[Federal Register Volume 60, Number 194 (Friday, October 6, 1995)]
[Rules and Regulations]
[Pages 52312-52315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24508]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5309-5]


Clean Air Act Promulgation of Extension  of  Attainment  Date  
for PM-10 Nonattainment Area in Denver, CO

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action serves to grant a 1-year attainment date extension 
for the Denver, Colorado particulate matter with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers (PM-10) 
nonattainment area. This action is based on monitored air quality data 
for the national ambient air quality standard for PM-10 during the 
years 1992-94 and EPA's evaluation of the applicable state 
implementation plan (SIP).

DATES: This final rule is effective on December 5, 1995, unless adverse 
comments are received by November 6, 1995. If the effective date is 
delayed, timely notice will be published in the Federal Register.

ADDRESSES: Comments should be addressed to: Douglas M. Skie, Chief, Air 
Programs Branch, EPA Region VIII, at the address listed below. Copies 
of the State's submittal and other information are available for 
inspection during normal business hours at the following locations: Air 
Programs Branch, Environmental Protection Agency, Region VIII, 999 18th 
Street, Suite 500, Denver, Colorado 80202-2405; and Colorado Air 
Pollution Control Division, 4300 Cherry Creek Drive South, Denver, 
Colorado 80222-1530. The information may be inspected between 8 a.m. 
and 4 p.m., on weekdays, except for legal holidays. A reasonable fee 
may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Callie Videtich, 8ART-AP, 
Environmental Protection Agency, Region VIII, 999 18th Street, Suite 
500, Denver, Colorado 80202-2405, (303) 293-1754.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements and EPA Actions Concerning Designation 
and Classification

    On the date of enactment of the 1990 Clean Air Act Amendments, PM-
10 areas meeting the qualifications of section 107(d)(4)(B) of the Act 
were designated nonattainment by operation of law (see generally, 42 
U.S.C. section 7407(d)(4)(B)). These areas included all former Group I 
areas identified in 52 FR 29383 (August 7, 1987) and further clarified 
in 55 FR 45799 (October 31, 1990), and any other areas violating the 
PM-10 standards prior to January 1, 1989 (many of these areas were 
identified by footnote 4 in the October 31, 1990 Federal Register 
notice). A Federal Register notice announcing the areas designated 
nonattainment for PM-10 upon enactment of the Act was published in 56 
FR 11101 (March 15, 1991). A subsequent Federal Register notice 
correcting some of these areas was published on August 8, 1991 (56 FR 
37654). These nonattainment designations and moderate area 
classifications were codified in 40 CFR part 81 in a Federal Register 
notice published on November 6, 1991 (56 FR 56694). All other areas in 
the Nation not designated nonattainment at enactment were designated 
unclassifiable (see section 107(d)(4)(B)(iii) of the Act). Additional 
PM-10 areas were designated nonattainment in subsequent Federal 
Register actions.
    States containing areas which were designated as moderate 
nonattainment by operation of law under section 107(d)(4)(B) were to 
develop and submit SIPs to provide for the attainment of the PM-10 
NAAQS. Pursuant to section 189(a)(2), those SIP revisions were to be 
submitted within one year of enactment of the Act (November 15, 1991). 
The SIP revisions were to provide for implementation of RACM/RACT by 
December 10, 1993 and attainment by December 31, 1994.

B. Application for a 1-Year Extension of the Attainment Date

    If the State does not have the necessary number of consecutive 
clean years of data to show attainment of the NAAQS, a State may apply 
for an extension of the attainment date. Pursuant to section 188(d) of 
the Act, a State may apply for, and EPA may grant, a 1-year extension 
of the attainment date if the State has: (1) complied with the 
requirements and commitments pertaining to the applicable 
implementation plan for the area; and (2) the area has measured no more 
than one exceedance of the 24 hour PM-10 standard in the year preceding 
the extension year, and the annual mean concentration of PM-10 in the 
area for such year is less than or equal to the standard. If the State 
does not have the requisite number of years of clean air quality data 
to show attainment and does not apply or does not qualify for an 
attainment date extension, the area will be reclassified as serious by 
operation of law.
    The authority delegated to the Administrator to extend attainment 
dates for moderate areas is discretionary. Section 188(d) of the Act 
provides that the Administrator ``may'' extend the attainment date for 
areas that meet the minimum requirements specified above. The provision 
does not dictate or compel that EPA grant extensions to such areas. In 
exercising this discretionary authority for PM-10 nonattainment areas, 
EPA will examine the air quality planning progress made in the moderate 
areas. EPA will be disinclined to grant an attainment date extension 
unless a State has, in substantial part, addressed its moderate PM-10 
planning obligations for the area. In order to determine whether the 
State has substantially met these planning requirements, the EPA will 
review the State's application for the attainment date extension to 
determine: (1) Whether the State has adopted and substantially 
implemented control measures submitted to address the requirement for 
implementing RACM/RACT in the moderate nonattainment area; and (2) that 
reasonable further progress is being met for the area. RFP for PM-10 
nonattainment areas is determined to be linear emissions reductions 
made on an annual basis which will provide progress toward the eventual 
attainment of the NAAQS in the area. If the State cannot make a 
sufficient demonstration that the area has complied with the extension 
criteria 

[[Page 52313]]
stated above, and EPA determines that the area has not demonstrated 
attainment of the PM-10 NAAQS, the area will be reclassified as serious 
by operation of law pursuant to section 188(b) of the Act. If an 
extension is granted, at the end of the extension year, EPA will again 
determine whether the area has attained the PM-10 NAAQS. If the 
requisite 3 consecutive years of clean air quality data needed to 
demonstrate attainment are not met, the State may apply for a second 1-
year extension of the attainment date. In order to qualify for the 
second 1-year extension of the attainment date, the State must satisfy 
the same requirements listed above for the first extension. In 
addition, EPA will consider the State's PM-10 planning progress for the 
area in a manner similar to its evaluation of the first extension 
request. However, EPA may grant no more than two 1-year extensions of 
the attainment date to a single nonattainment area [see section 188(d) 
of the Act].

II. Area Being Granted a 1-Year Extension of the Attainment Date

    EPA is granting a 1-year extension of the attainment date for the 
Denver, Colorado PM-10 nonattainment area. As discussed below and in 
the accompanying technical support document to this action, this 
determination is based upon air quality data which revealed violations 
of the PM-10 NAAQS during the years of 1992-94 and EPA's evaluation of 
the applicable SIP.
    If a State containing a moderate PM-10 nonattainment area does not 
have 3 consecutive years of clean air quality data to demonstrate that 
the area has attained the PM-10 NAAQS, the State may apply for a 1-year 
extension of the attainment date. The EPA may extend the attainment 
date for 1 year only if the State submits an application for the 
affected nonattainment area satisfying the requirements discussed 
above. The following area qualifies for an attainment date extension:

A. Denver, Colorado

    1. Review of the ambient data: Denver has experienced exceedances 
of the 24-hour PM-10 NAAQS on six separate days since 1987. Two 
exceedances were recorded in 1987 and four exceedances in the 1992/93 
winter season. A violation of the annual PM-10 NAAQS has never 
occurred. Since no exceedances of the PM-10 NAAQS were recorded in 
1994, the area meets one of the requirements to qualify for an 
attainment date extension under section 188(d).1 Data requirements 
for purposes of making comparisons with the 24-hour and annual PM-10 
NAAQS must be consistent with section 2.3 of 40 CFR part 50, appendix 
K.

    \1\ The Act states that no more than one exceedance may have 
occurred in the area [see section 189(d)(2)]. The EPA interprets 
this to prohibit extensions if there is more than one measured 
exceedance of the 24-hour standard at any monitoring site in the 
nonattainment area. The number of exceedances will not be adjusted 
to expected exceedances as long as the minimum required sampling 
frequencies have been met.
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    2. Review of SIP planning progress and SIP implementation: The 
State of Colorado originally submitted the PM-10 SIP for Denver on June 
7, 1993. On December 20, 1993 (58 FR 66326), EPA proposed to limitedly 
approve the control measures contained in the June 7, 1993 Denver PM-10 
SIP. On the same date, EPA also proposed to conditionally approve the 
Denver PM-10 SIP based on the State's commitment to revise permit 
limitations at two sources (Purina Mill and Electron Corporation). EPA 
limitedly approved the control measures contained in the June 7, 1993 
Denver PM-10 SIP on July 25, 1994 (59 FR 37698). EPA limitedly approved 
the control measures because they strengthened the PM-10 SIP for Denver 
by advancing the PM-10 air quality goal of the Act. In addition, 
because EPA questioned the contribution of secondary particulate 
emissions in the attainment demonstration, EPA did not take action on 
whether the June 7, 1993 SIP submittal attained the NAAQS or met the 
reasonably available control measures (RACM) (including reasonably 
available control technology (RACT)) requirements of the Act.
    On March 30, 1995, the State of Colorado re-submitted the entire 
SIP for the Denver PM-10 nonattainment area. This revision is intended 
to satisfy the PM-10 SIP requirements that were due on November 15, 
1991: i.e., provisions to assure that RACM/RACT would be implemented by 
December 10, 1993, a demonstration that the NAAQS will be attained, 
quantitative milestones which will be achieved every three years and 
which demonstrate reasonable further progress by December 31, 1994 and 
provisions to assure that the control requirements applicable to major 
stationary sources of PM-10 also apply to major stationary sources of 
PM-10 precursors. EPA is still evaluating the March 30, 1995 submittal 
and will determine, at a later date, whether the November 15, 1991 
requirements are met in their entirety. Finally, the permits have been 
issued to Purina Mills and Electron Corporation, fulfilling the State's 
earlier commitments.
    Pursuant to EPA's November 14, 1994 guidance entitled ``Criteria 
for Granting 1-Year Extensions of Moderate PM-10 Nonattainment Area 
Attainment Dates, Making Attainment Determinations, and Reporting on 
Quantitative Milestones,'' from Sally Shaver, Director of Air Quality 
Strategies and Standards Divisions, to Regional Air Division Directors, 
``[t]he State must demonstrate that it has complied with all 
requirements and commitments pertaining to the affected nonattainment 
area in the applicable implementation plan.'' In addition, this 
guidance indicates that ``[i]n instances where EPA will not have taken 
final rulemaking action on the State's moderate area SIP revision prior 
to granting the attainment date extension for the area, the applicable 
SIP for the area would be the most recent federally approved 
particulate matter SIP for the area.'' Since EPA has not approved all 
portions of the PM-10 SIP for Denver, EPA also considered the State's 
total suspended particulate (TSP) SIP for the Denver area. EPA approved 
the Denver TSP SIP on October 5, 1979 (44 FR 57401). The TSP SIP 
control measures consisted of street cleaning practices, unpaved road 
controls, control of mud and dirt carry out sources, control of 
construction, grading, excavation, and demolition, and paving or 
stabilizing unpaved roads and alleys.
    For the most part, the PM-10 SIP for Denver addresses the same type 
of emissions addressed in the TSP SIP. In addition, the PM-10 SIP is 
more stringent than the TSP SIP because the PM-10 SIP incorporates 
regulations that require a certain percentage of sand reductions on 
streets as well as street cleaning requirements and sand specification 
requirements. Also, the PM-10 SIP addresses other PM-10 emissions 
including woodburning. Although additional reentrained road dust 
requirements for a portion of the nonattainment area were submitted in 
March 30, 1995, for which EPA has not completed its review, EPA has 
approved the majority of the PM-10 SIP pertaining to reentrained road 
dust emissions. Therefore, since the PM-10 SIP, for the most part, 
supplants the TSP SIP for Denver, EPA believes it is more appropriate 
to evaluate the implementation of the PM-10 SIP and not the TSP SIP.
    The State has completed its air quality planning requirements for 
the Denver PM-10 nonattainment area that were due by November 15, 1991. 
As indicated above, the State submitted a revised plan that supersedes 
and replaces all 

[[Page 52314]]
other versions of the Denver PM-10 SIP element. EPA is still evaluating 
this submittal. However, the March 30, 1995 SIP purports to demonstrate 
attainment of the NAAQS by December 31, 1994, and if this is the case, 
the State would have met its RACM/RACT requirements.
    EPA has evaluated the milestone report submitted by the State on 
March 31, 1995, to determine the State's progress in implementing the 
Denver PM-10 SIP. As indicated earlier, the majority of the SIP was 
submitted in June 1993. The milestone report indicates that the State 
has implemented 100% of its originally adopted control measures. 
Therefore, EPA believes that the State has substantially implemented 
its RACM/RACT requirements and has made emission reductions amounting 
to reasonable further progress (RFP) toward attainment of the PM-10 
NAAQS as defined in section 171(1) of the Act.

III. Final Action

    EPA is granting a 1-year attainment date extension for the Denver, 
Colorado PM-10 nonattainment area. This action is based on monitored 
air quality data for the national ambient air quality standard for PM-
10 during the years 1992-94 and EPA's evaluation of the applicable SIP. 
Therefore, the attainment date for the Denver, Colorado PM-10 
nonattainment area is now December 31, 1995. If necessary, the State 
may request one more 1-year attainment date extension.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be submitted. Under the procedures 
established in the May 10, 1994 Federal Register (59 FR 24054), this 
action will be effective December 5, 1995 unless, by November 6, 1995, 
adverse or critical comments are received.
    If such comments are received, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on December 5, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to a SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

IV. Executive Order (EO) 12866

    Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to 
determine whether regulatory actions are significant and therefore 
should be subject to OMB review, economic analysis, and the 
requirements of the Executive Order. The Executive Order defines a 
``significant regulatory action'' as one that is likely to result in a 
rule that may meet at least one of the four criteria identified in 
section 3(f), including, under paragraph (1), that the rule may ``have 
an annual effect on the economy of $100 million or more or adversely 
affect, in a material way, the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities.''
    The Agency has determined that the granting of attainment date 
extensions would result in none of the effects identified in section 
3(f). Attainment date extensions under section 188(d) of the CAA do not 
impose any new requirements on any sectors of the economy; nor do they 
result in a materially adverse impact on State, local, or tribal 
governments or communities.

V. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Extension of nonattainment area attainment dates under section 
188(b)(2) of the CAA do not create any new requirements. Therefore, 
because this federal approval does not impose any new requirements, I 
certify that it does not have a significant impact on small entities.

VI. Unfunded Mandates

    Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act 
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, 
EPA must assess whether various actions undertaken in association with 
proposed or final regulations include a Federal mandate that may result 
in estimated costs of $100 million or more to the private sector, or to 
State, local or tribal governments in the aggregate.
    EPA has determined, as discussed earlier in section IV. of this 
action, that this final action of granting a one-year extension to the 
Denver, Colorado PM-10 nonattainment area does not impose any federal 
intergovernment mandate, as defined in section 101 of the Unfunded 
Mandates Act. A finding that an area should be granted a one-year 
extension of the attainment date consists of factual determinations 
based upon air quality considerations and the area's compliance with 
certain prior requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector result from this 
action. This action also will not impose a 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.

VII. Petition Language

    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 December 5, 1995. 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 must be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Particulate matter, 
Reporting and recordkeeping requirements, Sulfur dioxide, Volatile 
organic compounds.

    Dated: September 25, 1995.
Jack W. McGraw,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows: 

[[Page 52315]]


PART 52--[AMENDED]

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

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

Subpart G--Colorado

    2. Section 52.322 is added to read as follows:


Sec. 52.322  Extensions.

    The Administrator, by authority delegated under section 188(d) of 
the Clean Air Act, as amended in 1990, extends for one year (until 
December 31, 1995) the attainment date for the Denver, Colorado, PM-10 
nonattainment area.

[FR Doc. 95-24508 Filed 10-5-95; 8:45 am]
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