[Federal Register Volume 89, Number 210 (Wednesday, October 30, 2024)]
[Proposed Rules]
[Pages 86305-86309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25228]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2024-0207; FRL-12341-01-R8]


Air Plan Approval; Revisions to Colorado Common Provisions 
Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Common Provisions Regulation of the Colorado 
State Implementation Plan (SIP). These revisions were submitted by the 
State of Colorado in response to the EPA's June 12, 2015, Findings of 
Substantial Inadequacy and ``SIP call'' for certain provisions in the 
SIP related to affirmative defenses applicable to excess emissions 
during startup, shutdown, and malfunction (SSM) events. The EPA is 
proposing approval of these SIP revisions because the Agency has 
determined that they are in accordance with the requirements for SIP 
provisions under the Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before November 29, 
2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2024-0207, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
https://www.regulations.gov. The EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be Confidential Business

[[Page 86306]]

Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically in 
https://www.regulations.gov. Please email or call the person listed in 
the FOR FURTHER INFORMATION CONTACT section if you need to make 
alternative arrangements for access to the docket.

FOR FURTHER INFORMATION CONTACT: Adam Clark, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-AQ, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-7104, email address: 
<a href="/cdn-cgi/l/email-protection#7a19161b0811541b1e1b173a1f0a1b541d150c"><span class="__cf_email__" data-cfemail="6b08070a1900450a0f0a062b0e1b0a450c041d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    Prior to the EPA's 2015 SSM SIP Action,\1\ which is discussed later 
in this section, the Agency had a longstanding interpretation of the 
CAA with respect to the treatment of excess emissions during periods of 
SSM in SIPs. This statutory interpretation had been expressed, 
reiterated, and elaborated upon in a series of guidance documents 
issued in 1982, 1983, and 1999 described below.
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    \1\ ``State Implementation Plans: Response to Petition for 
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to 
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction.'' 80 FR 33840, June 12, 2015.
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    In the 1982 SSM Guidance, the EPA recommended the exercise of 
enforcement discretion to address periods of excess emissions occurring 
during SSM events.\2\ Subsequently, in the 1983 SSM Guidance, the EPA 
expanded on this approach by recommending that a State could elect to 
adopt SIP provisions providing parameters for the exercise of 
enforcement discretion by the State's personnel.\3\ In our 1999 SSM 
Guidance, the EPA interpreted that States could elect to create 
``affirmative defense'' provisions applicable to SSM events in their 
SIPs.\4\ The EPA has defined the term affirmative defense provision as 
a State law provision in a SIP that specifies particular criteria or 
preconditions that, if met, would purport to preclude a court from 
imposing monetary penalties or other forms of relief for violations of 
SIP requirements in accordance with CAA section 113 or CAA section 
304.\5\ Also in the 1999 Guidance, the EPA established parameters that 
should be included as part of such an affirmative defense in order to 
ensure that it would be available only in certain narrow 
circumstances.\6\ Both of the provisions being addressed in today's 
action, Colorado Common Provisions Regulation \7\ sections II.E. 
(applicable to qualifying sources during malfunctions), and II.J. 
(applicable to qualifying sources during periods of startup and 
shutdown) were approved by the EPA based on our finding that they were 
consistent with the recommendations of the 1999 Guidance.\8\
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    \2\ Memorandum to Regional Administrators, Region I-X; From: 
Kathleen M. Bennett, Assistant Administrator for Air, Noise and 
Radiation; Subject: Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions. September 28, 1982.
    \3\ Memorandum to Regional Administrators, Regions I-X; From: 
Kathleen M. Bennett, Assistant Administrator for Air, Noise and 
Radiation; Subject: Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions. February 15, 1983.
    \4\ Memorandum to Regional Administrators, Regions I-X; From: 
Steven A. Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Bob Perciasepe, Assistant Administrator 
for Air and Radiation; Subject: Policy on Excess Emissions During 
Malfunctions, Startup, and Shutdown. September 20, 1999.
    \5\ 79 FR 55923 (September 17, 2014).
    \6\ 1999 SSM Guidance.
    \7\ The Common Provisions Regulation is codified at 5 Colorado 
Code of Regulations (CCR) 1001-2 of the Colorado SIP.
    \8\ 71 FR 8958 (February 22, 2006) and 73 FR 45880 (August 7, 
2008).
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    On February 22, 2013, the EPA proposed to take action on a petition 
for rulemaking that the Sierra Club filed with the EPA Administrator on 
June 30, 2011 (78 FR 12460). In that action, the EPA proposed to grant 
the Petitioner's claim in part. The EPA proposed to revise its SSM 
policy with respect to affirmative defenses for violations due to 
excess emissions that occur during startup and shutdown, thus 
rescinding our prior interpretation that the SSM policy allows for 
those types of affirmative defenses in SIPs. This was a change from the 
EPA's interpretation of the CAA in the 1999 SSM Guidance, in which the 
EPA had interpreted that States could elect to create such affirmative 
defense provisions for startup and shutdown events, so long as the 
provisions were narrowly drawn and consistent with the established 
criteria to assure that they met CAA requirements. The EPA's evaluation 
of the petition and the statutory basis for affirmative defense 
provisions initiated a review of the appropriateness of affirmative 
defense provisions applicable during startup and shutdown, which are 
ordinary modes of operation that are generally predictable and within 
the control of the source. As explained in more detail in the February 
22, 2013, proposal document, the EPA's evaluation of the Sierra Club 
Petition in light of then-recent case law \9\ caused the EPA to alter 
its view on the appropriateness of affirmative defenses applicable to 
planned events such as startup and shutdown. Specifically, the EPA 
stated that ``because these events are modes of normal operation, the 
EPA believes that sources should be expected to comply with applicable 
emission limitations during such events.'' \10\
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    \9\ Court decisions confirmed that this requirement for 
continuous compliance prohibits exemptions for excess emissions 
during SSM events. See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 
1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 
(10th Cir. 2012).
    \10\ 78 FR 12480.
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    The EPA distinguished between affirmative defense provisions for 
startup and shutdown and those for malfunctions, stating ``the 
distinction that makes affirmative defenses appropriate for 
malfunctions is that by definition those events are unforeseen and 
could not have been avoided by the owner or operator of the source, and 
the owner or operator of the source will have taken steps to prevent 
the violation and to minimize the effects of the violation after it 
occurs.'' \11\ Because of this distinction, in the February 22, 2013 
proposal, the EPA proposed to grant the Sierra Club's petition with 
respect to Colorado Common Provisions section II.J., ``Affirmative 
Defense Provision for Excess Emissions During Startup and Shutdown,'' 
but to deny the Sierra Club's petition with respect to Common 
Provisions section II.E., ``Affirmative Defense Provision for

[[Page 86307]]

Excess Emissions During Malfunctions.'' \12\
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    \11\ 78 FR 12480.
    \12\ 78 FR 12530.
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    Subsequent to the EPA's issuance of the February 22, 2013 proposal, 
on April 18, 2014, the U.S. Court of Appeals for the District of 
Columbia Circuit ruled that CAA sections 113 and 304 preclude the EPA 
the authority to create affirmative defense provisions in the Agency's 
own regulations imposing emission limits on sources, because such 
provisions purport to alter the jurisdiction of Federal courts to 
assess liability and impose penalties for violations of those limits in 
private civil enforcement cases.\13\ In light of this decision, on 
September 17, 2014, the EPA issued a supplemental proposed rulemaking 
which outlined our updated policy that affirmative defense SIP 
provisions, even if they are narrowly tailored and applicable only to 
malfunctions, are not consistent with CAA requirements. Accordingly, 
the EPA proposed to grant the portion of the Sierra Club's petition 
with regard to affirmative defenses in the case of malfunctions that it 
had previously proposed to deny, including Colorado Common Provisions 
section II.E.\14\ In that supplemental proposal, the EPA stated that 
the reasoning of the court in that decision indicates that the States, 
like the EPA, have no authority in SIP provisions to alter the 
statutory jurisdiction of Federal courts under CAA section 113 and 304 
to assess penalties for violations of CAA requirements through 
affirmative defense provisions. We additionally noted that if States 
lack authority under the CAA to alter the jurisdiction of the Federal 
courts through affirmative defense provisions in SIPs, then the EPA 
also lacks authority to approve any such provision in a SIP. (Id. at 79 
FR 55929).
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    \13\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
    \14\ ``State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown and Malfunction; Supplemental Proposal To Address 
Affirmative Defense Provisions in States Included in the Petition 
for Rulemaking and in Additional States.'' 79 FR 55920, September 
17, 2014.
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    On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA 
finalized ``State Implementation Plans: Response to Petition for 
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to 
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction,'' (80 FR 33839, June 12, 2015), hereafter 
referred to as the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action 
clarified, restated, and updated the EPA's interpretation that SSM 
exemptions and affirmative defense SIP provisions are inconsistent with 
CAA requirements. The 2015 SSM SIP Action found that certain SIP 
provisions in 36 States, including Colorado, were substantially 
inadequate to meet CAA requirements and issued a SIP call to those 
States to submit SIP revisions to address these inadequacies. The EPA 
established an 18-month deadline by which the affected States had to 
submit such SIP revisions. With regard to the Colorado SIP, in the 2015 
SSM SIP Action, the EPA determined that two affirmative defense 
provisions in the Colorado SIP (Common Provisions Regulation sections 
II.E. and II.J.) were substantially inadequate to meet CAA requirements 
(80 FR 33840, 33970).
    On November 21, 2016, Colorado submitted SIP revisions to Common 
Provisions Regulation sections II.E. and II.J. in response to the SIP 
call issued in the 2015 SSM SIP Action, which did not include removal 
of the affirmative defense provisions. On September 8, 2021, Plaintiffs 
Sierra Club, Environmental Integrity Project, and Natural Resources 
Defense Council (collectively, Plaintiffs) filed a complaint in the 
United States District Court for the Northern District of California, 
Oakland Division, alleging that the EPA had failed to, among other 
things, take final rulemaking action on Colorado's November 21, 2016 
SIP submission.\15\ The EPA established a consent decree with the 
Plaintiffs which required the EPA to take final action on the Colorado 
November 21, 2016 submission by May 31, 2023, unless Colorado withdrew 
the submission.\16\ On May 31, 2023, Colorado withdrew the November 21, 
2016, submission. As discussed further below, Colorado submitted new 
revisions to Common Provisions Regulation sections II.E. and II.J. on 
June 26, 2023.
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    \15\ Sierra Club et al. v. Regan, No. 21-cv-6956 (N.D. Cal, 
September 8, 2021).
    \16\ 87 FR 21118 (April 11, 2022).
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    The EPA issued a Memorandum in October 2020 (2020 Memorandum), 
which stated that certain provisions governing SSM periods in SIPs, 
including affirmative defense provisions, could be viewed as consistent 
with CAA requirements.\17\ However, on September 30, 2021, the EPA's 
Deputy Administrator withdrew the 2020 Memorandum and announced the 
EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 
Memorandum).\18\ As articulated in the 2021 Memorandum, SIP provisions 
that contain exemptions or affirmative defense provisions are not 
consistent with CAA requirements and, therefore, generally are not 
approvable if contained in a SIP submission.
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    \17\ October 9, 2020 memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator. The 
2020 Memorandum stated that it ``did not alter in any way the 
determinations made in the 2015 SSM SIP Action that identified 
specific State SIP provisions that were substantially inadequate to 
meet the requirements of the Act.'' Accordingly, the 2020 Memorandum 
had no direct impact on the SIP call issued in 2015.
    \18\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
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    On March 1, 2024, the D.C. Circuit Court of Appeals issued a 
decision in Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115 
(D.C. Cir. 2024). The case was a consolidated set of petitions for 
review of the 2015 SSM SIP Action. The Court granted the petitions in 
part, vacating the SIP call with respect to SIP provisions that the EPA 
identified as automatic exemptions, director's discretion provisions, 
and affirmative defenses that are functionally exemptions; and denied 
the petitions in part as to other provisions that the EPA identified as 
overbroad enforcement discretion provisions or affirmative defense 
provisions that would preclude or limit a court from imposing relief in 
the case of violations, which the Court also refers to as ``specific 
relief.'' This is juxtaposed against the Court's granting of the 
petition as to affirmative defenses that are functionally exemptions 
because they ``create an exemption from the normal emission rule.'' 
\19\ The EPA finds that the affirmative defense provision in the 2008 
Billings/Laurel SO<INF>2</INF> FIP to be ``specific relief'' as 
interpreted by the Court, as the provision specifically states that an 
owner or operator ``may assert an affirmative defense to a claim for 
civil penalties for exceedances of such limits during periods of 
malfunction, startup, or shutdown,'' and ``to establish the affirmative 
defense and to be relieved of a civil penalty in any action to enforce 
such a limit, the owner or operator of the facility must meet the 
notification requirements of paragraph (i)(2) of this section in a 
timely manner and prove by a preponderance of evidence. . .'' \20\ The 
EPA has assessed the impact of the decision with respect to our 
proposed approval of Colorado's removal of the specific affirmative 
defense provisions

[[Page 86308]]

at issue in the State's June 26, 2023, submission. We have concluded 
that the previously stated reasons for the inappropriateness of 
affirmative defense provisions like Common Provisions sections II.E. 
and II.J., as articulated in the 2015 SSM SIP Action and 2021 
Memorandum, are consistent with the recent D.C. Circuit decision, as 
these are affirmative defense provisions against specific relief.\21\ 
The Court upheld the EPA's 2015 SSM SIP Action with regard to 
affirmative defenses against specific relief, finding that because CAA 
304(a) and 113(b) authorize citizens and the EPA to seek injunctive 
relief and monetary penalties against sources that violate a SIP's 
emission rules, such an affirmative defense would ``block that aspect 
of the Act's enforcement regime.'' \22\
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    \19\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115 
(D.C. Cir. 2024).
    \20\ See 40 CFR 52.1392(i)(1).
    \21\ 80 FR 33840, 33970 (June 12, 2015) and 79 FR 55920, 55946 
(September 17, 2014).
    \22\ Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 114-115 
(D.C. Cir. 2024).
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    On June 26, 2023, Colorado submitted, among other revisions to the 
Colorado SIP that will be addressed in a separate rulemaking action, 
revisions to sections II.E. and II.J. of the Common Provisions 
Regulation which removed these rules from the Colorado SIP by making 
them State-only and therefore not federally enforceable under the CAA. 
The June 26, 2023, revision to sections II.E. and II.J. of the Common 
Provisions Regulation was submitted in response to the SIP call in the 
2015 SSM SIP Action, and it is this SIP revision that the EPA is 
proposing to approve with today's action.

II. Analysis of SIP Submission

    As discussed in detail in the 2015 SSM SIP Action, affirmative 
defense provisions like those in the Colorado SIP at sections II.E. and 
II.J. of the Common Provisions Regulation are inconsistent with CAA 
requirements. The EPA is proposing to find that the portion of 
Colorado's June 26, 2023, SIP submission removing these provisions from 
the SIP by making them State-only is consistent with CAA requirements 
and that it adequately addresses the specific deficiencies that the EPA 
identified in the 2015 SSM SIP Action with respect to the Colorado SIP.

III. Proposed Action

    The EPA is proposing to approve the portion of Colorado's June 26, 
2023, SIP submission revising the Colorado SIP by removing Common 
Provisions Regulation sections II.E. and II.J. from the SIP by making 
them State-only. We are proposing approval of the SIP revisions because 
we have determined that they are consistent with the requirements for 
SIP provisions under the CAA. The EPA is further proposing to determine 
that finalizing such SIP revisions would correct the deficiencies 
identified in the 2015 SSM SIP Action. The EPA is not reopening the 
2015 SSM SIP Action and is only taking comment on whether these SIP 
revisions are consistent with CAA requirements and whether they address 
the ``substantial inadequacy'' of the specific Colorado SIP provisions 
identified in the 2015 SSM SIP Action.

IV. Incorporation by Reference

    In this action, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5 the EPA is proposing to incorporate 
by reference the revisions that would designate them as State-only, and 
thus remove from ``5 CCR 1001-02, Common Provisions Regulation'' of the 
Colorado SIP, sections II.E., ``Affirmative Defense Provision for 
Excess Emissions During Malfunctions,'' and II.J., ``Affirmative 
Defense Provision for Excess Emissions During Startup and Shutdown,'' 
as described in section III. of this preamble. The EPA has made, and 
will continue to make, these documents generally available 
electronically through https://www.regulations.gov and in hard copy at 
the EPA Region 8 office.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian Tribe has 
demonstrated that a Tribe has jurisdiction. In those areas of Indian 
country, the proposed rule does not have Tribal implications and will 
not impose substantial direct costs on Tribal governments or preempt 
Tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    Colorado did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. The EPA did not perform an EJ 
analysis and did not consider EJ in this proposed

[[Page 86309]]

action. Due to the nature of the action being proposed here, this 
action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this proposed action, and there is no information in the record 
inconsistent with the stated goal of E.O. 12898 of achieving EJ for 
people of color, low-income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: October 22, 2024.
K.C. Becker,
Regional Administrator, Region 8.
[FR Doc. 2024-25228 Filed 10-29-24; 8:45 am]
BILLING CODE 6560-50-P


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