Approval and Promulgation of State Implementation Plans; State of Colorado; Revisions to the Denver Emergency Episode Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct Final Rule.

SUMMARY:

EPA is taking direct final action approving State Implementation Plan (SIP) revisions to the Denver Emergency Episode Plan submitted by the State of Colorado on September 16, 1997. EPA has determined that the Denver Emergency Episode Plan revisions meet the requirements for the prevention of air pollution emergency episodes with ambient concentrations of air pollutants that may endanger public health and welfare. The intended effect of this action is to make Federally enforceable those provisions that EPA is approving. This action is being taken under section 110 of the Clean Air Act.

DATES:

This rule is effective on November 17, 2009 without further notice, unless EPA receives adverse comment by October 19, 2009. 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.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2005-0463, by one of the following methods:

• http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: videtich.callie@epa.gov and mastrangelo.domenico@epa.gov.
• Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
• Mail: Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
• Hand Delivery: Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 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-2005-0463. 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 e-mail. 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 e-mail comment directly to EPA, without going through http://www.regulations.gov your e-mail 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, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 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 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Domenico Mastrangelo, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6436, mastrangelo.domenico@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

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.

Table of Contents

I. General Information

What Should I Consider as I Prepare My Comments for EPA?

II. What Is the Purpose of This Action?

III. What Is the State Process To Submit These Materials to EPA?

IV. EPA's Evaluation of the Denver Emergency Episode Plan Revisions

V. Final Action

VI. Statutory and Executive Order Review

I. General Information

What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or e-mail. 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 disk 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.

II. What Is the Purpose of This Action?

EPA is approving the Denver Emergency Episode Plan (DEEP) adopted into the State of Colorado SIP on February 28, 1996, and submitted to EPA September 16, 1997. The 1996 DEEP satisfies 40 CFR part 51, subpart H, which requires a plan to prevent ambient concentrations of air pollutants from reaching levels that may endanger public health and welfare.

III. What Is the State Process To Submit These Materials to EPA?

The provisions of Section 110(k) of the CAA govern EPA's review of SIP revisions submittals. The CAA also requires States to follow certain procedural requirements when developing SIP revisions that are submitted to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing, a process which must occur prior to submitting the revision to EPA.

The Colorado Air Quality Control Commission (AQCC) held a public hearing to propose revisions to the 1972 DEEP on January 18, 1996, adopted the revised plan on February 28, 1996, and submitted the revisions to EPA on September 16, 1997. However, this submittal was affected by copying issues, and the version EPA received was missing several pages. Therefore, EPA requested a replacement copy on March 4, 2009, and, on April 28, 2009, the AQCC office provided a complete copy of the original September 16, 1997 submittal package from the AQCC archives.

We have evaluated the submittal of these SIP revisions by the State of Colorado and have determined that the State met the requirements for reasonable notice and public hearing under Section 110(a)(2) of the CAA.

IV. EPA's Evaluation of the Denver Emergency Episode Plan Revisions

EPA has reviewed the 1996 Denver Emergency Episode Plan, submitted on September 16, 1997 and has determined that approval is warranted. The original Denver Emergency Episode Plan was adopted by the Colorado AQCC in January 1972 and approved by EPA in May of the same year (37 FR 10842, May 31, 1972.) The revisions EPA is acting on today apply to the Denver metropolitan area (including the Denver, Jefferson, and Douglas Counties as well as portions of Adams, Arapahoe, and Boulder Counties) for the following criteria pollutants: 8-hour Carbon Monoxide (CO), 1-hour Ozone (O3), and 24-hour PM₁₀, particulate matter with an aerodynamic diameter less than or equal to 10 micrometers.

The revised Denver Emergency Episode Plan, adopted by the Colorado AQCC in February of 1996, makes substantive and administrative changes to the 1972 DEEP. The substantive changes reflect EPA's July 1, 1987 promulgation of a rule (52 FR 24634) that changed the indicator for particulate matter from Total Suspended Particulate (TSP) to PM₁₀. This rule simultaneously promulgated primary and secondary ambient air quality standards for PM₁₀ intended to be more protective of the public health and the environment.

The 1996 Denver Emergency Episode Plan retained the 1972 plan's three contingency stages (Alert, Warning, and Emergency), thus satisfying the 40 CFR 51.152 requirement that contingency plans include two or more contingency stages. The 1996 Plan also adopted EPA's contingency thresholds (40 CFR part 51, Appendix L) for each of the pollutants noted above. During the years since the adoption of the revised Plan in 1996, the levels of CO, 1-hour Ozone, and 24-hour PM₁₀, registered at monitoring stations in the Denver metropolitan area remained well below the thresholds triggering contingency plans for the Alert stage. Furthermore, during the October 2001 to October 2002 period the Denver metropolitan area was redesignated to attainment with the NAAQS for these three criteria pollutants.

The Plan's administrative changes included style and terminology updates, as well as identification of the State of Colorado departments and offices responsible to implement specific contingency measures. We believe these administrative changes are not substantive.

V. Final Action

EPA is approving the State of Colorado's Denver Emergency Episode Plan, submitted on September 16, 1997, and is amending 40 CFR 52.321 to reflect that the State has adequately revised its Plan to comply with the requirements of 40 CFR part 51, subpart H in light of the 1987 PM₁₀ standard.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, EPA is 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 17, 2009 without further notice unless the Agency receives adverse comments by October 19, 2009. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA 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 EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

VI. Statutory and Executive Order Review

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 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 action 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).

C. Petitions for Judicial Review

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 17, 2009. 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 section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile Organic Compounds

40 CFR part 52 is 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 52.321 is amended by revising the introductory text to read as follows: