Approval and Promulgation of Air Quality Implementation Plans; Colorado; Removal and Replacement of Transportation Control Measure, Colorado Springs Element, Carbon Monoxide Section of the State Implementation Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0025a; FRL-6319-7]

Approval and Promulgation of Air Quality Implementation Plans;

Colorado; Removal and Replacement of Transportation Control Measure,

Colorado Springs Element, Carbon Monoxide Section of the State

Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is approving a revision to the Colorado State

Implementation Plan (SIP), carbon monoxide (CO) section, Colorado

Springs element. In a June 25, 1996, submission, Colorado requests that

emission reductions from oxygenate use in gasoline be substituted for

reductions associated with the previously approved (48 FR 55284,

December 12, 1983) bus acquisition program because the bus program was

not implemented due to the lack of federal funding. This revision

satisfies certain requirements of part D and section 110 of the Clean

Air Act (CAA), as amended in 1990.

DATES: This direct final rule is effective on June 7, 1999 without

further notice, unless EPA receives adverse comments by May 10, 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:

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

[[Page 17103]]

Drive South, Denver, Colorado, 80246-1530.

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:

I. Background

Part D of the CAA, which was added by the amendments of 1977,

required States that were seeking an extension beyond 1982 to attain

the CO National Ambient Air Quality Standard (NAAQS) to submit a

revision to the SIP by July 1, 1982. This revision was to provide for

attainment of the CO NAAQS by December 31, 1987. The Governor submitted

the necessary SIP revision for Colorado Springs on June 24, 1982.

One of the CO control strategies described in the June 24, 1982,

revision was a transportation control measure (TCM) involving improved

public transit. This particular TCM required the acquisition of an

additional 27 buses to supplement and expand the Colorado Springs

fleet. Table 6.1 (``Percent Reductions in 1987 Ambient CO

Concentrations Attributable To Control Measures'') of Chapter 6,

``Determination Of Air Quality Impacts Of The Proposed Plan'', of the

June 24, 1982, submittal indicated that the ``Improved Public Transit''

TCM, which included the purchase of the 27 new buses spaced over 1981,

1982, 1983, and 1984, would result in a 1.5% reduction in the 1987 CO

emissions in Colorado Springs. It was, however, specifically noted in

the June 24, 1982, SIP revision that acquisition of these additional

buses would only be possible if sufficient Federal funding was

provided. The 1982 SIP revision indicated that the City of Colorado

Springs could contribute $1,252,800 and that $5,010,800 was needed from

Federal funds. Federal funds were not available for this bus program

and the additional 27 buses were not purchased by Colorado Springs.

On February 24, 1993, the Pikes Peak Area Council of Governments

(PPACG) approved the substitution of emissions reduction credits from

an oxygenated gasoline program for the bus acquisition TCM. The

emission reductions from the oxygenated gasoline program had not

previously been credited in the Colorado Springs CO element of the SIP.

The State calculated there was at least an 11% reduction in CO

emissions for the 1987-88 winter CO season due to the implementation of

the oxygenated gasoline program. This more than compensates for the

calculated 1.5% reduction in CO emissions from the non-implemented bus-

purchase program contained in the SIP.

On December 15, 1994, PPACG's revision was adopted by the Colorado

Air Quality Control Commission (AQCC). This revision became Chapter 10

``SIP Revision--December 1994'' of the Colorado Springs CO section of

the SIP. The Governor submitted the SIP revision to EPA on January 29,

1996.

Colorado's oxygenated gasoline program has been revised a number of

times since its inception in 1987-88. The program has continuously

provided emissions reductions greater than those that would have been

realized through the implementation of the bus-purchase program.

Details regarding Colorado's Federally approved oxygenated gasoline

program can be found in the March 10, 1997, Federal Register (62 FR

10690). The State has recently revised the oxygenated gasoline program

through a further shortening of the oxygenated gasoline program season.

To date, EPA has not taken any action on this SIP revision. EPA notes,

however, that the revised oxygenated gasoline program continues to more

than compensate for the emission reductions that would have been

realized if the bus-purchase program had been implemented in Colorado

Springs.

II. Analysis of the State's Submittal

The CAA requires States to observe certain procedural requirements

in developing SIP revisions for submittal to EPA. Section 110(a)(2) of

the CAA requires that States provide reasonable notice and a public

hearing before adopting SIP revisions. Following reasonable notice, the

AQCC conducted a public hearing on this matter on December 15, 1994.

Directly after the hearing, the AQCC revised the Colorado Springs CO

SIP to substitute the oxygenated gasoline program for the bus-purchase

program as a source of emissions reductions credits.

The Governor submitted this revision, for the Colorado Springs

element of the SIP, to EPA on January 29, 1996. By operation of law

under the provisions of section 110(k)(1)(B) of the CAA, the submittal

was deemed complete on July 29, 1996.

III. Final Rulemaking Action

EPA is approving the revision to the Colorado State Implementation

Plan (SIP), carbon monoxide (CO) section, Colorado Springs element,

that the Governor of Colorado submitted to EPA on June 25, 1996, to

satisfy certain requirements of part D and section 110 of the Clean Air

Act (CAA), as amended in 1990. The revision substitutes Colorado's

oxygenated gasoline program (contained in Colorado's Regulation No. 13)

for the Colorado Springs bus purchase program, as a source of emissions

reductions credits in the Colorado Springs CO element of the SIP. As

noted above, EPA approved the bus purchase program as part of the

Colorado Springs CO element of the SIP on December 12, 1983 (48 FR

55284), but the program was never implemented. This action has the

effect of removing the bus purchase program from the EPA-approved SIP.

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, EPA is 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 June 7, 1999

without further notice unless the Agency receives adverse comments by

May 10, 1999.

If EPA receives such comments, then EPA 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 June 7, 1999 and no further action will be

taken on the proposed rule.

IV. 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

[[Page 17104]]

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 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).

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 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 June 7, 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

[[Page 17105]]

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 or

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 in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: March 24, 1999.

William P. Yellowtail,

Regional Administrator, Region VIII.

40 CFR part 52, Subpart G, is amended as follows:

PART 52--[AMENDED]

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

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

Subpart G--Colorado

2. Section 52.349 is amended by designating the existing text as

paragraph (a) and by adding paragraph (b) to read as follows:

Sec. 52.349 Control strategy: Carbon monoxide.

* * * * *

(b) On June 25, 1996, the Governor of Colorado submitted a revision

to the Colorado Springs element of the carbon monoxide (CO) portion of

the Colorado State Implementation Plan (SIP). The revision to the

Colorado Springs element was submitted to satisfy certain requirements

of part D and section 110 of the Clean Air Act (CAA) as amended 1990.

The revision substitutes Colorado's oxygenated gasoline program for the

Colorado Springs bus purchase program as a source of emissions

reductions credits in the Colorado Springs CO element of the SIP. This

revision removes the bus purchase program from the EPA-approved SIP.

EPA originally approved the bus purchase program as part of the

Colorado Springs CO element of the SIP on December 12, 1983 (48 FR

55284).

[FR Doc. 99-8630 Filed 4-7-99; 8:45 am]

BILLING CODE 6560-50-P