# EXCESS EMISSION RULE UDAQ, EPA & 

### REGULATED

COMMUNITY MEETING January 19. 2005


# UBR Background • Utah USR adopted> 20years 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 

### • Notdissimilarto NSPS/MACTSSM

Exception...


# UBR Background • NSPS/MACT: Include generous SSM

Exception: "[E]missions in excess ofthe levelofthe applicable emission limitduringperiods of startup, shutdown, andmalfunction [shall not]be considereda violation ofthe 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

occurduring upset conditions thatare not the result ofpoor 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, ora process to operate in a normal or usual manner. Failuresthat 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 orsudden lossof 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 oroperations

-

### 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 deemedto 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 underthe variance procedure in R307-1 02·4. Breakdowns that are caused entirelyor 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 inevitabilitydoes nothing to undermine

the allainment and maintenance strategyembodied In Utah's SIP,

- On the other hand. providing a limitedexception for

owners/operators that haveengaged in prudent operating and maintenance**praC?tlce~** and have taken all reasonablyavailable steps to minimize excess emissions that resull from an unavoidable breakdown condition will provide an airqualitybenefit.


## ISSUE: Applicabilityof '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

alterthe status of any 

### existingmalfunction, startup or shutdown prOVision in a SIP that has been approved by EPA." 

## " 

## 2

## 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



## notviolations and there is no evidence that the USR has been an impedimentto 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 amountof 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:

- Applicabilitydeterminations (PSD, MACT, etc.)

- BACT determinations

- Decisions to issue AOs

- Compliance with applicable requirements • Annual compliance certffications • Inspections 17 

## ISSUE: Should All

## Excess Emissions (inc. UB's) == 

## Violation? [2] • This would expose sources to absolute

liability for every instanceofexcess emissions without regard tothe circumstances • Whether or not enforcement will be pursued

will be entirely and independently upto (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 asto what will constitute aviolation" and should not have to wait until the "enforcementstage" of a proceeding to know if it is in compliance with an applicable requirement. See PortlandCement, 486 F.2d at398-99.



# ISSUE: Who Decides? [2] • It seems reasonable, indeed necessary, for

the ESto be charged with making determinations of whetheran excess emissions incident meets the criteria ofthe USR

- Providesforfinality

- ES'sfinal decisions are subjectto 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:

### poormaintenance; 

### carelessoperation

- NSPS: 

### reasonablypreventable

- Title V: 

### reasonablyunforeseeable 

# STANDARDS [2] • EPA Comments:

- Not preventable "by betterdesign, operation,

and maintenance"

• Whatcouldn'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 

### wherea 

### single source or smallgroup ofsources does nothave thepotential

## to cause

## an exceedance of the NAAQS orPSD increments." 

# NAAQS DEMONSTRATION • What does it mean to saythat a "single

source 

### orsmallgroup ofsourcesdoes not have the 

### potentialto 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 satisfythe 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 ofoperation in scheduled

maintenance. startup, orshutdown mode were minimized to the extentpracticable


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