the redesignation. However, the
Governor previously requested approval of revisions to Regulation No. 3
and Regulation No. 7 such that rules applicable to the Denver ozone
nonattainment area will remain in effect after Denver is redesignated
to attainment for the 1-hour ozone standard. Therefore, we are also
approving the revisions to Regulation No. 3 and Regulation No. 7.
II. What Is the State's Process To Submit These Materials to EPA?
Section 110(k) of the CAA addresses our actions on submissions of
revisions to a SIP. The CAA requires States to observe certain
procedural requirements in developing SIP revisions for submittal to
us. Section 110(a)(2) of the CAA requires that each SIP revision be
adopted after reasonable notice and public hearing. This must occur
prior to the final revisions being submitted by a State to us.
At the October 19, 2000, AQCC meeting, the Commission proposed for
public comment the ozone redesignation request and maintenance plan.
The AQCC held a public hearing on January 11, 2001, for considering
public comment on the above SIP revisions. After accepting several
minor technical corrections to the maintenance plan, the AQCC adopted
the Denver 1-hour ozone redesignation request and maintenance plan,
directly after the public hearing, on January 11, 2001. These SIP
revisions became State effective March 4, 2001, and were submitted by
the Governor to us on May 7, 2001. We have evaluated the Governor's May
7, 2001, submittal and have determined that the State met the
requirements for reasonable notice and public hearing under section
110(a)(2) of the CAA. As required by section 110(k)(1)(B) of the CAA,
we reviewed these SIP materials for conformance with the completeness
criteria in 40 CFR part 51, appendix V and determined that the
Governor's submittal was administratively and technically complete. Our
completeness determination was sent on June 15, 2001, through a letter
from Jack W. McGraw, Acting Regional Administrator, to Governor Bill
Owens.
The AQCC had previously held a public hearing on March 21, 1996,
for the revisions to AQCC Regulation No. 3 ``Air Contaminant Emissions
Notices'' (hereafter, Regulation No.3) and AQCC Regulation No. 7
``Emissions of Volatile Organic Compounds'' (hereafter, Regulation No.
7). The AQCC adopted the revisions to Regulation No. 3 and Regulation
No. 7 directly after the hearing. These SIP revisions became State
effective May 30, 1996, and were submitted by the Governor to us on
August 8, 1996.
We have evaluated the Governor's prior submittal involving the
revisions to Regulation No. 3 and Regulation No. 7 and have determined
that the State met the requirements for reasonable notice and public
hearing under section 110(a)(2) of the CAA. By operation of law under
section 110(k)(1)(B) of the CAA, the Governor's August 8, 1996,
submittal of the revisions to Regulation No. 3 and Regulation No. 7
became complete on February 6, 1997.
III. EPA's Evaluation of the May 7, 2001, Final Redesignation
Request and Maintenance Plan
We have reviewed the Governor's May 7, 2001, final submittal of the
redesignation request and maintenance plan and we believe that approval
of the request and maintenance plan are warranted. Please see our May
11, 2001, NPR (66 FR 24075) for our discussion regarding the Governor's
November 30, 2000, parallel processing submittal and the January 11,
2001, AQCC hearing and actions regarding these materials.
We have also considered all public comments that were submitted in
response to our May 11, 2001 (see 66 FR 24075) NPR for this action (we
only received one comment letter from the Denver Regional Air Quality
Council which was in support of our NPR.) We have determined that all
required SIP elements, including the maintenance plan, have either been
approved previously or will be fully approved with this final rule,
that the area has attained the NAAQS for the 1-hour ozone standard, and
that the improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from the
[[Page 47088]]
implementation of the applicable implementation plan, applicable
Federal air pollutant control regulations, and other permanent and
enforceable reductions. Thus, with the Governor's May 7, 2001,
submittal, the five criteria in section 107(d)(3)(E) of the Clean Air
Act (CAA) have been met and approval of the redesignation request is
warranted. Detailed descriptions of how the CAA section 107(d)(3)(E)
requirements have been met are provided in our May 11, 2001, NPR for
this action (see 66 FR 24075) and, for the most part, will not be
repeated here. Our discussion below takes into account our prior
evaluation presented in our May 11, 2001, NPR and now presents our
evaluation of the Governor's final submittal of May 7, 2001.
As stated above, section 107(d)(3)(E)(iv) of the CAA provides that
for an area to be redesignated to attainment, the Administrator must
have fully approved a maintenance plan for the area meeting the
requirements of section 175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The maintenance plan must demonstrate continued attainment of the
applicable NAAQS for at least ten years after the Administrator
approves a redesignation to attainment. Eight years after the
promulgation of the redesignation, the State must submit a revised
maintenance plan that demonstrates continued attainment for the
subsequent ten-year period following the initial ten-year maintenance
period. To address the possibility of future NAAQS violations, the
maintenance plan must contain contingency measures, with a schedule for
adoption and implementation, that are adequate to assure prompt
correction of a violation.
In this Federal Register action, we are approving the State of
Colorado's maintenance plan for the Denver ozone nonattainment area
because we have determined, as detailed below, that the State's
maintenance plan submittal of May 7, 2001, meets the requirements of
section 175A of the CAA and is consistent with EPA interpretations of
the CAA section 175A maintenance plan requirements provided in the
General Preamble to Title I of the CAA and our September 4, 1992,
policy memorandum \2\. Our analysis of the pertinent maintenance plan
requirements was fully described in our May 11, 2001, proposed rule
(see 66 FR 24075) and is restated, in part, below, with particular
reference to the Governor's May 7, 2001, submittal:
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\2\ EPA issued maintenance plan interpretations in the ``General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990'' (57 FR 13498, April 16, 1992), ``General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990; Supplemental'' (57 FR 18070, April 28, 1992),
and the EPA guidance memorandum entitled ``Procedures for Processing
Requests to Redesignate Areas to Attainment'' from John Calcagni,
Director, Air Quality Management Division, Office of Air Quality and
Planning Standards, to Regional Air Division Directors, dated
September 4, 1992.
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(a) Emissions Inventories--Attainment Year and Projections
Under our interpretations, areas seeking to redesignate to
attainment for the 1-hour ozone NAAQS may demonstrate future
maintenance of the ozone NAAQS either by showing that future VOC and
NOX emissions will be equal to or less than the attainment
year emissions or by providing a modeling demonstration. For the Denver
area, the State selected the emissions inventory approach for
demonstrating maintenance of the ozone NAAQS.
The maintenance plan that the Governor submitted on May 7, 2001,
included comprehensive inventories of VOC and NOX emissions
for the Denver area. These inventories include emissions from
stationary point sources, area sources, non-road mobile sources, on-
road mobile sources, and biogenics (i.e., VOCs emitted from pine trees
and other types of vegetation.) The State selected 1993 as the year
from which to develop the attainment year inventory and included
projections for 2006 and 2013. The State's submittal contains detailed
emission inventory information that was prepared in accordance with EPA
guidance.
Summary emission figures from the 1993 attainment year and the
projected years are provided in Table III.-1 and Table III.-2 below.
Table III-1.--Summary of VOC emissions in tons per day for Denver
------------------------------------------------------------------------
Rev. Rev. Rev.
1993 2006 2013
-------------------------------------------------\1\------\1\------\1\--
Point Sources................................ 46 52 56
Area Sources................................. 74 73 80
Non-Road Mobile Sources...................... 58 39 38
On-Road Mobile Sources....................... 119 84 74
Biogenics.................................... 211 211 211
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Total.................................... 507 460 459
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\1\ These are the revised inventory figures that represent the technical
corrections that were adopted by AQCC with the maintenance plan and
TSD at the January 11, 2001, public hearing. They became part of the
Governor's final submittal of May 7, 2001.
Table III-2.--Summary of NOX emissions in tons per day for Denver
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Rev. Rev. Rev.
1993 2006 2013
-------------------------------------------------\1\------\1\------\1\--
Point Sources................................ 122 123 126
Area Sources................................. 7 10 11
Non-Road Mobile Sources...................... 65 57 50
On-Road Mobil Sources........................ 134 115 117
Biogenics.................................... 4 4 4
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Total.................................... 332 309 308
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\1\ These are the revised inventory figures that represent the technical
corrections that were adopted by AQCC with the maintenance plan and
TSD at the January 11, 2001, public hearing. They became part of the
Governor's final submittal of May 7, 2001.
(b) Demonstration of Maintenance--Projected Inventories
As noted above, total VOC and NOX emissions were
projected by the State for 2006 and 2013. The years 2006 and 2013 were
selected by the State, with EPA's concurrence, due to the immediate
availability of transportation data sets from the Denver Regional
Council Of Governments (DRCOG) from the work performed on the Denver
carbon mooxide (CO) redesignation request and maintenance plan.
The Denver CO redesignation request and maintenance plan were
submitted to us on May 10, 2000. This maintenance plan used the latest
revised transportation data sets that were developed by DRCOG for the
State to model the mobile source emissions. In addition, the CO
maintenance plan incorporated changes to AQCC Regulation No. 11 that
would initiate a Remote Sensing Device (RSD) program in 2002 and affect
the cutpoints for the enhanced I/M program. Both of these I/M program
revisions would also directly affect emission reductions for the ozone
maintenance plan.
The RSD program is designed to evaluate 20% of the fleet in 2003,
40% of the fleet in 2004, 60% of the fleet in 2005, and 80% of the
fleet in 2006. The RSD program will continue through 2013. In
conjunction with the new RSD program, Regulation No. 11's enhanced I/M
program will continue to apply to evaluate the remainder of the fleet
and those vehicles that did not pass evaluation by the RSD program. We
have reviewed these State-adopted changes to Regulation No. 11 and are
proposing approval of them in a separate rulemaking action for the
Denver CO redesignation request and maintenance plan. We note that the
State has properly accounted for these
[[Page 47089]]
Regulation No. 11 revisions in the projected emission inventories for
2006 and 2013 and is able to demonstrate maintenance of the 1-hour
ozone standard. In the event that we are unable to approve the
Regulation No. 11 revisions that were submitted by the Governor on May
10, 2000, this would not have an adverse impact on the Denver ozone
maintenance plan as the current I/M program would continue and would
provide greater emission reductions than the State has projected for
the amended version of Regulation No. 11. In either scenario, the
maintenance demonstration would still be valid.
For the ozone maintenance plan, the 1993 attainment year inventory
and the projected 2006 and 2013 inventories were all prepared in
accordance with EPA guidance. As stated in the maintenance plan, the
projected emission inventories show a steady downward trend in both VOC
and NOX emissions. This is due mainly to more stringent
motor vehicle tailpipe emission standards and additional Federal rule
requirements for non-road sources of emissions. Because of this steady
downward trend in emissions and because future year emissions are
projected to be considerably below the 1993 attainment year levels, the
State expects there will be no increases in emissions in the years
between the present and 2013 that will jeopardize the demonstration of
maintenance. Based on the information in the maintenance plan and the
State's TSD, we agree with this conclusion.
Therefore, as the projected 2006 and 2013 inventories show that VOC
and NOX emissions are not estimated to exceed the 1993
attainment levels during the time period from the present through 2013,
the Denver area has satisfactorily demonstrated maintenance of the 1-
hour ozone NAAQS.
(c) Monitoring Network and Verification of Continued Attainment
Continued attainment of the 1-hour ozone NAAQS in the Denver area
depends, in part, on the State's efforts to track indicators throughout
the maintenance period. This requirement is met in two sections of the
Denver maintenance plan. In Chapter 2, section B and Chapter 3, section
E the State commits to continue the operation of the ozone monitors in
the Denver area and to annually review this monitoring network and make
changes as appropriate. Please see our May 11, 2001, NPR (66 FR 24075)
for a more detailed discussion.
Based on the above, we are approving these commitments as
satisfying the relevant requirements. We note that this final approval
renders the State's commitments federally enforceable.
(d) Contingency Plan
Section 175A(d) of the CAA requires that a maintenance plan include
contingency provisions. To meet this requirement, the State has
identified appropriate contingency measures along with a schedule for
the development and implementation of such measures. Please see our May
11, 2001, NPR (66 FR 24075) for a detailed discussion.
We find that the contingency measures provided in the State's
Denver ozone maintenance plan are sufficient and meet the requirements
of section 175A(d) of the CAA.
(e) Subsequent Maintenance Plan Revisions
In accordance with section 175A(b) of the CAA, Colorado has
committed to submit a revised maintenance plan SIP revision eight years
after the approval of the redesignation.
IV. EPA's Evaluation of the Transportation Conformity Requirements
One key provision of our conformity regulation requires a
demonstration that emissions from the transportation plan and
Transportation Improvement Program are consistent with the emissions
budgets in the SIP (40 CFR 93.118 and 93.124). The emissions budget is
defined as the level of mobile source emissions relied upon in the
attainment or maintenance demonstration to maintain compliance with the
NAAQS in the nonattainment or maintenance area. The rule's requirements
and EPA's policy on emissions budgets are found in the preamble to the
November 24, 1993, transportation conformity rule (58 FR 62193-62196)
and in the sections of the rule referenced above.
The final maintenance plan, as submitted by the Governor on May 7,
2001, defines the motor vehicle emissions budgets in the Denver ozone
attainment/maintenance area as 119 tons per day for VOCs and 134 tons
per day for NO\X\ for all years 2002 and beyond. These figures reflect
technical corrections to those of 124 tons per day for VOCs and 139
tons per day for NO\X\ that were previously submitted by the Governor
on November 30, 2000. These budgets are equal to the attainment year
(1993) mobile source emissions inventory for these pollutants and use
some of the available safety margin in the years 2002 to 2013. The use
of the safety margin is permitted by the conformity rule. See 40 CFR
93.124(a).
The State used specific inventory values for the years 2006 and
2013 to calculate and use some of the available safety margin in those
years. As revised during the January 11, 2001, public hearing, in 2006
the total emissions of VOCs and NOX are lower than the 1993
attainment year emissions inventory by 47 (was 56) tons per day and 23
(was 27) tons per day respectively. For 2006, the State added the
mobile sources portion of the safety margin (35 tons per day for VOCs
and 19 tons per day for NOX) to the 2006 mobile sources
emission inventories to arrive at the final budgets of 119 tons per day
for VOCs and 134 tons per day for NOX . For 2013, the State
similarly allocated the safety margin to arrive at the same budgets.
Although the maintenance plan does not specifically address the
inventories for the other years between 2002 and 2013, the maintenance
plan defines the same budgets for 2002 and all years beyond, thus
evidencing the intent to apply some portion of the available safety
margin in 2002 to arrive at these same budgets. We believe this is
acceptable under the circumstances because we would not expect total
emissions from sources other than on-road mobile sources to exceed
their 1993 levels in the year 2002 or any other year before 2013.
Therefore, in view of our analysis, we are approving these 1-hour ozone
NAAQS VOC and NOX budgets for the Denver area.
V. EPA's Adequacy Determination for the Maintenance Plan's
Transportation Conformity Budgets
On March 2, 1999, the United States Court of Appeals for the
District of Columbia issued a decision in Environmental Defense Fund v.
the Environmental Protection Agency, No. 97-1637, holding that we must
make an affirmative determination that the submitted motor vehicle
emission budgets contained in SIPs are adequate before they are used to
determine the conformity of Transportation Improvement Programs or Long
Range Transportation Plans. In response to the Court's decision, we are
making most submitted SIP revisions containing motor vehicle emission
budgets available for public comment and responding to these comments
before announcing our adequacy determination. (We do not perform
adequacy determinations for SIP revisions that only create new emission
budgets for years in which an EPA-approved SIP already establishes a
budget, because these new budgets cannot be used for conformity until
they are approved by EPA.) We make adequacy determinations available
for
[[Page 47090]]
comment by posting notification of their availability on our web site
(currently, these notifications are posted at www.epa.gov/otaq/transp/conform/adequacy.htm.) The adequacy process is discussed in greater
detail in a May 14, 1999 memorandum from Gay MacGregor, EPA, entitled
``Conformity Guidance on Implementation of March 2, 1999 Conformity
Court Decision,'' which is also available on our web site (www.epa.gov/oms/transp/traqconf.htm).
As noted above, the Denver final ozone maintenance plan was
submitted to EPA on May 7, 2001. Notice of the availability of this SIP
revision was posted on our adequacy web site on May 30, 2001, and a 30-
day comment period for adequacy was provided, following the procedures
described in the May 14, 1999 memo. We did not receive any comments on
the plan during the comment period which closed on June 29, 2001. In
addition, as part of our review, we must also review any comments
submitted to the AQCC on the maintenance plan during the public hearing
process. Environmental Defense had presented comments both in their
AQCC prehearing statement and at the January 11, 2001, public hearing
regarding these budgets. Their concerns essentially dealt with the
issue of the State allocating all of the ``safety margin'' to the
transportation conformity budgets. The Air Pollution Control Division
(APCD) explained to the AQCC that this approach is allowed under EPA's
conformity rule provisions. The AQCC agreed and adopted the budgets
with the maintenance plan directly after the January 11, 2001, public
hearing. We note that our May 11, 2001, NPR (see 66 FR 24075) also
discussed these AQCC-adopted transportation conformity budgets and the
use of the available ``safety margin.'' We did not receive any adverse
comments regarding our NPR (the only comment received was from the
Denver RAQC in support of our proposed action.)
The conformity rule (in 40 CFR 93.118(e)(4)) provides technical and
administrative criteria that we must use in determining adequacy of
submitted emissions budgets, and we have determined that these criteria
have been satisfied for the NOX and VOC emissions budgets in
the maintenance plan. Our approval of these budgets in this action (see
prior section) should also be considered our determination that these
budgets are adequate for transportation conformity purposes. EPA will
not be publishing a separate notice in the Federal Register documenting
our adequacy determination. The Denver Regional Council of Governments
and the U.S. Department of Transportation are required to use these
budgets in future conformity analyses as of the effective date of this
final rule.
VI. EPA's Evaluation of the Regulation No. 3 Revisions
As we described in our May 11, 2001, NPR (see 66 FR 24075), the
Governor of Colorado had previously submitted minor revisions to
Regulation No. 3 in conjunction with the Governor's original August 8,
1996, submittal of the Denver ozone maintenance plan.
We concur with these revisions to Regulation No. 3 and are
approving them.
VII. EPA's Evaluation of the Regulation No. 7 Revisions
As we described in our May 11, 2001, NPR (see 66 FR 24075), the
Governor of Colorado had previously submitted minor revisions to
Regulation No. 7 in conjunction with the Governor's original August 8,
1996, submittal of the Denver ozone maintenance plan.
We concur with these revisions to Regulation No. 7 and are
approving them. We again note that additional revisions to Regulation
No. 7 were also submitted with the Governor's August 8, 1996, submittal
and included the addition of paragraphs A.2., A.3., and A.4. to create
``de minimus'' exemptions. We are not taking any action on these
revisions and did not consider them with our proposed approval of the
Governor's November 30, 2000, submittal, nor with this final rulemaking
action.
VIII. EPA's Evaluation of the Request for Revision to 40 CFR
80.27(a)(2) for RVP
The maintenance plan that was submitted by the Governor (for
parallel processing) on November 30, 2000, and his final submittal of
May 7, 2001, incorporate a gasoline RVP limit of 9.0 psi in the
maintenance demonstration. Since maintenance of the 1-hour ozone NAAQS
is shown for the entire maintenance time period of 1993 through 2013
with this 9.0 psi limit, the State of Colorado has requested that the
9.0 psi summertime RVP limit (10.0 psi for ethanol-blends) be made
permanent for the Denver attainment/maintenance area once EPA approves
the redesignation request and maintenance plan. We believe this change
would be appropriate. However, separate rulemaking through our
Headquarters office is necessary to revise the RVP requirements for
Colorado as specified in 40 CFR 80.27(a)(2). We anticipate that our
Headquarters office will pursue this particular rulemaking action after
the effective date of this final rule.
IX. Final Rulemaking Action
In this action, we are approving the Governor's May 7, 2001,
request to redesignate the Denver 1-hour ozone NAAQS nonattainment area
to attainment, the Denver 1-hour ozone NAAQS maintenance plan submitted
May 7, 2001 (excluding Chapter 1 ``Introduction'' and Appendix B
``Changes to AQCC Ambient Air Quality Standards Regulation''), the
revisions to Regulation No. 3 and Regulation No. 7 (excluding
paragraphs A.2., A.3., and A.4.) submitted August 8, 1996, and the VOC
and NOX transportation conformity budgets contained in the
maintenance plan. This final action will become effective on October
11, 2001.
Administrative Requirements
(a) Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
(b) Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
(c) Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments, or EPA consults
with those governments. If EPA complies by
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consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
(d) Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule 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, as specified in Executive Order 13132, because it
merely approves state rules implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. In addition,
redesignation of an area to attainment under sections 107(d)(3)(D) and
(E) of the Clean Air Act does not impose any new requirements. Thus,
the requirements of section 6 of the Executive Order do not apply to
this rule.
(e) Executive Order 13211 (Energy Effects)
This rule is not subject to Executive Order 13211 ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
(f) Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This final approval will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements, but simply approve requirements that the State is
already imposing. Therefore, because the SIP final approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2). Redesignation of an area to attainment under
sections 107(d)(3)(D) and (E) of the Clean Air Act does not impose any
new requirements. Redesignation to attainment is an action that affects
the legal designation of a geographical area and does not impose any
regulatory requirements. Therefore, because the final approval of the
redesignation does not create any new requirements, I certify that the
final approval of the redesignation request will not have a significant
economic impact on a substantial number of small entities.
(g) Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this final approval action does not include
a Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action approves 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.
(h) Submission to Congress and the Comptroller General
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 rule 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). This rule will be effective October 11, 2001.
[[Page 47092]]
(i) National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
(j) Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 13, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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) of the Clean Air
Act.)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Reporting and recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: August 15, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
Title 40, chapter I, parts 52 and 81 of the Code of Federal
Regulations are amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(94 ) to read
as follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(94) On August 8, 1996, the Governor of Colorado submitted
revisions to Regulation No. 3, ``Air Contaminant Emissions Notices,''
that exempt gasoline stations located in ozone attainment areas from
construction permit requirements, with the exception of those gasoline
stations located in the Denver Metro ozone attainment maintenance area.
The Governor also submitted revisions to Regulation No. 7, ``Emissions
of Volatile Organic Compounds,'' that state the provisions of
Regulation No. 7 shall apply only to ozone nonattainment areas and the
Denver Metro Attainment Maintenance Area with the exception of Section
V, Paragraphs VI.B.1 and 2., and Subsection VII.C., which shall apply
statewide.
(i) Incorporation by reference.
(A) Part B, section III. D.1.f of Regulation No. 3 ``Air
Contaminant Emissions Notices'', 5 CCR 1001-5, as adopted on March 21,
1996, effective May 30, 1996.
(B) Section I.A.1 of Regulation No. 7 ``Emissions of Volatile
Organic Compounds'', 5 CCR 1001-9, as adopted on March 21, 1996,
effective May 30, 1996.
3. New section 52.350 is added to read as follows:
Sec. 52.350 Control strategy: Ozone.
Revisions to the Colorado State Implementation Plan, 1-hour ozone
NAAQS Redesignation Request and Maintenance Plan for Denver entitled
``Ozone Redesignation Request and Maintenance Plan for the Denver
Metropolitan Area,'excluding Chapter 1 and Appendix B, as adopted by
the Colorado Air Quality Control Commission on January 11, 2001, State
effective March 4, 2001, and submitted by the Governor on May 7, 2001.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq .
2. In Sec. 81.306, the table entitled ``Colorado-Ozone (1-Hour
Standard)'' is amended by revising the entry for ``Denver-Boulder
Area'' to read as follows:
Sec. 81.306 Colorado.
* * * * *
Colorado--Ozone (1-Hour Standard)
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
Denver-Boulder Area:
Adams County (part)
West of Kiowa Creek......... 10/11/2001 Attainment.............
Arapahoe County (part)
West of Kiowa Creek......... ........... Attainment.............
Boulder County (part) excluding ........... Attainment.............
Rocky Mountain National Park.
Denver County................... ........... Attainment.............
Douglas County.................. ........... Attainment.............
Jefferson County................ ........... Attainment.............
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\1\ This date is October 18, 2000, unless otherwise noted.
[[Page 47093]]
* * * * *
[FR Doc. 01-22610 Filed 9-10-01; 8:45 am]
BILLING CODE 6560-50-U