Clean Air Act Approval and Promulgation of Air Quality Implementation Plan Revision for Colorado; Long-Term Strategy of State Implementation Plan for Class I Visibility Protection, Part I: Hayden Station Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0007; FRL-5669-5]

Clean Air Act Approval and Promulgation of Air Quality

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

Implementation Plan for Class I Visibility Protection, Part I: Hayden

Station Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a revision to the long-term strategy portion

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

Protection, contained in Section VI of the document entitled ``Long-

Term Strategy Review and Revision of Colorado's State Implementation

Plan for Class I Visibility Protection, Part I: Hayden Station

Requirements,'' as submitted by the Governor with a letter dated August

23, 1996. The revision incorporates into the SIP, among other things,

emissions reduction requirements for the Hayden Station (a coal-fired

steam generating plant located near the town of Hayden, Colorado) that

are based on a consent decree addressing numerous air pollution

violations at the plant. The SIP revision is expected to remedy Hayden

Station's contribution to visibility impairment in the Mt. Zirkel

Wilderness Area and, therefore, make reasonable progress toward the

Clean Air Act National visibility goal with respect to such

contribution. On October 3, 1996, EPA published a notice of proposed

rulemaking that proposed to approve this SIP revision and provided a

thirty-day period for public comment. EPA received one set of generally

supportive comments regarding the proposed revision, and is therefore

finalizing the proposal without modification.

EFFECTIVE DATE: This action is effective February 18, 1997.

ADDRESSES: Copies of the State's submittal and other information are

available for inspection during normal business hours at the following

locations: Air Program, Environmental Protection Agency, Region VIII,

999 18th Street, Suite 500, Denver, Colorado 80202-2405; Colorado

Department of Public Health and Environment, Air Pollution Control

Division, 4300 Cherry Creek Drive South, Denver, Colorado 80222-1530;

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

SW, Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper at (303) 312-6445.

SUPPLEMENTARY INFORMATION:

I. Background

Section 169A of the Clean Air Act (CAA or Act),1 42 U.S.C.

section 7491, establishes as a National goal the prevention of any

future, and the remedying of any existing, anthropogenic visibility

impairment in mandatory Class I Federal areas 2 (referred to

herein as the ``National goal'' or ``National visibility goal'').

Section 169A calls for EPA to, among other things, issue regulations to

assure reasonable progress toward meeting the National visibility goal,

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. CAA

section 169A(b)(2). Section 110(a)(2)(J) of the CAA, 42 U.S.C. section

7410(a)(2)(J), similarly requires SIPs to meet the visibility

protection requirements of the CAA.

---------------------------------------------------------------------------

\1\ The Clean Air Act is codified, as amended, in the U.S. Code

at 42 U.S.C. 7401 et seq.

\2\ Mandatory class I Federal areas include international parks,

national wilderness areas, and national memorial parks greater than

five thousand acres in size, and national parks greater than six

thousand acres in size, as described in section 162(a) (42 U.S.C.

7472(a)). Each mandatory Class I Federal area is the responsibility

of a ``Federal land manager'' (FLM), the Secretary of the department

with authority over such lands. See section 302(i) of the Act, 42

U.S.C. 7602(i).

---------------------------------------------------------------------------

EPA promulgated regulations that require affected States to, among

other things, (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 (10-15 years) strategy to assure reasonable

progress toward the National visibility goal. See 45 FR 80084, December

2, 1980 (codified at 40 CFR 51.300-307). The regulations provide 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 require that the SIPs provide

for periodic review, and revision 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 provide a report to the public and EPA that includes an

assessment of the State's progress

[[Page 2306]]

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

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

EPA disapproved the SIPs of states, including Colorado, that failed to

comply with the requirements of 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 CAA, 42 U.S.C. section

7410(c)(1).

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 for general plan requirements, monitoring

strategy, and long-term strategies. EPA approved this SIP revision in

an August 12, 1988 Federal Register document (53 FR 30428), and this

revision replaced the Federal plans and regulations in the Colorado

Visibility SIP.

The Governor of Colorado submitted a subsequent SIP revision for

visibility protection with a letter dated November 18, 1992. This

revision was made to fulfill the requirements to periodically review

and, as appropriate, revise the long-term strategy for visibility

protection. EPA approved that long-term strategy revision on October

11, 1994 (59 FR 51376).3

---------------------------------------------------------------------------

\3\ As a matter of clarification to EPA's October 11, 1994

action, please note that the September 1 due date referred to by EPA

as the reporting deadline for Colorado's long-term strategy three-

year reviews applies to the Colorado Air Pollution Control

Division's responsibility to provide its review, and revision as

appropriate, of the long-term strategy to the Colorado Air Quality

Control Commission, with a submittal to EPA made by November 1 of

each three-year cycle.

---------------------------------------------------------------------------

Since Colorado's 1992 long-term strategy review, the U.S. Forest

Service (USFS) certified visibility impairment in Mt. Zirkel Wilderness

Area (MZWA) and named the Hayden and Craig Generating Stations in the

Yampa Valley of Northwest Colorado as suspected sources. The USFS is

the FLM for MZWA. This certification was issued on July 14, 1993.

Hayden Station, which is the focus of this SIP revision, is located

19 miles upwind from MZWA. The facility consists of two units as

follows: Unit 1 is a 180 megawatt steam generating unit completed in

1965 and Unit 2 is a 260 megawatt steam generating unit completed in

1976. The facility is currently uncontrolled for sulfur dioxide

(SO2) and nitrogen oxides (NOX) and operates electro-static

precipitators to control particulate pollution. The 1995 emissions

inventory for Hayden Station indicated that the plant emitted 16,000

tons of SO2 and 14,000 tons of NOX. Particulate emissions

have been more difficult to estimate due to control equipment

malfunction.

On August 18, 1993, the Sierra Club sued the owners of the Hayden

Station in United States District Court, alleging over 16,000

violations of the State's opacity standards and arguing that the

alleged violations resulted in a number of air quality impacts in MZWA.

On July 21, 1995, the Court found the Hayden Station owners liable for

over 19,000 violations of the opacity standards between 1988 and 1993.

See Sierra Club v. Public Service Company of Colorado, et al., 894 F.

Supp. 1455 (D. Colo. 1995). In October 1995, the Sierra Club, the

Colorado Air Pollution Control Division (APCD), and the Hayden Station

owners entered into negotiations to try to reach a ``global

settlement'' of the various issues facing the power plant. These issues

included the Sierra Club lawsuit and the USFS certification of

impairment in MZWA. In January 1996, EPA issued a Notice of Violation

(NOV) to the owners of the Hayden Station for continuing opacity

violations and joined in the settlement negotiations.

On May 22, 1996, the parties to the negotiations (EPA, Sierra Club,

State of Colorado, and the Hayden Station owners) filed a signed

Consent Decree with the United States District Court for the District

of Colorado, in Civil Action No. 93-B-1749. The United States published

notice of the settlement in the Federal Register and provided a thirty-

day public comment period. The United States responded to comments in a

motion to the Court to approve the Consent Decree. The Court approved

the Consent Decree on August 19, 1996. The Consent Decree resolves a

number of issues, including the Sierra Club and EPA enforcement

actions, and, as part of that resolution, requires substantial

reductions in air pollutants that are intended to resolve Hayden

Station's contribution to visibility impairment in MZWA. The Consent

Decree contemplates incorporation into the SIP of the visibility

protection-related requirements of the Consent Decree. The terms

``Hayden Consent Decree'' or ``Consent Decree'' are used herein to

refer to this judicially-enforceable settlement.

II. Revision Submitted August 23, 1996

With a letter dated August 23, 1996, the Governor of Colorado

submitted a revision to the long-term strategy portion of Colorado's

SIP for Visibility Protection; this revision is contained in Section VI

of the August 15, 1996 document entitled ``Long-Term Strategy Review

and Revision of Colorado's State Implementation Plan for Visibility

Protection, Part I: Hayden Station Requirements'' (referred to below as

``Long-Term Strategy Document''). The revision was made to fulfill,

with respect to Hayden Station's contribution to visibility impairment

in MZWA, the Federal and Colorado requirements to revise the long-term

strategy as appropriate following the three-year periodic review.4

The State reviewed the long-term strategy in light of the USFS's

certification of visibility impairment, the results of the Mt. Zirkel

Visibility Study 5 and other technical data, and the Hayden

Consent Decree. Based on this review, the State concluded that a

revision to the long-term strategy was necessary to remedy Hayden

Station's contribution to visibility impairment at MZWA and to ensure

reasonable progress toward the National visibility goal.

---------------------------------------------------------------------------

\4\ The report resulting from this review was specific to Hayden

Station, and the State reviewed the components of the Long-Term

Strategy as they relate to Hayden Station only. According to a

November 14, 1996 letter from Margie Perkins, Colorado Air Pollution

Control Division, to Richard Long, EPA, the State intends to address

Colorado's remaining visibility issues in ``Part II'' of the long-

term strategy review and report, to be considered by the Colorado

Air Quality Control Commission (AQCC) at a public hearing in March

1997. The State had previously projected a December 1996 AQCC public

hearing on ``Part II,'' but found this schedule impossible to meet.

\5\ This collaborative study was spearheaded by the State to

collect additional information regarding visibility conditions in

the Mt. Zirkel Wilderness Area and to identify potential sources of

impairment. The final report is available at the addresses listed in

the beginning of this document. The study was completed on July 15,

1996.

---------------------------------------------------------------------------

Only Part C of Section VI of the Long-Term Strategy Document

contains provisions that are enforceable against the Hayden Station

owners. Part C incorporates relevant portions of the Hayden Consent

Decree into the long-term strategy. The remainder of the SIP revision

contains provisions that are explanatory and analyses that are required

by section 169A of the CAA, Federal visibility regulations (40 CFR

51.300 to 51.307), and/or the Colorado Visibility SIP.

On October 3, 1996, EPA published a notice of proposed rulemaking

in the Federal Register (61 FR 51659) that proposed to approve the

revision to the long-term strategy portion of Colorado's SIP for

Visibility Protection that the Governor submitted on August 23, 1996.

EPA provided a thirty-day public comment period and received one set of

comments on the proposal. These comments and EPA's responses are

provided in section III. of this document.

[[Page 2307]]

A. Part C of Section VI: Provisions from the Hayden Consent Decree

The State incorporated into its Visibility SIP revision provisions

of the Hayden Consent Decree pertinent to visibility, including

Definitions, Emission Controls and Limitations, Continuous Emission

Monitors, Construction Schedule, Emission Limitation Compliance

Deadlines, and Reporting.6 Such provisions must be met by the

Hayden Station owners and are enforceable. The Consent Decree numbering

scheme was retained to avoid confusion between the SIP and the Consent

Decree, but only those sections pertinent to visibility, necessary to

ensure enforceability of the requirements related to visibility, and

necessary to assure reasonable progress in remedying Hayden Station's

contribution to visibility impairment at MZWA were adopted into the

SIP. Some changes were made to Consent Decree language to conform to a

SIP framework. Finally, changes were made to the force majeure

provisions of the Consent Decree to ensure that a demonstration of

reasonable progress could be made at this time. Provisions of

particular interest incorporated from the Hayden Consent Decree are

summarized below.7

---------------------------------------------------------------------------

\6\ The Consent Decree also includes requirements for NOX

emission controls and limitations; however, since these controls and

limits do not have a direct relationship to visibility, they are not

being incorporated into this Visibility SIP revision nor will any

detailed discussion be provided. The NOX requirements were

included in the Consent Decree to address acid deposition concerns.

\7\ Pursuant to the provisions of the Hayden Consent Decree and

the SIP, the Hayden Station owners have elected to continue burning

coal at Hayden Station. Thus, although the Consent Decree and the

SIP contain provisions applicable to a switch to natural gas, the

summary contained herein only addresses Consent Decree requirements

applicable to coal combustion.

---------------------------------------------------------------------------

SO2 Emission Limitations

As described below, the SO2 emission limitations will result

in at least an 82% reduction in SO2 from Hayden Station. The

Hayden Station owners must install a Lime Spray Dryer (LSD) system to

meet the emissions limitations. The following emissions limitations

apply:

--No more than 0.160 lbs SO2 per million Btu heat input on a 30

boiler operating day rolling average basis;

--No more than 0.130 lbs SO2 per million Btu heat input on a 90

boiler operating day rolling average basis;

--At least an 82% reduction of SO2 on a 30 boiler operating day

rolling average basis (to make sure that substantial reductions occur

and that control equipment is run optimally even if lower sulfur coal

is used); and

--A unit cannot operate for more than 72 consecutive hours without any

SO2 emissions reductions; that is, it must shut down if the

control equipment is not working at all for three days (to prevent the

build-up of SO2 emissions that may lead to visibility impairment

events).

Since SO2 is a chemical precursor to visibility-impairing

sulfate particles or aerosols, the State concluded that these SO2

emissions limitations will help remedy the facility's contribution to

visibility impairment in MZWA.

Particulate Emission Limitations

The Hayden Station owners must install and operate a Fabric Filter

Dust Collector (known as a baghouse or FFDC) on each unit. Particulate

emissions should be virtually eliminated. Particulate emission

limitations for each unit are:

--No more than 0.03 lbs of primary particulate matter per million Btu

heat input; and

--No more than 20.0% opacity, with certain limited exceptions, as

averaged over each separate 6-minute period within an hour as measured

by continuous opacity monitors.

Compliance with Emissions Limits

All required controls must be designed to meet enforceable emission

limits. Compliance with the SO2 and opacity emission limits shall

be determined by continuous emission monitors.

Schedule--Coal as Primary Fuel

The schedule for constructing control equipment is as follows:

Unit 1

--Commencement of physical, on-site construction of control

equipment by 6/30/97

--Commencement of start-up testing of FFDC and SO2 control

equipment by 12/31/98

Unit 2

--Commencement of physical, on-site construction of control

equipment by 6/30/98

--Commencement of start-up testing of FFDC and SO2 control

equipment by 12/31/99

The schedule for commencement of compliance with the emissions

limitations is as follows:

SO2

--For Unit 1, within 180 days after flue gas is passed through the

SO2 control equipment, or by July 1, 1999, whichever date is

earlier.

--For Unit 2, within 180 days after flue gas is passed through the

SO2 control equipment, or by July 1, 2000, whichever date is

earlier.

Particulates

--For Unit 1, within 90 days after flue gas is passed through the

FFDC control equipment, or by April 1, 1999, whichever date is earlier.

--For Unit 2, within 90 days after flue gas is passed through the

FFDC control equipment, or by April 1, 2000, whichever date is earlier.

These construction deadlines and emission limitation compliance

deadlines are subject to the ``force majeure'' provisions of the

Consent Decree, which are being included in this SIP revision. A force

majeure event refers to an excused delay in meeting construction

deadlines or in meeting emission limitation compliance deadlines due to

certain limited circumstances wholly beyond the control of the Hayden

Station owners.

To help ensure that reasonable progress continues to be made, the

State has committed to reopen the SIP (with public notice and hearing)

as soon as possible after it is determined that a construction schedule

or an emission limitation schedule has been, or will be, delayed by

more than 12 months as a result of a force majeure determination or

determinations. The State will re-evaluate the SIP at that time to

determine whether revisions are necessary to continue to demonstrate

reasonable progress. Necessary revisions may include the adoption of

new construction or compliance deadlines as necessary to ensure that

the emission limitations are met. In addition, the SIP also contains a

clarification that the force majeure provisions are not to be construed

to authorize or create any preemption or waiver of the requirements of

State or Federal air quality laws, or of the requirements contained in

the SIP or Consent Decree.

EPA believes that the language of the SIP should assure reasonable

progress toward the National visibility goal with respect to Hayden

Station's contribution to visibility impairment in the MZWA. In

general, if deadlines extend more than twelve months, EPA fully expects

the State to revise the SIP.

B. Remainder of SIP Revision

1. Analysis of Reasonable Progress

Congress established as a National goal ``the prevention of any

future, and the remedying of any existing'' anthropogenic visibility

impairment in mandatory Class I Federal areas. The statute does not

mandate that the national visibility goal be achieved by a specific

date but instead calls for ``reasonable progress'' toward the goal.

Section 169A(b)(2) of the CAA requires EPA to issue implementing

regulations requiring visibility SIPs to contain such

[[Page 2308]]

``emission limits, schedules of compliance and other measures as may be

necessary to make reasonable progress toward the National goal.''

EPA's implementing regulations provided for an initial round of

visibility SIP planning which included a long-term strategy to make

reasonable progress toward the National goal. See 40 CFR

51.302(c)(2)(I) and 51.306. The regulations also provide that the

affected FLM may certify to a State at any time that visibility

impairment exists in a mandatory Class I Federal area. See 40 CFR

51.302(c)(1). Recognizing the need to periodically evaluate the

effectiveness of the long-term strategy in protecting visibility, EPA

required States to review their long-term strategies at least every

three years. See 40 CFR 51.306(c). This requirement ensures that States

will periodically assess their visibility-related air quality planning

in light of a certification of impairment from the FLM, information

about visibility conditions and sources gathered from the visibility

monitoring requirements, or other relevant information. A central

aspect of the periodic assessment is to evaluate ``[a]dditional

measures, including the need for SIP revisions, that may be necessary

to assure reasonable progress toward the national goal.'' See 40 CFR

51.306(c)(4).

Section 169A(g)(1) of the CAA specifies factors that must be

considered in determining reasonable progress including: (1) the costs

of compliance; (2) the time necessary for compliance; (3) the energy

and non-air quality environmental impacts of compliance; and (4) the

remaining useful life of the source. Protection of visibility in a

mandatory Class I Federal area is the objective.

In this unique case, the Hayden Station owners have agreed in the

context of a judicially-enforceable Consent Decree to meet emissions

limitations that are expected to reduce Hayden Station's contribution

to visibility impairment in MZWA to below perceptible levels. The State

analyzed the emission reductions provided for in the Consent Decree in

light of the statutory factors for determining reasonable progress and

the ultimate objective of protecting visibility. The State concluded

that the measures assure reasonable progress by remedying Hayden

Station's contribution to perceptible visibility impairment in MZWA and

submitted a visibility SIP revision containing these measures.

Further, in a June 24, 1996 letter from Elizabeth Estill, USFS,

Rocky Mountain Region, to Margie Perkins, APCD, the USFS concluded that

the magnitude of the emission reductions for particulates and sulfur

oxides contained in the Consent Decree should effectively address the

USFS's concerns with visibility impairment in MZWA associated with the

Hayden Station. Based in part on this letter, the State concluded that

the pertinent provisions of the Hayden Consent Decree, as embodied in

the SIP revision, effectively resolve the USFS certification of

impairment in MZWA in relation to Hayden Station.

EPA has reviewed the State's SIP revision and supporting

information in light of the statutory and regulatory requirements and

is approving it. EPA believes the State has reasonably concluded that

the emission reduction measures at Hayden Station required in the

judicially-enforceable Consent Decree and contained in this visibility

SIP revision will remedy Hayden Station's contribution to perceptible

visibility impairment at MZWA 8, with reasonable costs, an

expeditious compliance schedule, and no significant adverse energy or

non-air quality environmental impacts. The State's August 15, 1996 SIP

revision and accompanying information, available at the addresses

listed at the beginning of this document, provide a detailed analysis

of each of the ``reasonable progress'' considerations. EPA's summary

and evaluation of the State's analysis can be found in EPA's October 3,

1996 notice of proposed rulemaking (see 61 FR 51662-51664).

---------------------------------------------------------------------------

\8\ It should be noted that current Hayden Station emissions are

not expected to contribute to visibility impairment under all

meteorological conditions and that regional haze from outside

Colorado, emissions from sources outside Colorado, and emissions

from other Colorado sources could also be contributing to visibility

impairment in MZWA.

---------------------------------------------------------------------------

2. Six Factors Considered in Developing the Long-Term Strategy

The State considered the six factors contained in 40 CFR 51.306(e)

when developing this revision to its long-term strategy. Please refer

to EPA's October 3, 1996 notice of proposed rulemaking for a discussion

of these six factors (see 61 FR 51664-51665).

C. Additional Requirements

The State met the requirements for FLM consultation prior to

adopting the SIP. The SIP also meets EPA requirements related to

enforceability. Please refer to EPA's October 3, 1996 notice of

proposed rulemaking for a discussion of these requirements (see 61 FR

51665).

III. Public Comments and EPA Responses

EPA received only one set of comments--from the Hayden Station

owners. A summary of their comments, and EPA's responses, are provided

below.

Comment: The Hayden Station owners indicate their strong support

for EPA's proposed approval of the August 23, 1996 revision of the

Colorado State Implementation Plan incorporating the requirements for

Hayden Station and urge EPA to act quickly in granting final approval

of the proposed rule.

Response: EPA notes the Hayden Station owners' support for the

proposed action.

Comment: The Hayden Station owners take issue with some of EPA's

statements in the discussion accompanying the proposed SIP revision.

Although the Hayden Station owners indicate these statements do not

impact the Hayden Station owners' support for the proposed rule, EPA is

providing responses to the Hayden Station owners' comments. The Hayden

Station owners made the following comments that fall in this category:

1. The Hayden Station owners take issue with EPA's statement in the

notice of proposed rulemaking that if a force majeure delay lasts more

than 12 months, EPA fully expects the State to revise the SIP. The

Hayden Station owners claim that EPA has misstated the necessary

consequences of a reopening of the SIP in the event that a force

majeure delay lasts more than 12 months, and that the State may take

action other than revising the SIP in response to a delay greater than

12 months.

Response: In making this statement in the notice of proposed

rulemaking, EPA was indicating its expectation that, in general, a

delay greater than 12 months will require a SIP revision to ensure

reasonable progress. EPA acknowledges that there may be situations--for

example, where the delay is not likely to last much longer than 12

months--in which a SIP revision may not be necessary.

2. The Hayden Station owners state that EPA has alleged that

malfunctions of existing opacity control equipment have caused primary

particulate matter plumes which have degraded visibility in the MZWA.

Although the Hayden Station owners do not object to the inclusion of

opacity and particulate matter standards in the SIP revision, they

state that they are unaware of any data that indicate that primary

particulate matter has caused any perceptible change in visibility in

the

[[Page 2309]]

MZWA. They further state that the MZWA visibility study confirms that

primary particulate matter is not a source of visibility impairment in

the MZWA.

Response: The Hayden Station owners have mischaracterized EPA's

statements in the notice of proposed rulemaking. In the relevant

section of the notice of proposed rulemaking, EPA summarizes

conclusions made by the State (see 61 FR 51663-51664). The State

indicates that particulate plumes may be a source of visibility

impairment in the MZWA. EPA agrees with this conclusion and believes

the MZWA visibility study supports it. Referring to an episode during

which a primary particulate plume emanated from the Hayden Station, the

study states, ``On one occasion in 1995, a clearly defined, coherent

plume from the Hayden generating station could be seen in a west-facing

video view from a camera on Storm Peak (which is south of the

Wilderness boundary). The plume was moving toward Storm Peak at nearly

the same elevation as the camera. The extent to which the plume reached

or rose over the Continental Divide could not be determined because it

could not be seen in views to the north. However, it is clear that the

potential existed for the plume to reach the Storm Peak area. This was

the only occasion when a clearly-defined, coherent generating station

plume was documented coming close to the Wilderness.'' This episode

shows that particulate plumes are capable of moving from Hayden Station

to a distance as far away as the Wilderness boundary. Under the right

meteorological and plant operating conditions, EPA believes it is

reasonable to expect that particulate plumes may occasionally impair

visibility within MZWA. Given the limited duration of the MZWA

visibility study and the relatively sparse monitoring network, EPA

believes it is unreasonable to conclude, as the Hayden Station owners

have suggested, that ``the MZWA visibility study confirms that primary

particulate matter is not a source of visibility impairment in the

MZWA.''

3. The Hayden Station owners assert that EPA's analysis of rate

impacts is oversimplified and probably inaccurate.

Response: In its notice of proposed rulemaking, EPA was summarizing

the State's analysis of the potential impact on rates, not performing

its own analysis (see 61 FR 51663). EPA believes the State's analysis

was adequate to estimate the potential costs of controls for purposes

of this action. Given that the calculation of rates is a complex

process, EPA does not assert that the ultimate impact on rates will be

exactly consistent with the State's analysis.

IV. Final Action

EPA has reviewed the adequacy of the State's revision to the long-

term strategy portion of Colorado's SIP for Class I Visibility

Protection, contained in Section VI of the August 15, 1996 document

entitled ``Long-Term Strategy Review and Revision of Colorado's SIP for

Class I Visibility Protection, Part I: Hayden Station Requirements,''

as submitted by the Governor with a letter dated August 23, 1996. EPA

is approving this revision, which includes the incorporation of certain

requirements from the Hayden Consent Decree. This SIP revision replaces

the previous existing impairment portion of the long-term strategy as

it relates to the MZWA.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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.

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

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 Act, preparation of a regulatory flexibility analysis would

constitute Federal inquiry into the economic reasonableness of state

action. The 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).

C. 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 the approval action proposed 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.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. 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

[[Page 2310]]

appropriate circuit by March 17, 1997. 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)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Nitrogen dioxide, Particulate

matter, Reporting and recordkeeping requirements, Sulfur oxides.

Dated: December 10, 1996.

Kerrigan Clough,

Acting 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)(79) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(79) On August 23, 1996, the Governor of Colorado submitted a

revision to the long-term strategy portion of Colorado's State

Implementation Plan (SIP) for Class I Visibility Protection. The

revision was made to incorporate into the SIP, among other things,

emissions reduction requirements for the Hayden Station (a coal-fired

steam generating plant located near the town of Hayden, Colorado) that

are based on a consent decree addressing numerous air pollution

violations at the plant. This SIP revision replaces the previous

existing impairment portion of the long-term strategy as it relates to

the Mt. Zirkel Wilderness Area.

(i) Incorporation by reference.

(A) Long-Term Strategy Review and Revision of Colorado's State

Implementation Plan for Class I Visibility Protection Part I: Hayden

Station Requirements, as follows: Section VI., effective on August 15,

1996.

[FR Doc. 97-1043 Filed 1-15-97; 8:45 am]

BILLING CODE 6560-50-P