[Federal Register Volume 61, Number 185 (Monday, September 23, 1996)]
[Rules and Regulations]
[Pages 49682-49684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24053]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO-001-0001a; FRL-5606-4]
Clean Air Act Approval and Promulgation of State Implementation
Plan for Colorado; Denver Nonattainment Area PM10 Contingency
Measures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA approves the state implementation plan (SIP) revision
submitted by the State of Colorado on November 17, 1995, to satisfy the
Federal Clean Air Act requirement to submit contingency measures for
the Denver moderate PM10 (particulate matter with an aerodynamic
diameter less than or equal to a nominal 10 micrometers) nonattainment
area. EPA is approving this SIP revision because it is consistent with
the PM10 contingency measure requirements of the Clean Air Act, as
amended (Act).
DATES: This action is effective on December 23, 1996 unless adverse
comments are received by November 22, 1996. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Comments should be addressed to Richard R. Long, Director
Air Program, EPA Region VIII, at the address listed below. Copies of
the State's submittal and other information are available for
inspection during normal business hours at the following locations: Air
Program, Environmental Protection Agency, Region VIII, 999 18th Street,
Suite 500, Denver, Colorado 80202-2466; and Colorado Department of
Public Health and Environment Air Pollution Control Division, 4300
Cherry Creek Dr. South, Denver, Colorado 80222-1530. The information
may be inspected between 8 a.m. and 4 p.m., on weekdays, except for
legal holidays. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Callie Videtich, 8P2-A, U.S.
Environmental Protection Agency, Region VIII, 999 18th Street, Suite
500, Denver, Colorado 80202-2466, (303) 312-6434.
SUPPLEMENTARY INFORMATION:
I. Background of Denver PM10 SIP
The Denver, Colorado area was designated nonattainment for
PM10 and classified as moderate under sections 107(d)(4)(B) and
188(a) of the Act, upon enactment of the Clean Air Act Amendments of
1990. See 56 FR 56694 (November 6, 1991); 40 CFR 81.306 (specifying
designations for Colorado).
Those States containing initial moderate PM10 nonattainment
areas were required to submit several provisions by November 15, 1991.
These provisions, including an attainment demonstration (or
demonstration that timely attainment is impracticable), are described
in EPA's proposed rulemaking for the Denver moderate PM10
nonattainment area SIP (see 58 FR 66326, December 20, 1993). The Denver
PM10 control measures targeted re-entrained road dust, residential
wood burning, stationary sources and mobile sources for reductions in
PM10 emissions to demonstrate attainment of the PM10 NAAQS.
See the December 20, 1993, notice of proposed rulemaking and associated
Technical Support Document (TSD) for further details.
Such States were also required to submit contingency measures by
November 15, 1993 (see 57 FR 13543). The Governor of Colorado initially
submitted a contingency measure SIP for Denver on December 9, 1993. On
March 30, 1994, the EPA notified the State that it had determined that
the wintertime secondary particulate concentration contained in the
June 7, 1993, Denver PM10 SIP submittal was underestimated by 5.4
g/m3. Based upon that finding, the contingency measures
contained in the December 9, 1993, submittal were used to provide
further emission reductions for a revised attainment demonstration
addressing the additional secondary impacts. The State then undertook a
process to develop new contingency measures. The Governor submitted the
new measures on November 17, 1995, for the Denver nonattainment area.
II. This Action
A. Analysis Requirements for State Submissions
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA [see Section 110(a)(2) and 110(l) of the Act]. 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, 57 FR
13565, and EPA's completeness criteria for SIP submittals in 40 CFR
part 51, appendix V].
To entertain public comment, the State of Colorado's Air Quality
Control Commission (AQCC), after providing adequate notice, held a
public hearing on March 16, 1995, to consider the Denver PM10
contingency measures.
[[Page 49683]]
Following the hearing, the AQCC adopted revisions to Colorado
Regulation No. 16 as the Denver PM10 contingency measures. The
Contingency Measure SIP revision was formally submitted to EPA by the
Governor for approval on November 17, 1995.
The SIP revision was reviewed by EPA to determine completeness in
accordance with the completeness criteria referenced above. The
submittal was found to be complete, and a letter dated March 14, 1996,
was forwarded to the Governor indicating the completeness of the
submittal and the next steps to be taken in the processing of the SIP
submittal.
2. PM10 Contingency Measures
The Clean Air Act requires that States containing PM10
nonattainment areas adopt contingency measures that will take effect
without further action by the State or EPA upon a determination by EPA
that an area failed to make RFP or to timely attain the applicable
NAAQS, as described in section 172(c)(9). See generally 57 FR 13510-
13512 and 13543-13544. Pursuant to section 172(b), the Administrator
established a schedule providing that states containing initial
moderate PM10 nonattainment areas shall submit SIP revisions
containing contingency measures no later than November 15, 1993. (See
57 FR 13543.)
The General Preamble further explains that contingency measures for
PM10 should consist of other available control measures, beyond
those necessary to meet the core moderate area control requirement to
implement reasonably available control measures (see sections 172(c)(1)
and 189(a)(1)(C) of the Act). Based on the statutory structure, EPA
believes that contingency measures must, at a minimum, provide for
continued progress toward the attainment goal during the interim period
between the determination that the SIP has failed to achieve RFP/
provide for timely attainment of the NAAQS and the additional formal
air quality planning following the determination (57 FR 13511).
Section 172(c)(9) of the Act specifies that contingency measures
shall ``take effect * * * without further action by the State or the
[EPA] Administrator.'' EPA has interpreted this requirement (in the
General Preamble at 57 FR 13512) to mean that no further rulemaking
activities by the State or EPA would be needed to implement the
contingency measures. In general, EPA expects all actions needed to
effect full implementation of the measures to occur within 60 days
after EPA notifies the State of its failure to attain the standard or
make RFP.
EPA recognizes that certain actions, such as notification of
sources, modification of permits, etc., may be needed before some
measures can be implemented. However, States must show that their
contingency measures can be implemented with minimal further
administrative action on their part and with no additional rulemaking
action such as public hearing or legislative review.
The Denver PM10 Contingency Measure SIP contains the following
control measure--Improved Street Sweeping Technology. The control
measure is found in Colorado Regulation No. 16, Street Sanding
Emissions and provides that beginning November 1 of the first winter
season after the determination and notification that the Denver
PM10 nonattainment area has failed to attain the PM10 NAAQS
or to make RFP, the contingency measure will be implemented.
Below is a detailed description of the contingency measure adopted
for the Denver moderate PM10 nonattainment area:
a. Improved Street Sweeping Technology Contingency Measure. The
Denver PM10 Contingency Measure SIP requires that any entity
responsible for applying street sanding material within the Denver
Central Business District (CBD), defined as the area bounded by Colfax
Avenue, Speer Boulevard, Wynkoop Street, 20th Street and Broadway,
shall clean all streets in the CBD using vacuum sweepers or a more
effective technology within four days of each sanding episode, or as
soon as weather permits. The requirements are found in revisions to
Regulation No. 16, Street Sanding Emissions.
3. Effectiveness of the Contingency Measure
Information provided in the SIP submittal indicates that
implementation of the contingency measure would result in an additional
15 g/m\3\ reduction of PM10 at the highest receptor in
downtown Denver. This reduction equates to an additional 50% reduction
in emissions over that demonstrated for the controls in the Denver
moderate area SIP demonstration. This reduction exceeds the 25%
emissions reduction which EPA expects from contingency measures as
discussed in the General Preamble.
EPA believes this contingency measure is approvable. The control
measures implemented in the PM10 SIP are projected to achieve more
emissions reductions than needed to demonstrate attainment of the
PM10 NAAQS, as indicated by the State's predicted 24-hour
attainment concentration of 147.8 g/m\3\. Furthermore, the
predicted 24-hour ambient concentration resulting if the contingency
measure is implemented is 132.8 g/m\3\. Since the 24-hour
PM10 NAAQS is 150 g/m\3\, this established safety margin
further supports the reasonableness of this contingency measure.
4. Early Implementation
Section IV. B. of Colorado Regulation No. 16 sets out its early
implementation policy as follows: Those parties subject to the
contingency measure requirements could implement the measures at any
time prior to EPA's determination that the area failed to attain the
PM10 NAAQS or make RFP. Early implementation of these measures
will not result in the requirement to implement additional contingency
measures if the area eventually is determined to fail to attain the
NAAQS or make RFP. If Denver were reclassified to a serious
nonattainment area, additional control measures, including best
available control measures and ``serious area'' contingency measures,
would be necessary.
5. 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) 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). State implementation plan
provisions also must contain a program to provide for enforcement of
control measures and other elements in the SIP [see section
110(a)(2)(C)].
EPA's review of the November 17, 1995, PM10 Contingency
Measure Plan has revealed that the State has adequate authority to
enforce state air regulations against local entities, and enforce local
air pollution requirements when local entities fail to do so. In
addition, the State has authority to implement and enforce all
emissions limitations and control measures adopted by the AQCC. In
summary, EPA believes that Colorado has adequate enforcement
capabilities to ensure compliance with the Denver contingency measure
SIP. For further information, see the TSD prepared for this document.
III. Final Action
EPA is approving the PM10 contingency measure plan submitted
for
[[Page 49684]]
the Denver moderate PM10 nonattainment area by the Governor of
Colorado on November 17, 1995. This submittal adequately addresses the
PM10 contingency measure requirements for Denver.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revisions
should adverse or critical comments be filed. Under the procedures
established in the May 10, 1994 Federal Register (59 FR 24054), this
action will be effective December 23, 1996 unless, by November 22,
1996, adverse or critical comments are received.
If 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. 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 December 23, 1996.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
IV. Executive Order
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
V. Regulatory Flexibility
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.
Approvals of SIP submittals under section 110 and subchapter I,
part D of the Clean Air Act do not create any new requirements, but
simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP-approval does not impose any new
requirements, I certify that it does not have a significant impact on
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Clean Air Act, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of State action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
VI. Unfunded Mandates
Under Section 202, of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has also determined that this promulgated action does not
include a Federal mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
VII. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
VIII. Petition 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 November 22, 1996. 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 must 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 in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: August 27, 1996.
Patricia D. Hull,
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)(74) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(74) The Governor of Colorado submitted PM10 contingency
measures for Denver, Colorado in a letter dated November 17, 1995.
(i) Incorporation by reference.
(A) Section IV. of Regulation No. 16, Street Sanding Emissions,
adopted March 16, 1995, effective May 30, 1995.
[FR Doc. 96-24053 Filed 9-20-96; 8:45 am]
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