[Federal Register Volume 61, Number 193 (Thursday, October 3, 1996)]
[Proposed Rules]
[Pages 51631-51638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25230]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO-001-002; CO-001-003 and CO-001-004; FRL-5628-8]
Clean Air Act Approval and Promulgation of PM10
Implementation Plan for Denver, CO, and the Denver Mobile Source
Emissions Budgets for PM10 and NOX
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA proposes approval of the state implementation plan (SIP)
revision submitted by Colorado on March 30, 1995, to achieve attainment
of the National Ambient Air Quality Standards (NAAQS) for particulate
matter with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM10) in the Denver area, including: Control
measures; technical analysis (e.g., emission inventory, and attainment)
and other Clean Air Act (Act) SIP requirements. The SIP revision was
submitted to satisfy certain Federal requirements for an approvable
moderate nonattainment area PM10 SIP for Denver and, among other
things, contains enforceable control measures.
EPA also proposes to approve the PM10 and NOX mobile
source emissions budgets for Denver that were submitted by the Governor
on July 18, 1995 and April 22, 1996, respectively.
DATES: Comments on the actions proposed in this document must be
received in writing by December 2, 1996.
ADDRESSES: Comments should be addressed to: Richard R. Long, Director,
Air Program (8P2-A), Environmental Protection Agency, Region VIII, 999
18th Street, Suite 500, Denver, Colorado 80202-2466. Label the comments
as comments addressing the Denver PM10, PM10 emissions budget
or NOX emissions budget SIPs.
Copies of the State's submittals and other information are
available for inspection during normal business hours at the following
locations: Environmental Protection Agency, Region VIII, Air Program,
999 18th Street, Denver, Colorado 80202-2466; and Colorado Air
Pollution Control Division, 4300 Cherry Creek Dr. South, Denver,
Colorado 80222-1530.
FOR FURTHER INFORMATION CONTACT: Callie Videtich, Air Program, EPA
Region VIII, 999 18th Street, Suite 500, Denver, Colorado 80220-2405 or
by phone at (303) 312-6434.
SUPPLEMENTARY INFORMATION:
I. Background
The Denver, Colorado area was designated nonattainment for
PM10 and classified as moderate under sections 107(d)(4)(B) and
188(a) of the Act, upon enactment of the Clean Air Act Amendments of
1990.1 See 56 FR 56694 (Nov. 6, 1991); and 40 CFR 81.306
(specifying PM10 nonattainment designation for the Denver
metropolitan area). The air quality planning requirements for moderate
PM10 nonattainment areas are set out in Part D, Subparts 1 and 4,
of Title I of the Act.2
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\1\ The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Pub. L. 101-549, 104 Stat. 2399. References
herein are to the Clean Air Act, as amended (``the Act''). The Clean
Air Act is codified, as amended, in the U.S. Code at 42 U.S.C. 7401,
et seq.
\2\ Subpart 1 contains provisions applicable to nonattainment
areas generally and Subpart 4 contains provisions specifically
applicable to PM10 nonattainment areas. At times, Subpart 1 and
Subpart 4 overlap or conflict. EPA has attempted to clarify the
relationship among these provisions in the ``General Preamble'' and,
as appropriate, in today's notice and supporting information.
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The EPA has issued a ``General Preamble'' describing EPA's
preliminary views on how EPA intends to review SIPs and SIP revisions
submitted under Title I of the Act, including those State submittals
containing moderate PM10 nonattainment area SIP requirements (see
generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,
1992)). Because EPA is describing its interpretations here only in
broad terms, the reader should refer to the General Preamble for a more
detailed discussion
[[Page 51632]]
of the interpretations of Title I advanced in this proposal and the
supporting rationale. In this rulemaking action on the Colorado
moderate PM10 SIP for the Denver nonattainment area, EPA is
applying its interpretations considering the specific factual issues
presented.
Those States containing initial moderate PM10 nonattainment
areas (those areas designated nonattainment under section 107(d)(4)(B)
of the Act) were required to submit, among other things, the following
plan provisions by November 15, 1991:
1. Provisions to assure that reasonably available control measures
(RACM) (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)) shall be implemented no
later than December 10, 1993;
2. Either a demonstration (including air quality modeling) that the
plan will provide for attainment as expeditiously as practicable but no
later than December 31, 1994, or a demonstration that attainment by
that date is impracticable;
3. Quantitative milestones which are to be achieved every 3 years
and which demonstrate reasonable further progress (RFP) toward
attainment by December 31, 1994; and
4. Provisions to assure that the control requirements applicable to
major stationary sources of PM10 also apply to major stationary
sources of PM10 precursors except where the Administrator
determines that such sources do not contribute significantly to
PM10 levels which exceed the NAAQS in the area. See sections
172(c), 188, and 189 of the Act.
Some provisions were due at a later date. States with initial
moderate PM10 nonattainment areas were required to submit a new
source review (NSR) permit program for the construction and operation
of new and modified major stationary sources of PM10 by June 30,
1992 (see section 189(a)). On January 14, 1993, the State submitted
regulation revisions for the construction of new and modified major
stationary sources. On August 18, 1994, EPA partially approved the
State's NSR program for the Denver PM10 nonattainment area because
the State had not yet submitted NSR provisions for sources of PM10
precursors (i.e., NOX and SO2) in the Denver area (see 59 FR
42300). On August 25, 1994, Colorado submitted additional NSR
provisions for precursor emissions. EPA will be acting on that SIP
submittal in a separate notice.
States were also required to submit contingency measures for
PM10 moderate nonattainment areas by November 15, 1993. The
contingency measures for the Denver PM10 nonattainment area were
initially submitted by the Governor on December 9, 1993. However, those
measures were later incorporated into the revised March 30, 1995
PM10 SIP. Therefore, the State developed new contingency measures,
and on November 17, 1995, the Governor submitted those measures to EPA.
EPA is taking action on the contingency measures SIP submittal in a
separate rulemaking action.
On June 7, 1993, the Governor submitted a SIP for Denver to EPA
which was intended to satisfy those elements due November 15, 1991. On
December 20, 1993, EPA proposed to conditionally approve that SIP and
also proposed to approve the SIP's control measures for their limited
purpose of strengthening the Colorado SIP (58 FR 66326). On July 25,
1994, EPA granted limited approval of the control measures for the
limited purpose of strengthening the SIP (59 FR 37698).
During review of the technical information supporting the June 1993
SIP, EPA examined information which raised concern about the accuracy
of the SIP's attainment demonstration. The SIP's technical support
documentation suggested that the contribution from PM10
``precursors'' (i.e., nitrogen oxides and sulfur dioxides) in the base
year winter season may have been underestimated. Since the attainment
demonstration provided with that SIP predicted a value of 149.9
g/m3 over 24 hours, virtually any increase in precursor
PM10 levels would result in predicted violations of the 24-hour
standard.
In the December 20, 1993, proposed rulemaking action, EPA requested
public comment on it's proposal to grant conditional approval of the
SIP in light of the precursor issue. EPA reviewed the information
submitted during the public comment period and concluded that
precursors were underestimated by 5.4 g/m3. Based upon this
finding, EPA delayed taking final action on the proposed conditional
approval to allow the State an opportunity to develop additional
controls to offset this increase. On March 30, 1995, the Governor
submitted a SIP revision intended to provide controls to offset the
increase in precursor emissions and provide credible attainment and
maintenance demonstrations. On July 18, 1995, and April 22, 1996 the
Governor submitted additional revisions to the SIP which establish
mobile source emissions budgets for PM10 and NOX. The
conformity rule provides that these budgets establish a cap on motor
vehicle-related emissions which cannot be exceeded by the predicted
transportation system emissions in the future unless the cap is amended
by the State and approved by EPA as a SIP revision and attainment and
maintenance of the standard can be demonstrated.
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566). EPA is taking three
actions with this document.
1. EPA is proposing to approve the revised Denver PM10 SIP, as
adopted by the Colorado Air Quality Control Commission (AQCC) October
20, 1994 with an amendment on December 15, 1994, and submitted by the
Governor of Colorado on March 30, 1995. This submittal contains, among
other things, several control measures, regulation and permit revisions
and attainment and three-year maintenance demonstrations. The State's
submittal demonstrates attainment of the PM10 NAAQS by December
31, 1994 3, with continued maintenance of the standard through
December 31, 1997.
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\3\ The Clean Air Act calls for attainment as expeditiously as
practicable but no later than December 31, 1994. Section 188(c)(1).
The State's submittal sometimes refers to December 31, 1994 as the
attainment date and at other times implies 1995 as the attainment
date. EPA interprets that when the State refers to attainment by
1995 it means attainment by January 1, 1995. EPA is proposing to
approve the State's demonstration on the basis of the de minimis
differential between the two dates and the fact that, at times, the
State refers to the attainment date as December 31, 1994. The State
should promptly inform EPA if EPA has in any manner misinterpreted
the date by which the State is projecting attainment in the Denver
Metropolitan nonattainment area.
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2. EPA is proposing to approve the Denver PM10 mobile source
emissions budget contained in the SIP revision adopted by the AQCC on
February 16, 1995, and submitted by the Governor on July 18, 1995.
3. EPA is proposing to approve the Denver NOX mobile source
emissions budget adopted by the AQCC on June 15, 1995, and submitted by
the Governor on April 22, 1996.
II. This Action
A. Analysis of March 30, 1995 Denver PM10 SIP Submission
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public
[[Page 51633]]
hearing.4 Section 110(l) of the Act similarly provides that each
revision to an implementation plan submitted by a State under the Act
must be adopted by such State after reasonable notice and public
hearing. The EPA also must determine whether a submittal is complete
and therefore warrants further EPA review and action (see section
110(k)(1) and 57 FR 13565). EPA's completeness criteria for SIP
submittals are set out at 40 CFR Part 51, Appendix V. EPA attempts to
make completeness determinations within 60 days of receiving a
submission. However, a submittal is deemed complete by operation of law
if a completeness determination is not made by EPA six months after
receipt of the submission.
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\4\ In addition, section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
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After providing reasonable notice, the AQCC held a public hearing
on October 20, 1994, to entertain public comment on the implementation
plan for Denver. The plan was adopted following the public hearing. The
plan was further amended after a properly noticed public hearing of the
AQCC on December 15, 1994. On March 30, 1995, the Governor signed and
submitted the SIP revision to EPA. The SIP was deemed complete by
operation of law six months following submission of the plan by the
Governor.
2. Accurate Emissions Inventory
Section 172(c)(3) of the Act requires that nonattainment plan
provisions include a comprehensive, accurate, current inventory of
actual emissions from all sources of relevant pollutants in the
nonattainment area.5 The emissions inventory also should include a
comprehensive, accurate, and current inventory of allowable emissions
in the area (see, e.g., section 110(a)(2)(K)). Because the submission
of such inventories is a necessary adjunct of an area's attainment
demonstration (or demonstration that the area cannot practicably
attain), the emissions inventories must be received with the SIP
revision containing the demonstration (see 57 FR 13539).
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\5\ The EPA issued guidance on PM-10 emissions inventories prior
to the enactment of the Clean Air Act Amendments in the form of the
1987 PM-10 SIP Development Guideline.
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Colorado submitted an emissions inventory for base year 1989 (based
on actual emissions) and an emissions inventory for attainment year
1995 6 (based on allowable emissions). The winter 1989 and 1995
inventories are intended to represent all sources of primary PM10,
as well as all sources of the PM10 precursors (nitrogen oxides and
sulfur dioxide (NOX and SO2)). The precursor emissions are
important because filter analyses performed in conjunction with
chemical mass balance modeling indicated that a significant portion
(35%) of the PM10 monitored consisted of secondary ammonium
sulfate and nitrate.
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\6\ See footnote 3.
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The wintertime 1989 base year inventory identified re-entrained
road dust (44%), wood burning (18%) and street sanding (8.5%) as the
principal contributors to primary PM10. Other primary PM10
sources include unpaved road dust contributing 12.5% and point sources
contributing 4% of the total primary PM10 inventory.
The secondary emissions, 35% of total PM10, are divided
between NOX and SO2. For wintertime 1989 base year NOX,
stationary sources contribute 40% of the total NOX emissions with
vehicle exhaust at 41% and natural gas from residential and commercial
usages at 11%. The prime sources of SO2 include stationary sources
with 92% of the total SO2 emissions and vehicle exhaust with 5%.
The wintertime 1995 attainment year inventory identified re-
entrained road dust (47%), wood burning (6%) and street sanding (7%) as
the principal contributors to primary PM10. Other primary
PM10 sources include unpaved road dust contributing 12% and point
sources contributing 9% of the total primary PM10 inventory.
The secondary emissions, 35% of total PM10, are divided
between NOX and SO2. For the wintertime 1995 attainment year
NOX, stationary sources contribute 44% of the total NOX
emissions with vehicle exhaust at 38% and natural gas from residential
and commercial usages at 10%. The prime sources of SO2 include
stationary sources with 97% of the total SO2 emissions and vehicle
exhaust with 1%.
EPA is proposing to approve the emissions inventory because it is
accurate and comprehensive, and provides a sufficient basis for
determining the adequacy of the attainment demonstration for the Denver
area consistent with the requirements of sections 172(c)(3) and
110(a)(2)(K) of the act. For further details see the Technical Support
Document (TSD) prepared for this action which is available for public
review at the address indicated at the beginning of this notice.
3. RACM (Including RACT)
As noted, initial moderate PM10 nonattainment areas must
submit provisions to assure that RACM (including RACT) are implemented
no later than December 10, 1993 (see sections 172(c)(1) and
189(a)(1)(C)). The General Preamble contains a detailed discussion of
EPA's interpretation of RACM (including RACT) (see 57 FR 13539-13545
and 13560-13561).
On July 25, 1994, EPA took final rulemaking action to approve
controls found in the June 7, 1993 Denver PM10 SIP submittal. That
action approved controls for their limited ability to strengthen the
SIP under sections 110(k)(3) and 301(a) of the Act. In that rulemaking
action, EPA found that the control measures appeared to satisfy the
specific requirements to implement RACM/RACT. However, due to the
State's need to fulfill a commitment to revise two stationary source
permits and due to the question of whether the attainment demonstration
was reasonable in light of questions regarding precursor contributions
to the attainment demonstration, EPA did not take definitive action to
find that the measures met the RACM/RACT requirements. Following the
June 1993 submittal, the State fulfilled the commitment, and EPA
determined that the precursor contribution to the PM10 levels was
underestimated.
The March 30, 1995 SIP submittal contains an evaluation of the
emissions reduction programs found in the June 1993 submittal, and
enhancements to those programs needed to demonstrate attainment and
maintenance. These enhancements were needed due to the underestimation
of the precursor contribution in the June 1993 demonstration. EPA is
now able to make RACM/RACT determinations for the control programs
contained in the March 1995 SIP submittal.
The March 30, 1995 SIP revision identifies four source categories
as major contributors to the PM10 nonattainment problem in Denver.
The following Table identifies the source categories and their
respective control measures implemented across the nonattainment area,
as well as measures exclusive to the Central Business District (CBD).
Generally, the CBD is where exceedances of the standard have occurred
and, therefore, is an important focus for the implementation of some of
the control measures.
When comparing the 1989 base year actual emissions inventory to the
1995 attainment year allowable emissions inventory for the entire
nonattainment area there is actually an increase in PM10
emissions. This is due to the fact that the suburban area of Denver has
grown over the past several years. Nevertheless, the State demonstrates
timely attainment area-wide even with these emissions increases.
[[Page 51634]]
To show timely attainment of the standard, woodburning controls,
street sanding/sweeping controls and reductions in stationary source
emissions had to be developed. As a result of these controls, as well
as the other control strategies (described further in the TSD), the CBD
shows a total 9.45% reduction (269.7 tons/year) from base year 1989
(actuals) to the 1995 attainment year (allowables), and demonstrates
timely attainment of the standard.
Denver PM10 SIP Control Strategies
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Source category Control strategy
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Residential Wood Burning (Area-wide controls)......................... 1. High pollution day wood burning
restriction program and revisions.
2. Requirements that new or remodeled
construction use a new cleaner wood
burning approach.
3. Voluntary conversion program from
existing wood burning to cleaner
burning technology.
4. New stove/fireplace insert
certification.
5. Prohibit resale of used, uncertified
stoves.
Street Sanding and Sweeping of Paved Streets (Area-wide and CBD 1. Material specifications for street
controls). sanding material.
2. Local management plans.
3. Enhanced street sanding and sweeping
in Central Denver and the I-25
Corridor.
4. City/County of Denver and CDOT reduce
amount of street sanding material in
the Denver CBD and central Denver by
50% from base year 1989.
Stationary Sources (Area-wide controls)............................... 1. Emission limits at Purina Mills.
2. Emission limits at Electron
Corporation.
3. Regulation limits for precursor
emissions at Cherokee, Arapahoe and
Valmont power plants.
4. Emission limits for NOX and SO2 at
Coors Glass and Coors Brewery.7
5. Emission limits at Conoco Refining.
6. Restrictions on oil use.
Mobile Sources (Area-wide controls)................................... 1. Light duty vehicle, light duty truck
NOX standards.
2. Urban bus particulate standards.
3. Diesel fuel sulfur limits.
4. Regulation #11 Enhanced I/M.
5. Regulation #12 Diesel I/M.
6. Regulation #13 Oxy Fuels.
7. MAC light rail line.
8. Express bus service from Denver to
new Denver International Airport.
9. CommuterCheck program.
10. ECOPass.
11. CU Student bus pass.
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\7\ Emission limits for Coors Glass increase, while the limits for Coors Brewery decrease. While EPA believes
these revisions to the emissions limits are acceptable for meeting RACM/RACT requirements, EPA's proposed
action herein regarding these limits does not in any manner relieve these companies of the obligation to
comply with any nonattainment NSR permitting requirements that might apply to such changes in emissions
limits.
A more detailed discussion of the individual source contributions
and their associated control measures (including available control
technology) can be found in the TSD. EPA has reviewed the State's
documentation and proposes to conclude that it adequately justifies the
control measures that will be implemented. Therefore, by this document,
EPA is proposing to approve the Denver PM10 plan submitted by the
Governor on March 30, 1995, as meeting the RACM (including RACT)
requirement.
4. Demonstration
As noted, the initial moderate PM10 nonattainment areas must
submit a demonstration (including air quality modeling) showing that
the plan will provide for attainment as expeditiously as practicable
but no later than December 31, 1994 (see section 189(a)(1)(B) of the
Act). Alternatively, the State must show that attainment by December
31, 1994, is impracticable. Colorado conducted an attainment
demonstration using dispersion modeling for primary PM10 and
proportional rollback modeling analysis for secondary particulate
concentrations for the Denver area. This demonstration indicates that
the NAAQS for PM10 will be attained in Denver by December 31,
1994, at a modeled concentration of 147.8 g/m3 and will
be maintained in future years. The 24-hour PM10 NAAQS is 150
g/m3, and the standard is attained when the expected
number of days per calendar year with a 24-hour average concentration
above 150 g/m3 is equal to or less than one (see 40 CFR
50.6).
There have never been exceedances of the annual average PM10
standard in the Denver metro area; therefore, an attainment analysis of
the annual standard was not performed. Finally, EPA believes that the
controls adopted to protect the 24-hour standard are sufficient to
maintain the annual standard. The control strategy used to achieve the
24-hour standard is summarized in the section above titled ``RACM
(including RACT).'' For a more detailed description of the attainment
demonstration and the control strategy, see the TSD accompanying this
document.
5. PM10 Precursors
The control requirements which are applicable to major stationary
sources of PM10, also apply to major stationary sources of
PM10 precursors unless EPA determines such sources do not
contribute significantly to PM10 levels in excess of the NAAQS in
that area (see section 189(e) of the Act). The General Preamble
contains guidance addressing how EPA intends to implement section
189(e) (57 FR 13539-13540 and 13541-13542).
An analysis of air quality and emissions data for the Denver
[[Page 51635]]
nonattainment area demonstrates that exceedances of the PM10 NAAQS
are attributable both to direct particulate matter emissions from wood
burning, street sanding/sweeping, mobile sources, and stationary
sources, and to mobile and stationary source precursor emissions.
Further, the dispersion and chemical mass balance modeling for base
year 1989 identified precursor emissions of NOX and SO2 as
contributing 35% to the ambient PM10 concentration. Consequently,
major stationary sources of these precursors are required to comply
with all control requirements of the PM10 nonattainment area plan
which apply to major stationary sources of PM10 (i.e, RACT for
moderate areas and NSR permitting control requirements).
As indicated above, EPA proposes to approve the State's submittal
as meeting RACM (including RACT). EPA's proposed approval of RACT
extends to those control requirements applicable to the major
stationary sources of PM10 precursors. Specifically, EPA proposes
to find that the emission limits and restrictions on oil use are
reasonable and approvable because they provide for timely attainment of
the PM10 NAAQS. Additionally, these measures will help ensure
maintenance of the NAAQS.
On August 25, 1994, Colorado submitted NSR provisions for
precursors in the Denver nonattainment area. EPA is acting on that SIP
submittal in a separate notice. Further discussion of the data and
analyses addressing the contribution of precursor sources in this area
is contained in the TSD accompanying this document.
6. Quantitative Milestones and Reasonable Further Progress (RFP)
The PM10 nonattainment area plan revisions demonstrating
attainment must contain quantitative milestones which are to be
achieved every three years until the area is redesignated attainment
and which demonstrate RFP toward attainment by December 31, 1994 (see
sections 171(1) and 189(c) of the Act). RFP is defined in section
171(1) as such annual incremental reductions in emissions of the
relevant air pollutant as are required by Part D or may reasonably be
required by the Administrator for the purpose of ensuring attainment of
the applicable NAAQS by the applicable date.
In considering the quantitative milestones and RFP provisions for
this initial moderate area, EPA has reviewed the attainment
demonstration for the area to determine the nature of any milestones
necessary to ensure timely attainment and whether annual incremental
reductions should be required in order to ensure attainment of the
PM10 NAAQS by December 31, 1994 (see section 171(1) of the Act).
EPA is proposing to approve the PM10 SIP for the Denver
nonattainment area as demonstrating attainment by December 31, 1994.
EPA is also proposing to approve the submittal as satisfying the
initial quantitative milestone requirement 8 and proposes to find
that the emissions reductions projected meet RFP.
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\8\ The emissions reduction progress made prior to the
attainment date of December 31, 1994 (only 46 days beyond the
November 15, 1994 milestone date) will satisfy the first milestone
requirement (57 FR 13539). The de minimis timing differential makes
it administratively impracticable to require separate milestone and
attainment demonstrations.
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Further, the State has demonstrated that continued maintenance of
the standard will be achieved through implementation of the control
measures found in the SIP. The State's roll-forward analysis indicated
that the highest predicted concentration is 149.9 g/m3.
Concentrations over 150 g/m3 violate the NAAQS.
The assurance that the initial milestone and reasonable further
progress will be achieved is based upon the State implementing the
particular control measures contained in the SIP which are addressed in
section II. A. 3. ``RACM (including RACT)'' of this document.
Consequently, EPA is approving these control measures as meeting RACM
(including RACT) and thus is also proposing to approve the SIP as
meeting the initial milestone and reasonable further progress
requirements.
7. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and EPA (see sections 172(c)(6) and 110(a)(2)(A) of the Act
and 57 FR 13556). The EPA criteria addressing the enforceability of
SIPs and SIP revisions were stated in a September 23, 1987 memorandum
(with attachments) signed by J. Craig Potter, Assistant Administrator
for Air and Radiation, et al. (see 57 FR 13541). Nonattainment area
plan provisions must also contain a program that provides for
enforcement of the control measures and other elements in the SIP (see
section 110(a)(2)(C) of the Act).
The State of Colorado has a program that will ensure that the
measures contained in the SIP are adequately enforced. In addition to
the specific authority cited under descriptions of the control
measures, the State's Attorney General has provided an opinion citing
the authorities contained in the Colorado Air Pollution Prevention and
Control Act which provide the State with the authority to enforce state
air regulations against local entities, and enforce local air pollution
requirements when local entities fail to do so. This is consistent with
section 110(a)(2)(E) of the Act.
The Air Pollution Control Division (APCD) has the authority to
implement and enforce all emission limitations and control measures
adopted by the AQCC, as provided for in C.R.S. 25-7-111. In addition,
C.R.S. 25-7-115 provides that the APCD shall enforce compliance with
the emission control regulations of the AQCC, the requirements of the
SIP, and the requirements of any permit. Civil penalties of up to
$15,000 per day per violation are provided for in C.R.S. 25-7-122 for
any person in violation of these requirements, and criminal penalties
are provided for in C.R.S. 25-7-122.1. Thus, the APCD has adequate
enforcement capabilities to ensure compliance with the Denver PM10
SIP and the State-wide regulations.
The particular control measures contained in the SIP apply to the
types of activities identified earlier and in the following discussion,
including: residential wood burning; street sanding/sweeping; mobile
sources; and reductions of emissions from stationary sources. As
explained in the following discussion, the control measures are
enforceable. Accordingly, EPA is proposing to approve the control
measures. The TSD contains further information about enforceability
requirements, including a discussion of the personnel and funding
intended to support effective implementation of the control measures.
a. Residential Wood Burning Controls. 1. High Pollution Day Wood
Burning Restrictions: Regulation No. 4 requires the APCD to implement
and enforce wood burning restrictions in areas which did not have local
enforceable ordinances before January 1, 1990. To ensure proper
enforcement, the APCD contracts with local health departments to
execute the enforcement provisions of the Regulation. In communities
where local ordinances regulating wood burning were in place prior to
January 1, 1990, the local government is responsible for enforcement of
its ordinance, including issuing fines, penalties, warnings, and
conducting inspections. (Local ordinances cover approximately 85% of
the Denver metro area.) The State has authority to enforce local
ordinances in place prior to January 1, 1990, if local governments fail
to do so.
2. Clean Wood Burning Technology for New or Remodeled Construction:
Beginning on January 1, 1993, state law
[[Page 51636]]
requires that new or remodeled fireplaces in new or remodeled
structures must be gas appliances, electric devices, or low emissions
fireplace inserts meeting the EPA Phase II New Source Performance
Standard (NSPS) or State adopted Phase III requirements. (EPA's Phase
II and Colorado's Phase III requirements are equivalent.) Under the
law, the fireplace restrictions must be adopted as building code
revisions by each local government and be enforced through the normal
code enforcement programs of each community. This requirement became
effective on January 1, 1993.
3. Encourage Conversion of Existing Wood Burning Units to Cleaner
Burning Technology: Legislation passed in 1992, required that the lead
air quality planning organization (the Regional Air Quality Council)
develop and implement a financial incentive program to provide
subsidies toward the purchase of new cleaner technologies.
Additionally, retailers must report the number of purchases of
certified stoves or inserts, and gas or electric fireplaces to the
Colorado Department of Revenue and submit a $1 fee for each
certification of conversion. Under the program, the Department of
Revenue is responsible for tracking conversions to cleaner
technologies, reported by retailers, and reporting the status of the
conversion program to the AQCC.
4. New Stove and Fireplace Insert Certification: State law
prohibits the resale and/or installation of any uncertified wood
burning device in the metro Denver area after January 1, 1993. The law
is enforced through the building code provisions of the various local
governments within the Denver area.
b. Street Sanding and Cleaning Controls. 1. Material Specifications
for Street Sanding Material: Regulation No. 16 sets specifications for
fines and durability of new and recycled sanding materials, and
requires that sand providers and users conduct testing and report the
quality of sanding materials and amounts used during the winter season
to the APCD. The Regulation is enforced through authority provided to
the State by statute.
2. Local Management Plans: Regulation No. 16 requires State and
local agencies that apply street sand to develop and submit a plan for
reducing their use of sand by 20% from 1989 base year levels. The
agencies are required to adopt ordinances or resolutions to support the
plans, to submit the plans by September 30, 1993, and to implement the
plans by November 1, 1993. The agencies are also required to submit
annual reports to the APCD documenting the reductions in sand use
achieved through implementation of the plans. The Regulation is
enforced through authority provided to the State by statute.
3. Further Enhancements to Street Sanding and Sweeping Practices in
the Denver CBD and Central Denver Area: Regulation No. 16 also requires
that the City and County of Denver reduce the amount of street sanding
material applied to all regional arterials, principal arterials and
main arterials within the Denver CBD by a total of 50 percent from 1989
base sanding amounts for these roadways. The revision also requires
that the Colorado Department of Transportation (CDOT) increase its
reduction in applied street sanding material from 20 percent to an
equivalent 50 percent on state-maintained freeways and ramps within the
Denver CBD. CDOT and the City/County are allowed to implement an
alternative plan to achieve an equivalent reduction through increased
sweeping and use of alternative deicers and/or sanding material,
subject to review and approval by APCD. EPA will review and concur by
letter on the alternative plans prior to APCD approval. EPA will not
consider such plans valid absent EPA concurrence. The Regulation is
enforced through authority provided to the State by statute.
c. Mobile Source Emission Reduction Measures. The SIP contains a
variety of mobile source control measures included in the 1990 Clean
Air Act Amendments in addition to the street sanding and sweeping
controls. These mobile source measures include the new light-duty
vehicle, light-duty truck NOX standards, urban bus particulate
standards, and diesel fuel sulfur limitations. Particulate emission
reductions are also incorporated for three existing State programs, the
enhanced inspection and maintenance program, the diesel inspection and
maintenance program, and the oxygenated fuels program (Regulations 11,
12 and 13). These programs were developed independently from the
PM10 SIP but are included because of their particulate matter
reduction benefit. The Act-required programs are enforced by the
federal government while the State regulations are enforced by the
APCD.
The SIP also includes a number of transportation control measures
to slow growth in vehicle miles traveled. These are not measures that
were developed specifically for the SIP, but measures that are already
planned or underway in the Denver area and accounted for in the mobile
source modeling for the attainment year. These measures are assumed to
be implemented by 1995 and have been included in the transportation
modeling supporting the attainment and maintenance demonstrations. The
Regional Transportation District (RTD) is implementing these measures
through its Transit Development Plan which has been adopted by the RTD
Board of Directors.
The measures for which the SIP takes credit within the
transportation modeling include the MAC Light Rail Line and additional
express bus service to the new Denver International Airport. Also,
several programs aimed at attracting new ridership are being
implemented. These new programs include the CommuterCheck program,
ECOPass, and the CU Student Pass Program. Through the implementation of
these and other marketing programs, transit ridership is expected to
increase by 20% between 1989 and 1995. A complete description of the
measures included in the SIP is found in section VIII of the SIP.
The Act requires that all federally funded transportation measures
be included in a conforming Regional Transportation Plan and
Transportation Improvement Program (TIP). Because the implementation of
these measures must conform to the SIP, any changes to the federally
funded measures included in the attainment demonstration must go
through a conformity analysis before they can be implemented. The
existing TIP has been found to conform with the SIP.
d. Stationary Source Measures. To control emissions from stationary
sources, APCD enforces both permit limitations and regulations through
authority provided under State statute. See the discussion under
section II.D. contained in the TSD for more information on the permit
and regulation revisions at stationary sources.
Rules and controls relating to woodburning, street sanding/
cleaning, mobile sources, and stationary sources are in effect now.
Colorado has a program that will ensure that the measures contained in
the Denver PM10 SIP are adequately enforced. EPA proposes to find
that the air enforcement program is adequate. The TSD contains further
information on enforceability responsibilities, requirements, and a
discussion of the personnel and funding intended to support effective
implementation of the control measures.
8. Contingency Measures
As provided in section 172(c)(9) of the Act, all moderate
nonattainment area SIPs that demonstrate attainment must include
contingency measures (see
[[Page 51637]]
generally 57 FR 13510-13512 and 13543-13544). These measures must be
submitted by November 15, 1993, for the initial moderate nonattainment
areas. Contingency measures should consist of other available measures
that are not part of the area's control strategy. These measures must
take effect without further action by the State or EPA, upon a
determination by EPA that the area has failed to make RFP or attain the
PM10 NAAQS by the applicable statutory deadline. Colorado chose to
submit the contingency measures separately from the PM10 SIP
requirements addressed in this document. The contingency measures for
the Denver PM10 nonattainment area were initially submitted by the
Governor on December 9, 1993. However, those measures were later
incorporated into the revised March 30, 1995 PM10 SIP. Therefore,
the State developed new contingency measures, and on November 17, 1995,
the Governor submitted those measures to EPA. EPA is taking action on
the contingency measures SIP submittal in a separate rulemaking action.
B. Denver PM10 Emissions Budget
On February 16, 1995, the AQCC adopted the Denver PM10 mobile
source emissions budget into the Colorado ``Ambient Air Quality
Standards'' following a properly noticed public hearing. On July 18,
1995, the Governor submitted a SIP revising certain Chapters of the
Denver PM10 SIP submitted on March 30, 1995, to include the Denver
PM10 mobile source emissions budget.
The EPA must determine whether a submittal is complete and
therefore warrants further EPA review and action (see section 110(k)(1)
and 57 FR 13565 and EPA's completeness criteria for SIP submittals set
out at 40 CFR Part 51, Appendix V). EPA did not make its completeness
determination within six months of receiving the submission. Thus, the
submittal was deemed complete by operation of law.
The Denver mobile source PM10 emissions budgets are being used
to assess the conformity of transportation plans, transportation
improvements programs, and where appropriate, federally funded projects
for the applicable periods indicated. The Denver PM10 mobile
source emissions budget was set for 1995 (41.2 tons/day), 1996-1997 (44
tons/day), 1998-2005 (54 tons/day) and 2006 and beyond (60 tons/day).
(The State was able to demonstrate attainment and maintenance of the
PM10 standard using the 1995 and 1996-1997 PM10 mobile source
emissions budgets.) The State adopted the PM10 revisions to the
Ambient Air Standards Emissions Budget to make them state enforceable.
EPA is proposing that the PM10 emissions budgets are approvable.
(See the TSD prepared for this action for more information.)
C. Denver NOX Emissions Budget
On April 22, 1996, the Governor submitted a SIP which contained an
amendment to the Colorado ``Ambient Air Quality Standards.'' The
amendment incorporated the NOX emissions budget for the Denver
PM10 nonattainment area and was adopted by the AQCC following a
properly held public hearing on June 15, 1995.
EPA reviewed the documentation as provided in accordance with
section 110(k)(1) and 57 FR 13565 and EPA's completeness criteria for
SIP submittals set out at 40 CFR Part 51, Appendix V. EPA found the
submittal complete, and advised the Governor of that finding in a
letter on July 15, 1996.
The 1995 and beyond NOX budget of 119.4 tons per day was used
in the March 30, 1995 PM10 SIP. (The State was able to demonstrate
attainment and maintenance of the PM10 standard using the NOX
mobile source emissions budget.) The State adopted the NOX
revisions to the Ambient Air Quality Standards Emissions Budget to make
it state enforceable. EPA is proposing that the NOX emissions
budget is approvable. (See the TSD prepared for this action for more
information.)
III. Proposed Action
EPA is proposing to approve the following: the revised Denver
PM10 SIP submitted by the Governor of Colorado on March 30, 1995;
the Denver PM10 mobile source emissions budget submitted by the
Governor on July 18, 1995; and the Denver NOX mobile source
emissions budget submitted by the Governor on April 22, 1996.
The EPA is requesting comments on all aspects of this proposal. As
indicated elsewhere in this document, EPA will consider any comments
received by December 2, 1996 on the appropriateness of the proposed
approval action on the Denver PM10 SIP, the Denver PM10
mobile source emissions budget, and the Denver NOX mobile source
emissions budget.
IV. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
V. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C 603 and 604.
Alternatively, EPA may certify 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 government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under sections 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
this proposed Federal SIP approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The CAA forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427
U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
VI. 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 also determined that this proposed action does not include
a Federal mandate that may result in estimated costs of $100 million or
more to State, local, or tribal governments in the aggregate, or to the
private sector. This Federal action approves pre-
[[Page 51638]]
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result form this
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Particulate matter,
Reporting and recordkeeping requirements, Sulfur dioxide, Volatile
organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 13, 1996.
Patricia D. Hull,
Acting Regional Administrator.
[FR Doc. 96-25230 Filed 10-2-96; 8:45 am]
BILLING CODE 6560-50-P
