10690 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

and transport gas from all potential

sources of supply. The standardization

of business practices conforms to the

Commission’s plan for efficient

information collection, communication,

and management within the natural gas

industry. The Commission has assured

itself, by means of its internal review,

that there is specific, objective support

for the burden estimates associated with

the information requirements.

The information required in this Final

Rule will be reported directly to the

industry users and later be subject to

audit by the Commission. The

implementation of these data

requirements will help the Commission

carry out its responsibilities under the

Natural Gas Act and coincide with the

current regulatory environment which

the Commission instituted under Order

No. 636 and the restructuring of the

natural gas industry.

Interested persons may obtain

information on the reporting

requirements by contacting the Federal

Energy Regulatory Commission, 888

First Street NE., Washington, DC 20426

[Attention: Michael Miller, Information

Services Division, 202–208–1415] or the

Office of Management and Budget

[Attention: Desk Officer for the Federal

Energy Regulatory Commission 202–

395–3087].

VII. Effective Date

These regulations are effective April

9, 1997. The Commission has

determined, with the concurrence of the

Administrator of the Office of

Information and Regulatory Affairs of

OMB, that this rule is not a ‘‘major rule’’

as defined in section 351 of the Small

Business Regulatory Enforcement

Fairness Act of 1996.

List of Subjects in 18 CFR Part 284

Continental shelf, Incorporation by

reference, Natural gas, Reporting and

recordkeeping requirements.

By the Commission.

Lois D. Cashell,

Secretary.

In consideration of the foregoing, the

Commission amends Part 284, Chapter I,

Title 18, Code of Federal Regulations, as

set forth below.

PART 284—CERTAIN SALES AND

TRANSPORTATION OF NATURAL GAS

UNDER THE NATURAL GAS POLICY

ACT OF 1978 AND RELATED

AUTHORITIES

1. The authority citation for Part 284

continues to read as follows:

Authority: 15 U.S.C. 717–717w, 3301–

3432; 42 U.S.C. 7101–7532; 43 U.S.C. 1331–

1356.

2. In § 284.10, paragraphs (b)(1)(i)

through (b)(1)(v) are revised to read as

follows:

§ 284.10 Standards for Pipeline Business

Operations and Communications.

* * * * *

(b) * * *

(1) * * *

(i) Nominations Related Standards

(Version 1.1, January 31, 1997), with the

exception of Standard 1.3.32;

(ii) Flowing Gas Related Standards

(Version 1.1, January 31, 1997), with the

exception of Standards 2.3.29 and

2.3.30;

(iii) Invoicing Related Standards

(Version 1.1, January 31, 1997);

(iv) Electronic Delivery Mechanism

Related Standards (Version 1.0, October

24, 1996), with the exception of

Standard 4.3.5; and

(v) Capacity Release Related

Standards (Version 1.1, January 31,

1997).

* * * * *

[FR Doc. 97–5786 Filed 3–7–97; 8:45 am]

BILLING CODE 6717–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[CO–001–0011; CO–001–0012; CO–001–

0013; CO–001–0014; FRL–5692–3]

Clean Air Act Approval and

Promulgation of State Implementation

Plan for Colorado; Carbon Monoxide

Attainment Demonstrations and

Related SIP Elements for Denver and

Longmont; Clean Air Act

Reclassification; Oxygenated Gasoline

Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rulemaking.

SUMMARY: In this document, EPA is

approving the State Implementation

Plan (SIP) revisions submitted by the

State of Colorado for the purpose of

bringing about the attainment of the

national ambient air quality standards

(NAAQS) for carbon monoxide (CO).

The implementation plan revisions were

submitted by the State on July 11 and

13, 1994, September 29, 1995, and

December 22, 1995 to satisfy certain

Federal requirements for an approvable

nonattainment area CO SIP for Denver

and Longmont. This action includes

approval of revisions to Colorado

Regulations 11 (vehicle inspection and

maintenance (I/M)) and 13 (oxygenated

fuels) submitted to satisfy conditions in

the SIP, and further revisions to

Regulation 13 to shorten the effective

period of the oxygenated fuels program.

It also includes reclassification of the

Denver CO nonattainment area from

Moderate to Serious. EPA proposed to

approve the July 1994 and September

1995 SIP submissions and to reclassify

the Denver area to Serious in the

Federal Register on July 9, 1996. EPA

published a supplemental proposal to

approve the December 22, 1995 SIP

submission shortening the oxygenated

fuels program period and to approve the

Denver and Longmont CO SIPs based on

the shortened period on December 6,

1996. The rationale for the final

approvals and reclassification are set

forth in this document. Additional

information is available at the address

indicated below.

EFFECTIVE DATE: This action is effective

on April 9, 1997.

ADDRESSES: Copies of the State’s

submittals 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, 3rd Floor, South Terrace,

Denver, Colorado 80202–2466; and

Colorado Air Pollution Control Division,

4300 Cherry Creek Dr. South, Denver,

Colorado 80222–1530.

FOR FURTHER INFORMATION CONTACT: Jeff

Houk at (303) 312–6446.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning requirements

for CO nonattainment areas are set out

in sections 186–187 of the Clean Air Act

(Act) Amendments of 1990 (CAAA)

which pertain to the classification of CO

nonattainment areas and to the

submission requirements of the SIPs for

these areas, respectively. 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, [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 today’s rulemaking action. In today’s

action on the Denver and Longmont CO

SIPs, EPA is applying its interpretations

taking into consideration the specific

factual issues presented and comments

received from the public.

This Federal Register document

addresses several requirements of the

1990 CAAA which were required to be

submitted no later than November 15,

1992, and which the State did not
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 10691

submit by that date. These requirements

include an attainment demonstration,

contingency measures and, for Denver,

a vehicle miles travelled forecasting and

tracking program and transportation

control measures. EPA made a formal

finding that the State had failed to

submit these SIP revisions in a letter to

Governor Roy Romer dated January 15,

1993. This Federal Register document

also addresses revisions to Regulations

11 and 13, submitted by the State of

Colorado to implement portions of the

control strategy relied upon by the

attainment demonstration.

Section 187(a)(7) required those States

containing CO nonattainment areas with

design values greater than 12.7 parts per

million (ppm) to submit, among other

things, an attainment demonstration by

November 15, 1992, demonstrating that

the plan will provide for attainment by

December 31, 1995 for Moderate CO

nonattainment areas and December 31,

2000 for Serious CO nonattainment

areas. The attainment demonstration

must include a SIP control strategy,

which is also due by November 15,

1992. The SIP control strategy for a

given nonattainment area must be

designed to ensure that the area meets

the specific annual emissions

reductions necessary for reaching

attainment by the deadline. In addition,

section 187(a)(3) requires these areas to

implement contingency measures if any

estimate of actual vehicle miles

travelled (VMT) or any updated VMT

forecast for the area contained in an

annual report for any year prior to

attainment exceeds the number

predicted in the most recent VMT

forecast. Contingency measures are also

triggered by failure to attain the NAAQS

for CO by the attainment deadline.

Contingency measures must be

submitted with the CO SIP by November

15, 1992. Finally, a vehicle miles

travelled forecasting and tracking

program is required by Section

187(a)(2)(A), and transportation control

measures are required for Denver by

Section 187(a)(2)(B). These

requirements are discussed in more

detail in EPA’s July 9, 1996 (61 FR

36004) and December 6, 1996 (61 FR

64647) Federal Register documents

proposing action on the SIP revisions.

Longmont had been designated as

unclassifiable/attainment prior to

passage of the 1990 CAAA. However, a

special monitoring study in 1988–89

recorded an exceedance of the NAAQS

in Longmont. As a result, EPA Region

VIII recommended that the Governor

designate this area nonattainment, and

on March 15, 1991, the Governor

submitted a nonattainment designation

for this area that was later codified by

EPA at 40 CFR Part 81. Longmont was

classified as a Moderate area in 40 CFR

Part 81. Since this area had never had

a SIP, EPA interpreted Section 172 of

the Act to require an attainment

demonstration for Longmont.

Contingency measures under Section

172(c)(9) were also required. On January

15, 1993, EPA made a formal finding

that the State had failed to submit these

SIP revisions for Longmont.

On July 11, 1994 and July 13, 1994,

Governor Roy Romer submitted

comprehensive revisions to the

Colorado SIP. The carbon monoxide SIP

element submittals for Denver and

Longmont addressed the outstanding

CAAA requirements discussed above, as

well as other CAAA mandates.

The State submitted revisions to

Regulations 11 and 13 on September 29,

1995, to implement the I/M and

oxygenated fuels program revisions

committed to in the CO SIP. EPA

proposed approval of these revisions in

its July 9, 1996 Federal Register

document, and is today taking final

action to approve these revisions.

The State submitted additional

revisions to Regulation 13 on December

22, 1995, shortening the effective period

of the oxygenated fuels program. EPA

published a Federal Register document

on December 6, 1996, proposing

approval of these revisions and reproposing approval of the Denver and

Longmont CO SIPs to provide an

opportunity for public comment on the

impact of this revision to Regulation 13

on the CO SIPs. EPA is today taking

final action to approve the revisions to

Regulation 13 that the State submitted

on December 22, 1995.

II. Response to Public Comments

EPA received numerous comments on

its proposed approval of the Denver CO

SIP and the proposed reclassification of

Denver from Moderate to Serious for

CO. No comments were received

specifically regarding the Longmont CO

SIP. EPA received one set of comments

regarding its proposed approval of the

shortening of the effective period of the

oxygenated fuels program. The

comments and EPA’s responses follow.

Extension of the Comment Period

Several parties requested that EPA

extend its comment period on the

proposed approval of the SIP to allow

more time for the preparation and

submission of comments. In response to

these requests, EPA extended the

comment period for an additional 30

days (see 61 FR 43501, August 23,

1996).

Legality of the SIP Submission Under

State Law

Several parties commented that EPA

should return the Denver CO SIP to the

State without action, because it was

submitted to EPA in conflict with the

requirements of State law. These

comments generally concern the nature

of the Air Quality Control Commission’s

(AQCC’s) submission of the SIP to

Legislative Council for review, and the

AQCC’s and the Governor’s response to

Legislative Council’s actions.

EPA’s acceptance of the SIP through

its July 14, 1994 determination of SIP

completeness was based on the June 30,

1994 letter from the State Attorney

General’s Office submitted with the SIP.

This letter certifies that the SIP was

adopted and submitted in compliance

with State law. Specifically, Section 25–

7–133, C.R.S., required the submission

of SIPs ‘‘regarding the regulation of

mobile sources’’ to Legislative Council

for review 45 days prior to submission

to EPA. The CO SIP arguably did not fall

within this criterion, as it did not

include any regulatory content

regarding mobile sources. Revisions to

Regulations 11 and 13 (I/M and

oxygenated fuels programs) to

implement the provisions of the CO SIP

were discussed in the SIP, but were not

adopted or submitted with it. These

revisions were adopted later in 1994 by

the AQCC, received full Legislative

Council review and were submitted to

EPA in September 1995. Nevertheless,

the AQCC chose to submit the CO SIP

to Legislative Council for review even

though it did not contain any mobile

source regulation revisions.

The June 30, 1994 letter from the AG’s

office concedes that the SIP was not

submitted to Legislative Council 45 days

prior to submittal to EPA, but notes that

the Council acted on the SIP at its June

21, 1994 meeting and, in effect, waived

the 45 day requirement. Also, according

to the June 30, 1994 letter, the actions

by Legislative Council at its meeting

were not fully in compliance with State

law:

‘‘The Council may act in one of two

ways: it can return the SIP in its entirety

and it is then deemed approved, or it

can submit it to the General Assembly

(via petition for special session if the

General Assembly is not in

session)* * * The Legislative Council,

on June 21, 1994 took action by motion,

wherein it voted to postpone review of

the CO SIP submission, voted to return

the plan for revisions by the

Commission, and voted to conduct a

final review no later than January 15,

1995. Pursuant to statute, because no

special assembly was called by the
10692 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

Council [the General Assembly was not

in session], the SIP is deemed returned

and approved.’’

EPA finds the State Attorney

General’s Office’s interpretation

reasonable, and thus, EPA accepts that

Office’s conclusion that the SIP was, in

fact, submitted to EPA for action in

compliance with State law.

Oxygenated Fuels Program

Several comments were received with

respect to the oxygenated fuels program.

These comments and EPA’s responses

follow.

(1) The submission violates Section

25–7–105.1, C.R.S., which states that

any regulation that is more stringent

than Federal law shall not constitute

part of a state implementation plan.

Putting aside for the purposes of this

response the question of what EPA’s

role should be with respect to this State

law, EPA does not believe that the 3.1%

oxygenated fuels program is more

stringent than is required under the Act.

First, EPA does not believe section

211(c) of the Act preempts the State

from requiring a 3.1% minimum oxygen

content standard and, thus, does not

believe a finding of necessity is required

under section 211(c)(4)(C) of the Act

(see discussion in response to comment

6 below). Second, the State is relying on

the 3.1% oxygenated fuels program as

one measure to help demonstrate

attainment of the NAAQS for CO, as

required by sections 110(a) and

187(a)(7) of the Act. Without the 3.1%

oxygenated fuels program, the SIP

would be unable to demonstrate

attainment of the NAAQS. Thus, the

3.1% oxygenated fuels program is not

more stringent than the Act requires.

(2) Subsequent to AQCC adoption of

the CO SIP, the AQCC adopted revisions

to Regulation 13 which shortened the

control period during which the

oxygenated fuels program is in effect.

EPA’s approval of the CO SIP does not

address this revision.

Based on this comment, EPA

reproposed approval of the Denver and

Longmont CO SIPs, incorporating the

shortened oxygenated gasoline season,

and also proposed approval of the

revisions to Regulation 13 shortening

the season (see 61 FR 64647, December

6, 1996). EPA is now approving the

shortening of the oxygenated gasoline

season and is approving the Denver and

Longmont CO SIPs based on the

shortened season.

(3) EPA approval of the 3.1%

oxygenated fuels program would be

contrary to Exxon Corp. v. City of New

York, 548 F.2d 1088 (2nd Cir. 1977).

The Exxon v. City of New York

decision was based on pre-1990 CAA

language, EPA regulations that have

since been amended, and in part,

different factual circumstances that bear

no relevance to the situation here.

Moreover, the changes in section

211(c)(4) and the 40 CFR Part 80 fuel

regulations since the Exxon decision

directly modify the provisions that the

court relied on in a way that limits the

scope of preemption of state fuel

controls. Thus, this decision is not

relevant to the current situation.

In Exxon Corp. v. City of New York,

the court found that New York City’s

lead and volatility regulations were

preempted under section 211(c)(4). In

the Part 80 regulations, EPA had set out

the federal fuel requirements and stated

that they prescribed regulations for the

control and/or prohibition of fuels and

additives. EPA also had promulgated

specific lead regulations, less stringent

than the New York City regulations, but

did not address volatility. At the time of

the court’s decision, section 211(c)(4)

preempted ‘‘any control or prohibition

respecting use of a fuel or fuel

additive.’’ The court found that EPA had

promulgated regulations respecting the

use of fuels, and thus, New York City’s

more stringent regulations were

preempted.

In the 1990 CAAA, Congress amended

the language of section 211(c)(4) to

preempt ‘‘any control or prohibition

respecting any characteristic or

component of a fuel or fuel additive.’’

After the court’s decision, EPA also

modified the Part 80 regulations to make

it clear that they are not intended to

preempt states’ ability to regulate fuels

and fuel additives that EPA has not

addressed. Section 80.1(b) states:

‘‘Nothing in this part is intended to

preempt the ability of State or local

governments to control or prohibit any

fuel or additive for use in motor

vehicles and motor vehicle engines

which is not explicitly regulated by this

part.’’ Thus, both Congress and the

Agency have clearly indicated that

EPA’s fuel requirements do not preempt

states from regulating a specific

characteristic or component that the

Agency has not addressed. As discussed

below, there are no federal regulations

applicable to oxygen content in the

Denver area, and hence Exxon v. City of

New York is not applicable here.

(4) EPA approval of the 3.1%

oxygenated fuels program could lead to

oxygenate shortages which could

interfere with the federal reformulated

gasoline program.

During the two winter seasons since

the CO SIP was submitted to EPA, the

average oxygen content in Denver has

been well above 3.1%. The federal

reformulated gasoline program took

effect on January 1, 1995, and thus has

been in effect coincident with the

Denver oxygenated fuels program for

over two years. No documented

oxygenate shortages have occurred as a

result of Denver’s program.

Furthermore, the commentor did not

provide any indication that a change in

circumstances may occur that could

produce any problems in the future.

(5) EPA approval of the 3.1%

oxygenated fuels program could lead to

an increase in NOX emissions, which

could jeopardize public health by

increasing ozone concentrations.

Several parties have contacted EPA in

the past with regard to potential NOX

increases from use of oxygenated fuels.

No good scientific information exists

that conclusively documents an increase

in fleet NOX emissions from use of

oxygenated fuels. The laboratory studies

to date have generally had poor control

of other fuel characteristics that affect

NOX emissions, making the results

unreliable.

Increases in NOX emissions from the

use of oxygenates would not be

expected to generate exceedances of the

ozone NAAQS, as asserted by the

commentor. Oxygenate use is only

required during the winter season, when

climatic conditions are not favorable to

the formation of tropospheric (groundlevel) ozone. No exceedances of the

ozone NAAQS have occurred at any

time during the ten winter seasons in

which oxygenated fuels have been used

in the Denver area.

(6) The 3.1% oxygen content is higher

than is necessary to attain the CO

NAAQS, and other reasonable,

practicable means of attainment are

available, so EPA cannot approve this

program under section 211(c)(4)(C) of

the CAA. Moreover, section 211(m)

provisions occupy the field for

regulation of oxygen content of gasoline

and thereby preempt any different

regulation by a state.

Section 211(c)(4)(C) provides that

states are preempted from regulating

motor vehicle fuels where EPA has

already acted, either to regulate the fuel

or to find that no regulation is

necessary. If preemption applies, the

state may regulate the fuel only if EPA

finds the state requirement necessary to

achieve the NAAQS for the relevant

pollutant. Here, EPA has neither

regulated fuel oxygen content in

Colorado nor made a finding that no

such regulation is necessary. Therefore,

the state regulation is not preempted

and there is no need to find necessity.

In the absence of federal preemption,

states are free to regulate to control air

pollution, and EPA must approve lawful

state requirements into SIPs, as long as
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 10693

the state submission meets all

applicable requirements under Title I of

the Act.

Section 211(c)(4)(A) preempts a state

from ‘‘prescrib[ing] or attempt[ing] to

enforce * * * any control or prohibition

respecting any characteristic or

component of a fuel or fuel additive’’

under two circumstances. Section

211(c)(4)(A)(i) provides for preemption

if EPA has found that no control or

prohibition of the characteristic is

necessary and has published that

finding in the Federal Register. Section

211(c)(4)(A)(ii) provides that a state is

preempted from regulating if EPA has

prescribed under section 211(c)(1) a

control or prohibition applicable to such

characteristic or component, unless the

state control or prohibition is identical

to EPA’s control or prohibition. Thus, to

preempt state regulation under

211(c)(4), either EPA must publish a

finding that a control is unnecessary, or

EPA must promulgate a control of the

same characteristic or component under

section 211(c)(1).

EPA has not made any finding under

section 211(c)(4)(A)(i) that control of

fuel oxygen content is unnecessary.

There is no preemption of the

Regulation 13 requirement for a 3.1%

oxygen content under this provision.

The only requirement that EPA has

promulgated applicable to fuel oxygen

content under 211(c)(1) is in the

reformulated gasoline (RFG) regulations.

EPA promulgated the RFG regulations

under both sections 211(c)(1) and

211(k). However, Colorado is neither

required to use RFG by statute, nor has

it voluntarily opted into the RFG

program. Thus, the RFG regulations do

not apply in Colorado.

The statute is ambiguous as to

whether federal regulation of a fuel

characteristic in certain areas of the

country preempts state regulation only

in those areas, or whether it preempts

any state regulation of that characteristic

nationwide. The statute simply refers to

‘‘a control or prohibition applicable to

such characteristic or component.’’ The

language does not indicate whether it

means any control in any area or at any

time generally applicable to a fuel

characteristic, or a control actually

applicable to a fuel characteristic in a

given time and place. The statute is also

ambiguous as to whether ‘‘characteristic

or component of a fuel or fuel additive’’

should be read generally, as in ‘‘oxygen

content,’’ or specifically, as in ‘‘oxygen

content in RFG areas.’’ In delegating

authority to the Agency to administer

section 211(c), Congress has also

implicitly delegated the authority to

reasonably interpret the provision in

light of any ambiguity. Chevron, USA v.

NRDC, 467 U.S. 837 (1984).

EPA believes that the better reading of

the statute is that preemption by the

RFG regulations applies more narrowly,

only in the areas where the federal RFG

regulation applies. First, the RFG

regulations arguably are not a control

‘‘applicable’’ to fuel oxygen content

outside of RFG areas. Secondly, this

interpretation is consistent with the

judicial cannon of statutory

construction by which courts construe

preemption narrowly. Thirdly, as a

policy matter, EPA’s decision to regulate

fuel oxygen content in RFG areas did

not encompass a determination that

states should not or need not regulate

that characteristic outside of those areas.

Section 211(c)(4) applies only where

EPA has affirmatively decided to

regulate a particular fuel characteristic

or component, or has affirmatively

found that no such regulation is

necessary and has published such a

finding in the Federal Register. The

RFG rulemaking never considered

whether fuel oxygen content

requirements were needed for CO

control outside RFG areas, but merely

incorporated the statutory requirement

to set a 2.0 percent oxygen content for

RFG. Moreover, whether RFG applies to

an area depends solely on its status as

an ozone nonattainment area; its status

for CO is irrelevant. This further

reinforces the conclusion that oxygen

content requirements under RFG do not

represent any EPA or Congressional

decision on the need for such

requirements outside of RFG areas.

Finally, the purpose of the section

211(c)(4) preemption provision is to

strike an appropriate balance between

states’ ability to freely adopt control

measures, and avoidance of a variety of

different state standards, potentially

disrupting the national motor vehicle

fuel market and federal regulation of

such fuels. This purpose is not served

by applying preemption where there is

no federal regulatory scheme, as here in

Colorado.

Finally, section 211(m) does not

constitute federal regulation of oxygen

content, which could occupy the field

for regulation of oxygen content and

hence preempt state regulation. Section

211(m) requires states with certain CO

nonattainment areas to submit a SIP

revision requiring gasoline ‘‘to contain

not less than 2.7 percent oxygen content

by weight.’’ The statute requires state

regulation, not federal, and explicitly

sets a minimum standard for such state

regulation, leaving the state free to

adopt more stringent requirements if it

so chooses. There is no indication in the

statute or the legislative history that by

specifying a minimum oxygen level that

states should require, Congress intended

the federal government to occupy the

field of oxygen content regulation and

preempt states from establishing a more

stringent standard.

Because the federal RFG fuel oxygen

content provision does not apply to

Colorado, section 211(c)(4) does not

preempt the state from promulgating its

own average fuel oxygen content

standard of 3.1%. Nor does section

211(m) explicitly or implicitly impose

such a restriction. Moreover, EPA must

approve into a SIP any lawful provision

concerning control of a criteria pollutant

that is submitted by a State and that

otherwise meets the requirements of

section 110. See Union Electric Co. v.

EPA, 427 U.S. 246 (1976). Thus,

Colorado was free to adopt a 3.1%

oxygen content standard as a control

strategy to help attain the CO NAAQS.

(7) EPA approval of the 3.1%

oxygenated fuels program in Colorado

would be a de facto mandate that at

least 50% of the gasoline in the Denver

area contain ethanol, contrary to

American Petroleum Institute vs. United

States Environmental Protection

Agency, 52 F.3d 1113 (D.C. Cir. 1995).

In API v. EPA, the issue was whether

EPA has the authority to mandate use of

a particular oxygenate in RFG. The court

held that EPA does not have such

authority because § 211(k) lays out the

specific criteria that EPA is to consider

in promulgating the RFG requirements,

and the ethanol mandate was not

established pursuant to those criteria.

This holding has no relevance for

whether a state, rather than EPA, could

directly mandate use of a particular

oxygenate. Moreover, the state here has

not mandated use of any particular

oxygenate. It has merely established

oxygen content requirements, and the

industry may use any oxygenate capable

of meeting those requirements, subject

to the maximum blending restrictions.

In addition, these are the same oxygen

content requirements as the CAA

mandates for certain areas, which

indicates that Congress contemplated

that such higher oxygen content levels

may be needed in some areas. In the

absence of federal preemption, states are

free to adopt fuel controls for emission

reductions. API identifies no additional

limit on EPA’s authority to approve

such state requirements in SIPs.

(8) Recent studies have demonstrated

that oxygenated fuels have little or no

effect on CO air quality. EPA should

facilitate an independent review of the

impacts of oxygenated fuels on CO air

quality before acting to approve the CO

SIP.
10694 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

The White House Office of Science

and Technology Policy (OSTP) has

recently issued a draft report on

oxygenated fuels, which compiles the

results of a number of other studies

(‘‘Interagency Assessment of

Oxygenated Fuels,’’ September 1996).

While not yet final, the draft report

concludes that oxygenated fuels

produce approximately a 10.0% to

13.5% ambient CO reduction benefit.

The National Academy of Sciences

(NAS) has also issued a recent report

commenting on the OSTP report. The

NAS report found that oxygenated fuels

programs have a benefit of zero to 10

percent in reducing ambient CO. Of the

10 existing ‘‘real world’’ studies of

oxygenated fuels’ ambient air impacts

cited in the NAS report, eight show a

statistically significant benefit from the

program, and two studies (both in North

Carolina) showed no significant benefit

or did not attempt to quantify a benefit.

Likewise, virtually all laboratory studies

of oxygenated fuels, including some

conducted by the automotive and

petroleum industries, show a significant

carbon monoxide reduction at the

tailpipe from use of these fuels.

EPA recently conducted an analysis of

carbon monoxide air quality data from

cities around the country (‘‘Impact of

the Oxyfuel Program on Ambient CO

Levels,’’ J. Richard Cook et al, EPA420–

R–96–002). In this report, EPA

compared data from a number of cities

which used oxygenated fuels beginning

in the winter of 1992–93 to data from

several cities which did not. Using this

approach, EPA found an immediate and

sustained reduction of carbon monoxide

concentrations in the range of 3.1% to

13.6% in cities using oxygenated fuels,

in excess of the reductions expected

from new cars entering the fleet. This

reduction was not seen in cities not

using oxygenated fuels. This level of

benefit is consistent with that found in

other studies. A subsequent regression

modeling analysis by Dr. Gary Whitten

of SAI of ambient CO data in

oxygenated fuels areas (‘‘Regression

Modeling of Oxyfuel Effects on Ambient

CO Concentrations,’’ SYSAPP–96/78,

January 8, 1997) found a 14% reduction

in ambient CO concentrations due to

implementation of the program.

These analyses are significant because

they are based on measurements of

actual air quality data in these cities

over at least two winter periods. Many

interested parties have criticized

laboratory studies as not being

representative of the real world;

however, in attempting to carry out a

‘‘real world’’ study in a single urban

area, it is very difficult to separate the

influence of oxygenated fuels from all of

the other factors that affect carbon

monoxide concentrations (including

weather, congestion, and changes in the

mix of cars and trucks in the fleet).

The National Academy of Science’s

report points out some areas where

additional research would be useful,

and EPA and the State are working to

design a study to address some of the

uncertainties surrounding the use of

oxygenated fuels. However, the NAS

report and the available scientific data

support continuing the oxygenated fuels

program.

While not a factor in EPA’s decision,

readers may be interested to know that

oxygenated fuels is one of the least

expensive carbon monoxide control

strategies available. In terms of dollars

per ton of pollution eliminated, it is

much cheaper than other alternatives,

such as transportation control measures,

mandatory employee trip reduction,

conversion of vehicles to run on

alternative fuels like propane or natural

gas, or industrial controls. The program

also serves as an important defense

against factors that increase carbon

monoxide emissions in the Denver area,

including growth in daily vehicle miles

travelled, growth in the amount of time

that vehicles spend in congestion, and

growth in the number of sport utility

vehicles and other types of higheremitting light-duty trucks on the road.

EPA has substantial evidence at this

time that oxygenated fuels are an

effective means to control carbon

monoxide, and hence it is appropriate to

approve this provision of the CO SIP at

this time.

Shortening of the Oxygenated Fuels

Season

One party submitted comments in

response to EPA’s December 6, 1996

supplemental notice of proposed

rulemaking, proposing approval of the

revisions to Regulation 13 removing the

last two weeks of the oxygenated fuels

season and reproposing approval of the

CO SIPs to incorporate this revision.

This commentor supported EPA’s action

to approve the shortening of the

oxygenated fuels season. The

commentor also raised other issues with

respect to the oxygenated fuels program

which have been addressed above.

Abandoned and Impounded Vehicle

Program

One commentor expressed concern

that the SIP provision preventing reregistration of abandoned or impounded

pre-1982 vehicles would negatively

impact the collector car industry of the

Denver region and would prevent

owners from recovering stolen vehicles.

Another commentor expressed concern

that this program would unnecessarily

harm lower-income individuals and

artificially increase demand for new

cars. While EPA understands these

concerns, the Act prohibits EPA from

basing its actions concerning SIPs on

considerations involving the economic

reasonableness of State actions. See

Union Electric Co. v. EPA, 427 U.S. 246,

256–266 (1976); 42 U.S.C. section

7410(a)(2).

While EPA is prohibited from basing

its action on the SIP on economic

grounds, EPA has concluded for other

reasons that it should not act on this

element of the SIP. The provision is not

well-defined in the SIP, with the design

and implementation of this program left

up to the discretion of local

jurisdictions, and no credit was taken

for this measure in the attainment

demonstration (see SIP page IX–4).

Therefore, EPA is not taking action on

this element of the SIP.

Revised Emissions Standards for Pre1982 Vehicles

One commentor stated that the

requirement for tighter emissions testing

cutpoints for pre-1982 was arbitrary and

capricious, and unduly impacted

owners of these model year vehicles in

the Denver region. Again, EPA is

prohibited by law from basing its

actions on SIPs on considerations

involving the economic reasonableness

of State actions. However, pre-1982

vehicles were targeted for tighter

cutpoints because 1982 and newer

vehicles are already subject to the more

stringent provisions of the enhanced

vehicle inspection and maintenance

program. Tighter cutpoints for pre-1982

vehicles should result in more highemitting vehicles being identified and

repaired through the requirements of

Regulation 11. Data from the enhanced

I/M program show that the average older

vehicle emits carbon monoxide at levels

many times higher than the level at

which they were certified for sale.

However, there is no presumption that

all older vehicles are high emitters, and

vehicles in good operating condition

should not fail the tighter cutpoints.

This commentor also stated that the

State and EPA had failed to consider the

smaller proportion of total VMT

generated by pre-1982 vehicles. The

mobile source emissions modeling

conducted for the SIP is based on

estimates of annual mileage

accumulation and share of daily VMT

for each model year. Thus, the SIP

modeling inputs reflect the smaller

proportion of total VMT generated by

pre-1982 vehicles. While it is true that

pre-1982 vehicles do represent a

relatively small proportion of total
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 10695

regional VMT, emissions generated by

these vehicles are still significant

because these vehicles are required to

meet less stringent emissions standards

by the State and EPA, and thus, pervehicle emissions are higher. The SIP

estimates that this measure would

provide a CO emission reduction benefit

of 20 tons per day in 1995. EPA believes

the estimates of pre-1982 VMT share

and emissions reductions from the SIP

provision are reasonable.

Another commentor stated that EPA

should give the State the option of

eliminating the I/M program and the

prohibition on re-registration of

abandoned and impounded vehicles in

favor of an enforceable system of user

fees or other economic incentives that

would address the actual contribution of

individual vehicles and drivers to the

region’s pollution problems. The Clean

Air Act requires the State to implement

an enhanced I/M program that meets

certain minimum requirements.

However, the Act would allow the State

to revise its SIP at any time to add the

type of program mentioned by the

commentor, as long as the program

meets the SIP requirements of Section

110. EPA does not have to take any type

of action in order to enable the State to

develop and submit this type of SIP

revision. As noted above, EPA is not

acting on the SIP provision that

prohibits re-registration of abandoned

and impounded vehicles.

Transportation Control Measures

(TCMs)

One commentor felt that EPA’s

description of the relationship of the

TCMs to the SIP as a whole was unclear.

This commentor felt that EPA was

interpreting the SIP to incorporate the

TCMs as part of the attainment

demonstration, in addition to

incorporating the TCMs as contingency

measures.

Further review of the SIP confirms

that the TCMs are only meant to be

incorporated as contingency measures.

This intent is clearly stated in the SIP

on pages VI–3 and X–1. The SIP states

the intent of the area to implement the

contingency measures early, as allowed

by EPA policy, to obtain additional

emission reductions. Chapter XII of the

SIP, Attainment Demonstration, clearly

demonstrates that these measures are

not necessary for the Denver area to

attain the CO NAAQS by December 31,

2000. Thus, EPA is clarifying that the

TCMs are intended to be enforceable

provisions of the SIP only as

contingency measures, with

implementation required only in the

event that the contingency measures are

triggered (through the mechanisms

discussed in the proposal). The State

has made an adequate showing that

TCMs are not needed for attainment, as

required by section 187(a)(2)(B) of the

Act.

Another commentor stated that the

requirements of the Act for TCMs in

Denver had not been met. EPA believes

that the State and the Regional Air

Quality Council have correctly

interpreted the Act’s requirements for

TCMs, that the TCM provisions of the

SIP are adequate, and that the SIP

contains an adequate showing that

TCMs are not necessary for attainment.

This commentor also stated that EPA

should require annual reporting on the

effectiveness and implementation of

TCMs and other control strategies. EPA

notes that periodic reporting is already

required for a number of control

measures and does not believe that

further reporting is necessary at this

time. For example, the Act requires

annual reporting of VMT and a

comparison of actual VMT with the SIP

forecasts. The State has complied with

these requirements. The Act and EPA’s

transportation conformity rule (58 FR

62188, November 24, 1993) also require

that the Denver Regional Council of

Governments (DRCOG) report on the

implementation status of TCMs each

time a conformity determination is

made, and prohibit conformity findings

if TCMs are not being implemented as

required by the SIP. The State also

produces annual reports on the

effectiveness of the SIP’s two major

control strategies, the I/M and

oxygenated fuels programs, as required

by State law. EPA’s I/M regulations (40

CFR Part 51, Subpart S) also require

periodic evaluation of and reporting on

the effectiveness of the I/M program.

Contingency Measures

One commentor stated that the SIP

does not contain adequate contingency

measures, and that EPA should require

the State to implement the contingency

measures based on the Denver area’s

failure to attain. This commentor also

stated that it was insufficient for the SIP

to describe existing conditions as

contingency measures which have

already been implemented.

As discussed in the proposal (61 FR

36009, July 9, 1996), the SIP TCMs

exceed the minimum emission

reductions established in EPA guidance,

and EPA considers these measures

adequate. Although the State has chosen

to voluntarily implement many of the

contingency measures, and thus obtain

the benefits of early emissions

reductions, the commentor is correct

that EPA is not requiring the State to

implement the contingency measures in

the SIP based on the area’s failure to

attain the standard by the end of 1995.

EPA believes it is neither necessary nor

appropriate to do so. This is because

EPA’s approval of this Serious area CO

SIP, which the State has been

implementing since 1994, obviates the

need for Moderate area contingency

measures. Contingency measures for a

Moderate CO nonattainment area with a

design value greater than 12.7 ppm are

intended to provide emissions

reductions while the State revises its

SIP to meet Serious area SIP

requirements. Here the State has already

submitted a Serious area SIP that

demonstrates attainment of the CO

standard by the end of 2000, and EPA

is approving it.

In addition, there is no EPA-approved

Moderate area CO SIP for the Denver

area on which EPA can base a

requirement that the State implement

contingency measures for the failure to

attain the CO standard by the end of

1995. If an EPA-approved Moderate area

CO SIP had been in place at the time the

area violated the CO standard in 1995,

EPA would have required the State to

implement the contingency measures

contained in that SIP. In the Serious

area SIP that the State has submitted

and that EPA is approving today,

contingency measures are tied to the

2000 attainment date. There is no basis

or necessity for EPA to require the State

to implement contingency measures

based on the area’s failure to attain the

CO standard by the end of 1995.

The SIP envisions that the TCMs

identified as contingency measures will

be implemented early. This is

acceptable to EPA. EPA policy (August

13, 1993 memorandum from G.T. Helms

to regional Air Branch Chiefs entitled

‘‘Early Implementation of Contingency

Measures for Ozone and Carbon

Monoxide Nonattainment Areas’’)

encourages the early implementation of

contingency measures for the additional

emission reductions and progress

toward attainment that they provide.

EPA believes that requiring states to

adopt additional contingency measures

to replace measures that were

implemented early would only

discourage early implementation and

the resulting additional emission

reductions.

Reclassification to Serious

Two commentors expressed concern

over EPA’s proposed reclassification of

the Denver area from Moderate to

Serious for CO, given the small number

and low absolute value of violations in

recent years. These commentors felt that

EPA should recognize Denver’s progress

toward attainment of the CO NAAQS in
10696 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

recent years. EPA recognizes that

Denver has taken significant steps to

reduce CO levels and make progress

toward attainment, including

implementation of a comprehensive

woodburning control program, the

nation’s first oxygenated fuels program,

and an effective enhanced I/M program.

However, as explained in the proposed

rulemaking, the unambiguous

provisions of the CAA and recent

ambient values for CO in Denver compel

EPA to take this action.

One commentor stated that the SIP

does not contain the elements required

for a Serious area SIP. As discussed in

detail in the proposal, EPA believes that

the SIP does contain all required

elements.

Attainment Demonstration

One commentor submitted extensive

comments on the adequacy of the

attainment demonstration. This

commentor felt that the attainment

demonstration was inadequate because

it did not consider other downtown

intersections with the potential of

experiencing high concentrations of CO

and because growth projections used in

the modeling underestimate the amount

of growth in traffic that has occurred in

the Denver area since the attainment

demonstration was submitted to EPA.

The State performed preliminary

CAL3QHC modeling of CO

concentrations at three intersections in

the downtown area: Speer and Auraria

Boulevard, Broadway and Colfax, and

Broadway and Champa. The CAMP air

quality/meteorology monitoring station,

which has historically recorded the

highest levels of CO in the Denver area,

is located adjacent to the intersection of

Broadway and Champa. The

preliminary modeling results showed

predicted concentrations at the Speer/

Auraria and Broadway/Colfax

intersections that were up to 6 parts per

million (ppm) higher than

concentrations predicted at the CAMP

intersection. However, the State selected

only Broadway and Champa (CAMP) for

use in the SIP attainment demonstration

because the on-site air quality and

meteorological data available at this

location provided more confidence in

the modeling results. To ensure that

higher concentrations exceeding the

NAAQS do not occur at other

downtown locations the State has

performed supplemental CO monitoring

studies at all three intersections and

elsewhere in the Denver urban core. The

results to date have continued to

support the use of CAMP as the

maximum concentration downtown site;

CAMP continues to record higher CO

design value concentrations than any

other location in the Denver metro

monitoring network.

The commentor stated that EPA has

not applied its modeling standards,

guidance, and protocols consistently to

the choice of intersections or to the

attainment demonstration generally.

EPA (both Region VIII and the national

Model Clearinghouse) reviewed the

State’s analysis and found that it was

consistent with national modeling

policy and other recent Urban Airshed

Model/CAL3QHC modeling

applications. EPA believes that modeled

concentrations at Speer/Auraria and

Broadway/Colfax are unreliable and

therefore is not requiring the State to

use the preliminary CAL3QHC

intersection modeling results to

demonstrate attainment at these two

intersections. EPA’s position is based on

the following factors: (1) Saturation CO

monitoring studies in the downtown

area and continuous wintertime

monitoring since 1994 at Speer/Auraria

do not support the modeled predictions

of higher concentrations at these

locations; (2) estimated wind speeds at

Speer/Auraria and Broadway/Colfax

during both episodes modeled were

frequently below the stated threshold of

the CAL3QHC model and are not

considered valid for use in the model;

(3) there is a possibility that ‘‘cold start’’

vehicle emissions may have been

overestimated at these intersections,

artificially increasing predicted

concentrations; and (4) micrometeorological effects of high-rise office

buildings significantly increase

modeling uncertainties at these

intersections, where on-site

meteorological data was not available.

EPA also notes that the State followed

the criteria contained in the Guideline

for Modeling Carbon Monoxide from

Roadway Intersections (EPA–454/R–92–

005) in identifying the six busiest

intersections for the SIP analysis. State

modeling of these intersections showed

compliance with the NAAQS. However,

these intersections are all located

outside of the downtown area;

downtown is where the highest

concentrations have historically been

measured. EPA subsequently requested

the State to model an additional

intersection in the downtown urban

core in order to assure attainment of the

NAAQS. However, the State’s

compliance with this request goes

beyond the usual requirements for a CO

SIP attainment demonstration analysis.

The commentor suggested that

meteorological and other data are

available that are more than adequate

for modeling intersections other than

CAMP. To EPA’s knowledge, CAMP is

the only intersection with representative

on-site meteorology data for the periods

that were modeled. Off-site meteorology

was available at the Tivoli site for

portions of the SIP episodes modeled,

but this site is located several hundred

meters south of the current intersection

of Speer and Auraria. EPA reviewed the

Tivoli site and determined that

meteorological data collected at this

location would not be representative of

conditions at the intersection. Winds at

the Speer and Auraria intersection

would be affected to a far greater degree

by building wake effects than the Tivoli

site. In addition, there have been

extensive changes to the roadway and

construction of additional structures in

the area since the Tivoli data were

obtained in 1988. No data whatsoever

were available for the Broadway and

Colfax intersection.

The commentor referred to critiques

of the attainment demonstration

developed by State staff and by outside

sources. EPA has not been provided

with and is not aware of any State or

outside critiques of the attainment

demonstration. EPA was provided with

preliminary modeling results for the

Speer and Auraria and Broadway and

Colfax intersections by APCD staff

members that were based on the Tivoli

and CAMP meteorological/air quality

data. In addition to using nonrepresentative data, the analysis

contained a number of modeling

assumptions that were not consistent

with the EPA Guideline on Air Quality

Models or the CAL3QHC Model Users

Manual, including incorrect

atmospheric stabilities and wind speeds

lower than the acceptable threshold for

the CAL3QHC model. The final

CAL3QHC modeling submitted by the

APCD did not contain intersection

modeling for the two intersections

where on-site data were not available.

EPA concurs with the final modeling

analysis submitted by the State. This

decision is supported by the

supplemental CO monitoring studies

that have been performed in the

downtown area. These studies support

the continued use of CAMP as the

maximum concentration downtown site.

The commentor also suggested that

EPA applied a different set of review

criteria to the downtown intersections

than to suburban sites, because the

downtown intersections showed high

CO concentrations that would trigger

more stringent control strategies, and

suggested that these different criteria led

to high concentration intersections

downtown being dropped from the SIP

analysis. The reason the modeling

results for the two intersections in the

downtown area were dropped is that the

CAL3QHC model could not be applied
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 10697

appropriately given the effects of nearby

downtown buildings on wind flow and

the lack of representative on-site data.

Building effects were not an issue at the

six suburban intersections modeled in

the SIP.

The commentor implied that EPA was

basing its decision to approve the SIP on

‘‘voluntary’’ compliance with EPA

requests, ‘‘understandings’’ between

State and EPA staff, and written and

unwritten EPA ‘‘guidance’’. The

commentor suggested that EPA was

honoring a ‘‘deal’’ that violates the letter

and intent of the Act. EPA believes that

the attainment demonstration meets the

requirements of the Act. EPA addresses

the commentor’s specific concerns

regarding the attainment demonstration

in other portions of this response. EPA

is not basing its decision to approve the

SIP on any ‘‘deals’’ or improper

‘‘understandings’’ reached with the

State, but on the SIP’s compliance with

the Act. EPA does not know what the

commentor is referring to when it writes

about ‘‘voluntary’’ compliance with EPA

requests. To the extent EPA has offered

guidance to the State, EPA believes such

guidance has been consistent with the

Act or a reasonable interpretation of the

Act.

The commentor noted that many large

projects have been planned or built

since the attainment demonstration was

submitted to EPA, and that newer

growth projections show higher levels of

traffic than those considered in the SIP.

Two of the facilities specifically

mentioned by the commentor (Coors

Field and Elitch’s) would not be

expected to affect Denver’s ability to

attain the CO standard, since they are

not operational during the winter season

when the highest values of CO are

measured in Denver. The proposed

Pepsi Center, which could impact

Denver’s ability to attain the NAAQS

due to its potential proximity to one of

the downtown intersections where

elevated values of CO have been

monitored, has not been approved by

the City and County of Denver, and

there is apparently some possibility that

this facility may not be located

downtown at all. Denver is currently

examining the traffic and air quality

impacts of a wide range of potential

development in the lower downtown

area through its Central Platte Valley

Multimodal Access and Air Quality

Study.

The comment regarding newer

projections of traffic growth apparently

refers to revised estimates of daily

vehicle miles travelled produced by

DRCOG in the summer and fall of 1996.

In early 1996, DRCOG made some

improvements to its transportation

demand model (used for transportation

planning, and to produce estimates of

future VMT and speeds for air quality

planning purposes) and validated the

model with actual 1995 traffic counts

recorded in Denver. These adjustments

led to revised estimates of

approximately 49 million miles per day

of traffic in the Denver area (the

previous modeled estimate had been

approximately 45 million miles per

day). Part of this estimated increase is

due to actual growth in traffic in the

Denver region, and part of it is due to

use of improved methodologies for

traffic counting in the region.

In November 1996, Colorado

submitted its 1996 report of 1995 actual

annual VMT, as required by the SIP’s

VMT tracking provisions and the Act.

This report showed that actual 1995

VMT were 4.4% greater than the SIP

projections and 1.3% greater than the

most recent revised projection for 1995.

These exceedances are within the

allowable limits of EPA’s VMT Tracking

Program guidance (5.0% and 3.0% for

the respective VMT projections). EPA

established these tolerances in

recognition of the uncertainty inherent

in attempting to measure actual VMT in

a large urban area. Since the most recent

reported actual annual VMT is within

these allowable tolerances, the State is

not required to implement its

contingency measures, and no revision

to the SIP is required. If a subsequent

VMT tracking report shows that the SIP

VMT projections (or updated forecasts)

are exceeded by greater than the

margins of error allowed by EPA

guidance, implementation of the

contingency measures will be required,

along with a revision to the SIP if

necessary.

EPA believes that the State has

followed the proper procedures (as

outlined in EPA’s guidance and the

SIP’s VMT Tracking Program protocol)

in generating the annual VMT reports

that EPA is relying on for its approval

of the SIP. Several factors are involved

in comparing estimates of daily VMT to

estimates of annual VMT, including: (1)

The geographic area covered by the

different estimates; (2) whether average

daily traffic or average weekday traffic

are used; (3) the differences between the

traffic counting network used by

DRCOG for its model validation, and the

network required for use by the

Colorado Department of Transportation

in generating the Highway Performance

Monitoring System (HPMS) VMT data

that the VMT Tracking Program traffic

estimates are based on (use of HPMS

data is required by EPA and U.S.

Department of Transportation

guidance); and (4) the assumptions

behind the original VMT estimates in

the SIP.

There are a number of other factors

that protect the SIP’s attainment

demonstration from growth in VMT.

First, under the requirements of the

EPA/DOT transportation conformity

rule, DRCOG’s transportation plans and

transportation improvement programs

must comply with the emissions budget

for CO contained in the CO SIP, even if

unexpected increases in VMT occur

after the SIP is adopted. This budget

protects the Denver area against future

violations of the CO NAAQS in the face

of growing VMT. If the budget cannot be

met, DRCOG cannot adopt any new

plans and TIPs, and no new regionally

significant projects can be approved.

Thus, failure to meet the budget has the

same or greater effect as the imposition

of highway sanctions under section 179

of the Act. Second, it is important to

note that virtually all of the growth in

the metro area has occurred not in the

downtown area, where the violations of

the NAAQS have been monitored, but in

outlying portions of the metro area.

Thus, EPA would expect that VMT in

the downtown area would increase at a

lower rate than VMT for the metro area

as a whole. This is supported by traffic

counts at locations near downtown,

which show that traffic in the central

area increased at a rate of approximately

2–3% per year between 1990 and 1995,

even though DRCOG estimates that

traffic has increased approximately

4.5% per year regionwide. Finally, the

air quality trends information submitted

with the State’s March 1996 milestone

report shows that the Denver area is

ahead of schedule to attain the CO

NAAQS even with the higher-thanexpected estimates of daily VMT.

Based on its conclusion that the

attainment demonstration was

inadequate, this commentor further

concluded that the control strategies

submitted with the SIP are insufficient

to provide for attainment of the NAAQS.

EPA’s general response to this assertion

is that the attainment demonstration is

adequate, and that the modeling

summarized in Chapter XII of the SIP

and submitted to EPA demonstrates that

the SIP will provide for attainment with

the control measures included in the

SIP.

The commentor stated that the SIP

does not include a requirement that

gasoline sold during the winter months

include a level of oxygen sufficient to

attain the NAAQS. As discussed above,

the SIP includes a requirement for a

3.1% minimum oxygen content; the

attainment demonstration shows that

this level of oxygen is necessary and
10698 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

sufficient to provide for attainment of

the NAAQS.

The commentor stated that there is no

indication that the State will apply the

requirements for content and analysis of

transportation plans, programs and

projects contained in the conformity

regulations. These requirements for

nonattainment areas classified as

serious and above are enforceable

through the EPA/DOT conformity

regulation, and DRCOG must comply

with them when they take effect. There

is no requirement in the conformity rule

or in the Act that these provisions be

incorporated into the CO SIP. However,

they are mentioned on page I–4 of the

SIP.

The commentor stated that the SIP

does not satisfy section 110(a)(2) of the

Act. As outlined in detail in the

Technical Support Document for EPA’s

proposed action, the SIP does satisfy the

SIP content requirements of section

110(a)(2).

The commentor stated that the SIP

does not contain adequate measures to

control stationary source emissions.

Stationary point source emissions

represent only 1.1% of base case

emissions (based on actual emissions)

and 5.6% of attainment year emissions

(based on allowable emissions). None of

the major sources are located in close

proximity to the downtown monitors

which record high concentrations, and

these sources have little or no impact on

Denver’s ability to attain the NAAQS.

However, stationary point sources of CO

are regulated by Colorado Regulation

No. 1 (Particulates, Smokes, CO and

Sulfur Oxides). As noted above,

woodburning is already regulated by

Regulation No. 4; woodburning also has

very little impact on the downtown

monitoring sites. The remaining

stationary sources of emissions are

natural gas combustion and structural

fires, which contribute a total of less

than 1% to the attainment year

inventory and again have very little

impact on the high concentration

monitoring sites.

The commentor stated that the SIP

should include a mandatory employerbased trip reduction program, or

demonstrate that such a program is not

necessary to demonstrate attainment of

the NAAQS. As noted in the proposal,

Congress revised the Act in 1995 to

make submittal of trip reduction

programs voluntary. Thus, EPA could

not require the State to submit such a

program even if the attainment

demonstration were to be found

inadequate.

The commentor noted that the SIP

does not contain an adequate milestone,

nor does it contain an economic

incentive program for implementation

should the milestone not be met.

Neither the Act nor EPA policy establish

requirements for milestones, so the State

was free to adopt its 1995 base case

emission inventory as the milestone.

The base case represents progress

toward attainment (emissions in the

1995 base case were substantially lower

than 1990 emissions), which is the

intent of this requirement of the Act.

Also, the Act does not require submittal

of an economic incentive program until

after either (1) the milestone has been

missed or (2) the Denver area fails to

attain by December 31, 2000. Thus, the

SIP is not deficient in this regard.

Finally, the commentor stated that

EPA should expressly incorporate the

baseline (pre-existing) control strategies

in its approval of this SIP, that EPA

should make it clear that its approval of

the SIP is based on the understanding

that these control strategies will remain

in place, and that EPA should withdraw

its approval of the SIP should these

control strategies be weakened. As

noted in the proposal, the baseline

strategies relied upon in the attainment

demonstration have already been

incorporated into the Colorado SIP,

making them federally enforceable; the

new control strategies will also be

incorporated into the SIP with EPA’s

final action on the SIP. EPA’s approval

is based on the enforceability of these

measures and the SIP’s stated intention

that these measures continue to be

implemented. If, subsequent to EPA

approval, control measures are

weakened or discontinued, EPA’s

available responses include making a

finding of SIP non-implementation

under section 179(a)(4) and/or section

113(a)(2) of the Act, or making a finding

of SIP inadequacy and issuing a call for

a SIP revision under Section 110(k)(5) of

the Act. EPA believes that these

mechanisms, along with EPA’s and

citizens’ ability to directly enforce SIP

requirements, are adequate to ensure

that pre-existing control measures

continue to be implemented.

Approval of the SIP

While several parties requested that

EPA disapprove the SIP, for reasons

discussed above, two commentors

supported EPA’s approval of the SIP.

EPA is proceeding with final approval

of the CO SIP for the reasons discussed

above and in our July 9, 1996 and

December 6, 1996 notices of proposed

rulemaking.

III. Implications of Today’s Final

Action

In today’s action, EPA is approving

SIP revisions submitted by the Governor

on July 11, 1994, July 13, 1994,

September 29, 1995, and December 22,

1995. Specifically, EPA is (1) approving

the July 11, 1994 attainment

demonstration, VMT tracking and

forecasting program, TCM, and

contingency measures submittals for

Denver; (2) approving the July 13, 1994

attainment demonstration and

contingency measures submittals for

Longmont; (3) approving the control

strategies for Denver, including the

September 29, 1995 submittal of

revisions to Regulations 11 and 13 (I/M

and oxygenated fuels); and (4)

approving the further revisions to

Regulation 13 submitted on December

22, 1995 that shorten the effective

period of the oxygenated fuels program.

For the reasons discussed in Section II

of this document, EPA is not taking

action on the SIP provision submitted

on July 11, 1994 that calls for a

prohibition of the re-registration of

abandoned and impounded vehicles.

In this document, EPA is also making

a finding that the Denver/Boulder

carbon monoxide nonattainment area

did not attain the NAAQS by the

required attainment date of December

31, 1995, and is revising the area’s

classification for carbon monoxide in 40

CFR Part 81 from Moderate to Serious.

This finding is based on air quality data

revealing more than one exceedance of

the CO NAAQS during calendar year

1995, resulting in a design value higher

than the NAAQS for the period 1994–

95. By action dated December 20, 1994,

the EPA Administrator delegated to the

Regional Administrators the authority to

determine whether CO nonattainment

areas attained the NAAQS, and to

reclassify those that did not.

EPA has reviewed this request for

revision of the federally-approved SIP

for conformance with the provisions of

the Act. EPA has determined that this

action conforms with those

requirements.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any State

Implementation Plan. Each request for

revision to any State Implementation

Plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

IV. Executive Order (EO) 12866

Under EO 12866, 58 FR 51735

(October 4, 1993), EPA is required to

determine whether regulatory actions

are significant and therefore should be

subject to OMB review, economic

analysis, and the requirements of the
Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations 10699

EO. The EO defines a ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may (1) have an

annual effect on the economy of $100

million or more or adversely affect, in

a material way, the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or (4) raise novel

legal or policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in the Executive

Order.

Today’s SIP-related actions have been

classified as Table 3 actions 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

these regulatory actions from EO 12866

review.

Likewise, EPA has determined that

today’s finding of failure to attain would

result in none of the effects identified in

section 3(f) of the EO. Under Section

186(b)(2) of the Clean Air Act, findings

of failure to attain and reclassification of

nonattainment areas are based upon air

quality considerations and must occur

by operation of law in light of certain air

quality conditions. They do not, in and

of themselves, impose any new

requirements on any sectors of the

economy. In addition, because the

statutory requirements are clearly

defined with respect to the differently

classified areas, and because those

requirements are automatically triggered

by classifications that, in turn, are

triggered by air quality values, findings

of failure to attain and reclassification

cannot be said to impose a materially

adverse impact on State, local, or tribal

governments or communities.

V. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. section 600 et. seq., EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C.

sections 603 and 604). Alternatively,

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 jurisidiction

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 process does not

impose any new requirements, EPA

certifies that this final 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 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).

As discussed in section IV of this

document, findings of failure to attain

and reclassification of nonattainment

areas under Section 186(b)(2) of the

CAA do not, in and of themselves,

create any new requirements. Therefore,

I certify that today’s final action does

not have a significant impact on small

entities.

VI. 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 costeffective 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 today’s final

approval actions do 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. These Federal actions

approve pre-existing requirements

under State or local law, and impose no

new requirements. Accordingly, no

additional costs to State, local or tribal

governments, or to the private sector,

result from these actions.

Likewise, EPA believes, as discussed

in section IV of this document, that the

finding of failure to attain and

reclassification to Serious are factual

determinations based upon air quality

data and must occur by operation of law

and, hence, do not impose any federal

intergovernmental mandate, as defined

in section 101 of the Unfunded

Mandates Act.

VII. Small Business Regulatory

Enforcement Fairness Act (SBREFA)

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 of

the General Accounting Office prior to

publication of the rule in today’s

Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

VIII. Petitions for Judicial Review

Under Section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by May 9, 1997. 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, Carbon monoxide,

Incorporation by reference,

Intergovernmental relations, and

Reporting and recordkeeping

requirements.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: January 31, 1997.

Max H. Dodson,

Acting Regional Administrator.

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:
10700 Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules and Regulations

Authority: 42 U.S.C. 7401–7671q.

Subpart G—Colorado

2. Section 52.320 is amended by

adding paragraph (c)(80) to read as

follows:

§ 52.320 Identification of plan.

* * * * *

(c) * * *

(80) On July 11, 1994, July 13, 1994,

September 29, 1995, and December 22,

1995, the Governor of Colorado

submitted revisions to the Colorado

State Implementation Plan (SIP) to

satisfy those CO nonattainment area SIP

requirements for Denver and Longmont,

Colorado due to be submitted by

November 15, 1992, and further

revisions to the SIP to shorten the

effective period of the oxygenated fuels

program. EPA is not taking action on the

SIP provision submitted on July 11,

1994 that calls for a prohibition of the

re-registration of abandoned and

impounded vehicles.

(i) Incorporation by reference.

(A) Regulation No. 11, Motor Vehicle

Emissions Inspection Program, 5 CCR

1001–13, as adopted on September 22,

1994, effective November 30, 1994.

Regulation No. 13, Oxygenated Fuels

Program, 5 CCR 1001–16, as adopted on

October 19, 1995, effective December

20, 1995.

PART 81—[AMENDED]

1. The authority citation for Part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. In 81.306, the Carbon Monoxide

table is amended by revising the entry

for ‘‘Denver-Boulder Area’’ to read as

follows:

§ 81.306 Colorado.

* * * * *

COLORADO—CARBON MONOXIDE

Designated area

Designation Classification

Date 1 Type Date 1 Type

* * * * * * *

Denver-Boulder Area:

The boundaries for the Denver nonattainment area for carbon monoxide (CO)

are described as follows: Start at Colorado Highway 52 where it intersects the

eastern boundary of Boulder County; Follow Highway 52 west until it intersects Colorado Highway 119; Follow northern boundary of Boulder city limits

west to the 6000-ft. elevation line; Follow the 6000-ft. elevation line south

through Boulder and Jefferson Counties to US 6 in Jefferson County; Follow

US 6 west to the Jefferson County-Clear Creek County line; Follow the Jefferson County western boundary south for approximately 16.25 miles; Follow a

line east for approximately 3.75 miles to South Turkey Creek; Follow South

Turkey Creek northeast for approximately 3.5 miles; Follow a line southeast

for approximately 2.0 miles to the junction of South Deer Creek Road and

South Deer Creek Canyon Road; Follow South Deer Creek Canyon Road

northeast for approximately 3.75 miles; Follow a line southeast for approximately five miles to the northern-most boundary of Pike National Forest where

it intersects the Jefferson County-Douglas County line; Follow the Pike National Forest boundary southeast through Douglas County to the Douglas

County-El Paso County line; Follow the southern boundary on Douglas County east to the Elbert County line; Follow the eastern boundary of Douglas

County north to the Arapahoe County line; Follow the southern boundary of

Arapahoe County east to Kiowa Creek; Follow Kiowa Creek northeast through

Arapahoe and Adams Counties to the Adams-Weld County line; Follow the

northern boundary of Adams County west to the Boulder County line; Follow

the eastern boundary of Boulder County north to Highway 52.

Adams County (part) ............................................................................................... ................ Nonattainment ....... 4/9/97 Serious.

Arapahoe County (part) ........................................................................................... ................ Nonattainment ....... 4/9/97 Serious.

Boulder County (part) .............................................................................................. ................ Nonattainment ....... 4/9/97 Serious.

Denver County (part) ............................................................................................... ................ Nonattainment ....... 4/9/97 Serious.

Douglas County (part) ............................................................................................. ................ Nonattainment ....... 4/9/97 Serious.

Jefferson County (part) ............................................................................................ ................ Nonattainment ....... 4/9/97 Serious.

1This date is November 15, 1990, unless otherwise noted.

* * * * *

[FR Doc. 97–5765 Filed 3–7–97; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 82

[FRL–5701–1]

Protection of Stratospheric Ozone

AGENCY: Environmental Protection

Agency.

ACTION: Notice of acceptability.

SUMMARY: This notice expands the list of

acceptable substitutes for ozonedepleting substances (ODS) under the

U.S. Environmental Protection Agency’s

(EPA) Significant New Alternatives

Policy (SNAP) program.

EFFECTIVE DATE: March 10, 1997.

ADDRESSES: Information relevant to this

notice is contained in Air Docket A–91–

42, Central Docket Section, South

Conference Room 4, U.S. Environmental

Agency, 401 M Street, S.W.,

Washington, D.C. 20460. Telephone:

(202) 260–7548. The docket may be

inspected between 8:00 a.m. and 5:30

p.m. weekdays. As provided in 40 CFR

part 2, a reasonable fee may be charged

for photocopying.

FOR FURTHER INFORMATION CONTACT:

Sally Rand at (202) 233–9739 or fax

(202) 233–9577, U.S. EPA, Stratospheric

Protection Division, 401 M Street, S.W.,

Mail Code 6205J, Washington, D.C.

20460; EPA Stratospheric Ozone

Protection Hotline at (800) 296–1996;

EPA World Wide Web Site at http://