[Federal Register Volume 62, Number 246 (Tuesday, December 23, 1997)]
[Rules and Regulations]
[Pages 67006-67009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33320]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-44-1-6866(a); FRL-5630-1]


Clean Air Act Approval and Promulgation of State Implementation 
Plan for Colorado; Carbon Monoxide Contingency Measures for Colorado 
Springs and Fort Collins

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the State implementation plan (SIP) revisions 
submitted by the State of Colorado with a letter dated February 18, 
1994. This submittal addresses the Federal Clean Air Act requirement to 
submit contingency measures for carbon monoxide (CO) for the Colorado 
Springs and Fort Collins areas designated as nonattainment for the CO 
National Ambient Air Quality Standards (NAAQS). The rationale for the 
approval is set forth in this document; additional information is 
available at the address indicated below.


[[Page 67007]]


DATES: This action is effective on February 23, 1998 unless adverse or 
critical comments are received by January 22, 1998. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Comments must be submitted to Jeff Houk at the Region VIII 
address. Copies of the State's submittal and other information are 
available for inspection during normal business hours at the following 
locations: Environmental Protection Agency, Region VIII, Air Programs, 
999 18th Street, Third Floor, South Terrace, Denver, Colorado 80202-
2405; and Colorado Air Pollution Control Division, 4300 Cherry Creek 
Dr. South, Denver, Colorado 80222-1530.

FOR FURTHER INFORMATION CONTACT: Jeff Houk, State Program Support Unit, 
EPA Region VIII, telephone (303) 312-6446.

SUPPLEMENTARY INFORMATION:

I. Background

    The Colorado Springs and Fort Collins, Colorado areas were 
designated nonattainment for CO and classified as moderate under 
Sections 107(d)(4)(A) and 186(a) of the Clean Air Act, upon enactment 
of the Clean Air Act Amendments of 1990.<SUP>1</SUP> See 56 FR 56694 
(Nov. 6, 1991); 40 CFR 81.306 (Colorado Springs Area and Fort Collins 
Area). The air quality planning requirements for moderate CO 
nonattainment areas are set out in Subparts 1 and 3 of Part D, Title I 
of the Act.<SUP>2</SUP> The EPA has issued a ``General Preamble'' 
describing EPA's preliminary views on how EPA intends to review SIPs 
and SIP revisions submitted under Title I of the Act, including those 
State submittals containing moderate CO nonattainment area SIP 
requirements [see generally 57 FR 13498 (April 16, 1992) and 57 FR 
18070 (April 28, 1992)]. Because EPA is describing its interpretations 
here only in broad terms, the reader should refer to the General 
Preamble for a more detailed discussion of the interpretations of Title 
I advanced in this action and the supporting rationale.
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    \1\ The 1990 Amendments to the Clean Air Act made significant 
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399. 
References herein are to the Clean Air Act, as amended (``the 
Act''). The Clean Air Act is codified, as amended, in the U.S. Code 
at 42 U.S.C. Sections 7401, et seq.
    \2\ Subpart 1 contains provisions applicable to nonattainment 
areas generally and Subpart 3 contains provisions specifically 
applicable to CO nonattainment areas. At times, Subpart 1 and 
Subpart 3 overlap or conflict. EPA has attempted to clarify the 
relationship among these provisions in the ``General Preamble'' and, 
as appropriate, in today's document and supporting information.
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    Moderate CO areas with a design value of less than or equal to 12.7 
parts per million (including Colorado Springs and Fort Collins) are not 
required by the Act to submit a SIP demonstrating attainment of the 
NAAQS. Rather, these areas are required to submit certain SIP elements, 
including an oxygenated fuels program, an emissions inventory, and 
contingency measures.
    Those States containing moderate CO nonattainment areas such as 
Colorado Springs and Fort Collins were required to submit contingency 
measures by November 15, 1993 (see 57 FR 13532). These measures must 
become effective, without further action by the State or EPA, upon a 
determination by EPA that the area has failed to achieve reasonable 
further progress (RFP) or to attain the CO National Ambient Air Quality 
Standards (NAAQS) by the applicable statutory deadline (December 31, 
1995). See Section 172(c)(9) and 57 FR 13532-13533.

II. This Action

    Section 110(k) of the Act sets out provisions governing EPA's 
review of SIP submittals (see 57 FR 13565-13566). The Governor of 
Colorado submitted revisions to the SIP for Colorado Springs and Fort 
Collins with a letter dated February 18, 1994. The revisions address 
contingency measures for CO. EPA is now approving the Colorado Springs 
and Fort Collins contingency measures as adopted by the State of 
Colorado on November 12, 1993 and submitted to EPA by Colorado's 
Governor on February 18, 1994.

A. Analysis of State Submission

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing.<SUP>3</SUP> Section 110(l) of the Act similarly 
provides that each revision to an implementation plan submitted by a 
State under the Act must be adopted by such State after reasonable 
notice and public hearing.
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    \3\ Also Section 172(c)(7) of the Act requires that plan 
provisions for nonattainment areas meet the applicable provisions of 
Section 110(a)(2).
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    EPA also must determine whether a submittal is complete and 
therefore warrants further EPA review and action (see Section 110(k)(1) 
and 57 FR 13565). The EPA's completeness criteria for SIP submittals 
are set out at 40 CFR Part 51, Appendix V. The EPA attempts to make 
completeness determinations within 60 days of receiving a submission. 
However, a submittal is deemed complete by operation of law if a 
completeness determination is not made by EPA six months after receipt 
of the submission.
    To entertain public comment, the State of Colorado, after providing 
adequate notice, held a public hearing on November 12, 1993 to address 
the Colorado Springs and Fort Collins contingency measures. Following 
the public hearing, the Colorado Springs and Fort Collins contingency 
measures were adopted by the State.
    The contingency measures were submitted as a proposed revision to 
the SIP by the Governor with a letter dated February 18, 1994. The 
submittal was received on February 22, 1994, and was deemed complete by 
operation of law on August 22, 1994.

B. Contingency Measures

    The Clean Air Act requires States containing certain CO 
nonattainment areas to adopt contingency measures that will take effect 
without further action by the State or EPA upon a determination by EPA 
that an area failed to make reasonable further progress or to timely 
attain the applicable NAAQS, as described in section 172(c)(9). See 
generally 57 FR 13532-13533. Pursuant to section 172(b), the 
Administrator has established a schedule providing that states 
containing moderate CO nonattainment areas with a design value of less 
than or equal to 12.7 parts per million (ppm) shall submit SIP 
revisions containing contingency measures no later than November 15, 
1993. (See 57 FR 13532.) (``Not Classified'' areas, that is, areas that 
had a design value less than the 9.0 ppm CO NAAQS at the time of 
designation, are not required to submit contingency measures.)
    EPA guidance (``Technical Support Document to Aid States with the 
Development of Carbon Monoxide State Implementation Plans,'' EPA-452/R-
92-003, July 1992) recommends that implementation of the contingency 
measures provide vehicle miles travelled (VMT) reductions or emission 
reductions sufficient to counteract the effect of one year's growth in 
VMT. However, the Act does not specify how many contingency measures 
are needed or the magnitude of emissions reductions that must be 
provided by these measures. EPA believes that contingency measures must 
provide for continued progress toward the attainment goal. This would 
be the minimum requirement and is consistent with the statutory scheme.
    Section 172(c)(9) of the Act specifies that contingency measures 
shall ``take effect * * * without further action by the State, or the 
[EPA] Administrator.'' EPA has interpreted this requirement (in

[[Page 67008]]

the General Preamble at 57 FR 13533) to mean that no further rulemaking 
activities by the State or EPA would be needed to implement the 
contingency measures. In general, EPA expects all actions needed to 
affect full implementation of CO contingency measures to occur within 
12 months after EPA notifies the State of its failure to attain the 
standard or make RFP.
    EPA recognizes that certain actions, such as notification of 
sources, modification of permits, etc., may be needed before some 
measures could be implemented. However, States must show that their 
contingency measures can be implemented with minimal further 
administrative action on their part and with no additional rulemaking 
action such as public hearing or legislative review.
    The CO contingency measures for Colorado Springs and Fort Collins 
were developed by the Air Pollution Control Division (APCD) of the 
Colorado Department of Health (CDH), now the Colorado Department of 
Public Health and Environment (CDPHE). After a public hearing on 
November 12, 1993, the Colorado Air Quality Control Commission (AQCC) 
adopted the measures. The Governor submitted the contingency measures 
to EPA with a letter dated February 18, 1994.
    Within 12 months of notification by EPA that either the Colorado 
Springs or Fort Collins CO nonattainment area has failed to attain the 
CO NAAQS by December 31, 1995, the APCD will implement the contingency 
measure, the Enhanced Vehicle Inspection and Maintenance (I/M) Program, 
codified in Colorado Regulation No. 11. The enhanced I/M program 
produces substantial additional emission reductions over the ``Basic'' 
I/M program currently in operation in the Colorado Springs and Fort 
Collins areas. The enhanced I/M program is currently in operation in 
the Denver/Boulder and Longmont CO nonattainment areas. EPA 
conditionally approved the Colorado Enhanced I/M program in the Federal 
Register on November 8, 1994 (59 FR 55584).
    The program would apply in those portions of El Paso County 
(Colorado Springs) and Larimar County (Fort Collins) in which the Basic 
I/M program is currently in operation. These areas, known as the ``AIR 
Program Area'' within each County, are described in the authorizing 
legislation for the enhanced I/M program.

C. Effectiveness of the Contingency Measures

    In Colorado Springs, emissions from one year's growth in VMT were 
estimated by the Pikes Peak Area Council of Governments (the 
Metropolitan Planning Organization for the area) at 14.4 tons per day. 
Reductions from the enhanced I/M program were estimated at 
approximately 34 tons per day. EPA's emissions reduction requirements 
are adequately met with the implementation of this contingency measure 
for Colorado Springs.
    In Fort Collins, APCD estimates that mobile source emissions would 
be lowered by 13.95% with the implementation of the enhanced I/M 
program. Since the estimated one year growth of VMT is 3% in Fort 
Collins, and the CO emissions inventory for this area reports that 
approximately 80% of the CO emissions in the nonattainment area are 
attributable to mobile sources, the reductions from the enhanced I/M 
program provide more than a sufficient amount of reduction as a 
contingency measure. Therefore, EPA's emissions reduction requirements 
are adequately met with the implementation of this contingency measure 
for Fort Collins.

D. Enforceability Issues

    All measures and other elements in the SIP must be enforceable by 
the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR 
13556). The EPA criteria addressing the enforceability of SIPs and SIP 
revisions were stated in a September 23, 1987 memorandum (with 
attachments) from J. Craig Potter, Assistant Administrator for Air and 
Radiation, et al. (see 57 FR 13541). State implementation plan 
provisions also must contain a program to provide for enforcement of 
control measures and other elements in the SIP [see Section 
110(a)(2)(C)].
    The specific measures contained in the Colorado Springs and Fort 
Collins contingency plan are addressed above in Section II.B. 
Regulation No. 11, which implements this contingency measure, is 
legally enforceable by APCD. There are civil penalties, which increase 
with each violation, for noncompliance with the regulation, as well as 
a prohibition on the registration of any vehicle which has not complied 
with the enhanced I/M program and substantial penalties for 
nonregistration of vehicles. The enforceability of Regulation No. 11 is 
addressed in more detail in EPA's November 8, 1994 Federal Register 
document conditionally approving the program. The State of Colorado has 
a program that will ensure that the contingency measures are adequately 
enforced. EPA believes that the State's existing air enforcement 
program will be adequate.

III. Final Action

    EPA is approving Colorado's SIP revisions, submitted by the 
Governor with a letter dated February 18, 1994, for the Colorado 
Springs and Fort Collins, Colorado nonattainment areas. This submittal 
addressed CO contingency measure plans that were due on November 15, 
1993. These plans involve the implementation of the Colorado Enhanced 
Vehicle I/M Program in the Colorado Springs and Fort Collins CO 
nonattainment areas in the event that EPA makes a determination that 
either area has failed to attain the CO NAAQS by the statutory 
attainment date of December 31, 1995. A copy of the State's SIP 
revision is available at the address listed in the Addresses section 
above.
    The EPA is publishing the action on the contingency measure 
submittal without prior proposal because the Agency views this as a 
noncontroversial revision and anticipates no adverse comments. However, 
in a separate document in this Federal Register publication, the EPA is 
proposing to approve the contingency measure SIP revision should 
adverse or critical comments be filed. Thus, under the procedures 
established in the May 10, 1994 Federal Register, today's direct final 
action will be effective February 23, 1998 unless, by January 22, 1998, 
adverse or critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective February 23, 1998.
    The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the CAA. The EPA 
has determined that this action conforms with those requirements.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. Each request for revision to a SIP shall be considered separately 
in light of specific technical, economic, and environmental factors and 
in relation to relevant statutory and regulatory requirements.

[[Page 67009]]

IV. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., the 
EPA must prepare a regulatory flexibility analysis assessing the impact 
of any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations that are 
less than 50,000.
    SIP revision approvals under Section 110 and Subchapter I, Part D, 
of the CAA do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the EPA 
certifies that this proposed rule would not have a significant impact 
on any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAA, preparation of a regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of State actions. The CAA forbids the EPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v. 
U.S.E.P.A., 427 U.S. 246, 256-266 (S. Ct. 1976); 42 U.S.C. section 
7410(a)(2).

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated today does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, 42 U.S.C. 7607(b), petitions 
for judicial review of this action must be filed in the United States 
Court of Appeals for the appropriate circuit by February 23, 1998. 
Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this rule for the purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Incorporation by reference, 
Intergovernmental relations, Motor vehicle pollution, Carbon monoxide, 
Reporting and recordkeeping requirements.

    Dated: September 28, 1995.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
    Editorial note: This document was received at the Office of the 
Federal Register December 17, 1997.

    Part 52, Chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

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

Subpart G--Colorado

    2. Section 52.320 is amended by adding paragraph (c)(71) to read as 
follows:


Sec. 52.320  Identification of plan.

* * * * *
    (c)* * *
    (71) The Governor of Colorado submitted carbon monoxide contingency 
measures for Colorado Springs and Fort Collins with a letter dated 
February 18, 1994. This submittal was intended to satisfy the 
requirements of section 172(c)(9) of the Clean Air Act for contingency 
measures which were due on November 15, 1993.
    (i) Incorporation by reference.
    (A) Colorado Air Quality Control Commission Nonattainment Areas 
regulation, 5 CCR 1001-20, Section VI, City of Fort Collins 
Nonattainment Area, and Section VII, Colorado Springs Nonattainment 
Area, adopted on November 12, 1993, effective on December 30, 1993.
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[FR Doc. 97-33320 Filed 12-22-97; 8:45 am]
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