UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 8
 

999 18TH STREET· SUITE 300
 

DENVER, CO 80202·2466
 

Phone 800-227·8917
 

http://www.epa.gov/region08
 

OCT 22 3JJ4 

Ref: 8P-AR 

Rick W. Sprott, Director 

Utah Division of Air Quality 

P.O. Box 144820 

Salt Lake City, UT 84114-4820 

RE: ATTN: Excess Emissions and Reporting 

Dear Mr. Sprott: 

I am writing to provide comments on the proposed new rule R307-107, General 

Requirements: Excess Emissions and Reporting. We appreciate your efforts to develop a rule to 

address concerns we have previously raised with the state's "Unavoidable Breakdown" rule. 

Unfortunately, our preliminary review of the proposed rule indicates that it is not approvable as a 

state implementation plan (SIP) revision. Our comments are contained below and in the 

enclosure to this letter. Please include these comments in your rulemaking record. 

We have several main concerns with the draft rule, as follows: 

1.	 In more than one place, the draft rule provides that the affinnative defense could be 

asserted to establish that excess emissions do not constitute a violation. This is not 

appropriate because it is not consistent with the requirements of the Clean Air Act. Any 

rule of this nature must be clear that all excess emissions constitute violations, and that 

the affinnative defense is available only for penalties and not for injunctive relief. The 

draft rule is not clear on this point and it must be revised 

2.	 The draft rule (R307-107-2(4» provides that the executive secretary detennines whether 

an affinnative defense has been established. This provision might be construed to mean 

that the decision of the executive secretary is binding on EPA and citizens. This 

provision is inconsistent with the structure ofthe Clean Air Act, which allows 

independent EPA and citizen enforcement of violations, regardless of the state's decisions 

in exercising its enforcement discretion. The draft rule must be revised to address this 

concern. 

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3.	 The draft rule provides an affinnative defense for excess emissions during scheduled 

maintenance. This is inappropriate under the Crean Air Act because sources should be 

able to schedule maintenance that might otherwise lead to excess emissions to coincide 

with maintenance of production equipment or other facility shutdowns. The incentive to 

use appropriate scheduling/practices to avoid excess emissions during scheduled 

maintenance should not be diminished by providing an affinnative defense. 

4.	 The draft rule includes a provision (R307-107-2(5)) regarding the exercise of 

enforcement discretion by the executive secretary or the board. We agree that even when 

the affinnative defense might not be available to a source, the executive secretary and 

board have discretion to refrain from pursuing an enforcement action or to evaluate a 

range of penalties. However, this section of the rule must be clear that the executive 

secretary's or board's decision whether or not to pursue an enforcement action, or 

regarding the appropriate amount of penalties, does not bind EPA or citizens. 

5.	 The draft rule provides (at R307-107-2(l)) that it applies to all sources except where 

emission standards, limits, or perfonnance standards for malfunctions, scheduled 

maintenance, startup, or shutdown are identified in a specific rule, approval order, or 

pennit. From one standpoint, this provision makes sense - there is no need to provide the 

relief of an affinnative defense when the applicable standard includes an exemption or 

specially designed limit for startup, shutdown, or malfunction conditions. For example, 

many new source perfonnance standards (NSPS) limits do not apply during startup, 

shutdown, or malfunction. 

From another standpoint, however, this provision is overly broad because it could be read 

to mean that less stringent affinnative defense criteria or outright exemptions established 

in a state rule, approval order, or pennit would take precedence over the requirements of 

R307-107-1, 2, and 3 and not protect the national ambient air quality standards (NAAQS) 

or increment. Accordingly, R307-107-2(1) must be revised as indicated in the enclosure 

to this letter. 

6.	 The draft rule uses the concept of "good industry practice." This is not an appropriate 

standard for measuring owner or operator actions, as good industry practice might not 

always be adequate to meet the requirements of the Clean Air Act. 

The above concerns, along with others, are discussed in the enclosure to this letter. The 

enclosure suggests language to revise the rule so that all of our concerns are addressed. We do 

not believe we will be able to propose approval of the draft new rule as a SIP revision unless all 

the concerns are addressed. 

Please note that this letter and the enclosure contain our current views based on a 

preliminary review of the draft rule. These views should not be considered our final position, 

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which we will only reach through notice and comment rulemaking after the state has submitted a 

rule for our approval as a SIP revision. 

Please contact me, or have your staff contact Laurie Ostrand, if you have any questions 

regarding this letter. We can both be reached at (800) 227-8917. 

( 

ong, 1-~.~ Di ~tor . 

atlOn ogr 

Enclosures 

cc: Cheryl Heying, UDAQ 

Fred Nelson, UDAQ 

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Enclosure 

EPA Comments on Excess Emissions and Reporting Rule, R307-107 

1. The draft rule confuses the concept of an affinnative defense with the concept of 

enforcement discretion. By definition an affinnative defense is a defense that may be raised in 

the context of an enforcement proceeding before an independent trier of fact. Before pursuing an 

enforcement action, the state might evaluate the likelihood that an owner/operator could prove 

the elements ofthe affinnative defense, but this would go to the state's exercise of enforcement 

discretion. While the state might decide not to pursue an enforcement action based on such an 

evaluation, if EPA or citizens were to pursue enforcement action, an independent trier of fact 

might reach a conclusion different from the state's - i.e., that the owner/operator had not proved 

the elements ofthe affinnative defense. 

We want to ensure that the independent enforcement discretion of EPA and citizens under 

the Clean Air Act is preserved. Accordingly, Utah's rule must make clear that all excess 

emissions are violations, and that a state decision not to pursue enforcement action does not bar 

EPA or citizen enforcement of the applicable requirements. 

The other reason it is appropriate to define all excess emissions as violations is to ensure 

that owners and operators have appropriate incentives to properly design, operate, and maintain 

their facilities. The goal is continuous compliance with emissions limits so as to protect the 

national ambient air quality standards (NAAQS) and other Clean Air Act health and welfarebased standards. For more discussion ofEPA's views related to this principle, please see the 

enclosed September 20, 1999 EPA memorandum from Steven A. Hennan and Robert Perciasepe 

to Regional Administrators entitled "State Implementation Plans: Policy Regarding Excess 

Emissions During Malfunctions, Startup, and Shutdown" and April 27, 1977 and November 8, 

1977 Federal Register notices on the same topic. 

Consistent with the foregoing, we recommend the following changes to enable us to 

propose approval ofthe rule: 

a. Revise the definition ofaffinnative defense at R307-107-1(2)(a) as follows: 

"Affinnative Defense" means, in the context of an enforcement proceeding for an 

excess emissions incident, a response or defense put forward by a source for the 

purpose of establishing that the violation should not be subject to penalties, 

regarding which the source has the burden ofproof, and the merits of which are 

independently and objectively evaluated in a judicial or administrative proceeding 

for the putpose of establishing that the incident does not constitute a violation. 

b. Delete R307-l07-2(4) or revise it as follows: 
(4} Enforcement Discretion. In determining whether to pursue an 

enforcement action for a particular excess emissions incident, the executive 

secretarY may consider the likelihood that the source would be able to prove the 

elements ofthe affirmative defense as described in subsections (2) and (3) above. 

A decision by the executive secretarY to not pursue enforcement for an incident is 

not intended to bar or otherwise affect the enforcement rights of EPA or citizens 

under the Clean Air Act. 

c.	 Delete or revise R307-107-2(5) because it suggests that the affirmative defense 

determination is made by the executive secretary and that this determination 

precedes enforcement action. If you wish to revise this subsection, augment the 

above language for R307-107-2(4) as follows: 

(4}	 Enforcement Discretion. In determining whether to pursue an 

enforcement action for a particular excess emissions incident. the executive 

secretary may consider the likelihood that the source would be able to prove the 

elements ofthe affirmative defense as described in subsections (2) and (3) above. 

The executive and the board retain discretion to consider all relevant information 

in determining whether to pursue an enforcement action, and consideration of 

such information and the penalty policy ofthe board in a given instance could 

result in a determination of no penalties or up to the maximwn penalties, 

depending on the circumstances. A decision by the executive secretary or the 

board to not pursue enforcement for an incident. or a decision by either the 

executive secretarY or the board regarding penalty amount. is not intended to bar 

or otherwise affect the enforcement rights·ofEPA or citizens under the Clean Air 

Act. 

d.	 Delete from R307-107-2(2) the phrase "unless the incident qualifies for an 

affirmative defense under this subsection, R307-107-2(2)." All excess emissions 

constitute violations; thus, the "unless" clause is not appropriate. 

e.	 Delete from R307-107-2(3) the phrase "unless the incident qualifies for an 

affirmative defense under this subsection, R307-1 07-2(3)." All excess emissions 

constitute violations; thus, the "unless" clause is not appropriate. 

2. The draft new rule allows an affirmative defense for excess emissions during "scheduled 

maintenance." In EPA's view, it is not appropriate under the Clean Air Act to provide an 

affirmative defense for excess emissions during maintenance activities. Among other things, an 

owner or operator should be able to schedule maintenance that might otherwise lead to excess 

emissions to coincide with maintenance on production equipment or during other facility 

shutdowns. It is not appropriate to provide any incentive to owners or operators, in the form of 

an affirmative defense to penalties, to schedule maintenance on control equipment while they 

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continue to operate production processes. In this regard, you should note that our September 

1999 policy does not discuss allowing an affirmative defense for excess emissions during 

maintenance activities. This omission was intentional and based on our interpretation ofthe 

Clean Air Act that any excess emissions during maintenance activities should be addressed only 

through the exercise of enforcement discretion and not through the provision of an affirmative 

defense. For further discussion ofhow we view maintenance activities, see the enclosed April 

27, 1977 and November 8, 1977 Federal Register notices. 

Before we could propose to approve the draft new rule, (1) "Scheduled Maintenance"
 

would have to be removed from the section title ofR307-107-2; and (2) all references to
 

"scheduled maintenance" would have to be removed from R307-107-1(1), R307-107-2(1), (3),
 

(3)(a), (3)(e), and R307-107-3(3), and any other locations these words appear.
 

3. R307-107-2(1) is inconsistent with Clean Air Act requirements. The provision reads: 

"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), 

arid national emissions standards for hazardous air pollutants (NESHAPS), or other federal 

performance standards." 

To the extent this provision indicates that the affirmative defense is not available for 

exceedances ofNSPS, NESHAPS, or other federal performance standards, we agree with it. 

There is no reason to provide the relief of an affirmative defense for these federal performance 

standards because EPA set these standards taking into account technological limitations. While 

there are federal standards that contain exemptions or specify special limits for startup, 

shutdown, and/or malfunctions, there are other federal standards that apply at all times, including 

during startup, shutdown, and malfunction. For example, the S02 limit for IndustrialCommercial-Institutional Steam Generating Units at 40 CFR 60.42b contains no exception or 

special limit for startup, shutdown, or malfunction. To protect the integrity ofthese federal 

performance standards, any affirmative defense rule must not apply to such performance 

standards or to SIP provisions that derive from such federally promulgated performance 

standards or limits. The rule must be revised to fully address this concern. 

The reference to other rules, approval orders, and permits is overly broad. It could be 

read to mean that separate affirmative defense criteria could be established in a rule, permit, or 

approval order. We do not want to be in the position ofinadvertently sanctioning, through our 

approval of this provision, affirmative defense provisions adopted in other contexts that are less 

stringent than what is necessary to ensure protection of the NAAQS, increments, etc. Thus, 

before we could propose approval, any allusion to other rules, approval orders, or permits would 

have to be narrowed considerably. 

To address the concerns we express above, the language should be revised as follows: 

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"R307-107-2 applies to all emissions limitations or standards except that the affinnative 

defense contained herein is not available for violations of the following: 

(a)	 New source performance standards (NSPS), national emissions standards for 

hazardous air pollutants (NESHAPS), acid rain limits, or other federally 

promulgated performance standards or limits, or SIP provisions derived from such 

standards or limits. 

(b)	 Emissions limits with an averaging time greater than 24 hours. 

(c)	 Best available control technology (BACT) [under prevention of significant 

deterioration (PSD)] or lowest achievable emission rate (LAER) limits. 

(d)	 Emissions limits that already include special treatment for startup, shutdown, and 

malfunction conditions. 

(e)	 Emissions limits where it is apparent that no special treatment for startup, 

shutdown, and malfunction conditions was intended or is appropriate (for 

example, where the language ofthe limit specifies that it applies at all times.)" 

4. While the draft rule includes many of the affirmative defense elements that are necessary 

to meet the requirements ofthe Clean Air Act, the draft rule contains a number ofprovisions that 

will undermine compliance with Clean Air Act requirements and that require'revision, as 

described below: 

a.	 The definition of malfunction at R307-107-1(2)(c) indicates that it is a sudden 

failure of a process, process equipment, or air pollution control equipment to 

operate in a nonnal or usual manner. The definition of malfunction needs to 

include the concept that not only is it a "sudden" failure but also an "unavoidable" 

failure. EPA has long held that a malfunction is a "sudden and unavoidable 

failure." See definition of "malfunction" promulgated for the Kennecott smelter 

complex at 40 CFR 52.2325(e)(2)(ii) on April 27, 1977; EPA policies dated 

September 28, 1982 and February 15, 1983, both entitled "Policy on Excess 

Emissions During Startup, Shutdown, Maintenance, and Malfunctions"; EPA's 

1999 policy mentioned above; and the definition of malfunction in the NSPS 

regulations at 40 CFR 60.2. 

To enable us to propose to approve the draft new rule, the definition of 

malfunction at R307-107-I (2)(c) should be revised to read: "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." 

b. The second sentence ofR307-107-2(2) may be read to broaden the affirmative 

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defense to something in addition to penalties and includes the undefined phrase 

"other proceeding." Based on our interpretation of the Clean Air Act, it is only 

appropriate to approve an affirmative defense to penalties and to limit the 

application ofthe defense to judicial or administrative enforcement proceedings. 

Therefore, to enable us to propose approval, this sentence should be revised as 

follows: 

"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 

penalties, but not injunctive relief, in a judicial or administrative enforcement 

action, provided the owner or operator ofthe source has demonstrated all of the 

following:" 

The corresponding sentence in R307-107-2(3) should be changed accordingly. 

c.	 The reference to "good industry practices" in R307-1 07-2(2)(b) and (3)(a) is not 

appropriate. While the term "good air pollution control practices for minimizing 

emissions" is contained in the NSPS and has been the subject ofjudicial and 

administrative interpretation, we are not familiar with the term "good industry 

practices." We are concerned that it may encompass actions that may not be 

sufficiently protective of the NAAQS and increments. Furthermore, the idea 

behind these provisions is that the affirmative defense should only be available if 

a source has done all it can to prevent the excess emissions. Likewise, the 

language regarding the exercise ofgood air pollution control practices in R307­

107-2(2)(c) and (3)(d), should embody the notion that all steps were taken and 

should not be tempered by reference to general industry adopted practices. 

Similarly, the language in R307-107-2(2)(e) and (3)(e) must require maximum 

effort on the part of the source to minimize emissions. Accordingly, to enable us 

to propose approval, these provisions should be changed consistent with the 

following: 

R307-107-2(2): 

(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 

better design, operation, and maintenance consistent with good industry practices. 

(c) To the maximum extent practicable, rite the air pollution control equipment or 

processes were maintained and operated in a manner consistent with good practice 

for minimizing emissions, including such as manufacturers' recommendations. 

and genelal industIy adopted plactices. 

(e) The amount and duration ofthe excess emissions (including any bypass of 

control equipment) were minimized to the maximum extent practicable during 

periods of such emissions. 

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In R307-107-2(3): 

(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. 

(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, startup or 

shutdown mode were minimized to the maximum extent practicable. 

5. To assure protection ofthe NAAQS and increment, the affirmative defense provisions for 

startup, shutdown and malfunction should also contain provisions that limit the affirmative 

defense to areas and pollutants where a single source or small group of sources does not have the 

potential to cause an exceedance ofthe NAAQS or PSD increments. This would be consistent 

with our 1999 policy. 

6. R307-107-3 contains the reporting and recordkeeping requirements. We are also 

concerned that the reporting requirement only applies to excess emissions lasting two hours or 

longer. It would be helpful if you could explain to us your thinking behind this provision, 

keeping in mind that there could be instances in which excess emissions lasting less than two 

hours might be particularly egregious, part of a recurring pattern, or comprise numerous 

violations. (For example, in a two hour period, you could have 20 violations of an opacity 

standard.) Are there other reporting requirements that would still apply to all excess emissions? 

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