Colorado Utilities Coalition for Clean Air
 

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cue PRELIMINARY PREHEARING STATEMENT OF 11/10/06 

UPSETS RULEMAKING 

BEFORE THE AIR QUALITY CONTROL COMMISSION 

STATE OF COLORADO
 

PRELIMINARY PREHEARING STATEMENT OF 

PLATTE RNER POWER AUTHORITY 

TRl-STATE GENERATION AND TRANSMISSION ASSOCIATION INC. 

PUBLIC SERVICE COMPANY OF COLORADO doing business as XCEL ENERGY 

APPEARING INDIVIDUALLY. 

AND ALSO APPEARING AS MEMBERS OF THE 

COLORADO UTILITIES COALITION FOR CLEAN AIR 

IN THE MATTER OF THE PROPOSED REVISIONS TO COMMON PROVISIONS 

REGULATION REGARDING UPSET PROVISIONS 

The above-captioned entities. appearing individually and as members of the Colorado Utilities 

Coalition for Clean Air ("CUC"). by their undersigned attorneys. hereby submit this Prehearing 

Statement in this matter. This Preliminary Prehearing Statement is submitted through the CUC's 

undersigned attorneys pursuant to Section 1.5.5(5)(c) of the Procedural Rules of the Air Quality 

Control Commission ("Commission"). 

I. EXECUTIVE SUMMARY 

The CUC has participated in the stakeholder collaborative process sponsored by the Air 

Pollution Control Division (Division) and Commission. The stakeholder process was designed 

to work with the Environmental Protection Agency (EPA) and other interested parties to evaluate 

options for improving the rule in the context of EPA's concerns. The existing version of the 

Upset Condition Rule found in the Common Provisions Regulations has been in place for over 

30 years and during that period oftime, the air quality in Colorado has significantly improved, to 

a point of the elimination non-attaimnent areas. This has incurred notwithstanding significant 

population increases. To date, evidence has not been offered to demonstrate the Upset Provision 

threatens the national ambient air quality standards or provisions of the prevention of significant 

deterioration (PSD) program. 

The Commission has proposed two options for consideration. The CUC supports the adoption of 

"Option 2." The Division has stated that either option would accomplish its programmatic goals. 

Option 2 builds on and clarifies existing Division policies and offers the most straight-forward 

improvement. 

1111312006 

733518.1 
cue PRELIMINARY PREHEARING S1'ATEMENT 0'11110106 

UPSETS RULEMAKING 

II. STATEMENT OF FACTUAL AND LEGAL ISSUESIISSUES TO BE RESOLVED 

BY THE COMMISSION 

A. Whether the existing Upsets Provision is inconsistent with the Federal Clean Air Act? 

While EPA has issued non-regulatory guidance, it has not promulgated regulations consistence 

with its guidance memos. A series of guidance memos dating back to 1981 are similar but not 

always consistent and therefore the CUC believes that even if EPA's guidance had regulatory 

effect, Option 2 would be consistent with such guidance. 

Colorado has made great progress in the last 30 years to improve air quality with the current 

Upset Provision being in effect. There is no factual evidence that the administration of the Upset 

Provision by the Division nor judicial rulings concerning the interpretation of the Upset 

Provisions have served to interfere with achievement and maintenance of the national ambient 

air quality standards, nor with the provisions of the PSD program. 

B.	 Whether the Commission should make revisions to the current upset provision and if so, 

how to do so in the most clear, efficient, and easily understood manner which protects 

citizens against litigation and penalties for actions over which they have no control - - ­

that is, upset conditions? 

Section I.G. of the Common Provisions Regulation defines upset conditions as follows: 

"An unpredictable failure of air pollution control or process equipment which 

results in the violation of emission control regulations and which is not due to 

poor maintenance, improper or careless operations, or is otheIWise preventable 

through exercise of reasonable care." 

Thus, in order to qualify for any special treatment as an upset condition, the event must be 

unavoidable and outside the owner's control. It would be unfair to penalize or subject a source 

to litigation for instances that truly qualify as upset conditions. The Division's administrative 

practice is to closely scrutinize claims for upset conditions and to challenge those it deems 

unworthy. The Colorado statute has several provisions which authorize the state to go to court to 

stop behavior which, even though unavoidable, threatens public health, the environment or 

ambient air quality standards. Option 2 clarifies that such injunctive action can be taken. Thus, 

the existing statutory and regulatory scheme complies with the Federal Clean Air Act and as 

administered by the Division is protective of Colorado's air. 

2
 
cue PUUMINAItY PItEHEAlUNG STATEMENT OF 11/10/06 

UPSEnS RULEMAKING 

III.	 ALTERNATIVE REGULATORY LANGUAGE/ PROPOSED STATEMENT OF 

BASIS AND PURPOSE LANGUAGE 

The CUC asks the Commission to adopt Option 2 and thus. does not have alternative language to 

propose. The CUC reserves the right to offer alternative language after a review of the 

preheating statements of others. 

IV.	 ECONOMIC IMPACT ANALYSIS - PROCEDURAL RULE 1.S.5.(S)(c)(ix) 

Since the cue generally agrees with Option 2 as proposed by the Commission. it anticipates no 

revision to the final economic impact analysis. The CUS respectfully reserves the right to further 

evaluate this issue following review ofthe prehearing statement ofothers. 

VI.	 EXHIBITS 

The CUC does not have exhibits to offer as part of its preliminary prehearing statement. 

However, it reserves the right to offer rebuttal exhibits following the review of prehearing and 

rebuttal statements of other parties. 

VII.	 WITNESSES 

The undersigned will appear to make legal and policy arguments and to present factual 

infonnation relevant to the issues presented. 

VIII.	 TIME ALLOCATION AT THE HEARING 

The CUC respectfully requests 30 minutes of time for direct testimony and respectfully reserves 

the right to request additional time for rebuttal testimony following a review of the prehearing 

statement ofthe other parties. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

3 
cue PRELIMINARY PREHEARING STATEMENT OF 11/10/06 

UPSI!1'S RUU!IIAKING 

Respectfully submitted this 10,h day ofNovember, 2006. 

. Sand rson, #2402 

1775 S treet, Twenty-First Floor
 

Denver, Colorado 80203
 

Telephone: (303) 863-7500
 

Facsimile: (303) 595-3159
 

Email: jsanderson@rcalaw.com
 

ATTORNEYS FOR: 

PLATIE RIVER POWER AUTHORITY 

PUBLIC SERVICE COMPANY OF COLORADO doing 

business as XCEL ENERGY 

TRI-STATE GENERATION AND TRANSMISSION 

ASSOClATlON, INC. 

APPEARING INDIVIDUALLY AND AS MEMBERS OF 

THE COLORADO UTILITIES COALITION FOR 

CLEAN AIR 

4 
CERTIFICATE OF DELIVERY 

The undersigned certifies that on this 13th day ofNovember, 2006, a true and correct copy 

of the foregoing Preliminary Prebearing Statement was delivered via email and addressed as 

follows: 

NAME REPRESENTED BY/ADDRESS TELEPHONEIFAXIE-MAIL 

Air Quality Control Commission Theresa L. Martin 

EDo-AQCC-A5 

4300 Cherry Creek Drive South 

Denver, CO 80246 

Dena M. Wojtach 

Air Pollution Control Division 

APCD-Bl 

(303) 692·3100 

FAX: (303) 691·7702 

theresa.maJ1in!G)state.co.us 

(303) 692-3147 

FAX: (303) 691· 7702 

dena.woitach@state.co.us 

4300 Cheny Creek Drive South 

Denver, CO 80246 

Rocky Mountain Clean Air Action 

Environmental Integrity Project 

St. Vrain Valley Community 

Jeremy Nichols, Director 

1536 Wynkoop, Suite B501 

Denver, CO 80202 

(303) 454·3370 

FAX: (303) 572-0032 

rmcleanair(Q)gmail.com 

Watchdogs 

Mothers Against Burning Tires 

Friends ofthe St. Vrain River Valley 

ColoradO Petroleum Association 

(CPAP) 

Dennis L. ArCmann 

Jennifer L Morris 

Hogan & Hartson 

(720) 406-5374 

F~:(720)406.5301

darfmann@hhlaw.com 

1470 Walnut Street, Suite 200 

Boulder, CO 80302 

H. Stanley Dempsey, Jr. 

Colorado Petroleum Association 

1580 Lincoln Street, Suite 1125 

jImorris@hhlaw.com 

(303) 860-0099 

FAX: (303)860-0310 

staD@coloradopetroleumassociation.com 

Denver, CO 80203 

Rocky Mountain Steel Mills d/b/a! 

CF&I 

Eugene F. Megyesy, Jr. 

Dufford & Brown, P.c. 

1700 Broadway, Suite 2100 

Denver, CO 80290-2101 

(303) 861-8013 

FAX: (303) 832·3804 

emegyesy@duffordbro....'J1.com 
cue PIlEUIlINAIlY PREHEARJNG STATEMENT Of 11(10(06 

U.lSETlS RULEllAIQNG 

NAME REPRESENTED BY/ADDRESS TELEPHONEIFAXIE-MAIL 

Colorado Association ofCommerce 

and Industry (CACI) 

Dennis L. Arfmann 

Jennifer L. Morris 

Hogan & Hartson 

(720) 406-5374 

FAX: (720) 406-5301 

darfmann@hhlaw.com 

1470 Walnut Street, Suite 200 

Boulder, CO 80302 

Donald K. Shandy 

Ryan, Whaley & Coldiron PC 

900 Robinson Renaissance 

jlmorris@hhlaw.com 

(405) 228-2138 

FAX: (405) 239-6766 

dshandY@ryanwhaley.com 

119 North Robinson Avenue 

Oklahoma City, OK 73102 

Colorado Ready Mixed Concrete 

Association and 

The Colorado Rock Products 

Association 

Melissa I. Young 

6855 South Havana Street, Suite 540 

Centennial, CO 80112 

(303) 771-5290 

FAX: (303) 290·8008 

myoung@cma.cc 

and an original and 20 copies of the foregoing CUC Preliminary Prehearing Statement of 

11/13/06 Upsets Rulemaking was hand delivered to: 

Air Quality Control Commission
 

4300 Cherry Creek Drive South
 

Denver, CO 80246
 

and a "hard copy" was also delivered to: 

Theresa L. Martin
 

EDO-AQCC-A5
 

4300 Cherry Creek Drive South
 

Denver, CO 80246
 

Dena M. Wojtach
 

Air Pollution Control Division
 

APCD-Bl
 

4300 Cherry Creek Drive South
 

Denver, CO 80246
 

720952.1 

11113/2006 
cue REBUTTAL STATEMENT OF 11/28/06 

UPSETS RULEMAKING 

RECE~VE!)

I3EFORE THE AIR QUALITY CONTROL COMMISSION 

STATE OF COLORADO fWV 2,q 2~a8

AIROVAUD 

REBUTTAL STATEMENT OF 

PLATTE RIVER POWER AUTHORITY 

TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION £NC. 

PUBLIC SERVICE COMPANY OF COLORADO doing business as XCEL ENERGY 

APPEARING INDIVIDUALLY. 

AND ALSO APPEARING AS MEMBERS OF THE 

COLORADO UTILITIES COALITION FOR CLEAN AIR 

IN THE MATTER OF THE PROPOSED REVISIONS TO COMMON PROVISIONS 

REGULATION REGARDING UPSET PROVISIONS 

The above-captioned entities, appearing individually and as members of the Colorado Utilities 

Coalition tor Clean Air ("CUC"), by their undersigned attorneys, hereby submit this Prehearing 

Statement in this maHer. This Rebuttal Statement is submitted through the CUC's undersigned 

illtor:leys pursuant to the October 17, 2006 ORDER, as amended at the November 15, 2006 

PreheaTing Conference. 

A. EXECUTJVE SUMMARY 

The cue supports adoption of Option 2, notes that the Division and Attorney General's Office 

finds that it is consistent with the federal Ckan Air Act, and asks the Commission to adopt it. 

The CUC has coordinated with the members of the Colorado Association of Commerce and 

Industry ('CACI") during this stakeholder and rulemaking process and supports the views 

advanced in CACI's Rebuttal Statement and thus will not repeat any of those views in this cue 

Rebuttal Statement. The CUC reserves the right to address any of the CACI Rebuttal positions 

as part of the CUC's testimony during the rulemaking hearing. 

Certain statements and references in Prehearing Statement Exhibits of Rocky Mountain Clean 

Air Action, et. a!. ("RMC'AA") provide erroneou.i intonnation; these ~rrors were addressed in 

the Stakeholder Process, but, nevertheless continue to appear in the RMCAA's materials. These 

are dddressed below. 

B. REBUTTAL OF POSITIONS OF OTHER PARTIES 

The RMC AA Prehearing Statement attaches s-:\'eral eXhibits. The Stakeholder process that 

preceded the rulemaking engaged in discussion of some ofthese Exhibits and errors were clearly 

7.15]2(/ I 

11/:!H;200("\ 
cue REBUTTAL STATEMENT OF 11/28/06 

UPSETS RULEMAKING 

identified and discussed during presentations to the Stakeholders. Unfortunately, the RMCAA 

Exhibits remain unchanged. RMCAA's Exhibit 7 is a ,PowerPoint presentation. Slides list 

upsets for a 1999-2006 timeframe. A 61 day long upset is listed for Tri-State's Craig Unit 3. 

During the Stakeholder process, Tri-State reviewed the upset records of the Division and 

identified a record commencing on 10/27/04 and listed as a 61 day, 5 hour S02 upset at TriState's Craig Station Unit 3 as a typographical error. It appears that Division personnel 

inadvertently entered a "12" for a "\ 0" when entering the date on which the upset ended. As was 

pointed out during the Stakeholder process, this typographical error when corrected reflects a 5 

hour upset, not a 61 day upset. 

RMCAA's Exhibit lO(A) contains Tri-State's Craig Station's list of upsets called into the 

Division. If one reviews RMCAA's Exhibit 10(A), with the understanding that the Craig Unit I 

upgrades came online at the end of November 2003, and the Craig Unit 2 upgrades carne online 

in May of 2004, one concludes that each Unit has only had 3 or 4 short periods of upset in the 

entire period of time subsequent to installation of the upgrades. It is also pertinent to note that 

the Craig Units 1 and 2 upsets listed on RMCAA's Exhibit 10(A) prior to the installation of the 

upgrades were at a level consistent with the Consent Decree in effect at that time. In short, these 

data are not supportive ofRMCAA's argument. 

Finally, with regard to RMCAA's Exhibit 10(A), please note several comments concerning the 

Craig Unit 3 information: the 61 day typographical error has been addressed above. With respect 

to the other listed S02 related upset events, one must recall this is a PSD permitted facility 

equipped with a lime-spray dryer that typically achieves a greater than a 80% reduction of S02 

from low sulfur coal. The PSD permit imposes a daily average S02 emission limit that may not 

be exceeded more than one day per month; those events are nevertheless reported. Thus, simply 

looking at a listing of events is insufficient to ascertain the compliance status of a facility. As 

staff of the Division routinely do, one must compare the reported events with the requirements in 

effect. It must also be noted that it is not credible to assert that the occurrence of the two to six 

short term upset events per year threaten the National Ambient Air Quality Standards 

("NAAQS"). 

If anything, the data discussed above support a finding that the current upsets provision 

adequately protects the NAAQS and PSD increments. 

C. REBUTTAL TESTIMONY 

The undersigned will provide rebuttal testimony for the CUe. The cue respectfully requests 

the opportunity to provide rebuttal testimony consistent with this Statement and to address any 

new issues advanced in the Rebuttal Statements of other parties. and to offer other witnesses as 

may be required to do so. 

2
 
cue REBUTTAL STATEMENT OF 11/28/06 

UPSETS RULEMAKING 

Respectfully submitted this 28th day of November, 2006. 

OCK & APPLEWHITE, '- .. sso -.. I 

I 

B}'/~"-~~~~~~~====:-_

'J Sanderso , #2402 

1775 Shennan Street, Twenty-First Floor 

Denver, Colorado 80203 

Telephone: (303) 863-7500 

Facsimile: (303) 595-3159 

Email: jsanderson@rcalaw.com 

ATTORNEYS FOR: 

PLATTE RIVER POWER AUTHORITY, 

PUBLIC SERVICE COMPANY OF COLORADO doing 

business as XCEL ENERGY, and 

TRI-STATE GENERATION AND TRANSMISSION 

ASSOCIATION, INC. 

APPEARING INDIVIDUALLY AND AS MEMBERS OF 

THE COLORADO UTILITIES COALITION FOR 

CLEAN AIR 

3
 
CERTIFICATE OF DELIVERY 

The undersigned certifies that on this 28lb day of November, 2006, a true and correct copy of the 

foregoing REBUTTAL STATEMENT on behalf of the eue was delivered via email as per the tcnns of 

the Commission's October 17, 2006 Party Status List and Notice, and addressed as foHows: 

NAME REPRESENTED BY/ADDRESS TELEPHONE/FAXIE-MAIL 

Air Quality Control Conunission Theresa L. Martin 

EDO-AQCC-A5 

4300 Cherry Creek Drive South 

Denver, CO 80246 

Garry Kaufman 

Air Pollution Control Division 

APCD-BI 

4300 Cherry Creek Drive South 

Denver. CO 80246 

(303) 692-3100 

FAX: (303) 691-7702 

tlmaI1in{(LJcdphe.state.co.us 

(303) 692-3147 

FAX: (303) 691·7702 

garrison.kaufman((/)state.co.us 

Colorado Anorney General's Office Steve Brown 

Attorney for the Commission 

Attorney General's Office 

1525 Shennan Street, 5

1h Floor 

Denver, CO 80203 

Thomas A. Roan 

Attorney for the Division 

Attorney's General's Office 

1525 Shennan Street,S'" Floor 

Denver, CO 80203 

(303) 866-4434 

steve.brown(uistatc.co.lIs 

(303) 866-5280 

tomroan@state.co.us 

Rocky Mountain Clean Air Action 

Environmental Integrity Project 

St. Vrain Valley Community 

Watchdogs 

Mothers Against Burning Tires 

Friends of the St. Vrain River Valley 

Jeremy Nichols, Director 

1536 Wynkoop, Suile B50 I 

Denver, CO 80202 

(303) 454·3370 

FAX: (303) 572-0032 

rmcleanair@gmail.com 

Colorado Petroleum Association Dennis L. Arfmann (720) 406-5374 

(CPAP) Jennifer L. Morris 

Hogan & Hartson 

1470 Walnut Street, Suite 200 

Boulder, CO 80302 

H. Stanley Dempsey, Jr. 

Colorado Petroleum Association 

1580 Lincoln Street, Suite 1125 

Denver, CO 80203 

FAX: (720) 406-5301 

darfmannvvhhlaw.com 

jlmorris(rohhlaw.com I 

(303) 860-0099 

FAX, (303) 860-0310 I 

stanCiVcoloradopctroleumassocialion.org 

734139.1 

11/27/2006 
I 

NAME REPRESENTED BY/ADDRESS TELEPHONEIFAXlE-MAIL 

Rocky Mountain Steel Mills d/b/al 

CF&I 

Eugene F. Megyesy, Jr. 

Dufford & Brown, P.C. 

1700 Broadway, Suite 2100 

(303)861-8013 

FAX: (303) 832-3804 

emegYcsy@duffordbrown.com 

Denver, CO 80290-2101 

Colorado Association of Commerce 

and Industry (CACI) 

Dennis L. Arfmann 

Jelll1ifer L. Morris 

Hogan & Hartson 

(720) 406-5374 

FAX: (720) 406-5301 

dartinann@hhlaw.com 

1470 Walnut Street, Suite 200 

Boulder, CO 80302 

Donald K. Shandy 

Ryan, Whaley & Coldiron PC 

900 Robinson Renaissance 

iImorris@.hhlaw.com 

(405) 239·6040 

FAX; (405) 239-6766 

dshandy0lrvanwhaley.com 

119 North Robmson Avenue 

Oklahoma City, OK 73102 

Colorado Ready Mixed Concrete 

Association and 

The Colorado Rock Products 

Association 

Melissa 1. Young 

6855 South Havana Street, Suite 540 

Centennial, CO 80112 

Jeffrey W. Schwarz 

1600 Stout Street, Suite 1700 

Denver, CO 80202 

(303) 771·5290 

FAX: (303) 290-8008 

myoung@crna.cc 

(303) 893-1815 

FAX: (303) 893-1829 

ischwarziCikksmb.com 

and an original and 20 copies were HAND DELIVERED to: 

Air Quality Control Commission 

4300 Cherry Creek Drive South 

Denver, CO 80246 

and a "hard copy" was also HAND DELIVERED to: 

Theresa L. Martin 

EDO-AQCC-A5 

4300 Cherry Creek Drive South 

Denver, CO 80246 

Steve Brown
 

Attorney for the Commission
 

Attorney General's Office
 

1525 Sherman Street, 5th Floor
 

Denver, CO 80203
 

Garry Kaufman 

Air Pollution Control Division 

APCD-BI 

4300 Cherry Creek Drive South 

Denver, CO 80246 

Thomas A. Roan 

Attorney for the Division 

Attorney's General's Office 

1525 Sherman Street, 5th Floor 

Denver, CO 80203 

7341391 

11I2712006