# Rocky Mountain Clean Air ActionI . 

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# , i 

### BEFORE THE AIR QUALITY CONTROL COMMISSION STATE OF COLORADO

IN 11ffiMAlTER 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 OFTHE 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 proposedrevisions to 

### the Common Provision Regulation Regarding Upset Provisions.



### TABLE OFCONTENTS
EXE.CUTIVE SU'MMARY

_ •••••••• 2 

### STATEMENT OF FACTUAL AND LEGAL ISSUES 

### AND THE POSmON 

### BEING TA.KEN ON EACH**~_** 

### _ 3 1. The CurrentUpset Provision is 

### Contrary to the Clean 

### AirAct 3 2. The CurrentUpset Provision Threatens Air Quality 

### and Human Health in Colo.rado

_ 4 

### 3. Option 1 Complies With the Clean AirAct and is 

### a Reasonable Compromise Among 

### .All Stakeh.olders 6 

### 4. Option 2 

### Does not Complywith 

### the CIeaD 

### AirAct and Will be 

### Rejected by 

### the EPA 

### and I...ead 

### to • SIPCaII

__ _ 7 

### LIST OF ISSUESTO 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 ofupsetsjust in the last five years, releasing everything from excessive amounts ofdioxins, 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 CleanAir Act ("CAA") and places an undue-and illegal-burden uponthe state, citizens, 

### and the EPA to prove

### that unhealthy air pollution is notthe result ofan upset condition. Upsets should not occurin the 

### first place. Planning, proper permitting, maintenance, and upgrades should prevent unavoidable breakdowns or other malfunctions from occurring at sources ofair pollution. 

### Ifan upset should occur, the proper avenue for 

### addressing such a situation isto provide for enforcement discretion, not
a wholesale exemption to cleanair 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 memberand 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 cleanair we need. Rocky Mountain Clean 

### Air Action, the Environmental 

### Integrity Project, 

### St Vrain Valley Community Watchdogs, Mothers Against Burning Tires, 

### and Friends of the St. Vrain River Valley support Option 1, as proposed by the AirPollution Control Division, with only one minor modification. Option I 

### was developed after numerous stakeholder meetings and is based onthe input of

### all stakeholders. It continues 

### to provide an affirmative defense 

### in the event ofmalftmctions with

### regards to civil penalties, while leaving openthe right for enforcers to seek injunctive reliefagainst harmful 

### airpollution. 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. 

### TheCurrent 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, orany similar event. The word "upset condition" is specifically found nowhere in the CAA or its 1990 Amendments. 

### In fact, in relation to meeting certain 

### airquality standards, such as NAAQS and PSD, the law is clearthat 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.

Forexample, thepurpose ofPSD is, among otherthings:
[T]o protectpublic health and welfare from any actual or potential adverse effect which in the Administrator'sjudgment 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 of

### all national ambient air quality standards[.]

42 U.S.C. §7470(1). The current provision for upset conditions automatically allows
sources ofairpollution to avoid "protection ofpublic health and welfare," contrary

### to the CAA, as well as the rights ofthe general public. The 

### upset conditions exemptionthus fails to ensure compliance withthe CAA by allowing an automatic exemptioninrelation 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 thatposition. 

### 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 StevenA. Herman, Assistant Adm'rfor 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 

### AirNoise, 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

3exceedance 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 ofautomatic 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 orcontributeto violations ofthe NAAQS and are therefore illegal and inexcusable. Id. EPAhas 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 "notthrough 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
orupsets

....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 orthe 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 of Motiva 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 

### inexcess emissions. As 

### the Colorado Regulation implies, breakdowns are synonymous with upset conditions. EPA 

### has specifically stated that it "has a fundamental responsibility under the CleanAir Act to ensure that SIPs provide for attainment and maintenance ofthe NAAQS 

### and protection of PSD increments. Thus. a provision that would undenninethe fundamental requirement ofattainment 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 CurrentUpset Provision Threatens Air 

### Quality and 

### Human Health inColondo Making matters worse isthat 

### the current provision for upset conditions 

### bas threatened 

### and continues to place air quality andpublic health at risk. We have actually gone to great lengths to discuss the effects ofupsets on 

### airquality 

### 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 ofupsets reported between 1999 and June of2006 by some ofthe larger stationary SOW"CeS 

### in Colorado. According to the AirPollution 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 ofhydrogen 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 ofserious concern given that permit limits, 

### especially with 

### regards to 

### major sources subject to PSD requirements, are established to protect NAAQS and PSD increments, both ofwhich are meant to protect human health. lbroughoutthe stakeholderprocess, industry 

### parties have complained that there is
no evidence linking upsets to 

### violations ofNAAQS, PSD increments, orother 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 AirPoUution Control Division. which is in turn based oninformation submitted bythe sources. Thus, it appears to represent the best available infonnatioo. Tothe extent information may not be accurate, it is incumbent upon industry parties to remedy this by submitting accurate and reliable data regarding their emissions. Tothe best ofourknowledge, industry bas yet to correct the data they have submitted tothe AirPollution 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.

5Second, the state ofColorado lacks a sufficient system ofambient airmonitors 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 sulfurdioxide 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 Denvermetro

### 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 of

### 2006, the 

### BP Wattenberg 

### natural gas plant and the SuncorDenver Refinery reported upsets related to VOC emissions 

### in the Denver metro area betweenMarchand September. See, 

### EL 10D sod 10E. Manyof

### these 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 Denvermetro area.


### As this Commission is well aware, the Denvermetro 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-hourozone NAAQS due 

### to excessive ozone pollution

### this past summer. Ozonepollution 

### 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 toexcessive ozone pollution 

### in the Denvermetro area. Clearly, upsets arethreatening maintenance ofNAAQS 

### inthe 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 stakeholdermeetings 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 healthinColorado. The Option specifically states that the affirmative defense does not apply with. regards to injunctive relief

### and makes clearthe circumstancesthatmust be met to avail oneselfofthe defense. The parties support Option 1 and urge this Commissionto 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 submittedat 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 AirAct and Will be Rejected by 

### the EPA and Lead to a SIPCan 

### Option 2 is the product ofindustry parties and, despite numerous stakeholder meetings over the last several months, was cobbled together at 

### the 11tb 

### 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 ofthe 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 

### inthe event that NAAQS, PSD increments, orother 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 whenthe owner or operator fails to conduct maintenance activities that could "be 

### reasonably and appropriately expected ofthe 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 itmay 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. lbisprovision implies that 

### inthe event that operational parameters differ from compliant operation, but notnecessarily 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 ofcomplexity and confusion. lfa federally promulgated performance standard or emission limithas 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, orother 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 clearthat Option 2 does notpreclude pursuit ofinjunctive relief, itrelates only to the pursuit ofinjWlctive relief under Colorado law. By its plain language, this provision precludes injunctive reliefunder 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 withregards to Option 2.

LIST OF ISSUESTO BE RESOLVED BY THE COMMISSION The Commission will need to resolvewhether 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:



### 8Jeremy 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 13 h 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 ofRegulatory Enforcement, and John S. Seitz, Dir., Office of

### Air 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 KathleenM. Bennett, Assistant Adm'r for 

### AirNoise, and Radiation, to Reg'l Adm'rs, Regions 

### I-X (Sept. 29, 1982). 

### 5. Approval and PromulgationofState Implementation Plans; Michigan, 63 Fed. Reg. 8573, 8575 (Feb. 20, 1998). 

### 6. In the Maner of Moma 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



### 9This 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 November2006, addressed as follows:

Air Quality Control Commission Colorado Department ofPublic 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, 

### 5 th 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.

re Nichols

# 1A~

10n 

## E r"< p;. '.' <I" It;: "',**.~** "

....... " ':':'" IL'" 

### BEFORETHE AIR QUALITYCONTROL COMMISSION STATE OF COLORADO Alf( aup-t.! t .**-~awlSStf'"** IN 

### TIffi MATfER OF PROPOSEDREVISIONS TO COMMONPROVISIONS REGULATION REGARDINGUPSETPROVISIONS



### REBUTfAL STATEMENT OF ROCKYMOUNTAIN CLEAN AIRACTION, ENVIRONMENTAL INTEGRITY PROJECf, ST. VRAINVALLEY COMMUNITYWATCHDOGS, MOTHERS AGAINST BURNING TIRES,AND FRIENDS 

### OFTHE 

### ST. VRAIN RIVER 

### VALLEY

Pursuant

### to Colorado Air

### Quality Control Commissionregulations, 

### Rocky Mountain Clean

### Air Action, the Environmental Integrity Project, St Vrain Valley CormmmityWatchdogs, Mothers 

### Against BmningTires, and Friends of

### the St Vrain River Valley hereby submit 

### the following preliminary prehearing statement 

### in the matter regarding proposed revisions 

### to the Common ProvisionRegulation RegardingUpset 

### ProvisioDS.

.

REBUlTAL OF AIRPOLLUTION CONTROLDIVISION, PLATTE RIVER POWERAUTHORITY, 

### TRI-STATE GENERATIONAND TRANSMISSION ASSOCIATION INC. PUBLIC 

### SERVICE COMPANY OF COLORADO DOING BUSINESS AS XCELENERGY, COLORADO UTILITIES COALITION, COLORADO ASSOCIATION OFCOMMERCE AND 

### INDUSTRY, COLORADO PETROLEUM ASSOCIATION, ROCKY MOUNTAIN STEELMILLS,AND COLORADO READY MIXED CONCRETE ASSOCIATION AND THE COLORADO ROCK PRODUCTSASSOCIATION PREllEARlNG STATEMENTS
L 

### AirPollution ControlDivision 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 of

### the 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
ownrecords.
It is tiiffii;uH., j

# rnot impossible, to believe 

### thai. the violation of

### emissionlimits 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 hascontributed to airpollution. The existing upset conditions exemption doesjustthat, it allows pollution limitsto be exceeded, even whenthose limits have been established to ensuremaintenance ofNationalAmbient

### Air Quality Standards**('~AAQS"),** Prevention ofSignificantDeterioration ("PSDj increments, 

### andotherrequirements underthe Clean 

### Air Act emplaced

### toprotect human

### health.
Is 

### the APCD truly arguingthat violations ofpermit limits 

### or other SIP requirements do notthreatenclean airorhmnanhealth, orcontribute

### to airpollution

### in Colorado? 

### In this case, it unfortunately appears so as 

### the currentupset conditions exemption shields sucn violations from enforcement. The APCD's argument onthis issue 

### is not simplyunfounded, butis 

### firmly detached from reality.

The APCD further asserts 

### that it 

### bas been "verycareful" 

### inits applicationofthe currentupset conditions exemption. 

### Ifonly this claimweretrue. Our

### review ofrecords
onfile with

### theAPCD show

### that**ups~** are not carefully reviewed by the APCD and not verified 

### to 

### detennine whethertheytruly qualify as upsets. Forexample, 

### in our

### review of records related to the CEMEX Lyons cement plant 

### in Boulder County, we found records ofover one hundred upsets reported byCEMEX, but very few 

### records ofAPCD

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

### verifycompliancewith the existing upset conditions exemption, or 

### itisfailing to maintain records related 

### to these reviews. 

### In any event, the shortcomings ofthe existing role are apparent

.



### .TheAPCD's reluctance 

### to 

### admit the downfalls 

### inthe existing upset conditions exemption. is troubling and seems only to bolsters 

### omconcerns over

### the exemption. This is especially apparent asthe APCD 

### itselfadmits 

### in its

### Prehearing Statement that 

### the existing upset conditions provision is contrary

### to the Clean

### Air Act. This 

### any APCD assertion that it hasproperly applied 

### the existing upset conditions exemption, or that airquality is not

### threatened bythecmrentexemption.


### 2. OtherPrebearing Statements
The Prehearing Statements ofthe Platte RiverPower 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 ColoradoReady Mixed Concrete Association and the Colorado Rock Products Association (collectively referred to as 

### "Industry Parties") focus onthe 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 contrarytothe 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 atbest.

2The Industry Parties also variously assert that this rulemaking is based solely on meeting U.S. Environmental ProtectionAgency ("EPA") guidance, as 

### ifthe rolemaking is proceeding onlyto meet 

### the whims ofarbitrary EPA policies. Certainly we agree 

### that EPA guidance 

### is attimes a moving target, butwe submitthat EPA guidance isnot solely driving this rulemaking. The statutory requirements ofthe Clean Air Act are 

### flISt and foremost the basis for revising the upset conditions exemption andthe basis for support ofOption 1. 

### As we explained 

### in ourPrehearing Statement, in relation to meeting certain 

### air quality standards, such as NAAQS and PSD, the law is clear that SIPs shall ensme absolute compliance. See42 USC 

### § 7407(a); 42 USC 

### § 741O(a)(1); 42 USC 

### § 7473(a). Certainly we agree that this Commissionhas the discretion to craft a rule 

### in any format 

### it chooses, so longas

### it meets Clean 

### Air Actrequirements. We are not

### wed to Option 1, but given the failure ofOption 2 to meet Clean AirActrequirements and 

### protect air quality

### and human

### health, 

### it is the best optionpresented before us.

Respectfully 

### submitted this 28lh day ofNovember



### 3This is to 

### certify that I 

### have served by 

### electronic mail 

### and hand delivery this preliminary prehearing statement upon 

### all parties identified belowthis 28th 

### day of November 2006. 

### addressed as follows:



### Air Quality Control Commission Colorado DepartmentofPublic 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 SouthDrive 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 statementhave been sent via electronic 

### mailto 

### all parties 

### to thisrolemaking. 

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