Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action approving a State Implementation Plan (SIP) revision submitted by the State of Colorado. On May 25, 2011, the Governor of Colorado's designee submitted to EPA a Clean Air Act (CAA) section 175A(b) second 10-year maintenance plan for the Fort Collins area for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS). This limited maintenance plan (LMP) addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation. This action is being taken under sections 110 and 175A of the CAA.
This rule is effective on November 12, 2013 without further notice, unless EPA receives adverse comment by October 15, 2013. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2011-0708, by one of the following methods:
http://www.regulations.gov. Follow the on-line instructions for submitting comments.
Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Carl Daly, Director, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
Hand Delivery: Carl Daly, Director, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal holidays. Special arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2011-0708. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA, without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.
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FOR FURTHER INFORMATION CONTACT:
Adam Clark, Air Program, EPA Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104, email@example.com.
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Table of Contents
I. General Information
III. What was the state's process?
IV. EPA's Evaluation of the Revised Fort Collins CO Maintenance Plan
V. Final Action
VI. Statutory and Executive Order Review
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii) The words EPA, we,
us or our mean or refer to the United States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation Plan.
(iv) The words Colorado and State mean the State of Colorado.
I. General Information
A. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through http://regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the Start Printed Page 56165disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments, remember to:
a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
Under the CAA Amendments of 1990, the Fort Collins area was designated as nonattainment and classified as a “moderate” CO area, with a design value of less than or equal to 12.7 parts per million (ppm) (56 FR 56694, November 6, 1991). On August 9, 2002, the Governor of Colorado submitted to EPA a request to redesignate the Fort Collins CO nonattainment area to attainment for the CO NAAQS. Along with this request, the Governor submitted a CAA section 175A(a) maintenance plan which established an attainment year of 1992, and demonstrated that the area would maintain the CO NAAQS through 2015. The State also submitted revisions to Colorado Air Quality Control Commission (AQCC) Regulation No. 11, “Motor Vehicle Emissions Inspection Program,” and AQCC Regulation No. 13, “Oxygenated Fuels Program,” which removed as federally-enforceable SIP control measures both the inspection/maintenance and oxygenated fuels programs in Fort Collins.
EPA approved the State's redesignation request, CAA section 175A(a) maintenance plan, base year emissions inventory, and revisions to AQCC Regulations No. 11 and 13 on July 22, 2003 (68 FR 43316).
Eight years after an area is redesignated to attainment, CAA Section 175A(b) requires the state to submit a subsequent maintenance plan to EPA, covering a second 10-year period.
This second 10-year maintenance plan must demonstrate continued maintenance of the applicable NAAQS during this second 10-year period. To fulfill this requirement of the Act, the Governor of Colorado's designee submitted the second 10-year Fort Collins CO maintenance plan (hereafter, “revised Fort Collins Maintenance Plan”) to us on May 25, 2011. With this action, we are approving the revised Fort Collins Maintenance Plan.
The 8-hour CO NAAQS—9.0 ppm—is attained when such value is not exceeded more than once a year. 40 CFR 50.8(a)(1). The Fort Collins area has attained the 8-hour CO NAAQS from 1992 to the present.
In October 1995, EPA issued guidance that provided nonclassifiable CO nonattainment areas the option of using a less rigorous “limited maintenance plan” (LMP) option to demonstrate continued attainment and maintenance of the CO NAAQS.
According to this guidance, areas that can demonstrate design values at or below 7.65 ppm (85% of exceedance levels of the CO 8-hour NAAQS) for eight consecutive quarters qualify to use a LMP. For the revised Fort Collins Maintenance Plan, on which we are finalizing action, the State used the LMP option to demonstrate continued maintenance of the CO NAAQS in the Fort Collins area through 2023. We have determined that the Fort Collins area qualifies for the LMP option for this plan revision, since the area's maximum design value for the most recent eight consecutive quarters with certified data at the time the State adopted the plan (years 2008 and 2009) was 3.0 ppm.
III. What was the state's process?
Section 110(a)(2) of the CAA requires that a state provide reasonable notice and public hearing before adopting a SIP revision and submitting it to us.
The Colorado AQCC held a public hearing for the revised Fort Collins Maintenance Plan on December 16, 2010. The AQCC adopted the revised Fort Collins Maintenance Plan directly after the hearing. The Governor's designee submitted the revised plan to EPA on May 25, 2011.
We have evaluated the SIP revision and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. On November 25, 2011, by operation of law under CAA section 110(k)(1)(B), the SIP revision was deemed to have met the minimum “completeness” criteria found in 40 CFR part 51, appendix V.
IV. EPA's Evaluation of the Revised Fort Collins Maintenance Plan
The following are the key elements of an LMP for CO: Emission Inventory, Maintenance Demonstration, Monitoring Network/Verification of Continued Attainment, Contingency Plan, and Conformity Determinations. Below, we describe our evaluation of each of these elements as it pertains to the revised Fort Collins Maintenance Plan.
A. Emission Inventory
The revised Fort Collins Maintenance Plan contains an emissions inventory for the base year 2008. The emission inventory is a list, by source category, of the air contaminants directly emitted into the Fort Collins CO maintenance area on a typical winter day in 2008.
The data in the emission inventory were developed using EPA-approved emissions modeling methods. A more detailed description of the 2008 inventory is documented in the Fort Start Printed Page 56166Collins CO maintenance plan Technical Support Document (TSD).
Included in this inventory are commercial cooking, fuel combustion, highway vehicle exhaust, non-road mobile sources, railroads, structure fires, woodburning, point sources, and emissions from a heliport. The revised maintenance plan and TSD contain detailed emission inventory information that was prepared in accordance with EPA guidance, and is acceptable to us.
B. Maintenance Demonstration
EPA considers the maintenance demonstration requirement to be satisfied for areas that qualify for and are using the LMP option. As mentioned above, a maintenance area is qualified to use the LMP option if that area's maximum 8-hour CO design value for eight consecutive quarters does not exceed 7.65 ppm (85% of the CO NAAQS). EPA maintains that if an area begins the maintenance period with a design value no greater than 7.65 ppm, the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and federal measures should provide adequate assurance of maintenance over the 10-year maintenance period. Therefore, EPA does not require areas using the LMP option to project emissions over the maintenance period. Because CO design values in the Fort Collins area are consistently well below the LMP threshold (See Table 1 below), the State has adequately demonstrated that the Fort Collins area will maintain the CO NAAQS into the future.
Table 1—8-Hour CO Design Values for Fort Collins, Colorado
|Design value (ppm) *||Year|
|* Design Values were derived from the EPA AirData Web site (http://www.epa.gov/airdata/).|
C. Monitoring Network/Verification of Continued Attainment
In the revised Fort Collins Maintenance Plan, the State commits to continuing operation of an air quality monitoring network in accordance with 40 CFR Part 58 to verify continued attainment of the CO NAAQS. The State also commits to conducting an annual review of the air quality surveillance system in accordance with 40 CFR 58.10. Additionally, the plan indicates that if measured mobile source parameters change significantly over time, the State will perform appropriate studies to determine whether additional and/or re-sited monitors are necessary. We are approving these commitments as satisfying the relevant requirements.
D. Contingency Plan
Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions to promptly correct any violation of the NAAQS that occurs after redesignation of an area. To meet this requirement, the State has indentified appropriate contingency measures along with a schedule for the development and implementation of such measures.
As stated in the revised Fort Collins Maintenance Plan, the contingency measures will be triggered by a violation of the CO NAAQS. No more than 60 days after notification from the Colorado Air Pollution Control Division (APCD) that a violation of the CO NAAQS has occurred, the North Front Range Metropolitan Planning Organization (NFRMPO), in conjunction with the APCD, AQCC, and local governments, will initiate a subcommittee process to begin evaluating potential contingency measures. The subcommittee will present recommendations within 120 days of notification, and the recommended contingency measures will be presented to the AQCC within 180 days of notification. The AQCC will then hold a public hearing to consider the contingency measures recommended by the subcommittee along with any other contingency measures the AQCC believes may be appropriate to effectively address the violation. The necessary contingency measures will be adopted and implemented within one year after a violation occurs.
The potential contingency measures that are identified in the revised Fort Collins maintenance plan include, but are not limited to: (1) A federally enforceable enhanced vehicle inspection and maintenance program; 
(2) a 2.7% oxygenated gasoline program, as set forth in AQCC Regulation Number 13 as of September 2009; (3) re-establishing nonattainment new source review permitting for stationary sources; and (4) wood burning restrictions.
We find that the contingency measures provided in the revised Fort Collins Maintenance Plan are sufficient and meet the requirements of section 175A(d) of the CAA.
E. Transportation Conformity
Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's conformity rule at 40 CFR part 93 requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. To effectuate its purpose, the conformity rule requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with the motor vehicle emission budget (MVEB) contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). A MVEB is defined as the level of mobile source emissions of a pollutant relied upon in the attainment or maintenance demonstration to attain or maintain compliance with the NAAQS in the nonattainment or maintenance area.
Under the LMP guidance, emissions budgets generally are treated as not constraining for the length of the maintenance period. While EPA's LMP guidance does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting a MVEB. According to the LMP guidance, it is unreasonable to expect that a LMP area will experience so much growth in that period that a violation of the CO NAAQS would result.
However, the CO maintenance plan for Fort Collins that we approved in 2003 (68 FR 43316) contains MVEBs for 2010 through 2014 (98 tons per day of CO), and for 2015 (94 Start Printed Page 56167tons per day of CO), and the State did not revise or remove these MVEBs from the SIP. Under our conformity regulations, consistency with those MVEBs must continue to be demonstrated as long as such years are within the timeframe of the transportation plan. See 40 CFR 93.118(b)(2)(i) and (d)(2).
When those years are no longer within the timeframe of the transportation plan, there will no longer be a need to demonstrate conformity with any MVEB for the Fort Collins CO maintenance area, for the reasons described in our LMP guidance. From that point forward, all actions that require conformity determinations for the Fort Collins CO maintenance area under our conformity rule provisions will be considered to have already satisfied the regional emissions analysis and “budget test” requirements in 40 CFR 93.118 because of our approval of the Fort Collins CO LMP.
However, since LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs and projects. Specifically, for such determinations, RTPs, TIPs and projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108) and meet the criteria for consultation and Transportation Control Measure (TCM) implementation in the conformity rule provisions (40 CFR 93.112 and 40 CFR 93.113, respectively). In addition, projects in LMP areas still will be required to meet the applicable criteria for CO hot spot analyses to satisfy “project level” conformity determinations (40 CFR 93.116 and 40 CFR 93.123), which must also incorporate the latest planning assumptions and models available (40 CFR 93.110 and 40 CFR 93.111, respectively).
Our approval of the revised Fort Collins Maintenance Plan affects future CO RTP and TIP conformity determinations prepared by NFRMPO, the Colorado Department of Transportation, the Federal Highway Administration, and the Federal Transit Administration.
V. Final Action
We are approving the revised Fort Collins Maintenance Plan submitted on May 25, 2011. This maintenance plan meets the applicable CAA requirements, and we have determined it is sufficient to provide for maintenance of the CO NAAQS over the course of the second 10-year maintenance period out to 2023.
We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective November 12, 2013 without further notice unless we receive adverse comments by October 15, 2013. If we receive adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq).
The Congressional Review Act, 5 U.S.C. section 801 et seq, as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report Start Printed Page 56168containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 12, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)
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Dated: August 26, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
40 CFR part 52 is amended to read as follows:
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1. The authority citation for part 52 continues to read as follows:End Amendment Part
Start Amendment Part
2. Section 52.349 is amended by adding paragraph (q) to read as follows:End Amendment Part
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Control strategy: Carbon monoxide.
* * * * *
(q) Revisions to the Colorado State Implementation Plan, revised Carbon Monoxide Maintenance Plan for Fort Collins, as adopted by the Colorado Air Quality Control Commission on December 16, 2010 and submitted by the Governor's designee on May 25, 2011.
[FR Doc. 2013-21987 Filed 9-11-13; 8:45 am]
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