[Federal Register: May 15, 2003 (Volume 68, Number 94)]
[Rules and Regulations]
[Page 26212-26220]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my03-11]
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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.''
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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