ExcessEmissionsDraft RichardLong,RonRutherford.JonahStaller, FredNelson to:jholtkamp,Reed,bill.lawson,michael.jenkins, 03/02/200512:18PM**"""~""** 

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ExcessEmissionsDraft2-15-2005'oOC

Following our meeting - I attempted toprepare 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 andReporting. R307-107-1. Purpose andDefinitions. (1) The purpose of R307-107 is to establishviolations and

an affirmative defenses for excess emissions causedby malfunctions, scheduledmaintenance, 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 limitationor opacity limit establishedunder statute, rule, approval order, orpermit. 

### (c) "Malfunction" means a sudden and unavoidable failure of

a process, process equipment, or airpollution control equipment
to operate in a normal orusual manner.

R307-107-2. Violations andAffirmativeDefenses for Excess Emissions Due toMalfunctions, ScheduledMaintenance, Startup, and Shutdown. (1) Applicability. R307-107-2 is applicable to all sources except where emission standards, limits, orperformance standards for malfunctions, scheduledmaintenance, startup, or shutdown are identified in a specificrule, approval order, orpermit specifically included in a rule, an approval order or a permit or

are derived from federallypromulgatedperformance standards or emissions limits, to include new source performance standards (NSPS)-,-andnational emissions standards for hazardous air pollutants (NESHAPS), or other federal performance standards. (2) Violations and inwhich case those requirements shall apply and the provisions of this SectionR307-107 shall not apply. (2) Affirmative Defense for Malfunctions. Excess emissions due to-ffialfunction shall constitute a violationunless 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 otherjudicialproceeding, 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 causedbya malfunctionwhich

was beyond the control of the owner or operator.(b) The excess emissions didnot stem from any activityor event that couldhave been foreseen, avoided, orplanned for, and could not have been avoided by good design, operation, and maintenance consistent with good industry airpollution control practices. (c) The air pollution control equipment orprocesses were maintained and operated in a manner consistent with goodpractice for minimizing emissions such as includingmanufacturers' recommendations and general industryadoptedpractices. (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 tominimize the impact of the excess emissions on ambient air quality. (g) All emission-monitoring systems were kept inoperation 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 operatorprovided 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 didnot cause or contribute to an exceedance of the National Ambient Air Quality Standards or the Prevention of Significant Deterioration increments. (3) Violations andAffirmative Defense for Scheduled Maintenance, Startup or Shutdown. Excess emissions due to scheduledmaintenance, startup, or shutdown shall constitute a violationunless the incident qualifies for an affirmative defense under this subsection, R307 107 2(3). If excess emissions occur due to malfunctions during scheduledmaintenance, startuPT or shutdown, those instances shall be treated as malfunctions subject to subsection (2) above. Otherwise, the

owner oroperator of a source with emissions in excess of an applicable emission limitationdue to scheduledmaintenance, startup, excess emissions due to startup or shutdownhas an affirmative defense to a civil, an administrativeT or other judicialproceeding, 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 shutdownwere short and infreguent andcould not have beenprevented through careful planning and design consistent with good industry airpollution control practices. (b) The excess emissions were not part of a recurring pattern indicating inadequate design, operation, ormaintenance. (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 propertydamage. (d) At all times, the facility was operated ina manner consistent with goodpractice for minimizing emissions such as includingmanufacturers' recommendations and general industry adoptedpractices. (e) The frequency and durationof operation in scheduled maintenance, startuPT or shutdownmode 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 emissionmonitoring systems were kept in operation if possible. (h) The owner or operator's actions during the periodof

excess emissions were documented by contemporaneous operating logs or other relevant evidence. (i) The owner or operatorprovidednotice 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 establishedpursuant to

a judicial or administrative proceeding. (5) In cases 'there an excess emissions incident does not qualify for an affirmative defense, the executive secretary orboardmay evaluatepenalties through the exercise of enforcement discretion based on an assessment of all relevant information and the penaltypolicy of the board which could result in a determination of no penalties orup to the maximumpenalties, depending upon the circumstances. (6) Nothing in this SectionR307 107 2 shall be construed to limit the authority of the Board to seek injunctive relief or to enforce the provisions of the UtahAir ConservationAct, Title 19, Chapter 2, and the rules promulgatedunder it.

R307-107-3. Recording andReporting Requirements. (1) This SectionR307-107-3 is applicable to all sources. Recording and reporting requirements in any other rule, approval order, permit, or enforcement order are in addition to therequirements 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 complywithboth 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 secretaryany 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 SectionR307-107-2. (a) Initial Report. The source shall notify the executive secretaryby telephone or facsimile within three hours of the time the owner or operator first learns of the occurrence of

excess emissions of a durationof 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 anyperiod longer than two hours shall be initiallyreported to the Utah Department of Environmental Quality 24-hourAnswering Service at 801-536-4123. (b) DetailedReport. In the case of excess emissions with

a duration of two hours or longer, the source shall provide the executive secretarywith 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 identityof each stack or other emissionpoint where the excess emissions occurred; (ii) the magnitude of the excess emissions expressed in the units of the applicable emission limitationand the operating data and calculations used in determining the magnitude of the

excess emissions; (iii) the date, starting time, and durationor expected durationof the excess emissions to include indicatingwho first identified the excess emissions andwhen; (iv) the identityof the equipment from which the excess emissions emanated; (v) a specific explanationof the cause andnature of the emissions; (vi) the steps taken to remedy the excess emissions, and the steps taken orplanned toprevent the recurrence of the

excess emissions; (vii) the steps that were or arebeing taken to limit the

excess emissions; and (viii) the steps taken to complywith any applicable procedures governing operations duringperiods of excess emissions. (3) Recording. For excess emissions from malfunction, scheduledmaintenance, startup, or shutdown, the company shall keep the information necessary-to demonstrate an affirmativedefense under R307 107 2 relevant records on-site and available for review for two years after the excess emissions end.