Federal Register, Volume 67 Issue 100 (Thursday, May 23, 2002)

[Federal Register Volume 67, Number 100 (Thursday, May 23, 2002)]
[Proposed Rules]
[Pages 36124-36134]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-12965]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0067; FRL-7215-9]

Approval and Promulgation of Air Quality Implementation Plans;
State of Colorado; Denver PM10 Redesignation to Attainment,
Designation of Areas for Air Quality Planning Purposes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On July 30, 2001, the Governor of the State of Colorado
submitted a State Implementation Plan (SIP) revision for the purpose of
establishing a redesignation for the Denver, Colorado area from
nonattainment to attainment for particulate matter with an aerodynamic
diameter less than or equal to a nominal 10 microns (PM10)
under the 1987 standards. The Colorado Air Pollution Control Division's
submittal, among other things, documents that the Denver area has
attained the PM10 national ambient air quality standards
(NAAQS), requests redesignation to attainment and includes a
maintenance plan for the area demonstrating maintenance of the
PM10 NAAQS for thirteen years. EPA is proposing to approve
the redesignation

[[Page 36125]]

request and maintenance plan because the State has met the applicable
requirements of the Clean Air Act, as amended. This action is being
taken under sections 107, 110, and 175A of the Clean Air Act (Act).

DATES: Written comments must be received on or before June 24, 2002.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director,
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection
Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver,
Colorado, 80202-2466. Copies of the documents relevant to this action
are available for public inspection during normal business hours at the
Air and Radiation Program, Environmental Protection Agency, Region
VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202-2466. Copies
of the State documents relevant to this action are available for public
inspection at the Colorado Department of Public Health and Environment,
Air Pollution Control Division, 4300 Cherry Creek Drive South, Denver,
Colorado 80246-1530.

FOR FURTHER INFORMATION CONTACT: Cindy Rosenberg, EPA, Region VIII,
(303) 312-6436.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our'' are used, we mean the Environmental Protection
Agency (EPA).

Table of Contents

I. EPA's Proposed Action
A. What Action Is EPA Proposing To Take?
II. Summary of Redesignation Request and Maintenance Plan
A. What Requirements Must be Followed for Redesignations to
Attainment?
B. Does the Denver Redesignation Request and Maintenance Plan
Meet the CAA Requirements?
C. Have the Transportation Conformity Requirements been met?
D. Did Colorado Follow the Proper Procedures for Adopting this
Action?
III. Background
IV. Administrative Requirements

I. EPA's Proposed Action

A. What Action Is EPA Proposing To Take?

We are proposing to approve the Governor of Colorado's submittal of
July 30, 2001, that requests a redesignation for the Denver
nonattainment area to attainment for the 1987 PM10
standards. We are using 1998-2000 ambient air quality data from the
Denver nonattainment area as the basis for our decision. We are also
proposing to approve the maintenance plan for the Denver
PM10 nonattainment area, which was submitted with the
State's July 30, 2001 redesignation request. In conjunction with the
maintenance plan, the Governor also submitted revisions to Colorado's
Regulation No. 1, ``Particulates, Smokes, Carbon Monoxide, & Sulfur
Oxides,'' and Colorado's Regulation No. 16, ``Street Sanding
Emissions.'' We are proposing to approve this request, the maintenance
plan and its accompanying regulation revisions because the Colorado Air
Pollution Control Division (Colorado) has adequately addressed all of
the requirements of the Act for redesignation to attainment applicable
to the Denver PM10 nonattainment area. Upon the effective
date of a subsequent final action, the Denver area's designation status
under 40 CFR part 81 will be revised to attainment. By using ``Denver''
or the ``Denver area,'' we mean Denver, Jefferson, and Douglas
Counties, as well as part of Boulder, Adams and Arapahoe Counties.
EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. These comments will be
considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional office listed in the ADDRESSES section of
this document.

II. Summary of Redesignation Request and Maintenance Plan

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

In order for a nonattainment area to be redesignated to attainment,
the following conditions in section 107(d)(3)(E) of the Clean Air Act
(CAA) must be met:
(i) We must determine that the area has attained the NAAQS;
(ii) The applicable implementation plan for the area must be fully
approved under section 110(k) of the Act;
(iii) We must determine that the improvement in air quality is due
to permanent and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions;
(iv) We must fully approve a maintenance plan for the area as
meeting the requirements of CAA section 175A; and,
(v) The State containing such area must meet all requirements
applicable to the area under section 110 and part D of the CAA.
Our September 4, 1992 guidance entitled ``Procedures for Processing
Requests to Redesignate Areas to Attainment'' (referred to in this
action as the Calcagni Memorandum) outlines how to assess the adequacy
of redesignation requests against the conditions listed above.
On July 30, 2001, the Governor of Colorado submitted a revision to
the SIP for the Denver area and a request that we redesignate the area
to attainment for PM10. The following is a brief discussion
of how Colorado's redesignation request and maintenance plan meets the
requirements of the Act for redesignation of the Denver area to
attainment for PM10.

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

i. Attainment of the PM10 NAAQS
Whether an area has attained the PM10 NAAQS is based
exclusively upon measured air quality levels over the most recent and
complete three calendar year period. See 40 CFR part 50 and 40 CFR part
50, appendix K. A State must demonstrate that an area has attained the
PM10 NAAQS through submittal of ambient air quality data
from an ambient air monitoring network representing maximum
PM10 concentrations. The data, which must be quality assured
and recorded in the Aerometric Information Retrieval System (AIRS),
must show that the average annual number of expected exceedances for
the area is less than or equal to 1.0, pursuant to 40 CFR 50.6. In
making this showing, three consecutive years of complete air quality
data must be used.
Between 1998 and 2000, Colorado operated thirteen PM10
monitors, which were either State and Local Air Monitoring Stations
(SLAMS) or National Air Monitoring Sites (NAMS), in the Denver
PM10 nonattainment area. As part of the redesignation
request for Denver, Colorado submitted ambient air quality data from
the monitoring sites which demonstrates that the area has attained the
PM10 NAAQS. This air quality data had been quality-assured
and placed in AIRS on a quarterly basis. Only one exceedance of the 24-
hour PM10 NAAQS was measured between 1998 and 2000. In 1999,
the Adams City monitor recorded a 24-hour value of 160 fg/m3, which is
an exceedance. Because data collection was less than 100% at this
monitoring site, the expected exceedance rate, as calculated according
to 40 CFR part 50, appendix K, for 1999 at this site was 1.16. For 1998
and 2000, it was 0.0. Thus, the three-year average was less than 1.0,
which indicates the Denver area attained the 24-hour PM10

[[Page 36126]]

NAAQS. All other sites had expected exceedance rates of 0 for this
three-year period. In addition, there have been no reported exceedances
of the PM10 NAAQS so far in 2001. Review of the annual
standard for calendar years 1998, 1999 and 2000 reveals that the Denver
area is also in attainment with the annual PM10 NAAQS. There
was no violation of the annual standard for the three year period from
1998 through 2000. Further information on PM10 monitoring is
presented in Chapter 3, section B of the redesignation request and
maintenance plan. We have evaluated the ambient air quality data and
believe that Colorado has adequately demonstrated that the
PM10 NAAQS has been attained in the Denver area.
ii. State Implementation Plan Approval
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).
Those States containing initial moderate PM10
nonattainment areas were required to submit a SIP by November 15, 1991
which demonstrated attainment of the PM10 NAAQS by December
31, 1994. However, under section 188(d) of the CAA, moderate
PM10 nonattainment areas are eligible for up to two one-year
extensions of their attainment dates if they meet the requirements of
the Act. Colorado requested an attainment date extension for Denver and
it was granted on October 6, 1995 (60 FR 52312). The Denver
nonattainment area subsequently attained the NAAQS by December 31,
1995, which was the area's applicable attainment date following the
granting of the attainment date extension. 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). We
approved the PM10 contingency measures for the area on
September 23, 1996 (61 FR 49682). We approved the PM10 SIP
for Denver on April 17, 1997 (62 FR 18716) as meeting those moderate
PM10 nonattainment plan requirements that were due to EPA on
November 15, 1991. The transportation budgets required under the
transportation conformity rule were approved on March 31, 1998 (63 FR
15294).
iii. Improvement in Air Quality Due to Permanent and Enforceable
Measures
Section 107(d)(3)(E)(iii) of the CAA provides that for an area to
be redesignated to attainment, the Administrator must determine that
the improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
implementation plan, implementation of applicable Federal air pollutant
control regulations, and other permanent and enforceable reductions.
The control measures in the Denver PM10 element of the
Colorado SIP were adopted by the AQCC on October 19, 1995, and were
approved by the EPA on April 17, 1997 (62 FR 18716). The SIP element's
emission control plan was based on emission reductions from stationary
source controls, re-entrained road dust controls, woodburning
restrictions, and mobile source emission control programs. These
permanent and enforceable control measures are explained in more detail
below.
As part of the PM10 SIP, Denver has been implementing
the requirements of Colorado Regulation No. 1 ``Particulates, Smokes,
Carbon Monoxide, & Sulfur Oxides.'' The portion of this regulation for
which PM10 emission reduction credits are used provides
stationary source emission control regulations. These control measures
include regulation limits on specific units for precursor emissions
(NOX and SO2) at Public Service Company of
Colorado's Cherokee, Arapahoe and Valmont Electric Generating Stations.
There are also restrictions on the use of oil as a backup fuel for
natural gas to control particulate emissions from the following
stationary sources in the Denver area: Public Service Company of
Colorado's Valmont and Zuni Electric Generating Stations, Public
Service Company of Colorado's Delegany Steam Generating Station,
University of Colorado Health Sciences Center (Fitzsimmons), U.S.
Department of Energy's Rocky Flats Plant, Gates Rubber Company, and
Trigen-Colorado Energy Corporation \1\ (this requirement only applies
to the company's Golden, Colorado facility). This regulation requires
that natural gas is the only fuel oil to be used from November 1 to
March 1 of each year except under certain circumstances that are
explained in the regulation. In addition, there are limitations on
primary PM10 emissions from fuel burning equipment that
apply to the boiler units at Public Service Company of Colorado's
Arapahoe, Cherokee, and Zuni Electric Generating Stations, as well as
Trigen-Colorado Energy Corporation. There are also particulate
limitations on all sources with incinerators, limitations on all
stationary sources with manufacturing processes (as defined in
Colorado's Common Provisions Regulation), and regulations for any
source of fugitive particulates. (See Colorado's Regulation No. 1 for
more details on these restrictions.)
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\1\ The federally approved version of Regulation No. 1 lists
this source as Coors Brewing Company, Coors Brewery, Golden, CO; the
boiler units at the brewery were sold to Trigen-Colorado Energy
Corporation since that version of the regulation was approved.
Colorado has subsequently made revisions to this regulation, which
include changing the name for this facility. Colorado will submit
these revisions to EPA in the future in order for them to be
federally approved.
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Denver has also been implementing the requirements of Colorado
Regulation No. 4 ``New Wood Stoves and the use of Certain Woodburning
Appliances During High Pollution Days.'' The primary strategy of
Regulation No. 4 is the mandatory wood burning curtailment program that
prohibits most wood burning activity on ``high pollution days'' between
November 1st and March 31st of each year in the Denver metropolitan
area. Regulation No. 4 also requires all new wood burning stoves and
fireplace inserts sold in Colorado to meet both State and Federal
emission control standards. In addition to this State regulation, our
April 17, 1997 approval of the PM10 SIP incorporated 19
local woodburning ordinances and resolutions.
Colorado's Regulation No. 16 covers street sanding and sweeping
requirements. Under this regulation, street sand is required to meet
stringent specifications to reduce the amount of fines and increase the
durability of the sanding materials. With the implementation of this
regulation, most of the Denver area governments were required to reduce
the amount of street sand applied to their roadways by 20 percent from
a base sanding amount (as defined in Colorado Regulation No. 16, this
is an average amount of street sanding material applied per lane mile
driven by maintenance trucks during snow and ice removal operations
according to 1989 data), with the exception of the City of Denver.
Denver was required to reduce the amount of street sanding materials
applied by 30 percent from the base sanding amount. Emissions in the
Central Denver area and the Interstate 25 Corridor area were to be
reduced by 50 percent from the base sanding amounts. The street
sweeping requirements for the Denver nonattainment area include
additional street sweeping in the Denver central

[[Page 36127]]

business district and the Interstate 25 Corridor area after each
sanding event.
The mobile source control measures implemented with the
PM10 SIP include Colorado's Regulation No. 11, ``Motor
Vehicle Emissions Inspection Program,'' Regulation No. 12 ``Diesel
Inspection/Maintenance Program,'' and Regulation No. 13 ``Oxygenated
Fuels Program.''
Stationary source construction permits for Public Service Company
of Colorado's Cherokee Electric Generating Station, Purina Mills,
Electron Corporation, Trigen-Colorado Energy Corporation, Rocky
Mountain Bottle Company (which includes earlier permits that were
issued in 1993 under the former name of Coors Brewing Company), and
Conoco Refinery were incorporated by reference in our April 17, 1997
approval of the PM10 SIP. Thus, EPA also viewed these
permits as enforceable control measures under the SIP.
Colorado Regulation No. 3 ``Air Contaminant Emissions Notices'' and
No. 6 ``Standards of Performance for New Stationary Sources'' also
provide for stationary source controls. The federally approved portions
of these regulations are part of the state-wide SIP and weren't
approved specifically with the Denver PM10 SIP.
We have evaluated the various State and Federal control measures,
the original 1989 base year emission inventory and the original 1995
attainment year emission inventory, and believe that the improvement in
air quality in the Denver nonattainment area has resulted from emission
reductions that are permanent and enforceable.
iv. Fully Approved Maintenance Plan Under Section 175A of the Act
Section 107(d)(3)(E) of the Act requires that, for a nonattainment
area to be redesignated to attainment, we must fully approve a
maintenance plan which meets the requirements of section 175A of the
Act. The plan must demonstrate continued attainment of the relevant
NAAQS in the area for at least 10 years after our approval of the
redesignation. Eight years after our approval of a redesignation, the
State must submit a revised maintenance plan demonstrating attainment
for the 10 years following the initial 10 year period. The maintenance
plan must also contain a contingency plan to ensure prompt correction
of any violation of the NAAQS. (See sections 175A(b) and (d).) Our
September 4, 1992 guidance outlines 5 core elements that are necessary
to ensure maintenance of the relevant NAAQS in an area seeking
redesignation from nonattainment to attainment. Those elements, as well
as guidelines for subsequent maintenance plan revisions, are explained
in detail below.

a. Attainment Inventory

EPA's interpretations of the CAA section 175A maintenance plan
requirements are generally provided in the General Preamble (see 57 FR
13498, April 16, 1992) and the September 4, 1992, Calcagni Memorandum
referenced above. Under our interpretations, PM10
maintenance plans should include an attainment emission inventory to
identify the level of emissions in the area which is sufficient to
maintain the NAAQS.
An emissions inventory was developed and submitted with the
PM10 maintenance plan for the Denver area on July 30, 2001.
This submittal contains a 1995 attainment year inventory as well as
interim-year projection inventories for 2002, 2003, 2005, 2010 and
2015. The 1995 attainment inventory is an updated version of the
attainment inventory submitted on March 30, 1995 with the
PM10 SIP. Due to the nature of Denver's past 24-hour
PM10 problems, these inventories reflect emission estimates
for an average winter weekday after a snow event. The inventories
include emissions from all sources of PM10 and
PM10 precursor emissions (nitrogen oxides and sulfur dioxide
(NOX and SO2)) within the modeling domain for the
Denver area. (This modeling domain is actually smaller than the Denver
nonattainment area due to technical modeling limitations, but does
include all areas with the expected maximum PM10
concentrations.) The precursor emissions are important because filter
analyses performed in conjunction with chemical mass balance modeling,
for the attainment SIP, indicated that a significant portion (35%) of
the PM10 on the filters consisted of secondary ammonium
sulfate and nitrate.
Emission estimates for the inventories were updated based on the
most recent demographic and vehicle miles traveled (VMT) estimates from
the Denver Regional Council of Governments' November 2000 conformity
analysis. This includes population, household, employment and daily VMT
estimates. The major contributors identified in the attainment year and
projection inventories were on-road mobile source emissions (including
vehicle exhaust and re-entrained road dust), fugitive dust emissions
from unpaved roads, residential heating emissions, primary
PM10 emissions from stationary sources, and secondary
emissions of NOX and SO2 from stationary sources
and on-road and off-road mobile sources. More detailed descriptions of
the 1995 attainment year inventory and the 2002, 2003, 2005, 2010 and
2015 projected inventories are documented in the maintenance plan in
Chapter 4, sections B and C, and in Colorado's technical support
documentation. Colorado's submittal contains detailed emission
inventory information that was prepared in accordance with EPA emission
inventory guidance.\2\ Summary emission figures from the 1995
attainment year and the interim projected years are provided in Table
II. 1, 2 and 3 below.
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\2\ EPA's current guidance on the preparation of PM10
emission inventories includes, ``PM10 Emission Inventory
Requirements,'' September 1994, ``Emission Inventory Improvement
Program Technical Report Series, Volumes I-VII,'' July 1997 and
September 1999, ``Revised 1999 Naitonal Emission Inventory
Preparation Plan,'' February 2001.

Table II. 1.--Summary of Primary PM10 Emissions in Tons Per Day for Denver
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1995 2002 2003 2005 2010 2015
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Stationary Sources................ 7.7 26.1 25.2 25.5 26.1 26.7
Residential Heating*.............. 5.1 4.7 4.7 4.6 4.6 4.5
Other Area Sources**.............. 11.8 12.1 12.1 12.3 12.2 12.1
Non-Road Mobile Sources***........ 1.2 1.1 1.1 1.0 1.2 1.2
On-Road Mobile Sources****........ 41.2 42.3 43.3 44.8 48.5 51.1
Total......................... 66.9 86.3 86.5 88.1 92.5 95.6
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* Residential Heating includes natural gas, woodstove and fireplace emissions
** Other Area Sources includes fugitive dust from construction and unpaved roads as well as charbroiler
emissions
*** Non-Road Mobile Sources includes emissions from all airports, railroads, and industrial and construction
equipment

[[Page 36128]]

**** On-Road Mobile Sources includes exhaust and re-entrained road dust

Table II. 2.--Summary of NOX Emissions in Tons Per Day for Denver
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1995 2002 2003 2005 2010 2015
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Stationary Sources................ 137.8 151.2 133.9 128.8 130.4 132.2
Mobile Exhaust.................... 119.4 137.7 130.4 109.6 104.0 87.8
Non-Road Mobile Sources*.......... 22.3 24.9 25.0 27.7 30.3 33.4
Residential Heating**............. 33.2 39.5 40.5 42.6 46.7 49.8
Total......................... 312.7 353.3 329.8 308.7 311.4 303.2
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* Non-Road Mobile Sources includes airport and other non-road emissions
** Residential Heating includes natural gas and woodburning emissions

Table II.3.--Summary of SO2 Emissions in Tons Per Day for Denver
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1995 2002 2003 2005 2010 2015
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Stationary Sources................ 175.5 200.2 180.5 181.1 182.0 183.1
Mobile Exhaust.................... 2.5 5.6 5.8 6.1 2.1 2.2
Non-Road Mobile Sources *......... 1.9 2.3 2.5 2.5 2.8 3.1
Residential Heating **............ 0.2 0.3 0.3 0.4 0.4 0.4
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Total....................... 180.1 208.4 189.1 190.1 187.3 188.8
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* Non-Road Mobile Sources includes airport and other non-road emissions
** Residential Heating includes natural gas and woodburning emissions

We note that these tables show significant changes in some source
categories and in most cases this is the result of changes to control
strategies that will be implemented in future years. This is explained
in the following section. Other minor changes in emission categories
can be explained by demographics, as explained above. The projected
reductions in the residential heating category are from Colorado's
estimates for less woodburning in future years. We believe this
projection of less woodburning is reasonable.
There have also been several changes made to the stationary source
emissions inventory since the development of the PM10 SIP
for the area. One source, Brannan Sand and Gravel, was treated as a
major source of primary particulates in the SIP and modeled at an
allowable emission level of 180 tons per year of PM10. Since
the development of the PM10 SIP, Brannan Sand and Gravel
replaced its existing asphalt plant with a new, lower emitting asphalt
plant and retained a new permit reflecting this reduction. The result
of this reduction was that Brannan Sand and Gravel's emissions now fall
below the major source threshold of 100 tons per year primary
PM10, as its new allowable emissions under the permit are
4.2 tons per year of PM10. The source is now treated as an
area source in the maintenance plan and modeled at its actual emission
rate with a growth factor for future years. A correction was also made
to the emission inventory to resolve an error made in the emission
inventory for the nonattainment SIP which underestimated emissions from
the Conoco petroleum refinery.
In addition to the above changes, a new major source of primary
particulates (Robinson Brick) was added to the emissions inventory with
the maintenance plan because its emissions of PM10 were
found to be over 100 tons per year. Robinson Brick was then modeled
using the sources' allowable emission rates for primary
PM10. Following our review, we have determined that Colorado
prepared an adequate attainment inventory for the area.
b. Maintenance Demonstration
The September 4, 1992, Calcagni Memorandum states that where
modeling was relied on to demonstrate maintenance, the plan is to
contain a summary of the air quality concentrations expected to result
from the application of the control strategies. Also, the plan is to
identify and describe the dispersion model or other air quality model
used to project ambient concentrations. The maintenance demonstration
for the Denver area uses area-wide dispersion modeling for primary
PM10 and roll-forward modeling for secondary particulate
concentrations, which was the same level of modeling used in the
original attainment demonstration for the moderate PM10 SIP
for Denver. The regional air model (RAM) was used for primary
PM10 area, mobile and minor point sources, and an industrial
source complex model (ISC) was used for primary PM10 from
major point sources modeled at allowable emission levels. Secondary
particulate concentrations are projected from measured concentrations
during high concentration periods between 1987 and 1992. The projected
change in total NOX and SO2 emissions from the
baseline to future years is also factored into the analysis.
The maintenance plan delineates between the stationary sources
considered as major under the SIP and those sources which are
considered as minor. The same methodology was used for the Denver
PM10 maintenance plan as was used in the nonattainment SIP.
All sources emitting over 100 tons per year of primary PM10
were identified as major stationary sources and modeled in the
maintenance demonstration using either the sources' allowable emission
limit as specified in the maintenance plan, or that sources' maximum
emission potential (PTE). All other sources with primary
PM10 emissions were treated as area sources in the SIP
context and modeled using the sources' current actual emissions with a
projected growth factor. The major stationary sources of primary
PM10 identified in the maintenance plan are: Conoco Denver
Refinery, Public Service Company of Colorado's Cherokee, Arapahoe and
Zuni Electric Generating Stations, Robinson Brick, Trigen-Colorado
Energy Corporation, and the Ultramar Diamond Shamrock refinery.
The methodology used for the stationary sources of secondary
emissions (NOX and SO2) is also the same as that
used in the nonattainment SIP. Sources were modeled using actual
emission rates of NOX and SO2 if they

[[Page 36129]]

met two criteria. The first criteria is that the difference between
modeling the source at anticipated actual emission rates versus the
allowable emission levels must be less than 1 fg/m³ using
the secondary particulate roll-forward model. The second criteria was
that the cumulative difference for all the sources modeled using actual
emissions must be no more than 2 fg/m³. The sources modeled
as major sources of precursor emissions in the maintenance
demonstration are: Public Service Company of Colorado's Cherokee,
Arapahoe and Valmont Electric Generating Stations, Trigen-Colorado
Energy Corporation, and Rocky Mountain Bottle Company.
Since the modeling process is based on five years of meteorological
data, the highest 6th highest 24-hour PM10 value from all
receptors is used to determine if the PM10 standard will be
maintained in future years. After an analysis, Colorado concluded that
the Adams City ambient air quality monitor (located north of Cherokee
Electrical Generating Station in Adams County) had the highest 6th
highest 24-hour PM10 concentration for 2002. For all other
projection years (2003, 2005, 2010, and 2015) the Continuous Air
Monitoring Project (CAMP) monitor, located at the intersection of
Broadway and Champa Street in downtown Denver, was the maximum
concentration monitor. This analysis is further detailed in Chapter 4,
section C of the maintenance plan and in the Colorado's TSD and is
reproduced in Table II.--4 below.

Table II.4.--Denver PM10 Modeling Results in g/m³:
----------------------------------------------------------------------------------------------------------------
2002
Sources (Adams 2003 2005 2010 2015
City) (CAMP) (CAMP) (CAMP) (CAMP)
----------------------------------------------------------------------------------------------------------------
Area/Mobile/Minor Point Sources (RAM).......... 80.9 81.1 75.7 80.5 84.7
Major Point Sources (ISC)...................... 0.64 0.01 0.32 0.32 0.32
Secondary Roll-forward......................... 52.6 48.4 46.6 46.6 46.1
Background..................................... 14.4 15.4 17.7 17.7 17.7
--------------
Total Concentration...................... 148.6 144.9 140.3 145.2 148.8
----------------------------------------------------------------------------------------------------------------

Since Colorado's submittal of the maintenance plan, Colorado has
made some minor technical corrections to the maintenance demonstration.
Colorado has now factored maximum potential primary PM10
emissions for the Conoco and Ultramar Diamond Shamrock petroleum
refineries into the modeling analysis to show maintenance of the
PM10 standard. In the official July 30, 2001 submittal of
the maintenance plan, Colorado had calculated maximum potential to emit
for the fluid catalytic cracking units (FCCUs) by using the most
conservative AP-42 emission factor and adding an 85% control efficiency
to that factor. After the submittal of the maintenance plan, we
discovered that this was an inappropriate calculation because the AP-42
emission factors for FCCUs already take into account the 85% control
efficiency for internal cyclones that are inherent to the functioning
of the units. On April 5, 2002, Colorado submitted a technical
correction to the maintenance plan modeling analysis which removed
credits for an 85% control efficiency for the FCCU at the two
refineries. Colorado re-ran the modeling analysis and found that they
could still demonstrate maintenance for the duration of the maintenance
plan while modeling the sources at maximum potential to emit.
However, because future year projections in the maintenance plan
were below the PM10 standard of 150 fg/m³, under
40 CFR 93.124, Colorado was allowed to allocate the difference or
``safety margin'' (1.1 g/m³ in 2015), to the NOX
emissions budget. This worked out to be equivalent to 13 tons per day
of NOX. Therefore, the 101 tons/day NOX emissions
budget includes this ``safety margin'' of 13 tons/day. (The mobile
source budgets are explained in more detail later in this proposed
action.)
Colorado's correction to the maintenance demonstration for Conoco
and Ultramar Diamond Shamrock only resulted in a 0.3 fg/m³
impact for 2005, 2010 and 2015 \3\, and did not increase the
maintenance demonstration to a level above 150 fg/m³.
However, because the entire ``safety margin'' from 2015 was allocated
to the mobile source emission budget for NOX, it appeared
that either the resulting emission budget would need to be changed, or
another source in the SIP would need to be reduced to offset the 0.3
fg/m³ increase. But, a recent federal consent decree will
require significant emission reductions at the Conoco facility before
2015.
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\3\ The State determined that the entire 0.3 fg/m³
impact results from emission inventory increases at the Conoco FCCU;
no impacts result from re-calculation of values for Ultramar Diamond
Shamrock.
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On December 20, 2001, a proposed Complaint and Consent Decree in
United States v. Conoco Inc. was lodged with the United States District
Court for the Southern District of Texas. (See 67 FR 107 for the notice
of lodged consent decree.) Under the proposed consent decree, Conoco
Denver Refinery's FCCU is required to comply with a New Source
Performance Standard (NSPS), Subpart J, emissions limit for PM of 1
pound per 1000 pounds of coke burned by no later than June 30, 2006.
This restriction will limit Conoco to approximately 67 tons per year of
primary PM10, which is far less than the 1233 tons per year
which Colorado used to re-model Conoco's emissions and less than the
185 tons per year Colorado used in the maintenance plan; this new limit
will more than offset the 0.3 fg/m³ increase which would
have affected the year 2015 ``safety margin'' allocation. Because it is
based on an NSPS requirement, this new PM limit at Conoco will be
permanent. We anticipate court approval of the Conoco consent decree in
the near future. In the event court approval is not forthcoming, we may
need to reevaluate this proposal.
i. Control Strategy
According to the Calcagni memorandum, any assumptions concerning
emission rates must reflect permanent, enforceable measures. A State
can't take credit in the maintenance demonstration for reductions
unless there are regulations in place requiring those reductions or the
reductions are otherwise shown to be permanent. States are expected to
maintain implemented control strategies despite redesignation to
attainment, unless such measures are shown to be unnecessary for
maintenance or are replaced with measures that achieve equivalent
reductions. Emission reductions from source shutdowns can be considered
permanent and

[[Page 36130]]

enforceable to the extent that those shutdowns have been reflected in
the SIP and all applicable permits have been modified accordingly.
In preparing the Denver PM10 maintenance plan, Colorado
has chosen to make revisions to its control strategy. However, as
demonstrated above, the Denver area is expected to maintain the
PM10 NAAQS into the future despite these changes. The
control strategy which is being approved with this action is explained
here. As explained previously, Colorado Regulation No. 4, ``New Wood
Stoves and the use of Certain Woodburning Appliances During High
Pollution Days,'' along with local woodburning ordinances was approved
with the PM10 SIP. There are no changes being made to this
control program with this action. There are also no changes approved
with this action for Regulation No. 11, the Automobile Inspection and
Readjustment Program. Changes to this regulation were approved in a
Federal Register action on December 14, 2001 (66 FR 64751) as part of
the carbon monoxide maintenance plan. No further changes to this
program were made for the PM10 maintenance plan.
As with the PM10 attainment SIP, part of the
PM10 control strategy in the maintenance plan relies on the
Federal Motor Vehicle Control Program (FMVCP). 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. The
control program that Colorado uses in the PM10 maintenance
plan includes emission reduction credits from our Tier II motor vehicle
emissions standards and sulfur in gasoline. The new vehicle emission
standards lower the average emission standards to 0.07 grams per mile
of NOX and begin in 2004 with a 3 year phase in period. The
sulfur in gasoline standards require reductions from 300 parts per
million to 30 parts per million of sulfur and begin in 2004 with a 3
year phase in period for Colorado and other Western states (most areas
around the country are under a 2 year phase in requirement). When these
new requirements are fully implemented (this will be 2030 due to fleet
turnover), they will reduce NOX emissions nationally by 74%
or 2 million tons per year by 2020 and 3 million tons per year by 2030.
The maintenance plan includes a revised version of Colorado's
Regulation No. 16, ``Street Sanding Emissions.'' The changes to this
regulation were adopted by the Colorado Air Quality Control Commission
with the PM10 maintenance plan on April 19, 2001. In
addition to the existing portions of Regulation No. 16, these revisions
require additional emission reductions in the Denver area. These
reductions are: 30% emission reductions region-wide, excluding the
Foothills Area which is subject to 20% emission reductions (the
Foothills Area is specifically defined in Colorado Regulation No. 16),
50% emission reductions in the central Denver area (bounded by 38th
Avenue, Federal Boulevard, Louisiana Avenue, and Downing Street), 54%
reductions on I-25 between University and 6th Avenue; and 72% emission
reductions in the central business district (bounded by Colfax Avenue,
Broadway, 20th Street, Wynkoop and Speer Boulevard). The maintenance
plan commits to implement these new requirements during the winter
2001/2002 season. It should be noted that a portion of these additional
reductions in street sanding, de-icing and sweeping reflect a study
contracted by the Denver Regional Air Quality Council (RAQC) that found
increased benefits from de-icing and sweeping beyond what has
historically been assumed for the Denver area (previous assumptions for
Denver were consistent with recommendations from EPA guidelines). Based
on the recommendations of the ``Emissions Benefit Study and Analysis,''
the RAQC decided to increase the emission reductions from street
sweeping using mechanical or combination equipment to 37% and the
percent emission reductions from vacuum and regenerative air equipment
was increased to 61%. We have reviewed this study and found it to be
technically accurate and therefore we also approve the resulting
emission reduction credits assumed for these activities.
Colorado Regulation No. 1 ``Particulates, Smokes, Carbon Monoxide,
& Sulfur Oxides,'' will remain in the PM10 maintenance plan,
with a few important changes that will bring further emission
reductions. The revisions to Regulation No. 1 affect Public Service
Company of Colorado's Cherokee, Arapahoe and Valmont Electric
Generating Stations as well as the restrictions on the use of fuel oil
as a backup fuel. One revision requires a 0.88 pounds per million
British Thermal Unit (lb/mmBTU) SO2 limit for the Cherokee
boiler units 1 and 4 and Arapahoe boiler unit 4, based on a 30-day
rolling average from November 1 to March 1 of each year. This limit is
in addition to the existing 1.1 lb/mmBTU SO2 limit with an
additional 20% annual tonnage reduction that applies to Arapahoe boiler
unit 4. Another revision to Regulation No. 1 is that the January 1,
2003 planned retirement of Arapahoe boiler units 1 and 2 is being made
federally enforceable in order for those emission reductions to be used
in the maintenance demonstration. In addition, a 30-day rolling average
NOX limit of 0.60 lb/mmBTU for Cherokee boiler unit 1 will
be effective on January 1, 2005. These emission reduction credits are
used accordingly in the maintenance demonstration for 2005 and beyond.
Language was added to the specific sections for Cherokee, Arapahoe and
Valmont to specify that the sources' continuous emissions monitoring
equipment would be certified and operated in accordance with 40 CFR
60.13 for measuring opacity, SO2, NOX, and either
O2 or CO2 on all the boiler units for these
sources that are included in the regulation. Lastly, there is a
revision to the fuel oil restrictions which ensures that these
restrictions will continue to apply in the Denver PM10 area
after the area is redesignated to attainment.
We note here that any source modeled at its maximum emission
potential (PTE) was not required to have short-term emission limits in
the maintenance plan. These sources cannot emit more than the maximum
PTE which was used in the maintenance plan's modeling analysis absent a
physical modification, or a change in operational method, either of
which would require a permit revision. Any such permitting action would
require an analysis of potential impacts on the Denver PM10
area. Please see Colorado's technical support documentation for more
detailed information on each source.
In addition to these improved control measures which are being
added to the PM10 maintenance plan, there are also certain
control measures which are being removed from the control strategy with
this maintenance plan. This is acceptable under the Calcagni Memorandum
as long as the area can still demonstrate maintenance of the
PM10 standard. Regulation No. 12, the ``Diesel Inspection/
Maintenance Program'' will be removed from the PM10 SIP with
the final approval of this maintenance plan. This program only achieved
small emission reductions and therefore, Colorado demonstrated
maintenance of the standard without taking credit for the regulation.
Regulation No. 12 will remain as a state-

[[Page 36131]]

only requirement. Likewise, Regulation No. 13 ``Oxygenated Fuels
Program'' will also be removed from the PM10 SIP with the
approval of this plan due to its minor emission reductions for
PM10. This regulation is a part of the carbon monoxide
maintenance plan, which we approved on December 14, 2001 (66 FR 64751).
As explained previously, the control strategy for the
PM10 SIP included permits for seven stationary sources
through our incorporation of these permits in the final approval of the
SIP. These permits will be removed from the SIP with our final approval
of this maintenance plan. We have evaluated this action and decided
that the integrity of the control strategy will be preserved for the
following reasons. All major emissions from Public Service Company's
Cherokee Electric Generating Station, Trigen-Colorado Energy
Corporation, Rocky Mountain Bottle Company and the Conoco Refinery are
covered either by existing or new provisions in Regulation No. 1. As
noted previously, Conoco will be subject to NSPS Subpart J limits on
FCCU PM emissions once the federal consent decree is final. In
addition, some of the sources, such as the Ultramar Diamond Shamrock
refinery, were modeled at PTE, demonstrating that even at the sources'
maximum emission rates, the Denver area would still maintain the
PM10 standard. The permits for Purina Mills and Electron
Corporation were included in the PM10 SIP because these
sources had opted for synthetic minor permits during the development of
the SIP. This was part of an agreement we made with Colorado in order
for the Denver area to show attainment of the PM10 standard.
Accordingly, Colorado modeled these sources at their actual emissions
plus a growth factor for purposes of the nonattainment area SIP
attainment demonstration. Although these sources have potentials to
emit greater than 100 tons per year, they are no different than other
synthetic minor sources in the Denver area that were modeled at actual
emissions plus a growth factor in the original nonattainment area SIP,
and there is no reason the permits for these sources need to be
specifically incorporated by reference into the SIP. Thus, the
maintenance plan removes the permits for Purina Mills and Electron
Corporation from the SIP, and lists them as possible contingency
measures should the NAAQS be violated.
Since no violations of the annual PM10 NAAQS have ever
occurred in Denver and since the maintenance demonstration clearly
shows maintenance of the 24-hour PM10 NAAQS in Denver
through the year 2015, it is reasonable to assume that protection of
the 24-hour standard will be sufficient to protect the annual standard
as well. Thus, EPA believes Colorado has adequately demonstrated that
the Denver area will maintain the PM10 NAAQS for at least
the next thirteen years.
c. Monitoring Network
Once a nonattainment area has been redesignated to attainment, the
State must continue to operate an appropriate air quality monitoring
network, in accordance with 40 CFR part 58, to verify the attainment
status of the area. The maintenance plan should contain provisions for
continued operation of air quality monitors that will provide such
verification. Colorado will continue to operate a core network of
PM10 monitoring sites for the purposes of tracking
PM10 in the Denver area. We approve these sites annually,
and any future change would require discussion with us. In its July 30,
2001 submittal, Colorado committed to continue to operate the
PM10 monitoring stations in Denver, in accordance with 40
CFR part 58.
d. Verification of Continued Attainment
Colorado's maintenance plan submittal must indicate how the State
will track the progress of the maintenance plan. This is necessary due
to the fact that the emissions projections made for the maintenance
demonstration depend on assumptions of point and area source growth. In
Chapter 4, section E of the maintenance plan, Colorado has committed to
the continued operation of the ambient air monitoring network and to
conduct an annual review of the network to verify that the system
continues to meet EPA monitoring objectives and the area continues to
attain the PM10 NAAQS.
In Chapter 4, section F.2, Colorado commits to track and document
changes in new and modified stationary source permits. Also, in Chapter
4, sections E and F.2, the State commits to track mobile source
emissions that contribute to PM10, 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 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 Denver Regional Air Quality
Council (RAQC), the State's Air Pollution Control Division (APCD), the
Air Quality Control Commission (AQCC), and EPA. If any significant
changes appear, Colorado will perform studies to determine whether
additional or re-sited monitors are necessary and whether the emission
projections for future years are on target. If the future year
projections appear to be lower than actual growth, Colorado will
address the situation accordingly.
e. Contingency Plan
Section 175A(d) of the Act requires that a maintenance plan also
include contingency provisions, as necessary, to promptly correct any
violation of the NAAQS that occurs after redesignation of the area. For
the purposes of section 175A, a State is not required to have fully
adopted contingency measures that will take effect without further
action by the State in order for the maintenance plan to be approved.
However, the contingency plan is an enforceable part of the SIP and
should ensure that contingency measures are adopted expeditiously once
they are triggered. The plan should discuss the measures to be adopted
and a schedule and procedure for adoption and implementation. The
contingency plan must require that the State will implement all
measures contained in the Part D nonattainment plan for the area prior
to redesignation. The State should also identify the specific
indicators, or triggers, which will be used to determine when the
contingency plan will be implemented.
As stated in Chapter 4, section F of the maintenance plan, the
contingency measures for the Denver area will be triggered by a
violation of the PM10 NAAQS. (However, the maintenance plan
does note that an exceedance of the PM10 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 PM10 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

[[Page 36132]]

effectively address the violation of the PM10 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
4, section F of the Denver PM10 maintenance plan include the
control measures from the Part D nonattainment plan that are being
removed with this maintenance plan as well as additional potential
measures. The potential contingency measures which are the result of
relaxations to the nonattainment plan control measures are: (1) The
repeal of certain sections of Regulation No. 11 ``Motor Vehicle
Emissions Inspection Program,'' (2) Regulation No. 12, ``Diesel
Inspection/Maintenance Program,'' (3) Regulation No. 13 ``Oxygenated
Fuels Program,'and (4) the stationary source permits that were
incorporated into the Denver PM10 nonattainment SIP. The
contingency plan also includes other potential contingency measures
that would bring additional reductions in particulates to the Denver
area. These measures are: (1) Increased street sweeping requirements,
(2) expanded, mandatory use of alternative de-icers, (3) more stringent
street sand specifications, (4) road paving requirements, (5) further
woodburning restrictions, (6) re-establishing nonattainment area new
source review permitting requirements for stationary sources, (7)
NOX RACT for stationary sources, (8) transportation control
measures designed to reduce vehicle miles traveled, (9) an improved
diesel inspection/maintenance program, (10) a retrofit program for
heavy-duty diesel truck engines, and (11) other emission control
measures appropriate for the area based on the consideration of cost-
effectiveness, PM10 emission reduction potential, economic
and social considerations, or other factors that the State deems
appropriate. A more complete description of the triggering mechanism
and these contingency measures can be found in Chapter 4, section F of
the maintenance plan.
Based on the above, we find that the contingency measures provided
in the Denver PM10 maintenance plan are sufficient and meet
the requirements of section 175A(d) of the CAA.
f. Subsequent Maintenance Plan Revisions
As mentioned above, this maintenance plan uses credits from the EPA
Tier II standards beginning in 2004, but this is based on adjustments
made to the MOBILE5 model and not the new MOBILE6 emissions model since
the latter had not been officially released when the maintenance plan
was developed. Due to the fact that the Tier II assumptions using
MOBILE5 may not be as accurate as they would be if MOBILE6 were used,
Colorado has committed to revise the maintenance plan within one year
of the later of the official release of: (1) MOBILE6, (2) the MOBILE6
particulate emissions replacement for PART5, or (3) the MOBILE6
guidance to enable Colorado to model its vehicle inspection/maintenance
program for the model years after 1995.
In accordance with section 175A(b) of the Act, Colorado is required
to submit a revision to the maintenance plan eight years after the
redesignation of the Denver area to attainment for PM10.
This revision is to provide for maintenance of the NAAQS for an
additional ten years following the first ten year period. In the Denver
redesignation request, Colorado committed to submit a revised
maintenance plan eight years after the approval of the redesignation
request and maintenance plan.
v. Meeting Applicable Requirements of Section 110 and Part D of the Act
In order for an area to be redesignated to attainment, section
107(d)(3)(E) requires that it must have met all applicable requirements
of section 110 and part D of the Act. We interpret this to mean that,
for a redesignation request to be approved, the State must have met all
requirements that applied to the subject area prior to, or at the time
of, submitting a complete redesignation request. In our evaluation of a
redesignation request, we don't need to consider other requirements of
the CAA that became due after the date of the submission of a complete
redesignation request.
a. Section 110 Requirements
Section 110(a)(2) contains general requirements for nonattainment
plans. For purposes of redesignation, the Colorado SIP was reviewed to
ensure that all applicable requirements under the amended Act were
satisfied. These requirements were met with the Colorado's March 30,
1995, November 17, 1995, and December 22, 1995 submittals for the
Denver PM10 nonattainment area. We approved these submittals
on September 23, 1996 (61 FR 49682) and April 17, 1997 (62 FR 18716).
b. Part D Requirements
Before a PM10 nonattainment area may be redesignated to
attainment, the State must have fulfilled the applicable requirements
of part D. Subpart 1 of part D establishes the general requirements
applicable to all nonattainment areas, while subpart 4 of part D
establishes specific requirements applicable to PM10
nonattainment areas. The General Preamble (see 57 FR 13530, et seq.)
provides that the applicable requirements of CAA section 172 are
172(c)(3) (emissions inventory), 172(c)(5)(new source review permitting
program), 172(c)(7)(the section 110(a)(2) air quality monitoring
requirements)), and 172(c)(9) (contingency measures). It is also worth
noting that we interpreted the requirements of sections 172(c)(2)
(reasonable further progress--RFP) and 172(c)(6)(other measures) as
being irrelevant to a redesignation request 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 13564, 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.
The requirements of sections 172(c) and 189(a) regarding attainment
of the PM10 NAAQS, and the requirements of section 172(c)
regarding reasonable further progress, imposition of RACM, the adoption
of contingency measures, and the submission of an emission inventory,
have been satisfied through our September 23, 1996 (61 FR 49682) and
April 17, 1997 (62 FR 18716) approvals of the Denver PM10
SIP and the demonstration that the area is now attaining the NAAQS.
Although EPA's regulations (see 40 CFR 51.396) require that states
adopt transportation conformity provisions in their SIPs for areas
designated nonattainment or subject to an EPA-approved maintenance
plan, we have decided that a transportation conformity SIP is not an
applicable requirement for purposes of evaluating a redesignation
request under section 107(d) of the CAA. This decision is reflected in
EPA's 1996 approval of the Boston carbon monoxide redesignation. (See
61 FR 2918, January 30, 1996.)
We approved the requirements of the part D new source review permit
program for Colorado on August 18, 1994 (59 FR 42506). Once the Denver
area is redesignated to attainment, the prevention of significant
deterioration (PSD) requirements of part C of the Act will apply. We
must ensure that the State has made any needed modifications to its PSD
regulations so

[[Page 36133]]

that Colorado's PSD regulations will apply in the Denver area after
redesignation. Colorado's PSD regulations, which we approved as meeting
all applicable Federal requirements (59 FR 42500, August 18, 1994),
apply to any area designated as unclassifiable or attainment and, thus,
will become fully effective in the Denver area upon redesignation of
the area to attainment.

C. Have the Transportation Conformity Requirements Been Met?

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
budget(s) 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 62193-62196)
and in the sections of the rule referenced above.
According to 40 CFR 93.118(b)(2), when a maintenance plan has been
submitted, emissions must be less than or equal to the motor vehicle
emissions budget(s) established for the last year of the maintenance
plan, and for any other years for which the maintenance plan
establishes motor vehicle emissions budgets. If the maintenance plan
does not establish motor vehicle emissions budgets for any years other
than the last year of the maintenance plan, the demonstration of
consistency with the motor vehicle emissions budget(s) must be
accompanied by a qualitative finding that there are no factors which
would cause or contribute to a new violation or exacerbate an existing
violation in the years before the last year of the maintenance plan.
For years after the last year of the maintenance plan, emissions must
be less than or equal to the maintenance plan's motor vehicle emissions
budget(s) for the last year of the maintenance plan; and if an approved
control strategy implementation plan has established motor vehicle
emissions budgets for years in the timeframe of the transportation
plan, emissions in these years must be less than or equal to the
control strategy implementation plan's motor vehicle emissions
budget(s) for these years.
In the Denver PM10 nonattainment plan, Colorado had
previously adopted a mobile source emissions budget for PM10
for the years 1998-2005 of 54 tons/day and an emissions budget for 2006
and beyond of 60 tons/day. A 119.4 tons/day NOX emissions
budget was established for analysis years 1998 and beyond. In the
Denver PM10 maintenance plan, Colorado indicated that it
would adopt a new mobile source emissions budget of 51 tons/day for
PM10 and a 101 tons/day NOX emissions budget for
the years 2015 and beyond. Because future year projections in the
maintenance plan were below the PM10 standard of 150 fg/
m\3\, under 40 CFR 93.124, Colorado was allowed to allocate the
``safety margin'' (the difference between the 24-hour PM10
standard and the concentration projected for the maintenance year
2015), to the NOX emissions budget. This safety margin is
1.1 fg/m\3\ and equates to 13 tons/day of NOX. Therefore,
the 101 tons/day NOX emissions budget includes this ``safety
margin'' of 13 tons/day. EPA's approval of the emissions budgets means
that emissions projections (in a conformity analysis) for years 2015
and beyond must be less than or equal to 51 tons/day PM10
and 101 tons/day NOX.
On March 2, 1999, the United States Court of Appeals for the
District of Columbia Circuit issued a decision in Environmental Defense
Fund vs. the Environmental Protection Agency, No. 97-1637, that we must
make an affirmative determination that the submitted motor vehicle
emission budgets contained in SIPs are adequate before they are used to
determine the conformity of Transportation Improvement Programs or Long
Range Transportation Plans. In response to the court decision, we are
making most submitted SIP revisions containing a control strategy plan
available for public comment and responding to these comments before
announcing our adequacy determination. (We do not perform adequacy
determinations for SIP revisions that only create new emission budgets
for years in which an EPA-approved SIP already establishes a budget,
because these new budgets cannot be used for conformity until they are
approved by EPA.) We make SIP revisions available for comment by
posting notification of their availability on our web site (currently,
these notifications are posted at www.epa.gov/oms/transp/conform/
adequacy.htm). The adequacy process is discussed in greater detail in a
May 14, 1999 memorandum from Gay MacGregor entitled ``Conformity
Guidance on Implementation of March 2, 1999 Conformity Court
Decision,'' also available on our web site (www.epa.gov/oms/transp/
traqconf.htm).
EPA reviewed the Denver PM10 budgets for adequacy using
the criteria in 40 CFR 93.118(e)(4), and determined that the budgets
were adequate for conformity purposes. Notice of the availability of
this SIP was posted on our adequacy web site on August 12, 2001, and a
30-day comment period for adequacy was provided following the
procedures described in the May 14, 1999 Gay MacGregor memorandum
referenced above. No comments were received. EPA's adequacy
determination was made in a letter to the Colorado APCD on September
20, 2001, and was announced in the Federal Register on October 12, 2001
(66 FR 52129). As a result of this adequacy finding, the emissions
budgets took effect for conformity determinations in the Denver metro
area on October 29, 2001. However, we are not bound by that
determination in acting on the maintenance plan.

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

Section 110(k) of the CAA addresses our actions on submissions of
revisions to a SIP. The Act also requires States to observe certain
procedural requirements in developing implementation plans and plan
revisions for submission. Section 110(a)(2) of the Act provides that
each implementation plan submitted by a State must be adopted after
reasonable notice and public hearing. Section 110(l) of the Act
similarly provides that each revision to an implementation plan
submitted by a State under the Act must be adopted by such State after
reasonable notice and public hearing.
We also must determine whether a submittal is complete and
therefore warrants further review and action (see section 110(k)(1) of
the Act and 57 FR 13565, April 16, 1992). Our completeness criteria for
SIP submittals are set out at 40 CFR part 51, appendix V. We attempt to
make completeness determinations within 60 days of receiving a
submission. However, a submittal is deemed complete by operation of law
under section 110(k)(1)(B) of the Act if a completeness determination
is not made within six months after receipt of the submission.
Copies of the proposed changes were made available to the public
and the AQCC held a public hearing on April 19, 2001 to entertain
public comment on the redesignation request and maintenance plan for
the Denver PM10 nonattainment area. Colorado did not receive
any adverse comments and

[[Page 36134]]

therefore, the redesignation request and maintenance plan were
subsequently adopted by the AQCC on April 19, 2001. The request was
formally submitted to us for approval with a Governor's letter dated
July 30, 2001. Supplementary documentation necessary for our
completeness determination was submitted on September 5, 2001,
September 10, 2001 and September 13, 2001. We reviewed these SIP
materials for conformance with the completeness criteria in 40 CFR part
51, appendix V and determined that Colorado's submittal was
administratively and technically complete under section 110(a)(2) of
the CAA. Thus, pursuant to section 110(k)(1)(B) of the Act, the
submittal was deemed administratively and technically complete with a
September 24, 2001 letter from Jack McGraw, Acting Regional
Administrator to Governor Bill Owens. Additional documentation was also
submitted by Colorado on November 27, 2001. This information was
necessary in order to complete our review of the maintenance plan and
technical support information.

III. Background

To implement our 1987 revisions to the particulate matter NAAQS, on
August 7, 1987 (52 FR 29383), we categorized areas of the nation into
three groups based on the likelihood that protection of the
PM10 NAAQS would require revisions of the existing SIP. We
identified the Denver area as a PM10 ``Group I'' area of
concern, i.e., an area with a strong likelihood of violating the
PM10 NAAQS and requiring a substantial SIP revision. The
Denver area was among several Group I PM10 areas, all of
which were designated and classified as moderate PM10
nonattainment areas by operation of law upon enactment of the Clean Air
Act Amendments of 1990 (November 15, 1990). See 56 FR 56694 at 56705-
56706 (November 6, 1991).
By November 15, 1991, States containing initial moderate
PM10 nonattainment areas were required to submit most
elements of their PM10 SIPs. (See sections 172(c), 188, and
189 of the Act.) Some provisions, such as PM10 contingency
measures required by section 172(c)(9) of the Act and nonattainment new
source review (NSR) provisions, were due at later dates. In order for a
nonattainment area to be redesignated to attainment, the above
mentioned conditions in section 107(d)(3)(E) of the Act must be met. We
approved the PM10 contingency measures for the area on
September 23, 1996 (61 FR 49682). We approved the PM10 SIP
for Denver on April 17, 1997 (62 FR 18716) as meeting those moderate
PM10 nonattainment plan requirements that were due to EPA on
November 15, 1991. The PM10 SIP's transportation budgets
required under the transportation conformity rule were approved on
March 31, 1998 (63 FR 15294).
On July 30, 2001, the Governor of Colorado submitted a request to
redesignate the Denver moderate PM10 nonattainment area to
attainment for the 1987 PM10 NAAQS along with a maintenance
plan for the area. On July 18, 1997, we promulgated new NAAQS for
PM10 and PM2.5. However, on May 18, 1999, the
United States Court of Appeals for the D.C. Circuit in American
Trucking Associations, Inc. et al., v. United States Environmental
Protection Agency vacated the 1997 PM10 standard. Because of
the Court ruling, we are continuing to implement the pre-existing
PM10 standard, and are therefore approving redesignations to
qualified PM10 nonattainment areas.

IV. 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. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve 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 (Pub. L. 104-4).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). This action also does not
have Federalism implications because it does not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely proposes to approve 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 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This 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

40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental
relations, Particulate Matter, Reporting and recordkeeping
requirements.

40 CFR Part 81

Air pollution control.

Dated: May 14, 2002.
Robert E. Roberts,
Regional Administrator, Region VIII.
[FR Doc. 02-12965 Filed 5-22-02; 8:45 am]
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