Clean Air Act Approval and Promulgation of State Implementation Plan for Colorado; Denver Nonattainment Area PMINF10 Contingency Measures

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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