[Federal Register Volume 73, Number 153 (Thursday, August 7, 2008)]
[Rules and Regulations]
[Pages 45879-45882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16268]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-1030; FRL-8573-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Colorado; Affirmative Defense Provisions for Malfunctions; Common 
Provisions Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a State 
Implementation Plan (SIP) revision submitted by the State of Colorado 
on August 1, 2007. This revision establishes affirmative defense 
provisions for source owners and operators for excess emissions during 
periods of malfunction. The affirmative defense provisions are 
contained in the State of Colorado's Common Provisions regulation. The 
intended effect of this action is to approve only those portions of 
Colorado's Common Provisions regulation submitted on August 1, 2007 
that relate to the affirmative defense for malfunctions. This action is 
being taken under section 110 of the Clean Air Act.

DATES: This rule is effective on October 6, 2008, without further 
notice, unless EPA receives adverse comment by September 8, 2008. If 
adverse comment is received, EPA will publish a timely withdrawal of 
this direct final rule in the Federal Register informing the public 
that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-1030, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected] and [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT section if you are faxing 
comments).
     Mail: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-A, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-A, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-1030. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional instructions on submitting 
comments, go to section I. General Information of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. 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: Mark Komp, Air Program, 1595 Wynkoop 
Street, Mailcode: 8P-A, Denver, Colorado 80202-1129, (303) 312-6022, 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background of State Submittal
III. EPA Analysis of State Submittal
IV. Consideration of Section 110 (l) of the CAA
V. Final Action
VI. Statutory and Executive Order Reviews

Definitions

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

I. General Information

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

    1. Submitting CBI. Do not submit this information to EPA through 
http://regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked

[[Page 45880]]

will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background of State Submittal

    On August 1 2007, the State of Colorado submitted a formal revision 
to its State Implementation Plan (SIP) that added affirmative defense 
provisions for excess emissions during periods of malfunctions and 
removed existing provisions regarding upsets. These affirmative defense 
provisions are contained in the Common Provisions Regulation at 
sections I.G. and II.E. The Colorado Air Quality Control Commission 
(AQCC) adopted these revisions on December 15, 2006.
    Previously, EPA, in a letter dated June 13, 2001 from Richard L. 
Long, Director, EPA Region 8 Air and Radiation Program, to Margie 
Perkins, Director, Colorado's Air Pollution Control Division, 
identified concerns with Colorado's existing upset rule in the State's 
Common Provisions Regulation. We believed that Colorado's existing 
upset rule did not conform to the Clean Air Act requirements to protect 
National Ambient Air Quality Standards (NAAQS) and Prevention of 
Significant Deterioration (PSD) increments and should be revised. 
Specifically, the existing upset rule allowed an exemption from 
enforcement for excess emissions that occurred during certain defined 
``upset conditions.'' EPA's interpretation was and continues to be that 
the Clean Air Act requires that all periods of excess emissions be 
treated as violations and not exempted from enforcement.
    During 2002, the AQCC considered EPA's position but ultimately 
rejected EPA's request for revision and suggested language to the 
Common Provisions Regulation to address our findings. On December 22, 
2005 we received a petition to issue a SIP call to require Colorado to 
revise aspects of its Common Provisions regulation related to upset 
conditions. The petitioners were Rocky Mountain Clean Air Action, 
Center for Native Ecosystems, and Jeremy Nichols. The petition alleged 
that Colorado's exemption for excess emissions during upsets was 
inconsistent with the Clean Air Act. The petition referred to our 
previous statement that Colorado's upset rule did not conform to the 
Clean Air Act.
    The State indicated a willingness to renew efforts to revise the 
upset provisions in the Common Provisions regulation, and related 
provisions in other regulations. The State's December 15, 2006 
Statement of Basis, Specific Statutory Authority and Purpose for 
Revisions to the Common Provisions (that was later submitted on August 
1, 2007) indicates that revisions were made regarding upset conditions 
and malfunctions to ``clarify the process by which a source must 
identify an upset or malfunction.'' The State changed the term 
``upset'' to ``malfunction'' for consistency with EPA policy. In 
addition, provisions within the Common Provisions were revised to 
clarify that an affirmative defense is available to claims of violation 
of the AQCC's regulations for civil penalties in enforcement actions 
regarding excess emissions arising from malfunctions.

III. EPA Analysis of State Submittal

    EPA's interpretations of the Act regarding excess emissions during 
malfunctions 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 NAAQS or jeopardize the 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 provisions in their 
SIPs 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 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, 1992, 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 
malfunctions and find that 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 I.G and II.E, are consistent with the 
provisions for malfunctions we suggested in our September 20, 1999 
memorandum. More specifically, section II.E of the Common Provisions 
Regulation provides owners and operators with an affirmative defense, 
to civil penalties only, for excess emissions during periods of 
malfunction. To establish the affirmative defense in an enforcement 
action and to be relieved of a civil penalty, the owner or operator of 
the facility must meet the notification requirements in section II.E.2 
of the Common Provisions Regulation and prove by a preponderance of 
evidence the following:
    1. The excess emissions were caused by a sudden, unavoidable 
breakdown of equipment, or a sudden, unavoidable failure of a process 
to operate in the normal or usual manner, beyond the reasonable control 
of the owner or operator;

[[Page 45881]]

    2. The excess emissions did not stem from any activity or event 
that could have reasonably been foreseen and avoided, or planned for, 
and could not have been avoided by better operation and maintenance 
practices;
    3. Repairs were made as expeditiously as possible when the 
applicable emission limitations were being exceeded.
    4. The amount and duration of the excess emissions (including any 
bypass) were minimized to the maximum extent practicable during periods 
of such emissions;
    5. All reasonably possible steps were taken to minimize the impact 
of the excess emissions on ambient air quality;
    6. All emissions monitoring systems were kept in operation (if at 
all possible);
    7. The owner or operator's actions during the period of excess 
emissions were documented by properly signed, contemporaneous operating 
logs or other relevant evidence;
    8. The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance;
    9. At all times, the facility was operated in a manner consistent 
with good practices for minimizing emissions; and
    10. During the period of excess emissions, there were no 
exceedances of the relevant ambient air quality standards that could be 
attributed to the emitting source.
    Per section II.E.3 of the Common Provisions Regulation, the 
affirmative defense is not available to claims for injunctive relief. 
Also, per section II.E.4 of the Common Provisions Regulation, the 
affirmative defense provision does not apply to failures to meet 
federally promulgated performance standards or emission limits, such as 
New Source Performance Standards or National Emission Standards for 
Hazardous Air Pollutants. It also does not apply to SIP limits or 
permit limits that have been set taking into account potential 
emissions during malfunctions, such as certain limits with 30-day or 
longer averaging times, limits that indicate that they apply during 
malfunctions, or limits that indicate that they apply at all times 
without exception.
    Section II.E.2 of the Common Provisions Regulation provides that an 
owner or operator of a facility experiencing excess emissions during a 
malfunction must notify the Colorado Air Pollution Control Division 
verbally as soon as possible, but no later than noon of the Division's 
next working day, and in writing by the end of the source's next 
reporting period. The written notification must address the elements of 
the affirmative defense.
    Section I.G of the Common Provisions Regulation defines 
``malfunction'' as any sudden and unavoidable failure of air pollution 
control equipment or process equipment or unintended failure of a 
process to operate in a normal or usual manner and indicates that 
failures that are primarily caused by poor maintenance, careless 
operation, or any other preventable upset condition or preventable 
equipment breakdown shall not be considered malfunctions.
    We interpret the affirmative defense as applying in an enforcement 
proceeding, and the merits of the defense in a particular case would be 
determined by an independent judicial or administrative tribunal. 
Accordingly, the State's decision in a particular case that an 
enforcement action was not warranted, or that an owner or operator had 
proved the elements of the affirmative defense, would not bar an EPA or 
citizen enforcement action and would not bind a judicial or 
administrative tribunal. The rule that we are approving preserves the 
right of the State, EPA, and citizens to independently exercise 
enforcement discretion.
    The provisions of sections I.G and II.E 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.\3\
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    \3\ It is our understanding that the State intended to include 
with this submittal a minor revision to AQCC Regulation No. 1, 
section IV.G.5, to conform its provisions to the affirmative defense 
provisions in the Common Provisions Regulation. That provision 
reads, ``Compliance with the reporting requirements of this Section 
IV.G. shall not relieve the owner or operator of the reporting 
requirements of Section II.E of the Common Provisions Regulation 
concerning upset conditions and breakdowns.'' The State intended to 
change the words ``upset conditions and breakdowns'' to 
``malfunctions.'' We have been told that this revision was 
inadvertently overlooked, but that it will be made this year. This 
omission does not affect the approvability of sections I.G and II.E 
of the Common Provisions Regulation. And, even though we have not 
received and approved the correction to section IV.G.5 of Regulation 
No. 1, we nonetheless believe it is reasonable to interpret section 
IV.G.5 of Regulation No.1 as cross-referencing the reporting 
requirements for malfunctions under section II.E of the Common 
Provisions Regulation, which we are approving today.
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IV. Consideration of Section 110(l) of the CAA

    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 
toward attainment of the NAAQS or any other applicable requirement of 
the Act. The Colorado SIP revision that is the subject of this document 
does not interfere with attainment of the NAAQS or any other applicable 
requirement of the Act. The August 1, 2007 submittal removes a 
provision from the Colorado SIP that provided an outright exemption 
from emission limits during upsets and replaces it with a provision 
that establishes an affirmative defense, to civil penalties only, for 
excess emissions during malfunctions. The affirmative defense does not 
apply to claims for injunctive relief, and the elements of the 
affirmative defense are rigorous and well-defined. The need to meet 
these elements will provide sources with significant incentives to 
minimize their emissions, comply with their emission limits, and 
protect the NAAQS and increments. Therefore, section 110(l) 
requirements are satisfied.

V. Final Action

    For the reasons expressed above, we are approving sections I.G and 
II.E of the Common Provisions Regulation submitted on August 1, 2007. 
EPA is publishing this rule without prior proposal because the Agency 
views this as a noncontroversial amendment and anticipates no adverse 
comments. However, in the ``Proposed Rules'' section of today's Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to approve the SIP revision if adverse comments 
are filed. This rule will be effective October 6, 2008 without further 
notice unless the Agency receives adverse comments by September 8, 
2008. If the EPA receives adverse comments, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

VI. Statutory and Executive Order Review

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable

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Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Accordingly, 
this action merely approves state law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 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 action 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. 
804(2).
    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 October 6, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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).)

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: May 12, 2008.
Carol Rushin,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended 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)(113) to read as 
follows:


Sec.  52.320  Identification of plan.

    (c) * * *
    (113) On August 1, 2007, the State of Colorado submitted revisions 
to Colorado's Common Provisions Regulation, 5 CCR 1001-2, that made 
changes and additions to Section I, ``Definitions, Statement of Intent, 
and General Provisions Applicable to All Emission Control Regulations 
Adopted by the Colorado Air Quality Control Commission,'' and Section 
II, ``General.''
    (i) Incorporation by reference.
    (A) Common Provisions Regulation, 5 CCR 1001-2, Section I.G, 
``Definitions,'' effective on March 4, 2007.
    (1) The submittal revises Section I.G by removing the definition of 
``upset conditions'' and replacing it with the definition of 
``malfunction.''
    (B) Common Provisions Regulation, 5 CCR 1001-2, Section II.E, 
``Affirmative Defense Provision for Excess Emissions During 
Malfunctions,'' effective on March 4, 2007.
    (2) The submittal revises Section II.E by removing language which 
provided an exemption for excess emissions during upset conditions and 
breakdowns and replacing it with an affirmative defense provision for 
source owners and operators for excess emissions during malfunctions.

[FR Doc. E8-16268 Filed 8-6-08; 8:45 am]
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