[Federal Register Volume 66, Number 124 (Wednesday, June 27, 2001)]
[Rules and Regulations]
[Pages 34114-34117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15873]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0063a; FRL-7000-7]


Determination of Attainment for the Carbon Monoxide National 
Ambient Air Quality Standard for Metropolitan Denver; State of Colorado

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action makes a determination of attainment for the carbon 
monoxide (CO) National Ambient Air Quality Standard (NAAQS) for the 
metropolitan Denver CO nonattainment area which was classified as 
``serious''. The Denver area was required by the Clean Air Act 
Amendments (CAAA) of 1990 to attain the CO NAAQS by December 31, 2000. 
This determination is based on complete, quality assured ambient air 
quality monitoring data for the years 1998, 1999, and 2000.

DATES: This direct final rule is effective on August 27, 2001 without 
further notice, unless EPA receives adverse comments by July 27, 2001. 
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 
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; and, United States Environmental Protection Agency, Air and 
Radiation Docket and Information Center, 401 M Street, SW, Washington, 
DC 20460.

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 80202-2466Telephone 
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?

    In this action, we are determining that the metropolitan Denver 
(hereafter Denver) CO nonattainment area, as described in 40 CFR 
81.306, has attained the 8-hour CO NAAQS based on quality assured 
ambient air monitoring data for the years 1998, 1999, and 2000. This 
action is being taken as required by section 179 (c)(1) of the Clean 
Air Act (CAA) and is consistent with the requirements of section 
186(b)(2) of the CAA for CO nonattainment areas. This determination of 
attainment does not redesignate the Denver area to attainment for the 
CO NAAQS. The CAA requires that for an area to be redesignated to 
attainment the five criteria in section 107(d)(3)(E) must first be 
satisfied and EPA must fully approve a maintenance plan for the area.

II. Background

    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), we 
designated the Denver area as nonattainment for CO because the area had 
been designated as nonattainment before November 15, 1990. We 
originally designated Denver as nonattainment for CO under the 
provisions of the 1977 CAA Amendments (see 43 FR 8962, March 3, 1978). 
This designation was reaffirmed

[[Page 34115]]

by the 1990 CAA Amendments and Denver was classified as a ``moderate'' 
CO nonattainment area with a design value greater than or equal to 12.7 
parts per million (ppm). See 56 FR 56694, November 6, 1991. The Denver 
area violated the 8-hour CO standard in 1995 and we reclassified the 
area as ``serious'' for CO in conjunction with our approval of the 
Denver CO element nonattainment State Implementation Plan (SIP) 
revision (see 62 FR 10690, March 10, 1997). CO nonattainment areas 
classified as ``serious'' were expected to attain the CO NAAQS as 
expeditiously as practical, but no later than December 31, 2000. 
Further information regarding this CO classification and the 
accompanying requirements are described in section 187 of the CAA and 
in the ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990.'' (See 57 FR 13498, April 16, 1992.)

III. Analysis of Ambient Air Quality Monitoring Data

    As described in 40 CFR 50.8, the national primary ambient air 
quality standard for carbon monoxide is 9 parts per million (10 
milligrams per cubic meter) for an 8-hour average concentration not to 
be exceeded more than once per year. 40 CFR 50.8 continues by stating 
that the levels of CO in the ambient air shall be measured by a 
reference method based on 40 CFR part 50, appendix C and designated in 
accordance with 40 CFR part 53 or an equivalent method designated in 
accordance with 40 CFR part 53. Attainment of the CO standard is not a 
momentary phenomenon based on short-term data. Instead, we consider an 
area to be in attainment if each of the CO ambient air quality monitors 
in the area doesn't have more than one exceedance of the CO standard 
over a one-year period. 40 CFR 50.8 and 40 CFR part 50, appendix C. If 
any monitor in the area's CO monitoring network records more than one 
exceedance of the CO standard during a one-year calendar period, then 
the area is in violation of the CO NAAQS. In addition, our 
interpretation of the CAA has been that to be considered in attainment 
for the CO NAAQS, an area must attain the CO NAAQS for at least a 
continuous two-year calendar period.\1\
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    \1\ June 18, 1990, Memorandum from William G. Laxton, Director 
Technical Support Division, entitled ``Ozone and Carbon Monoxide 
Design Value Calculations.''
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    Our determination that the Denver area has attained the CO NAAQS is 
based on an analysis of quality assured ambient air quality monitoring 
data that have been entered into AIRS and are relevant this action. 
State annual-certified ambient air quality monitoring data for calendar 
years 1998, 1999, and quarterly data from 2000 \2\ show a measured a 
design value of 5.4 ppm with an exceedance rate of the CO NAAQS of 1.0 
or less per year, per monitor, in the Denver nonattainment area.
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    \2\ Quarterly ambient air quality data for calendar year 2000 
have been entered into AIRS and quality assured by the State as 
required by 40 CFR 58.35. However, the calendar year 2000 data are 
not required to be certified by the State until July 1, 2001 (see 40 
CFR 58.26).
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    All of the data discussed above were collected and analyzed as 
required by EPA (see 40 CFR 50.8 and 40 CFR part 50, appendix C) and in 
accordance with EPA policy and guidance. The data have been archived by 
the State in our Aerometric Information and Retrieval System (AIRS) 
national database. We have evaluated the ambient air quality data and 
have determined that the Denver area has not violated the CO standard. 
Therefore, the Denver area has met its CAA requirement and attained the 
CO NAAQS by December 31, 2000.

IV. Final Action

    In this action, EPA is determining that the Denver carbon monoxide 
``serious'' nonattainment area attained the CO NAAQS by December 31, 
2000.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, we are publishing a separate document 
that will serve as the proposal to determine that the Denver area 
attained the CO NAAQS by December 31, 2000, should adverse comments be 
filed. This rule will be effective August 27, 2001 without further 
notice unless the Agency receives adverse comments by July 27, 2001.
    If EPA receives such comments, then we 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 August 27, 2001 and no further action will be 
taken on the proposed rule.

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 13084

    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 
13084 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. This action

[[Page 34116]]

does not involve or impose any requirements that affect Indian Tribes. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

(d) 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 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 makes a determination of attainment, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. Thus, the requirements of section 6 
of the Executive Order do not apply to this 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 rule will not have a significant impact on a substantial 
number of small entities because it will not create any new 
requirements. Therefore, because this Federal determination of 
attainment 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.

(f) Unfunded Mandates

    Under sections 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 this determination of attainment 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 provides a 
determination of attainment and imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

(g) Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. section 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 the 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 publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective August 27, 2001 unless EPA 
receives adverse written comments by July 27, 2001.

(h) National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

(i) 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 August 27, 2001. 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).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 13, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    Title 40, chapter I, part 52 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 et seq.

Subpart G--Colorado

    2. Section 52.349 is amended by adding paragraph (f) to read as 
follows:

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Sec. 52.349  Control strategy: Carbon monoxide.

* * * * *
    (f) Determination. EPA has determined that the Denver carbon 
monoxide ``serious'' nonattainment area attained the carbon monoxide 
national ambient air quality standard by December 31, 2000. This 
determination is based on air quality monitoring data from 1998, 1999, 
and 2000.
[FR Doc. 01-15873 Filed 6-26-01; 8:45 am]
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