ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF THE INTERIOR

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO23-1-5688; FRL-4884-2]

Clean Air Act Approval and Promulgation of Air Quality

Implementation Plan Revision for Colorado; Long-Term Strategy

Review of Mandatory Class I Federal Area Visibility Protection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Long- Term

Strategy of Colorado's State Implementation Plan (SIP) for Visibility

Protection, as submitted by the Governor with a letter dated November

18, 1992. The revisions were made to bring the SIP into compliance with

the Federal visibility protection requirements for states containing

mandatory Class I Federal Areas, and to fulfill requirements to

periodically review and, if necessary, revise the Long-Term Strategy

for visibility protection. EPA is also proposing to correct its error

in a previous action on the State's Visibility protection provisions.

DATES: Comments on this proposed action must be received in writing by

June 13, 1994.

ADDRESSES: Comments should be addressed to Amy Platt, Air Programs

Branch, SIP Section (8ART-AP), Environmental Protection Agency, Region

VIII, 999 18th Street, suite 500, Denver, Colorado 80202-2405.

Copies of the State's submittal and other information are available

for inspection during normal business hours at the following locations:

Air Programs Branch, Environmental Protection Agency, Region VIII, 999

18th Street, suite 500, Denver, Colorado 80202-2405; and Colorado

Department of Health, Air Pollution Control Division, 4300 Cherry Creek

Drive South, Denver, Colorado 80222-1530.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Air Programs Branch,

Environmental Protection Agency, Region VIII, (303) 293-1769.

SUPPLEMENTARY INFORMATION:

I. Background

Section 169A of the Clean Air Act1 establishes as a national

goal the prevention of any future, and the remedying of any existing,

impairment of visibility in mandatory class I Federal areas2 which

impairment results from manmade air pollution. Section 169A called for

EPA to, among other things, issue regulations to assure reasonable

progress toward meeting the National goal, section 169A(a)(4),

including requiring each State with a mandatory Class I Federal area to

revise its State implementation plan (SIP) to contain such emission

limits, schedules of compliance and other measures as may be necessary

to make reasonable progress toward meeting the National goal. Section

169A(b)(2).

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\1\The Clean Air Act (``the Act'') is codified, as amended, in

the U.S. Code at 42 U.S.C. 7401, et seq.

\2\Mandatory class I Federal areas are certain national parks,

wildernesses and international parks described in section 162(a).

These areas are the responsibility of ``Federal land managers''

(FLMs), the Secretary of the department with authority over such

lands. See section 302(i) of the Act.

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EPA promulgated regulations that, in broad outline, required

affected States to: (1) Coordinate development of SIPs with appropriate

Federal land managers; (2) develop a program to assess and remedy

visibility impairment from new and existing sources; and (3) develop a

long-term strategy to assure reasonable progress toward the National

visibility goal. 45 FR 80084 (December 2, 1980) (codified at 40 CFR

51.300-51.307). The regulations provided for the remedying of

visibility impairment that is reasonably attributable to a single

existing stationary facility or small group of existing stationary

facilities. These regualtions required that the SIPs provide for

periodic review and revisions, as appropriate, of the long-term

strategy not less frequent than every three years, that the review

process include consultation with the appropriate FLMs and that the

State report to the public and EPA a specified assessment of its

progress toward the National goal. See 40 CFR 51.306(c).

On July 12, 1985 (50 FR 28544) and November 24, 1987 (52 FR 45132),

EPA disapproved SIPs of states that failed to comply with the

requirements of, among others, the provisions of 40 CFR 51.302

(visibility general plan requirements), 51.305 (visibility monitoring),

and 51.306 (visibility Long-Term Strategy). EPA also incorporated

corresponding Federal plans and regulations into the SIPs of these

states pursuant to section 110(c)(1) of the Act. The Governor of

Colorado submitted a SIP revision for visibility protection on December

21, 1987, which met the criteria of 40 CFR 51.302, 51.305, and 51.306

and consisted of five major sections: existing impairment, new source

review, consultation with Federal land managers, monitoring strategy,

and the long-term strategy. EPA approved this SIP revision in an August

12, 1988 Federal Register document (53 FR 30428), and these revisions

replaced the Federal plans and regulations in the Colorado Visibility

SIP.

II. Revisions Submitted November 18, 1992

At its public hearing on August 20, 1992, the Colorado Air Quality

Control Commission (AQCC) adopted revisions to the Long-Term Strategy

of the Class I Visibility SIP and revisions concerning the Long-Term

Strategy in Commission Regulation No. 3. These revisions require the

Air Pollution Control Division (APCD) to review the Long-Term Strategy

and report on visibility progress at regular intervals. In a letter

dated November 18, 1992, the Governor of Colorado submitted these

revisions to EPA. These revisions were made to bring the plan into

compliance with Federal regulation and to fulfill the Federal and

Colorado requirements to review and, if necessary, revise the Long-Term

Strategy at least every three years. This submittal updates the State's

Visibility Long-Term Strategy and makes it consistent with Federal

requirements. Pursuant to section 110(k)(1) of the Act, EPA found the

submittal to be complete and so notified the Governor in a letter dated

January 15, 1993.

Regulation No. 3 previously required a Long-Term Strategy review/

revision report from the APCD to the AQCC every three years following

the effective date of the regulation (November 1987). The August 1992

Long-Term Strategy report was the first to be completed by APCD and,

therefore, was behind schedule in arriving at the AQCC (i.e., it should

have been prepared by 1990). The purpose of the regulatory change was

to clarify, in light of the delay in submitting the initial report,

when subsequent Long-Term Strategy review and revision report cycles

would occur. Without this regulatory change, the next Long-Term

Strategy review would have been due September 1993--approximately a

year from the adoption of the August 1992 report. To adjust the

reporting schedule, the regulation was revised. The revision indicates

that the Long-Term Strategy report will be made available by September

1 at least every third year following the submittal of the previous

report. If the proposed approval of this revision is finalized by EPA,

the submittal of the next report by September 1, 1995 will be a

federally-enforceable obligation.

Regulation No. 3 was also revised to clear up a discrepancy with

EPA requirements regarding the scope of review of the Long-Term

Strategy. Among the items indicated for review in the previous version

of the regulation was the ``progress achieved in developing the

components of the Long-Term Strategy.'' The State revised the language

to indicate that the Long-Term Strategy must be reviewed, among other

things, to determine ``[t]he need for BART [Best Available Retrofit

Technology] to remedy existing impairment in an integral vista declared

since plan approval.'' This change brings the State's program into

conformance with EPA regulations. See 40 CFR 51.306(c)(7). Declaration

of an integral vista allows for protection of visibility resources

outside a mandatory Class I area affecting views from within the area.

See 40 CFR 51.301(n). The State has not identified any integral vistas

at this time, but may do so in the future at its discretion.

Finally, this SIP revision consists of replacing the original Long-

Term Strategy with the revised Long-Term Strategy adopted by the State

in August, 1992. The SIP revisions address when the Long-Term Strategy

review is to be completed, factors to be assessed in periodic Long-Term

Strategy reviews, and components of the Long-Term Strategy plan (e.g.,

existing impairment, prevention of future impairment, smoke management

practices, Federal land manager consultation and communication, and

annual visibility data reports).

In a February 18, 1993 letter from Doug Skie, EPA, to Paul

Frohardt, APCD, EPA requested additional information to determine the

approvability of the SIP revisions. From a technical standpoint, EPA

found the Long-Term Strategy review and report complete and fully

approvable. However, the revision to the timing of the reporting

schedule raised some concerns. According to Federal regulation (40 CFR

51.306), ``[t]he plan must provide for periodic review and revision, as

appropriate, of the long- term strategy not less frequent than every

three years.'' Colorado's reviews should have occurred in 1990, 1993,

1996, and so forth. The August 20, 1992 review and report were nearly

two years late. Rather than conducting another review in 1993, the

revision changed the schedule to provide for review at least every

third year following the submittal of the previous report. Therefore,

since the first report was prepared in 1992, the reviews would occur in

1992, 1995, 1998, and so forth. In effect, only two reviews/reports

would be submitted to EPA through 1996, when three reports should have

been provided.

Therefore, the State committed in a March 5, 1993 letter to Doug

Skie, EPA, to prepare and submit a brief informal status report on the

Long-Term Strategy by November, 1993. In this way, the State will have

provided three reports through the 1996 timeframe (1992, 1993, 1995).

The State fulfilled its commitment by submitting to EPA an informal

Long-Term Strategy status report dated December 1, 1993.

The State believes that the Long-Term Strategy revisions to the

Visibility SIP will provide for continued Class I visibility protection

in Colorado, as well as bring the SIP into conformance with Federal

requirements for Long- Term Strategy review. This action was requested

by the State of Colorado.

EPA is also proposing, under section 110(k)(6) of the Clean Air

Act, to correct the provision of 40 CFR 52.344(a) (``Visibility

protection''). This provision incorrectly states:

The requirements of section 169A of the Clean Air Act are not

met, because the plan does not include approvable procedures for

protection of visibility in mandatory Class I Federal areas.

When EPA initially approved the general elements of Colorado's

visibility protection program on August 12, 1988 (53 FR 30428), the

State's visibility new source review (NSR) regulations had not yet been

approved. Therefore, the program disapproval of 40 CFR 52.344(a),

quoted above, which had been adopted on July 12, 1985 (50 FR 28544),

was retained. Colorado's visibility NSR regulations were approved on

December 1, 1988 as to industrial source categories for which EPA had

approved Colorado's Prevention of Significant Deterioration (PSD) and

nonattainment NSR permit requirements (53 FR 48537). For other sources,

for which Colorado did not have approved PSD and nonattainment NSR

regulations, EPA disapproved the State's visibility NSR regulations and

continued to implement Federal regulations in 40 CFR 52.26 and 52.28,

as incorporated into the Colorado SIP. This exception to approval is

noted in 40 CFR 52.344(b).

At the time of approval of the visibility NSR regulations, the

provision of 40 CFR 52.344(a), relating to over-all program

disapproval, should have been revised to indicate that Colorado's

visibility protection program was approved, with the exception of

visibility NSR as it applied to certain industrial source categories.

With this notice, EPA proposes to correct section 52.344(a) to

accurately reflect the status of program approval in Colorado.

III. Implications of This Action

EPA has reviewed the adequacy of Colorado's Long-term strategy

review and revisions relative to its date of adoption in 1992. EPA is

proposing to approve Colorado's revision to the Long-Term Strategy of

the Class I Visibility Protection SIP, as submitted by the Governor

with a letter dated November 18, 1992. EPA is also proposing to approve

revisions to Colorado AQCC Regulation No. 3 to bring it into

conformance with Federal requirements for the Long-Term Strategy and to

revise the reporting schedule. EPA proposes to determine that these

revisions are consistent with applicable Federal requirements for Long-

Term Strategy review under the Clean Air Act's visibility protection

program for mandatory Class I Federal Areas.

EPA is also proposing to correct its error in failing to accurately

reflect Colorado's Visibility SIP approval status in a previous action

on the State's Visibility protection provisions.

IV. Request for Public Comments

EPA is requesting comments on all aspects of this proposal. As

indicated at the outset of this document, EPA will consider any

comments received by June 13, 1994.

V. Executive Order (EO) 12866

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

VI. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify 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 government entities with jurisdiction over populations

of less than 50,000.

Approvals of SIP submittals 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 Federal SIP-approval does not impose any new

requirements, I certify that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

Federal-state relationship under the Clean Air Act, preparation of a

regulatory 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. E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Authority: 42 U.S.C. 7401-7671q.

Dated: May 3, 1994.

Jack W. McGraw,

Acting Regional Administrator.

[FR Doc. 94-11692 Filed 5-12-94; 8:45 am]

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