[Federal Register Volume 59, Number 195 (Tuesday, October 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24913]
[[Page Unknown]]
[Federal Register: October 11, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO23-1-6540; FRL-5080-7]
Clean Air Act Approval and Promulgation of Air Quality
Implementation Plan Revision for Colorado; Long-Term Strategy Review of
Class I Visibility Protection
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA approves revisions to the long-term strategy of Colorado's
State Implementation Plan (SIP) for Visibility Protection, as submitted
by the Governor with a letter dated November 18, 1992. The revisions
address requirements to review periodically and, if necessary, revise
the long-term strategy for visibility protection for states containing
mandatory Class I Federal areas. EPA also corrects its error in a
previous action on the State's Visibility protection provisions.
EFFECTIVE DATE: This rule will become effective on November 10, 1994.
ADDRESSES: Copies of the State's submittal and other information are
available for inspection during normal business hours at the following
locations:
Air Programs Branch, Environmental Protection Agency, Region VIII, 999
18th Street, suite 500, Denver, Colorado 80202-2405.
Colorado Department of Health, Air Pollution Control Division, 4300
Cherry Creek Drive South, Denver, Colorado 80222-1530.
The Air and Radiation Docket and Information Center, 401 M Street, SW.,
Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Amy Platt, Air Programs Branch,
Environmental Protection Agency, Region VIII, (303) 293-1769.
SUPPLEMENTARY INFORMATION:
I. Background
Section 169A of the Clean Air Act1 establishes as a National
goal the prevention of any future, and the remedying of any existing,
impairment of visibility in mandatory Class I Federal areas2 which
impairment results from man-made air pollution. Section 169A called for
EPA to, among other things, issue regulations to assure reasonable
progress toward meeting the National goal, section 169A(a)(4),
including requiring each State with a mandatory Class I Federal area to
revise its State implementation plan (SIP) to contain such emission
limits, schedules of compliance and other measures as may be necessary
to make reasonable progress toward meeting the National goal. Section
169A(b)(2).
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\1\The Clean Air Act (``the Act'') is codified, as amended, in
the U.S. Code at 42 U.S.C. 7401, et seq.
\2\Mandatory class I Federal areas are certain national parks,
wildernesses and international parks described in section 162(a).
These areas are the responsibility of ``Federal land managers''
(FLMs), the Secretary of the department with authority over such
lands. See section 302(i) of the Act.
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EPA promulgated regulations that, in broad outline, required
affected States to: (1) Coordinate development of SIPs with appropriate
Federal land managers (FLMs); (2) develop a program to assess and
remedy visibility impairment from new and existing sources; and (3)
develop a long-term strategy to assure reasonable progress toward the
National visibility goal. 45 FR 80084 (December 2, 1980) (codified at
40 CFR 51.300-51.307). The regulations provided for the remedying of
visibility impairment that is reasonably attributable to a single
existing stationary facility or small group of existing stationary
facilities. These regulations required that the SIPs provide for
periodic review and revisions, as appropriate, of the long-term
strategy not less frequently than every three years, that the review
process include consultation with the appropriate FLMs and that the
State report to the public and EPA a specified assessment of its
progress toward the National goal. See 40 CFR 51.306(c).
On July 12, 1985 (50 FR 28544) and November 24, 1987 (52 FR 45132),
EPA disapproved SIPs of states that failed to comply with the
requirements of, among others, the provisions of 40 CFR 51.302
(visibility general plan requirements), 51.305 (visibility monitoring),
and 51.306 (visibility long-term strategy). EPA also incorporated
corresponding Federal plans and regulations into the SIPs of these
states pursuant to section 110(c)(1) of the Act. The Governor of
Colorado submitted a SIP revision for visibility protection on December
21, 1987, which met the criteria of 40 CFR 51.302, 51.305, and 51.306
and consisted of five major sections: existing impairment, new source
review, consultation with FLMs, monitoring strategy, and the long-term
strategy. EPA approved this SIP revision in an August 12, 1988 Federal
Register notice (53 FR 30428), and these revisions replaced the Federal
plans and regulations in the Colorado Visibility SIP.
On May 13, 1994, EPA announced its proposed approval of revisions
to the long-term strategy of Colorado's Class I Visibility SIP and
revisions concerning the long-term strategy in the Colorado Air Quality
Control Commission's (AQCC) Regulation No. 3 (59 FR 25002-25004). In
that proposed rulemaking action, EPA described in detail its rationale
for proposing approval, considering the specific factual issues
presented. Rather than repeating that entire discussion in this notice,
it is incorporated by reference here. Thus, the public should review
the notice of proposed rulemaking for relevant background on this final
rulemaking action.
EPA requested public comments on all aspects of the proposal
(please reference 59 FR 25004). Comments were received and are
discussed below. This final action on the revisions to the long-term
strategy of Colorado's Class I Visibility SIP and revisions concerning
the long-term strategy in Colorado AQCC's Regulation No. 3 is unchanged
from the May 13, 1994 proposed approval action.
II. Response to Public Comments
One commenter responded to EPA's request for comments on its
proposed rulemaking. These comments were received on June 17, 1994, in
a letter dated June 12, 1994. Although the comment period ended on June
13, 1994, EPA is endeavoring to respond to these comments in an effort
to facilitate the public's understanding of this action.
On July 14, 1993, the U.S. Forest Service (USFS) certified to the
State of Colorado the existence of visibility impairment at the Mount
Zirkel Wilderness Area, a mandatory Class I Federal area located in
Colorado. (See July 14, 1993 letter from Elizabeth Estill, USFS, to
Governor Roy Romer, which is included in the docket for this action.)
The comments in response to EPA's proposed approval of Colorado's
review and revision of its Long-Term Strategy address concerns that
Colorado has not appropriately responded to the USFS's certification.
More specifically, the commenter asserts that EPA's proposed
approval of the long-term strategy revision adopted by Colorado on
November 18, 1992 is problematic because:
[I]t ignores numerous deficiencies in the State's efforts to
implement the visibility protection program since that time. In
particular, Colorado has failed to respond in a timely or effective
manner to the certification of visibility impairment in the Mount
Zirkel Wilderness Area that was filed by the U.S. Forest Service on
July 13, 1993.
The commenter asserts that EPA has a duty to notify the State of
Colorado that its visibility protection plan, as currently being
implemented, is deficient and to explain what actions are needed to
remedy those deficiencies. The commenter recommends that, in any event,
EPA should attach conditions to any final decision to approve the
State's submittal. In particular, the commenter states that EPA must
notify the State of Colorado that its next long-term strategy revision
``must include emission limitations representing the best available
retrofit technology (BART) and schedules for compliance with BART in
response to the U.S. Forest Service's certification of visibility
impairment in the Mount Zirkel Wilderness Area.''
EPA does not agree with the commenter that the SIP revision that is
the subject of this action (i.e., the November 18, 1992 Visibility SIP
revision regarding the long-term strategy review and report) should be
conditioned with requirements involving the Mount Zirkel issue or that
the State's response to the USFS's certification of visibility
impairment for the Mount Zirkel Wilderness Area should otherwise affect
the approvability of this relatively limited action. The November 18,
1992 submittal was adopted prior to the U.S. Forest Service's
certification of impairment of the Mount Zirkel Wilderness Area on July
14, 1993. Therefore, EPA assessed the adequacy of the SIP revision
relevant to the time and conditions of the submittal and found it
approvable (as discussed in further detail in the proposed rulemaking
at 59 FR 25002-25004, May 13, 1994).
EPA believes it would be unreasonable to expect that the State's
long-term strategy review would address circumstances that have not yet
transpired, especially when EPA's regulations require periodic review
and revision, as appropriate, at least every three years. See 40 CFR
51.306(c). Thus, the applicable regulatory scheme itself has a built-in
on-going assessment of the State's progress in addressing visibility
impairment in light of new developments and circumstances.
Even if the State's response to the USFS's certification of
visibility impairment at the Mount Zirkel Wilderness Area was within
the scope of the this rulemaking action, the commenter has requested
inappropriate relief in that it presupposes a particular result. The
commenter requested that EPA direct the State to include emission
limitations representing BART in its next long-term strategy review.
While it ultimately may be appropriate for the State to include
emission limitations in its next long-term strategy review and
revision, a necessary adjunct to the imposition of such emission
limitations is that the State has identified existing stationary
facilities which may reasonably be anticipated to cause or contribute
to visibility impairment at the Mount Zirkel Wilderness Area. See 40
CFR 51.302(c)(4)(i).
Nevertheless, EPA is aware that significant changes have occurred
since the November 18, 1992 submittal. Further, EPA is concerned about
the visibility protection progress the State makes between the November
18, 1992 submittal and the next long-term strategy review and revision
due by September 1, 1995. EPA's concern is heightened by the USFS's
certification of visibility impairment at the Mount Zirkel Wilderness
Area. The State's interim efforts must be guided by its responsibility
to make reasonable progress toward the national visibility protection
goal. See, e.g., Clean Air Act section 169A(a)(1) and 40 CFR
51.302(c)(2)(i), 51.300(a), 51.306(a)(3) and 51.306(c).
By finalizing this action, the submittal of the next long-term
strategy review and report is a federally-enforceable obligation due by
September 1, 1995 (see 59 FR 25003). Federal regulations (see 40 CFR
51.306) require the State to coordinate with the FLM in its long-term
strategy review process and to report on the following:
(1) The progress achieved in remedying existing impairment of
visibility in any mandatory Class I Federal area;
(2) The ability of the long-term strategy to prevent future
impairment of visibility in any mandatory Class I Federal area;
(3) Any change in visibility since the last such report;
(4) Additional measures, including the need for SIP revisions, that
may be necessary to assure reasonable progress toward the national
visibility goal;
(5) The progress achieved in implementing BART and meeting other
schedules set forth in the long-term strategy;
(6) The impact of any exemption granted under section 303;
(7) The need for BART to remedy existing visibility impairment of
any integral vista listed in the plan since the last such report.
EPA's regulations call for the State to make progress in remedying
existing visibility impairment in mandatory Class I Federal areas and
to report on measures that may be necessary to assure reasonable
progress toward the national visibility goal. The State should move
expeditiously to assess the visibility impairment at the Mount Zirkel
Wilderness Area. Further, the State should prioritize its assessment by
examining the potential sources of visibility impairment identified in
the USFS's certification. The State's assessment should be designed to
provide results that can be addressed in the next long-term strategy
report, due by September 1, 1995. See the July 29, 1994 letter from
John Seitz, EPA Office of Air Quality Planning and Standards, in
response to a letter from the commenter to Mary Nichols, EPA Assistant
Administrator for Air and Radiation. In its letter to Mary Nichols,
which was incorporated in its comments on this action, the commenter
expressed concerns about the State's response to the USFS
certification.
EPA expects the State to address the U.S. Forest Service's
certification of impairment at the Mt. Zirkel Wilderness Area in its
next long-term strategy review and report, due by September 1, 1995. In
order for EPA to assess the progress the State achieves in remedying
the existing visibility impairment at the Mt. Zirkel Wilderness Area,
that report should include the results to date of the State's
reasonable attribution study, results of any other relevant analyses,
and a decision on whether or not there is adequate information to
determine if the visibility impairment at Mt. Zirkel Wilderness Area is
reasonably attributable to any specific stationary source/sources. If
the State concludes that it has adequate information, it follows that
the State should determine whether or not the impairment is
attributable to specific sources. If the State concludes that it has
insufficient information, the State should indicate the steps that are
being taken to collect the necessary information and by what date such
information will be available.
EPA will carefully review the State's next long-term strategy to
ensure that it meets applicable statutory and regulatory requirements.
In the interim, EPA will provide guidance to help achieve these ends.
Finally, should EPA determine that the State's visibility protection
plan is substantially inadequate to ensure that the applicable
statutory and regulatory requirements are met, EPA has discretion to
call for a revision to the plan to correct the inadequacies. See Clean
Air Act section 110(k)(5).
III. This Action
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566). In a letter dated
November 18, 1992, the Governor of Colorado submitted to EPA revisions
to the State's long-term strategy of the Class I Visibility Protection
SIP. As described in EPA's proposed action (59 FR 25002-25004, May 13,
1994), these revisions were made to address the Federal and Colorado
requirements to review and, if necessary, revise the long-term strategy
at least every three years. This submittal updates the State's
visibility long-term strategy. Pursuant to section 110(k)(1) of the
Act, EPA found the submittal to be complete and so notified the
Governor in a letter dated January 15, 1993.
In this final rulemaking, EPA announces its approval of these
revisions to the Colorado's long-term strategy of the Class I
Visibility Protection SIP, including revisions to AQCC Regulation No.
3. See Clean Air Act section 110(k)(3). The revisions were made to
address when subsequent long-term strategy review and revision report
cycles would occur. The revision indicates that the long-term strategy
report will be made available by September 1 at least every third year
following the submittal of the previous report. With this final
approval, the submittal of the next report by September 1, 1995 will be
a federally-enforceable obligation.
Regulation No. 3 was also revised to clarify a discrepancy with EPA
requirements regarding the scope of review of the long-term strategy.
The State revised the language to indicate that the long-term strategy
must be reviewed, among other reasons, to determine ``[t]he need for
BART to remedy existing impairment in an integral vista declared since
plan approval.'' This change brings the State's program into
conformance with EPA regulations. See 40 CFR 51.306(c)(7). Declaration
of an integral vista allows for protection of visibility resources
outside a mandatory Class I area affecting views from within the area.
See 40 CFR 51.301(n). The State has not identified any integral vistas
at this time, but may do so in the future at its discretion.
Finally, this SIP revision consists of replacing the original long-
term strategy with the revised long-term strategy adopted by the State
in August, 1992. The SIP revisions address when the long-term strategy
review is to be completed, factors to be assessed in periodic long-term
strategy reviews, and components of the long-term strategy plan (e.g.,
existing impairment, prevention of future impairment, smoke management
practices, FLM consultation and communication, and annual visibility
data reports).
Please see EPA's proposed rulemaking for further details on the
above revisions (59 FR 25002-25004).
EPA is also correcting, under section 110(k)(6) of the Clean Air
Act, the provision of 40 CFR 52.344(a) (``Visibility protection''). In
a previous rulemaking action, EPA should have revised the provision to
indicate that Colorado's visibility protection program was approved,
except for visibility new source review (NSR) as it applied to certain
industrial source categories. With this action, EPA corrects
Sec. 52.344(a) to reflect accurately the status of program approval in
Colorado. (Please reference EPA's proposed rulemaking for further
details on this correction (59 FR 25002-25004).)
IV. Final Action
This document announces EPA's final rulemaking on the action
proposed on May 13, 1994 (59 FR 25002). EPA is taking final action to
approve the action it proposed. See Clean Air Act section 110(k)(3).
This includes approving revisions to Colorado AQCC Regulation No. 3 to
bring it into conformance with Federal requirements for the long-term
strategy and to revise the reporting schedule. EPA has determined that
these revisions are consistent with applicable Federal requirements for
long-term strategy review under the Clean Air Act's visibility
protection program for mandatory Class I Federal areas.
Further, EPA is correcting its error in failing to reflect
accurately Colorado's Visibility SIP approval status in a previous
action on the State's Visibility protection provisions.
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
Approvals of SIP submittals under section 110 and subchapter I,
part D of the Clean Air Act do not create any new requirements, but
simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP-approval does not impose any new
requirements, I certify that it does not have a significant impact on
small entities affected. Moreover, due to the nature of the federal-
state relationship under the Clean Air Act, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 12, 1994. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review must be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 21, 1994.
William P. Yellowtail,
Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(60) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(60) Revisions to the Long-Term Strategy of the Colorado State
Implementation Plan for Class I Visibility Protection were submitted by
the Governor in a letter dated November 18, 1992. The submittal
completely replaces the previous version of the Long-Term Strategy and
includes amendments to Air Quality Control Commission Regulation No. 3,
``Air Contaminant Emissions Notices.''
(i) Incorporation by reference.
(A) Revisions to the Visibility Chapter of Regulation No. 3 as
follows: XV.F.1.c. as adopted on August 20, 1992, and effective on
September 30, 1992.
3. Section 52.344 (a) is revised to read as follows:
Sec. 52.344 Visibility protection.
(a) A revision to the SIP was submitted by the Governor on December
21, 1987, for visibility general plan requirements, monitoring, and
long-term strategies.
* * * * *
[FR Doc. 94-24913 Filed 10-7-94; 8:45 am]
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