Approval and Disapproval and Promulgation of Air Quality Implementation Plans; Colorado; Affirmative Defense Provisions for Startup and Shutdown; Common Provisions Regulation and Regulation No. 1, 72741-72744 [05-23715]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Proposed Rules]
[Pages 72741-72744]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23715]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R08-OAR-2005-CO-0004; FRL-8005-8]


Approval and Disapproval and Promulgation of Air Quality 
Implementation Plans; Colorado; Affirmative Defense Provisions for 
Startup and Shutdown; Common Provisions Regulation and Regulation No. 1

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to partially approve and partially disapprove 
a State Implementation Plan (SIP) revision submitted by the State of 
Colorado. The revision establishes affirmative defense provisions for 
source owners and operators for excess emissions during periods of 
startup and shutdown. The affirmative defense provisions are contained 
in the State of Colorado's Common Provisions regulation. The intended 
effect of this action is to propose to approve those portions of the 
rule that are approvable and to propose to disapprove those portions of 
the rule that are inconsistent with the Clean Air Act. This action is 
being taken under section 110 of the Clean Air Act. In addition, EPA is 
announcing that it no longer considers the State of Colorado's May 27, 
1998 submittal of revisions to Regulation No. 1 to be an active SIP 
submittal. Those revisions, which we proposed to disapprove on 
September 2, 1999 and October 7, 1999, would have provided exemptions 
from existing limitations on opacity and sulfur dioxide 
(SO2) emissions for coal-fired electric utility boilers 
during periods of startup, shutdown, and upset. Since our proposed 
disapproval, the State of Colorado has removed or replaced the 
provisions in Regulation No. 1 that we proposed to disapprove, and has 
instead pursued adoption of the affirmative defense provisions in the 
State of Colorado's Common Provisions regulation that we are 
considering today.

DATES: Comments must be received on or before January 6, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. R08-OAR-
2005-CO-0004, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: https://docket.epa.gov/rmepub/index.jsp. 
Regional Materials in EDOCKET (RME), EPA's electronic public docket and 
comment system for regional actions, is EPA's preferred method for 
receiving comments. Follow the on-line instructions for submitting 
comments.
     E-mail: long.richard@epa.gov and ostrand.laurie@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT section if you are faxing 
comments).
     Mail: Richard R. Long, Director, Air and Radiation 
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466.
     Hand Delivery: Richard R. Long, Director, Air and 
Radiation Program, Environmental Protection Agency (EPA), Region 8, 
Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Such deliveries are only accepted Monday through Friday, 8 a.m. 
to 4:55 p.m., excluding Federal holidays. Special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. R08-OAR-2005-
CO-0004. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available at https://
docket.epa.gov/rmepub/index.jsp, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA's Regional Materials in EDOCKET and 
Federal regulations.gov Web site are ``anonymous access'' systems, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through EDOCKET or 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional information about EPA's public docket visit EDOCKET online 
or see the Federal Register of May 31, 2002 (67 FR 38102). For 
additional instructions on submitting comments, go to Section I. 
General Information of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the Regional 
Materials in EDOCKET index at https://docket.epa.gov/rmepub/index.jsp. 
Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in Regional Materials in EDOCKET or in 
hard copy at the Air and Radiation Program, Environmental Protection 
Agency (EPA), Region 8, 999 18th Street, Suite 300, 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: Laurie Ostrand, Air and Radiation 
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 
8, 999 18th Street, Suite 200, Denver, Colorado 80202-2466, (303) 312-
6437, ostrand.laurie@epa.gov.

SUPPLEMENTARY INFORMATION:

[[Page 72742]]

Table of Contents

I. General Information
II. Background of State Submittal
III. EPA Analysis of State Submittal
IV. Proposed Action
V. Statutory and Executive Order Reviews

Definitions

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

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
Regional Materials in EDOCKET, regulations.gov or e-mail. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD-ROM that you mail to EPA, mark the outside 
of the disk or CD-ROM as CBI and then identify electronically within 
the disk or CD-ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background of State Submittal

    On July 31, 2002, the State of Colorado submitted a SIP revision 
that added affirmative defense provisions for excess emissions during 
startup and shutdown. These affirmative defense provisions are 
contained in the Common Provisions Regulation at section II.J and were 
adopted by the Colorado Air Quality Control Commission (AQCC) on August 
16, 2001.
    Previously, on September 2, 1999 (64 FR 48127) and October 7, 1999 
(64 FR 54601), EPA proposed to disapprove a May 27, 1998 SIP submittal 
from the State of Colorado. The May 27, 1998 SIP submittal consisted of 
revisions to Colorado Regulation No. 1 to provide exemptions from the 
existing limitations on opacity and sulfur dioxide (SO2) 
emissions for coal-fired electric utility boilers during periods of 
startup, shutdown, and upset. These revisions included changes to 
sections II.A.1, II.A.4, and VI.B.2 of Regulation No. 1, and the 
addition of section II.A.10 and VI.B.4.a(iv) to Regulation No. 1. The 
Colorado AQCC adopted the revisions on December 23, 1996. For most 
sources they became effective at the state level on March 2, 1997.\1\
---------------------------------------------------------------------------

    \1\ However, for coal-fired electric utility boilers located 
within the Denver Metro PM-10 nonattainment area, the AQCC specified 
that the provisions would not become state effective until EPA 
issued a final rule approving them.
---------------------------------------------------------------------------

    On July 31, 2002, the State of Colorado submitted additional 
revisions to Colorado Regulation No. 1; these were adopted by the 
Colorado AQCC on August 16, 2001. Among other things, the July 2002 
submittal removed from Regulation No. 1 the revisions and additions 
that EPA proposed to disapprove in September and October 1999. The July 
2002 submittal deleted Regulation No. 1 sections II.A.10 and 
VI.B.4.a(iv), and the revisions to sections II.A.1, II.A.4, and VI.B.2 
that the Governor submitted on May 27, 1998. The July 2002 submittal 
also made other revisions to Regulation No. 1.
    Because the State of Colorado has removed from its regulations the 
provisions that we proposed to disapprove in September and October 
1999, we no longer consider the May 27, 1998 Regulation No. 1 submittal 
to be an active submittal, and at this point, do not intend to finalize 
our proposed disapprovals. We have not acted on the July 31, 2002 
Regulation No. 1 submittal, but will do so in the future.
    We mention these changes to Regulation No. 1 at this time because 
of the link between the Regulation No. 1 changes and the affirmative 
defense provisions in the Common Provisions regulation. The August 16, 
2001 Statement of Basis, Specific Authority, and Purpose for Revisions 
to Regulation No. 1 (that was later submitted on July 31, 2002) 
indicates that ``as an alternative approach, the Commission has 
proposed adoption of Affirmative Defense Provisions to be added to the 
Common Provisions Regulation to recognize the issues related to periods 
of excess emissions during startup and shutdown conditions of coal-
fired utility boilers and other sources.''

III. EPA Analysis of State Submittal

    EPA's interpretations of the Act regarding excess emissions during 
malfunctions, startup and shutdown are contained in, among other 
documents, a September 20, 1999 memorandum titled ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown,'' from Steven A. Herman, Assistant 
Administrator for Enforcement and Compliance Assurance, and Robert 
Perciasepe, Assistant Administrator for Air and Radiation.\2\ That 
memorandum indicates that because excess emissions might aggravate air 
quality so as to prevent attainment and maintenance of the national 
ambient air quality standards (NAAQS) or jeopardize the prevention of 
significant deterioration (PSD) increments, all periods of excess 
emissions are considered violations of the applicable emission 
limitation. However, the memorandum recognizes that in certain 
circumstances states and EPA have enforcement discretion to refrain 
from taking enforcement action for excess emissions. In addition, the 
memorandum also indicates that states can include in their SIPs 
provisions that would, in the context of an enforcement action for 
excess emissions, excuse a source from penalties (but not injunctive 
relief) if the source can demonstrate that it meets certain

[[Page 72743]]

objective criteria (an ``affirmative defense'').\3\ Finally, the 
memorandum indicates that EPA does not intend to approve SIP revisions 
that would recognize a state director's decision to bar EPA's or 
citizens' ability to enforce applicable requirements.
---------------------------------------------------------------------------

    \2\ Earlier expressions of EPA's interpretations regarding 
excess emissions during malfunctions, startup, and shutdown are 
contained in two memoranda, one dated September 28, 1982, the other 
February 15, 1983, both titled ``Policy on Excess Emissions During 
Startup, Shutdown, Maintenance, and Malfunctions'' and signed by 
Kathleen M. Bennett. However, the September 1999 memorandum directly 
addresses the creation of affirmative defenses in SIPs and, 
therefore, is most relevant to this action.
    \3\ EPA's September 20, 1999 memorandum indicates that the term 
affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, 
regarding which the defendant has the burden of proof, and the 
merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding. See footnote 4 of the 
attachment to the memorandum.
---------------------------------------------------------------------------

    We have evaluated Colorado's affirmative defense provisions for 
startup and shutdown and find that, except for one paragraph, they are 
consistent with our interpretations under the Act regarding the types 
of affirmative defense provisions we can approve in SIPs. The 
Affirmative Defense provisions in the Common Provisions Regulation, 
sections II.J.1 through II.J.4 are consistent with the provisions for 
startup and shutdown we suggested in our September 20, 1999 memorandum. 
Thus, these provisions will provide sources with appropriate incentives 
to comply with their emissions limitations and help ensure protection 
of the NAAQS and increments and compliance with other Act requirements.
    However, we cannot approve the provisions in section II.J.5 of the 
Common Provisions regulation. Section II.J.5 reads as follows:

    II.J.5. Affirmative Defense Determination: In making any 
determination whether a source established an affirmative defense, 
the Division shall consider the information within the notification 
required in paragraph 2 of this section and any other information 
the division deems necessary, which may include, but is not limited 
to, physical inspection of the facility and review of documentation 
pertaining to the maintenance and operation of process and air 
pollution control equipment.

    Under this language, the Division could make a determination 
outside the context of an enforcement action, or at any time during an 
enforcement action, that a source has established the affirmative 
defense. If we were to approve section II.J.5, a court might conclude 
that we had ceded the authority to the Division to make this 
determination, not just for the State, but on behalf of EPA and 
citizens as well. Consequently, a court might also view the Division's 
determination that a source had established the affirmative defense as 
barring an EPA or citizen action for penalties.
    As we stated in the September 1999 memoranda, we do not intend to 
approve SIP language that would allow a state's decision to constrain 
our or citizens' enforcement discretion. To do so would be inconsistent 
with the regulatory scheme established in Title I of the Act, which 
allows independent EPA and citizen enforcement of violations, 
regardless of a state's decisions regarding those violations and any 
potential defenses.\4\
---------------------------------------------------------------------------

    \4\ Section II.J.5 may be confusing the concept of affirmative 
defense with the concept of enforcement discretion. By definition, 
an affirmative defense is a defense that may be raised in the 
context of an enforcement proceeding before an independent trier of 
fact. Before pursuing an enforcement action, the state might 
evaluate the likelihood that an owner/operator could prove the 
elements of the affirmative defense, but this would go to the 
state's exercise of enforcement discretion. While the state might 
decide not to pursue an enforcement action based on such an 
evaluation, if EPA or citizens were to pursue enforcement action, an 
independent trier of fact might reach a conclusion different from 
the state's, i.e., that the owner/operator had not proved the 
elements of the affirmative defense.
---------------------------------------------------------------------------

IV. Proposed Action

    We are proposing to approve sections II.J.1 through II.J.4 of the 
Common Provisions Regulation submitted on July 31, 2002 for the reasons 
expressed above. We are proposing to disapprove section II.J.5 of the 
Common Provisions Regulation submitted on July 31, 2002 because this 
section is inconsistent with the Clean Air Act.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * * '' 44 U.S.C. 3502(3)(A). Because this proposed rule 
does not impose an information collection burden, the Paperwork 
Reduction Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
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 small governmental 
jurisdictions.
    This proposed rule will not have a significant impact on a 
substantial number of small entities because SIP approvals and 
disapprovals under section 110 and subchapter I, part D of the Clean 
Air Act do not create any new requirements but simply approve or 
disapprove requirements that the State is already imposing. Therefore, 
because the Federal SIP approval/disapproval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of 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. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 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 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 proposes to partially 
approve and partially disapprove 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.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875

[[Page 72744]]

(Enhancing the Intergovernmental Partnership). Executive Order 13132 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' is defined in the Executive Order 
to include regulations that 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.'' Under Executive Order 13132, EPA may 
not issue a regulation that has federalism implications, that imposes 
substantial direct compliance costs, and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or EPA consults with State and local officials early in 
the process of developing the proposed regulation. EPA also may not 
issue a regulation that has federalism implications and that preempts 
State law unless the Agency consults with State and local officials 
early in the process of developing the proposed regulation.
    This proposed rule will 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, 
because it merely proposes to partially approve and partially 
disapprove state rules implementing a federal standard, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, 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. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: November 28, 2005.
Robert E. Roberts,
Regional Administrator, Region 8.
[FR Doc. 05-23715 Filed 12-6-05; 8:45 am]
BILLING CODE 6560-50-P