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

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.

-----------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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]

BILLING CODE 6560-50-P