Excess Emissions Draft 

Richard Long, Ron Rutherford. Jonah Staller, 

Fred Nelson to: jholtkamp, Reed, bill.lawson, michael.jenkins, 03/02/200512:18 PM 

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Excess Emissions Draft 2-15-2005'oOC 

Following our meeting - I attempted to prepare a compromise draft (see 

attached which shows the changes from the previous version we discussed 

at the meeting) for an excess emissions and reporting rule. We met as a 

state group today and determined that the next step was to send this 

draft for your consideration and comment. 
Draft Feb 15, 2005
 

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 

an 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 enforcement proceeding, a response or 

defense put forward by a source, regarding which the source has 

thc 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 and unavoidable 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 

specifically included in a rule, an approval order or a permit or 

are derived from federally promulgated performance standards or 

emissions limits, to include new source performance standards 

(NSPS)-,-and national emissions standards for hazardous air 

pollutants (NESHAPS), or other federal performance standards. 

(2) Violations and in which case those requirements shall 

apply and the provisions of this Section R307-107 shall not 

apply. 

(2) Affirmative Defense for Malfunctions. Excess emissions 

due to-ffialfunction 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 

emissions due to malfunction shall have an affirmative defense to 

a civil, -an administrative, or other judicial 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 air pollution control 

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 including 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 either from the source or as part 

of a group of sources 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, 

startuPT 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, excess emissions due to startup or shutdown has an 

affirmative defense to a civil, an administrativeT or other 

judicial 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 infreguent and 
could not have been prevented through careful planning and design 

consistent with good industry air pollution control 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 

including manufacturers' recommendations and general industry 

adopted practices. 

(e) The frequency and duration of operation in scheduled 

maintenance, startuPT 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 either from the source or as part 

of a group of sources 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 ''''hether an affirmative defense has been 

established for eJECeSS emissions incidents based on the criteria 

and information identified in subections (2) and (3) above. .~

affirmative defense may, but need not, be established pursuant to 

a judicial or administrative proceeding. 

(5) In cases 'there 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 to the 

executive secretary any excess emissions with a duration of two 

hours or longer. Failure to comply with the following reporting 

requirements and procedures shall preclude the use of the 

affirmative defense provisions specified in Section R307-107-2. 

(a) Initial Report. The source shall notify the executive 

secretary by telephone or facsimile within three hours of the 

time the owner or operator first learns of the occurrence of 

excess emissions of a duration of two hours or longer. The 

notification shall include the information listed in subsection 

(b) below to the extent that is available to the source at the 

time of the initial report. During times other than normal 

office hours, excess emissions for any period longer than two 

hours shall be initially reported to the Utah Department of 

Environmental Quality 24-hour Answering Service at 801-536-4123. 

(b) Detailed Report. In the case of excess emissions with 

a duration of two hours or longer, the source shall provide the 

executive secretary with a detailed excess emissions report 

within seven calendar days of the time the initial report was 

due. The report shall include the following: 

(i) the company name and location, and the identity of each 

stack or other emission point where the excess emissions 

occurred; 

(ii) the magnitude of the excess emissions expressed in the 

units of the applicable emission limitation and the operating 

data and calculations used in determining the magnitude of the 

excess emissions; 

(iii) the date, starting time, and duration or expected 

duration of the excess emissions to include indicating who first 

identified the excess emissions and when; 

(iv) the identity of the equipment from which the excess 

emissions emanated; 

(v) a specific explanation of the cause and nature of the 

emissions; 

(vi) the steps taken to remedy the excess emissions, and 

the steps taken or planned to prevent the recurrence of the 

excess emissions; 

(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 relevant records on-site and available 

for review for two years after the excess emissions end.