Approval and Promulgation of Air Quality Implementation Plans; CO; PM10

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve a State Implementation Plan (SIP) revision submitted by the State of Colorado on July 31, 2002, for the purpose of redesignating the Lamar, Colorado area from nonattainment to attainment for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM₁₀) under the 1987 standards. The Governor's submittal, among other things, documents that the Lamar 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 ten years. EPA is approving this redesignation request and maintenance plan because Colorado has met the applicable requirements of the Clean Air Act (CAA), as amended. Upon the effective date of this approval, the Lamar area will be designated attainment for the PM₁₀ NAAQS. This action is being taken under sections 107, 110, and 175A of the Clean Air Act.

DATES:

This rule is effective on November 25, 2005.

ADDRESSES:

EPA has established a docket for this under Docket ID No. CO-001-0076a. Some information in the docket is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Publicly available docket materials are available in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 200, Denver, Colorado 80202-2466. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the docket. You may view the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. Copies of the Incorporation by Reference material are also available at the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-108 (Mail Code 6102T), 1301 Constitution Ave., NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Libby Faulk, Air and Radiation Program, U.S. EPA, Region VIII, 999 18th Street, Ste. 200 (8P-AR), Denver, Colorado, 80202-2466. Telephone: (303) 312-6083. E-mail Address: faulk.libby@epa.gov

SUPPLEMENTARY INFORMATION:

On August 5, 2004, EPA published a notice of proposed rulemaking (NPR) (69 FR 47339) and a direct final rule (DFR) (69 FR 47366) approving the redesignation of the Lamar PM₁₀ nonattainment area to attainment. During the public comment period, EPA received adverse comments and therefore withdrew the DFR on September 20, 2004 (69 FR 56163). EPA is addressing the comments received during the comment period in this final rule action. 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 State mean the State of Colorado, unless the context indicates otherwise.

Table of Contents

I. EPA's Final Action

A. What Action Is EPA Finalizing in this Rule?

II. Summary of Public Comments and EPA's Response

III. Consideration of CAA section 110(l)

IV. Statutory and Executive Order Reviews

I. EPA's Final Action

A. What Action Is EPA Finalizing in This Rule?

We are approving the Governor's submittal of July 31, 2002, that requests redesignation for the Lamar nonattainment area to attainment for the 1987 PM₁₀ standards. Included in Colorado's submittal are changes to the “State Implementation Plan—Specific Regulations for Nonattainment—Attainment/Maintenance Areas (Local Areas)” which we are approving, under section 110 of the CAA, into Colorado's SIP. We are also approving the maintenance plan for the Lamar PM₁₀ nonattainment area, which was submitted with Colorado's July 31, 2002 redesignation request. We are approving this request and maintenance plan because Colorado has adequately addressed all of the requirements of the CAA for redesignation to attainment applicable to the Lamar PM₁₀ nonattainment areas. Upon the effective date of this action, the Lamar area designation status under 40 CFR part 81 will be revised to attainment. Please refer to our proposed and direct final rule actions published on August 5, 2004 (69 FR47339; 69 FR 47366) for a more detailed explanation of the redesignation requirements and analysis of how the Lamar area has met EPA's requirements.

II. Summary of Public Comments and EPA's Response

(1) Comment: A comment received expressed concern regarding Lamar's recent proposal to convert its natural gas power plant to coal. The commenter believes that the conversion will produce a significant increase in PM₁₀ emissions, both from the stack, the coal handling equipment, and the train traffic to bring in the coal. The commenter expressed concern as to whether the coal plant was considered in the redesignations process and is unsure as to whether the coal plant would go through the Prevention of Significant Deterioration (PSD) permitting process. The commenter pointed out that in 2001, the air monitor at the power plant had a high value of 152, in 2002, a high value of 141 and a 4th high value of 125, and in 2003, it had a high value of 132. The commenter believes that it would be impossible for the new coal fired power plant using pulverized coal technology and unloading coal from a train in the windy eastern plains of Colorado to not push the PM monitor at the power plant over the NAAQS.

Response: Lamar Light and Power (part of The Arkansas River Power Authority) submitted an air permit application that was received by the Colorado Department of Health and Environment (CDPHE) on December 30, 2004. The application requests approval to construct a new coal-fired boiler (using natural gas for startup fuel), turbine, and auxiliaries (i.e., coal-handling, ash handling, lime handling, etc.) at the existing Lamar Power Plant. The new unit will replace the existing boiler currently fired on either natural gas or fuel oil. On January 13, 2005, EPA received a copy of the application from CDPHE. As part of their permit application, Lamar Light and Power conducted a significant impact modeling analysis. For the increase in PM₁₀ emissions that has been requested by Lamar Light and Power, a significant impact modeling analysis for PM₁₀ was required regardless of whether the applicant was subject to PSD permitting for PM₁₀ or not. Lamar Light and Power's analysis shows impacts less than the threshold that would require a cumulative impact modeling analysis for PM₁₀. As such, this project's emissions are considered not to cause or contribute to a violation of the PM₁₀ NAAQS.

The significant impact modeling analysis submitted by Lamar Light and Power went through CDPHE review prior to issuance of the draft permit, which was published for public review on August 15, 2005. The draft permit issued by CDPHE was subject to a 30-day public comment period, which ended September 15, 2005. EPA did not submit adverse comments on the modeling analysis to CDPHE during the public comment period.

Since PM₁₀ is currently a nonattainment pollutant, the PSD program is not applicable for PM₁₀. The major New Source Review (NSR) program would apply if this project were to exceed major source thresholds. Based on the information in the permit application submitted to the State, this project is minor for PM₁₀ nonattainment NSR review. That said, the area has been designated as attainment/unclassifiable for PM_2.5. Based on current EPA guidance (April 5, 2005), PM₁₀ is used as a surrogate for regulating PM_2.5 under the NSR program. As such, PM₁₀ was subject to PSD review for this project as a surrogate for the attainment/unclassifiable pollutant, PM_2.5.

As an additional note, the proposed boiler is not utilizing traditional “pulverized coal” technology. Lamar Light and Power is proposing to construct a circulating fluidized bed unit.

Currently, there are four monitoring stations in the Lamar area, two of which have been monitoring PM₁₀ since the mid-1970s and the other two started monitoring this year for a special study that was at the request of the Prowers Local Health Department to monitor potential impacts from nearby feed lots. The two special purpose monitors (SPM) operated for 6 months (March to September, 2004) on an every 6th day schedule. Both monitors recorded lower values than the permanent PM₁₀ monitors that run on an every day schedule. The highest 24-hour value recorded was 69 μg/m3 at the Red Barn station, well below the 24-hour 150 μg/m³ PM₁₀ standard. A data summary of the two SPM monitors can be found on EPA's Air Data Web site: http://www.epa.gov/air/data/.

There have been some PM₁₀ concentrations for a 24-hour period at the permanent PM₁₀ monitors that have exceeded the NAAQS during high wind events. However, the high concentration PM₁₀ data exceeding the NAAQS were due to high wind events and as a result these data have been excused by EPA from the NAAQS calculation. Additionally, the Colorado Department of Public Health and Environment was required to create and implement a Natural Event Action Plan (NEAP) to control sources during future high wind events. (See response to comment #4 for more details on Lamar's NEAP.) PM₁₀ levels otherwise are well below the NAAQS. According to 40 CFR 50.6(a), “the standards are attained when the expected number of days per calendar year with a 24-hour average concentration above 150 μg/m³, as determined in accordance with appendix K to this part, is equal to or less than one.” Under 40 CFR part 50 Appendix K(1)(b), it defines exceedances as “a daily value that is above the level of the 24-hour standard after rounding to the nearest 10 μg/m³ (i.e., values ending in 50 or greater are to be rounded up).” Therefore, a concentration of 152 μg/m³ is not a NAAQS exceedance per the NAAQS calculation procedures detailed in 40 CFR 50 (Section 50.6 and Appendix K). Rounding of the measured concentrations and the expected exceedance calculations are further explained in the CFR and in EPA's “Guideline on Data Handling Conventions for the PM NAAQS” which show the Lamar area below the PM₁₀ NAAQS.

(2) Comment: Another comment expressed was in regards to Xcel's proposal for a new coal fired unit in Pueblo, Colorado that the commenter believes will represent a significant increase in PM₁₀ emission, especially in condensable PM₁₀ that, according to the commenter, will leave the plant's stack as SO₂ and thus will not be analyzed as PM₁₀ under the PSD permitting process, if there is a PSD process, but will be condensable PM₁₀ (mainly SO₄ and H₂ SO₄) by the time it gets to Lamar.

Response: EPA has indicated that condensable PM emissions need to be considered as part of the PSD permitting process. This position is articulated in the March 31, 1994 letter from EPA's Office of Air Quality Planning and Standards (OAQPS) to the State of Iowa. The letter says that when evaluating compliance tests for determining ambient PM₁₀ levels in PSD permits, States are required to compute PM₁₀ as the sum of in-stack and condensable PM₁₀. This letter also requires that condensable PM₁₀ emissions be included in the modeling analysis. Please refer to EPA's OAQPS letter to the State of Iowa, dated March 31, 1994, that is included under additional materials in the docket for this action. EPA, Region 8 has recently commented to the State of Montana and Utah on PSD permits that did not include limits on condensable PM₁₀ or incorporate these limits in the modeling analysis. The letter from EPA to the State of Montana is dated December 8, 2004, and the letter from EPA to the State of Utah is dated April 6, 2004, both of which are contained under additional materials in the docket for this notice. Xcel's permit application includes PSD review for increases in condensable PM₁₀ emissions.

(3) Comment: A comment received expressed concern regarding the Federal Register notice stating that the PM₁₀ emissions are mainly wind blown. The commenter believes that this statement ignores the fact that there is a major combined animal feeding operation (CAFO) in Lamar that is a significant source of PM₁₀ emissions and that the PM₁₀ and precursor emissions from the source were not properly considered in determining attainment.

Response: At this time, the CAA does not provide EPA with the authority to regulate air emissions from CAFOs, therefore, EPA is unable to require the State to include emissions from CAFO sources in their PM₁₀ redesignation request for the Lamar area.

(4) Comment: One commenter expressed concern over the statement that the 1996-2000 violations were caused because of “high winds.” The commenter stated that it is common for there to be high winds in Lamar, so much so that a large wind farm (over 100 MW) has been installed. The commenter stated that if Lamar had a reasonable action plan for high winds, it would have to actually be in effect the vast majority of the time, and that it should not be an action plan but rather a permanent part of the SIP which is always in effect.

Response: On May 30, 1996, EPA issued the Natural Events Policy (NEP) in a memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation. The NEP is the policy EPA established for addressing PM₁₀ NAAQS violations that are due to natural events. The policy was applied in Lamar, and the State has submitted documentation to EPA in both the NEAP and the supporting documentation packages for each high-wind exceedance that establishes a clear, causal relationship between the PM₁₀ exceedances in Lamar and the unusually high-wind natural events. The State submitted to EPA in February of 1998 a NEAP for Lamar to address exceedances that were associated with unusually high winds and to address the question of what should be done to protect public health. EPA determined the 1998 Lamar NEAP met the 1996 NEP. Per the 1996 NEP, the Lamar NEAP remains in effect to address future exceedances of the PM₁₀ NAAQS caused by natural events.

The NEAP for Lamar includes best available control measures (BACM) to control sources of wind-blown dust and many of these measures, including vegetative covers and wind breaks, are always in effect. BACM for PM₁₀ are techniques that achieve a maximum degree of emissions reduction from a source as determined on a case-by-case basis considering technological and economic feasibility (59 FR 42010, August 16, 1994). The NEAP for Lamar also includes a continuing public education program and a blowing dust health advisory and notification program, that the NEAP for Lamar was developed by the State in conjunction with the City of Lamar's Public Works Department, Parks and Recreation, Prowers County Commissioners, the U.S. Natural Resources Conservation Services, and numerous other stakeholders. The State made the draft NEAP available for public review and comment by public notice in February 1997, a media advisory and public meeting at a January 1998 Lamar City Council Meeting, a briefing for the Prowers County Commissioners, and a briefing of the Colorado Air Quality Control Commission in February 1998. The NEAP was submitted to EPA in October 1997. After the public presentations to the Lamar City Council and the Colorado Air Quality Control Commission, the State made revisions and submitted the final version of the NEAP to EPA on April 9, 1998 for review and comment. Since EPA provided comments and worked with the State during the development of the NEAP, EPA reviewed the final version and found no need to comment. EPA sent a letter to the State on June 5, 1998, indicating that they had no comments on the final version of the NEAP. As stated above, the Lamar NEAP remains in effect to address future exceedances of the PM₁₀ NAAQS caused by natural events.

(5) Comment: Commenter stated that there does not appear to be a PM_2.5 monitor in Lamar which, according to the commenter, would not make sense from a public health point of view. The commenter went on to state that considering that much of the PM probably comes from the CAFO and the existing coal fired power plant in Pueblo, it is highly likely that Lamar is exceeding the PM_2.5 standard and even more likely that Lamar is exceeding the level that the EPA staff has recommended for a revised PM_2.5 standard.

Response: In order to protect the public, air monitoring network design and siting are generally guided by citizen complaints and areas suspected of high concentrations, high populations, source emissions, etc. The full procedures for site selection can be found in a document called “Guidance for Network Design and Optimum Site Exposure for PM_2.5 and PM₁₀”. However, since this action pertains to PM₁₀ and not to PM_2.5, the issues raised by the commenter are not relevant to the submission made by the State and thus do not affect our approval of it.

III. Consideration of CAA Section 110(l)

Section 110(1) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS or any other applicable requirement of the CAA. As stated above, the Lamar area has shown continuous attainment of the PM₁₀ NAAQS and has met the applicable Federal requirements for redesignation to attainment. The maintenance plan and associated SIP revision will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA.

IV. Statutory and Executive Order Review

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 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 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 containing 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. section 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 December 27, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate Matter
• Reporting and recordkeeping requirements

40 CFR Part 81

• Air pollution control
• National parks
• Wilderness areas

40 CFR parts 52 and 81, chapter I, title 40 are amended as follows:

PART 52—[AMENDED]

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

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

Subpart G—Colorado

2. Section 52.320 is amended by adding paragraph (c)(106) to read as follows:

3. Section 52.332 is amended by adding paragraph (o) to read as follows:

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

2. In section 81.306, the table entitled “Colorado—PM-10” is amended by revising the entries under Prowers County for “Lamar” to read as follows: