Clean Air Act Approval and Promulgation of State Implementation Plan for Colorado; Carbon Monoxide Contingency Measures for Colorado Springs and Fort Collins

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-44-1-6866(a); FRL-5630-1]

Clean Air Act Approval and Promulgation of State Implementation

Plan for Colorado; Carbon Monoxide Contingency Measures for Colorado

Springs and Fort Collins

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

submitted by the State of Colorado with a letter dated February 18,

1994. This submittal addresses the Federal Clean Air Act requirement to

submit contingency measures for carbon monoxide (CO) for the Colorado

Springs and Fort Collins areas designated as nonattainment for the CO

National Ambient Air Quality Standards (NAAQS). The rationale for the

approval is set forth in this document; additional information is

available at the address indicated below.

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DATES: This action is effective on February 23, 1998 unless adverse or

critical comments are received by January 22, 1998. If the effective

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

Register.

ADDRESSES: Comments must be submitted to Jeff Houk at the Region VIII

address. Copies of the State's submittal and other information are

available for inspection during normal business hours at the following

locations: Environmental Protection Agency, Region VIII, Air Programs,

999 18th Street, Third Floor, South Terrace, Denver, Colorado 80202-

2405; and Colorado Air Pollution Control Division, 4300 Cherry Creek

Dr. South, Denver, Colorado 80222-1530.

FOR FURTHER INFORMATION CONTACT: Jeff Houk, State Program Support Unit,

EPA Region VIII, telephone (303) 312-6446.

SUPPLEMENTARY INFORMATION:

I. Background

The Colorado Springs and Fort Collins, Colorado areas were

designated nonattainment for CO and classified as moderate under

Sections 107(d)(4)(A) and 186(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 (Colorado Springs Area and Fort Collins

Area). The air quality planning requirements for moderate CO

nonattainment areas are set out in Subparts 1 and 3 of Part D, Title I

of the Act.2 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 CO 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. Sections 7401, et seq.

\2\ Subpart 1 contains provisions applicable to nonattainment

areas generally and Subpart 3 contains provisions specifically

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

Subpart 3 overlap or conflict. EPA has attempted to clarify the

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

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

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Moderate CO areas with a design value of less than or equal to 12.7

parts per million (including Colorado Springs and Fort Collins) are not

required by the Act to submit a SIP demonstrating attainment of the

NAAQS. Rather, these areas are required to submit certain SIP elements,

including an oxygenated fuels program, an emissions inventory, and

contingency measures.

Those States containing moderate CO nonattainment areas such as

Colorado Springs and Fort Collins were required to submit contingency

measures by November 15, 1993 (see 57 FR 13532). These measures must

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 CO National Ambient Air Quality

Standards (NAAQS) by the applicable statutory deadline (December 31,

1995). See Section 172(c)(9) and 57 FR 13532-13533.

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 Colorado Springs and Fort

Collins with a letter dated February 18, 1994. The revisions address

contingency measures for CO. EPA is now approving the Colorado Springs

and Fort Collins contingency measures as adopted by the State of

Colorado on November 12, 1993 and submitted to EPA by Colorado's

Governor on February 18, 1994.

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.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.

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\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).

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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.

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

adequate notice, held a public hearing on November 12, 1993 to address

the Colorado Springs and Fort Collins contingency measures. Following

the public hearing, the Colorado Springs and Fort Collins contingency

measures were adopted by the State.

The contingency measures were submitted as a proposed revision to

the SIP by the Governor with a letter dated February 18, 1994. The

submittal was received on February 22, 1994, and was deemed complete by

operation of law on August 22, 1994.

B. Contingency Measures

The Clean Air Act requires States containing certain CO

nonattainment areas to 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 reasonable further progress or to timely

attain the applicable NAAQS, as described in section 172(c)(9). See

generally 57 FR 13532-13533. Pursuant to section 172(b), the

Administrator has established a schedule providing that states

containing moderate CO nonattainment areas with a design value of less

than or equal to 12.7 parts per million (ppm) shall submit SIP

revisions containing contingency measures no later than November 15,

1993. (See 57 FR 13532.) (``Not Classified'' areas, that is, areas that

had a design value less than the 9.0 ppm CO NAAQS at the time of

designation, are not required to submit contingency measures.)

EPA guidance (``Technical Support Document to Aid States with the

Development of Carbon Monoxide State Implementation Plans,'' EPA-452/R-

92-003, July 1992) recommends that implementation of the contingency

measures provide vehicle miles travelled (VMT) reductions or emission

reductions sufficient to counteract the effect of one year's growth in

VMT. However, the Act does not specify how many contingency measures

are needed or the magnitude of emissions reductions that must be

provided by these measures. EPA believes that contingency measures must

provide for continued progress toward the attainment goal. This would

be the minimum requirement and is consistent with the statutory scheme.

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

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the General Preamble at 57 FR 13533) 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 CO contingency measures to occur within

12 months 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 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

action such as public hearing or legislative review.

The CO contingency measures for Colorado Springs and Fort Collins

were developed by the Air Pollution Control Division (APCD) of the

Colorado Department of Health (CDH), now the Colorado Department of

Public Health and Environment (CDPHE). After a public hearing on

November 12, 1993, the Colorado Air Quality Control Commission (AQCC)

adopted the measures. The Governor submitted the contingency measures

to EPA with a letter dated February 18, 1994.

Within 12 months of notification by EPA that either the Colorado

Springs or Fort Collins CO nonattainment area has failed to attain the

CO NAAQS by December 31, 1995, the APCD will implement the contingency

measure, the Enhanced Vehicle Inspection and Maintenance (I/M) Program,

codified in Colorado Regulation No. 11. The enhanced I/M program

produces substantial additional emission reductions over the ``Basic''

I/M program currently in operation in the Colorado Springs and Fort

Collins areas. The enhanced I/M program is currently in operation in

the Denver/Boulder and Longmont CO nonattainment areas. EPA

conditionally approved the Colorado Enhanced I/M program in the Federal

Register on November 8, 1994 (59 FR 55584).

The program would apply in those portions of El Paso County

(Colorado Springs) and Larimar County (Fort Collins) in which the Basic

I/M program is currently in operation. These areas, known as the ``AIR

Program Area'' within each County, are described in the authorizing

legislation for the enhanced I/M program.

C. Effectiveness of the Contingency Measures

In Colorado Springs, emissions from one year's growth in VMT were

estimated by the Pikes Peak Area Council of Governments (the

Metropolitan Planning Organization for the area) at 14.4 tons per day.

Reductions from the enhanced I/M program were estimated at

approximately 34 tons per day. EPA's emissions reduction requirements

are adequately met with the implementation of this contingency measure

for Colorado Springs.

In Fort Collins, APCD estimates that mobile source emissions would

be lowered by 13.95% with the implementation of the enhanced I/M

program. Since the estimated one year growth of VMT is 3% in Fort

Collins, and the CO emissions inventory for this area reports that

approximately 80% of the CO emissions in the nonattainment area are

attributable to mobile sources, the reductions from the enhanced I/M

program provide more than a sufficient amount of reduction as a

contingency measure. Therefore, EPA's emissions reduction requirements

are adequately met with the implementation of this contingency measure

for Fort Collins.

D. 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)].

The specific measures contained in the Colorado Springs and Fort

Collins contingency plan are addressed above in Section II.B.

Regulation No. 11, which implements this contingency measure, is

legally enforceable by APCD. There are civil penalties, which increase

with each violation, for noncompliance with the regulation, as well as

a prohibition on the registration of any vehicle which has not complied

with the enhanced I/M program and substantial penalties for

nonregistration of vehicles. The enforceability of Regulation No. 11 is

addressed in more detail in EPA's November 8, 1994 Federal Register

document conditionally approving the program. The State of Colorado has

a program that will ensure that the contingency measures are adequately

enforced. EPA believes that the State's existing air enforcement

program will be adequate.

III. Final Action

EPA is approving Colorado's SIP revisions, submitted by the

Governor with a letter dated February 18, 1994, for the Colorado

Springs and Fort Collins, Colorado nonattainment areas. This submittal

addressed CO contingency measure plans that were due on November 15,

1993. These plans involve the implementation of the Colorado Enhanced

Vehicle I/M Program in the Colorado Springs and Fort Collins CO

nonattainment areas in the event that EPA makes a determination that

either area has failed to attain the CO NAAQS by the statutory

attainment date of December 31, 1995. A copy of the State's SIP

revision is available at the address listed in the Addresses section

above.

The EPA is publishing the action on the contingency measure

submittal without prior proposal because the Agency views this as a

noncontroversial revision and anticipates no adverse comments. However,

in a separate document in this Federal Register publication, the EPA is

proposing to approve the contingency measure SIP revision should

adverse or critical comments be filed. Thus, under the procedures

established in the May 10, 1994 Federal Register, today's direct final

action will be effective February 23, 1998 unless, by January 22, 1998,

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 23, 1998.

The EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the CAA. The EPA

has determined that this action conforms with those requirements.

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 a SIP shall be considered separately

in light of specific technical, economic, and environmental factors and

in relation to relevant statutory and regulatory requirements.

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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 has exempted

this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., the

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, the 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 that are

less than 50,000.

SIP revision approvals under Section 110 and Subchapter I, Part D,

of the CAA 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, the EPA

certifies that this proposed rule would not have a significant impact

on any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the CAA, preparation of a regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of State actions. The CAA forbids the EPA to base its

actions concerning SIPs on such grounds. Union Electric Co. v.

U.S.E.P.A., 427 U.S. 246, 256-266 (S. Ct. 1976); 42 U.S.C. section

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 today 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 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.

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 CAA, 42 U.S.C. 7607(b), petitions

for judicial review of this action must be filed in the United States

Court of Appeals for the appropriate circuit by February 23, 1998.

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, Administrative practice and procedure,

Air pollution control, Carbon monoxide, Incorporation by reference,

Intergovernmental relations, Motor vehicle pollution, Carbon monoxide,

Reporting and recordkeeping requirements.

Dated: September 28, 1995.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Editorial note: This document was received at the Office of the

Federal Register December 17, 1997.

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 et seq.

Subpart G--Colorado

2. Section 52.320 is amended by adding paragraph (c)(71) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c)* * *

(71) The Governor of Colorado submitted carbon monoxide contingency

measures for Colorado Springs and Fort Collins with a letter dated

February 18, 1994. This submittal was intended to satisfy the

requirements of section 172(c)(9) of the Clean Air Act for contingency

measures which were due on November 15, 1993.

(i) Incorporation by reference.

(A) Colorado Air Quality Control Commission Nonattainment Areas

regulation, 5 CCR 1001-20, Section VI, City of Fort Collins

Nonattainment Area, and Section VII, Colorado Springs Nonattainment

Area, adopted on November 12, 1993, effective on December 30, 1993.

* * * * *

[FR Doc. 97-33320 Filed 12-22-97; 8:45 am]

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