Clean Air Act Approval and Promulgation of Air Quality Implementation Plan Revision for Colorado; Long-Term Strategy Review of Class I Visibility Protection

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO23-1-6540; FRL-5080-7]

Clean Air Act Approval and Promulgation of Air Quality

Implementation Plan Revision for Colorado; Long-Term Strategy Review of

Class I Visibility Protection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA approves 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

address requirements to review periodically and, if necessary, revise

the long-term strategy for visibility protection for states containing

mandatory Class I Federal areas. EPA also corrects its error in a

previous action on the State's Visibility protection provisions.

EFFECTIVE DATE: This rule will become effective on November 10, 1994.

ADDRESSES: 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.

Colorado Department of Health, Air Pollution Control Division, 4300

Cherry Creek Drive South, Denver, Colorado 80222-1530.

The Air and Radiation Docket and Information Center, 401 M Street, SW.,

Washington, DC 20460.

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 man-made 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 (FLMs); (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 regulations required that the SIPs provide for

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

strategy not less frequently 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 FLMs, monitoring strategy, and the long-term

strategy. EPA approved this SIP revision in an August 12, 1988 Federal

Register notice (53 FR 30428), and these revisions replaced the Federal

plans and regulations in the Colorado Visibility SIP.

On May 13, 1994, EPA announced its proposed approval of revisions

to the long-term strategy of Colorado's Class I Visibility SIP and

revisions concerning the long-term strategy in the Colorado Air Quality

Control Commission's (AQCC) Regulation No. 3 (59 FR 25002-25004). In

that proposed rulemaking action, EPA described in detail its rationale

for proposing approval, considering the specific factual issues

presented. Rather than repeating that entire discussion in this notice,

it is incorporated by reference here. Thus, the public should review

the notice of proposed rulemaking for relevant background on this final

rulemaking action.

EPA requested public comments on all aspects of the proposal

(please reference 59 FR 25004). Comments were received and are

discussed below. This final action on the revisions to the long-term

strategy of Colorado's Class I Visibility SIP and revisions concerning

the long-term strategy in Colorado AQCC's Regulation No. 3 is unchanged

from the May 13, 1994 proposed approval action.

II. Response to Public Comments

One commenter responded to EPA's request for comments on its

proposed rulemaking. These comments were received on June 17, 1994, in

a letter dated June 12, 1994. Although the comment period ended on June

13, 1994, EPA is endeavoring to respond to these comments in an effort

to facilitate the public's understanding of this action.

On July 14, 1993, the U.S. Forest Service (USFS) certified to the

State of Colorado the existence of visibility impairment at the Mount

Zirkel Wilderness Area, a mandatory Class I Federal area located in

Colorado. (See July 14, 1993 letter from Elizabeth Estill, USFS, to

Governor Roy Romer, which is included in the docket for this action.)

The comments in response to EPA's proposed approval of Colorado's

review and revision of its Long-Term Strategy address concerns that

Colorado has not appropriately responded to the USFS's certification.

More specifically, the commenter asserts that EPA's proposed

approval of the long-term strategy revision adopted by Colorado on

November 18, 1992 is problematic because:

[I]t ignores numerous deficiencies in the State's efforts to

implement the visibility protection program since that time. In

particular, Colorado has failed to respond in a timely or effective

manner to the certification of visibility impairment in the Mount

Zirkel Wilderness Area that was filed by the U.S. Forest Service on

July 13, 1993.

The commenter asserts that EPA has a duty to notify the State of

Colorado that its visibility protection plan, as currently being

implemented, is deficient and to explain what actions are needed to

remedy those deficiencies. The commenter recommends that, in any event,

EPA should attach conditions to any final decision to approve the

State's submittal. In particular, the commenter states that EPA must

notify the State of Colorado that its next long-term strategy revision

``must include emission limitations representing the best available

retrofit technology (BART) and schedules for compliance with BART in

response to the U.S. Forest Service's certification of visibility

impairment in the Mount Zirkel Wilderness Area.''

EPA does not agree with the commenter that the SIP revision that is

the subject of this action (i.e., the November 18, 1992 Visibility SIP

revision regarding the long-term strategy review and report) should be

conditioned with requirements involving the Mount Zirkel issue or that

the State's response to the USFS's certification of visibility

impairment for the Mount Zirkel Wilderness Area should otherwise affect

the approvability of this relatively limited action. The November 18,

1992 submittal was adopted prior to the U.S. Forest Service's

certification of impairment of the Mount Zirkel Wilderness Area on July

14, 1993. Therefore, EPA assessed the adequacy of the SIP revision

relevant to the time and conditions of the submittal and found it

approvable (as discussed in further detail in the proposed rulemaking

at 59 FR 25002-25004, May 13, 1994).

EPA believes it would be unreasonable to expect that the State's

long-term strategy review would address circumstances that have not yet

transpired, especially when EPA's regulations require periodic review

and revision, as appropriate, at least every three years. See 40 CFR

51.306(c). Thus, the applicable regulatory scheme itself has a built-in

on-going assessment of the State's progress in addressing visibility

impairment in light of new developments and circumstances.

Even if the State's response to the USFS's certification of

visibility impairment at the Mount Zirkel Wilderness Area was within

the scope of the this rulemaking action, the commenter has requested

inappropriate relief in that it presupposes a particular result. The

commenter requested that EPA direct the State to include emission

limitations representing BART in its next long-term strategy review.

While it ultimately may be appropriate for the State to include

emission limitations in its next long-term strategy review and

revision, a necessary adjunct to the imposition of such emission

limitations is that the State has identified existing stationary

facilities which may reasonably be anticipated to cause or contribute

to visibility impairment at the Mount Zirkel Wilderness Area. See 40

CFR 51.302(c)(4)(i).

Nevertheless, EPA is aware that significant changes have occurred

since the November 18, 1992 submittal. Further, EPA is concerned about

the visibility protection progress the State makes between the November

18, 1992 submittal and the next long-term strategy review and revision

due by September 1, 1995. EPA's concern is heightened by the USFS's

certification of visibility impairment at the Mount Zirkel Wilderness

Area. The State's interim efforts must be guided by its responsibility

to make reasonable progress toward the national visibility protection

goal. See, e.g., Clean Air Act section 169A(a)(1) and 40 CFR

51.302(c)(2)(i), 51.300(a), 51.306(a)(3) and 51.306(c).

By finalizing this action, the submittal of the next long-term

strategy review and report is a federally-enforceable obligation due by

September 1, 1995 (see 59 FR 25003). Federal regulations (see 40 CFR

51.306) require the State to coordinate with the FLM in its long-term

strategy review process and to report on the following:

(1) The progress achieved in remedying existing impairment of

visibility in any mandatory Class I Federal area;

(2) The ability of the long-term strategy to prevent future

impairment of visibility in any mandatory Class I Federal area;

(3) Any change in visibility since the last such report;

(4) Additional measures, including the need for SIP revisions, that

may be necessary to assure reasonable progress toward the national

visibility goal;

(5) The progress achieved in implementing BART and meeting other

schedules set forth in the long-term strategy;

(6) The impact of any exemption granted under section 303;

(7) The need for BART to remedy existing visibility impairment of

any integral vista listed in the plan since the last such report.

EPA's regulations call for the State to make progress in remedying

existing visibility impairment in mandatory Class I Federal areas and

to report on measures that may be necessary to assure reasonable

progress toward the national visibility goal. The State should move

expeditiously to assess the visibility impairment at the Mount Zirkel

Wilderness Area. Further, the State should prioritize its assessment by

examining the potential sources of visibility impairment identified in

the USFS's certification. The State's assessment should be designed to

provide results that can be addressed in the next long-term strategy

report, due by September 1, 1995. See the July 29, 1994 letter from

John Seitz, EPA Office of Air Quality Planning and Standards, in

response to a letter from the commenter to Mary Nichols, EPA Assistant

Administrator for Air and Radiation. In its letter to Mary Nichols,

which was incorporated in its comments on this action, the commenter

expressed concerns about the State's response to the USFS

certification.

EPA expects the State to address the U.S. Forest Service's

certification of impairment at the Mt. Zirkel Wilderness Area in its

next long-term strategy review and report, due by September 1, 1995. In

order for EPA to assess the progress the State achieves in remedying

the existing visibility impairment at the Mt. Zirkel Wilderness Area,

that report should include the results to date of the State's

reasonable attribution study, results of any other relevant analyses,

and a decision on whether or not there is adequate information to

determine if the visibility impairment at Mt. Zirkel Wilderness Area is

reasonably attributable to any specific stationary source/sources. If

the State concludes that it has adequate information, it follows that

the State should determine whether or not the impairment is

attributable to specific sources. If the State concludes that it has

insufficient information, the State should indicate the steps that are

being taken to collect the necessary information and by what date such

information will be available.

EPA will carefully review the State's next long-term strategy to

ensure that it meets applicable statutory and regulatory requirements.

In the interim, EPA will provide guidance to help achieve these ends.

Finally, should EPA determine that the State's visibility protection

plan is substantially inadequate to ensure that the applicable

statutory and regulatory requirements are met, EPA has discretion to

call for a revision to the plan to correct the inadequacies. See Clean

Air Act section 110(k)(5).

III. This Action

Section 110(k) of the Act sets out provisions governing EPA's

review of SIP submittals (see 57 FR 13565-13566). In a letter dated

November 18, 1992, the Governor of Colorado submitted to EPA revisions

to the State's long-term strategy of the Class I Visibility Protection

SIP. As described in EPA's proposed action (59 FR 25002-25004, May 13,

1994), these revisions were made to address 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. 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.

In this final rulemaking, EPA announces its approval of these

revisions to the Colorado's long-term strategy of the Class I

Visibility Protection SIP, including revisions to AQCC Regulation No.

3. See Clean Air Act section 110(k)(3). The revisions were made to

address when subsequent long-term strategy review and revision report

cycles would occur. 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. With this final

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

a federally-enforceable obligation.

Regulation No. 3 was also revised to clarify a discrepancy with EPA

requirements regarding the scope of review of the long-term strategy.

The State revised the language to indicate that the long-term strategy

must be reviewed, among other reasons, to determine ``[t]he need for

BART 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, FLM consultation and communication, and annual visibility

data reports).

Please see EPA's proposed rulemaking for further details on the

above revisions (59 FR 25002-25004).

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

Act, the provision of 40 CFR 52.344(a) (``Visibility protection''). In

a previous rulemaking action, EPA should have revised the provision to

indicate that Colorado's visibility protection program was approved,

except for visibility new source review (NSR) as it applied to certain

industrial source categories. With this action, EPA corrects

Sec. 52.344(a) to reflect accurately the status of program approval in

Colorado. (Please reference EPA's proposed rulemaking for further

details on this correction (59 FR 25002-25004).)

IV. Final Action

This document announces EPA's final rulemaking on the action

proposed on May 13, 1994 (59 FR 25002). EPA is taking final action to

approve the action it proposed. See Clean Air Act section 110(k)(3).

This includes approving 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 has determined 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.

Further, EPA is correcting its error in failing to reflect

accurately Colorado's Visibility SIP approval status in a previous

action on the State's Visibility protection provisions.

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

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).

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 12, 1994. 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 must 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)).

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 review.

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.

Dated: September 21, 1994.

William P. Yellowtail,

Regional Administrator.

Chapter I, title 40 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. 7401-7671q.

Subpart G--Colorado

2. Section 52.320 is amended by adding paragraph (c)(60) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(60) Revisions to the Long-Term Strategy of the Colorado State

Implementation Plan for Class I Visibility Protection were submitted by

the Governor in a letter dated November 18, 1992. The submittal

completely replaces the previous version of the Long-Term Strategy and

includes amendments to Air Quality Control Commission Regulation No. 3,

``Air Contaminant Emissions Notices.''

(i) Incorporation by reference.

(A) Revisions to the Visibility Chapter of Regulation No. 3 as

follows: XV.F.1.c. as adopted on August 20, 1992, and effective on

September 30, 1992.

3. Section 52.344 (a) is revised to read as follows:

Sec. 52.344 Visibility protection.

(a) A revision to the SIP was submitted by the Governor on December

21, 1987, for visibility general plan requirements, monitoring, and

long-term strategies.

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[FR Doc. 94-24913 Filed 10-7-94; 8:45 am]

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