[Federal Register Volume 59, Number 177 (Wednesday, September 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22525]
[[Page Unknown]]
[Federal Register: September 14, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[CO11-1-6532a, CO30-1-6533a, and CO36-2-6303a; FRL-5067-7]
Clean Air Act Approval and Promulgation of PM-10 Implementation
Plan for Colorado; Designation of Areas for Air Quality Planning
Purposes
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this document, the EPA is approving the State
implementation plan (SIP) and SIP revisions submitted by the State of
Colorado for the purpose of bringing about the attainment of the
national ambient air quality standards (NAAQS) for particulate matter
with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM-10) in Aspen, Colorado. The SIP was initially submitted
by the State on January 15, 1992, with revisions submitted on March 17,
1993 and December 9, 1993. EPA proposed to grant limited approval of
the January 1992 and March 1993 submittals in a December 23, 1993
Federal Register notice. The State's December 9, 1993 SIP revision
adequately addressed the deficiencies which had been the basis for
EPA's decision to propose limited approval of the previous submittals.
Therefore, EPA is withdrawing the limited approval and now approving
the Aspen submittals as meeting the PM-10 SIP requirements due November
15, 1991. EPA is also approving the PM-10 contingency measures for
Aspen which were included in the December 1993 submittal, and EPA is
amending the Aspen PM-10 nonattainment area boundary.
DATES: This final rule will become effective on November 14, 1994
unless adverse or critical comments are received by October 14, 1994.
If the effective date is delayed, timely notice will be published in
the Federal Register.
ADDRESSES: Comments should be addressed to Vicki Stamper, 8ART-AP, at
the EPA Region VIII Office listed. Copies of the State's submittal and
other information are available for inspection during normal business
hours at the following locations: Air Programs Branch, Environmental
Protection Agency, Region VIII, 999 18th Street, suite 500, Denver,
Colorado 80202-2405; and Air Pollution Control Division, Colorado
Department of Health, 4300 Cherry Creek Drive South, Denver, Colorado
80222-1530.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, 8ART-AP, Environmental
Protection Agency, Region VIII, 999 18th Street, suite 500, Denver,
Colorado 80202-2466, (303) 293-1765.
SUPPLEMENTARY INFORMATION:
I. Background
Aspen, Colorado was designated nonattainment for PM-10 and
classified as moderate under sections 107(d)(4)(B) and 188(a) of the
Act upon enactment of the Clean Air Act Amendments of 1990.1 (See
56 FR 56694, November 6, 1991; 40 CFR 81.306 (specifying nonattainment
designation for Aspen.)) The air quality planning requirements for
moderate PM-10 nonattainment areas are set out in subparts 1 and 4 of
part D of title I of the Act. The EPA has issued a ``General Preamble''
describing EPA's preliminary views on how EPA intends to review SIPs
and SIP revisions submitted under title I of the Act, including those
State submittals containing moderate PM-10 nonattainment area SIP
requirements (see generally 57 FR 13498 (April 16, 1992) and 57 FR
18070 (April 28, 1992)). Because EPA is describing its interpretations
here only in broad terms, the reader should refer to the General
Preamble for a more detailed discussion of the interpretations of title
I advanced in this rulemaking and the supporting rationale. In this
document on the Colorado moderate PM-10 SIP for the Aspen nonattainment
area, EPA has applied its interpretations taking into consideration the
specific factual issues presented.
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\1\The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399.
References herein are to the Clean Air Act, as amended (``the
Act''). The Clean Air Act is codified, as amended, in the U.S. Code
at 42 U.S.C. 7401 et. seq.
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Those states containing initial moderate PM-10 nonattainment areas
were required to submit, among other things, the following provisions
by November 15, 1991:
1. Provisions to assure that reasonably available control measures
(RACM) (including such reductions in emissions from existing sources in
the area as may be obtained through the adoption, at a minimum, of
reasonably available control technology (RACT)) shall be implemented no
later than December 10, 1993;
2. Either a demonstration (including air quality modeling) that the
plan will provide for attainment as expeditiously as practicable but no
later than December 31, 1994 or a demonstration that attainment by that
date is impracticable;
3. Quantitative milestones which are to be achieved every 3 years
and which demonstrate reasonable further progress (RFP) toward
attainment by December 31, 1994; and
4. Provisions to assure that the control requirements applicable to
major stationary sources of PM-10 also apply to major stationary
sources of PM-10 precursors except where the Administrator determines
that such sources do not contribute significantly to PM-10 levels which
exceed the NAAQS in the area. See sections 172(c), 188, and 189 of the
Act.
Some provisions were due at a later date. States with initial
moderate PM-10 nonattainment areas were required to submit a permit
program for the construction and operation of new and modified major
stationary sources of PM-10 by June 30, 1992. See section 189(a) of the
Act. Revisions to satisfy these requirements were submitted by the
State on January 14, 1993, and EPA will be taking action on these
requirements in a separate Federal Register document. Such States were
also required to submit contingency measures by November 15, 1993 which
become effective without further action by the State or EPA, upon a
determination by EPA that the area has failed to achieve RFP or to
attain the PM-10 NAAQS by the applicable statutory deadline. See
section 172(c)(9) of the Act and 57 FR 13543-13544. The State adopted
PM-10 contingency measures for Aspen in November of 1993, and those
measures were included in the State's December 9, 1993 SIP submittal.
Along with taking action on the moderate PM-10 nonattainment area SIP
requirements which were due to EPA on November 15, 1991, EPA is also
taking action on these contingency measures in this document.
II. This Action
On December 23, 1993, EPA proposed to grant limited approval of the
Aspen PM-10 SIP submitted on January 15, 1992 and revised on March 17,
1993 (see 58 FR 68094-68101). Because the State could not demonstrate
that the control measures included in the January 1992 and March 1993
SIP submittals were adequate to demonstrate timely attainment and
maintenance of the PM-10 NAAQS in Aspen, EPA was unable to propose full
approval at that time. EPA thus proposed to grant limited approval of
the submittals for the purpose of strengthening the SIP and to make the
control measures included in those submittals Federally enforceable. In
that document, EPA also proposed to fully approve those few elements of
the SIP submittals which were separable and independent of the
inadequate demonstration of attainment. EPA's proposed approval did not
include the State's voluntary no-drive day control measure, on which
EPA did not propose to take action.
The State subsequently adopted additional PM-10 control measures
for Aspen in November of 1993 and submitted the revised control
measures for approval in the SIP on December 9, 1993, along with a
revised demonstration showing that the control measures adopted and
submitted for the Aspen moderate PM-10 nonattainment area would result
in timely attainment and maintenance of the PM-10 NAAQS.
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566). In this action, EPA
is withdrawing its proposal to grant limited approval published in the
December 23, 1993 Federal Register (58 FR 68094) and is, instead, fully
approving the Aspen PM-10 plan which was due to EPA on November 15,
1991 and submitted by the State on January 15, 1992, March 17, 1993,
and December 9, 1993. Note that EPA's approval does not include the
voluntary no-drive day provision submitted by the State; EPA is not
taking action on that provision at this time. Also, EPA is approving
the PM-10 contingency measures for Aspen, which were due to EPA on
November 15, 1993 and which were submitted with the additional control
measures in the State's December 9, 1993 SIP revision.
Lastly, EPA is amending the nonattainment area boundary for the
Aspen nonattainment area to include some of the area surrounding Aspen.
The revised boundary is based on information submitted with the January
1992 SIP submittal which provided a SIP equivalent demonstration
persuasively showing that the revised boundary more accurately
represents the Aspen airshed. (See section 110(k)(6) of the Act.)
Since the Aspen PM-10 SIP was not submitted by November 15, 1991 as
required, EPA made a finding, pursuant to section 179 of the Act, that
the State failed to submit the SIP and notified the Governor in a
letter dated December 16, 1991. See 57 FR 19906 (May 8, 1992). After
the Aspen PM-10 SIP was submitted on January 15, 1992, EPA found the
submittal to be complete pursuant to section 110(k)(1) of the Act and
notified the Governor accordingly in a letter dated March 16, 1992.
This completeness determination corrected the State's deficiency and,
therefore, terminated the 18-month sanctions clock under section 179 of
the Act.
A. Analysis of State Submittals
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.2 Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a State under the
Act must be adopted by such State after reasonable notice and public
hearing. The EPA also must determine whether a submittal is complete
and therefore warrants further EPA review and action (see section
110(k)(1) of the Act and 57 FR 13565). The EPA's completeness criteria
for SIP submittals are set out at 40 CFR part 51, appendix V (1992).
The EPA attempts to make completeness determinations within 60 days of
receiving a submission. However, a submittal is deemed complete by
operation of law if a completeness determination is not made by EPA 6
months after receipt of the submission.
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\2\Also section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
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As discussed in the December 23, 1993 Federal Register document,
the State met the procedural requirements of the Act for the adoption
of the January 15, 1992 and March 17, 1993 SIP submittals, and EPA
found these submittals to be complete in letters dated March 16, 1992
and May 18, 1993, respectively.
After providing more than 30 days of prior public notice for the
December 1993 SIP revision, the State of Colorado held a public hearing
on November 12, 1993 to entertain public comment on the revision to the
implementation plan for Aspen. The plan for Aspen was subsequently
adopted by the State and submitted by the Governor to EPA on December
9, 1993 as a revision to the SIP. Along with the additional PM-10
controls and contingency measures for Aspen, the SIP submittal also
contained the PM-10 contingency measures for the State's other PM-10
nonattainment areas and additional PM-10 control measures for Pagosa
Springs. EPA will act on those portions of the submittal in separate
Federal Register documents.
The SIP revision was reviewed by EPA to determine completeness
shortly after its submittal, in accordance with the completeness
criteria set out at 40 CFR part 51, appendix V (1992). The submittal
was found to be complete, and a letter dated February 15, 1994 was
forwarded to the Governor indicating the completeness of the submittal
and the next steps to be taken in the review process. In this action,
EPA approves these PM-10 SIP submittals for Aspen as meeting those
moderate PM-10 nonattainment area SIP requirements due November 15,
1991 and as meeting the PM-10 contingency measure requirement due
November 15, 1993. EPA's approval does not include the voluntary no-
drive day provision which the State submitted as a PM-10 control
measure; EPA is not taking action on this control measure at this time.
Since this measure is not needed for the Aspen area to demonstrate
timely attainment or maintenance of the PM-10 NAAQS, EPA's decision not
to take action at this time on this measure does not impact the overall
approvability of the Aspen SIP submittals as meeting those moderate PM-
10 nonattainment area SIP requirements due November 15, 1991.
2. Accurate Emissions Inventory
Section 172(c)(3) of the Act requires that nonattainment plan
provisions include a comprehensive, accurate, and current inventory of
actual emissions from all sources of relevant pollutants in the
nonattainment area. Because the submission of this inventory is a
necessary adjunct to an area's attainment demonstration (or
demonstration that the area cannot practicably attain), the emissions
inventory must be received prior to or with the submission (see 57 FR
13539). An initial emissions inventory was submitted with the January
15, 1992 SIP submittal, and technical revisions to the emissions
inventory were submitted on September 20, 1993 in response to EPA
comments on the initial emissions inventory. The resulting emissions
inventory identified area sources as the primary cause of high PM-10
concentrations, with re-entrained road dust contributing 97.6 percent,
residential wood combustion contributing 2 percent, restaurant
charbroiler grills contributing 0.2 percent, and tailpipe emissions
contributing 0.2 percent. No stationary sources were identified in the
Aspen area.
In the December 23, 1993 Federal Register document, EPA proposed to
approve the emissions inventory for the Aspen, as revised on September
20, 1993 (see 58 FR 68096). This component of the State's PM-10
nonattainment area plan was considered to be separable and independent
of the deficiencies which prohibited EPA from granting full approval of
the January 1992 and March 1993 PM-10 SIP submittals. The emissions
inventory represents an assessment of PM-10 emissions in an area prior
to the adoption of control measures, and EPA did not expect the Aspen
PM-10 emissions inventory to change as a result of any additional
control measures adopted. No comments were received on EPA's December
23, 1993 proposed approval of the emissions inventory, and the
emissions inventory was not changed in the State's December 9, 1993
submittal. Therefore, EPA is finalizing its approval of the emissions
inventory. EPA believes the emissions inventory is accurate and
comprehensive and provides a sufficient basis for determining the
adequacy of the attainment demonstration for this area consistent with
the requirements of section 172(c)(3) of the Act.3 For further
information, please refer to the December 23, 1993 Federal Register
document (58 FR 68096-68097) and the Technical Support Document (TSD)
associated with this action, which is available at the EPA office
identified at the beginning of this document.
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\3\The EPA issued guidance on PM-10 emissions inventories prior
to the enactment of the Clean Air Act Amendments in the form of the
1987 PM-10 SIP Development Guideline. The guidance provided in this
document appears to be consistent with the revised Act. See section
193 of the Act.
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Under EPA's transportation conformity regulations promulgated on
November 24, 1993 (58 FR 62188-62253), a State's nonattainment area
plan should define the motor vehicle emissions budget for which Federal
transportation plans must demonstrate conformity. However, for the
Aspen PM-10 nonattainment area, the motor vehicle emissions budget was
not explicitly stated in the SIP, as the SIP was developed and
submitted prior to the promulgation of the transportation conformity
rules. To reduce future misinterpretation on this issue, EPA, with
concurrence from the State, has calculated the motor vehicle emissions
budget based on the motor vehicle emissions inventory and the
attainment demonstration presented in the SIP. Using the SIP's estimate
of motor vehicle related emissions (including tailpipe and re-entrained
road dust emissions) in the attainment year of 1994, accounting for the
effect of the motor vehicle related control measures that will be
implemented in 1994, the motor vehicle emissions budget was calculated
to be 14,312 pounds per day.
States also have the option of developing motor vehicle emissions
budgets for other years. In an August 26, 1994 letter of concurrence on
the attainment year motor vehicle emissions budget, the State
acknowledged its intent to establish an emissions budget for 1997
pursuant to its 1997 maintenance demonstration for the Aspen PM-10
nonattainment area. The 1997 motor vehicle emissions budget was thus
calculated by the State (based on the 1997 information from the SIP as
discussed above) to be 13,974 pounds per day (excluding the emissions
reductions from the voluntary no-drive day, on which EPA is not taking
action at this time). For further details, please refer to the State's
submittals and the TSD.
3. RACM (Including RACT)
As noted, the initial moderate PM-10 nonattainment areas must
submit provisions to assure that RACM (including RACT) are implemented
no later than December 10, 1993 (see sections 172(c)(1) and
189(a)(1)(C) of the Act). The General Preamble contains a detailed
discussion of EPA's interpretation of the RACM (including RACT)
requirement (see 57 FR 13539-13545 and 13560-13561).
In broad terms, the State should identify available control
measures, evaluating them for their reasonableness in light of the
feasibility of the controls and the attainment needs of the area. A
State may reject an available control measure if the measure is
technologically infeasible or the cost of the control is unreasonable.
In addition, RACM does not require controls on emissions from sources
that are insignificant (i.e., de minimis) and does not require the
implementation of all available control measures where an area
demonstrates timely attainment and the implementation of additional
controls would not expedite attainment.
Colorado's moderate PM-10 SIP revision for Aspen targeted three
source categories for emissions reductions: re-entrained road dust,
residential wood combustion, and charbroiler grill emissions.
Specifically, the State adopted transportation control measures, street
sweeping and sanding provisions, a voluntary wood burning curtailment
program, limits on installation of new wood stoves and fireplaces, and
requirements for new restaurant charbroiler grills to control PM-10
emissions. The following table represents the benefits that these
control measures are projected to resulting towards attaining the PM-10
NAAQS in Aspen:
------------------------------------------------------------------------
Benefit towards reducing
Source Control PM-10 emissions
------------------------------------------------------------------------
Re-entrained road Transit expansion, No credit taken for these
dust. 400 park-n-ride strategies.
spaces.
Crosstown shuttle Reduction of 400 vehicle
service. miles of travel (VMT)/
day.\1\
Paid parking......... No credit taken in 1994
attainment demo;
reduction of 13,070 VMT/
day expected during
maintenance years (1994-
1997).\1\
250 space intercept No credit taken in 1994
lot and shuttle. attainment demo;
reduction of 2,640 VMT/
day expected during
maintenance years (1994-
1997).\1\
Peak hrs bus priority Reduction of 1,020 VMT/
lane. day.\1\
Event strategies..... No credit taken for these
provisions.
Specs for sanding 58 percent reduction in re-
materials. entrained road dust from
minor arterial roadways.
Street sweeping...... 19 percent reduction in re-
entrained road dust
emissions from Hwy 82.
Residential wood Voluntary wood 10 percent reduction in
combustion. burning curtailment. residential wood
combustion emissions.
Limitations on new Effectiveness incorporated
wood stoves and into future year
fireplaces. emissions inventories.
Charbroiler grills... Requires PM-10 Effectiveness incorporated
controls on grills. into future year
emissions inventories.
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\1\The reductions in vehicle-miles-travelled (i.e., VMT) will ultimately
result in an emissions decrease from re-entrained road dust emissions.
Note that the credit listed in this table for the 250 space
intercept lot has been changed from the original credit requested by
the State for this control measure in its December 1993 SIP submittal
because the original credit was calculated incorrectly by the State
(the State based the credit on 300 parking spaces, rather than 250).
The pounds per day emission reduction expected from the specifications
for sanding materials was also calculated incorrectly by the State in
its December 1993 SIP submittal. The State corrected these calculations
and adjusted the attainment and maintenance demonstrations accordingly
in a June 1, 1994 submittal. See the TSD for further information.
The State did not take credit for the mass transit service
expansion and provision of 400 park-n-ride spaces because these
measures are needed to meet the increased demand in ridership expected
due to the other transportation control measures in Aspen. Also, the
State did not request any credit for the event strategies, which
consist of additional strategies to be implemented during the 10-day
period prior to and including President's Day in February of each year.
The State adopted these event strategies because the majority of PM-10
exceedances in Aspen have occurred during this timeframe due to an
influx of visitors to the Aspen area, and the State wanted to provide
extra assurance that there would be no future PM-10 exceedances during
this timeframe.
The State did not take credit for the paid parking requirements or
for the provision of the 250 space intercept lot and shuttle into Aspen
in the 1994 attainment demonstration because the State's regulation
does not require these measures to be implemented until June 1, 1994.
Thus, the State only took the credit requested for these measures in
its 1997 maintenance demonstration.
The State also requested credit for a voluntary no-drive day in its
maintenance demonstration (1994-1997), but not in the attainment
demonstration, for the Aspen nonattainment area. EPA is not taking
action on this control measure at this time. Declining to take action
at this time on this measure does not impact the approvability of the
SIP submittals as meeting RACM, since the combination of the other
control measures adopted and submitted is adequate to demonstrate
timely attainment and maintenance of the PM-10 NAAQS in the Aspen
nonattainment area.
The requirements described in the table will be implemented through
Section III of the Colorado regulation entitled ``Nonattainment Areas''
(effective 3/2/93, with revisions effective 12/30/93). Except for the
paid parking and 250 space intercept lot and shuttle measures described
above, this State regulation requires implementation of these control
measures by December 10, 1993. These control measures are expected to
result in an estimated overall reduction of 3987 lb/day of PM-10
emissions in the Aspen area by the end of 1994.
In order to comply with the State's Administrative Procedures Act,
the revisions to this regulation adopted on November 12, 1993 did not
become effective until December 30, 1993. However, the State adopted an
emergency rule on November 12, 1993 to make the new provisions in the
State's nonattainment area regulation effective December 1, 1993. Until
the State's regulation became effective, the emergency rule (which is
identical to the State nonattainment area regulation) applied beginning
December 1, 1993.
For an area that demonstrates attainment by the applicable
attainment date, the implementation of otherwise available control
measures is not ``reasonably'' required by RACM if such control
measures would not expedite attainment. (See 57 FR 13543.) Control of
other PM-10 emissions in the area, such as tailpipe emissions and coal
burning stoves, was not required because the implementation of such
controls would not have further advanced the attainment date in the
area.
Similarly, RACM (including RACT) did not require the adoption of
otherwise available control measures for stationary sources in the
Aspen nonattainment area because point source emissions in the Aspen
area are de minimis (see 57 FR 13540) and control of such sources would
not expedite attainment of the PM-10 NAAQS.
A more detailed discussion of the individual source contributions,
their associated control measures, and an explanation as to why certain
available control measures were not implemented can be found in the
TSD. The EPA has reviewed the State's explanation and associated
documentation and has concluded that it adequately justifies the
control measures to be implemented. The implementation of Aspen's PM-10
control strategy is projected to result in the attainment of the PM-10
NAAQS by December 31, 1994. Therefore, by this document, EPA is
approving Colorado's SIP submittals for the Aspen nonattainment area as
meeting the RACM including RACT requirement. However, as discussed
above, EPA is not taking any action on the voluntary no-drive day
provision at this time.
4. Demonstration
As noted, the initial moderate PM-10 nonattainment areas must
submit a demonstration (including air quality modeling) showing that
the plan will provide for attainment as expeditiously as practicable
but no later than December 31, 1994 (see section 189(a)(1)(B) of the
Act). Alternatively, the State must show that attainment by December
31, 1994 is impracticable.
EPA regulations provide that attainment be demonstrated by means of
a proportional model or dispersion model or other procedure shown to be
adequate and appropriate for such purposes. (See 40 CFR 51.112(a).) In
general, EPA policy recommends that the preferred approach for
estimating the air quality impacts of emissions of PM-10 is to use
receptor modeling in combination with dispersion modeling. On July 5,
1990, EPA issued guidance providing that, in certain situations, it may
be more appropriate to rely on a receptor modeling demonstration alone
as the basis for the attainment demonstration (see July 5, 1990 memo to
Regional Air Branch Chiefs from Robert D. Bauman, Chief of SO2/
Particulate Matter Programs Branch and Joseph Tikvart, Chief of Source
Receptor Analysis Branch). Aspen meets the criteria discussed in the
July 5, 1990 memo to justify using receptor modeling alone and,
therefore, the State utilized receptor modeling in the attainment and
maintenance demonstrations provided for the Aspen moderate PM-10
nonattainment area.
The attainment and maintenance demonstrations presented in the
December 9, 1993 submittal (as amended by the State's June 1, 1994
letter correcting errors in the original control measure credits)
indicated that the NAAQS for PM-10 in the Aspen area would be attained
in 1994 and maintained through December 31, 1997. The 24-hour PM-10
NAAQS is 150 g/m3, and the standard is attained when the
expected number of days per calendar year with a 24-hour average
concentration above 150 g/m3 is equal to or less than one
(see 40 CFR 50.6). The annual PM-10 NAAQS is 50 g/m3, and
the standard is attained when the expected annual arithmetic mean
concentration is less than or equal to 50 g/m3 (id.) The
demonstration provided by the State predicted a 24-hour design
concentration in the attainment year of 1994 of 136 g/m3.
The demonstration also predicted a 24-hour design concentration of 133
g/m3 in 1997 (excluding the credit requested for the
voluntary no-drive day on which EPA is not taking action at this time).
Thus, the State's attainment and maintenance demonstrations showed that
the control measures adopted for the Aspen area would adequately result
in attainment and maintenance of the 24-hour PM-10 NAAQS. Since the
demonstration provided by the State for Aspen clearly shows attainment
and maintenance of the 24-hour PM-10 NAAQS, it is reasonable and
adequate to assume that the protection of the 24-hour standard will be
sufficient to protect the annual standard as well. The control
strategies used to achieve these design concentrations are summarized
in Section II.A.C. of this document entitled ``RACM (including RACT).''
For a more detailed description of the attainment demonstration and the
control strategy used, see the TSD.
5. PM-10 Precursors
The control requirements which are applicable to major stationary
sources of PM-10 also apply to major stationary sources of PM-10
precursors, unless EPA determines such sources do not contribute
significantly to PM-10 levels in excess of the NAAQS (see section
189(e) of the Act).
An analysis of the State's submittal of air quality and emissions
data, as revised on September 20, 1993, for the Aspen nonattainment
area indicates that exceedances of the NAAQS are attributable chiefly
to particulate matter emissions from area sources, mainly re-entrained
road dust from paved and unpaved roads and residential wood combustion.
In addition, the emissions inventory for this area did not reveal any
major stationary sources of PM-10 precursors. In its December 23, 1993
notice of proposed rulemaking, EPA proposed to find that major
stationary sources of PM-10 precursors do not contribute significantly
to PM-10 levels in excess of the NAAQS in Aspen (see 58 FR 68098). EPA
received no comments on that finding, and the State's December 9, 1993
SIP revision did not include any information that would impact EPA's
proposed finding. Therefore, EPA is finalizing its finding that major
stationary sources of precursors of PM-10 do not contribute
significantly to PM-10 levels in excess of the NAAQS in Aspen. On
August 18, 1994, EPA partially approved the State's nonattainment new
source review (NSR) permitting regulations for the Aspen moderate PM-10
nonattainment area (among others) because the State did not submit NSR
permitting regulations for sources of PM-10 precursors in Aspen and
because EPA had not yet found that such sources did not contribute
significantly in Aspen (see 59 FR 42500). The consequence of this
finding is to exclude major stationary sources of PM-10 precursors in
Aspen from the applicability of PM-10 nonattainment area control
requirements, including nonattainment NSR permitting requirements.
Thus, the State's nonattainment NSR regulations for Aspen are
considered fully approved.
Further discussion of the analyses and supporting rationale for
EPA's finding are contained in the TSD accompanying this document. Note
that while EPA is making a general finding for this area, this finding
is based on the current character of the area including, for example,
the existing mix of sources in the area. It is possible, therefore,
that future growth could change the significance of precursors in the
area. The EPA intends to issue future guidance addressing such
potential changes in the significance of precursor emissions in an
area.
6. Quantitative Milestones and Reasonable Further Progress
The PM-10 nonattainment area plan revisions demonstrating
attainment must contain quantitative milestones which are to be
achieved every 3 years until the area is redesignated attainment and
which demonstrate RFP, as defined in section 171(1), toward attainment
by December 31, 1994 (see section 189(c) of the Act). RFP is defined in
section 171(1) of the Act as such annual incremental reductions in
emissions of the relevant air pollutant as are required by part D or
may reasonably be required by the Administrator for the purpose of
ensuring attainment of the applicable NAAQS by the applicable date.
While section 189(c) of the Act plainly provides that quantitative
milestones are to be achieved until an area is redesignated to
attainment, it is silent in indicating the starting point for counting
the first 3-year period or how many milestones must be initially
addressed. In the General Preamble, EPA addressed the statutory gap in
the starting point for counting the 3-year milestones, indicating that
it would begin from the due date for the applicable implementation plan
revision containing the control measures for the area (i.e., November
15, 1991 for initial moderate PM-10 nonattainment areas). (See 57 FR
13539.) As to the number of milestones, EPA believes that at least two
milestones must be initially addressed. Thus, submittals to address the
SIP revisions due on November 15, 1991 for the initial moderate PM-10
nonattainment areas must demonstrate that two milestones will be
achieved (first milestone: November 15, 1991 through November 15, 1994;
second milestone: November 15, 1994 through November 15, 1997). For
areas that demonstrate timely attainment of the PM-10 NAAQS, the second
milestone should, at a minimum, provide for continued maintenance of
the standards.\4\
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\4\Section 189(c) provides that quantitative milestones are to
be achieved ``until the area is redesignated attainment.'' However,
this endpoint for quantitative milestones is speculative because
redesignation of an area as attainment is contingent upon several
factors and future events.
EPA believes it is unreasonable to require planning for each
nonattainment area to cover quantitative milestones years into the
future because of the possibility that such time may elapse before
an area is in fact redesignated attainment. On the other hand, EPA
believes it is reasonable for States initially to submit a
sufficient number of milestones to ensure that there is on-going air
quality protection beyond the attainment deadline. Addressing two
milestones will ensure that the State continues to maintain the
NAAQS beyond the attainment date for at least some period during
which an area could be redesignated attainment. However, in all
instances, additional milestones must be addressed if an area is not
redesignated attainment within the time period covered by the
initial milestones submitted.
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In implementing the quantitative milestone and RFP provisions for
this initial moderate area, EPA has reviewed the attainment
demonstration and control strategy for the area to assess whether the
initial milestones have been satisfied and to determine whether annual
incremental reductions different from those provided in the SIP
submittals should be required in order to ensure attainment of the PM-
10 NAAQS by December 31, 1994 (see section 171(1) of the Act). The
State of Colorado's PM-10 SIP submittals for Aspen indicate that the
control measures adopted will result in a reduction of 3987 lb/day of
PM-10, and the State demonstrated that this annual incremental
reduction will result in attainment of the PM-10 NAAQS by December 31,
1994. This satisfies the first quantitative milestone.\5\ The State has
also demonstrated that the plan will provide for maintenance of the PM-
10 NAAQS through the end of 1997. This satisfies the second milestone
due for the area. Therefore, EPA approves the Aspen PM-10 SIP
submittals as satisfying the initial quantitative milestones and RFP
requirements.
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\5\For areas that demonstrate timely attainment of the PM-10
NAAQS, the emissions reduction progress made prior to the attainment
date of December 31, 1994 (only 46 days beyond the November 15, 1994
milestone achievement date) will satisfy the first milestone
requirement (57 FR 13539). The de minimis timing differential makes
it administratively impracticable to require separate milestone and
attainment demonstrations.
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7. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and EPA (see sections 172(c)(6), 110(a)(2)(A) of the Act and
57 FR 13556). The EPA criteria addressing the enforceability of SIPs
and SIP revisions were stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). Nonattainment area plan provisions
must also contain a program that provides for enforcement of the
control measures and other elements in the SIP (see section
110(a)(2)(C) of the Act).
The control measures contained in the SIP are addressed above under
Section II.A.3. entitled ``RACM (Including RACT).'' These control
measures, which are included in Section III. of the State Regulation
entitled ``Nonattainment Areas'' (effective 3/2/93, with revisions
effective 12/30/93), apply to the types of activities identified in
that discussion, including emissions from re-entrained road dust and
residential wood combustion. The State regulation provides that these
control measures apply throughout the Aspen PM-10 nonattainment area.
The only exemptions provided in the regulation are from the wood
burning curtailment program: EPA Phase II wood burning devices are
exempt from the wood burning curtailment program in order to encourage
conversions to cleaner wood burning devices. This is consistent with
the recommendations for voluntary wood burning curtailment programs
provided in EPA's Guidance Document for Residential Wood Combustion
Emission Control Measures.
Consistent with the attainment demonstration previously described,
the SIP submittals and State regulation require that all affected
activities for which the State is taking credit towards demonstrating
attainment must be in full compliance with the applicable SIP
provisions by December 10, 1993. In addition to the applicable control
measures, this includes the applicable recordkeeping requirements which
are addressed in the supporting information. (As discussed in Section
II.A.3., two of the control measures which pertain to parking fees and
implementation of an intercept lot and shuttle service are not required
to be implemented until June 1, 1994. Accordingly, the State did not
take credit for these measures in the 1994 attainment demonstration for
Aspen.) Compliance with certain measures, such as the 1 percent fines
limit with regard to street sanding material used, must be determined
in accordance with appropriate test methods. The regulation provides
that compliance with the 1 percent fines limit will be determined in
accordance with the American Society for Testing Materials (ASTM)
``Standard Method for Sieve Analysis of Fine and Coarse Aggregate.''
EPA believes this method is appropriate for determining compliance with
this provision.
The TSD associated with this action contains further information on
enforceability requirements including: a description of the rules
contained in the SIP and the source types subject to them, test
methods, and reporting and recordkeeping requirements. EPA has reviewed
the State's nonattainment area regulation, as revised in the State's
December 9, 1993 SIP submittal, for enforceability and has determined
that it meets all of the criteria included in the September 23, 1987
Potter Memorandum.
The State of Colorado has a program that will ensure that the
measures contained in the SIP submittals for Aspen are adequately
enforced. The Colorado Air Pollution Control Division (APCD) has the
authority to implement and enforce all emission limitations and control
measures adopted by the Colorado Air Quality Control Commission (AQCC).
In addition, Colorado statute provides that the APCD shall enforce
against any ``person'' who violates the emission control regulations of
the AQCC, the requirements of the SIP, or the requirements of any
permit. The definition of ``person'' includes, among other things, any
``municipal corporation, county, city and county or other political
subdivision of the State,'' such as the City of Aspen. Many of the
control measures adopted by the AQCC in the State nonattainment
regulation require the City of Aspen and Pitkin County to implement the
measures. This is allowed under section 110(a)(2)(E) of the Act, as
long as the State provides the necessary assurances that the State has
the responsibility for ensuring adequate implementation of the plan
provisions. Since State statute allows for the enforcement against any
county or city and since the State regulation containing the control
measures was adopted by the AQCC, the APCD has adequate authority to
ensure implementation of the control measures at the local level. State
statute provides for civil penalties of up to $15,000 per day per
violation for any person in violation of these requirements, and
criminal penalties are also provided for in the State statute. Thus,
the APCD has adequate enforcement capabilities to ensure compliance
with the Aspen PM-10 regulations. The TSD contains further information
on the State-wide regulations, enforceability requirements, and a
discussion of the personnel and funding intended to support effective
implementation of the control measures.
8. Contingency Measures
As provided in section 172(c)(9) of the Act, all moderate
nonattainment area SIPs that demonstrate attainment must include
contingency measures. See generally 57 FR 13510-13512 and 13543-13544.
These measures were required to be submitted by November 15, 1993 for
the initial moderate PM-10 nonattainment areas. Contingency measures
should consist of other available measures that are not part of the
area's core attainment control strategy. These measures must take
effect without further action by the State or EPA, upon a determination
by EPA that the area has failed to make RFP or attain the PM-10 NAAQS
by the applicable statutory deadline. The State's December 9, 1993
revision to the Aspen PM-10 SIP included the following contingency
measures: Section III.D. of the State regulation entitled
``Nonattainment Areas'' requires that (1) each user of street sanding
material in the Aspen PM-10 nonattainment area reduce the amount of
street sanding materials applied by 20 percent from the base sanding
amount; and (2) Pitkin County pave 3 bus pullouts on Highway 82 (which
is the main highway through the City) and pave the Highway 82 road
shoulder at the Owl Creek turnoff establishing a new paved lane at this
intersection. The State's regulation provides that, upon a
determination by EPA that the area failed to make RFP or attain the
NAAQS by the December 31, 1994 statutory deadline, the reduction in
sanding materials applied must be implemented within 60 days of EPA's
determination and that the paving is to be completed as soon as
possible, but no later than the end of the first complete paving season
after EPA's determination. These provisions will become legally
effective immediately upon EPA's determination that the Aspen area
failed to make RFP or attain the NAAQS by the December 31, 1994
statutory deadline. EPA believes the regulation provides adequate
timeframes for implementation.
After review of the contingency measures described above, EPA
believes they are adequate to meet the requirements of section
172(c)(9) of the Act. Therefore, EPA is approving the PM-10 contingency
measures for the Aspen PM-10 nonattainment area. For further
information, see the TSD accompanying this document.
9. Revisions to the Nonattainment Area Boundary
The Aspen nonattainment area boundary as announced on November 6,
1991 (see 56 FR 56736) is currently defined as the city limits of Aspen
in 40 CFR 81.306. However, on June 20, 1991, the State adopted a more
inclusive boundary for the Aspen PM-10 nonattainment area, which
included some of the area surrounding the City of Aspen. This revised
boundary was submitted with the Aspen PM-10 SIP in January of 1992. As
discussed in the December 23, 1993 Federal Register document, the SIP
provided a demonstration showing that the revised boundary represented
the reasonable Aspen airshed by considering the local topography,
meteorology, and land use practices (see 58 FR 68100). EPA proposed to
amend the Aspen PM-10 nonattainment area boundary in its December 23,
1993 Federal Register documet, and no comments were received on that
proposed action. Therefore, EPA is finalizing the amendments to the
Aspen PM-10 nonattainment area boundary in this document. Pursuant to
section 110(k)(6) of the Act, EPA is correcting the Aspen PM-10
nonattainment area boundary in 40 CFR 81.306 to include some of the
additional area surrounding the city of Aspen. The legal definition of
the revised Aspen nonattainment area submitted by the State is as
follows:
The area encompassed by the following Parcel ID numbers, as defined
by the Pitkin County Planning Department: 2737-29, 2737-28, 2737-21,
2737-20, 2737-19, 2737-18, 2737-17, 2737-08, 2737-07, 2737-06, 2735-22,
2735-15, 2735-14, 2735-13, 2735-12, 2735-11, 2735-10, 2735-03, 2735-02,
2735-01, 2641-31, 2643-36, 2643-35, 2643-34, 2643-27, 2643-26.
A map displaying these Parcel ID numbers can be obtained by calling
or writing the Pitkin County Planning Department at 130 South Galena
Road, Aspen, Colorado 81611; (303) 920-5090.
Final Action
EPA is approving the State of Colorado's PM-10 SIP for the Aspen
PM-10 nonattainment area, which was submitted by the State on January
15, 1992, March 17, 1993, and December 9, 1993, as meeting those
moderate PM-10 SIP requirements which were due to be submitted November
15, 1991. Among other things, the State of Colorado has adequately
demonstrated that the Aspen moderate PM-10 nonattainment area will
attain the PM-10 NAAQS by December 31, 1994. As discussed above, EPA's
approval does not include the State's voluntary no-drive day provision,
on which EPA is not taking action at this time. EPA's approval also
includes the PM-10 contingency measures for Aspen, which were included
with the State's December 9, 1993 SIP revision.
As noted, on January 14, 1993, the State submitted revisions to its
permit program for the construction and operation of new and modified
major stationary sources of PM-10 to comply with the amended Act. EPA
will be taking action on these requirements in a separate Federal
Register document.
Lastly, EPA is amending the nonattainment area boundary for the
Aspen nonattainment area to include some of the area surrounding the
City of Aspen.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. Under the procedures
established in the May 10, 1994 Federal Register, this action will be
effective on November 14, 1994 unless, by October 14, 1994, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective on November 14, 1994.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for a
revision to any SIP. Each request for a revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the Act
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on small entities affected. Moreover, due
to the nature of the Federal-state relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A. , 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. section 7410(a)(2).
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 November 14, 1994. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects
40 CFR Part 52
Air pollution control, Hydrocarbons, Incorporation by reference,
Nitrogen dioxide, Particulate matter, Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile organic compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: August 31, 1994.
Jack W. McGraw,
Acting Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(65) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(65) On January 15, 1992, March 17, 1993, and December 9, 1993, the
Governor of Colorado submitted revisions to the Colorado State
implementation plan (SIP) to satisfy those moderate PM-10 nonattainment
area SIP requirements for Aspen, Colorado due to be submitted by
November 15, 1991. Included in the December 9, 1993 submittal were PM-
10 contingency measures for Aspen to satisfy the requirements of
section 172(c)(9) of the Act due to be submitted by November 15, 1993.
(i) Incorporation by reference.
(A) Colorado Air Quality Control Commission Nonattainment Areas
regulation, all of Section III. ``Aspen/Pitkin County PM-10
Nonattainment Area'' except Section III.C.6., adopted on January 21,
1993 effective on March 2, 1993, with revisions adopted on November 12,
1993, effective on December 30, 1993.
3. Section 52.332 is amended by adding paragraph (e) to read as
follows:
Sec. 52.332 Moderate PM-10 Nonattainment Area Plans.
* * * * *
(e) On January 15, 1992, March 17, 1993, and December 9, 1993, the
Governor of Colorado submitted the moderate PM-10 nonattainment area
plan for the Aspen area. The submittals were made to satisfy those
moderate PM-10 nonattainment area SIP requirements which were due for
Aspen on November 15, 1991. The December 9, 1993 submittal was also
made to satisfy the PM-10 contingency measure requirements which were
due for Aspen on November 15, 1993.
PART 81--[AMENDED]
4. In Sec. 81.306, the Colorado PM-10 Nonattainment Areas table is
amended under Pitkin County by revising the entry for ``Aspen'' to read
as follows:
Sec. 81.306 Colorado.
* * * * *
Colorado--PM-10 Nonattainment Areas
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -----------------------------------------------------------------
Date Type Date Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Pitkin County:
Aspen/Pitkin County Area.................. 11/15/90 Nonattainment........ 11/15/90 Moderate.
The area encompassed by the following
Parcel ID numbers, as defined by the
Pitkin County Planning Department:
2737-29, 2737-28, 2737-21, 2737-20,
2737-19, 2737-18, 2737-17, 2737-08,
2737-07, 2737-06, 2735-22, 2735-15,
2735-14, 2735-13, 2735-12, 2735-11,
2735-10, 2735-03, 2735-02, 2735-01,
2641-31, 2643-36, 2643-35, 2643-34,
2643-27, 2643-26.
* * * * * * *
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* * * * *
[FR Doc. 94-22525 Filed 9-13-94; 8:45 am]
BILLING CODE 6560-50-P
