Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Colorado Springs Carbon Monoxide Redesignation to Attainment, Designation of Areas for Air Quality Planning Purposes, and Approval of a Related Revision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[CO-001-0032a; FRL-6410-7]

Approval and Promulgation of Air Quality Implementation Plans;

State of Colorado; Colorado Springs Carbon Monoxide Redesignation to

Attainment, Designation of Areas for Air Quality Planning Purposes, and

Approval of a Related Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On August 19, 1998, the Governor of Colorado submitted a

request to redesignate the Colorado Springs ``moderate'' carbon

monoxide (CO) nonattainment area to attainment for the CO National

Ambient Air Quality Standard (NAAQS). The Governor also submitted a CO

maintenance plan. In addition, on October 1, 1998, the Governor

submitted revisions to Colorado's Regulation No. 13 ``Oxygenated Fuels

Program''. In this action, EPA is approving the Colorado Springs CO

redesignation request, the maintenance plan, and the revisions to

Regulation No. 13.

DATES: This direct final rule is effective on October 25, 1999 without

further notice, unless EPA receives adverse comments by September 24,

1999. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: Written comments may be mailed to: Richard R. Long,

Director, Air and Radiation Program, Mailcode 8P-AR, United States

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

500, Denver, Colorado 80202-2466.

Copies of the documents relevant to this action are available for

public inspection during normal business hours at the following

offices:

[[Page 46280]]

United States Environmental Protection Agency, Region VIII, Air and

Radiation Program, 999 18th Street, Suite 500, Denver, Colorado 80202-

2466; and,

United States Environmental Protection Agency, Air and Radiation Docket

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

Copies of the State documents relevant to this action are available

for public inspection at: Colorado Air Pollution Control Division,

Colorado Department of Public Health and Environment, 4300 Cherry Creek

Drive South, Denver, Colorado, 880246-1530.

FOR FURTHER INFORMATION CONTACT: Tim Russ, Air and Radiation Program,

Mailcode 8P-AR, United States Environmental Protection Agency, Region

VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466 Telephone

number: (303) 312-6479.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',

``us'', or ``our'' are used we mean the Environmental Protection

Agency.

I. What Is The Purpose of This Action?

In this action, we are approving a change in the legal designation

of the Colorado Springs area from nonattainment for CO to attainment,

we're approving the maintenance plan that is designed to keep the area

in attainment for CO for the next 11 years, and we're also approving

changes to the State's Regulation No. 13 for the implementation of the

wintertime oxygenated fuels program.

On November 15, 1990, the Clean Air Act Amendments of 1990 were

enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-

7671q). Under section 107(d)(1)(C) of the Clean Air Act (CAA), we

designated the Colorado Springs area as nonattainment for CO because

the area had been designated as nonattainment before November 15, 1990.

We originally designated Colorado Springs as nonattainment for CO under

the provisions of the 1977 CAA Amendments (see 41 FR 28002, July 8,

1976). This designation was reaffirmed by the 1990 CAA Amendments and

Colorado Springs was classified as a ``moderate'' CO nonattainment area

with a design value of less than or equal to 12.7 parts per million

(ppm). See 56 FR 56694, November 6, 1991. Further information regarding

this classification and the accompanying requirements are described in

the ``General Preamble for the Implementation of Title I of the Clean

Air Act Amendments of 1990.'' See 57 FR 13498, April 16, 1992.

Under the CAA, we can change designations if acceptable data are

available and if certain other requirements are met. See CAA section

107(d)(3)(D). Section 107(d)(3)(E) of the CAA provides that the

Administrator may not promulgate a redesignation of a nonattainment

area to attainment unless:

(i) The Administrator determines that the area has attained the

national ambient air quality standard;

(ii) The Administrator has fully approved the applicable

implementation plan for the area under CAA section 110(k);

(iii) The Administrator determines that the improvement in air

quality is due to permanent and enforceable reductions in emissions

resulting from implementation of the applicable implementation plan and

applicable Federal air pollutant control regulations and other

permanent and enforceable reductions;

(iv) The Administrator has fully approved a maintenance plan for

the area as meeting the requirements of CAA section 175A; and,

(v) the State containing such area has met all requirements

applicable to the area under section 110 and part D of the CAA.

Before we can approve the redesignation request, we must decide

that all applicable SIP elements have been fully approved. Approval of

the applicable SIP elements may occur simultaneously with final

approval of the redesignation request. That's why we are also approving

the revisions to Regulation No. 13.

II. What Is the State's Process To Submit These Materials to EPA?

Section 110(k) of the CAA addresses our actions on submissions of

revisions to a SIP. The CAA requires States to observe certain

procedural requirements in developing SIP revisions for submittal to

us. Section 110(a)(2) of the CAA requires that each SIP revision be

adopted after reasonable notice and public hearing. This must occur

prior to the revision being submitted by a State to us.

The Colorado Air Quality Control Commission (AQCC) held a public

hearing for the Carbon Monoxide (CO) Redesignation Request and

Maintenance Plan for Colorado Springs on January 15, 1998. The AQCC

adopted the redesignation request and maintenance plan directly after

the hearing. This SIP revision became State effective March 30, 1998,

and was submitted by the Governor to us on August 19, 1998.

We have evaluated the Governor's submittal and have determined that

the State met the requirements for reasonable notice and public hearing

under section 110(a)(2) of the CAA. By operation of law under section

110(k)(1)(B) of the CAA, the Governor's August 19, 1998, submittal

became complete on February 19, 1999.

For the Regulation No. 13 revisions, two public hearings were held.

On April 17, 1997, the AQCC held a public hearing to consider the

changes to Regulation No. 13 that involved shortening of the oxygenated

fuels season by one week and reducing the minimum oxygen content in

fuels for the first and last weeks of the program. The AQCC adopted

these changes directly after the April 17, 1997, public hearing and

they became State effective on June 30, 1997.

On January 16, 1998, the AQCC held a public hearing to consider

further changes to Regulation No. 13, in response to action by the

Colorado General Assembly. The Colorado General Assembly approved the

April 17, 1997, AQCC changes to Regulation No. 13; however, the General

Assembly changed the implementation time frame from 1998-1999, as

contained in the Regulation, to 1997-1998. (State Senate Bill

SB(97)236, codified at Sec. 25-7-133.5(2)(n), C.R.S.) The purpose of

the January 16, 1998, public hearing was for the AQCC to change

Regulation No. 13 to match the implementation time frame of SB(97)236.

This change was adopted by the AQCC directly after the January 16,

1998, public hearing and became State effective on March 30, 1998. The

Governor submitted both the April 17, 1997, and January 16, 1998,

revisions to Regulation No. 13 to us on October 1, 1998.

We have evaluated the Governor's submittal and have determined that

the State met the requirements for reasonable notice and public hearing

under section 110(a)(2) of the CAA. By operation of law under section

110(k)(1)(B) of the CAA, the Governor's October 1, 1998, submittal

became complete on April 1, 1999.

III. EPA's Evaluation of the Redesignation Request and Maintenance

Plan

EPA has reviewed the State's redesignation request and maintenance

plan and believes that approval of the request is warranted, consistent

with the requirements of CAA section 107(d)(3)(E). The following are

descriptions of how the section 107(d)(3)(E) requirements are being

addressed.

(a). Redesignation Criterion: The Area Must Have Attained the

Carbon Monoxide (CO) NAAQS

[[Page 46281]]

Section 107(d)(3)(E)(i) of the CAA states that for an area to be

redesignated to attainment, the Administrator must determine that the

area has attained the applicable NAAQS. As described in 40 CFR 50.8,

the national primary ambient air quality standard for carbon monoxide

is 9 parts per million (10 milligrams per cubic meter) for an 8-hour

average concentration not to be exceeded more than once per year. 40

CFR 50.8 continues by stating that the levels of CO in the ambient air

shall be measured by a reference method based on 40 CFR part 50,

Appendix C and designated in accordance with 40 CFR part 53 or an

equivalent method designated in accordance with 40 CFR part 53.

Attainment of the CO standard is not a momentary phenomenon based on

short-term data. Instead, we consider an area to be in attainment if

each of the CO ambient air quality monitors in the area doesn't have

more than one exceedance of the CO standard over a one-year period. 40

CFR 50.8 and 40 CFR part 50, Appendix C. If any monitor in the area's

CO monitoring network records more than one exceedance of the CO

standard during a one-year calendar period, then the area is in

violation of the CO NAAQS. In addition, our interpretation of the CAA

and EPA national policy 1 has been that an area seeking

redesignation to attainment must show attainment of the CO NAAQS for at

least a continuous two-year calendar period. In addition, the area must

also continue to show attainment through the date that we promulgate

the redesignation in the Federal Register.

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\1\ Refer to EPA's September 4, 1992, John Calcagni policy

memorandum entitled ``Procedures for Processing Requests to

Redesignate Areas to Attainment.''

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Colorado's CO redesignation request for the Colorado Springs area

is based on an analysis of quality assured ambient air quality

monitoring data that are relevant to the redesignation request. As

presented in Section 2 of the State's maintenance plan, ambient air

quality monitoring data for consecutive calendar years 1988 through

1996 show a measured exceedance rate of the CO NAAQS of 1.0 or less per

year, per monitor, in the Colorado Springs nonattainment area. Data are

also available for calendar years 1997 and 1998 that also show no

exceedances of the CO NAAQS. All of these data were collected and

analyzed as required by EPA (see 40 CFR 50.8 and 40 CFR part 50,

Appendix C) and have been archived by the State in our Aerometric

Information and Retrieval System (AIRS) national database. Further

information on CO monitoring is presented in Section 2 of the

maintenance plan and in the State's Technical Support Document (TSD).

We have evaluated the ambient air quality data and have determined that

the Colorado Springs area has not violated the CO standard and

continues to demonstrate attainment.

The Colorado Springs nonattainment area has quality-assured data

showing no violations of the CO NAAQS for 1995 and 1996 which are the

years the State used to support the redesignation request. In addition,

data from the most recent consecutive two-calendar-year period (i.e.,

1997 and 1998) also show no violations. Therefore, the Colorado Springs

area has met the first component for redesignation: demonstration of

attainment of the CO NAAQS. We note too that the State of Colorado has

also committed, in the maintenance plan, to continue the necessary

operation of the CO monitors in compliance with all applicable federal

regulations and guidelines.

(b). Redesignation Criterion: The Area Must Have Met All Applicable

Requirements Under Section 110 and Part D of the CAA

To be redesignated to attainment, section 107(d)(3)(E)(v) requires

that an area must meet all applicable requirements under section 110

and part D of the CAA. We interpret section 107(d)(3)(E)(v) to mean

that for a redesignation to be approved by us, the State must meet all

requirements that applied to the subject area prior to or at the time

of the submission of a complete redesignation request. In our

evaluation of a redesignation request, we don't need to consider other

requirements of the CAA that became due after the date of the

submission of a complete redesignation request.

1. CAA Section 110 Requirements

The Colorado Springs CO element of the Colorado SIP was adopted by

the AQCC in June of 1982 and was approved by the EPA on December 12,

1983 (48 FR 55284). The 1982 SIP element's emission control plan was

based on emission reductions from the Federal Motor Vehicle Control

Program (FMVCP), Automobile Inspection and Readjustment Program,

Improved Public Transit, Carpool Locator Service, and Traffic Flow

Improvements. The anticipated date for attaining the 8-hour CO NAAQS

was December 31, 1987.

Through a letter dated May 26, 1988, we notified the Governor of

Colorado that the Colorado Springs area did not attain the CO NAAQS by

the end of 1987. This letter stated that Colorado was to address

deficiencies in the SIP and that the State would also have to address

requirements in our forthcoming post-1987 policy for carbon monoxide.

To partially address deficiencies in the Colorado Springs SIP element,

the State included the Clean Air Campaign in the SIP, although no

emissions reductions credits were assigned to this program. We approved

the Clean Air Campaign into the SIP (see 54 FR 22893, May 30, 1989) for

its underlying benefit to the area.

EPA did not finalize its post-1987 policy for carbon monoxide

because the Clean Air Act (CAA) was amended on November 15, 1990. Under

section 186 of the CAA, Colorado Springs was designated nonattainment

for CO, was classified as ``moderate'' with a design value of less than

12.7 parts per million (ppm), and was required to attain the CO NAAQS

by December 31, 1995. See 56 FR 56694, November 6, 1991. The new CAA

requirements for moderate CO areas, such as Colorado Springs, required

that the SIP be revised to include a 1990 base year emissions inventory

(CAA section 187(a)(1)), corrections to existing motor vehicle

inspection and maintenance(I/M) programs (CAA section 187(a)(4)),

periodic emission inventories (CAA section 187(a)(5)), and the

implementation of an oxygenated fuels program (CAA section 211(m)(1)).

How the State met these requirements and our approvals, are

described as follows:

A. 1990 base year emissions inventory (CAA section 187(a)(1)): The

Governor submitted a 1990 base year emissions inventory for Colorado

Springs on December 31, 1992, with subsequent revisions being submitted

on March 23, 1995. We approved this 1990 base year CO emissions

inventory on December 23, 1996 (see 61 FR 67466).

B. Corrections to the Colorado Springs basic I/M program (CAA

section 187(a)(4)): On January 14, 1994, and June 24, 1994, the

Governor submitted revisions to the Colorado basic I/M program portion

of its SIP which included the program in Colorado Springs. We approved

these basic I/M program revisions on March 19, 1996 (see 61 FR 11149).

C. Periodic emissions inventories (CAA section 187(a)(5)): As the

Governor did not submit a complete redesignation request and

maintenance plan before September 30, 1995, a periodic emission

inventory (for calendar year 1993) was required for Colorado Springs.

On September 16, 1997, the Governor submitted a SIP revision for a 1993

periodic emission inventory for Colorado Springs. We

[[Page 46282]]

approved this revision on July 15, 1998 (see 63 FR 38087).

D. Oxygenated fuels program implementation (CAA section 211(m)): To

address the oxygenated fuels requirements of the CAA, the Governor

initially submitted a revision to Colorado's Regulation No. 13 on

November 27, 1992. We approved this revision on July 24, 1994 (see 59

FR 37698). Regulation 13 was again revised, to shorten the oxygenated

fuels program season, and the Governor submitted further revisions to

Regulation No. 13 on September 29, 1995, and December 22, 1995. We

approved these revisions on March 10, 1997 (see 62 FR 10690).

Based on the above actions by the State and us, EPA has determined

that the SIP continues to satisfy the requirements of section

110(a)(2).

2. Part D Requirements

Before the Colorado Springs CO nonattainment area may be

redesignated to attainment, the State must have fulfilled the

applicable requirements of part D of the CAA. Under part D, an area's

classification indicates the requirements to which it will be subject.

Subpart 1 of part D sets forth the basic nonattainment requirements

applicable to all nonattainment areas, whether the area is classified

or nonclassifiable for CO.

The relevant Subpart 1 requirements are contained in sections

172(c) and 176. Our General Preamble (see 57 FR 13498, April 16, 1992)

provides EPA's interpretations of the CAA requirements for moderate CO

areas with design values of less than 12.7 ppm.

Under section 172(b), the applicable section 172(c) requirements,

as determined by the Administrator, were due November 15, 1992, for the

Colorado Springs nonattainment area. As the Colorado Springs CO

redesignation request and maintenance plan were not submitted by the

Governor until well after November 15, 1992, (i.e., actually, August

19, 1998), the General Preamble (see 57 FR 13529) provides that the

applicable requirements of CAA section 172 were 172(c)(3) (emissions

inventory), 172(c)(5)(new source review permitting program),

172(c)(7)(the section 110(a)(2) air quality monitoring requirements)),

and contingency measures (CAA section 172(c)(9)). It is also worth

noting that we interpreted the requirements of sections 172(c)(1)

(reasonable available control measures--RACM), 172(c)(2) (reasonable

further progress--RFP), and 172(c)(6)(other measures), as being

irrelevant to a redesignation request because they only have meaning

for an area that is not attaining the standard. See EPA's September 4,

1992, John Calcagni memorandum entitled, ``Procedures for Processing

Requests to Redesignate Areas to Attainment'', and the General

Preamble, 57 FR at 13564, dated April 16, 1992. Finally, the State has

not sought to exercise the options that would trigger sections

172(c)(4)(identification of certain emissions increases) and

172(c)(8)(equivalent techniques). Thus, these provisions are also not

relevant to this redesignation request.

Section 176 of the CAA contains requirements related to conformity.

Although EPA's regulations (see 40 CFR 51.396) require that states

adopt transportation conformity provisions in their SIPs for areas

designated nonattainment or subject to an EPA-approved maintenance

plan, we have decided that a transportation conformity SIP is not an

applicable requirement for purposes of evaluating a redesignation

request under section 107(d) of the CAA. This decision is reflected in

EPA's 1996 approval of the Boston carbon monoxide redesignation. (See

61 FR 2918, January 30, 1996.)

The applicable requirements of CAA section 172 are discussed below.

A. Section 172(c)(3)--Emissions Inventory

Section 172(c)(3) of the CAA requires a comprehensive, accurate,

current inventory of all actual emissions from all sources in the

Colorado Springs nonattainment area. As stated above for CAA section

187(a)(1), the Governor submitted a 1990 base year emissions inventory

for Colorado Springs on December 31, 1992, with subsequent revisions

being submitted on March 23, 1995. We approved this 1990 base year CO

emissions inventory on December 23, 1996 (see 61 FR 67466).

B. Section 172(c)(5) New Source Review (NSR)

The CAA requires all nonattainment areas to meet several

requirements regarding NSR, including provisions to ensure that

increased emissions will not result from any new or modified stationary

major sources and a general offset rule. The State of Colorado has a

fully-approved NSR program (59 FR 42500, August 18, 1994) that meets

the requirements of CAA section 172(c)(5). The State also has a fully

approved Prevention of Significant Deterioration (PSD) program (59 FR

42500, August 18, 1994) that will apply after the redesignation to

attainment is approved by us.

C. Section 172(c)(7)--Compliance With CAA section 110(a)(2): Air

Quality Monitoring Requirements

According to our interpretations presented in the General Preamble

(57 FR 13498), CO nonattainment areas are to meet the ``applicable''

air quality monitoring requirements of section 110(a)(2) of the CAA as

explicitly referenced by sections 172 (b) and (c) of the CAA. With

respect to this requirement, the State indicates in Section 3 of the

maintenance plan (``Attainment of the Carbon Monoxide Standard''), that

ambient CO monitoring data have been properly collected and uploaded to

EPA's Aerometric Information and Retrieval System (AIRS) for the

Colorado Springs area. Air quality data through 1996 are included in

Section 3 of the maintenance plan and in the State's TSD. We recently

polled the AIRS database and verified that the State has also uploaded

additional ambient CO data through 1998. The data in AIRS indicate that

the Colorado Springs area has shown, and continues to show, attainment

of the CO NAAQS. Information concerning CO monitoring in Colorado is

included in the Monitoring Network Review (MNR) prepared by the State

and submitted to EPA. Our personnel have concurred with Colorado's

annual network reviews and have agreed that the Colorado Springs

network remains adequate. Finally, in Section 8, D. of the maintenance

plan, the State commits to the continued operation of the existing CO

monitors, according to all applicable Federal regulations and

guidelines, even after the Colorado Springs area is redesignated to

attainment for CO.

D. Section 172(c)(9) Contingency Measures

According to our interpretations presented in the General Preamble

(see 56 FR 13532), moderate CO nonattainment areas, such as Colorado

Springs, were required to submit contingency measures to address the

requirements of section 172(c)(9) of the CAA. These contingency

measures were to become effective, without further action by the State

or us, upon a determination by us that an area had failed to achieve

reasonable further progress (RFP) or to attain the CO NAAQS by December

31, 1995. To address this CAA requirement, the Governor submitted

contingency measures to EPA on February 18, 1994. We approved this

submittal on December 23, 1997 (see 62 FR 67006).

[[Page 46283]]

(c). Redesignation Criterion: The Area Must Have a Fully Approved SIP

Under Section 110(k) of the CAA

Section 107(d)(3)(E)(ii) of the CAA states that for an area to be

redesignated to attainment, it must be determined that the

Administrator has fully approved the applicable implementation plan for

the area under section 110(k).

As noted above, EPA previously approved SIP revisions based on the

pre-1990 CAA as well as SIP revisions required under the 1990

amendments to the CAA. On April 8, 1999 (64 FR 17102) we approved a SIP

revision that removed a bus acquisition program from the Colorado

Springs CO SIP and instead substituted emission reductions from the

oxygenated fuels program. The bus acquisition program was not

implemented due to a lack of federal funding. In this action, we are

approving revisions to Regulation No. 13 and the State's commitment to

maintain an adequate monitoring network (contained in the maintenance

plan.) Thus, we have fully approved the Colorado Springs CO SIP under

section 110(k) of the CAA.

(d). Redesignation Criterion: The Area Must Show That the Improvement

in Air Quality Is Due to Permanent and Enforceable Emissions Reductions

Section 107(d)(3)(E)(iii) of the CAA provides that for an area to

be redesignated to attainment, the Administrator must determine that

the improvement in air quality is due to permanent and enforceable

reductions in emissions resulting from implementation of the applicable

implementation plan, implementation of applicable Federal air pollutant

control regulations, and other permanent and enforceable reductions.

The CO emissions reductions for Colorado Springs, that are further

described in Sections 5. and 6. of the August 19, 1998, Colorado

Springs maintenance plan, were achieved primarily through the Federal

Motor Vehicle Control Program (FMVCP), a decentralized basic motor

vehicle inspection and maintenance (I/M) program, oxygenated fuels, and

traffic flow improvements.

In general, the FMVCP provisions require vehicle manufacturers to

meet more stringent vehicle emission limitations for new vehicles in

future years. These emission limitations are phased in (as a percentage

of new vehicles manufactured) over a period of years. As new, lower

emitting vehicles replace older, higher emitting vehicles (``fleet

turnover''), emission reductions are realized for a particular area

such as Colorado Springs. For example, EPA promulgated lower

hydrocarbon (HC) and CO exhaust emission standards in 1991, known as

Tier I standards for new motor vehicles (light-duty vehicles and light-

duty trucks) in response to the 1990 CAA amendments. These Tier I

emissions standards were phased in with 40% of the 1994 model year

fleet, 80% of the 1995 model year fleet, and 100% of the 1996 model

year fleet.

As stated in Section 5. of the maintenance plan, significant

additional emission reductions were realized from Colorado Springs's

basic I/M program. Colorado's Regulation No. 11, ``Motor Vehicle

Emissions Inspection Program'', contains a full description of the

requirements for Colorado Springs's I/M program. We note that further

improvements to the Colorado Springs area's basic I/M program were

implemented in January, 1995, to meet the requirements of EPA's

November 5, 1992, (57 FR 52950) I/M rule and were approved by us into

the SIP on March 19, 1996 (61 FR 11149).

Oxygenated fuels are gasolines that are blended with additives that

increase the level of oxygen in the fuel and, consequently, reduce CO

tailpipe emissions. Colorado's Regulation 13, ``Oxygenated Fuels

Program'', contains the oxygenated fuels provisions for the Colorado

Springs nonattainment area. Regulation 13 requires all Colorado

Springs-area gas stations to sell fuels containing a 2.7% minimum

oxygen content (by weight) during the wintertime CO high pollution

season. The use of oxygenated fuels has significantly reduced CO

emissions and contributed to the area's attainment of the CO NAAQS.

Colorado Springs has also implemented traffic flow improvements to

alleviate congestion and shorten travel distances. These improvements

involved throat widening, channelization, signalization, widening of

existing roadways, construction of new roadways, or restriction of

access to roadways. The specific traffic flow improvements that were

identified for necessary action in the 1982 Colorado Springs SIP

revision, involved the construction of the Union Boulevard extension

and traffic signalization. These particular improvements have been

accomplished and are now part of the permanent transportation

infrastructure.

We have evaluated the various State and Federal control measures,

the original 1990 base year emission inventory (see 61 FR 67466,

December 23, 1996), and the 1993 attainment year emission inventory,

and have concluded that the improvement in air quality in the Colorado

Springs nonattainment area has resulted from emission reductions that

are permanent and enforceable.

(e). Redesignation Criterion: The Area Must Have a Fully Approved

Maintenance Plan Under CAA Section 175A

Section 107(d)(3)(E)(iv) of the CAA provides that for an area to be

redesignated to attainment, the Administrator must have fully approved

a maintenance plan for the area meeting the requirements of section

175A of the CAA.

Section 175A of the CAA sets forth the elements of a maintenance

plan for areas seeking redesignation from nonattainment to attainment.

The maintenance plan must demonstrate continued attainment of the

applicable NAAQS for at least ten years after the Administrator

approves a redesignation to attainment. Eight years after the

promulgation of the redesignation, the State must submit a revised

maintenance plan that demonstrates continued attainment for the

subsequent ten-year period following the initial ten-year maintenance

period. To address the possibility of future NAAQS violations, the

maintenance plan must contain contingency measures, with a schedule for

adoption and implementation, that are adequate to assure prompt

correction of a violation. In addition, we issued further maintenance

plan interpretations in the ``General Preamble for the Implementation

of Title I of the Clean Air Act Amendments of 1990'' (57 FR 13498,

April 16, 1992), ``General Preamble for the Implementation of Title I

of the Clean Air Act Amendments of 1990; Supplemental'' (57 FR 18070,

April 28, 1992), and the EPA guidance memorandum entitled ``Procedures

for Processing Requests to Redesignate Areas to Attainment'' from John

Calcagni, Director, Air Quality Management Division, Office of Air

Quality and Planning Standards, to Regional Air Division Directors,

dated September 4, 1992. In this Federal Register action, EPA is

approving the maintenance plan for the Colorado Springs nonattainment

area because we have determined, as detailed below, that the State's

maintenance plan submittal meets the requirements of section 175A and

is consistent with the documents referenced above. Our analysis of the

pertinent maintenance plan requirements, with reference to the

Governor's August 19, 1998, submittal, is provided as follows:

[[Page 46284]]

1. Emissions Inventories--Attainment Year and Projections

EPA's interpretations of the CAA section 175A maintenance plan

requirements are generally provided in the General Preamble and the

September 4, 1992, policy memorandum referenced above. Under our

interpretations, areas seeking to redesignate to attainment for CO may

demonstrate future maintenance of the CO NAAQS either by showing that

future CO emissions will be equal to or less than the attainment year

emissions or by providing a modeling demonstration. For the Colorado

Springs area, the State selected the emissions inventory approach for

demonstrating maintenance of the CO NAAQS.

The maintenance plan that the Governor submitted on August 19,

1998, included comprehensive inventories of CO emissions for the

Colorado Springs area. These inventories include emissions from

stationary point sources, area sources, non-road mobile sources, and

on-road mobile sources. The State selected 1993 as the year from which

to develop the attainment year inventory and included interim-year

projections out to 2010. More detailed descriptions of the 1993

attainment year inventory and the projected inventories are documented

in the maintenance plan in Section 8 and in the State's TSD. The

State's submittal contains detailed emission inventory information that

was prepared in accordance with EPA guidance. Summary emission figures

from the 1993 attainment year and the interim projected years are

provided in Table I.-1 below.

Table I.--1 Summary of CO Emissions in Tons Per Day for Colorado Springs:

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

1993 1997 2002 2005 2010

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Point Sources................... 4.54 4.80 5.20 5.40 5.78

Area Sources.................... 69.49 70.40 71.50 72.20 73.31

Non-Road Mobile Sources......... 39.44 43.30 48.20 51.20 56.05

On-Road Mobile Sources.......... 264.20 223.90 183.80 175.60 173.22

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Total....................... 377.67 342.40 308.70 304.40 308.36

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2. Demonstration of Maintenance--Projected Inventories

As we noted above, total CO emissions were projected forward by the

State for the years 1997, 2002, 2005, and 2010. The projected

inventories show that CO emissions are not estimated to exceed the 1993

attainment level during the time period 1993 through 2010 and,

therefore, the Colorado Springs area has satisfactorily demonstrated

maintenance.

3. Monitoring Network and Verification of Continued Attainment

Continued attainment of the CO NAAQS in the Colorado Springs area

depends, in part, on the State's efforts to track indicators throughout

the maintenance period. This requirement is met in two sections of the

maintenance plan. In Section 8 D. the State commits to continue the

operation of the CO monitors in the Colorado Springs area and to

annually review this monitoring network and make changes as

appropriate. Also, in Section 8 E.1., the State commits to prepare a

periodic emission inventory of CO emissions every three years after the

maintenance plan is approved by EPA. With this action, we are approving

these commitments as satisfying relevant requirements. Our approval

renders the State's commitments federally enforceable.

4. Contingency Plan

Section 175A(d) of the CAA requires that a maintenance plan include

contingency provisions. To meet this requirement, the State has

identified appropriate contingency measures along with a schedule for

the development and implementation of such measures. As stated in

Section 8 E. of the maintenance plan, the contingency measures for the

Colorado Springs area will be initially triggered by an exceedance of

the CO NAAQS. Upon an exceedance of the CO NAAQS, the Pike's Peak Area

Council of Governments (PPACG) will recommend for adoption appropriate

local contingency measures to correct a potential violation of the CO

NAAQS (i.e., a second non-overlapping 8-hour average ambient CO

measurement that exceeds 9.4 ppm at a single monitoring site during a

calendar year is a violation of the 8-hour CO NAAQS). This process will

take approximately six months. The Colorado AQCC will review the local

contingency measures and if the AQCC concurs, the AQCC may endorse or

approve the local measures without adopting State requirements. If,

however, the AQCC finds that locally adopted contingency measures are

inadequate, the AQCC will adopt State enforceable measures as deemed

necessary to prevent additional exceedances or a violation. The

maintenance plan further states that contingency measures will be

adopted and fully implemented within one year of a CO NAAQS violation.

The potential contingency measures that are identified in Section

8.E.3. of the Colorado Springs maintenance plan include increasing the

required 2.7 percent minimum oxygen content of gasoline to a level

above the actual oxygen content of gasolines at the time of the

violation, making improvements to Colorado Springs's I/M program,

adopting of a motor vehicle enhanced inspection and maintenance

program, establishing a high pollution day episodic woodburning

curtailment program, adopting a mandatory Employer-Based Travel

Reduction Program, adopting Employee Commute Options, re-implementing a

carpool locator service, and adopting other measures that may be

considered appropriate. A more complete description of the triggering

mechanism and these contingency measures can be found in Section 8 E.

of the maintenance plan.

Based on the above, we find that the contingency measures provided

in the State's maintenance plan are sufficient and meet the

requirements of section 175A(d) of the CAA.

5. Subsequent Maintenance Plan Revisions

In accordance with section 175A(b) of the CAA, Colorado has

committed to submit a revised maintenance plan SIP revision eight years

after the approval of the redesignation. This provision for revising

the maintenance plan is contained in Section 8 F. of the Colorado

Springs maintenance plan.

IV. EPA's Evaluation of the Transportation Conformity Requirements

One key provision of our conformity regulation requires a

demonstration that emissions from the transportation plan and

Transportation Improvement

[[Page 46285]]

Program are consistent with the emissions budgets in the SIP (40 CFR

sections 93.118 and 93.124). The emissions budget is defined as the

level of mobile source emissions relied upon in the attainment or

maintenance demonstration to maintain compliance with the NAAQS in the

nonattainment or maintenance area. The rule's requirements and EPA's

policy on emissions budgets are found in the preamble to the November

24, 1993, transportation conformity rule (58 FR 62193-96) and in the

sections of the rule referenced above.

Section 8 C. of the Colorado Springs maintenance plan describes an

emissions budget for on-road mobile sources for the years 1998 through

2009 as being 264 tons per day (TPD) of CO and for the year 2010 as

being 212 TPD of CO. The PPACG and the State derived the 264 TPD number

for 1998 through 2009 from the 1993 attainment year inventory value for

on-road mobile sources. We cannot approve this 264 TPD value as a

budget for conformity purposes because the budget is not consistent

with maintenance of the NAAQS.2 The attainment year's mobile

source budget of 264 tons per day does not provide for maintenance of

the CO NAAQS when combined with the increasing emissions levels from

non-mobile sources during the 1998-2009 period (i.e., use of the 264

ton budget for any year after 1993 would push total emissions over the

maintenance plan's attainment year level of 377 tons per day). Thus, we

are taking no action on language in section 8 C. of the maintenance

plan that purports to establish an emissions budget for 1998 through

2009 of 264 TPD of CO. The effect of this is that PPACG and the State

may not use 264 TPD as the budget for conformity purposes.

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

\2\ Pursuant to Section 93.118(e)(4) of the Transportation

Conformity Rule (40 CFR Part 93, Subpart A), we previously reviewed

the adequacy of the maintenance plan's carbon monoxide emissions

budgets for purposes of conformity. In an April 29, 1999 letter,

from Richard R. Long, Director, Air and Radiation Program, EPA

Region VIII, to Margie Perkins, Director, Air Pollution Control

Division, Colorado Department of Public Health and Environment, we

determined that the emissions budget for 2010 and beyond (212 tons

per day) was adequate for conformity purposes, and determined that

the budget of 264 tons per year for the 1998-2009 period was

inadequate. Although this action is consistent with our prior

adequacy determination, it should be noted that, in taking final

action on the maintenance plan, we are not bound by our prior

adequacy determination. See 62 FR 43782, August 15, 1997.

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

Our non-action on this budget is unlikely to have any practical

consequences for conformity determinations. Because the most recent

conformity determination for the PPACG 2020 Transportation Plan

demonstrated conformity to the 212 ton per day budget for the years

required to be analyzed under Section 93.118(b) of the conformity rule

(e.g., 2010 and 2020), we do not believe that our determination that

the 264 ton per day budget is unapprovable has any negative

consequences for this existing conformity determination. And under

Section 93.118(b) of the conformity rule, PPACG is unlikely to ever

have to conduct a conformity analysis for any years in the 1998-2009

time frame in the future. However, if such an analysis becomes

necessary, it must be conducted in accordance with EPA's conformity

rule, in particular 40 CFR 93.118(b)(2)(i).

We are approving the 2010 budget of 212 TPD of CO. This budget is

consistent with the maintenance demonstration. The PPACG and the State

established the on-road mobile source emissions budget for 2010 and

beyond by using the 2010 on-road mobile source emission figures and a

portion of the ``safety margin.'' The safety margin is the amount by

which the attainment year emissions from all source categories exceed

the projected year emissions from all source categories. (Table 5 of

the maintenance plan identifies the total 1993 attainment year

emissions as 377.69 TPD of CO. Table 6 of the maintenance plan

identifies the total 2010 maintenance year emissions as 308.36 TPD of

CO.) The total 1993 attainment year emissions exceed the total 2010

maintenance year emissions by 69.33 TPD. Thus, 69.33 TPD constitutes

the safety margin in 2010.) The PPACG and the State then used the 2010

on-road mobile sources emissions (173.22 TPD) and 56.2% of the safety

margin (38.96 TPD) to arrive at a 2010 on-road mobile sources emissions

budget of 212.18 TPD of CO. The State then rounded this budget to 212

TPD of CO. The 2010 budget will apply for 2010 and beyond. See 40 CFR

93.118(b)(2)(ii).

The emissions budget definition in the Colorado Ambient Air Quality

Standards regulation (5 CCR 1001-14) conflicts with the language on

page 8-14 of the maintenance plan and is internally inconsistent; it

inadvertently applies both the invalid 264 TPD budget and the 212 TPD

budget to the year 2010. Our interpretation, based on the language of

the maintenance plan and our conformity rule, is that the maintenance

plan's 212 TPD emission budget applies starting in 2010, superseding

the incorrect language in 5 CCR 1001-14.

V. EPA's Evaluation of the Regulation No. 13 Revisions

Colorado's Regulation No. 13 is entitled ``Oxygenated Fuels

Program.'' The purpose of this regulation is to reduce CO emissions

from gasoline powered motor vehicles in Colorado's Front Range Area,

which includes Colorado Springs, through the wintertime use of

oxygenated gasolines. Section 211(m) of the CAA required the State to

implement an oxygenated fuels program in the larger of the Consolidated

Metropolitan Statistical Areas (CMSA) or Metropolitan Statistical Areas

(MSA) in which the nonattainment areas are located. In Colorado these

areas are the Colorado Springs MSA, Fort Collins-Loveland MSA, and the

Denver-Boulder CMSA. Section 211(m) of the CAA states that the

oxygenated fuels program must cover no less than a four month period

each year unless EPA approves a shorter period. We can approve a

shorter implementation period if a State submits a demonstration that,

because of meteorological conditions, a reduced implementation period

will still assure that there will be no exceedances of the CO NAAQS

outside of this reduced period.

EPA previously approved a revision to Regulation No. 13 that

shortened the oxygenated fuels season by the last two weeks in

February. See 62 FR 10690, March 10, 1997. The State of Colorado is

seeking EPA's approval of further revisions to Regulation No. 13 that

would shorten the oxygenated fuels season by an additional week and

reduce the required oxygen content of the fuels in two other weeks.

Specifically, the revisions are as follows:

(a). The Oxygenated Gasoline Program Period, or ``control period'',

would be reduced by one week. The control period formerly ran from

November 1st through February 14th of each year; as amended, the

control period would run from November 1st through February 7th of each

year.

(b). The fuel oxygenate content requirements were reduced for the

week of November 1st through November 7th of each year. The minimum

oxygen content for this period became 2.0% by weight for all areas

covered by the regulation and there was no maximum blending or 3.1%

averaging requirements for the Denver-Boulder area.

(c). The maximum blending and 3.1% averaging requirements were

revised so that they no longer apply to Denver-Boulder area for the

week of February 1st through February 7th of each year.

[[Page 46286]]

To address the CAA section 211(m) requirement and allow a

shortening of the oxygenated fuels season, the APCD developed a

predictive model for assessing the relative probability of a CO

exceedance during any given week of the oxygenated fuels season. The

use of this model in 1995 allowed the AQCC to approve the first

shortening of the oxygenated fuels program during the last two weeks of

February by demonstrating that the shortening would not result in an

appreciable increase in the possibility of future CO exceedances for

those two weeks.

The APCD model uses a spreadsheet to adjust past monitored CO

concentrations and project them into the future. Monitored CO

concentrations, representing a twenty-year time period, are used in the

spreadsheet database. The highest eight-hour average concentration for

each monitored day of the data set are used. These known values are

then adjusted by using the latest vehicle emission factor model

(currently, MOBILE5) and local transportation traffic projections, in

terms of vehicle miles traveled (VMT), to project CO concentrations

into the future. After normalizing all data points, a statistical

program is used to convert adjusted values to a predicted probability

that any given week will have a CO exceedance. The use of twenty years

worth of monitored data lets meteorological variability be minimized.

When we approved the first shortening of the oxygenated fuels

season, we required the State to demonstrate, based on worst-case

meteorology for Denver for the last 20 years (as indicated by daily

peak 8-hour CO concentrations), at least a 95% probability that there

would be no exceedances of the CO standard during the last two weeks of

February as a result of the shortening of the control period. We

believe, that to implement the statutory requirement of assuring no

exceedances, it is reasonable to require a State to show a very high

probability of no exceedances and that 95% is a reasonable threshold

for the State's demonstration here. Given the limitations of

statistical analysis and the problems associated with proving a

negative, we believe that a higher threshold would be inappropriate.

For the 1998/1999 oxygenated fuels season revision, the State

evaluated the probability of a carbon monoxide exceedance in the Denver

area during the first week of November, 1998, and the first two weeks

of February, 1999, based on four different levels of oxygenates in

automotive fuels and all other elements of the Denver CO SIP being in

place. The analysis was based on the measured daily peak carbon

monoxide concentrations at the CAMP monitoring site in downtown Denver

during the 20-year study period. The high concentrations at the CAMP

site have generally been the highest measured at CO monitoring sites

not only in the Denver-Boulder area, but the entire Front Range area.

Also, of the Front Range CO monitoring sites, the CAMP site has shown

the greatest number of exceedances of the CO NAAQS during the time

periods being analyzed. The 20-year period is sufficiently long to

provide statistically realistic estimates of worst-case atmospheric

dispersion conditions. Carbon monoxide emissions in Denver are expected

to decrease for the next several years, and are expected to remain

below the 1998/1999 levels at least through 2010. Thus, the calculated

probability of a CO NAAQS exceedance is at a maximum in 1998/1999 and

will be lower at least through 2010.

In order to normalize the effects of emissions changes over the 20-

year study period, measured concentrations were adjusted to reflect

estimated changes in CO emissions between the measurement year and

1998/1999. The resulting analysis provided a distribution of

concentrations that would have occurred at the CAMP site had the same

historical meteorological conditions occurred at 1998/1999 emission

rates, at four different levels of oxygenates (including 0%.) The

State's analysis showed the following: (1) For the period of November

1st through the 7th of 1998, at a 2% oxygenate level, there's a 2.5%

probability of a CO NAAQS exceedance; (2) for the period of February

1st through the 7th, of 1999, at a 2.7% oxygenate level, there's a 0.2%

probability of a CO NAAQS exceedance; and (3) for the period of

February 8th through the 14th, at a 0.0% oxygenate level, there's a

2.1% probability of a CO NAAQS exceedance.

The State's analysis also showed that for the Colorado Springs and

Fort Collins-Loveland areas, the probability of an exceedance in either

of those MSA areas is lower than it is for the Denver CMSA area.

Compared to the Denver area, these two areas have experienced

significantly fewer exceedances of the CO standard and significantly

lower ``high'' concentrations over the relevant time frame. Thus, the

probability of an exceedance in the Colorado Springs area and the Fort

Collins-Loveland area, with the changes in oxygenate concentration

embodied in Regulation No. 13, is less than the probability projected

at the CAMP monitor. This probability is expected to further decrease

in years after 1998/1999 due to fleet turnover.

The State also reviewed potential impacts of the Regulation No. 13

revisions on the Denver PM10 SIP attainment demonstration

(APCD/Mobile Sources Program March 24, 1997, Interoffice Memorandum

from Barbara MacRae to Kim Livo). Relying on EPA's consideration of the

elimination of the oxygenated fuels program for the last two weeks of

February (see 61 FR 64649, December 6, 1996), the State concluded that

the increment of benefit due to the oxygenated fuels program is 0.46

ug/m3. When this value is added to the seventh-highest

modeled concentration of 148.7 ug/m3 in the PM10

SIP's maintenance year, the resulting value is still below the 24-hour

PM10 standard of 150 ug/m3.

The highest modeled values for the first week of November and the

second week of February are significantly lower than the 148.7 ug/

m3 value. The State has no modeled value for the first week

of February because the State only modeled the 105 worst meteorological

days and none of these worst days occurred during the first week of

February. Based on the above, the State concluded that the revisions to

Regulation No. 13 would be unlikely to jeopardize the PM10

SIP. We agree with the State's analysis regarding potential impacts to

the Denver PM10 SIP, and do not believe that the reductions

in oxygen content for the first week of November, and the first week of

February, nor the removal of the oxygenated fuels program for the week

of February 8th through the 14th, will impact the Denver

PM10 SIP.

Based on above, we have determined that we can approve the

revisions to Regulation No. 13 as meeting the requirements of section

211(m) of the CAA.

The revisions to Regulation No. 13 were adopted by the AQCC

directly after a public hearing on April 17, 1997, and became State

effective on June 30, 1997.

However, an issue arose after the AQCC's April 17, 1997, approval

of these changes to Regulation No. 13.

Colorado State law requires that any revision to the Colorado SIP

must first by approved by the Colorado General Assembly prior to being

forwarded to the Governor for his approval and submittal to EPA. The

Colorado General Assembly modified the AQCC's April 17, 1997, revisions

to Regulation No. 13. The Colorado General Assembly changed the first

year for implementation of the revised oxygenated fuels program from

the wintertime season of 1998-1999 to

[[Page 46287]]

1997-1998. Further, the Colorado General Assembly required the AQCC to

amend the Regulation No. 13 revisions and incorporate this new (1997-

1998) implementation schedule.

To address the Colorado General Assembly requirements, the AQCC

held a public hearing on January 16, 1998, and revised Regulation No.

13 so that the initial implementation of the changes to the oxygenated

gasoline program, that the AQCC adopted on April 17, 1997, would occur

in the wintertime season of 1997-1998. These January 16, 1998,

amendments to Regulation No. 13 conformed to the language and

requirements of Regulation No. 13 to section 25-7-133.5(2)(n), Colorado

Revised Statutes.

EPA was initially concerned about the changes the Colorado General

Assembly enacted to move up the implementation date of the revisions to

Regulation No. 13, from 1998-1999 to 1997-1998, as the State's

demonstration for the revised Regulation did not address this time

frame. However, this issue became moot as the necessary State

regulatory and legal changes to accomplish this earlier implementation

schedule were not State effective until March 30, 1998. Therefore, the

shortened control period could not be implemented until the wintertime

season of 1998-1999, which was originally analyzed in the State's

demonstration.

On October 1, 1998, the Governor submitted to EPA the revisions to

Regulation No. 13 that were adopted on April 17, 1997 (effective June

30, 1997), and January 16, 1998 (effective March 30, 1998). It is EPA's

understanding that the January 16, 1998, version of Regulation No. 13

replaces the April 17, 1997, version of the Regulation. Thus, although

both versions of the regulation are acceptable to us, EPA is only

approving the later (January 16, 1998) version of the regulation and is

taking no action on the earlier version.

VI. Final Action

In this action, EPA is approving the Colorado Springs carbon

monoxide redesignation request, maintenance plan, and the revisions to

Regulation No. 13.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, we are publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective October 25, 1999

without further notice unless the Agency receives adverse comments by

September 24, 1999.

If EPA receives such comments, then we will publish a timely

withdrawal of the direct final rule informing the public that the rule

will not take effect. All public comments received will then be

addressed in a subsequent final rule based on the proposed rule. The

EPA will not institute a second comment period on this rule. Any

parties interested in commenting on this rule should do so at this

time. If no such comments are received, the public is advised that this

rule will be effective on October 25, 1999 and no further action will

be taken on the proposed rule.

Administrative Requirements

(a) Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

(b) Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local,

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local, or tribal

governments. The rule does not impose any enforceable duties on state,

local, or tribal governments. Accordingly, the requirements of section

1(a) of Executive Order 12875 do not apply to this rule.

(c) Executive Order 13045

Executive Order 13045, Protection of Children from Environmental

Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to

any rule that: (1) Is determined to be ``economically significant'' as

defined under E.O. 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health and safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

(d) Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly affects or uniquely affects

the communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments, or EPA consults

with those governments. If EPA complies by consulting, Executive Order

12084 requires EPA to provide to the Office of Management and Budget,

in a separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to this rule.

(e) Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the

[[Page 46288]]

agency certifies that the rule will not have a significant economic

impact on a substantial number of small entities. Small entities

include small businesses, small not-for-profit enterprises, and small

governmental jurisdictions. This final rule will not have a significant

impact on a substantial number of small entities because SIP approvals

under section 110 and subchapter I, part D of the Clean Air Act do not

create any new requirements, but simply approve requirements that the

State is already imposing. Therefore, because the Federal SIP approval

does not create any new requirements, I certify that this action will

not have a significant economic impact on a substantial number of small

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

under the Clean Air Act, preparation of a flexibility analysis would

constitute Federal inquiry into the economic reasonableness of State

action. The Clean Air Act forbids EPA to base its actions concerning

SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,

255-66 (1976); 42 U.S.C. 7410(a)(2). Redesignation of an area to

attainment under sections 107(d)(3)(D) and (E) of the Clean Air Act

does not impose any new requirements on small entities. Redesignation

to attainment is an action that affects the status of a geographical

area and does not impose any regulatory requirements on sources.

Therefore, I certify that the approval of the redesignation request

will not affect a substantial number of small entities.

(f) Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate, or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves a

redesignation to attainment and pre-existing requirements under State

or local law, and imposes no new requirements. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, will result from this action.

(g) Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of Congress and to the Comptroller General of the United

States. EPA will submit 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 United States prior

to the publication of the rule in the Federal Register. This rule is

not a ``major rule'' as defined by 5 U.S.C. 804(2).

(h) Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

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

of Appeals for the appropriate circuit by October 25, 1999. 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).)

Nothing in this action should be construed as making any

determination or expressing any position regarding Colorado's audit

privilege and penalty immunity law, sections 13-25-126.5, 13-90-107,

and 25-1-114.5, Colorado Revised Statutes (Colorado Senate Bill 94-139,

effective June 1,1994), or its impact upon any approved provision in

the SIP, including the revision at issue here. The action taken herein

does not express or imply any viewpoint on the question of whether

there are legal deficiencies in this or any other Clean Air Act program

resulting from the effect of Colorado's audit privilege and immunity

law. A state audit privilege and immunity law can affect only state

enforcement and cannot have any impact on federal enforcement

authorities. EPA may at any time invoke its authority under the Clean

Air Act, including, for example, sections 113, 167, 205, 211, or 213,

to enforce the requirements or prohibitions of the state plan,

independently of any state enforcement effort. In addition, citizen

enforcement under section 304 of the Clean Air Act is likewise

unaffected by a state audit privilege or immunity law.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations, Reporting and

recordkeeping requirements.

40 CFR Part 81

Air pollution control, National parks, Wilderness areas.

Dated: July 21, 1999.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Chapter I, title 40, parts 52 and 81 of the Code of Federal

Regulations are 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)(86) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(86) On October 1, 1998, the Governor of Colorado submitted

revisions to Regulation No. 13 ``Oxygenated Fuels Program'' that

shortened the effective time period of the oxygenated fuels program for

Denver/Boulder, Colorado Springs, Fort Collins, and Longmont carbon

monoxide nonattainment areas and also reduced the required oxygen

content during certain periods.

(i) Incorporation by reference.

(A) Regulation No. 13 ``Oxygenated Fuels Program'', 5 CCR 1001-16,

as adopted on January 16, 1998, effective March 30, 1998.

3. Section 52.349 is amended by adding paragraph (c) to read as

follows:

Sec. 52.349 Control strategy: Carbon monoxide.

* * * * *

(c) Revisions to the Colorado State Implementation Plan, Carbon

Monoxide Redesignation Request and Maintenance Plan for Colorado

Springs, as adopted by the Colorado Air Quality Control Commission on

January 15, 1998, State effective March 30, 1998, and submitted by the

Governor on August 19, 1998.

[[Page 46289]]

PART 81--[AMENDED]

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

Authority: 42 U.S.C. 7401 et seq.

2. In Sec. 81.306, the table entitled ``Colorado-Carbon Monoxide''

is amended by revising the entry for ``Colorado Springs Area'' to read

as follows:

Sec. 81.306 Colorado.

* * * * *

Colorado--Carbon Monoxide

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

Designation Classification

Designated Area -------------------------------------------------------------------------------------------------------------------

Date \1\ Type Date \1\ Type

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

* * * * * * *

Colorado Springs Area............... October 25, 1999........... Attainment.................

Urban Transportation Planing

Study Area as defined in

1989.

Beginning near the Town of

Palmer Lake, at the Northwest

corner of the Study Area at a

point on the El Paso/Douglas

County line, also on the Pike

National Forest boundary, then:

east along the County line to

Elbert Road; south on Elbert

Road to Judge Orr Road; east on

Judge Orr Road to Ellicott

Highway; south on Ellicott

Highway to Squirrel Creek Road;

west on Squirrel Creek Road to

Williams Creek; south along

Williams Creek to the

confluence of Williams and

Fountain Creeks; south along

Fountain Creek to the El Paso/

Douglas County line; west on

the County line to I-25; north

on I-25 to Exit 132; west on

McGrath to 35th; south on 35th

to Specker; northwest on

Specker to Titus Blvd.; west on

Titus Blvd. to SH-115;

south on SH-115 to Rock Creek;

northwest along Rock Creek

to the Pike National Forest

boundary; north along the

Forest boundary to Old

Stage Road; southwest on

Old Stage Road to Gold Camp

Road; north on Gold Camp

Road to High Drive; north

on High Drive to Lower Gold

Camp Road; north on Lower

Gold Camp Road to the Pike

National Forest boundary;

west along the Forest

boundary, following the

boundary north, then east

to US-24; northwest on US-

24 to the Pikes Peak Toll

Road; west on the Toll Road

to the El Paso/Teller

County line;

north along the County line to

Crystola Creek; west on

Crystola Creek to County Road

282, north on Road 282 to US-

24; northeast on US-24 to Trout

Creek Road; northwest on Trout

Creek Road to Trout Creek;

north along Trout Creek to the

confluence of Trout and Mule

Creeks; north along Mule Creek

to Long Gulch; east along Long

Gulch to White Gulch; east

along White Gulch to Rampart

Range Road; southeast on

Rampart Range Road to the Pike

National Forest Boundary; north

along the Forest boundary to

the El Paso/Douglas County

line, to the point of origin.

El Paso County (part)

Teller County (part)

* * * * * * *

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

[[Page 46290]]

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[FR Doc. 99-21933 Filed 8-24-99; 8:45 am]

BILLING CODE 6560-50-P