t. 

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 charged with a violation of air 

quality rules, and establishes requirements for reporting excess emissions incidents to the 

Utah Division of Air 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 of the Utah 

Department of Environmental Quality building, 168 North 1950 West, in Salt Lake City, 

Utah. The text 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 or before that date will be accepted. Comments may be submitted by electronic mail 

to janmilJer@utah.gov, or may be mailed to: 

ATIN: Excess Emissions rule
 

Richard W. Sprott, Director
 

Utah Division of Air Quality
 

P. O. Box 144820
 

Salt Lake City, UT 84114-4820
 
.1ain Form Page 1 of 4 

State of Utah
 

Administrative Rule Analysis
 

NOTICE OF PROPOSED RULE REPEAL AND
 

REENACTMENT
 

The agency identified below in box 1 provides notice of proposed rule change pursuant to Utah Code Section 63-46a-4. 

Please address questions regarding information on this notice to the agency. The full text of all rule filings is published in 

the Utah State Bulletin unless excluded because of space constraints. The full text of all rule filings may also be inspected at 

the Division of Administrative Rules. 

DAR file no: 

Utah Admin. Code 

ref. (R no.): R307-107 

Date filed: 

Time filed: 

150 N 1950 W 

SALT LAKE CITY, UT 84114-4820 

Environmental Quality/Air Quality 

SALT LAKE CITY, UT 84116-3085 

PO BOX 144820 

E-mail: Remove:

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: 

Contact person(s): 

Name: 

Jan Miller 

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

2. Title of rule or section (catchline): 

General Requirements: Unavoidable Breakdown 

1113. Type of notice: Repeal and reenact 

4. Purpose of the rule or reason for the change: 

The purpose is to update a 25-year-old rule, and to make it consistent with current EPA policy. 

The EPA policy was issued in 1999. Now that the policy has survived litigation nationally, EPA 

will not approve future Utah state implementation plans that do not include the policy. 

5. This change is a response to comments by the Administrative Rules Review Committee. 

No 

6. Summary of the rule change: 

A substantive provision in the current rule that is eliminated in the new rule is the allowance, for 

excess emissions events of 2 hours or more, to report the event within 3 hours if possible, but no 

later than 18 hours after the beginning of the event. The new rule requires reporting within 3 

hours. Additional provisions in the new rule include a list of conditions to be met in order that 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 CURRENT RULE. The title of the rule is changed from "General Requirements: 

Unavoidable Breakdown," to "General Requirements: Excess Emissions." The current rule 

applies to emissions of all pollutants, while the new rule applies to all sources of emissions 

unless specific emissions limits are included in a specific rule, approval order, or permit. Under 

Ittp://filings.rules.state.ut.uslFormslProposedRule.asp 9/14/2004
Main Form	 Page 2 of 4 

the current rule, excess emissions from a malfunction are not considered to be violations; under 

the new rule, all excess emissions are considered to be violations unless the source presents an 

affirmative defense demonstrating that all the conditions specified in the rule have been met. The 

current rule includes required actions that a source must conduct to minimize the amount of 

emissions and duration of the event; the new rule includes those actions in the list of affirmative 

defense items. 

7.	 Aggregate anticipated cost or savings to: 

A) State budget: 

It is difficult to estimate whether costs will change. Under the new rule, the requirement to 

demonstrate that a breakdown or malfunction is not a violation lies with the source, and that may 

mean that costs may decline for the state to determine whether or not a violation has occurred. In 

addition, many sources are covered under 40 CPR part 70, the operating permits program, and 

their costs are covered by fees rather than by the state General Fund. 

B) Local government: 

It is difficult to estimate whether costs will change for local governments that operate sources of 

air pollution. Under the 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. On the other hand, there are costs if the new rule is not 

implemented, because new and revised state implementation and maintenance plans will not be 

approved by EPA, and there are costs for sources and other citizens if plans cannot be federally 

approved. Local governments in Weber, Davis, Salt Lake 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 of the conformity 

demonstration, the local governments would be unable to plan for or construct regionallysignificant highway or transit projects, and that could have a detrimental effect in costs to their 

citizens. 

C) Other persons: 

It is difficult to estimate whether costs 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. If the affirmative 

defense is not complete, then the source will be in violation and that may result in financial or 

other penalties. Also there are costs if the new rule is not implemented, because new and revised 

state implementation and maintenance plans will not be approved by EPA and there are costs for 

sources and for citizens if plans cannot be federally-approved. Local governments in Weber, 

Davis, Salt Lake 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 

the conformity demonstration, the local governments would be unable to obtain federal funding 

for highway or transit projects, and that could have a detrimental effect in costs to businesses and 

individuals. 

8. Compliance costs for affected persons 

("person" means any individual, partnership, corporation, association, governmental entity, or public or 

private organization of any character other than an agency): 

It is difficult to estimate whether costs 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. If the affirmative 

defense is not complete, then the source will be in violation and that may result in financial or 

other penalties. Also there are costs if the new rule is not implemented, because new and revised 

state implementation and maintenance plans will not be approved by EPA and there are costs for 

httn:llfi lin{!s.rules.state.ut.uslFormslProoosedRule.asp 9/1412004 
.1ain Fonn Page 3 of 4 

sources and for citizens if plans cannot be federally-approved. Local governments in Weber, 

Davis, Salt Lake 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 

the conformity demonstration, the local governments would be unable to obtain federal funding 

for highway or transit projects, and that could have a detrimental effect in costs to businesses and 

individuals. 

9.	 Comments by the department head on the fiscal impact the rule may have on businesses: 

There may be increased costs associated with the implementati n of this rule, but there are also 

costs for business if the rule is not implemented. 

10. This rule change is authorized or mandated by state law, and implements or interprets the 

following state and federal laws. 

State code or constitution citations (required): 

19-2-104(l)(a), 19-2-104(1)(c) 

11. This rule adds, updates, or otherwise changes the following title of materials incorporated 

by reference (a copy of materials incorporated by reference must be submitted to DAR; if none, 

leave blank): 

12. The public may submit written or oral comments to the agency identified in box 1. (The 

public may also request a hearing by submitting a written request to the agency. The agency is required to 

hold a hearing if it receives requests from ten interested persons or from an association having not fewer than 

ten members. Additionally, the request must be received by the agency not more than 15 days after the 

publication of this rule in the Utah State Bulletin. See Section 63-46a-5 and Rule R15-1 for more information.) 

A) Comments will be accepted until 5:00 p.m. on (mmlddlyyyy): 10/31/2004 

B) A public hearing (optional) will be held: 

on (mmlddlyyyy) at (time): at (place): 

10/21/2004 1:30 pm Room 201 in the DEQ Building at 168 N. 1950 West in 

Salt Lake City 

13. This rule change may become effective on (mmlddlyyyy): 12/2/2004 

NOTE: The date above is the date on which this rule MAY become effective. It is NOT the 

effective date. After the date designated in Box 12(A) above, the agency must submit a Notice of 

Effective Date to the Division of Administrative Rules to make this rule effective. Failure to 

submit a Notice of Effective Date will result in this rule lapsing and will require the agency to 

start the rulemaking rocess over. 

14. Indexing information· keywords (maximum of four, in lower case, except for acronyms 

(e.g., "NASA") or proper nouns (e.g., "Medicaid"): 

breakdown, air pollution, excess emissions 

15. Attach an RTF document containing the text of this rule change (filename): 

There is currently a document associated with this filing. 

To the agency: Infonnation requested on this form is required by 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 or designee, 

and title: 

M. Cheryl Heying 

Planning Branch Manager 

Date 

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

'Y\A'~l~ http://filings.rules.state.ut. uslFonnslProposedRule.asp 9/14/2004
R307-101-2 

2. Title: Definitions 

3. Type of notice: Amend 

4. Purpose of the rule or reason for the change:
 

The purpose is to delete the definition of "Breakdown," which is not needed. Breakdowns are
 

addressed in the new version of R307-107. (See separate filing in this issue.)
 

6. Summary of the rule change:
 

Delete the definition of "breakdown." The subject of breakdowns is now addressed in a new
 

R307-107. (See separate filing in this issue.)
 

7. Aggregate anticipated cost or savings to:
 

a.	 State budget: 

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.) 

b. Local government: 

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.) 

c.	 Other 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.) 

8.	 Compliance costs for 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.	 Comments by the Dept head on the fiscal impact the rule may have on businesses: 

There is no change in costs due to the change in t~!~,~y c;1:langes in costs are 

attributable to the new rule R307-107. ~~~

10.	 Authorizing statute: 19-2-104 

11.	 Materials incorporated by reference? 

12. Public conunent and hearing info: October 21,2004, at 1:30 pm in Room 201 in the DEQ 

building at 168 N. 1950 West in Salt Lake City 

13.	 May become effective on: December 2, 2004 

14. Keywords: air pollution, definitions 

15.	 Signature: M. Cheryl Heying, Planning Branch Manager Date: q - \ .0'1 

~,t~\~
R307. Environmental Quality, Air Quality. 

[R397 107. General ReEjf\liremen~sI 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)