[Federal Register Volume 64, Number 194 (Thursday, October 7, 1999)]
[Proposed Rules]
[Pages 54601-54604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26200]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0031; FRL-6453-3]


Approval and Promulgation of State Implementation Plans; 
Colorado; Revisions to Opacity and Sulfur Dioxide Requirements; 
Supplemental Notice of Proposed Rulemaking; Extension of Comment Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking; extension of the 
comment period.

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SUMMARY: On September 2, 1999, EPA proposed to disapprove a revision to 
the Colorado State Implementation Plan (SIP) regarding exemptions from 
opacity and sulfur dioxide (SO2) emission limitations at 
coal-fired electric utility boilers (64 FR 48127). Specifically, on May 
27, 1998, 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 SO2 
emissions during periods of startup, shutdown, and upset. EPA proposed 
to disapprove the SIP revision because EPA did not consider it to be 
consistent with the Clean Air Act (Act) and applicable Federal 
requirements. The comment period on the proposed disapproval closed 
October 4, 1999.
    On September 17, 1999, EPA received a request to extend the public 
comment period on the proposed disapproval. In addition, on September 
20, 1999, EPA issued an updated policy for SIP provisions that address 
excess emissions during malfunctions, startup, and shutdown. EPA has 
reviewed the State's May 27, 1998 SIP submittal in light of the 
September 20, 1999 policy, and EPA continues to believe that Colorado's 
SIP submittal is not approvable for all of the reasons outlined in the 
September 2, 1999 proposed rulemaking. However, in order to provide the 
public with an opportunity to comment on this topic, EPA is issuing 
this supplemental notice of proposed rulemaking. In addition, EPA is 
extending the public comment period on all of the issues raised in the 
September 2, 1999 proposed disapproval, in response to the request for 
extension received on September 17, 1999. Thus, the public will have 
thirty days from the publication of this document to submit comments 
both on EPA's September 2, 1999 proposed disapproval of Colorado's SIP 
submittal and this supplemental notice regarding the proposed 
disapproval.

DATES: Written comments must be received on or before November 8, 1999.

ADDRESSES: Mail written comments (in duplicate if possible) 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.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA, Region VIII, (303) 
312-6445.

SUPPLEMENTARY INFORMATION:

I. Background

    On September 2, 1999, EPA proposed to disapprove a revision to 
Colorado's SIP that was submitted by the State on May 27, 1998. (See 64 
FR 48127-48135.) 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. For further 
details on the State's regulation revision, please refer to Section I. 
of EPA's September 2, 1999 proposed rulemaking. (See 64 FR 48127-
48128.)
    The public comment period for EPA's September 2, 1999 proposed 
rulemaking ended on October 4, 1999. On September 17, 1999, EPA 
received a request to extend the public comment period.
    On September 20, 1999, the Agency issued an update to its existing 
policy regarding excess emissions during startup, shutdown, and 
malfunctions. (See September 20, 1999 Memorandum entitled ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown,'' from Steven A. Herman, Assistant 
Administrator for Enforcement and Compliance Assurance, and from Robert 
Perciasepe, Assistant Administrator for Air and Radiation, to the 
Regional Administrators.) EPA's pre-existing policy on excess emissions 
during startup, shutdown, and malfunctions was stated in two memos 
dated September 28, 1982 and February 15, 1983, 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. In EPA's September 2, 1999 
proposal to disapprove Colorado's revisions to Regulation No. 1, EPA 
identified several issues with the revisions. Among these issues, EPA 
proposed to find that the revisions were inconsistent with the Act's 
requirements that SIP emission limits be met on a continuous basis, and 
based part of its analysis on the 1982 and 1983 Bennett memos. Since 
the agency has now issued an update to these pre-existing policy 
statements, EPA is issuing this supplemental notice in order to provide 
review of Colorado's SIP submittal in light of this updated policy and 
to provide the public with the opportunity to comment on this topic.
    Since EPA received a request to extend the public comment period on 
the September 2, 1999 proposed disapproval, EPA is also providing an 
additional thirty days to comment on all of the issues raised in the 
September 2, 1999 proposed rulemaking. Thus, during this comment 
period, EPA will accept comments on any issue raised in our September 
2, 1999 proposed disapproval as well as on any issue raised in this 
supplemental notice of proposed rulemaking.

II. EPA's Review of State's Submittal in Light of EPA's September 
20, 1999 Policy Regarding Excess Emissions During Malfunctions, 
Startup, and Shutdown

    EPA's September 20, 1999 policy does not alter the Act's 
requirement that SIP emission limitations be met continuously. Instead, 
the September 20, 1999 policy clarifies the types of SIP provisions 
States may adopt to address startup, shutdown, and malfunction 
conditions and still ensure continuous compliance with emission limits 
needed to attain or maintain the national ambient air quality standards 
(NAAQS).

[[Page 54602]]

The revisions to Regulation No. 1 are not consistent with EPA's 
September 20, 1999 policy, and EPA continues to believe the revisions 
will not ensure continuous compliance with SIP emissions limits.

A. Description of EPA's September 20, 1999 Policy

    The purpose of EPA's September 20, 1999 policy was to reaffirm and 
supplement EPA's September 28, 1982 and February 15, 1983 policy 
statements regarding excess emissions during malfunctions, startup, 
shutdown, and maintenance, as well as to clarify several issues of 
interpretation that have arisen since EPA issued those policy 
statements. In the September 20, 1999 policy, EPA states that ``* * * 
because excess emissions might aggravate air quality so as to prevent 
attainment or maintenance of the ambient air quality standards, EPA 
views all excess emissions as violations of the applicable emission 
limitation.'' However, EPA recognizes that imposition of a penalty for 
sudden and unavoidable malfunctions caused by circumstances entirely 
beyond the control of an owner or operator may not be appropriate. EPA 
similarly recognizes that the imposition of a penalty for excess 
emissions that occur during infrequent and short periods of startup and 
shutdown may not be appropriate when such excess emissions could not 
have been prevented through careful planning and design and when 
bypassing of control equipment was unavoidable to prevent loss of life, 
personal injury, or severe property damage. Accordingly, a State or EPA 
can exercise its ``enforcement discretion'' to refrain from taking an 
enforcement action in these circumstances.
    The September 20, 1999 policy clarifies that a State may go beyond 
this ``enforcement discretion approach'' and include in its SIP a 
provision that would, in the context of an enforcement action for 
excess emissions, excuse a source from penalties (but not from 
injunctive relief) if the source can demonstrate that it meets certain 
objective criteria (i.e., an ``affirmative defense''). The September 
20, 1999 policy provides that States can adopt SIP rules that provide 
for such an affirmative defense to actions for penalties brought for 
excess emissions that arise during certain malfunction, startup, and 
shutdown episodes, if the SIP rules and SIP submittal meet certain 
criteria.
    The September 20, 1999 policy discusses an additional means to 
address excess emissions during periods of startup and shutdown. The 
policy states that because, in general, excess emissions that occur 
during these periods are reasonably foreseeable, they should not be 
excused. However, for some source categories, even the best available 
emissions control systems might not be consistently effective during 
startup or shutdown periods. The September 20, 1999 policy provides 
that, in certain situations, these technological limitations may be 
addressed in the underlying standards themselves through narrowly-
tailored SIP revisions that meet the requirements detailed in the 
policy and that take into account the potential impacts on ambient air 
quality caused by the inclusion of these allowances.

B. Review of Colorado's May 27, 1998 SIP Submittal in Light of EPA's 
September 20, 1999 Policy

1. Affirmative Defense Provisions for Malfunctions, Startup, and 
Shutdown
    As discussed above, the September 20, 1999 policy provides that 
States can adopt SIP provisions that create an affirmative defense to 
claims for penalties for excess emissions caused by malfunctions or 
during periods of startup or shutdown, if the SIP revision and 
submittal adequately address the criteria detailed in the September 20, 
1999 policy. Such an affirmative defense must not be available for 
claims for injunctive relief and must not apply in the case where a 
single source or small group of sources has the potential to cause an 
exceedance of the NAAQS or prevention of significant deterioration 
(PSD) increment.
    Colorado's revisions to Regulation No. 1 do not meet EPA's 
requirements for an acceptable affirmative defense provision. In fact, 
the revisions do not constitute an affirmative defense provision at 
all; they do not merely provide for a source to raise a defense to 
penalties in an enforcement proceeding for violations of an emission 
standard. Instead, Colorado's revisions to Regulation No. 1 
automatically exempt a source from meeting the otherwise applicable 
opacity and SO2 emission limitations during startup, 
shutdown, and upset. Thus, EPA does not believe it can approve the 
revisions as an affirmative defense provision.1 EPA believes 
an affirmative defense provision must be consistent with the criteria 
contained in the September 20, 1999 policy to ensure continuous 
compliance with the requirements of the Act.
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    \1\ Even if the revisions met the other criteria for an 
acceptable affirmative defense provision, EPA does not have adequate 
information to determine whether a single coal-fired electric 
utility boiler or a small group of boilers would have the potential 
to cause an exceedance of the NAAQS or PSD increments, which would 
render an affirmative defense provision inappropriate.
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2. Source Category-Specific Rules for Startup and Shutdown
    As discussed above, the September 20, 1999 policy states that, for 
some source categories, given the types of control technologies 
available, there may exist short periods of emissions during startup 
and shutdown when, despite best efforts regarding planning, design, and 
operating procedures, the otherwise applicable emission limitation 
cannot be met. The September 20, 1999 policy further provides that, 
except in the case where a single source or small group of sources has 
the potential to cause an exceedance of the NAAQS or PSD increments, it 
may be appropriate, in consultation with EPA, to create narrowly-
tailored SIP revisions that take these technological limitations into 
account and state that the otherwise applicable emissions limitations 
do not apply during narrowly defined startup and shutdown periods. To 
be approved, these revisions should meet the following requirements:
    a. The SIP revision must be limited to specific, narrowly-defined 
source categories using specific control strategies;
    b. There must be a demonstration that the use of the control 
strategy for this source category must be technically infeasible during 
startup or shutdown periods;
    c. The frequency and duration of operation in startup or shutdown 
mode must be minimized to the maximum extent practicable;
    d. As part of its justification of the SIP revision, the state 
should analyze the potential worst-case emissions that could occur 
during startup and shutdown, in order to show compliance with the 
applicable requirements of the Act and EPA regulations;
    e. All possible steps must be taken to minimize the impact of 
emissions during startup and shutdown on ambient air quality;
    f. At all times, the facility must be operated in a manner 
consistent with good practice for minimizing emissions, and the source 
must have used best efforts regarding planning, design, and operating 
procedures to meet the otherwise applicable emission limitation; and
    g. The owner or operator's actions during startup and shutdown 
periods must be documented by properly signed, contemporaneous 
operating logs, or other relevant evidence.

[[Page 54603]]

    As discussed above and in the September 2, 1999 proposed 
disapproval, Colorado's revisions to Regulation No. 1 provide 
exemptions from the existing opacity and SO2 emission 
limitations for coal-fired electric utility boilers during periods of 
startup and shutdown, as well as upset. EPA does not believe that 
Colorado's revisions to Regulation No. 1 regarding startup, shutdown, 
and upset comport with the requirements for approval of such provisions 
as discussed in EPA's September 20, 1999 policy. First, EPA's September 
20, 1999 policy, as discussed above, allows SIPs to provide for 
exemptions from emission limitations for periods of startup and 
shutdown only. Colorado's revisions to Regulation No. 1 also exempt 
coal-fired electric utility boilers from meeting existing opacity and 
SO2 emission limitations during periods of upset.
    Second, the exemption from the SO2 limits does not 
appear to specify coal-fired electric utility boilers using a 
particular SO2 control strategy. Thus, at least as to 
SO2, it does not appear that the revisions are consistent 
with the policy's provision that a rule must be limited to narrowly-
defined source categories using specific control strategies.
    Third, the State has not demonstrated that use of the applicable 
control strategies for opacity and SO2 for coal-fired 
electric utility boilers is technologically infeasible during startup 
and shutdown.
    Further, as discussed in EPA's September 2, 1999 proposed 
disapproval, EPA does not believe the State has analyzed the potential 
worst case emissions that could occur from these facilities during 
startup and shutdown and the corresponding impact on ambient air 
quality. The State did not adequately analyze potential impacts on the 
NAAQS, nor did the State analyze potential impacts on the PSD 
increments. (See sections II.B.2. and 3. of the September 2, 1999 
proposed disapproval, 64 FR 48130-48131.)
    EPA also does not have adequate information to determine whether a 
single coal-fired electric utility boiler or a small group of boilers 
would have the potential to cause an exceedance of the NAAQS or PSD 
increment, which would preclude EPA from approving a source category-
specific exemption under the September 20, 1999 policy. The SIP 
revision does not adequately address the other requirements of the 
September 20, 1999 policy applicable to source category exemptions for 
excess emissions that occur during startup and shutdown. EPA believes 
source category exemptions for startup and shutdown events must be 
narrowly constrained, as described in EPA's September 20, 1999 policy, 
to ensure the Act's requirements are met and that public health and the 
environment are protected.
    In summary, the issuance of the September 20, 1999 policy has not 
changed EPA's preliminary conclusions, expressed in the September 2, 
1999 proposed disapproval, that the revisions to Regulation No. 1 are 
not consistent with the Act's requirements related to continuous 
compliance with SIP limits. Because the requirements for continuous 
compliance have not been met, and for the other reasons expressed in 
EPA's September 2, 1999 notice of proposed disapproval, EPA continues 
to propose disapproval of the revisions to Colorado Regulation No. 1. 
EPA also continues to invite comment on whether the SIP revision 
conflicts with EPA's any credible evidence rule (see Section II.B.6. of 
the September 2, 1999 proposed disapproval, 64 FR 48134).
    EPA is soliciting public comment on the issues discussed in this 
document or on other relevant matters. EPA is also extending the public 
comment period on the issues raised in the September 2, 1999 proposed 
disapproval. 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 such that the comments 
will be received by the date listed in the Dates section of this 
document.

III. Proposed Action

    EPA continues to propose disapproval of 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.

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 Orders on Federalism

    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.
    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 
proposed 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 proposed rule.
    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),) 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612, (52 FR 41685 (October 30, 1987),) on federalism 
still applies. This proposed rule will not have a substantial direct 
effect on 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 
12612. The proposed rule would affect only one State, and would not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act.

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

[[Page 54604]]

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, Sulfur oxides.

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

    Dated: September 30, 1999.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
[FR Doc. 99-26200 Filed 10-6-99; 8:45 am]
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