Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24075

1. All periods of excess emissions are

treated as violations of the emission

limitation.

2. The rule provides an affirmative

defense to actions for penalties brought

for excess emissions that arise during

certain malfunction, startup, and

shutdown episodes. There is no

affirmative defense to actions for

injunctive relief.

3. The rule includes criteria

consistent with EPA’s excess emissions

policy that restrict the availability of

affirmative defenses to malfunctions

that are sudden, unavoidable, and

unpredictable, and to excess emissions

during startup and shutdown that could

not have been avoided through careful

planning and design. In all cases, all

possible steps must have been taken to

minimize excess emissions.

4. An affirmative defense is not

available if during the period of excess

emissions, there was an exceedence of

the relevant ambient air quality

standard that could be attributed to the

emitting source.

5. The defendant has the burden of

proof of demonstrating it has met the

criteria set out in Rule 310.

Rule 310.01 requires that the owner or

operator of a source must notify ADEQ

within 24 hours of learning that the

source has emitted pollutants in excess

of its limits. A detailed written report

must be submitted within 72 hours of

the initial notification. In order to

qualify for an affirmative defense under

Rule 310, the source must comply with

the requirements of Rule 310.01.

C. Public comment and final action.

Because EPA believes the submitted

rule fulfills all relevant requirements,

we are proposing to fully approve it as

described in section 110(k)(3) of the Act.

We will accept comments from the

public on this proposal for the next 30

days. Unless we receive convincing new

information during the comment period,

we intend to publish a final approval

action that will incorporate this rule

into the federally enforceable SIP.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revisions to any state

implementation plan. Each request for

revision to the SIP shall be considered

separately in light of specific technical,

economic, and environmental factors

and in relation to relevant statutory and

regulatory requirements.

III. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this proposed

action is not a ‘‘significant regulatory

action’’ and therefore is not subject to

review by the Office of Management and

Budget. This proposed action merely

approves state law as meeting federal

requirements and imposes no additional

requirements beyond those imposed by

state law. Accordingly, the

Administrator certifies that this

proposed rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.). Because this rule proposes to

approve pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Public Law 104–4). This rule also does

not have a substantial direct effect on

one or more Indian tribes, on the

relationship between the Federal

Government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

Government and Indian tribes, as

specified by Executive Order 13175 (65

FR 67249, November 9, 2000), nor will

it have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This proposed rule also

is not subject to Executive Order 13045

(62 FR 19885, April 23, 1997), because

it is not economically significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this proposed rule, EPA has taken the

necessary steps to eliminate drafting

errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. EPA

has complied with Executive Order

12630 (53 FR 8859, March 15, 1988) by

examining the takings implications of

the rule in accordance with the

‘‘Attorney General’s Supplemental

Guidelines for the Evaluation of Risk

and Avoidance of Unanticipated

Takings’’ issued under the executive

order. This proposed rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compound.

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

Dated: May 4, 2001.

Michael Schultz,

Acting Regional Administrator, Region IX.

[FR Doc. 01–11916 Filed 5–10–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[CO–001–0054; FRL–6978–2]

Approval and Promulgation of Air

Quality Implementation Plans; State of

Colorado; Denver 1-Hour Ozone

Redesignation to Attainment,

Designation of Areas for Air Quality

Planning Purposes, and Approval of

Related Revisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: On November 30, 2000, the

Governor of Colorado submitted a

request to redesignate the DenverBoulder metropolitan (Denver)

‘‘transitional’’ ozone nonattainment area

to attainment for the 1-hour ozone

National Ambient Air Quality Standard

(NAAQS). As part of this request, the

Governor asked that EPA parallel

process a proposed maintenance plan

for the Denver area. In conjunction with

the Governor’s submittal, EPA is also

proposing approval of revisions to

Colorado’s Regulation No. 3 ‘‘Air

Contaminant Emissions Notices’’ and

Colorado’s Regulation No. 7 ‘‘Emissions

of Volatile Organic Compounds’’ that

were previously submitted by Governor

24076 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

1The CAA describes areas as ‘‘transitional’’ if

they were designated nonattainment both prior to

enactment and (pursuant to CAA section

107(d)(1)(C)) at enactment, and if the area did not

violate the primary ozone NAAQS in the 3-year

period of 1987 through 1989. Refer to section 185A

of the CAA and the ‘‘General Preamble for the

Implementation of Title I of the Clean Air Act

Amendments of 1990’’, 57 FR 13498, April 16,

1992. See specifically 57 FR 13523–27, April 16,

1992.

Roy Romer, for our approval, on August

8, 1996.

In this action, EPA is proposing

approval and soliciting public comment

on the Denver 1-hour ozone

redesignation request, the Stateproposed maintenance plan, and the

revisions to Regulation No. 3 and

Regulation No. 7.

DATES: Written comments must be

received on or before June 11, 2001.

ADDRESSES: Written comments may be

mailed to:

Richard R. Long, Director, Air and

Radiation Program, Mailcode 8P–AR,

United States Environmental

Protection Agency, Region VIII, 999

18th Street, Suite 300, Denver,

Colorado 80202–2466.

Copies of the documents relevant to

this action are available for public

inspection during normal business

hours at the following offices:

United States Environmental Protection

Agency, Region VIII, Air and

Radiation Program, 999 18th Street,

Suite 300, Denver, Colorado 80202–

2466.

Copies of the State documents

relevant to this action are available for

public inspection at:

Colorado Department of Health and

Environment, Air Pollution Control

Division, 4300 Cherry Creek Drive

South, Denver, Colorado 80246–1530.

FOR FURTHER INFORMATION CONTACT: Tim

Russ, Air and Radiation Program,

Mailcode 8P–AR, United States

Environmental Protection Agency,

Region VIII, 999 18th Street, Suite 300,

Denver, Colorado 80202–2466,

Telephone number: (303) 312–6479

SUPPLEMENTARY INFORMATION:

Throughout this document wherever

‘‘we’’, ‘‘us’’, or ‘‘our’’ are used we mean

the Environmental Protection Agency.

I. What is the purpose of this action?

With this action, we are utilizing our

parallel processing procedure for

consideration of several revisions to the

Colorado State Implementation Plan

(SIP). Parallel processing allows EPA to

propose rulemaking on a SIP revision(s),

and solicit public comment, at the same

time the State is processing the SIP

revision(s). The Colorado Air Quality

Control Commission (AQCC) adopted

the proposed SIP revisions, with minor

technical changes that we do not

consider significant, on January 11,

2001. When the Governor submits the

final revisions to us for approval, we

will consider any comments received

and proceed with a final rulemaking

action. However, should the State

substantially change any of the

proposed SIP revisions before the

Governor submits the final versions to

us, we will re-propose and again solicit

public comment on these State amended

SIP revisions before we take final

rulemaking action. For further

information regarding parallel

processing, please see 40 CFR Part 51,

Appendix V, section 2.3.1.

In this action, we are proposing

approval of a change in the legal

designation of the Denver area from

nonattainment to attainment for the 1-

hour ozone NAAQS (hereafter referred

to as ozone NAAQS or ozone standard),

we’re proposing approval of the AQCCadopted maintenance plan that is

designed to keep the area in attainment

for ozone for the next 13 years, and

we’re proposing approval of changes to

AQCC Regulation No. 3 and AQCC

Regulation No. 7. We also note that in

his November 30, 2000, letter, the

Governor asked that we parallel process

a potential alternative provision for the

maintenance plan that had been

proposed by the Colorado Department of

Transportation (CDOT). CDOT’s

alternative provision involved the

conversion of the Santa Fe Boulevard

High Occupancy Vehicle (HOV) lanes to

general service lanes and the provision

of funds to provide additional light rail

transit cars to compensate for the loss of

the HOV emission reductions. However,

in a December 6, 2000, letter (that we

received on December 19, 2000) from

CDOT to the AQCC, CDOT withdrew its

request for this alternative provision

indicating that it could not guarantee

light rail transit cars to replace the HOV

lanes. Based on our understanding that

this CDOT proposed alternative

provision is moot, we are not proposing

action on this alternative.

We originally designated the Denver

area as nonattainment for ozone under

the provisions of the 1977 CAA

Amendments (see 43 FR 8962, March 3,

1978). On November 15, 1990, the Clean

Air Act Amendments of 1990 were

enacted (Public Law 101–549, 104 Stat.

2399, codified at 42 U.S.C. 7401–7671q).

Under section 107(d)(1)(C) of the Clean

Air Act (CAA), EPA designated the

Denver area as nonattainment for ozone

because the area had been previously

designated as nonattainment before

November 15, 1990. The Denver area

was classified under section 185A of the

CAA as a ‘‘transitional’’ ozone

nonattainment area as the area had not

violated the ozone NAAQS in the years

1987, 1988, and 1989.1

Under the CAA, designations can be

changed if sufficient data are available

to warrant such changes and if certain

other requirements are met. See CAA

section 107(d)(3)(D). Section

107(d)(3)(E) of the CAA provides that

the Administrator may not promulgate a

redesignation of a nonattainment area to

attainment unless:

(i) the Administrator determines that

the area has attained the national

ambient air quality standard;

(ii) the Administrator has fully

approved the applicable

implementation plan for the area under

CAA section 110(k);

(iii) the Administrator determines that

the improvement in air quality is due to

permanent and enforceable reductions

in emissions resulting from

implementation of the applicable

implementation plan and applicable

Federal air pollutant control regulations

and other permanent and enforceable

reductions;

(iv) the Administrator has fully

approved a maintenance plan for the

area as meeting the requirements of

CAA section 175A; and,

(v) the State containing such area has

met all requirements applicable to the

area under section 110 and part D of the

CAA.

Thus, before EPA can approve the

redesignation request, EPA must find,

among other things, that all applicable

SIP elements have been fully approved.

Approval of the applicable SIP elements

may occur prior to final approval of the

redesignation request or simultaneously

with final approval of the redesignation

request. EPA notes there are no

outstanding SIP elements necessary for

the redesignation. However, the

Governor previously requested approval

of revisions to Regulation No. 3 and

Regulation No. 7 such that rules

applicable to the Denver ozone

nonattainment area remain in effect

after Denver is redesignated to

attainment for the 1-hour ozone

standard. Therefore, EPA is also

proposing approval of the revisions to

Regulation No. 3 and Regulation No. 7.

These revisions are described below.

II. What is the State’s process to submit

these materials to EPA?

Section 110(k) of the CAA addresses

our actions on submissions of revisions

to a SIP. The CAA requires States to

observe certain procedural requirements

Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24077

2The Supreme Court issued an opinion on

February 27, 2001, that requires EPA to revisit its

policy for implementing the new 8-hour ozone

NAAQS and remands the case back to the Court of

Appeals for the D.C. Circuit. There is still

considerable uncertainty about when or whether we

will be able to implement the new 8-hour ozone

NAAQS. Thus, the Supreme Court’s decision is

largely irrelevant to this action.

3Refer to EPA’s September 4, 1992, John Calcagni

policy memorandum entitled ‘‘Procedures for

Processing Requests to Redesignate Areas to

Attainment.’’

in developing SIP revisions for

submittal to us. Section 110(a)(2) of the

CAA requires that each SIP revision be

adopted after reasonable notice and

public hearing. This must occur prior to

the final revisions being submitted by a

State to us.

At the October 19, 2000, AQCC

meeting, the Commission proposed for

public comment the ozone

redesignation request and maintenance

plan. The AQCC held a public hearing

on January 11, 2001, for considering

public comment on the above SIP

revisions. After accepting several minor

technical corrections to the maintenance

plan, the AQCC adopted the Denver 1-

hour ozone redesignation request and

maintenance plan on January 11, 2001.

The AQCC had previously held a

public hearing on March 21, 1996, for

the revisions to AQCC Regulation No. 3

‘‘Air Contaminant Emissions Notices’’

(hereafter, Regulation No. 3) and AQCC

Regulation No. 7 ‘‘Emissions of Volatile

Organic Compounds’’ (hereafter,

Regulation No. 7). The AQCC adopted

the revisions to Regulation No. 3 and

Regulation No. 7 directly after the

hearing. These SIP revisions became

State effective May 30, 1996, and were

submitted by the Governor to us on

August 8, 1996.

We have evaluated the Governor’s

prior submittal involving the revisions

to Regulation No. 3 and Regulation No.

7 and have determined that the State

met the requirements for reasonable

notice and public hearing under section

110(a)(2) of the CAA. By operation of

law under section 110(k)(1)(B) of the

CAA, the Governor’s August 8, 1996,

submittal of the revisions to Regulation

No. 3 and Regulation No. 7 became

complete on February 6, 1997.

III. EPA’s Evaluation of the

Redesignation Request and

Maintenance Plan

EPA has reviewed the State’s

redesignation request and maintenance

plan and believes that approval of the

request is warranted, consistent with the

requirements of CAA section

107(d)(3)(E). The following are

descriptions of how the section

107(d)(3)(E) requirements are being

addressed.

(a) Brief History of the Denver Ozone

Redesignation Request, Maintenance

Plan, and Related SIP Submittals.

On August 8, 1996, the Governor of

Colorado submitted a redesignation

request and maintenance plan for the 1-

hour ozone NAAQS for the Denver area

along with revisions to Regulation No.

3 and Regulation No. 7 to ensure that

rules applicable to the Denver

nonattainment area would remain in

effect after Denver was redesignated to

attainment. We did not proceed with

any action on the Governor’s submittal

as the maintenance plan had both legal

and technical problems that precluded

our full approval.

On July 18, 1997, EPA promulgated

the new 8-hour ozone NAAQS (see 62

FR 38856, July 18, 1997). In conjunction

with that action, President Clinton

issued a memorandum to the

Administrator of the Environmental

Protection Agency, on July 16, 1997,

entitled ‘‘Implementation of Revised Air

Quality Standards for Ozone and

Particulate Matter.’’ This memorandum

directed the Administrator to review

current ambient air quality data and to

proceed with revoking the 1-hour ozone

standard for all areas that were in

attainment for the 1-hour standard. On

June 5, 1998, we revoked the 1-hour

ozone NAAQS for the Denver area (see

63 FR 31014) as the area had the

necessary ambient air quality data

showing that the area was in attainment

for the 1-hour NAAQS. At that time, the

August 8, 1996, Denver 1-hour ozone

redesignation request and maintenance

plan became moot and no further action

was contemplated by either the State or

us.

The new 8-hour ozone NAAQS was

challenged by the American Trucking

Association and others. In a May 14,

1999, opinion, the U.S. Court of Appeals

for the District of Columbia (D.C.)

Circuit stated that although EPA could

designate areas as attainment or

nonattainment for the 8-hour standard,

we could not ‘‘enforce’’ (implement) the

8-hour standard. The result of this

decision was that areas like Denver

found themselves with the 1-hour ozone

standard revoked and an 8-hour ozone

standard that could not be enforced or

implemented. We petitioned the U.S.

Supreme Court to review several aspects

of the D.C. Circuit’s opinion.2

To continue to protect the public’s

health while waiting for the Supreme

Court review, we reinstated the 1-hour

ozone standard on July 20, 2000, (see 65

FR 45182) for all areas of the nation in

which it had been previously revoked.

This action had a delayed effective date

for certain areas of the nation, such as

Denver, to allow these areas to proceed

with redesignation requests for the 1-

hour standard. The 1-hour ozone

NAAQS was reinstated for the Denver

area on January 16, 2001, and at that

time the area returned to its legal

designation of nonattainment for the 1-

hour ozone standard. Based on the

above Federal actions, the Denver

Regional Air Quality Council (RAQC)

and State prepared a revised

redesignation request and maintenance

plan for the 1-hour ozone standard. The

AQCC proposed these ozone SIP

revisions for public comment at their

meeting of October 19, 2000, and they

were submitted by the Governor to us

on November 30, 2000. The ozone SIP

revisions we received from the

Governor, and the revisions adopted by

the AQCC on January 11, 2001, which

made minor technical corrections to the

Governor’s November 30, 2000,

submittal, form the basis for this

proposed rule.

(b) Redesignation Criterion: The Area

Must Have Attained The 1-Hour Ozone

NAAQS.

Section 107(d)(3)(E)(i) of the CAA

states that for an area to be redesignated

to attainment, the Administrator must

determine that the area has attained the

applicable NAAQS.

As described in 40 CFR 50.9 and 40

CFR part 50, Appendix H, the national

primary ambient air quality 1-hour

ozone standard is 0.12 parts per million

(235 milligrams per cubic meter) for a 1-

hour average concentration not to be

exceeded more than once per year.

Attainment of the ozone standard is not

a momentary phenomenon based on

short-term data. Each of the ozone

ambient air quality monitors in the

network are allowed to record three or

fewer exceedances of the ozone

standard over a continuous three-year

period. 40 CFR 50.9 and 40 CFR part 50,

Appendix H. If a single monitor in the

ozone monitoring network records more

than three expected exceedances (based

on the expected exceedance calculation

method in Appendix H) or actual

exceedances of the standard over a

three-year period then the area is in

violation of the ozone NAAQS. In

addition, EPA’s interpretation of the

CAA and EPA national policy 3 has been

that an area seeking redesignation to

attainment must continue to show

attainment of the ozone NAAQS

through the date that EPA promulgates

the redesignation to attainment in the

Federal Register.

The ozone redesignation request for

the Denver area is based on an analysis

of quality assured ambient air quality

24078 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

monitoring data that are relevant to the

redesignation request. The Denver area

has not violated the 1-hour ozone

standard since 1987. Ambient air

quality monitoring data for consecutive

calendar years 1997 through 1999 show

an expected exceedance rate of less than

1.0 per year, per monitor, of the ozone

NAAQS in the Denver nonattainment

area. These data were collected and

analyzed as required (see 40 CFR 50.9

and 40 CFR part 50, Appendix H) and

have been archived by the State in

EPA’s Aerometric Information and

Retrieval System (AIRS) national

database. A preliminary analysis of data

for 2000 also show continued

attainment of the 1-hour ozone

standard.

Further information on ozone

monitoring is presented in Chapter 2,

section B, ‘‘Attainment of the One-Hour

Ozone NAAQS,’’ of the State’s

maintenance plan and in the State’s

Technical Support Document (TSD).

Exceedances of the 1-hour ozone

standard have been measured at

separate monitors in 1993, 1995, and

1998. We note, however, that the Denver

area has not violated the ozone standard

and continues to demonstrate

attainment.

Because the Denver nonattainment

area has complete quality-assured data

showing no violations of the ozone

NAAQS over the most recent

consecutive three-calendar-year period,

the Denver area has met the first

requirement for redesignation;

demonstration of attainment of the

ozone NAAQS. EPA notes that the State

of Colorado has also committed in the

maintenance plan to the necessary

continued operation of the ozone

monitoring network in compliance with

40 CFR part 58.

(c) Redesignation Criterion: The Area

Must Have Met All Applicable

Requirements Under Section 110 And

Part D Of The CAA

Section 107(d)(3)(E)(v) requires that,

to be redesignated to attainment, an area

must meet all applicable requirements

under section 110 and part D of the

CAA. EPA interprets section

107(d)(3)(E)(v) to mean that for a

redesignation to be approved, the State

must meet all requirements that applied

to the subject area prior to or at the time

of the submission of a complete

redesignation request. Requirements of

the CAA due after the submission of a

complete redesignation request need not

be considered in evaluating the request.

1. CAA Section 110 Requirements

On December 12, 1983, we approved

revisions to Colorado’s SIP as meeting

the requirements of section 110(a)(2) of

the CAA (see 48 FR 55284). Although

section 110 of the CAA was amended in

1990, most of the changes were not

substantial. Thus, we have determined

that the SIP revisions approved in 1983

continue to satisfy the requirements of

section 110(a)(2). For further detail,

please see 48 FR 55284. In addition, we

have analyzed the SIP elements that we

are approving as part of this action and

we have determined they comply with

the relevant requirements of section

110(a)(2).

2. Part D Requirements

Before the Denver transitional ozone

nonattainment area may be redesignated

to attainment, the State must have

fulfilled the applicable requirements of

part D. Under part D, an area’s

classification indicates the requirements

to which it will be subject. Subpart 1 of

part D sets forth the basic nonattainment

requirements applicable to all

nonattainment areas, whether classified

or nonclassifiable. Subpart 2 of part D

contains specific provisions for

transitional areas.

The relevant Subpart 1 requirements

are contained in sections 172(c) and

176. The General Preamble (57 FR

13498, April 16, 1992) provides EPA’s

interpretations of the CAA requirements

for transitional ozone areas (see 57 FR

13524–26).

Under section 172(b), the applicable

section 172(c) requirements, as

determined by the Administrator, were

due no later than three years after an

area was designated as nonattainment

under section 107(d) of the amended

CAA (see 56 FR 56694 and 57 FR

13525). In the case of the Denver area,

the due date was November 15, 1993. As

the original Denver 1-hour ozone

standard redesignation request and

maintenance plan were not submitted

by the Governor until August 8, 1996,

(and the current revised redesignation

request and maintenance plan were

submitted on November 30, 2000) the

General Preamble (57 FR 13525)

provides our interpretation that the

applicable requirements of CAA section

172 are 172(c)(1) (Reasonably available

control technology (RACT)/Reasonably

available control measures (RACM)),

172(c)(3) (emissions inventory),

172(c)(5)(new source review permitting

program), and 172(c)(7)(the section

110(a)(2) air quality monitoring

requirements)). It is our view that Part

D requirements for an attainment

demonstration, reasonable further

progress (RFP), and contingency

measures (CAA section 172(c)(9)) are

not applicable to transitional ozone

areas. See 57 FR 13525, April 16, 1992.

It is also worth noting that EPA has

interpreted the requirements of sections

172(c)(2) (reasonable further progress—

RFP), 172(c)(6)(other measures), and

172(c)(9)(contingency measures) as

being irrelevant to a redesignation

request for a transitional ozone

nonattainment area because they only

have meaning for an area that is not

attaining the standard. See EPA’s

September 4, 1992, John Calcagni

memorandum entitled, ‘‘Procedures for

Processing Requests to Redesignate

Areas to Attainment’’, and the General

Preamble, 57 FR at 13525, dated April

16, 1992. Finally, the State has not

sought to exercise the options that

would trigger sections

172(c)(4)(identification of certain

emissions increases) and

172(c)(8)(equivalent techniques). Thus,

these provisions are also not relevant to

this redesignation request.

Section 176 of the CAA contains

requirements related to conformity.

Although EPA’s regulations (see 40 CFR

51.396) require that states adopt

transportation conformity provisions in

their SIPs for areas designated

nonattainment or subject to an EPAapproved maintenance plan, we have

decided that a transportation conformity

SIP is not an applicable requirement for

purposes of evaluating a redesignation

request under section 107(d) of the

CAA. This decision is reflected in our

1996 approval of the Boston carbon

monoxide redesignation. (See 61 FR

2918, January 30, 1996.)

In that action, EPA explained that its

decision was based on a combination of

two factors. First, the requirement to

submit SIP revisions to comply with the

conformity provisions of the CAA

continues to apply to areas after

redesignation to attainment. Therefore,

the State remains obligated to adopt the

transportation conformity rules even

after redesignation and would risk

sanctions for failure to do so. Unlike

most requirements of section 110 and

part D, which are linked to the

nonattainment status of an area, and are

not required after redesignation of an

area to attainment, the conformity

requirements apply to both

nonattainment and maintenance areas.

Second, EPA’s federal conformity rules

require the performance of conformity

analyses in the absence of State-adopted

rules. Therefore, a delay in adopting

State rules does not relieve an area from

the obligation to implement conformity

requirements.

Because areas are subject to the

conformity requirements regardless of

whether they are redesignated to

attainment and must implement

conformity under Federal rules if State

rules are not yet adopted, EPA believes

Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24079

it is reasonable to view these

requirements as not being applicable

requirements for purposes of evaluating

a redesignation request. Further

information regarding transportation

conformity and mobile source emission

budgets are found below in section IV

‘‘Transportation Conformity’’.

The applicable requirements of CAA

section 172 are discussed below.

A. Section 172(c)(1)—RACT/RACM

To satisfy section 172(c)(1),

transitional areas (section 185A) that

continued to show no violations of the

1-hour ozone standard as of December

31, 1991, must ensure, at a minimum,

that any deficiencies regarding

enforceability of an existing rule are

corrected. While section 185A of the

CAA exempts transitional areas from all

subpart 2 requirements until December

31, 1991, and that exemption continues

until the area is redesignated to

attainment (assuming the area

satisfactorily demonstrated attainment

by December 31, 1991), States should be

aware that in order to be redesignated to

attainment such areas must correct any

RACT deficiencies regarding

enforceability. See 57 FR 13525, April

16, 1992.

On September 27, 1989, and on

August 30, 1990, the Governor

submitted revisions to Regulation No. 7

that address RACT for sources of

Volatile Organic Compounds (VOC) in

ozone nonattainment areas, which

includes Denver. We approved these

revisions on June 29, 1995 (see 60 FR

28055).

B. Section 172(c)(3)—Emissions

Inventory

Section 172(c)(3) of the CAA requires

a comprehensive, accurate, current

inventory of all actual emissions from

all sources in the Denver nonattainment

area. Our interpretation of the emission

inventory requirement for transitional

ozone nonattainment areas is detailed in

the General Preamble (57 FR 13525,

April 16, 1992). We determined that an

emissions inventory is specifically

required under CAA section 172(c)(3)

and is not tied to an area’s proximity to

attainment.

On August 8, 1996, the Governor

submitted the original Denver 1-hour

ozone redesignation request and

maintenance plan. This submittal

contained a 1993 attainment year

inventory for the Denver ozone

nonattainment area. The Governor’s

parallel processing submittal of the

revised redesignation request and

maintenance plan, dated November 30,

2000, also contains this 1993 attainment

year inventory. Once EPA receives the

Governor’s final submittal, and we are

able to approve the Denver ozone

redesignation request and maintenance

plan, this section 172(c)(3) requirement

will be fulfilled.

C. Section 172(c)(5)—New Source

Review (NSR)

The CAA requires all nonattainment

areas to meet several requirements

regarding NSR, including provisions to

ensure that increased emissions will not

result from any new or modified

stationary major sources and a general

offset rule. The State of Colorado has a

fully-approved NSR program (59 FR

42500, August 18, 1994) that meets the

requirements of CAA section 172(c)(5).

The State also has a fully approved

Prevention of Significant Deterioration

(PSD) program (59 FR 42500, August 18,

1994) that will apply if we approve the

redesignation to attainment.

D. Section 172(c)(7)—Compliance With

CAA section 110(a)(2): Air Quality

Monitoring Requirements

According to our interpretations

presented in the General Preamble (57

FR 13525, April 16, 1992), transitional

ozone nonattainment areas must meet

the ‘‘applicable’’ air quality monitoring

requirements of section 110(a)(2) of the

CAA as explicitly referenced by sections

172(b) and (c) of the CAA. With respect

to this requirement, the State indicates

in Chapter 2, section B of the

maintenance plan (‘‘Attainment of the

One-Hour Ozone NAAQS’’), that

ambient ozone monitoring data have

been properly collected and uploaded to

EPA’s Aerometric Information and

Retrieval System (AIRS) for the Denver

area. Air quality data through 1999 are

included in Chapter 2, section B of the

maintenance plan and in the State’s

TSD. We recently polled the AIRS

database and verified that the State has

also uploaded additional ambient ozone

data through July 31, 2000. The data in

AIRS indicate that the Denver area has

shown, and continues to show,

attainment of the 1-hour ozone NAAQS.

Information concerning ozone

monitoring in Colorado is included in

the Monitoring Network Review (MNR)

prepared by the State and submitted to

EPA. Our personnel have concurred

with Colorado’s annual network reviews

and have agreed that the Denver ozone

network remains adequate. Finally, in

Chapter 3, section E, (‘‘Monitoring

Network / Verification of Continued

Attainment’’) of the maintenance plan,

the State commits to the continued

operation of the ozone monitoring

network, according to all applicable

Federal regulations and guidelines, even

after the Denver area is redesignated to

attainment for the 1-hour ozone

NAAQS.

(d) Redesignation Criterion: The Area

Must Have A Fully Approved SIP Under

Section 110(k) Of The CAA

Section 107(d)(3)(E)(ii) of the CAA

states that for an area to be redesignated

to attainment, it must be determined

that the Administrator has fully

approved the applicable

implementation plan for the area under

section 110(k).

Based on the approval into the SIP of

provisions under the pre-1990 CAA, our

prior approval of SIP revisions required

under the 1990 amendments to the

CAA, and our proposed approval of the

maintenance plan, we have determined

that Colorado will have a fully approved

ozone SIP under section 110(k) for the

Denver ozone nonattainment area if we

approve the maintenance plan.

(e) Redesignation Criterion: The Area

Must Show That The Improvement In

Air Quality Is Due To Permanent And

Enforceable Emissions Reductions.

Section 107(d)(3)(E)(iii) of the CAA

provides that for an area to be

redesignated to attainment, the

Administrator must determine that the

improvement in air quality is due to

permanent and enforceable reductions

in emissions resulting from

implementation of the applicable

implementation plan (Denver ozone

revision as approved on December 12,

1983, see 48 FR 55284), implementation

of applicable Federal air pollutant

control regulations, and other

permanent and enforceable reductions.

The emissions reductions of ozone

precursors (VOCs and Nitrogen Oxides

or NOX) that have occurred over the past

several years were achieved primarily

through Federal emission control

measures, CAA-required improvements

to the State vehicle inspection and

maintenance (I/M) program, AQCC

Regulations No. 3 and No. 6, and AQCC

Regulation No. 7.

The Federal Motor Vehicle Control

Program (FMVCP) achieved VOC and

NOX emission reductions. In general,

the FMVCP provisions require vehicle

manufacturers to meet more stringent

vehicle emission limitations for new

vehicles in future years. These emission

limitations are phased in (as a

percentage of new vehicles

manufactured) over a period of years. As

new, lower emitting vehicles replace

older, higher emitting vehicles (‘‘fleet

turnover’’), emission reductions are

realized for a particular area such as

Denver. For example, EPA promulgated

lower hydrocarbon (HC) (of which VOCs

are a portion) and CO exhaust emission

standards in 1991, known as Tier I

standards for new motor vehicles (lightVerDate 11<MAY>2000 11:22 May 10, 2001 Jkt 194001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\11MYP1.SGM pfrm06 PsN: 11MYP1
24080 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

duty vehicles and light-duty trucks), in

response to the 1990 CAA amendments.

These Tier I emissions standards were

phased in with 40% of the 1994 model

year fleet, 80% of the 1995 model year

fleet, and 100% of the 1996 model year

fleet.

Colorado’s Automobile Inspection

and Readjustment (AIR) program is fully

described in AQCC Regulation No. 11

(‘‘Motor Vehicle Emissions Inspection

Program’’) and has been applicable in

the Denver area since 1981. The AIR

program works to reduce VOC and NOX

emissions from gasoline-powered motor

vehicles by requiring them to meet

emission standards through periodic

tailpipe tests, maintenance, and specific

repairs. The AIR program was updated

in 1994 to meet the requirements of the

CAA amendments of 1990, and a more

stringent and effective ‘‘enhanced’’

inspection and maintenance program

began in the Denver area in 1995. The

enhanced program uses a loaded-mode

dynamometer test called the ‘‘I/M 240’’

for 1982 and newer vehicles and an idle

test for 1981 and older vehicles and

heavy trucks.

The State’s permit rules for stationary

sources, AQCC Regulation No. 3 (‘‘Air

Contaminant Emissions Notices’’) and

AQCC Regulation No. 6 (‘‘Standards of

Performance for New Stationary

Sources’’) control emissions from

industrial facilities and cap VOC and

NOX emissions from new or modified

major stationary sources.

Finally, the State has Regulation No.

7 (‘‘Emissions of Volatile Organic

Compounds’’) which contains RACT

requirements for commercial and

industrial sources of VOCs. As noted

above, the State submitted substantial

revisions to Regulation No. 7 in 1989

and 1990 that we approved on May 30,

1995 (see 60 FR 28055).

We have evaluated the various State

and Federal control measures, the 1993

attainment year emission inventory, and

the projected emissions described

below, and have concluded that the

improvement in air quality in the

Denver nonattainment area has resulted

from emission reductions that are

permanent and enforceable.

(f) Redesignation Criterion: The Area

Must Have A Fully Approved

Maintenance Plan Under CAA Section

175A.

Section 107(d)(3)(E)(iv) of the CAA

provides that for an area to be

redesignated to attainment, the

Administrator must have fully approved

a maintenance plan for the area meeting

the requirements of section 175A of the

CAA.

Section 175A of the CAA sets forth

the elements of a maintenance plan for

areas seeking redesignation from

nonattainment to attainment. The

maintenance plan must demonstrate

continued attainment of the applicable

NAAQS for at least ten years after the

Administrator approves a redesignation

to attainment. Eight years after the

promulgation of the redesignation, the

State must submit a revised

maintenance plan that demonstrates

continued attainment for the subsequent

ten-year period following the initial tenyear maintenance period. To address the

possibility of future NAAQS violations,

the maintenance plan must contain

contingency measures, with a schedule

for adoption and implementation, that

are adequate to assure prompt

correction of a violation. In addition, we

issued further maintenance plan

interpretations in the ‘‘General Preamble

for the Implementation of Title I of the

Clean Air Act Amendments of 1990’’ (57

FR 13498, April 16, 1992), ‘‘General

Preamble for the Implementation of

Title I of the Clean Air Act Amendments

of 1990; Supplemental’’ (57 FR 18070,

April 28, 1992), and the EPA guidance

memorandum entitled ‘‘Procedures for

Processing Requests to Redesignate

Areas to Attainment’’ from John

Calcagni, Director, Air Quality

Management Division, Office of Air

Quality and Planning Standards, to

Regional Air Division Directors, dated

September 4, 1992.

In this Federal Register action, we are

proposing approval of the State of

Colorado’s maintenance plan for the

Denver ozone nonattainment area

because we have determined, as

detailed below, that the State’s

maintenance plan submittal meets the

requirements of section 175A and is

consistent with the documents

referenced above. Our analysis of the

pertinent maintenance plan

requirements, with reference to the

Governor’s November 30, 2000,

submittal, is provided as follows:

1. Emissions Inventories—Attainment

Year and Projections

Our interpretations of the CAA

section 175A maintenance plan

requirements are generally provided in

the General Preamble and the

September 4, 1992, policy memorandum

referenced above. Under our

interpretations, areas seeking to

redesignate to attainment for the 1-hour

ozone NAAQS may demonstrate future

maintenance of the ozone NAAQS

either by showing that future VOC and

NOX emissions will be equal to or less

than the attainment year emissions or by

providing a modeling demonstration.

For the Denver area, the State selected

the emissions inventory approach for

demonstrating maintenance of the ozone

NAAQS.

The maintenance plan that the

Governor submitted on November 30,

2000, included comprehensive

inventories of VOC and NOX emissions

for the Denver area. These inventories

include emissions from stationary point

sources, area sources, non-road mobile

sources, on-road mobile sources, and

biogenics. The State selected 1993 as the

year from which to develop the

attainment year inventory and included

projections for 2006 and 2013. More

detailed descriptions of the 1993

attainment year inventory and the

projected inventories are documented in

the maintenance plan in Chapter 3,

section B, (‘‘Emission Inventories’’),

Appendix A, (‘‘Emission Inventories’’)

of the maintenance plan, and in the

State’s TSD. The State’s submittal

contains detailed emission inventory

information that was prepared in

accordance with EPA guidance.

A. Emission Inventory Corrections and

Changes; As Adopted on January 11,

2001

At the January 11, 2001, AQCC public

hearing for the Denver 1-hour ozone

redesignation request and maintenance

plan, the RAQC and State brought

forward several minor corrections and

changes for consideration by the public

and AQCC. These minor corrections/

changes were as follows:

1. In preparing the emission

inventories, the State used mobile

source gridded VMT data that had been

previously developed for the Denver

area’s carbon monoxide redesignation

request and maintenance plan. The

gridded VMT data, that were originally

prepared for the Urban Airshed Model

(UAM), covered a larger area than the

Denver 1-hour ozone nonattainment

area. The ozone maintenance plan

inadvertently included calculated

mobile source emissions for the larger

UAM modeling domain area rather than

just the ozone attainment/maintenance

area. The emission inventories are to be

calculated to be consistent with the

original nonattainment area and the

attainment/maintenance area

boundaries. The mobile source emission

figures for 1993, 2006, and 2013 were all

corrected to reflect the appropriate area

in both the maintenance plan and TSD.

2. In reference to the above, the motor

vehicle VOC and NOX conformity

emission budgets were corrected to

reflect the emissions only for the ozone

attainment/maintenance area

boundaries. The corrections were done

for both the maintenance plan and TSD.

3. The Denver International Airport

(DIA) provided the RAQC and State

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updated emission estimates that

reflected the projected expansion and

associated growth of aircraft operations

and ground support equipment at DIA.

These revised estimates were

incorporated into both the maintenance

plan and TSD.

4. An error was discovered in the nonroad emissions category. In reviewing

VOC emissions that were estimated for

farm equipment a figure of 9.0 tons per

day of VOCs had been used in the 1993

attainment year inventory. This figure

actually should have been 0.9 tons per

day of VOCs. This correction was

reflected in both the maintenance plan

and TSD.

Summary emission figures, that

include the corrections adopted at the

AQCC January 11, 2001 public hearing,

from the 1993 attainment year and the

projected years are provided in Table

III.–1 and Table III.–2 below.

TABLE III.–1—SUMMARY OF VOC EMISSIONS IN TONS PER DAY FOR DENVER

1993 Rev. 1993 1 2006 Rev. 2006 1 2013 Rev. 2013 1

Point Sources ................................................................... 46 46 52 52 56 56

Area Sources ................................................................... 74 74 73 73 80 80

Non-Road Mobile Sources ............................................... 67 58 40 39 40 38

On-Road Mobile Sources ................................................ 124 119 89 84 77 74

Biogenics .......................................................................... 211 211 211 211 211 211

Total .......................................................................... 522 507 456 460 464 459

1These are the revised inventory figures that represent the technical corrections that were adopted by AQCC with the maintenance plan and

TSD at the January 11, 2001, public hearing.

TABLE III.–2—SUMMARY OF NOX EMISSIONS IN TONS PER DAY FOR DENVER

1993 Rev. 1993 1 2006 Rev. 2006 1 2013 2013 1

Point Sources ................................................................... 122 122 123 123 126 126

Area Sources ................................................................... 7 7 10 10 11 11

Non-Road Mobile Sources ............................................... 64 65 51 57 40 50

On-Road Mobile Sources ................................................ 139 134 121 115 123 117

Biogenics .......................................................................... 4 4 4 4 4 4

Total .......................................................................... 336 332 309 309 304 308

1These are the revised inventory figures that represent the technical corrections that were adopted by AQCC with the maintenance plan and

TSD at the January 11, 2001, public hearing.

2. Demonstration of Maintenance—

Projected Inventories

As noted above, total VOC and NOX

emissions were projected by the State

for 2006 and 2013. The years 2006 and

2013 were selected by the State, with

EPA’s concurrence, due to the

immediate availability of transportation

data sets from the Denver Regional

Council Of Governments (DRCOG) from

the work performed on the Denver

carbon monoxide (CO) redesignation

request and maintenance plan.

The Denver CO redesignation request

and maintenance plan were submitted

to us on May 10, 2000. This

maintenance plan used the latest

revised transportation data sets that

were developed by DRCOG for the State

to model the mobile source emissions.

In addition, the CO maintenance plan

incorporated changes to AQCC

Regulation No. 11 that would initiate a

Remote Sensing Device (RSD) program

in 2002 and affect the cutpoints for the

enhanced I/M program. Both of these I/

M program revisions would also directly

affect emission reductions for the ozone

maintenance plan.

The RSD program is designed to

evaluate 20% of the fleet in 2003, 40%

of the fleet in 2004, 60% of the fleet in

2005, and 80% of the fleet in 2006. The

RSD program will continue through

2013. In conjunction with the new RSD

program, Regulation No. 11’s enhanced

I/M program will continue to apply to

evaluate the remainder of the fleet and

those vehicles that did not pass

evaluation by the RSD program. Also,

the enhanced I/M cutpoints will be

tightened from the current levels of 2.0

grams per mile for hydrocarbons (HC)

and 4.0 grams per mile for NOX to 0.6

grams per mile HC and 1.5 grams per

mile NOX in 2006 and will continue

through 2013. We have reviewed these

State-adopted changes to Regulation No.

11 and will be proposing approval of

them in a separate rulemaking action for

the Denver CO redesignation request

and maintenance plan. We note that the

State has properly accounted for these

Regulation No. 11 revisions in the

projected emission inventories for 2006

and 2013 and is able to demonstrate

maintenance of the 1-hour ozone

standard. In the event that we are

unable to approve the Regulation No. 11

revisions that were submitted by the

Governor on May 10, 2000, this would

not have an adverse impact on the

Denver ozone maintenance plan as the

current I/M program would continue

and would provide greater emission

reductions than the State has projected

for the amended version of Regulation

No. 11. In either scenario, the

maintenance demonstration would still

be valid.

For the ozone maintenance plan, the

1993 attainment year inventory and the

projected 2006 and 2013 inventories

were all prepared in accordance with

EPA guidance. As stated in the

maintenance plan, the projected

emission inventories show a steady

downward trend in both VOC and NOX

emissions. This is due mainly to more

stringent motor vehicle tailpipe

emission standards and additional

Federal rule requirements for non-road

sources of emissions. Because of this

steady downward trend in emissions

and because future year emissions are

projected to be considerably below the

1993 attainment year levels, the State

expects there will be no increases in

emissions in the years between the

present and 2013 that will jeopardize

the demonstration of maintenance.

Based on the information in the

maintenance plan and the State’s TSD,

we agree with this conclusion.

Therefore, as the projected 2006 and

2013 inventories show that VOC and

24082 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

NOX emissions are not estimated to

exceed the 1993 attainment levels

during the time period from the present

through 2013, the Denver area has

satisfactorily demonstrated maintenance

of the 1-hour ozone NAAQS.

3. Monitoring Network and Verification

of Continued Attainment

Continued attainment of the 1-hour

ozone NAAQS in the Denver area

depends, in part, on the State’s efforts

to track indicators throughout the

maintenance period. This requirement

is met in two sections of the Denver

maintenance plan. In Chapter 2, section

B and Chapter 3, section E the State

commits to continue the operation of

the ozone monitors in the Denver area

and to annually review this monitoring

network and make changes as

appropriate.

Also, in Chapter 3, section F,

(‘‘Contingency Provisions’’), the State

commits to track mobile sources’’ VOC

and NOX precursor emissions (which

are the largest component of the

inventories) through the ongoing

regional transportation planning process

that is done by DRCOG. Since revisions

to Denver’s transportation improvement

programs are prepared every two years,

and must go through a transportation

conformity finding, the State will use

this process to periodically review

progress towards meeting the Vehicle

Miles Traveled (VMT) and mobile

source emissions projections used in the

maintenance plan. This regional

transportation process is conducted by

DRCOG in coordination with the RAQC,

the State’s Air Pollution Control

Division (APCD), the AQCC, and EPA.

Based on the above, we are proposing

approval of these commitments as

satisfying the relevant requirements. We

note that a final rulemaking approval

will render the State’s commitments

federally enforceable.

4. Contingency Plan

Section 175A(d) of the CAA requires

that a maintenance plan include

contingency provisions. To meet this

requirement, the State has identified

appropriate contingency measures along

with a schedule for the development

and implementation of such measures.

As stated in Chapter 3, section F,

(‘‘Contingency Provisions’’) of the

maintenance plan, the contingency

measures for the Denver area will be

triggered by a violation of the 1-hour

ozone NAAQS. (However, the

maintenance plan does note that an

exceedance of the 1-hour ozone NAAQS

may initiate a voluntary, local process

by the RAQC and APCD to identify and

evaluate potential contingency

measures.)

The RAQC, in coordination with the

APCD and AQCC, will initiate a

subcommittee process to begin

evaluating potential contingency

measures no more than 60 days after

being notified by the APCD that a

violation of the 1-hour ozone NAAQS

has occurred. The subcommittee will

present recommendations to the RAQC

within 120 days of notification and the

RAQC will present recommended

contingency measures to the AQCC

within 180 days of notification. The

AQCC will then hold a public hearing

to consider the contingency measures

recommended by the RAQC, along with

any other contingency measures that the

AQCC believes may be appropriate to

effectively address the violation of the

1-hour ozone NAAQS. The necessary

contingency measures will be adopted

and implemented within one year after

the violation occurs.

The potential contingency measures

that are identified in Chapter 3, section

F of the Denver ozone maintenance plan

include summertime gasoline Reid

Vapor Pressure (RVP) reduction,

reinstatement of the enhanced I/M

program in effect before January 10,

2000, enhanced I/M program changes

and additions that may involve

changing cutpoints and adding an

evaporative controls check,

reinstatement of the NSR program,

restrictions on consumer and

commercial coatings, restrictions on

architectural surface coatings,

restrictions on lawn and garden

equipment use, and NOX RACT for

major sources. A more complete

description of the triggering mechanism

and these contingency measures can be

found in Chapter 3, section F of the

maintenance plan.

Based on the above, we find that the

contingency measures provided in the

State’s Denver ozone maintenance plan

are sufficient and meet the requirements

of section 175A(d) of the CAA.

5. Subsequent Maintenance Plan

Revisions

In accordance with section 175A(b) of

the CAA, Colorado has committed to

submit a revised maintenance plan SIP

revision eight years after the approval of

the redesignation. This provision for

revising the maintenance plan is

contained in Chapter 3, section G,

(‘‘Subsequent Maintenance Plan

Revisions’’) of the Denver ozone

maintenance plan.

IV. EPA’s Evaluation of the

Transportation Conformity

Requirements

One key provision of our conformity

regulation requires a demonstration that

emissions from the transportation plan

and Transportation Improvement

Program are consistent with the

emissions budgets in the SIP (40 CFR

93.118 and 93.124). The emissions

budget is defined as the level of mobile

source emissions relied upon in the

attainment or maintenance

demonstration to maintain compliance

with the NAAQS in the nonattainment

or maintenance area. The rule’s

requirements and EPA’s policy on

emissions budgets are found in the

preamble to the November 24, 1993,

transportation conformity rule (58 FR

62193–96) and in the sections of the

rule referenced above.

The maintenance plan (as updated on

January 11, 2001) defines the motor

vehicle emissions budgets in the Denver

ozone attainment/maintenance area as

119 tons per day for VOCs and 134 tons

per day for NOX for all years 2002 and

beyond. These figures reflect technical

corrections to those of 124 tons per day

for VOCs and 139 tons per day for NOX

that were previously submitted by the

Governor on November 30, 2000. These

budgets are equal to the attainment year

(1993) mobile source emissions

inventory for these pollutants and use

some of the available safety margin in

the years 2002 to 2013. The use of the

safety margin is permitted by the

conformity rule. See 40 CFR 93.124(a).

The State used specific inventory

values for the years 2006 and 2013 to

calculate and use some of the available

safety margin in those years. As revised

during the January 11, 2001, public

hearing, in 2006 the total emissions of

VOCs and NOX are lower than the 1993

attainment year emissions inventory by

47 (was 56) tons per day and 23 (was 27)

tons per day respectively. For 2006, the

State added the mobile sources portion

of the safety margin (35 tons per day for

VOCs and 19 tons per day for NOX) to

the 2006 mobile sources emission

inventories to arrive at the final budgets

of 119 tons per day for VOCs and 134

tons per day for NOX. For 2013, the

State similarly allocated the safety

margin to arrive at the same budgets.

Although the maintenance plan does

not specifically address the inventories

for the other years between 2002 and

2013, the maintenance plan defines the

same budgets for 2002 and all years

beyond, thus evidencing the intent to

apply some portion of the available

safety margin in 2002 to arrive at these

same budgets. We believe this is

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acceptable under the circumstances

because we would not expect total

emissions from sources other than onroad mobile sources to exceed their

1993 levels in the year 2002 or any other

year before 2013. Therefore, in view of

our analysis, we are proposing to

approve these 1-hour ozone NAAQS

VOC and NOX budgets for the Denver

area.

V. EPA’s Evaluation of the Regulation

No. 3 Revisions

As we noted above, the Governor of

Colorado had previously submitted

minor revisions to Regulation No. 3 in

conjunction with the Governor’s

original August 8, 1996, submittal of the

Denver ozone maintenance plan.

Regulation No. 3, Part B, Section

III.D.1.f., previously exempted gasoline

stations, located in ozone attainment

areas, from construction permit

requirements. The revision to

Regulation No. 3 that the Governor

submitted on August 8, 1996, exempts

gasoline stations located in ozone

attainment areas from construction

permit requirements, with the exception

of those gasoline stations located in the

Denver Metro ozone attainment

maintenance area. In other words, this

revision ensures that gasoline stations

will remain subject to Regulation No. 3

requirements after Denver’s

redesignation to attainment.

We concur with this revision to

Regulation No. 3 and we are proposing

approval of this change.

VI. EPA’s Evaluation of the Regulation

No. 7 Revisions

As we noted above, the Governor of

Colorado had previously submitted

minor revisions to Regulation No. 7 in

conjunction with the Governor’s

original August 8, 1996, submittal of the

Denver ozone maintenance plan.

Section I.A.1 of Regulation No. 7,

‘‘Applicability’’, previously read ‘‘The

provisions of this regulation shall apply

only to ozone nonattainment areas with

the exception of Section V, Paragraphs

VI.B.1 and 2., and Subsection VII.C.,

which shall apply statewide.’’ This was

revised in the Governor’s August 8,

1996, submittal to read ‘‘The provisions

of this regulation shall apply only to

ozone nonattainment areas and the

Denver Metro Attainment Maintenance

Area with the exception of Section V,

Paragraphs VI.B.1 and 2., and

Subsection VII.C., which shall apply

statewide.’’

We concur with this revision to

Regulation No. 7 and we are proposing

approval of this change. We note that

additional revisions to Regulation No. 7

were also submitted with the Governor’s

August 8, 1996, submittal and included

the addition of paragraphs A.2., A.3.,

and A.4. to create ‘‘de minimus’’

exemptions. We are not taking any

action on these revisions and will not

consider them with our proposed

approval of the Governor’s November

30, 2000, submittal.

VII. EPA’s Evaluation of the Request for

Revision to 40 CFR 80.27(a)(2) for RVP

Since 1991, gasoline sold in the

Denver area during the summer ozone

season (June 1st to September 15th for

gasoline RVP) has been subject to a

national Reid Vapor Pressure (RVP)

limit of 7.8 psi (8.8 psi for ethanolblended fuels) in order to reduce fuel

volatility. Since the Denver area has not

violated the 1-hour ozone standard

since the late 1980s, the State has

previously requested, and EPA has

granted, waivers to allow a 9.0 psi RVP

(10.0 psi for ethanol-blends) gasoline in

the Denver area instead of the more

stringent 7.8 psi RVP limit.

The maintenance plan that was

submitted by the Governor on

November 30, 2000, incorporates a

gasoline RVP limit of 9.0 psi in the

maintenance demonstration. Since

maintenance of the 1-hour ozone

NAAQS is shown for the entire

maintenance time period of 1993

through 2013 with this 9.0 psi limit, the

State of Colorado has requested that the

9.0 psi summertime RVP limit (10.0 psi

for ethanol-blends) be made permanent

for the Denver attainment/maintenance

area once EPA approves the

redesignation request and maintenance

plan. We believe this change would be

appropriate. However, separate

rulemaking through our Headquarters

office is necessary to revise the RVP

requirements for Colorado as specified

in 40 CFR 80.27(a)(2). We anticipate that

our Headquarters office will pursue this

rulemaking action if and when we fully

approve the redesignation request and

maintenance plan.

VIII. Proposed Rulemaking Action and

Request for Public Comment

We are soliciting public comment on

all aspects of this proposed SIP

rulemaking action. As stated above, we

are proposing approval of the

Governor’s November 30, 2000, request

to redesignate the Denver 1-hour ozone

NAAQS nonattainment area to

attainment, the maintenance plan and

the minor technical changes as adopted

by the AQCC on January 11, 2001, and

the August 8, 1996, revisions to

Regulation No. 3 and Regulation No. 7.

Send your comments in duplicate to the

address listed at the front of this

proposed rule. We will consider your

comments in deciding our final action if

your letter is received before June 11,

2001.

Administrative Requirements

(a) Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

(b) Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to Executive

Order 13045 because it does not involve

decisions intended to mitigate

environmental health or safety risks.

(c) Executive Order 13132

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure ‘‘meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

24084 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

merely proposes approval of a state rule

implementing a federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. In addition, redesignation of an

area to attainment under sections

107(d)(3)(D) and (E) of the Clean Air Act

does not impose any new requirements.

Thus, the requirements of section 6 of

the Executive Order do not apply to this

rule.

(d) Executive Order 13175

Executive Order 13175, entitled

‘‘Consultation and Coordination with

Indian Tribal Governments’’ (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure ‘‘meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications.’’ ‘‘Policies that have tribal

implications’’ is defined in the

Executive Order to include regulations

that have ‘‘substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes.’’

This proposed rule does not have

tribal implications. It will not have

substantial direct effects on tribal

governments, on the relationship

between the Federal government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal government and Indian tribes,

as specified in Executive Order 13175.

This action does not involve or impose

any requirements that affect Indian

Tribes. Thus, Executive Order 13175

does not apply to this proposed rule.

(e) Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This proposed approval will not have

a significant impact on a substantial

number of small entities because SIP

approvals under section 110 and

subchapter I, part D of the Clean Air Act

do not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP proposed

approval does not create any new

requirements, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities. Moreover, due to the nature of

the Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA

U.S.A., 427 U.S. 246, 255–66 (1976); 42

U.S.C. 7410(a)(2). Redesignation of an

area to attainment under sections

107(d)(3)(D) and (E) of the Clean Air Act

does not impose any new requirements.

Redesignation to attainment is an action

that affects the legal designation of a

geographical area and does not impose

any regulatory requirements. Therefore,

because the Federal SIP proposed

approval does not create any new

requirements, I certify that the proposed

approval of the redesignation request

will not have a significant economic

impact on a substantial number of small

entities.

(f) 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 the

proposed approval action does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

proposes approval of pre-existing

requirements under State or local law,

and imposes no new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and

recordkeeping requirements.

40 CFR Part 81

Air pollution control, National parks,

Wilderness areas.

Dated: April 27, 2001.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

[FR Doc. 01–11915 Filed 5–10–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 70

[TN–T5–2001–03; FRL–6977–7]

Clean Air Act Proposed Full Approval

of Operating Permit Program;

Tennessee and Memphis-Shelby

County

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule; reopening of the

public comment period.

SUMMARY: In response to a request from

Mr. George Hays as counsel for the

National Parks Conservation

Association, EPA is reopening the

comment period for a proposed rule

published on March 20, 2001, in the

Federal Register (66 FR 15680) for full

approval of the operating permit

programs submitted by the Tennessee

Department of Environment and

Conservation and the Memphis-Shelby

County Health Department.

DATES: Written comments must be

received by EPA on or before June 11,

2001.

ADDRESSES: Comments should be

addressed to Ms. Kim Pierce, Regional

Title V Program Manager, Air &

Radiation Technology Branch, EPA

Region 4, 61 Forsyth Street, SW,

Atlanta, Georgia 30303–8909.

FOR FURTHER INFORMATION CONTACT: Kim

Pierce, EPA Region 4, at (404) 562–9124

or pierce.kim@epa.gov/.