Clean Air Act Approval and Promulgation of PMINF10 Implementation Plan for Colorado; Designation of Areas for Air Quality Planning Purposes; Telluride

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[CO29-1-6611, CO29-1-6619, & CO36-5-6598; FRL-5068-4]

Clean Air Act Approval and Promulgation of PM10

Implementation Plan for Colorado; Designation of Areas for Air Quality

Planning Purposes; Telluride

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA partially approves the State implementation plan (SIP)

submitted by the State of Colorado to achieve 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 (PM10), including: control measures, technical

analyses, and other Clean Air Act SIP requirements, with the exception

of the quantitative milestones element. The SIP was submitted by the

Governor of Colorado in a letter dated March 17, 1993 to satisfy

certain federal requirements for an approvable SIP for the Telluride,

Colorado moderate PM10 nonattainment area. EPA conditionally

approves the quantitative milestone element because the SIP does not

demonstrate maintenance of the PM10 NAAQS through 1997. However,

the State has committed to adopt control measures necessary to provide

for maintenance.

In addition, EPA approves the SIP revision submitted by the

Governor with a letter dated December 9, 1993 to address contingency

measure requirements for the Telluride moderate PM10 nonattainment

area.

Finally, EPA amends the boundary for the Telluride nonattainment

area to clarify the original description.

EFFECTIVE DATE: This rule will become effective on October 19, 1994.

ADDRESSES: Copies of the State's submittals 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

Colorado Department of Health, Air Pollution Control Division, 4300

Cherry Creek Drive South, Denver, Colorado 80222-1530

The Air and Radiation Docket and Information Center, 401 M Street, SW,

Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection

Agency, Region VIII, (303) 293-1769.

SUPPLEMENTARY INFORMATION:

I. Background

The Telluride, Colorado area was designated nonattainment for

PM10 and classified as moderate under sections 107(d)(4)(B) and

188(a) of the Clean Air Act, upon enactment of the Clean Air Act

Amendments of 1990.\1\ See 56 FR 56694 (Nov. 6, 1991), 40 CFR 81.306

(Telluride). The air quality planning requirements for moderate

PM10 nonattainment areas are set out in subparts 1 and 4 of part

D, title I of the Act.\2\

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\1\The 1990 Amendments to the Clean Air Act made significant

changes to the Act. See Public Law 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.

\2\Subpart 1 contains provisions applicable to nonattainment

areas generally and Subpart 4 contains provisions specifically

applicable to PM10 nonattainment areas. At times, Subpart 1 and

Subpart 4 overlap or conflict. EPA has attempted to clarify the

relationship among these provisions in the ``General Preamble'' and,

as appropriate, in today's notice and supporting information.

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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 PM10 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 proposal

and the supporting rationale.

Those States containing initial moderate PM10 nonattainment

areas (those areas designated under section 107(d)(4)(B) of the Act)

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 modelling) 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 three

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 PM10 also apply to major stationary

sources of PM10 precursors except where the Administrator

determines that such sources do not contribute significantly to

PM10 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 PM10 nonattainment areas were required to submit a permit

program for the construction and operation of new and modified major

stationary sources of PM10 by June 30, 1992 (see section 189(a)).

The State has submitted such a permit program, and EPA will address

that submittal in a separate action. Such States also were 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 reasonable further progress or to

attain the PM10 NAAQS by the applicable statutory deadline (see

section 172(c)(9) and 57 FR 13543-13544). The State of Colorado has

submitted contingency measures for Telluride and EPA is addressing

those measures in this action.

On June 23, 1994, EPA announced its proposed action on the

Telluride, Colorado moderate nonattainment area PM10 SIP and

contingency measures (59 FR 32397-32405). In that proposed rulemaking

and related Technical Support Document (TSD), EPA described its

interpretations of title I and its rationale for the proposed

rulemaking taking into consideration the specific factual issues

presented.

EPA requested public comments on all aspects of the proposal

(please reference 59 FR 32404). No comments were received. This final

action on the Telluride moderate nonattainment area PM10 SIP is

unchanged from the June 23, 1994 proposed action.

The discussion herein provides only a broad overview of the

proposed action EPA is now finalizing. The public is referred to the

June 23, 1994 proposed rule for a more in depth discussion of the

action now being finalized.

II. This Action

Section 110(k) of the Act sets out provisions governing EPA's

review of SIP submittals (see 57 FR 13565-13566). The Governor of

Colorado submitted the Telluride PM10 SIP in a letter dated March

17, 1993, and the Telluride PM10 contingency measures in a letter

dated December 9, 1993. As described in EPA's proposed action on this

SIP (59 FR 32397-32405), the Telluride moderate nonattainment area plan

includes, among other things, technical analyses, control measures to

satisfy the RACM requirement, a demonstration (including air quality

modelling) that attainment of the PM10 NAAQS will be achieved by

December 31, 1994, and enforceability documentation. Further, EPA

proposed to determine that major sources of precursors of PM10 do

not contribute significantly to PM10 levels in excess of the NAAQS

in Telluride.\3\

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\3\The consequences of this finding are to exclude these sources

from the applicability of PM10 nonattainment area control

requirements. Note that EPA's 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.

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In this final rulemaking, EPA announces its partial approval of

those elements (excluding the quantitative milestone element) of the

Telluride PM10 SIP, which were due on November 15, 1991 and

submitted on March 17, 1993. Further, section 110(k)(4) of the Act

authorizes EPA to approve a plan revision based on a commitment of the

State to adopt specific enforceable measures by a date certain, but not

later than one year after the date of approval of the plan revision.

Hence, EPA announces its conditional approval of the quantitative

milestones element of the Telluride PM10 SIP based on the State's

commitment, dated April 21, 1994, to adopt control measures for

Telluride by November 30, 1994 that are necessary to demonstrate

maintenance of the PM10 NAAQS. Section 110(k)(4) provides that any

such conditional approval shall be treated as a disapproval if the

state fails to comply with such commitment.\4\

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\4\If the State fails to comply with its commitment, this

conditional approval of the quantitative milestones element will

become a disapproval upon EPA notification of the State by letter.

EPA subsequently will publish a notice in the ``Notices Section'' of

the Federal Register announcing such action and explaining its

implications. If this conditional approval is converted to a

disapproval, the sanctions clock under section 179(a) of the Act

will begin. This clock will begin at the time EPA issues a final

disapproval or at the time EPA notifies the State by letter that a

conditional approval has been converted to a disapproval.

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The quantitative milestone element of the Telluride SIP is

deficient in that it does not demonstrate that the second quantitative

milestone--continued maintenance from 1994 through 1997--will be

achieved. EPA conditionally approves this element of the SIP in light

of the State's commitment to adopt additional control measures

necessary to provide for continued maintenance.

The State has indicated that it intends to address the maintenance

issue by proposing for adoption additional control measures to maintain

the PM10 NAAQS through 1997. In an April 21, 1994 letter from

Thomas Getz, Colorado Air Pollution Control Division (APCD), to Douglas

M. Skie, EPA, the State made the following commitments: (1) maintenance

control measures and any related SIP revision will be proposed to the

Colorado Air Quality Control Commission (AQCC) by July 21, 1994; (2) a

public hearing on such regulations and SIP revision will be held by

October 20, 1994; and (3) the adopted regulations and SIP revision will

be submitted to EPA by November 30, 1994. The effective date of such

measures must be November 1, 1995, but could be as early as December 1,

1994.

Upon adoption and submittal to EPA, these additional control

measures for maintenance will be evaluated for their adequacy in

allowing the area to demonstrate maintenance through 1997.

On August 16, 1994, EPA only partially approved the State's

nonattainment new source review (NSR) permitting regulations for the

Telluride moderate PM10 nonattainment area (among others) because

the State did not submit NSR permitting regulations for sources of

PM10 precursors in Telluride and because EPA had not yet found

that such sources did not contribute significantly in Telluride (see 59

FR 33213). In this final rulemaking, EPA is now finalizing its finding

that major stationary sources of precursors of PM10 do not

contribute significantly to PM10 levels in excess of the NAAQS in

Telluride. The consequence of this finding is to exclude major

stationary sources of PM10 precursors in Telluride from the

applicability of PM10 nonattainment area control requirements,

including nonattainment NSR permitting requirements. Thus, the State's

nonattainment NSR regulations for Telluride area now considered fully

approved.

In this final rulemaking action EPA also announces its full

approval of the PM10 contingency measures that were due on

November 15, 1993 and submitted by the State on December 9, 1993. In

addition, EPA amends the nonattainment area boundary description for

Telluride in order to clarify the original description.

Please refer to EPA's proposed rulemaking (59 FR 32397) and the TSD

for that action for a detailed discussion of these elements of the

Telluride plan.

EPA finds that the State of Colorado's PM10 SIP for the

Telluride moderate nonattainment area meets the Reasonably Available

Control Measures (RACM), including Reasonably Available Control

Technology (RACT), requirement. Colorado's SIP revision for Telluride

contains control measures for sources of wood and coal burning. The

State has demonstrated that by applying control measures to this area

source, Telluride will be in attainment by December 31, 1994, and it

does not appear that apply further control measures to these sources

would expedite attainment.

Therefore, EPA views the following measure as reasonable,

enforceable, and responsible for significant PM10 emissions

reductions in Telluride: Colorado regulation entitled ``State

Implementation Plan--Specific Regulations for Local Elements, II.

Telluride Nonattainment Area,'' which requires continued implementation

of local programs to control solid fuel burning devices, eliminate coal

burning, and prohibit installation of additional solid fuel burning

devices. The RACM (including RACT) provisions in the SIP are described

further in the TSD associated with EPA's June 23, 1994 proposed

rulemaking on this SIP.

A more detailed discussion of the individual source contributions,

their associated control measures (including available control

technology) and an explanation of why certain available control

measures were not implemented, can be found in the TSD accompanying

EPA's proposed rulemaking for the Telluride moderate PM10

nonattainment area SIP (59 FR 32397). EPA has reviewed the state's

documentation and concluded that it adequate justifies the control

measure to be implemented. The implementation of Colorado's PM10

nonattainment plan for Telluride will result in attainment of the

PM10 NAAQS by December 31, 1994. EPA is approving the Telluride

PM10 plan's control strategy as satisfying the RACM (including

RACT) requirement.

EPA also finds that the State of Colorado's December 9, 1993

submittal of PM10 contingency measures for the Telluride moderate

PM10 nonattainment area meets the requirements of section

172(c)(9) of the Act. Specifically, section II.B. of the State

regulation entitled ``State Implementation Plan-Specific Regulations

for Local Elements'' provides that, upon the determination that the

area has failed to attain the PM10 NAAQS or make reasonable

further progress (RFP), the following will be implemented: (1) 0.30

miles of dirt roads within the Town of Telluride will be chip-seal

paved, and (2) either 2.0 miles of unpaved San Miguel County gravel

roads at the Ski Ranches Subdivision or 0.75 miles of private dirt

roads at the Hillside/Gold King Subdivision (each within the Telluride

nonattainment area) will be chip-seal paved. EPA has reviewed the

State's documentation and regulation and concluded that they adequately

meet the requirements of section 172(c)(9) of the Act. By this action,

EPA is approving the PM10 contingency measures for the Telluride

moderate PM10 nonattainment area.

Finally, EPA announces a clarification to the Telluride moderate

PM10 nonattainment area boundary, which is based on a legal

description of the map outline of the area, as follows.

The Telluride nonattainment area begins at the intersection of

Colorado State Highway 145 and the Telluride service area boundary, as

it existed in 1991. The western edge of the nonattainment area until it

meets Remine Creek is defined as follows:

A tract of land located in a portion of the west one-half of

Section 28 and the east one-half of Section 29, Township 43 North,

Range 9 west, of the New Mexico Principal Meridian, County of San

Miguel, State of Colorado, described as follows:

Beginning at the southwest corner of the said Section 28;

Thence N 89 deg.36'00'' W. 292.70 Feet;

Thence S 04 deg.05'12'' W. 538.63 Feet;

Thence N 03 deg.29'42'' W. 780.19 Feet;

Thence N 22 deg.15'00'' E. 3,344.16 Feet;

Thence S 51 deg.51'49'' E. 570.44 Feet;

Thence S 03 deg.15'36'' E. 1,106.22 Feet;

Thence S 45 deg.24'42'' E. 546.96 Feet;

Thence S 28 deg.41'12'' W. 549.62 Feet;

Thence S 29 deg.40'09'' E. 169.68 Feet;

Thence S 44 deg.30'03'' W. 649.51 Feet;

Thence S 85 deg.54'00'' E. 660.00 Feet;

Thence S 04 deg.06'00'' W. 660.00 Feet;

Thence N 89 deg.56'00'' E. 1,318.68 Feet; to the true point of

beginning containing 11,249 acres as described above.

Then, at Remine Creek, the nonattainment boundary follows the

service area boundary for 9.65 miles to the eastern edge of the area,

continuing to follow the 9,200 foot contour line. The boundary then

intersects Bear Creek. Here the nonattainment boundary diverges from

the service area boundary (9,200 foot contour line). The nonattainment

boundary continues in a west, southwest direction for 0.92 miles from

the intersection of the 9,200 foot contour line and Bear Creek to the

top of ski lift number 9 in the Telluride Ski Area at an elevation of

about 11,900 feet. The boundary then shifts and runs in a north-

westerly direction for 0.83 miles from the top of lift 9 to the top of

lift 7, which is located at an elevation of 10,490 feet. From the top

of lift 7, the nonattainment boundary continues in a north-westerly

direction for 0.5 miles to the intersection of lift 3 with the 10,000

foot control line. The nonattainment boundary follows the 10,000 foot

contour line in a south, south-west direction for 3.2 miles, until it

intersects Skunk Creek. Here the boundary diverges from the 10,000 foot

contour line and follows Skunk Creek in a northerly direction for 2.25

miles. At the intersection of Skunk Creek and Colorado State Highway

145, the nonattainment boundary leaves the creek and follows Highway

145 in a northerly direction until it meets the service area boundary

as it existed prior to changes adopted in 1991.

EPA is replacing the boundary description currently in 40 CFR

81.306 with this revised description to more clearly define the

nonattainment area. Note that this description is merely a more

detailed explanation of the boundary and not a change in the boundary

itself.

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.

III. Final Action

This document announces EPA's final action on the rulemaking

proposed at 59 FR 32397 on June 23, 1994. As noted elsewhere in this

action, EPA received no comments on the proposed action. As a direct

result, the Regional Administrator has reclassified this action from

Table 2 to Table 3 under the processing procedures established at 54 FR

2214, January 19, 1989.

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 and conditional approvals of SIP submittals under

sections 110 and 301, 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).

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 18, 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 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)).

The Office of Management and Budget (OMB) has exempted these

actions from review under Executive Order 12866.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Particulate matter, Reporting and record keeping 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.

2. Section 52.320 is amended by adding paragraph (c)(68) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(68) The Governor of Colorado submitted a portion of the

requirements for the moderate nonattainment area PM10 State

Implementation Plan (SIP) for Telluride, Colorado with a letter dated

March 17, 1993. The submittal was made to satisfy those moderate

PM10 nonattainment area SIP requirements due for Telluride on

November 15, 1991; however, the submittal did not contain quantitative

milestones to provide for maintenance of the PM10 National Ambient

Air Quality Standards through December 1997. The Governor of Colorado

submitted moderate PM10 nonattainment area contingency measures

for Telluride with a letter dated December 9, 1993. This submittal was

intended to satisfy the requirements of section 172(c)(9) of the Clean

Air Act due on November 15, 1993.

(i) Incorporation by reference.

(A) Colorado Air Quality Control Commission Nonattainment Areas

regulation, Section II., Telluride Nonattainment Area, adopted January

21, 1993 and effective on March 2, 1993, with revisions adopted

November 12, 1993 and effective December 30, 1993.

(ii) Additional material.

(A) The commitment and schedule for the adoption and implementation

of PM10 control measures that are necessary to demonstrate

maintenance of the 24-hour PM10 standard in Telluride, which were

submitted in an April 21, 1994 letter from Thomas Getz, Air Pollution

Control Division, to Douglas M. Skie, EPA.

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

2. In Sec. 81.306 the table for Colorado-PM10 Nonattainment

Areas is amended under San Miguel County by revising the entry for

``Telluride'' to read as follows:

Sec. 81.306 Colorado

* * * * *

Colorado.--PM-10 Nonattainment Areas

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Designation Classification

Designated Area -----------------------------------------------------------------------------------

Date Type Date Type

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San Miguel County

Telluride............... 11/15/90 Nonattainment 11/15/90 Moderate

The Telluride

nonattainment area

begins at the

intersection of

Colorado State

Highway 145 and the

Telluride service

area boundary, as

it existed in 1991.

The western edge of

the nonattainment

area until it meets

Remine Creek is

defined as follows:

A tract of land

located in a

portion of the west

one-half of Section

28 and the east one-

half of Section 29,

Township 43 North,

Range 9 west, of

the New Mexico

Principal Meridian,

County of San

Miguel, State of

Colorado, described

as follows:

Beginning at the

southwest corner of

the said Section

28; Thence N 89

deg.36'00'' W.

292.70 Feet; Thence

S 04 deg.05'12'' W.

538.63 Feet; Thence

N 03 deg.29'42'' W.

780.19 Feet; Thence

N 22 deg.15'00''E.

3344.16 Feet;

Thence S 51

deg.51'49'' E.

570.44 Feet; Thence

S 03 deg.15'36'' E.

1106.22 Feet;

Thence S 45

deg.24'42'' E.

546.96 Feet; Thence

S 28 deg.41'12'' W.

549.62 Feet; Thence

S 29 deg.40'09'' E.

169.68 Feet; Thence

S 44 deg.30'03'' W.

649.51 Feet; Thence

S 85 deg.54'00'' E.

660.00 Feet; Thence

S 04 deg.06'00'' W.

660.00 Feet; Thence

N 89 deg.56'00'' E.

1318.68 Feet; to

the true point of

beginning

containing 11249

acres as described

above.

Then, at Remine

Creek, the

nonattainment

boundary follows

the service area

boundary for 9.65

miles to the 9,200

foot contour line.

The boundary then

intersects Bear

Creek. Here the

nonattainment

boundary diverges

from the service

area boundary

(9,200 foot contour

line). The

nonatttainment

boundary continues

in a west,

southwest direction

for 0.92 miles from

the intersection of

the 9,200 foot

contour line and

Bear Creek to the

top of ski lift

number 9 in the

Telluride Ski Area

at an elevation of

about 11,900 feet.

The boundary then

shifts and runs in

a north-westerly

direction for 0.83

miles from the top

of lift 9 to the

top of lift 7,

which is located at

an elevation of

10,490 feet. From

the top of lift 7,

the nonattainment

boundary continues

in a north-westerly

direction for 0.5

miles to the

intersection of

lift 3 with the

10,000 foot control

line. The

nonattainment

boundary follows

the 10,000 foot

contour line in a

south, south-west

direction for 3.2

miles, until it

intersects Skunk

Creek. Here the

boundary diverges

from the 10,000

foot contour line

and follows Skunk

Creek in a

northerly direction

for 2.25 miles. At

the intersection of

Skunk Creek and

Colorado State

Highway 145, the

nonattainment

boundary leaves the

creek and follows

Highway 145 in a

northerly direction

until it meets the

service area

boundary as it

existed prior to

changes adopted in

1991

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* * * * *

[FR Doc. 94-22527 Filed 9-16-94; 8:45 am]

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