[Federal Register Volume 61, Number 185 (Monday, September 23, 1996)]
[Rules and Regulations]
[Pages 49682-49684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24053]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[CO-001-0001a; FRL-5606-4]


Clean Air Act Approval and Promulgation of State Implementation 
Plan for Colorado; Denver Nonattainment Area PM10 Contingency 
Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the state implementation plan (SIP) revision 
submitted by the State of Colorado on November 17, 1995, to satisfy the 
Federal Clean Air Act requirement to submit contingency measures for 
the Denver moderate PM10 (particulate matter with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers) nonattainment 
area. EPA is approving this SIP revision because it is consistent with 
the PM10 contingency measure requirements of the Clean Air Act, as 
amended (Act).

DATES: This action is effective on December 23, 1996 unless adverse 
comments are received by November 22, 1996. If the effective date is 
delayed, timely notice will be published in the Federal Register.

ADDRESSES: Comments should be addressed to Richard R. Long, Director 
Air Program, 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 
Program, Environmental Protection Agency, Region VIII, 999 18th Street, 
Suite 500, Denver, Colorado 80202-2466; and Colorado Department of 
Public Health and Environment Air Pollution Control Division, 4300 
Cherry Creek Dr. 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, 8P2-A, U.S. 
Environmental Protection Agency, Region VIII, 999 18th Street, Suite 
500, Denver, Colorado 80202-2466, (303) 312-6434.

SUPPLEMENTARY INFORMATION:

I. Background of Denver PM10 SIP

    The Denver, Colorado area was designated nonattainment for 
PM10 and classified as moderate under sections 107(d)(4)(B) and 
188(a) of the Act, upon enactment of the Clean Air Act Amendments of 
1990. See 56 FR 56694 (November 6, 1991); 40 CFR 81.306 (specifying 
designations for Colorado).
    Those States containing initial moderate PM10 nonattainment 
areas were required to submit several provisions by November 15, 1991. 
These provisions, including an attainment demonstration (or 
demonstration that timely attainment is impracticable), are described 
in EPA's proposed rulemaking for the Denver moderate PM10 
nonattainment area SIP (see 58 FR 66326, December 20, 1993). The Denver 
PM10 control measures targeted re-entrained road dust, residential 
wood burning, stationary sources and mobile sources for reductions in 
PM10 emissions to demonstrate attainment of the PM10 NAAQS. 
See the December 20, 1993, notice of proposed rulemaking and associated 
Technical Support Document (TSD) for further details.
    Such States were also required to submit contingency measures by 
November 15, 1993 (see 57 FR 13543). The Governor of Colorado initially 
submitted a contingency measure SIP for Denver on December 9, 1993. On 
March 30, 1994, the EPA notified the State that it had determined that 
the wintertime secondary particulate concentration contained in the 
June 7, 1993, Denver PM10 SIP submittal was underestimated by 5.4 
g/m3. Based upon that finding, the contingency measures 
contained in the December 9, 1993, submittal were used to provide 
further emission reductions for a revised attainment demonstration 
addressing the additional secondary impacts. The State then undertook a 
process to develop new contingency measures. The Governor submitted the 
new measures on November 17, 1995, for the Denver nonattainment area.

II. This Action

A. Analysis Requirements for State Submissions

1. Procedural Background
    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA [see Section 110(a)(2) and 110(l) of the Act]. EPA also must 
determine whether a submittal is complete and therefore warrants 
further EPA review and action [see section 110(k)(1) of the Act, 57 FR 
13565, and EPA's completeness criteria for SIP submittals in 40 CFR 
part 51, appendix V].
    To entertain public comment, the State of Colorado's Air Quality 
Control Commission (AQCC), after providing adequate notice, held a 
public hearing on March 16, 1995, to consider the Denver PM10 
contingency measures.

[[Page 49683]]

Following the hearing, the AQCC adopted revisions to Colorado 
Regulation No. 16 as the Denver PM10 contingency measures. The 
Contingency Measure SIP revision was formally submitted to EPA by the 
Governor for approval on November 17, 1995.
    The SIP revision was reviewed by EPA to determine completeness in 
accordance with the completeness criteria referenced above. The 
submittal was found to be complete, and a letter dated March 14, 1996, 
was forwarded to the Governor indicating the completeness of the 
submittal and the next steps to be taken in the processing of the SIP 
submittal.
2. PM10 Contingency Measures
    The Clean Air Act requires that States containing PM10 
nonattainment areas adopt contingency measures that will take effect 
without further action by the State or EPA upon a determination by EPA 
that an area failed to make RFP or to timely attain the applicable 
NAAQS, as described in section 172(c)(9). See generally 57 FR 13510-
13512 and 13543-13544. Pursuant to section 172(b), the Administrator 
established a schedule providing that states containing initial 
moderate PM10 nonattainment areas shall submit SIP revisions 
containing contingency measures no later than November 15, 1993. (See 
57 FR 13543.)
    The General Preamble further explains that contingency measures for 
PM10 should consist of other available control measures, beyond 
those necessary to meet the core moderate area control requirement to 
implement reasonably available control measures (see sections 172(c)(1) 
and 189(a)(1)(C) of the Act). Based on the statutory structure, EPA 
believes that contingency measures must, at a minimum, provide for 
continued progress toward the attainment goal during the interim period 
between the determination that the SIP has failed to achieve RFP/
provide for timely attainment of the NAAQS and the additional formal 
air quality planning following the determination (57 FR 13511).
    Section 172(c)(9) of the Act specifies that contingency measures 
shall ``take effect * * * without further action by the State or the 
[EPA] Administrator.'' EPA has interpreted this requirement (in the 
General Preamble at 57 FR 13512) to mean that no further rulemaking 
activities by the State or EPA would be needed to implement the 
contingency measures. In general, EPA expects all actions needed to 
effect full implementation of the measures to occur within 60 days 
after EPA notifies the State of its failure to attain the standard or 
make RFP.
    EPA recognizes that certain actions, such as notification of 
sources, modification of permits, etc., may be needed before some 
measures can be implemented. However, States must show that their 
contingency measures can be implemented with minimal further 
administrative action on their part and with no additional rulemaking 
action such as public hearing or legislative review.
    The Denver PM10 Contingency Measure SIP contains the following 
control measure--Improved Street Sweeping Technology. The control 
measure is found in Colorado Regulation No. 16, Street Sanding 
Emissions and provides that beginning November 1 of the first winter 
season after the determination and notification that the Denver 
PM10 nonattainment area has failed to attain the PM10 NAAQS 
or to make RFP, the contingency measure will be implemented.
    Below is a detailed description of the contingency measure adopted 
for the Denver moderate PM10 nonattainment area:
    a. Improved Street Sweeping Technology Contingency Measure. The 
Denver PM10 Contingency Measure SIP requires that any entity 
responsible for applying street sanding material within the Denver 
Central Business District (CBD), defined as the area bounded by Colfax 
Avenue, Speer Boulevard, Wynkoop Street, 20th Street and Broadway, 
shall clean all streets in the CBD using vacuum sweepers or a more 
effective technology within four days of each sanding episode, or as 
soon as weather permits. The requirements are found in revisions to 
Regulation No. 16, Street Sanding Emissions.
3. Effectiveness of the Contingency Measure
    Information provided in the SIP submittal indicates that 
implementation of the contingency measure would result in an additional 
15 g/m\3\ reduction of PM10 at the highest receptor in 
downtown Denver. This reduction equates to an additional 50% reduction 
in emissions over that demonstrated for the controls in the Denver 
moderate area SIP demonstration. This reduction exceeds the 25% 
emissions reduction which EPA expects from contingency measures as 
discussed in the General Preamble.
    EPA believes this contingency measure is approvable. The control 
measures implemented in the PM10 SIP are projected to achieve more 
emissions reductions than needed to demonstrate attainment of the 
PM10 NAAQS, as indicated by the State's predicted 24-hour 
attainment concentration of 147.8 g/m\3\. Furthermore, the 
predicted 24-hour ambient concentration resulting if the contingency 
measure is implemented is 132.8 g/m\3\. Since the 24-hour 
PM10 NAAQS is 150 g/m\3\, this established safety margin 
further supports the reasonableness of this contingency measure.
4. Early Implementation
    Section IV. B. of Colorado Regulation No. 16 sets out its early 
implementation policy as follows: Those parties subject to the 
contingency measure requirements could implement the measures at any 
time prior to EPA's determination that the area failed to attain the 
PM10 NAAQS or make RFP. Early implementation of these measures 
will not result in the requirement to implement additional contingency 
measures if the area eventually is determined to fail to attain the 
NAAQS or make RFP. If Denver were reclassified to a serious 
nonattainment area, additional control measures, including best 
available control measures and ``serious area'' contingency measures, 
would be necessary.
5. Enforceability Issues
    All measures and other elements in the SIP must be enforceable by 
the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR 
13556). The EPA criteria addressing the enforceability of SIPs and SIP 
revisions were stated in a September 23, 1987, memorandum (with 
attachments) from J. Craig Potter, Assistant Administrator for Air and 
Radiation, et al. (see 57 FR 13541). State implementation plan 
provisions also must contain a program to provide for enforcement of 
control measures and other elements in the SIP [see section 
110(a)(2)(C)].
    EPA's review of the November 17, 1995, PM10 Contingency 
Measure Plan has revealed that the State has adequate authority to 
enforce state air regulations against local entities, and enforce local 
air pollution requirements when local entities fail to do so. In 
addition, the State has authority to implement and enforce all 
emissions limitations and control measures adopted by the AQCC. In 
summary, EPA believes that Colorado has adequate enforcement 
capabilities to ensure compliance with the Denver contingency measure 
SIP. For further information, see the TSD prepared for this document.

III. Final Action

    EPA is approving the PM10 contingency measure plan submitted 
for

[[Page 49684]]

the Denver moderate PM10 nonattainment area by the Governor of 
Colorado on November 17, 1995. This submittal adequately addresses the 
PM10 contingency measure requirements for Denver.
    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 revisions 
should adverse or critical comments be filed. Under the procedures 
established in the May 10, 1994 Federal Register (59 FR 24054), this 
action will be effective December 23, 1996 unless, by November 22, 
1996, adverse or critical comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent notice 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 23, 1996.
    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

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

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 economic 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.
    Approvals of SIP submittals 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 impose any new 
requirements, I certify that it does not have a significant impact on 
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Clean Air Act, preparation of a regulatory 
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. 
E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

VI. Unfunded Mandates

    Under Section 202, of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has also determined that this promulgated action does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to 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 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

VII. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

VIII. Petition 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 November 22, 1996. 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, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: August 27, 1996.
Patricia D. Hull,
Acting Regional Administrator.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

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

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

Subpart G--Colorado

    2. Section 52.320 is amended by adding paragraph (c)(74) to read as 
follows:


Sec. 52.320  Identification of plan.

* * * * *
    (c) * * *
    (74) The Governor of Colorado submitted PM10 contingency 
measures for Denver, Colorado in a letter dated November 17, 1995.
    (i) Incorporation by reference.
    (A) Section IV. of Regulation No. 16, Street Sanding Emissions, 
adopted March 16, 1995, effective May 30, 1995.

[FR Doc. 96-24053 Filed 9-20-96; 8:45 am]
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