[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51784-51787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25465]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO48-1-7008a & CO-001-0005a; FRL-5607-6]
Clean Air Act Approval and Promulgation of PM10 State
Implementation Plan for Colorado; Telluride; Revisions to the
Maintenance Demonstration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA approves the State implementation plan (SIP) revisions for
Telluride as submitted by the Colorado Governor with a letter dated
April 22, 1996. The April 22, 1996 submittal now satisfies the State's
April 21, 1994 commitment to adopt additional control measures in
Telluride as necessary to demonstrate maintenance of the National
Ambient Air Quality Standards (NAAQS) through December 31, 1997, for
particulate matter with an aerodynamic diameter less than or equal to a
nominal 10 micrometers (PM10). Based on that commitment, EPA
conditionally approved the quantitative milestones element of the
Telluride PM10 SIP on September 19, 1994. The April 22, 1996
submittal incorporates new street sanding requirements and demonstrates
maintenance of the standard through 1997. EPA approves these revisions,
and therefore, converts its September 19, 1994 conditional approval to
a full approval.
DATES: This final rule will become effective on December 3, 1996 unless
adverse comments are received by November 4, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Copies of the State's submittal and other information are
available for inspection during normal business hours at the following
locations: Air Program, Environmental Protection Agency, Region VIII,
999 18th Street, suite 500, Denver, Colorado 80202-2405; Colorado
Department of Health, Air Pollution Control Division, 4300 Cherry Creek
Drive South, Denver, Colorado 80222-1530; and The Air and Radiation
Docket and Information Center, 401 M Street, SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Amy Platt, 8P2-A, Environmental
Protection Agency, Region VIII, (303) 312-6449.
SUPPLEMENTARY INFORMATION:
I. Background
The Telluride, Colorado area was designated nonattainment for
PM10 and classified as moderate under sections 107(d)(4)(B) and
188(a) of the Clean Air Act, upon enactment of the Clean Air Act
Amendments of 1990.\1\ See 56 FR 56694 (Nov. 6, 1991), 40 CFR 81.306
(Telluride). The air quality planning requirements for moderate PM10
nonattainment areas are set out in subparts 1 and 4 of part D, 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 Public Law No. 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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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 of the interpretations of title I advanced in this proposal
and the supporting rationale.
Those States containing initial moderate PM10 nonattainment
areas (those areas designated under section 107(d)(4)(B) of the Act)
were required to submit, among other things, the following 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 modelling) 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 three
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.
On September 19, 1994, EPA partially approved a March 1993
Telluride PM10 SIP submittal, including control measures,
technical analyses, and other Clean Air Act SIP requirements, with the
exception of the quantitative milestone element (see 59 FR 47807). EPA
conditionally approved the quantitative milestones element because the
SIP did not demonstrate maintenance of the PM10 NAAQS
[[Page 51785]]
through 1997, and therefore, it was deficient in meeting the second
quantitative milestone (November 15, 1994 through November 15, 1997).
II. This Action
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566). The Governor of
Colorado submitted revisions to the SIP for Telluride with a letter
dated March 13, 1995. The revisions addressed additional control
measures necessary to demonstrate maintenance of the PM10 NAAQS.
The March 13, 1995 submittal inadvertently incorporated an
incorrect version of a street sanding regulation, i.e., a version
differing from what the State actually adopted. Therefore, the State
was required, through its administrative procedures, to re-notice, re-
hear, and re-adopt the Telluride SIP in order to correct its error. The
result is the April 22, 1996 submittal, which completely replaces the
March 13, 1995 submittal. Therefore, this action will be specific to
the April 22, 1996 submittal.
A. Analysis of State 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 hearing.3 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.
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\3\ Also 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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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]. The EPA's completeness criteria for SIP submittals
are set out at 40 CFR part 51, appendix V. The 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 within six months after
receipt of the submission.
To entertain public comment, the State of Colorado, after providing
adequate notice, held a public hearing on August 17, 1995 to address
the Telluride PM10 SIP revision. Following the Colorado Air
Quality Control Commission (AQCC) public hearing, the AQCC adopted the
Telluride PM10 SIP revisions. The Governor of Colorado submitted
the Telluride SIP revisions to EPA with a letter dated April 22, 1996.
The SIP revisions were reviewed by EPA to determine completeness in
accordance with the completeness criteria set out at 40 CFR part 51,
appendix V. The submittal was found to be complete and a letter dated
July 12, 1996 was forwarded to the Governor indicating the completeness
of the submittal and the next steps in the review process.
2. Control Strategy
EPA approved the control measures in the Telluride moderate
PM10 nonattainment area SIP as satisfying the RACM (including
RACT) requirement on September 19, 1994 (59 FR 47807). The measures
targeted wood and coal burning. Please see that notice of final
rulemaking and associated Technical Support Document (TSD) for further
details on the specific control measures approved in the SIP.
The April 22, 1996 submittal included the addition of a new
emission control measure which outlines street sanding requirements. In
the Colorado Air Quality Control Commission State Implementation Plan-
Specific Regulation for Nonattainment Areas, adopted August 17, 1995
and effective October 30, 1995, section II.C. details street sanding
requirements for the Telluride area. Specifications for street sanding
include a 2% fines standard for all street sanding materials and
requirements for testing and reporting. In the following table, the
street sanding controls and associated emissions reductions are
outlined.
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PM10 emissions
Source Control measure reduction from base Effective date
year
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Re-entrained road dust........ Colorado Air Quality Control Commission ..................... 10/30/95
State Implementation Plan-Specific
Regulation for Nonattainment Areas,
Section II.C., Telluride Nonattainment
Area Street Sanding Requirements.
Requires that all street sanding 32% or 6550 pounds
materials equal or exceed a standard of fewer PM10 emissions/
less than 2% fines. day in 1997.
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A more detailed discussion of the street sanding control measures
can be found in the TSD. EPA has reviewed the State's documentation and
concluded that it adequately justifies the emissions reduction credit
used in the State's maintenance demonstration. The implementation of
these measures, along with the control measures that were approved in
the moderate PM10 nonattainment area SIP for Telluride on
September 19, 1994 (59 FR 47807), will result in continued maintenance
of the PM10 NAAQS through December 31, 1997. EPA approves this
regulation for street sanding requirements as part of the control
strategy for the Telluride PM10 SIP as it is necessary for
continued maintenance of the PM10 NAAQS.
3. Emissions Budget
The emissions inventory for the Telluride PM10 nonattainment
area was approved by EPA in the September 19, 1994 Federal Register (59
FR 47807). The April 22, 1996 submittal included a paragraph to clearly
denote the emissions budgets for the Telluride nonattainment area,
which are to be used for Federal conformity purposes. The emissions
budgets are determined by subtracting the mobile-source related
emission reduction credits from the 1994 and 1997 mobile source
emissions inventories. Since the State does not have mobile-source
related emission reduction credits to be applied to the 1994 mobile
source emission inventory, the 1994 emissions budget is the same as the
1994 mobile source emissions inventory and remains unchanged from EPA's
September 19, 1994 approval at 16,901 lbs. of PM10/day. However,
with the addition of the street sanding measure described above and
being approved by EPA today, the 1997 budget is now established at
14,687 lbs. of PM10/day.
[[Page 51786]]
4. Revision to the Maintenance Demonstration (Including Air Quality
Modelling)
As noted, the initial moderate PM10 nonattainment areas were
required to submit a demonstration (including air quality modelling)
showing that the plan will provide for attainment as expeditiously as
practicable (see section 189(a)(1)(B) of the Act). The 24-hour
PM10 NAAQS is 150 micrograms/cubic meter (g/m\3\), and
the standard is attained when the expected number of days per calendar
year with a 24-hour average concentration above 150 g/m\3\ is
equal to or less than one (see 40 CFR 50.6). The annual PM10 NAAQS
is 50 g/m\3\, and the standard is attained when the expected
annual arithmetic mean concentration is less than or equal to 50
g/m\3\ (id.).
EPA approved Colorado's March 17, 1993 attainment demonstration for
the Telluride moderate PM10 nonattainment area on September 19,
1994 (59 FR 47807-47813). The 24-hour attainment value (i.e., the
ambient PM10 air quality levels achieved by December 31, 1994) was
142.7 g/m\3\. For a more detailed description of that
attainment demonstration and the related control strategies, see EPA's
September 19, 1994 final rulemaking (59 FR 47807) and the associated
TSD.
However, the March 1993 Telluride nonattainment area plan did not
show maintenance of the NAAQS through 1997. The 1997 24-hour PM10
concentration was predicted to be 180.1 g/m\3\, which is above
the 24-hour NAAQS of 150 g/m\3\. In the April 22, 1996
submittal, the maintenance demonstration was revised to include the
emissions reduction credit for the additional control measure involving
street sanding requirements.
With the revisions, the 24-hour maintenance value is 135.0
g/m\3\ (45.1 g/m\3\ lower than without the revision
and below the PM10 NAAQS). The revised demonstration shows that
the control strategies (approved on September 19, 1994 at 59 FR 47807),
along with the new street sanding requirements, are adequate to ensure
continued maintenance of the 24-hour PM10 NAAQS in Telluride
through the maintenance year of 1997.
The SIP now adequately demonstrates continued maintenance of the
PM10 NAAQS in Telluride. For a more detailed description of the
maintenance demonstration revisions, please see the TSD for this
document.
5. Technical Analyses
With the April 22, 1996 submittal, the Governor submitted the
emissions inventory and chemical mass balance analyses that EPA had
previously approved in its September 19, 1994 rulemaking action (59 FR
47807). Because EPA previously approved the Telluride emissions
inventory and chemical mass balance analyses, EPA is not acting on
these elements at this time.
6. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and EPA (see sections 172(c)(6), 110(a)(2)(A) 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) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). Nonattainment area plan provisions
also must contain a program to provide for enforcement of control
measures and other elements in the SIP (see section 110(a)(2)(C)).
The specific control measures contained in this April 22, 1996
revision to the SIP are addressed above in Section II.A.3., ``Control
Strategy.'' The Colorado Air Quality Control Commission State
Implementation Plan-Specific Regulation for Nonattainment Areas,
Section II.C., Telluride Nonattainment Area Street Sanding
Requirements, became effective on October 30, 1995. This regulation
outlines street sanding requirements for all street sanding materials
used in the Telluride nonattainment area and details testing and
recordkeeping requirements. All street sanding material used within the
Telluride nonattainment area must equal or exceed a standard of less
than 2% fines. All materials will be tested to ensure compliance with
this standard, and the test results must be provided to the purchaser
upon delivery.
By June 1 of each year, beginning in 1997, each user of street
sanding materials must prepare and submit a report to the Division
which details (1) the total amount of sanding material (both new and
recycled) used; (2) the total amount of salt or other de-icing
chemicals used; (3) the number of lane miles typically sanded during
each deployment; and (4) the total number of deployment episodes. By
September 30 of each year, beginning in 1996, each user of street
sanding materials must prepare and submit a report to the Division
which provides a copy of all independent tests performed and the name
and address of all suppliers of street sanding material along with a
full description of the location of the supplier's aggregate pit from
which all material was supplied.
The State of Colorado has a program that will ensure that the
measures contained in the SIP are adequately enforced. The Colorado Air
Pollution Control Division (APCD) has the authority to implement and
enforce all control measures adopted by the AQCC. In addition, Colorado
statute provides that the APCD shall enforce against any ``person'' who
violates the emission control regulations of the AQCC, the requirements
of the SIP, or the requirements of any permit. The definition of
``person'' includes any ``municipal corporation, county, city and
county or other political subdivision of the State,'' such as the Town
of Telluride and San Miguel County. Civil penalties of up to $15,000
per day per violation are provided for in the State statute for any
person in violation of these requirements, and criminal penalties are
also provided for in the State statute.
Thus, EPA believes that the control measures contained in the SIP
revision for Telluride are enforceable and that the APCD has adequate
enforcement capabilities to ensure compliance with those control
measures. The TSD contains further information on enforceability
requirements and a discussion of the personnel and funding intended to
support effective implementation of the control measures.
III. Final Action
EPA is approving Colorado's SIP revision, submitted by the Governor
with a letter dated April 22, 1996, for the Telluride moderate
PM10 nonattainment area. This submittal addressed revisions to the
maintenance demonstration to incorporate emissions reductions credit
for the new street sanding requirements. The SIP now adequately
demonstrates continued maintenance of the PM10 NAAQS in Telluride
through 1997; therefore, EPA converts its September 19, 1994
conditional approval (59 FR 47807) to a full approval.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective December 3, 1996 unless, by November 4, 1996, adverse or
critical comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent notice that will withdraw
[[Page 51787]]
the final action. All public comments received will be addressed in a
subsequent final rule based on this action serving as a proposed rule.
EPA will not institute a second comment period on this action. Any
parties interested in commenting on this action should do so at this
time. If no such comments are received, the public is advised that this
action will be effective on December 3, 1996.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
IV. Administrative Requirements
A. 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.
B. Regulatory Flexibility Act
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 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
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 Act, preparation of a regulatory 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. E.P.A., 427 U.S. 246,
256-66 (1976); 42 U.S.C. 7410(a)(2).
C. 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 the approval action promulgated 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 proposes to
approve pre-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 from
this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. 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 December 3, 1996. 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: August 29, 1996.
Patricia D. Hull,
Acting Regional Administrator.
40 CFR Part 52 is amended as follows:
1. The authority citation for part 52 continues to read as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.320 is amended by adding paragraph (c)(75) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(75) The Governor of Colorado submitted revisions to the PM10
moderate nonattainment area State Implementation Plan (SIP) for
Telluride, Colorado with a letter dated April 22, 1996. The submittal
was made to satisfy the State's commitment to adopt additional control
measures necessary to demonstrate continued maintenance of the
PM10 National Ambient Air Quality Standards through 1997. Due to
the satisfaction of this commitment, the SIP now adequately meets the
quantitative milestone requirement.
(i) Incorporation by reference.
(A) Colorado Air Quality Control Commission State Implementation
Plan-Specific Regulation for Nonattainment Areas, 5 CCR 1001-20,
Section II.C., Telluride Nonattainment Area Street Sanding
Requirements, adopted August 17, 1995 and effective October 30, 1995.
[FR Doc. 96-25465 Filed 10-3-96; 8:45 am]
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