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 EnvironmentalQuality 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 ofattainment 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 Federallypromulgated standards, such as New Source Performance Standards and National Emission Standard for Hazardous Air Pollutants,
D) technical and economicaljustifications for increasing the Reportable Quantities (FlQ) for certain compounds, and
E) suggestions to define "startup," "shutdown," and "maintenance" activities in section lOLl ofthe rule.

. 

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### 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 ofour 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 aboutthis letter, please contact me at (214) 665-3102 or Mr. Alan Shar ofmy staffat (214) 665-6691.
Sincerelyyours,

.

# ~!::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 ofapplicable SIP standards are violations ofthe SIP. EPA cannot approve into the SIP any rule which allows an automatic exemption for periods ofexcess 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 ofunauthorized 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 ofthe 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 allunauthorized 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. Definitionof

### startup, shutdoWJ!, andmain

............. 

### 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 discreteperiods 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 (frommalfunctions or "'6:,7", upsets, poor operation or maintenance).

Section 101.1(88) Reportable Quantity (RQ)

3. RQ applicability to individual

### units ratherthan 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 ofdata on frequency ofnon-reportable emission events. By increasing RQ thresholds from the existing SIP rule, TCEQ will receive less information concerning the numberof emission events below the RQ at a given facility. EPA is concerned that tins change will increase the numher ofnon-reportable emissions events. We suggest that TCEQ establishreporting requirements tor non-reportable enlission events where the frequency ofthose 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. Increasein 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 ofnitrogen (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 ofthe State to 5,000 pounds. Given the recognized significant role ofNOx 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 economicaljustificationsfor these significant increases in the RQs.

6. Increasein 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 ofthe 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 ofsuch releases. We are concerned that the streamlined reporting of excess emissions ofthese chemicals willincrease the number ofpotential releases ofthese compounds. We acknowledge TCEQ's statements to the effect that these compounds are not criteriapollutants or do not contribute to ozone nonattainrnent problem as the rationale for increasing the RQ for these compounds. However, the State's SIP reportingrequirements address a wide range ofpollutants that affect human health and the environment, notjustcriteria pollutants. For example, hydrochloric acid is 

### neither a criteria pollutant, nor is 

### known to contnbute to the ozone nonattainrnentproblem; however, excess enlissions ofthis compound could potentiallyhave serious health and environmental impacts. We request that the State supplement the public recordto adequately address techrlical and economical justifications for the significantincreases ofthe RQs for these CFC, HFC, and HCFCs compounds.

7. Increase 

### in default RQ for otherair contaminants. 

### In 101.1(88)(A)(ii), the proposed rule maintains the default RQ for all other 

### aircontaminants 

### 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 certainRQs from those in the currently approved SlP. We request that the State supplement the public record to adequately address techrlical and economical justifications for significantincreases 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 ofauthorized 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 initialreport to substitute for afinalreport where "the owner or operator does not submit a record." Therefore, the authorized emission limit willnot be available for any initialreports and will not be 

### available for some final reports. The current SIP reporting rules require reporting ofthe 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 significanceofan emissions event without knowing the authorized emission limitation. Please explain how TCEQ will make determinations required by section 101.222 without determining the quantity ofunauthorized 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 ofestimating quantities ofemissions. EPA agrees with the proposed change 

### in Section 101.20l(H) which requires methods ofestimates oftotal quantities ofemissions 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 eventreporting requirements. EPA supports the State's requirement in section 101.201(h) 

### to require armualreporting ofbothreportable and non-reportable emission events for certain sources. We believe this information will assist the State in evaluating effectiveenforcenJent ejf0rtsand

## vvill facilitatethe 

### State's SIP planniIlgprocess. j'leaseindieate whether these reports will be available to citizens and EPA onthe State's electronic reporting system



### Section 101.221, Operational Requirements

12. Applicability ofaffirmative defense to violations ofNSPS, NESHAP. EPA supports the revision to section 101.221(d) providing that the commission willnot exempt sources from compliance with any federal requirements including New Source Performance Standards (NSPS) or

iiiNational Emission Standards for Hazardous Air Pollutants (NESHAP). However, this change does not fully address concerns raised in our limited approval ofthe current version ofthis rule. See section 5 ofour March 30, 2005 (70 FR 16131).

The proposed rule must clarify that the affirmative defense provisions in section 101.222 cannot apply to violations ofFederally promulgated standards, such as NSPS or NESHAPs. See 

### Memorandumfrom Steven A. Herman and RobertPerciasepe to RegionalAdministrators. 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 ofFederally 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 ofan emission standard

or limitation and applies to SIP emission standards or limitations, except for standards or limitations promulgatedpursuant to Sections 111 or 112 ofthe 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 proposedrule states the malfunction "couldnot have beenreasonably avoided by technically feasible design, operation, and maintenance practices consistent with good engineering practice." EPA's guidance requires that the malfunction could nothave been avoided by better operation and maintenance practices. EPA has narrowly interpreted

### the criteria established in the 

### Memorandumfrom Steven A. Herman andRobertPerciasepe to RegionalAdministrators. September 1999, State Implementation Plans (SIPS): Policy.Regarding Excess Emissions During Malfunctions, Startup, and Shutdown. The requirement to prove that the event couldnot have been avoided is a fundamental principle which EPA considered in 

### draftingthe 1999 SSM guidance. The proposed change adds a level ofsubjectivity that limits EPA, citizens and TCEQ's enforcement authority. The proposed change also decreases the source's responsibility to anticipate and eliminate releases ofexcess 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 ofaflinnative defense for scheduled startup or shutdown activity

ivwhich 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 ofthe 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 ofthe affirmative defense for startup and shutdown activities.

15, Affinnative defense for scheduled startup or shutdown 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 fromEPA guidance. The changes add a level ofsubjectivity that limits EPA, citizens and TCEQ's enforcement authority. The proposed change also decrease the source's responsibility to anticipate and eliminate releases ofexcess 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 ofunauthorized emissions from the activity were short and infrequent and could not have beenprevented 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 ofoperation 

### 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 ofunauthorized emissions from the activity

were documented by properly signed contemporaneous operating logs or otherrelevant evidence; All possible steps were taken to minimize impact ofexcess emissions on ambient air quality.

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

### allmaintenance activities for preconstructionpermits 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 ofenforcement discretion for excess emissions from scheduledmaintenance during this transition period.Region 6 supports TCEQ's practice ofrequiring 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 ofpollutants actually released are consistent with those projected in the pre-report. We agree with the State that pre-reporting ofexcess 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 ofyour January 5, 2004 submittal ofrevisions to Chapter 10 I:

'The EPA's interpretation ofsection 110 ofthe 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 ofthe

owner or operator and where emissions control systems may not be consistently effective during startup or shutdownperiods. 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 ofthe operator to coincide with maintenance ofproduction 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 extensionofthe 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 approachfor excess emissions from scheduledmaintenance during this transition period. This approach generally requires the source to demonstrate that the excess emissions couldnot have beenreasonably 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 criteriato facilitate your review ofthe event. Excess emissions from scheduled maintenance are violations ofapplicable emission limitations, but establishing criteriato evaluate whether the state will bring an enforcement action may indirectly

ISee, 

### Memorandumfrom StevenA 

### Herman and 

### RobertPerciasepe to 

### Regional Administrators, September 1999, 

### StateImplementation Plans(SIPS): PolicyRegardingExcess Emissions DuringMalfunctions, Startup, andShutdown; Memorandumfrom John B. 

### Rasnicto 

### LindaM. 

### Murphy, January 28, 

### 1993,AutomaticorBlanketExemptionsfor excess Emissions During StartupandShutdowns UnderPSD; andMemorandumfromKathleen M. Bennett to Regional Administrators, February 15, 1983, 

### MemorandumfromKathleen M. 

### Bennet 10

### Regional Administrators, September28, 1982, 

### Policyon ExcessEmissionsDuringStartup, Shutdown, Maintenance, andMalfunctions.

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) ofthe replacement rule are consistent with EPA's interpretation ofthe 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 ofmaintenance activities that could prevent imminentpotential 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 ofthis 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 ofthese 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 operatorbears the burden to prove those limitations havebeenmet before the affirmative defense may be asserted.

vii