Clean Air Act Approval and Promulgation of State Implementation Plan for Colorado; Carbon Monoxide Attainment Demonstrations and Related SIP Elements for Denver and Longmont; Clean Air Act Reclassification; Oxygenated Gasoline Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[CO-001-0011; CO-001-0012; CO-001-0013; CO-001-0014; FRL-5692-3]

Clean Air Act Approval and Promulgation of State Implementation

Plan for Colorado; Carbon Monoxide Attainment Demonstrations and

Related SIP Elements for Denver and Longmont; Clean Air Act

Reclassification; Oxygenated Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rulemaking.

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

SUMMARY: In this document, EPA is approving the State Implementation

Plan (SIP) revisions submitted by the State of Colorado for the purpose

of bringing about the attainment of the national ambient air quality

standards (NAAQS) for carbon monoxide (CO). The implementation plan

revisions were submitted by the State on July 11 and 13, 1994,

September 29, 1995, and December 22, 1995 to satisfy certain Federal

requirements for an approvable nonattainment area CO SIP for Denver and

Longmont. This action includes approval of revisions to Colorado

Regulations 11 (vehicle inspection and maintenance (I/M)) and 13

(oxygenated fuels) submitted to satisfy conditions in the SIP, and

further revisions to Regulation 13 to shorten the effective period of

the oxygenated fuels program. It also includes reclassification of the

Denver CO nonattainment area from Moderate to Serious. EPA proposed to

approve the July 1994 and September 1995 SIP submissions and to

reclassify the Denver area to Serious in the Federal Register on July

9, 1996. EPA published a supplemental proposal to approve the December

22, 1995 SIP submission shortening the oxygenated fuels program period

and to approve the Denver and Longmont CO SIPs based on the shortened

period on December 6, 1996. The rationale for the final approvals and

reclassification are set forth in this document. Additional information

is available at the address indicated below.

EFFECTIVE DATE: This action is effective on April 9, 1997.

ADDRESSES: Copies of the State's submittals 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, 3rd Floor, South Terrace, Denver, Colorado 80202-2466;

and Colorado Air Pollution Control Division, 4300 Cherry Creek Dr.

South, Denver, Colorado 80222-1530.

FOR FURTHER INFORMATION CONTACT: Jeff Houk at (303) 312-6446.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning requirements for CO nonattainment areas

are set out in sections 186-187 of the Clean Air Act (Act) Amendments

of 1990 (CAAA) which pertain to the classification of CO nonattainment

areas and to the submission requirements of the SIPs for these areas,

respectively. 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, [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 today's rulemaking action.

In today's action on the Denver and Longmont CO SIPs, EPA is applying

its interpretations taking into consideration the specific factual

issues presented and comments received from the public.

This Federal Register document addresses several requirements of

the 1990 CAAA which were required to be submitted no later than

November 15, 1992, and which the State did not

[[Page 10691]]

submit by that date. These requirements include an attainment

demonstration, contingency measures and, for Denver, a vehicle miles

travelled forecasting and tracking program and transportation control

measures. EPA made a formal finding that the State had failed to submit

these SIP revisions in a letter to Governor Roy Romer dated January 15,

1993. This Federal Register document also addresses revisions to

Regulations 11 and 13, submitted by the State of Colorado to implement

portions of the control strategy relied upon by the attainment

demonstration.

Section 187(a)(7) required those States containing CO nonattainment

areas with design values greater than 12.7 parts per million (ppm) to

submit, among other things, an attainment demonstration by November 15,

1992, demonstrating that the plan will provide for attainment by

December 31, 1995 for Moderate CO nonattainment areas and December 31,

2000 for Serious CO nonattainment areas. The attainment demonstration

must include a SIP control strategy, which is also due by November 15,

1992. The SIP control strategy for a given nonattainment area must be

designed to ensure that the area meets the specific annual emissions

reductions necessary for reaching attainment by the deadline. In

addition, section 187(a)(3) requires these areas to implement

contingency measures if any estimate of actual vehicle miles travelled

(VMT) or any updated VMT forecast for the area contained in an annual

report for any year prior to attainment exceeds the number predicted in

the most recent VMT forecast. Contingency measures are also triggered

by failure to attain the NAAQS for CO by the attainment deadline.

Contingency measures must be submitted with the CO SIP by November 15,

1992. Finally, a vehicle miles travelled forecasting and tracking

program is required by Section 187(a)(2)(A), and transportation control

measures are required for Denver by Section 187(a)(2)(B). These

requirements are discussed in more detail in EPA's July 9, 1996 (61 FR

36004) and December 6, 1996 (61 FR 64647) Federal Register documents

proposing action on the SIP revisions.

Longmont had been designated as unclassifiable/attainment prior to

passage of the 1990 CAAA. However, a special monitoring study in 1988-

89 recorded an exceedance of the NAAQS in Longmont. As a result, EPA

Region VIII recommended that the Governor designate this area

nonattainment, and on March 15, 1991, the Governor submitted a

nonattainment designation for this area that was later codified by EPA

at 40 CFR Part 81. Longmont was classified as a Moderate area in 40 CFR

Part 81. Since this area had never had a SIP, EPA interpreted Section

172 of the Act to require an attainment demonstration for Longmont.

Contingency measures under Section 172(c)(9) were also required. On

January 15, 1993, EPA made a formal finding that the State had failed

to submit these SIP revisions for Longmont.

On July 11, 1994 and July 13, 1994, Governor Roy Romer submitted

comprehensive revisions to the Colorado SIP. The carbon monoxide SIP

element submittals for Denver and Longmont addressed the outstanding

CAAA requirements discussed above, as well as other CAAA mandates.

The State submitted revisions to Regulations 11 and 13 on September

29, 1995, to implement the I/M and oxygenated fuels program revisions

committed to in the CO SIP. EPA proposed approval of these revisions in

its July 9, 1996 Federal Register document, and is today taking final

action to approve these revisions.

The State submitted additional revisions to Regulation 13 on

December 22, 1995, shortening the effective period of the oxygenated

fuels program. EPA published a Federal Register document on December 6,

1996, proposing approval of these revisions and re-proposing approval

of the Denver and Longmont CO SIPs to provide an opportunity for public

comment on the impact of this revision to Regulation 13 on the CO SIPs.

EPA is today taking final action to approve the revisions to Regulation

13 that the State submitted on December 22, 1995.

II. Response to Public Comments

EPA received numerous comments on its proposed approval of the

Denver CO SIP and the proposed reclassification of Denver from Moderate

to Serious for CO. No comments were received specifically regarding the

Longmont CO SIP. EPA received one set of comments regarding its

proposed approval of the shortening of the effective period of the

oxygenated fuels program. The comments and EPA's responses follow.

Extension of the Comment Period

Several parties requested that EPA extend its comment period on the

proposed approval of the SIP to allow more time for the preparation and

submission of comments. In response to these requests, EPA extended the

comment period for an additional 30 days (see 61 FR 43501, August 23,

1996).

Legality of the SIP Submission Under State Law

Several parties commented that EPA should return the Denver CO SIP

to the State without action, because it was submitted to EPA in

conflict with the requirements of State law. These comments generally

concern the nature of the Air Quality Control Commission's (AQCC's)

submission of the SIP to Legislative Council for review, and the AQCC's

and the Governor's response to Legislative Council's actions.

EPA's acceptance of the SIP through its July 14, 1994 determination

of SIP completeness was based on the June 30, 1994 letter from the

State Attorney General's Office submitted with the SIP. This letter

certifies that the SIP was adopted and submitted in compliance with

State law. Specifically, Section 25-7-133, C.R.S., required the

submission of SIPs ``regarding the regulation of mobile sources'' to

Legislative Council for review 45 days prior to submission to EPA. The

CO SIP arguably did not fall within this criterion, as it did not

include any regulatory content regarding mobile sources. Revisions to

Regulations 11 and 13 (I/M and oxygenated fuels programs) to implement

the provisions of the CO SIP were discussed in the SIP, but were not

adopted or submitted with it. These revisions were adopted later in

1994 by the AQCC, received full Legislative Council review and were

submitted to EPA in September 1995. Nevertheless, the AQCC chose to

submit the CO SIP to Legislative Council for review even though it did

not contain any mobile source regulation revisions.

The June 30, 1994 letter from the AG's office concedes that the SIP

was not submitted to Legislative Council 45 days prior to submittal to

EPA, but notes that the Council acted on the SIP at its June 21, 1994

meeting and, in effect, waived the 45 day requirement. Also, according

to the June 30, 1994 letter, the actions by Legislative Council at its

meeting were not fully in compliance with State law:

``The Council may act in one of two ways: it can return the SIP in

its entirety and it is then deemed approved, or it can submit it to the

General Assembly (via petition for special session if the General

Assembly is not in session)* * * The Legislative Council, on June 21,

1994 took action by motion, wherein it voted to postpone review of the

CO SIP submission, voted to return the plan for revisions by the

Commission, and voted to conduct a final review no later than January

15, 1995. Pursuant to statute, because no special assembly was called

by the

[[Page 10692]]

Council [the General Assembly was not in session], the SIP is deemed

returned and approved.''

EPA finds the State Attorney General's Office's interpretation

reasonable, and thus, EPA accepts that Office's conclusion that the SIP

was, in fact, submitted to EPA for action in compliance with State law.

Oxygenated Fuels Program

Several comments were received with respect to the oxygenated fuels

program. These comments and EPA's responses follow.

(1) The submission violates Section 25-7-105.1, C.R.S., which

states that any regulation that is more stringent than Federal law

shall not constitute part of a state implementation plan.

Putting aside for the purposes of this response the question of

what EPA's role should be with respect to this State law, EPA does not

believe that the 3.1% oxygenated fuels program is more stringent than

is required under the Act. First, EPA does not believe section 211(c)

of the Act preempts the State from requiring a 3.1% minimum oxygen

content standard and, thus, does not believe a finding of necessity is

required under section 211(c)(4)(C) of the Act (see discussion in

response to comment 6 below). Second, the State is relying on the 3.1%

oxygenated fuels program as one measure to help demonstrate attainment

of the NAAQS for CO, as required by sections 110(a) and 187(a)(7) of

the Act. Without the 3.1% oxygenated fuels program, the SIP would be

unable to demonstrate attainment of the NAAQS. Thus, the 3.1%

oxygenated fuels program is not more stringent than the Act requires.

(2) Subsequent to AQCC adoption of the CO SIP, the AQCC adopted

revisions to Regulation 13 which shortened the control period during

which the oxygenated fuels program is in effect. EPA's approval of the

CO SIP does not address this revision.

Based on this comment, EPA reproposed approval of the Denver and

Longmont CO SIPs, incorporating the shortened oxygenated gasoline

season, and also proposed approval of the revisions to Regulation 13

shortening the season (see 61 FR 64647, December 6, 1996). EPA is now

approving the shortening of the oxygenated gasoline season and is

approving the Denver and Longmont CO SIPs based on the shortened

season.

(3) EPA approval of the 3.1% oxygenated fuels program would be

contrary to Exxon Corp. v. City of New York, 548 F.2d 1088 (2nd Cir.

1977).

The Exxon v. City of New York decision was based on pre-1990 CAA

language, EPA regulations that have since been amended, and in part,

different factual circumstances that bear no relevance to the situation

here. Moreover, the changes in section 211(c)(4) and the 40 CFR Part 80

fuel regulations since the Exxon decision directly modify the

provisions that the court relied on in a way that limits the scope of

preemption of state fuel controls. Thus, this decision is not relevant

to the current situation.

In Exxon Corp. v. City of New York, the court found that New York

City's lead and volatility regulations were preempted under section

211(c)(4). In the Part 80 regulations, EPA had set out the federal fuel

requirements and stated that they prescribed regulations for the

control and/or prohibition of fuels and additives. EPA also had

promulgated specific lead regulations, less stringent than the New York

City regulations, but did not address volatility. At the time of the

court's decision, section 211(c)(4) preempted ``any control or

prohibition respecting use of a fuel or fuel additive.'' The court

found that EPA had promulgated regulations respecting the use of fuels,

and thus, New York City's more stringent regulations were preempted.

In the 1990 CAAA, Congress amended the language of section

211(c)(4) to preempt ``any control or prohibition respecting any

characteristic or component of a fuel or fuel additive.'' After the

court's decision, EPA also modified the Part 80 regulations to make it

clear that they are not intended to preempt states' ability to regulate

fuels and fuel additives that EPA has not addressed. Section 80.1(b)

states: ``Nothing in this part is intended to preempt the ability of

State or local governments to control or prohibit any fuel or additive

for use in motor vehicles and motor vehicle engines which is not

explicitly regulated by this part.'' Thus, both Congress and the Agency

have clearly indicated that EPA's fuel requirements do not preempt

states from regulating a specific characteristic or component that the

Agency has not addressed. As discussed below, there are no federal

regulations applicable to oxygen content in the Denver area, and hence

Exxon v. City of New York is not applicable here.

(4) EPA approval of the 3.1% oxygenated fuels program could lead to

oxygenate shortages which could interfere with the federal reformulated

gasoline program.

During the two winter seasons since the CO SIP was submitted to

EPA, the average oxygen content in Denver has been well above 3.1%. The

federal reformulated gasoline program took effect on January 1, 1995,

and thus has been in effect coincident with the Denver oxygenated fuels

program for over two years. No documented oxygenate shortages have

occurred as a result of Denver's program. Furthermore, the commentor

did not provide any indication that a change in circumstances may occur

that could produce any problems in the future.

(5) EPA approval of the 3.1% oxygenated fuels program could lead to

an increase in NOX emissions, which could jeopardize public health

by increasing ozone concentrations.

Several parties have contacted EPA in the past with regard to

potential NOX increases from use of oxygenated fuels. No good

scientific information exists that conclusively documents an increase

in fleet NOX emissions from use of oxygenated fuels. The

laboratory studies to date have generally had poor control of other

fuel characteristics that affect NOX emissions, making the results

unreliable.

Increases in NOX emissions from the use of oxygenates would

not be expected to generate exceedances of the ozone NAAQS, as asserted

by the commentor. Oxygenate use is only required during the winter

season, when climatic conditions are not favorable to the formation of

tropospheric (ground-level) ozone. No exceedances of the ozone NAAQS

have occurred at any time during the ten winter seasons in which

oxygenated fuels have been used in the Denver area.

(6) The 3.1% oxygen content is higher than is necessary to attain

the CO NAAQS, and other reasonable, practicable means of attainment are

available, so EPA cannot approve this program under section

211(c)(4)(C) of the CAA. Moreover, section 211(m) provisions occupy the

field for regulation of oxygen content of gasoline and thereby preempt

any different regulation by a state.

Section 211(c)(4)(C) provides that states are preempted from

regulating motor vehicle fuels where EPA has already acted, either to

regulate the fuel or to find that no regulation is necessary. If

preemption applies, the state may regulate the fuel only if EPA finds

the state requirement necessary to achieve the NAAQS for the relevant

pollutant. Here, EPA has neither regulated fuel oxygen content in

Colorado nor made a finding that no such regulation is necessary.

Therefore, the state regulation is not preempted and there is no need

to find necessity. In the absence of federal preemption, states are

free to regulate to control air pollution, and EPA must approve lawful

state requirements into SIPs, as long as

[[Page 10693]]

the state submission meets all applicable requirements under Title I of

the Act.

Section 211(c)(4)(A) preempts a state from ``prescrib[ing] or

attempt[ing] to enforce * * * any control or prohibition respecting any

characteristic or component of a fuel or fuel additive'' under two

circumstances. Section 211(c)(4)(A)(i) provides for preemption if EPA

has found that no control or prohibition of the characteristic is

necessary and has published that finding in the Federal Register.

Section 211(c)(4)(A)(ii) provides that a state is preempted from

regulating if EPA has prescribed under section 211(c)(1) a control or

prohibition applicable to such characteristic or component, unless the

state control or prohibition is identical to EPA's control or

prohibition. Thus, to preempt state regulation under 211(c)(4), either

EPA must publish a finding that a control is unnecessary, or EPA must

promulgate a control of the same characteristic or component under

section 211(c)(1).

EPA has not made any finding under section 211(c)(4)(A)(i) that

control of fuel oxygen content is unnecessary. There is no preemption

of the Regulation 13 requirement for a 3.1% oxygen content under this

provision.

The only requirement that EPA has promulgated applicable to fuel

oxygen content under 211(c)(1) is in the reformulated gasoline (RFG)

regulations. EPA promulgated the RFG regulations under both sections

211(c)(1) and 211(k). However, Colorado is neither required to use RFG

by statute, nor has it voluntarily opted into the RFG program. Thus,

the RFG regulations do not apply in Colorado.

The statute is ambiguous as to whether federal regulation of a fuel

characteristic in certain areas of the country preempts state

regulation only in those areas, or whether it preempts any state

regulation of that characteristic nationwide. The statute simply refers

to ``a control or prohibition applicable to such characteristic or

component.'' The language does not indicate whether it means any

control in any area or at any time generally applicable to a fuel

characteristic, or a control actually applicable to a fuel

characteristic in a given time and place. The statute is also ambiguous

as to whether ``characteristic or component of a fuel or fuel

additive'' should be read generally, as in ``oxygen content,'' or

specifically, as in ``oxygen content in RFG areas.'' In delegating

authority to the Agency to administer section 211(c), Congress has also

implicitly delegated the authority to reasonably interpret the

provision in light of any ambiguity. Chevron, USA v. NRDC, 467 U.S. 837

(1984).

EPA believes that the better reading of the statute is that

preemption by the RFG regulations applies more narrowly, only in the

areas where the federal RFG regulation applies. First, the RFG

regulations arguably are not a control ``applicable'' to fuel oxygen

content outside of RFG areas. Secondly, this interpretation is

consistent with the judicial cannon of statutory construction by which

courts construe preemption narrowly. Thirdly, as a policy matter, EPA's

decision to regulate fuel oxygen content in RFG areas did not encompass

a determination that states should not or need not regulate that

characteristic outside of those areas. Section 211(c)(4) applies only

where EPA has affirmatively decided to regulate a particular fuel

characteristic or component, or has affirmatively found that no such

regulation is necessary and has published such a finding in the Federal

Register. The RFG rulemaking never considered whether fuel oxygen

content requirements were needed for CO control outside RFG areas, but

merely incorporated the statutory requirement to set a 2.0 percent

oxygen content for RFG. Moreover, whether RFG applies to an area

depends solely on its status as an ozone nonattainment area; its status

for CO is irrelevant. This further reinforces the conclusion that

oxygen content requirements under RFG do not represent any EPA or

Congressional decision on the need for such requirements outside of RFG

areas. Finally, the purpose of the section 211(c)(4) preemption

provision is to strike an appropriate balance between states' ability

to freely adopt control measures, and avoidance of a variety of

different state standards, potentially disrupting the national motor

vehicle fuel market and federal regulation of such fuels. This purpose

is not served by applying preemption where there is no federal

regulatory scheme, as here in Colorado.

Finally, section 211(m) does not constitute federal regulation of

oxygen content, which could occupy the field for regulation of oxygen

content and hence preempt state regulation. Section 211(m) requires

states with certain CO nonattainment areas to submit a SIP revision

requiring gasoline ``to contain not less than 2.7 percent oxygen

content by weight.'' The statute requires state regulation, not

federal, and explicitly sets a minimum standard for such state

regulation, leaving the state free to adopt more stringent requirements

if it so chooses. There is no indication in the statute or the

legislative history that by specifying a minimum oxygen level that

states should require, Congress intended the federal government to

occupy the field of oxygen content regulation and preempt states from

establishing a more stringent standard.

Because the federal RFG fuel oxygen content provision does not

apply to Colorado, section 211(c)(4) does not preempt the state from

promulgating its own average fuel oxygen content standard of 3.1%. Nor

does section 211(m) explicitly or implicitly impose such a restriction.

Moreover, EPA must approve into a SIP any lawful provision concerning

control of a criteria pollutant that is submitted by a State and that

otherwise meets the requirements of section 110. See Union Electric Co.

v. EPA, 427 U.S. 246 (1976). Thus, Colorado was free to adopt a 3.1%

oxygen content standard as a control strategy to help attain the CO

NAAQS.

(7) EPA approval of the 3.1% oxygenated fuels program in Colorado

would be a de facto mandate that at least 50% of the gasoline in the

Denver area contain ethanol, contrary to American Petroleum Institute

vs. United States Environmental Protection Agency, 52 F.3d 1113 (D.C.

Cir. 1995).

In API v. EPA, the issue was whether EPA has the authority to

mandate use of a particular oxygenate in RFG. The court held that EPA

does not have such authority because Sec. 211(k) lays out the specific

criteria that EPA is to consider in promulgating the RFG requirements,

and the ethanol mandate was not established pursuant to those criteria.

This holding has no relevance for whether a state, rather than EPA,

could directly mandate use of a particular oxygenate. Moreover, the

state here has not mandated use of any particular oxygenate. It has

merely established oxygen content requirements, and the industry may

use any oxygenate capable of meeting those requirements, subject to the

maximum blending restrictions. In addition, these are the same oxygen

content requirements as the CAA mandates for certain areas, which

indicates that Congress contemplated that such higher oxygen content

levels may be needed in some areas. In the absence of federal

preemption, states are free to adopt fuel controls for emission

reductions. API identifies no additional limit on EPA's authority to

approve such state requirements in SIPs.

(8) Recent studies have demonstrated that oxygenated fuels have

little or no effect on CO air quality. EPA should facilitate an

independent review of the impacts of oxygenated fuels on CO air quality

before acting to approve the CO SIP.

[[Page 10694]]

The White House Office of Science and Technology Policy (OSTP) has

recently issued a draft report on oxygenated fuels, which compiles the

results of a number of other studies (``Interagency Assessment of

Oxygenated Fuels,'' September 1996). While not yet final, the draft

report concludes that oxygenated fuels produce approximately a 10.0% to

13.5% ambient CO reduction benefit. The National Academy of Sciences

(NAS) has also issued a recent report commenting on the OSTP report.

The NAS report found that oxygenated fuels programs have a benefit of

zero to 10 percent in reducing ambient CO. Of the 10 existing ``real

world'' studies of oxygenated fuels' ambient air impacts cited in the

NAS report, eight show a statistically significant benefit from the

program, and two studies (both in North Carolina) showed no significant

benefit or did not attempt to quantify a benefit. Likewise, virtually

all laboratory studies of oxygenated fuels, including some conducted by

the automotive and petroleum industries, show a significant carbon

monoxide reduction at the tailpipe from use of these fuels.

EPA recently conducted an analysis of carbon monoxide air quality

data from cities around the country (``Impact of the Oxyfuel Program on

Ambient CO Levels,'' J. Richard Cook et al, EPA420-R-96-002). In this

report, EPA compared data from a number of cities which used oxygenated

fuels beginning in the winter of 1992-93 to data from several cities

which did not. Using this approach, EPA found an immediate and

sustained reduction of carbon monoxide concentrations in the range of

3.1% to 13.6% in cities using oxygenated fuels, in excess of the

reductions expected from new cars entering the fleet. This reduction

was not seen in cities not using oxygenated fuels. This level of

benefit is consistent with that found in other studies. A subsequent

regression modeling analysis by Dr. Gary Whitten of SAI of ambient CO

data in oxygenated fuels areas (``Regression Modeling of Oxyfuel

Effects on Ambient CO Concentrations,'' SYSAPP-96/78, January 8, 1997)

found a 14% reduction in ambient CO concentrations due to

implementation of the program.

These analyses are significant because they are based on

measurements of actual air quality data in these cities over at least

two winter periods. Many interested parties have criticized laboratory

studies as not being representative of the real world; however, in

attempting to carry out a ``real world'' study in a single urban area,

it is very difficult to separate the influence of oxygenated fuels from

all of the other factors that affect carbon monoxide concentrations

(including weather, congestion, and changes in the mix of cars and

trucks in the fleet).

The National Academy of Science's report points out some areas

where additional research would be useful, and EPA and the State are

working to design a study to address some of the uncertainties

surrounding the use of oxygenated fuels. However, the NAS report and

the available scientific data support continuing the oxygenated fuels

program.

While not a factor in EPA's decision, readers may be interested to

know that oxygenated fuels is one of the least expensive carbon

monoxide control strategies available. In terms of dollars per ton of

pollution eliminated, it is much cheaper than other alternatives, such

as transportation control measures, mandatory employee trip reduction,

conversion of vehicles to run on alternative fuels like propane or

natural gas, or industrial controls. The program also serves as an

important defense against factors that increase carbon monoxide

emissions in the Denver area, including growth in daily vehicle miles

travelled, growth in the amount of time that vehicles spend in

congestion, and growth in the number of sport utility vehicles and

other types of higher-emitting light-duty trucks on the road. EPA has

substantial evidence at this time that oxygenated fuels are an

effective means to control carbon monoxide, and hence it is appropriate

to approve this provision of the CO SIP at this time.

Shortening of the Oxygenated Fuels Season

One party submitted comments in response to EPA's December 6, 1996

supplemental notice of proposed rulemaking, proposing approval of the

revisions to Regulation 13 removing the last two weeks of the

oxygenated fuels season and reproposing approval of the CO SIPs to

incorporate this revision. This commentor supported EPA's action to

approve the shortening of the oxygenated fuels season. The commentor

also raised other issues with respect to the oxygenated fuels program

which have been addressed above.

Abandoned and Impounded Vehicle Program

One commentor expressed concern that the SIP provision preventing

re-registration of abandoned or impounded pre-1982 vehicles would

negatively impact the collector car industry of the Denver region and

would prevent owners from recovering stolen vehicles. Another commentor

expressed concern that this program would unnecessarily harm lower-

income individuals and artificially increase demand for new cars. While

EPA understands these concerns, the Act prohibits EPA from basing its

actions concerning SIPs on considerations involving the economic

reasonableness of State actions. See Union Electric Co. v. EPA, 427

U.S. 246, 256-266 (1976); 42 U.S.C. section 7410(a)(2).

While EPA is prohibited from basing its action on the SIP on

economic grounds, EPA has concluded for other reasons that it should

not act on this element of the SIP. The provision is not well-defined

in the SIP, with the design and implementation of this program left up

to the discretion of local jurisdictions, and no credit was taken for

this measure in the attainment demonstration (see SIP page IX-4).

Therefore, EPA is not taking action on this element of the SIP.

Revised Emissions Standards for Pre-1982 Vehicles

One commentor stated that the requirement for tighter emissions

testing cutpoints for pre-1982 was arbitrary and capricious, and unduly

impacted owners of these model year vehicles in the Denver region.

Again, EPA is prohibited by law from basing its actions on SIPs on

considerations involving the economic reasonableness of State actions.

However, pre-1982 vehicles were targeted for tighter cutpoints because

1982 and newer vehicles are already subject to the more stringent

provisions of the enhanced vehicle inspection and maintenance program.

Tighter cutpoints for pre-1982 vehicles should result in more high-

emitting vehicles being identified and repaired through the

requirements of Regulation 11. Data from the enhanced I/M program show

that the average older vehicle emits carbon monoxide at levels many

times higher than the level at which they were certified for sale.

However, there is no presumption that all older vehicles are high

emitters, and vehicles in good operating condition should not fail the

tighter cutpoints.

This commentor also stated that the State and EPA had failed to

consider the smaller proportion of total VMT generated by pre-1982

vehicles. The mobile source emissions modeling conducted for the SIP is

based on estimates of annual mileage accumulation and share of daily

VMT for each model year. Thus, the SIP modeling inputs reflect the

smaller proportion of total VMT generated by pre-1982 vehicles. While

it is true that pre-1982 vehicles do represent a relatively small

proportion of total

[[Page 10695]]

regional VMT, emissions generated by these vehicles are still

significant because these vehicles are required to meet less stringent

emissions standards by the State and EPA, and thus, per-vehicle

emissions are higher. The SIP estimates that this measure would provide

a CO emission reduction benefit of 20 tons per day in 1995. EPA

believes the estimates of pre-1982 VMT share and emissions reductions

from the SIP provision are reasonable.

Another commentor stated that EPA should give the State the option

of eliminating the I/M program and the prohibition on re-registration

of abandoned and impounded vehicles in favor of an enforceable system

of user fees or other economic incentives that would address the actual

contribution of individual vehicles and drivers to the region's

pollution problems. The Clean Air Act requires the State to implement

an enhanced I/M program that meets certain minimum requirements.

However, the Act would allow the State to revise its SIP at any time to

add the type of program mentioned by the commentor, as long as the

program meets the SIP requirements of Section 110. EPA does not have to

take any type of action in order to enable the State to develop and

submit this type of SIP revision. As noted above, EPA is not acting on

the SIP provision that prohibits re-registration of abandoned and

impounded vehicles.

Transportation Control Measures (TCMs)

One commentor felt that EPA's description of the relationship of

the TCMs to the SIP as a whole was unclear. This commentor felt that

EPA was interpreting the SIP to incorporate the TCMs as part of the

attainment demonstration, in addition to incorporating the TCMs as

contingency measures.

Further review of the SIP confirms that the TCMs are only meant to

be incorporated as contingency measures. This intent is clearly stated

in the SIP on pages VI-3 and X-1. The SIP states the intent of the area

to implement the contingency measures early, as allowed by EPA policy,

to obtain additional emission reductions. Chapter XII of the SIP,

Attainment Demonstration, clearly demonstrates that these measures are

not necessary for the Denver area to attain the CO NAAQS by December

31, 2000. Thus, EPA is clarifying that the TCMs are intended to be

enforceable provisions of the SIP only as contingency measures, with

implementation required only in the event that the contingency measures

are triggered (through the mechanisms discussed in the proposal). The

State has made an adequate showing that TCMs are not needed for

attainment, as required by section 187(a)(2)(B) of the Act.

Another commentor stated that the requirements of the Act for TCMs

in Denver had not been met. EPA believes that the State and the

Regional Air Quality Council have correctly interpreted the Act's

requirements for TCMs, that the TCM provisions of the SIP are adequate,

and that the SIP contains an adequate showing that TCMs are not

necessary for attainment.

This commentor also stated that EPA should require annual reporting

on the effectiveness and implementation of TCMs and other control

strategies. EPA notes that periodic reporting is already required for a

number of control measures and does not believe that further reporting

is necessary at this time. For example, the Act requires annual

reporting of VMT and a comparison of actual VMT with the SIP forecasts.

The State has complied with these requirements. The Act and EPA's

transportation conformity rule (58 FR 62188, November 24, 1993) also

require that the Denver Regional Council of Governments (DRCOG) report

on the implementation status of TCMs each time a conformity

determination is made, and prohibit conformity findings if TCMs are not

being implemented as required by the SIP. The State also produces

annual reports on the effectiveness of the SIP's two major control

strategies, the I/M and oxygenated fuels programs, as required by State

law. EPA's I/M regulations (40 CFR Part 51, Subpart S) also require

periodic evaluation of and reporting on the effectiveness of the I/M

program.

Contingency Measures

One commentor stated that the SIP does not contain adequate

contingency measures, and that EPA should require the State to

implement the contingency measures based on the Denver area's failure

to attain. This commentor also stated that it was insufficient for the

SIP to describe existing conditions as contingency measures which have

already been implemented.

As discussed in the proposal (61 FR 36009, July 9, 1996), the SIP

TCMs exceed the minimum emission reductions established in EPA

guidance, and EPA considers these measures adequate. Although the State

has chosen to voluntarily implement many of the contingency measures,

and thus obtain the benefits of early emissions reductions, the

commentor is correct that EPA is not requiring the State to implement

the contingency measures in the SIP based on the area's failure to

attain the standard by the end of 1995. EPA believes it is neither

necessary nor appropriate to do so. This is because EPA's approval of

this Serious area CO SIP, which the State has been implementing since

1994, obviates the need for Moderate area contingency measures.

Contingency measures for a Moderate CO nonattainment area with a design

value greater than 12.7 ppm are intended to provide emissions

reductions while the State revises its SIP to meet Serious area SIP

requirements. Here the State has already submitted a Serious area SIP

that demonstrates attainment of the CO standard by the end of 2000, and

EPA is approving it.

In addition, there is no EPA-approved Moderate area CO SIP for the

Denver area on which EPA can base a requirement that the State

implement contingency measures for the failure to attain the CO

standard by the end of 1995. If an EPA-approved Moderate area CO SIP

had been in place at the time the area violated the CO standard in

1995, EPA would have required the State to implement the contingency

measures contained in that SIP. In the Serious area SIP that the State

has submitted and that EPA is approving today, contingency measures are

tied to the 2000 attainment date. There is no basis or necessity for

EPA to require the State to implement contingency measures based on the

area's failure to attain the CO standard by the end of 1995.

The SIP envisions that the TCMs identified as contingency measures

will be implemented early. This is acceptable to EPA. EPA policy

(August 13, 1993 memorandum from G.T. Helms to regional Air Branch

Chiefs entitled ``Early Implementation of Contingency Measures for

Ozone and Carbon Monoxide Nonattainment Areas'') encourages the early

implementation of contingency measures for the additional emission

reductions and progress toward attainment that they provide. EPA

believes that requiring states to adopt additional contingency measures

to replace measures that were implemented early would only discourage

early implementation and the resulting additional emission reductions.

Reclassification to Serious

Two commentors expressed concern over EPA's proposed

reclassification of the Denver area from Moderate to Serious for CO,

given the small number and low absolute value of violations in recent

years. These commentors felt that EPA should recognize Denver's

progress toward attainment of the CO NAAQS in

[[Page 10696]]

recent years. EPA recognizes that Denver has taken significant steps to

reduce CO levels and make progress toward attainment, including

implementation of a comprehensive woodburning control program, the

nation's first oxygenated fuels program, and an effective enhanced I/M

program. However, as explained in the proposed rulemaking, the

unambiguous provisions of the CAA and recent ambient values for CO in

Denver compel EPA to take this action.

One commentor stated that the SIP does not contain the elements

required for a Serious area SIP. As discussed in detail in the

proposal, EPA believes that the SIP does contain all required elements.

Attainment Demonstration

One commentor submitted extensive comments on the adequacy of the

attainment demonstration. This commentor felt that the attainment

demonstration was inadequate because it did not consider other downtown

intersections with the potential of experiencing high concentrations of

CO and because growth projections used in the modeling underestimate

the amount of growth in traffic that has occurred in the Denver area

since the attainment demonstration was submitted to EPA.

The State performed preliminary CAL3QHC modeling of CO

concentrations at three intersections in the downtown area: Speer and

Auraria Boulevard, Broadway and Colfax, and Broadway and Champa. The

CAMP air quality/meteorology monitoring station, which has historically

recorded the highest levels of CO in the Denver area, is located

adjacent to the intersection of Broadway and Champa. The preliminary

modeling results showed predicted concentrations at the Speer/Auraria

and Broadway/Colfax intersections that were up to 6 parts per million

(ppm) higher than concentrations predicted at the CAMP intersection.

However, the State selected only Broadway and Champa (CAMP) for use in

the SIP attainment demonstration because the on-site air quality and

meteorological data available at this location provided more confidence

in the modeling results. To ensure that higher concentrations exceeding

the NAAQS do not occur at other downtown locations the State has

performed supplemental CO monitoring studies at all three intersections

and elsewhere in the Denver urban core. The results to date have

continued to support the use of CAMP as the maximum concentration

downtown site; CAMP continues to record higher CO design value

concentrations than any other location in the Denver metro monitoring

network.

The commentor stated that EPA has not applied its modeling

standards, guidance, and protocols consistently to the choice of

intersections or to the attainment demonstration generally. EPA (both

Region VIII and the national Model Clearinghouse) reviewed the State's

analysis and found that it was consistent with national modeling policy

and other recent Urban Airshed Model/CAL3QHC modeling applications. EPA

believes that modeled concentrations at Speer/Auraria and Broadway/

Colfax are unreliable and therefore is not requiring the State to use

the preliminary CAL3QHC intersection modeling results to demonstrate

attainment at these two intersections. EPA's position is based on the

following factors: (1) Saturation CO monitoring studies in the downtown

area and continuous wintertime monitoring since 1994 at Speer/Auraria

do not support the modeled predictions of higher concentrations at

these locations; (2) estimated wind speeds at Speer/Auraria and

Broadway/Colfax during both episodes modeled were frequently below the

stated threshold of the CAL3QHC model and are not considered valid for

use in the model; (3) there is a possibility that ``cold start''

vehicle emissions may have been overestimated at these intersections,

artificially increasing predicted concentrations; and (4) micro-

meteorological effects of high-rise office buildings significantly

increase modeling uncertainties at these intersections, where on-site

meteorological data was not available.

EPA also notes that the State followed the criteria contained in

the Guideline for Modeling Carbon Monoxide from Roadway Intersections

(EPA-454/R-92-005) in identifying the six busiest intersections for the

SIP analysis. State modeling of these intersections showed compliance

with the NAAQS. However, these intersections are all located outside of

the downtown area; downtown is where the highest concentrations have

historically been measured. EPA subsequently requested the State to

model an additional intersection in the downtown urban core in order to

assure attainment of the NAAQS. However, the State's compliance with

this request goes beyond the usual requirements for a CO SIP attainment

demonstration analysis.

The commentor suggested that meteorological and other data are

available that are more than adequate for modeling intersections other

than CAMP. To EPA's knowledge, CAMP is the only intersection with

representative on-site meteorology data for the periods that were

modeled. Off-site meteorology was available at the Tivoli site for

portions of the SIP episodes modeled, but this site is located several

hundred meters south of the current intersection of Speer and Auraria.

EPA reviewed the Tivoli site and determined that meteorological data

collected at this location would not be representative of conditions at

the intersection. Winds at the Speer and Auraria intersection would be

affected to a far greater degree by building wake effects than the

Tivoli site. In addition, there have been extensive changes to the

roadway and construction of additional structures in the area since the

Tivoli data were obtained in 1988. No data whatsoever were available

for the Broadway and Colfax intersection.

The commentor referred to critiques of the attainment demonstration

developed by State staff and by outside sources. EPA has not been

provided with and is not aware of any State or outside critiques of the

attainment demonstration. EPA was provided with preliminary modeling

results for the Speer and Auraria and Broadway and Colfax intersections

by APCD staff members that were based on the Tivoli and CAMP

meteorological/air quality data. In addition to using non-

representative data, the analysis contained a number of modeling

assumptions that were not consistent with the EPA Guideline on Air

Quality Models or the CAL3QHC Model Users Manual, including incorrect

atmospheric stabilities and wind speeds lower than the acceptable

threshold for the CAL3QHC model. The final CAL3QHC modeling submitted

by the APCD did not contain intersection modeling for the two

intersections where on-site data were not available. EPA concurs with

the final modeling analysis submitted by the State. This decision is

supported by the supplemental CO monitoring studies that have been

performed in the downtown area. These studies support the continued use

of CAMP as the maximum concentration downtown site.

The commentor also suggested that EPA applied a different set of

review criteria to the downtown intersections than to suburban sites,

because the downtown intersections showed high CO concentrations that

would trigger more stringent control strategies, and suggested that

these different criteria led to high concentration intersections

downtown being dropped from the SIP analysis. The reason the modeling

results for the two intersections in the downtown area were dropped is

that the CAL3QHC model could not be applied

[[Page 10697]]

appropriately given the effects of nearby downtown buildings on wind

flow and the lack of representative on-site data. Building effects were

not an issue at the six suburban intersections modeled in the SIP.

The commentor implied that EPA was basing its decision to approve

the SIP on ``voluntary'' compliance with EPA requests,

``understandings'' between State and EPA staff, and written and

unwritten EPA ``guidance''. The commentor suggested that EPA was

honoring a ``deal'' that violates the letter and intent of the Act. EPA

believes that the attainment demonstration meets the requirements of

the Act. EPA addresses the commentor's specific concerns regarding the

attainment demonstration in other portions of this response. EPA is not

basing its decision to approve the SIP on any ``deals'' or improper

``understandings'' reached with the State, but on the SIP's compliance

with the Act. EPA does not know what the commentor is referring to when

it writes about ``voluntary'' compliance with EPA requests. To the

extent EPA has offered guidance to the State, EPA believes such

guidance has been consistent with the Act or a reasonable

interpretation of the Act.

The commentor noted that many large projects have been planned or

built since the attainment demonstration was submitted to EPA, and that

newer growth projections show higher levels of traffic than those

considered in the SIP. Two of the facilities specifically mentioned by

the commentor (Coors Field and Elitch's) would not be expected to

affect Denver's ability to attain the CO standard, since they are not

operational during the winter season when the highest values of CO are

measured in Denver. The proposed Pepsi Center, which could impact

Denver's ability to attain the NAAQS due to its potential proximity to

one of the downtown intersections where elevated values of CO have been

monitored, has not been approved by the City and County of Denver, and

there is apparently some possibility that this facility may not be

located downtown at all. Denver is currently examining the traffic and

air quality impacts of a wide range of potential development in the

lower downtown area through its Central Platte Valley Multimodal Access

and Air Quality Study.

The comment regarding newer projections of traffic growth

apparently refers to revised estimates of daily vehicle miles travelled

produced by DRCOG in the summer and fall of 1996. In early 1996, DRCOG

made some improvements to its transportation demand model (used for

transportation planning, and to produce estimates of future VMT and

speeds for air quality planning purposes) and validated the model with

actual 1995 traffic counts recorded in Denver. These adjustments led to

revised estimates of approximately 49 million miles per day of traffic

in the Denver area (the previous modeled estimate had been

approximately 45 million miles per day). Part of this estimated

increase is due to actual growth in traffic in the Denver region, and

part of it is due to use of improved methodologies for traffic counting

in the region.

In November 1996, Colorado submitted its 1996 report of 1995 actual

annual VMT, as required by the SIP's VMT tracking provisions and the

Act. This report showed that actual 1995 VMT were 4.4% greater than the

SIP projections and 1.3% greater than the most recent revised

projection for 1995. These exceedances are within the allowable limits

of EPA's VMT Tracking Program guidance (5.0% and 3.0% for the

respective VMT projections). EPA established these tolerances in

recognition of the uncertainty inherent in attempting to measure actual

VMT in a large urban area. Since the most recent reported actual annual

VMT is within these allowable tolerances, the State is not required to

implement its contingency measures, and no revision to the SIP is

required. If a subsequent VMT tracking report shows that the SIP VMT

projections (or updated forecasts) are exceeded by greater than the

margins of error allowed by EPA guidance, implementation of the

contingency measures will be required, along with a revision to the SIP

if necessary.

EPA believes that the State has followed the proper procedures (as

outlined in EPA's guidance and the SIP's VMT Tracking Program protocol)

in generating the annual VMT reports that EPA is relying on for its

approval of the SIP. Several factors are involved in comparing

estimates of daily VMT to estimates of annual VMT, including: (1) The

geographic area covered by the different estimates; (2) whether average

daily traffic or average weekday traffic are used; (3) the differences

between the traffic counting network used by DRCOG for its model

validation, and the network required for use by the Colorado Department

of Transportation in generating the Highway Performance Monitoring

System (HPMS) VMT data that the VMT Tracking Program traffic estimates

are based on (use of HPMS data is required by EPA and U.S. Department

of Transportation guidance); and (4) the assumptions behind the

original VMT estimates in the SIP.

There are a number of other factors that protect the SIP's

attainment demonstration from growth in VMT. First, under the

requirements of the EPA/DOT transportation conformity rule, DRCOG's

transportation plans and transportation improvement programs must

comply with the emissions budget for CO contained in the CO SIP, even

if unexpected increases in VMT occur after the SIP is adopted. This

budget protects the Denver area against future violations of the CO

NAAQS in the face of growing VMT. If the budget cannot be met, DRCOG

cannot adopt any new plans and TIPs, and no new regionally significant

projects can be approved. Thus, failure to meet the budget has the same

or greater effect as the imposition of highway sanctions under section

179 of the Act. Second, it is important to note that virtually all of

the growth in the metro area has occurred not in the downtown area,

where the violations of the NAAQS have been monitored, but in outlying

portions of the metro area. Thus, EPA would expect that VMT in the

downtown area would increase at a lower rate than VMT for the metro

area as a whole. This is supported by traffic counts at locations near

downtown, which show that traffic in the central area increased at a

rate of approximately 2-3% per year between 1990 and 1995, even though

DRCOG estimates that traffic has increased approximately 4.5% per year

regionwide. Finally, the air quality trends information submitted with

the State's March 1996 milestone report shows that the Denver area is

ahead of schedule to attain the CO NAAQS even with the higher-than-

expected estimates of daily VMT.

Based on its conclusion that the attainment demonstration was

inadequate, this commentor further concluded that the control

strategies submitted with the SIP are insufficient to provide for

attainment of the NAAQS. EPA's general response to this assertion is

that the attainment demonstration is adequate, and that the modeling

summarized in Chapter XII of the SIP and submitted to EPA demonstrates

that the SIP will provide for attainment with the control measures

included in the SIP.

The commentor stated that the SIP does not include a requirement

that gasoline sold during the winter months include a level of oxygen

sufficient to attain the NAAQS. As discussed above, the SIP includes a

requirement for a 3.1% minimum oxygen content; the attainment

demonstration shows that this level of oxygen is necessary and

[[Page 10698]]

sufficient to provide for attainment of the NAAQS.

The commentor stated that there is no indication that the State

will apply the requirements for content and analysis of transportation

plans, programs and projects contained in the conformity regulations.

These requirements for nonattainment areas classified as serious and

above are enforceable through the EPA/DOT conformity regulation, and

DRCOG must comply with them when they take effect. There is no

requirement in the conformity rule or in the Act that these provisions

be incorporated into the CO SIP. However, they are mentioned on page I-

4 of the SIP.

The commentor stated that the SIP does not satisfy section

110(a)(2) of the Act. As outlined in detail in the Technical Support

Document for EPA's proposed action, the SIP does satisfy the SIP

content requirements of section 110(a)(2).

The commentor stated that the SIP does not contain adequate

measures to control stationary source emissions. Stationary point

source emissions represent only 1.1% of base case emissions (based on

actual emissions) and 5.6% of attainment year emissions (based on

allowable emissions). None of the major sources are located in close

proximity to the downtown monitors which record high concentrations,

and these sources have little or no impact on Denver's ability to

attain the NAAQS. However, stationary point sources of CO are regulated

by Colorado Regulation No. 1 (Particulates, Smokes, CO and Sulfur

Oxides). As noted above, woodburning is already regulated by Regulation

No. 4; woodburning also has very little impact on the downtown

monitoring sites. The remaining stationary sources of emissions are

natural gas combustion and structural fires, which contribute a total

of less than 1% to the attainment year inventory and again have very

little impact on the high concentration monitoring sites.

The commentor stated that the SIP should include a mandatory

employer-based trip reduction program, or demonstrate that such a

program is not necessary to demonstrate attainment of the NAAQS. As

noted in the proposal, Congress revised the Act in 1995 to make

submittal of trip reduction programs voluntary. Thus, EPA could not

require the State to submit such a program even if the attainment

demonstration were to be found inadequate.

The commentor noted that the SIP does not contain an adequate

milestone, nor does it contain an economic incentive program for

implementation should the milestone not be met. Neither the Act nor EPA

policy establish requirements for milestones, so the State was free to

adopt its 1995 base case emission inventory as the milestone. The base

case represents progress toward attainment (emissions in the 1995 base

case were substantially lower than 1990 emissions), which is the intent

of this requirement of the Act. Also, the Act does not require

submittal of an economic incentive program until after either (1) the

milestone has been missed or (2) the Denver area fails to attain by

December 31, 2000. Thus, the SIP is not deficient in this regard.

Finally, the commentor stated that EPA should expressly incorporate

the baseline (pre-existing) control strategies in its approval of this

SIP, that EPA should make it clear that its approval of the SIP is

based on the understanding that these control strategies will remain in

place, and that EPA should withdraw its approval of the SIP should

these control strategies be weakened. As noted in the proposal, the

baseline strategies relied upon in the attainment demonstration have

already been incorporated into the Colorado SIP, making them federally

enforceable; the new control strategies will also be incorporated into

the SIP with EPA's final action on the SIP. EPA's approval is based on

the enforceability of these measures and the SIP's stated intention

that these measures continue to be implemented. If, subsequent to EPA

approval, control measures are weakened or discontinued, EPA's

available responses include making a finding of SIP non-implementation

under section 179(a)(4) and/or section 113(a)(2) of the Act, or making

a finding of SIP inadequacy and issuing a call for a SIP revision under

Section 110(k)(5) of the Act. EPA believes that these mechanisms, along

with EPA's and citizens' ability to directly enforce SIP requirements,

are adequate to ensure that pre-existing control measures continue to

be implemented.

Approval of the SIP

While several parties requested that EPA disapprove the SIP, for

reasons discussed above, two commentors supported EPA's approval of the

SIP. EPA is proceeding with final approval of the CO SIP for the

reasons discussed above and in our July 9, 1996 and December 6, 1996

notices of proposed rulemaking.

III. Implications of Today's Final Action

In today's action, EPA is approving SIP revisions submitted by the

Governor on July 11, 1994, July 13, 1994, September 29, 1995, and

December 22, 1995. Specifically, EPA is (1) approving the July 11, 1994

attainment demonstration, VMT tracking and forecasting program, TCM,

and contingency measures submittals for Denver; (2) approving the July

13, 1994 attainment demonstration and contingency measures submittals

for Longmont; (3) approving the control strategies for Denver,

including the September 29, 1995 submittal of revisions to Regulations

11 and 13 (I/M and oxygenated fuels); and (4) approving the further

revisions to Regulation 13 submitted on December 22, 1995 that shorten

the effective period of the oxygenated fuels program. For the reasons

discussed in Section II of this document, EPA is not taking action on

the SIP provision submitted on July 11, 1994 that calls for a

prohibition of the re-registration of abandoned and impounded vehicles.

In this document, EPA is also making a finding that the Denver/

Boulder carbon monoxide nonattainment area did not attain the NAAQS by

the required attainment date of December 31, 1995, and is revising the

area's classification for carbon monoxide in 40 CFR Part 81 from

Moderate to Serious. This finding is based on air quality data

revealing more than one exceedance of the CO NAAQS during calendar year

1995, resulting in a design value higher than the NAAQS for the period

1994-95. By action dated December 20, 1994, the EPA Administrator

delegated to the Regional Administrators the authority to determine

whether CO nonattainment areas attained the NAAQS, and to reclassify

those that did not.

EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the Act. EPA has

determined that this action conforms with those requirements.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State Implementation Plan. Each request for revision to

any State Implementation Plan 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 EO 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

[[Page 10699]]

EO. The EO defines a ``significant regulatory action'' as one that is

likely to result in a rule that may (1) 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; (2) create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of recipients

thereof; or (4) raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Today's SIP-related actions have been classified as Table 3 actions

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 these regulatory actions from EO 12866 review.

Likewise, EPA has determined that today's finding of failure to

attain would result in none of the effects identified in section 3(f)

of the EO. Under Section 186(b)(2) of the Clean Air Act, findings of

failure to attain and reclassification of nonattainment areas are based

upon air quality considerations and must occur by operation of law in

light of certain air quality conditions. They do not, in and of

themselves, impose any new requirements on any sectors of the economy.

In addition, because the statutory requirements are clearly defined

with respect to the differently classified areas, and because those

requirements are automatically triggered by classifications that, in

turn, are triggered by air quality values, findings of failure to

attain and reclassification cannot be said to impose a materially

adverse impact on State, local, or tribal governments or communities.

V. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. section 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.

sections 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 jurisidiction 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 process does not impose any new requirements, EPA

certifies that this final 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 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).

As discussed in section IV of this document, findings of failure to

attain and reclassification of nonattainment areas under Section

186(b)(2) of the CAA do not, in and of themselves, create any new

requirements. Therefore, I certify that today's final action does not

have a significant impact on small entities.

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 determined that today's final approval actions do 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. These Federal actions approve pre-

existing requirements under State or local law, and impose no new

requirements. Accordingly, no additional costs to State, local or

tribal governments, or to the private sector, result from these

actions.

Likewise, EPA believes, as discussed in section IV of this

document, that the finding of failure to attain and reclassification to

Serious are factual determinations based upon air quality data and must

occur by operation of law and, hence, do not impose any federal

intergovernmental mandate, as defined in section 101 of the Unfunded

Mandates Act.

VII. Small Business Regulatory Enforcement Fairness Act (SBREFA)

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 of the General

Accounting Office prior to publication of the rule in today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

804(2).

VIII. Petitions for Judicial Review

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 May 9, 1997. 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

40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations, and Reporting

and recordkeeping requirements.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

Dated: January 31, 1997.

Max H. Dodson,

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:

[[Page 10700]]

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

Subpart G--Colorado

2. Section 52.320 is amended by adding paragraph (c)(80) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(80) On July 11, 1994, July 13, 1994, September 29, 1995, and

December 22, 1995, the Governor of Colorado submitted revisions to the

Colorado State Implementation Plan (SIP) to satisfy those CO

nonattainment area SIP requirements for Denver and Longmont, Colorado

due to be submitted by November 15, 1992, and further revisions to the

SIP to shorten the effective period of the oxygenated fuels program.

EPA is not taking action on the SIP provision submitted on July 11,

1994 that calls for a prohibition of the re-registration of abandoned

and impounded vehicles.

(i) Incorporation by reference.

(A) Regulation No. 11, Motor Vehicle Emissions Inspection Program,

5 CCR 1001-13, as adopted on September 22, 1994, effective November 30,

1994. Regulation No. 13, Oxygenated Fuels Program, 5 CCR 1001-16, as

adopted on October 19, 1995, effective December 20, 1995.

PART 81--[AMENDED]

1. The authority citation for Part 81 continues to read as follows:

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

2. In 81.306, the Carbon Monoxide table is amended by revising the

entry for ``Denver-Boulder Area'' to read as follows:

Sec. 81.306 Colorado.

* * * * *

Colorado--Carbon Monoxide

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

Designation Classification

Designated area --------------------------------------------------------------------

Date \1\ Type Date \1\ Type

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

* * * * * *

*

Denver-Boulder Area:

The boundaries for the Denver

nonattainment area for carbon monoxide

(CO) are described as follows: Start

at Colorado Highway 52 where it

intersects the eastern boundary of

Boulder County; Follow Highway 52 west

until it intersects Colorado Highway

119; Follow northern boundary of

Boulder city limits west to the 6000-

ft. elevation line; Follow the 6000-

ft. elevation line south through

Boulder and Jefferson Counties to US 6

in Jefferson County; Follow US 6 west

to the Jefferson County-Clear Creek

County line; Follow the Jefferson

County western boundary south for

approximately 16.25 miles; Follow a

line east for approximately 3.75 miles

to South Turkey Creek; Follow South

Turkey Creek northeast for

approximately 3.5 miles; Follow a line

southeast for approximately 2.0 miles

to the junction of South Deer Creek

Road and South Deer Creek Canyon Road;

Follow South Deer Creek Canyon Road

northeast for approximately 3.75

miles; Follow a line southeast for

approximately five miles to the

northern-most boundary of Pike

National Forest where it intersects

the Jefferson County-Douglas County

line; Follow the Pike National Forest

boundary southeast through Douglas

County to the Douglas County-El Paso

County line; Follow the southern

boundary on Douglas County east to the

Elbert County line; Follow the eastern

boundary of Douglas County north to

the Arapahoe County line; Follow the

southern boundary of Arapahoe County

east to Kiowa Creek; Follow Kiowa

Creek northeast through Arapahoe and

Adams Counties to the Adams-Weld

County line; Follow the northern

boundary of Adams County west to the

Boulder County line; Follow the

eastern boundary of Boulder County

north to Highway 52.

Adams County (part).................... ......... Nonattainment.............. 4/9/97 Serious.

Arapahoe County (part)................. ......... Nonattainment.............. 4/9/97 Serious.

Boulder County (part).................. ......... Nonattainment.............. 4/9/97 Serious.

Denver County (part)................... ......... Nonattainment.............. 4/9/97 Serious.

Douglas County (part).................. ......... Nonattainment.............. 4/9/97 Serious.

Jefferson County (part)................ ......... Nonattainment.............. 4/9/97 Serious.

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

\1\ This date is November 15, 1990, unless otherwise noted.

* * * * *

[FR Doc. 97-5765 Filed 3-7-97; 8:45 am]

BILLING CODE 6560-50-P