Texas:

Codified at 40 CFR 52.2270(c)

See Chapter 101, Subchapter F
CHAPTER 101: GENERAL AIR QUALITY RULES 

SUBCHAPTER F: EMISSIONS EVENTS AND SCHEDULED MAINTENANCE, STARTUP, 

AND SHUTDOWN ACTIVITIES 

DIVISION 3: OPERATIONAL REQUIREMENTS,·DEMONSTRATIONS, AND ACTIONS TO 

REDUCE EXCESSIVE EMISSIONS 

§§101.221 - 101.223 

-·· · §101.221. Operational Requirements. 

(a) All pollution emission capture equipment and abatement equipment must be maintained in 

good working order and operated properly during facility operations. Emission capture and abatement 

equipment must be considered to be in good working order and operated properly when operated in a 

manner such that each facility is operating within authorized emission limitations. 

(b) Smoke generators and other devices used for training inspect9rs in the evaluation of visible 

emissions at ·a training school approved by the commission are not required to meet the allowable 

emission levels set by the rules, but must be located and operated such tbat a nuisance is not created at 

any time. 

' (c) Equipment, machines, devices, flues; and/or contrivances built or installed to be used at a 

domestic· residence for domestic use are not required to meet the allowable emission levels set by the 

rules unless specifically required by a particular rule. 

(d) Sources emitting air contaminants that cannot be controlled or reduced due to a lack of 

technological know ledge may be exempt from the applicable rules when so determined and ordered by 

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the commission. The commission may specify limitations and conditions as to the operation of such 

exempt sources. Tlie commission will not exempt sources from complying with any federal 

requirements, including New Source Performance Standards (40 Code of Federal Regulations Part 60) 

and National Emission Standards for Hazardous Air Pollutants (40 Code of Federal Regulations Parts 

. 61 and 63). 

(e) The owner or operator of a facility has the burden of proof to demonstrate that the 

applicable criteria identified in §101.222(relating to Demonstrations) are satisfied. 

(f) This section does not limit the commission's power to require corrective action as 

necessary to minimize emissions, or to order any action indicated by the circumstances to control a 

condition of air pollution. 

§101.222. Demonstrations. 

(a) Excessive emissions event determinations. The executive director shall determine when 

emissions events are excessive. To determine whether an emissions event or emissions events are 

excessive, the executive director will evaluate emissions events using the following criteria: 

(I) the frequency of the facility's emissions events; 

(2) the cause of the emissions event; 

(3) the quantity and impact on human health or the enviromnent of the emissions 

event; 

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( 4) the duration of the emissions event; 

(5) the percentage of a facility's total aimual operating hours during which emissions 

events occur; and 

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

(b) Non-excessive upset events. Upset events that are determined not to be excessive 

emissions events are subject to an affirmative defense to all claims in enforcement actions brought 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 

(relating to Emissions Event Reporting and Recordkeeping Requirements). In the event the owner or 

operator fails to report as required by §101.20l(a)(2) or (3), (b), or (e) of this title, the commission 

will initiate enforcement for such failure to report and for the underlying emissions event itself. This 

subsection does not apply when there are minor omissions or inaccuracies that do not impair the 

commission's ability to review the event according to this rule, unless the owner or operator knowingly 

or intentionally falsified the information in the report; 

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

equipment or process, beyond the control of the owner or operator; · 

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(3) the unauthorized emissions did not stem from any activity or event that could have 

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

maintenance practices or technically feasible design consistent with good engineering practice; 

( 4) the air pollution control equipment or processes were maintained and operated in a 

manner consistent with good practice for minimizing emissions and reducing the number of emissions 

events; 

(5) prompt aetion was taken to achieve compliance once the operator knew or should 

have known that applicable emission limitations were being exceeded, and any necessary repairs were 

made as expeditiously as practicable; 

( 6) the amount and duration of the unauthorized emissions and any bypass of pollution 

control equipment were minimized and all possible steps were taken to minimize the impact of the 

unauthorized emissions On ambient air quality; 

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

(8) the owner or operator actions in response to the unauthorized emissions were 

documented by contemporaneous operation logs or other relevant evidence; 

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

indicative of inadequate design, operation, or maintenance; 
' 0 

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

unauthorized emissions occurred was not unreasonably high; and 

(11) the unauthorized emissions did not cause or contribute to an exceedance of the 

national ambient air quality standards (NAAQS), prevention of significant deterioration (PSD) 

,increments, or to a condition of air pollution. 

(c) Unplanned maintenance, startup, or shutdown activity. Emissions from an unplanned 

maintenance, startup, or shutdown activity that are determined not to be excessive are subject to an 

affirmative defense to all claims in enforcement actions brought for these activities, other than, claims 

for administrative technical orders and actions for injunctive relief, for which the owner or operator 

proves the emissions were from ai:t unplanned maintenance, startup, or shutdown activity, as defmed in 

§101.1 of this title (relating to Definitions), and all of the following: 

(1) for a scheduled maintenance, startup, or shutdown activity, the owner or operator 

complies with the requirements of § 101.211 of this title (relating to Scheduled Maintenance, Startup, 

and Shutdown Reporting and Recordkeeping Requirements). For an unscheduled maintenance, startup, 

and shutdown activity, the owner or operator complies with the requirements of §101.201 of this title 

and demonstrates that reporting under §101.211(a) of this title was not reasonably possible. Failure to 

report information that does not impair the commission's ability to review the activity, 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; 

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(2) the periods of unauthorized emissions from any unplanned maintenance, startup, or 

shutdown activity could not have been prevented through planning and design; 

(3) the unauthorized emissions from any unplanned maintenance, startup, or shutdown 

activity were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; 

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

shutdown activity were caused by a bypass of control equipment, the bypass was unavoidable to 

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

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

consistent with good practices for minimizing emissions; 

(6) the frequency aod 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 Jogs 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. 

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(d) Excess opacity events. Excess opacity events due to an upset that are subject to 

§101.201(e) of this title, or for other opacity events where there was no emissions event, are subject to 

an affirmative defense to all claims in enforcement actions for these events, other than claims for 

administrative technical orders and actions for injunctive relief, for which the owner or operator proves 

all of the following: 

(1) the owner or operator complies with the requirements of §101.201 of this title. 

Failure to report information that does not impair the commission's ability to review the event, such as 

minor omissions or inaccuracies, will not result in enforcement action and loss of opportunity to claim 

the affirmative defense, unless the owner or operator knowingly or intentionally falsified the 

information in the report; 

(2) the opacity was caused by a sudden, unavoidable breakdown of equipment or 

process beyond the control of the owner or operator; 

(3) the opacity did not stem from any activity or event that could have been foreseen 

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

· practices or by technically feasible design consistent with good engineering practice; 

( 4) the air pollution control equipment or processes were rnaintained 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; 

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(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; 

(7j all emission monitoring systems were kept in operation if possible; 

(8) the owner or operator actions in response to the opacity event were documented by 

contemporaneous operation Jogs or other relevant evidence; 

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

inadequate design, operation, or maintenance; and 

(10) the opacity event did not cause or contribute to a condition of air pollution. 

(e) Opacity events resulting from unplanned maintenance, startnp, or shutdown activity. 

Excess opacity events, or other opacity events where there was no emissions event, that resnlt from an 

unplanned maintenance, startnp, or shutdown activity that are determined not to be excessive are 

subject to an affirmative defense to all claims in enforcement actions brought for these activities, other 

than claims for administrative technical orders and actions for injunctive relief, for which the owner or 

operator proves the opacity resulted from an unplarmed maintenance, startnp, or shutdown activity, as 

defmed.in §101.1 of this title, and all of the following: 

(1) for excess opacity events that result from a scheduled maintenance, startup, or 

shutdown activity, the owner or operator complies with the requirements of §101.211 of this title. For 

excess opacity events that result from an ·unscheduled maintenance, startnp, and shutdown activity, the 

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owner or operator complies with the requirements of §I 01.20 I of this title and demonstrates that 

reporting pursuant to §I01.211(a) of this title was not reasonably possible. Failure to r~port 

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 lmowingly or intentionally. falsified the information in the report; 

(2) the opacity was caused by a sudden, unavoidable breakdown of equipment or 

process beyond the control of the owner or operator; 

(3) the periods of opacity could not have been prevented through planning and design; 

(4) the opacity was not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance; 

(5) if the opacity event was caused by a bypass of control equipment, the bypai;s was 

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

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

· consistent with good practices for minimizing opacity; 

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

opacity were minimized; 

(8) all emissions monitoring systems were kept in operation if possible; 

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(9) the owner or operator actions during the opacity event were documented by 

contemporaneous operating logs or other relevant evidence; and 

(10) the opacity event did not cause or contribute to a condition of air pollution. 

(f) Obligations. Subsections (b) -(e) and (h) of this section do not temove. any obligations to 

comply with any other existing pennit, rule, or order provisions that are applicable to an emissions 

event or a maintenance, startup, or shutdown activity. Any affirmative defense provided by 

subsections (b) - (e) and (h) applies only to violations of state implementation plan requirements. An 

affirmative defense cannot apply to violations of federally promulgated performance or technology 

based standards, such as those found in 40 Code of Federal Regulations Parts 60, 61, and 63. The 

affirmative defense is available only for emissions that have been reported or recorded. 

(g) Frequent or recurring pattern. Evidence of any past event subject to subsections (b) -(e) 

of this section is admissible and relevant to demonstrate a frequent or recurring pattern of events, even 

if all of the criteria in that subsection are proven. 

No.,-

Planned maintenance, startup, or shutdown activity. Unauthorized emissions o 

tion (c)(l) - (9) of this section for emissions, or subsection (e 

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1 

I 

I 

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(I) the owner or operator has filed an application to authorize the emissions or OP. 

(A) for facilities in Standard Industrial Classification {SIC) c 

{Petroleum Refi }, one year after the effective date of this section; 

for facilities in major group SIC code 28 { micals and Allied Products} 

except SIC code 2895, two y after the effective date of this sectio ; 

(C) for facih ·es in SIC code 2895 { bon Black}, four years after the 

effeetive date of this section; 

{D) for facilities in SIC 4911 {Electric Services), 'five years after the 

effective date of this section; 

de Petroleum and Natural Gas), 132 

{Natural Gas Liquids), 4612 (C Petroleum Pipelines), 4613 ( fined Petroleum Pipelines), 4922 

{Natural Gas Transmission) 923 (Natural Gas Transmission and Dis ibution), six years after the 

' effective date of this s 

(F) for all other facilities, seven years after the effective of this section. 

(2) an owner or operator who tiled an application listed in paragraph {1) o this 

su tion has provided prompt response for any requests by the executive director for inforrna ·on 

egarding that application. 

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4 

0 

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(i) The affirmative defense in subsection (h) of this section will expire upon the earlier of one 

the application deadlines in subsection (h)(l)(A) and (Ci - (F) of this section, or the iss 

or denial of a it applied for under subsection (h)(l)(A) and (C)- (F) of this section, o oidance of 

an application filed u er subsection (h)(l)(A) and (C)- (F) of this section. The affi 

subsection (h) of this sectio will expire upon the earlier of two years after th lication deadline in 

subsection (hX l)(B) of this secti plied for under subsection 

(h)(1)(B) of this section, or voidance of 

If the permit application remains pending after e affi · e defense expires, the commission will use 

maintenance, starlup, or shutdown activities, r than cia for administrative technical orders and 

actions tOr injunctive relief tOr which owner or operator prove e criteria in subsections (c) and 

(e) of this section, until the i ce or denial of a permit applied for u subsection (h) (I) of this 

section, or voidance of pplication filed under subsection (h)( I} of this sectt . 

executive director shall process permit applications referenced in subsection ) of this 

m accordance with the schedule set out in § 116.114 of this title (relating to Application Re • w 

chedule). 

§101.223. Actions to Reduce Excessive Emissions. 

(a) The executive director wiU provide written notification 10 an owner or operator of a facility 

upon determination that a facility has had one or more excessive emissions events. The written 

notification must contain, at a minimum, a description of the emissions events that were determined to 

be excessive and the time period when those excessive emissions events were evaluated. Upon receipt 

of this notice, the owner or operator of the facility must take action to reduce emissions and shall either 

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file a corrective action plan (CAP) or, if the emissions are sufficiently frequent; quantifiable, and 

predictable, in which case the owner or operator may file a letter of intent to obtain authorization from 

the commission for emissions from such events, in lieu of a CAP. 

( 1) When a CAP is required, the owner or operator must submit a CAP to the 

commission office for the region and local air pollution agency with jurisdiction in which the facility is 

located within 60 days after receiving notification from the executive director that a facility has had one 

or more excessive emissions events. The 60-day period may be extended once·for up to IS days by the 

executive director. The CAP must, at a minimum: 

{A) identify the cause or causes of each excessive emissions event, including 

all contributing factors that led to each emissions event; 

(B) specify the control devices or other measures that are reasonably designed 

to prevent or minimize similar emissions events in the future; 

(C) identify operational changes the owner or operator will take to prevent or 

minimize similar emissions events in the future; and 

(D) specify time frames within which the owner or operator will implement 

the components of the CAP. 

(2) An owner or operator must obtain commission approval of a CAP no later than 

120 days after the commission receives the first CAP submission from an owner or operator. If not 

disapproved within 45 days after initial filing, the CAP must be deemed approved. The owner or 

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operator of a facility must respond completely and adequately, as determined by the executive director, 

to all written requests for information concerning its CAP within 15 days after the date of such 

requests, or by any other deadline specified in writing. An owner or operator of a facility may request 

written approval of a CAP, in which case the commission shall take final written action to approve or 

disapprove the plan within 120 days from the receipt of such request. Once approved, the owner or 

operator must implement the CAP in accordance with the approved schedule. The implementation 

schedule is enforceable by the commission. The commission may require the owner or operator to 

revise a CAP if the commission finds the plan, after implementation hegins, to be inadequate to prevent 

or minimize emissions or emissions events. If the CAP is disapproved, or determined to be inadequate 

to prevent or minimize excessive emissions events, the executive director shall identify deficiencies in 

the CAP and state the reasons for disapproval of the CAP in a letter to the owner or operator. If the 

commission finds a CAP inadequate to prevent or minimize excessive emissions events after 

implementation begins, an owner or operator must file an amended CAP within 60 days after written 

notification by the executive director. 

(3) If the emissions from excessive emissions events are sufficiently frequent, 

quantifiable, and predictable, and an owner or operator of a facility elects to file a letter of intent to· 

obtain authorization from the commission for the emissions from excessive emissions events, the owner 

or operator must file such letter within 30 days of the notification that a facility has had one or more 

excessive emissions events. If the commission denies the requested authorization, the owner or 

operator of a facility shall file a CAP in accordance with paragraph (1) of this subsection within 45 

days after receiving notice of the commission denial. 

(A} If the intended authorization is a permit, the owner or operator must file a 

permit application with the executive director within 120 days after the filing of the letter of intent. 

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The owner or operator of a facility must respond completely and adequately, as determined by the 

executive director, to all written requests for information concerning its permit application within 15 

days after the date of such requests, or by any other deadline specified in writing. 

(B) If the intended authorization is a permit by rule or standard permit, the 

owner or. operator must obtain authorization within 120 days after filing of the letter of intent. 

(b) The executive director, after a review of the excessive emissions events determinations 

made at a regulated entity as defmed in §101.1 of this title (relating to Defmitions), may forward these 

determinations to the commission requesting that it issue an order finding that the regulated entity has 

chronic excessive emissions events. Orders issued by the commission under this section will be part of 

the entity's compliance history as provided in Chapter 60 of this title (relating to Compliance History). 

The commission may issue an order finding that a regulated entity has chronic excessive emissions 

events after considering the following factors: 

(1) the size, nature, and complexity of the regulated entity operations; 

(2). the frequency of emissions events at the regulated entity; and 

(3) ·the reason or reasons for excessive emissions event determinations at that regulated 

entity. 

(c) If an emissions event recurs because an owner or operator fails to take corrective action as 

required and within the time specified by a CAP approved by the commission, the emissions event is 

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excessive and the affirmative defenses in §101.222 of this title (relating to Demonstrations) do not 

apply. 

(d) Nothing in this section will limit the commission's ability to bring enforcement actions for 

violations of the Texas Clean Air Act or rules promulgated thereunder, including enforcement actions 

to require actions to reduce emissions from excessive emissions events. 

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§101.224. Temporary Exemptions During Drought Conditions. 

As adopted by TNRCC August 21, 2002, effective September 12, 2002 (G-72). 

Approved by EPA March 30, 2005 (70 FR 16129) effective April 29, 2005 

(TXd53). 

Owners and operators ·of sources located in an area or region which has 

been classified by the National Weather Service as being in a severe or 

extreme drought condition under the Palmer Drought Severity Index for at 

least 30 days that are required to control emissions through the application 

or use of water may request a temporary exemption from any commission air 

quality rule, permit condition, permit repreSentation, standard- exemption 

condition, or commission order. This section does not allow for an exemption 

from any federal requirement. 

(1) The request must be submitted in writing to the Office of 

Permitting, Remediation, and Registr?tion, Air Permits Division, and include 

at a minimum the following information: 

{A) the site-specific circumstances that prevent the 

continued or limited use of water;· 

(B) the specific rule, permit condition, permit_ 

representation, standard exemption··condition, or commission order from which 

an exemption is being requested; and 

(C) the reasonably available alternative control measures 

which will be undertaken to minimize emissions. 

(2) The executive director may authorize, by written permission, a 

temporary exemption of up -to 120 days upon finding that: 

(A) the source or facility is located in an area or region 

which has been classified as severe or extreme for at least 30 days under the 

Palmer Drought Severity Index; 

(B) such~n exemption is necessary to aid in the conservation 

of the area's water resources; 

(C) any additional emissions which may result from the 

exemption w-ill not cause a significant health concern in the opinion of the 

executive director; and 

·(D) the requesting owner and operator of the source will use 

reasonably available alternative control measures to minimize emissions 

during this time. 

(3) The executive director may specify alternative procedures or 

methods for controlling emissions when an exemption is granted under this 

section. 

(4) The executive director may issue one 60-day extension of an 

exemption authorized under this section. A commission order is required for 

any exemption which would extend beyond a total of 180 days and approval · 

shall be based on the criteria contained in this section. The execut-ive 

director shall notify the EPA .of exemptions which will be considered for 

extension beyond 180 days. The executive director shall notify the EPA at 

least 30 days prior to commission consideration of such an extension. 

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