[Federal Register Volume 62, Number 46 (Monday, March 10, 1997)]
[Rules and Regulations]
[Pages 10690-10700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5765]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[CO-001-0011; CO-001-0012; CO-001-0013; CO-001-0014; FRL-5692-3]
Clean Air Act Approval and Promulgation of State Implementation
Plan for Colorado; Carbon Monoxide Attainment Demonstrations and
Related SIP Elements for Denver and Longmont; Clean Air Act
Reclassification; Oxygenated Gasoline Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rulemaking.
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SUMMARY: In this document, EPA is approving the State Implementation
Plan (SIP) revisions submitted by the State of Colorado for the purpose
of bringing about the attainment of the national ambient air quality
standards (NAAQS) for carbon monoxide (CO). The implementation plan
revisions were submitted by the State on July 11 and 13, 1994,
September 29, 1995, and December 22, 1995 to satisfy certain Federal
requirements for an approvable nonattainment area CO SIP for Denver and
Longmont. This action includes approval of revisions to Colorado
Regulations 11 (vehicle inspection and maintenance (I/M)) and 13
(oxygenated fuels) submitted to satisfy conditions in the SIP, and
further revisions to Regulation 13 to shorten the effective period of
the oxygenated fuels program. It also includes reclassification of the
Denver CO nonattainment area from Moderate to Serious. EPA proposed to
approve the July 1994 and September 1995 SIP submissions and to
reclassify the Denver area to Serious in the Federal Register on July
9, 1996. EPA published a supplemental proposal to approve the December
22, 1995 SIP submission shortening the oxygenated fuels program period
and to approve the Denver and Longmont CO SIPs based on the shortened
period on December 6, 1996. The rationale for the final approvals and
reclassification are set forth in this document. Additional information
is available at the address indicated below.
EFFECTIVE DATE: This action is effective on April 9, 1997.
ADDRESSES: 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 Programs,
999 18th Street, 3rd Floor, South Terrace, Denver, Colorado 80202-2466;
and Colorado Air Pollution Control Division, 4300 Cherry Creek Dr.
South, Denver, Colorado 80222-1530.
FOR FURTHER INFORMATION CONTACT: Jeff Houk at (303) 312-6446.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for CO nonattainment areas
are set out in sections 186-187 of the Clean Air Act (Act) Amendments
of 1990 (CAAA) which pertain to the classification of CO nonattainment
areas and to the submission requirements of the SIPs for these areas,
respectively. 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, [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 today's rulemaking action.
In today's action on the Denver and Longmont CO SIPs, EPA is applying
its interpretations taking into consideration the specific factual
issues presented and comments received from the public.
This Federal Register document addresses several requirements of
the 1990 CAAA which were required to be submitted no later than
November 15, 1992, and which the State did not
[[Page 10691]]
submit by that date. These requirements include an attainment
demonstration, contingency measures and, for Denver, a vehicle miles
travelled forecasting and tracking program and transportation control
measures. EPA made a formal finding that the State had failed to submit
these SIP revisions in a letter to Governor Roy Romer dated January 15,
1993. This Federal Register document also addresses revisions to
Regulations 11 and 13, submitted by the State of Colorado to implement
portions of the control strategy relied upon by the attainment
demonstration.
Section 187(a)(7) required those States containing CO nonattainment
areas with design values greater than 12.7 parts per million (ppm) to
submit, among other things, an attainment demonstration by November 15,
1992, demonstrating that the plan will provide for attainment by
December 31, 1995 for Moderate CO nonattainment areas and December 31,
2000 for Serious CO nonattainment areas. The attainment demonstration
must include a SIP control strategy, which is also due by November 15,
1992. The SIP control strategy for a given nonattainment area must be
designed to ensure that the area meets the specific annual emissions
reductions necessary for reaching attainment by the deadline. In
addition, section 187(a)(3) requires these areas to implement
contingency measures if any estimate of actual vehicle miles travelled
(VMT) or any updated VMT forecast for the area contained in an annual
report for any year prior to attainment exceeds the number predicted in
the most recent VMT forecast. Contingency measures are also triggered
by failure to attain the NAAQS for CO by the attainment deadline.
Contingency measures must be submitted with the CO SIP by November 15,
1992. Finally, a vehicle miles travelled forecasting and tracking
program is required by Section 187(a)(2)(A), and transportation control
measures are required for Denver by Section 187(a)(2)(B). These
requirements are discussed in more detail in EPA's July 9, 1996 (61 FR
36004) and December 6, 1996 (61 FR 64647) Federal Register documents
proposing action on the SIP revisions.
Longmont had been designated as unclassifiable/attainment prior to
passage of the 1990 CAAA. However, a special monitoring study in 1988-
89 recorded an exceedance of the NAAQS in Longmont. As a result, EPA
Region VIII recommended that the Governor designate this area
nonattainment, and on March 15, 1991, the Governor submitted a
nonattainment designation for this area that was later codified by EPA
at 40 CFR Part 81. Longmont was classified as a Moderate area in 40 CFR
Part 81. Since this area had never had a SIP, EPA interpreted Section
172 of the Act to require an attainment demonstration for Longmont.
Contingency measures under Section 172(c)(9) were also required. On
January 15, 1993, EPA made a formal finding that the State had failed
to submit these SIP revisions for Longmont.
On July 11, 1994 and July 13, 1994, Governor Roy Romer submitted
comprehensive revisions to the Colorado SIP. The carbon monoxide SIP
element submittals for Denver and Longmont addressed the outstanding
CAAA requirements discussed above, as well as other CAAA mandates.
The State submitted revisions to Regulations 11 and 13 on September
29, 1995, to implement the I/M and oxygenated fuels program revisions
committed to in the CO SIP. EPA proposed approval of these revisions in
its July 9, 1996 Federal Register document, and is today taking final
action to approve these revisions.
The State submitted additional revisions to Regulation 13 on
December 22, 1995, shortening the effective period of the oxygenated
fuels program. EPA published a Federal Register document on December 6,
1996, proposing approval of these revisions and re-proposing approval
of the Denver and Longmont CO SIPs to provide an opportunity for public
comment on the impact of this revision to Regulation 13 on the CO SIPs.
EPA is today taking final action to approve the revisions to Regulation
13 that the State submitted on December 22, 1995.
II. Response to Public Comments
EPA received numerous comments on its proposed approval of the
Denver CO SIP and the proposed reclassification of Denver from Moderate
to Serious for CO. No comments were received specifically regarding the
Longmont CO SIP. EPA received one set of comments regarding its
proposed approval of the shortening of the effective period of the
oxygenated fuels program. The comments and EPA's responses follow.
Extension of the Comment Period
Several parties requested that EPA extend its comment period on the
proposed approval of the SIP to allow more time for the preparation and
submission of comments. In response to these requests, EPA extended the
comment period for an additional 30 days (see 61 FR 43501, August 23,
1996).
Legality of the SIP Submission Under State Law
Several parties commented that EPA should return the Denver CO SIP
to the State without action, because it was submitted to EPA in
conflict with the requirements of State law. These comments generally
concern the nature of the Air Quality Control Commission's (AQCC's)
submission of the SIP to Legislative Council for review, and the AQCC's
and the Governor's response to Legislative Council's actions.
EPA's acceptance of the SIP through its July 14, 1994 determination
of SIP completeness was based on the June 30, 1994 letter from the
State Attorney General's Office submitted with the SIP. This letter
certifies that the SIP was adopted and submitted in compliance with
State law. Specifically, Section 25-7-133, C.R.S., required the
submission of SIPs ``regarding the regulation of mobile sources'' to
Legislative Council for review 45 days prior to submission to EPA. The
CO SIP arguably did not fall within this criterion, as it did not
include any regulatory content regarding mobile sources. Revisions to
Regulations 11 and 13 (I/M and oxygenated fuels programs) to implement
the provisions of the CO SIP were discussed in the SIP, but were not
adopted or submitted with it. These revisions were adopted later in
1994 by the AQCC, received full Legislative Council review and were
submitted to EPA in September 1995. Nevertheless, the AQCC chose to
submit the CO SIP to Legislative Council for review even though it did
not contain any mobile source regulation revisions.
The June 30, 1994 letter from the AG's office concedes that the SIP
was not submitted to Legislative Council 45 days prior to submittal to
EPA, but notes that the Council acted on the SIP at its June 21, 1994
meeting and, in effect, waived the 45 day requirement. Also, according
to the June 30, 1994 letter, the actions by Legislative Council at its
meeting were not fully in compliance with State law:
``The Council may act in one of two ways: it can return the SIP in
its entirety and it is then deemed approved, or it can submit it to the
General Assembly (via petition for special session if the General
Assembly is not in session)* * * The Legislative Council, on June 21,
1994 took action by motion, wherein it voted to postpone review of the
CO SIP submission, voted to return the plan for revisions by the
Commission, and voted to conduct a final review no later than January
15, 1995. Pursuant to statute, because no special assembly was called
by the
[[Page 10692]]
Council [the General Assembly was not in session], the SIP is deemed
returned and approved.''
EPA finds the State Attorney General's Office's interpretation
reasonable, and thus, EPA accepts that Office's conclusion that the SIP
was, in fact, submitted to EPA for action in compliance with State law.
Oxygenated Fuels Program
Several comments were received with respect to the oxygenated fuels
program. These comments and EPA's responses follow.
(1) The submission violates Section 25-7-105.1, C.R.S., which
states that any regulation that is more stringent than Federal law
shall not constitute part of a state implementation plan.
Putting aside for the purposes of this response the question of
what EPA's role should be with respect to this State law, EPA does not
believe that the 3.1% oxygenated fuels program is more stringent than
is required under the Act. First, EPA does not believe section 211(c)
of the Act preempts the State from requiring a 3.1% minimum oxygen
content standard and, thus, does not believe a finding of necessity is
required under section 211(c)(4)(C) of the Act (see discussion in
response to comment 6 below). Second, the State is relying on the 3.1%
oxygenated fuels program as one measure to help demonstrate attainment
of the NAAQS for CO, as required by sections 110(a) and 187(a)(7) of
the Act. Without the 3.1% oxygenated fuels program, the SIP would be
unable to demonstrate attainment of the NAAQS. Thus, the 3.1%
oxygenated fuels program is not more stringent than the Act requires.
(2) Subsequent to AQCC adoption of the CO SIP, the AQCC adopted
revisions to Regulation 13 which shortened the control period during
which the oxygenated fuels program is in effect. EPA's approval of the
CO SIP does not address this revision.
Based on this comment, EPA reproposed approval of the Denver and
Longmont CO SIPs, incorporating the shortened oxygenated gasoline
season, and also proposed approval of the revisions to Regulation 13
shortening the season (see 61 FR 64647, December 6, 1996). EPA is now
approving the shortening of the oxygenated gasoline season and is
approving the Denver and Longmont CO SIPs based on the shortened
season.
(3) EPA approval of the 3.1% oxygenated fuels program would be
contrary to Exxon Corp. v. City of New York, 548 F.2d 1088 (2nd Cir.
1977).
The Exxon v. City of New York decision was based on pre-1990 CAA
language, EPA regulations that have since been amended, and in part,
different factual circumstances that bear no relevance to the situation
here. Moreover, the changes in section 211(c)(4) and the 40 CFR Part 80
fuel regulations since the Exxon decision directly modify the
provisions that the court relied on in a way that limits the scope of
preemption of state fuel controls. Thus, this decision is not relevant
to the current situation.
In Exxon Corp. v. City of New York, the court found that New York
City's lead and volatility regulations were preempted under section
211(c)(4). In the Part 80 regulations, EPA had set out the federal fuel
requirements and stated that they prescribed regulations for the
control and/or prohibition of fuels and additives. EPA also had
promulgated specific lead regulations, less stringent than the New York
City regulations, but did not address volatility. At the time of the
court's decision, section 211(c)(4) preempted ``any control or
prohibition respecting use of a fuel or fuel additive.'' The court
found that EPA had promulgated regulations respecting the use of fuels,
and thus, New York City's more stringent regulations were preempted.
In the 1990 CAAA, Congress amended the language of section
211(c)(4) to preempt ``any control or prohibition respecting any
characteristic or component of a fuel or fuel additive.'' After the
court's decision, EPA also modified the Part 80 regulations to make it
clear that they are not intended to preempt states' ability to regulate
fuels and fuel additives that EPA has not addressed. Section 80.1(b)
states: ``Nothing in this part is intended to preempt the ability of
State or local governments to control or prohibit any fuel or additive
for use in motor vehicles and motor vehicle engines which is not
explicitly regulated by this part.'' Thus, both Congress and the Agency
have clearly indicated that EPA's fuel requirements do not preempt
states from regulating a specific characteristic or component that the
Agency has not addressed. As discussed below, there are no federal
regulations applicable to oxygen content in the Denver area, and hence
Exxon v. City of New York is not applicable here.
(4) EPA approval of the 3.1% oxygenated fuels program could lead to
oxygenate shortages which could interfere with the federal reformulated
gasoline program.
During the two winter seasons since the CO SIP was submitted to
EPA, the average oxygen content in Denver has been well above 3.1%. The
federal reformulated gasoline program took effect on January 1, 1995,
and thus has been in effect coincident with the Denver oxygenated fuels
program for over two years. No documented oxygenate shortages have
occurred as a result of Denver's program. Furthermore, the commentor
did not provide any indication that a change in circumstances may occur
that could produce any problems in the future.
(5) EPA approval of the 3.1% oxygenated fuels program could lead to
an increase in NOX emissions, which could jeopardize public health
by increasing ozone concentrations.
Several parties have contacted EPA in the past with regard to
potential NOX increases from use of oxygenated fuels. No good
scientific information exists that conclusively documents an increase
in fleet NOX emissions from use of oxygenated fuels. The
laboratory studies to date have generally had poor control of other
fuel characteristics that affect NOX emissions, making the results
unreliable.
Increases in NOX emissions from the use of oxygenates would
not be expected to generate exceedances of the ozone NAAQS, as asserted
by the commentor. Oxygenate use is only required during the winter
season, when climatic conditions are not favorable to the formation of
tropospheric (ground-level) ozone. No exceedances of the ozone NAAQS
have occurred at any time during the ten winter seasons in which
oxygenated fuels have been used in the Denver area.
(6) The 3.1% oxygen content is higher than is necessary to attain
the CO NAAQS, and other reasonable, practicable means of attainment are
available, so EPA cannot approve this program under section
211(c)(4)(C) of the CAA. Moreover, section 211(m) provisions occupy the
field for regulation of oxygen content of gasoline and thereby preempt
any different regulation by a state.
Section 211(c)(4)(C) provides that states are preempted from
regulating motor vehicle fuels where EPA has already acted, either to
regulate the fuel or to find that no regulation is necessary. If
preemption applies, the state may regulate the fuel only if EPA finds
the state requirement necessary to achieve the NAAQS for the relevant
pollutant. Here, EPA has neither regulated fuel oxygen content in
Colorado nor made a finding that no such regulation is necessary.
Therefore, the state regulation is not preempted and there is no need
to find necessity. In the absence of federal preemption, states are
free to regulate to control air pollution, and EPA must approve lawful
state requirements into SIPs, as long as
[[Page 10693]]
the state submission meets all applicable requirements under Title I of
the Act.
Section 211(c)(4)(A) preempts a state from ``prescrib[ing] or
attempt[ing] to enforce * * * any control or prohibition respecting any
characteristic or component of a fuel or fuel additive'' under two
circumstances. Section 211(c)(4)(A)(i) provides for preemption if EPA
has found that no control or prohibition of the characteristic is
necessary and has published that finding in the Federal Register.
Section 211(c)(4)(A)(ii) provides that a state is preempted from
regulating if EPA has prescribed under section 211(c)(1) a control or
prohibition applicable to such characteristic or component, unless the
state control or prohibition is identical to EPA's control or
prohibition. Thus, to preempt state regulation under 211(c)(4), either
EPA must publish a finding that a control is unnecessary, or EPA must
promulgate a control of the same characteristic or component under
section 211(c)(1).
EPA has not made any finding under section 211(c)(4)(A)(i) that
control of fuel oxygen content is unnecessary. There is no preemption
of the Regulation 13 requirement for a 3.1% oxygen content under this
provision.
The only requirement that EPA has promulgated applicable to fuel
oxygen content under 211(c)(1) is in the reformulated gasoline (RFG)
regulations. EPA promulgated the RFG regulations under both sections
211(c)(1) and 211(k). However, Colorado is neither required to use RFG
by statute, nor has it voluntarily opted into the RFG program. Thus,
the RFG regulations do not apply in Colorado.
The statute is ambiguous as to whether federal regulation of a fuel
characteristic in certain areas of the country preempts state
regulation only in those areas, or whether it preempts any state
regulation of that characteristic nationwide. The statute simply refers
to ``a control or prohibition applicable to such characteristic or
component.'' The language does not indicate whether it means any
control in any area or at any time generally applicable to a fuel
characteristic, or a control actually applicable to a fuel
characteristic in a given time and place. The statute is also ambiguous
as to whether ``characteristic or component of a fuel or fuel
additive'' should be read generally, as in ``oxygen content,'' or
specifically, as in ``oxygen content in RFG areas.'' In delegating
authority to the Agency to administer section 211(c), Congress has also
implicitly delegated the authority to reasonably interpret the
provision in light of any ambiguity. Chevron, USA v. NRDC, 467 U.S. 837
(1984).
EPA believes that the better reading of the statute is that
preemption by the RFG regulations applies more narrowly, only in the
areas where the federal RFG regulation applies. First, the RFG
regulations arguably are not a control ``applicable'' to fuel oxygen
content outside of RFG areas. Secondly, this interpretation is
consistent with the judicial cannon of statutory construction by which
courts construe preemption narrowly. Thirdly, as a policy matter, EPA's
decision to regulate fuel oxygen content in RFG areas did not encompass
a determination that states should not or need not regulate that
characteristic outside of those areas. Section 211(c)(4) applies only
where EPA has affirmatively decided to regulate a particular fuel
characteristic or component, or has affirmatively found that no such
regulation is necessary and has published such a finding in the Federal
Register. The RFG rulemaking never considered whether fuel oxygen
content requirements were needed for CO control outside RFG areas, but
merely incorporated the statutory requirement to set a 2.0 percent
oxygen content for RFG. Moreover, whether RFG applies to an area
depends solely on its status as an ozone nonattainment area; its status
for CO is irrelevant. This further reinforces the conclusion that
oxygen content requirements under RFG do not represent any EPA or
Congressional decision on the need for such requirements outside of RFG
areas. Finally, the purpose of the section 211(c)(4) preemption
provision is to strike an appropriate balance between states' ability
to freely adopt control measures, and avoidance of a variety of
different state standards, potentially disrupting the national motor
vehicle fuel market and federal regulation of such fuels. This purpose
is not served by applying preemption where there is no federal
regulatory scheme, as here in Colorado.
Finally, section 211(m) does not constitute federal regulation of
oxygen content, which could occupy the field for regulation of oxygen
content and hence preempt state regulation. Section 211(m) requires
states with certain CO nonattainment areas to submit a SIP revision
requiring gasoline ``to contain not less than 2.7 percent oxygen
content by weight.'' The statute requires state regulation, not
federal, and explicitly sets a minimum standard for such state
regulation, leaving the state free to adopt more stringent requirements
if it so chooses. There is no indication in the statute or the
legislative history that by specifying a minimum oxygen level that
states should require, Congress intended the federal government to
occupy the field of oxygen content regulation and preempt states from
establishing a more stringent standard.
Because the federal RFG fuel oxygen content provision does not
apply to Colorado, section 211(c)(4) does not preempt the state from
promulgating its own average fuel oxygen content standard of 3.1%. Nor
does section 211(m) explicitly or implicitly impose such a restriction.
Moreover, EPA must approve into a SIP any lawful provision concerning
control of a criteria pollutant that is submitted by a State and that
otherwise meets the requirements of section 110. See Union Electric Co.
v. EPA, 427 U.S. 246 (1976). Thus, Colorado was free to adopt a 3.1%
oxygen content standard as a control strategy to help attain the CO
NAAQS.
(7) EPA approval of the 3.1% oxygenated fuels program in Colorado
would be a de facto mandate that at least 50% of the gasoline in the
Denver area contain ethanol, contrary to American Petroleum Institute
vs. United States Environmental Protection Agency, 52 F.3d 1113 (D.C.
Cir. 1995).
In API v. EPA, the issue was whether EPA has the authority to
mandate use of a particular oxygenate in RFG. The court held that EPA
does not have such authority because Sec. 211(k) lays out the specific
criteria that EPA is to consider in promulgating the RFG requirements,
and the ethanol mandate was not established pursuant to those criteria.
This holding has no relevance for whether a state, rather than EPA,
could directly mandate use of a particular oxygenate. Moreover, the
state here has not mandated use of any particular oxygenate. It has
merely established oxygen content requirements, and the industry may
use any oxygenate capable of meeting those requirements, subject to the
maximum blending restrictions. In addition, these are the same oxygen
content requirements as the CAA mandates for certain areas, which
indicates that Congress contemplated that such higher oxygen content
levels may be needed in some areas. In the absence of federal
preemption, states are free to adopt fuel controls for emission
reductions. API identifies no additional limit on EPA's authority to
approve such state requirements in SIPs.
(8) Recent studies have demonstrated that oxygenated fuels have
little or no effect on CO air quality. EPA should facilitate an
independent review of the impacts of oxygenated fuels on CO air quality
before acting to approve the CO SIP.
[[Page 10694]]
The White House Office of Science and Technology Policy (OSTP) has
recently issued a draft report on oxygenated fuels, which compiles the
results of a number of other studies (``Interagency Assessment of
Oxygenated Fuels,'' September 1996). While not yet final, the draft
report concludes that oxygenated fuels produce approximately a 10.0% to
13.5% ambient CO reduction benefit. The National Academy of Sciences
(NAS) has also issued a recent report commenting on the OSTP report.
The NAS report found that oxygenated fuels programs have a benefit of
zero to 10 percent in reducing ambient CO. Of the 10 existing ``real
world'' studies of oxygenated fuels' ambient air impacts cited in the
NAS report, eight show a statistically significant benefit from the
program, and two studies (both in North Carolina) showed no significant
benefit or did not attempt to quantify a benefit. Likewise, virtually
all laboratory studies of oxygenated fuels, including some conducted by
the automotive and petroleum industries, show a significant carbon
monoxide reduction at the tailpipe from use of these fuels.
EPA recently conducted an analysis of carbon monoxide air quality
data from cities around the country (``Impact of the Oxyfuel Program on
Ambient CO Levels,'' J. Richard Cook et al, EPA420-R-96-002). In this
report, EPA compared data from a number of cities which used oxygenated
fuels beginning in the winter of 1992-93 to data from several cities
which did not. Using this approach, EPA found an immediate and
sustained reduction of carbon monoxide concentrations in the range of
3.1% to 13.6% in cities using oxygenated fuels, in excess of the
reductions expected from new cars entering the fleet. This reduction
was not seen in cities not using oxygenated fuels. This level of
benefit is consistent with that found in other studies. A subsequent
regression modeling analysis by Dr. Gary Whitten of SAI of ambient CO
data in oxygenated fuels areas (``Regression Modeling of Oxyfuel
Effects on Ambient CO Concentrations,'' SYSAPP-96/78, January 8, 1997)
found a 14% reduction in ambient CO concentrations due to
implementation of the program.
These analyses are significant because they are based on
measurements of actual air quality data in these cities over at least
two winter periods. Many interested parties have criticized laboratory
studies as not being representative of the real world; however, in
attempting to carry out a ``real world'' study in a single urban area,
it is very difficult to separate the influence of oxygenated fuels from
all of the other factors that affect carbon monoxide concentrations
(including weather, congestion, and changes in the mix of cars and
trucks in the fleet).
The National Academy of Science's report points out some areas
where additional research would be useful, and EPA and the State are
working to design a study to address some of the uncertainties
surrounding the use of oxygenated fuels. However, the NAS report and
the available scientific data support continuing the oxygenated fuels
program.
While not a factor in EPA's decision, readers may be interested to
know that oxygenated fuels is one of the least expensive carbon
monoxide control strategies available. In terms of dollars per ton of
pollution eliminated, it is much cheaper than other alternatives, such
as transportation control measures, mandatory employee trip reduction,
conversion of vehicles to run on alternative fuels like propane or
natural gas, or industrial controls. The program also serves as an
important defense against factors that increase carbon monoxide
emissions in the Denver area, including growth in daily vehicle miles
travelled, growth in the amount of time that vehicles spend in
congestion, and growth in the number of sport utility vehicles and
other types of higher-emitting light-duty trucks on the road. EPA has
substantial evidence at this time that oxygenated fuels are an
effective means to control carbon monoxide, and hence it is appropriate
to approve this provision of the CO SIP at this time.
Shortening of the Oxygenated Fuels Season
One party submitted comments in response to EPA's December 6, 1996
supplemental notice of proposed rulemaking, proposing approval of the
revisions to Regulation 13 removing the last two weeks of the
oxygenated fuels season and reproposing approval of the CO SIPs to
incorporate this revision. This commentor supported EPA's action to
approve the shortening of the oxygenated fuels season. The commentor
also raised other issues with respect to the oxygenated fuels program
which have been addressed above.
Abandoned and Impounded Vehicle Program
One commentor expressed concern that the SIP provision preventing
re-registration of abandoned or impounded pre-1982 vehicles would
negatively impact the collector car industry of the Denver region and
would prevent owners from recovering stolen vehicles. Another commentor
expressed concern that this program would unnecessarily harm lower-
income individuals and artificially increase demand for new cars. While
EPA understands these concerns, the Act prohibits EPA from basing its
actions concerning SIPs on considerations involving the economic
reasonableness of State actions. See Union Electric Co. v. EPA, 427
U.S. 246, 256-266 (1976); 42 U.S.C. section 7410(a)(2).
While EPA is prohibited from basing its action on the SIP on
economic grounds, EPA has concluded for other reasons that it should
not act on this element of the SIP. The provision is not well-defined
in the SIP, with the design and implementation of this program left up
to the discretion of local jurisdictions, and no credit was taken for
this measure in the attainment demonstration (see SIP page IX-4).
Therefore, EPA is not taking action on this element of the SIP.
Revised Emissions Standards for Pre-1982 Vehicles
One commentor stated that the requirement for tighter emissions
testing cutpoints for pre-1982 was arbitrary and capricious, and unduly
impacted owners of these model year vehicles in the Denver region.
Again, EPA is prohibited by law from basing its actions on SIPs on
considerations involving the economic reasonableness of State actions.
However, pre-1982 vehicles were targeted for tighter cutpoints because
1982 and newer vehicles are already subject to the more stringent
provisions of the enhanced vehicle inspection and maintenance program.
Tighter cutpoints for pre-1982 vehicles should result in more high-
emitting vehicles being identified and repaired through the
requirements of Regulation 11. Data from the enhanced I/M program show
that the average older vehicle emits carbon monoxide at levels many
times higher than the level at which they were certified for sale.
However, there is no presumption that all older vehicles are high
emitters, and vehicles in good operating condition should not fail the
tighter cutpoints.
This commentor also stated that the State and EPA had failed to
consider the smaller proportion of total VMT generated by pre-1982
vehicles. The mobile source emissions modeling conducted for the SIP is
based on estimates of annual mileage accumulation and share of daily
VMT for each model year. Thus, the SIP modeling inputs reflect the
smaller proportion of total VMT generated by pre-1982 vehicles. While
it is true that pre-1982 vehicles do represent a relatively small
proportion of total
[[Page 10695]]
regional VMT, emissions generated by these vehicles are still
significant because these vehicles are required to meet less stringent
emissions standards by the State and EPA, and thus, per-vehicle
emissions are higher. The SIP estimates that this measure would provide
a CO emission reduction benefit of 20 tons per day in 1995. EPA
believes the estimates of pre-1982 VMT share and emissions reductions
from the SIP provision are reasonable.
Another commentor stated that EPA should give the State the option
of eliminating the I/M program and the prohibition on re-registration
of abandoned and impounded vehicles in favor of an enforceable system
of user fees or other economic incentives that would address the actual
contribution of individual vehicles and drivers to the region's
pollution problems. The Clean Air Act requires the State to implement
an enhanced I/M program that meets certain minimum requirements.
However, the Act would allow the State to revise its SIP at any time to
add the type of program mentioned by the commentor, as long as the
program meets the SIP requirements of Section 110. EPA does not have to
take any type of action in order to enable the State to develop and
submit this type of SIP revision. As noted above, EPA is not acting on
the SIP provision that prohibits re-registration of abandoned and
impounded vehicles.
Transportation Control Measures (TCMs)
One commentor felt that EPA's description of the relationship of
the TCMs to the SIP as a whole was unclear. This commentor felt that
EPA was interpreting the SIP to incorporate the TCMs as part of the
attainment demonstration, in addition to incorporating the TCMs as
contingency measures.
Further review of the SIP confirms that the TCMs are only meant to
be incorporated as contingency measures. This intent is clearly stated
in the SIP on pages VI-3 and X-1. The SIP states the intent of the area
to implement the contingency measures early, as allowed by EPA policy,
to obtain additional emission reductions. Chapter XII of the SIP,
Attainment Demonstration, clearly demonstrates that these measures are
not necessary for the Denver area to attain the CO NAAQS by December
31, 2000. Thus, EPA is clarifying that the TCMs are intended to be
enforceable provisions of the SIP only as contingency measures, with
implementation required only in the event that the contingency measures
are triggered (through the mechanisms discussed in the proposal). The
State has made an adequate showing that TCMs are not needed for
attainment, as required by section 187(a)(2)(B) of the Act.
Another commentor stated that the requirements of the Act for TCMs
in Denver had not been met. EPA believes that the State and the
Regional Air Quality Council have correctly interpreted the Act's
requirements for TCMs, that the TCM provisions of the SIP are adequate,
and that the SIP contains an adequate showing that TCMs are not
necessary for attainment.
This commentor also stated that EPA should require annual reporting
on the effectiveness and implementation of TCMs and other control
strategies. EPA notes that periodic reporting is already required for a
number of control measures and does not believe that further reporting
is necessary at this time. For example, the Act requires annual
reporting of VMT and a comparison of actual VMT with the SIP forecasts.
The State has complied with these requirements. The Act and EPA's
transportation conformity rule (58 FR 62188, November 24, 1993) also
require that the Denver Regional Council of Governments (DRCOG) report
on the implementation status of TCMs each time a conformity
determination is made, and prohibit conformity findings if TCMs are not
being implemented as required by the SIP. The State also produces
annual reports on the effectiveness of the SIP's two major control
strategies, the I/M and oxygenated fuels programs, as required by State
law. EPA's I/M regulations (40 CFR Part 51, Subpart S) also require
periodic evaluation of and reporting on the effectiveness of the I/M
program.
Contingency Measures
One commentor stated that the SIP does not contain adequate
contingency measures, and that EPA should require the State to
implement the contingency measures based on the Denver area's failure
to attain. This commentor also stated that it was insufficient for the
SIP to describe existing conditions as contingency measures which have
already been implemented.
As discussed in the proposal (61 FR 36009, July 9, 1996), the SIP
TCMs exceed the minimum emission reductions established in EPA
guidance, and EPA considers these measures adequate. Although the State
has chosen to voluntarily implement many of the contingency measures,
and thus obtain the benefits of early emissions reductions, the
commentor is correct that EPA is not requiring the State to implement
the contingency measures in the SIP based on the area's failure to
attain the standard by the end of 1995. EPA believes it is neither
necessary nor appropriate to do so. This is because EPA's approval of
this Serious area CO SIP, which the State has been implementing since
1994, obviates the need for Moderate area contingency measures.
Contingency measures for a Moderate CO nonattainment area with a design
value greater than 12.7 ppm are intended to provide emissions
reductions while the State revises its SIP to meet Serious area SIP
requirements. Here the State has already submitted a Serious area SIP
that demonstrates attainment of the CO standard by the end of 2000, and
EPA is approving it.
In addition, there is no EPA-approved Moderate area CO SIP for the
Denver area on which EPA can base a requirement that the State
implement contingency measures for the failure to attain the CO
standard by the end of 1995. If an EPA-approved Moderate area CO SIP
had been in place at the time the area violated the CO standard in
1995, EPA would have required the State to implement the contingency
measures contained in that SIP. In the Serious area SIP that the State
has submitted and that EPA is approving today, contingency measures are
tied to the 2000 attainment date. There is no basis or necessity for
EPA to require the State to implement contingency measures based on the
area's failure to attain the CO standard by the end of 1995.
The SIP envisions that the TCMs identified as contingency measures
will be implemented early. This is acceptable to EPA. EPA policy
(August 13, 1993 memorandum from G.T. Helms to regional Air Branch
Chiefs entitled ``Early Implementation of Contingency Measures for
Ozone and Carbon Monoxide Nonattainment Areas'') encourages the early
implementation of contingency measures for the additional emission
reductions and progress toward attainment that they provide. EPA
believes that requiring states to adopt additional contingency measures
to replace measures that were implemented early would only discourage
early implementation and the resulting additional emission reductions.
Reclassification to Serious
Two commentors expressed concern over EPA's proposed
reclassification of the Denver area from Moderate to Serious for CO,
given the small number and low absolute value of violations in recent
years. These commentors felt that EPA should recognize Denver's
progress toward attainment of the CO NAAQS in
[[Page 10696]]
recent years. EPA recognizes that Denver has taken significant steps to
reduce CO levels and make progress toward attainment, including
implementation of a comprehensive woodburning control program, the
nation's first oxygenated fuels program, and an effective enhanced I/M
program. However, as explained in the proposed rulemaking, the
unambiguous provisions of the CAA and recent ambient values for CO in
Denver compel EPA to take this action.
One commentor stated that the SIP does not contain the elements
required for a Serious area SIP. As discussed in detail in the
proposal, EPA believes that the SIP does contain all required elements.
Attainment Demonstration
One commentor submitted extensive comments on the adequacy of the
attainment demonstration. This commentor felt that the attainment
demonstration was inadequate because it did not consider other downtown
intersections with the potential of experiencing high concentrations of
CO and because growth projections used in the modeling underestimate
the amount of growth in traffic that has occurred in the Denver area
since the attainment demonstration was submitted to EPA.
The State performed preliminary CAL3QHC modeling of CO
concentrations at three intersections in the downtown area: Speer and
Auraria Boulevard, Broadway and Colfax, and Broadway and Champa. The
CAMP air quality/meteorology monitoring station, which has historically
recorded the highest levels of CO in the Denver area, is located
adjacent to the intersection of Broadway and Champa. The preliminary
modeling results showed predicted concentrations at the Speer/Auraria
and Broadway/Colfax intersections that were up to 6 parts per million
(ppm) higher than concentrations predicted at the CAMP intersection.
However, the State selected only Broadway and Champa (CAMP) for use in
the SIP attainment demonstration because the on-site air quality and
meteorological data available at this location provided more confidence
in the modeling results. To ensure that higher concentrations exceeding
the NAAQS do not occur at other downtown locations the State has
performed supplemental CO monitoring studies at all three intersections
and elsewhere in the Denver urban core. The results to date have
continued to support the use of CAMP as the maximum concentration
downtown site; CAMP continues to record higher CO design value
concentrations than any other location in the Denver metro monitoring
network.
The commentor stated that EPA has not applied its modeling
standards, guidance, and protocols consistently to the choice of
intersections or to the attainment demonstration generally. EPA (both
Region VIII and the national Model Clearinghouse) reviewed the State's
analysis and found that it was consistent with national modeling policy
and other recent Urban Airshed Model/CAL3QHC modeling applications. EPA
believes that modeled concentrations at Speer/Auraria and Broadway/
Colfax are unreliable and therefore is not requiring the State to use
the preliminary CAL3QHC intersection modeling results to demonstrate
attainment at these two intersections. EPA's position is based on the
following factors: (1) Saturation CO monitoring studies in the downtown
area and continuous wintertime monitoring since 1994 at Speer/Auraria
do not support the modeled predictions of higher concentrations at
these locations; (2) estimated wind speeds at Speer/Auraria and
Broadway/Colfax during both episodes modeled were frequently below the
stated threshold of the CAL3QHC model and are not considered valid for
use in the model; (3) there is a possibility that ``cold start''
vehicle emissions may have been overestimated at these intersections,
artificially increasing predicted concentrations; and (4) micro-
meteorological effects of high-rise office buildings significantly
increase modeling uncertainties at these intersections, where on-site
meteorological data was not available.
EPA also notes that the State followed the criteria contained in
the Guideline for Modeling Carbon Monoxide from Roadway Intersections
(EPA-454/R-92-005) in identifying the six busiest intersections for the
SIP analysis. State modeling of these intersections showed compliance
with the NAAQS. However, these intersections are all located outside of
the downtown area; downtown is where the highest concentrations have
historically been measured. EPA subsequently requested the State to
model an additional intersection in the downtown urban core in order to
assure attainment of the NAAQS. However, the State's compliance with
this request goes beyond the usual requirements for a CO SIP attainment
demonstration analysis.
The commentor suggested that meteorological and other data are
available that are more than adequate for modeling intersections other
than CAMP. To EPA's knowledge, CAMP is the only intersection with
representative on-site meteorology data for the periods that were
modeled. Off-site meteorology was available at the Tivoli site for
portions of the SIP episodes modeled, but this site is located several
hundred meters south of the current intersection of Speer and Auraria.
EPA reviewed the Tivoli site and determined that meteorological data
collected at this location would not be representative of conditions at
the intersection. Winds at the Speer and Auraria intersection would be
affected to a far greater degree by building wake effects than the
Tivoli site. In addition, there have been extensive changes to the
roadway and construction of additional structures in the area since the
Tivoli data were obtained in 1988. No data whatsoever were available
for the Broadway and Colfax intersection.
The commentor referred to critiques of the attainment demonstration
developed by State staff and by outside sources. EPA has not been
provided with and is not aware of any State or outside critiques of the
attainment demonstration. EPA was provided with preliminary modeling
results for the Speer and Auraria and Broadway and Colfax intersections
by APCD staff members that were based on the Tivoli and CAMP
meteorological/air quality data. In addition to using non-
representative data, the analysis contained a number of modeling
assumptions that were not consistent with the EPA Guideline on Air
Quality Models or the CAL3QHC Model Users Manual, including incorrect
atmospheric stabilities and wind speeds lower than the acceptable
threshold for the CAL3QHC model. The final CAL3QHC modeling submitted
by the APCD did not contain intersection modeling for the two
intersections where on-site data were not available. EPA concurs with
the final modeling analysis submitted by the State. This decision is
supported by the supplemental CO monitoring studies that have been
performed in the downtown area. These studies support the continued use
of CAMP as the maximum concentration downtown site.
The commentor also suggested that EPA applied a different set of
review criteria to the downtown intersections than to suburban sites,
because the downtown intersections showed high CO concentrations that
would trigger more stringent control strategies, and suggested that
these different criteria led to high concentration intersections
downtown being dropped from the SIP analysis. The reason the modeling
results for the two intersections in the downtown area were dropped is
that the CAL3QHC model could not be applied
[[Page 10697]]
appropriately given the effects of nearby downtown buildings on wind
flow and the lack of representative on-site data. Building effects were
not an issue at the six suburban intersections modeled in the SIP.
The commentor implied that EPA was basing its decision to approve
the SIP on ``voluntary'' compliance with EPA requests,
``understandings'' between State and EPA staff, and written and
unwritten EPA ``guidance''. The commentor suggested that EPA was
honoring a ``deal'' that violates the letter and intent of the Act. EPA
believes that the attainment demonstration meets the requirements of
the Act. EPA addresses the commentor's specific concerns regarding the
attainment demonstration in other portions of this response. EPA is not
basing its decision to approve the SIP on any ``deals'' or improper
``understandings'' reached with the State, but on the SIP's compliance
with the Act. EPA does not know what the commentor is referring to when
it writes about ``voluntary'' compliance with EPA requests. To the
extent EPA has offered guidance to the State, EPA believes such
guidance has been consistent with the Act or a reasonable
interpretation of the Act.
The commentor noted that many large projects have been planned or
built since the attainment demonstration was submitted to EPA, and that
newer growth projections show higher levels of traffic than those
considered in the SIP. Two of the facilities specifically mentioned by
the commentor (Coors Field and Elitch's) would not be expected to
affect Denver's ability to attain the CO standard, since they are not
operational during the winter season when the highest values of CO are
measured in Denver. The proposed Pepsi Center, which could impact
Denver's ability to attain the NAAQS due to its potential proximity to
one of the downtown intersections where elevated values of CO have been
monitored, has not been approved by the City and County of Denver, and
there is apparently some possibility that this facility may not be
located downtown at all. Denver is currently examining the traffic and
air quality impacts of a wide range of potential development in the
lower downtown area through its Central Platte Valley Multimodal Access
and Air Quality Study.
The comment regarding newer projections of traffic growth
apparently refers to revised estimates of daily vehicle miles travelled
produced by DRCOG in the summer and fall of 1996. In early 1996, DRCOG
made some improvements to its transportation demand model (used for
transportation planning, and to produce estimates of future VMT and
speeds for air quality planning purposes) and validated the model with
actual 1995 traffic counts recorded in Denver. These adjustments led to
revised estimates of approximately 49 million miles per day of traffic
in the Denver area (the previous modeled estimate had been
approximately 45 million miles per day). Part of this estimated
increase is due to actual growth in traffic in the Denver region, and
part of it is due to use of improved methodologies for traffic counting
in the region.
In November 1996, Colorado submitted its 1996 report of 1995 actual
annual VMT, as required by the SIP's VMT tracking provisions and the
Act. This report showed that actual 1995 VMT were 4.4% greater than the
SIP projections and 1.3% greater than the most recent revised
projection for 1995. These exceedances are within the allowable limits
of EPA's VMT Tracking Program guidance (5.0% and 3.0% for the
respective VMT projections). EPA established these tolerances in
recognition of the uncertainty inherent in attempting to measure actual
VMT in a large urban area. Since the most recent reported actual annual
VMT is within these allowable tolerances, the State is not required to
implement its contingency measures, and no revision to the SIP is
required. If a subsequent VMT tracking report shows that the SIP VMT
projections (or updated forecasts) are exceeded by greater than the
margins of error allowed by EPA guidance, implementation of the
contingency measures will be required, along with a revision to the SIP
if necessary.
EPA believes that the State has followed the proper procedures (as
outlined in EPA's guidance and the SIP's VMT Tracking Program protocol)
in generating the annual VMT reports that EPA is relying on for its
approval of the SIP. Several factors are involved in comparing
estimates of daily VMT to estimates of annual VMT, including: (1) The
geographic area covered by the different estimates; (2) whether average
daily traffic or average weekday traffic are used; (3) the differences
between the traffic counting network used by DRCOG for its model
validation, and the network required for use by the Colorado Department
of Transportation in generating the Highway Performance Monitoring
System (HPMS) VMT data that the VMT Tracking Program traffic estimates
are based on (use of HPMS data is required by EPA and U.S. Department
of Transportation guidance); and (4) the assumptions behind the
original VMT estimates in the SIP.
There are a number of other factors that protect the SIP's
attainment demonstration from growth in VMT. First, under the
requirements of the EPA/DOT transportation conformity rule, DRCOG's
transportation plans and transportation improvement programs must
comply with the emissions budget for CO contained in the CO SIP, even
if unexpected increases in VMT occur after the SIP is adopted. This
budget protects the Denver area against future violations of the CO
NAAQS in the face of growing VMT. If the budget cannot be met, DRCOG
cannot adopt any new plans and TIPs, and no new regionally significant
projects can be approved. Thus, failure to meet the budget has the same
or greater effect as the imposition of highway sanctions under section
179 of the Act. Second, it is important to note that virtually all of
the growth in the metro area has occurred not in the downtown area,
where the violations of the NAAQS have been monitored, but in outlying
portions of the metro area. Thus, EPA would expect that VMT in the
downtown area would increase at a lower rate than VMT for the metro
area as a whole. This is supported by traffic counts at locations near
downtown, which show that traffic in the central area increased at a
rate of approximately 2-3% per year between 1990 and 1995, even though
DRCOG estimates that traffic has increased approximately 4.5% per year
regionwide. Finally, the air quality trends information submitted with
the State's March 1996 milestone report shows that the Denver area is
ahead of schedule to attain the CO NAAQS even with the higher-than-
expected estimates of daily VMT.
Based on its conclusion that the attainment demonstration was
inadequate, this commentor further concluded that the control
strategies submitted with the SIP are insufficient to provide for
attainment of the NAAQS. EPA's general response to this assertion is
that the attainment demonstration is adequate, and that the modeling
summarized in Chapter XII of the SIP and submitted to EPA demonstrates
that the SIP will provide for attainment with the control measures
included in the SIP.
The commentor stated that the SIP does not include a requirement
that gasoline sold during the winter months include a level of oxygen
sufficient to attain the NAAQS. As discussed above, the SIP includes a
requirement for a 3.1% minimum oxygen content; the attainment
demonstration shows that this level of oxygen is necessary and
[[Page 10698]]
sufficient to provide for attainment of the NAAQS.
The commentor stated that there is no indication that the State
will apply the requirements for content and analysis of transportation
plans, programs and projects contained in the conformity regulations.
These requirements for nonattainment areas classified as serious and
above are enforceable through the EPA/DOT conformity regulation, and
DRCOG must comply with them when they take effect. There is no
requirement in the conformity rule or in the Act that these provisions
be incorporated into the CO SIP. However, they are mentioned on page I-
4 of the SIP.
The commentor stated that the SIP does not satisfy section
110(a)(2) of the Act. As outlined in detail in the Technical Support
Document for EPA's proposed action, the SIP does satisfy the SIP
content requirements of section 110(a)(2).
The commentor stated that the SIP does not contain adequate
measures to control stationary source emissions. Stationary point
source emissions represent only 1.1% of base case emissions (based on
actual emissions) and 5.6% of attainment year emissions (based on
allowable emissions). None of the major sources are located in close
proximity to the downtown monitors which record high concentrations,
and these sources have little or no impact on Denver's ability to
attain the NAAQS. However, stationary point sources of CO are regulated
by Colorado Regulation No. 1 (Particulates, Smokes, CO and Sulfur
Oxides). As noted above, woodburning is already regulated by Regulation
No. 4; woodburning also has very little impact on the downtown
monitoring sites. The remaining stationary sources of emissions are
natural gas combustion and structural fires, which contribute a total
of less than 1% to the attainment year inventory and again have very
little impact on the high concentration monitoring sites.
The commentor stated that the SIP should include a mandatory
employer-based trip reduction program, or demonstrate that such a
program is not necessary to demonstrate attainment of the NAAQS. As
noted in the proposal, Congress revised the Act in 1995 to make
submittal of trip reduction programs voluntary. Thus, EPA could not
require the State to submit such a program even if the attainment
demonstration were to be found inadequate.
The commentor noted that the SIP does not contain an adequate
milestone, nor does it contain an economic incentive program for
implementation should the milestone not be met. Neither the Act nor EPA
policy establish requirements for milestones, so the State was free to
adopt its 1995 base case emission inventory as the milestone. The base
case represents progress toward attainment (emissions in the 1995 base
case were substantially lower than 1990 emissions), which is the intent
of this requirement of the Act. Also, the Act does not require
submittal of an economic incentive program until after either (1) the
milestone has been missed or (2) the Denver area fails to attain by
December 31, 2000. Thus, the SIP is not deficient in this regard.
Finally, the commentor stated that EPA should expressly incorporate
the baseline (pre-existing) control strategies in its approval of this
SIP, that EPA should make it clear that its approval of the SIP is
based on the understanding that these control strategies will remain in
place, and that EPA should withdraw its approval of the SIP should
these control strategies be weakened. As noted in the proposal, the
baseline strategies relied upon in the attainment demonstration have
already been incorporated into the Colorado SIP, making them federally
enforceable; the new control strategies will also be incorporated into
the SIP with EPA's final action on the SIP. EPA's approval is based on
the enforceability of these measures and the SIP's stated intention
that these measures continue to be implemented. If, subsequent to EPA
approval, control measures are weakened or discontinued, EPA's
available responses include making a finding of SIP non-implementation
under section 179(a)(4) and/or section 113(a)(2) of the Act, or making
a finding of SIP inadequacy and issuing a call for a SIP revision under
Section 110(k)(5) of the Act. EPA believes that these mechanisms, along
with EPA's and citizens' ability to directly enforce SIP requirements,
are adequate to ensure that pre-existing control measures continue to
be implemented.
Approval of the SIP
While several parties requested that EPA disapprove the SIP, for
reasons discussed above, two commentors supported EPA's approval of the
SIP. EPA is proceeding with final approval of the CO SIP for the
reasons discussed above and in our July 9, 1996 and December 6, 1996
notices of proposed rulemaking.
III. Implications of Today's Final Action
In today's action, EPA is approving SIP revisions submitted by the
Governor on July 11, 1994, July 13, 1994, September 29, 1995, and
December 22, 1995. Specifically, EPA is (1) approving the July 11, 1994
attainment demonstration, VMT tracking and forecasting program, TCM,
and contingency measures submittals for Denver; (2) approving the July
13, 1994 attainment demonstration and contingency measures submittals
for Longmont; (3) approving the control strategies for Denver,
including the September 29, 1995 submittal of revisions to Regulations
11 and 13 (I/M and oxygenated fuels); and (4) approving the further
revisions to Regulation 13 submitted on December 22, 1995 that shorten
the effective period of the oxygenated fuels program. For the reasons
discussed in Section II of this document, EPA is not taking action on
the SIP provision submitted on July 11, 1994 that calls for a
prohibition of the re-registration of abandoned and impounded vehicles.
In this document, EPA is also making a finding that the Denver/
Boulder carbon monoxide nonattainment area did not attain the NAAQS by
the required attainment date of December 31, 1995, and is revising the
area's classification for carbon monoxide in 40 CFR Part 81 from
Moderate to Serious. This finding is based on air quality data
revealing more than one exceedance of the CO NAAQS during calendar year
1995, resulting in a design value higher than the NAAQS for the period
1994-95. By action dated December 20, 1994, the EPA Administrator
delegated to the Regional Administrators the authority to determine
whether CO nonattainment areas attained the NAAQS, and to reclassify
those that did not.
EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the Act. EPA has
determined that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Implementation Plan. Each request for revision to
any State Implementation Plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Executive Order (EO) 12866
Under EO 12866, 58 FR 51735 (October 4, 1993), EPA is required to
determine whether regulatory actions are significant and therefore
should be subject to OMB review, economic analysis, and the
requirements of the
[[Page 10699]]
EO. The EO defines a ``significant regulatory action'' as one that is
likely to result in a rule that may (1) have an annual effect on the
economy of $100 million or more or adversely affect, in a material way,
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Today's SIP-related actions have been classified as Table 3 actions
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 has exempted these regulatory actions from EO 12866 review.
Likewise, EPA has determined that today's finding of failure to
attain would result in none of the effects identified in section 3(f)
of the EO. Under Section 186(b)(2) of the Clean Air Act, findings of
failure to attain and reclassification of nonattainment areas are based
upon air quality considerations and must occur by operation of law in
light of certain air quality conditions. They do not, in and of
themselves, impose any new requirements on any sectors of the economy.
In addition, because the statutory requirements are clearly defined
with respect to the differently classified areas, and because those
requirements are automatically triggered by classifications that, in
turn, are triggered by air quality values, findings of failure to
attain and reclassification cannot be said to impose a materially
adverse impact on State, local, or tribal governments or communities.
V. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. section 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.
sections 603 and 604). Alternatively, EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisidiction over
populations that are less than 50,000.
SIP revision approvals under Section 110 and Subchapter I, Part D,
of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval process does not impose any new requirements, EPA
certifies that this final rule would 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 regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of State actions. 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, 256-266 (S. Ct. 1976); 42 U.S.C. section
7410(a)(2).
As discussed in section IV of this document, findings of failure to
attain and reclassification of nonattainment areas under Section
186(b)(2) of the CAA do not, in and of themselves, create any new
requirements. Therefore, I certify that today's final action does not
have a significant impact on small entities.
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 determined that today's final approval actions do 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. These Federal actions approve pre-
existing requirements under State or local law, and impose no new
requirements. Accordingly, no additional costs to State, local or
tribal governments, or to the private sector, result from these
actions.
Likewise, EPA believes, as discussed in section IV of this
document, that the finding of failure to attain and reclassification to
Serious are factual determinations based upon air quality data and must
occur by operation of law and, hence, do not impose any federal
intergovernmental mandate, as defined in section 101 of the Unfunded
Mandates Act.
VII. Small Business Regulatory Enforcement Fairness Act (SBREFA)
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 of the General
Accounting Office prior to publication of the rule in today's Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
VIII. Petitions for Judicial Review
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 May 9, 1997. 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
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, and Reporting
and recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: January 31, 1997.
Max H. Dodson,
Acting Regional Administrator.
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:
[[Page 10700]]
Authority: 42 U.S.C. 7401-7671q.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(80) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(80) On July 11, 1994, July 13, 1994, September 29, 1995, and
December 22, 1995, the Governor of Colorado submitted revisions to the
Colorado State Implementation Plan (SIP) to satisfy those CO
nonattainment area SIP requirements for Denver and Longmont, Colorado
due to be submitted by November 15, 1992, and further revisions to the
SIP to shorten the effective period of the oxygenated fuels program.
EPA is not taking action on the SIP provision submitted on July 11,
1994 that calls for a prohibition of the re-registration of abandoned
and impounded vehicles.
(i) Incorporation by reference.
(A) Regulation No. 11, Motor Vehicle Emissions Inspection Program,
5 CCR 1001-13, as adopted on September 22, 1994, effective November 30,
1994. Regulation No. 13, Oxygenated Fuels Program, 5 CCR 1001-16, as
adopted on October 19, 1995, effective December 20, 1995.
PART 81--[AMENDED]
1. The authority citation for Part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In 81.306, the Carbon Monoxide table is amended by revising the
entry for ``Denver-Boulder Area'' to read as follows:
Sec. 81.306 Colorado.
* * * * *
Colorado--Carbon Monoxide
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area --------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Denver-Boulder Area:
The boundaries for the Denver
nonattainment area for carbon monoxide
(CO) are described as follows: Start
at Colorado Highway 52 where it
intersects the eastern boundary of
Boulder County; Follow Highway 52 west
until it intersects Colorado Highway
119; Follow northern boundary of
Boulder city limits west to the 6000-
ft. elevation line; Follow the 6000-
ft. elevation line south through
Boulder and Jefferson Counties to US 6
in Jefferson County; Follow US 6 west
to the Jefferson County-Clear Creek
County line; Follow the Jefferson
County western boundary south for
approximately 16.25 miles; Follow a
line east for approximately 3.75 miles
to South Turkey Creek; Follow South
Turkey Creek northeast for
approximately 3.5 miles; Follow a line
southeast for approximately 2.0 miles
to the junction of South Deer Creek
Road and South Deer Creek Canyon Road;
Follow South Deer Creek Canyon Road
northeast for approximately 3.75
miles; Follow a line southeast for
approximately five miles to the
northern-most boundary of Pike
National Forest where it intersects
the Jefferson County-Douglas County
line; Follow the Pike National Forest
boundary southeast through Douglas
County to the Douglas County-El Paso
County line; Follow the southern
boundary on Douglas County east to the
Elbert County line; Follow the eastern
boundary of Douglas County north to
the Arapahoe County line; Follow the
southern boundary of Arapahoe County
east to Kiowa Creek; Follow Kiowa
Creek northeast through Arapahoe and
Adams Counties to the Adams-Weld
County line; Follow the northern
boundary of Adams County west to the
Boulder County line; Follow the
eastern boundary of Boulder County
north to Highway 52.
Adams County (part).................... ......... Nonattainment.............. 4/9/97 Serious.
Arapahoe County (part)................. ......... Nonattainment.............. 4/9/97 Serious.
Boulder County (part).................. ......... Nonattainment.............. 4/9/97 Serious.
Denver County (part)................... ......... Nonattainment.............. 4/9/97 Serious.
Douglas County (part).................. ......... Nonattainment.............. 4/9/97 Serious.
Jefferson County (part)................ ......... Nonattainment.............. 4/9/97 Serious.
----------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
* * * * *
[FR Doc. 97-5765 Filed 3-7-97; 8:45 am]
BILLING CODE 6560-50-P
