[Federal Register Volume 66, Number 92 (Friday, May 11, 2001)]
[Proposed Rules]
[Pages 24075-24084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11915]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[CO-001-0054; FRL-6978-2]
Approval and Promulgation of Air Quality Implementation Plans;
State of Colorado; Denver 1-Hour Ozone Redesignation to Attainment,
Designation of Areas for Air Quality Planning Purposes, and Approval of
Related Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On November 30, 2000, the Governor of Colorado submitted a
request to redesignate the Denver-Boulder metropolitan (Denver)
``transitional'' ozone nonattainment area to attainment for the 1-hour
ozone National Ambient Air Quality Standard (NAAQS). As part of this
request, the Governor asked that EPA parallel process a proposed
maintenance plan for the Denver area. In conjunction with the
Governor's submittal, EPA is also proposing approval of revisions to
Colorado's Regulation No. 3 ``Air Contaminant Emissions Notices'' and
Colorado's Regulation No. 7 ``Emissions of Volatile Organic Compounds''
that were previously submitted by Governor
[[Page 24076]]
Roy Romer, for our approval, on August 8, 1996.
In this action, EPA is proposing approval and soliciting public
comment on the Denver 1-hour ozone redesignation request, the State-
proposed maintenance plan, and the revisions to Regulation No. 3 and
Regulation No. 7.
DATES: Written comments must be received on or before June 11, 2001.
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 300, 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 300, Denver, Colorado 80202-
2466.
Copies of the State documents relevant to this action are available
for public inspection at:
Colorado Department of Health and Environment, Air Pollution Control
Division, 4300 Cherry Creek 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 300, 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?
With this action, we are utilizing our parallel processing
procedure for consideration of several revisions to the Colorado State
Implementation Plan (SIP). Parallel processing allows EPA to propose
rulemaking on a SIP revision(s), and solicit public comment, at the
same time the State is processing the SIP revision(s). The Colorado Air
Quality Control Commission (AQCC) adopted the proposed SIP revisions,
with minor technical changes that we do not consider significant, on
January 11, 2001. When the Governor submits the final revisions to us
for approval, we will consider any comments received and proceed with a
final rulemaking action. However, should the State substantially change
any of the proposed SIP revisions before the Governor submits the final
versions to us, we will re-propose and again solicit public comment on
these State amended SIP revisions before we take final rulemaking
action. For further information regarding parallel processing, please
see 40 CFR Part 51, Appendix V, section 2.3.1.
In this action, we are proposing approval of a change in the legal
designation of the Denver area from nonattainment to attainment for the
1-hour ozone NAAQS (hereafter referred to as ozone NAAQS or ozone
standard), we're proposing approval of the AQCC-adopted maintenance
plan that is designed to keep the area in attainment for ozone for the
next 13 years, and we're proposing approval of changes to AQCC
Regulation No. 3 and AQCC Regulation No. 7. We also note that in his
November 30, 2000, letter, the Governor asked that we parallel process
a potential alternative provision for the maintenance plan that had
been proposed by the Colorado Department of Transportation (CDOT).
CDOT's alternative provision involved the conversion of the Santa Fe
Boulevard High Occupancy Vehicle (HOV) lanes to general service lanes
and the provision of funds to provide additional light rail transit
cars to compensate for the loss of the HOV emission reductions.
However, in a December 6, 2000, letter (that we received on December
19, 2000) from CDOT to the AQCC, CDOT withdrew its request for this
alternative provision indicating that it could not guarantee light rail
transit cars to replace the HOV lanes. Based on our understanding that
this CDOT proposed alternative provision is moot, we are not proposing
action on this alternative.
We originally designated the Denver area as nonattainment for ozone
under the provisions of the 1977 CAA Amendments (see 43 FR 8962, March
3, 1978). On November 15, 1990, the Clean Air Act Amendments of 1990
were enacted (Public Law 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), EPA
designated the Denver area as nonattainment for ozone because the area
had been previously designated as nonattainment before November 15,
1990. The Denver area was classified under section 185A of the CAA as a
``transitional'' ozone nonattainment area as the area had not violated
the ozone NAAQS in the years 1987, 1988, and 1989.\1\
---------------------------------------------------------------------------
\1\ The CAA describes areas as ``transitional'' if they were
designated nonattainment both prior to enactment and (pursuant to
CAA section 107(d)(1)(C)) at enactment, and if the area did not
violate the primary ozone NAAQS in the 3-year period of 1987 through
1989. Refer to section 185A of the CAA and the ``General Preamble
for the Implementation of Title I of the Clean Air Act Amendments of
1990'', 57 FR 13498, April 16, 1992. See specifically 57 FR 13523-
27, April 16, 1992.
---------------------------------------------------------------------------
Under the CAA, designations can be changed if sufficient data are
available to warrant such changes 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.
Thus, before EPA can approve the redesignation request, EPA must
find, among other things, that all applicable SIP elements have been
fully approved. Approval of the applicable SIP elements may occur prior
to final approval of the redesignation request or simultaneously with
final approval of the redesignation request. EPA notes there are no
outstanding SIP elements necessary for the redesignation. However, the
Governor previously requested approval of revisions to Regulation No. 3
and Regulation No. 7 such that rules applicable to the Denver ozone
nonattainment area remain in effect after Denver is redesignated to
attainment for the 1-hour ozone standard. Therefore, EPA is also
proposing approval of the revisions to Regulation No. 3 and Regulation
No. 7. These revisions are described below.
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
[[Page 24077]]
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 final revisions
being submitted by a State to us.
At the October 19, 2000, AQCC meeting, the Commission proposed for
public comment the ozone redesignation request and maintenance plan.
The AQCC held a public hearing on January 11, 2001, for considering
public comment on the above SIP revisions. After accepting several
minor technical corrections to the maintenance plan, the AQCC adopted
the Denver 1-hour ozone redesignation request and maintenance plan on
January 11, 2001.
The AQCC had previously held a public hearing on March 21, 1996,
for the revisions to AQCC Regulation No. 3 ``Air Contaminant Emissions
Notices'' (hereafter, Regulation No. 3) and AQCC Regulation No. 7
``Emissions of Volatile Organic Compounds'' (hereafter, Regulation No.
7). The AQCC adopted the revisions to Regulation No. 3 and Regulation
No. 7 directly after the hearing. These SIP revisions became State
effective May 30, 1996, and were submitted by the Governor to us on
August 8, 1996.
We have evaluated the Governor's prior submittal involving the
revisions to Regulation No. 3 and Regulation No. 7 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 8, 1996,
submittal of the revisions to Regulation No. 3 and Regulation No. 7
became complete on February 6, 1997.
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) Brief History of the Denver Ozone Redesignation Request,
Maintenance Plan, and Related SIP Submittals.
On August 8, 1996, the Governor of Colorado submitted a
redesignation request and maintenance plan for the 1-hour ozone NAAQS
for the Denver area along with revisions to Regulation No. 3 and
Regulation No. 7 to ensure that rules applicable to the Denver
nonattainment area would remain in effect after Denver was redesignated
to attainment. We did not proceed with any action on the Governor's
submittal as the maintenance plan had both legal and technical problems
that precluded our full approval.
On July 18, 1997, EPA promulgated the new 8-hour ozone NAAQS (see
62 FR 38856, July 18, 1997). In conjunction with that action, President
Clinton issued a memorandum to the Administrator of the Environmental
Protection Agency, on July 16, 1997, entitled ``Implementation of
Revised Air Quality Standards for Ozone and Particulate Matter.'' This
memorandum directed the Administrator to review current ambient air
quality data and to proceed with revoking the 1-hour ozone standard for
all areas that were in attainment for the 1-hour standard. On June 5,
1998, we revoked the 1-hour ozone NAAQS for the Denver area (see 63 FR
31014) as the area had the necessary ambient air quality data showing
that the area was in attainment for the 1-hour NAAQS. At that time, the
August 8, 1996, Denver 1-hour ozone redesignation request and
maintenance plan became moot and no further action was contemplated by
either the State or us.
The new 8-hour ozone NAAQS was challenged by the American Trucking
Association and others. In a May 14, 1999, opinion, the U.S. Court of
Appeals for the District of Columbia (D.C.) Circuit stated that
although EPA could designate areas as attainment or nonattainment for
the 8-hour standard, we could not ``enforce'' (implement) the 8-hour
standard. The result of this decision was that areas like Denver found
themselves with the 1-hour ozone standard revoked and an 8-hour ozone
standard that could not be enforced or implemented. We petitioned the
U.S. Supreme Court to review several aspects of the D.C. Circuit's
opinion.\2\
---------------------------------------------------------------------------
\2\ The Supreme Court issued an opinion on February 27, 2001,
that requires EPA to revisit its policy for implementing the new 8-
hour ozone NAAQS and remands the case back to the Court of Appeals
for the D.C. Circuit. There is still considerable uncertainty about
when or whether we will be able to implement the new 8-hour ozone
NAAQS. Thus, the Supreme Court's decision is largely irrelevant to
this action.
---------------------------------------------------------------------------
To continue to protect the public's health while waiting for the
Supreme Court review, we reinstated the 1-hour ozone standard on July
20, 2000, (see 65 FR 45182) for all areas of the nation in which it had
been previously revoked. This action had a delayed effective date for
certain areas of the nation, such as Denver, to allow these areas to
proceed with redesignation requests for the 1-hour standard. The 1-hour
ozone NAAQS was reinstated for the Denver area on January 16, 2001, and
at that time the area returned to its legal designation of
nonattainment for the 1-hour ozone standard. Based on the above Federal
actions, the Denver Regional Air Quality Council (RAQC) and State
prepared a revised redesignation request and maintenance plan for the
1-hour ozone standard. The AQCC proposed these ozone SIP revisions for
public comment at their meeting of October 19, 2000, and they were
submitted by the Governor to us on November 30, 2000. The ozone SIP
revisions we received from the Governor, and the revisions adopted by
the AQCC on January 11, 2001, which made minor technical corrections to
the Governor's November 30, 2000, submittal, form the basis for this
proposed rule.
(b) Redesignation Criterion: The Area Must Have Attained The 1-Hour
Ozone NAAQS.
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 50.9 and 40 CFR part 50, Appendix H, the
national primary ambient air quality 1-hour ozone standard is 0.12
parts per million (235 milligrams per cubic meter) for a 1-hour average
concentration not to be exceeded more than once per year. Attainment of
the ozone standard is not a momentary phenomenon based on short-term
data. Each of the ozone ambient air quality monitors in the network are
allowed to record three or fewer exceedances of the ozone standard over
a continuous three-year period. 40 CFR 50.9 and 40 CFR part 50,
Appendix H. If a single monitor in the ozone monitoring network records
more than three expected exceedances (based on the expected exceedance
calculation method in Appendix H) or actual exceedances of the standard
over a three-year period then the area is in violation of the ozone
NAAQS. In addition, EPA's interpretation of the CAA and EPA national
policy \3\ has been that an area seeking redesignation to attainment
must continue to show attainment of the ozone NAAQS through the date
that EPA promulgates the redesignation to attainment in the Federal
Register.
---------------------------------------------------------------------------
\3\ Refer to EPA's September 4, 1992, John Calcagni policy
memorandum entitled ``Procedures for Processing Requests to
Redesignate Areas to Attainment.''
---------------------------------------------------------------------------
The ozone redesignation request for the Denver area is based on an
analysis of quality assured ambient air quality
[[Page 24078]]
monitoring data that are relevant to the redesignation request. The
Denver area has not violated the 1-hour ozone standard since 1987.
Ambient air quality monitoring data for consecutive calendar years 1997
through 1999 show an expected exceedance rate of less than 1.0 per
year, per monitor, of the ozone NAAQS in the Denver nonattainment area.
These data were collected and analyzed as required (see 40 CFR 50.9 and
40 CFR part 50, Appendix H) and have been archived by the State in
EPA's Aerometric Information and Retrieval System (AIRS) national
database. A preliminary analysis of data for 2000 also show continued
attainment of the 1-hour ozone standard.
Further information on ozone monitoring is presented in Chapter 2,
section B, ``Attainment of the One-Hour Ozone NAAQS,'' of the State's
maintenance plan and in the State's Technical Support Document (TSD).
Exceedances of the 1-hour ozone standard have been measured at separate
monitors in 1993, 1995, and 1998. We note, however, that the Denver
area has not violated the ozone standard and continues to demonstrate
attainment.
Because the Denver nonattainment area has complete quality-assured
data showing no violations of the ozone NAAQS over the most recent
consecutive three-calendar-year period, the Denver area has met the
first requirement for redesignation; demonstration of attainment of the
ozone NAAQS. EPA notes that the State of Colorado has also committed in
the maintenance plan to the necessary continued operation of the ozone
monitoring network in compliance with 40 CFR part 58.
(c) Redesignation Criterion: The Area Must Have Met All Applicable
Requirements Under Section 110 And Part D Of The CAA
Section 107(d)(3)(E)(v) requires that, to be redesignated to
attainment, an area must meet all applicable requirements under section
110 and part D of the CAA. EPA interprets section 107(d)(3)(E)(v) to
mean that for a redesignation to be approved, 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. Requirements of
the CAA due after the submission of a complete redesignation request
need not be considered in evaluating the request.
1. CAA Section 110 Requirements
On December 12, 1983, we approved revisions to Colorado's SIP as
meeting the requirements of section 110(a)(2) of the CAA (see 48 FR
55284). Although section 110 of the CAA was amended in 1990, most of
the changes were not substantial. Thus, we have determined that the SIP
revisions approved in 1983 continue to satisfy the requirements of
section 110(a)(2). For further detail, please see 48 FR 55284. In
addition, we have analyzed the SIP elements that we are approving as
part of this action and we have determined they comply with the
relevant requirements of section 110(a)(2).
2. Part D Requirements
Before the Denver transitional ozone nonattainment area may be
redesignated to attainment, the State must have fulfilled the
applicable requirements of part D. 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 classified or
nonclassifiable. Subpart 2 of part D contains specific provisions for
transitional areas.
The relevant Subpart 1 requirements are contained in sections
172(c) and 176. The General Preamble (57 FR 13498, April 16, 1992)
provides EPA's interpretations of the CAA requirements for transitional
ozone areas (see 57 FR 13524-26).
Under section 172(b), the applicable section 172(c) requirements,
as determined by the Administrator, were due no later than three years
after an area was designated as nonattainment under section 107(d) of
the amended CAA (see 56 FR 56694 and 57 FR 13525). In the case of the
Denver area, the due date was November 15, 1993. As the original Denver
1-hour ozone standard redesignation request and maintenance plan were
not submitted by the Governor until August 8, 1996, (and the current
revised redesignation request and maintenance plan were submitted on
November 30, 2000) the General Preamble (57 FR 13525) provides our
interpretation that the applicable requirements of CAA section 172 are
172(c)(1) (Reasonably available control technology (RACT)/Reasonably
available control measures (RACM)), 172(c)(3) (emissions inventory),
172(c)(5)(new source review permitting program), and 172(c)(7)(the
section 110(a)(2) air quality monitoring requirements)). It is our view
that Part D requirements for an attainment demonstration, reasonable
further progress (RFP), and contingency measures (CAA section
172(c)(9)) are not applicable to transitional ozone areas. See 57 FR
13525, April 16, 1992. It is also worth noting that EPA has interpreted
the requirements of sections 172(c)(2) (reasonable further progress--
RFP), 172(c)(6)(other measures), and 172(c)(9)(contingency measures) as
being irrelevant to a redesignation request for a transitional ozone
nonattainment area 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
13525, 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
our 1996 approval of the Boston carbon monoxide redesignation. (See 61
FR 2918, January 30, 1996.)
In that action, EPA explained that its decision was based on a
combination of two factors. First, the requirement to submit SIP
revisions to comply with the conformity provisions of the CAA continues
to apply to areas after redesignation to attainment. Therefore, the
State remains obligated to adopt the transportation conformity rules
even after redesignation and would risk sanctions for failure to do so.
Unlike most requirements of section 110 and part D, which are linked to
the nonattainment status of an area, and are not required after
redesignation of an area to attainment, the conformity requirements
apply to both nonattainment and maintenance areas. Second, EPA's
federal conformity rules require the performance of conformity analyses
in the absence of State-adopted rules. Therefore, a delay in adopting
State rules does not relieve an area from the obligation to implement
conformity requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment and must implement
conformity under Federal rules if State rules are not yet adopted, EPA
believes
[[Page 24079]]
it is reasonable to view these requirements as not being applicable
requirements for purposes of evaluating a redesignation request.
Further information regarding transportation conformity and mobile
source emission budgets are found below in section IV ``Transportation
Conformity''.
The applicable requirements of CAA section 172 are discussed below.
A. Section 172(c)(1)--RACT/RACM
To satisfy section 172(c)(1), transitional areas (section 185A)
that continued to show no violations of the 1-hour ozone standard as of
December 31, 1991, must ensure, at a minimum, that any deficiencies
regarding enforceability of an existing rule are corrected. While
section 185A of the CAA exempts transitional areas from all subpart 2
requirements until December 31, 1991, and that exemption continues
until the area is redesignated to attainment (assuming the area
satisfactorily demonstrated attainment by December 31, 1991), States
should be aware that in order to be redesignated to attainment such
areas must correct any RACT deficiencies regarding enforceability. See
57 FR 13525, April 16, 1992.
On September 27, 1989, and on August 30, 1990, the Governor
submitted revisions to Regulation No. 7 that address RACT for sources
of Volatile Organic Compounds (VOC) in ozone nonattainment areas, which
includes Denver. We approved these revisions on June 29, 1995 (see 60
FR 28055).
B. 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
Denver nonattainment area. Our interpretation of the emission inventory
requirement for transitional ozone nonattainment areas is detailed in
the General Preamble (57 FR 13525, April 16, 1992). We determined that
an emissions inventory is specifically required under CAA section
172(c)(3) and is not tied to an area's proximity to attainment.
On August 8, 1996, the Governor submitted the original Denver 1-
hour ozone redesignation request and maintenance plan. This submittal
contained a 1993 attainment year inventory for the Denver ozone
nonattainment area. The Governor's parallel processing submittal of the
revised redesignation request and maintenance plan, dated November 30,
2000, also contains this 1993 attainment year inventory. Once EPA
receives the Governor's final submittal, and we are able to approve the
Denver ozone redesignation request and maintenance plan, this section
172(c)(3) requirement will be fulfilled.
C. 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 if we approve the redesignation
to attainment.
D. 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 13525, April 16, 1992), transitional ozone nonattainment areas
must 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 Chapter 2, section B of the maintenance plan (``Attainment
of the One-Hour Ozone NAAQS''), that ambient ozone monitoring data have
been properly collected and uploaded to EPA's Aerometric Information
and Retrieval System (AIRS) for the Denver area. Air quality data
through 1999 are included in Chapter 2, section B 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 ozone data
through July 31, 2000. The data in AIRS indicate that the Denver area
has shown, and continues to show, attainment of the 1-hour ozone NAAQS.
Information concerning ozone 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 Denver ozone network remains adequate.
Finally, in Chapter 3, section E, (``Monitoring Network / Verification
of Continued Attainment'') of the maintenance plan, the State commits
to the continued operation of the ozone monitoring network, according
to all applicable Federal regulations and guidelines, even after the
Denver area is redesignated to attainment for the 1-hour ozone NAAQS.
(d) 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).
Based on the approval into the SIP of provisions under the pre-1990
CAA, our prior approval of SIP revisions required under the 1990
amendments to the CAA, and our proposed approval of the maintenance
plan, we have determined that Colorado will have a fully approved ozone
SIP under section 110(k) for the Denver ozone nonattainment area if we
approve the maintenance plan.
(e) 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 (Denver ozone revision as approved on December 12,
1983, see 48 FR 55284), implementation of applicable Federal air
pollutant control regulations, and other permanent and enforceable
reductions.
The emissions reductions of ozone precursors (VOCs and Nitrogen
Oxides or NOX) that have occurred over the past several
years were achieved primarily through Federal emission control
measures, CAA-required improvements to the State vehicle inspection and
maintenance (I/M) program, AQCC Regulations No. 3 and No. 6, and AQCC
Regulation No. 7.
The Federal Motor Vehicle Control Program (FMVCP) achieved VOC and
NOX emission reductions. 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 Denver. For
example, EPA promulgated lower hydrocarbon (HC) (of which VOCs are a
portion) and CO exhaust emission standards in 1991, known as Tier I
standards for new motor vehicles (light-
[[Page 24080]]
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.
Colorado's Automobile Inspection and Readjustment (AIR) program is
fully described in AQCC Regulation No. 11 (``Motor Vehicle Emissions
Inspection Program'') and has been applicable in the Denver area since
1981. The AIR program works to reduce VOC and NOX emissions
from gasoline-powered motor vehicles by requiring them to meet emission
standards through periodic tailpipe tests, maintenance, and specific
repairs. The AIR program was updated in 1994 to meet the requirements
of the CAA amendments of 1990, and a more stringent and effective
``enhanced'' inspection and maintenance program began in the Denver
area in 1995. The enhanced program uses a loaded-mode dynamometer test
called the ``I/M 240'' for 1982 and newer vehicles and an idle test for
1981 and older vehicles and heavy trucks.
The State's permit rules for stationary sources, AQCC Regulation
No. 3 (``Air Contaminant Emissions Notices'') and AQCC Regulation No. 6
(``Standards of Performance for New Stationary Sources'') control
emissions from industrial facilities and cap VOC and NOX
emissions from new or modified major stationary sources.
Finally, the State has Regulation No. 7 (``Emissions of Volatile
Organic Compounds'') which contains RACT requirements for commercial
and industrial sources of VOCs. As noted above, the State submitted
substantial revisions to Regulation No. 7 in 1989 and 1990 that we
approved on May 30, 1995 (see 60 FR 28055).
We have evaluated the various State and Federal control measures,
the 1993 attainment year emission inventory, and the projected
emissions described below, and have concluded that the improvement in
air quality in the Denver nonattainment area has resulted from emission
reductions that are permanent and enforceable.
(f) 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, we are proposing approval of the
State of Colorado's maintenance plan for the Denver ozone 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 November 30, 2000, submittal, is provided as follows:
1. Emissions Inventories--Attainment Year and Projections
Our 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 the 1-
hour ozone NAAQS may demonstrate future maintenance of the ozone NAAQS
either by showing that future VOC and NOX emissions will be
equal to or less than the attainment year emissions or by providing a
modeling demonstration. For the Denver area, the State selected the
emissions inventory approach for demonstrating maintenance of the ozone
NAAQS.
The maintenance plan that the Governor submitted on November 30,
2000, included comprehensive inventories of VOC and NOX
emissions for the Denver area. These inventories include emissions from
stationary point sources, area sources, non-road mobile sources, on-
road mobile sources, and biogenics. The State selected 1993 as the year
from which to develop the attainment year inventory and included
projections for 2006 and 2013. More detailed descriptions of the 1993
attainment year inventory and the projected inventories are documented
in the maintenance plan in Chapter 3, section B, (``Emission
Inventories''), Appendix A, (``Emission Inventories'') of the
maintenance plan, and in the State's TSD. The State's submittal
contains detailed emission inventory information that was prepared in
accordance with EPA guidance.
A. Emission Inventory Corrections and Changes; As Adopted on January
11, 2001
At the January 11, 2001, AQCC public hearing for the Denver 1-hour
ozone redesignation request and maintenance plan, the RAQC and State
brought forward several minor corrections and changes for consideration
by the public and AQCC. These minor corrections/changes were as
follows:
1. In preparing the emission inventories, the State used mobile
source gridded VMT data that had been previously developed for the
Denver area's carbon monoxide redesignation request and maintenance
plan. The gridded VMT data, that were originally prepared for the Urban
Airshed Model (UAM), covered a larger area than the Denver 1-hour ozone
nonattainment area. The ozone maintenance plan inadvertently included
calculated mobile source emissions for the larger UAM modeling domain
area rather than just the ozone attainment/maintenance area. The
emission inventories are to be calculated to be consistent with the
original nonattainment area and the attainment/maintenance area
boundaries. The mobile source emission figures for 1993, 2006, and 2013
were all corrected to reflect the appropriate area in both the
maintenance plan and TSD.
2. In reference to the above, the motor vehicle VOC and
NOX conformity emission budgets were corrected to reflect
the emissions only for the ozone attainment/maintenance area
boundaries. The corrections were done for both the maintenance plan and
TSD.
3. The Denver International Airport (DIA) provided the RAQC and
State
[[Page 24081]]
updated emission estimates that reflected the projected expansion and
associated growth of aircraft operations and ground support equipment
at DIA. These revised estimates were incorporated into both the
maintenance plan and TSD.
4. An error was discovered in the non-road emissions category. In
reviewing VOC emissions that were estimated for farm equipment a figure
of 9.0 tons per day of VOCs had been used in the 1993 attainment year
inventory. This figure actually should have been 0.9 tons per day of
VOCs. This correction was reflected in both the maintenance plan and
TSD.
Summary emission figures, that include the corrections adopted at
the AQCC January 11, 2001 public hearing, from the 1993 attainment year
and the projected years are provided in Table III.-1 and Table III.-2
below.
Table III.-1--Summary of VOC Emissions in Tons Per Day for Denver
----------------------------------------------------------------------------------------------------------------
Rev. 1993 Rev. 2006 Rev. 2013
1993 \1\ 2006 \1\ 2013 \1\
----------------------------------------------------------------------------------------------------------------
Point Sources..................... 46 46 52 52 56 56
Area Sources...................... 74 74 73 73 80 80
Non-Road Mobile Sources........... 67 58 40 39 40 38
On-Road Mobile Sources............ 124 119 89 84 77 74
Biogenics......................... 211 211 211 211 211 211
-----------------------------------------------------------------------------
Total......................... 522 507 456 460 464 459
----------------------------------------------------------------------------------------------------------------
\1\ These are the revised inventory figures that represent the technical corrections that were adopted by AQCC
with the maintenance plan and TSD at the January 11, 2001, public hearing.
Table III.-2--Summary of NOX Emissions in Tons Per Day for Denver
----------------------------------------------------------------------------------------------------------------
Rev. 1993 Rev. 2006
1993 \1\ 2006 \1\ 2013 2013 \1\
----------------------------------------------------------------------------------------------------------------
Point Sources..................... 122 122 123 123 126 126
Area Sources...................... 7 7 10 10 11 11
Non-Road Mobile Sources........... 64 65 51 57 40 50
On-Road Mobile Sources............ 139 134 121 115 123 117
Biogenics......................... 4 4 4 4 4 4
-----------------------------------------------------------------------------
Total......................... 336 332 309 309 304 308
----------------------------------------------------------------------------------------------------------------
\1\ These are the revised inventory figures that represent the technical corrections that were adopted by AQCC
with the maintenance plan and TSD at the January 11, 2001, public hearing.
2. Demonstration of Maintenance--Projected Inventories
As noted above, total VOC and NOX emissions were
projected by the State for 2006 and 2013. The years 2006 and 2013 were
selected by the State, with EPA's concurrence, due to the immediate
availability of transportation data sets from the Denver Regional
Council Of Governments (DRCOG) from the work performed on the Denver
carbon monoxide (CO) redesignation request and maintenance plan.
The Denver CO redesignation request and maintenance plan were
submitted to us on May 10, 2000. This maintenance plan used the latest
revised transportation data sets that were developed by DRCOG for the
State to model the mobile source emissions. In addition, the CO
maintenance plan incorporated changes to AQCC Regulation No. 11 that
would initiate a Remote Sensing Device (RSD) program in 2002 and affect
the cutpoints for the enhanced I/M program. Both of these I/M program
revisions would also directly affect emission reductions for the ozone
maintenance plan.
The RSD program is designed to evaluate 20% of the fleet in 2003,
40% of the fleet in 2004, 60% of the fleet in 2005, and 80% of the
fleet in 2006. The RSD program will continue through 2013. In
conjunction with the new RSD program, Regulation No. 11's enhanced I/M
program will continue to apply to evaluate the remainder of the fleet
and those vehicles that did not pass evaluation by the RSD program.
Also, the enhanced I/M cutpoints will be tightened from the current
levels of 2.0 grams per mile for hydrocarbons (HC) and 4.0 grams per
mile for NOX to 0.6 grams per mile HC and 1.5 grams per mile
NOX in 2006 and will continue through 2013. We have reviewed
these State-adopted changes to Regulation No. 11 and will be proposing
approval of them in a separate rulemaking action for the Denver CO
redesignation request and maintenance plan. We note that the State has
properly accounted for these Regulation No. 11 revisions in the
projected emission inventories for 2006 and 2013 and is able to
demonstrate maintenance of the 1-hour ozone standard. In the event that
we are unable to approve the Regulation No. 11 revisions that were
submitted by the Governor on May 10, 2000, this would not have an
adverse impact on the Denver ozone maintenance plan as the current I/M
program would continue and would provide greater emission reductions
than the State has projected for the amended version of Regulation No.
11. In either scenario, the maintenance demonstration would still be
valid.
For the ozone maintenance plan, the 1993 attainment year inventory
and the projected 2006 and 2013 inventories were all prepared in
accordance with EPA guidance. As stated in the maintenance plan, the
projected emission inventories show a steady downward trend in both VOC
and NOX emissions. This is due mainly to more stringent
motor vehicle tailpipe emission standards and additional Federal rule
requirements for non-road sources of emissions. Because of this steady
downward trend in emissions and because future year emissions are
projected to be considerably below the 1993 attainment year levels, the
State expects there will be no increases in emissions in the years
between the present and 2013 that will jeopardize the demonstration of
maintenance. Based on the information in the maintenance plan and the
State's TSD, we agree with this conclusion.
Therefore, as the projected 2006 and 2013 inventories show that VOC
and
[[Page 24082]]
NOX emissions are not estimated to exceed the 1993
attainment levels during the time period from the present through 2013,
the Denver area has satisfactorily demonstrated maintenance of the 1-
hour ozone NAAQS.
3. Monitoring Network and Verification of Continued Attainment
Continued attainment of the 1-hour ozone NAAQS in the Denver 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
Denver maintenance plan. In Chapter 2, section B and Chapter 3, section
E the State commits to continue the operation of the ozone monitors in
the Denver area and to annually review this monitoring network and make
changes as appropriate.
Also, in Chapter 3, section F, (``Contingency Provisions''), the
State commits to track mobile sources'' VOC and NOX
precursor emissions (which are the largest component of the
inventories) through the ongoing regional transportation planning
process that is done by DRCOG. Since revisions to Denver's
transportation improvement programs are prepared every two years, and
must go through a transportation conformity finding, the State will use
this process to periodically review progress towards meeting the
Vehicle Miles Traveled (VMT) and mobile source emissions projections
used in the maintenance plan. This regional transportation process is
conducted by DRCOG in coordination with the RAQC, the State's Air
Pollution Control Division (APCD), the AQCC, and EPA.
Based on the above, we are proposing approval of these commitments
as satisfying the relevant requirements. We note that a final
rulemaking approval will render 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 Chapter 3, section F, (``Contingency Provisions'') of
the maintenance plan, the contingency measures for the Denver area will
be triggered by a violation of the 1-hour ozone NAAQS. (However, the
maintenance plan does note that an exceedance of the 1-hour ozone NAAQS
may initiate a voluntary, local process by the RAQC and APCD to
identify and evaluate potential contingency measures.)
The RAQC, in coordination with the APCD and AQCC, will initiate a
subcommittee process to begin evaluating potential contingency measures
no more than 60 days after being notified by the APCD that a violation
of the 1-hour ozone NAAQS has occurred. The subcommittee will present
recommendations to the RAQC within 120 days of notification and the
RAQC will present recommended contingency measures to the AQCC within
180 days of notification. The AQCC will then hold a public hearing to
consider the contingency measures recommended by the RAQC, along with
any other contingency measures that the AQCC believes may be
appropriate to effectively address the violation of the 1-hour ozone
NAAQS. The necessary contingency measures will be adopted and
implemented within one year after the violation occurs.
The potential contingency measures that are identified in Chapter
3, section F of the Denver ozone maintenance plan include summertime
gasoline Reid Vapor Pressure (RVP) reduction, reinstatement of the
enhanced I/M program in effect before January 10, 2000, enhanced I/M
program changes and additions that may involve changing cutpoints and
adding an evaporative controls check, reinstatement of the NSR program,
restrictions on consumer and commercial coatings, restrictions on
architectural surface coatings, restrictions on lawn and garden
equipment use, and NOX RACT for major sources. A more
complete description of the triggering mechanism and these contingency
measures can be found in Chapter 3, section F of the maintenance plan.
Based on the above, we find that the contingency measures provided
in the State's Denver ozone 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 Chapter 3, section G,
(``Subsequent Maintenance Plan Revisions'') of the Denver ozone
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 Program are consistent with the emissions
budgets in the SIP (40 CFR 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.
The maintenance plan (as updated on January 11, 2001) defines the
motor vehicle emissions budgets in the Denver ozone attainment/
maintenance area as 119 tons per day for VOCs and 134 tons per day for
NOX for all years 2002 and beyond. These figures reflect
technical corrections to those of 124 tons per day for VOCs and 139
tons per day for NOX that were previously submitted by the
Governor on November 30, 2000. These budgets are equal to the
attainment year (1993) mobile source emissions inventory for these
pollutants and use some of the available safety margin in the years
2002 to 2013. The use of the safety margin is permitted by the
conformity rule. See 40 CFR 93.124(a).
The State used specific inventory values for the years 2006 and
2013 to calculate and use some of the available safety margin in those
years. As revised during the January 11, 2001, public hearing, in 2006
the total emissions of VOCs and NOX are lower than the 1993
attainment year emissions inventory by 47 (was 56) tons per day and 23
(was 27) tons per day respectively. For 2006, the State added the
mobile sources portion of the safety margin (35 tons per day for VOCs
and 19 tons per day for NOX) to the 2006 mobile sources
emission inventories to arrive at the final budgets of 119 tons per day
for VOCs and 134 tons per day for NOX. For 2013, the State
similarly allocated the safety margin to arrive at the same budgets.
Although the maintenance plan does not specifically address the
inventories for the other years between 2002 and 2013, the maintenance
plan defines the same budgets for 2002 and all years beyond, thus
evidencing the intent to apply some portion of the available safety
margin in 2002 to arrive at these same budgets. We believe this is
[[Page 24083]]
acceptable under the circumstances because we would not expect total
emissions from sources other than on-road mobile sources to exceed
their 1993 levels in the year 2002 or any other year before 2013.
Therefore, in view of our analysis, we are proposing to approve these
1-hour ozone NAAQS VOC and NOX budgets for the Denver area.
V. EPA's Evaluation of the Regulation No. 3 Revisions
As we noted above, the Governor of Colorado had previously
submitted minor revisions to Regulation No. 3 in conjunction with the
Governor's original August 8, 1996, submittal of the Denver ozone
maintenance plan. Regulation No. 3, Part B, Section III.D.1.f.,
previously exempted gasoline stations, located in ozone attainment
areas, from construction permit requirements. The revision to
Regulation No. 3 that the Governor submitted on August 8, 1996, exempts
gasoline stations located in ozone attainment areas from construction
permit requirements, with the exception of those gasoline stations
located in the Denver Metro ozone attainment maintenance area. In other
words, this revision ensures that gasoline stations will remain subject
to Regulation No. 3 requirements after Denver's redesignation to
attainment.
We concur with this revision to Regulation No. 3 and we are
proposing approval of this change.
VI. EPA's Evaluation of the Regulation No. 7 Revisions
As we noted above, the Governor of Colorado had previously
submitted minor revisions to Regulation No. 7 in conjunction with the
Governor's original August 8, 1996, submittal of the Denver ozone
maintenance plan. Section I.A.1 of Regulation No. 7, ``Applicability'',
previously read ``The provisions of this regulation shall apply only to
ozone nonattainment areas with the exception of Section V, Paragraphs
VI.B.1 and 2., and Subsection VII.C., which shall apply statewide.''
This was revised in the Governor's August 8, 1996, submittal to read
``The provisions of this regulation shall apply only to ozone
nonattainment areas and the Denver Metro Attainment Maintenance Area
with the exception of Section V, Paragraphs VI.B.1 and 2., and
Subsection VII.C., which shall apply statewide.''
We concur with this revision to Regulation No. 7 and we are
proposing approval of this change. We note that additional revisions to
Regulation No. 7 were also submitted with the Governor's August 8,
1996, submittal and included the addition of paragraphs A.2., A.3., and
A.4. to create ``de minimus'' exemptions. We are not taking any action
on these revisions and will not consider them with our proposed
approval of the Governor's November 30, 2000, submittal.
VII. EPA's Evaluation of the Request for Revision to 40 CFR
80.27(a)(2) for RVP
Since 1991, gasoline sold in the Denver area during the summer
ozone season (June 1st to September 15th for gasoline RVP) has been
subject to a national Reid Vapor Pressure (RVP) limit of 7.8 psi (8.8
psi for ethanol-blended fuels) in order to reduce fuel volatility.
Since the Denver area has not violated the 1-hour ozone standard since
the late 1980s, the State has previously requested, and EPA has
granted, waivers to allow a 9.0 psi RVP (10.0 psi for ethanol-blends)
gasoline in the Denver area instead of the more stringent 7.8 psi RVP
limit.
The maintenance plan that was submitted by the Governor on November
30, 2000, incorporates a gasoline RVP limit of 9.0 psi in the
maintenance demonstration. Since maintenance of the 1-hour ozone NAAQS
is shown for the entire maintenance time period of 1993 through 2013
with this 9.0 psi limit, the State of Colorado has requested that the
9.0 psi summertime RVP limit (10.0 psi for ethanol-blends) be made
permanent for the Denver attainment/maintenance area once EPA approves
the redesignation request and maintenance plan. We believe this change
would be appropriate. However, separate rulemaking through our
Headquarters office is necessary to revise the RVP requirements for
Colorado as specified in 40 CFR 80.27(a)(2). We anticipate that our
Headquarters office will pursue this rulemaking action if and when we
fully approve the redesignation request and maintenance plan.
VIII. Proposed Rulemaking Action and Request for Public Comment
We are soliciting public comment on all aspects of this proposed
SIP rulemaking action. As stated above, we are proposing approval of
the Governor's November 30, 2000, request to redesignate the Denver 1-
hour ozone NAAQS nonattainment area to attainment, the maintenance plan
and the minor technical changes as adopted by the AQCC on January 11,
2001, and the August 8, 1996, revisions to Regulation No. 3 and
Regulation No. 7. Send your comments in duplicate to the address listed
at the front of this proposed rule. We will consider your comments in
deciding our final action if your letter is received before June 11,
2001.
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 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
Executive Order 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 or 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 Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
(c) Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a
[[Page 24084]]
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely proposes approval of a state rule implementing a federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. In
addition, 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. Thus, the requirements of section 6 of the Executive
Order do not apply to this rule.
(d) Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This action does not involve or impose any requirements that affect
Indian Tribes. Thus, Executive Order 13175 does not apply to this
proposed rule.
(e) Regulatory Flexibility
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 proposed approval 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 proposed 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 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 U.S.A., 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. Redesignation to attainment is an
action that affects the legal designation of a geographical area and
does not impose any regulatory requirements. Therefore, because the
Federal SIP proposed approval does not create any new requirements, I
certify that the proposed approval of the redesignation request will
not have a significant economic impact on 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 proposed approval action does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action proposes
approval of 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, result from
this action.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: April 27, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
[FR Doc. 01-11915 Filed 5-10-01; 8:45 am]
BILLING CODE 6560-50-P