Clean Air Act Approval and Promulgation of PMINF10 State Implementation Plan for Colorado; Telluride; Revisions to the Maintenance Demonstration

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO48-1-7008a & CO-001-0005a; FRL-5607-6]

Clean Air Act Approval and Promulgation of PM10 State

Implementation Plan for Colorado; Telluride; Revisions to the

Maintenance Demonstration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA approves the State implementation plan (SIP) revisions for

Telluride as submitted by the Colorado Governor with a letter dated

April 22, 1996. The April 22, 1996 submittal now satisfies the State's

April 21, 1994 commitment to adopt additional control measures in

Telluride as necessary to demonstrate maintenance of the National

Ambient Air Quality Standards (NAAQS) through December 31, 1997, for

particulate matter with an aerodynamic diameter less than or equal to a

nominal 10 micrometers (PM10). Based on that commitment, EPA

conditionally approved the quantitative milestones element of the

Telluride PM10 SIP on September 19, 1994. The April 22, 1996

submittal incorporates new street sanding requirements and demonstrates

maintenance of the standard through 1997. EPA approves these revisions,

and therefore, converts its September 19, 1994 conditional approval to

a full approval.

DATES: This final rule will become effective on December 3, 1996 unless

adverse comments are received by November 4, 1996. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: 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 80202-2405; Colorado

Department of Health, Air Pollution Control Division, 4300 Cherry Creek

Drive South, Denver, Colorado 80222-1530; and The Air and Radiation

Docket and Information Center, 401 M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Amy Platt, 8P2-A, Environmental

Protection Agency, Region VIII, (303) 312-6449.

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\

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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.

On September 19, 1994, EPA partially approved a March 1993

Telluride PM10 SIP submittal, including control measures,

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

exception of the quantitative milestone element (see 59 FR 47807). EPA

conditionally approved the quantitative milestones element because the

SIP did not demonstrate maintenance of the PM10 NAAQS

[[Page 51785]]

through 1997, and therefore, it was deficient in meeting the second

quantitative milestone (November 15, 1994 through November 15, 1997).

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 revisions to the SIP for Telluride with a letter

dated March 13, 1995. The revisions addressed additional control

measures necessary to demonstrate maintenance of the PM10 NAAQS.

The March 13, 1995 submittal inadvertently incorporated an

incorrect version of a street sanding regulation, i.e., a version

differing from what the State actually adopted. Therefore, the State

was required, through its administrative procedures, to re-notice, re-

hear, and re-adopt the Telluride SIP in order to correct its error. The

result is the April 22, 1996 submittal, which completely replaces the

March 13, 1995 submittal. Therefore, this action will be specific to

the April 22, 1996 submittal.

A. Analysis of State Submission

1. Procedural Background

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.3 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.

---------------------------------------------------------------------------

\3\ Also section 172(c)(7) of the Act requires that plan

provisions for nonattainment areas meet the applicable provisions of

section 110(a)(2).

---------------------------------------------------------------------------

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 within six months after

receipt of the submission.

To entertain public comment, the State of Colorado, after providing

adequate notice, held a public hearing on August 17, 1995 to address

the Telluride PM10 SIP revision. Following the Colorado Air

Quality Control Commission (AQCC) public hearing, the AQCC adopted the

Telluride PM10 SIP revisions. The Governor of Colorado submitted

the Telluride SIP revisions to EPA with a letter dated April 22, 1996.

The SIP revisions were reviewed by EPA to determine completeness in

accordance with the completeness criteria set out at 40 CFR part 51,

appendix V. The submittal was found to be complete and a letter dated

July 12, 1996 was forwarded to the Governor indicating the completeness

of the submittal and the next steps in the review process.

2. Control Strategy

EPA approved the control measures in the Telluride moderate

PM10 nonattainment area SIP as satisfying the RACM (including

RACT) requirement on September 19, 1994 (59 FR 47807). The measures

targeted wood and coal burning. Please see that notice of final

rulemaking and associated Technical Support Document (TSD) for further

details on the specific control measures approved in the SIP.

The April 22, 1996 submittal included the addition of a new

emission control measure which outlines street sanding requirements. In

the Colorado Air Quality Control Commission State Implementation Plan-

Specific Regulation for Nonattainment Areas, adopted August 17, 1995

and effective October 30, 1995, section II.C. details street sanding

requirements for the Telluride area. Specifications for street sanding

include a 2% fines standard for all street sanding materials and

requirements for testing and reporting. In the following table, the

street sanding controls and associated emissions reductions are

outlined.

----------------------------------------------------------------------------------------------------------------

PM10 emissions

Source Control measure reduction from base Effective date

year

----------------------------------------------------------------------------------------------------------------

Re-entrained road dust........ Colorado Air Quality Control Commission ..................... 10/30/95

State Implementation Plan-Specific

Regulation for Nonattainment Areas,

Section II.C., Telluride Nonattainment

Area Street Sanding Requirements.

Requires that all street sanding 32% or 6550 pounds

materials equal or exceed a standard of fewer PM10 emissions/

less than 2% fines. day in 1997.

----------------------------------------------------------------------------------------------------------------

A more detailed discussion of the street sanding control measures

can be found in the TSD. EPA has reviewed the State's documentation and

concluded that it adequately justifies the emissions reduction credit

used in the State's maintenance demonstration. The implementation of

these measures, along with the control measures that were approved in

the moderate PM10 nonattainment area SIP for Telluride on

September 19, 1994 (59 FR 47807), will result in continued maintenance

of the PM10 NAAQS through December 31, 1997. EPA approves this

regulation for street sanding requirements as part of the control

strategy for the Telluride PM10 SIP as it is necessary for

continued maintenance of the PM10 NAAQS.

3. Emissions Budget

The emissions inventory for the Telluride PM10 nonattainment

area was approved by EPA in the September 19, 1994 Federal Register (59

FR 47807). The April 22, 1996 submittal included a paragraph to clearly

denote the emissions budgets for the Telluride nonattainment area,

which are to be used for Federal conformity purposes. The emissions

budgets are determined by subtracting the mobile-source related

emission reduction credits from the 1994 and 1997 mobile source

emissions inventories. Since the State does not have mobile-source

related emission reduction credits to be applied to the 1994 mobile

source emission inventory, the 1994 emissions budget is the same as the

1994 mobile source emissions inventory and remains unchanged from EPA's

September 19, 1994 approval at 16,901 lbs. of PM10/day. However,

with the addition of the street sanding measure described above and

being approved by EPA today, the 1997 budget is now established at

14,687 lbs. of PM10/day.

[[Page 51786]]

4. Revision to the Maintenance Demonstration (Including Air Quality

Modelling)

As noted, the initial moderate PM10 nonattainment areas were

required to submit a demonstration (including air quality modelling)

showing that the plan will provide for attainment as expeditiously as

practicable (see section 189(a)(1)(B) of the Act). The 24-hour

PM10 NAAQS is 150 micrograms/cubic meter (g/m\3\), and

the standard is attained when the expected number of days per calendar

year with a 24-hour average concentration above 150 g/m\3\ is

equal to or less than one (see 40 CFR 50.6). The annual PM10 NAAQS

is 50 g/m\3\, and the standard is attained when the expected

annual arithmetic mean concentration is less than or equal to 50

g/m\3\ (id.).

EPA approved Colorado's March 17, 1993 attainment demonstration for

the Telluride moderate PM10 nonattainment area on September 19,

1994 (59 FR 47807-47813). The 24-hour attainment value (i.e., the

ambient PM10 air quality levels achieved by December 31, 1994) was

142.7 g/m\3\. For a more detailed description of that

attainment demonstration and the related control strategies, see EPA's

September 19, 1994 final rulemaking (59 FR 47807) and the associated

TSD.

However, the March 1993 Telluride nonattainment area plan did not

show maintenance of the NAAQS through 1997. The 1997 24-hour PM10

concentration was predicted to be 180.1 g/m\3\, which is above

the 24-hour NAAQS of 150 g/m\3\. In the April 22, 1996

submittal, the maintenance demonstration was revised to include the

emissions reduction credit for the additional control measure involving

street sanding requirements.

With the revisions, the 24-hour maintenance value is 135.0

g/m\3\ (45.1 g/m\3\ lower than without the revision

and below the PM10 NAAQS). The revised demonstration shows that

the control strategies (approved on September 19, 1994 at 59 FR 47807),

along with the new street sanding requirements, are adequate to ensure

continued maintenance of the 24-hour PM10 NAAQS in Telluride

through the maintenance year of 1997.

The SIP now adequately demonstrates continued maintenance of the

PM10 NAAQS in Telluride. For a more detailed description of the

maintenance demonstration revisions, please see the TSD for this

document.

5. Technical Analyses

With the April 22, 1996 submittal, the Governor submitted the

emissions inventory and chemical mass balance analyses that EPA had

previously approved in its September 19, 1994 rulemaking action (59 FR

47807). Because EPA previously approved the Telluride emissions

inventory and chemical mass balance analyses, EPA is not acting on

these elements at this time.

6. 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). 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)).

The specific control measures contained in this April 22, 1996

revision to the SIP are addressed above in Section II.A.3., ``Control

Strategy.'' The Colorado Air Quality Control Commission State

Implementation Plan-Specific Regulation for Nonattainment Areas,

Section II.C., Telluride Nonattainment Area Street Sanding

Requirements, became effective on October 30, 1995. This regulation

outlines street sanding requirements for all street sanding materials

used in the Telluride nonattainment area and details testing and

recordkeeping requirements. All street sanding material used within the

Telluride nonattainment area must equal or exceed a standard of less

than 2% fines. All materials will be tested to ensure compliance with

this standard, and the test results must be provided to the purchaser

upon delivery.

By June 1 of each year, beginning in 1997, each user of street

sanding materials must prepare and submit a report to the Division

which details (1) the total amount of sanding material (both new and

recycled) used; (2) the total amount of salt or other de-icing

chemicals used; (3) the number of lane miles typically sanded during

each deployment; and (4) the total number of deployment episodes. By

September 30 of each year, beginning in 1996, each user of street

sanding materials must prepare and submit a report to the Division

which provides a copy of all independent tests performed and the name

and address of all suppliers of street sanding material along with a

full description of the location of the supplier's aggregate pit from

which all material was supplied.

The State of Colorado has a program that will ensure that the

measures contained in the SIP are adequately enforced. The Colorado Air

Pollution Control Division (APCD) has the authority to implement and

enforce all control measures adopted by the AQCC. In addition, Colorado

statute provides that the APCD shall enforce against any ``person'' who

violates the emission control regulations of the AQCC, the requirements

of the SIP, or the requirements of any permit. The definition of

``person'' includes any ``municipal corporation, county, city and

county or other political subdivision of the State,'' such as the Town

of Telluride and San Miguel County. Civil penalties of up to $15,000

per day per violation are provided for in the State statute for any

person in violation of these requirements, and criminal penalties are

also provided for in the State statute.

Thus, EPA believes that the control measures contained in the SIP

revision for Telluride are enforceable and that the APCD has adequate

enforcement capabilities to ensure compliance with those control

measures. The TSD contains further information on enforceability

requirements and a discussion of the personnel and funding intended to

support effective implementation of the control measures.

III. Final Action

EPA is approving Colorado's SIP revision, submitted by the Governor

with a letter dated April 22, 1996, for the Telluride moderate

PM10 nonattainment area. This submittal addressed revisions to the

maintenance demonstration to incorporate emissions reductions credit

for the new street sanding requirements. The SIP now adequately

demonstrates continued maintenance of the PM10 NAAQS in Telluride

through 1997; therefore, EPA converts its September 19, 1994

conditional approval (59 FR 47807) to a full approval.

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 filed. This action will be

effective December 3, 1996 unless, by November 4, 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

[[Page 51787]]

the final action. All public comments received will 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 3, 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. Administrative Requirements

A. Executive Order 12866

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.

B. Regulatory Flexibility Act

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 any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the 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).

C. 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 determined that the approval action promulgated does not

include a Federal 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. This Federal action proposes to

approve 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.

D. 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).

E. Petitions 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 December 3, 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 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).)

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 29, 1996.

Patricia D. Hull,

Acting Regional Administrator.

40 CFR Part 52 is amended as follows:

1. The authority citation for part 52 continues to read as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

2. Section 52.320 is amended by adding paragraph (c)(75) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(75) The Governor of Colorado submitted revisions to the PM10

moderate nonattainment area State Implementation Plan (SIP) for

Telluride, Colorado with a letter dated April 22, 1996. The submittal

was made to satisfy the State's commitment to adopt additional control

measures necessary to demonstrate continued maintenance of the

PM10 National Ambient Air Quality Standards through 1997. Due to

the satisfaction of this commitment, the SIP now adequately meets the

quantitative milestone requirement.

(i) Incorporation by reference.

(A) Colorado Air Quality Control Commission State Implementation

Plan-Specific Regulation for Nonattainment Areas, 5 CCR 1001-20,

Section II.C., Telluride Nonattainment Area Street Sanding

Requirements, adopted August 17, 1995 and effective October 30, 1995.

[FR Doc. 96-25465 Filed 10-3-96; 8:45 am]

BILLING CODE 6560-50-P