### 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 UtahDivision ofAir Quality P.O. Box 144820 Salt Lake City, UT 84114-4820
RE: ATTN: Excess Emissions and Reporting
DearMr. 

### 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 previouslyraised with the state's "Unavoidable Breakdown"rule. Unfortunately, ourpreliminaryreview ofthe proposed rule indicates that it is not approvable as a state implementation plan (SIP) revision. Our comments are containedbelow and in the enclosure to this letter. Please include these comments in your rulemaking record.
Wehave several main concerns with the draft rule, as follows:
1. 

### In more than oneplace, 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 ofthe CleanAir Act. Any rule ofthis nature mustbe 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 mightbe construed to mean that the decision ofthe executive secretary is binding on EPA and citizens. This provision is inconsistent with the structure oftheClean Air Act, which allows independent EPA and citizen enforcement ofviolations, regardless ofthe 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 ofproduction equipment or other facility shutdowns. The incentive to use appropriate scheduling/practices to avoid excess emissions during scheduled maintenance should not be diminished byproviding 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 secretaryand board have discretion to refrain from pursuing an enforcement action or to evaluate a range ofpenalties. However, this section ofthe rule must be clear that the executive secretary's orboard's decision whether ornot to pursue an enforcement action, or regarding the appropriate amount ofpenalties, 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, orperfonnance 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 reliefofan affinnative defense when the applicable standard includes an exemption or speciallydesigned limit for startup, shutdown, or malfunction conditions. Forexample, manynew source perfonnance standards (NSPS) limits do not apply during startup, shutdown, ormalfunction.
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, orpennitwould 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 industrypractice." This is not an appropriate standard for measuring owner or operator actions, as good industrypractice might not always be adequate to meet the requirements ofthe 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 ofour concerns are addressed. We do not believe we will be able to propose approval ofthe 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 preliminaryreview ofthe draft rule. These views should not be considered our final position,

2which we will onlyreach through notice and comment rulemaking after the state has submitted a rule for our approval as a SIP revision.
Please contact me, orhave your staffcontact Laurie Ostrand, ifyou have any questions regarding this letter. We can both bereached at (800) 227-8917.


## (

# 1-~.~ ong,Di

# ~tor . atlOn ogr Enclosures

cc: Cheryl Heying, UDAQ Fred Nelson, UDAQ

3Enclosure
EPA Comments on Excess Emissions and Reporting Rule, R307-107

1. The draft rule confuses the concept ofan affinnative defense with the concept of enforcement discretion. Bydefinition an affinnative defense is a defense that maybe raised in the context ofan enforcement proceedingbefore an independent trier offact. 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 ofenforcement discretion. While the state might decide not to pursue an enforcement actionbased on such an evaluation, ifEPA or citizens were to pursue enforcement action, an independent trier offact might reach a conclusion different from the state's

- i.e., that the owner/operatorhad not proved the elements ofthe affinnative defense.
We want to ensure that the independent enforcement discretion ofEPA and citizens under the CleanAirAct is preserved. Accordingly, Utah's rule must make clearthat all excess emissions are violations, and that a state decisionnot to pursue enforcement action does not bar EPA or citizen enforcement ofthe 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 properlydesign, 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 AirAct health and welfarebased standards. Formore 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: PolicyRegarding 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 ofaffinnativedefense at R307-107-1(2)(a) as follows:
"Affinnative Defense" means, in the context ofan enforcement proceeding for an excess emissions incident, a response or defense put forward by a source for the purpose ofestablishing that the violation shouldnot be subject to penalties, regarding which the source has the burden ofproof, and the merits ofwhich are independently and objectively evaluated in ajudicial or administrative proceeding for the putpose ofestablishing 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 considerthe likelihood that the source would be able to provethe elements ofthe affirmative defense as described in subsections (2) and (3) above. A decisionby the executive secretarY to notpursue enforcement for an incident is not intended to bar or otherwise affect the enforcementrights ofEPA or citizens underthe CleanAirAct.

c. Delete orrevise R307-107-2(5) because it suggests that the affirmative defense determination is madebythe executive secretary and that this determination precedes enforcement action. Ifyou wish to revise this subsection, augment the above language for R307-107-2(4) as follows: (4} Enforcement Discretion. In determining whetherto pursue an enforcement action for a particularexcess emissions incident. the executive secretarymay considerthe likelihood thatthe 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 whetherto pursue anenforcement action, andconsideration of such information andthe penaltypolicy ofthe board in a given instance could result in a determination ofno penalties orupto the maximwnpenalties, depending onthe circumstances. A decision by the executive secretary or the board to notpursue enforcement for an incident. or a decision by eitherthe executive secretarY orthe board regarding penalty amount. is not intendedto bar or otherwise affectthe enforcementrights·ofEPA or citizens underthe Clean Air Act.
d. Delete from R307-107-2(2) the phrase "unless the incident qualifies for an affirmative defense underthis 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 underthis subsection, R307-107-2(3)." All excess emissions constitute violations; thus, the "unless" clauseis not appropriate.
2. The draft new rule allows an affirmative defense for excess emissions during "scheduled maintenance." InEPA'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 oroperator shouldbe able to schedule maintenance that might otherwise lead to excess emissions to coincide with maintenance on production equipment or during other facility shutdowns. Itis not appropriate to provide any incentive to owners oroperators, inthe form of an affirmative defense to penalties, to schedule maintenance on control equipment while they

2continue to operateproductionprocesses. 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 AirAct that any excess emissions during maintenance activities shouldbe addressed only through the exercise ofenforcement discretion and not through theprovision ofan affirmative defense. For further discussion ofhow we view maintenance activities, see the enclosed April 27, 1977 and November 8, 1977 Federal Registernotices.
Before we could propose to approve the draft new rule, (1) "Scheduled Maintenance" would have to beremoved 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. Theprovision reads: "R307-107-2 is applicable to all sources except where emission standards, limits, orperformance standards for malfunctions, scheduled maintenance, startup, or shutdown are identified in a specific rule, approval order, orpermit, to include new source performance standards (NSPS), arid national emissions standards for hazardous airpollutants (NESHAPS), orother 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 withit. There is no reason to provide the reliefofan affirmative defense for these federal performance standards because EPA setthese standards taking into account technological limitations. While there are federal standards that contain exemptions or specify special limits for startup, shutdown, and/ormalfunctions, there are otherfederal 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, ormalfunction. To protect the integrity ofthese federal performance standards, any affirmative defense rule must not apply to suchperformance standards or to SIP provisions that derive from such federally promulgated performance standards orlimits. The rule must be revised to fully address this concern. The reference to otherrules, approval orders, and permits is overlybroad. Itcould 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 theposition ofinadvertently sanctioning, through our approval ofthis provision, affirmative defense provisions adopted in othercontexts that are less stringent than what is necessaryto ensureprotection ofthe NAAQS, increments, etc. Thus, before we could propose approval, any allusion to otherrules, approval orders, orpermits would have to be narrowed considerably.
To address the concerns we express above, the language shouldberevised 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 ofthe following: (a) New source performance standards (NSPS), national emissions standards for hazardous airpollutants (NESHAPS), acid rain limits, or other federally promulgatedperformance standards orlimits, 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 ofsignificant deterioration (PSD)] orlowest achievable emission rate (LAER) limits. (d) Emissions limits that alreadyinclude 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 oris appropriate (for example, where the language ofthe limit specifies that it applies at all times.)"
4. While the draft rule includes manyofthe 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 Actrequirements and that require'revision, as described below:

a. The definition ofmalfunction at R307-107-1(2)(c) indicates that it is a sudden failure ofaprocess, process equipment, or airpollution control equipmentto operate in a nonnal or usual manner. The definition ofmalfunction needs to include the concept that not onlyis it a "sudden" failure butalso an "unavoidable" failure. EPAhas 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 September28, 1982 and February 15, 1983, both entitled "Policyon Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions"; EPA's 1999 policymentioned above; and the definition ofmalfunction in the NSPS regulations at 40 CFR 60.2.
To enable us to propose to approvethe draft new rule, the definition of malfunction at R307-107-I(2)(c) shouldbe revised to read: "Malfunction: means a sudden and unavoidable failure ofaprocess, process equipment, or airpollution control equipment to operate in a normal or usual manner."
b. The second sentence ofR307-107-2(2) maybe read to broaden the affirmative

4defense to something in addition to penalties and includes the undefined phrase "otherproceeding." Based on ourinterpretation ofthe Clean Air Act, it is only appropriate to approve an affirmative defense to penalties and to limit the application ofthe defense tojudicialor administrative enforcementproceedings. Therefore, to enable us to propose approval, this sentence shouldberevised as follows:
"The owner or operator ofa source with emissions in excess ofan applicable emission limitation due to malfunction shall have an affirmative defense to penalties, but not injunctive relief, in ajudicial or administrative enforcement action, provided the owner oroperator ofthe source has demonstrated all ofthe following:"
The corresponding sentence in R307-107-2(3) should be changed accordingly.

c. The reference to "good industrypractices" inR307-107-2(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 of judicial and administrative interpretation, we are not familiar with the term "good industry practices." We are concerned that it may encompass actions that maynotbe sufficientlyprotective ofthe NAAQS and increments. Furthermore, the idea behind these provisions is that the affirmative defense should onlybe available if a source has done all it can to prevent the excess emissions. Likewise, the language regarding the exercise ofgood airpollution control practices in R307­ 107-2(2)(c) and (3)(d), should embody the notion that all steps were taken and should notbe tempered byreference to general industry adopted practices. Similarly, the language in R307-107-2(2)(e) and (3)(e) must require maximum effort on the part ofthe 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, orplanned for, and could not havebeen avoided bygood better design, operation, and maintenance consistent with good industry practices. (c) To the maximum extent practicable, ritethe air pollutioncontrol 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 extentpracticable during periods ofsuch 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 beenprevented through careful planning and design consistent with good industry practices. (d) At all times, the facility was operated in amannerconsistent with good practice for minimizing emissions, such as including manufacturers' recommendations and general industry adopted practices. (e) The frequency and duration ofoperation in scheduled maintenance, startup or shutdown mode were minimized to the maximum extentpracticable.
5. To assure protection oftheNAAQS and increment, the affirmative defense provisions for startup, shutdown andmalfunction should also containprovisions that limit the affirmative defense to areas and pollutants where a single source or small group ofsources does not have the potential to cause an exceedance ofthe NAAQS orPSD increments. This wouldbe consistent with our 1999 policy.
6. R307-107-3 contains the reporting and recordkeeping requirements. We are also concernedthat the reporting requirement only applies to excess emissions lasting two hours or longer. Itwould be helpful ifyou 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 mightbe particularlyegregious, part ofa recurringpattern, orcomprise numerous violations. (For example, in a two hour period, you could have 20 violations ofan opacity standard.) Are there other reporting requirements that would still applyto all excess emissions?

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