UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 6

1445 ROSS AVENUE, SUITE 1200

DALLAS, TX 75202-2733

August 8, 2005

~r. Flussell ICimble

General Law Division

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, TX 78711-3087

Dear Mr. Kimble:

Thank you for the opportunity to review and comment on the proposed Rule Project No.

2005-024-101-CEconcerning 30 TACGeneral FluleChapter 101, Sections lOLl, 101.201,

101.211, and 101.221 • 101.223 as adopted by the Texas Commission on Environmental Quality

(TCEQ) on June 29, 2005. The proposed revision to these provisions ofthe State Implementation

Plan (SIP) was published in the July 15, 2005, issue ofthe Texas Register (30 TexFleg 4090).

The U.S. Environmental Protection Agency (EPA) supports the State's initiatives to reduce

excess emissions which may aggravate air quality and interfere with the goals of attainment or

maintenance ofthe National Ambient Air Quality Standards (NAAQS), and to provide prompt

information to the public on excess emissions through the State's online electronic reporting

database. We recogoize that many ofthese proposed changes seek to streamline the excess

emissions reporting system. However, our initial review ofthe proposed revision to the SIP has

raised the following areas ofconcerns regarding consistency with the Clean Air Act (the Act) and

approvability ofthe SIP revision:

A) providing an affirmative defense for certain maintenance and planned activities,

B) revisions to affirmative defense criteria in existing and new sections ofthe rule,

C) clarification on the applicability ofaffirmative defense provisions to Federally promulgated

standards, such as New Source Performance Standards and National Emission Standard for

Hazardous Air Pollutants,

D) technical and economical justifications for increasing the Reportable Quantities (FlQ) for

certain compounds, and

E) suggestions to define "startup," "shutdown," and "maintenance" activities in section lOLl

ofthe rule.

. . ,_t__(URL). ht1p:lIwww.epa.goy

R4tCYc1ecWleCV =1 121, ePm(edwlh VegeCabIe 01 Ba$ed InksonRecycled Paper (Mmmum 25%PosCconsumer)
2

We have no comments on section 101.223 concerning Actions to Reduce Excessive

Emissions. Our enclosure to this letter contains more details about our comments.

Our review ofthe proposed rule as published in the July 15, 2005, issue ofthe Texas

Register (30 TexReg 4090) indicates several areas in which the rule is inconsistent with EPA's

interpretation ofthe Act, our previous rulemakings, guidance and policy. We believe the rule is not

fully approvable as now proposed. We look forward to working with TCEQ to recommend changes

to the proposed rule, so that we may approve the rule prior to the expiration date ofthe existing

emissions event rule. Our interpretation ofthe SIP is that the current rule will expire, by its own

terms and without further action by EPA, on January 15, 2006; unless the Commission submits a

revised version ofthe rule to us for review and approval before that date, which will extend the

expiration date ofthe current rule will June 30, 2006.

In recognition ofthe State's transition to a revised rule, section I of our May 9, 2005, (70

FR 24348) proposed limited approval ofthe current rule stated, "The EPA intends to work with the

State during its rulemaking on the revised version ofthe rule to identify any issues that would

prevent our approval ofthe rule." Consequently, we look forward to hearing from you or your staff

for a mutually beneficial dialogue and discussion ofthese comments.

We appreciate the opportunity to comment on these proposed revisions to 30 TAC General

Rule Chapter 101. Ifyou have any questions about this letter, please contact me at (214) 665-3102

or Mr. Alan Shar ofmy staff at (214) 665-6691.

Sincerely yours, .

~!::d,io Thomas H. Diggs

Chief

Air Planning Section

Enclosure

..
ENCLOSURE

Proposed Rule Project No. 200S-024-l0l-CE

30 TAC General Rule Chapter 101, Sections 101.1, 101.201,101.211, and 101.221-101.223

1. General comment. EPA's interpretation of the Act provides that all unauthorized

emissions in excess of applicable SIP standards are violations ofthe SIP. EPA cannot approve into the

SIP any rule which allows an automatic exemption for periods of excess emissions. The rationale for

this position is that SIPs are ambient-based standards intended to protect increments and the NAAQS.

Emissions above allowable SIP limits have the potential to interfere with attainment and maintenance of

the NAAQS. TCEQ's current SIP and the proposed rules require reporting of unauthorized emissions

above a reportable quantity. However, it is important to note that all emissions above limitations in SIP

,.' approved permits, rules or orders are violations of the applicable requirement. Emissions from startup,

shutdown, maintenance and malfunctions must be considered in determining compliance with those

requirements. Assertion of an affirmative defense to an enforcement action does not relieve the source

from liability for a violation ofthe SIP, but instead allows the source to avoid civil penalties when certain

criteria are met in a jndicial or administrative enforcement action. Please confirm that TCEQ requires

all emissions from startup, shutdown, maintenance, and malfunction periods to be included in

determining compliance with emission limitations in SIP-approved permits, rules and orders. Please

confirm that TCEQ interprets all unauthorized emissions above allowable limitations in permits, rules

and orders to be subject to reporting under Section 122.145 (2) (Federal Operating Permit Program,

Deviation Reporting) for sources subject to Section 122 requirements.

Section 101.1, Definitions

2. Definition ofstartup, shutdoWJ!, and main............. In order to determine applicability

and ensure enforceability ofChapter 101 requirements, the rule should include definitions for three

widely used terminologies: "startup," "shutdown," and "maintenance." Startup, shutdown and

maintenance periods should be defined as discrete periods oflimited duration and the definition should

clearly distinguish between routine startup, shutdown and maintenance related emissions (from normal

operation) and non-routine startup, shutdown and maintenance related emissions (from malfunctions or "'6:,7",

upsets, poor operation or maintenance).

Section 101.1(88) Reportable Quantity (RQ)

3. RQ applicability to individual units rather than the entire sonn:e. The proposed

revision to the RQ definition in section 101.1(88) makes the RQ reporting requirements applicable to

facilities instead ofregulated entities. Where more than one unit is involved in an emissions event, this

change could, in effect, increase the RQ from the current SIP rule. We request that the State's public

record adequately address technical and economicaljustifications for these potential increases in the

i
RQs.

4. Lack of data on frequency of non-reportable emission events. By increasing RQ

thresholds from the existing SIP rule, TCEQ will receive less information concerning the number of

emission events below the RQ at a given facility. EPA is concerned that tins change will increase the

numher of non-reportable emissions events. We suggest that TCEQ establish reporting requirements

tor non-reportable enlission events where the frequency of those emissions events at a given source

exceeds a threshold number. Also, please explain how the State will make excessive emissions event

determinations required by 101.222(b).

5. Increase in RQ for NOx. Section 101.l(88)(A)(i)(III)(p) ofthe proposed rule allows

increases in the RQ for nitrogen oxide (NO) from 100 pounds in the nonattainment areas to 200

pounds for oxides of nitrogen (NOx). At the same time, the 101.l(88)(A)(i)(III)(p) also increases the

nitrogen oxide's RQ from 100 pounds for the rest of the State to 5,000 pounds. Given the recognized

significant role of NOx in the regional control strategy (Chapter 117 rules for East and Central Texas)

and the ozone nonattainment areas (Chapter II? rules for Attainment Demonstration), we are

concerned that the increase in the RQ could impact related SIP requirements. We request that the

State supplement the public record to adequately address technical and economical justificationsfor

these significant increases in the RQs.

6. Increase in RQ for CFCs, HFCs and HCFCs. In section 101.1(88)(A)(i)(llI)(q)

through (ss), the proposed rule increases the RQ tor several of the CFC, HFC, and HCFCs from the

default value of 100 pounds to 5,000 pounds. Despite the changes in the RQs, the environment will

continue to experience the impact of such releases. We are concerned that the streamlined reporting of

excess emissions ofthese chemicals will increase the number of potential releases of these compounds.

We acknowledge TCEQ's statements to the effect that these compounds are not criteria pollutants or

do not contribute to ozone nonattainrnent problem as the rationale for increasing the RQ for these

compounds. However, the State's SIP reporting requirements address a wide range of pollutants that

affect human health and the environment, not just criteria pollutants. For example, hydrochloric acid is

neither a criteria pollutant, nor is known to contnbute to the ozone nonattainrnent problem; however,

excess enlissions ofthis compound could potentially have serious health and environmental impacts.

We request that the State supplement the public record to adequately address techrlical and economical

justifications for the significant increases ofthe RQs for these CFC, HFC, and HCFCs compounds.

7. Increase in default RQ for other air contaminants. In 101.1(88)(A)(ii), the proposed

rule maintains the default RQ for all other air contaminants whenthere is not a listed RQ for the

nonattainment and the EAC areas at 100 pounds, but such an RQ for all other areas is increased to

5,000 pounds. This proposed change increases certain RQs from those in the currently approved SlP.

We request that the State supplement the public record to adequately address techrlical and economical

justifications for significant increases ofthe RQs for these air contaminants.

ii
8. Reporting requirements for Boilers and combustion turbines. Proposed section

101.1(88)(C) exempts certain boilers and combustion turbines from reporting requirements for all

pollutants except unauthorized opacity releases. Please explain the basis for exempting these sources

from reporting requirements. Please explain if the proposed rule allows these sources to assert an

affirmative defense to emission events for unreported releases.

Section 101.201, Emissions Event Reporting and Recordkeeping Requirements

9. Removal of authorized emission limits from initial reporting requirements. The

proposed rule ill section 101.20I(a)(2)(G) deletes the requirement to report authorized applicable

emission limits or opacity limitation in initial excess emission reports. The proposed rule also allows the

initial report to substitute for a final report where "the owner or operator does not submit a record."

Therefore, the authorized emission limit will not be available for any initialreports and will not be

available for some final reports. The current SIP reporting rules require reporting of the authorized

emission limitation in initial and final reports. Please provide the State's rationale for this change. Since

reporting requirements apply only to unauthorized emissions equal to or in excess ofreportable

quantities, please explain how TCEQ, EPA, or citizens can effectively evaluate the significance of an

emissions event without knowing the authorized emission limitation. Please explain how TCEQ will

make determinations required by section 101.222 without determining the quantity of unauthorized

emissions. Further, please explain how sources will comply with sections 101.20I(a)(2)(H) and

101.201(b)(1)(H) to determine the estimated total quantities for releases which are unauthorized and

above anRQ. EPA recommends that the State not adopt this revision to the current SIP.

10. Method of estimating quantities of emissions. EPA agrees with the proposed change

in Section 101.20l(H) which requires methods of estimates oftotal quantities of emissions released to

beconsistent with methods used in the applicable permit, application, rule or order ofthe Commission

in final reports. EPA suggests that this provision beincluded in the reporting requirements for initial

reports, especially considering that initialreports may, in some cases, substitute for final reports.

11. Annual emissions event reporting requirements. EPA supports the State's

requirement in section 101.201(h) to require armualreporting of both reportable and non-reportable

emission events for certain sources. We believe this information will assist the State in evaluating

effective enforcenJent ejf0rtsand vvill facilitatethe State's SIP planniIlgprocess. j'leaseindieate

whether these reports will be available to citizens and EPA on the State's electronic reporting system

Section 101.221, Operational Requirements

12. Applicability of affirmative defense to violations ofNSPS, NESHAP. EPA supports

the revision to section 101.221(d) providing that the commission will not exempt sources from

compliance with any federal requirements including New Source Performance Standards (NSPS) or

iii
National Emission Standards for Hazardous Air Pollutants (NESHAP). However, this change does

not fully address concerns raised in our limited approval of the current version ofthis rule. See section

5 of our March 30, 2005 (70 FR 16131).

The proposed rule must clarify that the affirmative defense provisions in section 101.222 cannot

apply to violations of Federally promulgated standards, such as NSPS or NESHAPs. See

Memorandumfrom Steven A. Herman and Robert Perciasepe to Regional Administrators.

September i999. State implementation Plans (Sll's}: Policy Regarding Excess Emissions During

Malfunctions, Startup. and Shutdown, which states "To the extent a state includes NSPS or

NESHAPs in its SIP, the standards should not deviate from those that were Federally promulgated.

Because EPA set these standards taking into account technological limitations, additional exemptions

would be inappropriate." EPA strongly recommends that the State adopt an addition to section

101.222(t), Obligations, that states, in effect, sections 101.222 (b), (c), (d), or (e) do not provide an

affnmative defense to violations of Federally promulgated standards. For example, the rule may contain

an applicability section which defines standards which may be subject to an affnmative defense, or the

rule may state that certain violations are not subject to an affirmative defense:

This rule establishes affnmative defenses for certain emissions in excess of an emission standard

or limitation and applies to SIP emission standards or limitations, except for standards or

limitations promulgated pursuant to Sections 111 or 112 of the Federal Clean Air Act, such as

NSPS or NESHAP.

Section 101.222, Demonstrations

13. Change to affinnative defense criteria for malfunctions. Sections lO1.222(b)(3) and

(d)(2) revise the existing SIP-approved criteria a source must prove in order to assert an affirmative

defense. The proposed rule states the malfunction "could not have been reasonably avoided by

technically feasible design, operation, and maintenance practices consistent with good engineering

practice." EPA's guidance requires that the malfunction could not have been avoided by better

operation and maintenance practices. EPA has narrowly interpreted the criteria established in the

Memorandum from Steven A. Herman and Robert Perciasepe to Regional Administrators.

September 1999, State Implementation Plans (SIPS): Policy.Regarding Excess Emissions During

Malfunctions, Startup, and Shutdown. The requirement to prove that the event could not have been

avoided is a fundamental principle which EPA considered in drafting the 1999 SSM guidance. The

proposed change adds a level of subjectivity that limits EPA, citizens and TCEQ's enforcement

authority. The proposed change also decreases the source's responsibility to anticipate and eliminate

releases of excess emissions. The change is a weakening ofthe existing SIP provision. Please provide

further information on the State's rationale for this change. Further review is necessary to determine

whether this provision is consistent with the Act and therefore approvable. EPA strongly recommends

that the State not adopt this proposed change.

14. Applicability of aflinnative defense for scheduled startup orshutdown activity

iv
which result from routine or predictable events. EPA's guidance and policy recognize that the

affirmative defense should not apply to emissions from normal operations that are routine and

predictable. EPA has also stated that an affirmative defense may be asserted for excess emissions

activities from startup and shutdown where emissions control systems may not be consistently effective

during those periods or for excess emissions which are sudden, unavoidable or caused by

circumstances beyond the control of the owner or operator. EPA has determined that it is

inappropriate to provide an affirmative defense for excess emissions resulting from scheduled or

planned activities. Please provide further information how the State will limit the affmnative defense for

scheduled startup or shutdown activity to preclude its application for routine and predictable emission

activities. EPA suggests that TCEQ add additional criteria, similar to the approach the State provided

in Section 101.222 (h) in order to limit the applicability of the affirmative defense for startup and

shutdown activities.

15, Affinnative defense for scheduled startup orshutdown activity. The proposed rule

contains criteria in section 101.222(c) which the owner or operator must prove in order to assert an

affirmative defense to enfurcement actions for unauthorized emissions. Those criteria deviate

significantly from EPA guidance. The changes add a level of subjectivity that limits EPA, citizens and

TCEQ's enforcement authority. The proposed change also decrease the source's responsibility to

anticipate and eliminate releases of excess emissions. Please provide the State's rationale for this

change. Further review is necessary todetennine whether this provision is consistent with the Act and

therefore approvable. EPA strongly recommends that TCEQ revise the criteria to include the

underlined terms:

(2) periods of unauthorized emissions from the activity were short and infrequent and could not

have been prevented through careful planning and design.

(5) the facility and air pollution control equipment were operated in a manner consistent with

good practices for minimizing emissions at all times;

(6) the frequency and duration of operation in a scheduled startup or shutdown mode resulting

in authorized emissions were minimized to the rnaximumextent practicable;

(8) the owner or operator actions during the period of unauthorized emissions from the activity

were documented by properly signed contemporaneous operating logs or other relevant

evidence;

All possible steps were taken to minimize impact of excess emissions on ambient air quality.

16. Affinnative defense for scheduled maintenance activity. Section 101.222 (h)

provides an affirmative defense for all maintenance activities for preconstruction permits issued under

Texas Health and Safety Code, § 382.0518 until the effective date ofrenewal, amendment or issuance

associated with the facility, and for all other facilities until two years after the effective date ofthis

provision. EPA strongly recommends that the State establish an alternative approach of enforcement

discretion for excess emissions from scheduled maintenance during this transition period.
Region 6 supports TCEQ's practice of requiring pre-reponing ofscheduled maintenance

events. We understand that the State reviews these reports prior to the maintenance event and

compares the final report to ensure the quantities of pollutants actually released are consistent with

those projected in the pre-report. We agree with the State that pre-reporting of excess emissions from

scheduled maintenance has the potential to minimize these emissions. However, EPA's long held policy

is that affirmative defenses, such as the provisions the State is now considering, cannot apply to excess

emissions from schednled maintenance events. See our March 30, 2005 (60 FR 16129 and 16131)

limited approval of your January 5, 2004 submittal of revisions to Chapter 10 I:

'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

during startup or shutdown periods. However, EPA has determined that it is inappropriate to

provide an affirmative defense for excess emissions resulting from scheduled maintenance, and

to excuse these excess emissions from a penalty action. See 42 FR 21472 (April 27, 1977),

42 FR 58171 (November 8, 1977) and 65 FR 51412 (August 23, 2000)."

EPA's interpretation ofthe Act and related policies states that maintenance is a predictable event that

can be scheduled at the discretion of the operator to coincide with maintenance of production

equipment or other source shutdowns in order to ensure prompt corrective action and to minimize

excess emissions.' See also 68 FR 61650,61652 (October 29,2003).

As stated in our limited approval and extension ofthe limited approval ofTexas' existing

emissions event rule (March 30, 2005 60 FR 16129 and 16131), EPA cannot approve a blanket

affirmative defense for scheduled maintenance activities. Instead, EPA strongly recommends that the

State establish an enforcement discretion approach for excess emissions from scheduled maintenance

during this transition period. This approach generally requires the source to demonstrate that the excess

emissions could not have been reasonably avoided through better maintenance and operational

procedures. why the maintenance is needed, and how the emissions were minimized in order to avoid

an enforcement action. The State may identify other criteria to facilitate your review of the event.

Excess emissions from scheduled maintenance are violations of applicable emission limitations, but

establishing criteria to evaluate whether the state will bring an enforcement action may indirectly

ISee, Memorandum from StevenA Herman andRobertPerciasepe to Regional

Administrators, September 1999, State Implementation Plans(SIPS): PolicyRegarding Excess

Emissions During Malfunctions, Startup, and Shutdown; Memorandumfrom JohnB. Rasnic to

Linda M. Murphy, January 28, 1993,Automaticor Blanket Exemptionsfor excess Emissions During

Startupand Shutdowns Under PSD; and Memorandum from Kathleen M. Bennett to Regional

Administrators, February 15, 1983, Memorandum from Kathleen M. Bennet10 Regional

Administrators, September 28, 1982, Policyon ExcessEmissions DuringStartup, Shutdown,

Maintenance, and Malfunctions.

vi

,

I , I

'. ·1
encourage good maintenance procedures to minimize the emissions.

Therefore, given the factors considered here, we do not believe the phase-in provisions in

section 101.222(h) of the replacement rule are consistent with EPA's interpretation of the Act and

therefore, approvable as revisions to the Texas SIP.

EPA requests further information on the State's plans to begin authorizing and implementing

maintenance related emissions that are regular and quantifiable, such as plant turnarounds and

preventive maintenance such as routine replacement offacility parts, into permitting programs. Please

explain how the phase-in period established in this rule relates to that change.

17. Affinnative defense for maintenance activity that arises from sudden and

reasonably unforeseeable events beyond the control of the operator that requires immediate

corrective action to restore nonna! operations. Section 101.222 (h) phases in an affirmative

defense for maintenance activities in very limited circumstances. We understand that the rule seeks to

encourage pre-reporting of maintenance activities that could prevent imminent potential malfunctions.

Our initial review indicates that the proposed change may be inconsistent with our 1999 SSM guidance

and our rulemakings on similar rules in other states. Notwithstanding the previous comment, EPA will

evaluate these provisions for consistency with the Act and EPA related policy and guidance. However,

we make the following suggestions at this time.

The proposed rule requires that the owner or operator prove all the criteria listed in 101.222(c)

(1) through (9). EPA recommends that the rule repeat the criteria as some formatting changes may be

necessary. Also, the criteria must be revised as outlines in comment #15 of this attachment. Also,

additional criteria must be added to clarify that the source has the burden to prove: I) that the

maintenance activity arose from sudden and reasonably unforeseeable events that were beyond the

control ofthe operator, and 2) that immediate corrective action was necessary in order to restore

normal operations. EPA recommends that the State consider other criteria as necessary to

appropriately limit application of these provisions to non-routine and emergency circumstances (i.e., to

prevent a rnalfunction). EPA strongly recommends that these limitations be placed in the criteria, rather

in the body ofthe rule, to ensure that the source or operator bears the burden to prove those limitations

have been met before the affirmative defense may be asserted.

vii