TECHNICAL SUPPORT DOCUMENT

30 TAC Chapter 101 General Rule, Rule Project No. 2005-024-101-CE

(The January 23, 2006 Submittal)
30 TAC Chapter 101 General Rule, Sections 101.1, 101.201, 101.211, and 101.221-101.223

This technical support document (TSD) concerns our evaluation of Texas’ final rule 

adopted on December 14, 2005 as a revision to the Texas State Implementation Plan (SIP) 

concerning excess emissions, the 30 TAC, Chapter 101, General Air Quality Rules, Subchapter A 

General Rules; and Subchapter F Emissions Events and Scheduled Maintenance, Startup, and 

Shutdown Activities. 

On January 27, 2006, EPA Region 6 received a submittal letter, dated January 23, 2006, 

from Kathleen Hartnett White requesting our review and approval of the State-adopted revisions 

to the Texas SIP concerning excess emissions.

On March 23, 2006 Region 6 sent a letter of completeness to Kathleen Hartnett White of 

TCEQ.

1. What is EPA’s policy on excess emissions occurring during startup, shutdown or 

malfunction?

The EPA's policy on excess emissions occurring during startup, shutdown or 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'' 

(September 1999 Policy); EPA's final rule for Utah's sulfur dioxide control strategy (Kennecott 

Copper) 42 FR 21472 (April 27, 1977); and EPA’s final rule for Idaho’s sulfur dioxide control 

strategy 42 FR 58171 (November 8, 1977). The EPA does not believe that it is appropriate to 

allow for an affirmative defense to be applied to excess emissions from scheduled maintenance 

activities because such events are planned for and sources should be able to comply with 

applicable limits during such activities. Also, see 65 FR 51412 (August 23, 2000).

2. What is EPA approach toward excess emissions and SIP compliance?

Rules to address enforcement of excess emissions, are not specifically required by the 

Clean Air Act (Act). However, SIP revisions must be evaluated for consistency with section 110 

of the Act. EPA guidance and policy provides how we interpret the Act with regard to SIP 

provisions that may provide some relief to sources that exceed applicable emission limits. In 

general, EPA views all excess emissions as violations of the applicable emission limitations in SIPs

because excess emissions have the potential to aggravate air quality so as to prevent attainment or 

interfere with maintenance of the National Ambient Air Quality Standards (NAAQS). However, 

EPA recognizes that imposition of a penalty for sudden and unavoidable malfunctions, startups or 

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shutdowns caused by circumstances entirely beyond the control of the owner or operator may not 

be appropriate. EPA has provided guidance on two approaches that States may adopt to address 

excess emissions: the use of enforcement discretion and establishing an affirmative defense that 

sources may raise in an action for civil penalties. Neither approach waives liability or reporting 

requirements for the violation States are not required to provide an affirmative defense approach, 

but if they chose to do so, EPA will evaluate the State’s SIP rules for consistency with our policy 

and guidance.

3. What recent excess emissions-related rulemaking actions have we taken for Texas?

On March 30, 2005, we granted final limited approval to revisions to Chapter 101, 

Subchapter F, including sections 101.221, 101.222, and 101.223. We granted limited, rather than 

full, approval of the submission because we found sections 101.222(c) and (e) were ambiguous 

and may be interpreted to provide an exemption from SIP permitting requirements or an 

affirmative defense for certain scheduled maintenance activities. See 70 FR 24348 (May 9, 

2005), and our extension of the limited approval at 70 FR 50205 (August 26, 2005).

4. What other EPA rulemaking actions did we look at during our evaluation of this Texas 

rule revision?

During our evaluation of Texas’ rule, we also reviewed recent EPA rulemakings in which 

we evaluated other States’ excess emission rules for consistency with the Act as interpreted in 

EPA’s guidance and policy documents. See 71 FR 8958, February 22, 2006, in which EPA 

disapproved affirmative provisions for the State of Colorado that may be interpreted to bar EPA 

or citizen enforcement authority. See also 71 FR 4822, January 30, 2006 in which EPA 

disapproved a SIP revision that would exempt existing aluminum plants from meeting emission 

requirements during scheduled maintenance. See 70 FR 42021, July 21, 2005, approving New 

York’s SIP revision to remove provisions that were inconsistent with EPA’s affirmative defense 

guidance document. See 71 FR 8958, February 22, 2006, approving the removal from the 

Colorado SIP of provisions which provided exemptions from existing limitations on opacity and 

sulfur dioxide (SO2) emissions for coal-fired electric utility boilers during periods of startup, 

shutdown, and upset. See 68 FR 8550, February 24, 2003, approving Michigan’s excess emission 

rules, and 67 FR 52666, August 13, 2002, approving Idaho’s excess emission rules.

5. What is the current historical information on this particular Texas SIP rule revision?

The following Table I is the latest historical information on 30 TAC, Chapter 101, General 

Air Quality Rules, Subchapter A, and Subchapter F:

TABLE I: HISTORICAL INFORMATION ON THIS SIP SUBMITTAL – 30 

TAC Chapter 101, Subchapters A and F

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Rule Project No. 2005-024-101-CE, House Bill 2129: Emissions Events.

Amendments to: §101.1, 101.201, 101.211, 101.221 - 101.223.

Dated Adopted: December 14, 2005, Date Filed with the Secretary of State: December 16, 2005.

Date Published in the Texas Register: December 30, 2005 (30 TexReg 8884).

TCEQ received comments from EPA, industry, and the environmental groups on this rule revisions. 

TCEQ has responded to these comments in the December 30, 2005 issue of the Texas Register. See 30 

TexReg 8884 - 8956. The 30 TexReg 8884 - 8956 is a part of the SIP package State has submitted to 

us for review and evaluation.

Date Effective: January 5, 2006. Also, see “Correction of Errors” to the above December 30, 2005 

publication, at 31 TexReg 422 (page 12 of 29 pdf version) dated January 20, 2006.

The following Table II is a list summary of the affected sections of 30 TAC Chapter 101, 

Subchapters A and F:

Sectio

n

Description Information

101.1 Definitions. Had no expiration date clause, last approved by EPA 

March 30, 2005 (70 FR 16129) effective April 29, 2005.

101.201 Emissions Event Reporting and 

Recordkeeping Requirements.

Had no expiration date clause, last approved by EPA 

March 30, 2005 (70 FR 16129) effective April 29, 2005.

101.211 Scheduled Maintenance, Startup, 

Shutdown Reporting and 

Recordkeeping Requirements.

Had no expiration date clause, last approved by EPA 

March 30, 2005 (70 FR 16129) effective April 29, 2005.

101.221 Operational Requirements. Had expiration date of June 30, 2006, expired on its own 

terms from EPA-approved Texas SIP. 

Last approved by EPA August 26, 2005 (70 FR 50205) 

effective September 26, 2005.

101.222 Demonstrations. Had expiration date of June 30, 2006, expired on its own 

terms from EPA-approved Texas SIP.

Last approved by EPA August 26, 2005 (70 FR 50205) 

effective September 26, 2005.

101.223 Actions to Reduce Excessive 

Emissions.

Had expiration date of June 30, 2006, expired on its own 

terms from EPA-approved Texas SIP.

Last approved by EPA August 26, 2005 (70 FR 50205) 

effective September 26, 2005.

6. What revisions has Texas requested for the Texas SIP?

 The January 26, 2006 SIP submittal would revise existing sections 101.1, 101.201, 

101.211 of the approved Texas SIP and would put into place new sections 101.221, 

101.222 and 101.223. The previous versions of those rules in the approved SIP

expired on June 30, 2006 and thus are no longer part of the SIP. Generally, the 

revisions includes the following major changes:

 Replaces the terms “site” and “facility” with the term “regulated entity.” See section 

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9 of the TSD.

 SSM activities will be considered unscheduled if the actual emissions exceed the 

estimate submitted in the notice by more than a reportable quantity. See section 11

of the TSD.

 Allows owner/operators to report emissions events by regulated entity, on one 

report per common cause. Total emissions are reported from each emissions point, 

rather than from each facility (unit). See section 11 of the TSD.

 Introduces the concepts of planned and unplanned SSM activities. See section 11 of

the TSD.

 Affirmative defense may apply only to non-excessive emission events, unplanned 

SSM activities, upset opacity events, opacity events resulting from unplanned MSS 

activities. See Tables VIII and IX of the TSD.

 Phases out the affirmative defense for planned SSM activities over several years on a 

schedule based on applicable Standard Industrial Classification (SIC) codes. See 

section E of the proposed FR.

 Requires certain regulated entities to submit an annual report describing all emission 

events and schedules MSS activities. See section 12 of the TSD.

 Changes the RQ for nitrogen oxides. See section 9 of the TSD.

 Requires sources to report the best known cause at the time of notice of an emission 

event. Allows reporting without speciating of the air contaminants that have an RQ 

greater or equal to 100 pounds and the amount released is less than ten pounds in 24-

hour period. See section 9 of the TSD.

7. What are some of the most commonly used terminologies in 30 TAC, Chapter 101, 

Subchapters A and F?

To better understand various parts of this rule revision it is beneficial to first become 

familiar with some of the widely-used terminologies as described in Texas rule in 30 TAC, 

Chapter 101, General Air Quality Rules, Subchapters A and F. The following Table III contains 

definitions for terminologies such as Emissions event, Excess opacity event, Non-reportable 

emissions event, Reportable emissions event, Reportable quantity (RQ), Scheduled maintenance, 

startup, or shutdown activity, Unplanned maintenance, startup, or shutdown activity, Unplanned 

maintenance, startup, or shutdown activity, and Upset event. 

TABLE III: WIDELY-USED TERMINOLOGIES OF 30 TAC, CHAPTER 101

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Emissions event--Any upset event or unscheduled maintenance, startup, or shutdown activity, from a common 

cause that results in unauthorized emissions of air contaminants from one or more emissions points at a regulated 

entity. See section 101.1(28 )

Excess opacity event—When an opacity reading is equal to or exceeds 15 additional percentage points above an 

applicable opacity limit, averaged over a six-minute period. See section 101.1(32 )

Non-reportable emissions event--Any emissions event that in any 24-hour period does not result in an 

unauthorized emission from any emissions point equal to or in excess of the reportable quantity as defined in this 

section. See section 101.1(72 )

Reportable emissions event--Any emissions event that in any 24-hour period, results in an unauthorized 

emission from any emissions point equal to or in excess of the reportable quantity as defined in this section. See 

101.1(88)

Reportable quantity (RQ)--Is as follows:

(A) for individual air contaminant compounds and specifically listed mixtures by name or Chemical 

Abstracts Service (CAS) number, either:

(i) the lowest of the quantities:

(I) listed in 40 Code of Federal Regulations (CFR) Part 302 , Table 302.4, the column 

“final RQ”;

(II) listed in 40 CFR Part 355, Appendix A, the column “Reportable Quantity”; or

(III) listed as follows:

 .... 

 See section 101.1(89)

Scheduled maintenance, startup, or shutdown activity--For activities with unauthorized emissions that are 

expected to exceed a reportable quantity (RQ), a scheduled maintenance, startup, or shutdown activity is an 

activity that the owner or operator of the regulated entity whether performing or otherwise affected by the 

activity, provides prior notice and a final report as required by §101.211 of this title (relating to Scheduled 

Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice or final report 

includes the information required in §101.211 of this title; and the actual unauthorized emissions from the 

activity do not exceed the emissions estimates submitted in the initial notification by more than an RQ. For 

activities with unauthorized emissions that are not expected to, and do not, exceed an RQ, a scheduled 

maintenance, startup, or shutdown activity is one that is recorded as required by §101.211 of this title. Expected 

excess opacity events as described in §101.201(e) of this title (relating to Emissions Event Reporting and 

Recordkeeping Requirements) resulting from scheduled maintenance, startup, or shutdown activities are those 

that provide prior notice (if required), and are recorded and reported as required by §101.211 of this title. See 

section 101.1(91)

Unauthorized emissions--Emissions of any air contaminant except carbon dioxide, water, nitrogen, methane, 

ethane, noble gases, hydrogen, and oxygen that exceed any air emission limitation in a permit, rule, or order of 

the commission or as authorized by Texas Clean Air Act, §382.0518(g). See section 101.1(108)

Unplanned maintenance, startup, or shutdown activity--For activities with unauthorized emissions that are 

expected to exceed a reportable quantity or with excess opacity, an unplanned maintenance, startup, or shutdown 

activity is:

(A) a startup or shutdown that was not part of normal or routine facility operations, is unpredictable as 

to timing, and is not the type of event normally authorized by permit; or

(B) a maintenance activity that arises from sudden and unforeseeable events beyond the control of the 

operator that requires the immediate corrective action to minimize or avoid an upset or malfunction. 

See section 101.1(109)

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Upset event--an unplanned and unavoidable breakdown or excursion of a process or operation that results in 

unauthorized emissions. A maintenance, startup, or shutdown activity that was reported under §101.211 of this 

title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), 

but had emissions that exceeded the reported amount by more than a reportable quantity due to an unplanned and 

unavoidable breakdown or excursion of a process or operation is an upset event. See section 101.1(110)

8. What are some of the most commonly EPA-used terminologies concerning excess 

emissions?

To better understand various parts of this rule revision it is beneficial to be familiar with 

some of the commonly EPA-used terminologies as described in EPA documents. The following 

Table IV contains definitions for terminologies such as affirmative defense, enforcement 

discretion, excess emission, malfunction, and automatic exemption.

TABLE IV : COMMONLY EPA-USED TERMINOLOGIES FOR EXCESS 

EMISSIONS

The term affirmative defense means in the context of an enforcement proceeding, a response or defense put 

forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are 

independently and objectively evaluated in a judicial or administrative proceeding.

 Source: S. Herman and R. Perciasepe’s Memo of 1999, Footnote 4 of the Attachment to the Memo.

The term enforcement discretion, in the context of excess emissions enforcement, means the permitting 

authority’s decision to refrain from taking an enforcement action where the imposition of a penalty for sudden 

and unavoidable malfunctions caused by circumstances entirely beyond the control of the owner or operator may 

not be appropriate. The agency’s exercise of enforcement discretion does not waive liability or reporting 

requirements for the violation.

Source: S. Herman and R. Perciasepe’s Memo of 1999

The term excess emission means an air emission level which exceeds any applicable emission limitation.

Source: S. Herman and R. Perciasepe’s Memo of 1999, Footnote 1 of the Attachment to the Memo.

The term malfunction means a sudden and unavoidable breakdown of process or control equipment.

Source: S. Herman and R. Perciasepe’s Memo of 1999, Footnote 1 of the Attachment to the Memo.

The term automatic exemption means a generally applicable provision in a SIP that would provide that if 

certain conditions existed during a period of excess emissions, then those exceedances would not be considered 

violations.

Source: S. Herman and R. Perciasepe’s Memo of 1999, Footnote2 of the Attachment to the Memo.

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Table V below shows a side-by-side-comparison of the Widely-Used Terminologies of 30 TAC, Chapter 101 and the Commonly EPA-Used 

Terminologies for Excess Emissions 

Definitions -Table V

Definitions -Table V: Excess Emissions Guidance 

Policy

Texas Rule Additional Information

The term excess emission means an air emission level 

which exceeds any applicable emission limitation.

Source: S. Herman and R. Perciasepe’s Memo of 1999, 

Footnote 1 of the Attachment to the Memo.

Emissions event– Any upset event or unscheduled 

maintenance, startup, or shutdown activity, from a common 

cause that results in unauthorized emissions of air contaminants 

from one or more emissions points at a regulated entity. See 

section 101.1(28 )

Taken together with the definition of “unauthorized 

emissions” would be equivalent to what EPA would 

consider excess emissions.

No definition, but falls under the excess emission

meaning an air emission level which exceeds any

applicable emission limitation.

Source: S. Herman and R. Perciasepe’s Memo of 1999, 

Footnote 1 of the Attachment to the Memo.

Excess opacity event--When an opacity reading is equal to or 

exceeds 15 additional percentage points above an 

applicable opacity limit, averaged over a six-minute period. 

See section 101.1(32 )

Excess opacity events are distinguished from other 

opacity events by being more than 15% above the 

applicable limit. Excess opacity events must be 

reported within 24 hours. Other opacity events must 

be recorded and reported annually.

No definition Non-reportable emissions event--Any emissions event that in 

any 24-hour period does not result in an unauthorized emission 

from any emissions point equal to or in excess of the reportable 

quantity as defined in this section. See section 101.1(72 )

Policy does not distinguish between the reportable and 

non-reportable scenarios.

No definition Reportable emissions event--Any emissions event that in any

24-hour period, results in an unauthorized emission from any

emissions point equal to or in excess of the reportable quantity

as defined in this section. See section 101.1(88)

Policy does not distinguish between the reportable and 

non-reportable scenarios.
No definition Reportable quantity (RQ)--Is as follows:

(A) for individual air contaminant compounds and 

specifically listed mixtures by name or Chemical Abstracts 

Service (CAS) number, either:

(i) the lowest of the quantities:

(I) listed in 40 Code of Federal Regulations 

(CFR) Part 302 , Table 302.4, the column “final RQ”;

(II) listed in 40 CFR Part 355, Appendix A, 

the column “Reportable Quantity”; or

(III) listed as follows:

 .... 

 See section 101.1(89 )

Policy does not distinguish between the reportable and 

non-reportable quantity of released substance.

Scheduled maintenance, startup, or shutdown activity--For 

activities with unauthorized emissions that are expected to 

exceed a reportable quantity (RQ), a scheduled maintenance, 

startup, or shutdown activity is an activity that the owner or 

operator of the regulated entity whether performing or 

otherwise affected by the activity, provides prior notice and a 

final report as required by §101.211 of this title (relating to 

Scheduled Maintenance, Startup, and Shutdown Reporting and 

Recordkeeping Requirements); the notice or final report 

includes the information required in §101.211 of this title; and 

the actual unauthorized emissions from the activity do not 

exceed the emissions estimates submitted in the initial 

notification by more than an RQ. For activities with 

unauthorized emissions that are not expected to, and do not, 

exceed an RQ, a scheduled maintenance, startup, or shutdown 

activity is one that is recorded as required by §101.211 of this 

title. Expected excess opacity events as described in 

§101.201(e) of this title (relating to Emissions Event Reporting 

and Recordkeeping Requirements) resulting from scheduled 

maintenance, startup, or shutdown activities are those that 

provide prior notice (if required), and are recorded and reported 

as required by §101.211 of this title. See section 101.1(91)

What EPA considers routine or predictable operations

The term excess emission means an air emission level 

which exceeds any applicable emission limitation.

Source: S. Herman and R. Perciasepe’s Memo of 1999, 

Footnote 1 of the Attachment to the Memo.

Unauthorized emissions--Emissions of any air contaminant 

except carbon dioxide, water, nitrogen, methane, ethane, noble 

gases, hydrogen, and oxygen that exceed any air emission 

limitation in a permit, rule, or order of the commission or as 

authorized by Texas Clean Air Act, §382.0518(g). See section 

101.1(108)

What EPA considers excess emissions

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A) Texas treats its unplanned start up, or shutdown 

activity like what EPA normally refers to as a 

malfunction Texas provides affirmative defense to these 

activities which meets EPA’s criteria.

B) In its April 17, 2007 letter to EPA TCEQ states that 

its unplanned maintenance activity is functionally

equivalent to what EPA refers to as “malfunction.”

Unplanned maintenance, startup, or shutdown activity--For 

activities with unauthorized emissions that are expected to 

exceed a reportable quantity or with excess opacity, an 

unplanned maintenance, startup, or shutdown activity is:

(A) a startup or shutdown that was not part of normal 

or routine facility operations, is unpredictable as to timing, and 

is not the type of event normally authorized by permit; or

(B) a maintenance activity that arises from sudden 

and unforeseeable events beyond the control of the operator that 

requires the immediate corrective action to minimize or avoid 

an upset or malfunction. 

See section 101.1(109 )

The term malfunction means a sudden and unavoidable 

breakdown of process or control equipment.

Source: S. Herman and R. Perciasepe’s Memo of 1999, 

Footnote 1 of the Attachment to the Memo.

Upset event--an unplanned and unavoidable breakdown or 

excursion of a process or operation that results in 

unauthorized emissions. A maintenance, startup, or shutdown 

activity that was reported under §101.211 of this title (relating 

to Scheduled Maintenance, Startup, and Shutdown Reporting 

and Recordkeeping Requirements), but had emissions that 

exceeded the reported amount by more than a reportable 

quantity due to an unplanned and unavoidable breakdown or 

excursion of a process or operation is an upset event. See 

section 101.1(110)

What EPA would consider a malfunction scenario

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Definitions -Table V: Excess Emissions Guidance Policy Texas Rule Additional Information

Malfunction

“The EPA can approve a SIP revision that creates an affirmative defense to 

claims for penalties in enforcement actions regarding excess emissions caused by

malfunctions...” To be approved, an affirmative defense provision must provide 

that the defendant has the burden of proof of demonstrating that: 

1. The excess emissions were caused by a sudden, unavoidable breakdown of 

technology, beyond the control of the owner or operator; 

2. The excess emissions (a) did not stem from any activity or event that could 

have been foreseen and avoided, or planned for, and (b) could not have been 

avoided by better operation and maintenance practices; 

3. To the maximum extent practicable the air pollution control equipment or 

processes were maintained and operated in a manner consistent with good 

practice for minimizing emissions;

4. Repairs were made in an expeditious fashion when the operator knew or 

should have known that applicable emission limitations were being exceeded. 

Off-shift labor and overtime must have been utilized, to the extent practicable, to 

ensure that such repairs were made as expeditiously as practicable;

5. The amount and duration of the excess emissions (including any bypass) were 

minimized to the maximum extent practicable during periods of such emissions;

6. All possible steps were taken to minimize the impact of the excess emissions 

on ambient air quality; 

7. All emission monitoring systems were kept in operation if at all possible;

8. The owner or operator’s actions in response to the excess emissions were 

documented by properly signed, contemporaneous operating logs, or other 

relevant evidence; 

9. The excess emissions were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and

10. The owner or operator properly and promptly notified the appropriate 

regulatory authority.

Source: Section II, Attachment to the S. Herman and R. Perciasepe’s Memo of 

1999.

Unplanned maintenance [See section 101.1(109)(B)]: activities with 

unauthorized emissions that are expected to exceed a reportable 

quantity is defined as :

(B) a maintenance activity that arises from sudden and unforeseeable 

events beyond the control of the operator that requires the immediate 

corrective action to minimize or avoid an upset or malfunction.

The owner or operator proves all of the following:

1) owner or operator comply with the reporting and record keeping 

requirements.

(2) the periods of unauthorized emissions from any unplanned 

maintenance, startup, or shutdown activity could not have been 

prevented through planning and design; 

(3) the unauthorized emissions from any unplanned maintenance, 

startup, or shutdown activity were not part of a recurring pattern 

indicative of inadequate design, operation, or maintenance; 

(4) if the unauthorized emissions from any unplanned maintenance, 

startup, or shutdown activity were caused by a bypass of control 

equipment, the bypass was unavoidable to prevent loss of life, 

personal injury, or severe property damage; 

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

manner consistent with good practices for minimizing emissions; 

(6) the frequency and duration of operation in an unplanned 

maintenance, startup, or shutdown mode resulting in unauthorized 

emissions were minimized and all possible steps were taken to 

minimize the impact of the unauthorized emissions on ambient air 

quality; 

(7) all emissions monitoring systems were kept in operation if 

possible; 

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

emissions from any unplanned maintenance, startup, or shutdown 

activity were documented by contemporaneous operating logs or other 

relevant evidence; and

(9) unauthorized emissions did not cause or contribute to an 

exceedance of the NAAQS, PSD increments, or a condition of air 

pollution. 

Source: See 101.222(c)(1)-(9)

TCEQ’s approach to “unplanned 

maintenance” largely mirrors EPA’s 

approach to a malfunction. There are some 

differences from the criteria listed in EPA’s 

guidance. The rest is virtually identical.

[Table V is continued on the next page]

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1

 Note section 101.211 provides for reporting and recordkeeping for excess emissions during scheduled maintenance, startup, and shutdown activities which we believe will improve our 

ability to track and manage these events. Our approval of section 101.211 and other reporting and recordkeeping provisions of the January 23, 2996, SIP submittal will in no way imply

that EPA will provide an affirmative defense for violations during planned maintenance, startup, or shutdown events.

Startup, shutdown

“Finally, EPA is clarifying how excess emissions that occur during 

periods of startup and shutdown should be addressed. In general, 

because excess emissions that occur during these periods are reasonably

foreseeable, they should not be excused. ” See S. Herman and R. 

Perciasepe’s Memo of 1999, Page 3.”

General Affirmative defense provisions relating to startup and shutdown:

1. The periods of excess emissions that occurred during startup and 

shutdown were short and infrequent and could not have been prevented 

through careful planning and design;

2. The excess emissions were not part of a recurring pattern indicative 

of inadequate design, operation, or maintenance;

3. If the excess emissions were caused by a bypass (an intentional 

diversion of control equipment), then the bypass was unavoidable to 

prevent loss of life, personal injury, or severe property damage;

4. At all times, the facility was operated in a manner consistent with 

good practice for minimizing emissions;

5. The frequency and duration of operation in startup or shutdown mode 

was minimized to the maximum extent practicable;

6. All possible steps were taken to minimize the impact of the excess 

emissions on ambient air quality;

7. All emission monitoring systems were kept in operation if at all 

possible; 

8. The owner or operator’s actions during the period of excess emissions 

were documented by properly signed, contemporaneous operating logs, 

or other relevant evidence; and

9. The owner or operator properly and promptly notified the appropriate 

regulatory authority.

See Section III(B) of the attachment to the S. Herman and R. 

Perciasepe’s Memo of 1999. ”

Unplanned startup, shutdown [See section 101.1(109)(A)], or 

Planned Startup, shutdown, maintenance [See Section 

101.222 (h)]

The owner or operator proves all of the following:

(1) owner or operator comply with the reporting and record 

keeping requirements.

(2) the periods of unauthorized emissions from any unplanned

maintenance, startup, or shutdown activity could not have been 

prevented through planning and design; 

(3) the unauthorized emissions from any unplanned

maintenance, startup, or shutdown activity were not part of a 

recurring pattern indicative of inadequate design, operation, or 

maintenance; 

(4) if the unauthorized emissions from any unplanned

maintenance, startup, or shutdown activity were caused by a 

bypass of control equipment, the bypass was unavoidable to 

prevent loss of life, personal injury, or severe property damage; 

(5) the facility and air pollution control equipment were 

operated in a manner consistent with good practices for 

minimizing emissions; 

(6) the frequency and duration of operation in an unplanned

maintenance, startup, or shutdown mode resulting in 

unauthorized emissions were minimized and all possible steps 

were taken to minimize the impact of the unauthorized 

emissions on ambient air quality; 

(7) all emissions monitoring systems were kept in operation if 

possible; 

(8) the owner or operator actions during the period of 

unauthorized emissions from any unplanned maintenance, 

startup, or shutdown activity were documented by 

contemporaneous operating logs or other relevant evidence; and 

(9) unauthorized emissions did not cause or contribute to an 

exceedance of the NAAQS, PSD increments, or a condition of 

air pollution. 

Source: See 101.222(c)(1)-(9)

What Texas refers to as unplanned 

maintenance is functionally equivalent 

to malfunction. See pages 1 and 2 of 

TCEQ’s April 17, 2007 letter to EPA. 

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9. What are the revisions to section 101.1 in this SIP submittal?

The amendments to section 101.1, concerning Definitions, add the definitions of “Agency 

established facility identification number,” “Boiler,” “Combustion turbines,” “Excess opacity 

event,” “Regulated entity,” and “Unplanned maintenance, startup, or shutdown activity.”

 The definition of “Agency established facility identification number” is to be used only for 

purposes of Chapter 101, Subchapter F. An agency established facility identification number is a 

unique alphanumeric code required to be assigned by the owner or operator of a regulated entity

that is required to report an emission inventory, and is applicable to each facility at that regulated 

entity. This definition is necessary for implementing the reporting requirements of 101.201.

The definition of “Boiler” in 30 TAC Chapter 117 is duplicated in these general definitions 

since the term is used in multiple state air regulations. Including this revision will maintain 

consistency between the State and Federal Rule.

 The definition of “Stationary gas turbine” is also duplicated in the general definitions and 

renamed in Chapter 101 as “Combustion turbine” since the term is also used in multiple state air 

regulations. Including this revision will maintain consistency between the State and Federal Rule.

 The term “Excess opacity event” is adopted so that it is clear what is meant by an excess 

opacity event. This definition distinguishes between excess opacity event from other opacity 

event. Both are violations. Excess opacity events, defined as being more than 15% above the 

applicable limit must be reported within 24 hours. Other opacity events must be recorded and 

reported annually

 Section 101.1(86) defines “Regulated entity” as all regulated units, facilities, equipment, 

structures, or sources at one street address or location that are owned or operated by the same 

person. The term includes any property under common ownership or control identified in a permit 

or used in conjunction with the regulated activity at the same street address or location. Owners 

or operators of pipelines, gathering lines, and flow lines under common ownership or control in a 

particular county may be treated as a single regulated entity for purposes of assessment and 

regulation. This helps clarify reporting requirements.

The TCEQ adopted the new definition of unplanned maintenance, startup, or shutdown activity in 

section 101.1(109). Activities with unauthorized emissions that are expected to exceed a 

reportable quantity (RQ) or with excess opacity would be one of two types. The first type of 

unplanned maintenance, startup, or shutdown activity is a startup or shutdown activity that is not 

part of normal or routine facility operations, is unpredictable as to timing, and is not the type of 

event normally authorized by permit. The second type of unplanned activity is a maintenance 

activity that arises from sudden and unforeseeable events beyond the control of the operator that 

requires immediate corrective action to minimize or avoid an upset or malfunction. EPA 

guidance, provides that scheduled maintenance is a predictable event, that can be scheduled at the 

discretion of the operator, and can be coordinated with equipment shutdowns and therefore 

excess emissions can be avoided. Examples of activities that would be considered to be planned 

would include plant turnarounds, scheduled plant outages, and preventative maintenance such as 

routine replacement of facility parts that are regular and quantifiable. Planned activities are the 

type that can be authorized by a permit, standard permit, or permit by rule. Evidence of 

predictability could include whether procedures and/or personnel assignments exist well in 

advance of the event. The definition of unplanned maintenance clearly covers events that are 

different than the concept of planned maintenance. Texas has said that the term is functionally 
equivalent to a malfunction. It is recommended that emissions from these types of events should 

be treated as malfunctions for determining eligibility for affirmative defense 

Section 101.1(25), renumbered as section101.1(28), amends the definition of “Emissions event”

to clarify that any upset event or unscheduled maintenance, startup, or shutdown activity from a 

common cause is considered one event. In addition, the unauthorized emissions from the event 

can also result from one or multiple emission points at a regulated entity. 

Section 101.1(68), renumbered as section 101.1(72), amends the definition of “Non-reportable 

emissions event” to no longer simply state that non-reportable emissions events are those that are 

not reportable emissions events, but to more clearly define them as any emissions event in a 24-

hour period that does not result in an unauthorized emission equal to or in excess of an RQ. This 

distinguishes reportable events that must be reported within 24 hours from smaller events that 

must be reported annually.

Section 101.1(83), renumbered as section 101.1(88), amends the definition of “Reportable 

emissions event” to clarify it is any emissions event that in any 24-hour period, results in an 

unauthorized emission from any emissions point equal to or in excess of the RQ as defined in this 

section. 

There are several revisions to the definition of “Reportable quantity (RQ)” in section 101.1(84), 

renumbered as section 101.1(89). First, as specified in section 101.1(89)(A), when determining if 

a compound is listed in either 40 CFR Part 302, section 302.4 or 40 CFR Part 355, Appendix A, 

the owner or operator must use either the listed compound name or the Chemical Abstracts 

Service (CAS) number, whichever is more specific. Although this concept is already widely being

followed, specific rule language is needed because some compounds can have multiple names. 

The compound name used by the owner or operator might not be the exact compound name listed 

in the two tables, but the CAS number should be the same. The Texas specific list of compounds 

found in section 101.1(89)(A)(i)(III) has been revised so that the compounds are now listed in 

alphabetic order. In addition, section 101.1(89)(A)(i)(III)(-ff-), would provide for an RQ for 

“oxides of nitrogen.” The new RQ for oxides of nitrogen combines all of the oxides of nitrogen, 

including nitrogen oxide and nitrogen dioxide. The RQ is 200 pounds in ozone nonattainment 

areas, ozone maintenance areas, ozone early action compact areas, Nueces County, and San 

Patricio County. Nueces and San Patricio Counties are included because design value for that area 

is close to exceeding the national ambient air quality standard (NAAQS) for ozone. The 200-

pound figure is based upon adding the current RQs for nitrogen oxide and nitrogen dioxide 

together. For all other areas of the state, where ozone levels are not approaching the ozone 

NAAQS, the RQ is 5,000 pounds. The TCEQ is also revising establishment of a statewide 

specific RQ of 5,000 pounds for certain compounds, all of which are either chlorofluorocarbons 

(CFC), hydrofluorocarbons (HFC), or hydrochlorofluorocarbons (HCFC) in items (-q-) - (-ss-). 

The compounds are neither criteria pollutants nor precursors of ozone, and therefore the 100-

pound default for the nonattainment, near nonattainment, maintenance, and early action compact 

areas should not apply. The following compounds have been added since proposal: 

pentachlorofluoroethane (CFC-111); 1,1,2,2-tetrachlorodifluoroethane (CFC-112); 1,1,1,2-

tetrachlorodifluoroethane (CFC-112a); 1,1,1-trichloro-2,2,2- trilfloroethane (CFC-113a); 1,1,- 

dichlorotetrafluoroethane (CFC-114a); 1-chloro-1,1,2,2 tetrafluoroethane (HCFC-124a); and 

1,1,1,2,3,3,3-heptafluoropropane (HFC-227ea). All of these compounds are either a CFC, HCFC, 

or an HFC. In section 101.1(89)(A)(ii), the proposed revision to establish a default RQ of 5,000 

pounds for air contaminants when there is not a listed RQ and the regulated entity is not located 

within nonattainment areas, near-nonattainment areas, maintenance areas, and early action 

15
compact areas was not adopted, and the default RQ remains at 100 pounds. TCEQ has adopted 

the reportable quantity approach to limit the number of events that are reported within 24 hours in 

order to focus investigative efforts on the highest priority events. Non-reportable events are still 

violations and must be recorded and reported annually and as Title V deviations if applicable.

In adopted section101.1(89)(B)(iv), the RQ for natural gas is revised, such that it is clear that 

carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen are 

excluded from the composition of the natural gas when determining if an RQ has been exceeded. 

These compounds are not criteria pollutants or precursors to criteria pollutants nor are they

generally regulated through TCEQ permits. The exclusion of these compounds is acceptable.

In adopted section 101.1(89)(C), The TCEQ added language noting that the terms “boilers” and 

“combustion turbines” are now defined in section 101.1(6) and (14). The adopted amendment to 

section 101.1(86), renumbered as section101.1(91), clarifies that the emissions from a scheduled 

maintenance, startup, or shutdown activity will be considered as part of the activity if they do not 

exceed the estimates in the notification by more than an RQ. The term “facility” is replaced with 

“regulated entity.” These changes were required by Texas HB 2129. Additionally, the phrase 

“whether performing or otherwise affected by the activity,” was added to clarify that if the actions 

of another regulated entity actions caused a regulated entity the need to conduct a maintenance, 

startup, or shutdown activity, then that activity would be considered part of this definition. 

The TCEQ adopts the amendment to section 101.1(87) that removes the definition of “Site” in 

order to incorporate the definition of “Regulated entity” to comply with applicable statutory 

provisions of Texas HB 2129. 

The TCEQ also adopts the amendment to section 101.1(105), renumbered as section 101.1(110), 

the definition of “Upset event.” The amendment replaces the phrase “or unanticipated 

occurrence” with “and unavoidable breakdown.” This clarifies that upset events are those that are 

beyond the control of the operator and makes the definition more consistent with the EPA 

guidance. A sentence has been added to the definition of “Upset event” due to changes in the 

structure of section 101.222(b). Section 101.222(b) previously covered emissions events, but will 

now only cover upset events. This change is important to make clear that a certain set of events 

that begin as maintenance, startup, or shutdown events are still covered by section 101.222(b). 

These events are instances where a maintenance, startup, shutdown or activity is reported prior to 

its beginning and the emissions are estimated, but the emissions exceed the estimate by more than 

an RQ due to an upset condition. These types of events have historically been covered by section 

101.222(b) and this change ensures that they are still covered under this subsection. 

The changes to the definition of upset conforms the definition to the type of event that will meet 

EPA’s criteria for an affirmative defense. EPA allows an affirmative defense for malfunctions that 

are sudden, unavoidable, and unpredictable in nature. Thus the definition insures that an 

affirmative defense is allowed only for true emergency-type. The remaining definitions in section 

101.1 are renumbered accordingly.

 The revisions to 101.1 will provide for consistency among Subchapter A and 

Subchapter F, and facilitate implementation of the rule. The changes to the definitions 

also conform to EPA’s guidance on start up/shut downs and malfunctions and thus 

should be approved. 

16
10. What are the revisions to section 101.201 in this SIP submittal?

Amendments to section 101.201 concern revisions to the Emissions Event Reporting and 

Recordkeeping Requirements. 

TCEQ adopted the requirements for reporting to local air pollution control agencies with

jurisdiction into section 101.201(a)(1)(B) to clarify that local air pollution agencies should receive 

initial notifications and final reports.

 TCEQ adopted the amendment to section 101.201(a)(2) to clarify that owners and operators of 

regulated entities, except for boilers or combustion turbines, are required to report emissions 

events for each emissions point with unauthorized emissions that exceed an RQ because the 

revised definition of “Emissions event” could cause confusion about whether emissions from each 

facility involved in a reportable emissions event should be included in the notification and report. 

With the revision to 101.201(a)(2), it is clear that while only one report is necessary for an 

emission event that effects several emission points, the report must report the excess emissions 

from each emissions point.

References to “notification,” “initial notification,” and “24-hour notification” have been revised to 

read “initial 24-hour notification” in section 101.201(a)(2) and (2)(H), (3), and (4), (c), (e), and 

(g). 

TCEQ adopted the amendment to section 101.201(a)(2)(B) and (3)(B) to provide new language 

that requires identification of TCEQ Regulated Entity Number (RN) of the regulated entity 

experiencing an emissions event. If the regulated entity does not have an RN, then the air account 

number will be identified. Now that TCEQ has changed to a Central Registry system, the air 

account number is no longer the primary identifier of the regulated entity. The RN is necessary to 

report incidents via the agency’s electronic reporting system. If the regulated entity does not have 

an RN or air account number, the location of a release and a contact telephone number in 

notifications and final reports must be reported. Accordingly, section 101.201(a)(2)(C) and (3)(C) 

is deleted, since this information is required by section 101.201(b)(1)(C) for final reports and is 

sufficient information regarding location. Subsequent subparagraphs are re-lettered accordingly in 

section 101.201(a)(2) and (3). These changes will help TCEQ to manage the information that 

comes in for emissions events.

 TCEQ adopted the deletion of the word “event” in section 101.201(a)(2)(E) to ensure that the 

duration of the actual emissions is reported.

 TCEQ adopted the deletion of the language requiring the reporting of authorized emissions 

limits and if applicable, the estimated opacity and the authorized opacity limit in 

section101.201(a)(2)(H), re-lettered as subparagraph (G). Authorized emission limits are 

required in the final report.

TCEQ adopted the addition of the term “best known” and “at the time of the notification” to 

existing section 101.201(a)(2)(I), re-lettered as subparagraph (H), and to existing 

section101.201(a)(3)(D), re-lettered as subparagraph (C). This revision clarifies that the cause of 

the emissions event is based on best available information at the time of the notification. This 

change recognized that the more thorough investigation in to the root cause of an event may 

result in determining a different cause than initially believed.

17
TCEQ adopted the amendment to section101.201(a)(3) to clarify that owners and operators of 

boilers and combustion turbines are required to report emissions events for each emissions point 

with emissions that exceed an RQ. Without this change, the revised definition of “Emissions 

event” could cause confusion about whether emissions from each facility involved in a reportable 

emissions event should be included in the notification and report. 

 TCEQ adopted the amendment to section 101.201(a)(3)(E), re-lettered as subparagraph (D), to 

remove the requirement to report the facility identification numbers or emission point numbers. 

 TCEQ adopted the deletion of the “event” in section 101.201(a)(3)(F) to ensure that the duration 

of the actual emissions is reported. 

 TCEQ adopted the amendment to section101.201(a)(3)(I) to delete the provision to report the 

authorized opacity limit in the initial notification. The subsequent subparagraphs of section 

101.201(a)(3) are re-lettered accordingly. 

 TCEQ deletes section 101.201(a)(4), moving the language to section101.201(f). Section 

101.201(a)(5) is renumbered as section 101.201(a)(4).

101.201(b) covers the final record of the emissions event. TCEQ adopted the amendment to 

section101.201(b) to delete the phrase, “such records shall identify.” This change was necessary 

to separate section101.201(b) into two paragraphs, subsection (b)(1) and (2). TCEQ adopted 

the amendment to section101.201(b)(1) to outline the provisions required in final records of 

reportable emissions events. The existing paragraphs in section101.201(b) are re-lettered as 

subparagraphs (A) - (L).

TCEQ adopted the amendment to section101.201(b)(1)(B) and (2)(B) to provide new language 

that requires identification of TCEQ RN of the regulated entity experiencing an emissions event. 

If the regulated entity does not have an RN, then the air account number will be identified. Now 

that the commission has changed to a Central Registry system, the air account number is no 

longer the primary identifier of the regulated entity. The RN is necessary to report incidents via 

the agency’s electronic reporting system. If the regulated entity does not have an RN or air 

account number, the location of a release and a contact telephone number in prior notifications 

and final reports must be reported.

TCEQ adopted the deletion of the word “event” in section 101.201(b)(1)(F) to ensure that the 

duration of the actual emissions is reported. 

TCEQ adopted the amendment to section 101.201(b)(7), renumbered as subsection (b)(1)(G), to 

require the reporting of air contaminants by emissions point, rather than by facility. 

Adopted section101.201(b)(7), renumbered as subsection (b)(1)(G), provides language that 

requires the reporting of air contaminants from all emissions points involved in the emissions 

event, and allows reporting of air contaminants in the final report that have an RQ greater than or 

equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period without 

speciation, instead these compounds or mixtures of air contaminants may be identified together as 

“other.” This provision addresses concerns expressed at the stakeholder meetings that it is 

difficult and unnecessary to speciate and report very small quantities of chemicals involved in a 

reportable event. EPA agrees for smaller quantities that it is unnecessary to speciate compounds.

18
Adopted section 101.201(b)(8), renumbered as subsection (b)(1)(H), is amended to eliminate 

reporting of the authorized opacity limit and opacity estimate in the final report. TCEQ adopted a 

clarification that estimates of emissions for final records must be based on good engineering 

practice and methods to provide reasonably accurate representations for emissions and opacity. 

Language has also been added to allow the compounds or mixtures of air contaminants listed as 

“other” under section 101.201(b)(1)(G) to be treated as a group for estimating emissions. The 

report should only include facilities that have unauthorized emissions. TCEQ does not require 

information about facilities involved in the event that do not have unauthorized emissions. The 

phrase “if any” has been added to clarify that the preconstruction authorization and associated 

emissions limits is applicable only if those exist and are applicable to emissions from that event. 

These must only be reported if those emissions were evaluated and included in the authorization. 

In addition, where the words “experienced,” “incurred,” or “involved” are used in section 101.201 

and section101.211 regarding reporting of facilities, TCEQ intends that only those facilities that 

have unauthorized emissions must be included in the report. These changes will help insure that 

only information necessary to evaluate the excess emissions are included in the report and that the 

information is based on good engineering practice. 

TCEQ adopted the amendment to section101.201(b)(10), renumbered as section 

101.201(b)(1)(J), to add the terms “best known” and “at the time of the notification” to clarify 

that the cause of the emissions event is based on best available information at the time of 

reporting. 

TCEQ adopted section 101.201(b)(2) to outline the provisions required in records of nonreportable emissions events. TCEQ also adopted the amendment to section 101.201(b)(2)(A) - (J) 

to provide separate provisions for required records for non-reportable emissions events. The 

adopted requirements in section 101.201(b)(2)(A) - (L) are the same as the language in 

section101.201(b)(1)(A)- (L) and the description is not repeated here.

 TCEQ adopted the addition of the requirement to report to local air pollution control agencies 

with jurisdiction to section101.201(c) to clarify that local air pollution agencies should receive 

initial notifications and final reports. 

 TCEQ adopted the amendment to section 101.201(e) to delete duplicative language that is now 

covered in the definition of “Excess opacity event” in section 101.1. 

TCEQ adopted the amendment to add reporting to local air pollution control agencies with 

jurisdiction to section 101.201(e) - (g) to clarify that local air pollution agencies should receive 

initial notifications and final reports. This insures that City of Houston and Harris County Air 

Pollution Control Authorities among others receive reports as they have enforcement authority in 

their jurisdiction.

 TCEQ adopted the amendment to section101.201(e)(2) to add the requirement to identify the 

commission RN of the regulated entity experiencing an excess opacity event. If the regulated 

entity does not have an RN, then the air account number will be identified. Now that TCEQ has 

changed to a Central Registry system, the air account number is no longer the primary identifier of 

the regulated entity. The RN is necessary to report incidents via the agency’s electronic reporting 

system. If the regulated entity does not have an RN or air account number, the location of a 

release and a contact telephone number in notifications and final reports must be reported. TCEQ 

adopted the amendment to section101.201(e)(8) to change the term “source” to “facilities” to 

make this reporting requirement consistent with other uses of the term “facility” in the rule as well 

19
as the changes of the term “facility” to “regulated entity.” 

TCEQ adopted the amendment to section101.201(e)(9) to add the term “best known” and “at the 

time of the notification” to clarify that the cause of the excess opacity event is based on the best 

known information at the time of the notification.

TCEQ adopted the amendment to section101.201(f) to add language requiring the submittal of a 

technical analysis of emissions events to the appropriate local air pollution agencies with 

jurisdiction. 

 In addition, TCEQ added the requirement, previously in section101.201(a)(4), that the owner or 

operator of a regulated entity experiencing an emissions event must provide, in writing, additional 

or more detailed information regarding the emissions event when requested by the executive 

director or any air pollution control agency with jurisdiction, within the time established in the 

request. 

TCEQ received input from regulated entities that input of the 24-hour report into the 

commission’s Web server has caused many personnel and operational problems. To address this 

concern, TCEQ has added language to section101.201(g) to allow submittal by facsimile, or 

electronic mail to meet the 24-hour requirement as long as the same information is input into the 

commission’s Web server within 48 hours of discovery of the event. This is not meant to be an 

opportunity to modify information in the report as the first submittal must meet the 24-hour 

reporting requirements on its own. 

The citation for the definition of “small business” in section 101.201(g) and (h)(3) is corrected to 

refer to Texas Water Code, section 5.135(g)(2). Small business are not required to report 

electronically but must still report excess emissions by other viable means.

 TCEQ adopted the amendment to delete the existing language in section 101.201(h) and add 

language to require annual emissions event reporting by March 31 of each calendar year or as 

directed by the executive director. The reporting requirement would begin in 2007 to allow for a 

full year of records following adoption of this rule. This report is required for owners or operators 

that are subject to reporting under section101.10, Emissions Inventory Requirements, and owners 

and operators that are not subject to reporting under section 101.10 and are located in 

nonattainment, maintenance, early action compact areas, Nueces County, and San Patricio 

County, that experience at least one emissions event during the calendar year. For those entities 

that already submit an emission inventory report, this information would be included in that 

report. For entities that do not submit an emission inventory report, this report must be submitted 

electronically except that small businesses may submit by other viable means. Adopted section 

101.201(h)(1) specifies that the report must include the total number of reportable and the total 

number of non-reportable emissions events experienced at the regulated entity. Adopted section 

101.201(h)(2) specifies that the report must include estimated total quantities for all compounds 

or mixtures of air contaminants, by compound or mixture that were emitted, except for 

compounds or mixtures that have an RQ greater than or equal to 100 pounds and the amount 

released is less than one pound in a 24-hour period. TCEQ added the requirements to report the 

quantities of emissions based on good engineering practice and methods to provide reasonably 

accurate representations for emissions. Adopted section101.201(h)(2) does not apply to boilers 

and combustion turbines referenced in the definition of RQ in section 101.1, that must report only 

the estimated opacities during emissions events and duration of unauthorized opacity.

20
 The revisions to 101.201 will provide for more consistent reporting and recordkeeping 

provisions associated with the emissions events, and will facilitate enforcement of the rule. 

In addition, the rule changes insure that local air pollution control authorities will also 

receive reports. It is recommended that these revisions to the existing SIP be approved.

11. What are the revisions to section 101.211-Scheduled Maintenance, Startup, and 

Shutdown Reporting and Recordkeeping Requirements in this SIP submittal?

TCEQ revises the amendment to section 101.211(a) to clarify that actual emissions from 

maintenance, startup, or shutdown activities that exceed the estimated emissions in the initial 

notification by more than an RQ are either upsets or unplanned startup, shutdown, or maintenance 

activities. This change is required by HB 2129. The factor determining whether the event becomes 

an emissions event or an unplanned startup, shutdown, or maintenance activity will be the cause 

of the exceedance. If the unanticipated emissions result from a sudden breakdown of equipment 

that occurs during the scheduled activity the event would be treated as an upset. However, if 

during a scheduled maintenance activity additional maintenance is required that results in the 

unanticipated emissions, and that maintenance was unforeseeable and requires immediate 

corrective action to avoid a malfunction, then the event would be treated as an unplanned 

maintenance activity. This distinction is made to reflect the changes to section 101.222, which 

provide a different list of demonstration criteria for upsets than for unplanned maintenance, 

startup, and shutdown activity.

 TCEQ revises section 101.211(a) to add “by emissions point” to clarify the RQ applies to 

each emissions point and to ensure consistency with the requirements for emissions events. 

TCEQ revises the amendment to section 101.211(a) to add “with jurisdiction” to clarify that the 

local air pollution agencies should receive initial notifications and final reports. 

TCEQ revises section 101.211(a) to add a reference to section 101.1, where excess 

opacity is defined, and accordingly deletes the reference to section 101.201(e) for excess opacity. 

 TCEQ revises section 101.211(a)(1)(B) and (2)(B) and (b)(1)(B) and (2)(B) to add 

language that requires the identification of TCEQ RN of the regulated entity experiencing the 

activity. If the regulated entity does not have an RN, then the air account number will be 

identified. If the regulated entity does not have an RN or air account number, the location of a 

release and a contact telephone number in prior notifications and final reports must be reported. 

These changes are necessary to properly manage the reported information.

TCEQ revises section 101.211(a)(1)(E) to require the reporting of the expected duration 

of any maintenance activity.

 TCEQ also revises section 101.211(a)(1)(G) to clarify that the duration of the emissions 

from the scheduled maintenance, startup, and shutdown activity must be reported. TCEQ revises 

section 101.211(a)(1)(F) to denote that these scheduled maintenance, startup, and shutdown 

activities are not emissions events, but are emissions activities. TCEQ revises section 

101.211(a)(1)(H) to provide language that requires the reporting of air contaminants by all 

emissions points involved in the activity, and to allow the reporting of compounds or mixtures of 

air contaminants in the final report that have an RQ greater than or equal to 100 pounds and the 

amount released is less than ten pounds in a 24-hour period without speciation, instead these 

compounds or mixtures of air contaminants may be identified together as “other.”

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 TCEQ revises section 101.211(a)(1)(I) and existing language in subsection (b)(9), 

renumbered as subsection (b)(1)(I), to add language requiring the reporting of the quantities of 

emissions by utilizing good engineering practice and methods to provide reasonably accurate 

representations for emissions and opacity. Language has also been added to allow for the 

compounds or mixtures of air contaminants listed as “other” under 101.211(a)(1)(H) to be treated 

as a group for estimating emissions. The report should only include facilities that have 

unauthorized emissions. TCEQ does not require information about facilities involved in the 

activity that do not have unauthorized emissions. The phrase “if any” has been added to clarify 

that the preconstruction authorization and associated emissions limits is applicable only if those 

exist and are applicable to emissions from that activity. These must only be reported if those 

emissions were evaluated and included in the authorization. In addition, where the words 

“experienced,” “incurred,” or “involved” are used in section 101.201 and section 101.211 

regarding reporting of facilities, TCEQ intends that only those facilities that have unauthorized 

emissions must be included in the report. TCEQ revises section 101.211(a)(2)(F) to require the 

reporting of the expected duration of any maintenance activity. TCEQ also revises section 

101.211(a)(2)(G) to clarify that the duration of the emissions from the scheduled maintenance, 

startup, and shutdown activity must be reported. These revisions clarify expectations for reports 

and should be approved.

TCEQ revises section 101.211(a)(2)(H) to specify that the estimated opacity and the 

authorized opacity limit must be reported for those emissions points for which unauthorized 

opacity is expected. TCEQ revises section 101.211(b) to separate subsection (b) into two 

paragraphs, paragraphs (1) and (2). TCEQ revises section 101.211(b)(1) to outline provisions 

regarding final records for regulated entities that are required to notify of scheduled maintenance, 

startup, or shutdown activities. The existing paragraphs in section 101.211(b) are re-lettered as 

subparagraphs (A) - (K). Adopted section 101.211(b)(2), renumbered as subsection (b)(1)(B), is 

amended to provide language that requires identification of TCEQ RN of the regulated entity 

experiencing the activity. If the regulated entity does not have an RN or air account number, the 

location of a release and a contact telephone number in notifications and final reports must be 

reported. Adopted section 101.211(b)(5), re-lettered as subsection (b)(1)(E), is amended to add 

“experienced the emissions activity” and accordingly delete “experienced the emissions event” to 

denote that the associated scheduled maintenance, startup, and shutdown activities are not 

emissions events, but are emissions activities. Adopted section 101.211(b)(6), renumbered as 

subsection (b)(1)(F), is amended to require the reporting of the expected duration of any 

maintenance activity. TCEQ also revises the amendment to section 101.211(b)(7), renumbered as 

subsection (b)(1)(G), to clarify that the duration of the emissions from the scheduled maintenance, 

startup, and shutdown activity must be reported. Adopted section 101.211(b)(8), renumbered as 

subsection (b)(1)(H), is amended to provide language that requires the reporting of air 

contaminants involved in the emissions activity, and to allow for the reporting of air contaminants 

in the final report that have an RQ greater than or equal to 100 pounds and the amount released is 

less than ten pounds in a 24-hour period without speciation, instead these compounds or mixtures 

of air contaminants may be identified together as “other.” TCEQ revises the amendment to 

section 101.211(b)(9), re-lettered as subsection (b)(1)(I), to delete the reference to existing 

paragraph (8) and to refer to the re-lettered subparagraph (H). Also, TCEQ revises the 

requirement that good engineering practice and methods must be used to provide reasonably 

accurate representations for emissions and opacity. Language has also been added to allow the 

compounds or mixtures of air contaminants listed as “other” under section 101.211(b)(8) to be 

treated as a group for estimating emissions. The report should only include facilities that have 

unauthorized emissions. TCEQ does not require information about facilities involved in the 

activity that do not have unauthorized emissions. The phrase “if any” has been added to clarify 

22
that the preconstruction authorization and associated emissions limits is applicable only if those 

exist and are applicable to emissions from that activity. These must only be reported if those 

emissions were evaluated and included in the authorization. In addition, where the words 

“experienced,” “incurred,” or “involved” are used in section 101.201 and section 101.211 

regarding reporting of facilities, TCEQ intends that only those facilities that have unauthorized 

emissions must be included in the report. 

TCEQ revises section 101.211(b)(2) to outline the provisions required in records of nonreportable emissions events. TCEQ also revises section 101.211(b)(2)(A) - (I) to add provisions 

regarding final records for facilities that were not required to notify of scheduled maintenance, 

startup, or shutdown activities. The adopted requirements in section 101.211(b)(2)(A) - (I) are 

the same as the requirements in section 101.211(b)(1)(A) - (I). Adopted section 101.211(b)(2)(F) 

is amended to require the reporting of the expected duration of any maintenance activity. TCEQ 

also revises the amendment to section 101.211(b)(2)(G) to clarify that the duration of the 

emissions from the scheduled maintenance, startup, and shutdown activity must be recorded. 

TCEQ revises section 101.211(b)(2)(H) to require the recording of the compound descriptive 

type of the individually listed compounds or mixtures of air contaminants, in the definition of RQ 

in section 101.1, that are known through common process knowledge, past engineering analysis, 

except for boilers or combustion turbines referenced in the definition of RQ in section 101.1, and 

that were unauthorized. Compounds or mixtures of air contaminants, that have an RQ greater 

than or equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period 

may be reported without speciation, instead these compounds or mixtures of air contaminants 

may be identified together as “other.” In adopted section 101.211(b)(2)(I), TCEQ added the 

requirements to record the quantities of emissions determined utilizing good engineering practice 

and methods to provide reasonably accurate representations for emissions and opacity. TCEQ 

revises the amendment to section 101.211(b)(2)(I) to add language to allow for the compounds or 

mixtures of air contaminants listed as “other” under section 101.211(b)(2)(H) to be treated as a 

group for estimating emissions. 

TCEQ adds language to section 101.211(c) to require that reporting for scheduled 

maintenance, startup, or shutdown activities must also be reported to the appropriate local air 

pollution agencies with jurisdiction. 

 TCEQ revises section 101.211(e) to require that a copy of the requested technical plan 

for a scheduled maintenance, startup, or shutdown activity be sent to the local air pollution 

agency with jurisdiction. 

TCEQ revises section 101.211(f) to require annual reporting of emissions resulting from 

scheduled maintenance, startup, and shutdown activities by regulated entity. The reporting 

requirement would begin in 2007 to allow for a full year of records following adoption of this 

rule. This report is required for owners or operators that are subject to reporting under section 

101.10, and owners and operators that are not subject to reporting under section 101.10 and are 

located in nonattainment, maintenance, early action compact areas, Nueces County, and San 

Patricio County, that experience at least one scheduled maintenance, startup, or shutdown activity 

during the calendar year. For those entities that already submit an emission inventory report, this 

information would be included in that report. For entities that do not submit an emission 

inventory report, this report must be submitted electronically, except that small businesses may 

submit by other viable means. 

Adopted section 101.201(h)(1) specifies that the report must include the total number of 

23
reportable and the total number of non-reportable emissions events experienced at the regulated 

entity. Adopted section 101.201(h)(2) specifies that the report must include estimated total 

quantities for all compounds or mixtures of air contaminants, by compound or mixture that were 

emitted for each facility, except for compounds or mixtures that have an RQ greater than or equal 

to 100 pounds and the amount released is less than one pound in a 24-hour period. In addition, 

the citation for the definition of “small business” in section 101.211(f)(3) is corrected to refer to 

Texas Water Code, section 5.135(g)(2).

 The revisions to 101.211 will provide for more consistent reporting and recordkeeping 

provisions associated with the scheduled maintenance, startup, and shutdown events in the 

rules, and will facilitate reporting and enforcement of the rule Thus, these revisions should 

be approved. Section 101.211 provides for reporting and recordkeeping for excess 

emissions during scheduled maintenance, startup, and shutdown which we believe will 

improve our ability to track or manage these events. an approval of section 101.211 in no 

way implies that EPA will provide an affirmative defense for violations during planned 

maintenance, startup, or shutdown events. Our approval of these reporting requirements 

for scheduled maintenance, startup, and shutdown events only means that facilities will 

need to make these required notifications. This clarification has been explicitly noted in 

Section D of our proposed Federal Register rulemaking action, as well.

12. What does the revised rule say about annual reporting of emissions events?

The Texas rules provide that emission events resulting in excess emissions above 

reportable quantities must be reported as soon as practicable but no later than 24-hours 

after the discovery of an emission event. See 101.201(a). These are defined as reportable 

emissions events. Events that result in less than a reportable quantity of excess emissions 

are non-reportable. According to section 101.201(h) Texas requires annual reporting of 

both reportable and non-reportable emission events for certain sources. As both 

reportable and non-reportable events are violations it is appropriate and necessary that 

sources report both. We believe this information will assist the State in evaluating 

effective enforcement efforts and will facilitate the State’s SIP planning process. 

According to 101.201(h)(3) the affected source or operator must provide a report of

annual emissions events electronically using TCEQ’s online Web server. The public can 

access and search air emissions events of interest at: 

http://www2.tnrcc.state.tx.us/eer/main/index.cfm?fuseaction=searchForm (URL dated June 26, 

2006)

We support the new reporting requirements for excess emissions as an aid to the State’s 

air quality planning and enforcement efforts.

101.221 Operational Requirements (Sections 13 and 14):

13. What is EPA’s policy on excess emissions for sources subject to Federal standards such 

as NSPS or NESHAP?

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, states “To the extent a state includes 

NSPS or NESHAPs in its SIP, the standards should not deviate from those that were Federally 

24
promulgated. Because EPA set these standards taking into account technological limitations, 

additional exemptions would be inappropriate.” Therefore, an affirmative defense cannot apply to 

violations of Federally promulgated performance of technology-based standards, such as those 

found in 40 CFR parts 60, 61, and 63. Consistent with EPA’s policy, the second sentence in 

section 101.221(d) of the revised rule states that the commission can’t exempt sources from 

compliance with the Federally-promulgated standards, such as NSPS or NESHAPs. A source 

can’t assert affirmative defense provisions of 101.222(c) – (e) to violations of federal 

requirements such as NSPS or NESHAP.

14. What other Operational Requirements are included in the Texas Rules 101.221?

 Section 101.221 (Operational Requirements) discusses the requirement to maintain air 

pollution equipment in good working order. 

 Section 101.221(d) provides that the commission may exempt sources when there is a 

lack of technical knowledge. This language could raise concern that it allows unapprovable 

director’s discretion. However, revisions to section 101.221 clarify that section 101.221(d) does 

not allow exemptions from any federal requirements, including 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. We have included the April 17, 2007 letter in the 

docket for this rulemaking action, which is available for public inspection. As a consequence, the 

State may only use the provision in 101.221(d) for “State-only” requirements. We are proposing 

to approve this change as enhancing the existing SIP because it prevents exemptions from being 

provided for federal requirements including federally-approved SIP requirements. This 

clarification has been explicitly noted in Section D of our proposed Federal Register rulemaking 

action, as well. Therefore, we are recommending approval.

15. What is our evaluation of 101.222(a) Excessive Emissions Event Determinations.

Table VI shows a comparison of TCEQ’s criteria for Excessive Emission Events and EPA policy.

Table VI: Excessiveness Criteria for Emissions Events

EPA TCEQ criteria for excessiveness

EPA’s 1999 policy on excess emission does not 

contain differentiate between types of excess 

emission events (i.e., it does not define certain excess 

emissions as “excessive” and others as not 

excessive.)

(a) Excessive emissions event determinations. The 

executive director shall determine when emissions events 

are excessive. To determine whether an emissions event or 

emissions events are excessive, the executive director will 

evaluate emissions events using the following criteria:

(1) the frequency of the facility’s emissions events;

(2) the cause of the emissions event;

(3) the quantity and impact on human health or the 

environment of the emissions event;

(4) the duration of the emissions event;

(5) the percentage of a facility’s total annual operating 

hours during which emissions events occur; and- 

(6) the need for startup, shutdown, and maintenance 

activities.

See 101.222. Demonstrations

If an event is determined to be excessive using the above criteria, it is not eligible for an 

affirmative defense. Therefore, TCEQ’s treatement of excessive emission events is not subject to 

EPA’s policy on affirmative defense. This portion of the rule provides additional measures for 

25
sources with excessive emission event that attempt to better insure the events do not recur. 

16. What is our Evaluation of 101.222(b) Non-excessive upset events?

The Table VII below summarizes a comparison of EPA guidance and the State rule for nonexcessive upset emissions events. As discussed previously, Texas uses the term upset in the same

way that EPA guidance refers to a malfunction.

Table VII: Affirmative Defense Criteria as Included in EPA’s Policy and in TCEQ’s section 

101.222(b)

EPA – Affirmative Defense criteria as included in EPA’s 

1999 Policy 

Texas Rule 101.222(b)

26
1. The excess emissions were caused by a sudden, 

unavoidable breakdown of technology, beyond the control of 

the owner or operator; 

2. The excess emissions (a) did not stem from any activity

or event that could have been foreseen and avoided, or 

planned for, and (b) could not have been avoided by better 

operation and maintenance practices; 

3. To the maximum extent practicable the air pollution 

control equipment or processes were maintained and 

operated in a manner consistent with good practice for 

minimizing emissions;

4. Repairs were made in an expeditious fashion when the 

operator knew or should have known that applicable 

emission limitations were being exceeded. Off-shift labor 

and overtime must have been utilized, to the extent 

practicable, to ensure that such repairs were made as 

expeditiously as practicable;

5. The amount and duration of the excess emissions 

(including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions;

6. All possible steps were taken to minimize the impact of 

the excess emissions on ambient air quality; 

7. All emission monitoring systems were kept in operation 

if at all possible;

8. The owner or operator’s actions in response to the excess 

emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant evidence; 

9. The excess emissions were not part of a recurring pattern 

indicative of inadequate design, operation, or maintenance; 

and

10. The owner or operator properly and promptly notified 

the appropriate regulatory authority.

Source: Section II, Attachment to the S. Herman and R. 

Perciasepe’s Memo of 1999.

(1) the owner or operator complies with the requirements 

of §101.201 of this title (relating to Emissions Event 

Reporting and Recordkeeping Requirements). In the event 

the owner or operator fails to report as required by

§101.201(a)(2) or (3), (b), or (e) of this title, the 

commission will initiate enforcement for such failure to 

report and for the underlying emissions event itself. This 

subsection does not apply when there are minor omissions 

or inaccuracies that do not impair the commission’s ability

to review the event according to this rule, unless the owner 

or operator knowingly or intentionally falsified the 

information in the report;

(2) the unauthorized emissions were caused by a sudden, 

unavoidable breakdown of equipment or process, beyond 

the control of the owner or operator;

(3) the unauthorized emissions did not stem from any

activity or event that could have been foreseen and avoided 

or planned for, and could not have been avoided by better 

operation and maintenance practices or technically feasible 

design consistent with good engineering practice;

(4) the air pollution control equipment or processes were 

maintained and operated in a manner consistent with good 

practice for minimizing emissions and reducing the 

number of emissions events;

(5) prompt action was taken to achieve compliance once 

the operator knew or should have known that applicable 

emission limitations were being exceeded, and any

necessary repairs were made as expeditiously as 

practicable;

(6) the amount and duration of the unauthorized emissions 

and any bypass of pollution control equipment were 

minimized and all possible steps were taken to minimize 

the impact of the unauthorized emissions on ambient air 

quality;

(7) all emission monitoring systems were kept in operation 

if possible;

(8) the owner or operator actions in response to the 

unauthorized emissions were documented by

contemporaneous operation logs or other relevant

evidence;

(9) the unauthorized emissions were not part of a frequent 

or recurring pattern indicative of inadequate design, 

operation, or maintenance;

(10) the percentage of a facility's total annual operating 

hours during which unauthorized emissions occurred was 

not unreasonably high; and

(11) the unauthorized emissions did not cause or 

contribute to an exceedance of the national ambient air 

quality standards (NAAQS), prevention of significant 

deterioration (PSD) increments, or to a condition of air 

pollution.

See 101.222(b)

An examination of the EPA guidance and the criteria for affirmative defense in the Texas rules 

reveals that although the criteria in 101.222(b) are not identical to those in EPA’s policy on 

excess emissions, they are very similar to those of EPA’s policy and there do not appear to be any

substantive differences. Therefore, we are proposing their approval into Texas SIP.

17. What is EPA’s Evaluation 101.222(c) the criteria for affirmative defense for excess 

27
emissions during unplanned maintenance, start up or shutdown activity?

Table VIII: Affirmative Defense Criteria as Included in EPA’s Policy and in TCEQ’s 

Section 101.222(c)

EPA – Affirmative Defense of EPA 1999 Policy Texas Rule 101.222(c)

Malfuntion

1. The excess emissions were caused by a sudden,

unavoidable breakdown of technology, beyond the control of 

the owner or operator; 

2. The excess emissions (a) did not stem from any activity

or event that could have been foreseen and avoided, or 

planned for, and (b) could not have been avoided by better 

operation and maintenance practices; 

3. To the maximum extent practicable the air pollution 

control equipment or processes were maintained and 

operated in a manner consistent with good practice for 

minimizing emissions;

4. Repairs were made in an expeditious fashion when the 

operator knew or should have known that applicable 

emission limitations were being exceeded. Off-shift labor 

and overtime must have been utilized, to the extent 

practicable, to ensure that such repairs were made as 

expeditiously as practicable;

5. The amount and duration of the excess emissions 

(including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions;

6. All possible steps were taken to minimize the impact of 

the excess emissions on ambient air quality; 

7. All emission monitoring systems were kept in operation 

if at all possible;

8. The owner or operator’s actions in response to the excess 

emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant evidence; 

9. The excess emissions were not part of a recurring pattern 

indicative of inadequate design, operation, or maintenance; 

and

10. The owner or operator properly and promptly notified 

the appropriate regulatory authority.

Source: Section II, Attachment to the S. Herman and R. 

Perciasepe’s Memo of 1999.

Unplanned startup, shutdown [See section 

101.1(109)(A)], or Planned Startup, shutdown, 

maintenance [See Section 101.222 (h)]

The owner or operator proves all of the following:

(1) owner or operator comply with the reporting and record 

keeping requirements.

(2) the periods of unauthorized emissions from any

unplanned maintenance, startup, or shutdown activity

could not have been prevented through planning and 

design; 

(3) the unauthorized emissions from any unplanned

maintenance, startup, or shutdown activity were not part of 

a recurring pattern indicative of inadequate design, 

operation, or maintenance; 

(4) if the unauthorized emissions from any unplanned

maintenance, startup, or shutdown activity were caused by 

a bypass of control equipment, the bypass was unavoidable 

to prevent loss of life, personal injury, or severe property

damage; 

(5) the facility and air pollution control equipment were 

operated in a manner consistent with good practices for

minimizing emissions; 

(6) the frequency and duration of operation in an 

unplanned maintenance, startup, or shutdown mode 

resulting in unauthorized emissions were minimized and 

all possible steps were taken to minimize the impact of the 

unauthorized emissions on ambient air quality; 

(7) all emissions monitoring systems were kept in 

operation if possible; 

(8) the owner or operator actions during the period of 

unauthorized emissions from any unplanned maintenance, 

startup, or shutdown activity were documented by 

contemporaneous operating logs or other relevant 

evidence; and 

(9) unauthorized emissions did not cause or contribute to 

an exceedance of the NAAQS, PSD increments, or a 

condition of air pollution. 

As discussed previously, unplanned maintenance is similar to a malfunction in that the 

maintenance can not be planned for and is necessary to avoid an actual breakdown that will result 

in more emissions. An example, would be a vibration develops in a compressor prior to its 

scheduled turnaround. The compressor would have to be worked on immediately to prevent a 

catastrophic failure. Texas believes it appropriate to provide an affirmative defense in these 

situations if the unplanned maintenance meets the criteria above. Texas in its letter to EPA

confirmed that unplanned maintenance was functionaly equivalent to a malfunction in that repairs 

need to be made promptly and the event is unpredictable. EPA agrees and therefore is it 

recommended that 222(c) be approved. As can be seen in Table VIII the criteria for an affirmative 

defense are similar to EPA’s criteria for a malfunction and should be approved as consistent with 

the Act.

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18. What is EPA’s Evaluation of 101.222(d) Opacity Events?

Table IX: Affirmative Defenses of EPA and TCEQ’s Opacity Events of Section 101.222(d)

EPA – Affirmative Defense of EPA 1999 Policy Texas Rule 101.222(d)

1. The periods of excess emissions that occurred during 

startup and shutdown were short and infrequent and could 

not have been prevented through careful planning and 

design;

2. The excess emissions were not part of a recurring pattern 

indicative of inadequate design, operation, or maintenance;

3. If the excess emissions were caused by a bypass (an 

intentional diversion of control equipment), then the bypass 

was unavoidable to prevent loss of life, personal injury, or 

severe property damage;

4. At all times, the facility was operated in a manner

consistent with good practice for minimizing emissions;

5. The frequency and duration of operation in startup or 

shutdown mode was minimized to the maximum extent 

practicable;

6. All possible steps were taken to minimize the impact of 

the excess emissions on ambient air quality;

7. All emission monitoring systems were kept in operation if 

at all possible;

8. The owner or operator’s actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant evidence; 

and

9. The owner or operator properly and promptly notified the 

appropriate regulatory authority.

See Part III.B of the Attachment to the 1999 Policy Memo

(d) Excess opacity events. Excess opacity events due to an 

upset that are subject to §101.201(e) of this title, or for other 

opacity events where there was no emissions event, are subject 

to an affirmative defense to all claims in enforcement actions 

for these events, other than claims for administrative 

technical orders and actions for injunctive relief, for which 

the owner or operator proves all of the following:

(1) the owner or operator complies with the requirements of 

§101.201 of this title. Failure to report information that does 

not impair the commission’s ability to review the event, such 

as minor omissions or inaccuracies, will not result in 

enforcement action and loss of opportunity to claim the 

affirmative defense, unless the owner or operator knowingly

or intentionally falsified the information in the report;

(2) the opacity was caused by a sudden, unavoidable 

breakdown of equipment or process beyond the control of the 

owner or operator;

(3) the opacity did not stem from any activity or event that 

could have been foreseen and avoided or planned for, and 

could not have been avoided by better operation and 

maintenance practices or by technically feasible design 

consistent with good engineering practice;

(4) the air pollution control equipment or processes were 

maintained and operated in a manner consistent with good 

practice for minimizing opacity;

(5) prompt action was taken to achieve compliance once the 

operator knew or should have known that applicable opacity

limitations were being exceeded and any necessary repairs 

were made as expeditiously as practicable;

(6) the amount and duration of the opacity event and any

bypass of pollution control equipment were minimized and all 

possible steps were taken to minimize the impact of the 

opacity on ambient air quality;

(7) all emission monitoring systems were kept in operation if 

possible;

(8) the owner or operator actions in response to the opacity

event were documented by contemporaneous operation logs or 

other relevant evidence;

(9) the opacity event was not part of a frequent or recurring 

pattern indicative of inadequate design, operation, or 

maintenance; and

(10) the opacity event did not cause or contribute to a 

condition of air pollution.

See 101.222(d)

TCEQ’s rule differentiates between opacity-related emissions events and non-opacity related 

emissions events in 30 TAC 101. The EPA’s policy on excess emissions does not differentiate

between the opacity and non-opacity related excess emissions activities. As can be seen in Table

IX above, although the criteria in 101.222(d) are not identical to those in EPA’s policy on excess 

emissions, they are very similar to those in EPA’s policy for malfunctions. It is recommended that 

101.222(d) be approved as being consistent with EPA policy and the Act.

19. What is EPA’s evaluation of 101.222(h)?

29
Section 101.222(h) provides for an affirmative defense can be applied to emissions during planned 

start up/shut down and maintenance.

Our policies explain that EPA does not believe that it is appropriate to allow for an affirmative 

defense to be applied to excess emissions from scheduled maintenance activities because such 

events are planned for and sources should be able to comply with applicable limits during such 

activities. Also, see 65 FR 51412 (August 23, 2000). As a result, we recommend that 

101.222(h) not be approved.

We also believe that 101.222(i) and (j) are not severable from 101.222(h) and should also be 

disapproved because of cross references to 101.222(h).

20. Can we propose a partial approval/disapproval for this SIP submittal?

Section 110(k)(3) of the Act addresses the situation in which an entire submittal, or a 

separable portion of a submittal, meets all applicable requirements of the Act. Where the entire 

submittal meets all the requirements of the Act, EPA will fully approve the entire submittal. In the 

case where a separable portion of the submittal meets all of the applicable requirements, partial 

approval may be used to approve that part of the submittal that meets the Act’s requirements and 

a disapproval may be used for the remainder of the submittal that does not meet the Act’s 

requirements. It is important that the two parts of the submittal be separable. By separable, EPA 

means that the action it anticipates taking will not result in the approved rule(s) being more 

stringent than the State anticipated. See Bethlehem Steel Corp. v. Gorsuch, 742 F. 2d 1028 (7th 

Cir. 1984); Indiana and Michigan Elec. Co. v. U.S. E.P.A., 733 F. 2d 489 (7th Cir. 1984). The 

EPA has frequently taken a partial approval approach in the past to process groups of rules that 

are submitted together. The EPA can approve some of the rules and disapprove the rest as long 

as the rules that are disapproved do not affect those that are approved. The disapproval of any 

part of a required SIP submittal starts the clocks or sanctions and Federal Implementation Plans.

However, as discussed above, SSM regulations are not a required element of a SIP and no 

sanction clocks would be started.

We have reviewed the rule in front of us and determined that sections 101.222(h), 

101.222(i), and 101.222(j) are severable and do not affect those parts that we are proposing to 

approve. 101.222 (h), (i), and (j) deal with treatment of a specific class of emissions events 

planned maintenance, startup or shutdown activities. Sections 101.222(h), 101.222(i), and 

101.222(j) can be separated from the remaining portion of this SIP submittal. We believe that a

disapproval of sections 101.222(h), 101.222(i), and 101.222(j) will not have an effect on the 

stringency or enforceability of the remaining parts of the rule which deal with reporting 

requirements and affirmative defenses due to upsets and unplanned maintenance. 

For this reason we consider today’s proposed approval/disapproval to be consistent with

section 110(k)(3) of the Act. As discussed in Section E of our proposed Federal Register we are 

disapproving section 101.222(h). Sections 101.222(c) (1) and 101.222(e)(1) both include 

requirements for facilities to report scheduled maintenance, startup, or shutdown activities; and 

opacity events from unplanned 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 activities. Our approval of sections 101.222(c)(1) and 101.222(e)(1) does 

not mean that an owner or operator of a source can receive an affirmative defense against 

penalties for violations during planned maintenance, startup, or shutdown activities. If we finalize 

30
our disapproval of section 101.222(h), an affirmative defense will not be available for 

unauthorized emissions during planned maintenance, startup, or shutdown activities. This 

clarification has been explicitly noted in Section D of our proposed Federal Register rulemaking 

action, as well.

21. What is our evaluation of 101.223 (Actions to Reduce Excessive emissions?

Section 101.223 (Actions to Reduce Excessive Emissions) provides for a corrective action 

plan (CAP) and written notification concerning excessive emission events. The CAP and written 

notification requirement will enhance the Texas SIP by providing a clear requirement for facilities 

determined to have excessive emission events. It will require these sources to take proper 

corrective actions to minimize the amount or frequency of the future occurrences of excess 

emissions. We believe this section will enhance the Texas SIP, thus should be given approval. 

See section D of our Federal Register rulemaking action.

Conclusion: For these reasons, we are proposing to approve the entire January 23, 2006 

submittal into Texas SIP, except for the sections 101.222(h), 101.222(i), and 101.222(j).

31