26892 Federal Register / Vol. 75, No. 92 / Thursday, May 13, 2010 / Proposed Rules 

Meeting Procedures 

(a) Doors open 30 minutes prior to the 

beginning of each meeting. The 

meetings will be informal in nature and 

will be conducted by one or more 

representatives of the FAA Central 

Service Center. A representative from 

the FAA will present a briefing on the 

planned modification to the Class B 

airspace at Detroit, MI. Each participant 

will be given an opportunity to deliver 

comments or make a presentation, 

although a time limit may be imposed. 

Only comments concerning the plan to 

modify the Class B airspace area at 

Detroit, MI, will be accepted. 

(b) The meetings will be open to all 

persons on a space-available basis. 

There will be no admission fee or other 

charge to attend and participate. 

(c) Any person wishing to make a 

presentation to the FAA panel will be 

asked to sign in and estimate the 

amount of time needed for such 

presentation. This will permit the panel 

to allocate an appropriate amount of 

time for each presenter. These meetings 

will not be adjourned until everyone on 

the list has had an opportunity to 

address the panel. 

(d) Position papers or other handout 

material relating to the substance of 

these meetings will be accepted. 

Participants wishing to submit handout 

material should present an original and 

two copies (3 copies total) to the 

presiding officer. There should be 

additional copies of each handout 

available for other attendees. 

(e) These meetings will not be 

formally recorded. However, a summary 

of comments made at the meeting will 

be filed in the docket. 

Agenda for the Meetings 

—Sign-in. 

—Presentation of meeting procedures. 

—FAA explanation of the planned Class 

B airspace area modifications. 

—Solicitation of public comments. 

—Closing comments. 

Issued in Washington, DC, on May 6, 2010. 

Edith V. Parish, 

Manager, Airspace and Rules Group. 

[FR Doc. 2010–11496 Filed 5–12–10; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2006–0132; FRL–9151–2] 

Approval and Promulgation of 

Implementation Plans; Texas; Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunction 

Activities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

partially approve and partially 

disapprove a revision to the Texas State 

Implementation Plan (SIP) submitted by 

the Texas Commission on 

Environmental Quality (TCEQ) in a 

letter dated January 23, 2006 (the 

January 23, 2006 SIP submittal). This 

SIP submittal concerns revisions to 30 

Texas Administrative Code (TAC) 

Chapter 101, General Air Quality Rules, 

Subchapter A General Rules; and 

Subchapter F Emissions Events and 

Scheduled Maintenance, Startup, and 

Shutdown Activities. This action 

proposes approval of those portions of 

the rule that are consistent with the 

Clean Air Act (the Act), and disapproval 

of those portions of the rule that are 

inconsistent with the Act. We are 

proposing disapproval of provisions that 

provide for an affirmative defense 

against civil penalties for excess 

emissions during planned maintenance, 

startup, or shutdown activities. A 

disapproval of these provisions means 

that an affirmative defense is not 

available in the federally approved SIP 

for violations due to excess emissions 

during planned maintenance, startup, or 

shutdown activities. This action is in 

accordance with section 110 of the Act. 

DATES: Comments must be received on 

or before June 14, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2006–0132, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by e-mail to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7263. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8 a.m. and 4 p.m. weekdays 

except for legal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2006– 

0132. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information 

through www.regulations.gov or e-mail 

that you consider to be CBI or otherwise 

protected from disclosure. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 


cprice-sewell on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 92 / Thursday, May 13, 2010 / Proposed Rules 26893 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202– 

2733. 

The State submittal is also available 

for public inspection at the State Air 

Agency listed below during official 

business hours by appointment: TCEQ, 

Office of Air Quality, 12124 Park 35 

Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Alan Shar, Air Planning Section (6PD– 

L), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

(214) 665–6691, fax (214) 665–7263, email address shar.alan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 

Outline 

I. Background 

A. What actions are we proposing? 

B. What documents did we use in our 

evaluation of the January 23, 2006, SIP 

submittal? 

C. What is the background for this 

proposed rulemaking action? 

D. Why are we proposing approval of 

portions of the January 23, 2006 SIP 

submittal? 

E. Why are we proposing disapproval of 

sections 101.222(h), 101.222(i), and 

101.222(j) of the January 23, 2006 SIP 

submittal? 

F. What happens if Texas continues to 

implement section 101.222(h) as a State 

law? 

II. Proposed Action 

III. Statutory and Executive Order Reviews 

I. Background 

A. What actions are we proposing? 

We are proposing to approve revisions 

to 30 TAC, General Air Quality Rule 

101, Subchapter A General Rules; and 

Subchapter F Emissions Events and 

Scheduled Maintenance, Startup, and 

Shutdown Activities of the January 23, 

2006 submittal as revisions to the 

federally-approved SIP. Specifically, we 

are proposing to approve Subchapter A, 

section 101.1 (Definitions); and 

Subchapter F, sections 101.201 

(Emissions Event Reporting and 

Recordkeeping Requirements), 101.211 

(Scheduled Maintenance, Startup, and 

Shutdown Reporting and Recordkeeping 

Requirements), 101.221 (Operational 

Requirements), 101.222(a) through (g) 

(Demonstrations), and 101.223 (Actions 

to Reduce Excessive Emissions) into the 

Texas SIP. 

We are also proposing to disapprove 

sections 101.222(h) (Planned 

Maintenance, Startup, or Shutdown 

Activity), 101.222(i) (concerning 

effective date of permit applications), 

and 101.222(j) (concerning processing of 

permit applications) of the January 23, 

2006 submittal. We are proposing 

disapproval of these provisions because 

they provide for an affirmative defense 

against civil penalties for excess 

emissions during planned maintenance, 

startup, or shutdown activities. A 

disapproval of these provisions means 

that an affirmative defense is not 

available for violations due to excess 

emissions during planned maintenance, 

startup, or shutdown activities in the 

federally-approved SIP. 

Based on our review of the January 

23, 2006 submittal, we believe that 

sections 101.222(h), 101.222(i), and 

101.222(j) are severable from, and 

independent of, the remainder of the 

submittal. Therefore, our disapproval of 

sections 101.222(h), 101.222(i), and 

101.222(j), and approval of the 

remainder of the January 23, 2006 

submittal, will not affect the 

implementation of the sections being 

approved today for inclusion in the SIP. 

See section 20 of our Technical Support 

Document (TSD) prepared in 

conjunction with this document for 

more information. 

B. What documents did we use in our 

evaluation of the January 23, 2006, SIP 

submittal? 

The EPA’s interpretation of the Act as 

it applies to excess emissions occurring 

during periods of startup, shutdown, 

and malfunction is set forth in the 

following documents: A memorandum 

dated September 28, 1982, from 

Kathleen M. Bennett, Assistant 

Administrator for Air, Noise, and 

Radiation, entitled ‘‘Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions’’ (1982 

Policy); EPA’s clarification to the above 

policy memorandum dated February 15, 

1983, from Kathleen M. Bennett, 

Assistant Administrator for Air, Noise, 

and Radiation (1983 Policy); EPA’s 

policy memorandum reaffirming and 

supplementing the above policy, dated 

September 20, 1999, from Steven A. 

Herman, Assistant Administrator for 

Enforcement and Compliance Assurance 

and Robert Perciasepe, Assistant 

Administrator for Air and Radiation, 

entitled ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (1999 Policy); EPA’s final 

rule for Utah’s sulfur dioxide control 

strategy (Kennecott Copper), April 27, 

1977 (42 FR 21472); EPA’s final rule for 

Idaho’s sulfur dioxide control strategy, 

November 8, 1977 (42 FR 58171); and 

the latest clarification of EPA’s policy 

issued on December 5, 2001 (2001 

Policy). See the policy or clarification of 

policy at: http://www.epa.gov/ttn/oarpg/ 

t1pgm.html (URL dating July 22, 2008). 

The EPA’s interpretation that the Act 

prohibits the inclusion in SIPs of 

automatic exemptions from emission 

limitations for sources in certain 

startup, shutdown, or malfunction 

situations was upheld by the United 

States Court of Appeals for the Sixth 

Circuit in Michigan Department Of 

Environmental Quality v. Browner, 230 

F.3d 181 (6th Cir. 2000). 

C. What is the background for this 

proposed rulemaking action? 

On March 30, 2005 (70 FR 16129), we 

granted limited approval to SIP 

revisions to Chapter 101, Subchapter A 

and Subchapter F, including sections 

101.221 (Operational Requirements), 

101.222 (Demonstrations), and 101.223 

(Actions to Reduce Excessive 

Emissions). The rules concerned 

reporting and recordkeeping 

requirements and enforcement actions 

for excess emissions during startup, 

shutdown, maintenance, and 

malfunction activities. We granted 

limited rather than full approval of that 

submission because we found sections 

101.222(c) and (e) were ambiguous 

because they could be interpreted to 

provide an exemption from SIP 

permitting requirements or an 

affirmative defense for certain 

scheduled maintenance activities. See 

also our May 9, 2005 (70 FR 24348) 

proposal, and August 26, 2005 (70 FR 

50205) final rule granting limited 

approval to an extension of the 

expiration dates for sections 101.221, 

101.222 and 101.223 to June 30, 2006. 

As discussed below, however, the 

approved provisions, 30 TAC 101.221, 

101.222, and 101.223 have expired by 

their own terms, are no longer part of 

the Texas SIP, and therefore are no 

longer enforceable under the SIP. 

On January 26, 2006 we received a 

letter, dated January 23, 2006, from the 

Chairman of the TCEQ requesting EPA 

review and approve revisions to 30 


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TAC, General Air Quality Rule 101, 

Subchapter A General Rules; and 

Subchapter F Emissions Events and 

Scheduled Maintenance, Startup, and 

Shutdown Activities. The January 23, 

2006 submittal included revised 30 TAC 

sections 101.1 (Definitions), 101.201 

(Emissions Event Reporting and 

Recordkeeping Requirements), 101.211 

(Scheduled Maintenance, Startup, and 

Shutdown Reporting and Recordkeeping 

Requirements), and new sections 

101.221 (Operational Requirements), 

101.222 (Demonstrations), and 101.223 

(Actions to Reduce Excessive 

Emissions). The previous version of 

sections 101.221, 101.222, and 101.223 

approved into the SIP in 2005 expired 

from the Texas SIP, by their own terms, 

on June 30, 2006. On March 23, 2006, 

we determined the January 23, 2006 

submittal administratively complete as 

reflected in a letter to the Chairman of 

the TCEQ. This administrative 

completeness letter is a part of the 

docket and available for public review. 

On February 8, 2007, EPA met with 

TCEQ to discuss issues related to the 

January 23, 2006 SIP submittal. TCEQ 

responded to our questions in a letter 

dated April 17, 2007 from John F. Steib, 

Jr, Deputy Director, TCEQ Office of 

Compliance and Enforcement to John 

Blevins, Director EPA Compliance 

Assurance and Enforcement Division 

(April 17, 2007 letter). The April 17, 

2007 letter is included in the docket for 

this action. 

We have reviewed the January 23, 

2006 submittal including Texas’ 

response to our August 8, 2005 

comment letter, and the April 17, 2007 

letter and determined that, with the 

exception of the affirmative defense 

provisions discussed below, the January 

23, 2006 SIP submittal is consistent 

with our interpretation of the Act. See 

section D of this document for more 

information. We have determined that 

one of the affirmative defense 

provisions, new section 101.222(h) 

(Planned Maintenance, Startup, or 

Shutdown Activity) of the January 23, 

2006 submittal is inconsistent with the 

Act as interpreted in EPA policy and 

guidance, and therefore we are 

proposing disapproval of the new 

section 101.222(h), and two related 

provisions new sections 101.222(i), and 

101.222(j). See section E of this 

document for more information. If we 

take final action to disapprove the new 

sections 101.222(h), (i) and (j), no 

sanctions or Federal Implementation 

Plan clocks will be started under section 

179(b) of the Act, because Texas did not 

submit these provisions to satisfy a 

mandatory requirement of the Act. A 

final disapproval action will mean that 

no affirmative defense against civil 

penalties will exist in the federally 

approved SIP for violations that occur 

during planned maintenance, startup, or 

shutdown activities. 

D. Why are we proposing approval of 

portions of the January 23, 2006 SIP 

submittal? 

The EPA interprets the Act such that 

all emissions in excess of limits 

established in a SIP, including among 

other things, state control strategies and 

New Source Review SIP permits, are 

violations of the applicable emission 

limitation because excess emissions 

have the potential to interfere with 

attainment and maintenance of the 

National Ambient Air Quality Standards 

(NAAQS), reasonable further progress, 

state control strategies, or with the 

protection of Prevention of Significant 

Deterioration (PSD) increments. 

However, EPA recognizes that 

imposition of a penalty for sudden and 

unavoidable malfunctions, startups or 

shutdowns caused by circumstances 

entirely beyond the control of the owner 

or operator may not be appropriate. The 

EPA has provided guidance on two 

approaches States may use in 

addressing such excess emissions: 

enforcement discretion and affirmative 

defense to civil penalties. Under an 

enforcement discretion approach, the 

State (or another entity, such as EPA, 

seeking to enforce a violation of the SIP) 

may consider the circumstances 

surrounding the event in determining 

whether to pursue enforcement. Under 

the affirmative defense approach, the 

State may establish an affirmative 

defense that may be raised in the 

context of an enforcement proceeding. 

In an enforcement action, the defendant 

may raise a response or defense in an 

action for civil penalties, regarding 

which the defendant has the burden to 

prove that certain criteria have been 

met. See page 2 of the attachment to the 

1999 Policy. 

Neither approach may waive 

reporting requirements for the violation. 

States are not required to provide an 

affirmative defense approach, but if they 

choose to do so, EPA will evaluate the 

State’s SIP rules for consistency with 

the Act as interpreted in our policy and 

guidance documents listed in section B 

above. 

We are proposing to approve 

Subchapter A, revised section 101.1 

(Definitions); and Subchapter F, revised 

sections 101.201 (Emissions Event 

Reporting and Recordkeeping 

Requirements) and 101.211 (Scheduled 

Maintenance, Startup, and Shutdown 

Reporting and Recordkeeping 

Requirements), and new sections 

101.221 (Operational Requirements), 

101.222 (a) through (g) 

(Demonstrations), and 101.223 (Actions 

to Reduce Excessive Emissions), into the 

Texas SIP. TCEQ revised definitions in 

Subchapter A, section 101.1 as needed 

to implement Subchapter F and to 

implement other legislative changes. 

The changes define ‘‘planned 

maintenance, startup, or shutdown’’ and 

‘‘unplanned maintenance, startup, or 

shutdown’’ activities; ‘‘excess opacity 

event;’’ and ‘‘emissions event;’’ and 

replace the terms ‘‘facility’’ and ‘‘site’’ 

with ‘‘regulated entity.’’ The submittal 

also includes several revisions to the 

SIP definition of ‘‘reportable quantity.’’ 

See section 9 of the TSD for more 

information. We believe that the 

revisions to section 101.1 will provide 

for consistency among subchapters A 

and F, and will facilitate 

implementation of the rule. Therefore, 

we are proposing to approve the 

submitted revisions to section 101.1. 

Although we are proposing to approve 

all of the changes to the definitions 

section 101.1, including the definition 

for ‘‘planned maintenance, startup, or 

shutdown,’’ as we have stated we are 

proposing to disapprove the regulatory 

provisions that would provide an 

affirmative defense for violations during 

these events. Our approval of the 

submitted definition ‘‘planned 

maintenance, startup, or shutdown’’ 

insures that the reporting and 

recordkeeping requirements for these 

events will be appropriately applied. 

Revisions to sections 101.201 

(Emissions Event Reporting and 

Recordkeeping Requirements) relate to 

how and where to report excess 

emission events. The revisions make 

numerous changes to the terms of the 

currently approved SIP, including 

adding requirements to file initial 

notifications and final reports with the 

local air pollution agencies with 

jurisdiction and to include TCEQ’s 

regulated entity number with the report; 

modifying the requirement to report by 

facility to instead require reporting by 

emission point; allowing reporting 

without speciation of the pollutants 

emitted for events that have a reportable 

quantity less than 100 pounds or 

amounts less than ten pounds per 24 

hours. Texas made a number of other 

minor revisions to clarify reporting 

requirements that are described in 

section 10 of the TSD. We believe that 

these other revisions to the reporting 

requirements will facilitate 

implementation of the rule by clarifying 

the existing reporting requirements and 

establishing a new requirement that 


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local air pollution authorities be 

informed of emissions events. See 

section 10 of the TSD for more 

information. Therefore, we are 

proposing to approve the revisions to 

section 101.201. 

Revisions to 101.211 (Scheduled 

Maintenance, Startup, and Shutdown 

Reporting and Recordkeeping 

Requirements). This section of the SIP 

was last approved on March 30, 2005 

(70 FR 16129) and had no expiration 

date. See Table II of the TSD. This 

section describes the requirements for 

owners and operator to make an initial 

notification at least 10 days prior to a 

scheduled maintenance, startup or 

shutdown activity and the requirements 

to provide a final report within 2 weeks 

after the event. Texas revised the rules 

to clarify that, if during a scheduled 

maintenance activity additional 

maintenance is required that results in 

unanticipated emissions, and that the 

maintenance was unforeseeable and 

requires immediate corrective action to 

avoid a malfunction, then the event is 

considered an unplanned maintenance 

activity or an upset depending on the 

reasons. This change is relevant to the 

affirmative defense provisions in section 

101.222 which require different criteria 

to be demonstrated in order to assert the 

affirmative defense for upsets and 

unplanned maintenance emission 

events versus planned maintenance, 

startup, and shutdown activities. 

Another change to section 101.211 

requires pre-reporting of the expected 

duration of any maintenance, startup or 

shutdown activity. Section 101.211(f) 

adopts the requirement for annual 

reporting of emissions resulting from 

scheduled maintenance, startup, and 

shutdown activities by a regulated 

entity. For entities subject to emission 

inventory (EI) reporting, the annual 

emissions event report must be 

submitted with the EI report. The 

annual emissions event report must 

include the total number of reportable 

and non-reportable emissions events 

and quantity of emissions experienced 

at the regulated entity. Major sources 

statewide and minor sources in 

nonattainment, maintenance, early 

action compact areas, and Nueces and 

San Patricio Counties are subject to the 

annual emissions event reporting 

requirements. See section 7 of the TSD 

for more information. These revisions to 

section 101.211 will provide for 

reporting and recordkeeping provisions 

associated with scheduled maintenance, 

startup, and shutdown events, and will 

facilitate tracking of these events. 

Therefore, we are proposing to approve 

the revisions to section 101.211. If our 

proposed approval of these reporting 

requirements for scheduled 

maintenance, startup and shutdown 

events is finalized, it only means that 

facilities will need to make these 

required notifications. If we finalize our 

proposed disapproval of section 

101.222(h), an affirmative defense will 

not be available for violations due to 

excess emissions during planned 

maintenance, startup, or shutdown 

activities. 

New Section 101.221 (Operational 

Requirements) discusses the 

requirement to maintain air pollution 

equipment in good working order. A 

previous version of this section was part 

of the SIP but that provision expired. 

This new section is important because 

it provides the requirement that air 

pollution abatement equipment must be 

maintained and in good working order. 

Paragraph (d) in Section 101.221 

provides that the commission may 

exempt sources from control 

requirements when there is a lack of 

technical knowledge. The new section 

101.221 also clarifies that no 

exemptions can be authorized by the 

commission for any federal 

requirements to maintain air pollution 

control equipment, including 

requirements such as New Source 

Performance Standards (NSPS) or 

National Emissions Standards for 

Hazardous Air Pollutants (NESHAP). In 

its letter of April 17, 2007, Texas 

confirmed that the term ‘‘federal 

requirements’’ includes any requirement 

in the federally-approved SIP. Thus, the 

State interprets this provision not to 

apply where the control requirement 

that has been approved as part of the 

SIP. We believe that this interpretation 

is critical to allowing us to approve the 

provision into the SIP. If the TCEQ were 

to be allowed to exempt sources from 

control requirements specified in the 

SIP, such action could undermine the 

attainment and maintenance of the 

NAAQS. Thus, new section 101.221 is 

approvable only because the State has 

clarified that it does not allow 

exemptions to be provided for federal 

requirements including any requirement 

in the federally-approved SIP. See 

sections 13 and 14 of the TSD for more 

information. 

New section 101.222 

(Demonstrations) provides an 

affirmative defense for certain emission 

events. Emission events are defined in 

the Texas rules as upsets that result in 

unauthorized emissions. Upsets are 

defined in the Texas rules similar to the 

term malfunction used in EPA’s 

guidance. Section 101.222(a) provides 

criteria in 101.222(a)(1) through 

101.222(a)(6) to determine if an 

emission event is excessive. If emission 

events are determined by the executive 

director to be excessive, the source may 

not assert an affirmative defense under 

sections 101.222(b) through 101.222(e). 

Section 101.222(b) adopts an affirmative 

defense for non-excessive upset events. 

We have determined that the affirmative 

defense provided by section 101.222(b) 

is consistent with the interpretation of 

the Act set forth in our 1999 Policy for 

the following reasons: (1) The rule does 

not provide an exemption from 

compliance with applicable emission 

limitations; (2) The affirmative defense 

provided is limited to upset or 

malfunctions; (3) The affirmative 

defense applies only to a judicial or 

administrative enforcement action for a 

violation of applicable emission 

limitations; (4) The defense applies only 

to civil penalties and cannot be asserted 

for an enforcement action for injunctive 

relief. (5) The rule specifies criteria, 

which must be met in order to assert the 

defense that are consistent with those 

outlined in EPA’s 1999 Policy; (6) The 

burden to prove that the criteria have 

been met is on the owner or operator; 

(7) A determination by TCEQ that the 

criteria have been met does not 

constitute a waiver of liability for the 

violation; (8) Nothing in the rule, 

including a determination by the TCEQ, 

would bar EPA or a citizen suit 

enforcement action for the emission 

violation; (9) The affirmative defense 

cannot be asserted where the 

unauthorized emissions cause or 

contribute to an exceedance of the 

NAAQS, PSD increments or to a 

condition of air pollution; (10) The 

affirmative defense may not be asserted 

against Federal performance or 

technology-based standards such as 

NSPS or NESHAP; (11) The affirmative 

defense may not be asserted where the 

Executive Director of TCEQ determines 

that the emissions event is excessive 

under the criteria in section 101.222(a); 

and (12) The emissions event must be 

reported to TCEQ under section 101.201 

in order for the owner or operator to 

assert the affirmative defense. 

Sections 101.222(c) and 101.222(e) 

provide a similar affirmative defense for 

unplanned maintenance, startup or 

shutdown activities that arise from 

sudden and unforeseeable events 

beyond the control of the operator that 

require immediate corrective action to 

minimize or avoid an upset or 

malfunction. This provision allows an 

affirmative defense where the source or 

operator has the burden to prove that 

maintenance activities undertaken arose 

from sudden or unforeseeable events 

beyond the control of the operator, that 


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26896 Federal Register / Vol. 75, No. 92 / Thursday, May 13, 2010 / Proposed Rules 

1We also note that we generally believe that for 

planned startup and shutdown events, most sources 

should be able to comply with applicable emission 

limitations. However, for those sources and source 

categories where such compliance is not possible, 

the State should develop alternative, applicable 

emission limits for such events, which they can 

consider in SIPs demonstrating attainment and 

maintenance of the NAAQS, rather than 

establishing an affirmative defense for such 

emission events. 

immediate corrective action was 

required to minimize or avoid an upset 

or malfunction and that the criteria in 

section 101.222(c) or (e) have been met. 

TCEQ provided supplemental 

information concerning sections 

101.222(c) and (e) in a letter dated April 

17, 2007 (included in the docket for this 

action and available for public review) 

in response to questions from EPA. The 

April 17, 2007 letter confirmed that 

TCEQ interprets that unplanned 

maintenance events are ‘‘functionally 

equivalent to EPA’s ‘malfunction’ with 

regards to applicability of an affirmative 

defense.’’ See section 101.1(109)(B). 

Also see Tables III and VIII of our TSD. 

The EPA agrees that TCEQ’s treatment 

of ‘‘unplanned maintenance, startup, or 

shutdown activity’’ is functionally 

equivalent to EPA’s policy definition of 

malfunction. See pages 1 and 2 of the 

April 17, 2007 letter for details. In 

addition, the affirmative defense 

provided by TCEQ, including the 

criteria that a source must prove in 

asserting the affirmative defense is 

consistent with EPA’s recommended 

policy approach for providing an 

affirmative defense for excess emissions 

during a malfunction. Therefore, we are 

proposing approval of 101.222(c) and (e) 

into the Texas SIP. 

As discussed elsewhere, we are 

proposing to disapprove section 

101.222(h), which provides an 

affirmative defense for excess emissions 

during periods of planned maintenance, 

startup or shutdown activities. Sections 

101.222(c)(1) and 101.222(e)(1) both 

include requirements for facilities to 

report scheduled maintenance, startup, 

or shutdown activities. Our approval of 

sections 101.222(c)(1) and 101.222(e)(1) 

only affirms a facility’s requirement to 

provide notification of these events. 

However, while we believe that it is 

appropriate for sources to report such 

events, we do not believe that it is 

appropriate to provide an affirmative 

defense for penalties for excess 

emissions during these planned events. 

Because these events are planned, we 

believe that sources should be able to 

comply with applicable emission limits 

during these periods of time. As 

discussed elsewhere, if we finalize our 

disapproval of section 101.222(h), an 

affirmative defense will not be available 

for unauthorized emissions during these 

activities. 

Section 101.222(d) concerns excess 

opacity events due to an upset or 

opacity events that are not emissions 

events. As noted previously, emissions 

events are upsets that result in 

unauthorized emissions. See 101.1(28). 

Upsets are defined in the Texas rules 

similar to the term malfunction used in 

EPA’s guidance. See Table IV of our 

TSD. The affirmative defense criteria in 

section 101.222(d) are specifically 

tailored for opacity related activities and 

follow the pattern of the criteria in 

101.222(b). Therefore, we are proposing 

to approve the criteria in the section 

101.222(d) provision for the same 

reasons we believe the criteria in 

101.222(b) are consistent with our 

interpretation of the Act as outlined in 

our 1999 Policy, and we are proposing 

to approve section 101.222(d). See Table 

VII of our TSD for more information. 

We are proposing to approve section 

101.222(f) (Obligations) because this 

section provides that an affirmative 

defense cannot apply to violations of 

federally promulgated performance or 

technology-based standards, such as 

those found in 40 CFR parts 60, 61, and 

63. This is consistent with EPA’s 

interpretation of the Act as provided in 

the 1999 Policy at page 3. 

New Section 101.223 (Actions to 

Reduce Excessive Emissions) provides 

for a corrective action plan and written 

notification concerning excessive 

emission events. This section will 

enhance the Texas SIP by providing a 

clear requirement for facilities 

determined to have excessive emission 

events to take necessary corrective 

actions to reduce the future occurrence 

of such events. 

In summary, we are proposing 

approval of 30 TAC, General Air Quality 

Rule 101, Subchapter A, revised section 

101.1 (Definitions); and Subchapter F, 

revised sections 101.201 (Emissions 

Event Reporting and Recordkeeping 

Requirements) and 101.211 (Scheduled 

Maintenance, Startup, and Shutdown 

Reporting and Recordkeeping 

Requirements), and new sections 

101.221 (Operational Requirements), 

101.222 (Demonstrations, except 

101.222(h), 101.222(i), and 101.222(j)), 

and 101.223 (Actions to Reduce 

Excessive Emissions) into the Texas SIP. 

E. Why are we proposing disapproval of 

sections 101.222(h), 101.222(i), and 

101.222(j) of the January 23, 2006 SIP 

submittal? 

New Section 101.222(h) provides a 

temporary affirmative defense for 

planned maintenance, startup, or 

shutdown activity emissions, which are 

currently unauthorized, meet certain 

criteria, and have been reported in 

accordance with section 101.211. See 

section 101.1(109) or Table III of our 

TSD for the definition of unplanned 

maintenance, startup, or shutdown 

activity. 

This section (101.222(h)) also sets 

forth a time table for an owner or 

operator to file a permit application to 

authorize startup, shutdown, and 

maintenance activities from routine or 

normal operations based on facility’s 

SIC code. The affirmative defense for 

planned maintenance, startup, or 

shutdown activities expires the earlier 

of one year after the application 

deadlines in the rule or upon issuance 

or denial of a permit to authorize 

planned maintenance, startup, or 

shutdown activities. We believe that 

section 101.222(h) (Planned 

Maintenance, Startup, or Shutdown 

Activity) is inconsistent with the Act as 

interpreted in EPA’s long-standing 

national policy on excess emissions 

during startup, shutdown, maintenance, 

and malfunction activities and in 

actions taken by EPA regarding excessemissions-related SIP revisions for other 

states; therefore, we are proposing 

disapproval of the provision. If we 

finalize the disapproval, this provision 

would not be included as part of the 

Texas SIP. 

Section 101.222(h) provides an 

affirmative defense for planned 

maintenance activities. It is EPA’s longstanding position expressed in guidance 

documents and other rulemakings that 

planned maintenance activities are 

predictable events that are subject to 

planning to minimize releases, unlike 

malfunctions or upsets, which are 

sudden, unavoidable or beyond the 

control of the owner or operator. Thus, 

States should require sources to comply 

with the applicable emission limits 

during these activities. The EPA’s 

interpretation of section 110 of the Act 

and related policies allows an 

affirmative defense to be asserted 

against civil penalties in an enforcement 

action for excess emissions activities 

which are sudden, unavoidable or 

caused by circumstances beyond the 

control of the owner or operator and 

where emissions control systems may 

not be consistently effective, such as 

during startup or shutdown periods.1

However, EPA has determined that it is 

inappropriate to provide an affirmative 

defense for excess emissions resulting 

from planned maintenance. The source 

or operator should be able to plan 

maintenance that might otherwise lead 

to excess emissions to coincide with 

maintenance of production equipment 

or other facility shutdowns. Thus, EPA 


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Federal Register / Vol. 75, No. 92 / Thursday, May 13, 2010 / Proposed Rules 26897 

did not provide for an affirmative 

defense during maintenance activities in 

the 1999 Policy. Because these events 

can be planned and because control 

equipment can be consistently effective 

during maintenance, EPA does not 

believe it is appropriate under the Act 

to allow an affirmative defense for any 

excess emissions during maintenance 

activities; any such events should be 

addressed only through the exercise of 

enforcement discretion. Also see 72 FR 

5238 published February 5, 2007. We 

expressed our concern about providing 

an affirmative defense to section 

101.222(h) related activities in our 

August 8, 2005 comment letter to TCEQ 

(Comment #16); however, TCEQ did not 

incorporate our comment in its final 

adoption of the rule that was submitted 

to EPA. We have placed our August 8, 

2005 comment letter to TCEQ in the 

docket where it is available for public 

review. Also, see April 27, 1977 (42 FR 

21472); November 8, 1977 (42 FR 

58171); and August 23, 2000 (65 FR 

51412). For the above reasons, we are 

proposing to disapprove section 

101.222(h). 

Section 101.222(i) concerns the 

scheduling and applicable effective 

dates for permit applications submitted 

to TCEQ requesting that unauthorized 

emissions associated with the planned 

maintenance, startup, or shutdown 

activities be permitted. Since section 

101.222(i) is not severable from section 

101.222(h), which we are proposing to 

disapprove, we are proposing to 

disapprove section 101.222(i), as well. 

Section 101.222(j) concerns 

processing of permit applications 

referenced in 101.222(h), and provides 

the Executive Director with the 

authority to process, review, and permit 

unauthorized emissions from planned 

maintenance, startup, or shutdown 

activities. We explained our reasons for 

proposing to disapprove section 

101.222(h) above. Since section 

101.222(j) is not severable from section 

101.222(h), which we are proposing to 

disapprove, we are proposing to 

disapprove section 101.222(j), as well. 

Based on our review of the January 

23, 2006 submittal, we believe our 

disapproval of the submitted new 

sections 101.222(h), 101.222(i), and 

101.222(j), which would result in such 

provisions not being included in the 

approved SIP, does not change the 

meaning or stringency of the portions of 

the January 23, 2006 SIP submittal that 

we are approving and that would 

become a part of the federally 

enforceable SIP. Therefore, sections 

101.222(h), 101.222(i), and 101.222(j) 

are severable from the remaining 

sections of the SIP and can be 

disapproved. See section 20 of our TSD 

for more information. 

F. What happens if Texas continues to 

implement section 101.222(h) as a State 

law? 

Historically, emissions from startup, 

shutdown and maintenance activities 

were not included in Texas air permits 

or authorizations; instead, such 

emissions were subject to the State’s 

emission events rules. The EPA expects 

all emissions, including those emissions 

during startup, shutdown and 

maintenance activities, to be addressed 

in permits issued under or 

authorizations provided by the 

approved SIP. Texas chose to adopt a 

schedule for sources to apply for and 

the State to issue air permits to include 

emissions due to planned maintenance, 

startup, or shutdown. Permit provisions 

addressing emission limitations for 

planned maintenance, startup, or 

shutdown activities cannot interfere 

with compliance with applicable SIP 

requirements. For example, a permit 

rule cannot alter or provide relief from 

the emission limits set forth in 30 TAC 

Chapter 115 for Volatile Organic 

Compounds or Chapter 117 for Oxides 

of Nitrogen. 

Texas adopted this schedule through 

rulemaking in the new section 

101.222(h), which EPA has proposed to 

disapprove because it provides an 

affirmative defense for facilities with 

permits that do not include emission 

limitations for these types of activities 

during the transition period. Under the 

State rule, which EPA has proposed not 

be approved into the SIP, once a facility 

receives a new federally enforceable 

permit or authorization that includes 

emission limitations for these activities, 

an affirmative defense is no longer 

available. If the permittee has emissions 

that exceed an emission limit in a SIP 

permit and those emissions are due to 

planned maintenance, startup, or 

shutdown activities that had not been 

considered in the original issuance of 

the permit to a facility, this exceedance 

can still be a violation of the SIP. As 

noted previously, these permits cannot 

be inconsistent with the applicable SIP. 

Thus, if EPA takes final action to 

disapprove section 101.222(h), and 

Texas continues to implement the new 

section 101.222(h) as a State law, there 

will be a ‘‘gap’’ between State law and 

Federal law in the EPA-approved Texas 

SIP. The federally-approved SIP will not 

provide an affirmative defense for 

planned maintenance, startup, or 

shutdown activities, and EPA or other 

parties could seek enforcement of the 

federally-approved limits in federal 

court. In addition, as stated above, any 

alternative limits established through 

the permitting process cannot be 

inconsistent with the applicable SIP. 

We want to make it clear that if we 

finalize this rulemaking action, sources 

subject to the Chapter 101 Emission 

Events rules should be aware of the gap 

between the EPA-approved SIP and the 

revised State rules for excess emissions 

from such activities. The current EPAapproved SIP does not provide for an 

affirmative defense to civil penalties in 

an EPA or citizen suit enforcement 

action for an exceedance of a SIP 

requirement. If we finalize disapproval 

of sections 101.222(h), 101.222(i) and 

101.222(j), the EPA-approved SIP will 

provide an affirmative defense only for 

unplanned activities and will continue 

to not provide an affirmative defense to 

a federal enforcement action for 

violation of a SIP requirement due to 

planned activities. 

The EPA considers any emissions not 

authorized under the Act or the 

regulations promulgated or approved 

thereunder (e.g., exceedance of an 

emission limitation or other applicable 

SIP requirement) a violation. Any such 

unauthorized emissions should be 

reported as a deviation under title V 

reporting and/or other applicable 

reporting requirements. Under the Act, 

EPA and citizens may enforce the EPAapproved SIP as federal law. Thus, as 

provided above, regulated sources 

remain subject to the requirements of 

the EPA-approved SIP and subject to 

potential enforcement for violations of 

the SIP during a ‘‘SIP gap.’’ See EPA’s 

Revised Guidance on Enforcement 

During Pending SIP Revisions, dated 

March 1, 1991. A source must comply 

with the EPA-approved SIP until and 

unless it is revised. See Train v. NRDC, 

421 U.S. 60 (1975). 

II. Proposed Action 

Today, we are proposing to approve 

into the Texas SIP the following 

provisions of 30 TAC General Air 

Quality Rule 101 as submitted on 

January 23, 2006: 

Subchapter A 

Revised section 101.1 (Definitions); 

and 

Subchapter F 

Revised Section 101.201 (Emissions 

Event Reporting and Recordkeeping 

Requirements), 

Revised Section 101.211 (Scheduled 

Maintenance, Startup, and Shutdown 

Reporting and Recordkeeping 

Requirements), 

New Section 101.221 (Operational 

Requirements), 


cprice-sewell on DSKHWCL6B1PROD with PROPOSALS
26898 Federal Register / Vol. 75, No. 92 / Thursday, May 13, 2010 / Proposed Rules 

New Section 101.222 

(Demonstrations), except 101.222(h), 

101.222(i), and 101.222(j)), 

New Section 101.223 (Actions to 

Reduce Excessive Emissions). 

We are also proposing to disapprove 

sections 101.222(h) (Planned 

Maintenance, Startup, or Shutdown 

Activity), 101.222(i) (concerning 

effective date of permit applications), 

and 101.222(j) (concerning processing of 

permit applications) into Texas SIP. The 

EPA is proposing to find that these 3 

sections (101.222(h), 101.222(i), and 

101.222(j)) are not severable from each 

other. 

III. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. If a portion of the 

plan revision meets all the applicable 

requirements of this chapter and Federal 

regulations, the Administrator may 

approve the plan revision in part. 42 

U.S.C. 7410(k); 40 CFR 52.02(a). If a 

portion of the plan revision does not 

meet all the applicable requirements of 

this chapter and Federal regulations, the 

Administrator may then disapprove 

portions of the plan revision in part that 

does not meet the provisions of the Act 

and applicable Federal regulations. 42 

U.S.C. 7410(k); 40 CFR 52.02(a). Thus, 

in reviewing SIP submissions, EPA’s 

role is to approve state choices that meet 

the criteria of the Act, and to disapprove 

state choices that do not meet the 

criteria of the Act. Accordingly, this 

proposed action, in part, approves state 

law as meeting Federal requirements 

and, in part, disapproves state law as 

not meeting Federal requirements; and 

does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this proposed 

action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994); and 

• This rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved 

to apply in Indian country located in the 

state, and EPA notes that it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

Authority: 42 U.S.C. 7401 et seq. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: May 5, 2010. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2010–11429 Filed 5–12–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R10–OAR–2008–0391; FRL–9149–5] 

Determination of Attainment for PM– 

10; Fort Hall PM–10 Nonattainment 

Area, Idaho 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing under the 

Clean Air Act (CAA) to determine that 

the Fort Hall PM–10 nonattainment area 

on the Fort Hall Indian Reservation in 

Idaho has attained the National Ambient 

Air Quality Standards (NAAQS) for 

particulate matter with an aerodynamic 

diameter of less than or equal to 10 

microns (PM–10). EPA’s proposed 

finding that the Fort Hall PM–10 

nonattainment area has attained the 24- 

hour PM–10 NAAQS is based on EPA’s 

review of complete, quality-assured 

monitored air quality data for the threeyear period ending December 31, 2009. 

Preliminary data for 2010 indicate that 

the area continues to attain the 

standard. 

EPA’s proposed determination of 

attainment is not equivalent to a 

proposed redesignation to attainment 

under CAA section 107(d)(3). If this 

proposal is finalized, the designation 

status for the Fort Hall PM–10 

nonattainment area would remain 

moderate nonattainment until such time 

as the area is redesignated to attainment 

as provided in CAA section 107(d)(3). 

DATES: Written comments must be 

received on or before June 14, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2008–0391, by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E- Mail: R10– 

Public_Comments@epa.gov. 

C. Mail: Donna Deneen, U.S. 

Environmental Protection Agency, 

Region 10, 1200 Sixth Avenue, Suite 

900, Mail Stop: AWT–107, Seattle, WA 

98101. 

D. Hand Delivery: U.S. Environmental 

Protection Agency, Region 10, Attn: 

Donna Deneen (AWT–107), 1200 Sixth 

Avenue, Suite 900, Seattle, Washington 

98101, 9th Floor. Such deliveries are 

only accepted during normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R10–OAR–2008– 

0391. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 


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