[Federal Register Volume 59, Number 239 (Wednesday, December 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30608]
[[Page Unknown]]
[Federal Register: December 14, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO36-4-6305a; FRL-5117-6]
Clean Air Act Approval and Promulgation of PM10 Contingency
Measure Plans for Canon City and Lamar, CO
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA approves the contingency measures submitted by the State
of Colorado on December 9, 1993 as a revision to the State
Implementation Plan (SIP), for the moderate nonattainment areas of
Canon City and Lamar for particulate matter with an aerodynamic
diameter less than or equal to a nominal 10 micrometers (PM10).
The submittal was made in accordance with the requirements for
contingency measures specified under section 172(c)(9) of the Clean Air
Act (Act).
DATES: This final rule will be effective February 13, 1995 unless
notice is received by January 13, 1995 that someone wishes to submit
adverse comments. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Comments should be addressed to Vicki Stamper, 8ART-AP, at
the EPA Regional Office listed. Copies of the State's submittal and
other information are available for inspection during normal business
hours at the following location: Environmental Protection Agency,
Region VIII, Air Programs Branch, 999 18th Street, suite 500, Denver,
Colorado 80202-2466; and Air Pollution Control Division, Colorado
Department of Health, 4300 Cherry Creek Drive South, Denver, Colorado,
80222-1530.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, Environmental
Protection Agency, Region VIII, Air Programs Branch, 999 18th Street,
suite 500, Denver, Colorado, 80202-2466, (303) 293-1765.
SUPPLEMENTARY INFORMATION:
I. Background
The cities of Canon City and Lamar, Colorado were 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 (1990 Amendments).\1\ (See 56 FR 56694, November 6,
1991; 40 CFR 81.306 (specifying nonattainment designation for Canon
City and Lamar)). The air quality planning requirements for moderate
PM10 nonattainment areas are set out in subparts 1 and 4 of part D
of title I of the Act. 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 of the interpretations of title
I advanced in this action and the supporting rationale.
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\1\The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Pub. L. 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.
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Those states containing initial moderate PM10 nonattainment
areas (i.e., those areas designated nonattainment for PM10 under
section 107(d)(4)(B) of the Act) were required to submit several
provisions by November 15, 1991. These provisions are described in the
Federal Register documents approving the Canon City PM10 SIP (59
FR 68036, December 23, 1993) and the Lamar PM10 SIP (59 FR 29732,
June 9, 1994). Such States were also required to submit contingency
measures by November 15, 1993, which become effective without further
action by the State or EPA, upon a determination by EPA that the area
has failed to achieve reasonable further progress (RFP) or to attain
the PM10 National Ambient Air Quality Standards (NAAQS) by the
applicable statutory deadline. (See section 172(c)(9) of the Act and 57
FR 13510-13512 and 13543-13544.) The State submitted PM10
contingency measures for the Canon City and Lamar PM10
nonattainment areas on December 9, 1993. The State's December 9, 1993,
submittal also contained contingency measures and some additional
control measures for the State's other PM10 nonattainment areas.
EPA will take action on those measures in separate Federal Register
documents.
II. This Action
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566). On December 9, 1993,
the Governor of Colorado submitted revisions to the Colorado State SIP.
Included in this submittal were PM10 contingency measures for
Canon City and Lamar intended to satisfy the requirements for
contingency measures specified under section 172(c)(9) of the Act.
In this action, EPA is granting approval of the PM10
contingency measures for the cities of Canon City and Lamar, Colorado,
that were due on November 15, 1993, and submitted by the State on
December 9, 1993. See section 110(k)(3) of the Act. EPA believes that
the PM10 contingency measures submitted for Canon City and Lamar
meet the applicable requirements of the Act.
A. Analysis of State Submission
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.\2\ 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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\2\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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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). 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 six months after receipt
of the submission.
The State of Colorado, after providing adequate notice, held a
public hearing on November 12, 1993, to entertain public comment on the
contingency measures for Canon City and Lamar. After considering oral
comments made during the hearing and written comments submitted prior
to the hearing, the contingency measures were approved and adopted by
the Colorado Air Quality Control Commission (AQCC). On December 9,
1993, the Governor of Colorado submitted the contingency measures to
the EPA. After reviewing the submittal for conformance with the
completeness criteria in 40 CFR part 51, appendix V, EPA sent a letter
to the Governor of Colorado on February 15, 1994, declaring the
submittal to be administratively and technically complete.
B. The Contingency Measures
Section 172(c)(9) of the Act, as amended, requires that
nonattainment area SIPs provide for the implementation of specific
measures, termed contingency measures, if an area fails to timely
attain the NAAQS or make RFP. Section III(C)(3) of the General Preamble
further explains that contingency measures should consist of other
available control measures, beyond those necessary to meet the core
moderate area control requirement to implement reasonably available
control measures (RACM) (see section 172(a)(1)(c) of the Act) and,
therefore, beyond those reasonably required to expeditiously attain the
standards. (See 57 FR 13543.)
The State's regulation provides that the contingency measures for
Canon City and Lamar described in sections (i) and (ii) below,
represent measures that are in addition to those necessary to meet RACM
and can be implemented at any time prior to EPA's determination that
either area has failed to attain the PM10 NAAQS or make RFP. Early
implementation of the contingency measures will not result in the
requirement to implement additional moderate PM10 nonattainment
area contingency measures if the area eventually is determined to fail
to attain the PM10 NAAQS or make RFP. In EPA's judgement, it would
not be reasonable to penalize the State for taking the precautionary
air quality management step of accelerating the implementation of
contingency measures. However, additional ``serious area'' contingency
measures may be necessary if the area is reclassified as a serious
nonattainment area.
Section 172(c)(9) of the Act specifies that contingency measures
shall ``take effect * * * without further action by the State, or the
[EPA] Administrator.'' EPA has interpreted this latter requirement [in
the General Preamble (at 57 FR 13512)] to mean that no further
rulemaking activities by the State or EPA would be needed to implement
the contingency measures. In general, EPA expects all actions, needed
to affect full implementation of the contingency measures, to occur
within 60 days after EPA notifies the State of its failure to timely
attain the NAAQS or make RFP.
EPA recognizes that certain actions, such as notification of
sources, modification of permits, etc., may be needed before some
measures could be implemented. However, States must show that their
contingency measures can be implemented with minimal further
administrative action on their part and with no additional rulemaking
actions such as public hearings or legislative review.
The Act, as amended in 1990, did not set a date certain for the
submission of contingency measures. Rather, section 172(b) of the Act
authorized EPA to establish a date for submission, extending no later
than 3 years from the area's nonattainment designation. EPA established
such a date for those areas designated nonattainment for PM10 on
November 15, 1990 by operation of law upon enactment of the 1990
Amendments. That is, in section III(C)(3) of the General Preamble, EPA
established a schedule that calls for the submittal of contingency
measures for initial PM10 moderate nonattainment areas no later
than November 15, 1993. (See 57 FR 13543.)
The PM10 contingency measures for Canon City and Lamar were
developed by their respective local governments and by the Colorado Air
Pollution Control Division (APCD). Input from the Colorado Department
of Transportation, the Colorado Attorney General's Office, and the EPA
were utilized in further developing the measures.
(i) Contingency Measures for Canon City
The City of Canon City selected street sweeping as the contingency
measure to reduce fugitive dust emissions. According to Section V. of
the State regulation entitled ``Nonattainment Areas'' adopted on
November 12, 1993, if EPA makes a determination that the Canon City
nonattainment area has failed to attain the PM10 NAAQS or make RFP
in reducing emissions, the City of Canon City must sweep specified
roadways to which street sanding materials are applied. The street
sweeping efforts will entail sweeping streets which are regularly
sanded throughout the winter season within four days of each winter
street sanding deployment.
(ii) Contingency Measures for Lamar
Of a list of 14 different fugitive dust control measures from which
contingency measures could be selected, the State selected and
developed regulations for two: a) stabilize and hard surface some of
the remaining dirt/gravel streets throughout the City of Lamar, and b)
street sweeping of the main streets after sanding events.
According to Section IV. of the State's nonattainment area
regulation adopted on November 12, 1993, if EPA makes a determination
that the Lamar nonattainment area has failed to attain the PM10
NAAQS or make RFP in reducing emissions, the City of Lamar must chip-
seal pave 3 miles of unpaved dirt road within the city limits. The
chip-seal paving must be completed as soon as possible, but no later
than the end of the first complete paving season following EPA's
determination that the area failed to attain the PM10 NAAQS or
make RFP. (``Paving season'' is defined as that portion of the year
when weather conditions permit the chip-seal paving of the roads).
Furthermore, upon determination by EPA that the Lamar nonattainment
area has failed to attain the PM10 NAAQS or make RFP, the
regulation requires the City of Lamar to sweep the ``Snow Removal
Route'' identified in the State's nonattainment area regulation. Each
traffic lane of the specified roadways must be swept within four days
of the roadways becoming free and clear of snow and ice following each
street sanding deployment, as weather and street conditions permit. In
addition to this, each traffic lane of the specified roadways must be
swept within four days following each high wind event that occurs
between March 1 and May 31 of each year, as weather and street
conditions permit. The street sweeping measure must be implemented
within 2 months following EPA's determination that the area failed to
attain the PM10 NAAQS or make RFP.
Details of the contingency measure programs are included in the
Technical Support Document (TSD) for the Canon City and Lamar
contingency plans. The December 9, 1993 submittal included data showing
the benefits of the implementation of the contingency measures. In
general, the contingency measures for Canon City are expected to
provide 15.56 pounds per day (lbs/day) PM10 emissions reduction
and, for Lamar, 79.9 lbs/day PM10 emissions reduction. These data
are tabulated in the TSD, which is available for review at the EPA
address identified at the beginning of this notice.
C. Evaluation
With respect to PM10, section III(C)(3) of the General
Preamble recommends the emission reductions which the implementation of
contingency measures should achieve. The General Preamble suggests,
``contingency emissions reductions should be approximately equal to the
emissions reductions necessary to demonstrate RFP for one year.'' Thus,
reductions equal to 25% of the total emissions reductions are
appropriate for a moderate nonattainment area since the control
strategy must generally be implemented within a three to four year
period between SIP development and the attainment date, and since RFP
generally requires annual incremental reductions in emissions to attain
the standards.
For the Canon City and Lamar nonattainment areas, this 25%
reduction is not required because emission reductions were not
necessary to demonstrate attainment and maintenance of the PM10
NAAQS. The design value for Canon City is 93 g/m\3\, and for
Lamar, 101 g/m\3\. Due to these low design values, these areas
were able to demonstrate attainment and maintenance of the NAAQS
without the adoption of control measures. Contingency measures are
still necessary for the area, however, so that some degree of emission
reductions will occur if the area fails to attain the PM10 NAAQS,
and is redesignated as a serious nonattainment area.
D. 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) 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) of the Act). The specific measures contained in the Canon
City and Lamar contingency plans are addressed above in section B.
The APCD has the authority to implement and enforce all emission
limitations and control measures adopted by the AQCC, as provided for
in Colorado Revised Statutes (CRS) 25-7-111. In addition, CRS 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 CRS 25-7-122 for any person in
violation of these requirements, and criminal penalties are provided
for in CRS 25-7-122.1. Thus, the APCD has adequate enforcement
capabilities to ensure compliance with the Canon City and Lamar
PM10 contingency measures.
III. Final Action.
In this final action, EPA is announcing its approval of the
contingency measures for Canon City and Lamar, Colorado moderate
PM10 nonattainment areas, and believes that the State has
adequately met the Federal requirements.
EPA is also correcting 40 CFR 52.332 in this notice to indicate
that the PM10 contingency measures for Pagosa Springs, which were
also submitted on December 9, 1993, have been approved by EPA. EPA
approved the Pagosa Springs contingency measures, along with the
PM10 attainment plan for the area, on May 19, 1994 (59 FR 26126),
and inadvertently neglected to indicate in the amendatory language for
40 CFR 52.332 that the State had also submitted approvable PM10
contingency measures for Pagosa Springs.
Also in this notice, EPA is amending 40 CFR 52.329 regarding
Colorado's nonattainment area new source review (NSR) program
approvals, to reflect two recent EPA rulemaking actions. Specifically,
on August 18, 1994, EPA only partially approved the NSR programs for,
among others, the Aspen and Telluride moderate PM10 nonattainment
areas, because the State had not submitted NSR rules for sources of
PM10 precursors in these areas and because EPA had not yet
promulgated findings that sources of PM10 precursors did not
contribute significantly PM10 exceedances in these areas. (See 59
FR 42505.) However, EPA has since promulgated findings that stationary
sources do not contribute significantly to exceedances of the PM10
NAAQS in both the Aspen and the Telluride PM10 nonattainment areas
(see, respectively, 59 FR 47092, September 14, 1994, and 58 FR 47809,
September 19, 1994). In those two notices, EPA declared those areas to
have fully approved NSR programs based on those findings. Therefore,
EPA is amending 40 CFR 52.329 to reflect that the State has fully
approved NSR programs for the Aspen and Telluride moderate PM10
nonattainment areas.
The 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, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. Under the procedures
established in the May 10, 1994 Federal Register (59 FR 24054), this
action will be effective February 13, 1995 unless, by January 13, 1995,
adverse or critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The 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 February 13, 1995.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to any SIP shall be considered
separately in light of specific technical, economic, and environmental
factors, and in relation to relevant statutory and regulatory
requirements.
The OMB has exempted these actions from review under Executive
Order 12866.
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 a substantial number of
small entities affected. Moreover, due to the nature of the Federal-
state relationship under the Clean Air 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).
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 13, 1995. 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 Act).
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: November 25, 1994.
Jack W. McGraw,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(64) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(64) On December 9, 1993, the Governor of Colorado submitted
PM10 contingency measures for the moderate nonattainment PM10
areas of Canon City and Lamar, Colorado. The submittal was made to
satisfy the moderate PM10 nonattainment area requirements for
contingency measures due for Canon City and Lamar on November 15, 1993.
(i) Incorporation by reference.
(A) Colorado Air Quality Control Commission Nonattainment Area
Regulation, Section IV. ``Lamar Nonattainment Area,'' and Section V.
``Canon City Nonattainment Area--PM-10,'' adopted on November 12, 1993,
and effective December 30, 1993.
3. Section 52.329 is amended by revising paragraph (a) to read as
follows:
Sec. 52.329 Rules and regulations.
(a) On January 14, 1993, the Governor of Colorado submitted
revisions to the State's nonattainment area new source review
permitting regulations to bring the State's regulations up to date with
the 1990 Amendments to the Clean Air Act. With these revisions, the
State's regulations satisfy the part D new source review permitting
requirements for the following nonattainment areas: the Canon City,
Lamar, Pagosa Springs, Aspen, and Telluride moderate PM-10
nonattainment areas, the Denver/Metro Boulder, Longmont, Colorado
Springs, and Fort Collins moderate carbon monoxide nonattainment areas,
the Greeley not classified carbon monoxide nonattainment area, and the
Denver transitional ozone nonattainment area.
* * * * *
4. Section 52.332 is amended by adding paragraph (d) to read as
follows:
Sec. 52.332 Moderate PM10 Nonattainment Area Plans.
* * * * *
(d) On December 9, 1993, the Governor of Colorado submitted
PM10 contingency measures for the moderate PM10 nonattainment
areas of Canon City, Lamar, and Pagosa Springs. The submittal was made
to satisfy the moderate PM10 nonattainment area requirements for
contingency measures due for Canon City, Lamar, and Pagosa Springs on
November 15, 1993.
[FR Doc. 94-30608 Filed 12-13-94; 8:45 am]
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