[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Proposed Rules]
[Pages 72741-72744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23715]
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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.
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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: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://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: [email protected] and [email protected].
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 http://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 http://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, [email protected].
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\
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\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.
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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.
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\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.
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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\
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\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.
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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]
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