Clean Air Act Promulgation of Extension of Attainment Date for PM-10 Nonattainment Area in Denver, CO

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5309-5]

Clean Air Act Promulgation of Extension of Attainment Date

for PM-10 Nonattainment Area in Denver, CO

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action serves to grant a 1-year attainment date extension

for the Denver, Colorado particulate matter with an aerodynamic

diameter less than or equal to a nominal 10 micrometers (PM-10)

nonattainment area. This action is based on monitored air quality data

for the national ambient air quality standard for PM-10 during the

years 1992-94 and EPA's evaluation of the applicable state

implementation plan (SIP).

DATES: This final rule is effective on December 5, 1995, unless adverse

comments are received by November 6, 1995. If the effective date is

delayed, timely notice will be published in the Federal Register.

ADDRESSES: Comments should be addressed to: Douglas M. Skie, Chief, Air

Programs Branch, 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

Programs Branch, Environmental Protection Agency, Region VIII, 999 18th

Street, Suite 500, Denver, Colorado 80202-2405; and Colorado Air

Pollution Control Division, 4300 Cherry Creek Drive 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, 8ART-AP,

Environmental Protection Agency, Region VIII, 999 18th Street, Suite

500, Denver, Colorado 80202-2405, (303) 293-1754.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements and EPA Actions Concerning Designation

and Classification

On the date of enactment of the 1990 Clean Air Act Amendments, PM-

10 areas meeting the qualifications of section 107(d)(4)(B) of the Act

were designated nonattainment by operation of law (see generally, 42

U.S.C. section 7407(d)(4)(B)). These areas included all former Group I

areas identified in 52 FR 29383 (August 7, 1987) and further clarified

in 55 FR 45799 (October 31, 1990), and any other areas violating the

PM-10 standards prior to January 1, 1989 (many of these areas were

identified by footnote 4 in the October 31, 1990 Federal Register

notice). A Federal Register notice announcing the areas designated

nonattainment for PM-10 upon enactment of the Act was published in 56

FR 11101 (March 15, 1991). A subsequent Federal Register notice

correcting some of these areas was published on August 8, 1991 (56 FR

37654). These nonattainment designations and moderate area

classifications were codified in 40 CFR part 81 in a Federal Register

notice published on November 6, 1991 (56 FR 56694). All other areas in

the Nation not designated nonattainment at enactment were designated

unclassifiable (see section 107(d)(4)(B)(iii) of the Act). Additional

PM-10 areas were designated nonattainment in subsequent Federal

Register actions.

States containing areas which were designated as moderate

nonattainment by operation of law under section 107(d)(4)(B) were to

develop and submit SIPs to provide for the attainment of the PM-10

NAAQS. Pursuant to section 189(a)(2), those SIP revisions were to be

submitted within one year of enactment of the Act (November 15, 1991).

The SIP revisions were to provide for implementation of RACM/RACT by

December 10, 1993 and attainment by December 31, 1994.

B. Application for a 1-Year Extension of the Attainment Date

If the State does not have the necessary number of consecutive

clean years of data to show attainment of the NAAQS, a State may apply

for an extension of the attainment date. Pursuant to section 188(d) of

the Act, a State may apply for, and EPA may grant, a 1-year extension

of the attainment date if the State has: (1) complied with the

requirements and commitments pertaining to the applicable

implementation plan for the area; and (2) the area has measured no more

than one exceedance of the 24 hour PM-10 standard in the year preceding

the extension year, and the annual mean concentration of PM-10 in the

area for such year is less than or equal to the standard. If the State

does not have the requisite number of years of clean air quality data

to show attainment and does not apply or does not qualify for an

attainment date extension, the area will be reclassified as serious by

operation of law.

The authority delegated to the Administrator to extend attainment

dates for moderate areas is discretionary. Section 188(d) of the Act

provides that the Administrator ``may'' extend the attainment date for

areas that meet the minimum requirements specified above. The provision

does not dictate or compel that EPA grant extensions to such areas. In

exercising this discretionary authority for PM-10 nonattainment areas,

EPA will examine the air quality planning progress made in the moderate

areas. EPA will be disinclined to grant an attainment date extension

unless a State has, in substantial part, addressed its moderate PM-10

planning obligations for the area. In order to determine whether the

State has substantially met these planning requirements, the EPA will

review the State's application for the attainment date extension to

determine: (1) Whether the State has adopted and substantially

implemented control measures submitted to address the requirement for

implementing RACM/RACT in the moderate nonattainment area; and (2) that

reasonable further progress is being met for the area. RFP for PM-10

nonattainment areas is determined to be linear emissions reductions

made on an annual basis which will provide progress toward the eventual

attainment of the NAAQS in the area. If the State cannot make a

sufficient demonstration that the area has complied with the extension

criteria

[[Page 52313]]

stated above, and EPA determines that the area has not demonstrated

attainment of the PM-10 NAAQS, the area will be reclassified as serious

by operation of law pursuant to section 188(b) of the Act. If an

extension is granted, at the end of the extension year, EPA will again

determine whether the area has attained the PM-10 NAAQS. If the

requisite 3 consecutive years of clean air quality data needed to

demonstrate attainment are not met, the State may apply for a second 1-

year extension of the attainment date. In order to qualify for the

second 1-year extension of the attainment date, the State must satisfy

the same requirements listed above for the first extension. In

addition, EPA will consider the State's PM-10 planning progress for the

area in a manner similar to its evaluation of the first extension

request. However, EPA may grant no more than two 1-year extensions of

the attainment date to a single nonattainment area [see section 188(d)

of the Act].

II. Area Being Granted a 1-Year Extension of the Attainment Date

EPA is granting a 1-year extension of the attainment date for the

Denver, Colorado PM-10 nonattainment area. As discussed below and in

the accompanying technical support document to this action, this

determination is based upon air quality data which revealed violations

of the PM-10 NAAQS during the years of 1992-94 and EPA's evaluation of

the applicable SIP.

If a State containing a moderate PM-10 nonattainment area does not

have 3 consecutive years of clean air quality data to demonstrate that

the area has attained the PM-10 NAAQS, the State may apply for a 1-year

extension of the attainment date. The EPA may extend the attainment

date for 1 year only if the State submits an application for the

affected nonattainment area satisfying the requirements discussed

above. The following area qualifies for an attainment date extension:

A. Denver, Colorado

1. Review of the ambient data: Denver has experienced exceedances

of the 24-hour PM-10 NAAQS on six separate days since 1987. Two

exceedances were recorded in 1987 and four exceedances in the 1992/93

winter season. A violation of the annual PM-10 NAAQS has never

occurred. Since no exceedances of the PM-10 NAAQS were recorded in

1994, the area meets one of the requirements to qualify for an

attainment date extension under section 188(d).1 Data requirements

for purposes of making comparisons with the 24-hour and annual PM-10

NAAQS must be consistent with section 2.3 of 40 CFR part 50, appendix

K.

\1\ The Act states that no more than one exceedance may have

occurred in the area [see section 189(d)(2)]. The EPA interprets

this to prohibit extensions if there is more than one measured

exceedance of the 24-hour standard at any monitoring site in the

nonattainment area. The number of exceedances will not be adjusted

to expected exceedances as long as the minimum required sampling

frequencies have been met.

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2. Review of SIP planning progress and SIP implementation: The

State of Colorado originally submitted the PM-10 SIP for Denver on June

7, 1993. On December 20, 1993 (58 FR 66326), EPA proposed to limitedly

approve the control measures contained in the June 7, 1993 Denver PM-10

SIP. On the same date, EPA also proposed to conditionally approve the

Denver PM-10 SIP based on the State's commitment to revise permit

limitations at two sources (Purina Mill and Electron Corporation). EPA

limitedly approved the control measures contained in the June 7, 1993

Denver PM-10 SIP on July 25, 1994 (59 FR 37698). EPA limitedly approved

the control measures because they strengthened the PM-10 SIP for Denver

by advancing the PM-10 air quality goal of the Act. In addition,

because EPA questioned the contribution of secondary particulate

emissions in the attainment demonstration, EPA did not take action on

whether the June 7, 1993 SIP submittal attained the NAAQS or met the

reasonably available control measures (RACM) (including reasonably

available control technology (RACT)) requirements of the Act.

On March 30, 1995, the State of Colorado re-submitted the entire

SIP for the Denver PM-10 nonattainment area. This revision is intended

to satisfy the PM-10 SIP requirements that were due on November 15,

1991: i.e., provisions to assure that RACM/RACT would be implemented by

December 10, 1993, a demonstration that the NAAQS will be attained,

quantitative milestones which will be achieved every three years and

which demonstrate reasonable further progress by December 31, 1994 and

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. EPA is still evaluating the March 30, 1995 submittal

and will determine, at a later date, whether the November 15, 1991

requirements are met in their entirety. Finally, the permits have been

issued to Purina Mills and Electron Corporation, fulfilling the State's

earlier commitments.

Pursuant to EPA's November 14, 1994 guidance entitled ``Criteria

for Granting 1-Year Extensions of Moderate PM-10 Nonattainment Area

Attainment Dates, Making Attainment Determinations, and Reporting on

Quantitative Milestones,'' from Sally Shaver, Director of Air Quality

Strategies and Standards Divisions, to Regional Air Division Directors,

``[t]he State must demonstrate that it has complied with all

requirements and commitments pertaining to the affected nonattainment

area in the applicable implementation plan.'' In addition, this

guidance indicates that ``[i]n instances where EPA will not have taken

final rulemaking action on the State's moderate area SIP revision prior

to granting the attainment date extension for the area, the applicable

SIP for the area would be the most recent federally approved

particulate matter SIP for the area.'' Since EPA has not approved all

portions of the PM-10 SIP for Denver, EPA also considered the State's

total suspended particulate (TSP) SIP for the Denver area. EPA approved

the Denver TSP SIP on October 5, 1979 (44 FR 57401). The TSP SIP

control measures consisted of street cleaning practices, unpaved road

controls, control of mud and dirt carry out sources, control of

construction, grading, excavation, and demolition, and paving or

stabilizing unpaved roads and alleys.

For the most part, the PM-10 SIP for Denver addresses the same type

of emissions addressed in the TSP SIP. In addition, the PM-10 SIP is

more stringent than the TSP SIP because the PM-10 SIP incorporates

regulations that require a certain percentage of sand reductions on

streets as well as street cleaning requirements and sand specification

requirements. Also, the PM-10 SIP addresses other PM-10 emissions

including woodburning. Although additional reentrained road dust

requirements for a portion of the nonattainment area were submitted in

March 30, 1995, for which EPA has not completed its review, EPA has

approved the majority of the PM-10 SIP pertaining to reentrained road

dust emissions. Therefore, since the PM-10 SIP, for the most part,

supplants the TSP SIP for Denver, EPA believes it is more appropriate

to evaluate the implementation of the PM-10 SIP and not the TSP SIP.

The State has completed its air quality planning requirements for

the Denver PM-10 nonattainment area that were due by November 15, 1991.

As indicated above, the State submitted a revised plan that supersedes

and replaces all

[[Page 52314]]

other versions of the Denver PM-10 SIP element. EPA is still evaluating

this submittal. However, the March 30, 1995 SIP purports to demonstrate

attainment of the NAAQS by December 31, 1994, and if this is the case,

the State would have met its RACM/RACT requirements.

EPA has evaluated the milestone report submitted by the State on

March 31, 1995, to determine the State's progress in implementing the

Denver PM-10 SIP. As indicated earlier, the majority of the SIP was

submitted in June 1993. The milestone report indicates that the State

has implemented 100% of its originally adopted control measures.

Therefore, EPA believes that the State has substantially implemented

its RACM/RACT requirements and has made emission reductions amounting

to reasonable further progress (RFP) toward attainment of the PM-10

NAAQS as defined in section 171(1) of the Act.

III. Final Action

EPA is granting a 1-year attainment date extension for the Denver,

Colorado PM-10 nonattainment area. This action is based on monitored

air quality data for the national ambient air quality standard for PM-

10 during the years 1992-94 and EPA's evaluation of the applicable SIP.

Therefore, the attainment date for the Denver, Colorado PM-10

nonattainment area is now December 31, 1995. If necessary, the State

may request one more 1-year attainment date extension.

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 revision

should adverse or critical comments be submitted. Under the procedures

established in the May 10, 1994 Federal Register (59 FR 24054), this

action will be effective December 5, 1995 unless, by November 6, 1995,

adverse or critical comments are received.

If such comments are received, 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. 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 5, 1995.

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 (EO) 12866

Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to

determine whether regulatory actions are significant and therefore

should be subject to OMB review, economic analysis, and the

requirements of the Executive Order. The Executive Order defines a

``significant regulatory action'' as one that is likely to result in a

rule that may meet at least one of the four criteria identified in

section 3(f), including, under paragraph (1), that the rule may ``have

an annual effect on the economy of $100 million or more or adversely

affect, in a material way, the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities.''

The Agency has determined that the granting of attainment date

extensions would result in none of the effects identified in section

3(f). Attainment date extensions under section 188(d) of the CAA do not

impose any new requirements on any sectors of the economy; nor do they

result in a materially adverse impact on State, local, or tribal

governments or communities.

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 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.

Extension of nonattainment area attainment dates under section

188(b)(2) of the CAA do not create any new requirements. Therefore,

because this federal approval does not impose any new requirements, I

certify that it does not have a significant impact on small entities.

VI. Unfunded Mandates

Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act

of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,

EPA must assess whether various actions undertaken in association with

proposed or final regulations include a Federal mandate that may result

in estimated costs of $100 million or more to the private sector, or to

State, local or tribal governments in the aggregate.

EPA has determined, as discussed earlier in section IV. of this

action, that this final action of granting a one-year extension to the

Denver, Colorado PM-10 nonattainment area does not impose any federal

intergovernment mandate, as defined in section 101 of the Unfunded

Mandates Act. A finding that an area should be granted a one-year

extension of the attainment date consists of factual determinations

based upon air quality considerations and the area's compliance with

certain prior requirements. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector result from this

action. This action also will not impose a mandate that may result in

estimated costs of $100 million or more to either State, local, or

tribal governments in the aggregate, or to the private sector.

VII. Petition Language

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 December 5, 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 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, Hydrocarbons,

Intergovernmental relations, Nitrogen dioxide, Particulate matter,

Reporting and recordkeeping requirements, Sulfur dioxide, Volatile

organic compounds.

Dated: September 25, 1995.

Jack W. McGraw,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

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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 52.322 is added to read as follows:

Sec. 52.322 Extensions.

The Administrator, by authority delegated under section 188(d) of

the Clean Air Act, as amended in 1990, extends for one year (until

December 31, 1995) the attainment date for the Denver, Colorado, PM-10

nonattainment area.

[FR Doc. 95-24508 Filed 10-5-95; 8:45 am]

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