### 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) co ncerns our evaluation of Texas ’ f inal rule adopted on Decem

ber 14, 2005 as a revision to the Texas State Implementation Plan (SIP) concerning excess emissions, the 30 TAC, Chapter 101, General Air Qua lit y Rules, Subchapter A General Rules; and Subchapter F Em issio ns 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 r evisio ns 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. W hat is EPA ’

s policy on excess emissions occurring during startup, shutdow n 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 ``Polic y on Excess Em issio ns 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

memo randum reaffirming and supplementing the above policy, dated September 20, 1999, from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance and Robert Perci asepe, Assistant Administrator for Air and R adiation, entitled ``State Implementation Pl ans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown'' (Septem ber 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 allo w for an affirmat ive defense to be applied to excess emissions from scheduled maint enance acti vi ti es because such events are planned for and sources should be able to comply with applicable limit s during such activities. Also, see 65 FR 51412 (August 23, 2000).

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

R ules to address enforcement of excess emissions, are not specifically required by the Clean Air Act (Act). However, SIP revisions must be evaluate d f or consi stency with section 110 of the Act

. EPA guidance and policy provi des how we interpret the Act with regard to SI P 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 limitation s in SIPs because excess emissions have the potential to aggravate a irquality so as to prevent attainment or int erfere 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

2shutdowns caused by circumst ances 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 affirmat ive defense th at sources may raise in an action for ci vil penalties. Neither approach waives liability or reporting requirements for the violation States are not required to provide an affirmative defense approach, but i f th ey chose to do so, EPA wi ll evaluate the S tate ’ s SIP rul es for consistency with our policy and guidance.

3. What recent excess emissions-related rulemaking actions have w e 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 affi rmati ve 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 w e look at during our evaluation of this Texas rule revision?

During our evaluation of Texas ’ rul e, we al so reviewed recent EPA rulemakings in which we evaluated other States ’ excess emission rules for consistenc y wit h the Act as interpreted in EPA ’s gui dance 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 ci tizen enforcement authority. See al so 71 FR 4822, January 30, 2006 i

n 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 provi sio ns that were inconsistent with EPA ’ s affirmative defense guidance document. See 71 FR 8958, February 22, 2006, approving the removal from the Col orado SIP of

provi sio ns which provided exemptions from existing limitations on opacity and sulfur dio xide (SO 2 ) em

issio ns for coal-fired electric utility boilers during periods of startup, shutdown, and upset. See 68 FR 8550, February 24, 2003, approvi

ng Michigan ’ s excess emission rul es, and 67 FR 52666, August 13, 2002, approving Idaho ’ s excess emission rul es.

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

The following Table I i s the latest historical information on 30 TAC, Chapter 101, General Air Qua lit y Rules, Subchapter A, and Subchapter F:


### TABLE I: HIST ORICAL INFORMATION ON THIS SIP SUBMITTAL

– 30 TAC Chapter 101, Subchapters A and F

3Rule 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 Fi led 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 comme nts 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 E rrors ” to the above December 30, 2005 publication, at 31 TexReg 422 (page 12 of 29 pdf version) dated January 20, 2006.

The following Table I I i s a list summary of the affected s ecti ons of 30 TAC Chapter 101, Subchapters A and F : Sectio

n Description Inf ormation

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 M arch 30, 2005 (70 FR 16129) effective April 29, 2005

. 101.211 Scheduled Maintenance, Startup,

Shutdown Reporting and Recordkeeping Requirements. Had no expiration date clause, l ast approved by EPA March 30, 2005 (70 FR 16129) effective April 29, 2005

.

10 1.221 Operational Requirements. Had expiration date of June 30, 2006 , expired o n its own
term s 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
term s 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
term s 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 woul d revise existing sections 101.1, 101.201,  101.211 of

the approved Texas SIP and woul d put i nt o place new sections 101.221, 101.222 and 101.223 . The previous versions of those rules in the approved SIP expire d on June 30, 2006 and thus are no l onger part of the SIP. Generally, the revisions includes the following major changes:

Replaces the terms “ sit e” and “ facilit y” wi th the term “regulated entity. ” See se cti on 

49 of the TSD.

SSM acti vit ies will be considered unscheduled if the actual emissions exceed the  esti mat e submitted in the notice by more than a reportable quantity. See secti on 11 of the TSD.

Allo ws owner/operators to report em issio ns events by reg ulated entity, on one  report per com

mo n cause. Total

em issio ns are reported from each emissions point, rather than from each facility (unit). See secti on 11 of the TSD.

Introduces the concepts of planned and unplanned SSM activities. See secti on 11 of  th e TSD.

Affirmat ive defense may apply only to non-excessive emission events, unplanned  SSM acti

vit ies, upset opacity events, opacity events resulting from unplanned MSS acti vit ies. See Table s V I II and IX of the TSD.

Phases out the affirmative defense f or pl anned 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 secti on 12 of the TSD.

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

Requires sources to report the best known cause at the ti

me of noti ce of an emission  event. Allo ws reporti ng without speciating of

the ai r contam inant s that have an RQ greater or equal

to 100 pounds and the amount rel eased is less than ten pounds in 24- hour peri od. See secti on 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 wit h some of the widely-used terminologies as described in Texas rule in 30 TAC, Chapter 101, General Air Quality Rules, Subchapters A and F. Th e following Table II I contai ns definit io ns for terminologies such as Emissions event, Excess opacity event, Non-reportable emissio ns event, Reportable emissions event, Reportable quantity (RQ), Scheduled maintenance, startup, or shutdown acti

vit y, Unplanne d maint enance, startup, or shutdown acti vit y, Unplanned maint enance, startup, or shutdown acti vit y, and Upset event.



### TABLE I II: WIDELY-USED TERMINOLOGIES OF 30 TAC, CHAPTER 101

5Emissions 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 addit ional 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 em issions 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 (C AS) 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) list ed 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 th is 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 d o 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 tha t 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, m ethane, ethane, noble gases, hy

drogen, and oxy

gen that exceed any

air emission limitation in a permit, rule, or order of the commission or as authorized by Texas Clean Air Act, §382.051 8(g). See section 101.1(108)
Unplanned maintenance, startup, or shu tdown 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 rout ine facility operations, is unpredictable as to timing, and is not the ty pe of event normally

authorized by

permit; or (B) a maintenance activity that arises from sudden and unforeseeable events bey ond the control of the operator that requires the immed iate corrective action to minimize or avoid an upset or malfunction. See section 101.1(109 )

6Upset event --an unplanned and unavoidable breakdown or excursion of a process or operation that results in

unauthorized emissions. A maintenance, startup, o r 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 d ue 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 wit h

some of the com mo nly EPA-used terminologies as described in EPA documents. The following Table I Vcontai

ns definitions for terminologies such as affirmative defense, enforcement discretion, excess emission, malfunction, and automatic exemption.



### TABLE I V : COMMONLY EPA-USED TERMINOLOGIES FOR EXCESS EMISSIONS

The term affi rmative defense means in the context of an enforcement proceeding, a response or defense put for ward 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 oradministrative proceeding. Source: S. Herman and R. Perciasepe ’ s Memo of 1999, Footnote 4of the Attachment to the Memo.

The term enforcement discretion , in the context of excess emissions enforcement, means the permitting authority ’ s decision to refrai n 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 discret ion 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. Pe rciasepe ’ 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. Pe rciasepe ’ s Memo of 1999, Footnote 2 of the Attachment to the Memo.

7

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8Table V below shows a side-by-side-comparison of the Widely-Used Terminologies of 30 TAC, C hapter 101 and the Commonly E PA -Used Terminologies f

or Ex cess Emissions

Definitions -Table V

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

The term excess emission means an air emission level wh ich 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 con taminants 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 e xcess 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

exce eds 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. Exces s 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 fromany 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 emi ssions 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 p rior 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 tit le; 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 sc heduled 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 Requirement s) 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 wh ich 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 a ir contaminant except carbon dioxide, water, nitrogen, methane, ethane, noble gases, hy drogen, and oxy

gen 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 se ction 101.1(108) What EPA considers excess emissions

10A) Texas treats its unplanned start up, or shutdown activity like what EPA normally refers to as a malfunction Texas provides affirmative defense to the se activities wh ich meets EPA ’ s criteria.

B) In its April 17, 2007 letter to EPA TCEQ states that its unplanned maintenanceactivity is functionally equivalent to what EPA refers to as “ malfunction. ” Unplanned maintenance, startup, or shutdown activity --For activities with unauthorized emissions that ar e 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 notthe ty

pe 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 br eakdown 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 unav oidable 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 Repor ting 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) W hat EPA would consider a malfunction scenario

11Definitions -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 cau sed 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 co ntrol 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 ha ve 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 e xcess emissions (including any by pass) 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 Me mo 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 bey

ond 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 no t 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 by pass of control equipment, the by

pass 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 i n 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 we re 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 malfuncti on. 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]

121 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 clarify

ing 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 for eseeable, 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 diver sion of control equipment), then the by pass 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 frequen cy 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 keptin 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 101.22 2 (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 hav e 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 unautho rized 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 emissi ons 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.

1

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

The amendment s to secti on 101.1, concerning Definitions, add the definitions of “Agency established facility identification number, ” “ Boi ler, ” “ Com bustion turbines, ” “ Excess opacity event, ” “ Regulated entity, ” and “Unplanned mainte nance, startup, or shutdown acti vit y. ”

The definition of “Agency established facility identification number ” i s to be used onl y fo r 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 regul ated enti

ty th at i s required to report an em issio n inventory, and is applicable to each facility at that regulated entity. Thi s definition is necessary for implementing the reporting requirements of 101.201.

The definition of “ Boi ler ” i n 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 “ Stati onary gas turbine ” i s also duplicated in the general definitions and renamed in Chapter 101 as “ Com bustion 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 te rm “ Excess opacity event ” i s adopted so that i t i s clear what is meant by an excess opaci ty 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 m

ust be reported wi

th in 24 hours. Other opacity events must be recorded and reported annually

S ecti on 101.1(86) defines “ Regulated entity ” as all regulated units, facilities, equipment, structures, or sources at one stree t address or l ocati on that are owned or operated by the same person. The term

i ncludes any property under common ownership or control identified in a permit or used i n conjunction with the regulated activity at the same street address or location. Owners

o r operators of

pi pelines, gathering lines, and flow lines under common ownership or control in a parti cular county may be treated as a single regulated entity for purposes of assessment and regulation. This helps clarify reporting requirements

. The TCEQ adopt ed

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 reportabl e quantity (RQ) or with excess opacity would be one of two types. The fir st ty pe of unplanned maintenance, startup, or shutdown activity is a startup or shutdown activity that is not part of normal or routi

ne facilit y operati ons, is unpredictable as to timing, and is not the type of event normally authorized by permit. The second ty pe of unplanned activity is a maintenance acti vit y th at ari ses 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 th at scheduled main tenance is a predictable event, th at 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 b e planned woul d i nclude plant turnarounds, scheduled plant outages, and preventative maintenance such as routi ne replacement of facility parts that are regular and quantifiable. Planned activities are the ty pe that can be authorized by a permit, standard p ermit , or perm it 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 pl anned maintenance. Texas has said that the term is functionallyequivalent to a malfunction. It is recommended that emissions from these types of events should

be treated as malfunctions for determining eligibility for affirmative defense

S ecti on 101. 1(25), renumbered as section101.1(28), amends the definition of “ Em issio ns event ” to cl arify that any upset event or unscheduled maintenance, startup, or shutdown activity from a

com mo n cause is considered one event. In addition, the unauthorized emissions f rom the event can also result from one or multiple emission points at a regulated entity.

S ecti on 101.1(68), renumbered as section 101.1(72), amends the definition of “ Non-reportabl e emissio ns event ” to no l onger simply state that non-reportable emissions events are those that are not reportabl e emissions events, but to more clearly define the m as any emissions event in a 24- hour peri od that does not resul t i n 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.

S ecti on 101.1(83), renumbered as section 101.1(88), amends the definition of “ Reportable emissio ns event ” to cl arify it i s any emissions event that in any 24-hour period, results in an unauthorized emission from any emissions point equal to or in excess of th e RQ as defined in this section.

There are several revisions to the definition of “ Reportable quantity (RQ) ” i n section 101.1(84), renumbered as section 101.1(89). First, as specified in section 101.1(89)(A), when determining if

a com pound is listed i

n either 40 CFR Part 302, section 302.4 or 40 CFR Part 355, Appendix A, th e owner or operator m

ust use either the listed compound name or the Chemical Abstracts Service (CAS) number, whichever is more specific. Although this concept is already widely being fo llo wed, 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 spe cific list of com pounds fo und 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 oxi des 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 Patri cio County . Nue ces 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 dioxi de together. For all oth er 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 eith er 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 nonat tai nment , maint enance, 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- tetrachl orodi fluo roethane (CFC-112a); 1, 1,1-tri chlo ro-2,2,2- tri lflo roethane (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 sec ti on 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 wit hin nonattainment areas, near-nonattainment areas, maintenance areas, and e arly action

15com

pact areas was not adopted, and the default RQ remains at 100 pounds. TCEQ has adopted th e reportabl e quantity approach to limit the number of events that are reported within 24 hours in order to f ocus i nvestigative efforts on the highest pri ori ty events. Non-reportable events are still vio lat io ns and must be recorded and reported annually and as Title V deviations if applicable.

In adopted secti on101.1(89)(B)(i v), the RQ for natural gas is revised, such that it is clear that carbon dioxi de, water, ni

trogen, 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 secti on 101.1(89)(C), The TCEQ added l anguage noting that the terms “boilers ” and

“ com bustion 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 th e emissions from a scheduled maint enance, startup, or shutdown acti vit y 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 “ facilit y” i s replaced with

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

“whether performing or otherwise affected by the activity, ” was added to cl arify that if the actions of another regulated entity actions caused a regulated entity the need to conduct a maintenance, startup, or shutdown acti

vit y, then that acti

vit y woul d be considered part of this definition.

The TCEQ adopts the amendment to section 101.1(87) that removes th e definition of “ Si te ” i n order to i ncorporate the definition of “ Regulated entity ” to com ply wit h applicable statutory provisions of Texas HB 2129.

The TCEQ also adopts the amendment to section 101.1(105), renumbered as section 101.1(110), th e definition of “Upset event. ” The amendment replaces the phrase “ or unanticipated

occurrence ” w it h “ and unavoidable breakdown. ” This clarifies that upset events are those that are beyo nd the control

of the operatorand 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 secti on 101.222(b). Secti on 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 th at begin as maintenance, startup, or shutdown e vents are still covered by section 101.222(b). These events are instances where a maintenance, startup, shutdown or activity is reported prior to it s 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.

T he changes to the definition of upset conforms the definition to th e ty pe of even t th at wi ll 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 affirmat ive defense is allowed only fo r true eme rgency-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 con fo rm

to EPA ’ s guidance on start up/shut downs and malfunctions and thus should be approved.

1610

. What are the revisions to section 101. 201 in this SIP submittal ?

Amendment s to secti on 101.201 concern revisions to the Emissions Event Reporting and Recor dkeeping Requirements.

TCEQ adopted the requi

rements for reporting to local air pollution control agencies with jurisdiction in

to secti on 101.201(a)(1)(B) to cl arify that local air pollution agencies should receive init ial notifications and final report s.
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 th at exceed an RQ because th e revised definition of “ Em

issio ns event ” coul d cause confusion about whether emissions from each facilit y invo lved in a reportable emissions event should be included in the notification and report. Wit h the revision to 101.201(a )(2), i t i s clear that while only one report is necessary for an emissio n event that effects several emission points, the report must report the excess emissions from each emissions point.

References to “noti ficat io n, ” “ init ial notification, ” and “ 24-hournoti ficat io n” have been revised to read “ init ial 24-hour notification ” i n 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 th at requi res identification of TCEQ Regulated Entity Number (RN) of the regulated entity experiencing an emissions event. If the regulated entity does not have an R N, 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 i ncidents via the agency ’s electronic reporti ng 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 noti ficat io ns and final reports must be reported. Accordingly, section 101.201(a)(2)(C) and (3)(C) is delete d, si

nce this information is required by section 101.201(b)(1)(C) for final reports and is sufficient i

nfo rmati on regarding location. Subsequent subparagraphs are re-l etter ed accordi ngly 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 del eti on of the word “ event ” i

n section 101.201(a)(2)(E) to ensure that the durati on of

the actual

em issio ns is reported.

TCEQ adopted the del eti on of the l anguage requiring t he reporti ng of authorized emissions limit s 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 th e addition of the term “best known ” and “ at the ti me 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 c ause of th e emissions event is based on best available information at the time of the notification. Thi s change recognized that the more thorough investigation in to the root cause of an event may result in determining a di fferent cause than initially believed.

17TCEQ 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 wit h emissions that exceed an RQ . Without this change, the revised definition of “ Em issio ns event ” coul d cause confusion about whether emissions from each facility involved in a reportable emissio ns event should be included in the notification and report.

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

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

TCEQ adopted the del eti on of the “ event ” i

n section 101.201(a)(3)(F) to ensure that the duration of the actual

em issio ns 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-l etter ed accordi ngly.

TCEQ del etes secti on 101.201(a)(4), moving the language to section101.201(f). Section 101.201(a)(5) i s 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 secti on101.201(b) int o two paragraphs, subsection (b)(1) and (2). TCEQ adopted th e amendment to section101.201(b)(1) to outline the provisions required in final records of
rep ortabl e emissions events. The existing paragraphs in section101.201(b) are re-l etter ed as subparagraphs (A) - (L).

TCEQ adopted the amendment to section101.201(b)(1)(B) and (2)(B) to provide new language th at requi res identification of TCEQ RN of the regu lat ed entity experiencing an emissions event. If the regulated entity does not have an RN, then the air account number will be identified. Now th at the com

missio n has changed to a Central Registry system, the air account number is no lo nger the primary ide nt ifier of the regulated entity. The RN is necessary to report incidents via th e 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 noti ficat io ns and final reports must be reported.

TCEQ adopted the del eti on of the word “ event ” i

n section 101.201(b)(1)(F) to ensure that the durati on of

the actual

em issio ns is reported.

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

ai r contam inant s by emissions point, rather than by facility.

Adopted secti on101.201(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

eve nt , 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 contamin ants may be identified together as

“ oth er. ” 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 reportabl e event. EPA agrees f or smaller quantities that it is unnecessary to speciate compounds.

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

reporti ng 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 practi ce and methods to provide reasonably accurate representations for emissions and opacity. Language has also been added to allow the compounds or mixtures of ai r contam inant s listed as

“ oth er ” under section 101.201(b)(1)(G) to be treated as a group for esti mat ing emissions. The report shoul d onl

y include facilities that have unauthorized emissions. TCEQ does not require info rmati on 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 emissio ns limit s is applicable only if those exist and are applicable to emissions from that event. Th ese must only be reported if those emissions were evaluated and included in the authorization. In addition, where the words “ experienced, ” “ incurred, ” or “ invo lved ” are used in s ecti on 101.201 and section101.211 regarding reporting of facilities, TCEQ inte nds 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 info rmati on i s based on good engi neering practice.

TCEQ adopted the amendment to section101.201(b)(10), renumbered as section 101.201(b)(1)(J), to add the term s “best known ” and “ at the ti me of the notification ” to cl arify th at the cause of the emissions event is based on be st available information at the time of reporti ng.
TCEQ adopted secti on 101.201(b)(2) to outline the provisions required in records of nonreportabl e emissions events. TCEQ also adopted the amendment to section 101.201(b)(2)(A) - (J) to provi de separate provi sio ns for required records for non-reportable emissions events. The adopted requi

rements 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 addi

ti on of the requi rement to report to l ocal

ai r pol lut io n control

agencies wit h jurisdiction to section101.201(c) to clarify that local air pollution agencies should receive init ial notifications and final reports.

TCEQ adopted the amendment to section 1 01.201(e) to del ete duplicative language that is now covered in the definition of “ Excess opacity event ” i n section 101.1.

TCEQ adopted the amendment to add reporti ng to l ocal

ai r pol lut io n control

agencies with jurisdiction to section 101.201(e) - (g) t o cl arify that local air pollution agencies should receive init ial notifications and final reports. This insures that City of Houston and Harris County Air Pol lut io n Control

Authori ti es among others receive reports as they have enforcement authority in th eir jurisdiction.

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

com missio n 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 identif ied. Now that TCEQ has changed to a Central Registry system, the air account number is no longer the primary identifier of th e regulated entity. The RN is necessary to report incidents via the agency ’ s electronic reporting syst em. 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 “ facilit ies ” to make thi s reporti

ng requirement consistent with other uses of the term “ facilit y” i n the rule as well

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

TCEQ adopted the amendment to section101.201(e)(9) to add the term “best known ” and “ at the ti me of the notification ” to cl arify 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 an alysis 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 regul ated enti

ty experiencing an emissions event m ust provi de, i

n writing, additional

or more detai led information regarding the emissions event when requested by the executive director or any

ai r pol lut io n control

agency with jurisdiction, within the time established in the request.

TCEQ received input f

rom regul ated enti

ti es that i nput of the 24-hour report i nt o the

com missio n’ 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 electr onic mail to meet the 24-hour requirement as long as the same information is input into the

com missio n’ s Web server within 48 hours of discovery of the event. This is not meant to be an opportuni ty to modi fy info rmati on i

n the report as the first submittal m ust meet the 24-hour reporti ng requirements on its own.

The citation for the definition of “ small business ” i n 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 el ectroni cally 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 th at are subject to reporti ng under section101.10, Emi ssions Inventory Requirements, and owners and operators that are not subj ect to reporti ng under section 101.10 and are located in nonattai nment , maint enance, early action compact areas, Nueces County, and San Patricio County , that experi ence at least one e missio ns event during the calendar year. For those entities th at al ready submit an emission inventory report, this information would be included in that report. For enti

ti es that do not subm

it an emission inventory report, this report must be submitted ele ctroni cally 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 regul ated enti ty . Adopted secti on 101.201(h)(2) specifies that the report must include estimated total quantities for all compounds

or m ixt ures of air contaminants, by compound or mixture that were emitted, except for

com pounds or m

ixt ures that have an RQ great er 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 representatio ns 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 th e esti mat ed opaci

ti es during emissions events and duration of unauthorized opacity

.

20The revisions to 101.2 0 1 wi ll provide for more consistent reporting and recordkeeping

 provisions associated with the e missio ns e vent s, and will facilitate enforcement of the rul e. In addition, the rule changes insure that local air pollution control autho ri ti es will also receive reports

. It i s recom mended that these revisions to the existing SIP be approved.

11. What are the revisions to section 101.211-Scheduled Maintenance, Startup, and Shutdow n Reporting and Recordkeeping Requirements in this SIP submi ttal?

TCEQ revises the amendment to section 101.211(a) to clarify that actual emissions from maint enance, startup, or shutdown acti vit ies that exceed the estimated emissions in the initial noti ficat io n by more than an RQ are either upsets or unplanned st artup, shutdown, or maint enance acti vit ies. 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 unant icipated emissions result from a sudden breakdown of equipment th at occurs duri

ng the scheduled activity the event would be treated as an upset. However, if duri ng a scheduled maintenance activity additional maintenance is required that results in the

unan ti cipated emissions, and that maintenance was unforeseeable and requires immediate correcti ve action to avoid a malfunction, then the event would be treated as an unplanned maint enance activity. This distinction is made to reflect the changes to section 10 1.222, which provide a different list of demonstration criteria for upsets th an f or unpl anned maintenance, startup, and shutdown acti vit y.
TCEQ revises section 101.211(a) to add “by emissio ns point ” to cl arify 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 “wit h jurisdiction ” to cl arify that th e lo cal 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 opaci ty i s 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) t o add language that requires the identification of TCEQ RN of the regulated entity experiencing the acti vit y. If the regul ated enti

ty does not have an RN, then the air account number will be identified. If the regulated entity does not have an RN or air ac count 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 th e reporti ng of the expected duration of any maintenance activity.

TCEQ al so revises section 101.211(a)(1)(G) to cl arify that the duration of the emissions from the scheduled maintenance, startup, and shutdown activity must be reported. TCEQ revises
sect io n 101.211(a)(1)(F) to denote that these scheduled maintenance, startup, and shutdown acti vit ies are not emissions events, but are emissions activities. TCEQ revises section 101.211(a)(1)(H) to provi de language that requires the reporting of air contaminants by all emissio ns 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

amo unt rel eased is less than ten pounds in a 24-h our peri od wi th out speci ati on, i

nstead these

com pounds or m

ixt ures of air contaminants may be identified together as “ oth er. ”

21TCEQ revises section 101.211(a)(1)(I) and existing language in subsection (b)(9),

renumbered as subsection (b)(1)(I), to add la nguage requiring the reporting of the quantities of emissio ns 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

com pounds or m

ixt ures o f air contaminants listed as “ oth er ” under 101.211(a)(1)(H) to be treated as a group for esti

mat ing emissions. The report should only include facilities that have unauthorized emissions. TCEQ does not require information about facilities involved in the

ac ti vit y th at do not have unauthorized emissions. The phrase “ if any ” has been added to clarify th at the preconstructi on authorizati on and associated emissions limits is applicable only if those exist and are applicable to emissions from that activity. These m ust onl y be reported i f th ose emissio ns were evaluated and included in the authorization. In addition, where the words

“ experienced, ” “ incurred, ” or “ invo lved ” are used in section 101.201 and section 101.211 regarding reporting of facilities, TCEQ intend s that onl y th ose facilities that have unauthorized emissio ns must be included in the report. TCEQ revises section 101.211(a)(2)(F) to requi re the reporti ng of the expected duration of any maintenance activity. TCEQ also revises section 101.211(a)(2)(G) t o cl arify that the duration of the emissions from the scheduled maintenance, startup, and shutdown acti vit y must be reported. These revisions clarify expectations for reports and should be approved.

T CEQ 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 opaci ty i s 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 acti

vit ies. The existing para graphs 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 act ivit y. If the regul ated enti

ty does not have an RN or air account number, the lo cati on of

a rel ease and a contact telephone number in notifications and final reports must be reported. Adopted secti on 101.211(b)(5), re-l ettered as subsection (b)(1)(E), is amended to add

“ experienced the emissions activity ” and accordingly delete “ experienced the emissions event ” to denote that the associ ated scheduled maintenance, startup, and shutdown activities are not emissio ns events, but are emissions activities. Adop ted secti on 101.211(b)(6), renumbered as subsection (b)(1)(F), is amended to require the reporting of the expected duration of any maint enance activity. TCEQ also revises the amendment to section 101.211(b)(7), renumbered as subsection (b)(1)(G), to clarif y th at the durati on of

the em issio ns from the scheduled maintenance, startup, and shutdown acti vit y must be reported. Adopted secti on 101.211(b)(8), renumbered as subsection (b)(1)(H), is amended to provide language that requires the reporting of air
cont aminant s 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, inst ead these compounds or mixtures of ai r contam inant s may be identified together as “ oth er. ” 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-l ettered 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

com pounds or m

ixt ur es of air contaminants listed as “ oth er ” under section 101.211(b)(8) to be treated as a group for esti mat ing emissions. The report should only include facilities that have unauthorized emissions. TCEQ does not require information about facilities involved in the acti vit y th at do not have unauthorized emissions. The phrase “ if any ” has been added to clarify

22th at the preconstructi on authorizati on and associated emissions limits is applicable only if those

exist and are applicable to emissions from that activi ty . These must only be reported if those emissio ns were evaluated and included in the authorization. In addition, where the words

“ experienced, ” “ incurred, ” or “ invo lved ” are used in section 101.201 and section 101.211 regarding reporting of facilities, TC EQ i nt ends that only those facilities that have unauthorized emissio ns must be included in the report.

TCEQ revises section 101.211(b)(2) to outline the provisions required in records of nonreportabl e emissions events. TCEQ also revises section 101.211 (b)(2)(A) - (I) to add provi sio ns regarding final records for facilities that were not required to notify of scheduled maintenance, startup, or shutdown acti

vit ies. The adopted requirements in section 101.211(b)(2)(A) - (I) are th e same as the requirements i n 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 emissio ns 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 ty pe of the individually listed compounds or mixtures of air contaminants , i n 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 th at were unauthorized. Com pounds orm

ixt ures of air contaminants, that have an RQ greater th an 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 identi fied together as “ oth er. ” In adopted secti on 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 opa cit y. TCEQ revises the amendment to section 101.211(b)(2)(I) to add language to allow for the compounds or mixt ures of air contaminants listed as “ oth er ” under section 101.211(b)(2)(H) to be treated as a group for esti

mat ing emissions.

TCEQ add s l anguage to secti on 101.211(c) to requi re that reporti

ng for scheduled maint enance, startup, or shutdown acti vit ies must also be reported to the appropriate local air pollut io n agencies with jurisdiction.

TCEQ revises section 101.211(e) to re quire that a copy of the requested technical plan fo r 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 rul e. Thi s report i s required for owners or operators that are s ubject to reporti ng under section 101.10, and owners and operators that are not subj ect to reporti ng under section 101.10 and are lo cated i n nonattainment, maintenance, early action compact areas, Nueces County, and San Patri cio County , that experi ence at least one scheduled maintenance, startup, or shutdown activity duri ng the calendar year. For those entities that already submit an emission inventory report, this info rmati on woul d be included in that report. For enti ti es that do not subm

it an emission in ventory report, thi s report m

ust be submitted electronically, except that small businesses may submit by other viable means.

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

23reportabl e and the total number of non-r eportabl e 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 emit ted f or each facility, except for compounds or mixtures that have an RQ greater than or equal to 100 pounds and the amount rel eased is less than one pound in a 24-hour period. In addition, th e citation for the definition of “ small business ” i n section 101.211(f)(3 ) i s 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 s cheduled maintenance, startup, and shutdown events in the rul es, and wi ll facilit ate reporti ng and enforcement of

the rul e Thus, these revisions should be approved. Secti on 101.211 provi des for reporti ng and recordkeeping for excess emissio ns during scheduled maint enance , startup, and shutdown which we believe will improve o ur ability to track or manage th ese events. an approval of section 101.211 in no way implies that EPA will provide an affirmative defense for violations during planned maint enance, startup, or shutdown events. Our approval of these reporti

ng requirements fo r scheduled maintenance, startup, and shutdown events only means that facilities will need to make these required notifications. This clarification has been explicitly noted in Secti on 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 reportabl e quantities must be reported as soon as practicable but no later than 24-hours aft er the di scovery of an emission event. See 101.201(a). These are defined as reportable emissio ns 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 reporti ng of both reportabl e and

non-reportable emission events for certain sources. As both reportabl e and non-reportable events are violations it is appropriate and necessary that sources report both. We believe this information will assist the State in eva luating effective enforcement efforts and will facilitate the State ’ s SIP pl anning 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 p ub lic can access and search air emissions events of interest at:

ht tp://www2.tnrcc.state.tx.us/eer/main/index.cfm?fuseaction=searchForm ( URL d ated June 26, 2006)

We support the new reporti ng requirements for excess emissions as an aid to the State ’ s air quality planning and enforcement efforts.

101.221 Operati onal

Requirements (Secti ons 13 and 14):

What is EPA’

s policy on excess emissions for sources subject to Federal standards such 13. as NSPS or NESHAP?

The Memorandum from Steven A. Herman and Robert Perciasepe to Regional Administ rators, Septem

ber 1999, State Im

plementation Plans (SIPs): Policy Regarding Excess Em issio ns During Malfunctions, Startup, and Shutdown, states “ To the extent a state i ncludes NSPS or NESHAPs i

n its SIP, the standards should not deviate from those that were Federally

24prom

ulgated. Becau se EPA set these standards taking into account technological limitations, additional exemptions would be inappropriate. ” Therefore, an affirmative defense cannot apply to vio lat io ns of Federally promulgated performance of technology-based standards, such as those fo und in 40 CFR parts 60, 61, and 63. Consistent with EPA ’ s policy, t he second sentence in section 101.221(d) of th e revised rule states that th e com missio n can ’ t exempt sources from

com pliance with the Federally-promulgated standards, such as N SPS or NESHAPs. A source

can ’ t assert affirmative defense provisions of 101.222(c)

– (e) to vi ol ati ons of federal requirements such as NSPS or NESHAP.

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

Secti on 101.221 (O perati onal Requirements) discusses the requirement to maintain air pollut io n equipment in good working order.

Secti on 101.221(d) provi des that the com missio n 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 allo w exemptions from any federal requirements, including New Source Performance Standards (NSPS) or Nati onal Emissions Standards for Hazardous Air Pollutants (NESHAP). In it s 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 thi s rul emaking action, which is available for public inspection. As a consequence, the State may only use the provision in 101.221(d) for “ State-onl y” requi rements. We are proposing to approve thi s change as enhancing the existing SIP because it prevents ex emptions 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 acti on, as well. Therefore, we are recommending appr oval.

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

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

.

Table V I : Excessiveness Criteria for Emissions Events EPA TCEQ cri teri a 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) Excessiv e emissions ev ent determinations. The executive director shall determine when emissions events are excessiv e. To determine whether an emissions event or emissions ev ents are excessiv e, the executive director will

ev aluate emissions ev ents using the following criteria: (1) the frequency of the facility ’ s emissions ev ents; (2) the cause of the emissions ev ent; (3) the quantity and impact on human health or the

env ironment of the emissions event; (4) the duration of the emissions ev ent; (5) the percentage of a fac ility ’ s total annual operating hours during which emissions ev ents 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 i s not eligible fo r an affirmat ive 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

25sources with excessive emission event that att empt to better i nsure 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 emissio ns events. As discussed previously, Texas uses the term upset in the same way that EPA guidance refers to a malfunction.

Table V II : Affirmative Defense Criteria as Included in EPA ’ s Policyand in TCEQ ’ s section 101.222 (b)
EPA

– Affirmative Defense criteria as included in EPA ’ s 1999 Policy Texas Rule 101.222 (b)

261. The exce ss 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 emissi ons; 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, contempor aneous 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 regu latory 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 underly ing emissions event itself. This subsection does no t 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 unautho rized 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 planne d 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 co nsistent 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 a ny 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 unauthor ized 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 oc curred 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
po llution. See 101.222(b) An examination of the EPA guidance and the criteria for affirmative defense in the Texas rules reveals that a lt hough the criteria in 101.222(b) are not identical to those in EPA ’ s policy on excess emissions, they are very similar to th ose 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 affirmativedefensefor excess

27emissions during unplanned maintenance, start up or shutdow n activity ?

Table V III : Affirmative Defense Criteria as Included in EPA ’ s Policyand in TCEQ ’ s S ection 101.222 (c) EPA

– Affirmative Defense of EPA 1999 Policy Texas Rule 101.22 2(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 bette r 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 expe ditious 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 a s 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 relev ant 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 oper ator 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 emissio ns 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 activi ty 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 t o a malfunction in that the maint enance can not be planned for and is necessary to avoid an actual breakdown that will result i n 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 catastrophi c failure. Texas believes it appropriate to provide an affirmative defense in these sit uati ons 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

recom mended that 222(c) be approved . A s can be seen in Table VIII th e cri teri a for an affirmative defense are similar to EPA ’ s criteria fo r a malfunction and should be approved as consistent with th e Act

.

2818. What is EPA’ s Evaluation of 101.222(d) Opacity Events ?

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

– Affirmative Defense of EPA 1999 Policy Texas Rule 101.222 (d) 1. The periods of excess emissions tha t 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 by pass 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 rel evant 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 t o §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 br eakdown of equipment or process beyond the control of the

own er 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 i f 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 de sign, 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 emissio ns events in 30 TA C 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 T able IXabove , a lt hough the criteria in 101.222(d) are not identical to those in EPA ’ s policy o n excess emissio ns, they are very similar to those in EPA ’s policy f or malfunctions

. It i s recom mended 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)?

29Secti on 101.222(h) provides for an affirmative defense can be applied to emissio ns during planned

start up/shut down and maintenance.

Our policies explain that EPA does not believe that it is appropriate to allo w for an affirmat ive defense to be applied to excess emissions from scheduled maint enance activities because such events are planned for and sources should be able to comply with applicable limits during such acti vit ies. 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 w

e propose a partial ap

proval/disapproval for this SIP submittal?

Secti on 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 submit tal meets all the req

uirements 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 th at meets the Act ’ s requ ir ements and

a disapprov al may be used for th e remainderof the submittal that does not meet the Act ’ s requirements . It i s important that the two parts of the submittal be separable. By separable, EPA means that the action it anticipates taking will not re sult in the approved rule(s) being more stri ngent 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 (7 thCir. 1984). The EPA has frequently taken a parti al 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 requi red 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 i n front of us and determined that section s 101.222(h)
, 101.222(i), and 101.222(j) are se verable and do not affect those parts that we are proposi ng to approve. 101.222 (h)
, (i), and (j) deal with treatment of a specific class of emissions events planned maint enance, startup or shutdown activities

. S ecti on s 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 no t have an effect on the stri ngency or enforceability of the remaining parts of the rul e which deal with reporting requirements and affirmative defenses due to upsets and unplanned maintenance.

For th is reason we consider today ’ s proposed approval /disapproval to be consi stent wi th section 110(k)(3) of the Act. A s 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 maint enance, startup, or shutdown acti vit ies ; and opaci ty 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 noti ficat io n of these acti

vit ies . Our approval

of secti ons 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 w e finalize

30our di sapproval 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 propose d Federal Register rulemaking acti on, as well.

21. What is our evaluation of 101.223 (Actions to Reduce Excessive emissions?

Secti on 101.223 (Actions to Reduce Excess ive Emissions) provides for a corrective action plan (CAP) and written notification concerning excessive emission events. The CAP and wri tten noti ficat io n requirement will enhance the Texas SIP by providing a clear requirement for facilities determ ined to have excessive emission events. It will require these sources to take proper correcti ve actions to minimize the amount or frequency of the future occurrences of excess emissio ns. 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 en ti re January 23, 2006 submit tal i nt o Texas SIP, except for the section s 101.222(h) , 101.222(i), and 101.222(j)

.

31