Air Plan Approval; Revisions to Colorado Common Provisions Regulation

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R08-OAR-2024-0207; FRL-12341-01-R8]</DEPDOC> <SUBJECT>Air Plan Approval; Revisions to Colorado Common Provisions Regulation</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is proposing to approve revisions to the Common Provisions Regulation of the Colorado State Implementation Plan (SIP). These revisions were submitted by the State of Colorado in response to the EPA's June 12, 2015, Findings of Substantial Inadequacy and “SIP call” for certain provisions in the SIP related to affirmative defenses applicable to excess emissions during startup, shutdown, and malfunction (SSM) events. The EPA is proposing approval of these SIP revisions because the Agency has determined that they are in accordance with the requirements for SIP provisions under the Clean Air Act (CAA or the Act). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written comments must be received on or before November 29, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R08-OAR-2024-0207, to the Federal Rulemaking Portal: <E T="03">https://www.regulations.gov.</E> Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">https://www.regulations.gov.</E> The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( <E T="03">i.e.,</E> on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit <E T="03">https://www2.epa.gov/dockets/commenting-epa-dockets.</E> <E T="03">Docket:</E> All documents in the docket are listed in the <E T="03">https://www.regulations.gov</E> index. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 electronically in <E T="03">https://www.regulations.gov.</E> Please email or call the person listed in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section if you need to make alternative arrangements for access to the docket. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Adam Clark, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-AQ, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number: (303) 312-7104, email address: <E T="03">clark.adam@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. <HD SOURCE="HD1">I. Background</HD> Prior to the EPA's 2015 SSM SIP Action, <SU>1</SU> <FTREF/> which is discussed later in this section, the Agency had a longstanding interpretation of the CAA with respect to the treatment of excess emissions during periods of SSM in SIPs. This statutory interpretation had been expressed, reiterated, and elaborated upon in a series of guidance documents issued in 1982, 1983, and 1999 described below. <FTNT> <SU>1</SU>  “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction.” 80 FR 33840, June 12, 2015. </FTNT> In the 1982 SSM Guidance, the EPA recommended the exercise of enforcement discretion to address periods of excess emissions occurring during SSM events. <SU>2</SU> <FTREF/> Subsequently, in the 1983 SSM Guidance, the EPA expanded on this approach by recommending that a State could elect to adopt SIP provisions providing parameters for the exercise of enforcement discretion by the State's personnel. <SU>3</SU> <FTREF/> In our 1999 SSM Guidance, the EPA interpreted that States could elect to create “affirmative defense” provisions applicable to SSM events in their SIPs. <SU>4</SU> <FTREF/> The EPA has defined the term <E T="03">affirmative defense provision</E> as a State law provision in a SIP that specifies particular criteria or preconditions that, if met, would purport to preclude a court from imposing monetary penalties or other forms of relief for violations of SIP requirements in accordance with CAA section 113 or CAA section 304. <SU>5</SU> <FTREF/> Also in the 1999 Guidance, the EPA established parameters that should be included as part of such an affirmative defense in order to ensure that it would be available only in certain narrow circumstances. <SU>6</SU> <FTREF/> Both of the provisions being addressed in today's action, Colorado Common Provisions Regulation  <SU>7</SU> <FTREF/> sections II.E. (applicable to qualifying sources during malfunctions), and II.J. (applicable to qualifying sources during periods of startup and shutdown) were approved by the EPA based on our finding that they were consistent with the recommendations of the 1999 Guidance. <SU>8</SU> <FTREF/> <FTNT> <SU>2</SU>  Memorandum to Regional Administrators, Region I-X; From: Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation; Subject: Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions. September 28, 1982. </FTNT> <FTNT> <SU>3</SU>  Memorandum to Regional Administrators, Regions I-X; From: Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation; Subject: Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions. February 15, 1983. </FTNT> <FTNT> <SU>4</SU>  Memorandum to Regional Administrators, Regions I-X; From: Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Bob Perciasepe, Assistant Administrator for Air and Radiation; Subject: Policy on Excess Emissions During Malfunctions, Startup, and Shutdown. September 20, 1999. </FTNT> <FTNT> <SU>5</SU>  79 FR 55923 (September 17, 2014). </FTNT> <FTNT> <SU>6</SU>  1999 SSM Guidance. </FTNT> <FTNT> <SU>7</SU>  The Common Provisions Regulation is codified at 5 Colorado Code of Regulations (CCR) 1001-2 of the Colorado SIP. </FTNT> <FTNT> <SU>8</SU>  71 FR 8958 (February 22, 2006) and 73 FR 45880 (August 7, 2008). </FTNT> On February 22, 2013, the EPA proposed to take action on a petition for rulemaking that the Sierra Club filed with the EPA Administrator on June 30, 2011 (78 FR 12460). In that action, the EPA proposed to grant the Petitioner's claim in part. The EPA proposed to revise its SSM policy with respect to affirmative defenses for violations due to excess emissions that occur during startup and shutdown, thus rescinding our prior interpretation that the SSM policy allows for those types of affirmative defenses in SIPs. This was a change from the EPA's interpretation of the CAA in the 1999 SSM Guidance, in which the EPA had interpreted that States could elect to create such affirmative defense provisions for startup and shutdown events, so long as the provisions were narrowly drawn and consistent with the established criteria to assure that they met CAA requirements. The EPA's evaluation of the petition and the statutory basis for affirmative defense provisions initiated a review of the appropriateness of affirmative defense provisions applicable during startup and shutdown, which are ordinary modes of operation that are generally predictable and within the control of the source. As explained in more detail in the February 22, 2013, proposal document, the EPA's evaluation of the Sierra Club Petition in light of then-recent case law  <SU>9</SU> <FTREF/> caused the EPA to alter its view on the appropriateness of affirmative defenses applicable to planned events such as startup and shutdown. Specifically, the EPA stated that “because these events are modes of normal operation, the EPA believes that sources should be expected to comply with applicable emission limitations during such events.”  <SU>10</SU> <FTREF/> <FTNT> <SU>9</SU>  Court decisions confirmed that this requirement for continuous compliance prohibits exemptions for excess emissions during SSM events. <E T="03">See, e.g., Sierra Club</E> v. <E T="03">EPA,</E> 551 F.3d 1019, 1021 (D.C. Cir. 2008); <E T="03">US Magnesium, LLC</E> v. <E T="03">EPA,</E> 690 F.3d 1157, 1170 (10th Cir. 2012). </FTNT> <FTNT> <SU>10</SU>  78 FR 12480. </FTNT> The EPA distinguished between affirmative defense provisions for startup and shutdown and those for malfunctions, stating “the distinction that makes affirmative defenses appropriate for malfunctions is that by definition those events are unforeseen and could not have been avoided by the owner or operator of the source, and the owner or operator of the source will have taken steps to prevent the violation and to minimize the effects of the violation after it occurs.”  <SU>11</SU> <FTREF/> Because of this distinction, in the February 22, 2013 proposal, the EPA proposed to grant the Sierra Club's petition with respec ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 27k characters. 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