UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 8 

999 18TH STREET- SUITE 300 

DENVER, CO 80202-2466 

Phone 800-227-8917 

http://www.epa.gov/region08 

CONCURRENCE COPY 

Ref: 8P-AR 

Margie Perkins, Director 

Air Pollution Control Division 

Department of Public Health and Environment 

4300 Cherry Creek Drive South 

Denver, CO 80246-1530 

Dear Margie: 

As you know, on December 22, 2005 we received a petition to issue a SIP call to require 

Colorado to revise aspects of its Common Provisions regulation related to upset conditions. The 

petitioners are Rocky Mountain Clean Air Action, Center for Native Ecosystems, and Jeremy 

Nichols. The petition alleges that Colorado's exemption for excess emissions during upsets is 

inconsistent with the Clean Air Act. 

We identified concerns with Colorado's upset rule in previous letters. Among other 

things, we said the following: 

"We believe that the existing upset rule does not conform to the Clean Air Act 

requirements to protect NAAQS and PSD increments and should be revised. 

Specifically, the existing upset rule allows an exemption from enforcement ('shall not be 

deemed to be in violation') for excess emissions that occur during certain defined 'upset 

conditions.' It is our interpretation that the Clean Air Act requires that all periods of 

excess emissions must be treated as violations and not exempted from enforcement." 

Please refer to the attached June 13,2001 letter from Richard Long to Margie Perkins for more 

information. 

We also worked extensively with your staff to try to craft a reasonable alternative to the 

existing upset rule. Ultimately, the Colorado Air Quality Control Commission (AQCC) did not 

change the rule. 

The petition brings this issue before us once again. The purpose of this letter is to inform 

you that we agree with the petitioners that Colorado's upset rule does not meet the requirements 

of the Clean Air Act and that changes to the rule are needed. We have consulted with members 

of your staff, and they have indicated a willingness to renew efforts to revise the upset provisions 
in the Common Provisions regulation, and related provisions in other regulations, and to do so on 

an expedited basis. 

Petitioners have indicated that their desire is to have the State revise the upset rule as 

quickly as possible and would be willing to allow time for the State to take action, if done 

expeditiously, to preempt an EPA SIP call action. In consideration ofthis, members of your staff 

said they will pursue a change to the upset rule before the AQCC at their June 15, 2005 meeting. 

We do not intend to initiate SIP call rulemaking at this time. However, if the AQCC does not 

expeditiously adopt changes to the upset rule that are consistent with the Clean Air Act, we 

intend to propose a SIP call using our notice and comment rulemaking authority 

In order to assist the State in its efforts, we have attached draft rule language that could 

form the basis for subsequent EPA approval as a SIP revision. This language is modeled after 

rule language for startup and shutdown emissions that currently exists in the Common Provisions 

regulation that we recently approved as a SIP revision. We have changed that rule language as 

needed to reflect factors that are specific to malfunctions, and as crafted, our draft language 

would be a separate section, just for malfunctions. In addition, we have identified related 

provisions in other rules that the State should change at the same time as the Common Provisions 

regulation. 

We appreciate the State's willingness to pursue this matter, and we hope that our joint 

efforts will achieve a solution that is satisfactory to the State, EPA, the petitioners, and other 

stakeholders. If you have any questions regarding this matter, please contact me at 

(303) 312-6005 or Mark Komp at (303) 312-6022. 

Sincerely,
 

Richard R. Long.
 

Director, Air and Radiation Program
 

Attachments 

cc:	 Douglas Lempke, Colorado AQCC 

Kirsten King, Colorado APCD 

Melanie Loyzim, Colorado APCD 
Attachment
 

Draft Rule Language
 

Malfunction Conditions
 

EPA Region 8's review of Colorado's regulations has identified the following areas where the 

State addresses upset provisions. We generally refer to upset conditions as malfunction 

conditions and use that convention here. 

COMMON PROVISIONS REGULATION 

1. DELETE THE DEFINITION OF "UPSET CONDITIONS." ADD THE FOLLOWING 

DEFINITION OF "MALFUNCTION": 

Malfunction means a sudden and unavoidable breakdown of process or control equipment. 

or 

Re-adopt the definition of "malfunction" that is currently in the EPA-approved SIP. 

2. REPLACE EXISTING SECTION H.E WITH THE FOLLOWING: 

II.E. Affirmative Defense Provision for Excess Emissions During Malfunctions 

II.E.I. An affirmative defense is provided to owners and operators for civil penalty actions for 

excess emissions during periods ofmalfunction. To establish the affirmative defense and to be 

relieved of a civil penalty in any action to enforce an applicable requirement, the owner or 

operator ofthe facility must meet the notification requirements of paragraph 2 in a timely manner 

and prove by a preponderance ofthe evidence that: 

II.E.l.a. The excess emissions were caused by a sudden, unavoidable breakdown oftechnology, 

beyond the control ofthe owner or operator; 

II.E.I.b. The excess emissions (a) did not stem from any activity or event that could have been 

foreseen and avoided, or planned for, and (b) could not have been avoided by better operation 

and maintenance practices; 

II.E.I.c. Repairs were made in an expeditious fashion when the operator knew or should have 

known that applicable emission limitations were being exceeded. Off-shift labor and overtime 

labor must have been utilized, to the extent practicable, to ensure that such repairs were made as 

expeditiously as practicable. 

II.E.l.d. The amount and duration ofthe excess emissions (including any bypass) were 

minimized to the maximum extent practicable during periods of such emissions; 

H.E.I.e. All possible steps were taken to minimize the impact of the excess emissions on ambient 

air quality; 
II.E.I.f. All emissions monitoring systems were kept in operation (if at all possible); 

II.E.I.g. The owner or operator's actions during the period of excess emissions were documented 

by properly signed, contemporaneous operating logs or other relevant evidence; 

II.E.I.h. The excess emissions were not part of a recurring pattern indicative of inadequate 

design, operation, or maintenance; and 

II.E.l.i. At all times, the facility was operated in a manner consistent with good practices for 

minimizing emissions. This subparagraph i. is intended solely to be a factor in 

determining whether an affirmative defense is available to an owner or operator, and 

shall not constitute an additional applicable requirert:lent. 

II.E.2. Notification: The owner or operator of the facility experiencing excess emissions during a 

malfunction shall notify the division verbally as soon as possible, but no later than two (2) hours 

after the start of the next working day, and shall submit written quarterly notification following 

the initial occurrence of the excess emissions. The notification shall address the criteria set forth 

in paragraph 1 above. 

II.E.3. The Affirmative Defense Provision contained in this section shall not be available to 

claims for injunctive relief. 

II.E.4. The Affirmative Defense Provision does not apply to State Implementation Plan 

provisions or other requirements that derive from new source performance standards or national 

emissions standards for hazardous air pollutants or any other federally enforceable performance 

standard or emission limit with an averaging time greater than twenty-four hours. In addition, an 

affirmative defense cannot be used by a single source or small group of sources where the excess 

emissions have the potential to cause an exceedance of the ambient air quality standards or 

Prevention of Significant Deterioration (PSD) increments. 

REGULATION NO.1 

1. REVISE REGULATION NO.1, SECTION IV.G.S, AS FOLLOWS: 

"Compliance with the reporting requirements of this Section IV.G. shall not relieve the owner or 

operator of the reporting requirements of Sections n.E and J of the Common Provisions 

Regulation concerning malfunctions and startups and shutdowns." 

REGULATION NO.3 

1. Revise Regulation No.3, section i.b.65., to eliminate the definition of "upset conditions" and 

substitute the definition of "malfunction." Change any use of the term "upset conditions" within 

Regulation No.3 to instead use the term "malfunction." 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ~,..},;"~. REGION 8 

999 18TH 

.<~,~:' STREET· SUITE 300 

'- ,_~. c'I;.' ", ., ,..,r. DENVER, CO 80202-2466 

Phone 800·227·8917 

http://www.epa.gOYlregion08 

Ref: 8P-/\f{ m:'G 'I 2 2006 

Robt:rt Rrady, Chair
 

Colorado Air Quality Control Commission
 

Coloradv D~pl. Public Health
 

and Environment
 

4300 Cherry Creek Drive South
 

Denver, CO 80246-1530
 

Dear COlllmissioner Brady: 

I am writing to urge the Colorado Air Quality Control Commission to adopt the rule 

language EPA helS suggested (Option I) as a replacement for Colorado's existing upset 

provisions. 111 our April 14, 2006 letter, EPA indicated that the existing rule j::; not adequilte and 

that the State would need to make changes to the existing regulation. Adoption of our suggested 

language will bring closure to this matter. Maintaining the status quo or adopting Ci\C)'s 

proposal (Option 2) will not. If you do not change the existing rule, EPA will have to take 

additional administrative actions· respond to the citizens' petition before LIS and in all likelihood 

issue a SIP call - which will merely prolong this matter. The same is true if you adopt the C;\C1 

proposal because that proposal does not meet requirements of the Cle.an Air Act and could not be 

approYcdby EPA. 

We empha:;izc that our suggested language is reasonable. It is nearly identical to the 

startup/shutdown language that sources in Colorado are already meeting and that industry 

supported hd<')rc this Commission. It provides sources with a reasonable path to relief from civil 

penalties, but <it the same time sets clear, specific, work practice standards to quallt'y for reliet'. 

These standards have been part of EPA' s vie\vs regarding excess emissions at least since 1977. I 

This cbrity. specificity, and consistency of expression will help sources meet the standards and 

hdp illlerestt:d parties avoid future arguments. 

Colorado's existing upset rule is very general and provides an outright exemption Ii-orn 

emission limits.? The rule does not protect the right to seek injunctive relief, docs not clearly 

I For cxarnpk. S\:I.: EPA '$ rulcmaking on excess emissions for the Bmker Hill Smelter, 42 FR 58l7), Novembc:r 8, 

1977. We provided a (;Opy of this and-other relevant EPA documents to Mr. Lempke on December I, 1ill6. For 

your convcnielll.:C, we are artaching a copy to this lener. 

! 111 [,:PA 's vie>y, any rule that provides an outright exemption from emission limits relied on l(J show utlainment Qr 

illllll)knnnce or l1ll:ct other Clean Air Act requirements is inconsistent withthe Clean Air Act. See EPA's September 

20. 1999 Iln:rnoranduJ1) entitled. "State Implementation Plans: Policy Regarding Excess Emissions [Juring 

M'llfunctions, St3rlUP, and Shutdown" We provided a copy of this and other relevant EPA uucumcnb to Mr 

Lempke on D-:cember I, 2006. 1\ /,0, see Michigan Department of Environmental Quality v, I3rown<:~ :DO f:3d 181 

\ 
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establish [he burden or proof. and does not specifically define elements sources must IT1Cl:l [0
 

UC!l10!1Slrate an UpSI:! has occurred.
 

Ci\t'!'s proposal only protects the right to seek injunctive relief "under Colorado law" 

weakens ur omits several necessary elements of an affirmative defense. and through the use of 

excessive \erbiage and unfamiliar terms, renders the meaning of various elements ambiguous or 

din1culi lu understand. Instead of engaging with EPA on language we suggested in April 2006. 

CACl largely ig.norcd our conc~rns and developed completely differ~nt rule language. 

During the course of numerous stakeholder meetings between May and Septcmber 2006, 

we explained our views. listened, and sought f1cxibility within EPA to address industry's most 

important concerns. Because our interpretations regarding upset provisions come from EPA 

guidance. we must consult wirh and gain concurrence from other EPA regions and Headquarters 

before we can agree to SIP language that differs from that endorsed by the guidance. :\ ncr 

considerable effort within EPA, in August 2006 we offered significant compromises to our April 

2006 rule language. In response to concerns expressed by CACI representative T\·1r. Sanderson 

and others, we agreed to the following changesJ

: . 

1. EI iIllination of language that Mr. Sanderson and others felt would precl lIdc use of the 

ul1irmativt' defense by many major sources. This language indicated the defense would not be 

available where a single source or small groups of sources have the potential to cause an 

i.:xceedancl: 01' the NAAQS or increments. We replaced this with the follo\ving requirement: the 

:source !TIu:;t show that at the time of the violation there wasn't an exceedance of the NAAQS that 

could be attributed to the source. This language is consistent with language EPA has approved in 

other stutes. 

:2. Elimination of language that would have restricted the affirmative defense to exccedanccs 

of'emissions limits with averaging times greater than 24 hours. Mr. Sanderson said that many 

new emission limits with 30-day averaging periods are extremely stringent. We substituted 

language that clarities that the affirmative defense does not apply to federal standards like the 

NSrS and NESHAPS (these either provide an exemption for upsets4 or are not intendcd to be 

subject to '-In t.:xemptlon) or to SIP or permit limits that were set with an expectation that the: 

limits \.vould be met even during upsets. For examplc, certain emission limits at Craig Station 

must be met even during upsets, and EPA has said that PSD .Best Available Control Technology 

limits apply at all times. 

(6'" Cil 2000), wh ieh upheld EPA's interpretation of the Clean Air At:l 

JOur agrccl11clll i~ prelill1inary because EPA must conduct notice and comment rulemaking bdore apprcwing SIP 

rev Isinn.'>. 

• The NSI'S unci NESHAI'S are technology-hased limits and are not set [0 comply with specific health aud 

~1l\irOIlITlCrllai-ba ..,ed ~tandard~ like the NAAQS and PSO Increments. for this reason, EPA has promulg.ated 

exemption, li'orll some NSPS and NESHAPS limits. By contrast, EPA has said it is inappropriate to provide ounghl 

exemptioll' frolll SIP limits because the purpose of such limits is to protect the NAAQS and increments. For 

exampk. SCc' lllll' 1999 excess emissions policyciled in fOotnole 2 above, 
·'
 

3 

3. Relax;\tion of the showings required by II.E. ].A, 13, and E by adding a reasonableness 

.standard,	 For example. now the owner/operator must show that all reasonably possible steps 

were taken to minimize the impact ofthc emissions, rather than all possible steps. 

4. 1:1 imination of the requirement that the owner/operator show that it used olT-shi nand 

overtime labor to repair malfunctioning equipment. Elimination orthe requirement that t;1C 

llWn<.:r!opcrator make expeditious repairs when it "should have known" that the emission limits 

were being exceeded 

We note thm many of these provisions to which Mr. Sanderson and others objected were 

identical to provisions in Colorado '5 startup/shutdown rule. We also nott that other areas have 

adopted excess emissions rules that are consistent with our 1999 excess emissions policy 

~tatcment und with the language we are suggesting. For example, we have attached a copy of 

Maril.:opa CountY's Rule 140, which EPA approved on August 27,2002 (67 FR 54957.) 

We fl.:el that our suggested changes are reasonable and would not significantly affect 

sources thm already employ good design, operation, and maintenance practices. For sources that 

Jon'l rollo\\' such practices, we're hopeful tbat this rule change would provide them greater 

incel1livcs 10 reduce their upsets and excess emissions. It is likely to spur creative solurions for 

prcvl.?nting up~ets

We do not think this change would open a flood of new citizens' suits, as some allege. 11 

certainly has not done sofaI' Colorado's startup and shutdown regulations in Colorado's 

Common I)royisions since they were revised several years ago. All enforcing entities, including 

citizens grollp~, have limited resources; we are confident all will focus their energies on the worst 

offenders, nOl sources that experience occasional upsets of limited duration. 

Oncc again, I urge you to adopt EPA's suggested language in order to bring closure to 

This matter. If you have any questions contact me at (303)312-6005 or iv1ark Komp of my staff at 

(303)3] 2-6022, Thank you for your consideration. 

~JY'r

/~ /(/7. 

. , .

:..... I'.LIJitt' (' 

Rlchar fZ. Long,jDlrec.t<lr i 

Air and ~#n Pro~ram/' ,-,/ 

cc:	 Margie I)erkins 

[)oug.las Lempke 

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