[Federal Register Volume 64, Number 164 (Wednesday, August 25, 1999)]
[Rules and Regulations]
[Pages 46279-46290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21933]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[CO-001-0032a; FRL-6410-7]
Approval and Promulgation of Air Quality Implementation Plans;
State of Colorado; Colorado Springs Carbon Monoxide Redesignation to
Attainment, Designation of Areas for Air Quality Planning Purposes, and
Approval of a Related Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On August 19, 1998, the Governor of Colorado submitted a
request to redesignate the Colorado Springs ``moderate'' 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 addition, on October 1, 1998, the Governor
submitted revisions to Colorado's Regulation No. 13 ``Oxygenated Fuels
Program''. In this action, EPA is approving the Colorado Springs CO
redesignation request, the maintenance plan, and the revisions to
Regulation No. 13.
DATES: This direct final rule is effective on October 25, 1999 without
further notice, unless EPA receives adverse comments by September 24,
1999. If adverse comment is received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
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
500, 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:
[[Page 46280]]
United States Environmental Protection Agency, Region VIII, Air and
Radiation Program, 999 18th Street, Suite 500, 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: Tim Russ, Air and Radiation Program,
Mailcode 8P-AR, United States Environmental Protection Agency, Region
VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466 Telephone
number: (303) 312-6479.
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 approving a change in the legal designation
of the Colorado Springs area from nonattainment for CO to attainment,
we're approving the maintenance plan that is designed to keep the area
in attainment for CO for the next 11 years, and we're also approving
changes to the State's Regulation No. 13 for the implementation of the
wintertime oxygenated fuels program.
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 Colorado Springs area as nonattainment for CO because
the area had been designated as nonattainment before November 15, 1990.
We originally designated Colorado Springs as nonattainment for CO under
the provisions of the 1977 CAA Amendments (see 41 FR 28002, July 8,
1976). This designation was reaffirmed by the 1990 CAA Amendments and
Colorado Springs was classified as a ``moderate'' CO nonattainment area
with a design value of less than or equal to 12.7 parts per million
(ppm). See 56 FR 56694, November 6, 1991. Further information regarding
this classification 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 approving
the revisions to Regulation No. 13.
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 Carbon Monoxide (CO) Redesignation Request and
Maintenance Plan for Colorado Springs on January 15, 1998. The AQCC
adopted the redesignation request and maintenance plan directly after
the hearing. This SIP revision became State effective March 30, 1998,
and was submitted by the Governor to us on August 19, 1998.
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. By operation of law under section
110(k)(1)(B) of the CAA, the Governor's August 19, 1998, submittal
became complete on February 19, 1999.
For the Regulation No. 13 revisions, two public hearings were held.
On April 17, 1997, the AQCC held a public hearing to consider the
changes to Regulation No. 13 that involved shortening of the oxygenated
fuels season by one week and reducing the minimum oxygen content in
fuels for the first and last weeks of the program. The AQCC adopted
these changes directly after the April 17, 1997, public hearing and
they became State effective on June 30, 1997.
On January 16, 1998, the AQCC held a public hearing to consider
further changes to Regulation No. 13, in response to action by the
Colorado General Assembly. The Colorado General Assembly approved the
April 17, 1997, AQCC changes to Regulation No. 13; however, the General
Assembly changed the implementation time frame from 1998-1999, as
contained in the Regulation, to 1997-1998. (State Senate Bill
SB(97)236, codified at Sec. 25-7-133.5(2)(n), C.R.S.) The purpose of
the January 16, 1998, public hearing was for the AQCC to change
Regulation No. 13 to match the implementation time frame of SB(97)236.
This change was adopted by the AQCC directly after the January 16,
1998, public hearing and became State effective on March 30, 1998. The
Governor submitted both the April 17, 1997, and January 16, 1998,
revisions to Regulation No. 13 to us on October 1, 1998.
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. By operation of law under section
110(k)(1)(B) of the CAA, the Governor's October 1, 1998, submittal
became complete on April 1, 1999.
III. EPA's Evaluation of the Redesignation Request and Maintenance
Plan
EPA has reviewed the State's redesignation request and maintenance
plan and believes 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
[[Page 46281]]
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.
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\1\ Refer to EPA's September 4, 1992, John Calcagni policy
memorandum entitled ``Procedures for Processing Requests to
Redesignate Areas to Attainment.''
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Colorado's CO redesignation request for the Colorado Springs area
is based on an analysis of quality assured ambient air quality
monitoring data that are relevant to the redesignation request. As
presented in Section 2 of the State's maintenance plan, ambient air
quality monitoring data for consecutive calendar years 1988 through
1996 show a measured exceedance rate of the CO NAAQS of 1.0 or less per
year, per monitor, in the Colorado Springs nonattainment area. Data are
also available for calendar years 1997 and 1998 that also show no
exceedances of the CO NAAQS. 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 Section 2 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 Colorado Springs area has not violated the CO standard and
continues to demonstrate attainment.
The Colorado Springs nonattainment area has quality-assured data
showing no violations of the CO NAAQS for 1995 and 1996 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.,
1997 and 1998) also show no violations. Therefore, the Colorado Springs
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
The Colorado Springs CO element of the Colorado SIP was adopted by
the AQCC in June of 1982 and was approved by the EPA on December 12,
1983 (48 FR 55284). The 1982 SIP element's emission control plan was
based on emission reductions from the Federal Motor Vehicle Control
Program (FMVCP), Automobile Inspection and Readjustment Program,
Improved Public Transit, Carpool Locator Service, and Traffic Flow
Improvements. The anticipated date for attaining the 8-hour CO NAAQS
was December 31, 1987.
Through a letter dated May 26, 1988, we notified the Governor of
Colorado that the Colorado Springs area did not attain the CO NAAQS by
the end of 1987. This letter stated that Colorado was to address
deficiencies in the SIP and that the State would also have to address
requirements in our forthcoming post-1987 policy for carbon monoxide.
To partially address deficiencies in the Colorado Springs SIP element,
the State included the Clean Air Campaign in the SIP, although no
emissions reductions credits were assigned to this program. We approved
the Clean Air Campaign into the SIP (see 54 FR 22893, May 30, 1989) for
its underlying benefit to the area.
EPA did not finalize its post-1987 policy for carbon monoxide
because the Clean Air Act (CAA) was amended on November 15, 1990. Under
section 186 of the CAA, Colorado Springs was designated nonattainment
for CO, was classified as ``moderate'' with a design value of less 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 new CAA
requirements for moderate CO areas, such as Colorado Springs, required
that the SIP be revised to include a 1990 base year emissions inventory
(CAA section 187(a)(1)), corrections to existing motor vehicle
inspection and maintenance(I/M) programs (CAA section 187(a)(4)),
periodic emission inventories (CAA section 187(a)(5)), and the
implementation of an oxygenated fuels program (CAA section 211(m)(1)).
How the State met these requirements and our approvals, are
described as follows:
A. 1990 base year emissions inventory (CAA section 187(a)(1)): The
Governor submitted a 1990 base year emissions inventory for Colorado
Springs on December 31, 1992, with subsequent revisions being submitted
on March 23, 1995. We approved this 1990 base year CO emissions
inventory on December 23, 1996 (see 61 FR 67466).
B. Corrections to the Colorado Springs basic I/M program (CAA
section 187(a)(4)): On January 14, 1994, and June 24, 1994, the
Governor submitted revisions to the Colorado basic I/M program portion
of its SIP which included the program in Colorado Springs. We approved
these basic I/M program revisions on March 19, 1996 (see 61 FR 11149).
C. Periodic emissions inventories (CAA section 187(a)(5)): As the
Governor did not submit a complete redesignation request and
maintenance plan before September 30, 1995, a periodic emission
inventory (for calendar year 1993) was required for Colorado Springs.
On September 16, 1997, the Governor submitted a SIP revision for a 1993
periodic emission inventory for Colorado Springs. We
[[Page 46282]]
approved this revision on July 15, 1998 (see 63 FR 38087).
D. Oxygenated fuels program implementation (CAA section 211(m)): To
address the oxygenated fuels requirements of the CAA, the Governor
initially submitted a revision to Colorado's Regulation No. 13 on
November 27, 1992. We approved this revision on July 24, 1994 (see 59
FR 37698). Regulation 13 was again revised, to shorten the oxygenated
fuels program season, and the Governor submitted further revisions to
Regulation No. 13 on September 29, 1995, and December 22, 1995. We
approved these revisions on March 10, 1997 (see 62 FR 10690).
Based on the above actions by the State and us, EPA has determined
that the SIP continues to satisfy the requirements of section
110(a)(2).
2. Part D Requirements
Before the Colorado Springs CO nonattainment area may be
redesignated to attainment, the State must have fulfilled the
applicable requirements of part D of the CAA. 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 the area is classified
or nonclassifiable for CO.
The relevant Subpart 1 requirements are contained in sections
172(c) and 176. Our General Preamble (see 57 FR 13498, April 16, 1992)
provides EPA's interpretations of the CAA requirements for moderate CO
areas with design values of less than 12.7 ppm.
Under section 172(b), the applicable section 172(c) requirements,
as determined by the Administrator, were due November 15, 1992, for the
Colorado Springs nonattainment area. As the Colorado Springs CO
redesignation request and maintenance plan were not submitted by the
Governor until well after November 15, 1992, (i.e., actually, August
19, 1998), the General Preamble (see 57 FR 13529) provides that the
applicable requirements of CAA section 172 were 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 contingency measures (CAA section 172(c)(9)). It is also worth
noting that we interpreted the requirements of sections 172(c)(1)
(reasonable available control measures--RACM), 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.
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 applicable requirements of CAA section 172 are discussed below.
A. Section 172(c)(3)--Emissions Inventory
Section 172(c)(3) of the CAA requires a comprehensive, accurate,
current inventory of all actual emissions from all sources in the
Colorado Springs nonattainment area. As stated above for CAA section
187(a)(1), the Governor submitted a 1990 base year emissions inventory
for Colorado Springs on December 31, 1992, with subsequent revisions
being submitted on March 23, 1995. We approved this 1990 base year CO
emissions inventory on December 23, 1996 (see 61 FR 67466).
B. Section 172(c)(5) New Source Review (NSR)
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 after the redesignation to
attainment is approved by us.
C. Section 172(c)(7)--Compliance With CAA section 110(a)(2): Air
Quality Monitoring Requirements
According to our interpretations presented in the General Preamble
(57 FR 13498), CO nonattainment areas are to meet the ``applicable''
air quality monitoring requirements of section 110(a)(2) of the CAA as
explicitly referenced by sections 172 (b) and (c) of the CAA. With
respect to this requirement, the State indicates in Section 3 of the
maintenance plan (``Attainment of the Carbon Monoxide Standard''), that
ambient CO monitoring data have been properly collected and uploaded to
EPA's Aerometric Information and Retrieval System (AIRS) for the
Colorado Springs area. Air quality data through 1996 are included in
Section 3 of the maintenance plan and in the State's TSD. We recently
polled the AIRS database and verified that the State has also uploaded
additional ambient CO data through 1998. The data in AIRS indicate that
the Colorado Springs area has shown, and continues to show, attainment
of the CO NAAQS. 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 Colorado Springs
network remains adequate. Finally, in Section 8, 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 Colorado Springs area is redesignated to
attainment for CO.
D. Section 172(c)(9) Contingency Measures
According to our interpretations presented in the General Preamble
(see 56 FR 13532), moderate CO nonattainment areas, such as Colorado
Springs, were required to submit contingency measures to address the
requirements of section 172(c)(9) of the CAA. These contingency
measures were to become effective, without further action by the State
or us, upon a determination by us that an area had failed to achieve
reasonable further progress (RFP) or to attain the CO NAAQS by December
31, 1995. To address this CAA requirement, the Governor submitted
contingency measures to EPA on February 18, 1994. We approved this
submittal on December 23, 1997 (see 62 FR 67006).
[[Page 46283]]
(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 based on the
pre-1990 CAA as well as SIP revisions required under the 1990
amendments to the CAA. On April 8, 1999 (64 FR 17102) we approved a SIP
revision that removed a bus acquisition program from the Colorado
Springs CO SIP and instead substituted emission reductions from the
oxygenated fuels program. The bus acquisition program was not
implemented due to a lack of federal funding. In this action, we are
approving revisions to Regulation No. 13 and the State's commitment to
maintain an adequate monitoring network (contained in the maintenance
plan.) Thus, we have fully approved the Colorado Springs CO 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 CO emissions reductions for Colorado Springs, that are further
described in Sections 5. and 6. of the August 19, 1998, Colorado
Springs maintenance plan, were achieved primarily through the Federal
Motor Vehicle Control Program (FMVCP), a decentralized basic motor
vehicle inspection and maintenance (I/M) program, oxygenated fuels, and
traffic flow improvements.
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 Colorado Springs. 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 stated in Section 5. of the maintenance plan, significant
additional emission reductions were realized from Colorado Springs's
basic I/M program. Colorado's Regulation No. 11, ``Motor Vehicle
Emissions Inspection Program'', contains a full description of the
requirements for Colorado Springs's I/M program. We note that further
improvements to the Colorado Springs area's basic I/M program were
implemented in January, 1995, to meet the requirements of EPA's
November 5, 1992, (57 FR 52950) I/M rule and were approved by us into
the SIP on March 19, 1996 (61 FR 11149).
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 Colorado
Springs nonattainment area. Regulation 13 requires all Colorado
Springs-area gas stations to sell fuels containing a 2.7% minimum
oxygen content (by weight) during the wintertime CO high pollution
season. The use of oxygenated fuels has significantly reduced CO
emissions and contributed to the area's attainment of the CO NAAQS.
Colorado Springs has also implemented traffic flow improvements to
alleviate congestion and shorten travel distances. These improvements
involved throat widening, channelization, signalization, widening of
existing roadways, construction of new roadways, or restriction of
access to roadways. The specific traffic flow improvements that were
identified for necessary action in the 1982 Colorado Springs SIP
revision, involved the construction of the Union Boulevard extension
and traffic signalization. These particular improvements have been
accomplished and are now part of the permanent transportation
infrastructure.
We have evaluated the various State and Federal control measures,
the original 1990 base year emission inventory (see 61 FR 67466,
December 23, 1996), and the 1993 attainment year emission inventory,
and have concluded that the improvement in air quality in the Colorado
Springs 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. In this Federal Register action, EPA is
approving the maintenance plan for the Colorado Springs nonattainment
area because we have determined, 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 August 19, 1998, submittal, is provided as follows:
[[Page 46284]]
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 and the
September 4, 1992, policy 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. For the Colorado
Springs area, the State selected the emissions inventory approach for
demonstrating maintenance of the CO NAAQS.
The maintenance plan that the Governor submitted on August 19,
1998, included comprehensive inventories of CO emissions for the
Colorado Springs area. These inventories include emissions from
stationary point sources, area sources, non-road mobile sources, and
on-road mobile sources. The State selected 1993 as the year from which
to develop the attainment year inventory and included interim-year
projections out to 2010. More detailed descriptions of the 1993
attainment year inventory and the projected inventories are documented
in the maintenance plan in Section 8 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 1993 attainment year and the interim projected years are
provided in Table I.-1 below.
Table I.--1 Summary of CO Emissions in Tons Per Day for Colorado Springs:
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1993 1997 2002 2005 2010
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Point Sources................... 4.54 4.80 5.20 5.40 5.78
Area Sources.................... 69.49 70.40 71.50 72.20 73.31
Non-Road Mobile Sources......... 39.44 43.30 48.20 51.20 56.05
On-Road Mobile Sources.......... 264.20 223.90 183.80 175.60 173.22
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Total....................... 377.67 342.40 308.70 304.40 308.36
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2. Demonstration of Maintenance--Projected Inventories
As we noted above, total CO emissions were projected forward by the
State for the years 1997, 2002, 2005, and 2010. The projected
inventories show that CO emissions are not estimated to exceed the 1993
attainment level during the time period 1993 through 2010 and,
therefore, the Colorado Springs area has satisfactorily demonstrated
maintenance.
3. Monitoring Network and Verification of Continued Attainment
Continued attainment of the CO NAAQS in the Colorado Springs 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
maintenance plan. In Section 8 D. the State commits to continue the
operation of the CO monitors in the Colorado Springs area and to
annually review this monitoring network and make changes as
appropriate. Also, in Section 8 E.1., the State commits to prepare a
periodic emission inventory of CO emissions every three years after the
maintenance plan is approved by EPA. With this action, we are approving
these commitments as satisfying relevant requirements. Our approval
renders 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
Section 8 E. of the maintenance plan, the contingency measures for the
Colorado Springs area will be initially triggered by an exceedance of
the CO NAAQS. Upon an exceedance of the CO NAAQS, the Pike's Peak Area
Council of Governments (PPACG) will recommend for adoption appropriate
local contingency measures to correct a potential violation of the CO
NAAQS (i.e., a second non-overlapping 8-hour average ambient CO
measurement that exceeds 9.4 ppm at a single monitoring site during a
calendar year is a violation of the 8-hour CO NAAQS). This process will
take approximately six months. The Colorado AQCC will review the local
contingency measures and if the AQCC concurs, the AQCC may endorse or
approve the local measures without adopting State requirements. If,
however, the AQCC finds that locally adopted contingency measures are
inadequate, the AQCC will adopt State enforceable measures as deemed
necessary to prevent additional exceedances or a violation. The
maintenance plan further states that contingency measures will be
adopted and fully implemented within one year of a CO NAAQS violation.
The potential contingency measures that are identified in Section
8.E.3. of the Colorado Springs maintenance plan include increasing the
required 2.7 percent minimum oxygen content of gasoline to a level
above the actual oxygen content of gasolines at the time of the
violation, making improvements to Colorado Springs's I/M program,
adopting of a motor vehicle enhanced inspection and maintenance
program, establishing a high pollution day episodic woodburning
curtailment program, adopting a mandatory Employer-Based Travel
Reduction Program, adopting Employee Commute Options, re-implementing a
carpool locator service, and adopting other measures that may be
considered appropriate. A more complete description of the triggering
mechanism and these contingency measures can be found in Section 8 E.
of the maintenance plan.
Based on the above, we find that the contingency measures provided
in the State's 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 SIP revision eight years
after the approval of the redesignation. This provision for revising
the maintenance plan is contained in Section 8 F. of the Colorado
Springs 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
[[Page 46285]]
Program are consistent with the emissions budgets 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.
Section 8 C. of the Colorado Springs maintenance plan describes an
emissions budget for on-road mobile sources for the years 1998 through
2009 as being 264 tons per day (TPD) of CO and for the year 2010 as
being 212 TPD of CO. The PPACG and the State derived the 264 TPD number
for 1998 through 2009 from the 1993 attainment year inventory value for
on-road mobile sources. We cannot approve this 264 TPD value as a
budget for conformity purposes because the budget is not consistent
with maintenance of the NAAQS.2 The attainment year's mobile
source budget of 264 tons per day does not provide for maintenance of
the CO NAAQS when combined with the increasing emissions levels from
non-mobile sources during the 1998-2009 period (i.e., use of the 264
ton budget for any year after 1993 would push total emissions over the
maintenance plan's attainment year level of 377 tons per day). Thus, we
are taking no action on language in section 8 C. of the maintenance
plan that purports to establish an emissions budget for 1998 through
2009 of 264 TPD of CO. The effect of this is that PPACG and the State
may not use 264 TPD as the budget for conformity purposes.
---------------------------------------------------------------------------
\2\ Pursuant to Section 93.118(e)(4) of the Transportation
Conformity Rule (40 CFR Part 93, Subpart A), we previously reviewed
the adequacy of the maintenance plan's carbon monoxide emissions
budgets for purposes of conformity. In an April 29, 1999 letter,
from Richard R. Long, Director, Air and Radiation Program, EPA
Region VIII, to Margie Perkins, Director, Air Pollution Control
Division, Colorado Department of Public Health and Environment, we
determined that the emissions budget for 2010 and beyond (212 tons
per day) was adequate for conformity purposes, and determined that
the budget of 264 tons per year for the 1998-2009 period was
inadequate. Although this action is consistent with our prior
adequacy determination, it should be noted that, in taking final
action on the maintenance plan, we are not bound by our prior
adequacy determination. See 62 FR 43782, August 15, 1997.
---------------------------------------------------------------------------
Our non-action on this budget is unlikely to have any practical
consequences for conformity determinations. Because the most recent
conformity determination for the PPACG 2020 Transportation Plan
demonstrated conformity to the 212 ton per day budget for the years
required to be analyzed under Section 93.118(b) of the conformity rule
(e.g., 2010 and 2020), we do not believe that our determination that
the 264 ton per day budget is unapprovable has any negative
consequences for this existing conformity determination. And under
Section 93.118(b) of the conformity rule, PPACG is unlikely to ever
have to conduct a conformity analysis for any years in the 1998-2009
time frame in the future. However, if such an analysis becomes
necessary, it must be conducted in accordance with EPA's conformity
rule, in particular 40 CFR 93.118(b)(2)(i).
We are approving the 2010 budget of 212 TPD of CO. This budget is
consistent with the maintenance demonstration. The PPACG and the State
established the on-road mobile source emissions budget for 2010 and
beyond by using the 2010 on-road mobile source emission figures and a
portion of the ``safety margin.'' The safety margin is the amount by
which the attainment year emissions from all source categories exceed
the projected year emissions from all source categories. (Table 5 of
the maintenance plan identifies the total 1993 attainment year
emissions as 377.69 TPD of CO. Table 6 of the maintenance plan
identifies the total 2010 maintenance year emissions as 308.36 TPD of
CO.) The total 1993 attainment year emissions exceed the total 2010
maintenance year emissions by 69.33 TPD. Thus, 69.33 TPD constitutes
the safety margin in 2010.) The PPACG and the State then used the 2010
on-road mobile sources emissions (173.22 TPD) and 56.2% of the safety
margin (38.96 TPD) to arrive at a 2010 on-road mobile sources emissions
budget of 212.18 TPD of CO. The State then rounded this budget to 212
TPD of CO. The 2010 budget will apply for 2010 and beyond. See 40 CFR
93.118(b)(2)(ii).
The emissions budget definition in the Colorado Ambient Air Quality
Standards regulation (5 CCR 1001-14) conflicts with the language on
page 8-14 of the maintenance plan and is internally inconsistent; it
inadvertently applies both the invalid 264 TPD budget and the 212 TPD
budget to the year 2010. Our interpretation, based on the language of
the maintenance plan and our conformity rule, is that the maintenance
plan's 212 TPD emission budget applies starting in 2010, superseding
the incorrect language in 5 CCR 1001-14.
V. EPA's Evaluation of the Regulation No. 13 Revisions
Colorado's Regulation No. 13 is entitled ``Oxygenated Fuels
Program.'' The purpose of this regulation is to reduce CO emissions
from gasoline powered motor vehicles in Colorado's Front Range Area,
which includes Colorado Springs, through the wintertime use of
oxygenated gasolines. Section 211(m) of the CAA required the State to
implement an oxygenated fuels program in the larger of the Consolidated
Metropolitan Statistical Areas (CMSA) or Metropolitan Statistical Areas
(MSA) in which the nonattainment areas are located. In Colorado these
areas are the Colorado Springs MSA, Fort Collins-Loveland MSA, and the
Denver-Boulder CMSA. Section 211(m) of the CAA 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,
because of meteorological conditions, a reduced implementation period
will still assure that there will be no exceedances of the CO NAAQS
outside of this reduced period.
EPA previously approved a revision to Regulation No. 13 that
shortened the oxygenated fuels season by the last two weeks in
February. See 62 FR 10690, March 10, 1997. The State of Colorado is
seeking EPA's approval of further revisions to Regulation No. 13 that
would shorten the oxygenated fuels season by an additional week and
reduce the required oxygen content of the fuels in two other weeks.
Specifically, the revisions are as follows:
(a). The Oxygenated Gasoline Program Period, or ``control period'',
would be reduced by one week. The control period formerly ran from
November 1st through February 14th of each year; as amended, the
control period would run from November 1st through February 7th of each
year.
(b). The fuel oxygenate content requirements were reduced for the
week of November 1st through November 7th of each year. The minimum
oxygen content for this period became 2.0% by weight for all areas
covered by the regulation and there was no maximum blending or 3.1%
averaging requirements for the Denver-Boulder area.
(c). The maximum blending and 3.1% averaging requirements were
revised so that they no longer apply to Denver-Boulder area for the
week of February 1st through February 7th of each year.
[[Page 46286]]
To address the CAA section 211(m) requirement and allow a
shortening of the oxygenated fuels season, the APCD developed a
predictive model for assessing the relative probability of a CO
exceedance during any given week of the oxygenated fuels season. The
use of this model in 1995 allowed the AQCC to approve the first
shortening of the oxygenated fuels program during the last two weeks of
February by demonstrating that the shortening would not result in an
appreciable increase in the possibility of future CO exceedances for
those two weeks.
The APCD model uses a spreadsheet to adjust past monitored CO
concentrations and project them into the future. Monitored CO
concentrations, representing a twenty-year time period, are used in the
spreadsheet database. The highest eight-hour average concentration for
each monitored day of the data set are used. These known values are
then adjusted by using the latest vehicle emission factor model
(currently, MOBILE5) and local transportation traffic projections, in
terms of vehicle miles traveled (VMT), to project CO concentrations
into the future. After normalizing all data points, a statistical
program is used to convert adjusted values to a predicted probability
that any given week will have a CO exceedance. The use of twenty years
worth of monitored data lets meteorological variability be minimized.
When we approved the first shortening of the oxygenated fuels
season, we required the State to demonstrate, based on worst-case
meteorology for Denver for the last 20 years (as indicated by daily
peak 8-hour CO concentrations), at least a 95% probability that there
would be no exceedances of the CO standard during the last two weeks of
February as a result of the shortening of the control period. We
believe, that to implement the statutory requirement of assuring no
exceedances, it is reasonable to require a State to show a very high
probability of no exceedances and that 95% is a reasonable threshold
for the State's demonstration here. Given the limitations of
statistical analysis and the problems associated with proving a
negative, we believe that a higher threshold would be inappropriate.
For the 1998/1999 oxygenated fuels season revision, the State
evaluated the probability of a carbon monoxide exceedance in the Denver
area during the first week of November, 1998, and the first two weeks
of February, 1999, based on four different levels of oxygenates in
automotive fuels and all other elements of the Denver CO SIP being in
place. The analysis was based on the measured daily peak carbon
monoxide concentrations at the CAMP monitoring site in downtown Denver
during the 20-year study period. The high concentrations at the CAMP
site have generally been the highest measured at CO monitoring sites
not only in the Denver-Boulder area, but the entire Front Range area.
Also, of the Front Range CO monitoring sites, the CAMP site has shown
the greatest number of exceedances of the CO NAAQS during the time
periods being analyzed. The 20-year period is sufficiently long to
provide statistically realistic estimates of worst-case atmospheric
dispersion conditions. Carbon monoxide emissions in Denver are expected
to decrease for the next several years, and are expected to remain
below the 1998/1999 levels at least through 2010. Thus, the calculated
probability of a CO NAAQS exceedance is at a maximum in 1998/1999 and
will be lower at least through 2010.
In order to normalize the effects of emissions changes over the 20-
year study period, measured concentrations were adjusted to reflect
estimated changes in CO emissions between the measurement year and
1998/1999. The resulting analysis provided a distribution of
concentrations that would have occurred at the CAMP site had the same
historical meteorological conditions occurred at 1998/1999 emission
rates, at four different levels of oxygenates (including 0%.) The
State's analysis showed the following: (1) For the period of November
1st through the 7th of 1998, at a 2% oxygenate level, there's a 2.5%
probability of a CO NAAQS exceedance; (2) for the period of February
1st through the 7th, of 1999, at a 2.7% oxygenate level, there's a 0.2%
probability of a CO NAAQS exceedance; and (3) for the period of
February 8th through the 14th, at a 0.0% oxygenate level, there's a
2.1% probability of a CO NAAQS exceedance.
The State's analysis also showed that for the Colorado Springs and
Fort Collins-Loveland areas, the probability of an exceedance in either
of those MSA areas is lower than it is for the Denver CMSA area.
Compared to the Denver area, these two areas have experienced
significantly fewer exceedances of the CO standard and significantly
lower ``high'' concentrations over the relevant time frame. Thus, the
probability of an exceedance in the Colorado Springs area and the Fort
Collins-Loveland area, with the changes in oxygenate concentration
embodied in Regulation No. 13, is less than the probability projected
at the CAMP monitor. This probability is expected to further decrease
in years after 1998/1999 due to fleet turnover.
The State also reviewed potential impacts of the Regulation No. 13
revisions on the Denver PM10 SIP attainment demonstration
(APCD/Mobile Sources Program March 24, 1997, Interoffice Memorandum
from Barbara MacRae to Kim Livo). Relying on EPA's consideration of the
elimination of the oxygenated fuels program for the last two weeks of
February (see 61 FR 64649, December 6, 1996), the State concluded that
the increment of benefit due to the oxygenated fuels program is 0.46
ug/m3. When this value is added to the seventh-highest
modeled concentration of 148.7 ug/m3 in the PM10
SIP's maintenance year, the resulting value is still below the 24-hour
PM10 standard of 150 ug/m3.
The highest modeled values for the first week of November and the
second week of February are significantly lower than the 148.7 ug/
m3 value. The State has no modeled value for the first week
of February because the State only modeled the 105 worst meteorological
days and none of these worst days occurred during the first week of
February. Based on the above, the State concluded that the revisions to
Regulation No. 13 would be unlikely to jeopardize the PM10
SIP. We agree with the State's analysis regarding potential impacts to
the Denver PM10 SIP, and do not believe that the reductions
in oxygen content for the first week of November, and the first week of
February, nor the removal of the oxygenated fuels program for the week
of February 8th through the 14th, will impact the Denver
PM10 SIP.
Based on above, we have determined that we can approve the
revisions to Regulation No. 13 as meeting the requirements of section
211(m) of the CAA.
The revisions to Regulation No. 13 were adopted by the AQCC
directly after a public hearing on April 17, 1997, and became State
effective on June 30, 1997.
However, an issue arose after the AQCC's April 17, 1997, approval
of these changes to Regulation No. 13.
Colorado State law requires that any revision to the Colorado SIP
must first by approved by the Colorado General Assembly prior to being
forwarded to the Governor for his approval and submittal to EPA. The
Colorado General Assembly modified the AQCC's April 17, 1997, revisions
to Regulation No. 13. The Colorado General Assembly changed the first
year for implementation of the revised oxygenated fuels program from
the wintertime season of 1998-1999 to
[[Page 46287]]
1997-1998. Further, the Colorado General Assembly required the AQCC to
amend the Regulation No. 13 revisions and incorporate this new (1997-
1998) implementation schedule.
To address the Colorado General Assembly requirements, the AQCC
held a public hearing on January 16, 1998, and revised Regulation No.
13 so that the initial implementation of the changes to the oxygenated
gasoline program, that the AQCC adopted on April 17, 1997, would occur
in the wintertime season of 1997-1998. These January 16, 1998,
amendments to Regulation No. 13 conformed to the language and
requirements of Regulation No. 13 to section 25-7-133.5(2)(n), Colorado
Revised Statutes.
EPA was initially concerned about the changes the Colorado General
Assembly enacted to move up the implementation date of the revisions to
Regulation No. 13, from 1998-1999 to 1997-1998, as the State's
demonstration for the revised Regulation did not address this time
frame. However, this issue became moot as the necessary State
regulatory and legal changes to accomplish this earlier implementation
schedule were not State effective until March 30, 1998. Therefore, the
shortened control period could not be implemented until the wintertime
season of 1998-1999, which was originally analyzed in the State's
demonstration.
On October 1, 1998, the Governor submitted to EPA the revisions to
Regulation No. 13 that were adopted on April 17, 1997 (effective June
30, 1997), and January 16, 1998 (effective March 30, 1998). It is EPA's
understanding that the January 16, 1998, version of Regulation No. 13
replaces the April 17, 1997, version of the Regulation. Thus, although
both versions of the regulation are acceptable to us, EPA is only
approving the later (January 16, 1998) version of the regulation and is
taking no action on the earlier version.
VI. Final Action
In this action, EPA is approving the Colorado Springs carbon
monoxide redesignation request, maintenance plan, and the revisions to
Regulation No. 13.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, we are publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective October 25, 1999
without further notice unless the Agency receives adverse comments by
September 24, 1999.
If EPA receives such comments, then we will publish a timely
withdrawal of the direct final rule informing the public that the rule
will not take effect. All public comments received will then be
addressed in a subsequent final rule based on the proposed rule. The
EPA will not institute a second comment period on this rule. Any
parties interested in commenting on this rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on October 25, 1999 and no further action will
be taken on the proposed rule.
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 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local, or tribal
governments. The rule does not impose any enforceable duties on state,
local, or tribal governments. Accordingly, the requirements of section
1(a) of Executive Order 12875 do not apply to this rule.
(c) Executive Order 13045
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 E.O. 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 and 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 E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks.
(d) Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments, or EPA consults
with those governments. If EPA complies by consulting, Executive Order
12084 requires EPA to provide to the Office of Management and Budget,
in a separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
(e) Regulatory Flexibility Act
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
[[Page 46288]]
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 final rule 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 the 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 a 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 on small entities. Redesignation
to attainment is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources.
Therefore, I certify that the approval of the redesignation request
will not affect a substantial number of small entities.
(f) Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves a
redesignation to attainment and pre-existing requirements under State
or local law, and imposes no new requirements. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, will result from this action.
(g) Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to the publication of the rule in the Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
(h) Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 25, 1999. 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).)
Nothing in this action should be construed as making any
determination or expressing any position regarding Colorado's audit
privilege and penalty immunity law, sections 13-25-126.5, 13-90-107,
and 25-1-114.5, Colorado Revised Statutes (Colorado Senate Bill 94-139,
effective June 1,1994), or its impact upon any approved provision in
the SIP, including the revision at issue here. The action taken herein
does not express or imply any viewpoint on the question of whether
there are legal deficiencies in this or any other Clean Air Act program
resulting from the effect of Colorado's audit privilege and immunity
law. A state audit privilege and immunity law can affect only state
enforcement and cannot have any impact on federal enforcement
authorities. EPA may at any time invoke its authority under the Clean
Air Act, including, for example, sections 113, 167, 205, 211, or 213,
to enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by a state audit privilege or immunity law.
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: July 21, 1999.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
Chapter I, title 40, parts 52 and 81 of the Code of Federal
Regulations are amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart G--COLORADO
2. Section 52.320 is amended by adding paragraph (c)(86) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(86) On October 1, 1998, the Governor of Colorado submitted
revisions to Regulation No. 13 ``Oxygenated Fuels Program'' that
shortened the effective time period of the oxygenated fuels program for
Denver/Boulder, Colorado Springs, Fort Collins, and Longmont carbon
monoxide nonattainment areas and also reduced the required oxygen
content during certain periods.
(i) Incorporation by reference.
(A) Regulation No. 13 ``Oxygenated Fuels Program'', 5 CCR 1001-16,
as adopted on January 16, 1998, effective March 30, 1998.
3. Section 52.349 is amended by adding paragraph (c) to read as
follows:
Sec. 52.349 Control strategy: Carbon monoxide.
* * * * *
(c) Revisions to the Colorado State Implementation Plan, Carbon
Monoxide Redesignation Request and Maintenance Plan for Colorado
Springs, as adopted by the Colorado Air Quality Control Commission on
January 15, 1998, State effective March 30, 1998, and submitted by the
Governor on August 19, 1998.
[[Page 46289]]
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.306, the table entitled ``Colorado-Carbon Monoxide''
is amended by revising the entry for ``Colorado Springs Area'' to read
as follows:
Sec. 81.306 Colorado.
* * * * *
Colorado--Carbon Monoxide
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated Area -------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Colorado Springs Area............... October 25, 1999........... Attainment.................
Urban Transportation Planing
Study Area as defined in
1989.
Beginning near the Town of
Palmer Lake, at the Northwest
corner of the Study Area at a
point on the El Paso/Douglas
County line, also on the Pike
National Forest boundary, then:
east along the County line to
Elbert Road; south on Elbert
Road to Judge Orr Road; east on
Judge Orr Road to Ellicott
Highway; south on Ellicott
Highway to Squirrel Creek Road;
west on Squirrel Creek Road to
Williams Creek; south along
Williams Creek to the
confluence of Williams and
Fountain Creeks; south along
Fountain Creek to the El Paso/
Douglas County line; west on
the County line to I-25; north
on I-25 to Exit 132; west on
McGrath to 35th; south on 35th
to Specker; northwest on
Specker to Titus Blvd.; west on
Titus Blvd. to SH-115;
south on SH-115 to Rock Creek;
northwest along Rock Creek
to the Pike National Forest
boundary; north along the
Forest boundary to Old
Stage Road; southwest on
Old Stage Road to Gold Camp
Road; north on Gold Camp
Road to High Drive; north
on High Drive to Lower Gold
Camp Road; north on Lower
Gold Camp Road to the Pike
National Forest boundary;
west along the Forest
boundary, following the
boundary north, then east
to US-24; northwest on US-
24 to the Pikes Peak Toll
Road; west on the Toll Road
to the El Paso/Teller
County line;
north along the County line to
Crystola Creek; west on
Crystola Creek to County Road
282, north on Road 282 to US-
24; northeast on US-24 to Trout
Creek Road; northwest on Trout
Creek Road to Trout Creek;
north along Trout Creek to the
confluence of Trout and Mule
Creeks; north along Mule Creek
to Long Gulch; east along Long
Gulch to White Gulch; east
along White Gulch to Rampart
Range Road; southeast on
Rampart Range Road to the Pike
National Forest Boundary; north
along the Forest boundary to
the El Paso/Douglas County
line, to the point of origin.
El Paso County (part)
Teller County (part)
* * * * * * *
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\1\ This date is November 15, 1990, unless otherwise noted.
[[Page 46290]]
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[FR Doc. 99-21933 Filed 8-24-99; 8:45 am]
BILLING CODE 6560-50-P
