EXCESS EMISSION RULE 

UDAQ, EPA & REGULATED
 

COMMUNITY MEETING
 

January 19. 2005 

UBR Background 

• Utah USR adopted> 20 years ago 

- EPA participated in UBR rulemaking 

- UBR approved by EPA into SIP 

- No SIP Call or demonstration that UBR is 

"substantially inadequate" to attain/maintain 

NMOS 

• Not dissimilar to NSPS/MACT SSM 

Exception... 

UBR Background 

• NSPS/MACT: Include generous SSM 

Exception: 

"[E]missions in excess of the level of the 

applicable emission limit during periods of 

startup, shutdown, and malfunction [shall 

not] be considered a violation of the 

applicable emission limit .... " 

Utah's Excess Emission Rule 

• Concept: recognition that upset conditions 

are an inescapable aspect of industrial life 

even when a source is properly maintained 

and operated 

- Provide limited relief for excess emissions that 

occur during upset conditions that are not the 

result of poor maintenance/ops 

UBR Background 

• Genesis: NSPS 

"The proposed [SSM] regulation ... imparts a 

construction of 'reasonableness' to the standards as a 

whole and adopts a more flexible system of regulations 

than can be had by a system devoid of 'give.' .. , [Al 

regulatory system which allows flexibility, and a 

lessening of firm proscriptions in a proper case, can 

lend strength to the system as a whole. The limited 

safety valve permits a more rigorous adherence to an 

effective regulation." 

UBR Background 

• NSPS: "Malfunction" means any sudden, 

infrequent, and not reasonably preventable 

failure of air pollution control equipment, 

process equipment, or a process to operate 

in a normal or usual manner. Failures that 

are caused in part by poor maintenance or 

careless operation are not malfunctions. 

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UBR Background 

• "Breakdown" mean: 

"any malfunction or procedural error, to include but 

not limited to any malfunction or procedural error 

during start-up and shutdown. which will result in 

the inoperability or sudden loss of performance of 

the control equipment or process equipment 

causing emissions in excess of those allowed by 

approval order or Title R307: 

COMMON GROUND 

•	 EPA & Utah criteria conceptually not that 

much different: 

- Sudden failure
 

- Not predictable
 

- Not result of poor maintenance or operations
 

- Em.issi~nslim~ac.t minimize~~. i ./7 

- Maintain mOnltonng _ UA- /k.o o.e:e - Written documentation 

- Not recurring 

- Prompt reporting 

OBJECTIVE & RATIONALE 

• Objective: Ensure that Utah maintains 

a provision in its air quality program 

that recognizes that excess emissions 

that result from "unavoidable 

breakdown" circumstances are not 

deemed to constitute a violation. 

" 

UBR Background 

• USR: "[E]missions resulting from an unavoidable 

breakdown will not be deemed a violation of these 

regulations. If excess emissions are predictable. 

they must be authorized under the variance 

procedure in R307-1 02·4. Breakdowns that are 

caused entirely or in part by poor maintenance, 

careless operation, or any other preventable upset 

condition or preventable equipment breakdown 

shall not be considered unavoidable breakdown,' 

OBJECTIVE & RATIONALE 

• Utah's current, SIP-approved UBR recognizes that 

sometimes, despite the best efforts of an operator,

equipment fails and processes expenence upset 

conditions that cannot be prevented. 

- Recognizing this inevitability does nothing to undermine 

the allainment and maintenance strategy embodied In 

Utah's SIP, 

- On the other hand. providing a limited exception for 

owners/operators that have engaged in prudent 

operating and maintenance praC?tlce~ and have taken all 

reasonably available steps to minimize excess 

emissions that resull from an unavoidable breakdown 

condition will provide an air quality benefit. 

ISSUE: Applicability of '99 Guidance 

•	 "mhe 1999 Policy was intended to provide 

the parameters for EPA review of future SIP 

submissions ...... 

•	 "[The 1999 Guidance] was not intended to 

alter the status of any existing malfunction, 

startup or shutdown prOVision in a SIP that 

has been approved by EPA." 

" 

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ISSUE: Should All Excess 

Emissions (inc. UB's) = Violation? 

• Inconsistent with NSPS/MACT SSM 

provisions 

- Level playing field 

• Utah's current SIP provides that US's are 

not violations and there is no evidence that 

the USR has been an impediment to Utah's 

attainment/maintenance strategy 

" 

ISSUE: Should All Excess 

Emissions (inc. UB's) =Violation? [3J 

• Liability would be a foregone conclusion and 

the only issue would be the amount of 

penalties up to the statutory maximums 

• A reasonable excess emissions rule 

provides an incentive to maintain and 

operate a facility in accordance with good 

operating practices 

" 

ISSUE: Who Decides? 

• The ES is reasonably charged with making 

numerous decisions for the purpose of 

implementing Utah's air quality program: 

- Applicability determinations (PSD, MACT, etc.) 

- BACT determinations 

- Decisions to issue AOs 

- Compliance with applicable requirements 

• Annual compliance certffications 

• Inspections 

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ISSUE: Should All Excess
 

Emissions (inc. UB's) == Violation? [2]
 

• This would expose sources to absolute 

liability for every instance of excess 

emissions without regard to the 

circumstances 

• Whether or not enforcement will be pursued 

will be entirely and independently up to (i) 

UDAQ, (H) EPA and (Hi) citizen groups 

ISSUE: Should All Excess
 

Emissions (inc. UB's) =Violation? [4]
 

• D.C. Circuit Court of Appeals in rejecting the 

notion that the exercise of enforcement 

discretion alone would be adequate for 

addressing excess emissions incidents: 

"Companies must be on notice as to what will 

constitute a violation" and should not have to 

wait until the "enforcement stage" of a 

proceeding to know if it is in compliance with an 

applicable requirement. See Portland Cement, 

486 F.2d at 398-99. 

ISSUE: Who Decides? [2] 

• It seems reasonable, indeed necessary, for 

the ES to be charged with making 

determinations of whether an excess 

emissions incident meets the criteria of the 

USR 

- Provides for finality 

- ES's final decisions are subject to challenge 

through administrative procedures 

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STANDARDS 

• Recall: UBR and EPA Guidance Address 

the Same Criteria 

• Criteria Need a Standard; e.g., 

- USR: poor maintenance; careless operation 

- NSPS: reasonably preventable 

- Title V: reasonably unforeseeable 

STANDARDS [2] 

• EPA Comments: 

- Not preventable "by better design, operation, 

and maintenance" 

• What couldn't? 

- Emissions Minimized to "the maximum extent 

practicable" 

- No to "good industry practices" 

NAAQS DEMONSTRATION 

• ''To assure protection of the NAAQS and 

increment, the affirmative defense 

provisions for startup, shutdown and 

malfunction should also contain provisions 

that limit the affirmative defense to areas 

and pollutants where a single source or 

small group of sources does not have 

the potential to cause an exceedance of 

the NAAQS or PSD increments." 

NAAQS DEMONSTRATION 

• What does it mean to say that a "single 

source or small group of sources does not 

have the potential to cause an exceedance 

of the NAAQS or PSD increments?" 

- How would such a demonstration be made? 

- Could any source along the Wasatch Front 

hope to make this demonstration? 

NAAQS DEMONSTRATION [2] 

• How would eliminating the affirmative 

defense for incidents that "cause or have the 

potential to cause" a NAAQS/increment 

exceedance but otherwise satisfy the 

enumerated criteria (sound operating and 

maintenance practices, etc.) result in an air 

quality benefit? 

.. 

STARTUPS, SHUTDOWNS &
 

SCHEDULED MAINTENANCE
 

• Excess emissions during some S & Sand 

scheduled maintenance conditions are 

unavoidable 

• Utah's proposal provides very limited protection: 

- could not have been prevented thrOllgh careful planning 

and design consistent with good industry practices 

- frequency and duration of operation in scheduled 

maintenance. startup, or shutdown mode were 

minimized to the extent practicable 

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