[Federal Register Volume 67, Number 179 (Monday, September 16, 2002)]
[Rules and Regulations]
[Pages 58335-58339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23380]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0067; FRL-7261-3]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Colorado; Denver PM10 Redesignation to Attainment, Designation 
of Areas for Air Quality Planning Purposes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On July 30, 2001, the Governor of the State of Colorado 
submitted a State Implementation Plan (SIP) revision for the purpose of 
establishing a redesignation for the Denver, Colorado area from 
nonattainment to attainment for particulate matter with an aerodynamic 
diameter less than or equal to a nominal 10 microns (PM10) 
under the 1987 standards. The Colorado Air Pollution Control Division's 
submittal, among other things, documents that the Denver area has 
attained the PM10 national ambient air quality standards 
(NAAQS), requests redesignation to attainment and includes a 
maintenance plan for the area demonstrating maintenance of the 
PM10 NAAQS for thirteen years. EPA is approving the 
redesignation request, maintenance plan, revisions to Colorado's 
Regulations No. 1 and 16, the request for the removal of Regulation No. 
12 (``Diesel Inspection/Maintenance Program'') and the removal of the 
stationary source construction permits for six sources from the SIP 
because the State has met the applicable requirements of the Clean Air 
Act, as amended. This action is being taken under sections 107, 110, 
and 175A of the Clean Air Act (Act).

DATES: This final rule is effective October 16, 2002.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
and Radiation Program, Environmental Protection Agency, Region VIII, 
999 18th Street, Suite 300, Denver, Colorado, 80202-2466 and copies of 
the Incorporation by Reference material are available at the Air and 
Radiation Docket and Information Center, Environmental Protection 
Agency, 1301 Constitution Avenue, NW., Room B108, Mail Code 6102T 
Washington DC 20460. Copies of the State documents relevant to this 
action are available for public inspection at the Colorado Department 
of Public Health and Environment, Air Pollution Control Division, 4300 
Cherry Creek Drive South, Denver, Colorado 80246-1530.

FOR FURTHER INFORMATION CONTACT: Libby Faulk, EPA, Region VIII, (303) 
312-6083.

SUPPLEMENTARY INFORMATION: On May 23, 2002, EPA published a notice of 
proposed rulemaking (NPR) for approval of the redesignation of the 
Denver PM10 nonattainment area to attainment (67 FR 36124). 
Throughout this document, wherever ``we,'' ``us,'' or ``our'' are used, 
we mean the Environmental Protection Agency (EPA).

Table of Contents

I. EPA's Final Action
    A. What Action Is EPA Finalizing?
    B. Updates to EPA's Proposed Approval
II. Response to Comments
III. Administrative Requirements

I. EPA's Final Action

A. What Action Is EPA Finalizing?

    We are approving the Governor of Colorado's submittal of July 30, 
2001, that requests a redesignation for the Denver nonattainment area 
to attainment for the 1987 PM10 standards. We are using 
1999-2001 ambient air quality data from the Denver PM10 
nonattainment area as the basis for our decision. We are also approving 
the maintenance plan for the Denver PM10 nonattainment area, 
which was submitted with Colorado's July 30, 2001 redesignation 
request. In conjunction with the maintenance plan, the Governor also 
submitted revisions to Colorado's Regulation No. 1, ``Emission Control 
For Particulates, Smokes, Carbon Monoxide, & Sulfur Oxides,'' and 
Colorado's Regulation No. 16, ``Street Sanding Emissions.'' With their 
submittal, Colorado also requested that we remove Regulation No. 12, 
the ``Diesel Inspection/Maintenance Program'' and the stationary source 
construction permits that we had incorporated by reference into our 
April 17, 1997 approval of the PM10 SIP (62 FR 18716). Thus, 
Regulation No. 12 and the permits for Public Service Company of 
Colorado's Cherokee Electric Generating Station, Purina Mills, Electron 
Corporation, Trigen-Colorado Energy Corporation, Rocky Mountain Bottle 
Company (which includes earlier permits that were issued in 1993 under 
the former name of Coors Brewing Company), and Conoco Refinery are 
being removed from the SIP with this action. We are approving this 
request, the maintenance plan and its accompanying regulation revisions 
because the Colorado Air Pollution Control Division (Colorado) has 
adequately addressed all of the requirements of the Act for 
redesignation to attainment applicable to the Denver PM10 
nonattainment area. Upon the effective date of this final action, the 
Denver area's designation status under 40 CFR part 81 will be revised 
to attainment. By using ``Denver'' or the ``Denver area,'' we mean 
Denver, Jefferson, and Douglas Counties, as well as part of Boulder, 
Adams and Arapahoe Counties. Please refer to our proposed action 
published on May 23, 2002 at 67 FR 36124 for a more detailed 
explanation of the redesignation requirements and analysis of how the 
Denver area has met those requirements.

B. Updates to EPA's Proposed Approval

i. Attainment of the PM10 NAAQS
    Whether an area has attained the PM10 NAAQS is based 
exclusively upon measured air quality levels over the most recent and 
complete three calendar year period. See 40 CFR part 50 and 40 CFR part 
50, appendix K. A State must demonstrate that an area has attained the 
PM10 NAAQS through submittal of ambient air quality data 
from an ambient air monitoring network representing maximum 
PM10 concentrations. The data, which must be quality assured 
and recorded in the Aerometric Information Retrieval System (AIRS), 
must show that the average annual number of expected exceedances for 
the area is less than or equal to 1.0, pursuant to 40 CFR 50.6. In 
making this showing, three

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consecutive years of complete air quality data must be used.
    Our proposed approval of the Denver redesignation to attainment was 
based on 1998 through 2000 air quality monitoring data, however, we now 
have a more recent year of data available to use for the final 
redesignation. Thus, we are using 1999 through 2001 data for the basis 
of this final rulemaking. Between 1999 and 2001, Colorado operated 
thirteen PM10 monitors, which were either State and Local 
Air Monitoring Stations (SLAMS) or National Air Monitoring Sites 
(NAMS), in the Denver PM10 nonattainment area. Data from 
these monitors have been quality-assured and placed in AIRS on a 
quarterly basis. Only one exceedance of the 24-hour PM10 
NAAQS was measured between 1999 and 2001. In 1999, the Adams City 
monitor recorded a 24-hour value of 160 [mu]g/m\3\ (the 24-hour 
PM10 NAAQS is 150 [mu]g/m\3\). Because data collection was 
less than 100% at this monitoring site, the expected exceedance rate 
for 1999 at this site was 1.16, (as calculated according to 40 CFR part 
50, appendix K). For 2000 and 2001, the expected exceedance rate was 
0.0. Thus, the three-year average was less than 1.0, which indicates 
the Denver area attained the 24-hour PM10 NAAQS. All other 
sites had expected exceedance rates of 0.0 for this three-year period. 
Review of the annual standard for calendar years 1999, 2000 and 2001 
reveals that the Denver area has also attained the annual 
PM10 NAAQS. There was no violation of the annual standard 
for the three year period from 1999 through 2001. Further information 
on PM10 monitoring is presented in Chapter 3, section B of 
the redesignation request and maintenance plan. We have evaluated the 
ambient air quality data and believe that Colorado has adequately 
demonstrated that the PM10 NAAQS have been attained in the 
Denver area.
ii. Conoco Consent Decree
    In the proposed approval of the redesignation request and 
maintenance plan, we explained that we were relying on a proposed 
federal consent decree that would require significant emission 
reductions at the Conoco facility before 2015. On December 20, 2001, a 
proposed Complaint and Consent Decree in United States v. Conoco Inc. 
was lodged with the United States District Court for the Southern 
District of Texas. (See 67 FR 107 for the notice of lodged consent 
decree.) That consent decree was entered by the Court on April 29, 
2002. Under the consent decree, Conoco Denver Refinery's fluid 
catalytic cracking unit (FCCU) is required to comply with a New Source 
Performance Standard (NSPS), subpart J, emissions limit for PM of 1 
pound per 1000 pounds of coke burned by no later than June 30, 2006. 
This restriction will limit Conoco to approximately 67 tons per year of 
primary PM10, which is far less than the 1233 tons per year 
which Colorado used to re-model Conoco's emissions and less than the 
185 tons per year Colorado used in the maintenance plan; this new limit 
will more than offset the 0.3 [mu]g/m\3\ increase that Colorado 
projected based on the 1233 tons per year value and that would have 
affected the year 2015 ``safety margin'' allocation for mobile sources. 
Because it is based on an NSPS requirement, this new PM limit at Conoco 
will be permanent.

II. Summary of Public Comments and EPA's Responses

    (1) Comment: One commentor expressed concern that it was unclear 
whether the commitment that Colorado has made in the PM10 
maintenance plan to revise the maintenance demonstration using the new 
mobile source emissions model (MOBILE6) is enforceable. The commentor 
believes that it is important that mobile source modeling uses MOBILE6 
when emission reduction credits are taken for the federal Tier II 
emission standards and pointed out that EPA has acknowledged that Tier 
II assumptions may not be as accurate when MOBILE5 is used instead of 
MOBILE6.
    Response: Colorado's commitment was adopted through Colorado's SIP 
process and is part of the maintenance plan. With the effective date of 
this final action, this commitment will be an enforceable part of 
Colorado's SIP. In addition, the SIP doesn't take credit for the Tier 
II program until 2004, and we expect Colorado to have fulfilled their 
commitment to revise the maintenance plan using MOBILE6 by that time.
    (2) Comment: One commentor expressed concern that the recent EPA 
announcement of future revisions to the new source review (NSR) program 
may have implications for this redesignation and maintenance plan. The 
commentor also stated that in taking final action on the Denver 
PM10 redesignation and maintenance plan, we should clarify 
that any SIP revision implementing the federal NSR changes must analyze 
the suite of air quality implications associated with such changes.
    Response: To the extent these comments on the possible NSR program 
revisions pertain to NSR under Part D of the CAA, they are irrelevant 
to the Denver PM10 redesignation because the area will be 
subject to the prevention of significant deterioration requirements 
(PSD) under Part C of the Clean Air Act upon redesignation to 
attainment. The Denver PM10 maintenance plan is premised 
upon PSD applying to the area rather than the NSR requirements under 
Part D of the Act. To the extent the comments pertain to PSD, EPA has 
not yet taken final action regarding the changes to the NSR program; 
thus, the effect of any possible changes to the PSD program is 
speculative. Furthermore, Colorado's existing PSD regulations will 
remain part of the SIP until EPA approves a change to those regulations 
following notice and comment rulemaking. Thus, if EPA were to take 
final action on changes to the PSD program, Colorado would then have to 
revise their State PSD regulations and submit those revisions to us for 
approval. Any PSD program change that would affect Denver's continued 
maintenance of the PM10 standard, or any other NAAQS, would 
be evaluated at that time.
    (3) Comment: One commentor asked why there were significant and 
inexplicable differences between the onroad NOX mobile 
source emissions budgets in the ozone maintenance plan and the 
PM10 maintenance plan. The commentor noted that the 
differences between the NOX budgets in the ozone maintenance 
plan and the NOX budgets in the PM10 maintenance 
plan may be based on seasonality.
    Response: The commentor is correct in pointing out that one reason 
for the difference between the NOX emission inventories in 
the PM10 maintenance plan and the ozone maintenance plan is 
that the ozone plan uses a summertime inventory, whereas the 
PM10 maintenance plan uses a wintertime inventory. Aside 
from this seasonal variation, we believe that the differences between 
the NOX emissions in the two maintenance plans result from 
the following: (1) While the nonattainment areas for both pollutants 
were the same, the emissions inventory domains differ. The ozone 
emissions inventory includes the entire nonattainment area while the 
PM10 maintenance plan covers a smaller area than the actual 
nonattainment area, although all areas with the expected maximum 
PM10 concentrations are included in the domain; (2) The 
PM10 maintenance plan takes emission reduction credit from 
EPA's Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur 
Control Requirements, which take effect in 2004, and EPA's Heavy Duty 
Engines and Vehicle Standards and Highway Diesel Sulfur Control 
Requirements, which take effect in 2007. The ozone maintenance plan

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does not take emission reduction credit from these control programs; 
(3) The vehicle miles traveled (VMT) is higher in the summertime versus 
the wintertime; and (4) The mobile source emission modeling inputs for 
the ozone plan came from the Denver Regional Council of Government's 
(DRCOG) 1999 through 2004 Transportation Improvement Program (TIP) 
while the modeling inputs for the PM10 maintenance plan are 
based on DRCOG's more recent 2001 through 2006 TIP. We believe that the 
difference in the NOX inventories between the ozone and 
PM10 maintenance plans is reasonable and that these numbers 
are accurate.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves 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. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 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. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 15, 2002. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

40 CFR Part 81

    Environmental protection, Air pollution control.

    Dated: August 9, 2002.
Christine Todd Whitman,
EPA Administrator.

    Chapter I, title 40, parts 52 and 81 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 52.320 is amended by adding paragraph (c)(95) to read as 
follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (95) On July 30, 2001, the State of Colorado submitted a 
maintenance plan for the Denver PM10 nonattainment area and 
requested that the area be redesignated to attainment for the 
PM10 National Ambient Air Quality Standards. The maintenance 
plan deletes from the SIP Regulation No. 12, ``Diesel Inspection/
Maintenance Program'' and permits for six stationary sources 
incorporated by reference in paragraphs (c)(91)(i)(A) and (c)(82)(i)(E) 
through (J), of this section respectively. In conjunction with the 
maintenance plan, Colorado revised previously approved regulations and 
requirements to control particulate matter (Regulation No. 1 and 
Regulation No. 16.) Among other changes, the revision to Regulation No. 
1 includes the deletion of section VII.B of Regulation No. 1 from the 
SIP. Among other changes, the revision to Regulation No. 16 includes 
the deletion of sections III and IV of Regulation No. 16 from the SIP. 
The redesignation request, maintenance plan, and revisions to 
Regulations Nos. 1 and 16 satisfy all applicable requirements of the 
Clean Air Act.
    (i) Incorporation by reference.
    (A) Section VII and VIII.A of Regulation No. 1, ``Emission Control 
for

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Particulates, Smokes, Carbon Monoxide, & Sulfur Oxides,'' 5 CCR 1001-3, 
as adopted August 16, 2001 and effective September 30, 2001. (See 
paragraph (c)(95)(ii)(I) of this section regarding clerical error in 
section VIII.A of Regulation No. 1.)
    (B) Sections I and II, Regulation No. 16, ``Street Sanding 
Emissions,'' 5 CCR 1001-18, as adopted April 19, 2001, effective June 
30, 2001.
    (ii) Additional material.
    (A) Letter dated September 5, 2001 from Casey Shpall, Colorado 
Office of the Attorney General to Cindy Rosenberg, EPA Region 8, 
clarifying that public notice was given of the proposed changes and 
transmitting the appropriate documentation.
    (B) Fax dated September 6, 2001 from Doug Lempke, Colorado 
Department of Public Health and Environment, to Cindy Rosenberg, EPA 
Region 8, submitting Colorado Attorney General's opinion concerning 
revisions to Regulation No. 16.
    (C) Letter dated September 10, 2001 from Kevin Briggs, Colorado 
Department of Public Health and Environment, to Kevin Golden, EPA 
Region 8, transmitting model input files for maintenance demonstration.
    (D) Letter dated September 13, 2001 from Casey Shpall, Colorado 
Office of the Attorney General to Cindy Rosenberg, EPA Region 8, 
explaining that an error occurred in the publication of Colorado 
Regulation No. 1.
    (E) Letter dated November 27, 2001 from Margie Perkins, Colorado 
Department of Public Health and Environment, to Richard Long, EPA 
Region 8, transmitting the justification for the revised street 
sweeping credits used in the PM10 maintenance plan.
    (F) Letter dated April 5, 2002 from Margie Perkins, Colorado 
Department of Public Health and Environment, to Richard Long, EPA 
Region 8, transmitting a supplement to the Technical Support 
Documentation correcting the emission rates used in the PM10 
maintenance plan for Conoco and Ultramar Diamond Shamrock.
    (G) Complaint and Consent Decree in United States v. Conoco Inc., 
entered by the United States District Court for the Southern District 
of Texas on April 29, 2002.
    (H) July 31, 2002 memorandum from Cindy Rosenberg, EPA Region 8, to 
the Denver PM10 Redesignation and Maintenance Plan Docket, 
regarding the August 16, 2001 version of Regulation No. 1, ``Emission 
Control for Particulates, Smokes, Carbon Monoxide, & Sulfur Oxides.''
    (I) Letter dated July 31, 2002 from Frank R. Johnson, Assistant 
Attorney General, Colorado Department of Law, to Jonah Staller, EPA 
Region 8, explaining a clerical error in the version of Regulation No. 
1 referenced in paragraph (c)(95)(i)(A) of this section, assuring the 
continued enforceability of section VIII.A of Regulation No. 1 
regardless of the air quality classification of the Denver area, and 
indicating that the clerical error will be promptly remedied.
* * * * *

    3. Section 52.332 is amended by adding paragraph (1) to read as 
follows:


Sec.  52.332  Control strategy: Particulate matter.

* * * * *
    (l) On July 30, 2001, the State of Colorado submitted a maintenance 
plan for the Denver PM10 nonattainment area (``PM-10 
Redesignation Request and Maintenance Plan For the Denver Metropolitan 
Area,'' Chapter 4: ``Maintenance Plan,'' adopted April 19, 2001 by the 
Colorado Air Quality Control Commission and effective April 19, 2001) 
and requested that the area be redesignated to attainment for the 
PM10 National Ambient Air Quality Standards. The 
redesignation request and maintenance plan satisfy all applicable 
requirements of the Clean Air Act.

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

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

    2. In Sec.  81.306, the table entitled ``Colorado--PM-10'' is 
amended by revising the entry under Adams, Denver, and Boulder Counties 
for the ``Denver Metropolitan area'' to read as follows:


Sec.  81.306  Colorado.

* * * * *

                                                 Colorado--PM-10
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                                                         Designation                         Classification
           Designated area           ---------------------------------------------------------------------------
                                                Date                     Type               Date         Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Adams, Denver, and Boulder Counties
    Denver Metropolitan area........  October 16, 2002.......  Attainment.............
        All of Denver, Jefferson,
         and Douglas Counties,
         Boulder County (excluding
         the Rocky Mountain National
         Park) and the Colorado
         automobile inspection and
         readjustment program
         portions of Adams and
         Arapahoe Counties.
 
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[FR Doc. 02-23380 Filed 9-13-02; 8:45 am]
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