[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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