[Federal Register Volume 64, Number 170 (Thursday, September 2, 1999)]
[Proposed Rules]
[Pages 48127-48135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22937]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0031; FRL-6432-7]


Approval and Promulgation of State Implementation Plans; 
Colorado; Revisions to Opacity and Sulfur Dioxide Requirements

AGENCY: Environmental Protection Agency (EPA).2
ACTION: Proposed rule.

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SUMMARY: On May 27, 1998, the Governor of Colorado submitted revisions 
to the State Implementation Plan (SIP). Specifically, the State 
submitted revisions to Colorado Regulation No. 1 to provide coal-fired 
electric utility boilers with certain exemptions from the State's pre-
existing limitations on opacity and sulfur dioxide (SO2) 
emissions during periods of startup, shutdown, and upset. The EPA is 
proposing to disapprove these revisions to the Colorado SIP because the 
revisions are not consistent with the Clean Air Act (Act) and 
applicable Federal requirements. The effect of this disapproval will be 
that the previous version of Colorado Regulation No. 1 (which did not 
contain any exemptions from the SO2 emission limitations and 
which generally provided for a 30% opacity limit during periods of 
startup, as well as fire building, cleaning of fire boxes, soot 
blowing, process modification, or adjustment of control equipment) will 
remain part of the Federally enforceable SIP.2
DATES: Written comments must be received on or before October 4, 1999.2
ADDRESSES: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection 
Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver, Colorado 
80202-2466. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
and Radiation Program, Environmental Protection Agency, Region VIII, 
999 18th Street, Suite 500, Denver, Colorado 80202-2466. Copies of the 
State documents relevant to this action are available for public 
inspection at the Air Pollution Control Division, Colorado Department 
of Public Health and Environment, 4300 Cherry Creek Drive South, 
Denver, Colorado 80222-1530.2
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303) 
312-6445.2
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background of Submittal
    A. Revisions to Opacity Standards
    B. Revisions to SO2 Emission Limitations
II. EPA's Analysis of State's Submittal
    A. Procedural Background
    B. Analysis of State's Submittal
    1. It Does Not Appear the State Has Adequately Addressed the 
Requirements of Section 193 of the Act
    2. It Does Not Appear the State Has Adequately Addressed the 
Requirements of Section 110(l) of the Act
    3. It Does Not Appear the State Has Addressed the Requirements 
of 40 CFR 51.166(a)(2)
    4. The SIP Revision Does Not Appear to Meet the Act's 
Requirements That SIP Measures Be Enforceable
    5. The SIP Revision Appears To Be Inconsistent With the 
Requirements of the Act Regarding Continuous Compliance
    6. EPA Invites Comment on Whether the SIP Revision Conflicts 
With EPA's Any Credible Evidence Rule
III. Proposed Action
IV. Administrative Requirements
    A. Executive Order 12866
    B. Executive Order 12875
    C. Executive Order 13045
    D. Executive Order 13084
    E. Regulatory Flexibility Act
    F. Unfunded Mandates

I. Background of State Submittal

    On May 27, 1998, the Governor of Colorado submitted revisions to 
the Colorado SIP. The SIP submittal consisted of revisions to Colorado 
Regulation No. 1 to provide exemptions from the existing limitations on 
opacity and SO2 emissions for coal-fired electric utility 
boilers during periods of startup, shutdown, and upset.
    These revisions were adopted by the Colorado Air Quality Control 
Commission (AQCC) on December 23, 1996. The revisions became effective 
at the State level on March 2, 1997 for most sources. However, for 
coal-fired electric utility boilers located within the Denver Metro PM-
10 non-attainment area, the AQCC specified that the provisions will not 
become State-effective until EPA issues a final rule adopting the 
revisions to Regulation No. 1 as a permanent part of the SIP.
    The following explains in detail the revisions to Regulation No. 1 
that the Governor submitted on May 27, 1998:

A. Revisions to Opacity Standards

    Prior to these revisions to Regulation No. 1, sections II.A.1. and 
4. of Regulation No. 1 generally required all sources to meet a 20% 
opacity limit, except during periods of fire building, cleaning of fire 
boxes, soot blowing, startup, process modification, or adjustment of 
control equipment. During these periods, a 30% opacity limit applied, 
except the regulation allowed one 6-minute period in excess of 30% 
opacity in any sixty consecutive minutes. (In both the revised 
Regulation No. 1 and the pre-existing Regulation No. 1, compliance with 
the opacity limits is based on a six-minute average.) The revisions to 
Regulation No. 1 that the Governor submitted on May 27, 1998 amended 
these opacity requirements for coal-fired electric utility boilers. 
Specifically, the State

[[Page 48128]]

added a provision in section II.A.10. of Regulation No. 1 governing 
opacity at coal-fired electric utility boilers during startup, 
shutdown, and upset. (Colorado defines ``upset conditions'' in its 
Common Provisions Regulation as ``an unpredictable failure of air 
pollution control or process equipment which results in the violation 
of emission control regulations and which is not due to poor 
maintenance, improper or careless operations, or is otherwise 
preventable through exercise of reasonable care.'') Section II.A.10. 
provides that, during periods of startup, shutdown, and upset, owners 
and operators of coal-fired electric utility boilers must, to the 
extent practicable, maintain and operate each such source including 
associated air pollution control equipment in a manner consistent with 
good air pollution control practice for minimizing emissions. This 
provision also states that determination of whether acceptable 
operating and maintenance procedures are being used will be based on 
information available to the State, including monitoring results, 
opacity observations, review of operating and maintenance procedures, 
operator training, and inspection of the source.
    Another provision in section II.A.10.c. of Regulation No. 1 states 
that a source is not being maintained and operated in accordance with 
good air pollution control practice for minimizing emissions if the 
source's exceedance time (excluding exceedance time related to (1) 
significant planned maintenance outage (PMO) startups, and (2) 
emissions associated with periods that the unit is not ``on line,'' 
where ``on line'' is defined as fuel being fed to the boilers and the 
fans are on) expressed as a percentage of total operating time, 
calculated on a quarterly basis, exceeds the following ``exceedance 
percentage time allowance:'' (1) for sources using baghouses for the 
control of particulate matter, 0.8%; and (2) for sources using 
electrostatic precipitators (ESPs) for the control of particulate 
matter, 2% through March 31, 2000 and 1.5% beginning April 1, 2000. In 
enforcing this exceedance percentage time allowance, section II.A.10.e. 
of Regulation No. 1 provides that the State may consider each day on 
which one or more excess emission periods occur during the remainder of 
a given quarter, following the day on which the exceedance percentage 
time allowance is exceeded in that quarter, to be a separate day of 
violation for the purposes of assessing any penalties that may be 
allowed.
    Last, a provision was added in section II.A.10.d. of Regulation No. 
3 stating that no specific opacity limits shall be in effect for coal-
fired electric utility boilers for the startup period following a 
significant PMO, provided the following conditions are met:
    1. Written notification is provided to the State no less than 30 
days prior to shutting the unit down for the PMO. The notification must 
include a plan for minimizing emissions during the startup and an 
estimation of the period that the control equipment will not be 
operated while the boiler is started up;
    2. Throughout the startup following the PMO, the operator shall, to 
the extent practicable, maintain and operate each source including the 
associated air pollution control equipment in a manner consistent with 
good air pollution control practice for minimizing emissions; and
    3. During any PMO startup, the source shall place any air pollution 
control equipment in service no later than the manufacturer's 
specifications allow.
    Section II.A.10.d. also provides that significant PMO startups 
shall not exceed one event in any two consecutive years, and that a PMO 
startup shall ``not normally exceed 14 days in duration,'' although the 
State may extend this time period for good cause. Last, this provision 
defines startup for the purposes of significant PMOs to be the period 
of time beginning with the point of setting the unit into operation and 
ending with the points when: (1) the generator is synchronized and is 
operating at or greater than a specific unit's minimum load; (2) 
primary fuel is being burned and the burners are in service without 
stabilizing fuel being burned in the boiler; and (3) any air pollution 
control equipment has reached minimum normal operating design 
conditions consistent with manufacturer's specifications (as defined by 
temperature, on a unit-by-unit basis).

B. Revisions to SO2 Emission Limitations

    Section VI. of Regulation No. 1 contains SO2 emission limitations 
for various source categories which vary depending on whether the 
source was issued an emission permit before August 1, 1977 (i.e., 
defined as an ``existing source'') or issued an emissions permit on or 
after August 1, 1977 (i.e., defined as a ``new source''). Before the 
revisions to Regulation No. 1 that the Governor submitted on May 27, 
1998, section VI.B.4.a. of Regulation No. 1 required new coal-fired 
operations, including coal-fired steam generators, to meet the 
following SO2 emission limits:
    (1) 1.2 pounds (lbs) SO2 per million British Thermal Units (BTU) of 
coal heat input for units converted from other fuels to coal and for 
units with a coal heat input of less than 250 million BTU per hour; and
    (2) 0.4 lbs SO2 per million BTU coal heat input for units with a 
coal heat input of 250 million BTU per hour or greater.
    There were no exemptions from these SO2 emission limits.
    In the May 27, 1998 submittal, the State revised section VI.B.4.a. 
to add a new subsection (iv), which states that, during periods of 
startup, shutdown, and upset, owners and operators of coal-fired 
electric utility boilers must, to the extent practicable, maintain and 
operate each such source including associated air pollution control 
equipment in a manner consistent with good air pollution practice for 
minimizing emissions. This provision also states that determination of 
whether acceptable operating and maintenance procedures are being used 
will be based on information available to the State, including 
monitoring results, opacity observations, review of operating and 
maintenance procedures, operator training and inspection of the source. 
The State also added a provision stating that, for those coal-fired 
electric utility boilers subject to 40 CFR part 60, subpart Da (i.e., 
those coal-fired electric utility boilers for which construction or 
modification commenced after September 18, 1978), the source is not 
being maintained and operated in accordance with good air pollution 
control practice for minimizing emissions if the source's exceedance 
time expressed as a percentage of total operating time, calculated on a 
quarterly basis, exceeds 1%.
    Last, the State revised section VI.B.2. of Regulation No. 1. 
Section VI.B.2. of Regulation No. 1 previously specified a 3-hour 
averaging time for all new source emission standards for SO2. This 
section further stated that any 3-hour rolling average of emission 
rates which exceeded the emission standards in section VI.B. of 
Regulation No. 1 would be a violation of the State's regulation. The 
State added the phrase ``unless specified in a permit'' to the 
beginning of this section, in order to allow the State to use the 
permit process to specify an averaging time other than 3 hours for a 
specific source.

II. EPA's Analysis of State's Submittal

A. Procedural Background

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Sections 110(a)(2) and 110(l) of the Act

[[Page 48129]]

provides that each revision to an implementation plan submitted by a 
State must be adopted after reasonable notice and public hearing. The 
EPA also must determine whether a submittal is complete and therefore 
warrants further EPA review and action (see section 110(k)(1) and 57 FR 
13565, April 16, 1992). The EPA's completeness criteria for SIP 
submittals are set out at 40 CFR part 51, appendix V. The EPA attempts 
to make completeness determinations within 60 days of receiving a 
submission. However, a submittal is deemed complete by operation of law 
under section 110(k)(1)(B) if a completeness determination is not made 
by EPA within six months after receipt of the submission.
    To entertain public comment on the revisions to Regulation No. 1 
regarding coal-fired electric utility boilers, the Colorado AQCC held 
public hearings on December 19, 20, and 23, 1996. Following the public 
hearings, the regulation revisions were adopted by the AQCC. The 
Governor initially submitted the revisions to EPA for approval on 
October 31, 1997.
    EPA found the initial SIP submittal incomplete and notified the 
State of such finding in a January 12, 1998 letter. EPA requested 
further information from the State pertaining to the AQCC's adoption of 
the Regulation No. 1 revisions, due to the fact that the Sierra Club 
and other plaintiffs had challenged the revisions in State court on the 
grounds that the AQCC had failed to follow applicable State law 
procedures in adopting the revisions. (See Cunningham v. Colorado Air 
Quality Control Commission, Denver District Court, Case No. 97 CV 
1808).
    On May 27, 1998, the Governor of Colorado resubmitted the revisions 
to Regulation No. 1 to EPA for approval. The resubmittal included a 
letter from the Colorado Attorney General's Office opining that the 
AQCC had followed applicable procedures in adopting the revisions. On 
August 7, 1998, the Denver District Court issued an Order Affirming 
Administrative Action that affirmed the AQCC's adoption of the 
revisions.
    EPA did not issue a completeness or an incompleteness finding for 
the May 27, 1998 SIP submittal. Thus, pursuant to section 110(k)(1)(B), 
the May 27, 1998 submittal was deemed complete by operation of law on 
November 29, 1998 (i.e., six months from the date of receipt).

B. Analysis of State's Submittal

    EPA has reviewed the State's May 1998 SIP submittal against the 
relevant requirements of the Act, Federal regulations, and EPA policy 
and guidance. EPA has identified several issues with the State's SIP 
revision, as follows:
1. It Does Not Appear the State Has Adequately Addressed the 
Requirements of Section 193 of the Act
    For SIP provisions which EPA approved before November 15, 1990, 
section 193 prohibits SIP modifications applicable within a 
nonattainment area unless the modification insures equivalent or 
greater emissions reductions of the pollutant for which the area is 
nonattainment.
    EPA approved the existing opacity and SO2 provisions in Regulation 
No. 1 as part of the SIP prior to the enactment of the 1990 amendments 
to the Act (i.e., prior to November 15, 1990). There are four coal-
fired power plants in the Denver metro PM-10 nonattainment area that 
are affected by the State's revisions. The State's SIP revisions do not 
impact any other nonattainment area in Colorado because there are no 
affected coal-fired power plants in any of the State's other PM-10 
nonattainment areas, and because the State does not have any SO2 
nonattainment areas.
    In the Denver metro PM-10 nonattainment area, SO2 emissions have 
been determined to contribute significantly to PM-10 exceedances (see 
section 189(e) of the Act and 58 FR 66331, December 20, 1993). However, 
the revisions to the SO2 requirements in Regulation No. 1 only impact 
coal-fired electric utility boilers which are subject to 40 CFR part 
60, subpart Da, and there are no such coal-fired electric utility 
boilers located within the Denver metro PM-10 nonattainment area. Thus, 
the requirements of section 193 of the Act apply only to the State's 
changes to the opacity requirements in Regulation No. 1, as they impact 
the four coal-fired power plants in the Denver metro PM-10 
nonattainment area.
    The AQCC concluded that the revisions to Regulation No. 1 would 
result in at least equivalent emissions reductions as the pre-existing 
Regulation No. 1 provisions. In other words, the AQCC believed that the 
revisions did not represent a relaxation of the existing rule. 
Specifically, the AQCC's Statement of Basis states the following:

    The regulatory change removing application of the 30% opacity 
limit appears on first impression to relax requirements for these 
units. However, by limiting the overall time during which the units 
may exceed the 20% opacity limit, the Commission believes this 
approach will result in at least the same levels of compliance with 
the opacity standard and will likely result in lower overall 
emissions.1

    \1\ The State's Statement of Basis is somewhat unclear regarding 
the reduced application of the 30% opacity standard and the baseline 
for analyzing whether the rule change represents a relaxation. The 
language of the revised Regulation No. 1 appears to be clear that 
the 30% opacity limit continues to apply to fire building, cleaning 
of fire boxes, soot blowing, process modification, or adjustment of 
control equipment (unless these activities occur during a 
significant PMO startup or a period when fuel is not being fed to 
the boiler). In its discussion of section 193 of the Act, the State 
does not draw this distinction. The State also fails to mention 
that, under the provisions of Regulation No. 1, sources were 
required to meet a 20% opacity limit during shutdown.

    EPA does not believe the AQCC's conclusion is adequately supported. 
The Statement of Basis explains that the State's enforcement discretion 
has been exercised to effectively allow 5% noncompliance by electric 
power plants. It also states that ``substantial regulatory ambiguity'' 
in the opacity limitations that previously applied during startup and 
other periods led to lower compliance levels. Thus, the AQCC concluded 
that the revisions to Regulation No. 1 are substantially equivalent or 
better in their impact on emissions because a higher rate of compliance 
is expected under the revised Regulation No. 1.2
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    \2\ In another part of the Statement of Basis, the AQCC 
concluded that ``the changes made in this rulemaking will not lead 
to increased emissions in amounts substantial enough to interfere 
with the State's programs to attain and maintain the National 
Ambient Air Quality Standards (NAAQS) or other federal 
requirements.'' Here, the AQCC appears to concede that increased 
emissions will result from the rule change.
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    EPA does not agree that the State's enforcement practices under the 
previous version of Regulation No. 1 should be taken into account in 
determining the stringency of the previous version of the rule or in 
determining whether a SIP modification meets the requirements of 
section 193 of the Act. The language of Regulation No. 1, on its face, 
did not permit sources to exceed the applicable opacity limitations up 
to 5% of the time. Thus, the fact that the State used enforcement 
discretion in determining which types of violations to spend resources 
and time pursuing has no impact on whether EPA or citizens could 
enforce the requirements of Regulation No. 1 or whether sources were 
obligated to comply with those requirements on a continuous basis. In 
fact, a citizens group successfully enforced the opacity provisions of 
Regulation No. 1 for violations at a coal-fired power plant that 
complied with the opacity limitations of Regulation No. 1 more than 95% 
of the time. See Sierra Club

[[Page 48130]]

v. Public Service Company of Colorado, 894 F. Supp. 1455 (D. Colo. 
1995).
    Application of the AQCC's rationale regarding enforcement 
discretion would lead to an odd result: States with the least robust 
enforcement programs could most easily meet section 193's equivalency 
requirements. EPA does not believe Congress intended such a result when 
it enacted section 193 of the Act.
    Further, even though the revisions to Regulation No. 1 define when 
a coal-fired electric utility boiler is not complying with good air 
pollution control practices for minimizing emissions by specifying an 
exceedance percentage time allowance, there is nothing in the revisions 
that prevents the State from continuing to use enforcement discretion 
in implementing the new provisions. Thus, there is no guarantee that 
this new provision will be enforced any more stringently than the 
previous version of Regulation No. 1. In fact, section II.A.10.e. of 
Regulation No. 1 merely states that the State may assess penalties on a 
violation-per-day basis.
    EPA also disagrees with the AQCC's assertion that the prior version 
of Regulation No. 1 was ambiguous. The AQCC does not explain what was 
ambiguous about the prior version of the regulation. EPA believes the 
previous version of Regulation No. 1 was clear in requiring a 20% 
opacity limit to be met at all times, except for periods of fire 
building, cleaning of fire boxes, soot blowing, startup, process 
modification, or adjustment of control equipment. During those periods, 
a 30% opacity limit applied, with one 6-minute period in excess of 30% 
opacity allowed in any sixty consecutive minutes. The only provision in 
the State's rules that explained when an exceedance would not be 
considered to be a violation of the rules was the State's upset 
provision in section II.E. of the Common Provisions Regulation, which 
provided that upset conditions (as defined in the Common Provisions 
Regulation) would not be considered to be a violation if certain 
notification requirements were met (and, presumably, if the upset met 
the State's definition--i.e., it was not due to poor maintenance, 
improper or careless operation, or was otherwise preventable through 
exercise of reasonable care).
    EPA also believes the AQCC's analysis ignores critical features of 
the proposed revisions to Regulation No. 1. Specifically, the AQCC 
ignores the fact that, under the revisions to Regulation No. 1, 
exceedances of the exceedance percentage time allowance during startup, 
shutdown, or upset conditions would not be considered violations of the 
opacity limitation and would not be penalized for each 6-minute 
exceedance. Instead, exceedances of the exceedance percentage time 
allowance during startup, shutdown, or upset conditions would only be 
considered violations of the requirement for good air pollution control 
practice for minimizing emissions and would only be penalized on a one-
violation-per-day basis. The prospect of fewer violations and lower 
penalties would reduce sources' incentive to keep their emissions low 
during startup, shutdown, and upset, and would likely lead to higher 
emissions of PM-10 under the revised rule than under the Federally 
approved rule.
    Also, under the State's revisions, instead of being subject to a 
20% opacity limit during shutdowns and a 30% opacity limit during 
startups, sources may emit up to 100% opacity during startup, shutdown, 
and upset conditions if, to the extent practicable, they exercised good 
air pollution control practice for minimizing emissions. These sources 
are potentially allowed up to 43.2 hours of 100% opacity in one 
calendar quarter, if equipped with ESPs, and up to 17.3 hours of 100% 
opacity in one calendar quarter, if equipped with baghouses, without 
being considered in violation of the good air pollution control 
practice standard.
    In addition, the AQCC's analysis ignores the provision in the 
revised regulation that exempts significant PMO startups from the 
opacity limits. Under the revised Regulation No. 1, sources engaged in 
a significant PMO startup could potentially emit at 100% opacity for 
fourteen days or longer. Under the previous version of Regulation No. 
1, emissions during a significant PMO startup would have been subject 
to a 30%, and sometimes to a 20%, opacity limit. It appears that the 
State's analysis fails to consider equivalency on a short-term basis, 
such as 24 hours, that is directly relevant to the National Ambient Air 
Quality Standards (NAAQS).
    For the reasons stated, EPA does not believe the revisions to 
Regulation No. 1 will insure equivalent or greater reductions of PM-10 
as required by section 193 of the Act. Thus, EPA does not believe it 
can approve the revisions.
2. It Does Not Appear the State Has Adequately Addressed the 
Requirements of Section 110(l) of the Act
    Section 110(l) of the Act provides that EPA cannot approve a 
revision to a SIP if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of the Act. Section 110(l) applies to 
SIP revisions affecting both attainment or unclassifiable areas, as 
well as nonattainment areas. For attainment or unclassifiable areas, 
analysis of proposed changes under this provision should, among other 
things, focus on the 110(a)(1) requirement for maintenance of the 
NAAQS.
    As discussed above, the State does not consider the revisions to 
Regulation No. 1 regarding coal-fired electric utility boilers to be a 
relaxation of the SIP, a conclusion with which EPA disagrees. However, 
the State's submittal did include a study commissioned by the Colorado 
Utilities Coalition for Clean Air regarding the ambient impacts during 
startup and shutdown at electric utility units, which the AQCC relied 
upon in its rulemaking.3
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    \3\ The study analyzed impacts on PM-10 and PM-2.5. The recent 
U.S. Court of Appeals decision in American Trucking Associations, 
Inc. v. USEPA, Nos. 97-1440 and 97-1441 (D.C. Cir., May 14, 1999) 
did not vacate the PM-2.5 standard promulgated on July 18, 1997. In 
any event, EPA is not relying on potential adverse impacts on PM-2.5 
as a basis to disapprove the revisions to Regulation No. 1. The D.C. 
Circuit's decision had no impact on the pre-July 18, 1997 PM-10 
standard. That standard remains in place in Colorado, and EPA has an 
ongoing responsibility under the Act to ensure the standard is 
attained and maintained.
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    EPA has reviewed the study included in the SIP submittal and has 
found many flaws in the analysis. The study was based on startup and 
shutdown data from four coal-fired electric utility boilers (out of 
twenty-five in the entire State), but there was no information provided 
to explain why these four units were chosen or how they were 
representative of the potential ambient air issues from all of the 
twenty-five coal-fired electric utility boilers in the State. The 
modeling analysis projected ambient particulate matter impacts from 
each of the four units, in addition to background PM concentrations, 
that were less than the 24-hour PM-10 NAAQS. However, based on the 
information submitted, it is apparent that the modeling analysis did 
not follow the requirements contained in the EPA Guideline on Air 
Quality Models. (See 40 CFR part 51, appendix W).
    The emissions used in the modeling demonstration did not capture 
the potentially most adverse emissions scenarios associated with 
startup and shutdown. For example, it appears that the modeling 
analysis was based on actual emissions from a sample start-up/shutdown 
sequence that was simply repeated in the model throughout the year. The 
EPA's Guideline on Air

[[Page 48131]]

Quality Models requires that, in testing for compliance with 24-hour 
standards, worst case hourly emission rates (from the test sequence) 
must be used in the model for every hour of the year. Also, the 
meteorological data and selection of modeling input options was 
problematic. It appears that only one year of National Weather Service 
meteorology data was used in the modeling analysis, while the EPA 
Modeling Guideline requires that five years of such data be used. If 
the additional four years of meteorology data had been used in the 
modeling, it is likely that more adverse dispersion situations and 
higher ambient impacts would have been predicted. Further, the modeling 
only analyzed whether emissions from one unit, considering background 
concentrations, would cause a violation of the NAAQS. The modeling did 
not analyze whether the emissions from one unit during startup or 
shutdown would contribute to a violation, considering emissions from 
other nearby sources in the area. (Each of the units modeled in the 
study is collocated with two to four other coal-fired electric utility 
boilers.)
    In addition, the study only looked at particulate matter impacts, 
and it did not address the revisions to the SO2 limits whatsoever.
    Thus, EPA believes the modeling analysis included in the SIP 
submittal cannot be relied upon because of its overall noncompliance 
with the EPA Guideline on Air Quality Models, nor can the Agency rely 
on it to conclude that the SIP revision will not interfere with 
attainment or maintenance of the NAAQS.
3. It Does Not Appear the State Has Addressed the Requirements of 40 
CFR 51.166(a)(2)
    40 CFR 51.166(a)(2) requires that, if a SIP revision would result 
in increased air quality deterioration over any baseline concentration, 
the SIP revision must include a demonstration that it will not cause or 
contribute to a violation of the applicable increment(s). The 
demonstration does not need to be done for those section 107 
attainment/unclassifiable areas (as identified in 40 CFR part 81) where 
the minor source baseline date has not been triggered prior to 
submittal of the SIP revision, although the State is still required 
under 40 CFR 51.166(a)(4) to periodically review the adequacy of its 
plan to prevent significant deterioration of air quality.
    According to EPA's prevention of significant deterioration (PSD) 
regulations, the ``baseline concentration'' represents the ambient 
concentration that exists in the baseline area at the time of the 
applicable minor source baseline date. The baseline concentration 
includes the actual emissions of sources in existence on the minor 
source baseline date, excluding (1) the actual emissions from any major 
stationary source on which construction occurred after the ``major 
source baseline date''--January 6, 1975 for sources of particulate 
matter and SO2; and (2) the actual emissions increases and decreases at 
any stationary source occurring after the minor source baseline date. 
(See 40 CFR 51.166(b)(13).) Thus, once the minor source baseline date 
is triggered for an area, any changes in emissions at any stationary 
source impact the available maximum increase allowed over the baseline 
concentration (i.e., the increment). In Colorado, the SO2 minor source 
baseline date was triggered Statewide as of October 12, 1977 and the 
particulate matter minor source baseline dates have been triggered for 
a large part of the State (each ``air quality control region'' in the 
State has a different minor source baseline date for particulate 
matter).
    As discussed above, EPA believes the changes to the opacity 
provisions in Regulation No. 1 represent a relaxation from existing 
requirements that will allow increased emissions into the air. EPA also 
believes the revisions to the SO2 provisions are a relaxation that 
would allow more SO2 emissions into the air. Thus, in those parts of 
Colorado where the minor source baseline date has been triggered, this 
SIP revision would potentially allow increased deterioration over 
baseline concentration. As discussed above, the State did not consider 
the revised Regulation No. 1 to be a relaxation of existing emission 
limits. Thus, the State did not address the requirements of 40 CFR 
51.166(a)(2). However, EPA believes this SIP revision would allow 
increased deterioration of air quality over the baseline concentration 
in some parts of the State and, therefore, a demonstration is required 
to show that the SIP revision will not cause or contribute to a 
violation of the applicable increment(s).
4. The SIP Revision Does Not Appear To Meet the Act's Requirements That 
SIP Measures Be Enforceable
    Section 110(a)(2)(A) of the Act requires the SIP to include, among 
other things, ``enforceable emission limitations'' [emphasis added]. 40 
CFR 51.281 further requires that SIPs must be ``adopted as rules and 
regulations enforceable by the State agency.'' On September 23, 1987, 
EPA issued a memorandum entitled ``Review of State Implementation Plans 
and Revisions for Enforceability and Legal Sufficiency.'' This memo 
provided guidance on how to determine whether a rule or regulation was 
enforceable. This memo also directed the EPA Regional Offices to not 
approve SIPs or SIP revisions which fail to satisfy the enforceability 
criteria detailed in the September 23, 1987, memo. EPA has reviewed the 
revised Regulation No. 1 and believes that the revised rule does not 
meet the Act's requirement that SIP measures be enforceable as EPA has 
interpreted that requirement. EPA's reasoning is as follows:
    (a) EPA reads the revisions to Regulation No. 1 as substituting the 
good air pollution control practice standard in section II.A.10. for 
the opacity limits specified in sections II.A.1. and 4. during 
startups, shutdowns, and upsets. In defining the ``exceedance 
percentage time allowance'' in section II.A.10., the State does not 
specify whether exceedances will be measured against the 20% opacity 
limit of section II.A.1., the 30% opacity limit of section II.A.4., or 
both. This lack of clarity undermines the enforceability of the 
regulation.
    (b) The State's Regulation No. 1 revisions either fail to specify a 
test method for evaluating a source's performance against its 
exceedance percentage time allowance, or specify an inadequate test 
method. Section II.A.1. of Regulation No. 1 states that visible 
emissions shall be measured by EPA Method 9 (40 CFR part 60, appendix 
A) in all subsections of section II.A. and B. of Regulation No. 1, 
unless otherwise specified. Section II.A.10. does not specify any other 
method for measuring visible emissions for the purposes of determining 
whether a source has exceeded the exceedance allowance. If, as EPA 
suspects, the State intended continuous opacity monitoring (COM) data 
to be used to evaluate a source's performance against the exceedance 
percentage time allowance, the State needed to make this explicit in 
the regulation to ensure enforceability. In the alternative, EPA 
believes EPA Method 9 is inadequate to evaluate a source's performance 
against the exceedance percentage time allowance because Method 9 
observations cannot be made on a continuous basis. The revised SO2 
provisions in section VI.A.2. also do not specify any test method for 
determining whether or not a source has exceeded the SO2 exceedance 
allowance.
    (c) Regulation No. 1 specifies that section II.A.10. governs 
opacity during startup, shutdown, and upset, but the

[[Page 48132]]

AQCC's Statement of Basis states that excess emissions due to fire 
building, process modification, and adjustment of control equipment 
will also be counted in determining compliance with the exceedance 
allowance. It is not clear from the actual language of the rule whether 
exceedances due to fire building, process modification, and adjustment 
of control equipment are to be counted in determining the number of 
exceedances in a given quarter. Thus, there is a potential 
inconsistency between the language of the rule and the State's intent. 
The enforceability of the State's intent, without clear rule language, 
is questionable.
    (d) EPA's September 23, 1987, guidance memo states that there must 
be a clear, enforceable requirement that records be kept. While there 
is no specific provision requiring recordkeeping and reporting in 
section II.A.10. of Regulation No. 1, section IV.G. of Regulation No. 1 
requires recordkeeping and reporting on a quarterly basis of periods of 
excess emissions for sources required to operate continuous emission 
monitoring systems for opacity and/or SO2 (which applies to most of the 
coal-fired electric utility boilers). However, Regulation No. 1 does 
not appear to require recordkeeping and reporting of total operating 
time on a quarterly basis. Without such information, it is not clear 
how the State could implement the exceedance percentage time allowance. 
Further, section IV.G. of Regulation No. 1 does not require the 
recordkeeping and reporting of the type of information that might be 
needed to determine (1) whether a source is being maintained and 
operated in accordance with good air pollution control practices for 
minimizing emissions, or (2) whether or not a source is engaged in a 
significant PMO startup.
    (e) Significant PMO startups are not subject to an enforceable time 
limit. Specifically, section II.A.10.d.iii. states that a significant 
PMO startup ``shall not normally exceed 14 days in duration, but the 
(Colorado Air Pollution Control) Division may extend this period for 
good cause shown.'' This language constitutes a ``director's 
discretion'' provision that undermines the enforceability of the time 
limit and undercuts any benefit the time limit would have for 
protecting the NAAQS.
    (f) For significant PMO startups, section II.A.10.d.i requires the 
source to submit to the Division a plan for minimizing emissions during 
the startup, but the revisions do not require the source to follow the 
plan. Thus, the plan is unenforceable.
    (g) Section II.A.10.d.iii. describes the duration of significant 
PMO startups. The duration is defined according to various events that 
occur during the course of a startup, but it is not clear from the 
language of the regulation that these events are adequately defined or 
that the information needed to adequately define these events for 
enforcement purposes is or will be available. For example, this section 
of the regulation refers to a specific unit's minimum load. It is not 
clear what this means or whether it is a constant and well-understood 
value.
    (h) In the Statement of Basis for the revisions to Regulation No. 
1, the Commission states that the significant PMO startup exception 
``is not intended to allow exclusion of excess emissions resulting from 
routine maintenance outages, such as annual replacement of standard 
equipment * * *.'' Instead, ``the Commission restricts the application 
of the planned maintenance outage exception to events requiring 
significant changes at the facility, such as replacement of major 
facility components or installation of new processes * * *.'' However, 
the language of the regulation does not restrict significant PMOs in 
this way: Section II.A.10.d describes a significant PMO as ``a 
scheduled, infrequent yet extended maintenance shutdown * * *.'' Thus, 
it does not appear that the restriction the AQCC intended is 
enforceable.
    (i) The State revised section VI.B.2. of Regulation No. 1 to allow 
a permit to specify a different averaging time for SO2 limits than the 
3-hour averaging time contained in the regulation. This revision would 
allow the State to change the Federally enforceable averaging time in 
the SIP without EPA approval or Federal notice and comment rulemaking. 
EPA is unwilling to approve such a director's discretion provision, 
because it undermines the enforceability of the regulatory limit and 
allows the State to change the SIP without meeting the Act's 
requirements for SIP revisions. EPA believes it is impossible to judge 
in advance whether the State's potential changes to averaging times 
under such an open-ended provision would be consistent with maintenance 
of the NAAQS. In addition, EPA generally cannot approve a SIP provision 
that would be inconsistent with the averaging time of the NAAQS the SIP 
provision is designed to protect. Thus, to ensure protection of the 
secondary SO2 NAAQS, EPA believes the averaging time must not be longer 
than three hours, and EPA cannot approve a discretionary provision in 
the SIP that might allow averaging times longer than three hours.
    (j) Section VI.B.4.a.(iv) of Regulation No. 1 states that, during 
periods of startup, shutdown, and upset, owners and operators of coal-
fired electric utility boilers shall maintain and operate such sources 
in accordance with good air pollution control practice for minimizing 
emissions. However, the regulation does not state that such sources are 
exempt from the SO2 emission limit during startup, shutdown, and upset. 
Thus, the regulation reads as if both the SO2 emission limit and the 
good air pollution control practice standard apply during startup, 
shutdown, and upset at coal-fired electric utility boilers. However, 
the AQCC's Statement of Basis strongly implies that the good air 
pollution control practice standard applies in place of the SO2 
emission limitation. This discrepancy between the Statement of Basis 
and the regulation creates confusion and undermines the enforceability 
of the regulation.
    In addition to the above issues, section II.A.10.e. of Regulation 
No. 1 states that, in enforcing the exceedance percentage time 
allowance for opacity, the State may consider each day on which one or 
more excess emission periods occur following the day on which the 
exceedance percentage time allowance is exceeded for that quarter to be 
a separate day of violation for the purposes of assessing any penalties 
that may be allowed. This is much less stringent than considering each 
six-minute average of excess emissions a separate violation, as was 
previously required under the State's Regulation No. 1. Thus, the 
compliance incentive during startup, shutdown, and upset will be 
substantially reduced. This will, in turn, reduce the effectiveness of 
the rule in controlling particulate emissions.
    In summary, EPA does not believe that the revisions to Regulation 
No. 1 meet the Act's requirements that SIP measures be enforceable.
5. The SIP Revision Appears To Be Inconsistent With the Requirements of 
the Act Regarding Continuous Compliance
    The Act requires continuous compliance with emission limitations to 
ensure continuous protection of public health and the environment. The 
exemptions the State has written into Regulation No. 1 eliminate the 
requirement in the SIP that coal-fired electric utility boilers comply 
with Regulation No. 1's opacity and SO2 limits on a continuous basis. 
Under the

[[Page 48133]]

State's revisions to Regulation No. 1, emissions during startup, 
shutdown, upset, significant PMO startups and certain other conditions 
are automatically exempted from the otherwise applicable opacity and 
SO2 limits, and are subject to no emission limit. Consistent with its 
interpretation that emission limits must be met continuously, EPA has 
interpreted the Act to not permit SIP revisions that automatically 
exempt sources from emission limits.
    More specifically, section 110(a)(1) of the Act requires SIPs to 
provide for attainment and maintenance of the NAAQS. Because the NAAQS 
are health and welfare-based standards, Congress intended that they 
must be met continuously, not just intermittently. Accordingly, section 
110(a)(2) of the Act requires SIPs to contain enforceable emission 
limitations, and section 302(k) of the Act defines ``emission 
limitations'' as a requirement ``which limits the quantity, rate, or 
concentration of emissions of air pollutants on a continuous basis'' 
[emphasis added].
    EPA explained its interpretation of the term ``continuous 
compliance'' in a June 21, 1982 memorandum from Kathleen M. Bennett, 
Assistant Administrator for Air, Noise, and Radiation, to the Regional 
Air Division Directors. That guidance states that ``continuous 
compliance is essentially the avoidance of preventable excess emissions 
over time as a result of the proper design, operation, and maintenance 
of an air pollution source.'' The guidance also emphasizes that excess 
emissions resulting from malfunctions or other emergency situations 
must be minimized and terminated quickly.
    On September 28, 1982 and February 15, 1983, EPA issued policy 
statements regarding exemptions from emission limitations during 
startup, shutdown, and malfunction, based on EPA's interpretation of 
the Act's requirements for continuous compliance and attainment and 
maintenance of the NAAQS.4 For most situations, these 
policies indicate that all excess emissions must be considered 
violations, which may or may not be enforced based on the exercise of 
enforcement discretion. These policies also indicate that events like 
startup, shutdown, and maintenance are part of the normal operation of 
a source and should be accounted for in the planning, design, and 
implementation of operating procedures for the process and control 
equipment.
---------------------------------------------------------------------------

    \4\ See September 28, 1982 and February 15, 1983 Memorandums, 
both entitled ``Policy on Excess Emissions During Startup, Shutdown, 
and Malfunctions'', from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation, to the Regional 
Administrators.
---------------------------------------------------------------------------

    EPA realizes that a few sources cannot avoid short periods of 
excess emissions during startup and shutdown, despite careful and 
prudent planning and design. For these few sources, the February 15, 
1983 policy states that excess emissions during these infrequent, short 
periods need not be treated as violations provided that the source 
adequately shows that the excess could not have been prevented through 
careful planning and design and that bypassing of control equipment was 
unavoidable to prevent loss of life, personal injury, or severe 
property damage. Similarly, excess emissions during periods of 
scheduled maintenance should be treated as a violation, unless a source 
can demonstrate that such emissions could not have been avoided through 
better scheduling for maintenance or through better operation and 
maintenance practices.
    These policy statements are consistent with EPA's view that SIP 
limits must be met continuously because they are intended to protect 
the NAAQS; any exceptions should be narrowly drawn and clearly place 
the burden on the source to demonstrate that an exceedance was 
unavoidable. EPA believes the revisions to Regulation No. 1 are 
inconsistent with the Act's requirement for continuous compliance and 
attainment and maintenance of the NAAQS, and believes the revisions 
must be disapproved.
    The revisions eliminate the requirement for coal-fired electric 
utility boilers to meet any opacity limit during periods of startup, 
shutdown, and upset. It appears the State intended to provide the same 
exemption for SO2 limits. Instead, during these periods, coal-fired 
electric utility boilers are only obligated to exercise good air 
pollution control practice for minimizing emissions.
    As noted in the Background section, above, the revisions establish 
an ``exceedance percentage time allowance.'' The exceedance of this 
exceedance percentage time allowance in a quarter is considered a 
violation of the duty to exercise good air pollution control practice 
for minimizing emissions. However, it is not considered a violation of 
the underlying emission limit, and violations may only be penalized on 
a per-day basis.
    With respect to SO2 limits, Regulation No. 1 does not specify how 
the State will treat exceedances of the exceedance allowance described 
in section VI.B.4.a.(iv)(B) of Regulation No. 1, but it appears the 
State intends to approach such exceedances in the same manner as 
exceedances of the opacity exceedance percentage time allowance.
    In order to ensure continuous compliance with the SIP's opacity and 
SO2 limits, EPA believes it is essential that exceedances during 
startup, shutdown, and upsets be considered violations of such limits, 
that may only be excused in an enforcement action if the source 
properly demonstrates that the exceedances were unavoidable.
    EPA has the same objection to the SIP revision's exemption of 
emissions during significant PMO startups and periods when fuel is not 
being fed to the boiler. For significant PMO startups, revised 
Regulation No. 1 requires sources to exercise good air pollution 
control practices for minimizing emissions but states that no opacity 
limit applies during these periods. As noted above, significant PMO 
startups may last 14 days or longer. For emissions during periods when 
fuel is not being fed to the boiler, the revisions do not appear to 
impose any emission limit or requirement on sources. These exemptions 
from the opacity limits are inconsistent with the Act's requirement for 
continuous compliance and attainment and maintenance of the NAAQS.
    EPA does not believe the requirement for the use of good air 
pollution control practice for minimizing emissions during startups, 
shutdowns, malfunctions, and significant PMO startups is an adequate 
substitute for the opacity and SO2 limits. This provision in the 
revisions to Regulation No. 1 is not adequate to ensure continuous 
compliance as required by the Act.
    First, the revisions to Regulation No. 1 do not require a source to 
show that the exceedance during startup, shutdown, or upset was 
unavoidable. In fact, the revisions do not even require a source to 
demonstrate that it has exercised good air pollution control practice 
for minimizing emissions. Instead, section II.A.10.b and section 
VI.B.4.a.(iv) provide that a determination of whether acceptable 
operating and maintenance procedures are being used will be based on 
information available to the Division. This appears to put no burden on 
the source to justify an exceedance and does not appear calculated to 
determine whether or not the exceedance could have been prevented 
through careful planning and design or whether bypassing of the control 
equipment was unavoidable to prevent loss of life, personal injury, or 
severe property damage.

[[Page 48134]]

    Second, the State's requirement that the source exercise good air 
pollution control practice only appears to apply during startup, 
shutdown, and malfunction. Clearly, a problem could arise during 
startup, shutdown, and malfunction that could have been prevented by 
careful planning, design, or implementation before the startup, 
shutdown or malfunction. Also, the Bennett memoranda describe good air 
pollution control practice for minimizing emissions as only one 
criterion to examine in evaluating exceedances, and indicate that good 
air pollution control practice for minimizing emissions should be 
exercised to the ``maximum extent practicable,'' not just to the 
``extent practicable'' as the State provides.
    Furthermore, according to the AQCC's Statement of Basis for this 
Regulation No. 1 revision, the exceedance percentage time allowance was 
adopted to provide more certainty for the State and for sources in 
enforcing the good air pollution control practice standard. Thus, the 
Statement of Basis and the language of the regulation itself 
(``exceedance percentage time allowance'') strongly imply that excess 
emissions during startup, shutdown, and upset will only be considered 
to be violations if the exceedance percentage time allowance is 
exceeded (although the Statement of Basis also states that the State is 
not precluded from taking enforcement action when the exceedance 
percentage time allowance has not been exceeded).
    The State's rationale, in part, for revising the existing opacity 
and SO2 provisions in Regulation No. 1 during periods of startup, 
shutdown, and upset appears to have been to make the revised Regulation 
No. 1 more consistent with the requirements in EPA's New Source 
Performance Standards (NSPS) regarding startup, shutdown, and 
malfunction (see 40 CFR part 60, subparts D and Da). However, emission 
limitations and other control requirements of the NSPS were not 
designed to ensure compliance with the NAAQS or to meet other SIP 
requirements. Rather, the NSPS were designed to reflect best 
demonstrated technology (taking into account costs) for the affected 
sources. Further, because NSPS are based on the best system of emission 
reduction which ``the Administrator determines has been adequately 
demonstrated,'' EPA generally views the NSPS as the ``floor'' in 
determining the emissions control technology that is feasible for a 
source. Thus, the NSPS are intended to complement the SIP program, but 
do not necessarily satisfy the requirements of section 110(a)(1) of the 
Act, which requires control measures to provide for attainment and 
maintenance of the NAAQS, or of other sections of the Act related to 
SIP content.
    In summary, EPA believes the revisions to Regulation No. 1 are not 
consistent with the Act because the revisions allow less than 
continuous compliance with SIP emission limits that are designed to 
attain and maintain the NAAQS without requiring sources to demonstrate 
that excess emissions could not have been prevented or avoided. The 
revisions to Regulation No. 1 significantly reduce the incentive for 
continuous compliance by sources.
6. EPA Invites Comment on Whether the SIP Revision Conflicts With EPA's 
Any Credible Evidence Rule
    On February 24, 1997, EPA promulgated changes to Federal 
Regulations to clarify that any credible evidence can be used to 
demonstrate compliance or noncompliance with emission standards (see 62 
FR 8314-8328). In that rulemaking, EPA revised the SIP requirements in 
40 CFR 51.212 to state that the SIP ``must not preclude the use, 
including the exclusive use, of any credible evidence or information 
relevant to whether a source would have been in compliance with 
applicable requirements if the appropriate performance or compliance 
test or procedure had been performed.''
    As discussed above, section II.A.1. of Regulation No. 1 states that 
visible emissions shall be measured by EPA Method 9 (40 CFR part 60, 
appendix A) ``in all subsections of section II.A and B of this 
regulation, unless otherwise specified.'' It is EPA's belief that this 
language does not preclude the use of other credible evidence or 
information to determine compliance with the opacity limits contained 
in Regulation No. 1, or to determine whether a source has exceeded the 
exceedance allowance specified in section II.A.10. of Regulation No. 1.
    Recently, the United States District Court for the District of 
Colorado held that the language of Regulation No. 1 does not preclude 
the use of other credible evidence to show opacity violations, at least 
in citizens suits. See Sierra Club v. Tri-State Generation and 
Transmission Association, Inc., et al., Order and Memorandum of 
Decision, Civil Action No. 96 N 2368, March 8, 1999, at 19, 20. 
However, it is not clear from the Court's opinion whether the Court was 
examining the language of the Regulation No. 1 revision or the 
Federally-approved version of Regulation No. 1. The revision to 
Regulation No. 1 adds the language ``unless otherwise specified'' to 
the end of the language that specifies Method 9 for measuring opacity. 
Also, it is not clear whether the Court would reach the same conclusion 
in an enforcement action brought by EPA or the State.
    Thus, EPA invites comment on whether the language of section 
II.A.1. of Regulation No. 1 is consistent with the requirements of 40 
CFR 51.212(c), and whether failure to comport with EPA's any credible 
evidence rule should be an additional basis for disapproving the 
revisions to Regulation No. 1.
    For the reasons discussed above, EPA is proposing to disapprove 
Colorado's May 27, 1998 SIP submittal of revisions to Regulation No. 1. 
EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the Addresses section of 
this document.

III. Proposed Action

    EPA is proposing to disapprove the revision to the Colorado SIP 
pertaining to the opacity and SO2 provisions in Regulation No. 1, which 
was submitted by the Governor of Colorado on May 27, 1998. The effect 
of this action, once final, will be that the pre-existing version of 
Regulation No. 1 will remain in effect as part of the Federally 
enforceable SIP and will continue to apply to opacity and SO2 emissions 
from coal-fired electric utility boilers.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation.

[[Page 48135]]

    In addition, Executive Order 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's proposed rule would 
not create a mandate on State, local or tribal governments. The rule 
would not impose any enforceable duties on these entities. Accordingly, 
the requirements of section 1(a) of Executive Order 12875 do not apply 
to this rule.

C. Executive Order 13045

    Executive Order 13045, 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 proposed rule is not subject to Executive Order 13045 because 
it does not involve decisions intended to mitigate environmental health 
or safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' Today's proposed rule would not 
significantly or uniquely affect the communities of Indian tribal 
governments. EPA is proposing disapproval of a State rule revision, 
which will have no impact on the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

E. 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 would not have a significant impact 
on a substantial number of small entities because EPA's proposed 
disapproval of the State request under section 110 and subchapter I, 
part D of the Clean Air Act, would not affect any existing requirements 
applicable to small entities. Any pre-existing Federal requirements 
would remain in place after this disapproval. Federal disapproval of 
the State submittal would not affect State-enforceability. Moreover, 
EPA's disapproval of the submittal would not impose any new Federal 
requirements. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the disapproval action being 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. The proposed disapproval would 
not change existing requirements and would include no Federal mandate. 
If EPA were to disapprove the State's SIP submittal, pre-existing 
requirements would remain in place and State enforceability of the 
submittal would be unaffected. The action would impose no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, would result from this 
proposed action.

G. 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 proposed action. 
Today's proposed 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, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, and Sulfur oxides.

    Dated: August 19, 1999.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
[FR Doc. 99-22937 Filed 9-1-99; 8:45 am]
BILLING CODE 6560-50-P