[Federal Register Volume 67, Number 183 (Friday, September 20, 2002)]
[Rules and Regulations]
[Pages 59165-59169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23816]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[UT-001-0045a, UT-001-0046a; FRL-7377-9]


Determination of Attainment for the Carbon Monoxide National 
Ambient Air Quality Standard for Metropolitan Provo; State of Utah, and 
Approval of Revisions to the Oxygenated Gasoline Program

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 Provo CO nonattainment area (hereafter Provo area) which 
was classified as ``moderate''. The Provo area was required by the 
Clean Air Act Amendments of 1990 to attain the CO NAAQS by December 31, 
1995. This determination is based on complete, quality assured ambient 
air quality monitoring data for the years 1994 and 1995. In addition, 
on September 27, 2001, the Governor submitted revisions to Utah's rule 
R307-301 ``Utah and Weber Counties: Oxygenated Gasoline Program''. In 
this action, EPA is determining that the Provo area attained the CO 
NAAQS and EPA is approving the revisions to rule R307-301.

DATES: This direct final rule is effective on November 19, 2002, 
without further notice, unless EPA receives adverse comments by October 
21, 2002. 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,
Air and Radiation Docket and Information Center, United States 
Environmental Protection Agency, Room B-108, 1301 Constitution 
Avenue (Mail Code 6102T) NW., 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 80202-2466, 
Telephone number: (303) 312-6479.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', 
``us'', or ``our'' are used we mean the Environmental Protection 
Agency.

I. Determination of Attainment for the CO NAAQS for the Provo Area

    In this action, we are determining that the metropolitan Provo CO 
nonattainment area, as described in 40 CFR 81.345, attained the 8-hour 
CO NAAQS by December 31, 1995, based on quality assured ambient air 
monitoring data for the years 1994 and 1995. In addition, ambient air 
quality data show that the area continued to attain the CO NAAQS from 
1995 through 2001 (the most recent year for which complete data are 
available.) This action is being taken pursuant to sections 179 (c)(1) 
and 186(b)(2) of the Clean Air Act (CAA). This determination of 
attainment does not redesignate the Provo 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.

(a) Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 were 
enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-
7671q). Under section 107(d)(1)(C) of the CAA, we designated the Provo 
area as nonattainment for CO because the area had been designated as 
nonattainment before November 15, 1990. We originally designated the 
Provo area as nonattainment for CO under the provisions of the 1977 CAA 
Amendments (see 43 FR 8962, March 3, 1978). This designation was 
reaffirmed by the 1990 CAA Amendments and the Provo area was classified 
as ``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. CO nonattainment areas classified as ``moderate'' were expected 
to attain the CO NAAQS as expeditiously as practical, but no later than 
December 31, 1995. 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

[[Page 59166]]

of 1990.'' (See 57 FR 13498, April 16, 1992.)

(b) Analysis of Ambient Air Quality Monitoring Data and Determination 
of Attainment

    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 Provo area attained the CO NAAQS by 
December 31, 1995, is based on an analysis of quality assured ambient 
air quality monitoring data that have been entered into EPA's 
Aerometric Information and Retrieval System (AIRS) and are relevant to 
this action. State annual-certified ambient air quality monitoring data 
for calendar years 1994 and 1995 show a measured design value of 8.2 
ppm with an exceedance rate of the CO NAAQS of 1.0 or less per year, 
per monitor, in the Provo nonattainment area. In addition, we note that 
ambient data in AIRS show continuous attainment of the CO NAAQS in the 
Provo area from 1995 through the latest complete data year of record 
which is 2001. Further, preliminary data for 2002 also show attainment.
    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 AIRS national database. We have evaluated the ambient 
air quality data and have determined that the Provo area has not 
violated the CO standard. Therefore, the Provo area has met its CAA 
requirement and attained the CO NAAQS by December 31, 1995.

II. Revisions to R307-301 for the Oxygenated Gasoline Program for Utah 
and Weber Counties

(a) Background

    Section 211(m) of the 1990 CAA Amendments required the 
implementation of an oxygenated gasoline program in CO nonattainment 
areas with a CO design value greater than 9.5 ppm. As both the Provo 
area (Utah County) and Ogden City (Weber County) were nonattainment for 
CO and had design values greater than 9.5 ppm, this provision of the 
CAA applied to both Weber and Utah Counties. CAA section 211(m)(2)(B) 
set the Federally required oxygenate level at 2.7% oxygen by weight. In 
response to this CAA requirement, the Governor submitted final 
revisions to the State's rule R307-8\2\ ``Oxygenated Gasoline Program'' 
on May 14, 1994, for the implementation of a 2.7% program. We approved 
the revisions to R307-8 on November 8, 1994 (see 59 FR 55585).
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    \2\ The State rule R307-8 ``Oxygenated Gasoline Program'' was 
re-numbered by the State to R307-301 and the title was changed to 
``Utah and Weber Counties: Oxygenated Gasoline Program.''
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    On July 11, 1994, the Governor submitted a revision to the Utah SIP 
that included a CO attainment demonstration for the Provo area. Two 
components of this attainment demonstration were the implementation of 
an enhanced motor vehicle inspection and maintenance (I/M) program, to 
be implemented by January 1, 1996, and the 2.7% oxygenated gasoline 
program. (We note that the State had actually implemented the 2.7% 
oxygenated gasoline program in the Provo area even prior to our 
November 8, 1994, approval of R307-8 and has continued the 
implementation of this 2.7% program to date.) However, the commitment 
to implement an enhanced I/M program was not definite. Thus, as part of 
the July 11, 1994, submittal the State revised R307-8-3.1.B ``Average 
Oxygen Content Standard'' to require an increase in the oxygen content 
of gasoline fuels in the Provo-Orem Metropolitan Statistical Area (MSA) 
from 2.7% to 3.1% oxygen by weight in the event the enhanced I/M 
program (or a substitute I/M program) was not implemented by January 1, 
1996.
    The State did not implement the enhanced I/M program in Utah 
County. Instead, on March 15, 1996, the Governor submitted a revision 
to the SIP that involved an improved basic I/M program for Utah County. 
This revision was submitted to satisfy the applicable requirements of 
both the CAA and section 348 of the National Highway Safety Designation 
Act (NHSDA) of 1995. We granted interim final approval of this SIP 
revision on June 9, 1997 (see 62 FR 31349) and we anticipate publishing 
a final rule fully approving this improved basic I/M program in the 
near future.
    After our November 8, 1994, initial approval of the State's 
oxygenated gasoline program, the State submitted several revisions to 
R307-8 which culminated in a submittal by the Governor on July 8, 1998, 
that superceded and replaced all prior versions. This July 8, 1998, 
version of R307-8 still retained the language in R307-8-3.1.B requiring 
the implementation of a 3.1% oxygen content by weight program in Utah 
County if the enhanced I/M program was not implemented in Utah County 
by January 1, 1996. We approved the July 8, 1998, revision of R307-8 in 
conjunction with our March 9, 2001, approval of the Ogden City carbon 
monoxide redesignation to attainment (see 66 FR 14078), thus making the 
3.1% program both State and Federally enforceable for Utah County and 
the Provo area. (We note that R307-8 never applied the 3.1% program in 
Ogden City.)

(b) Analysis the Governor's September 27, 2001, Revisions to R307-301

    Utah's rule R307-301 is entitled ``Utah and Weber Counties: 
Oxygenated Gasoline Program.'' It is intended to replace R307-8. The 
Governor's September 27, 2001, SIP submittal made specific changes to 
R307-301-3 which is entitled ``Average Oxygen Content Standard.''
    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 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 public process 
must occur prior to the State submitting its final revisions to us.
    At the July 11, 2001, Utah Air Quality Board (UAQB) meeting, the 
UAQB proposed for public comment revisions to rule R307-301-3. The SIP 
revisions

[[Page 59167]]

were subject to a 30-day State public comment period that began on 
August 1, 2001, and ended on August 31, 2001. The State conducted a 
public hearing on August 22, 2001. The UAQB approved the SIP revisions 
on September 5, 2001. Rule R307-301-3 became State-effective on 
September 10, 2001. The Governor submitted these SIP revisions to EPA 
on September 27, 2001. In a letter dated October 18, 2001, from Pat D. 
Hull, Acting Regional Administrator, to Governor Leavitt, we determined 
the submittal was administratively and technically complete pursuant to 
40 CFR part 51, appendix V.
    The revisions to R307-301-3 that the Governor submitted on 
September 27, 2001, remove the requirement for a 3.1% oxygen content by 
weight program and require only a 2.7% oxygen by weight program. We 
find the revisions acceptable for the following reasons:
    The revisions will not interfere with the attainment of the CO 
NAAQS or any other requirement of the CAA. As noted above, the Provo 
area has been continuously attaining the CO NAAQS since 1994. During 
this period, the Provo area has never implemented a 3.1% oxygenated 
gasoline program and has only implemented a 2.7% oxygenated gasoline 
program. Only three exceedances of the CO NAAQS have been recorded in 
the Provo area since 1994 and none have been recorded since 1996. Also, 
the CO values since 1996 have generally been considerably below the CO 
NAAQS and trending downward. Thus, we believe a 2.7% oxygenated 
gasoline program will continue to be adequate for the Provo area to 
attain the 8-hour CO NAAQS. Any additional CO emission reductions that 
a 3.1% oxygenated gasoline program would achieve appear to be 
unnecessary.
    Based on the above analysis and the ambient air quality data that 
is archived in our AIRS national database for the Provo area, we have 
concluded that a 2.7% oxygenated gasoline program is sufficient for the 
Provo area to attain and maintain the CO NAAQS. Therefore, the 
Governor's September 27, 2001, revisions to R307-301-3 are acceptable.

III. Final Action

    In this action, EPA is determining that the Provo carbon monoxide 
``moderate'' nonattainment area attained the CO NAAQS by December 31, 
1995. We are also approving the Governor's September 27, 2001, 
revisions to Utah's rule R307-301-3 ``Average Oxygen Content 
Standard.''
    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 should adverse comments be filed. This 
rule will be effective November 19, 2002, without further notice unless 
the Agency receives adverse comments by October 21, 2002.
    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 November 19, 2002, 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 is not 
economically significant and EPA does not have the discretion to engage 
in a risk assessment or alternatives analysis in acting on SIP 
revisions.

(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 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 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 approves state rules implementing a federal standard, 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.

(d) Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    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.''
    This final 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.

[[Page 59168]]

Thus, Executive Order 13175 does not apply to this rule.

(e) Executive Order 13211 (Energy Effects)

    This rule is not subject to Executive Order 13211 ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

(f) 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 final 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 SIP final 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, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2). Therefore, because the final rule does not create 
any new requirements, I certify that the final rule will not have a 
significant economic impact on a substantial number of small entities.

(g) 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 this final 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 approves pre-existing 
requirements under State or local law, and imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

(h) Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of 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 ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective November 19, 2002.

(i) 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.

(j) 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 November 19, 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 in 40 CFR Part 52

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

    Dated: September 6, 2002.
Robert E. Roberts,
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 TT--Utah

    2. Section 52.2320 is amended by adding paragraph (c)(53) to read 
as follows:


Sec.  52.2320  Identification of plan.

* * * * *
    (c) * * *
    (53) On September 27, 2001, the Governor of Utah submitted a 
revision to Utah's SIP involving R307-301 ``Utah and Weber Counties: 
Oxygenated Gasoline Program.'' Specifically, the State revised R307-
301-3 ``Average Oxygen Content Standard'' to only require the 
implementation of a 2.7% oxygen by weight program and not a 3.1% 
program that the State had mandated in a 1998 revision.
    (i) Incorporation by reference.
    (A) Rule R307-301-3 ``Average Oxygen Content Standard'', as adopted 
on September 5, 2001, by the Utah Air Quality Board, and State 
effective on September 10, 2001. This rule supersedes and replaces 
R307-8-3.1.B.

    3. New Sec.  52.2353 is added to read as follows:


Sec.  52.2353  Control strategy: Carbon monoxide.

    Determination. EPA has determined that the Provo carbon monoxide 
``moderate'' nonattainment area attained

[[Page 59169]]

the carbon monoxide national ambient air quality standard by December 
31, 1995. This determination is based on air quality monitoring data 
from 1994 and 1995.

[FR Doc. 02-23816 Filed 9-19-02; 8:45 am]
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