Clean Air Act Approval and Promulgation of PMINF10 Contingency Measure Plans for Canon City and Lamar, CO

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO36-4-6305a; FRL-5117-6]

Clean Air Act Approval and Promulgation of PM10 Contingency

Measure Plans for Canon City and Lamar, CO

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the contingency measures submitted by the State

of Colorado on December 9, 1993 as a revision to the State

Implementation Plan (SIP), for the moderate nonattainment areas of

Canon City and Lamar for particulate matter with an aerodynamic

diameter less than or equal to a nominal 10 micrometers (PM10).

The submittal was made in accordance with the requirements for

contingency measures specified under section 172(c)(9) of the Clean Air

Act (Act).

DATES: This final rule will be effective February 13, 1995 unless

notice is received by January 13, 1995 that someone wishes to submit

adverse comments. 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 Regional Office listed. Copies of the State's submittal and

other information are available for inspection during normal business

hours at the following location: Environmental Protection Agency,

Region VIII, Air Programs Branch, 999 18th Street, suite 500, Denver,

Colorado 80202-2466; and Air Pollution Control Division, Colorado

Department of Health, 4300 Cherry Creek Drive South, Denver, Colorado,

80222-1530.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, Environmental

Protection Agency, Region VIII, Air Programs Branch, 999 18th Street,

suite 500, Denver, Colorado, 80202-2466, (303) 293-1765.

SUPPLEMENTARY INFORMATION:

I. Background

The cities of Canon City and Lamar, Colorado were 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 (1990 Amendments).\1\ (See 56 FR 56694, November 6,

1991; 40 CFR 81.306 (specifying nonattainment designation for Canon

City and Lamar)). The air quality planning requirements for moderate

PM10 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 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 action and the supporting rationale.

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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 PM10 nonattainment

areas (i.e., those areas designated nonattainment for PM10 under

section 107(d)(4)(B) of the Act) were required to submit several

provisions by November 15, 1991. These provisions are described in the

Federal Register documents approving the Canon City PM10 SIP (59

FR 68036, December 23, 1993) and the Lamar PM10 SIP (59 FR 29732,

June 9, 1994). 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 reasonable further progress (RFP) or to attain

the PM10 National Ambient Air Quality Standards (NAAQS) by the

applicable statutory deadline. (See section 172(c)(9) of the Act and 57

FR 13510-13512 and 13543-13544.) The State submitted PM10

contingency measures for the Canon City and Lamar PM10

nonattainment areas on December 9, 1993. The State's December 9, 1993,

submittal also contained contingency measures and some additional

control measures for the State's other PM10 nonattainment areas.

EPA will take action on those measures in separate Federal Register

documents.

II. This Action

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

review of SIP submittals (see 57 FR 13565-13566). On December 9, 1993,

the Governor of Colorado submitted revisions to the Colorado State SIP.

Included in this submittal were PM10 contingency measures for

Canon City and Lamar intended to satisfy the requirements for

contingency measures specified under section 172(c)(9) of the Act.

In this action, EPA is granting approval of the PM10

contingency measures for the cities of Canon City and Lamar, Colorado,

that were due on November 15, 1993, and submitted by the State on

December 9, 1993. See section 110(k)(3) of the Act. EPA believes that

the PM10 contingency measures submitted for Canon City and Lamar

meet the applicable requirements of the Act.

A. Analysis of State Submission

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.

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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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The EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action (see section 110(k)(1)

and 57 FR 13565). The EPA's completeness criteria for SIP submittals

are set out at 40 CFR part 51, appendix V. 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 six months after receipt

of the submission.

The State of Colorado, after providing adequate notice, held a

public hearing on November 12, 1993, to entertain public comment on the

contingency measures for Canon City and Lamar. After considering oral

comments made during the hearing and written comments submitted prior

to the hearing, the contingency measures were approved and adopted by

the Colorado Air Quality Control Commission (AQCC). On December 9,

1993, the Governor of Colorado submitted the contingency measures to

the EPA. After reviewing the submittal for conformance with the

completeness criteria in 40 CFR part 51, appendix V, EPA sent a letter

to the Governor of Colorado on February 15, 1994, declaring the

submittal to be administratively and technically complete.

B. The Contingency Measures

Section 172(c)(9) of the Act, as amended, requires that

nonattainment area SIPs provide for the implementation of specific

measures, termed contingency measures, if an area fails to timely

attain the NAAQS or make RFP. Section III(C)(3) of the General Preamble

further explains that contingency measures should consist of other

available control measures, beyond those necessary to meet the core

moderate area control requirement to implement reasonably available

control measures (RACM) (see section 172(a)(1)(c) of the Act) and,

therefore, beyond those reasonably required to expeditiously attain the

standards. (See 57 FR 13543.)

The State's regulation provides that the contingency measures for

Canon City and Lamar described in sections (i) and (ii) below,

represent measures that are in addition to those necessary to meet RACM

and can be implemented at any time prior to EPA's determination that

either area has failed to attain the PM10 NAAQS or make RFP. Early

implementation of the contingency measures will not result in the

requirement to implement additional moderate PM10 nonattainment

area contingency measures if the area eventually is determined to fail

to attain the PM10 NAAQS or make RFP. In EPA's judgement, it would

not be reasonable to penalize the State for taking the precautionary

air quality management step of accelerating the implementation of

contingency measures. However, additional ``serious area'' contingency

measures may be necessary if the area is reclassified as a serious

nonattainment area.

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 latter 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 affect full implementation of the contingency measures, to occur

within 60 days after EPA notifies the State of its failure to timely

attain the NAAQS or make RFP.

EPA recognizes that certain actions, such as notification of

sources, modification of permits, etc., may be needed before some

measures could 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

actions such as public hearings or legislative review.

The Act, as amended in 1990, did not set a date certain for the

submission of contingency measures. Rather, section 172(b) of the Act

authorized EPA to establish a date for submission, extending no later

than 3 years from the area's nonattainment designation. EPA established

such a date for those areas designated nonattainment for PM10 on

November 15, 1990 by operation of law upon enactment of the 1990

Amendments. That is, in section III(C)(3) of the General Preamble, EPA

established a schedule that calls for the submittal of contingency

measures for initial PM10 moderate nonattainment areas no later

than November 15, 1993. (See 57 FR 13543.)

The PM10 contingency measures for Canon City and Lamar were

developed by their respective local governments and by the Colorado Air

Pollution Control Division (APCD). Input from the Colorado Department

of Transportation, the Colorado Attorney General's Office, and the EPA

were utilized in further developing the measures.

(i) Contingency Measures for Canon City

The City of Canon City selected street sweeping as the contingency

measure to reduce fugitive dust emissions. According to Section V. of

the State regulation entitled ``Nonattainment Areas'' adopted on

November 12, 1993, if EPA makes a determination that the Canon City

nonattainment area has failed to attain the PM10 NAAQS or make RFP

in reducing emissions, the City of Canon City must sweep specified

roadways to which street sanding materials are applied. The street

sweeping efforts will entail sweeping streets which are regularly

sanded throughout the winter season within four days of each winter

street sanding deployment.

(ii) Contingency Measures for Lamar

Of a list of 14 different fugitive dust control measures from which

contingency measures could be selected, the State selected and

developed regulations for two: a) stabilize and hard surface some of

the remaining dirt/gravel streets throughout the City of Lamar, and b)

street sweeping of the main streets after sanding events.

According to Section IV. of the State's nonattainment area

regulation adopted on November 12, 1993, if EPA makes a determination

that the Lamar nonattainment area has failed to attain the PM10

NAAQS or make RFP in reducing emissions, the City of Lamar must chip-

seal pave 3 miles of unpaved dirt road within the city limits. The

chip-seal paving must be completed as soon as possible, but no later

than the end of the first complete paving season following EPA's

determination that the area failed to attain the PM10 NAAQS or

make RFP. (``Paving season'' is defined as that portion of the year

when weather conditions permit the chip-seal paving of the roads).

Furthermore, upon determination by EPA that the Lamar nonattainment

area has failed to attain the PM10 NAAQS or make RFP, the

regulation requires the City of Lamar to sweep the ``Snow Removal

Route'' identified in the State's nonattainment area regulation. Each

traffic lane of the specified roadways must be swept within four days

of the roadways becoming free and clear of snow and ice following each

street sanding deployment, as weather and street conditions permit. In

addition to this, each traffic lane of the specified roadways must be

swept within four days following each high wind event that occurs

between March 1 and May 31 of each year, as weather and street

conditions permit. The street sweeping measure must be implemented

within 2 months following EPA's determination that the area failed to

attain the PM10 NAAQS or make RFP.

Details of the contingency measure programs are included in the

Technical Support Document (TSD) for the Canon City and Lamar

contingency plans. The December 9, 1993 submittal included data showing

the benefits of the implementation of the contingency measures. In

general, the contingency measures for Canon City are expected to

provide 15.56 pounds per day (lbs/day) PM10 emissions reduction

and, for Lamar, 79.9 lbs/day PM10 emissions reduction. These data

are tabulated in the TSD, which is available for review at the EPA

address identified at the beginning of this notice.

C. Evaluation

With respect to PM10, section III(C)(3) of the General

Preamble recommends the emission reductions which the implementation of

contingency measures should achieve. The General Preamble suggests,

``contingency emissions reductions should be approximately equal to the

emissions reductions necessary to demonstrate RFP for one year.'' Thus,

reductions equal to 25% of the total emissions reductions are

appropriate for a moderate nonattainment area since the control

strategy must generally be implemented within a three to four year

period between SIP development and the attainment date, and since RFP

generally requires annual incremental reductions in emissions to attain

the standards.

For the Canon City and Lamar nonattainment areas, this 25%

reduction is not required because emission reductions were not

necessary to demonstrate attainment and maintenance of the PM10

NAAQS. The design value for Canon City is 93 g/m\3\, and for

Lamar, 101 g/m\3\. Due to these low design values, these areas

were able to demonstrate attainment and maintenance of the NAAQS

without the adoption of control measures. Contingency measures are

still necessary for the area, however, so that some degree of emission

reductions will occur if the area fails to attain the PM10 NAAQS,

and is redesignated as a serious nonattainment area.

D. Enforceability Issues.

All measures and other elements in the SIP must be enforceable by

the State and EPA (see sections 172(c)(6) and 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 also must contain a program to provide for enforcement of

control measures and other elements in the SIP (see section

110(a)(2)(C) of the Act). The specific measures contained in the Canon

City and Lamar contingency plans are addressed above in section B.

The APCD has the authority to implement and enforce all emission

limitations and control measures adopted by the AQCC, as provided for

in Colorado Revised Statutes (CRS) 25-7-111. In addition, CRS 25-7-115

provides that the APCD shall enforce compliance with the emission

control regulations of the AQCC, the requirements of the SIP, and the

requirements of any permit. Civil penalties of up to $15,000 per day

per violation are provided for in CRS 25-7-122 for any person in

violation of these requirements, and criminal penalties are provided

for in CRS 25-7-122.1. Thus, the APCD has adequate enforcement

capabilities to ensure compliance with the Canon City and Lamar

PM10 contingency measures.

III. Final Action.

In this final action, EPA is announcing its approval of the

contingency measures for Canon City and Lamar, Colorado moderate

PM10 nonattainment areas, and believes that the State has

adequately met the Federal requirements.

EPA is also correcting 40 CFR 52.332 in this notice to indicate

that the PM10 contingency measures for Pagosa Springs, which were

also submitted on December 9, 1993, have been approved by EPA. EPA

approved the Pagosa Springs contingency measures, along with the

PM10 attainment plan for the area, on May 19, 1994 (59 FR 26126),

and inadvertently neglected to indicate in the amendatory language for

40 CFR 52.332 that the State had also submitted approvable PM10

contingency measures for Pagosa Springs.

Also in this notice, EPA is amending 40 CFR 52.329 regarding

Colorado's nonattainment area new source review (NSR) program

approvals, to reflect two recent EPA rulemaking actions. Specifically,

on August 18, 1994, EPA only partially approved the NSR programs for,

among others, the Aspen and Telluride moderate PM10 nonattainment

areas, because the State had not submitted NSR rules for sources of

PM10 precursors in these areas and because EPA had not yet

promulgated findings that sources of PM10 precursors did not

contribute significantly PM10 exceedances in these areas. (See 59

FR 42505.) However, EPA has since promulgated findings that stationary

sources do not contribute significantly to exceedances of the PM10

NAAQS in both the Aspen and the Telluride PM10 nonattainment areas

(see, respectively, 59 FR 47092, September 14, 1994, and 58 FR 47809,

September 19, 1994). In those two notices, EPA declared those areas to

have fully approved NSR programs based on those findings. Therefore,

EPA is amending 40 CFR 52.329 to reflect that the State has fully

approved NSR programs for the Aspen and Telluride moderate PM10

nonattainment areas.

The 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, 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 (59 FR 24054), this

action will be effective February 13, 1995 unless, by January 13, 1995,

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 document 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 February 13, 1995.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. Each request for revision to any SIP shall be considered

separately in light of specific technical, economic, and environmental

factors, and in relation to relevant statutory and regulatory

requirements.

The OMB has exempted these actions from review under Executive

Order 12866.

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

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 a substantial number of

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 Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by February 13, 1995. 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) of the Act).

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: November 25, 1994.

Jack W. McGraw,

Acting Regional Administrator.

Part 52, 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)(64) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(64) On December 9, 1993, the Governor of Colorado submitted

PM10 contingency measures for the moderate nonattainment PM10

areas of Canon City and Lamar, Colorado. The submittal was made to

satisfy the moderate PM10 nonattainment area requirements for

contingency measures due for Canon City and Lamar on November 15, 1993.

(i) Incorporation by reference.

(A) Colorado Air Quality Control Commission Nonattainment Area

Regulation, Section IV. ``Lamar Nonattainment Area,'' and Section V.

``Canon City Nonattainment Area--PM-10,'' adopted on November 12, 1993,

and effective December 30, 1993.

3. Section 52.329 is amended by revising paragraph (a) to read as

follows:

Sec. 52.329 Rules and regulations.

(a) On January 14, 1993, the Governor of Colorado submitted

revisions to the State's nonattainment area new source review

permitting regulations to bring the State's regulations up to date with

the 1990 Amendments to the Clean Air Act. With these revisions, the

State's regulations satisfy the part D new source review permitting

requirements for the following nonattainment areas: the Canon City,

Lamar, Pagosa Springs, Aspen, and Telluride moderate PM-10

nonattainment areas, the Denver/Metro Boulder, Longmont, Colorado

Springs, and Fort Collins moderate carbon monoxide nonattainment areas,

the Greeley not classified carbon monoxide nonattainment area, and the

Denver transitional ozone nonattainment area.

* * * * *

4. Section 52.332 is amended by adding paragraph (d) to read as

follows:

Sec. 52.332 Moderate PM10 Nonattainment Area Plans.

* * * * *

(d) On December 9, 1993, the Governor of Colorado submitted

PM10 contingency measures for the moderate PM10 nonattainment

areas of Canon City, Lamar, and Pagosa Springs. The submittal was made

to satisfy the moderate PM10 nonattainment area requirements for

contingency measures due for Canon City, Lamar, and Pagosa Springs on

November 15, 1993.

[FR Doc. 94-30608 Filed 12-13-94; 8:45 am]

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