[Federal Register Volume 68, Number 94 (Thursday, May 15, 2003)]
[Rules and Regulations]
[Pages 26212-26220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12026]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[CO-001-0070a; FRL-7489-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Colorado; Designation of Areas for Air Quality Planning Purposes, Aspen

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a State 
Implementation Plan (SIP) revision submitted by the Governor of the 
State of Colorado on November 9, 2001, for the purpose of redesignating 
the Aspen, Colorado area from nonattainment to attainment for 
particulate matter with an aerodynamic diameter less than or equal to a 
nominal 10 micrometers (PM10) under the 1987 standards. The 
Governor's submittal, among other things, documents that the Aspen 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 ten years. EPA is approving this 
redesignation request and maintenance plan because Colorado has met the 
applicable requirements of the Clean Air Act (CAA), as amended. Upon 
the effective date of this approval, the Aspen area will be designated 
attainment for the PM10 NAAQS. This action is being taken 
under sections 107, 110, and 175A of the Clean Air Act.

DATES: This rule is effective on July 14, 2003, without further notice, 
unless EPA receives adverse comment by June 16, 2003. If adverse 
comment is received, EPA will publish a timely withdrawal of the direct 
final rule in the Federal Register informing 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, Environmental Protection 
Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver, Colorado 
80202. 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 and copies of the 
Incorporation by Reference material are available at the Air and 
Radiation Docket and Information Center, Environmental Protection 
Agency, Room B-108 (Mail Code 6102T), 1301 Constitution Ave., NW., 
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: 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
    What Action Is EPA Taking in this Direct Final Rule?
II. Summary of Redesignation Request and Maintenance Plan
    A. What Requirements Must Be Followed for Redesignation to 
Attainment?
    B. Does the Aspen Redesignation Request and Maintenance Plan 
Meet the CAA Requirements?
    C. Have the Transportation Conformity Requirements Been Met?
    D. Did Colorado Follow the Proper Procedures for Adopting this 
Action?
III. Background
IV. CAA Section 110(l) Requirements
V. Statutory and Executive Order Reviews

I. EPA's Final Action

What Action Is EPA Taking in This Direct Final Rule?

    We are approving the Governor's submittal of November 9, 2001, that 
requests redesignation of the Aspen nonattainment area to attainment 
for the 1987 PM10 standards. Included in Colorado's 
submittal are changes to the ``State Implementation Plan--Specific 
Regulations for Nonattainment--Attainment/Maintenance Areas (Local 
Areas)'' which we are approving, under section 110 of the CAA, into 
Colorado's SIP. We are also approving the maintenance plan for the 
Aspen PM10 nonattainment area, which was submitted with the 
Governor's November 9, 2001, redesignation request. We are approving 
this request and maintenance plan because Colorado has adequately 
addressed all of the requirements of the CAA for redesignation to 
attainment applicable to the Aspen PM10 nonattainment area. 
Upon the effective date of this action, the Aspen area designation 
status under 40 CFR part 81 will be revised to attainment.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse

[[Page 26213]]

comments. However, in the ``Proposed Rules'' section of today's Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to approve the SIP revision if adverse comments 
are filed. This rule will be effective July 14, 2003, without further 
notice unless the Agency receives adverse comments by June 16, 2003. If 
the EPA receives adverse comments, EPA will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect. EPA will address all public comments in a subsequent final 
rule based on the proposed rule. The EPA will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

II. Summary of Redesignation Request and Maintenance Plan

A. What Requirements Must Be Followed for Redesignations to Attainment?

    In order for a nonattainment area to be redesignated to attainment, 
the following conditions in section 107(d)(3)(E) of the CAA must be 
met:
    (i) We must determine that the area has attained the NAAQS;
    (ii) The applicable implementation plan for the area must be fully 
approved under section 110(k) of the CAA;
    (iii) We 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 and applicable 
Federal air pollutant control regulations and other permanent and 
enforceable reductions;
    (iv) We must fully approve a maintenance plan for the area as 
meeting the requirements of CAA section 175A; and,
    (v) The State containing such an area must meet all requirements 
applicable to the area under section 110 and part D of the CAA.
    Our September 4, 1992, guidance entitled ``Procedures for 
Processing Requests to Redesignate Areas to Attainment'' outlines how 
to assess the adequacy of redesignation requests against the conditions 
listed above.
    The following is a brief discussion of how Colorado's redesignation 
request and maintenance plan meet the requirements of the CAA for 
redesignation of the Aspen area to attainment for PM10.

B. Does the Aspen Redesignation Request and Maintenance Plan Meet the 
CAA Requirements?

i. Attainment of the PM10 NAAQS
    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, the three most recent years of complete air 
quality data must be used.
    Colorado operates one PM10 monitoring site in the Aspen 
PM10 nonattainment area. For this redesignation request, the 
Colorado Air Pollution Control Division (APCD) designated the Tapered 
Element Oscillating Microbalance (TEOM) monitor as the primary sampler 
for determining attainment of the PM10 NAAQS in the Aspen 
area, beginning in 1998. Colorado submitted ambient air quality data 
from the monitoring site which demonstrate that the area has attained 
the PM10 NAAQS. These air quality data were quality-assured 
and placed in AIRS. The 24-hour PM10 NAAQS was exceeded once 
in Aspen in 1991 and the annual PM10 NAAQS has never been 
exceeded. We reviewed the three most recent years of data for the area 
(1999-2001) and determined that the data is complete (i.e., data are 
available for at least 75% of the scheduled PM10 samples per 
quarter) with no recorded violations of either the 24-hour or annual 
PM10 NAAQS. We believe that Colorado has adequately 
demonstrated, through ambient air quality data, that the 
PM10 NAAQS have been attained in the Aspen area.
ii. State Implementation Plan Approval
    Those States containing initial moderate PM10 
nonattainment areas were required by the 1990 amendments to the CAA to 
submit a SIP by November 15, 1991, which demonstrated attainment of the 
PM10 NAAQS by December 31, 1994. To approve a redesignation 
request, the SIP for the area must be fully approved under section 
110(k) and must satisfy all requirements that apply to that area. The 
Aspen PM10 SIP was initially submitted by Colorado on 
January 15, 1992, with revisions submitted on March 17, 1993, and 
December 9, 1993. EPA fully approved the PM10 SIP for Aspen 
on September 14, 1994 (59 FR 47088). Additional revisions consisting of 
further updating of the technical and administrative information, 
adopting emission budgets for the Aspen area, and removing the 
voluntary no-drive program from consideration as part of the Federal 
SIP were submitted by Colorado on March 13, 1995, and were approved by 
EPA on December 17, 1997 (62 FR 66007). The PM10 SIP for 
Aspen was approved as meeting the moderate PM10 
nonattainment plan requirements that were due to EPA on November 15, 
1991.
iii. Improvement in Air Quality Due to Permanent and Enforceable 
Measures
    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 emission reductions which are 
permanent and enforceable. Control measures in the Aspen 
PM10 element of the Colorado SIP were adopted by the 
Colorado Air Quality Control Commission in January 1993 and November 
1993, and were approved by EPA on September 14, 1994 (59 FR 47088). The 
primary sources of PM10 emissions in the Aspen area are re-
entrained road dust (from highways, paved roads, chip sealed roads, and 
unpaved roads) and woodburning. The permanent and enforceable control 
measures that brought the Aspen area into attainment of the NAAQS are 
explained in more detail below.
    The City of Aspen and Pitkin County have adopted local ordinances 
that limit the number of woodburning devices in new construction in the 
Aspen area, and the City of Aspen adopted a local ordinance that 
requires emission controls for new restaurant grills. These woodburning 
and restaurant controls were adopted and implemented locally in the 
late 1980's and early 1990's and included in State regulation in 1993 
(section III.C.4. of the State Implementation Plan--Specific 
Regulations for Nonattainment--Attainment/Maintenance Areas (Local 
Areas)). The rule was approved by EPA into the SIP in 1994.
    In addition, Aspen has adopted street sanding controls that require 
the use of street sanding material containing less than ``one percent 
fines'' with a durability index of less than 30 percent. This control 
strategy was adopted in 1993 and approved by EPA in 1994, and is 
defined in detail in section III.C.1. of the ``State Implementation 
Plan--

[[Page 26214]]

Specific Regulations for Nonattainment--Attainment/Maintenance Areas 
(Local Areas).''
    In addition, Aspen has adopted street sweeping control requirements 
for any user of street sanding materials on defined roadways in the 
Aspen attainment/maintenance area. Street cleaning using broom sweepers 
or any other sweepers with equal efficiency must be performed within 
four days of the roadways becoming free and clear of snow and ice 
following each sanding deployment. These requirements are defined in 
detail in section III.C.2. of the ``State Implementation Plan--Specific 
Regulations for Nonattainment--Attainment/Maintenance Areas (Local 
Areas).''
    Aspen also has paid parking requirements that were adopted in 1993 
and approved by EPA in 1994 and will remain as part of the federal SIP. 
Parking on public streets within the City of Aspen's commercial core 
and surrounding residential areas is restricted through parking fees 
and permits to reduce traffic and encourage transit ridership. This 
requirement is defined in detail in section III.C.3. of the ``State 
Implementation Plan--Specific Regulations for Nonattainment--
Attainment/Maintenance Areas (Local Areas).''
    In addition, the City of Aspen implemented local transit measures 
such as expansion of the bus fleet by 14 buses, establishment of a 400 
space Park `n Ride lot and a 250 space intercept parking lot, and 
establishment of cross-town and intercept lot shuttle services. These 
measures were adopted in 1993 and approved by EPA in 1994 and have been 
completed.
    In addition to the State and local control measures, the Federal 
Motor Vehicle Emission Control Program has reduced PM10 
emissions in Aspen as older, higher emitting diesel vehicles are 
replaced with newer vehicles that meet tighter emission standards. 
Overall, despite growth in the Aspen nonattainment area (e.g., in 
population, employment and vehicle miles traveled), attainment of the 
PM10 NAAQS has been demonstrated. We have evaluated the 
various control measures, in addition to the 1997 attainment year 
emission inventory and the projected emissions described below, and 
have concluded that the continued attainment of the PM10 
NAAQS in the Aspen area has resulted from emission reductions that are 
permanent and enforceable.
iv. Fully Approved Maintenance Plan Under Section 175A of the CAA
    Section 107(d)(3)(E) of the CAA requires that, for a nonattainment 
area to be redesignated to attainment, we must fully approve a 
maintenance plan which meets the requirements of section 175A of the 
CAA. The plan must demonstrate continued attainment of the relevant 
NAAQS in the area for at least 10 years after our approval of the 
redesignation. Eight years after our approval of a redesignation, 
Colorado must submit a revised maintenance plan demonstrating 
attainment for the 10 years following the initial 10 year period. The 
maintenance plan must also contain a contingency plan to ensure prompt 
correction of any violation of the NAAQS. (See sections 175A(b) and 
(d).) Our September 4, 1992, guidance outlines 5 core elements that are 
necessary to ensure maintenance of the relevant NAAQS in an area 
seeking redesignation from nonattainment to attainment. Those elements, 
as well as guidelines for subsequent maintenance plan revisions, are as 
follows:
a. Attainment Inventory
    The maintenance plan should include an attainment emission 
inventory to identify the level of emissions in the area which is 
sufficient to attain the NAAQS. An emission inventory for Aspen was 
developed for the attainment year 1997 as well as a projection 
inventory for the year 2015. The emission inventory incorporates the 
emission estimates for woodburning, arterial and local street re-
entrained emissions, gravel road emissions, restaurant exhaust 
emissions, and mobile exhaust emissions that are contained in the 
nonattainment area SIP Element that was approved by EPA on September 
22, 1994. The emission inventory reflects 1997 emissions for airport 
emissions based on information provided by the Federal Aviation 
Administration (FAA) and highway re-entrained road dust emissions using 
the latest traffic counts from the Colorado Department of 
Transportation (CDOT). There are no stationary sources in the 
attainment/maintenance area. Summary emission figures from the 1997 
attainment year and the 2015 projected year are provided in Tables 1, 2 
and 3 below.

Table 1.--1997 and 2015 PM10 Total Emission Inventory for Road Dust Activity in Pounds per Winter Day for Aspen/
                                                  Pitkin County
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                                                                            Paved roads
                                                    Highway 82   --------------------------------  Gravel roads
                                                                     Arterial          Local
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1997............................................            7540            1468            1000              79
2015............................................           12109            2358            1606            127
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* 1997 emissions from Highway 82, paved arterial roads, paved local roads, and gravel roads were increased by
  60.6% based on long-term traffic projections from CDOT (58%) through 2015 and adding some additional VMT
  (1.65%) in the year 2015 to account for eliminating from the federally-approved plan some transit and parking
  measures.


  Table 2.--1997 and 2015 PM10 Total Emission Inventory for Restaurant, Mobile Source, and Aircraft Activity in
                                  Pounds per Winter Day for Aspen/Pitkin County
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                                                                      Vehicle
                                                                      exhaust        Aircraft       Restaurants
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1997............................................................              44              28              27
2015............................................................              44              44             36
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* 1997 emissions from restaurants were increased by 33.1% based on Pitkin County population projections to
  determine 2015 emissions.
** Aircraft emissions are based on FAA activity projections.
*** 1997 emissions from vehicle exhaust are assumed to remain constant through 2015.


[[Page 26215]]


 Table 3.--1997 and 2015 PM10 Total Emission Inventory for Wood Stoves/
 Inserts and Fireplaces in Pounds per Winter Day for Aspen/Pitkin County
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                                           Wood stoves/
                                              inserts       Fireplaces
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1997....................................              84             233
2015....................................             112            233
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* 1997 emissions from wood stoves/inserts were increased by 33.1% based
  on Pitkin County population projections to determine 2015 emissions.
** Fireplace emissions were held at 1997 levels due to a city/county cap
  on new fireplace construction.

    More detailed descriptions of the 1997 attainment year inventory 
and the 2015 projected inventory are documented in the maintenance plan 
in chapter 3, section B and in the Colorado technical support 
documentation. Colorado's submittal contains detailed emission 
inventory information that was prepared in accordance with EPA emission 
inventory guidance.\1\ Following our review, we have determined that 
Colorado prepared an adequate attainment inventory for the area.
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    \1\ EPA's current guidance on the preparation of PM10 
emission inventories includes, ``PM10 Emission Inventory 
Requirements,'' September 1994, ``Emission Inventory Improvement 
Program Technical Report Series, Volumes I-VII,'' July 1997 and 
September 1999, ``Revised 1999 National Emission Inventory 
Preparation Plan,'' February 2001.
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b. Maintenance Demonstration
    A State may generally demonstrate maintenance of the NAAQS by 
either showing that future emissions of a pollutant or its precursors 
will not exceed the level of the attainment inventory, or by modeling 
to show that the future mix of sources and emission rates will not 
cause a violation of the NAAQS. Colorado chose the modeling approach 
for the Aspen area.
    The maintenance demonstration for the Aspen area uses the chemical 
mass balance (CMB) roll-forward methodology, which is the same level of 
modeling used in the original attainment demonstration for the moderate 
PM10 SIP for this area. The CMB receptor model data are used 
to identify the sources of emissions that influence PM10 
concentrations in the area. Colorado used the attainment inventories to 
further refine the CMB source identification and then apportion the 
design day concentration. The design day concentration was determined 
using EPA's ``Table look-up'' method. Based on the number of samples 
collected during a three year period from 1996-1998 \2\ (1005 samples), 
the third highest concentration measured during that period is used as 
the design value. Because the third highest concentration measured 
during that period occurred outside of the traditional late winter/
early spring high pollution season, the second highest concentration of 
89 [mu]g/m\3\ was selected as the design value for this redesignation 
request and maintenance plan. Colorado prepared a maintenance inventory 
for the year 2015 and rolled forward the design day concentration based 
on the changes that occurred in the emission inventory from the 
attainment year to the maintenance year. Based on this process, the 
Aspen 2015 maintenance concentration is 130 [mu]g/m\3\. Since these 
2015 projections for Aspen are below the 24-hour PM10 NAAQS 
of 150 [mu]g/m\3\, maintenance is demonstrated.
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    \2\ Colorado used years 1996-1998 instead of 1998-2000 to 
develop the design value because there were data completeness issues 
with their Hi-vol data in 1999 and 2000. Using the Hi-vol data from 
1996-1998 to calculate the design value resulted in the highest 
design value for developing the maintenance plan, and the higher the 
design value, the higher the predicted concentration in the 
maintenance year. In other words, the State's approach was 
conservative. Use of TEOM data alone would have resulted in a lower 
design value, and thus, a lower predicted concentration in the 
maintenance year. Although the TEOM monitor recorded a value of 109 
[mu]g/m\3\ in 1999--a higher value than the three highest Hi-vol 
values in 1996-1998--the use of the 1999 TEOM data would not have 
altered the design value. This is because the high three values from 
both monitors would have fallen within the high pollution season, 
and the 3rd high--89 [mu]g/m\3\--would've been the appropriate 
design value. Colorado used the TEOM monitoring method for data 
collected from 1998-2000 to demonstrate attainment because to 
demonstrate attainment, the latest 3 years of data must be used, and 
the TEOM is an equivalent monitoring method.
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    Although EPA would normally insist on some interim year projections 
between the attainment year and 2015, we have no reason to believe that 
total emissions will be greater than the 2015 projections in any of the 
interim years. Colorado applied simple, environmentally conservative, 
growth rates to all source categories. Thus, total emissions in all 
years before 2015 should be less than 2015 total emissions and no 
interim year projections are required.
    Since no violations of the annual PM10 NAAQS have ever 
occurred in Aspen and since the maintenance demonstration clearly shows 
maintenance of the 24-hour PM10 NAAQS in this area through 
the year 2015, it is reasonable and adequate to assume that protection 
of the 24-hour standard will be sufficient to protect the annual 
standard as well. Thus, EPA believes Colorado has adequately 
demonstrated that the Aspen area will maintain the PM10 
NAAQS for at least the next ten years.
i. Control Strategy
    According to the Calcagni memorandum, any assumptions concerning 
emission rates must reflect permanent, enforceable measures. A State 
can't take credit in the maintenance demonstration for reductions 
unless there are regulations in place requiring those reductions or the 
reductions are otherwise shown to be permanent. States are expected to 
maintain implemented control strategies despite redesignation to 
attainment, unless such measures are shown to be unnecessary for 
maintenance or are replaced with measures that achieve equivalent 
reductions. In preparing the Aspen PM10 maintenance plan, 
Colorado has chosen to retain the street sand specifications, street 
sweeping requirements, paid parking provisions, and woodburning and 
restaurant emissions requirements previously included in the SIP, with 
some minor revisions which are explained in more detail below.
    Colorado is making minor revisions to the materials applicability 
section (III.C.1.a and III.C.2.a, ``Applicability'') of the street 
sanding and street sweeping requirements (contained in the State 
Implementation Plan--Specific Regulations for Nonattainment--
Attainment/Maintenance Areas (Local Areas). These minor revisions 
delete language specific to salt and de-icing material making the 
language consistent with the SIP's federally approved definition of 
``Street Sanding Materials'' which excludes salt and other de-icing 
chemicals. Since these changes do not change the enforceability of the 
street sanding or street sweeping control measures and make the 
language consistent with the SIP's federally

[[Page 26216]]

approved definition, we are approving the changes.
    Colorado also submitted revisions to their SIP--Specific 
Regulations that change the reporting requirements for street sanding 
materials, street sweeping, and the implementation section for local 
control strategies in Aspen to recordkeeping requirements only and 
delete the reporting requirements for Division Audit Authority and for 
paid parking. These changes require users to retain records for 2 
years. Users are no longer required to submit monthly and annual 
reports to the State. Since these changes in reporting requirements do 
not change the enforceability of the street sanding control measure, 
street sweeping control measure, paid parking control measure, or the 
implementation of local control strategies in Aspen, we are approving 
the changes.
    Colorado also submitted revisions to section III.C.4 of the SIP--
Specific Regulations. The City of Aspen and Pitkin County adopted local 
ordinances in the late 1980's and early 1990's that limit the number of 
woodburning devices in new construction in the Aspen area. These 
ordinances were included in State regulations in 1993 (section III.C.4 
of the State Implementation Plan--Specific Regulations for 
Nonattainment--Attainment/Maintenance Areas (Local Areas)). EPA 
approved section III.C.4 in 1994. Colorado's changes to section III.C.4 
allow the City and the County to revise the ordinances to allow greater 
use of natural gas devices. Since the use of such devices will not 
increase primary PM10 emissions, we are approving the 
changes.
    In addition to the revised control measures, there are also certain 
control measures which are being removed from the control strategy with 
this maintenance plan. This is acceptable under the Calcagni Memorandum 
as long as the area can still demonstrate maintenance of the 
PM10 standard in its projections. Through this 
redesignation, Colorado is requesting removal of specific control 
measures that were previously approved in the Aspen PM10 
SIP. The control measures being removed are expansion of the bus fleet 
by 14 buses, establishment of a 400 space Park'n Ride lot and a 250 
space intercept parking lot, establishment of intercept lot and 
crosstown shuttle services, and establishment of a bus priority lane 
(which was removed from service shortly after implementation because of 
the severe traffic congestion that resulted from converting a driving 
lane into the bus lane). The vehicle miles traveled (VMT) reduction 
credits that were assigned to these measures in the 1994 nonattainment 
SIP Element were used to determine VMT increases in 2015 for all roads 
in order to account for the potential for emissions increases due to 
the elimination of these measures. In accordance with section 175A(d) 
of the CAA, these transit control measures are being retained as 
possible contingency measures that could be re-implemented should the 
Aspen area violate the PM10 NAAQS requirements.
    Colorado is also eliminating a voluntary woodburning curtailment 
program. The voluntary woodburning curtailment program was not 
implemented because forecasts of high pollution events were never 
issued by the Air Pollution Control Division due to low PM10 
levels. However, the program is being retained as a potential 
contingency measure to bring the Aspen area back into compliance with 
the PM10 NAAQS should a violation occur. Colorado is also 
eliminating the President's Day event strategies program of maximized 
sweeping and driving reduction efforts, which were adopted in 1993. 
These programs did not receive emission reduction credits and were 
sporadically implemented.
    Although there are no stationary sources located in the Aspen 
attainment/maintenance area, the State's comprehensive permit rules 
will limit emissions from any new source that may, in the future, 
locate in the area. These rules include: (1) Regulation No. 3, ``Air 
Pollution Emission Notices, Construction Permits and Fees, Operating 
Permits, and Including the Prevention of Significant Deterioration,'' 
(2) the ``Common Provisions'' regulation, and (3) Regulation No. 6, 
``Standards for Performance for New Stationary Sources.'' The Common 
Provisions, and Part A and B of Regulation No. 3 are already included 
in the approved SIP. Regulation No. 6 implements the federal standards 
of performance for new stationary sources. This reference to Regulation 
No. 6 shall not be construed to mean that this regulation is included 
in the SIP. Once this redesignation request and maintenance plan is 
approved by the EPA, the prevention of significant deterioration (PSD) 
permitting requirements become effective.
    In addition to the State and local control measures mentioned 
above, the Federal Motor Vehicle Emission Control Program remains in 
effect and will continue to reduce PM10 emissions in Aspen 
as older, higher-emitting diesel vehicles are replaced with newer 
vehicles that meet tighter emission standards.
c. Monitoring Network
    Once a nonattainment area has been redesignated to attainment, the 
State must continue to operate an appropriate air quality monitoring 
network, in accordance with 40 CFR part 58, to verify the attainment 
status of the area. The maintenance plan should contain provisions for 
continued operation of air quality monitors that will provide such 
verification. Colorado operates one PM10 monitoring site in 
the Aspen area. We approve this site annually, and any future change 
would require discussion with, and approval from, us. In their November 
9, 2001, submittal, Colorado committed to continue to operate this 
PM10 monitoring station in Aspen, in accordance with 40 CFR 
part 58. Detailed information regarding the State's monitoring efforts 
and historical monitoring data can be found in chapter 2 of the 
``PM10 Redesignation Request and Maintenance Plan for the 
Aspen Area.''
d. Verification of Continued Attainment
    A State's maintenance plan submittal should indicate how it will 
track the progress of the maintenance plan. This is necessary due to 
the fact that emission projections made for the maintenance 
demonstration depend on assumptions of point and area source growth. 
Colorado commits to operate the Aspen PM10 monitoring 
network and analyze the PM10 concentrations in accordance 
with 40 CFR part 58 to verify continued maintenance of the 
PM10 NAAQS. In addition, Colorado commits to track the 
progress of the Aspen maintenance plan through a periodic review (every 
three years) of the assumptions made in the emissions inventories to 
verify continued maintenance of the PM10 NAAQS in the Aspen 
area. EPA relies on these commitments in approving the Aspen 
maintenance plan.
e. Contingency Plan
    Section 175A(d) of the CAA requires that a maintenance plan also 
include contingency provisions, as necessary, to promptly correct any 
violation of the NAAQS that occurs after redesignation of the area. For 
the purposes of section 175A, a State is not required to have fully 
adopted contingency measures that will take effect without further 
action by the State in order for the maintenance plan to be approved. 
However, the contingency plan is an enforceable part of the SIP and 
should ensure that contingency measures are adopted expeditiously when 
a violation of the NAAQS has occurred in a redesignated area. The plan 
should clearly identify

[[Page 26217]]

the measures to be adopted, a schedule and procedure for adoption and 
implementation, and a specific time limit for action by the State. The 
State should also identify the specific indicators, or triggers, which 
will be used to determine when the contingency plan will be 
implemented.
    Chapter 3, section H, contains the Aspen PM10 
contingency plan. Exceedances trigger one level of response and 
violations trigger another. If there's an exceedance, APCD and local 
government staff will develop appropriate contingency measures intended 
to prevent or correct a violation of the PM10 standard. APCD 
and local government staff will consider relevant information, 
including information about historical exceedances, meteorological 
data, the most recent estimates of growth and emissions, and whether 
the exceedance might be attributed to an exceptional event. The 
maintenance plan indicates that the State will generally notify EPA and 
local governments in the Aspen area within 30 days of the exceedance, 
but in no event later than 45 days. The process for exceedances will be 
completed within six months of the exceedance notification.
    If a violation of the PM10 NAAQS has occurred, a public 
hearing process at the State and local level will begin. If the Air 
Quality Control Commission (AQCC) agrees that the implementation of 
local measures will prevent further exceedances or violations, the AQCC 
may endorse or approve of the local measures without adopting State 
requirements. If, however, the AQCC finds locally adopted contingency 
measures to be inadequate, the AQCC will adopt State enforceable 
measures as deemed necessary to prevent additional exceedances or 
violations. Contingency measures will be adopted and fully implemented 
within one year of the PM10 NAAQS violation. Any State-
enforceable measures will become part of the next revised maintenance 
plan, submitted to us for approval.
    The maintenance plan specifies the following as potential 
contingency measures for the Aspen area: Increased street sweeping; 
road paving requirements; more stringent street sand specifications; 
voluntary or mandatory woodburning curtailment or bans on all 
woodburning; expanded mandatory use of alternative de-icers; re-
establishing nonattainment new source review permitting requirements 
for stationary sources; \3\ transportation control measures designed to 
reduce vehicle miles traveled; re-implementing the following measures 
(but only if they are not being implemented at the time the contingency 
measures are triggered): expansion of the bus fleet by 14 buses, 
establishment of 400 Park `n Ride lot spaces and a 250 space intercept 
parking lot, and establishment of intercept lot and cross-town shuttle 
services; or other measures as deemed appropriate, considering various 
factors.
---------------------------------------------------------------------------

    \3\ The maintenance plan refers to ``Re-establishing new source 
review permitting requirements for stastionary soruces.'' Given that 
PSD permitting requirements will apply to the area after the 
effective date of this action, we interpret the maintenance plan's 
reference to mean ``nonattainment new source review.''
---------------------------------------------------------------------------

f. Subsequent Maintenance Plan Revisions
    In accordance with section 175A(b) of the CAA, the State of 
Colorado is required to submit a revision to the maintenance plan eight 
years after the redesignation of the Aspen area to attainment for 
PM10. This revision is to provide for maintenance of the 
NAAQS for an additional 10 years following the first ten year period. 
Colorado commits, in the Aspen redesignation request, to submit a 
revised maintenance plan to EPA eight years after the approval of the 
redesignation request and maintenance plan.
v. Meeting Applicable Requirements of Section 110 and Part D of the CAA
    In order for an area to be redesignated to attainment, section 
107(d)(3)(E) requires that it must have met all applicable requirements 
of section 110 and part D of the CAA. We interpret this to mean that, 
for a redesignation request to be approved, the State must have met all 
requirements that applied to the subject area prior to, or at the time 
of, submitting a complete redesignation request. In our evaluation of a 
redesignation request, we don't need to consider other requirements of 
the CAA that became due after the date of the submission of a complete 
redesignation request.
a. Section 110 Requirements
    Section 110(a)(2) contains general requirements for nonattainment 
plans. These requirements were met for Aspen with Colorado's January 
15, 1992, submittal and revisions submitted on March 17, 1993, and 
December 9, 1993. EPA fully approved the Aspen PM10 SIP on 
September 14, 1994 (59 FR 47088). Additional revisions were submitted 
by the State on March 13, 1995, and were approved by EPA on December 
17, 1997 (62 FR 66007).
b. Part D Requirements
    Before a PM10 nonattainment area may be redesignated to 
attainment, the State must have fulfilled the applicable requirements 
of part D. Subpart 1 of part D establishes the general requirements 
applicable to all nonattainment areas, subpart 4 of part D establishes 
specific requirements applicable to PM10 nonattainment 
areas.
    The requirements of sections 172(c) and 189(a) regarding attainment 
of the PM10 NAAQS, and the requirements of section 172(c) 
regarding reasonable further progress, imposition of Reasonably 
Available Control Measures (RACM), the adoption of contingency 
measures, and the submission of an emission inventory, have been 
satisfied through our September 14, 1994 (59 FR 47088), and December 
17, 1997 (62 FR 66007), approvals of the Aspen PM10 SIP.
    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 
EPA's 1996 approval of the Boston carbon monoxide redesignation. (See 
61 FR 2918, January 30, 1996.)
    Although there are no stationary sources currently located in the 
Aspen attainment/maintenance area, once the Aspen area is redesignated 
to attainment, the prevention of significant deterioration (PSD) 
requirements of part C of the CAA will apply. Colorado's PSD 
regulations, which we have previously approved as meeting all 
applicable Federal requirements (See 51 FR 31125, September 2, 1986), 
apply to any area designated as unclassifiable or attainment and, thus, 
will become fully effective in the Aspen area upon redesignation of the 
area to attainment.
c. Have the Transportation Conformity Requirements Been Met?
    Transportation conformity is required by section 176(c) of the CAA. 
Our conformity rule requires that transportation plans, programs and 
projects conform to SIPs and that transportation activities will not 
produce new air quality violations, worsen existing violations, or 
delay timely attainment of the NAAQS. On March 2, 1999, the United 
States Court of Appeals for the District of Columbia Circuit issued a 
decision in Environmental Defense Fund v. the

[[Page 26218]]

Environmental Protection Agency, No. 97-1637, that we must make an 
affirmative determination that the submitted motor vehicle emission 
budgets contained in State Implementation Plans (SIPs) are adequate 
before they are used to determine the conformity of Transportation 
Plans or Transportation Improvement Programs. In response to the court 
decision, we make any submitted SIP revision containing an emission 
budget available for public comment and respond to these comments 
before announcing our adequacy determination. The criteria and process 
by which we determine whether a SIP's motor vehicle emission budgets 
are adequate for conformity purposes are outlined in 40 CFR 
93.118(e)(4) and in the guidance ``Conformity Guidance on 
Implementation of March 2, 1999, Conformity Court Decision,'' dated May 
14, 1999.
    In the Aspen maintenance plan, Colorado established a new mobile 
source emissions budget of 16,244 lbs./day for the year 2015 and 
beyond. This budget is the total of the 2015 mobile source 
PM10 emissions and includes emissions from vehicle exhaust, 
highways, paved arterial and local roads, and gravel roads. EPA's 
approval of 16,244 lbs./day as the budget means that this value must be 
used for conformity determinations for 2015 and beyond.
    EPA sent a letter to the Colorado Air Pollution Control Division 
(APCD) on May 16, 2002 stating that the motor vehicle emissions budget 
in the submitted Aspen PM10 maintenance plan is adequate. 
This finding has also been announced on EPA's conformity Web site: 
http://www.epa.gov/oms/transp/conform/adequacy.htm. We documented our 
adequacy determination for Aspen in the Federal Register on August 20, 
2002 (67 FR 53925). The budgets took effect on September 4, 2002 (15 
days after our announcement in the Federal Register).

d. Did Colorado Follow the Proper Procedures for Adopting This Action?

    The CAA requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission. 
Section 110(a)(2) of the CAA provides that each implementation plan 
submitted by a State must be adopted after reasonable notice and public 
hearing. Section 110(l) of the CAA similarly provides that each 
revision to an implementation plan submitted by a State under the CAA 
must be adopted by such State after reasonable notice and public 
hearing.
    Colorado held a public hearing for the proposed rule changes on 
January 11, 2001. The rulemaking was adopted by the Air Pollution 
Control Division (APCD) directly after the January 11, 2001, hearing 
and was formally submitted to EPA by the Governor on November 9, 2001. 
We have evaluated the Governor's submittal and have determined that 
Colorado met the requirements for reasonable notice and public hearing 
under section 110(a)(2) of the CAA.

III. Background

    To implement our 1987 revisions to the PM10 NAAQS, on 
August 7, 1987 (52 FR 29383), we categorized areas of the nation into 
three groups based on the likelihood that protection of the 
PM10 NAAQS would require revisions of the existing SIP. We 
identified Aspen as a PM10 ``Group I'' area of concern, 
i.e., areas with a strong likelihood of violating the PM10 
NAAQS and requiring a substantial SIP revision. The Aspen area was 
among several Group I PM10 areas, all of which were 
designated and classified as moderate PM10 nonattainment 
areas by operation of law upon enactment of the Clean Air Act 
Amendments of 1990 (November 15, 1990). See 56 FR 56694 at 56705-706 
(November 6, 1991).
    By November 15, 1991, States containing initial moderate 
PM10 nonattainment areas were required to submit most 
elements of their PM10 SIPs. (See sections 172(c), 188, and 
189 of the CAA.) Some provisions, such as PM10 contingency 
measures required by section 172(c)(9) of the CAA and nonattainment new 
source review (NSR) provisions, were due at later dates. In order for a 
nonattainment area to be redesignated to attainment, the above 
mentioned conditions in section 107(d)(3)(E) of the CAA must be met. We 
fully approved the PM10 SIP for Aspen on September 14, 1994 
(59 FR 47088).
    EPA promulgated new standards for PM10 on September 18, 
1997. Areas were to be designated under the new PM10 
standard by July 2000. On May 14, 1999, the United States Court of 
Appeals for the DC Circuit in American Trucking Associations, Inc., et 
al. v. United States Environmental Protection Agency vacated the 1997 
PM10 standard. Because of the Court ruling, we are 
continuing to implement the pre-existing PM10 standard, and 
are therefore approving redesignations to qualified PM10 
nonattainment areas. On November 9, 2001, the Governor of Colorado 
submitted a request to redesignate the Aspen moderate PM10 
nonattainment area to attainment (for the 1987 PM10 NAAQS) 
and submitted a maintenance plan for the area.

IV. Consideration of CAA Section 110(l)

    Section 110(l) of the CAA states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of a NAAQS or any other applicable requirement of 
the CAA. As stated above, the Aspen area has shown continuous 
attainment of the PM10 NAAQS and has met the applicable 
Federal requirements for redesignation to attainment. The maintenance 
plan and associated SIP revisions will not interfere with attainment, 
reasonable further progress, or any other applicable requirement of the 
CAA.

V. Statutory and Executive Order Reviews

    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

[[Page 26219]]

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 July 14, 2003. 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

    Air pollution control.

    Dated: April 18, 2003.
Robert E. Roberts,
Regional Administrator, Region 8.

0
40 CFR parts 52 and 81, chapter I, title 40 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. Section 52.320 is amended by adding paragraph (c)(97) to read as 
follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (97) On November 9, 2001, the State of Colorado submitted a 
maintenance plan for the Aspen PM10 nonattainment area and 
requested that this 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.
    (i) Incorporation by reference.
    (A) Colorado Air Pollution Control Division, ``State Implementation 
Plan--Specific Regulations for Nonattainment--Attainment/Maintenance 
Areas (Local Areas),'' 5 CCR 1001-20, revisions adopted January 11, 
2001, effective February 28, 2001 as follows: Section III, which is 
titled ``Aspen/Pitkin County PM10 Attainment/Maintenance 
Area,'' and which supersedes and replaces all prior versions of Section 
III.

0
3. Section 52.332 is amended by adding paragraph (m) to read as 
follows:


Sec.  52.332  Control strategy: Particulate matter.

* * * * *

    (m) On November 9, 2001, the State of Colorado submitted a 
maintenance plan for the Aspen PM10 nonattainment area and 
requested that this 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]

0
1. The authority citation for part 81 continues to read as follows:

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

0
2. In section 81.306, the table entitled ``Colorado-PM-10'' is amended 
by revising the entries under Pitkin County for the ``Aspen/Pitkin 
County Area'' to read as follows:


Sec.  81.306  Colorado.

* * * * *

[[Page 26220]]



                                                 Colorado--PM-10
----------------------------------------------------------------------------------------------------------------
                                                    Designation                         Classification
           Designated area            --------------------------------------------------------------------------
                                           Date               Type                Date              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Pitkin County:
    Aspen/Pitkin County Area--The          7/14/03  Attainment.
     area encompassed by the
     following Parcel ID numbers, as
     defined by the Pitkin County
     Planning Department: 2337-29,
     2737-28, 2737-21, 2737-20, 2737-
     19, 2737-18, 2737-17, 2737-08,
     2737-07, 2737-06, 2735-22, 2735-
     15, 2735-14, 2735-13, 2735-12,
     2735-11, 2735-10, 2735-03, 2735-
     02, 2735-01, 2641-31, 2643-36,
     2643-35, 2643-34, 2643-27, 2643-
     26.
 
                                                  * * * * * * *
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* * * * *
[FR Doc. 03-12026 Filed 5-14-03; 8:45 am]
BILLING CODE 6560-50-P