

[Federal Register: November 2, 2006 (Volume 71, Number 212)]
[Rules and Regulations]               
[Page 64465-64468]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no06-8]                         

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2005-CO-0002; FRL-8232-2]

 
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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: On January 24, 2006, EPA published a proposed approval of a 
revision updating the Long-Term Strategy of the State Implementation 
Plan (SIP) for Class I Visibility Protection, which was submitted by 
the Governor of Colorado with a letter dated March 24, 2005. In a 
February 13, 2006, letter EPA received adverse comments on our proposed 
approval from Rocky Mountain Clean Air Action. In this final 
rulemaking, we address the adverse comments received and finalize our 
approval.

DATES: Effective Date: This rule is effective on December 4, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. R08-OAR-2005-CO-0002. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Publicly available docket materials are 

available either electronically through http://www.regulations.gov or in hard 

copy at the Air and Radiation Program, Environmental Protection Agency 
(EPA), Region 8, 999 18th Street, Suite 200, Denver, Colorado 80202-
2466. EPA requests that if at all possible, you contact the individual 
listed in the FOR FURTHER INFORMATION CONTACT section to view the hard 
copy of the docket. You may view the hard copy of the docket Monday 
through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection 
Agency, Region 8, (303) 312-6449, platt.amy@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. March 24, 2005 Submittal
III. Response to Comments
IV. Section 110(l)
V. Final Action
VI. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The word Act or initials CAA mean the Clean Air Act, unless the 
context indicates otherwise.
    (ii) The word we or initials EPA mean the United States 
Environmental Protection Agency.
    (iii) The initials SIP mean State Implementation Plan.
    (iv) The word State or initials CO mean the State of Colorado, 
unless the context indicates otherwise.
    (v) The initials FLM mean Federal Land Manager.

[[Page 64466]]

I. Background

    Section 169A of the Clean Air Act (CAA),\1\ 42 U.S.C. 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 called 
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 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 (see CAA section 169A(b)(2)). Section 
110(a)(2)(J) of the CAA, 42 U.S.C. 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) of the Act 
(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).
---------------------------------------------------------------------------

    We promulgated regulations that required affected States to, among 
other things, (1) coordinate development of SIPs with appropriate 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-
51.307). 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 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), 
we 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). We 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. 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. We approved this SIP revision in 
the August 12, 1988 Federal Register (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, which we 
approved on October 11, 1994 (59 FR 51376).
    After Colorado's 1992 Long-Term Strategy review, the U.S. Forest 
Service (USFS) certified visibility impairment at 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. 
Emissions from the Hayden Station were addressed in the State's August 
23, 1996 Long-Term Strategy review and revision (see 62 FR 2305, 
January 16, 1997). Emissions from the Craig Generating Station were 
addressed in the State's April 19, 2001 Long-Term Strategy review and 
revision (see 66 FR 35374, July 5, 2001).
    The State conducted its next complete periodic review and revision 
of the long-term strategy in 2002. With an April 12, 2004, letter, the 
Governor of Colorado submitted that revision to the Long-Term Strategy 
of Colorado's SIP for Class I Visibility Protection, which we approved 
on August 1, 2005 (70 FR 44052).

II. March 24, 2005 Submittal

    With a March 24, 2005 letter, the Governor of Colorado submitted a 
revision to the Long-Term Strategy of Colorado's SIP for Class I 
Visibility Protection, contained in Part II of the November 18, 2004 
document entitled ``Long-Term Strategy Review and Revision of 
Colorado's State Implementation Plan for Class I Visibility 
Protection.'' This revision was made to fulfill the requirements to 
periodically review and, as appropriate, revise the Long-Term Strategy.
    The SIP revision is contained in Part II of the November 18, 2004 
document entitled ``Long-Term Strategy Review and Revision of 
Colorado's State Implementation Plan for Class I Visibility 
Protection.'' Part II, ``Revision of the Long-Term Strategy,'' 
incorporates by reference requirements for the Hayden and Craig 
Generating Stations, including emissions limits and schedules of 
compliance, as previously approved by EPA on January 16, 1997 (see 62 
FR 2305) and July 5, 2001 (see 66 FR 35374). Part II also contains 
explanatory provisions 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. These requirements address existing 
impairment, ongoing air pollution programs, smoke management practices, 
prevention of future impairment, and FLM consultation and 
communication.
    We reviewed the SIP revision and determined it adequately 
demonstrates that the State is making reasonable progress toward the 
National visibility goal as required by 40 CFR 51.306. Therefore, on 
January 24, 2006 (71 FR 3796), EPA proposed approval of this SIP 
revision.
    In addition, Appendix B of Part II of the November 18, 2004 
document entitled ``Long-Term Strategy Review and Revision of 
Colorado's State Implementation Plan for Class I Visibility 
Protection,'' contains an update of Section XIV, Visibility, of Part D 
of the Colorado Air Quality Control Commission Regulation No. 3 
(Stationary Source Permitting and Air Pollutant Emission Notice 
Requirements). Although this section has not changed substantively 
since it was last incorporated into the Visibility SIP (see 53 FR 
30431, August 12, 1988, and 59 FR 51379, October 11, 1994), it has been 
recodified. Therefore, on January 24, 2006 (71 FR 3796) for 
clarification purposes, we also proposed approval of this recodified 
version of the State's visibility regulations in order to update the 
version incorporated into the Visibility SIP.

III. Response to Comments

    Comment: In a letter dated February 13, 2006, Rocky Mountain Clean 
Air Action (RMCAA) submitted adverse comments on our proposed approval. 
Specifically, RMCAA commented that the SIP revision cannot be approved 
because of an existing provision in the Colorado SIP related to upsets 
at stationary sources. In RMCAA's view, the ``broad exception to air 
quality standards and limitations'' contained in Colorado's upset 
provision interferes with applicable requirements concerning attainment 
and reasonable further progress towards attainment of

[[Page 64467]]

the National Ambient Air Quality Standards (NAAQS) and other applicable 
requirements of the Act, including the visibility goals under Section 
169A. Although the comments address an existing SIP provision that the 
State did not submit as part of its Visibility SIP revision, the 
commenter does not believe that EPA can approve the State's Visibility 
SIP revision until the existing provision is eliminated or revised.
    EPA's Response: Colorado's upset rule is located in the Colorado 
Common Provisions Regulation, Section II.E., Upset Conditions and 
Breakdowns. EPA approved the upset rule on May 31, 1972 (see 37 FR 
10842). As noted above, the State did not submit any revisions to its 
upset rule with the Visibility SIP revision we are approving today. 
Therefore, we are not acting on the upset rule in this action, and our 
approval of the Visibility SIP revision will not change Colorado's 
upset rule or its effect on the implementation and enforcement of the 
Colorado SIP. Also, our approval of the Visibility SIP revision will 
not interfere with attainment, reasonable further progress, or any 
other requirement of the Clean Air Act. Colorado's Visibility SIP 
revision meets the requirements of our visibility regulations. Thus, 
our approval is appropriate.

IV. Section 110(l)

    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the National Ambient Air Quality Standards 
(NAAQS) or any other applicable requirements of the Act. The Colorado 
SIP revisions that are the subject of this document are consistent with 
Federal requirements and rules. These revisions were made to 
demonstrate reasonable further progress toward the National visibility 
goal, as required by the Act. They do not interfere with the attainment 
or maintenance of the NAAQS or other applicable requirements of the Act

V. Final Action

    We have reviewed the adequacy of the State's revision to the Long-
Term Strategy of Colorado's SIP for Class I Visibility Protection, 
contained in Part II of the November 18, 2004 document entitled ``Long-
Term Strategy Review and Revision of Colorado's State Implementation 
Plan for Class I Visibility Protection,'' as submitted by the Governor 
with a letter dated March 24, 2005. We are approving the revision as 
demonstrating reasonable further progress toward the National 
visibility goal as required by 40 CFR 51.306.
    This rule will be effective December 4, 2006 without further 
notice.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(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 4, 2006. 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 may 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides.


[[Page 64468]]


    Dated: October 3, 2006.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart G--Colorado

0
2. Section 52.320 is amended by adding paragraph (c)(108) to read as 
follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (108) Revisions to the Long-Term Strategy of Colorado's State 
Implementation Plan for Class I Visibility Protection (Visibility SIP), 
as submitted by the Governor on March 24, 2005. The revisions update 
strategies, activities, and monitoring plans that constitute reasonable 
progress toward the National visibility goal.
    (i) Incorporation by reference. (A) ``Revision of the Long-Term 
Strategy,'' Part II of the November 18, 2004 document entitled ``Long-
Term Strategy Review and Revision of Colorado's State Implementation 
Plan for Class I Visibility Protection,'' effective November 18, 2004.
    (B) Colorado Air Quality Control Commission Regulation No. 3, 
``Stationary Source Permitting and Air Pollutant Emission Notice 
Requirements,'' 5 CCR 1001-5, Part D, Section XIV, Visibility, 
Subsections A through F, effective April 16, 2004.
* * * * *
 [FR Doc. E6-18416 Filed 11-1-06; 8:45 am]

BILLING CODE 6560-50-P
