[Federal Register Volume 62, Number 11 (Thursday, January 16, 1997)]
[Rules and Regulations]
[Pages 2305-2310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1043]


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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.

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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.
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    \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).
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    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
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    \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.
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    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.
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    \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.
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    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
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    \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.
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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).
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    \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.
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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]
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