[Federal Register Volume 64, Number 67 (Thursday, April 8, 1999)]
[Rules and Regulations]
[Pages 17102-17105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8630]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a revision to the Colorado State 
Implementation Plan (SIP), carbon monoxide (CO) section, Colorado 
Springs element. In a June 25, 1996, submission, Colorado requests that 
emission reductions from oxygenate use in gasoline be substituted for 
reductions associated with the previously approved (48 FR 55284, 
December 12, 1983) bus acquisition program because the bus program was 
not implemented due to the lack of federal funding. This revision 
satisfies certain requirements of part D and section 110 of the Clean 
Air Act (CAA), as amended in 1990.

DATES: This direct final rule is effective on June 7, 1999 without 
further notice, unless EPA receives adverse comments by May 10, 1999. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Written comments may be mailed to: Richard R. Long, 
Director, Air and Radiation Program, Mailcode 8P-AR, United States 
Environmental Protection Agency, Region VIII, 999 18th Street, Suite 
500, Denver, Colorado 80202-2466.
    Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the following 
offices:

United States Environmental Protection Agency, Region VIII, Air and 
Radiation Program, 999 18th Street, Suite 500, Denver, Colorado 80202-
2466; and,
United States Environmental Protection Agency, Air and Radiation Docket 
and Information Center, 401 M Street, SW, Washington, DC 20460.

Copies of the State documents relevant to this action are available for 
public inspection at: Colorado Air Pollution Control Division, Colorado 
Department of Public Health and Environment, 4300 Cherry Creek

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Drive South, Denver, Colorado, 80246-1530.

FOR FURTHER INFORMATION CONTACT: Tim Russ, Air and Radiation Program, 
Mailcode 8P-AR, United States Environmental Protection Agency, Region 
VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466, 
Telephone number: (303) 312-6479.

SUPPLEMENTARY INFORMATION:

I. Background

    Part D of the CAA, which was added by the amendments of 1977, 
required States that were seeking an extension beyond 1982 to attain 
the CO National Ambient Air Quality Standard (NAAQS) to submit a 
revision to the SIP by July 1, 1982. This revision was to provide for 
attainment of the CO NAAQS by December 31, 1987. The Governor submitted 
the necessary SIP revision for Colorado Springs on June 24, 1982.
    One of the CO control strategies described in the June 24, 1982, 
revision was a transportation control measure (TCM) involving improved 
public transit. This particular TCM required the acquisition of an 
additional 27 buses to supplement and expand the Colorado Springs 
fleet. Table 6.1 (``Percent Reductions in 1987 Ambient CO 
Concentrations Attributable To Control Measures'') of Chapter 6, 
``Determination Of Air Quality Impacts Of The Proposed Plan'', of the 
June 24, 1982, submittal indicated that the ``Improved Public Transit'' 
TCM, which included the purchase of the 27 new buses spaced over 1981, 
1982, 1983, and 1984, would result in a 1.5% reduction in the 1987 CO 
emissions in Colorado Springs. It was, however, specifically noted in 
the June 24, 1982, SIP revision that acquisition of these additional 
buses would only be possible if sufficient Federal funding was 
provided. The 1982 SIP revision indicated that the City of Colorado 
Springs could contribute $1,252,800 and that $5,010,800 was needed from 
Federal funds. Federal funds were not available for this bus program 
and the additional 27 buses were not purchased by Colorado Springs.
    On February 24, 1993, the Pikes Peak Area Council of Governments 
(PPACG) approved the substitution of emissions reduction credits from 
an oxygenated gasoline program for the bus acquisition TCM. The 
emission reductions from the oxygenated gasoline program had not 
previously been credited in the Colorado Springs CO element of the SIP. 
The State calculated there was at least an 11% reduction in CO 
emissions for the 1987-88 winter CO season due to the implementation of 
the oxygenated gasoline program. This more than compensates for the 
calculated 1.5% reduction in CO emissions from the non-implemented bus-
purchase program contained in the SIP.
    On December 15, 1994, PPACG's revision was adopted by the Colorado 
Air Quality Control Commission (AQCC). This revision became Chapter 10 
``SIP Revision--December 1994'' of the Colorado Springs CO section of 
the SIP. The Governor submitted the SIP revision to EPA on January 29, 
1996.
    Colorado's oxygenated gasoline program has been revised a number of 
times since its inception in 1987-88. The program has continuously 
provided emissions reductions greater than those that would have been 
realized through the implementation of the bus-purchase program. 
Details regarding Colorado's Federally approved oxygenated gasoline 
program can be found in the March 10, 1997, Federal Register (62 FR 
10690). The State has recently revised the oxygenated gasoline program 
through a further shortening of the oxygenated gasoline program season. 
To date, EPA has not taken any action on this SIP revision. EPA notes, 
however, that the revised oxygenated gasoline program continues to more 
than compensate for the emission reductions that would have been 
realized if the bus-purchase program had been implemented in Colorado 
Springs.

II. Analysis of the State's Submittal

    The CAA requires States to observe certain procedural requirements 
in developing SIP revisions for submittal to EPA. Section 110(a)(2) of 
the CAA requires that States provide reasonable notice and a public 
hearing before adopting SIP revisions. Following reasonable notice, the 
AQCC conducted a public hearing on this matter on December 15, 1994. 
Directly after the hearing, the AQCC revised the Colorado Springs CO 
SIP to substitute the oxygenated gasoline program for the bus-purchase 
program as a source of emissions reductions credits.
    The Governor submitted this revision, for the Colorado Springs 
element of the SIP, to EPA on January 29, 1996. By operation of law 
under the provisions of section 110(k)(1)(B) of the CAA, the submittal 
was deemed complete on July 29, 1996.

III. Final Rulemaking Action

    EPA is approving the revision to the Colorado State Implementation 
Plan (SIP), carbon monoxide (CO) section, Colorado Springs element, 
that the Governor of Colorado submitted to EPA on June 25, 1996, to 
satisfy certain requirements of part D and section 110 of the Clean Air 
Act (CAA), as amended in 1990. The revision substitutes Colorado's 
oxygenated gasoline program (contained in Colorado's Regulation No. 13) 
for the Colorado Springs bus purchase program, as a source of emissions 
reductions credits in the Colorado Springs CO element of the SIP. As 
noted above, EPA approved the bus purchase program as part of the 
Colorado Springs CO element of the SIP on December 12, 1983 (48 FR 
55284), but the program was never implemented. This action has the 
effect of removing the bus purchase program from the EPA-approved SIP.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective June 7, 1999 
without further notice unless the Agency receives adverse comments by 
May 10, 1999.
    If EPA receives such comments, then EPA will publish a timely 
withdrawal of the direct final rule informing the public that the rule 
will not take effect. All public comments received will then be 
addressed in a subsequent final rule based on the proposed rule. The 
EPA will not institute a second comment period on this rule. Any 
parties interested in commenting on this rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on June 7, 1999 and no further action will be 
taken on the proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a

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description of the extent of EPA's prior consultation with 
representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local, or tribal 
governments. The rule does not impose any enforceable duties on state, 
local, or tribal governments. Accordingly, the requirements of section 
1(a) of Executive Order 12875 do not apply to this rule.

C. Executive Order 13045

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under E.O. 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health and safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments, or EPA consults 
with those governments. If EPA complies by consulting, Executive Order 
12084 requires EPA to provide to the Office of Management and Budget, 
in a separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements, but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of a flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

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

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to the publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 7, 1999. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)
    Nothing in this action should be construed as making any 
determination or expressing any position regarding Colorado's audit 
privilege and penalty immunity law, sections 13-25-126.5, 13-90-107, 
and 25-1-114.5, Colorado Revised Statutes, (Colorado Senate Bill

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94-139, effective June 1,1994) or its impact upon any approved 
provision in the SIP, including the revision at issue here. The action 
taken herein does not express or imply any viewpoint on the question or 
whether there are legal deficiencies in this or any other Clean Air Act 
program resulting from the effect of Colorado's audit privilege and 
immunity law. A state audit privilege and immunity law can affect only 
state enforcement and cannot have any impact on federal enforcement 
authorities. EPA may at any time invoke its authority under the Clean 
Air Act, including, for example, sections 113, 167, 205, 211, or 213, 
to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by a state audit privilege or immunity law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: March 24, 1999.
William P. Yellowtail,
Regional Administrator, Region VIII.

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

PART 52--[AMENDED]

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

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

Subpart G--Colorado

    2. Section 52.349 is amended by designating the existing text as 
paragraph (a) and by adding paragraph (b) to read as follows:


Sec. 52.349  Control strategy: Carbon monoxide.

* * * * *
    (b) On June 25, 1996, the Governor of Colorado submitted a revision 
to the Colorado Springs element of the carbon monoxide (CO) portion of 
the Colorado State Implementation Plan (SIP). The revision to the 
Colorado Springs element was submitted to satisfy certain requirements 
of part D and section 110 of the Clean Air Act (CAA) as amended 1990. 
The revision substitutes Colorado's oxygenated gasoline program for the 
Colorado Springs bus purchase program as a source of emissions 
reductions credits in the Colorado Springs CO element of the SIP. This 
revision removes the bus purchase program from the EPA-approved SIP. 
EPA originally approved the bus purchase program as part of the 
Colorado Springs CO element of the SIP on December 12, 1983 (48 FR 
55284).

[FR Doc. 99-8630 Filed 4-7-99; 8:45 am]
BILLING CODE 6560-50-P