Rocky Mountain Clean Air Action
 
I . 

fle> 

~~;~\j	 ,

i 

BEFORE THE AIR QUALITY CONTROL COMMISSION 

STATE OF COLORADO 

IN 11ffi MAlTER OF PROPOSED REVISIONS TO COMMON PROVISIONS 

REGULATION REGARDING UPSET PROVISIONS 

PRELIMINARY PREHEARING STATEMENT OF 

ROCKY MOUNTAIN CLEAN AIR ACI10N, ENVIRONMENTAL INTEGRITY 

PROJECT, ST. VRAIN VALLEY COMMUNITY WATCHDOGS, MOTHERS 

AGAINST BURNING TIRES, AND FRIENDS OF THE ST. VRAIN RIVER 

VALLEY 

Pursuant to Colorado Air Quality Control Commission regulations, Rocky 

Mountain Clean Air Actio~ the Environmental Integrity Project, St. Vrain Valley 

Community Watchdogs, Mothers Against Burning Tires, and Friends ofthe S1. Vrain 

River Valley hereby submit the following preliminary prehearing statement in the matter 

regarding proposed revisions to the Common Provision Regulation Regarding Upset 

Provisions. 

TABLE OF CONTENTS 

EXE.CUTIVE SU'MMARY _•••••••• 2 

STATEMENT OF FACTUAL AND LEGAL ISSUES AND THE POSmON 

BEING TA.KEN ON EACH ~_ _ 3 

1.	 The Current Upset Provision is Contrary to the Clean Air Act 3 

2.	 The Current Upset Provision Threatens Air Quality and Human Health 

in Colo.rado _ 4 

3.	 Option 1 Complies With the Clean Air Act and is a Reasonable 

Compromise Among .All Stakeh.olders 6 

4.	 Option 2 Does not Comply with the CIeaD Air Act and Will be Rejected 

by the EPA and I...ead to • SIP CaII __ _ 7 

LIST OF ISSUES TO BE RESOLVED BY TIlE COMMISSION 8 

EXIDBITS TO BE INTRODUCED AT TIlE HEARING 8 

WITNESSES _. _ _ ••_ _.__• ••.• 8 

I 
EXECUTIVE SUMMARY 

The existing upset provision in the Colorado Common Provisions is contrary to 

the Clean Air Act ("CAN') and has placed Colorado's air quality at risk. At its heart, the 

current upset provision is a loophole that allows National Ambient Air Quality Standards 

("NAAQS"), Prevention ofSignificant Deterioration ("PSD") increments, and other state 

and federal requirements to be violated. It allows polluters to violate emission limits 

established in permits and the Colorado State bnplementation Plan ("SIP"), limits that 

have been set with the explicit pwpose ofprotecting NAAQS, PSD increments, and other 

important air quality requirements. 

Unfortunately, this loophole has widely abused. Polluters in Colorado have 

claimed hundreds ofupsets just in the last five years, releasing everything from excessive 

amounts of dioxins, one ofthe most toxic chemicals known, to volatile organic 

compounds ("VOCs"), which are precursors to ozone pollution. The current upset 

provision in the Colorado Common Provisions strips the state, citizens, and the U.S. 

Environmental Protection Agency ("EPA") oftheir ability to enforce the Clean Air Act 

("CAA") and places an undue-and illegal-burden upon the state, citizens, and the EPA 

to prove that unhealthy air pollution is not the result ofan upset condition. 

Upsets should not occur in the first place. Planning, proper permitting, 

maintenance, and upgrades should prevent unavoidable breakdowns or other 

malfunctions from occurring at sources of air pollution. If an upset should occur, the 

proper avenue for addressing such a situation is to provide for enforcement discretion, not 

a wholesale exemption to clean air laws. Even an upset condition may threaten NAAQS 

and other clean air requirements, and the state, EPA, and citizens must be able to enforce 

these requirements. The CWTeD.t loophole prevents such enforcement. 

In December of2005, Rocky Mountain Clean Air Action petitioned the EPA to 

require the current upsets provision to be revised to ensure consistency with the CAA. 

Since then, Rocky Mountain Clean Air Action, representing its member and other 

community organizations, has worked closely with the Air Pollution Control Division 

and other stakeholders to address this very important issue and craft a rule that is 

amenable for all parties, but most importantly achieves the clean air we need. 

Rocky Mountain Clean Air Action, the Environmental Integrity Project, St Vrain 

Valley Community Watchdogs, Mothers Against Burning Tires, and Friends ofthe St. 

Vrain River Valley support Option 1, as proposed by the Air Pollution Control Division, 

with only one minor modification. Option I was developed after numerous stakeholder 

meetings and is based on the input ofall stakeholders. It continues to provide an 

affirmative defense in the event ofmalftmctions with regards to civil penalties, while 

leaving open the right for enforcers to seek injunctive relief against harmful air pollution. 

Option 2 suffers from many flaws and, in the end, fails to fully comply with the CAA. 

2
 
STATEMENT OF FACTUAL AND LEGAL ISSUES AND TIlE POSmON
 

BEING TAKEN ON EACH
 

1. The Current Upset Provision is Contrary to the Clean Air Act 

The current upset provisions enumerated in the Colorado Common Provisions 

Regulation. 5 CCR 1001-2 § 11(E), which has been incorporated into the Colorado State 

Implementation Plan ("SIP"), is contrary to the CAA. 

To begin with, nothing in the CAA provides for the automatic exemption of 

compliance during upset conditions, malfunctions, or any similar event. The word "upset 

condition" is specifically found nowhere in the CAA or its 1990 Amendments. In fact, in 

relation to meeting certain air quality standards, such as NAAQS and PSD, the law is 

clear that SIPs shall ensure absolute compliance. See 42 U.S.C. § 7407(a); 42 USC § 

7410(a)(1). Absolute compliance is not only reasonable, but necessary to ensure the 

goals and purposes ofthe CAA are fully met as Congress intended. 

For example, the purpose ofPSD is, among other things: 

[T]o protect public health and welfare from any actual or potential adverse effect 

which in the Administrator's judgment may reasonably be anticipate to occur 

from air pollution or from exposures to pollutants in other media, which 

pollutants originate as emissions to the ambient air), notwithstanding attainment 

and maintenance ofall national ambient air quality standards[.] 

42 U.S.C. § 7470(1). The current provision for upset conditions automatically allows 

sources ofair pollution to avoid "protection ofpublic health and welfare," contrary to the 

CAA, as well as the rights ofthe general public. The upset conditions exemption thus 

fails to ensure compliance with the CAA by allowing an automatic exemption in relation 

to compliance with. among other things, PSD. 

In 1978, EPA adopted an excess emissions policy which considers !II periods of 

excess emissions to be violations ofthe CAA. In subsequent EPA policy statements, 

CAA interpretations, guidance documents, and administrative rules and orders, EPA bas 

consistently and clearly reaffirmed that position. See EL 1, Mich. Dem't ofEnvtl. 

Quality v. Browner, 230 F.3d 181, l83 (6th Cir. 2(00) (citing 42 Fed. Reg. 21,472 (Apr. 

27, 1977»; also EL 2, Memorandum from Eric Shaeffer, Dir., Office ofRegulatory 

Enforcement, and John S. Seitz, Dir., Office ofAir Quality Planning and Standards, to 

Reg'l Adm'rs, Regions I-X (Dec. S, 2(01); EL 3, Memorandum from Steven A. Herman, 

Assistant Adm'r for Enforcement and Compliance Assurance, to Reg'l Adm'rs, Regions 

I-X (Sept. 20, 1999); Ex. 4, Memorandum from Kathleen M. Bennett, Assistant Adm'r 

for Air Noise, and Radiation, to Reg'l Adm'rs, Regions I-X (Sept. 29, 1982). 

EPA has also stated that automatic exemptions will not be allowed. See, Ex. 4. 

An affirmative defense may be permitted only with respect to penalties. not to injunctive 

relief, and only when no single source or small group ofsources has the potential to cause 

3
 
exceedance ofNAAQS or PSD requirements and when there is no violation offederally 

promulgated performance standard or emission limitation. In those cases, a state director 

must exercise his or her enforcement discretion and cannot avoid that case-by-case 

obligation by allowing an automatic exemption. 

EPA's policy ofidentifying all excess emissions as CAA violations and its 

disallowance of automatic exemptions is consistent with the CAA. SIPs protect ambientbased standards. See, Ex. 5, Approval and Promulgation ofState Implementation Plans; 

Michigan, 63 Fed. Reg. 8573, 8575 (Feb. 20, 1998). Emissions above the allowable 

limits may cause or contribute to violations ofthe NAAQS and are therefore illegal and 

inexcusable. Id. EPA has determined that ifthere are circumstances preventing sources 

from complying with the SIP during upset conditions and/or breakdowns, then the State 

must address these problems in the underlying roles applicable to those particular sources 

and "not through overarching excess emission provisions." Id. (emphasis added). As the 

EPA has plainly stated: 

The CAA does not allow for automatic exemptions from compliance with 

annlicable SIP emission limits during periods ofstart-un. shutdown. malfunction 

or upsets....To the extent that a malfunction provision, or any provision giving 

substantial discretion to the ~te agency broadly excuses sources from 

compliance with emission limitations dwing periods ofmalfunction or the like, i! 

is the Agency's J)Osition that it should not be mmroved as part ofthe federally 

approved SIP. 

. See, EL 6, In the Matter ofMotiva Enterprises. LLC, Petition TI-2oo2-05 (September 24, 

2004), at 17 (emphasis added). 

Upset conditions, or malfunctions, typically result from equipment failure or 

improper maintenance and as such. can result in excess emissions. As the Colorado 

Regulation implies, breakdowns are synonymous with upset conditions. EPA has 

specifically stated that it "has a fundamental responsibility under the Clean Air Act to 

ensure that SIPs provide for attainment and maintenance ofthe NAAQS and protection of 

PSD increments. Thus. a provision that would undennine the fundamental requirement 

of attainment and maintenance ofthe NAAQS or any other requirement ofthe Clean Air 

Act," is illegal. See, EL 3. Pursuant to Section 110 ofthe CAA, the EPA may not 

approve a SIP revision if''the revision would interfere with any applicable requirement 

concerning attainment and reasonable further progress, or any other applicable 

requirement ofthis chapter." Id. 

2.	 The Current Upset Provision Threatens Air Quality and Human Health 

inColondo 

Making matters worse is that the current provision for upset conditions bas 

threatened and continues to place air quality and public health at risk. We have actually 

gone to great lengths to discuss the effects ofupsets on air quality in Colorado, even 

4
 
--------------------- - ----- --- - ---

preparing and presenting a power point presentation during the stakeholder process. See, 

Ex. 7. 1 

Data obtained from the Air Pollution Control Division show that there have been 

over 2,000 upsets since 1999. See, Ex. 8. Exhibit 8 shows the number of upsets reported 

between 1999 and June of2006 by some ofthe larger stationary SOW"CeS in Colorado. 

According to the Air Pollution Control Division. however, this spreadsheet does not 

display every upset that has been reported since 1999. Based on this spreadsheet, an 

average ofover 285 upsets are reported on an annual basis. The shear magnitude of 

reported upsets strongly indicates that air quality has been and continues to be placed at 

risk. However, the specific details ofthese reported upsets clearly shows that clean air 

and public health have been threatened. 

For example, the CEMEX cement plant near Lyons, Colorado, has reported upsets 

related to dioxin emissions. See, EL 9. Dioxins are an exceptionally toxic group of 

compounds that accumulate in the environment. Emitting dioxins above permitted limits 

certainly places nearby communities at great risk. 

Furthermore, based on our review ofinformation filed by the top five upset 

polluters (i.e., the top five companies reporting the most upsets between 1999 and June 

2006), excessive amounts of hydrogen sulfide, sulfur dioxide ("S(h"), carbon monoxide 

("CO"), VOCs, and nitrogen oxides ("NOx"), have been released into the air.2 See, Ex. 

lOA-10E. These pollutants have been emitted above permitted levels. This of serious 

concern given that permit limits, especially with regards to major sources subject to PSD 

requirements, are established to protect NAAQS and PSD increments, both of which are 

meant to protect human health. 

lbroughout the stakeholder process, industry parties have complained that there is 

no evidence linking upsets to violations ofNAAQS, PSD increments, or other CAA 

requirements. This concern is misplaced for several reasons. 

To begin with, the purpose ifthe CAA, as well as Colorado air quality 

regulations, is to prevent violations ofthe NAAQS, PSD increments, and other CAA 

requirements. It is absurd that industry stakeholders are, in essence, arguing that we 

should wait for violations ofNAAQS and other CAA requirements to occur before taking 

action. 

I Industry parties have complained that some of.the data presented in this power point may not be accurate. 

Rocky Mountain Clean Air Actioo derived all facts and in this presentation from data on file with 

the Colorado Air PoUution Control Division. which is in turn based on information submitted by the 

sources. Thus, it appears to represent the best available infonnatioo. To the extent information may not be 

accurate, it is incumbent upon industry parties to remedy this by submitting accurate and reliable data 

regarding their emissions. To the best ofour knowledge, industry bas yet to correct the data they have 

submitted to the Air Pollution Control Division. 

2The top five upset polJuters in CoIOl'8do and the number ofupsets reported between 1999 and JWle of 

2006 are: Holcim Portland Plant (Florence), 380; Tri-Stae Generation (Craig), 333; Suncor Refinery 

(Denver) 205; BP Wa1teDberg (Amora), 191; and Public Service Company Arapahoe (Denver), 157. 

5
 
Second, the state ofColorado lacks a sufficient system of ambient air monitors to 

detect potential NAAQS violations in the event ofupsets at sources throughout the state. 

For example, while Tn-State Generation's coal burning power plant near Craig in Moffat 

County has reported upsets related to sulfur dioxide emissions (see. Ex. lOA), there are 

no ambient sulfur dioxide monitors located within Moffat County. In fact, there are only 

two ambient sulfur dioxide monitors in the entire state ofColorado, both ofwhich are 

located in the Denver metro area. In light ofobvious gaps in Colorado's ambient air 

monitoring system, it simply cannot be asserted with any certainty that upsets have not 

led to or contributed to violations ofthe NAAQS, PSD increments, or other CAA 

requirements. 

FinalJy, even with existing monitoring, it does appear that upsets have contributed 

to violations ofthe NAAQS. For example, between 1999 and June of2006, the BP 

Wattenberg natural gas plant and the Suncor Denver Refinery reported upsets related to 

VOC emissions in the Denver metro area between March and September. See, EL 10D 

sod 10E. Many ofthese upsets were related to visible emissions from flares, an 

indication ofinefficient combustion and excessive vee emissions. And these upsets are 

just from two facilities that emit VOCs in the Denver metro area. 

As this Commission is well aware, the Denver metro area violated the 8-hour 

ozone NAAQS between the years 2001-2003, and has since exceeded the 8-hour ozone 

NAAQS on numerous occasions since. The Denver metro area is again on the verge of 

violating the 8-hour ozone NAAQS due to excessive ozone pollution this past summer. 

Ozone pollution in the Denver metro area is linked to VOC emissions. In light ofthis, it 

does appear that upsets are contributing to excessive VOC emissions, and there are strong 

indications that upsets are contributing to excessive ozone pollution in the Denver metro 

area. Clearly, upsets are threatening maintenance ofNAAQS in the Denver metro area. 

3.	 Option 1 Complies With the Clean Air Ad and is a Reasonable 

Comprombe Among All Stakeholders 

Option 1, which is the result ofnumerous stakeholder meetings and is based on 

the input of all parties, is the best approach to both complying with the CAA and 

protecting clean air and community health in Colorado. The Option specifically states 

that the affirmative defense does not apply with. regards to injunctive relief and makes 

clear the circumstances that must be met to avail oneselfofthe defense. The parties 

support Option 1 and urge this Commission to do the same. 

We submit that only one minor modification be made to Option 1. With regards 

to reporting requirements under Il.E.2, the provision be modified to state that written 

quarterly notification be submitted at the beginning ofthe quarter following the upset. 

As currently stated. this reporting requirement does not state specifically during which 

quarter written notification must be submitted. 

6
 
4.	 Option 2 Does not Comply with the Clean Air Act and Will be Rejected 

by the EPA and Lead to a SIP Can 

Option 2 is the product of industry parties and, despite numerous stakeholder 

meetings over the last several months, was cobbled together at the 11 tb hour. The 

proposal is a reflection ofthe hurried nature ofindustry's attempt to craft an alternative 

proposal and in the end fails to remedy the deficiencies in the Colorado SIP. The 

proposal is, unfortunately, riddled with vague language and in the end fails to meet the 

requirements of the CAA. Our concerns are specifically enumerated as follows: 

•	 Our overall concern with Option 2 is that it provides an affirmative defense to 

owners or operators with regards to civil penalties even in the event that 

NAAQS, PSD increments, or other federal requirements could be or are 

violated. Nowhere in Option 2 is it stated or implied that an affirmative 

defense is not provided for when a single source or small group ofsources has 

the potential to cause exceedances ofNAAQS or PSD requirements and when 

there is no violation offederally promulgated perfonnance standard or 

emission limitation. lbis is contrary to the CAA; 

•	 1.0.1: This provision states that poor maintenance occurs when the owner or 

operator fails to conduct maintenance activities that could "be reasonably and 

appropriately expected of the source." The phrase "reasonably and 

appropriately expected" is vague and appears to require a lower level of 

maintenance responsibilities than should be required to protect NAAQS, PSD 

increments, and other federal emission limits and standards that cannot be 

exceeded. 

•	 1.0.2: This provision implies that an upset condition can be unpredictable, 

even when it may be under the control ofthe owner or operator. 

•	 1.0.3: This provision requires owners or operators to take "sufficient action" 

to minimiz.e emissions. Under the CAA, all possible steps must be taken to 

protect NAAQS, PSD increments, and other federal emission limits and 

standards that cannot be exceeded. This provision does not require that aU 

possible steps be taken to protect these standards. 

•	 1.0.4: This provision states that excessive emissions caused by an 

"operational parameter significantly differing from compliant operation" of 

the source shall not be an upset. lbis provision implies that in the event that 

operational parameters differ from compliant operation, but not necessarily 

differ significantly, an upset can be claimed. This provision explicitly allows 

for operational parameters that differ from compliant operation, which in tum 

indicates a potential for NAAQS, PSD increments, and other federal emission 

limits and standards to be exceeded. 

7 
•	 I.G.5: This provision is extremely vague and ultimately provides for an 

affirmative defense even in the event that an owner or operator could have 

prevented an upset condition. The provision uses extremely vague wording 

and states that "the condition may not be determined to constitute an upset 

condition" (emphasis added). The term "may" indicates that owners or 

operators may qualify for an affirmative defense even in the event that an 

owner or operator knew ofa need to implement action to prevent an upset 

condition. 

•	 ILE.I: 'This provision fails to require that written notification to the Division 

be submitted by any date certain. This requirement thus fails to require 

sufficient reporting to ensure the effectiveness and enforceability ofOption 2. 

•	 II.E.2: This provision adds a layer of complexity and confusion. lfa 

federally promulgated performance standard or emission limit has been 

promulgated taking into account potential emissions during upsets, then it is 

reasonable to assume that upsets, within this meaning, do not threaten 

NAAQS, PSD increments, or other federal requirements that cannot be 

exceeded. This provision also seems to imply a post-hoc interpretation to 

federally promulgated performance standards or emission limits. 

•	 II.E.3: While this provision makes clear that Option 2 does not preclude 

pursuit ofinjunctive relief, it relates only to the pursuit ofinjWlctive relief 

under Colorado law. By its plain language, this provision precludes injunctive 

relief under federa1law and as such, renders Option 2 wholly contrary to the 

CAA. 

We do not understand how, in light these deficiencies, the Colorado Attorney 

General's Office can possibly conclude that Option 2 complies with the CAA. While we 

highly respect the opinion ofthe Attorney General, in this particular instance, his opinion 

appears misguided with regards to Option 2. 

LIST OF ISSUES TO BE RESOLVED BY THE COMMISSION 

The Commission will need to resolve whether Option 1 or Option 2 should be 

adopted through this rulemaking. The Commission may also need to resolve issues 

related to the adequacy ofOption I. 

EXHIBITS TO BE INTRODUCED AT THE HEARING 

The parties do not expect to introduce additional exhibits at the hearing. 

WITNESSES 

The following witnesses will be called to testify at the December hearing with the 

time needed for testimony as noted: 

8
 
Jeremy Nichols, Director, Rocky Mountain Clean Air Action, 20 minutes;
 

Richard Cargill, Executive Director, S1. Vrain Valley Community Watchdogs,
 

10 minutes; .
 

Julie Smith, Mothers Against Burning Tires, 10 minutes;
 

Jane SheUenberger, St. Vrain Valley Community Watchdogs, 10 minutes;
 

Don Lutter, St. Vrain Valley Community Watchdogs, 10 minutes;
 

Respectfully submitted this 13h day ofNovember 

Je..6f'r"ti1'IJiI 

irector 

Rocky Mountain Clean Air Action 

LIST OF ExmBITS 

1.	 Mich. Dep't ofEnvtl. Quality v. Browner, 230 F.3d 181, 183 (6th Cir. 2000). 

2.	 Memorandum from Eric Shaeffer, Dir., Office of Regulatory Enforcement, and 

John S. Seitz, Dir., Office ofAir Quality Planning and Standards, to Reg') 

Adm'rs, Regions I·X (Dec. 5,2001). 

3.	 Memorandum from Steven A. Herman, Assistant Adm'r for Enforcement and 

Compliance Assurance, to Reg'l Adm'rs, Regions I-X (Sept. 20, 1999). 

4.	 Memorandum from Kathleen M. Bennett, Assistant Adm'r for Air Noise, and 

Radiation, to Reg'l Adm'rs, Regions I-X (Sept. 29, 1982). 

5.	 Approval and Promulgation of State Implementation Plans; Michigan, 63 Fed. 

Reg. 8573, 8575 (Feb. 20, 1998). 

6.	 In the Maner ofMoma Enterprises, UC, Petition 11-2002-05 (September 24, 

2004). 

7.	 Rocky Mountain Clean Air Action presentation, "The Upset Conditions 

Loophole." 

8.	 Air Pollution Control Division Spreadsheet ofReported Upsets 

9. CEMEX Upset Report Regarding Excessive Dioxin Emissions 

lOA·IOE. Summary Upset Reports for Top Five Upset Polluters in Colorado 

9
 
This is to certify that I have served by electronic mail and hand delivery this 

preliminary prehearing statement upon all parties identified below this 13th day of 

November 2006, addressed as follows: 

Air Quality Control Commission 

Colorado Department of Public Health and Envirorunent 

Theresa L. Martin 

EDO-AQCC-AS . 

4300 Cherry Creek South Drive 

Denver, Colorado 80246 

Air Pollution Control Division 

Garry Kaufinan 

APCD-Bl 

4300 Cherry Creek South Drive 

Denver, Colorado 80246 

Steve Brown, Attorney for the Commission 

Natural Resources Section 

Attorney Generals Office 

1525 Sherman Street, 5th Floor 

Denver, Colorado 80203 

Tom Ro~ Attorney for the Division 

Natural Resources Section 

Attorney Generals Office 

1525 Sherman Street, 5th Floor 

Denver, Colorado 80203 

I also certify that electronic copies ofthis prehearing statement have been sent via 

electronic mail to all parties to this rulemaking. 

1A~ re Nichols

10
 
n E r"< p;. '.' <I" It;: "', .~ "......." ':':'" IL'"
 

BEFORE THE AIR QUALITY CONTROL COMMISSION 

STATE OF COLORADO 

Alf( aup-t.! t . 

-~awlSStf'"

IN TIffi MATfER OF PROPOSED REVISIONS TO COMMON PROVISIONS 

REGULATION REGARDING UPSET PROVISIONS 

REBUTfAL STATEMENT OF 

ROCKY MOUNTAIN CLEAN AIRACTION, ENVIRONMENTAL INTEGRITY 

PROJECf, ST. VRAIN VALLEY COMMUNITY WATCHDOGS, MOTHERS 

AGAINST BURNING TIRES, AND FRIENDS OF THE ST. VRAIN RIVER 

VALLEY 

Pursuant to Colorado Air Quality Control Commission regulations, Rocky 

Mountain Clean Air Action, the Environmental Integrity Project, St Vrain Valley 

Cormmmity Watchdogs, Mothers Against Bmning Tires, and Friends ofthe St Vrain 

River Valley hereby submit the following preliminary prehearing statement in the matter 

regarding proposed revisions to the Common Provision Regulation Regarding Upset 

ProvisioDS. . 

REBUlTAL OF AIR POLLUTION CONTROL DIVISION, PLATTE RIVER
 

POWER AUTHORITY, TRI-STATE GENERATION AND TRANSMISSION
 

ASSOCIATION INC. PUBLIC SERVICE COMPANY OF COLORADO DOING
 

BUSINESS AS XCEL ENERGY, COLORADO UTILITIES COALITION,
 

COLORADO ASSOCIATION OF COMMERCE AND INDUSTRY, COLORADO
 

PETROLEUM ASSOCIATION, ROCKY MOUNTAIN STEEL MILLS, AND
 

COLORADO READY MIXED CONCRETE ASSOCIATION AND THE
 

COLORADO ROCK PRODUCTS ASSOCIATION PREllEARlNG
 

STATEMENTS
 

L Air Pollution Control Division Preheariog Statement 

The:: Air Pollulion Control Division ("APCD") claims in their prchearing 

statement that there is "no evidence supporting the responsible argument that its 

application ofthe existing rule has contributed to air pollution." APeD hehearing 

Statement at Section 4. The APCD goes on to assert that it is ''very careful in it~

application and lw..'), in many cuses, rejcctoo the claim ofan upset." Id. Unfortunately, 

the APeD's arguments are unfounded and [l~)t supported by information located in their 

own records. 

It is tiiffii;uH., j rnot impossible, to believe thai. the violation ofemission limits set 

forth in permits Of other Colorado State Implementation Plan (''SIP'') provisions does not 

provide "evidence supporting the n"~'qlOnsjbJr.argument" that th,·. existing upset rule has 
contributed to air pollution. The existing upset conditions exemption does just that, it 

allows pollution limits to be exceeded, even when those limits have been established to 

ensure maintenance ofNational Ambient Air Quality Standards ('~AAQS"), Prevention 

ofSignificant Deterioration ("PSDj increments, and other requirements under the Clean 

Air Act emplaced to protect human health. 

Is the APCD truly arguing that violations ofpermit limits or other SIP 

requirements do not threaten clean air or hmnan health, or contribute to air pollution in 

Colorado? In this case, it unfortunately appears so as the current upset conditions 

exemption shields sucn violations from enforcement. The APCD's argument on this 

issue is not simply unfounded, but is firmly detached from reality. 

The APCD further asserts that it bas been "very careful" in its application ofthe 

current upset conditions exemption. Ifonly this claim were true. Our review ofrecords 

on file with the APCD show that ups~ are not carefully reviewed by the APCD and not 

verified to detennine whether they truly qualify as upsets. For example, in our review of 

records related to the CEMEX Lyons cement plant in Boulder County, we found records 

ofover one hundred upsets reported by CEMEX, but very few records ofAPCD reviews 

ofthose reports and the claimed upsets. Either the APeD is not reviewing upset reports 

to verify compliance with the existing upset conditions exemption, or it is failing to 

maintain records related to these reviews. In any event, the shortcomings ofthe existing 

role are apparent. 

.The APCD's reluctance to admit the downfalls in the existing upset conditions 

exemption.is troubling and seems only to bolsters om concerns over the exemption. This 

is especially apparent as the APCD itself admits in its Prehearing Statement that the 

existing upset conditions provision is contrary to the Clean Air Act. This any 

APCD assertion that it has properly applied the existing upset conditions exemption, or 

that air quality is not threatened by the cmrent exemption. 

2. Other Prebearing Statements 

The Prehearing Statements ofthe Platte River Power Authority, Tri-state 

Generation and Transmission Association Inc. Public Service Company ofColorado 

doing business as Xce] energy, Colorado Utilities Coalition, Colorado Association of 

Commerce and Industry, Colorado Petroleum Association, Rocky Mountain Steel Mills, 

and Colorado Ready Mixed Concrete Association and the Colorado Rock Products 

Association (collectively referred to as "Industry Parties") focus on the issue ofwhether 

Option 1 or Option 2 should be adopted. The Industry Parties assert that Option 2 should 

be adopted for various reasons. 

Unfortunately, none ofthe Industry Parties have pointed to any evidence showing 

that Option 1 is contrary to the Clean Air Act. Furthermore, none ofthe Industry Parties 

have pre:)ented evidence showing that Option 2 is in accordance with the Clean Air Act. 

This two-fold lack ofsupporting evidence for their positions renders their arguments 

tenuous at best. 

2
 
The Industry Parties also variously assert that this rulemaking is based solely on 

meeting U.S. Environmental Protection Agency ("EPA") guidance, as ifthe rolemaking 

is proceeding only to meet the whims ofarbitrary EPA policies. Certainly we agree that 

EPA guidance is at times a moving target, but we submit that EPA guidance is not solely 

driving this rulemaking. The statutory requirements ofthe Clean Air Act are flISt and 

foremost the basis for revising the upset conditions exemption and the basis for support 

of Option 1. As we explained in our Prehearing Statement, in relation to meeting certain 

air quality standards, such as NAAQS and PSD, the law is clear that SIPs shall ensme 

absolute compliance. See 42 USC § 7407(a); 42 USC § 741O(a)(1); 42 USC § 7473(a). 

Certainly we agree that this Commission has the discretion to craft a rule in any 

format it chooses, so long as it meets Clean Air Act requirements. We are not wed to 

Option 1, but given the failure ofOption 2 to meet Clean Air Act requirements and 

protect air quality and human health, it is the best option presented before us. 

Respectfully submitted this 28lh day ofNovember 

3
 
This is to certify that I have served by electronic mail and hand delivery this 

preliminary prehearing statement upon all parties identified below this 28th day of 

November 2006. addressed as follows: 

Air Quality Control Commission
 

Colorado Department ofPublic Health and Environment
 

Theresa L. Martin
 

EDO-AQCC-AS
 

4300 Cherry Creek South Drive
 

Denver, Colorado 80246
 

Air Pollution Control Division
 

Garry K8ufinan
 

APCD-Bl
 

4300 Cherry Creek South Drive
 

Denver, Colmado 80246
 

. Steve Brown, Attorney for the Commission 

Natural Resources Section 

Attomey Genemls Office 

1525 Shennan Street, 5th Floor 

Denver, Colorado 80203 

Tom Roan. Attorney for the Division
 

Natural Resources Section
 

Attorney Generals Office
 

1525 Sherman Street, 5th Floor
 

Denver, Colomdo 80203
 

I also certify that electronic copies ofthis prehearing statement have been sent via 

electronic mail to all parties to this rolemaking.

./,/"\ I d/ . 

. . -'/ ' y;r 

I

I' ./ /- / /I '. 

fl~4<

4