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# 8P -AR

DAQPN-013-04



### NOTICE OF PUBLIC HEARING Excess Emissions

The Utah Air Quality Board proposes to update R307-107, the 25-year-old rule governing emissions at industrial sites during malfunctions, startup and shutdown, and to make the rule consistent with current EPA policy. The rule establishes criteria the source
can use to make an affirmative defense to avoid being chargedwith a violation ofair quality rules, and establishes requirements for reporting excess emissions incidents to the Utah Division ofAir Quality. The Board also proposes to remove the definition of breakdown from R307-101-2, as it is no longer needed.

A public hearing will be held at 1:30 p.m. on October 21,2004, in Room 201 ofthe Utah Department ofEnvironmental Quality building, 168 North 1950West, in Salt Lake City, Utah. Thetext and further explanations are available at www.airquality.utah.gov.

The comment period closes at 5:00 p.m. on November 1,2004. Comments postmarked

on orbefore that date will be accepted. Comments may be submitted by electronic mail tojanmilJer@utah.gov, or may be mailedto:

ATIN: Excess Emissions rule RichardW. Sprott, Director Utah Division ofAir Quality P. O. Box 144820 SaltLake City, UT 84114-4820.1ain Form Page 1of4



### State ofUtah Administrative Rule Analysis 

# NOTICE OF PROPOSED RULE REPEAL AND REENACTMENT

The agency identified below inbox 1provides notice ofproposedrule change pursuant to Utah Code Section 63-46a-4. Please address questions regarding information on this notice to the agency. Thefull text ofall rule filings is published in the Utah StateBulletin unless excludedbecause ofspaceconstraints. The full textofall rule filings may also beinspected at the Division ofAdministrative Rules.
DAR file no: Utah Admin. Code ref. (R no.): R307-107 Date filed:

Time filed:

150 N 1950 W

SALTLAKECITY, UT 84114-4820 Environmental Quality/Air Quality

SALT LAKE CITY, UT 84116-3085 PO BOX 144820



### Remove: E-mail: janmiller@utah.gov 

### Fax: 801-536-4099 

### Phone: 801-536-4042 1. Agency: Room no.: Building: Street address 1: Street address 2: City,state,zip: Mailing address 1: Mailing address 2: City,state,zip: 

### Contactperson(s): Name: Jan Miller

(Interested persons may inspect this filing at the above address orat DAR between 8:00 a.m. and 5:00 p.m. on business days.)


### 2. Title ofruleorsection (catchline): General Requirements: Unavoidable Breakdown 

### 1113. Typeofnotice: Repeal andreenact



### 4. Purposeoftherule orreason for the change: Thepurpose is to update a 25-year-old rule, and to make it consistent with currentEPApolicy. The EPA policy was issuedin 1999. Now that the policy has survivedlitigation nationally, EPA will not approve future Utah state implementation plans that do not includethe policy. 

### 5. This changeis a response to comments by 

### the Administrative RulesReview Committee. No 

### 6. Summaryoftherule change: A substantive provision in the current rule that is eliminated in the new rule is the allowance, for

excess emissions events of2 hours ormore, to report the event within 3 hours ifpossible, butno laterthan 18 hours after the beginning ofthe event. Thenew rule requires reporting within 3 hours. Additional provisions in the new rule include a list ofconditions to be metin orderthat a
source can claim an affirmative defense for an excess emissions event, and additional information that must be reported after an excess emissions event occurs. CHANGES FROM THE CURRENTRULE. The title ofthe rule is changedfrom "General Requirements: Unavoidable Breakdown," to "General Requirements: Excess Emissions." The currentrule applies to emissions ofall pollutants, while the new rule applies to all sources ofemissions unless specific emissions limits are includedin a specific rule, approval order, orpermit. Under

9/14/2004 Ittp://filings.rules.state.ut.uslFormslProposedRule.aspMain Form Page 2 of4

the current rule, excess emissions from a malfunction are not considered to be violations; under the new rule, all excess emissions are consideredto be violations unless the source presents an affirmative defense demonstrating that all the conditions specifiedin the rule have been met. The current rule includes required actions that a source must conductto minimizethe amount of emissions and duration ofthe event; the new rule includes those actions in the list ofaffirmative defense items. 

### 7. Aggregate anticipated cost orsavings to: A) State budget: Itis difficult to estimate whether costs will change. Under the new rule, the requirement to demonstratethat a breakdown ormalfunction is not a violation lies with the source, and that may
mean that costs may decline for the state to determine whether ornot a violation has occurred. In addition, many sources are covered under40 CPRpart70, the operatingpermits program, and theircosts are coveredby fees rather than by the state General Fund. B) 

### Local government: Itis difficult to estimate whethercosts will change for local governments that operate sources of airpollution. Underthe new rule, the requirements to demonstrate that a breakdown or malfunction is not a violation lies with the source, and that may mean that costs for local government sources increase. Onthe otherhand, there are costs ifthe new rule is not implemented, becausenew and revised state implementation and maintenanceplans will not be approvedby EPA, and there are costs for sources and othercitizens ifplans cannotbe federally approved. Local governments in Weber, Davis, SaltLake and Utah Counties are required to demonstrate that their long range transportation plans are in conformity with state implementation and maintenance plans, and are unlikely to be able to make that demonstration unless the plans are regularly updated. Without federal approval ofthe conformity demonstration, the local governments wouldbe unable to plan for orconstructregionallysignificanthighway ortransitprojects, and that couldhave a detrimental effect in costs to their citizens. C) 

### Otherpersons: Itis difficult to estimate whethercosts will change for affected persons. There are unknown costs to meet the requirements to demonstrate an affirmative defense, andthere will be additional costs to assemble thedocumentation required to demonstrate an affirmative defense. Ifthe affirmative defense is notcomplete, then the source will be in violation and that may result in financial or otherpenalties. Also there are costs ifthe new rule is not implemented, becausenew and revised state implementation and maintenance plans will notbe approvedby EPA andthere are costs for

sources and for citizensifplans cannotbe federally-approved. Local governments in Weber, Davis, SaltLake and Utah Counties are requiredto demonstrate that their long range transportation plans are in conformity with state implementation and maintenance plans, and are unlikely to be able to makethat demonstration unless theplans are regularly updated. Without the conformity demonstration, the local governments wouldbe unable to obtain federal funding for highway ortransit projects, and thatcould have a detrimental effect in coststo businesses and individuals. 

### 8. Compliancecosts for affected persons ("person" meansany individual,partnership, corporation, association, governmental entity, orpublic or privateorganization ofany characterother than an agency): Itis difficult to estimatewhethercosts will change for affected persons. There are unknown costs to meet the requirements to demonstrate an affirmative defense, and there will be additional costs to assemble the documentation required to demonstrate an affirmative defense. Ifthe affirmative defense is not complete, then the source will be in violation and that may result in financial or otherpenalties. Also there are costs ifthe new rule is not implemented, becausenew andrevised state implementation and maintenance plans will notbe approved by EPA and there are costs for

httn:llfilin{!s.rules.state.ut.uslFormslProoosedRule.asp 9/1412004.1ain Fonn Page 3 of4

sources and for citizens ifplanscannot be federally-approved. Local governments in Weber, Davis, Salt Lake and Utah Counties arerequired to demonstrate that theirlong range transportation plans are in conformity with state implementation and maintenance plans, and are unlikely to be able to make that demonstration unless the plans are regularly updated. Without the conformity demonstration, the local governments would be unable to obtain federal funding for highway ortransit projects, and that couldhave a detrimental effect in coststobusinesses and individuals. 

### 9. Commentsby the departmentheadonthefiscal impacttherule may have onbusinesses: There may be increasedcosts associated with the implementati n ofthis rule, but there are also costs for business ifthe rule is not implemented. 

### 10. This rulechangeis authorized ormandated by statelaw, and implementsorinterpretsthe following state andfederal laws. Statecode orconstitution citations (required): 19-2-104(l)(a), 19-2-104(1)(c) 

### 11. Thisrule adds, updates, orotherwise changes thefollowing title ofmaterials incorporated by reference (a copy ofmaterials incorporatedby reference must be submitted to DAR; ifnone, leave blank): 

### 12. Thepublic may submitwrittenororalcomments to the agency identified inbox 1. (The public may also requesta hearing by submittinga writtenrequest tothe agency. Theagency is required to hold a hearingifitreceives requests from ten interested personsorfrom an association having notfewer than ten members. Additionally, the request must bereceived by the agency not more than 15 days after the publication ofthis rule in the Utah State Bulletin. See Section 63-46a-5 and Rule R15-1 for moreinformation.)



### A) Comments will 

### be accepted until 5:00

### p.m. on (mmlddlyyyy): 10/31/2004


### B) Apublic hearing (optional) will beheld:

on (mmlddlyyyy) at (time): at(place): 10/21/2004 1:30 pm Room 201 in the DEQBuilding at 168 N. 1950West in Salt Lake City 

### 13. This rulechangemay becomeeffective on (mmlddlyyyy): 12/2/2004

NOTE: The date above is the date on which this ruleMAYbecome effective. It is NOTthe effective date. Afterthe date designatedin Box 12(A) above, the agency mustsubmit a Notice of Effective Date to the Division ofAdministrative Rules to make this rule effective. Failure to submit a Notice ofEffectiveDatewill result in this rule lapsing and will require the agency to starttherulemaking rocess over. 

### 14. Indexinginformation· keywords (maximumoffour, in lower case, exceptfor acronyms (e.g., "NASA")orproper nouns (e.g., "Medicaid"): breakdown, airpollution, excess emissions 

### 15. Attachan RTFdocumentcontainingthe textofthis rule change (filename): There is currently a document associated with this filing. 

### To theagency: Infonnationrequested on this form is requiredby Section 63-46a-4, 5, 6, and 10. Incomplete fonns will be returned to the agency for completion, possibly delaying publication in the Utah State Bulletin, and delayin the first ossible effective date.



### AGENCY AUTHORIZATION Agency head ordesignee, andtitle: M. Cheryl Heying PlanningBranch Manager 

### Date (mm/dd/yyyy): 9/13/2004

# 'Y\A'~l~ 9/14/2004 http://filings.rules.state.ut.uslFonnslProposedRule.aspR307-101-2

2. Title: Definitions

3. Type ofnotice: Amend

4. Purposeofthe ruleorreasonfor the change: The purpose is to delete the definition of "Breakdown," which is not needed. Breakdowns are addressed in the new version ofR307-107. (See separate filing in this issue.)

6. Summaryofthe rule change: Delete the definition of "breakdown." The subject ofbreakdowns is now addressed in a new R307-107. (See separate filing in this issue.)

7. Aggregate anticipatedcostor savings to:

a. Statebudget: There is no change in costs due to the change in this rule. Any changes in costs are attributable to the new rule R307-107. (See separatefiling in this issue.)

b. Localgovernment: There is no change in costs due tothe changein this rule. Any changes in costs are attributable to the new rule R307-107. (See separatefiling in this issue.)

c. Otherpersons: Thereis no change in costs due tothe change in this rule. Any changes in costs are attributable to the new rule R307-107. (See separate filing in this issue.)

8. Compliancecostsfor affected persons: There is no change in costs due to the change in this rule. Any changes in costs are attributable to the new rule R307-107. (See separate filing in this issue.)

9. Commentsby the Depthead onthe fiscal impacttherulemay have onbusinesses: There is no change in costs due to the changein**t~!~, ~y**  c;1:langes in costs are attributable to the new rule R307-107.**~~~**
10. Authorizing statute: 19-2-104

11. Materialsincorporated by reference?

12. Public conunentandhearinginfo: October 21,2004, at 1:30 pmin Room 201 in the DEQ building at 168 N. 1950West in Salt Lake City

13. May becomeeffectiveon: December 2, 2004

14. Keywords: airpollution, definitions

15. Signature: M. Cheryl Heying, Planning Branch Manager Date: 

### q - \ 

## .0'1

# ~,t~\~

### R307. Environmental Quality, Air Quality. [R397 107. 

### General**ReEjf\liremen~s** I 

### Unavoidable Brea]tdOWft. R307 107 1.**App1iea~ion.** R307 107 applies to all regulated pollutants including those for

· ...hich there are**~¢ational** Ambient }\ir Quality Standards. E1ECept as otheniise provided in R307 10.7, emissions resulting froffi an unavoidable brealtdo',ffi will not be deeffied a violation of these regulations. If CJEcess emissions are predictable, they ffiUst be authorized under the variance procedure in R307 102 4. Breakdo'4Jfis that are caused entirely or in part by poor maintenance, careless operation, or any other preventable upset condition or preventable equipment**breakdo~ffl** shall not be considered unavoidable brealtdmffi.

R307 197 3.**Reper~ing.** }'. brealcdmffi for any period longer than 2 hours must be reported to the eJEecutive secretary**~dthin** 3 hours of the beginning of the breakdo',ffi if reasonable, but in no case longer than 18 hours after the beginning of the breakdovffi. During times other than noflftal office hours, brea]cdmffis for any period longer than 2 hours shall be initially reported to the Environmental Health Bfficrgency Response Coordinator, Telephone (801) 536 4123. Within 7 calendar days of the beginning of any breakdo;ffi of longer than 2 hours, a "IITitten report shall be submitted te the eJtecutive secretary**;v~ich** shall include the cause and nature of the event, estiffiated quantity of pollutant (total and eJECess)
, time of effiissions and steps talccn to control the emissions and to prevent recurrence. The submittal of such information shall be used by the eJEecutive secretary in deteflftining ',"hether a violation has occurred and/or the need of further enforceffient action.

a30? 197 3.**Penal~ies.** Failure to comply ""ith the reporting procedures of 

### Rla? 107 2 will constitute a violation of these regulations.

R307 197 4. 

### Preeedures. The O"ffier or operator of an installation suffering an unavoidable brcakdo"m shall assure that effiission limitations and visible effiission limitations are cJEceeded for only as short a period of time as reasonable. The O;ffier or operator shall take all reasonable ffleasures**".~ieh** may inelude but are not limited to the iffiffiediate curtailment of production, operations, or activities at all

### installations of the source if necessary to limit the total aggregate emissions from the source to no greater than the aggregate**allo~vable** 

### emissions averaged over the periods provided in the source's approval orders or R307. In the event that production, operations or activities cannot be curtailed so as to so limit the total aggregate emissions

'

..'ithout j 

### eopardhling equipment or safety or measures ta](en 'viould result in even greater mEcess emissions, the O'vlffier or operator of the source shall use the most rapid, reasonable procedure to reduce emissions. The o;mer or operator of any installation subject to a SIP emission limitation pursuant to these rules shall be deemed to have complied 'vJith the provisions of R307 107 if the emission limitation has not been eJEcecded.

Ra9? 19? s.**Viela~ion.** 

### Failure to comply ,dth curtailment actions required by R307 107 4 will constitute a violation of R307 107.

Ra9? 197 

### &. Emissions**S~andar4s.** 

### Other provisions of R307 may require more stringent controls than listed herein, in '

.. -hich case those requirements must be met.

KEY. air**pol11:l~ion,** sZ'eal'EdO'fB*, eueess emissions* 1999 19 2 194]

R307-107. General Requirements: Excess Emissions and Reporting. R307-107-1. Purpose and Definitions. 

### (1) The purpose of R307-107 is to establish violations and affirmative defenses for excess emissions caused by 

### malfunctions, scheduled maintenance, startup, or shutdown. Recordkeeping and reporting requirements also

are established. (2) Definitions, The following additional definitions apply to R307-107. (a) "Affirmative Defense" means, in the context of

an excess emissions incident, a response or defense put forward by a source, regarding which the source has the burden of proof, for the purpose of establishing that the incident does not constitute a violation.

### (b)**~Excess** 

### Emissions" means a level, rate or amount of air emissions, including opacity, that exceeds any applicable emission limitation or opacity limit established under statute, rule, approval order, or permit. (c) "Malfunction" means a sudden failure of a process, process equipment, or air pollution control equipment to operate in a normal or usual manner.

R307-107-2. Violations and Affirmative Defenses for Excess Emissions Due to Malfunctions, Scheduled Maintenance, Startup, and Shutdown. 

### (1) Applicability. R307-107-2 is applicable to all

sources except where emission standards, limits, or performance standards for malfunctions, scheduled maintenance, startup, or shutdown are identified in a specific rule, approval order, or permit, to include new
source performance standards (NSPS), and national emissions standards for hazardous air pollutants (NESHAPS), or other federal performance standards. (2) Violations and Affirmative Defense for Malfunctions. Excess emissions due to malfunction shall constitute a violation unless the incident qualifies for an affirmative defense under this subsection, R307-107-2(2). The owner or operator of a source with emissions in excess of an applicable emission limitation due to malfunction shall have an affirmative defense to a civil, administrative, or other proceeding, other than an action seeking injunctive relief, and is excused from penalties if the owner or operator of the source has demonstrated all of the following. (a) The excess emissions were caused by 

### a malfunction which was beyond the control of the owner or operator. (b) The excess emissions did not stem from any activity or event that could have been foreseen, avoided,

or planned for, and could not have been avoided by good design, operation, and maintenance consistent with good industry practices. (c) The air pollution control equipment or processes
were maintained and operated in a manner consistent with good practice for minimizing emissions such as manufacturers' recommendations and general industry adopted practices. (d) 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, to the extent practicable, were utilized to

### ensure that such repairs were made as expeditiously as practicable. (e) The amount and duration of the excess emissions (including any bypass of control equipment) were minimized to the extent practicable during periods of such emissions. (f) All practicable steps were taken to minimize the impact of the excess emissions on ambient air quality. (g) All emission-monitoring systems were kept in operation if possible. (h) The owner or operator's actions in response to the excess emissions were documented by contemporaneous operating logs or other relevant evidence. (i) The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance. (j) The owner or operator provided notice in accordance with R307-107-3, if required. (k) The excess emissions did not cause or contribute to an exceedance of the National Ambient Air Quality Standards or the Prevention of Significant Deterioration increments. (3) Violations and Affirmative Defense for Scheduled Maintenance, Startup or Shutdown. Excess emissions due to scheduled maintenance, startup, or shutdown shall constitute a violation unless the incident qualifies for an affirmative defense under this subsection, R307-107-2(3). If excess emissions occur due to malfunctions during scheduled maintenance, startup, or shutdown, those instances shall be treated as malfunctions subject to subsection (2) above. Otherwise, the owner or operator of

a source with emissions in excess of an applicable emission limitation due to scheduled maintenance, startup, or shutdown has an affirmative defense to a civil, administrative, or other proceeding, other than an action seeking injunctive relief, and is excused from penalties if the owner or operator of the source has demonstrated all of the following. (a) Excess emissions that occurred during scheduled maintenance, startup or shutdown were short and infrequent and could not have been prevented through careful planning and design consistent with good industry practices. (b) The excess emissions were not part of a recurring pattern indicating inadequate design, operation, or maintenance. (c) If the excess emissions were caused by an intentional bypass of control equipment, then the bypass

### was unavoidable to prevent loss of life, personal injury,

or severe property damage. (d) At all times, the facility was operated in a
manner consistent with good practice for minimizing emissions such as manufacturers' recommendations and general industry adopted practices. (e) The frequency and duration of operation in scheduled maintenance, startup, or shutdown mode were minimized to the extent practicable. (f) All practicable steps were taken to minimize the impact of the excess emissions on ambient air quality. (g) All emission monitoring systems were kept in operation if possible. (h) The owner or operator's actions during the period of excess emissions were documented by contemporaneous operating logs or other relevant evidence. (i) The owner or operator provided notice in accordance with R307-107-3, if required. (j) The excess emissions did not cause or contribute to an exceedance of the National Ambient Air Quality Standards or the Prevention of Significant Deterioration increments. (4) Excess Emissions Determinations. The executive secretary shall determine whether an affirmative defense has been established for excess emissions incidents based

on the criteria and information identified in subections (2) and (3) above. An affirmative defense may, but need not, be established pursuant to a judicial or administrative proceeding. (5) In cases where an excess emissions incident does not qualify for an affirmative defense, the executive secretary or board may evaluate penalties through the exercise of enforcement discretion based on an assessment of all relevant information and the penalty policy of the board which could result in a determination of no penalties

or up to the maximum penalties, depending upon the circumstances. (6) Nothing in this Section R307-107-2 shall be construed to limit the authority of the Board to seek injunctive relief or to enforce the provisions of the Utah Air Conservation Act, Title 19, Chapter 2, and the rules promulgated under it.

R307-107-3. Recording and Reporting Requirements. 

### (1) This Section R307-107-3 is applicable to all

sources. Recording and reporting requirements in any other rule, approval order, permit, or enforcement order are in

### addition to the reqUirements of this R307-107-3. It is acceptable for a source to give a combined notice or file a combined report if by so doing it can comply with both the reporting requirements of this R307-107-3 and other reporting requirements applicable to the source. (2) The owner or operator of any source shall report

### (vii) the steps that were or are being taken to limit the excess emissions; and (viii) the steps taken to comply with any applicable procedures governing operations during periods of excess emissions. (3) Recording. For excess emissions from malfunction, scheduled maintenance, startup or shutdown, the company shall keep the information necessary to demonstrate an affirmative defense under R307-107-2 on-site and available for review for two years after the excess emissions end.

KEY: air pollution, breakdown, malfunction, excess emissions 2005 

### 19-2-104(1) (a) 

### 19-2-104(1) (c)