5 Colo. Code Regs. § 1001-2-V
Rationale and Justification for Revisions to the Common Provisions Regulation
The principal reason for revising the Common Provisions Regulation is the need for the addition of certain definitions required by the revisions of the other regulations. Opportunity was taken at the same time to revise some definitions in an effort to add clarity. Few changes were made in I., even though some questions were raised regarding I.D. - Intent.
Consideration was given to the suggestions of the Division and the Parties to the hearing with respect to the definitions. In some instances, the original definitions were retained; in others, they were modified. For example:
The notification period prior to performance testing was shortened to 30 days with the provision the Division could waive this interval if it so decided. The CF&I request for exemption of sources emitting less than 100 tons per year from performance testing was rejected in that no means would exist to detect violations of the emission standard without such testing.
Rationale and Justification Addition to Common Provisions Conflict of Interest
The purpose of this regulatory addition is to set forth standards of conduct as it relates to conflict of interest in the course of operation of both the Colorado Air Pollution Control Commission and the Colorado Air Pollution Variance Board. This regulation essentially establishes in written form that which has been the practice of the Commission and the Variance Board during the course of hearings conducted by the respective bodies.
This regulation will also bring Colorado into compliance with Section 128 of the Clean Air Act, which requires that "any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed." The Clean Air Act also provides that a state may adopt requirements respecting conflicts of interest for such boards or bodies, which are more restrictive than the requirements of the Act.
The Commission believes this regulation satisfies both the requirements of the Federal Act and the State Administrative Procedures Act as well as setting forth expected standards of conduct.
Rationale and Justification for the Repeal and Repromulgation of Regulation Number 3 and Common Provisions Regulation as Related to Regulation Number 3
On December 14, 1978, the Air Quality Control Commission revised Regulation Number 3 (concerning requirements for filing air pollution emission notices, obtaining emission permits, and payment of fees with respect to both) for the primary purpose of bringing Colorado's air pollutant emission permit program into conformity with the requirements of the Federal Clean Air Act Amendments of 1977 to the extent authorized by the then effective state statutory authority: "The Air Pollution Control Act of 1970," C.R.S. 1973, 25-7-101 et seq. The regulation as revised in 1978 and which became effective January 30, 1979, was submitted to the U.S. EPA as a revision to the State Implementation Plan ("SIP") pursuant to Subsection 129(c) of the Federal Clean Air Act Amendments of 1977.
Since that submittal, the Colorado General Assembly has repealed and reenacted the state's basic air pollution control statute: Article 7 of Title 25, Colorado Revised Statutes, 1973, The new article, known as the "Colorado Air Quality Control Act" (designated House Bill 1109 in the 1979 Legislative session), became effective June 20, 1979, and largely brought the state statute into conformity with the Federal legislation, mandating the Commission to develop a comprehensive air pollution control program meeting the requirements of the Federal Clean Air Act.
The primary purpose of this current revision of Regulation Number 3 is to implement the new provisions of HB 1109 and to further bring the permit aspects of the Colorado air pollution control program into compliance with the requirements of the Federal Clean Air Act.
Revisions also respond to the requirements set forth in the October 5, 1979 Federal Register notice which conditionally approved portions of the Colorado SIP and set forth certain requirements for securing their unconditional approval. E.g., see Section IV.D.2.a.(iv) of revised Regulation Number 3 which incorporates the requirements of Section 172(b)(11)(A) of the Clean Air Act. 44 Fed. Reg. 57401, 57408 (1979).
The Commission has made an effort to formulate a permit program meeting the requirement of and paralleling of the provisions of EPA policies and rules to the extent authorized by House Bill 1109 and to the extent deemed appropriate by the Commission for Colorado's particular circumstances. This has been done in order to meet certain specific requirements expressly set forth in the Federal Clean Air Act, to meet certain specific requirements EPA has determined are required for compliance with the Federal Act, and to avoid subjecting sources of air pollution in Colorado to differing State and Federal requirements. The Commission considered the assurance of reasonable further progress toward attainment of National Ambient Air Quality Standards as the primary underlying criterion in developing permit requirements for sources located in or near nonattainment areas.
Consideration has also been given to the opinion of the United States Court of Appeals for the District of Columbia in the case of Alabama Power Company v. Costle ___ F.2d __ D.C. Cir., (1979).
APENs
In order to reduce the administrative burden on both the Air Pollution Control Division ("the Division") and owners and operators of air pollution sources, the filing of revised air pollution emission notices for the purpose of reporting significant changes in emissions will be required only on an annual basis, rather than whenever a significant change in emissions occurs. In making this revision, the Commission relied on the representations of the Division that annual reporting would be sufficient for purposes of keeping the emissions inventory current.
Street Sanding
With the exception of street sanding (and indirect sources), the exemptions provided in the revised regulation from the APEN-filing and emission permit requirements are for minor or insignificant sources of emissions.
Although not finding that particulate emissions resulting from the application and reentrainment of "sand" applied to snow or ice covered roadways as a traffic safety measure are insignificant, the Commission has exempted sanding from the APEN-filing and permit requirements out of administrative necessity.
Little benefit can be obtained from the filing of APENs in light of the fact that the amount of emissions cannot be predicted with any reasonable accuracy due to varying factors such as weather. APENs would therefore serve little purpose as notices of expected emissions.
It is the judgment of the Commission that protection of persons and property by sanding snow and ice covered roadways is an overriding consideration and that the costs of not taking such safety measures would far outweigh any air quality benefits resulting from requiring permits for sanding. Sanding should not therefore be prohibited - even without a permit. The only reason for imposing a permit requirement would be to facilitate enforcement of control measures to limit emissions which the Commission believes may be accomplished without a permit requirement through emission control regulations and provisions in local elements of the State Implementation Plan.
Major Sources, Major Modifications, and the "Bubble" Concept
The Commission has retained requirements that new "major sources" locating in nonattainment areas and "major modifications" to existing sources in nonattainment areas meet special requirements (Offsets, LAER, etc.) designed to allow the continued development in such areas without interfering with reasonable further progress toward attainment of National Ambient Air Quality Standards. The criteria for determining when a new source or modification to an existing source is "major" however, have been extensively revised.
Prior to the U.S. Court of Appeals Decision in Alabama Power Company v. Costle, EPA had defined "potential to emit" - a key phrase in the definition of "major emitting facility" - in terms of uncontrolled emissions. The court however, interpreted the phrase "potential to emit" as used in the definition of "major emitting facility" in Section 169(1) of the Clean Air Act as taking "into account the anticipated functioning of the air pollution control equipment designed into the facility," thereby drastically reducing the number of sources qualifying as major. In response to this decision, on September 5, 1979, EPA proposed amendments to its regulations concerning requirements for SIPs including those pertaining to Prevention of Significant Deterioration of air quality ("PSD") and new source review in nonattainment areas, as well as EPA's Emission Offset Interpretative Ruling. 44 Fed. Reg. 51924 (1979). The Commission in reviewing Regulation Number 3 and the Common Provisions Regulation has incorporated many of the amendments adopted by EPA in its regulations including classifications of sources as major or minor based on controlled emissions.
The court in Alabama Power Company struck down the EPA regulation definition of "major modification" which definition required the imposition of the special nonattainment area requirements (Offsets, LAER, etc.) on sources when modifications resulted in an increase in emissions of criteria pollutants of 100 tons per year or more (for certain listed categories of sources; 250 tons or more for sources not listed). The court held that the special nonattainment requirements applied to all modifications of major emitting facilities except those resulting in only - "de minimus" increases in emissions. The court stated, however, that it would be permissible to look at the net increase in potential emissions from a major source in determining whether Offsets, LAER, etc., will be required.
In its proposed rules, EPA has adopted the "net increase" or "bubble" approach which generally allows a major source undergoing modification to avoid permit review as a major modification by allowing emission reductions elsewhere at the source to offset any increases resulting from the proposed modification. The Commission has adopted the "bubble" concept and many of EPA's specific regulatory provisions with respect to the concept as applied to modifications.
The court in Alabama Power Company also held that fugitive emissions could be included in determining whether a source is "major" only to the extent such emissions were expressly determined to be included by rule of the EPA administrator. In response, EPA has proposed a regulatory definition of "potential to emit" by which fugitive emissions from twenty-seven (27) listed sources would be included in determinations of which new sources and modifications are major. 44 Fed. Reg. 51956, 51958 (1979). In recognition of the fact that such emissions would be included in a determination of whether a source or modification was major if they were emitted through a stack (as opposed to being "fugitive"), recognizing that generally emissions from the twenty-seven (27) listed source categories contribute to hazards to public health and welfare, and to be consistent with the Federal scheme, the Commission has also decided to consider fugitive emissions from the twenty-seven source categories in major source/major modification determinations to the extent they are quantifiable. An owner or operator may avoid the inclusion of fugitive emissions of particulate matter by demonstrating that such emissions are of a size and substance, which do not adversely affect public health or welfare.
Banking
C.R.S. 1973, 25-7-304 requires the attainment program to provide that emission reduction offsets exceeding those required for the granting of a permit "may be preserved for sale or use in the future." Section V. of Regulation Number 3 establishes an administrative framework and the basic requirements for such a procedure consistent with the "banking" provisions established by EPA in its Emission Offset interpretative ruling, 44 Fed Reg. 3274, 3280, 3285 (January 16, 1979) (to be codified as Appendix S to 40 C.R.S. Part 51).
Extended "Debugging" Period
Pursuant to C.R.S. 1973, 25-7-114(4)(j), the Division may grant the owner or operator of a new source up to six months after commencement of operation in which to demonstrate compliance with all terms and conditions of its emission permit. The Commission determined, however, that under certain circumstances it would be appropriate to allow a source employing innovative control technology additional time in which to bring the operation of the source into full compliance. Therefore, pursuant to its authority under C.R.S. 1973, 25-7-109(5), the Commission has provided in paragraph IV.H.6. of Regulation Number 3 for such temporary relief from controls under specified limited circumstances. The provision is intended for very limited application.
PSD
Regulation Number 3 does not address the subject of special permits for major sources locating in attainment areas to insure Prevention of Significant Deterioration of air quality. The Commission decided to wait until EPA's PSD regulations have been finalized before attempting to promulgate State regulations to establish a fully State-operated program. State emission permits are nonetheless still required for sources locating in attainment areas.
Common Provisions Regulation
In connection with the revision of Regulation Number 3, the Commission concurrently made limited, related revisions in its Common Provisions Regulation. Sections I.B. and I.C. of that regulation have been changed to reflect the renumbering of the sections in the State statute authorizing the Commission to promulgate regulations and to reflect the amended language in the declaration of legislative intent.
Section I.F. of the regulation was amended to add new abbreviations used in revised Regulation Number 3 and Section I.G. (definitions) was amended to delete, revise, and add terms and their definitions to reflect changes in the terminology used in Regulation Number 3.
Statement of Basis and Purpose Concerning May 13, 1982 Amendment to Section IV.C. (Public Comment) for Small Sources Locating in Nonattainment Areas
The rationale for this proposed revision is based on the underlying purpose of public comment: to obtain public input on proposed sources that the Air Pollution Control Division (APCD) can use in considering whether a permit should be granted.
Under the previous regulation, all sources locating in nonattainment areas were subject to the public comment requirement unless the APCD exercised its discretion under Section IV.C.3. (sources of less than 6 month's duration) to exempt them. APCD experience has shown that there are four categories of small sources that frequently locate in nonattainment areas, but which did not stimulate comment from the public. These categories are:
The limit of 5 Tons Per Year (TPY) of controlled annual emissions is based on calculations that show most of the sources in these four categories emit less than 5 TPY of any one pollutant. Service stations, for example, generally emit 1 to 2 TPY. In many cases, less than 1 TPY is emitted.
Under the revised regulation, sources less than 5 TPY can still be subject to public comment if the Division determines it appropriate based on criteria set forth in the regulation. The difference is that the APCD would have discretion to decide instead of being required to provide public notice. Controversial sources such as gravel pits, odor sources and landfill operations are subjected to public comment by the APCD regardless of the level of emissions. This practice will continue in effect.
Statement of Basis and Purpose for the Prevention of Significant Deterioration Program Regulations
This Statement of Basis and Purpose for the Prevention of Significant Deterioration (PSD) Program Regulations complies with the State Administrative Procedure Act, CRS 1973, 24-4-103(4). The statutory authority for the PSD regulations are in the Air Quality Control Act at CRS 1973, 25-7-102, 25-7-105, 25-7-106, 25-7-108, 25-7-109, 25-7-114, 25-7-116, 25-7-201 et seq. The general purpose of these regulations is to prevent the significant deterioration of air quality in those sections of the state, which has attained the national ambient air quality standards. The parties to this rulemaking include:
Colorado Association of Commerce and Industry; Rocky Mountain Oil amp; Gas Association, Inc.; Chevron Shale Oil Company; Union Oil Company of California; Colorado Ute Electric Association, Inc.; The Colorado Mountain Club; COAL; Public Service Company of Colorado; City of Colorado Springs; CF&I Steel; Environmental Defense Fund, Inc.; United States Department of the Interior; and United States Department of Agriculture.
The Air Pollution Control Division acted as staff for and advised the Commission during the proceeding. See CRS 1973, 25-7-111(2)(g).
The PSD regulations adopted by the Commission are in many respects identical to the U.S. EPA PSD regulations. See 40 CFR 51.24 et seq.; 40 CFR 52.21et seq. The primary reason for this is that the State Act requires that the State PSD program be in accordance with the federal Clean Air Act PSD provisions. See CRS 1973, 25-7-203. Thus, federal PSD requirements are generally a minimum for the State PSD Program. For these reasons, to the extent that the federal PSD rules are identical or substantially identical to the state regulations, the Commission incorporates herein the EPA statements of basis and purpose for the federal PSD rules at 43 Fed. Reg. 26380 et seq. (June 19, 1978) and 45 Fed. Reg. 52676 et seq. (August 7, 1980).
The Commission has additional authorities to prevent significant deterioration of air quality. In several important areas the Commission has tailored these regulations to meet the concerns of Colorado citizens. These areas include the requirement for an impact analysis on water to determine acid deposition effects, the authority to make independent determinations on adverse impact to visibility in Class I areas if the federal land manager fails to fulfill his responsibility to do so, the requirement to establish baselines for, and to monitor air quality related values in, Class I areas to determine the effects of emissions on such values, and the application of Class I sulfur dioxide increments to several Class II primitive areas and national monuments.
The proposed PSD regulations included several provisions reflecting the terms of a settlement agreement in the matter of Chemical Manufacturer's Association, et al. v. EPA in which EPA has agreed to propose amendments to its PSD rules. The Commission has rejected the adoption of such provisions for several reasons. They are arguably less stringent than current EPA rules in that they would appear to permit more air pollution. Because they may be less stringent, their adoption appeared likely on the basis of EPA testimony to impede the approval of the state PSD program by EPA at this time. Finally, EPA's schedule for consideration of such provisions is unknown. Subsequent to EPA action on the provisions of the settlement agreement, the Commission will reconsider those provisions.
The PSD regulations will generally not become applicable to major sources or major modifications in Colorado until EPA has approved them. See CRS 1973, 25-7-210. However, the regulations pertaining to attainment area designations and the enforcement of Class I sulfur dioxide increments in those areas listed in CRS 1973, 25-7-209 will be applicable upon the effective date of these regulations. These regulations will be effective twenty (20) days from publication in the Colorado Register.
DEFINITION OF "ACTUAL EMISSIONS"
The definition adopted is essentially identical to the EPA definition.
One party proposed that reference should be made to consideration of control efficiency. The Commission did not adopt this proposal because the definition inferentially considers control equipment efficiency and the reference requested would create confusion, when actual test data were available, as to whether a separate "efficiency" factor was to be applied.
Another party, in commenting on the definition of "baseline concentration," expressed concern that the determination of "actual emissions" could take place, for example, during a low-demand period for a power plant. Such determination would result in an emission rate considerably less than the full-capacity allowable emission rate, resulting in a low baseline concentration. The power plant, operating the next year at full capacity, could consume all or most of the available increment, prohibiting growth in the area. The Commission recognizes that, for certain sources such as power plants (i.e., fossil fuel-fired steam generators), the source must respond to constantly changing demands with significant changes in emissions from year to year. Therefore, for fossil fuel-fired steam generators, "allowable emissions" should generally be considered "representative of normal unit operation" rather than actual emissions in determinations of "actual emissions" for determining baseline concentration and increment consumption, unless it is clearly demonstrated that a lower level of emissions will never be exceeded.
DEFINITION OF "BASELINE AREA" AND "BASELINE DATE"
"Baseline area" is not specifically defined in the State Act but is simply referred to as "an area subject to this article" in the definition of baseline concentration. CRS 1973, 25-7-202. The Federal Clean Air Act definition of "baseline concentration," Section 169(4), is identical to the states, and EPA has interpreted" an area subject to this article" to mean the attainment and unclassifiable areas designated pursuant to Section 107(d)(1)(D) or (E) of the Federal Clean Air Act. Such an interpretation is also reasonable under the Colorado Air Quality Control Act which states that the Commission shall adopt measures "to prevent significant deterioration of ambient air quality in each region, or portion thereof, of the state identified pursuant to Section 107(d)(1)(D) or (E) of the Federal Act." The result of EPA's definition is that the entire state is the baseline area for SO2, and air quality control regions for particulate matter. Several parties proposed alternative approaches to the definition of baseline area. These approaches ranged from a modeled 1 µg/m3 impact area (based on 7.5 minute quadrangles, the county-township-range-section system, or a metric grid) to the entire state.
The Commission adopted the EPA definition for the following reasons:
The baseline areas selected by the Commission for particulate matter represent a balance between a recognition that particulate matter emissions are often a more localized problem than are gaseous emissions (hence the use of AQCRs for particulate matter instead of the entire state, as is the approach for SO2) and the need to begin counting increment consumption expeditiously (hence, the use of AQCRs for particulate matter rather than the smaller impact area). Only two AQCRs in Colorado have been triggered during the six years PSD has been in effect. Since triggered baseline areas can in the future be subdivided into triggered and untriggered areas, the Commission considers the use of baseline areas the size of AQCRs sufficiently flexible for purposes of reasonable application, economic growth, and prevention of air quality deterioration.
DEFINITION OF "BASELINE CONCENTRATION"
Two parties proposed changes to this definition, both suggesting the substitution of "allowable" for "actual" emissions in portions of the definition. The concern regarding power plant actual versus allowable emissions is discussed under "Actual Emissions".
The other concern arises from the possibility of a large difference between actual and allowable emissions in the calculation of increment consumption or in establishing baseline concentrations. This is discussed extensively in the EPA preamble to the August 7, 1980 PSD regulations (Division Exhibit B, pp. 74-76) concerning increment consumption. EPA's rationale is that actual emissions more reasonably represent actual air quality than allowable emissions and that because actual emissions are based on at least two years of operation, future emissions could be reasonably expected to remain at the same level. EPA therefore uses actual emissions to avoid "paper consumption" of increment (or modeled baseline concentrations which would exceed monitored levels) The Commission concurs with the EPA rationale and has adopted the EPA approach of using actual emissions to track increment consumption and determine baseline concentrations.
DEFINITION OF "COMPLETE"
The Environmental Defense Fund (EDF) proposed a list of specific elements of a PSD permit application, for aid in determining whether an application is "complete," which was generally incorporated in the final rule. The proposed list of items would add some certainty and clarification for the applicant and the Division of the specific items required to demonstrate completeness of an application. Regarding items (i) and (iii)-(iv), opposition to the list by several parties was primarily that it was redundant with other requirements of the rules. York, Nov. 10 Tr. at 18 et seq. and 60 et seq. Item (ii) was retained because, for many or most applications, such information would be necessary to verify the applicant's modeling.
DEFINITION OF "NET EMISSIONS INCREASE"
Several parties proposed crediting increases or decreases in emissions that occur up to five years after a modification becomes operational. The Commission did not adopt this recommendation because EPA specifically prohibits states from crediting decreases, which would occur after the change occurs. 40 CFR 51.24(b)(3) . In addition, it would prove difficult to exact an enforceable agreement for a source to close down or otherwise decrease emissions at some future date.
Several parties proposed in paragraph f(ii) to shift "enforceable" from time of construction to time of operation. This change would not be consistent with the state statutory requirements, which prohibit construction or operation of a non-permitted new source or modification. The suggested change would also needlessly complicate the correlation of permits to enforceable decreases in emissions. In response to a party comment that 90 days to report a reduction in emissions is too short, the Commission agreed and has allowed such reports to be made within a year of the decrease unless an extension is granted. A longer time would make the reduction difficult to verify.
DEFINITION OF "SECONDARY EMISSIONS"
The final definition incorporates a recent amendment by EPA, 47 Fed. Reg. 27554 (June 25, 1982) and is consistent with CRS 1973, 25-7-202(6.5).
DEFINITION OF "ALLOWABLE EMISSIONS"
In several sections of EPA's PSD rules, including its definition of "allowable emissions," EPA grants credit for permit conditions only if they are "federally enforceable." In each of such sections, the Commission has deleted the qualification of "federally" and has in the Common Provisions Regulation defined "enforceable" so that it is consistent with EPA's definition of "federally enforceable."
DEFINITION OF "SIGNIFICANT"
Several parties commented that the proposed definition, which defined both "significant" and "significantly" and included a listing of "significant concentrations," was confusing and unnecessary. The proposed definition also gave the Division the discretion to (1) determine that certain sources were not significant even if the source met the definition, and (2) to determine significance levels for non-listed pollutants. In addition, it limited the definition for sources affecting Class I areas to those sources producing a "significant" impact. There were several sections in the proposed regulations that used the "significant" definition of ambient concentrations to allow impacts to Class I areas not allowed under EPA rules. EPA and the National Park Service commented that these changes resulted in a less stringent definition. The Commission agreed with these comments. The final definition is essentially identical to EPA's and uses only emission rates to define "significant," and the use of "significant" to qualify impacts to Class I areas in other sections of the rules has been deleted.
DEFINITION OF "MODIFICATION"
One party proposed that an existing exception for increases in SO2 emissions caused by adding new emission control equipment (e.g., replacing scrubbers with fabric filters) be retained. The Commission acknowledges that this exemption was intended to avoid penalizing a source willing to improve particulate matter collection by converting from scrubbers to baghouses or electrostatic precipitators. Since scrubbers collect gaseous pollutants, but baghouses and precipitators do not, the amount of SO2 emitted would increase, hence the exemption. Since there are a number of nonattainment areas for particulate matter, but none for SO2, the Commission will continue to encourage additional control of particulate matter by including this exemption in the definition of "modification."
It should, however, be noted that this exemption is not included in the definition of "major modification," so a significant increase in SO2 emissions from a major source will result in PSD applicability. The effect of this is to provide the exemption only for minor sources and minor modifications.
DEFINITION OF "STATIONARY SOURCE"
The proposed definition was revised to include language essentially identical to that of EPA at 40 CFR 51.24(b)(5) and (b)(6) . The final rule allows more discretion to define stationary source on a case-by-case basis. The definition clarifies that a source in a nonattainment area may also be "an identifiable piece of process equipment" which makes it consistent with a recent federal case. See Natural Resources Defense Council et al. v. Gorsuch, et al., 685 F.2d 718 (D.C. Cir. 1982).
DEFINITION OF "FUGITIVE DUST"
The State Act exempts "fugitive dust" from regulation under the PSD program, including exemption from determinations of whether a source or modification is major and of increment consumption. C.R.S. 1973, 25-7-202(4), -202(5), -204(1)(b), and -204(2)(c). "Fugitive Dust" is defined as:
Soil or other airborne particulate matter (excluding particulates produced directly during combustion) resulting from natural forces or from surface use or disturbance, including, but not limited to, all dust from wind erosion of exposed surfaces or storage piles and from agriculture, construction, forestry, unpaved roads, mining, exploration, or similar activities in which earth is either moved, stored, transported, or redistributed; except that fugitive dust shall not include any fraction of such soil or other airborne particulate matter which is of a size or substance to adversely affect public health or welfare.
C.R.S. 1973, 25-7-202(3). Under such definition, fugitive particulates are regulated in the PSD program if they are "of a size or substance to adversely affect public health or welfare."
The exemption of "fugitive dust" is an issue because EPA counts total suspended particulates ("TSP") in determining increment consumption, maintenance of primary and secondary NAAQS, and source applicability. Therefore, to the extent that the state excludes some sizes of particulate matter in these determinations, its regulations are arguably less stringent than EPA's, although as explained, because of depositional effects, there is generally an insignificant difference between the counting of TSP and the counting of smaller particulates. The basis for setting the primary NAAQS is health effects; the basis for setting the secondary NAAQS is welfare effects. These are also the bases under the State Act for counting fugitive particulates in the PSD program. Because the bases for the State's inclusion of fugitive particulates and for EPA's promulgation of particulate matter NAAQS are essentially identical, it is appropriate to consider whether the NAAQS should be the standard for determining which particulates are "of a size or substance to adversely affect public health or welfare."
However, EPA's current primary and secondary NAAQS for particulates are based on the "Air Quality Criteria for Particulate Matter" (1969), Div. Ex. R., which has generally been superseded by more recent research and analysis. For that reason, EPA in the CMA v. EPA Settlement Agreement has agreed in the near future to promulgate new primary, and perhaps secondary, NAAQS for particulates which would exclude particulates above a size posing no health or welfare risks.
EPA's staff review, in anticipation of revisions to the particulate matter definition and NAAQS, of the effects of particulate matter on health concludes that the size counted should be less than 10 um, which includes those particles capable of penetrating the thoracic regions. "Review of the National Ambient Air Quality Standards for Particulate Matter: Assessment of Scientific and Technical Information," EPA 450/5-82-001 (January 1982).
EPA staff review of welfare impacts indicates that visibility impacts are generally caused by fine particulates of less than 2.5 um. Id. at 122. However, such review recognizes that "the full size range of particles including dustfall can contribute to soiling, become a nuisance and result in increased cost and decreased enjoyment of the environment." Id. at 140. Further, the EPA "staff recommends consideration of the economic and other effects associated with soiling and nuisance when determining whether a secondary standard for TP or for TSP or other large particle indicator is desirable," id. at 141, and that "the basis for selecting a particular level for a secondary TP or TSP standard is a matter of judgment." (emphasis added) Id. at 147. The EPA staff review indicates that EPA will probably propose a fine particulate secondary standard but is undecided as to whether to establish a TSP or large particulate secondary standard, and that there is a basis for concluding that welfare impacts are being caused by all sizes of particulates. Additionally, there was public and party testimony on welfare effects from fugitive particulates, some of which can be assumed to be large particles. See Markey, November 10 Tr. at 2 et seq.
One of the apparent concerns of parties and persons opposing the use by the Commission of TSP as a welfare standard is that the increment would be consumed and that no further development could occur. Division Exhibit W, which compares the modeled ambient impacts of TSP using a deposition model with particulates of 10 um or less using the same model, shows that the larger particles deposit quickly and that the ambient impact is relatively the same at a distance of 1000 meters or greater. The implication of this is that for many sources the modeling of increment consumption would have the same general results whether TSP is counted or whether only particles 10 um or less are counted (assuming the boundary of the source is 1000 meters or farther from the emissions point). Another implication is that welfare impacts from large particulates can only result within relatively short distances of a source.
Another concern was that the legislative intent was not to count TSP, although there was not clear evidence of legislative intent presented to the Commission. In any event, statutory language leaves the determination to the Commission to decide what particulates are of a size or substance to adversely affect health or welfare.
Given the foregoing considerations and the Commission's general interest in interpreting health and welfare effects of particulates consistent with EPA, but also given the uncertainty surrounding the revision of the particulate NAAQS by EPA, the Commission determines that in applying the definition of "fugitive dust", the adverse effects on health or welfare of fugitive particulate emissions should be determined individually for each source. Adverse welfare effects of nuisance and soiling will be presumed to occur if the source would have offsite, ambient, particulate impacts unless the permit applicant rebuts such presumption with clear and convincing evidence. The result of this presumption will be that in most cases, large particulates will be counted and there will be no difference between EPA's treatment of particulates and the state's.
Other health and welfare effects shall generally be evaluated based on EPA's most recent research and analysis, but the permit applicant shall have the burden of proof of demonstrating with clear and convincing evidence that, if any, sizes or substances of fugitive particulates do not adversely affect health or welfare. This presumption of health and welfare effects has been incorporated in the definitions of "major stationary source" and "major modification," Section XI.A.4 on Exclusions from Increment Consumption, and Section V.D.3.c.(i)(B).
Upon EPA's adoption of revised NAAQS for particulates, the Commission may consider whether to revise this Statement of Basis and Purpose or the definition of "fugitive dust" to reflect such revisions. Should EPA decide not to have a secondary NAAQS incorporating nuisance and soiling (welfare) impacts of large particulates, the Commission will consider whether the welfare effects of large particulates are significant enough to be included, or whether they are relatively insignificant and, thus, should not be counted in the state PSD Program.
DEFINITION OF "MAJOR SOURCE" AND "MAJOR MODIFICATION"
The State Act permits the counting of fugitive emissions in determining whether a source or modification is major "only if the Commission adopts regulations to include fugitive emissions for that source category." CRS 1973, 25-7-202(4) and (5). The Federal Clean Air Act has a similar requirement at Sec. 302(j). EPA has interpreted the rulemaking requirement to mean simply a consideration in rulemaking of whether fugitive emissions should be counted and a requirement that affected industries be allowed to present policy or factual reasons why fugitive emissions should not be counted. 45 Fed. Reg. 52676 (August 7, 1980). Based on this rationale, EPA's rules currently list 26 categories of sources for which fugitive emissions are counted. A similar interpretation of the State Act is reasonable and has been adopted by the Commission.
One party recommended the addition of uranium mills and coalmines to the list of sources for which fugitive emissions would be counted. However, those sources could not be considered in this proceeding due to inadequate public notice. The Commission intends to consider those sources for listing as soon as practicable.
In the CMA v. EPA Settlement Agreement, the EPA has agreed to remove these 26 listed sources on the basis of industry's argument that the rulemaking requirement means that EPA must identify reasonable methods for measuring and modeling fugitive emissions from a category of sources. Although not agreeing that this is legally required under state or Federal law, the Commission has determined that Division Exhibit F, primarily, makes that demonstration for the ten categories located or expected to locate in Colorado.
It should be noted that measurement methods are not only available, but have been in use for a number of years and have provided test results that are the basis for the fugitive emission factors used by EPA and other control agencies, including the Colorado Air Pollution Control Division.
The following important parallels between stack emission factors and fugitive emission factors support the conclusion that fugitive emission factors are relatively as reliable and as reasonably available as stack emission factors:
* Both are based on numerous test data at different locations on different equipment or operations.
* Both are influenced by many variables (e.g., for a stack, flow rate, temperature, process variations; for a fugitive plume, wind speed, moisture content of the material, size distribution of the material).
* Neither is intended to represent actual emissions from a specific source. Actual acceptable test data for a specific or similar source would always be used in lieu of an emission factor.
* Both are intended as air management tools to allow pre-construction assessment of a source impact or as a representative value to average total emissions from a number of similar sources (e.g., all waste incinerators, commercial boilers, or coal storage piles) for such air quality management purposes as determining "reasonable further progress" in nonattainment areas.
Stack and fugitive emission factors are both estimates; such factors are nevertheless widely used by control agencies and applicants alike. However, control agencies generally have no objection to, and would prefer, actual test data in lieu of factors whenever such information is submitted. (See Testimony of McCutchen, October 28, 1982; Egley, November 18, 1982, pp. 72-75 and p. 99; Bertolin, October 29, (am), p.39.)
One party's concern involved whether the emission factors for a facility can be extrapolated to a larger facility, specifically, from a 7000 ton per day oil shale processing facility to a 50,000 ton per day facility. Scale-up is a widely used and accepted approach throughout industry for estimating the feasibility of larger-scale facilities from results at smaller-scale facilities. There are a number of well-known precautions that should always be considered when extrapolating, and a control agency should be at least as cautious in extrapolating emission levels as the applicant is in extrapolating process data. Of course, if different equipment, such as a retort, is to be used at a proposed facility, an emission estimate would be based on mining and handling practices and on different processing equipment emission factors (e.g., refinery emission factors) which are similar to oil shale processing activities where such would be more accurate than extrapolation. Therefore, either through extrapolation or through the application of other more applicable and available emissions factors, relatively accurate emissions levels from all types of oil shale facilities can be calculated.
The same modeling techniques used to model stack emissions can be and are used to model fugitive emissions. Division Appendix F. One modeling parameter, deposition, is more critical in modeling fugitive particulate emissions and should be carefully evaluated. Fugitive particulate emissions usually contain larger particles than do controlled stack emissions. These large particles generally settle out rapidly, so that the impact at a plant boundary is usually much less than would be anticipated by the quantity of emissions at the source. See "Fugitive Dust." However, acceptable models exist which incorporate deposition and thereby provide a reasonably accurate assessment of fugitive particulate emission impact. Models without deposition can be used for gaseous and fine particulate fugitive emissions. Models have recognized limitations, but they are as accurate for fugitive emissions as for stack emissions.
The following information, which is primarily from Division Exhibit F, concerns the major policy and factual reasons for counting fugitive emissions from each of ten source categories:
Coal Cleaning. A typical plant would process 10,000 tons per year (TPY) of coal and emit approximately 280 TPY of particulate matter, 96% of which would be fugitive emissions. Over 100 TPY of the fugitive emissions are less than 15 microns in diameter and are considered inhalable particulate (IP).
Portland Cement. The typical plant produces 500,000 TPY of cement and emits approximately 370 TPY of particulate matter, 60% of which would be fugitive emissions.
Iron amp; Steel Mills (Including Coke Ovens). A typical plant would produce several million tons of steel per year and emit approximately 3,600 TPY of particulate matter, 64% of which would be fugitive emissions. The coke plant would produce over half a million tons of coke per year and emit approximately 700 TPY of particulate matter, 10% of which would be fugitive emissions, and 1,500 TPY of uncontrolled fugitive hydrocarbon emissions.
Petroleum Refineries. A typical plant would process 25,000 barrels of oil per day and emit approximately 1,100 TPY of hydrocarbons, 57% of which would be fugitive emissions.
Lime Plants. A typical plant would produce 300,000 TPY of lime and emit approximately 1,800 TPY of particulate matter, 33% of which would be fugitive emissions.
Fuel Conversion. A typical shale oil plant would produce 50,000 barrels per day of oil and emit 4,800 TPY of particulate matter, 12% (500 TPY) of which would be fugitive emissions, and 8,611 TPY of hydrocarbons, 12% (1,080 TPY) of which would be fugitive emissions.
Sintering Plants. A typical plant would emit approximately 400 TPY of particulate matter, 20% (80 TPY) of which would be fugitive emissions.
Power Plants and Boilers. A typical, but well-controlled, new 500 MW power plant burns 2.1 million TPY of coal and emits approximately 620 TPY of particulate matter, 18% (110 TPY) of which would be fugitive emissions. These fugitive emissions are from coal handling and storage, among the most visible and complaint-related of all fugitive emission sources.
Petroleum Transfer and Storage. A typical plant has a capacity of 476,000 barrels and an annual throughput of 7,123,000 barrels per year and emits 267 TPY of hydrocarbons, 72% of which are fugitive emissions.
In conclusion, the Commission has determined that fugitive emissions from the listed sources should be included in determining whether the source or modification is major for the following general reasons:
PUBLIC COMMENT AND HEARING REQUIREMENTS
The Commission has adopted a regulation designed to offer maximum opportunity for any interested person to learn about, and become involved in, the PSD permit review process. Adopted in the final rule are proposals by one party that (a) the public notice be printed not only in a newspaper of local distribution, but also in one of state-wide distribution to increase the number of potential interested persons reached by the notice, (b) that the public hearing be held at least 60 days after the Federal Land Manager (FLM) has received the notice and permit application, to allow the FLM adequate response time, and (c) that any interested person receive notice of public hearing. In addition, the Commission agrees with the Division proposal to implement and maintain an "interested party" mailing list as described in Division Exhibit M.
The proposed rule contained a requirement that the Division notify the county Commissioners in affected counties when a proposed source would consume 50 percent or more of the remaining PSD increment. Two parties proposed that this requirement be deleted as allowing local land use decision-makers to unduly influence air permit decisions.
The intent of this requirement, which has been modified to notify county Commissioners of any PSD permit applications, is not to provide opportunity for counties to comment to the Division on land use; rather, it is to provide information to the counties on proposed sources so that the counties can more adequately assess their priorities and needs. PSD permit approval or denial is to be based solely on the criteria specified in this regulation; land use decisions are, and will remain, the responsibility of local governments.
Regarding the issue of land use decisions, one party commented that Section IV.C.4.e(iii) of this final rule, which solicits comments from interested parties on alternatives to a proposed PSD source or modification, constitutes the inclusion of land use factors in permit approval determinations. The Commission did not remove this section because it is required by the State Act, CRS 1973, 25-7-114(4)(f)(1)(B). Furthermore, the intent of soliciting such alternatives is for the assessment of alternatives with respect to control technology and source impact, not land use.
CONTROL TECHNOLOGY REVIEW
One party proposed that the last sentence in Section IV.D.3.a.(i)(C), which requires the owner or operator of a phased project to demonstrate the adequacy of a previous best available control technology (BACT) determination, be deleted. The Commission did not delete this sentence because (1) an EPA regulation requires such a condition and deletion of this requirement could be considered less stringent, and (2) the requirement is intended to provide for the possibility of a different BACT determination if new technology has developed between the time of permit review and the next phase of a project for which construction has not yet commenced, a time period which can easily exceed five years on large projects.
POST-CONSTRUCTION MONITORING
Five parties proposed that post-construction monitoring requirements be limited to a maximum of one year. The Commission recognizes the concern of lessening the burdens on owners or operators, particularly if the information being gathered is unnecessary. However, in many cases, there can be a very real need for monitoring for periods of time greater than a year to obtain reliable data. Accordingly, the final rule requires post-construction ambient monitoring for a period up to one year; additional ambient monitoring can be required only if it is necessary to determine the effect of emissions from the source on air quality. This necessitates an evaluation by the Division regarding the adequacy of the data, and a showing by the Division that additional monitoring is needed, before more than a year of monitoring could be required.
OPERATION OF MONITORING STATIONS
Three parties proposed that the rule be written to allow the latest changes in EPA-approved methods to be used without first having to amend the rule. The Commission agrees with the need to use the most up-to-date approved methods. Accordingly, the final rule specifies that "EPA accepted procedures....as approved by the Division" can be used.
ADDITIONAL IMPACT ANALYSIS
Section IV.D.3.a.(vi) of the final rule requires an owner or operator of a proposed PSD source to provide an analysis of the impairment to water that would occur as a result of emissions associated with the source.
This analysis is not required by the EPA rules. The inclusion of water in the additional impact analysis reflects a strong concern by the Commission based in the record regarding acid deposition. At this time, there is neither the information nor the evidence of damage to justify regulating acid deposition in Colorado. However, the vulnerability of high altitude lakes to acid deposition and the potential increases in acid-forming pollutants such as SO2 and NOx on the Western Slope from sources subject to the PSD program, particularly oil shale processing and large power plants, clearly demonstrate a need for a program to gather data, track and analyze this potential environmental problem. The inclusion of water in the additional impact analysis is intended to gather information on the problem; this analysis is not intended to affect permit approval or denial or control technology review decisions except for determinations of adverse impact to AQRVs in Class I areas. The issues that have been raised concerning water impact analysis are discussed in detail.
The State Air Quality Control Act requires a PSD permit hearing to consider "air quality impacts of the source... and other appropriate considerations." C.R.S. 1973, 25-7-114(4)(f). Acid deposition can be construed as an indirect but potentially significant air quality impact which should be analyzed, especially in light of one of the stated purposes of the PSD Program "to protect public health and welfare from any actual or potential adverse effect which.... may reasonably be anticipated to occur from air pollution or from exposures to pollutants in other media, which pollutants originate as emissions to the ambient air (emphasis added)." Section 160(1) of the Clean Air Act. Acid deposition in water is those pollutants in other media originating as emissions to the ambient air.
The Federal Land Manager (FLM) of a Class 1 area is responsible for determining whether a source has an adverse impact on air quality related values which are generally defined as follows:
Any value of an area, which may be affected by a change in air quality. Examples include flora, fauna, soil, water, visibility, culture, and odors. Forest Service Comments, October 7, 1982, p.1.
Acid deposition may adversely affect such values, and thus an analysis of its effects should be required for review by the federal land managers of affected Class I areas.
The major issues discussed during the hearings are summarized:
John Turk of the USGS is involved in acid deposition research in Colorado and stated that 370 lakes in the Flattops Wilderness area comprising 157 hectares would be sensitive to potentially harmful degrees of acidification if precipitation attains an average pH of 4.0. (Exhibit 3, Nov. 10 Tr. at 153)
Ben Parkhurst maintains that there is talk of Colorado's lakes being sensitive (Oct. 29 Tr. at 146), but states that sensitivity must be considered together with acid inputs. Thus, if acid input to the water system is not sufficiently large the sensitivity question is not important.
Dr. William Lewis stated that Colorado's lakes are sensitive to acid deposition as demonstrated by the measured loss in buffering capacity he found in his studies. (Nov. 18 Tr. at 136-138)
In conclusion, it can be inferred that some Colorado lakes are poorly buffered and if sufficient levels of acidity are introduced into the lakes, these poorly buffered "sensitive" lakes could develop acidification problems.
John Turk of the USGS states that there has not been any large degree of acidification taking place in the lakes or streams he has studied in the Flattops. (Nov. 10 Tr. at 172)
Ben Parkhurst also states that there is no evidence to show that any acidification has taken place in Colorado Lakes. (Oct. 29 Tr. at 144 and 150-152)
Dr. William Lewis states that he has noted pH changes in lakes he has studied (Nov. 18 Tr. at 140), but he does not consider that to be the major point in regard to the acidification question. Lewis considers the loss of buffering capacity to be the best indicator of acidification effects on lakes and he has found statistically valid evidence to show that this has occurred. (Nov. 18 Tr. at 136-138)
In summary, there is some evidence that pH has dropped slightly in some of the lakes Lewis has studied, however, it does not appear that acidification (drop in pH) has occurred to any large degree in Colorado, however, in the prediction of future impacts, buffering capacity should be examined and this has dropped in the lakes examined by Lewis.
Paul Ferraro has done some research on estimating potential acid deposition impacts on Colorado and has determined that under different energy development scenarios, there is a potential for acidification in sensitive lakes. (Nov. 10 Tr. at 158-159)
Parkhurst states that he would not expect acidification to be a problem in the future, unless the acid deposition reaches levels similar to those found in the Northeast. (Oct. 29 Tr. at 154-156) Parkhurst states that Ferraro's study is conservative and a pH drop to 5.8 would not affect fish.
Oppenheimer (EDF Exhibit 32 p. 6) states that if a 1 µg/m3 increase in SO2 (annual average) occurs, acid deposition levels could result which would be damaging to sensitive lakes.
In summary, it can be inferred that there is a potential for energy development activities to cause increased levels of acids to be deposited in the watershed, and effects on pH may occur depending on the buffering capacity of the water. The degree of the effect will depend on the amount of acid, thus the amount of emissions.
Paul Ferraro has utilized what he refers to as a "first cut" approach in estimating impacts due to acid deposition. The approach utilizes methods employed by John Turk for determining sensitivity of waters and methods for estimating deposition rates developed by Systems Applications, Inc. (Nov. 10 Tr. at 154-176)
Oppenheimer (EDF Exhibit 32 p. 12-13) states that acid deposition modeling could be conducted using presently available plume models (approved by EPA), which incorporate a plume depletion function to account for deposition. Results from this model could then be compared to deposition standards.
In summary, there appear to be only screening techniques available at this time for estimating the impacts of acid deposition.
Parkhurst stated that fish could survive in pH's as low as 4.1. (Oct. 29 Tr. 143)
Lewis states that he feels that trout would be adversely impacted if pH dropped significantly below six as an average. He would not expect trout populations to be able to reproduce and grow at a pH below six. (Nov. 18 Tr. at 152,153)
Parkhurst also states that a permanent pH decrease from 6.0 to 5.0 is not a natural variation that many species would probably be eliminated, and species numbers and diversities reduced. (Nov. 10 Tr. at 110)
Parkhurst also testified that there is not any evidence to show that trout are capable of both reproducing and maturing in an environment, which is consistently of a pH of 4.5 or less. (Nov. 10 Tr. at 114)
In conclusion, the record does not clearly identify the point at which damage to fish will occur. However, testimony indicates that below a pH of 4.5, and maybe below 6, fish populations would not be able to reproduce and mature.
Summary
Few definitive conclusions could be drawn from the evidence and testimony. The main point of agreement was that at the present time there has not been any adverse acidification identified in any of Colorado's watersheds. The buffering capacity of lakes appears to be the important factor to consider in determining sensitivity of lakes. Testimony was given that buffering capacity has diminished in certain mountain lakes; however, the cause of this loss has not been identified. No agreement was reached on what level of pH could be tolerated by aquatic ecosystems without causing adverse impact. It could be agreed by all parties that more research must be conducted on acid deposition so that its effects may be better understood and predicted by appropriate models.
Although more information is needed, studies in the Northeastern United States, Canada, and Europe show that acid deposition can be a serious problem (Oct. 29 Tr. at 144-145 and EDF Exhibit 32 p.3). Colorado contains many lakes, which are sensitive, exhibiting low buffering capacities. If energy development occurs on the Western Slope emissions of acid precursors will grow substantially, which will result in increased acid deposition levels. The nature of energy industry in Colorado may result in rapid growth in a short period of time, which will occur before all information on acid deposition is understood. If a large industry develops and new information shows that ambient air standards and increments do not protect the state from acidification problems, a valuable resource may be damaged. For these reasons, the Commission intends to remain vigilant in monitoring this problem, and as analytical capabilities is developed or a problem develops, to re-address this issue for possible regulatory and/or legislative solutions. A subcommittee should be formed, if resources permit, to develop specific guidelines for acid deposition analyses based on recent modeling innovations. In the interim, proposed PSD sources emitting acid or acid precursors will be required to analyze the impact of these emissions on water, utilizing the most up-to-date techniques available.
AREA CLASSIFICATIONS
Several parties objected to the application of Class I sulfur dioxide increments to those areas of Colorado listed in Section VIII.B. which are otherwise Class II areas. The sulfur dioxide Class I increments are required to be enforced in these areas by CRS 1973, 25-7-209. However, pursuant to CRS 1973, § 25-7-105(8) (Supp. 1982), this Section VIII.B. may not be made a part of the State Implementation Plan (SIP) until these areas are redesignated as Class I under the procedures of Section IX. Until they are redesignated, they may only be enforced under state law and regulations. However, unlike Class I areas, the increment in these areas may be protected now. See CRS 1973, 25-7-210.
The Commission has also determined that the variances from increment consumption allowed by Sections XIV.C., XIV.D., XIV.E., and XIV.F. for Class I areas should also apply to the areas listed in Section VIII.B. It is a reasonable interpretation of CRS 1973, 25-7-209 that if the Class I (sulfur dioxide) increments are to apply to such areas; the variances from the increments should also apply. There is nothing in the State Act to indicate that the areas listed in CRS 1973, 25-7-209, are to be given better air quality protection than Class I areas, which would be the result if the variances did not apply.
REDESIGNATION
Several parties objected to what were considered burdensome requirements for redesignating areas to Class I. The adopted rule incorporates only the minimal requirements for redesignation from state and federal law. See CRS 1973, 25-7-208; Sec. 164 of the Federal Clean Air Act; 40 CFR 51.24(g) . However, the Commission did lessen the burden imposed by the proposed rule on those persons requesting a redesignation by allowing such requests to be made without providing all of the information necessary for a redesignation. Who would provide such information is not specified so that it could be any combination of federal, state and private entities.
TECHNICAL MODELING & MONITORING REQUIREMENTS
Several parties proposed the inclusion of future EPA amendments or guidelines in this section of the regulation, which specifies the air quality model, monitoring and stack height requirements to be used. In response, the Commission adopted the use of "EPA approved" terminology instead of references to specific documents.
Two parties proposed language making EPA or the state responsible for any needed meteorological data. The Commission did not adopt this proposal because it is the applicant's responsibility to demonstrate that it will not cause exceedance of an NAAQS or increment, and meteorological data are nearly always needed to make such determinations. If the Division has such data, it has an obligation to make that data available to the applicant.
INNOVATIVE CONTROL TECHNOLOGY
Several parties proposed that the phrase "greater than or" be deleted from Section XIII.B.2. which specifies that the innovative system achieve emission reductions "greater than or equivalent to" BACT. The EPA regulation uses the phrase "equivalent to" and the parties considered the proposed state rule more stringent. The Commission does not consider the phrase "greater than or equivalent to" (emphasis added) to be more stringent, but instead to be a clarification that an acceptable innovation can result in either equivalent or lesser emissions from the source, but not a higher level of emissions. The preamble to the EPA PSD regulation (Div. Exhibit B, p. 84) clearly specifies that the "...final emission limitation must at least represent the BACT level that would have been initially defined..."
FEDERAL CLASS I AREAS
Section XIV.A. allows the Division or the Board (if applicable) to determine independently if there is an adverse impact to visibility in Class I areas if the federal land manager (FLM) fails to make such determination or such determination is in error. This authority is intended to allow the state to fulfill the FLM's responsibility for protection of visibility if for whatever reason, including political, the FLM fails to do so. The Commission recognizes that scenic vistas are an important resource of the State of Colorado. (Colorado Mountain Club Exhibit #1) A subcommittee may be formed to further develop visibility protection for the State of Colorado.
Several parties suggested problems with the state's independent authority to make such visibility determinations. These consisted of (1) measuring or predicting visibility impairment, (2) quantifying man-induced, as opposed to naturally-occurring, visibility impairment, (3) the subjectiveness of visibility impairment, (4) the lack of correlation of current particulate standards to visibility impairment, and (5) the lack of guidance in the regulation regarding determinations of significant and adverse visibility impacts.
The Commission's response to these concerns is as follows:
Visibility theory involving scattering and absorption of light is well documented and has been incorporated into the models described in the Workbook for Estimating Visibility Impairment (EPA-450/4-8-031). The preface to the Workbook for Estimating Visibility Impairment states: "EPA believes these techniques are at a point where the results should now be employed to assist decision-makers in their assessments." "These techniques" include the Plu-Vu Model. Div. Ex. J at iii. Thus, these models are appropriate for use at this time.
Section XIV.B. of the regulation allows the Division to require a source, which will have or is likely to have an impact on any Class 1 area to conduct monitoring to establish the baseline status of and impacts on AQRVs in such Class 1 areas. EPA has not imposed this requirement on applicants, although under EPA rules and the Commission rule, Section IV.D.3.(a)(vi), an Additional Impact Analysis is required which would include an analysis of impacts on AQRVs based on available data, for example, through literature searches. The data gathered from such monitoring are important and necessary in aiding the federal land manager of a Class 1 area in determining whether or not a source will cause an adverse impact on AQRVs and the state in deciding on concurrence with such determination. The data also aid the public information function of the Additional Impacts Analysis. The authority to require submission of such information includes, but is not limited to, CRS 1973, 25-7-206(2), 25-7-106(5) and (6), and 25-7-114(4).
The National Park Service ("NPS") and the Forest Service ("FS") supported the rule as a supplement to their current monitoring activities on the basis that the data is necessary to determining adverse impacts on AQRVs, including visibility. See Mitchell, Nov. 18 Tr. at 122 et seq., 161 et seq.; Haddow, Oct. 28 (p.m.) Tr. at 22 et seq., Nov. 10 Tr at 68 et seq.; Region 2-USDA Forest Service Comments on Proposed PSD Rule; Comments on the May 19, 1982 Proposed Colorado PSD Regulation by National Park Service Air Quality Division.
The NPS stated its willingness to provide a list of sensitive receptors of AQRVs to applicants for monitoring. Mitchell, Nov. 18 Tr. at 162.
The Forest Service recognized severe technical difficulties and high costs of monitoring some pollutants and visibility in wilderness areas. Haddow, Oct. 28 (p.m.) Tr. at 22 et seq. However, lichen monitoring could be done without great difficulty and special use permits are available for some complex monitoring. Haddow, Nov. 10 (p.m.) Tr. at 112., The FS intends to identify sensitive indicators of AQRVs for each Class 1 area, e.g. 2 or 3 species of lichen and 2 or 3 scenic views, and proposes that the state require the monitoring of such indicators Id. at 82-83.
EDF's and FOE's general contentions in support of the proposed monitoring requirements were:
"EDF and FOE Final Recommendations; Summaries of the Record and Legal and Policy Analyses," Section IV.
The Trade Association Parties' general contentions in opposition to the monitoring requirements were:
Trade Association Parties' Closing Argument at 31-34.
The cited testimony and evidence and other portions of the record support the conclusion that monitoring of AQRVs or sensitive receptors of AQRVs would be helpful, and in many cases necessary, to determine whether adverse impacts on AQRVs would occur. It is also evident that baseline data are not available and may never be developed by federal land managers for some AQRVs and sensitive receptors and for some Class 1 areas. Thus, the primary issue is where to place the responsibility for obtaining background data on AQRVs - the federal land manager, the state and/or the applicant.
As the Forest Service suggested, it is traditional permitting practice to require a permit applicant to obtain the data upon which the agency decides. Haddow, Nov. 10 (p.m.) Tr. at 89. This practice is consistent with the economic philosophy that companies should internalize their environmental costs. Furthermore, the Clean Air Act does not change such practice; it places the "affirmative responsibility" on federal land managers to protect AQRVs and to consider whether there will be an adverse impact on AQRVs but does not expressly state whose responsibility it is to provide necessary data upon which to exercise their responsibility.
The Commission has determined that there is available research and test methods for obtaining background data and impact data on many AQRVs that will be critical in making adverse impact determinations, even though there are not generally adopted reference methods or modeling techniques. For example, to perform a reasonably accurate visibility impairment analysis, background data is needed. Div. Ex. J.
Although there are no generally accepted reference methods for estimating visibility impacts, methods for estimating visibility impairment have been developed and are relatively sophisticated. See Div. Ex. J.; Geier, Oct. 28 (a.m.) Tr. at 62-71. The rule recognizes this potential limitation on monitoring AQRVs by only allowing monitoring if "monitoring methods are reasonably available and research and development of monitoring methods are unnecessary."
In response to the objection that the Division's discretion in selecting AQRVs for monitoring is too vague and broad, the rule provides:
In response to the objection that the monitoring of AQRVs may not be economically reasonable, the rule provides that:
SULFUR DIOXIDE AMBIENT AIR STANDARDS FOR THE STATE OF COLORADO
The proposed rule would have revised the Colorado ambient air quality standard for sulfur dioxide to be consistent with the federal standard. Because the Colorado standard is not enforceable in the permitting process, see CRS 1973, 25-7-114(4)(g), the Commission ordered on November 10, 1982 that revisions of the state ambient air quality standard for SO2 be removed as a subject of this rulemaking.
The Commission agreed to reconsider the state standard if and when it becomes enforceable.
PUBLIC ACCESS TO CONFIDENTIAL INFORMATION
One party raised the issue of whether Section VII. of Regulation Number 3 improperly restricts access to confidential information, which would be available under the Federal Clean Air Act. Section VII. may not be considered for amendment in this rulemaking due to lack of public notice.
December 21, 1995 (Definitions for Negligibly Reactive VOC and Net emission increase h.)
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, § 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, § 25-7-110.5, C.R.S.
Basis
Regulations 3, 7 and the Common Provisions establish lists of Negligibly Reactive Volatile Organic Compounds (NRVOCs). The revisions adopted consolidate the list of NRVOCs into the Common Provisions, assuring that the same list of NRVOCs apply to all the Colorado Regulations. This provides more consistency in those chemicals regulated as VOCs.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act provides the authority for the Colorado Air Quality Control Commission to adopt and modify Regulations pertaining to organic solvents and photochemical substances. §§ 25-7-109(2)(f) and 25-7-109(2)(g), C.R.S., grant the Commission the authority to promulgate regulations pertaining to Organic solvents and photochemical substances. The Commission's action is taken pursuant to authority granted and procedures set forth in §§ 25-7-105, 25-7-109, and 25-7-110, C.R.S.
Purpose
These revisions to Regulations Number 3, 7, and the Common Provisions are intended to clarify substances that are negligibly reactive VOCs, which are reflected in the EPA list of non-photochemically reactive VOCs. By consolidating the list (which consists of the EPA list of non-photochemically VOCs), and adopting the EPA definition by reference, a single list of negligibly reactive VOCs will apply uniformly to all Colorado Air Quality Control Commission Regulations.
This revision will also include EPA's recent addition of acetone to the negligibly reactive VOC list. The addition of acetone to the list of negligibly reactive VOC's provides additional flexibility to sources looking for an alternative to more photochemically reactive VOCs. Because the EPA has added acetone to their list of non-photochemically reactive VOCs many industries, which make and supply products to Colorado industries, are planning to substitute acetone for VOCs that are more reactive. This change in the content of products purchased by industry for use in Colorado would adversely affect industries in Colorado if acetone remains a regulated VOC in Colorado. By adopting acetone as a negligibly reactive VOC, industries will be able to take advantage of and benefit from this possible shift in product contents.
Previously written statements of the basis and purpose of this regulation and revisions have been prepared and adopted by the Commission. These written statements have been incorporated in this regulation by reference and in accord with C.R.S. 1973, 24-4-103 as amended.
Revisions to Regulation Numbers 3, 7, 8 and Common Provisions
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, § 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, § 25-7-110.5, C.R.S.
Basis
Regulations 3, 7 and the Common Provisions establish lists of Negligibly Reactive Volatile Organic Compounds (NRVOCs). The revisions adopted update the list of NRVOCs so that the state list remains consistent with the federal list. Additionally, because perchloroethylene will no longer be listed as a VOC in Regulation Number 7, Section XII, Control of VOC Emissions from Dry Cleaning Facilities using Perchloroethylene as a Solvent, is being deleted.
Regulation Number 8 and 3 list the federal Hazardous Air Pollutants (HAPs). In the June 8, 1996 Federal Register the EPA removed Caprolactam (CAS 105-60-2) from the federal list of Hazardous Air Pollutants. The conforming changes in Regulation Number 3 Appendices B, C and D have been made to keep the list of federal HAPs in Regulation Number 3 consistent with the federal list. The list of HAPs in Regulation Number 8 has been removed and a reference to the list in Regulation Number 3 has been added.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act provides the authority for the Colorado Air Quality Control Commission to adopt and modify Regulations pertaining to organic solvents and photochemical substances. § 25-7-109(2)(f) and 25-7-109(2)(g), C.R.S., grant the Commission the authority to promulgate regulations pertaining to organic solvents and photochemical substances. §§ 25-7-105(1)(I)(b) and 25-7-109(2)(h) provide authority to adopt emission control regulations and emission control regulations relating to HAPs respectively. The Commission's action is taken pursuant to authority granted and procedures set forth in §§ 25-7-105, 25-7-109, and 25-7-110, C.R.S.
Purpose
These revisions to Regulations Number 3, 7, 8 and the Common Provisions are intended to update the state lists of NRVOCs, the Ozone SIP, and HAPs for consistency with the federal lists.
(Incorporation by Reference of Federal Definition of Negligibly Reactive Volatile Organic Compounds (NRVOCs and Credible Evidence Provisions)
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, §§ 24-4-103(4) and (12.5), C.R.S. and the Colorado Air Pollution Prevention and Control Act, § 25-7-110.5, C.R.S.
Basis
The Reason for this revision to the Common Provisions Regulation is to correct an inadequacy in the Colorado State Implementation Plan and Section 110(a)(2)(A) and the (C) of the Clean Air Act. The Credible Evidence revisions need to be incorporated into the Colorado SIP to allow for the use of any credible evidence (ACE) for the purpose of submitting Title V compliance certifications or establishing whether a source has violated or is in violation of any emission standard contained in any regulation that has been submitted to the U.S. EPA. Failure to correct this SIP revision will result in promulgation of a Federal Implementation Plan (FIP) to correct the deficiency. In a separate action of the described rulemaking, the definition of Negligibly Reactive Volatile Organic Compounds (NRVOCs) included in the Common Provisions Regulation is being changed to incorporate by reference the federal Volatile Organic Compound definition at 40 CFR § 51.100(s)(1). This incorporation adds methyl acetate to the list of compounds included in the Common Provisions Regulation considered as NRVOCs and thereby exempts methyl acetate from the definition of volatile organic compounds for regulatory purposes.
Background
The credible evidence revisions are based on Section 113(a) of the federal Clean Air Act. This section authorizes the EPA to bring administrative, civil or criminal enforcement action "on the basis of any information available...." Although the Clean Air Act sets no inherent limits on the EPA's authority to use any type of information to prove a violation, some of EPA's regulations provide for specific test methods for determining compliance and have been read by some to constrain EPA's enforcement authority. In the district court case, United States v. Kaiser Steel Corp., No. CV-82-2623 IH (C.D. Cal. January 17, 1984), the court construed the language of a New Source Performance Standard, at 40 CFR § 60.11, as limiting the admissible evidence of violations of opacity standards to observations utilizing Method 9, the opacity reference method. When the EPA attempted to use expert testimony pertaining to opacity to prove the existence of violations only on those days without Method 9 test data, the court rejected the evidence and held that EPA could prove violations only on those days where the Method 9 test data was conducted. In contrast, the court in National Lime Association v. EPA, 627 F.2d 416, 446, n. 103 (D.C. Cir. 1980) specifically rejected the assertion that standards can only be supported by reference test data.
In the 1990 Clean Air Act Amendments, Congress included an enforcement title, Title VII, to enhance compliance and enforcement authorities. The amended Section 113(e)(1) provides that "in determining the amount of any penalty to be assessed," the agency shall take into consideration "the duration of a violation as established by any credible evidence (including evidence other than the applicable test method)." Legislative history for this amendment shows that Congress meant to clarify that in an enforcement action, courts are not restricted to reference test method data, but may consider any evidence of violation or compliance admissible under relevant evidentiary rules (see S. Rep. No. 228, 101st Congress, 1st Session 1, 358 (1989), reprinted in 1990 U.S. Code Cong. & Admin. News 3385, 3741.1 Section 113(e)(1), along with Section 113(a), as described, clarify that compliance and noncompliance can be determined on the basis of any credible evidence. Subsequent to the 1990 Clean Air Act Amendments, two court cases have upheld the use of credible evidence other than the reference test method specified in the regulation. SeeSierra Club v. Public Service Company, 894 F. Supp. 1455 (D.C. Colo. 1995), andUnitek Environmental Services v. Hawaiian Cement, Civ. No. 95-00723 (D. Hawaii 1996).
1The Senate Report stated that Section 113(e)(1) makes clear that the agency may rely upon any credible evidence of violations in pursuing alleged violations. Further, the Report explained that the amendment clarifies that courts may consider any evidence of violation or compliance admissible under the federal Rules of Evidence, and that they are not limited to consideration of evidence that is based solely on the applicable test method in the State Implementation Plan or regulation. Thus, this amendment overrules the ruling in United States v. Kaiser Steel Corp. (citation omitted) to the extent the court in that case excluded the consideration of such evidence. (Senate Report at 358, Reprint at 3741.)
The federal credible evidence revisions, codified in 40 CFR §§ 51.212(c) and 52.33(a), require that State Implementation Plans must provide for enforceable test methods for each emission limit specified in the plan and the plan "must not preclude the use, including the exclusive use, of any credible evidence or information," for the purposes of submitting compliance certifications or establishing whether a person has violated or is in violation of any standard in the plan. The revisions provide that where information, such as non-reference emissions data, parametric data or engineering analysis is equivalent to information generated by reference test methods, it may be used to establish compliance or noncompliance.
The federal credible evidence revisions received substantial public comment from state and local air pollution control agencies, large and small industries, trade associations and environmental organizations. A summary of the public comments received the EPA's response to the comments and the final rule is contained in 62 Federal Register 8314 (Feb. 24, 1997).
Shortly after the rule became final, several trade associations brought a court action for judicial review (seeClean Air Act Implementation Project, et al., v. Environmental Protection Agency, et al.), in the United States Court of Appeals for the District of Columbia. The Colorado Air Pollution Control Division held workgroup meetings with affected and interested parties to discuss incorporating the federal credible evidence revisions into the State Implementation Plan.
At the request of affected industry, the discussions were withheld until after the final court decision on appeal. The Court of Appeals issued its final decision on August 14, 1998, dismissing the petition for review and upholding the credible evidence revisions. The Court held that "there are too many imponderables." Whether credible evidence can be used to determine compliance or noncompliance must be decided on a case-by-case basis, given the universe of all possible evidence that might be considered "credible" and that application of evidence other than a specified reference test result may potentially affect some standards, but not others.
The Colorado Utilities Coalition and the Colorado Association of Commerce and Industry have requested that the Commission review and determine whether emissions standards in Colorado regulations were established in reliance on specific reference test methods and whether incorporating the credible evidence revisions into the Common Provisions Regulation will alter the stringency of any of Colorado's regulations. These are some of the same questions put before the Court of Appeals for the District of Columbia in the Clean Air Act Implementation Project case described, and that the court refused to answer because of the many imponderables presented.
There are over 130-reference test methods described in the federal and Colorado regulations. Reliance on credible evidence other than a reference test may potentially affect some standards, but not others. Added to this is the fact that "credible evidence" is not a finite evidentiary set - the Commission cannot conceive of all possible evidence that might be considered credible. There are some emissions standards included in State Implementation Plans, such as the grain loading particulate matter standards contained in Colorado Regulation Number 1, that were established without consideration of the "back half" or condensable portion of the particulate matter emissions. In this situation, reliance on evidence showing noncompliance with particulate matter standards through test methods, AP-42 factors, or other engineering analysis that considers the condensable portion of the particulate matter emissions will render compliance with Regulation Number 1 emission limitations more stringent.
On the other hand, it is not possible to conceive of all the evidence that may be credible in determining whether a source is in compliance with the "front half" particulate matter emission standards in Regulation Number 1, other than the through the use of reference Test Method 5. In all cases, the proponent of evidence other than the reference test method, whether for purposes of demonstrating compliance or noncompliance in an enforcement action or challenging a permit concerning demonstrations of ongoing compliance for compliance certifications, bears the burden of demonstrating that the evidence is credible and consistent with compliance demonstrations through use of the relevant performance or reference test method. The Colorado Rules of Evidence will guide the Commission's determinations of whether evidence is credible, i.e., technically relevant and legally admissible in an adjudicatory matter before the Commission.
With respect to the methyl acetate incorporation by reference, in April 1998, the EPA modified 40 CFR Section 51.100(s)(1) to add methyl acetate to the list of compounds having negligible photochemical reactivity and exempting it from the definition of volatile organic compounds (63 Federal Register 17331, April 9, 1998). The EPA found that methyl acetate had photochemical reactivity comparable to or less than that of ethane, both on a per gram and per mole basis.
Ethane has been on the list of compounds having negligible photochemical reactivity since 1977. By incorporating the federal list of compounds included in 63 Federal Register 17331 (April 9, 1998) into 40 CFR § 51.100(s)(1), Colorado's Negligibly reactive VOCs definition conforms to the federal list.
Authority
The Colorado Air Pollution Prevention and Control Act, § 25-7-105(a)(I), provides that the Colorado State Implementation Plan meet all requirements of the federal Clean Air Act. The authority to promulgate rules and regulations to assure conformity with federal Clean Air Act requirements is given to the Colorado Air Quality Control Commission under § 25-7-105. § 25-7-105(IV)(12), in particular, provides the authority for the Commission to adopt rules consistent with the federal Clean Air Act Title V minimum elements of a permit program.
Purpose
The specific purpose of incorporating the ACE revisions into the Common Provisions is to make the Colorado SIP consistent with the federal Clean Air Act requirements and avoid promulgation of a FIP. The incorporation by reference of the current federal definition of compounds having negligible photochemical reactivity also makes the Colorado SIP consistent with the federal Clean Air Act requirements.
Federal Requirements
The rule revisions are required by Section 110(k)(5) of the federal Clean Air Act, 42 U.S.C. § 7410(k)(5) that finds the SIP inadequate to comply with Sections 110(a)(2)(A) and (C) of the Clean Air Act, 42 U.S.C. §§ 7410(a)(2)(A) and (C), because the Colorado SIP may be interpreted to limit the types of credible evidence or information that may be used for determining compliance and establishing violations. Neither the rule nor the incorporation by reference exceed or differ from federal requirements.
Revisions to Common Provisions Regulation
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, §§ 24-4-103(4) and (12.5), C.R.S. for and the Colorado Air Pollution Prevention and Control Act, § 25-7-110.5, C.R.S.
Statutory Authority
The Colorado Air Pollution Prevention and Control Act, § 25-7-109, C.R.S., provides the Commission the authority to adopt and revise rules and regulations that are consistent with state policy regarding air pollution and with federal recommendations and requirements. § 25-7-105(1), C.R.S., grants the Commission the authority to promulgate rules necessary to implement and administer the Colorado Air Pollution Prevention and Control Act. § 25-7-106(1), C.R.S., grants the Commission maximum flexibility in developing an effective air quality control program. § 25-7-105(1), C.R.S., provides the authority for the Commission to make state implementation plan revisions.
Basis
The reason for this revision to the Common Provisions regulation is to provide appropriate relief, in terms of an affirmative defense to civil penalties, for sources that experience excess emissions during startup, and shutdown events, despite their best efforts to comply with applicable emission standards. In general, startup and shutdown of process equipment are part of the normal operation of a source and should be accounted for in the planning, design and implementation of operating procedures for the process and control equipment. Accordingly, it is reasonable to expect that careful and prudent planning, design and operation will eliminate violations of emission limitations during such periods.
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 Affirmative Defense for Excess Emissions During Startup and Shutdown revisions to the Common Provisions regulation recognize this fact. Although all excess emissions arising during startup and shutdown must be treated as violations under this rule, an affirmative defense may be available to a source that will shield it from civil penalty liability if the owner/operator meets the requirements of the rule. In making affirmative defense determinations, it is the intent of the Air Quality Control Commission to allow the use of all sources of information, including any credible evidence, the affirmative defense criteria, physical inspection of the facility and review of documentation pertaining to maintenance and operation of process and air pollution control equipment to determine whether the owner/operator proved the relevant factors under this rule. The affirmative defense provision is not available for claims for injunctive relief.
The Commission established several requirements that an owner/operator must prove in order to avail itself of an affirmative defense to civil penalties. These requirements must be evaluated on a case-by-case basis according to the type of source as well as the nature of the cause of any excess emissions. For example, paragraph D requires that an owner/operator demonstrate that it minimized the frequency and duration of operation in startup and shutdown periods to the maximum extent practicable. In general, emission standards applicable to a source category are based on the type of operation, so excess emissions must be evaluated in light of the cause and its relation to the standard. On the other hand, sources naturally have differences in the frequency and duration of shutdown and startup cycles and this fact must be included in any affirmative defense evaluation.
This revision specifically refers in factor E. to minimizing the impact on ambient air quality. The Commission believes that every effort should be made to avoid adverse air quality impacts, even though the ambient air may be better than established minimum standards. Whether some step is possible should take into account the relative cost of the step and the time to implement it in relation to the amount or duration of excess emissions that would be avoided.
The Commission initially proposed including off-line maintenance periods between shutdown and startup in this affirmative defense provision. The Commission chose not to provide an affirmative defense for off-line maintenance periods, but to rely on the enforcement discretion of the Air Pollution Control Division to address excess emissions during these periods. The Commission recognizes that during off-line maintenance at coal-fired electric utility boilers, infrequent, short-term periods of excess opacity readings may occur despite the use of good air pollution control practices. Other types of sources may experience similar occurrences. The Commission anticipates that, in evaluating its enforcement options and penalty determinations regarding excess emissions during off-line maintenance periods, the Division will consider factors similar to those in this rule for shutdown and startup periods. In particular, factors B., E. and H. will be important in determining the appropriate response to a source's excess emissions. The Division should also consider whether the owner/operator used available scheduling options to minimize the impact of potential excess emissions on ambient air quality.
The Commission decided to allow use of an affirmative defense only for violations of performance standards or emission limitations with an averaging time of twenty-four hours or less. Sources subject to standards or limitations with longer averaging times should be able to meet those requirements in spite of excess emissions during periods of startup or shutdown. Restricting the affirmative defense rule in this way should help to assure that excess emissions from a single source or small group of sources do not cause an exceedance of ambient air quality standards or Prevention of Significant Deterioration (PSD) increments.
Purpose
The specific purpose of incorporating the Affirmative Defense revisions into the Common Provisions is to make the Colorado SIP consistent with the federal EPA's Policy Regarding Excess Emissions During Malfunction, Startup and Shutdown dated September 20, 1999.
Federal Requirements
The rule revisions are not required by the federal Clean Air Act but, to the extent states wish to obtain EPA approval of a state implementation plan revision to provide relief for excess emissions that occur during startup and shutdown events, the rule revisions must be consistent with EPA's policy dated September 20, 1999.
Revisions to Common Provisions Regulation
This Statement of Basis, Specific Statutory Authority and Purpose comply with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4) and (12.5), C.R.S., for new and revised regulations.
Basis
The Common Provisions Regulation is designed to assist in the implementation of more substantive regulatory programs authorized under the Colorado Air Pollution Prevention and Control Act ("Act") including provisions of the State Implementation Plan addressed in §, 25-7-105(1)(a), C.R.S., emission control regulations addressed in §, 25-7-105(1)(b), C.R.S., and prevention of significant deterioration requirements addressed in §, 25-7-105(1)(c), C.R.S., as well as other authorized programs under the Act. The current revisions have been promulgated in order to facilitate this goal. The majority of the revisions were proposed by the Air Pollution Control Division based on their internal review of the regulation and extensive discussions with interested parties regarding shortcomings of the regulation. The Division's initial proposals were addressed at length during a subcommittee process involving the Commission, the Division, stakeholders and other interested parties. During this process, participants commented on the initial proposal and offered additional suggestions. The proposal presented to the Commission is a collaborative effort of the Division and interested stakeholders.
Specific Statutory Authority
The specific statutory authority for these revisions is set forth in §, 25-7-105(1), C.R.S., which gives the Air Quality Control Commission authority to promulgate rules and regulations necessary for the proper implementation of the Air Pollution Prevention and Control Plan. Additional authority for these revisions is set forth in §, 25-7-106, C.R.S.
Purpose
A review of the Common Provisions Regulation revealed numerous grammatical, stylistic and formatting errors, language ambiguities and obsolete or duplicative provisions. These revisions are intended to cleanup, clarify and streamline the Commission's Common Provisions Regulation. The revisions are not intended to add additional requirements, delete requirements or substantively change existing requirements.
The changes reflected in the revisions to the Common Provisions Regulation fall into three categories:
Over the years, the Common Provisions Regulation has expanded to include new definitions and other provisions intended to assist in implementing the substantive requirements set forth in other regulations. In reviewing the regulation, it was determined that many of the definitions and a few of the other requirements were either obsolete or duplicated in other regulations. For example, Section III., regarding Smoking Gasoline Powered Motor Vehicle and Section X., addressing Conflict of Interest by Commission Members were deleted from the regulation because they are duplicated in other regulations. Provisions included in Section III can be found in Commission Regulation Number 11 and Section X. of the Commission's Procedural Rules. Similarly, a number of definitions set forth in the Common Provisions are also contained in Regulation Number 3.
Because Regulation Number 3 underwent contemporaneous review, the primary focus was to eliminate duplications between the Common Provisions and Regulation Number 3. Duplicative provisions that were only applicable to Regulation Number 3 were deleted from the Common Provisions Regulation. Provisions applicable to multiple regulations remain in the Common Provisions and were deleted from Regulation Number 3. Certain duplicative definitions not related to Regulation Number 3 were also addressed. A full review of all the Commission's regulations was not undertaken during this rulemaking process. The duplicative provisions that remain in the Common Provisions Regulation will be addressed when other regulations are opened for revision.
The revisions include grammatical, formatting and stylistic changes designed to make the regulation more readable. For example, reference to the "Air Quality Control Commission" in Section I.A. was changed to "Commission" and a number of parenthetical acronyms were eliminated. These changes are not designed to change applicable requirements, but rather to streamline the language of the regulation and to make the regulation stylistically consistent with other Commission regulations.
The regulation contains numerous references to the Colorado Air Quality Control Act. In 1992, the legislature changed the name of the Act to the Air Pollution Prevention and Control Act. References in the Common Provisions were revised to reflect this change. Additionally, date references to the Act and other enactments were eliminated to clarify that the references are to the current enactments and not to some outdated version. The date reference in the definition of ozone depleting compound was retained to reflect that future changes to the federal ozone depleting compound lists will need to be incorporated by reference during subsequent rulemakings.
The revisions address a number of concerns that the Division and other interested parties raised during the subcommittee process regarding ambiguous provisions. For example, pursuant to Regulation Number 1, different equations exist for calculating emission limits for manufacturing process equipment and fuel burning equipment. There has been some confusion regarding which standard applied when fuel-burning equipment was used as part of a manufacturing process. The revisions to the Common Provisions Regulation change the definition of fuel burning and add a definition for manufacturing process equipment to clarify that fuel burning emissions are counted as manufacturing process emissions when they are vented through a common stack with other emissions from the manufacturing process. When fuel-burning emissions are vented separately, they are subject to the fuel burning equation.
The definition of construction was changed to clarify that while the statutory definition will govern in most instances, there are certain programs such as PSD, NSR/NAA, and NSPS, that may utilize different definitions of construction.
Revisions to the definition of federally enforceable clarify the provisions that can be considered federally enforceable. The previous definition appeared unduly restrictive. This issue is important with respect to the PSD and NSR/nonattainment area (NAA) programs since a source may avoid program requirements by taking federally enforceable conditions that reduce the level of emission below the major source threshold. The new definition clarifies that state only requirements, whether specifically denoted as such in a permit or in the regulations, but not in the state implementation plan, are not federally enforceable. The definition further clarifies that all requirements contained in an operating, PSD or NSR/NAA permit are federally enforceable.
Similarly, the definition of enforceable was revised to more accurately reflect that enforceable encompasses both federal and state enforceable requirements regardless of where the requirement appears.
In the prior version of the regulation, the definitions for coal and Reid Vapor Pressure contained references to a specific test method. These provisions were changed to refer more generally to "appropriate" test methods. These changes reflect that test methods can be updated and changed depending on the circumstances. What is considered appropriate in a given case will depend on the factual circumstance under which the test would be applied.
The definition of air pollution source, as well as several other definitions, was modified to eliminate inconsistencies with the statutory definition. Despite these inconsistencies, the Commission believes that the prior definitions were intended to have the same practical meaning as the statutory definition.
The Commission decided not to adopt changes to the definition of upset conditions or to the upset conditions and breakdown provision in the Common Provisions Regulation. The Division proposed revisions to the upset provision to address concerns expressed by the Environmental Protection Agency, then engaged in extensive discussions with interested stakeholders and the Environmental Protection Agency. In view of the terms included in the existing regulation, and the Commission's and Division's interpretation of the upset provision, the Commission concluded that no change is necessary at this time.
During the subcommittee process a question was raised as to why the definition of air pollutant differed in the Common Provisions and Regulation Number 3. These differences reflect the fact that the term is defined differently in the State and Federal Act. The Common Provisions definition reflects that State Act. The Commission is not aware of any practical implications arising from these differences.
The definition of the term condensate was adopted in conjunction with the Ozone Action Plan and contemporaneous revisions to Regulation Number 7 to control emissions of volatile organic compounds from condensate operations, as described in the statement of basis, specific statutory authority, and purpose for the March 10, 2004 revisions to Regulation Number 7.
The statutory authority for the definition is set out in §§ 25-7-105(1)(a) and (1)(b); 25-7-106(1)(c) and (5); and 25-7-109(1)(a) and (2), C.R.S.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, § 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, §§ 25-7-110 and 25-7-110.5.
Basis
The rule revisions adopted address the use of air curtain destructors for burning materials generated as a result of projects conducted to reduce the risk of wildfire. Regulation 9 deals with open burning activities and Regulation 3 contains emission notice requirements. The Common Provisions Regulation contains a definition related to these devices.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, § 25-7-109(2)(e), C.R.S., provides the authority for the Commission to adopt and modify emissions control regulations pertaining to open burning activities. These regulatory changes implement the provisions of the Colorado Air Pollution Prevention and Control Act, 25-7-101, et. seq., that prohibit anyone from operating an air pollution source such as an air curtain destructor without first obtaining a permit.
The Commission's action is taken pursuant to procedures set forth in §§ 25-7-105, 25-7-110 and 25-7-110.5, C.R.S. The Commission took into consideration the appropriate items enumerated in § 25-7-109(1)(b), C.R.S.
Purpose
In 2002, the Commission adopted regulations to implement the requirements of Senate Bill 99-145 and Senate Bill 01-214 relating to open burning activities by public and private land managers and other significant users of fire for range and forest management. Since that action, the public and both state and federal agencies have focused on the risks associated with wildfires, particularly in the forest/urban interface throughout Colorado. The Commission views reduction of the risks associated with wildfires and their potential for serious public health consequences as a result of the emissions from the fires as an important component in protecting public health and the environment. The Commission also views the use of methods to reduce risk that also reduce air pollution emissions compared to other methods as an additional important factor.
In this rule adoption, the Commission acted to enlarge the options available to dispose of materials generated by projects conducted to reduce the risks of wildfire. It is the intention of the Commission that practical alternatives to burning be used when they exist.
The Commission reviewed the available emissions data and limited uses proposed for air curtain destructors. That information demonstrated to the satisfaction of the Commission that, with appropriate permit conditions, the destructors can safely be used to dispose of certain materials without endangering public health, causing, or contributing to a violation of the National Ambient Air Quality Standards (NAAQS) and will reduce emissions compared to traditional pile burning.
The Division performed an air dispersion modeling analysis on December 30, 2003. The analysis is based on the assumption that the air curtain destructors operate no more than 13 hours per day and no more than 110 days per year at a single site. In addition, it is assumed that no more than 20 tons of fuel will be burned per hour. At this level of operation and fuel throughput, the device would be limited to 110 days per year to meet the restriction in the proposed regulation that no more than 100 tons of any criteria pollutant be emitted per year.
Screening level air quality analyses suggest that emissions from air curtain destructors are not expected to cause violations of the carbon monoxide, sulfur dioxide, and nitrogen dioxide ambient air quality standards except in situations where the air curtain destructor is operated next to a nearby source of air pollutants that is already causing high air pollution impacts in an area that, for one reason or another, has poor existing air quality. The analyses suggest it would be prudent to require setbacks in the regulation to prevent public exposure to potentially elevated PM10 levels near the units. The proposed setbacks of 150 feet and 300 feet for short-term versus long-term sites are reasonable except in situations where the air curtain destructor is located near another stationary source of fugitive PM10 emissions. Accordingly, the rule adopted prohibits co-location of an air curtain destructor with another air curtain destructor or any facility that is required to have an air quality permit or any commercial or industrial facility.
The rule adopted contains specific limitations to assure that the devices are operated consistently with the Commission's expectations. The rule adopted allows disposal of wood products generated by projects conducted to reduce the risks of wildfire. The information presented to the Commission did not demonstrate that air curtain destructors are appropriate for disposal of other materials including clean lumber.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, § 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, §§ 25-7-110 and 25-7-110.5, C.R.S.
Basis
Regulation no. 3 sets forth the Air Quality Control Commission's permitting and air pollutant emission notice programs for stationary sources. The Commission amended Regulation Number 3, Part A, Section V. to make it consistent with the repeal of the Emissions Trading Rule in Regulation Number 5 in December 2004. It was originally anticipated that Regulation Number 5 would replace Part A, Section V. in Regulation Number 3 as the Commission's trading program, essentially identical to EPA's. The text of Part A, Section V. was italicized to represent provisions that would remain effective until EPA approved the program in Regulation Number 5. EPA decided not to finalize its trading program; therefore, it would never approve Regulation Number 5 as a SIP component. The Commission deleted Section V.A.3., Part A that contained the outmoded effective date. The Commission also replaced the italicized text with normal font in all of Part A, Section V. to conform the text to these circumstances. In addition, one hazardous air pollutant (2-butoxyethanol) was deleted to conform the State's list (in appendix b) to the Federal list of hazardous air pollutants.
The Common Provisions Regulation sets forth requirements and definitions that pertain or may pertain to all of the other Commission regulations. EP Aadded four compounds to its list of compounds (known as non reactive volatile organic compounds) to be excluded from the definition of volatile organic compound on the basis that these compounds make a negligible contribution to tropospheric ozone formation. The Commission adopted a conforming change to the definition of non-reactive volatile organic compounds in the Common Provisions Regulation, Section I.G.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act give the Commission authority to promulgate regulations necessary for the proper implementation of the act. § 25-7-105(12), C.R.S, provides specific authority to establish emission notice, construction permit and operating permit programs. Some of the statutory parameters for these programs are set forth in §§ 25-7-114 through 25-7-114.7 of the act and these sections, in turn, provide statutory authority for the current revisions. Additional authority for these revisions is set forth in §§ 25-7-106, 25-7-119 and 25-7-132, C.R.S. The Commission's adoption of this rule is taken pursuant to procedures set forth in §§ 25-7-105, 25-7-110 and 25-7-110.5, C.R.S.
Purpose
The Commission took into consideration the appropriate items enumerated in § 25-7-109(1)(b), C.R.S.
The purpose of removing the italicized text from Regulation Number 3, Part A, Section V. was to prevent any ambiguity about the applicability of those provisions. Changing the font of the text does not have any regulatory impact since the provisions were already in effect and will remain in effect. Section V.A.3. was deleted because it was an outmoded provision that was only necessary if Section V. was to be replaced by Regulation Number 5. The Commission's repeal of Regulation Number 5 made that provision unnecessary. Removing the italics from Section V. also will eliminate confusion with the italicized text in Part D of Regulation Number 3.
The purpose of the deletion of one hazardous air pollutant in appendix b of Regulation Number 3 and the addition of four non-reactive volatile organic compounds to the list in Section I.G. of the Common Provisions Regulation is to conform the Commission's rules to Federal regulations. The Federal rule changes were published on November 29, 2004. If the Commission did not make these revisions, the State rules would be more restrictive than the Federal rules because these revisions serve to exempt the compounds from emission standards, monitoring, reporting and record keeping requirements.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, § 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, §§ 25-7-110 and 25-7-110.5, C.R.S.
Basis
On November 29, 2004, EPA revised the federal definition of volatile organic compounds (VOCs) to specifically treat tertiary butyl (t-butyl) acetate as a VOC only for certain purposes, including reporting and photochemical dispersion modeling. The Commission is making corresponding changes to the definition of VOCs in the Common Provisions Regulation, and is adding t-butyl acetate as a non-criteria reportable pollutant in Regulation Number 3, Part A, Appendix B.
Sources of t-butyl acetate will be required to report the pollutant separately from their VOC emissions on an Air Pollutant Emission Notice, and should not count their t-butyl acetate emissions when evaluating compliance with applicable VOC emission limitations. The Division should combine VOC emissions and reported t-butyl acetate emissions when conducting dispersion modeling for sources of t-butyl acetate.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, § 25-7-105, C.R.S., gives the Commission authority to promulgate regulations necessary for the proper implementation of the Act, including rules to assure attainment and maintenance of national Ambient Air Quality Standards and a prevention of significant deterioration program. § 25-7-105(12), C.R.S. provides specific authority to establish emission notice, construction permit and operating permit programs. Some of the statutory parameters for these programs are set forth in §§ 25-7-114 through 25-7-114.7 of the Act and these sections, in turn, provide statutory authority for the current revisions. Additional authority for these revisions is set forth in §§ 25-7-106, 25-7-119 and 25-7-132, C.R.S.
The Commission's adoption of this rule is taken pursuant to procedures and requirements set forth in §§ 25-7-105, 25-7-110 and 25-7-110.5, C.R.S.
Purpose
These revisions will provide clarity for affected sources by maintaining consistency with the federal definition of volatile organic compounds. Further, these revisions include any typographical errors within the regulation.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.
Basis
The Common Provisions Regulation is designed to assist the implementation of more substantive regulatory programs authorized under the Colorado Air Pollution Prevention and Control Act ("Act") including provisions of the State Implementation Plan addressed in §, 25-7-105(1)(a), C.R.S., emission control regulations addressed in §, 25-7-105(1)(b), C.R.S., prevention of significant deterioration requirements addressed in §, 25-7-105(1)(c), C.R.S., as well as other authorized programs under the Act. The current revisions have been promulgated in order to facilitate this goal. The revisions were proposed by the Air Pollution Control Division based on discussions with EPA and extensive discussions with interested parties regarding the availability of an affirmative defense for upset conditions or malfunctions.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, C.R.S. § 25-7-105(1)(a) authorizes the Commission to adopt rules necessary to implement the Act, and to adopt and revise comprehensive state implementation plans to assure attainment and maintenance of national ambient air quality standards. C.R.S. § 25-7-109 authorizes the Commission to adopt rules that are consistent with state policy regarding air pollution and with federal recommendations and requirements. C.R.S. § 25-7-109(5) requires the Commission to promulgate rules setting conditions and time limitations for periods of startup, shutdown or malfunction or other conditions which justify temporary relief from controls. Additional authority for these revisions is set forth in §, 25-7-106 and 25-7-109, C.R.S.
Purpose
Revisions to Section II.E., regarding upset conditions and malfunctions, were made to clarify the process by which a source must identify an upset or malfunction. The Division has changed the term upset to malfunction for consistency with EPA policy.
In addition, the provision was revised to clarify that an affirmative defense is available to claims for violation of the Commissions' regulations for civil penalties in enforcement actions regarding excess emissions arising from upset conditions and malfunctions. The Commission does not interpret this to mean that every upset should be reported by the Division to EPA as a violation. The affirmative defense is not available to a claim of violation of these regulations in the context of claims for injunctive relief. Sudden and unavoidable upset conditions and malfunctions caused by circumstances beyond the control of an owner or operator occur from time to time despite best efforts regarding planning, design and operational procedures. The upset conditions and malfunction provision recognizes this fact. An affirmative defense may be available to shield a source from civil penalty liability if the owner or operator meets the requirements of the rule. For purposes of II.E.1.J. the Commission does not intend that modeling be done to show that Upsets or malfunctions have or have not caused a violation of the NAAQS.
Section II.E.4 indicates that the affirmative defense does not apply to federally promulgated standards (such as NSPS and NESHAPS requirements). The Commission does not intend this provision to modify those federally promulgated standards or any exemptions for malfunction events that may apply under those standards.
Additionally, the Commission recognizes and intends that certain source permits may not currently adequately accommodate malfunctions as this new rule provides. The Commission intends that the Division work with those specific sources to accommodate malfunctions into their permit limits, as appropriate.
Revisions to Definitions
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.
Basis
The Common Provisions Regulation is designed to assist the implementation of more substantive regulatory programs authorized under the Colorado Air Pollution Prevention and Control Act ("Act") including provisions of the State Implementation Plan addressed in §, 25-7-105(1)(a), C.R.S., emission control regulations addressed in §, 25-7-105(1)(b), C.R.S., prevention of significant deterioration requirements addressed in §, 25-7-105(1)(c), C.R.S., as well as other authorized programs under the Act. The current revisions have been promulgated in order to facilitate this goal.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, C.R.S. § 25-7-105(1)(a) authorizes Colorado's Air Quality Control Commission ("Commission") to adopt rules necessary to implement the Act, and to adopt and revise comprehensive state implementation plans to assure attainment and maintenance of national ambient air quality standards. C.R.S. § 25-7-109 authorizes the Commission to adopt rules that are consistent with state policy regarding air pollution and with federal recommendations and requirements. C.R.S.§ 25-7-106(1)(a) authorizes the Commission to adopt definitions of air pollution. Additional authority for these revisions is set forth in §, 25-7-106 and 25-7-109, C.R.S.
Purpose
Revisions to definitions found in Section I.G. were made to be consistent with federal definitions. Specifically, the Commission herein revises the definition of "negligibly reactive volatile organic compound," or NRVOC, and "volatile organic compound," or VOC, set forth in the Common Provisions Regulation to be consistent with the federal definitions found in the Code of Federal Regulations, Title 40, Part 51, § 51.100(s) (July 1, 2009).
Specifically, the Commission adds the following compounds to the definition of "negligibly reactive volatile organic compounds":
(1)1,1,1, 2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300)
Propylene carbonate
Dimethyl carbonate
The Commission adds clarification to the NRVOC definition by adding the common name or chemical structure of currently listed NRVOCs.
The Commission adds clarification to the VOC definition by adding the test methodology references used to determine VOC and NRVOC contents.
Additionally, any identified typographical, grammatical and formatting errors are proposed to be made.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.
Basis
The Common Provisions Regulation is designed to assist the implementation of more substantive regulatory programs authorized under the Colorado Air Pollution Prevention and Control Act ("Act") including provisions of the State Implementation Plan (SIP) addressed in C.R.S. § 25-7-105(1)(a), emission control regulations addressed in C.R.S. § 25-7-105(1)(b), prevention of significant deterioration requirements addressed in C.R.S. § 25-7-105(1)(c), regulations as may be necessary and proper for the orderly and effective administration of construction permits and renewable operating permits addressed in C.R.S. § 25-7-114.4(1), as well as other authorized programs under the Act. The current revisions have been promulgated in order to facilitate this goal.
The revisions were proposed by the Air Pollution Control Division based on EPA's GHG Tailoring Rule. On June 3, 2010, EPA promulgated the "Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule". 75 Federal Register 31514 (June 3, 2010). EPA's GHG Tailoring Rule was designed to tailor the applicability criteria that determine which stationary sources and modification projects become subject to permitting requirements for greenhouse gases (GHGs) under the Prevention of Significant Deterioration (PSD) and Title V Permitting Programs of the Clean Air Act (CAA).
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, C.R.S. § 25-7-105(1)(a) authorizes the Commission to adopt rules necessary to implement the Act, and to adopt and revise comprehensive state implementation plans to assure attainment and maintenance of national ambient air quality standards. C.R.S. § 25-7-109 authorizes the Commission to adopt rules that are consistent with state policy regarding air pollution and with federal recommendations and requirements. C.R.S. § 25-7-109(2) authorizes the Commission to regulate oxides of carbon, oxides of nitrogen and other chemicals, which encompasses the pollutant GHG. Additionally, Colorado is authorized to regulate the pollutant GHG under PSD and Title V in C.R.S. §§ 25-7-103 (1.5), 25-7-114(3), 25-7-114.3, and 25-7-201. Additional authority for these revisions is set forth in §§ 25-7-106 and 25-7-109, and 25-7-114 C.R.S.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4), C.R.S. for new and revised regulations. In order to maintain consistency between state regulations and federally enforceable regulations contained in the SIP, the Commission intends these revisions be adopted into the SIP.
Purpose
The Air Quality Control Commission has adopted revisions throughout the Common Provisions Regulation to address GHG regulation in Colorado.
Common Provisions Proposed Revisions:
The revisions to the Common Provisions as approved by the Commission are summarized:
Revise Applicability section to be consistent with the incorporation by reference section found in Regulation Number 3, Part A, Section I.A. (Section I.A.)
Add GHG and CO2e to list of acronyms (Section I.F.)
Revise definitions of Greenhouse Gas & Carbon Dioxide Equivalent (Section I.G.)
Additionally, the Division proposes revisions to make typographical, grammatical and formatting changes, as necessary.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4) and (12.5), C.R.S. for new and revised regulations
Basis
The Air Quality Control Commission ("AQCC") adopted these revisions to address EPA's June 12, 2015 State Implementation Plans ["SIPs"]: Response to Petition for Rulemaking; Restatement and Update of EPA's Startup, Shutdown and Malfunction ("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 Fed. Reg. 33840 ("SSM SIP Call"). EPA's SSM SIP Call, relied in part on Nat'l Res. Def. Council ("NRDC") v. EPA, 749 F. 3d 1055, 1062 (D.C. Cir. 2014). Additionally, several administrative revisions were made in order to ensure consistency with federal requirements and provide clarity for affected sources.
Specific Statutory Authority
The statutory authority for these revisions is set forth in the Colorado Air Pollution Prevention and Control Act, C.R.S. § 25-7-101, et. seq. Specifically, C.R.S. § 25-7-105(1)(a) authorizes the Commission to adopt rules necessary to implement the Clean Air Act ("CAA"), and to adopt and revise comprehensive State Implementation Plans ("SIPs") to assure attainment and maintenance of National Ambient Air Quality Standards ("NAAQS"). Additionally, C.R.S. § 25-7-109(5) requires the Commission to promulgate rules setting conditions and time limitations for periods of startup, shutdown and malfunction ("SSM") or other conditions which justify temporary relief from controls. C.R.S. § 25-7-109 authorizes the Commission to adopt rules that are consistent with state policy regarding air pollution and with federal recommendations and requirements. Additional authority of the Commission to adopt these revisions can be found in C.R.S. §, 25-7-106, which grants the Commission maximum flexibility in developing an effective air quality control program. Lastly, C.R.S. § 25-7-115 addresses state enforcement of violations that occur during SSM events.
Purpose
EPA's June 12, 2015 SSM SIP Call identified a number of states with SIP-approved affirmative defenses for excess emissions during SSM events. With respect to Colorado, the SSM SIP Call found Sections II.E. and II.J. to be substantially inadequate and it established a November 22, 2016 deadline for Colorado to submit corrective SIP revisions.
EPA's final rule differed from the February 22, 2013 proposal (78 Fed. Reg. 12460), made in response to a petition for rulemaking filed by the Sierra Club concerning the treatment of excess emissions in state rules during periods of SSM. In that proposal, EPA proposed to partially grant/deny the Sierra Club's petition regarding the SSM provisions in SIPs. With respect to Colorado, EPA proposed that the Section II.J. was inadequate and that Section II.E. was adequate. 78 Fed. Reg. 12529.
On May 13, 2013, the Division submitted comments supporting EPA's proposed finding of adequacy for Section II.E. and opposing EPA's proposed finding of inadequacy for Section II.J. The Division's opposition to this finding of inadequacy was based in part on the recognition that Sections II.E. and II.J. were agreed upon during a December 15, 2006 rulemaking that incorporated EPA's most recent SSM guidance and resulted in a consensus between the Division, EPA Region 8, environmental groups and industry. EPA approved Sections II.E. and II.J. for incorporation into Colorado's SIP.
Subsequent to the February 22, 2013 proposal, the United States District Court for the District of Colombia invalidated an affirmative defense provision contained in the 2010 National Emission Standards for Hazardous Air Pollutants (NESHAP) from the Portland Cement Manufacturing Industry, holding that EPA does not have authority under the CAA to adopt affirmative defense provisions that alter the federal courts' authority to impose penalties. See NRDC v. EPA. 749 F. 3d at 1055. The court reasoned the federal CAA gives the courts exclusive authority to determine and impose appropriate penalties for violations under the federal CAA, and EPA's adoption of affirmative defense provisions impermissibly intruded upon this authority. Notably, the D.C. Circuit in the NRDC decision clarified that it was not confronting the question of whether affirmative defense provisions in state implementation plans are appropriate.
Based on EPA's revised interpretation of the CAA stemming from the court's decision in NRDC v. EPA,the SSM SIP Call maintained that both Sections II.E. and II.J. interfered with the intended enforcement structure of the CAA, through which parties may seek to bring enforcement actions for violations of SIP emission limits. 80 Fed. Reg. 33970. The SSM SIP Call afforded states broad discretion concerning how to revise inadequate SIP provisions. 80 Fed. Reg. 33844. Additionally, the SSM SIP Call clarified that, existing inadequate SIP provisions would remain in effect until such time as EPA evaluated and acted upon a state's SIP submission. 80 Fed. Reg. 33849.
Thus, in order to comply with the SSM SIP Call, the Commission revised Sections II.E. and II.J. by adding Sections II.E.4. and II.J.4. to clarify that the affirmative defenses are not available in federal court proceedings unless the court, in considering the penalty factors in Section 113 of the CAA and exercising its discretion to assess civil penalties, decides to recognize or consider such affirmative defense or decides to take into consideration some or all of the factors described in Sections II.E. and II.J. The Commission added this reference to CAA Section 113 to clarify that the Commission's proposed revisions complement, rather than contradict, the requirements of CAA Section 113 because a federal court can, in its discretion, consider an affirmative defense or the factors contained in Sections II.E. and II.J. in conjunction with the factors described in CAA Section 113. The Commission also added Sections II.E.6. and II.J.7. to indicate nothing in Sections II.E. and II.J, precludes the use of alternative emission limitations expressed as work-practice based limits or standards set forth in a permit that serve as a continuous limitation during periods of SSM. Lastly, the Commission included language at the beginning of Sections II.E. and II.J. to indicate that the proposed revisions do not take effect until such time as EPA approves the language for incorporation into Colorado's SIP.
In revising Sections II.E. and II.J. as described in the preceding paragraph, the Commission acknowledged that, as of November 19, 2015, several lawsuits challenging the validity of the SSM SIP Call were pending. Given the legal uncertainty surrounding the SSM SIP Call, the Commission opted to postpone submitting these revisions until November 2016 (the deadline for SIP submissions outlined in the SSM SIP Call is November 22, 2016), so that Colorado's submittal would be considered at the same time as other state SIP submittals.
The Commission determined, after considering the statutory directives of the Air Pollution Prevention and Control Act, along with the positions set forth in the stakeholder process and associated rulemaking proceeding, the revisions being proposed in Sections II.E.4. and II.J.4. are the most balanced and appropriate approach for Colorado. The proposed language accurately responds to the SSM SIP Call while being narrowly tailored so as to not make changes beyond those required by the NRDC court's holding.
The proposed revisions upheld many of the tenets of the December 15, 2006 consensus rulemaking that originally inserted Sections II.E. and II.J. into the Common Provisions Regulation, including the requirements that sources notify the Division of excess emissions that occur during SSM and undertake all reasonably possible steps to minimize the amount and duration of excess emissions during SSM as well as their impacts on ambient air quality. No other rules of the Commission include these notification requirements.
In addition to the revisions to Sections II.E. and II.J., the following administrative revisions were made to Section I.G. in order to ensure consistency with federal requirements and provide clarity for affected sources: definitions were added for "Responsible Official," "Designated Representative," "PM2.5" and "Direct PM2.5 Emissions"; the incorporation date for the definition of "Carbon Dioxide Equivalent" was updated; several compounds were added to the list of Negligibly Reactive Volatile Organic Compounds ("NRVOCs") based on EPA's determination that these compounds make a negligible contribution to tropospheric ozone formation.
Further, these revisions will include any typographical, grammatical and formatting errors throughout the regulation.
Revisions to Common Provisions Regulation, Section III.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act §§ 25-7-110 and 25-7-110.5, C.R.S. ("the Act").
Basis
During the 2020 legislative session, Colorado's General Assembly adopted HB 20-1143 (Concerning additional public health protections regarding alleged environmental violations, and, in connection therewith, raising the maximum fines for air quality and water quality violations), revising § 25-7-122, C.R.S. HB 20-1143 increased the maximum civil penalty for most air violations to $47,357 per day for each day of the violation. It directs the Commission to "annually adjust the amount of the maximum civil penalty based on the percentage change in the United States Department of Labor's Bureau of Labor Statistics Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers, or its successor index."
The Commission adopted revisions to Common Provisions Regulation, Section III. Specifically, the Commission adopted revisions to increase the maximum civil penalty from $47,357 to $49,020 per day for each day of the violation.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, § 25-7-122 requires the Commission to annually adjust the maximum civil penalty amount.
Purpose
The Commission adopted revisions to Common Provisions, Section III. to comply with the requirement in § 25-7-122 to annually adjust the maximum civil penalty for most air violations based on the percentage change in the Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers (CPI). The annual adjustment is based on the percentage by which the CPI for July of the current year exceeds the CPI for July of the previous year.
The new maximum penalty effective January 1, 2022 was determined as follows:
Percentage change in the CPI from July 2020 to July 2021 = 3.512% = ((285.268-275.589)/275.589) x 1003.512% = 0.03512
Change in maximum penalty amount = $1,663 = $47,357 x 0.03512
New maximum penalty effective January 1, 2022 = $49,020 = $47,357 + $1,663
The Commission did not change the maximum civil penalty for violations of § 25-7-114.1 (Air Pollutant Emission Notices). Additionally, the Commission did not change the maximum civil penalty for the gasoline dispensing facility violations described in § 25-7-122(1)(f)(g).
The revisions also correct any typographical, grammatical, and formatting errors found throughout the regulation.
This Statement of Basis, Specific Statutory Authority, and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103, C.R.S., the Colorado Air Pollution Prevention and Control Act §§ 25-7-110 and 25-7-110.5, C.R.S., and the Air Quality Control Commission's (Commission) Procedural Rules, 5 Code Colo. Reg. § 1001-1.
Basis
In 2015, EPA published the SSM SIP Call (State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's Startup, Shutdown and Malfunction (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. June 12, 2015. 80 Fed. Reg. 33840) finding that Colorado, among other states, included provisions in the state implementation plan (SIP) that impermissibly provided for affirmative defenses from continuous compliance with applicable emission limitations. The Commission adopted revisions to Sections II.E. and II.J. to address the concerns over federal court authority in 2015. However, the revisions did not fully remove from Colorado's SIP the affirmative defense provisions. EPA's SSM SIP Call has undergone legal challenge since 2015 and the federal administration is again interpreting the federal Clean Air Act (CAA) to prohibit automatic exemptions from otherwise applicable emission limitations, affirmative defense provisions operating to limit a court's jurisdiction or discretion, and limitations on court or EPA jurisdiction to determine what monetary penalties are appropriate in the event of enforcement for violation of a SIP provision. EPA interprets the enforcement structure of the CAA to preclude any affirmative defense provisions that would operate to limit a federal court's jurisdiction or discretion to determine the appropriate remedy in an enforcement action.
EPA also interprets the CAA to require that emission limitations must apply continuously and cannot contain exemptions, conditional or otherwise. However, EPA also interprets the CAA to allow states to include in SIPs alternative emission limitations expressed as work-practice based limits or standards during periods of SSM. Therefore, the Commission adopted revisions to Sections II.E. and II.J. to remove the affirmative defense provisions from the SIP and retain the provisions on a state only basis.
During the 2020 legislative session, Colorado's General Assembly adopted HB 20-1143 (Concerning additional public health protections regarding alleged environmental violations, and, in connection therewith, raising the maximum fines for air quality and water quality violations), revising § 25-7-122, C.R.S. HB 20-1143 increased the maximum civil penalty for most air violations to $47,357 per day for each day of the violation. It directs the Commission to "annually adjust the amount of the maximum civil penalty based on the percentage change in the United States Department of Labor's Bureau of Labor Statistics Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers, or its successor index." In 2021, the Commission adopted revisions to Section III. to increase the maximum civil penalty per day for each day of the violation. In this rulemaking, the Commission adopted the annual increase as directed in § 25-7-122.
Specific Statutory Authority
The statutory authority for these revisions is set forth in the Colorado Air Pollution Prevention and Control Act, C.R.S. § 25-7-101, et. seq. Specifically, Section 25-7-105(1)(a) authorizes the Commission to adopt rules necessary to implement the Clean Air Act, and to adopt and revise comprehensive State Implementation Plans to assure attainment and maintenance of National Ambient Air Quality Standards. Section 25-7-109(5) requires the Commission to promulgate rules setting conditions and time limitations for periods of startup, shutdown and malfunction (SSM) or other conditions which justify temporary relief from controls. Section 25-7-109 authorizes the Commission to adopt rules that are consistent with state policy regarding air pollution and with federal recommendations and requirements. Section 25-7-106 grants the Commission maximum flexibility in developing an effective air quality control program. Section 25-7-115 addresses state enforcement of violations that occur during SSM events. Section 25-7-122 requires the Commission to annually adjust the maximum civil penalty amount.
Purpose
The Commission is withdrawing the 2016 SIP revisions to sections II.E. and II.J. of the Common Provisions and is delaying the effective date of this change to June 1, 2024 to provide time for the Division to work with all interested stakeholders to establish alternative emission limits that would apply during startup, shutdown or malfunction events.
The Commission adopted revisions to Sections II.E. and II.J. to address EPA's SSM SIP Call and remove the affirmative defense provisions from the SIP while retaining the provisions on a state only basis. The state only affirmative defense is not binding on EPA or a federal court, although a federal court and EPA may exercise discretion to consider the affirmative defense factors. Retention of the affirmative defense provisions on a state only basis also does not preclude the use of alternative emission limitations expressed as work practices in a source's permit to serve as a continuous limitation during periods of startup, shutdown, or malfunction. The Commission expects that the Division will have ongoing, future discussions with sources, source categories, industry trade representatives, and other interested stakeholders concerning the development of conditions and time limitations for periods of start-up, shutdown, and malfunction, as needed. Discussions with stakeholders should consider, among other things, approaches to minimize emissions during SSM periods through the application of practicable process controls, work practices, time limitations, and/or other measures as may be appropriate. To give the Division time to begin these discussions while still providing sources some protection under the affirmative defense, the Commission is withdrawing the 2016 SIP revisions to sections II.E. and II.J. of the Common Provisions and is delaying the effective date of this change to June 1, 2024.
The Commission adopted revisions Section III. to comply with the requirement in § 25-7-122 to annually adjust the maximum civil penalty for most air violations based on the percentage change in the Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers (CPI). The annual adjustment is based on the percentage by which the CPI for July of the current year exceeds the CPI for July of the previous year.
The new maximum penalty effective February 14, 2023, was determined as follows:
Percentage change in the CPI from July 2021 to July 2022 = 8.224% = ((308.728-285.268)/285.268) = 0.08224
Change in maximum penalty amount = $4,031 = $49,020 x 0.08224
New maximum penalty effective February 14, 2023, = $53,051 = $49,020 + $4,031
The revisions also correct any typographical, grammatical, and formatting errors found throughout the regulation.
Incorporation by Reference
Section 24-4-103 (12.5) of the State Administrative Procedure Act allows the Commission to incorporate by reference federal regulations. The criteria of Section 24-4-103(12.5) are met by including specific information and making the regulations available because repeating the full text of each of the federal regulations incorporated would be unduly cumbersome and inexpedient. To fully comply with these criteria, the Commission includes reference dates to rules and reference methods incorporated in the Common Provisions, Section I.G.
Additional Considerations
The revisions to the Common Provisions concerning the civil penalty and affirmative defenses do not exceed or differ from the requirements of the federal act or rules. Therefore, § 25-7-110.5(5)(a) does not apply.
Findings of Fact
To the extent that § 25-7-110.8, C.R.S., requirements apply to this rulemaking, and after considering all the information in the record, the Commission hereby makes the determination that:
Revisions to Common Provisions Regulation, Section III.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act § 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act §§ 25-7-110 and 25-7-110.5, C.R.S. ("the Act").
Basis
During the 2020 legislative session, Colorado's General Assembly adopted HB 20-1143 (Concerning additional public health protections regarding alleged environmental violations, and, in connection therewith, raising the maximum fines for air quality and water quality violations), revising § 25-7-122, C.R.S. HB 20-1143 increased the maximum civil penalty for most air violations to $47,357 per day for each day of the violation. It directs the Commission to "annually adjust the amount of the maximum civil penalty based on the percentage change in the United States Department of Labor's Bureau of Labor Statistics Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers, or its successor index."
The Commission adopted revisions to Common Provisions Regulation, Section III. Specifically, the Commission adopted revisions to increase the maximum civil penalty from $53,051 to $55,554 per day for each day of the violation.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, § 25-7-122 requires the Commission to annually adjust the maximum civil penalty amount.
Purpose
The Commission adopted revisions to Common Provisions, Section III to comply with the requirement in § 25-7-122 to annually adjust the maximum civil penalty for most air violations based on the percentage change in the Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers (CPI). The annual adjustment is based on the percentage by which the CPI for July of the current year exceeds the CPI for July of the previous year.
The new maximum penalty effective January 1, 2024 was determined as follows:
Percentage change in the CPI from July 2022 to July 2023 = 4.719% = ((323.298-308.728)/308.728) x 100
Change in maximum penalty amount = $2,503
New maximum penalty effective January 1, 2024 = $55,554 = $53,051 + $2,503
The revisions also correct any typographical, grammatical, and formatting errors found throughout the regulation.
Revisions to Common Provisions Regulation, Section III.
The statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act § 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act §§ 25-7-110 and 25-7-110.5, C.R.S. ("the Act").
Basis
During the 2020 legislative session, Colorado's General Assembly adopted HB 20-1143 (Concerning additional public health protections regarding alleged environmental violations, and, in connection therewith, raising the maximum fines for air quality and water quality violations). It directs the Commission to "annually adjust the amount of the maximum civil penalty based on the percentage change in the United States Department of Labor's Bureau of Labor Statistics Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers, or its successor index."
The Commission adopted revisions to Common Provisions Regulation, Section III. Specifically, the Commission adopted revisions to increase the maximum civil penalty from $55,554 to $56,606 per day for each day of the violation.
Specific Statutory Authority
The Colorado Air Pollution Prevention and Control Act, § 25-7-122 requires the Commission to annually adjust the maximum civil penalty amount.
Purpose
The Commission adopted revisions to Common Provisions, Section III to comply with the requirement in § 25-7-122 to annually adjust the maximum civil penalty for most air violations based on the percentage change in the Consumer Price Index for Denver-Aurora-Lakewood for all items and all urban consumers (CPI). The annual adjustment is based on the percentage by which the CPI for July of the current year exceeds the CPI for July of the previous year.
The new maximum penalty effective January 1, 2025 was determined as follows:
The percentage change in the CPI from July 2023 to July 2024 = 1.893% = ((329.418-323.298)/323.298) x 100
The change in maximum penalty amount = $1,052
The new maximum penalty effective January 1, 2025 = $56,606 = $55,554 + $1,052
The revisions also correct any typographical, grammatical, and formatting errors found throughout the regulation.
5 CCR 1001-2-V