[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11692]


[[Page Unknown]]

[Federal Register: May 13, 1994]


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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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