Determination of Attainment for the Carbon Monoxide National Ambient Air Quality Standard for Metropolitan Provo; State of Utah, and Approval of Revisions to the Oxygenated Gasoline Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

This action makes a determination of attainment for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS) for the metropolitan Provo CO nonattainment area (hereafter Provo area) which was classified as “moderate”. The Provo area was required by the Clean Air Act Amendments of 1990 to attain the CO NAAQS by December 31, 1995. This determination is based on complete, quality assured ambient air quality monitoring data for the years 1994 and 1995. In addition, on September 27, 2001, the Governor submitted revisions to Utah's rule R307-301 “Utah and Weber Counties: Oxygenated Gasoline Program”. In this action, EPA is determining that the Provo area attained the CO NAAQS and EPA is approving the revisions to rule R307-301.

DATES:

This direct final rule is effective on November 19, 2002, without further notice, unless EPA receives adverse comments by October 21, 2002. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments may be mailed to: Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, United States Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.

Copies of the documents relevant to this action are available for public inspection during normal business hours at the following offices:

United States Environmental Protection Agency, Region VIII, Air and Radiation Program, 999 18th Street, Suite 300, Denver, Colorado 80202-2466; and,

Air and Radiation Docket and Information Center, United States Environmental Protection Agency, Room B-108, 1301 Constitution Avenue (Mail Code 6102T) NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Tim Russ, Air and Radiation Program, Mailcode 8P-AR, United States Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, Telephone number: (303) 312-6479.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we”, “us”, or “our” are used we mean the Environmental Protection Agency.

I. Determination of Attainment for the CO NAAQS for the Provo Area

In this action, we are determining that the metropolitan Provo CO nonattainment area, as described in 40 CFR 81.345, attained the 8-hour CO NAAQS by December 31, 1995, based on quality assured ambient air monitoring data for the years 1994 and 1995. In addition, ambient air quality data show that the area continued to attain the CO NAAQS from 1995 through 2001 (the most recent year for which complete data are available.) This action is being taken pursuant to sections 179 (c)(1) and 186(b)(2) of the Clean Air Act (CAA). This determination of attainment does not redesignate the Provo area to attainment for the CO NAAQS. The CAA requires that for an area to be redesignated to attainment the five criteria in section 107(d)(3)(E) must first be satisfied and EPA must fully approve a maintenance plan for the area.

(a) Background

On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C) of the CAA, we designated the Provo area as nonattainment for CO because the area had been designated as nonattainment before November 15, 1990. We originally designated the Provo area as nonattainment for CO under the provisions of the 1977 CAA Amendments (see 43 FR 8962, March 3, 1978). This designation was reaffirmed by the 1990 CAA Amendments and the Provo area was classified as “moderate” CO nonattainment area with a design value greater than or equal to 12.7 parts per million (ppm). See 56 FR 56694, November 6, 1991. CO nonattainment areas classified as “moderate” were expected to attain the CO NAAQS as expeditiously as practical, but no later than December 31, 1995. Further information regarding this CO classification and the accompanying requirements are described in section 187 of the CAA and in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990.” (See 57 FR 13498, April 16, 1992.)

(b) Analysis of Ambient Air Quality Monitoring Data and Determination of Attainment

As described in 40 CFR 50.8, the national primary ambient air quality standard for carbon monoxide is 9 parts per million (10 milligrams per cubic meter) for an 8-hour average concentration not to be exceeded more than once per year. 40 CFR 50.8 continues by stating that the levels of CO in the ambient air shall be measured by a reference method based on 40 CFR part 50, appendix C and designated in accordance with 40 CFR part 53 or an equivalent method designated in accordance with 40 CFR part 53. Attainment of the CO standard is not a momentary phenomenon based on short-term data. Instead, we consider an area to be in attainment if each of the CO ambient air quality monitors in the area doesn't have more than one exceedance of the CO standard over a one-year period. 40 CFR 50.8 and 40 CFR part 50, appendix C. If any monitor in the area's CO monitoring network records more than one exceedance of the CO standard during a one-year calendar period, then the area is in violation of the CO NAAQS. In addition, our interpretation of the CAA has been that to be considered in attainment for the CO NAAQS, an area must attain the CO NAAQS for at least a continuous two-year calendar period.

Our determination that the Provo area attained the CO NAAQS by December 31, 1995, is based on an analysis of quality assured ambient air quality monitoring data that have been entered into EPA's Aerometric Information and Retrieval System (AIRS) and are relevant to this action. State annual-certified ambient air quality monitoring data for calendar years 1994 and 1995 show a measured design value of 8.2 ppm with an exceedance rate of the CO NAAQS of 1.0 or less per year, per monitor, in the Provo nonattainment area. In addition, we note that ambient data in AIRS show continuous attainment of the CO NAAQS in the Provo area from 1995 through the latest complete data year of record which is 2001. Further, preliminary data for 2002 also show attainment.

All of the data discussed above were collected and analyzed as required by EPA (see 40 CFR 50.8 and 40 CFR part 50, appendix C) and in accordance with EPA policy and guidance. The data have been archived by the State in our AIRS national database. We have evaluated the ambient air quality data and have determined that the Provo area has not violated the CO standard. Therefore, the Provo area has met its CAA requirement and attained the CO NAAQS by December 31, 1995.

II. Revisions to R307-301 for the Oxygenated Gasoline Program for Utah and Weber Counties

(a) Background

Section 211(m) of the 1990 CAA Amendments required the implementation of an oxygenated gasoline program in CO nonattainment areas with a CO design value greater than 9.5 ppm. As both the Provo area (Utah County) and Ogden City (Weber County) were nonattainment for CO and had design values greater than 9.5 ppm, this provision of the CAA applied to both Weber and Utah Counties. CAA section 211(m)(2)(B) set the Federally required oxygenate level at 2.7% oxygen by weight. In response to this CAA requirement, the Governor submitted final revisions to the State's rule R307-8 “Oxygenated Gasoline Program” on May 14, 1994, for the implementation of a 2.7% program. We approved the revisions to R307-8 on November 8, 1994 (see 59 FR 55585).

On July 11, 1994, the Governor submitted a revision to the Utah SIP that included a CO attainment demonstration for the Provo area. Two components of this attainment demonstration were the implementation of an enhanced motor vehicle inspection and maintenance (I/M) program, to be implemented by January 1, 1996, and the 2.7% oxygenated gasoline program. (We note that the State had actually implemented the 2.7% oxygenated gasoline program in the Provo area even prior to our November 8, 1994, approval of R307-8 and has continued the implementation of this 2.7% program to date.) However, the commitment to implement an enhanced I/M program was not definite. Thus, as part of the July 11, 1994, submittal the State revised R307-8-3.1.B “Average Oxygen Content Standard” to require an increase in the oxygen content of gasoline fuels in the Provo-Orem Metropolitan Statistical Area (MSA) from 2.7% to 3.1% oxygen by weight in the event the enhanced I/M program (or a substitute I/M program) was not implemented by January 1, 1996.

The State did not implement the enhanced I/M program in Utah County. Instead, on March 15, 1996, the Governor submitted a revision to the SIP that involved an improved basic I/M program for Utah County. This revision was submitted to satisfy the applicable requirements of both the CAA and section 348 of the National Highway Safety Designation Act (NHSDA) of 1995. We granted interim final approval of this SIP revision on June 9, 1997 (see 62 FR 31349) and we anticipate publishing a final rule fully approving this improved basic I/M program in the near future.

After our November 8, 1994, initial approval of the State's oxygenated gasoline program, the State submitted several revisions to R307-8 which culminated in a submittal by the Governor on July 8, 1998, that superceded and replaced all prior versions. This July 8, 1998, version of R307-8 still retained the language in R307-8-3.1.B requiring the implementation of a 3.1% oxygen content by weight program in Utah County if the enhanced I/M program was not implemented in Utah County by January 1, 1996. We approved the July 8, 1998, revision of R307-8 in conjunction with our March 9, 2001, approval of the Ogden City carbon monoxide redesignation to attainment (see 66 FR 14078), thus making the 3.1% program both State and Federally enforceable for Utah County and the Provo area. (We note that R307-8 never applied the 3.1% program in Ogden City.)

(b) Analysis the Governor's September 27, 2001, Revisions to R307-301

Utah's rule R307-301 is entitled “Utah and Weber Counties: Oxygenated Gasoline Program.” It is intended to replace R307-8. The Governor's September 27, 2001, SIP submittal made specific changes to R307-301-3 which is entitled “Average Oxygen Content Standard.”

Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This public process must occur prior to the State submitting its final revisions to us.

At the July 11, 2001, Utah Air Quality Board (UAQB) meeting, the UAQB proposed for public comment revisions to rule R307-301-3. The SIP revisions were subject to a 30-day State public comment period that began on August 1, 2001, and ended on August 31, 2001. The State conducted a public hearing on August 22, 2001. The UAQB approved the SIP revisions on September 5, 2001. Rule R307-301-3 became State-effective on September 10, 2001. The Governor submitted these SIP revisions to EPA on September 27, 2001. In a letter dated October 18, 2001, from Pat D. Hull, Acting Regional Administrator, to Governor Leavitt, we determined the submittal was administratively and technically complete pursuant to 40 CFR part 51, appendix V.

The revisions to R307-301-3 that the Governor submitted on September 27, 2001, remove the requirement for a 3.1% oxygen content by weight program and require only a 2.7% oxygen by weight program. We find the revisions acceptable for the following reasons:

The revisions will not interfere with the attainment of the CO NAAQS or any other requirement of the CAA. As noted above, the Provo area has been continuously attaining the CO NAAQS since 1994. During this period, the Provo area has never implemented a 3.1% oxygenated gasoline program and has only implemented a 2.7% oxygenated gasoline program. Only three exceedances of the CO NAAQS have been recorded in the Provo area since 1994 and none have been recorded since 1996. Also, the CO values since 1996 have generally been considerably below the CO NAAQS and trending downward. Thus, we believe a 2.7% oxygenated gasoline program will continue to be adequate for the Provo area to attain the 8-hour CO NAAQS. Any additional CO emission reductions that a 3.1% oxygenated gasoline program would achieve appear to be unnecessary.

Based on the above analysis and the ambient air quality data that is archived in our AIRS national database for the Provo area, we have concluded that a 2.7% oxygenated gasoline program is sufficient for the Provo area to attain and maintain the CO NAAQS. Therefore, the Governor's September 27, 2001, revisions to R307-301-3 are acceptable.

III. Final Action

In this action, EPA is determining that the Provo carbon monoxide “moderate” nonattainment area attained the CO NAAQS by December 31, 1995. We are also approving the Governor's September 27, 2001, revisions to Utah's rule R307-301-3 “Average Oxygen Content Standard.”

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal should adverse comments be filed. This rule will be effective November 19, 2002, without further notice unless the Agency receives adverse comments by October 21, 2002.

If EPA receives such comments, then we will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 19, 2002, and no further action will be taken on the proposed rule.

Administrative Requirements

(a) Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

(b) Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not economically significant and EPA does not have the discretion to engage in a risk assessment or alternatives analysis in acting on SIP revisions.

(c) Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves state rules implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

(d) Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

(e) Executive Order 13211 (Energy Effects)

This rule is not subject to Executive Order 13211 “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

(f) Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final approval will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the SIP final approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). Therefore, because the final rule does not create any new requirements, I certify that the final rule will not have a significant economic impact on a substantial number of small entities.

(g) Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that this final approval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

(h) 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 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 “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective November 19, 2002.

(i) National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

(j) 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 19, 2002. 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 in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon Monoxide
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

Title 40, chapter I, part 52 of the Code of Federal Regulations 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 TT—Utah

2. Section 52.2320 is amended by adding paragraph (c)(53) to read as follows:

3. New § 52.2353 is added to read as follows: