01-21197. Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Denver Carbon Monoxide Redesignation to Attainment, Designation of Areas for Air Quality Planning Purposes, and Approval of Related Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

On May 10, 2000, the Governor of Colorado submitted a request to redesignate the Denver-Boulder metropolitan (hereafter, Denver) “serious” carbon monoxide (CO) nonattainment area to attainment for the CO National Ambient Air Quality Standard (NAAQS). The Governor also submitted a CO maintenance plan. In conjunction with the maintenance plan, the Governor submitted revisions to Colorado's Regulation No. 11 “Motor Vehicle Emissions Inspection Program”, and Colorado's Regulation No. 13 “Oxygenated Fuels Program”. In addition, on May 7, 2001, the Governor submitted a revision to the Colorado State Implementation Plan (“United States Postal Service (USPS) revision”) that is intended to be a substitute for a Clean Fuel Fleet Program. In this action, EPA is proposing approval of the Denver CO redesignation request, the maintenance plan, the revisions to Regulation No. 11 and Regulation No. 13, and the USPS revision.

DATES:

Written comments must be received on or before September 21, 2001.

ADDRESSES:

Written comments may be mailed to:

Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, United States Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.

Copies of the documents relevant to this action are available for public inspection during normal business hours at the following offices:

United States Environmental Protection Agency, Region VIII, Air and Radiation Program, 999 18th Street, Suite 300, Denver, Colorado 80202-2466; and,

United States Environmental Protection Agency, Air and Radiation Docket and Information Center, 401 M Street, SW, Washington, DC 20460.

Copies of the State documents relevant to this action are available for public inspection at: Colorado Air Pollution Control Division, Colorado Department of Public Health and Environment, 4300 Cherry Creek Drive South, Denver, Colorado, 880246-1530.

FOR FURTHER INFORMATION CONTACT:

For Denver redesignation questions, contact Tim Russ, Air and Radiation Program, Mailcode 8P-AR, United States Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, telephone number: [phone].

For questions regarding the Regulation No. 11, Regulation No. 13, and the U.S. Postal Service revisions, contact Kerri Fiedler, Air and Radiation Program, Mailcode 8P-AR, United States Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, telephone number: [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we”, “us”, or “our” are used we mean the Environmental Protection Agency.

I. What Is the Purpose of This Action?

In this action, we are proposing approval of a change in the legal designation of the Denver area from nonattainment for CO to attainment, we're proposing approval of the maintenance plan that is designed to keep the area in attainment for CO for the next 12 years, we're proposing approval of changes to the State's Regulation No. 11 for the implementation of motor vehicle emissions inspections, we're proposing approval of changes to the State's Regulation No. 13 for the implementation of the wintertime oxygenated fuels program, and we're proposing approval of the USPS revision that requires the destruction, relocation, and replacement with cleaner vehicles of certain USPS vehicles, as a substitute for a Clean Fuel Fleet Program for the Denver metropolitan area.

We originally designated Denver as nonattainment for CO under the provisions of the 1977 CAA Amendments (see 43 FR 8962, March 3, 1978). On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C) of the Clean Air Act (CAA), we designated the Denver area as nonattainment for CO because the area had been designated as nonattainment before November 15, 1990. Under section 186 of the CAA, Denver was originally classified as a “moderate” CO nonattainment area with a design value greater than 12.7 parts per million (ppm), and was required to attain the CO NAAQS by December 31, 1995. See 56 FR 56694, November 6, 1991. The Denver area, however, violated the CO NAAQS in 1995. With our final rule of March 10, 1997 (62 FR 10690), we approved the State's 1994 State Implementation Plan (SIP) submittal and bumped-up the Denver area to a “serious” CO nonattainment classification. Further information regarding these classifications and the accompanying requirements are described in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990.” See 57 FR 13498, April 16, 1992.

Under the CAA, we can change designations if acceptable data are available and if certain other requirements are met. See CAA section 107(d)(3)(D). Section 107(d)(3)(E) of the CAA provides that the Administrator may not promulgate a redesignation of a nonattainment area to attainment unless:

(i) the Administrator determines that the area has attained the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable implementation plan for the area under CAA section 110(k);

(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and,

(v) the State containing such area has met all requirements applicable to the area under section 110 and part D of the CAA.

Before we can approve the redesignation request, we must decide that all applicable SIP elements have been fully approved. Approval of the applicable SIP elements may occur simultaneously with final approval of the redesignation request. That's why we are also proposing approval of the revisions to Regulation No. 11, Regulation No. 13, and the USPS revision.

II. What Is the State's Process To Submit These Materials to EPA?

Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to us.

The Colorado Air Quality Control Commission (AQCC) held a public hearing for the Denver CO redesignation request, the maintenance plan, the revisions to Regulation No. 11, and the revisions to Regulation No. 13 on January 10, 2000. The AQCC adopted the redesignation request, maintenance plan, and revisions to Regulation No. 11 and Regulation No. 13 directly after the hearing. These SIP revisions became State effective March 1, 2000, and were submitted by the Governor to us on May 10, 2000.

We have evaluated the Governor's submittal and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. As required by section 110(k)(1)(B) of the CAA, we reviewed these SIP materials for conformance with the completeness criteria in 40 CFR part 51, Appendix V and determined that the Governor's submittal was administratively and technically complete. Our completeness determination was sent on August 7, 2000, through a letter from Rebecca W. Hanmer, Acting Regional Administrator, to Governor Bill Owens.

For the USPS revision, the Colorado AQCC held a public hearing on March 16, 2000. The AQCC adopted the USPS revisions directly after the hearing. The USPS revision became State effective May 30, 2000, and was submitted by the Governor to us on May 7, 2001. On May 30, 2001, the Colorado Attorney General's Office submitted administrative corrections to the USPS revision to us.

We have evaluated the Governor's submittal of the USPS revision and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. As required by section 110(k)(1)(B) of the CAA, we reviewed these SIP materials for conformance with the completeness criteria in 40 CFR part 51, Appendix V and determined that the Governor's submittal, with the subsequent administrative corrections, was administratively and technically complete. Our completeness determination was sent on June 15, 2001, through a letter from Jack W. McGraw, Acting Regional Administrator, to Governor Bill Owens.

III. EPA's Evaluation of the Denver Redesignation Request and Maintenance Plan

We have reviewed the Denver CO redesignation request and maintenance plan and believe that approval of the request is warranted, consistent with the requirements of CAA section 107(d)(3)(E). The following are descriptions of how the section 107(d)(3)(E) requirements are being addressed.

(a) Redesignation Criterion: The Area Must Have Attained The Carbon Monoxide (CO) NAAQS

Section 107(d)(3)(E)(i) of the CAA states that for an area to be redesignated to attainment, the Administrator must determine that the area has attained the applicable NAAQS. As described in 40 CFR 50.8, the national primary ambient air quality standard for carbon monoxide is 9 parts per million (10 milligrams per cubic meter) for an 8-hour average concentration not to be exceeded more than once per year. 40 CFR 50.8 continues by stating that the levels of CO in the ambient air shall be measured by a reference method based on 40 CFR part 50, Appendix C and designated in accordance with 40 CFR part 53 or an equivalent method designated in accordance with 40 CFR part 53. Attainment of the CO standard is not a momentary phenomenon based on short-term data. Instead, we consider an area to be in attainment if each of the CO ambient air quality monitors in the area doesn't have more than one exceedance of the CO standard over a one-year period. 40 CFR 50.8 and 40 CFR part 50, Appendix C. If any monitor in the area's CO monitoring network records more than one exceedance of the CO standard during a one-year calendar period, then the area is in violation of the CO NAAQS. In addition, our interpretation of the CAA and EPA national policy ^[1] has been that an area seeking redesignation to attainment must show attainment of the CO NAAQS for at least a continuous two-year calendar period. In addition, the area must also continue to show attainment through the date that we promulgate the redesignation in the Federal Register.

Colorado's CO redesignation request for the Denver area is based on an analysis of quality assured ambient air quality monitoring data that are relevant to the redesignation request. As presented in Part II, Chapter 3, section B of the State's maintenance plan, ambient air quality monitoring data for consecutive calendar years 1996 through 1999 show a measured exceedance rate of the CO NAAQS of 1.0 or less per year, per monitor, in the Denver nonattainment area. All of these data were collected and analyzed as required by EPA (see 40 CFR 50.8 and 40 CFR part 50, Appendix C) and have been archived by the State in our Aerometric Information and Retrieval System (AIRS) national database. Further information on CO monitoring is presented in Part II, Chapter 3, section B of the maintenance plan and in the State's Technical Support Document (TSD). We have evaluated the ambient air quality data and have determined that the Denver area has not violated the CO standard and continues to demonstrate attainment.

The Denver nonattainment area has quality-assured data showing no violations of the CO NAAQS for 1996 and 1999 which are the years the State used to support the redesignation request. In addition, data from the most recent consecutive two-calendar-year period (i.e., 1999 and 2000) also show no violations. Therefore, we believe the Denver area has met the first component for redesignation: demonstration of attainment of the CO NAAQS. We note too that the State of Colorado has also committed, in the maintenance plan, to continue the necessary operation of the CO monitors in compliance with all applicable federal regulations and guidelines.

(b) Redesignation Criterion: The Area Must Have Met All Applicable Requirements Under Section 110 And Part D Of The CAA.

To be redesignated to attainment, section 107(d)(3)(E)(v) requires that an area must meet all applicable requirements under section 110 and part D of the CAA. We interpret section 107(d)(3)(E)(v) to mean that for a redesignation to be approved by us, the State must meet all requirements that applied to the subject area prior to or at the time of the submission of a complete redesignation request. In our evaluation of a redesignation request, we don't need to consider other requirements of the CAA that became due after the date of the submission of a complete redesignation request.

1. CAA Section 110 Requirements

On March 10, 1997, we approved the Denver CO element revisions to Colorado's SIP as meeting the requirements of section 110(a)(2) of the CAA (see 62 FR 10690). In addition, we have analyzed the SIP elements that we are proposing approval of as part of this action and we have determined they comply with the relevant requirements of section 110(a)(2).

2. Part D Requirements

Before the Denver “serious” CO nonattainment area may be redesignated to attainment, the State must have fulfilled the applicable requirements of part D. Under part D, an area's classification indicates the requirements to which it will be subject. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonattainment areas, whether classified or nonclassifiable. Subpart 3 of part D contains specific provisions for “serious” CO nonattainment areas.

The relevant subpart 1 requirements are contained in sections 172(c) and 176. Our General Preamble (see 57 FR 13529, 13533, April 16, 1992) provides EPA's interpretations of the CAA requirements for “serious” CO areas.

The General Preamble (see 57 FR 13530, et seq.) provides that the applicable requirements of CAA section 172 are 172(c)(3) (emissions inventory), 172(c)(5) (new source review permitting program), 172(c)(7) (the section 110(a)(2) air quality monitoring requirements), and 172(c)(9) (contingency measures). It is also worth noting that we interpreted the requirements of sections 172(c)(2) (reasonable further progress—RFP) and 172(c)(6) (other measures) as being irrelevant to a redesignation request because they only have meaning for an area that is not attaining the standard. See EPA's September 4, 1992, John Calcagni memorandum entitled, “Procedures for Processing Requests to Redesignate Areas to Attainment”, and the General Preamble, 57 FR at 13564, dated April 16, 1992. Finally, the State has not sought to exercise the options that would trigger sections 172(c)(4) (identification of certain emissions increases) and 172(c)(8) (equivalent techniques). Thus, these provisions are also not relevant to this redesignation request.

Regarding the requirements of sections 172(c)(3) (inventory) and 172(c)(9) (contingency measures), please refer to our discussion below of sections 187(a)(1) and 187(a)(3), which are provisions of subpart 3 of Part D of the CAA that address the same requirements as sections 172(c)(3) and 172(c)(9).

For the section 172(c)(5) New Source Review (NSR) requirements, the CAA requires all nonattainment areas to meet several requirements regarding NSR, including provisions to ensure that increased emissions will not result from any new or modified stationary major sources and a general offset rule. The State of Colorado has a fully-approved NSR program (59 FR 42500, August 18, 1994) that meets the requirements of CAA section 172(c)(5). The State also has a fully approved Prevention of Significant Deterioration (PSD) program (59 FR 42500, August 18, 1994) that will apply if we approve the redesignation to attainment.

For the CAA section 172(c)(7) provisions (compliance with the CAA section 110(a)(2) Air Quality Monitoring Requirements), our interpretations are presented in the General Preamble (57 FR 13535). CO nonattainment areas are to meet the “applicable” air quality monitoring requirements of section 110(a)(2) of the CAA.

Information concerning CO monitoring in Colorado is included in the Monitoring Network Review (MNR) prepared by the State and submitted to EPA. Our personnel have concurred with Colorado's annual network reviews and have agreed that the Denver network remains adequate. In Part II, Chapter 4, section D., of the maintenance plan, the State commits to the continued operation of the existing CO monitors, according to all applicable Federal regulations and guidelines, even after the Denver area is redesignated to attainment for CO.

Section 176 of the CAA contains requirements related to conformity. Although EPA's regulations (see 40 CFR 51.396) require that states adopt transportation conformity provisions in their SIPs for areas designated nonattainment or subject to an EPA-approved maintenance plan, we have decided that a transportation conformity SIP is not an applicable requirement for purposes of evaluating a redesignation request under section 107(d) of the CAA. This decision is reflected in EPA's 1996 approval of the Boston carbon monoxide redesignation. (See 61 FR 2918, January 30, 1996.)

The relevant Subpart 3 provisions were created when the CAA was amended on November 15, 1990. The new CAA requirements for “serious” CO areas, such as Denver, required that the SIP be revised to include a 1990 base year emissions inventory (CAA section 187(a)(1)), vehicle miles traveled tracking (CAA section 187(a)(2)(A)), a special rule for Denver for transportation control measures (TCM) (CAA section 187(a)(2)(B)), contingency provisions (CAA section 187(a)(3)), corrections to existing motor vehicle inspection and maintenance (I/M) programs (CAA section 187(a)(4)), periodic emission inventories (CAA section 187(a)(5)), enhanced motor vehicle I/M program (CAA section 187(a)(6)), a modeled attainment demonstration with specific annual emissions reductions (CAA section 187(a)(7)), and the implementation of an oxygenated fuels program (CAA section 211(m)(1)). How the State met these requirements and our approvals, are described in our March 10, 1997, final rule approving the Denver CO nonattainment area SIP revision (see 62 FR 10690). Additional information and further discussions on these CAA requirements can also be found in our proposed rulemaking regarding the Denver CO SIP revision of July 9, 1996 (61 FR 36004) and December 6, 1996 (61 FR 64647).

Regarding section 187(a)(5) of the CAA (periodic emission inventories), the Governor submitted a SIP revision for a 1993 periodic emission inventory for Denver on September 16, 1997, and a SIP revision for a 1996 periodic emission inventory for Denver on May 10, 2000. We approved these revisions on July 15, 1998 (see 63 FR 38087) and on October 24, 2000 (65 FR 63546), respectively.

In addition to the above, the requirements for clean-fuel vehicle fleets also applied to the Denver area (CAA section 246(a)(2)(B)). We describe how the State addressed the clean-fuel requirements in section VII below.

(c) Redesignation Criterion: The Area Must Have A Fully Approved SIP Under Section 110(k) Of The CAA

Section 107(d)(3)(E)(ii) of the CAA states that for an area to be redesignated to attainment, it must be determined that the Administrator has fully approved the applicable implementation plan for the area under section 110(k).

As noted above, EPA previously approved SIP revisions for the Denver CO nonattainment area that were required by the 1990 amendments to the CAA (see 62 FR 10690, March 10, 1997). In this action, we are also proposing approval of revisions to Colorado's Regulation No. 11 and Regulation No. 13, the USPS revision, and the State's commitment to maintain an adequate monitoring network (contained in the maintenance plan.) Thus, with a final rule to approve the Denver redesignation request, maintenance plan, revisions to Regulation No. 11 and Regulation No. 13, and USPS revision, we will have fully approved the Denver CO element of the SIP under section 110(k) of the CAA.

(d) Redesignation Criterion: The Area Must Show That The Improvement In Air Quality Is Due To Permanent And Enforceable Emissions Reductions

Section 107(d)(3)(E)(iii) of the CAA provides that for an area to be redesignated to attainment, the Administrator must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan, implementation of applicable Federal air pollutant control regulations, and other permanent and enforceable reductions.

The Denver CO element of the Colorado SIP was adopted by the AQCC on June 16, 1994, and was approved by the EPA on March 10, 1997 (62 FR 10690). The 1994 SIP element's emission control plan was primarily based on emission reductions from the Federal Motor Vehicle Control Program (FMVCP), Colorado's Automobile Inspection and Readjustment Program, Colorado's Oxygenated Gasoline Program, and Colorado's Residential Wood Burning Control Measures. The anticipated date for Denver to attain the 8-hour CO NAAQS was December 31, 2000. These programs are further described in Part II, Chapter 3, section D. of the maintenance plan.

In general, the FMVCP provisions require vehicle manufacturers to meet more stringent vehicle emission limitations for new vehicles in future years. These emission limitations are phased in (as a percentage of new vehicles manufactured) over a period of years. As new, lower emitting vehicles replace older, higher emitting vehicles (“fleet turnover”), emission reductions are realized for a particular area such as Denver. For example, EPA promulgated lower hydrocarbon (HC) and CO exhaust emission standards in 1991, known as Tier I standards for new motor vehicles (light-duty vehicles and light-duty trucks) in response to the 1990 CAA amendments. These Tier I emissions standards were phased in with 40% of the 1994 model year fleet, 80% of the 1995 model year fleet, and 100% of the 1996 model year fleet.

As described in Part II, Chapter 3, section D. of the maintenance plan, significant additional emission reductions were realized from Denver's basic I/M program (applicable to 1981 and older vehicles) and, beginning in 1995, the enhanced I/M or I/M240 program (applicable to 1982 and newer vehicles). Colorado's Regulation No. 11, “Motor Vehicle Emissions Inspection Program”, contains a full description of the requirements for both of Denver's I/M programs.

Oxygenated fuels are gasolines that are blended with additives that increase the level of oxygen in the fuel and, consequently, reduce CO tailpipe emissions. Colorado's Regulation 13, “Oxygenated Fuels Program”, contains the oxygenated fuels provisions for the Denver nonattainment area. As approved by EPA on August 25, 1999 (see 64 FR 46279), Regulation 13 required all Denver-area gas stations to sell fuels containing a 3.1% minimum oxygen content (by weight) during the wintertime CO high pollution maximum blending season. The use of oxygenated fuels contributed to the area's attainment of the CO NAAQS.

Denver has also been implementing the requirements of Regulation No. 4 “New Wood Stoves and the use of Certain Woodburning Appliances During High Pollution Days.” The primary strategy of Regulation No. 4 is the mandatory wood burning curtailment program that prohibits most wood burning activity on “high pollution days” between November 1st and March 31st of each year in the Denver metropolitan area. Regulation No. 4 also requires all new wood burning stoves and fireplace inserts sold in Colorado to meet both State and Federal emission control standards.

We have evaluated the various State and Federal control measures, the original 1990 base year emission inventory, the original 2001 attainment year emission inventory, and the 1993 and 1996 periodic emission inventories, and believe that the improvement in air quality in the Denver nonattainment area has resulted from emission reductions that are permanent and enforceable.

(e) Redesignation Criterion: The Area Must Have A Fully Approved Maintenance Plan Under CAA Section 175A

Section 107(d)(3)(E)(iv) of the CAA provides that for an area to be redesignated to attainment, the Administrator must have fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the promulgation of the redesignation, the State must submit a revised maintenance plan that demonstrates continued attainment for the subsequent ten-year period following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for adoption and implementation, that are adequate to assure prompt correction of a violation. In addition, we issued further maintenance plan interpretations in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992), “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Supplemental” (57 FR 18070, April 28, 1992), and the EPA guidance memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” from John Calcagni, Director, Air Quality Management Division, Office of Air Quality and Planning Standards, to Regional Air Division Directors, dated September 4, 1992 (hereafter the September 4, 1992 Calcagni Memorandum). In this Federal Register action, EPA is proposing approval of the maintenance plan for the Denver CO nonattainment area because we believe, as detailed below, that the State's maintenance plan submittal meets the requirements of section 175A and is consistent with the documents referenced above. Our analysis of the pertinent maintenance plan requirements, with reference to the Governor's May 10, 2000, submittal, is provided as follows:

1. Emissions Inventories—Attainment Year and Projections

EPA's interpretations of the CAA section 175A maintenance plan requirements are generally provided in the General Preamble (see 57 FR 13498, April 16, 1992) and the September 4, 1992, Calcagni Memorandum referenced above. Under our interpretations, areas seeking to redesignate to attainment for CO may demonstrate future maintenance of the CO NAAQS either by showing that future CO emissions will be equal to or less than the attainment year emissions or by providing a modeling demonstration. However, under the CAA, many areas (such as Denver) were required to submit a modeled attainment demonstration to show that reductions in emissions would be sufficient to attain the applicable NAAQS. For these areas, the maintenance demonstration is to be based on the same level of modeling (see the September 4, 1992, Calcagni Memorandum). For the Denver area, this involved the use of EPA's Urban Airshed Model (UAM) in conjunction with intersection Hotspot modeling using the CAL3QHC model (see 62 FR 10690, March 10, 1997).

The maintenance plan that the Governor submitted on May 10, 2000, included comprehensive inventories of CO emissions for the Denver area. These inventories include emissions from stationary point sources, area sources, non-road mobile sources, and on-road mobile sources. The State used the 2001 attainment year inventory, from the March 10, 1997, EPA-approved attainment SIP (see 62 FR 10690) and included an interim-year projection for 2006 along with the final maintenance year of 2013. Additional mobile source emission inventories were provided for the years 2002, 2003, 2004, and 2005. These particular mobile source inventories present CO emissions during the phase-in period of the revisions to Regulation No. 11 for the Remote Sensing Device (RSD) program, the phase-in of more stringent cutpoints for the I/M240 program, and the phase-down of the oxygenated gasoline program under the revisions to Regulation No. 13. More detailed descriptions of the 2001 attainment year inventory from the approved nonattainment SIP for Denver, the 2006 projected inventory, the 2013 projected inventory, and the 2002, 2003, 2004, and 2005 mobile source projected inventories are documented in the maintenance plan in Part II, Chapter 4, section B, and in the State's TSD. The State's submittal contains detailed emission inventory information that was prepared in accordance with EPA guidance. Summary emission figures from the 2001 attainment year and the interim projected years are provided in Table III.-1 below.

Table III-1.—Summary of CO Emissions in Tons Per Day for Denver

	2001	2002	2003	2004	2005	2006	2013
Point sources	70.2					46.7	46.7
Area sources	198.2					172.8	172.6
Non-road mobile sources	59.9					61.2	64.9
On-road mobile sources	*875.2	*851	*850	*827	*850	*844.7	*867.2
Total	*1203.3					*1125.4	*1151.4
*These figures represent CO emissions for the Denver CO modeling domain which is slightly larger than the Denver CO nonattainment area.

We note in Table III-1 there are significant reductions projected in years 2006 and 2013 for point sources and area sources. The majority of the area source projected reductions are from the State's estimates for less woodburning in future years. We believe this projection of less woodburning is reasonable. For point sources, the original Denver CO nonattainment plan modeled all point sources at their potential-to-emit (PTE) for 2001, and Table III-1 retains these values for 2001. For years 2006 and 2013, the State projected emissions for elevated point sources at PTE, but projected emissions from surface point sources based on actual emissions. This accounts for the reduction in emissions from point sources in 2006 and 2013. The State's approach follows EPA guidance on projected emissions and we believe it is acceptable.^[2] Further information on these projected emissions may also be found in Section 2 “Emission Inventories” of the State's TSD.

2. Demonstration of Maintenance

The September 4, 1992, Calcagni Memorandum states that where modeling was relied on to demonstrate maintenance, the plan is to contain a summary of the air quality concentrations expected to result from the application of the control strategies. Also, the plan is to identify and describe the dispersion model or other air quality model used to project ambient concentrations.

For the Denver CO redesignation maintenance demonstration, the State used the Urban Airshed dispersion Model (UAM) in conjunction with concentrations derived from the CAL3QHC intersection (or “hotspot”) model. This was the same level of modeling as was used for the 1994 Denver CO SIP attainment demonstration, which was approved by EPA on March 10, 1997 (62 FR 10690), and addressed the requirements of section 187(a)(7) of the CAA. The UAM and CAL3QHC models were applied to the 2006 and 2013 inventories using meteorological data from December 5, 1988. This was the episode day used in the modeling in the EPA-approved 1994 Denver CO nonattainment SIP revision and was thought to represent the worst-case meteorological conditions. For the CAL3QHC intersection component, six intersections were selected for modeling based on the latest information from Denver Regional Council Of Governments (DRCOG) regarding the highest volume and most congested intersections in the Denver CO nonattainment area. This was done consistent with our modeling guidance.

After an analysis, the State concluded that the Continuous Air Monitoring Project (CAMP) ambient air quality monitor, located at the intersection of Broadway and Champa Street, was still the maximum concentration monitor for the Denver CO nonattainment area. This analysis is further detailed in Part II, Chapter 4, section C of the maintenance plan and in the State's TSD. We agree with the State's conclusion regarding the maximum concentration monitor. The results of the State's modeling for 2006 and 2013 are presented in Part II, Chapter 4, section C, of the maintenance plan, in the State's TSD, and are reproduced in Table III-2 below:

Table III-2.—Dispersion Modeling and Intersection Modeling Results

[in parts per million]

Intersection	2006			2013
	UAM 1	CAL3QHC 2	Total	UAM	CAL3QHC	Total
Broadway & Champa 3	7.59	1.12	8.71	7.88	1.08	8.96
Foothills & Arapahoe	0.9	4.8	5.7	0.9	4.7	5.6
1st & University	4.0	4.3	8.3	3.9	4.2	8.0
Hampden & University	1.9	3.6	5.5	1.9	4.3	6.2
Parker & Illiff	2.7	3.2	5.8	2.6	3.0	5.6
Arapahoe & University	1.3	3.6	5.0	1.3	3.9	5.3
1 UAM (Urban Airshed Model). This column represents the dispersion model's calculated background CO concentration at each location.
2 CAL3QHC (Intersection Model). This column represents the intersection model's calculated CO component concentration.
3 The use of two significant figures by the State for the Broadway and Champa intersection, where the CAMP monitor is located, reflects the fact that the modeling done for the maximum concentration location was more detailed.

The modeling results presented in the Denver CO maintenance plan, the State's TSD, and as repeated in Table III-2 above show that CO concentrations are not estimated to exceed the 9.0 ppm 8-hour average CO NAAQS during the maintenance period's time frame through 2013. Therefore, we believe the Denver area has satisfactorily demonstrated maintenance of the CO NAAQS.

3. Monitoring Network and Verification of Continued Attainment

Continued attainment of the CO NAAQS in the Denver area depends, in part, on the State's efforts to track indicators throughout the maintenance period. This requirement is met in two sections of the Denver CO maintenance plan. In Part II, Chapter 4, sections E and F.2, the State commits to continue the operation of the CO monitors in the Denver area and to annually review this monitoring network and make changes as appropriate.

Also, in Part II, Chapter 4, sections E and F.2, the State commits to track mobile sources' CO emissions (which are the largest component of the inventories) through the ongoing regional transportation planning process that is done by DRCOG. Since revisions to Denver's transportation improvement programs are prepared every two years, and must go through a transportation conformity finding, the State will use this process to periodically review the Vehicle Miles Traveled (VMT) and mobile source emissions projections used in the maintenance plan. This regional transportation process is conducted by DRCOG in coordination with the Denver Regional Air Quality Council (RAQC), the State's Air Pollution Control Division (APCD), the AQCC, and EPA.

Based on the above, we are proposing approval of these commitments as satisfying the relevant requirements. We note that a final rulemaking approval will render the State's commitments federally enforceable.

4. Contingency Plan

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions. To meet this requirement, the State has identified appropriate contingency measures along with a schedule for the development and implementation of such measures.

As stated in Part II, Chapter 4, section F of the maintenance plan, the contingency measures for the Denver area will be triggered by a violation of the CO NAAQS. (However, the maintenance plan does note that an exceedance of the CO NAAQS may initiate a voluntary, local process by the RAQC and APCD to identify and evaluate potential contingency measures.)

The RAQC, in coordination with the APCD and AQCC, will initiate a subcommittee process to begin evaluating potential contingency measures no more than 60 days after being notified by the APCD that a violation of the CO NAAQS has occurred. The subcommittee will present recommendations to the RAQC within 120 days of notification and the RAQC will present recommended contingency measures to the AQCC within 180 days of notification. The AQCC will then hold a public hearing to consider the contingency measures recommended by the RAQC, along with any other contingency measures that the AQCC believes may be appropriate to effectively address the violation of the CO NAAQS. The necessary contingency measures will be adopted and implemented within one year after the violation occurs.

The potential contingency measures that are identified in Part II, Chapter 4, section F of the Denver CO maintenance plan include; (1) a 3.1% oxygenated fuels program from November 8th through February 7th, with a 2.0% oxygen content required from November 1st through November 7th, (2) reinstatement of the enhanced I/M program in effect before January 10, 2000, and (3) Transportation Control Measures (TCM) such as financial incentives for Ecopass, Auraria transit pass, and improved traffic signalization. A more complete description of the triggering mechanism and these contingency measures can be found in Part II, Chapter 4, section F of the maintenance plan.

Based on the above, we find that the contingency measures provided in the State's Denver CO maintenance plan are sufficient and meet the requirements of section 175A(d) of the CAA.

5. Subsequent Maintenance Plan Revisions

In accordance with section 175A(b) of the CAA, Colorado has committed to submit a revised maintenance plan eight years after our approval of the redesignation. This provision for revising the maintenance plan is contained in Part II, Chapter 4, section G of the Denver CO maintenance plan.

IV. EPA's Evaluation of the Transportation Conformity Requirements

One key provision of our conformity regulation requires a demonstration that emissions from the transportation plan and Transportation Improvement Program are consistent with the emissions budget(s) in the SIP (40 CFR sections 93.118 and 93.124). The emissions budget is defined as the level of mobile source emissions relied upon in the attainment or maintenance demonstration to maintain compliance with the NAAQS in the nonattainment or maintenance area. The rule's requirements and EPA's policy on emissions budgets are found in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62193-96) and in the sections of the rule referenced above.

The maintenance plan defines the CO motor vehicle emissions budget in the Denver CO attainment/maintenance area as 800 tons per day for all years 2002 and beyond. This budget is equal to the maintenance year (2013) mobile source emissions inventory for CO for the attainment/maintenance area. We have scaled the modeling domain emissions projections for 2002 to the attainment/maintenance area values and believe the 800 tons per day value is essentially equivalent to the mobile source inventory for the attainment/maintenance area in 2002. In addition, our analysis indicates that the 800 tons per day budget is consistent with maintenance of the CO NAAQS throughout the maintenance period. Therefore, we are proposing to approve the 800 tons per day CO emissions budget for the Denver area.

Pursuant to section 93.118(e)(4) of EPA's transportation conformity rule, as amended, EPA must determine the adequacy of submitted mobile source emissions budgets. EPA reviewed the Denver CO budget for adequacy using the criteria in 40 CFR 93.118(e)(4), and determined that the budget was adequate for conformity purposes. EPA's adequacy determination was made in a letter to the Colorado APCD on July 12, 2000, and was announced in the Federal Register on August 3, 2000 (65 FR 47726). As a result of this adequacy finding, the 800 ton per day budget took effect for conformity determinations in the Denver metro area on August 18, 2000. However, we are not bound by that determination in acting on the maintenance plan.

V. EPA's Evaluation of the Regulation No. 11 Revisions

Colorado's Regulation No. 11 is entitled “Motor Vehicle Emissions Inspection Program” (hereafter referred to as Regulation No. 11). In developing the Denver CO maintenance plan, the RAQC and State evaluated a number of options for revising the current motor vehicle emissions inspection programs. A description of the RAQC and State's process for the evaluation of potential options for Regulation No. 11 is found in Part I, Chapter 2 of the Governor's submittal. We note that Part I, Chapter 2 is only for informational purposes and was not submitted as a revision to the SIP. Part II, Chapter 4, is the maintenance plan that we are proposing to approve and it reflects the AQCC-adopted revisions, as an amendment to the SIP, to Regulation No. 11. These revisions to Regulation No. 11 were submitted, as a revision to the SIP, for our approval in conjunction with the maintenance plan and appear as Appendix A to the plan.

We note that the Governor submitted several other revisions to Regulation No. 11 prior to or at the same time as the revision that he submitted with the Denver CO redesignation request and maintenance plan. These other revisions to Regulation No. 11, that we never approved, were submitted on September 16, 1997, August 19, 1998, November 5, 1999, and May 10, 2000 (for Larimer and Weld Counties, Colorado). The version of Regulation No. 11 that was adopted on January 10, 2000, became effective on March 1, 2000, and was submitted by the Governor in conjunction with the Denver CO redesignation request and maintenance plan supersedes and replaces the other revisions of Regulation No. 11.

Current programs: Since 1995, the Denver metropolitan area has operated an Enhanced Inspection/Maintenance (I/M) program, also referred to as the I/M240 program, that includes a biennial test for vehicles manufactured 1982 and later; new vehicles are exempted from the test for their first four years. The Denver area also operates an annual, idle test for model year 1981 and older vehicles. Both the I/M240 and idle test stations are required to be “test-only” facilities, meaning that they are not permitted to perform repairs or sell automotive parts. The programs also include waiver provisions for hardship cases and for motorists who spend $450 on repairs. All vehicles in the Denver program area are required to be tested upon change of ownership.

With the development of the Denver CO maintenance plan, the RAQC and State evaluated several options for revising Regulation No. 11 to reduce the cost of the I/M programs and improve motorist convenience without jeopardizing maintenance of the CO standard. In their evaluations, the RAQC and State retained four components of the current I/M programs: (1) A test-only requirement for both the I/M240 transient program and the idle test program, (2) the requirement for the idle test for 1981 and older vehicles, (3) the current waiver policies, and (4) the requirement for testing upon change of ownership. In addition, the testing exemption for the first 4 years for a new vehicle was also retained. The major change to Regulation No. 11 for the Denver CO maintenance plan involved the implementation of a remote sensing device (RSD), clean-screen program for the Denver area. Remote sensing technology takes an instantaneous measurement of a vehicle's emissions as it is driven on the road past an RSD equipment location. RSD technology essentially involves the use of a light beam emitting device and reflector. As a vehicle passes through the light beam, the emissions are instantly recorded. Vehicle data, correlated from the license plate and hence registration, is then compared with the particular vehicle's model year emission specifications as stated in Regulation No. 11. Vehicles identified as “clean,” would be exempt from one inspection cycle.

Based on a Greeley, Colorado pilot study and an additional pilot study in Denver, conducted by the Colorado Department of Public Health and Environment (CDPHE), implementing remote emissions sensing technology as an alternative inspection procedure brings with it some losses in emissions reduction compared to traditional inspection procedures. Use of remote sensing for clean screening will typically reduce the credit ascribable to the I/M program because some vehicles with high tailpipe emissions may appear clean in a remote sensing test and will be excused from I/M tailpipe testing and repair for that I/M cycle. Also, remote sensing cannot identify low versus high emitting vehicles with respect to evaporative hydrocarbon emissions. The AQCC concluded that this loss of emissions reduction will have no negative impact on compliance with the NAAQS for the Larimer County, Weld County, and Denver metropolitan program areas.

We are proposing to approve the implementation of a clean-screen program for Larimer County, Weld County, and metropolitan Denver in accordance with EPA's final rule, “Additional Flexibility Amendments to Vehicle Inspection Maintenance Program Requirements, Amendment to the Final Rule,” as published in the Federal Register on July 24, 2000 (65 FR 45526), and EPA's Technical Highlights document, “Clean Screening in Inspection and Maintenance Programs” (EPA420-F-98-023).

To implement the clean-screen program for metropolitan Denver (Adams County-part, Arapahoe County-part, Boulder County-part, Denver County, Douglas County, and Jefferson County), the State will develop a network of RSD sites to achieve the clean-screen program percentages described below.

In order to show continued compliance with the CO NAAQS, the Denver RSD clean-screen program will be phased-in starting in 2002. The program is designed to evaluate 20% of the fleet in 2003, 40% of the fleet in 2004, 60% of the fleet in 2005, and 80% of the fleet in 2006. The RSD clean-screen program will continue through 2013. In conjunction with the new RSD clean-screen program, Regulation No. 11's I/M240 program for Denver will also continue to apply to evaluate the remainder of the applicable fleet and those vehicles that did not pass the clean-screen evaluation by the RSD clean-screen program. Also, the I/M240 CO cutpoints will be tightened from the current levels of 20 grams per mile (through 2005) to 10 grams per mile in 2006 through 2013.

As we discussed above, the emission reductions associated with the revisions to Regulation No. 11 were incorporated by the State into both the 2006 and 2013 UAM/CAL3QHC Denver modeling evaluations and maintenance of the CO NAAQS was successfully demonstrated.

For the Larimer County (Fort Collins area) and Weld County (Greeley area) programs, we conducted our own analysis, based on State-provided data, of the potential impacts from the implementation of RSD in these areas. These remote sensing programs are designed to exempt 35% of the I/M eligible vehicles from a periodic emissions inspection, which is estimated to result in a 4% decrease in overall I/M benefit. This translates into an increase in CO emissions of 1.28 tons per day for the Fort Collins area (out of a total CO inventory of approximately 134 tons per day) and an increase of 0.26 tons per day for the Greeley area (out of a total inventory of approximately 44 tons per day).

We also reviewed CO ambient air quality data for both areas for the complete years of 1995, 1996, 1997, 1998, 1999, and 2000. For the Fort Collins area, the highest 8-hour CO value was 5.8 ppm with a six-year average of 5.3 ppm. For the Greeley area, the highest 8-hour CO value was 7.5 ppm with a six-year average of 5.3 ppm. Because the estimated emissions increases are minimal and the CO ambient monitored values are well below the standard (the 8-hour CO NAAQS is 9.0 ppm), we believe the revisions to Regulation No. 11 for Larimer and Weld Counties will not affect the ability of these areas to continue to show attainment of the CO NAAQS.

We have reviewed, and are proposing approval of, these State-adopted changes to Regulation No. 11.

VI. EPA's Evaluation of the Regulation No. 13 Revisions

Colorado's Regulation No. 13 is entitled “Oxygenated Fuels Program” (hereafter referred to as Regulation No. 13). The purpose of this regulation is to reduce CO emissions from gasoline powered motor vehicles in the Denver area through the wintertime use of oxygenated gasolines. Section 211(m) of the CAA originally required the State to implement an oxygenated fuels program in the Denver Consolidated Metropolitan Statistical Area (CMSA). Section 211(m) states that the oxygenated fuels program must cover no less than a four month period each year unless EPA approves a shorter period. We can approve a shorter implementation period if a State submits a demonstration that a reduced implementation period will still assure that there will be no exceedances of the CO NAAQS outside of this reduced period. This was done previously when we approved revisions to Regulation No. 13 for the Denver area that shortened the oxygenated fuels season and oxygenate content (see 62 FR 10690, March 10, 1997 and 64 FR 46279, August 25, 1999). When an area is redesignated to attainment, the oxygenated fuels program may be further shortened or eliminated entirely as long as the State is able to show the program is not needed to demonstrate maintenance of the CO NAAQS (see 65 FR 80779, December 22, 2000).

In developing the Denver CO maintenance plan, the RAQC and State evaluated a number of options for revising the current oxygenated gasoline program. A description of the RAQC and State's process for the evaluation of potential options for Regulation No. 13 is found in Part I, Chapter 2 of the Governor's submittal. We note that Part I, Chapter 2 is only for informational purposes and was not submitted as a revision to the SIP. Part II, Chapter 4, is the maintenance plan that we are proposing to approve and it reflects the AQCC-adopted revisions, as an amendment to the SIP, to Regulation No. 13. These revisions to Regulation No. 13 were submitted for our approval in conjunction with the maintenance plan and appear as Appendix B to the plan.

The current EPA-approved oxygenated gasoline program for the Denver area has the following four requirements: (1) The control period is from November 1st through February 7th of each winter season, (2) an oxygen content of at least 2.0% by weight is required from November 1st through November 7th, (3) an oxygen content of at least 2.7% by weight is required from November 8th through February 7th, with a requirement for maximum allowable oxygenate blending between November 8th and January 31st. The maximum blending for ethanol is 10% by volume (this provides a 3.5% by weight oxygen content), and (4) if the market does not achieve an average oxygenate content of 3.1% by weight for the area during the maximum blending period, a mandatory program to achieve 3.1% shall be implemented.

With the submittal of the Denver CO maintenance plan, the State of Colorado is seeking EPA's approval of revisions to Regulation No. 13 that would shorten the oxygenated fuels season and reduce the required oxygen content of the fuels. The specific revisions to Regulation No. 13 adopted by the AQCC are presented in Table VI-1:

Table VI-1.—Regulation No. 13 Changes to the Oxygenated Gasoline Program

[All percentages represent oxygen content by weight]

Winter season	Nov. 1st to Nov. 7th	Nov. 8th to Jan. 31st	Feb. 1st to Feb. 7th
2001-2002	2.0%	2.7%	2.7%
2002-2003	2.0%	2.6%	1.5%
2003-2004	2.0%	2.0%	1.5%
2004-2005	1.9%	1.9%	0.0%
2005-2006 up through 2011-20012	1.5%	1.5%	0.0%
2012-2013	1.7%	1.7%	0.0%

As we discussed above, the emission reductions associated with the revisions to Regulation No. 13 were incorporated by the State into both the 2006 and 2013 UAM/CAL3QHC modeling evaluations and maintenance of the CO NAAQS was successfully demonstrated.

We have reviewed, and are proposing to approve, these State-adopted changes to Regulation No. 13 as demonstrating maintenance of the CO NAAQS and as meeting the requirements of section 211(m) of the CAA.

VII. EPA's Evaluation of the USPS Revision

Section 246(a)(2)(B) of the CAA requires areas, such as the Denver CO nonattainment area, to have a clean fuel vehicle program in the EPA-approved SIP. Although the State submitted various revisions to Colorado's Regulation No. 17 over the years to try to meet the requirements of section 246(a)(2)(B) (Governor's submittals dated October 17, 1994, August 20, 1996, and September 16, 1997), we never acted favorably on any of these revisions because they either did not meet the requirements of the CAA or the State withdrew the authority for Regulation No. 17.

We advised the State that we would be unable to redesignate the Denver area to attainment for CO unless the Governor submitted a clean fuel vehicle program meeting the requirements of section 246(a)(2)(B) of the CAA or a substitute program pursuant to CAA section 182(c)(4).^[3] The State has chosen to submit a substitute program.

On May 22, 2000, the State, EPA, and USPS entered into an agreement under EPA's Project eXcellence and Leadership program (Project XL) and Colorado's Environmental Leadership Program under which the USPS agreed to destroy or relocate several hundred pre-1984 high-emitting postal delivery vehicles and replace them with low-emitting vehicles (LEV ^[4] ) and low-emitting flexible fuel vehicles.^[5] As part of this agreement, the USPS agreed that the State could incorporate the major components of the agreement into a SIP revision that the State could use as a substitute for a clean fuel vehicle program.

The AQCC adopted the USPS revision on March 16, 2000, and the revision became State-effective on May 30, 2000. The Governor submitted the USPS SIP revision to us on May 7, 2001.

On May 30, 2001, the Colorado Attorney General's Office submitted administrative corrections to the USPS SIP revision ^[6] and we are acting on the corrected version of the SIP revision. Our approval of the USPS revision is necessary in order for the State to meet the redesignation requirements of section 107(d)(3)(E)(v) of the CAA.

We are proposing approval of the USPS SIP revision because we have performed an emissions reduction analysis (included with the docket for this action) and have determined that the State will achieve greater reductions in emissions of CO with the USPS revision than would have been achieved by the clean fuels vehicle program required by CAA section 246(a)(2)(B).

VIII. Proposed Rulemaking Action and Request for Public Comment

We are soliciting public comment on all aspects of this proposed SIP rulemaking action. As stated above, we are proposing approval of the Governor's May 10, 2000, request to redesignate the Denver carbon monoxide nonattainment area to attainment, the maintenance plan, the revisions to Regulation No. 11, the revisions to Regulation No. 13, and the USPS revision. Send your comments in duplicate to the address listed at the front of this proposed rule. We will consider your comments in deciding our final action if your letter is received before September 21, 2001.

Administrative Requirements

(a) Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

(b) Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

(c) Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes approval of a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. In addition, redesignation of an area to attainment under sections 107(d)(3)(D) and (E) of the Clean Air Act does not impose any new requirements. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

(d) Executive Order 13175

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This action does not involve or impose any requirements that affect Indian Tribes. Thus, Executive Order 13175 does not apply to this proposed rule.

(e) Executive Order 13211 (Energy Effects)

This rule is not subject to Executive Order 13211 “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

(f) Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This proposed approval will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because a Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). Redesignation of an area to attainment under sections 107(d)(3)(D) and (E) of the Clean Air Act does not impose any new requirements. Redesignation to attainment is an action that affects the legal designation of a geographical area and does not impose any regulatory requirements. Therefore, because the redesignation to attainment does not create any new requirements, I certify that the proposed approval of the redesignation request will not have a significant economic impact on a substantial number of small entities.

(g) Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the proposed approval does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes approval of pre-existing requirements under State or local law and of the State's redesignation request, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

40 CFR Part 81

• Air pollution control
• National parks
• Wilderness areas

Dated: August 15, 2001.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Footnotes

1.  Refer to EPA's September 4, 1992, John Calcagni policy memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment.”

2.  ``Use of Actual Emissions in Maintenance Demonstrations for Ozone and Carbon Monoxide (CO) Nonattainment Areas'', signed by D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993.

3.  Section 182(c)(4)(B) of the CAA refers to ozone-producing emissions; however, EPA has interpreted this section to allow for substitute programs for CO as well.

4.  A LEV is any vehicle certified to the low emission vehicle standards specified in 40 CFR 86, subpart R.

5.  A flexible fuel vehicle or dual fuel vehicle is a vehicle which operates on the combination of gasoline and an alternative fuel (any fuel other than gasoline and diesel fuel, such as methanol, ethanol, and gaseous fuels (40 CFR 86.000-2)), such as E-85 (gasoline blended with 85% ethanol).

6.  Following adoption of the USPS revision, the AQCC inadvertently neglected to put the revision in final form before sending it to the Governor's office for submitted to EPA. In correcting the USPS revision, State Staff merely removed headings that indicated the USPS revision was “draft”, dated and titled the revision, and inserted the correct date for the USPS Project XL agreement.