[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 8958-8962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1567]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2005-CO-0004; FRL-8029-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is partially approving and partially disapproving a State 
Implementation Plan (SIP) revision submitted by the State of Colorado. 
The revision establishes affirmative defense provisions for source 
owners and operators for excess emissions during periods of startup and 
shutdown. The affirmative defense provisions are contained in the State 
of Colorado's Common Provisions regulation. The intended effect of this 
action is to approve those portions of the rule that are approvable and 
to disapprove those portions of the rule that are inconsistent with the 
Clean Air Act. This action is being taken under section 110 of the 
Clean Air Act. In addition, EPA is announcing that it no longer 
considers the State of Colorado's May 27, 1998 submittal of revisions 
to Regulation No. 1 to be an active SIP submittal. Those revisions, 
which we proposed to disapprove on September 2, 1999 and October 7, 
1999, would have provided

[[Page 8959]]

exemptions from existing limitations on opacity and sulfur dioxide 
(SO2) emissions for coal-fired electric utility boilers 
during periods of startup, shutdown, and upset. Since our proposed 
disapproval, the State of Colorado has removed or replaced the 
provisions in Regulation No. 1 that we proposed to disapprove, and has 
instead pursued adoption of the affirmative defense provisions in the 
State of Colorado's Common Provisions regulation that we are approving 
today.

DATES: This final rule is effective March 24, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2005-CO-0004. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Air and Radiation Program, Environmental Protection Agency (EPA), 
Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. EPA 
requests that if at all possible, you contact the individual listed in 
the FOR FURTHER INFORMATION CONTACT section to view the hard copy of 
the docket. You may view the hard copy of the docket Monday through 
Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, Air and Radiation 
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 
8, 999 18th Street, Suite 200, Denver, Colorado 80202-2466, (303) 312-
6437, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background of State Submittal
II. EPA Analysis of State Submittal
III. Final Action
IV. Statutory and Executive Order Reviews

Definitions

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

I. Background of State Submittal

    On July 31, 2002, the State of Colorado submitted a SIP revision 
that added affirmative defense provisions for excess emissions during 
startup and shutdown. These affirmative defense provisions are 
contained in the Common Provisions Regulation at section II.J and were 
adopted by the Colorado Air Quality Control Commission (AQCC) on August 
16, 2001.
    On December 7, 2005 (70 FR 72741), we proposed to approve sections 
II.J.1 through II.J.4 of the Common Provisions regulation and proposed 
to disapprove section II.J.5 of the Common Provisions regulation. No 
comments were received on the December 7, 2005 proposal. See the 
December 7, 2005 notice of proposed rulemaking for additional 
information.
    On December 7, 2005 (70 FR 72741) we also announced that we no 
longer consider Colorado's May 27, 1998 submittal of revisions to 
Regulation No. 1 to be an active submittal, and that we do not intend 
to finalize our proposed disapprovals. The May 1998 Regulation
    No. 1 submittal would have provided exemptions from the existing 
limitations on opacity and sulfur dioxide (SO2) emissions 
for coal-fired electric utility boilers during periods of startup, 
shutdown, and upset. We proposed to disapprove the May 1998 Regulation 
No. 1 submittal on September 2, 1999 (64 FR 48127) and October 7, 1999 
(64 FR 54601).

II. EPA Analysis of State Submittal

    EPA's interpretations of the Act regarding excess emissions during 
malfunctions, startup and shutdown are contained in, among other 
documents, a September 20, 1999 memorandum titled ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown,'' from Steven A. Herman, Assistant 
Administrator for Enforcement and Compliance Assurance, and Robert 
Perciasepe, Assistant Administrator for Air and Radiation.\1\ That 
memorandum indicates that because excess emissions might aggravate air 
quality so as to prevent attainment and maintenance of the national 
ambient air quality standards (NAAQS) or jeopardize the prevention of 
significant deterioration (PSD) increments, all periods of excess 
emissions are considered violations of the applicable emission 
limitation. However, the memorandum recognizes that in certain 
circumstances states and EPA have enforcement discretion to refrain 
from taking enforcement action for excess emissions. In addition, the 
memorandum also indicates that states can include in their SIPs 
provisions that would, in the context of an enforcement action for 
excess emissions, excuse a source from penalties (but not injunctive 
relief) if the source can demonstrate that it meets certain objective 
criteria (an ``affirmative defense'').\2\ Finally, the memorandum 
indicates that EPA does not intend to approve SIP revisions that would 
recognize a state director's decision to bar EPA's or citizens' ability 
to enforce applicable requirements.
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    \1\ Earlier expressions of EPA's interpretations regarding 
excess emissions during malfunctions, startup, and shutdown are 
contained in two memoranda, one dated September 28, 1982, the other 
February 15, 1983, both titled ``Policy on Excess Emissions During 
Startup, Shutdown, Maintenance, and Malfunctions'' and signed by 
Kathleen M. Bennett. However, the September 1999 memorandum directly 
addresses the creation of affirmative defenses in SIPs and, 
therefore, is most relevant to this action.
    \2\ EPA's September 20, 1999 memorandum indicates that the term 
affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, 
regarding which the defendant has the burden of proof, and the 
merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding. See footnote 4 of the 
attachment to the memorandum.
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    We have evaluated Colorado's affirmative defense provisions for 
startup and shutdown and find that, except for one paragraph, they are 
consistent with our interpretations under the Act regarding the types 
of affirmative defense provisions we can approve in SIPs. The 
Affirmative Defense provisions in the Common Provisions Regulation, 
sections II.J.1 through II.J.4 are consistent with the provisions for 
startup and shutdown we suggested in our September 20, 1999 memorandum. 
Thus, these provisions will provide sources with appropriate incentives 
to comply with their emissions limitations and help ensure protection 
of the NAAQS and increments and compliance with other Act requirements.
    However, we cannot approve the provisions in section II.J.5 of the 
Common Provisions regulation. Section II.J.5 reads as follows:

    II.J.5. Affirmative Defense Determination: In making any 
determination whether a source established an affirmative defense, 
the Division shall consider the information within the notification 
required in paragraph 2 of this section and any other information 
the division deems necessary, which may

[[Page 8960]]

include, but is not limited to, physical inspection of the facility 
and review of documentation pertaining to the maintenance and 
operation of process and air pollution control equipment.

Under this language, the Division could make a determination outside 
the context of an enforcement action, or at any time during an 
enforcement action, that a source has established the affirmative 
defense. If we were to approve section II.J.5, a court might conclude 
that we had ceded the authority to the Division to make this 
determination, not just for the State, but on behalf of EPA and 
citizens as well. Consequently, a court might also view the Division's 
determination that a source had established the affirmative defense as 
barring an EPA or citizen action for penalties.
    As we stated in the September 1999 memoranda, we do not intend to 
approve SIP language that would allow a state's decision to constrain 
our or citizens' enforcement discretion. To do so would be inconsistent 
with the regulatory scheme established in Title I of the Act, which 
allows independent EPA and citizen enforcement of violations, 
regardless of a state's decisions regarding those violations and any 
potential defenses.\3\
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    \3\ Section II.J.5 may be confusing the concept of affirmative 
defense with the concept of enforcement discretion. By definition, 
an affirmative defense is a defense that may be raised in the 
context of an enforcement proceeding before an independent trier of 
fact. Before pursuing an enforcement action, the state might 
evaluate the likelihood that an owner/operator could prove the 
elements of the affirmative defense, but this would go to the 
state's exercise of enforcement discretion. While the state might 
decide not to pursue an enforcement action based on such an 
evaluation, if EPA or citizens were to pursue enforcement action, an 
independent trier of fact might reach a conclusion different from 
the state's, i.e., that the owner/operator had not proved the 
elements of the affirmative defense.
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    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the NAAQS or any other applicable requirements of 
the Act. The Colorado SIP revision that is the subject of this document 
does not interfere with the maintenance of the NAAQS or any other 
applicable requirement of the Act. The July 31, 2002 submittal merely 
adopts affirmative defense provisions for source owners and operators 
for excess emissions during periods of startup and shutdown. These 
provisions provide, that in the context of an enforcement action for 
excess emissions, a source can be excused from penalties (but not 
injunctive relief) if the source can demonstrate that it meets certain 
objective criteria. Therefore, section 110(l) requirements are 
satisfied.

III. Final Action

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

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

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

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because SIP approvals and disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve or disapprove requirements that 
the State is already imposing. Therefore, because the Federal SIP 
approval/disapproval does not create any new requirements, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under 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 this final action does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action partially approves and 
partially disapproves pre-existing requirements under State or local 
law, and imposes no new requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, Federalism (64 FR 43255, August 10, 1999), 
revokes and replaces Executive Orders 12612 (Federalism) and 12875 
(Enhancing the Intergovernmental Partnership). Executive Order 13132 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' is defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, EPA may 
not issue a regulation that has federalism implications, that imposes 
substantial direct compliance costs, and that is not required by 
statute, unless the Federal

[[Page 8961]]

government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
because it merely partially approves and partially disapproves state 
rules implementing a federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. Thus, the requirements of section 6 
of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

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

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

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

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

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

I. National Technology Transfer and Advancement Act

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

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective March 24, 2006.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 24, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2) of the Clean Air 
Act.)

List of Subjects in 40 CFR Part 52

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

    Dated: January 30, 2006.
Robert E. Roberts,
Regional Administrator, Region 8.

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

PART 52--[AMENDED]

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

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

Subpart G--Colorado

0
2. Section 52.320 is amended by adding paragraph (c)(109) to read as 
follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (109) A revision to the State Implementation Plan was submitted by 
the State of Colorado on July 31, 2002. The submittal revises the 
Common Provisions regulation by adding affirmative defense provisions 
for source owners and operators for excess emissions during periods of 
startup and shutdown.
    (i) Incorporation by reference.
    (A) Common Provisions Regulation, 5 CCR 1001-2, sections II.J.1 
through II.J.4, adopted August 16, 2001, effective September 30, 2001.

0
3. Section 52.329 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.329  Rules and regulations.

* * * * *
    (c) A revision to the State Implementation Plan was submitted by 
the State of Colorado on July 31, 2002. The submittal revises the 
Common Provisions regulation by adding

[[Page 8962]]

affirmative defense provisions for source owners and operators for 
excess emissions during periods of startup and shutdown. The 
affirmative defense provisions are contained in section II.J. As 
indicated in 40 CFR 52.320(c)(109), EPA approved the affirmative 
defense provisions contained in sections II.J.1 through II.J.4 of the 
Common Provisions regulation, adopted August 16, 2001 and effective 
September 30, 2001. Section II.J.5 of the Common Provisions regulation, 
adopted August 16, 2001 and effective September 30, 2001, is 
disapproved.

[FR Doc. 06-1567 Filed 2-21-06; 8:45 am]
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