[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]


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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.

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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\
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    \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.
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    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\
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    \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.
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    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.
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    \3\ Refer to EPA's September 4, 1992, John Calcagni policy 
memorandum entitled ``Procedures for Processing Requests to 
Redesignate Areas to Attainment.''
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    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