### Texas:

Codified at 40 CFR 52.2270(c) See Chapter 101, Subchapter FCHAPTER 101: GENERALAIR QUALITYRULES SUBCHAPTERF: EMISSIONS EVENTS AND SCHEDULED MAINTENANCE, STARTUP, AND SHUTDOWNACTIVITIES DIVISION 3: OPERATIONAL REQUIREMENTS,·DEMONSTRATIONS, AND ACTIONS TO REDUCE EXCESSIVEEMISSIONS §§101.221 - 101.223



### -·· · §101.221. Operational Requirements. 

### (a) All pollutionemission captureequipment and abatement equipmentmustbe

### maintained in good working order and operatedproperly duringfacility operations. Emission captureand abatement equipmentmust be 

### considered to be

### in good working order and operatedproperly whenoperated in a manner such thateach facility is operating within authorized emission limitations. (b) 

### Smoke generators and otherdevices usedfor training inspect9rs in the evaluation ofvisible emissions at

### ·atraining school approved by the commission are not required to meetthe allowable emission levels setby the rules, butmust 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 notrequired to 

### meetthe allowable emission levels setby the rules unless specifically required by aparticular rule. (d) Sources emitting air contaminants thatcannotbe controlled or reduced due to a lack of technological knowledge may be 

### exemptfrom the applicable rules when so determined and ordered

## by -63-the commission. The commission may specify limitations and conditions as to the operation ofsuch exempt sources. Tlie commission will not exempt sources from complying with any federal requirements, including New Source Performance Standards (40 Code ofFederal Regulations Part 60) and National Emission Standards for Hazardous Air Pollutants (40 Code ofFederal Regulations Parts

. 61 and 63). (e) The owneror operator ofa facility has the burden ofproofto demonstrate that the applicable criteria identified in §101.222(relating to Demonstrations) are satisfied. (f) This section does notlimit 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 ofair 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 oremissions events are excessive, the executive director will evaluate emissions events using the following criteria: (I) the frequency ofthe facility's emissions events; (2) the cause ofthe emissions event; (3) the quantity 

### and impact on human health or the enviromnent ofthe emissions event; 

### -64·( 4) the duration ofthe emissions event; (5) the percentage ofa 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 anaffirmative defense to all claims in enforcementactions brought for these events, otherthanclaims for administrative technical orders and actions for injunctive relief, for which the owner oroperator proves all ofthe following: (1) the owner or operator complies with the requirements of §101.201 ofthis title (relatingto Emissions EventReporting and Recordkeeping Requirements). 

### Inthe event the owner or operator fails to report as required by §101.20l(a)(2) or (3), (b), or (e) ofthis 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 donot impair the commission's ability to review the event according to this rule, unless the owner oroperatorknowingly 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 ofthe owner or operator; ·

-65-(3) the unauthorized emissions did not stem from any activity or event that could have beenforeseen and avoided orplanned for, and could not have been avoided by better operation and maintenance practices ortechnically feasible design consistent with good engineering practice; ( 4) the air pollution control equipment orprocesses were maintained and operated 

### in a manner consistent with good practice for minimizing emissions and reducing the number ofemissions events; (5) prompt aetion was taken to achieve compliance once the operator knew or should have known that applicable emission limitations werebeing exceeded, and any necessary repairs were made as expeditiously as practicable; ( 6) the amount and duration ofthe unauthorized emissions and any bypass ofpollution control equipment were minimized and all possible steps were taken to minimize the impact ofthe unauthorized emissions On ambient air quality; (7) all emission monitoring systems were kept in operation ifpossible; (8) the owner or operator actions in response to the unauthorized emissions were documentedby contemporaneous operation logs or otherrelevant evidence; (9) the unauthorized emissions were not partofa frequent or recurring pattern indicative ofinadequate design, operation, or maintenance;' 0 (10) the percentage ofa facility's total annual operating hours during which unauthorized emissions occurredwas notunreasonably high; and (11) the unauthorized emissions did not cause orcontribute to an exceedance ofthe national ambient air qualitystandards (NAAQS), prevention ofsignificantdeterioration (PSD) ,increments, orto a condition ofairpollution. (c) Unplanned maintenance, startup, or shutdown activity. Emissions from anunplanned maintenance, startup, or shutdown activity that are determined not to beexcessive are subject to an affirmative defense to all claims in enforcement actions brought for these activities, otherthan,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, asdefmed in §101.1 ofthis title (relating to Definitions), and all ofthe following: (1) for a scheduled maintenance, startup, or shutdown activity, the owner oroperator complies with the requirements of §101.211 ofthis title (relating to Scheduled Maintenance, Startup, and ShutdownReporting and Recordkeeping Requirements). For anunscheduled maintenance, startup, and shutdown activity, the owneroroperator complies with the requirements of §101.201 ofthis title and demonstrates thatreporting under §101.211(a) ofthis title was notreasonably possible. Failure to report information that does not impair the commission's ability to review the activity, such asminor omissions or inaccuracies, will not result in enforcement action and loss ofopportunity to claim the affirmative defense, unless the owner or operator knowingly or intentionally falsified the information in the report;



### -67-(2) the periods ofunauthorized 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 notpart ofa recurring pattern indicative ofinadequate design, operation, or maintenance; (4) ifthe unauthorized emissions from any unplanned maintenance, startup, or shutdown activity were caused by a bypass ofcontrol equipment, the bypass was unavoidable to prevent loss oflife, 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 ofoperation in anunplanned maintenance, startup or shutdownmode resulting in unauthorized emissions were minimized and all possible steps were taken to minimize the impact ofthe unauthorized emissions on ambient air quality; (7) all emissions·monitoring systems were kept in operation ifpossible; (8) the owner or operator actions during the period ofunauthorized emissionsfrom 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 ofthe NAAQS, PSD increments, or a condition ofair pollution. -68-(d) Excess opacity events. Excess opacity events due to anupset that are subject to §101.201(e) ofthis 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 ofthe following: (1) the owner or operatorcomplies with the requirementsof §101.201 ofthis 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 inenforcement action and loss ofopportunity to claim the affirmative defense, unless the owner or operatorknowingly or intentionally falsified the information inthe report; (2) the opacity was caused by a sudden, unavoidable breakdown ofequipmentor process beyond the control ofthe owner or operator; (3) the opacity did not stem from anyactivity or event that could have been foreseen and avoided or planned for, and couldnot have been avoided by better operation and maintenance

· practices orby technically feasible design consistent with good engineering practice; (4) the air pollution control equipment orprocesses werernaintained and operated in a manner consistent with goodpractice for minimizing opacity; (5) promptaction was taken to achieve compliance once the operatorknew or should have known that applicable opacity limitations were being exceeded and any necessary repairs were made as expeditiously as practicable; -69-(6) the amount and duration ofthe opacity event and any bypass ofpollution control equipment were minimized and all possible steps weretakento minimize the impact ofthe opacity on ambient air quality; 

### (7j all emission monitoring systems were kept in operation ifpossible; (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 partofa frequent or recurring pattern indicative of inadequate design, operation, or maintenance; and (10) the opacity event did not cause or contribute to a condition ofair 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 subjectto 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 ofthis title, and all ofthe following: (1) for excess opacity events thatresult from a scheduled maintenance, startup, or shutdown activity, the owner or operator complies with the requirements of §101.211 ofthis title. For excess opacity events that result from an·unscheduled maintenance, startnp, and shutdown activity, the 

### -70-owner or operatorcomplies with the requirements of §I01.20I ofthis title and demonstrates that reporting pursuant to §I01.211(a) ofthis title was notreasonably 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 notresult in enforcement action and loss ofopportunity to claim the affirmative defense, unless the owner or operator lmowingly or intentionally. falsified the information in the report; (2) the opacity was causedby a sudden, unavoidable breakdown ofequipment or processbeyondthe control ofthe owner or operator; (3) the periods ofopacity could not have beenpreventedthrough planning and design; (4) the opacity was notpart ofa recurring pattern indicative ofinadequate design, operation, or maintenance; (5) ifthe opacity event was caused by a bypass ofcontrol equipment, the bypai;s was unavoidable topreventloss oflife, personal injury, or severe property damage; (6) the facility and airpollution control equipment were operated in a manner

· consistent with good practices for minimizing opacity; (7) the frequency and duration ofoperation ina startup or shutdown mode resulting in opacity were minimized; (8) all emissions monitoring systems were kept in operationifpossible;



### -71-(9) the owner oroperator 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 ofair pollution. (f) Obligations. Subsections (b) -(e) and (h) ofthis sectiondo not temove. any obligations to comply with any otherexisting pennit, rule, or orderprovisions that are applicable to an emissions event or a maintenance, startup, orshutdown activity. Any affirmative defense provided by subsections (b) - (e) and (h) applies only to violations of state implementation plan requirements. An affirmative defense cannotapply to violations offederally promulgated performance or technology based standards, such as those found in 40 Code ofFederal Regulations Parts 60, 61, and 63. The affirmative defense is available only for emissions that have beenreported or recorded. (g) Frequent or recurring pattern. Evidence ofanypast event subject to subsections (b) -(e) ofthis section is admissible and relevant to demonstrate a frequent or recurring pattern ofevents, even ifall ofthe criteria in that subsection are proven. 

## No.,- Planned maintenance, startup, or shutdown activity. Unauthorized emissionso

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

-72-

# 1 

# I 

# I 

# -- j

## N .S 

# 1-P (I) the owner oroperatorhas filed an application to authorize 

### the emissions orOP.

(A) for facilities in Standard Industrial Classification {SIC) c {PetroleumRefi }, one year after the effective date ofthis section;

for facilities in major group SIC code 28 { micals 

### and Allied Products} except SIC code2895, two y after theeffectivedate ofthis sectio ; (C) for facih ·esin SIC code2895 { bon Black}, four years after the effeetive date ofthis section; {D) for facilities in SIC 4911 {Electric Services), 'five years after the effectivedate ofthis section;

de Petroleumand Natural Gas), 132 {Natural GasLiquids), 4612 (C Petroleum Pipelines), 4613 ( fined PetroleumPipelines), 4922 {Natural GasTransmission) 923 (Natural Gas Transmission and Dis ibution), six years after the 

### ' effectivedate ofthis s (F) for all otherfacilities, seven years after the effective ofthis section. (2) an owner or operator who tiled an application listedin paragraph {1) o this su tion has provided promptresponse for any requests by the executivedirector for inforrna ·on egarding that application. -73- 

## 4 

## 0 

# --I 

# z

# z (i) 

### The affirmative defense in subsection (h) ofthis section will expire upon the earlier ofone the application deadlines in subsection (h)(l)(A) 

### and (Ci - (F) 

### ofthis section, or the iss or denial ofa itapplied for under subsection (h)(l)(A) and (C)- (F) 

### ofthis section, o oidance of an application filed u er subsection (h)(l)(A) and (C)- (F) 

### ofthis section. The affi subsection (h) ofthis sectio will expire upon the earlier oftwo years after th lication deadline in subsection (hXl)(B) 

### ofthis secti plied for under subsection (h)(1)(B) ofthis section, orvoidance of If

### the permitapplication 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 relieftOr which owner or operatorprove ecriteria in subsections (c) and 

### (e) ofthis section, until the i ce or denial ofa permit applied for u subsection (h)(I)

### ofthis section, or voidance of pplication filed under subsection (h)(I} 

### ofthis 

### sectt . executive director shall process permitapplications referenced in subsection ) ofthis maccordance with the 

### schedule setout in §116.114 ofthis title (relating to Application Re • w 

### chedule). §101.223. Actions

### to ReduceExcessive Emissions. 

### (a) The executive director wiU provide written notification 10 an owner or operator ofa facility upon determination that a facility has had one or moreexcessive emissions events. The written notification must contain, at a minimum, a description ofthe emissions events that were determined to be excessive and the 

### time period when those excessiveemissions events were evaluated. Upon receipt ofthis notice, the owner or operator ofthe facility musttake action to reduce emissions and 

### shall either -74- 

# z



# -file a corrective action plan (CAP) or, ifthe emissions are sufficiently frequent; quantifiable, and predictable, in which case the owner or operatormay file a letter ofintent to obtain authorization from the commission for emissions from such events, in lieu ofa CAP. (1) When a CAP is required, the owner oroperatormust submit a CAP to the commission office for the region and local airpollution agency withjurisdiction in which the facility is located within 60days 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·forup to IS days by the executive director. The CAP must, at a minimum: {A) identify the cause orcauses ofeach 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 preventorminimize similar emissions events in the future; (C) identify operational changes the owner or operator will take toprevent or minimize similar emissions events in the future; and (D) specify time frames within which the owner or operator will implement the components ofthe CAP. (2) Anowner oroperator must obtain commission approval ofa CAP no later than 120 days after the commission receives the first CAP submission from an owner or operator. Ifnot disapproved within 45 days after initial filing, the CAP must be deemed approved. The owner or -75-operator ofa 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 ofsuch requests, or by any other deadline specified in writing. An owner or operator ofa facility may request written approval ofa CAP, in which case the commission shall take final written action to approve or disapprove the plan within 120 days from the receipt ofsuch 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 ifthe commission finds the plan, after implementationhegins, to be inadequate to prevent or minimize emissions or emissions events. 

### Ifthe CAP is disapproved, or determined to be inadequate to prevent orminimize excessive emissions events, the executive director shall identify deficiencies in the CAP and state the reasons for disapproval ofthe CAP in a letter to the owner or operator. Ifthe commission finds a CAP inadequate toprevent 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) Ifthe emissions from excessive emissions events are sufficiently frequent, quantifiable, and predictable, and an owner or operator ofa facility elects to file a letter ofintentto· obtain authorization from the commission for the emissions from excessive emissions events, the owner or operator must file such letter within 30days ofthe notification that a facility has had one or more excessive emissions events. 

### Ifthe commission denies the requested authorization, the owner or operator ofa facility shall file a CAP in accordance with paragraph (1) ofthis subsection within 45 days after receiving notice ofthe commission denial. (A} Ifthe intended authorization is a permit, the owneror operator must file a permit application with the executive director within 120 days after the filing ofthe letter ofintent. -76-The owner or operator ofa facility mustrespond completely and adequately, as determined by the executive director, to all writtenrequests for information concerning its permit applicationwithin 15 days after the date ofsuch requests, orby any other deadline specified in writing. (B) Ifthe intended authorization is a permitby rule or standard permit, the owner or.operator must obtain authorization within 120 days after filing ofthe letter ofintent. (b) The executive director, after a review ofthe excessive emissions events determinations made at a regulated entity as defmed in §101.1 ofthis 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 

### bepartof the entity'scompliance history asprovided in Chapter 60 ofthis title (relating to Compliance History). The commissionmay issue anorder finding that a regulated entity has chronic excessive emissions events after considering the following factors: (1) the size, nature, and complexity ofthe regulated entity operations; (2). the frequency ofemissions events at the regulated entity; and (3) ·the reason orreasons for excessive emissions event determinations atthat regulated entity. (c) Ifanemissions event recurs because an owner or operator fails to take corrective action as required and within the time specifiedby a CAP approved by the commission, the emissions event is



### -77-excessive and the affirmative defenses in §101.222 ofthis title (relating to Demonstrations) do not apply. (d) Nothing in this section

### will limit the commission's ability to bring enforcement actions for violations ofthe Texas Clean AirAct or rules promulgated thereunder, including enforcementactions to require actions to reduce emissions from excessive emissions events.



### -78-§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. ******************************** end 101.224 **************************f41** ************************ end subchapter f division 3 ********TXd120*****nzr**