/­ 

### '/1

_ 1" ,)/:i /..!. 1 "'.'1I 'J " _:" ,-,--,1\1..\ I' 

### BEFORE THE ADMINISTRATOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

### orl~r\.' ;'l'

.._--------- ---..

### ----------------­ ) 

### In the \1attcr of: 

### ) ) Utah SIP Provision/Utah Regulations, ) Rule R307-107General Requirements: ) Unavoidable Breakdown ) 

## DEC**~31** 

## ZGJ,



## _____-.J ) 

# USEPARNS()FFICB

CITIZEN PETITION TO EPA TO REQUIRE REVISION OF THE UTAH SIP PROVISIONS ON EXCESS EMISSIONS DURING BREAKDOWNS Rocky Mountain Clean Air Action hereby petitions the Administrator ofthe Environmental Protection Agency (,'Administrator" or "EPA"), pursuant to the Administrative Procedure Act ("APA"), 5 USC § 551, 

### et seq_; the Clean AirAct ("CAA"), 42 USC § 7401, 

### et 

### seq_: and the Environmental Protection Agency's CAA implementingregulations, to require the State ofUtah to revise its State Implementing Plan C-SIP") to close an illegal loophole and prevent inappropriate impkmentation ofand/or failure to comply withthe 

### eAA. Specifically, Petitioners request the EPA require revision ofRule R307-107, General Requirements: Unavoidable Breakdovvn, related to excess emissions during breakdowns (hereafter "breakdown exemption"). Petitioners specifically request the EPA require elimination ofthe breakdown exemption and/or require revision to meet the requirements ofthe CAA. According to the EPA, "Utah has been advised on a number ofoccasions that the unavoidable breakdown is not consistent with EPA's interpretation ofthe Clean Air Actl.I" Comments from Richard R. Long. Rl;gion VIII Dir.. Airand Radiation Program to Rick Sprott, Division ofAir Quality Director. Utah Division ofAir Quality (August 2, 2006) (empha')is added).

### PETITIONER Rocky Mountain Clean Air Action is a nonprofit organization dedicated to protecting clean air for' healthy children and healthy communities clean air in the Rocky Mountain region, including Utah. Rocky Mountain Clean Air Action is located at 1536 Wynkoop, Suite 302. Denver. CO 80202.



### PROCEDURAL AUTHORITY Rocky Mountain Clean Air Action petitions the EPA pursuant to the APA. 5 USC 551. 

### elseq. The APA specifically requires that "Ie]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal ofarule." 5 USC 

### § 553(e). The SIP is a living document which the State and EPA can, from time to time. revise as necessary. Approval and Promulgation ofAir Quality Implementation Plans: Vem1ont. 68 Fed. Reg. 34,808-34813 (June 11, 2003) (codified at 40 CFR Pali 52) (final rule: notice of administrative change). EPA is authorized pursuant to the CAA to initiate rulcmaking proceedings and to call for SIP revisions when a SIP is inadequate orfails to meet the requirements ofthe CAA. See 42 USC 

### § 7410. Further, EPA can 

### "require the Stateto revise the SIP as necessary to correct such inadequacies." 42 USC 

### §741 O(k)(5) (emphasis added). The APA requires EPA to conclude the matter raised in this petition withina reasonable time. 5 USC 

### § 555(b). Petitioners requests EPA expedite resolution ofthis matter to close a significant and illegal loophole within the Utah Regulation with regards to the breakdown exemption incorporated into the SIP. Since EPA has made perfectly clearthat the Utah 

### Sfr must be revised in regards to the breakdowns exemption and that, ifa SIP is inadequate and/or illegal. citizens must petition the agency to issue a SIP call. this request is more than reasonable. Should

2

### the EPA fail to require revision ofthe Utah SIP with regards to the breakdown exemption within sixty days, Rocky Mountain Clean Air Action will consider such delay unreasonable.

I. 

### THE UTAH RULE MUST BE REVISED IN ACCORDANCE WITH EPA DIRECTION TO CONFORMTO THE CLEAN AIR ACT. 

### As presently worded, the breakdown exemption ofthe Utah SIP is plainly inconsistent with the CAA. Not only has the EPA agreed with this assessment, butthe EPA has also recommended that the SIP be revised because ofthis illegality. In fact, records indicate that the EPA has attempted to \-vork withthe State ofUtah over the years to revise the existing breakdown exemption. Unfortunately, the State ofUtah has notrevised the breakdown exemption and the EPA has yet to issue a SIP call to 

### ensure compliance with the 

## eAA. Rocky r-,,1ountain Clean Air Action is therefore tiling this petition to ensure the Utah SIP is finally n:\iscd to meet a1\ legal requirements.



### a. The Breakdown Exemption Violates the Clean Air Act The breakdown exemption in the Utah Regulations contai.ns six sections which variously allow polluters to exceed airpollution emission limits, even those that are meantto protectpublic health, in the event ofa "breakdovvn." 1 

### The rule not only allows violations ofairpollution emission limits during normal breakdowns, as defined under Utah Regulations, but also during "unavoidable" breakdowns,2

, A breakdown is ddinecl in Utah Regulation at R307-1 0 1-2 as, "any malfunction or procedural en'or, to include but not limited to any malfunction or procedural efTor dW'ing start-up and shutdown, which will result in the inoperability or sudden loss ofpertormance ofthe control equipment orprocess equipment causing emissions in excess ofthose allowed by approval orderorTitle R307." 2 Unavoidable breakdowns are not specifically defined in Utah Regulations.


### 3

### The breakdown exemption begins by stating that all excess emissions during '·unavoidable breakdowns" do not constitute violations ofUtah's air quality regulations. The rule states:

R307-107 applies to all regulated pollutants includingthose for which there are National Ambient Air'Quality Standards. Except as otherwise provided in R307-107, emissions resulting from an unavoidable breakdown will not be deemed a violation ofthese regulations. Ifexcess emissions arepredictable, they must be authorized underthe variance procedure in R307-102-4. 

### Breakdowns that are caused entirely or in part by 

### poor maintenance, careless operation, or any other preventable upset condition orpreventable equipmentbreakdown shall not be considered unavoidable breakdovl11.

Utah Regulations, R307-107-1. The exemption then states that even normal breakdowns are allowed to violate Utah's air quality regulations, so long as the breakdmvn does not last for more than 2 hours. Therule states:

A breakdovVTl for any period longer than 2 hours must be reported to the executive secretary within 3 hours ofthe beginning ofthe breakdown ifreasonable. but in no case longer than 18 hours afterthe beginning ofthe breakdown. During times other than normal otJice hours, breakdowns for any period longerthan 2 hours shall be initially reported to the Environmental Health Emergency Response Coordinator. Telephone (801) 536-4123. Within 7 calendar days ofthe begiIming ofany breakdown oflonger than 2 hours, a written report shall be submittedto the executive secretary which shall include the cause and nature ofthe event, estimated quantity ofpollutant (total and excess), time ofemissions and stepstaken to control the emissions and to prevent recurrence. The submittal ofsuch information shall be used by the executive secretary in determining whether a violation has occurred and/or the need offurther enforcement action.

Utah Regulations, R307-107-2. The exemptionthen statesthat a violation ofR307-1 07-2 will only occur ifbreakdowns that last more than 2 hours are not reported. The rule states:

Failure to comply with the reporting procedures ofR307-107-2 will constitute a violation ofthese regulations.



### 4

### Utah Regulations, R307-107-3. The exemption then attempts to provide limits on the application ofthe "lU1avoidable breakdown" exemption. However, these limits are stated vaguely, and still make 

### clear that polluters aftorded great t1exibility with regards to availing themselves ofthe "unavoidable breakdown" exemption. Therule states:

The owneroroperator ofan installation suffering 

### an unavoidable breakdown shall assure that emission limitations and visible emission limitations are exceeded'for only as short a period oftime as reasonable. The owneror operator shall take all reasonable measures which may include but are notlimited to the immedia1e curtailment ofproduction, operations, or activities at all installations ofthe source ifnecessary to limitthe total aggregate emissions from the sourceto no greaterthanthe aggregate allowable emissions averaged overthe periods provided in the source's approval orders or R307. In the event that production, operations or activities cannotbe curtailed so 

### as to so limitthe total aggregate emissions withoutjeopardizing equipment or safety or measures taken would result in even greater excess emissions. the owner or operator ofthe source shall use the most rapid, reasonable procedure to 

### reduce emissions. The ovmer or operator ofany installation subject to a 

### SIP emission limitation pursuantto theserules shall bedeemedto have complied with the provisions ofR307-107 ifthe emission limitation has not been exceeded.

Utah Regulations, R307-107-4. The lUle then states that the failure to comply with the vague requirements ofR307-107-4 will constitute a violation. The rule states:

Failure to comply with curtailmentactions required by R307-107-4 will constitute a violation ofR307-107.

Utah Regulations, R307-105. The lUle finally states:

Other provisions ofR307 may require more stringent controls than listed herein. in which case those requirements must be met.

Utah Regulations, R307-] 07-6. Unfortunately. there are no "more stringent controls" required under R307 that "'must be met:'

5Taken together, the breakdo\NTI exemption serves to allow polluters to use breakdowns-·­ unavoidable orothenvise-as a means to avoid compliance with Utah's air quality regulations. As will be explained. this blanket exemption. facially and as 

### a: practical matter, violates the CAA, CAA implementing regulations, and EPA policy. Tobegin with, nothing inthe CAA provides for the automatic exemption ofcompliance during breakdowns, malfunctions, or any 

### similarevent. The word "unavoidable breakdown" is specifically found nowhere in the CAA or its 1990 Amendments. In fact in relation to meeting certain air quality standards, such as national ambient airquality standards ('"NAAQS") and prevention ofsignificant deterioration ("PSD"), the law is clear that SIPs shall ensure absolute compliance. See 42 U.S.C. § 7407(a): 42 USC**~.** 741 O(a)( 1). Absolute compliance is not only reasonable, but necessary to ensure the goals and purposes ofthe CAA are fully met as Congress intended. Forexample, the purpose ofPSD is, among otherthings:

[T]o protect public health and welfare from any actual orpotential adverse effect which in the Administrator'sjudgment mayreasonably be anticipate to occur from air pollution orfrom exposures to pollutants in other media, which pollutants originate as emissions to the ambient air), notwithstanding attainment and maintenance ofall national ambient air quality standards[.]

42 U.S.c. 

### § 7470(1). On its face. the breakdown exemption automatically allows sources ofair pollution to avoid "protection ofpublic health and welfare," contrary to the CAA. as well as the rights ofthe general public. The breakdown exemption thus fails to ensure compliance with the CAA by allowing an automatic exemption in relation to compliance with, among other things. PSD.

6In 1978, EPA adopted an excess emissions policy which considers 

### all periods ofexcess emissions to be violations ofthe 

### CAA In subsequent EPA policy statements. CAA interpretations. guidance documents, and administrative rules and orders, EPA has consistently and clearly reaHirmed that position. See Mich. Dep't ofEnvtl. Quality v. Brow11er, 230 F.3d 18L 183 (6th Cir. 2000) (citing 42 Fed. Reg. 21,472 (Apr. 27, 1977»; see also Memorandum

trom Eric Shaeffer, Dir., Office ofRegulatory Enforcement, and John S. Seitz, Dir., Office of Air Quality Planning and Standards, to Reg'l Adm'rs, Regions I-X (Dec. 5,2001); Memorandum from Steven A. HeI111an, Assistant Adm'r for Enforcement and Compliance Assurance, to Reg'l Adm'rs, Regions 

### I-X (Sept. 20,1999); Memorandum from KathleenM. Bennett, Assistant Adm'1' for Air Noise, and Radiation, to Reg'l Adm'rs, Regions I-X (Sept. 29, 1982). EPA has also stated that automatic exemptions will not be allowed. Memorandum from 

### Kathleen M. Bennet1, Assistant Adm'r for Air, Noise, and Radiation, to Reg'l Adm'rs, Regions I-X, 1 (Sept. 28, 1982). An atTirmative defense may be permitted only with respect to penalties, 110t to injunctive relict: and only when no single source or small group ofsources has the potential to cause exeeedance ofNAAQS or PSD requirements and whenthere is no violation of federally promulgated performance standard or emission limitation. In those cases. a state director must exercise his orher enforcement discretion and cannot avoid that case-by-case obligation by allowing an automatic exemption. EPA's policy ofidentifying all excess emissions as CAA violations and its disallowance ofautomatic exemptions is consistent with the CAA. SlPs protect ambient-based standards. Approval and Promulgation ofState Implementation Plans; Michigan 63 Fed. Reg. 8573, 8575 O:\.?b. 20, ]998). Emissions above the allowable limits may cause or contribute to violations of

tht: NAAQS and are therefore illegal and inexcusable. ld. EPA has determined that ifthere are

7circumstances preventing sources from complying with the SIP during breakdowns. t11cn the State must address these problems in the underlying rules applicable to those particular sourCeS and "not through overarching excess emission provisions." ld. (emphasis added). As the Fll/\ has plainly stated:

The CAA does not allow for automatic exemptions from compliance with**al212..lli:ab~.5JP** emission limits during periods ofstart-up_ shutdown. malfunction or**upset~** ....

### '1'0 the extent that a malfunction provision, or any provision giving substantial discretion to the state agency broadly excuses sources from compliance with emission limitations during periods ofmalfunction or the like, it is the Agencv's position that it**~b** 

### ..ould not bG approved as part ofthe federallv approved SIP.**~~~** //1 !he Moller oj.i1o!iv{/Enterprises /JC', Pctition !1

..:2002-0) (September 24.200.1'1. ,1\ 17 (emphasis added). Breakdowns typically result from equipment failure or improper maintenance and as such, can result in excess emissions. EPA has specifically stated that it "has a fundamental responsibility under the Clean Air Act 

### to ensure that SIPs provide 

### for attainment and maintenance of1.he NAAQS and protection ofPSD increments. Thus, a provision that \\ould undermine the fundamental requirement ofattainment and maintenance ofthe NAAQS or any otherreqLlirement ofthe Clean AirAct," is illegal. Memorandum from Steven A. Hcnmm. Assistant Adm'r for Enforcement and Compliance Assurance, to Reg'l Adm'rs, Regions 

### I-X. J (Sept. 20. 1999) (citing 42 USC 

### § 74] O(a) and (] )}. Pursuant to Section I 1O( i), EPA rnay not 

### approve a SIP revision if'"thc revision 

### vvould interfere 

### with any applicable require-menl concerning attainment and reasonable further progress, or any other appiicahic requirement of this chapter:' ld.



### 8

### b. The .EPA Agrees Utah's Breakdown Exemption Violates the Clean Air Act Further supportingthe SIPrevision is the fact that the EPA has stated on several occasionsthat Utah's breakdown exemptionviolatesthe CAA. The EPA has urged SIP revision since at least 

### 2002. 3 

### In late 

### 2002, the State ofUtah even conm1itted to revising the breakdown exemption. See 67 Fed. Reg. 78185. Since that time, the EPA, the State ofUtah, and industry representatives attempted to revise the exemption to ensure protection ofairquality and compliance with the CAA, but with no success. In an October 22, 2004 letter, the EPA commented. albeit negatively, on a State ofUtah proposal to revise 

### R307-1 07. Then EPA Region 

### 8 Directorofthe Air and Radiation Program. Richard L()ng, stated:

We appreciate your etlorts to develop a rule to address concerns we have previouslY raised \vith the state's "Unavoidable Breakdown" rule. Unfortunately, ourpreliminary review ofthe proposed rule indicates that it is not approYable as a state implementation plan (SIP) revision.

Memorandum from Richard R. Long, Region

### VIII Dir., Air and Radiation Progran1 to Rick Sprott. Division ofAir Quality Director. Utah Division ofAir Quality (October 

### 22, 1004) (emphasis added). Sce 

### Exhibit 1. 

### The EPA has continued to express on a number ofoccasions its concern over the breakdown exemption, particularly as it has been included in airpollution permits. Forexample. in comments on 

### a proposed air pollution pennit for a powerplant in Utah County. the EPA stated in 

### 2004:

The State should remove ITA [intent to approve] Condition #23, which references the State's unavoidable breakdown rule. Utah has been advised on a number ofoccasions

, It is important to note that, although EPA has urged a revision ofthe Utah SIP with regards to the breakdown exemption, the agency has never "required" a revision ofthe Utah SIP with regards to the breakdown exemption, thereby necessitating this citizen petition.


### 9

### that the wlavoidable breakdownrule is not consistent with EPA interpretation ofthe Clean Air Act. Utah has committed to work to address EPA concerns with a SIP revision. Including a reference to the unavoidable breakdown rule in this pennit. and in any future permits, may have the effect ofcodifying the rule as part ofthe pennits even though Utah and EPA are working together to revise the rule. To ensure that permits do not provide inappropriate exemptions from emissions limitationsthat cannot be changed later, and in light ofthe fact that the unavoidable breakdown rule cUlTently applies whether or not it is referenced in the permits, the reference ot that rule should be removed from the ITA

.

.Comments from Richard R. 

### Long, Region VIII Dir., Air and Radiation Program to Rick Sprott, Division ofAir Quality Director, UtahDivisionofAir Quality (December 9,2004) (emphasis added). See 

### Exhibit 2. The EPA has echoed virtuallythe same comments on other occasions. On August 2, 2006 for example, the EPA commented ori a proposed permit for a cement plant in Morgan County:

Utah has been advised on a numher ofoccasions that the unavoidable breakdown rule is not consistent with EPA's interpretation ofthe Clean Air Act and thatthe rule should not be referenced in Utah'spermits. Also, under EPA's interpretation ofthe Clean Air Act. PSD BACT [best available control technology] limits apply at all times. PSD BACT emission limits in the pennit cannot be subject to this or any other exemption.

Comments from Richard R. Long, Region VIII Dir., Air and Radiation Program to Rick Sprott, Division ofAir Quality Director, Utah Division ofAir Quality (August 2, 2006) (emphasis added). See 

### Exhibit3. Although the State ofUtah committed to revising the breakdown exemption, it has yet to do so. And, while the EPA has stated that the breakdown exemption is inconsistent with the CAA, the EPA has yet to issue a SIP call. Given EPA's clearly stated positions and recommendations. as well as the State ofUtah's footdragging, there is no reason for the Administrator to delay requiring revision ofthe breakdown exemption.



### 10

### c. A 

### Reasonable Path Fonvard Exists Finally. revising the breakdown exemption is all-the-inore appropriate in light ofthe fact that a reasonable and acceptable alternative to the currentrule exists and has been adopted by the State ofColorado. Colorado'srule enjoyed broad-based, consensus support from polluters, puhlic interest organizations. and numerous citizens. The rule was passed unanimously by the Colorado Air Quality Control Commission and is slated to be approved by the 

### EPA in 2008. 

### A copy ofthat rule is at1ached hereto as Exhibit 4 along with the Statement ofBasisfor the rule. The State ofColorado rule, which addresses excess emissions during malfunctions, makes clearthat a source will not be held liable for civil penalties in the event ofa malfunction. The rule also preserves liability in cases ofinjunctive relief, but relies on enforcement discretion

to determine the appropriate course ofaction to address any liability. Furthermore, the Statement ofBasis makes clearthat excess emissions resulting from malfunctions are not necessarily reported as "violations" to the 

### EPA. And it cannot be repeated enough that the rule was developed and adopted based on consensus. Ifthe State ofUtah were to revise the breakdown exemption using Colorado's malfunction rule as a model. it would enjoy support from polluters, citizens, and the 

### EPA. It is a reasonable course ofaction to take in light ofthe pressing need to ensure Utah's SIP is consistent with the CAA, 

### and to ensure protection ofair quality, including theNAAQS and PSD increments.

CONCLusrON 

### EPA is Llmhorized to require the States to revise their SIPs to correct for inadequacies Section '110(k)(5) 

### ofthe CA/\. states: "Wheneverthe Administrator finds that the applicable



### 11

### implementation plan for any area is substantially inadequateto attain or maintainthe relevant national ambient air quality standard,

... orto otherwise comply with any requirement o1'thi5 chapter, the Administrator shall require the State to revise the plan as necessary to correct Jar 

### such inadequacies." 42 USC 

### §741O(k)(5). The Utah breakdown exemption in its present form is clearly inadequate and inconsistent with the CAA. Accordingly. it must be revised. A reasonable course ofaction would be to use Colorado'5

### malftmction rule as a model for Utah. Should the EPA fail to require revision ofthe Utah Regulations with regards to the breakdown exemption within sixty days. Rocky Mountain Clean AirAction will consider such delay unreasonable.

12

### Dated this 31:il day ofDecember, 2007.

Respectfully submitted,

Jeremy Nichols Rocky Mountain Clean Air Action 1536 Wynkoop, Suite 302 Denver, CO 80202 (303) 454-3370 

### rmc**~~lm~jr!(['i.!.nlail.corl}** 

### Cc: Robbie Roberts, Regional Administrator EPA, Region 8 999 ]8th 

### St., Suite 200 Denver, CO 80202 Cheryl Heying, Director Utah Division ofAir Quality PO Box 144820 Salt Lake City. UT 841 14

13

### EXHIBITS TO PETITION 1. Memorandum from Richard R. Long, Region VIII Dir., Air and Radiation Program to Rick Sprott, Division ofAir Quality Director, 

### Utah Division ofAir Quality (October 

### 22,2004); 2. Comments from Richard

## R. Long, Region 

### VIII Dir., Air and Radiation Program to Rick Sprott Division ofAir Quality Director. t;tah Division ofAir Qualit) (December 

### 9,2004); 3. Comments fr0111. Richard R. Long, Region VlII Dil'., Airand Radiation Program to Rick Sprott, Division of

### Air Quality Director, Utah Division 

### ofAir Quality (August 2, 

### 2006). 4. Colorado Malfunction Rule and Statement ofBasis.



### 14rI'l'**t")C..~I~t**



### UNITED .STATES 

### ENVIRONMENTAL PROTECTION AGENCY REGION 8 999 18TH STREET • SUITE 300

DENVER, CO 8020,2·2466 Phone 800·227-8917 http://www.epa,gov/region08 

## OCT 22 

# m

Ref: 8P-AR Rick 

### W. Sprott,Director Utah Division ofAir Quality p,O, Box 144820 Salt Lake City,

# m 84114-4820 RE: ATTN: Excess Emissions and Reporting DearMr. Sprott: I am writing to provide comments on theproposed new rule R307-107, General Requirements: Excess Emissions and Reporting. Weappreciate your efforts to develop a rule to address concerns we have previouslyraised with the state's "UnavoidableBreakdown"rule, Unfortunately, our preliminary review ofthe proposed rule indicates that it is not approvable as a state implementation plan (SIP) revision. Our comments are contained below and in the enclosureto this letter. Please include these comments in yourrulemaking record. We have several main concerns with the draft rule, as follows: 1. 

### Inmore than oneplace, the draft rule provides that the affirmative defense couldbe asserted to establish that excess emissions do not constitute a violation. This is not appropriate because it is not consistent with the requirements ofthe CleanAirAct. Any rule ofthis nature must be clear that all excess emissions constitute violations, and that the affimlative defense is available only for penalties and not for injunctiverelief. The draft mleisnot clear on this point and it mustberevised 2, The draft rule**(R307~** I07-2(4)) provides tlIat the executive secretary detennineswhether an affirmative defense has beenestablished. Thisprovision mightbeconstrued to mean that the decision ofthe executive secretaryis binding on EPA and citizens. This provision is inconsistent with the structure ofthe Clean AirAct, which allows independent EPA and citizen enforcement ofviolations, regardless ofthe state's decisions in exercisingitsenforcementdiscretion, The draft rule mustbe revised to address this coneenl.



# II)

. " Printed on RecycledPaper3. The draft ruleprovides an affirmative defensefor excessemissions during scheduled maintenance. This is inappropriateunder the Clean AirAct because sources should be able to schedule maintenance that might otherwise lead to excess .emissions to coincide with maintenance ofproduction equipment orother facility shutdowns. The incentive to use appropriate scheduling/practices to avoid excess emissions during scheduled maintenance shouldnot be**diminish~** byproviding an affirrnative defense. 4. Thedraftrule includes a provision (R307-107-2(

# 5» regarding the exercise of enforcementdiscretion bythe executive secretary or the board. We agree that even when the affirmative defensemight not be available to a source, the executive secretary and board have discretion to refrain from pursuing an enforcement action or to evaluate a range ofpenalties. However, this section ofthe rule must be clearthat the executive secretary's or board's decision whether ornotto pursue an enforcement action, or regarding the appropriate amount ofpenalties, does not bind EPAorcitizens. 5. The draft rule provides (at R307-l07-2(1» that it applies to all sources except where emission standards, limits, orperfonnance standards for malfunctions, scheduled maintenance, startup, or shutdown arcidentified in a specific rule, approval order, or permit. From one standpoint, this provision makes sense - there is no need to provide the reliefofan affmnativc defense when the app1icable standard includes an exemption or speciallydesigned limit for startup, shutdown, ormalfunction conditions. Forexample, 

### many new source performance standards (NSPS) limits do not applyduring startup, shutdown, or malfunction. From another standpoint, however, this provision is overlybroad because it could be read to mean that less stringent affirmative defense criteriaoroutright exemptionsestablished in a staterule, approval order, orpennitwould take precedence overthe requirements of R307-l07-1, 2, and 3 and not protect the national ambient air quality standards (NAAQS) orincrement. Accordingly, R307-107-2(1) mustberevised as indicated in the enclosure to this letter. 6. Thedraftrule'uses the concept of"good industrypractice." This is not an appropriate standard for measuring owneroroperator actions, as good industrypractice might not always be adequateto meet the requirements ofthe Clean Air Act. The above concerns, along with others, are discussed in the enclosure to this letter. The enclosure suggests language to revise the rule so that all ofour concerns are addressed. We do not believe we will beable to propose approval ofthe draft newrule as a SIP revision unless all the concerns are addressed. Please note that this letter and the enclosure contain our current views based on a preliminary review ofthe draft rule. These views should not be considered our final position.,

2

### which we will only

### reach through notice and

### comment rulemaking after the statehas submitted a 

### rule for our approval as aSIP revision. Please contact me, orhave your staffcontactLaurie Ostrand, ifyou have anyquestions regarding this letter. We can both bereached at (800) 227-8917.**:in** 

## ( d Rich

Enclosures

cc: Cheryl Heying, UDAQ Fred Nelson, UDAQ rely,



### Air and RaJ**---~**

3Enclosure EPA Comments on Excess Emissions and Reporting Rule, R307-107

1. Thc draft rule confuses the concept ofan affirmative defense withthe concept of enforcement discretion. Bydefinition an affirmative defense is a defense that maybe raised in the context ofan enforcement proceedingbefore an independent trier offact. Beforepursuing an enforcement action, the state might evaluate the likelihood that an owner/operator could prove the elements ofthe affirmative defense, but this would go to the state's exercise ofenforcement discretion. While the statemight decide not to pursue an enforcement action based on such an evaluation, ifEPA or citizens were to pursue enforcement action, an independent trier of [act might reach a conclusion different from the state's

- i.e., that the owner/operator had not proved the elements ofthe affirmative defense. We want to ensure that the independent enforcement discretion ofEPA and citizens under the Clean Air Act is preserved. Accordingly, Utah's rule must make clearthat all excess emissions arc violations, and that a state decision not to pursue enforcement action does not bar EPA or citizen enforcement ofthe applicable requirements. The otherreason it is appropriate to define all excess emissions as violations is to ensure that owners and operators have appropriate incentives to properly design, operate, and maintain their facilities. The goal is continuous compliance with emissions limits so as to protect the national ambient air quality standards (NAAQS) and other Clean AirAct health and welfarebased standards. Formore discussion ofEPA's views related to this principle, please see the enclosed September 20, 1999 EPA memorandum from Steven 

### A. Hennan and Robert Perciasepe to Regional Administrators entitled "State Implementation Plans: PolicyRegarding Excess Emissions During Malfunctions, Startup, and Shutdown" and April 27, 1977 and November 8, 1977 Federal Registernotices on the same topic. Consistentwith the foregoing, we recommend the following changes to enable us to propose approval ofthe rule:

a. Revise the definition ofaffirmative defense at R307-107-1(2)(a) as follow's: "AflinnativeDefense" means, in the context ofan enforcementproceeding for an excess emissions incident, a response or defense put forward by a source for the purpose ofestablishing that the violation should not be subjectto penalties, regarding whichthe source has the burden ofproof, and themerits ofwhieh are independently and objectively evaluated in ajudicial or administrative proceeding fer the pmpose ofestablishing ti1"t the incident does 110t constitute a "iolatiOlI. b. Delete**R307~** 107-2(4) orrevise it as follows:

### ill EnforcementDiscretion. 

### In determining whether to pyrsue

## M enforcement action for a particularexcess emissions incident, theexecutive secretary may considerthe likelihood that the source wouldbe able to provethe elements ofthe affinnative defense as d&scribed in subsections (2) and (3)**aQQv~,** A decision bv the executive secretaryto not pursue enforcementfor

### an incidentis not intended to bar or otherwise affectthe enforcementrights ofEPA orcitizens 1!!1der the Clean Air Act.

c, Delete orrevise R307-107-2(5) because it suggests thatthe affinnative defense dctcnnination is madebythe executive secretaryand that this detennination precedesenforcementaction. 

### Ifyou wish to revise this subsection, augmentthe above language for R307-107-2(4) as follows: (±l Enforcement Discretion. In determiningwhetherto pursue an enforcement actionfor a particular excess emissionsincident. the executive secretary mav consider the likelihoQd thatthe source wouldbe ableto provethe elements ofthe affirmative defense as described 

### in subsections (2) and (3) above. The executive and the board retain discretion to considerall relevant information in determining whether to pUI]ue anenforcement action. and considerationof such infonnation and the penalty policy oftbeboardina given instance could result ina determination ofno penaltiesorupto the maximwn penalties, depending on the circumstances. A decision bythe executive secretary or the boardto notpursue enforcement for anincident, ora decision by eitherthe exeeutive secretaryor the board regardingpenalty amount. is not intendedto bar orotherwiseaffectthe enforcement

### riehts ofEPA orcitizens under the CleanAir Act. d. Dclete from RJ07-1 07-2(2) the phrase "unless theincident qualifies for an affirmative defenseunder this subsection, R307-107·2(2)." All excess emissions constitute violations; thus, the "unless" clauseis not appropriate.

c, Delete from R307-107-2(3) thephrase "unless the incident qualifies for an affirmative defense underthis subsection, R307-107-2(3)." All excess emissions constitute violations; thus, the "unless"clauseis notappropriate. 2. The draft new rule allows an affirmative defense for excess emissions during "scheduled maintenance." InEPA's view, it is not appropriate underthe CleanAirAct to provide an affirmative defense for excess emissions during maintenance activities. Among otherthings, an owner or operator should be able to schedule maintenance thatmightotherwise lead to excess emissions to coincide with maintenance on production equipmentorduring other facility shutdowns. It is not appropriate to provide anyincentive to owners or operators, inthe fonn of an affirmative defense to penalties, to schedule maintenance on control equipment while they

2continue to**opcn~te** production processes. 

### In this regard, you should note that our September 1999 policydoes not discuss allowing an affinnative defense for excess emissions during maintenance activities. This omissionwas intentional and based on ourinterpretation ofthe Clean Air Act that any excessemissionsduring maintenance activities shouldbe addressed only through the exercise ofenforcement discretion and not through theprovision ofan affirmative defense. Forfurther discussion ofhowwe view maintenance activities, see the enclosed April 27, 1977 and November 8, 1977 Federal Registernotices. Before we couldpropose to approve the draft new rule, (1) "Scheduled Maintenance" would have to be removed from the section title ofR307-107-2; and (2) all references to "scheduledmaintenance"would have to be removed from R307.107-l(l), R307-107-2(1), (3), (3)(a), (3)(e), and R307-107-3(3), and any otherlocations these words appear. 3. R307-107-2(1) is inconsistent with Clean Air Act requirements. Thcprovisionreads: "R307-107-2 is applicable to all sources except where emission standards, limits, orperformance standards formalfunctions, scheduled maintenance, startup, orshutdown are identified in a specificrule, approval order, orpennit,to includenew sourceperfonnance standards (NSPS), and national emissions standards for hazardous airpollutants (NESHAPS), or other federal performance standards." To the extent this provision indicates that the affirmative defense is not available for exceedances ofNSPS, NESHAPS, orotherfederal perfonnance standards, we agree with it. There is no reason to provide the reliefofan affirmative defense for these federal performance standardsbecauseEPA setthese standards taking into account technological limitations. While there are federal standards that contain exemptions orspecify special limits for startup, shutdown, and/or malfunctions, there are other federal standards that apply atall times, including during startup, shutdown, and malfunction. For example, the S02 limit for IndustrialCommercial-Institutional Steam GeneratingUnits at 40 CFR 60.42h contains no exception or special limit for startup, shutdown, ormalfunction. Toprotect the integrityofthese federal performance standards, any affirmative defenserule must not applyto such performance standards orto SIP provisions thatdcrivc from such federallypromulgated perfOml3llCe standards or limits. The rule must be revised to fully address this concern. The reference to otherrules, approval orders,.andpermits is overlybroad. It could be read Lo mean that separate affinnative dcfensecriteria could be establishedin a rule, permit, or approval order. We do not want to be in the position ofinadvertently sanctioning, through our approval ofthis provision, affirmative defense provisions adopted in othercontextsthat are less stringent than what is necessary to ensureprotection ofthe NAAQS, increments, etc. Thus, before we couldpropose approval, any allusion to otherrules, approval orders, orpermits would have to benarrowed considerably. To address the concerns we express above; thc language should be revised as follows:

3"R307-107-2 applies to all emissions limitations or standards except that the affirmative defense containedherein isnot available for violations ofthe following: (a) New source performance standards (NSPS), national emissions standards for hazardous airpollutants (NESHAPS), acid rain limits, orotherfederally promulgated performance standards orlimits, orSIP provisions derived from such standards or limits. (b) Emissions limits with an averaging time greater than 24hours. (c) Best available control technology (BACT) [underprevention ofsignificant deterioration (PSD)] or lowest achievable emission rate (LAER) limits. (d) Emissions limits that already include special treatment for startup, shutdown, and malfunction conditions. (e) Emissions limits where it is apparent that no special treatment for startup, shutdown, and malfunction conditions was intended oris appropriate (for example, wherethe language ofthe limit specifies that it applies at all times.)" 4. While the draft rule includes many ofthe affIrmative defense elements that are necessary to meet the requirements ofthe Clean Air Act, the draft rule contains a number ofprovisions that will undermine compliance with Clean Air Act requirements and thatrequirerevision, as described below:

a. The definition ofmalfunction at R307-107-1 (2)(c) indicates that it is a sudden failure ofaprocess, process equipment, or airpollution control equipment to operate in anormal or usual manner. The definition ofmalfunction needs to include the concept that not only is it a "sudden" failure but also an "unavoidable" failure. EPA has long held that a malfunction is a "sudden and unavoidable failure." See definitIon of"malfunction"promulgated for the Kennecott smelter complex at 40 CPR 52.2325(e)(2)(ii) on April 27, 1977; EPApolicies dated September 28, 1982 and February 15, 1983, both entitled "Policyon Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions"; EPA's J999 policy mentioned above; and the definition ofmalfunction in the NSPS regulations at 40 CFR 60.2. To enableus to propose to approve the draft new rule, the definition of malfunction at R307-107-1(2)(c) should be revised to read: "Malfunction: means a sudden and unavoidable failure ofa process, process equipment, orairpollution control equipment to operate in a normal orusual manner." b. The second sentence ofR307·107-2(2) maybe read to broaden the affirmative

4defense to somethingin addition to penalties and includes the undefinedphrase "otherproceeding." Based on ourinterpretation ofthe Clean AirAct, it is only appropriate to approve an affirmative defense to penalties and to limit the application ofthe defense tojudicialor administrative enforcementproceedings. Therefore, to enableus to propose approval, this sentence shouldberevised as follows: "The owner or operator ofa sourcewith emissions in excess ofan applicable emission limitationdue to malfunction shall have an affirmative defenseto penalties, but not injunctive relief, in ajudicial or administrative enforcement action, providedthe owner or operatorofthe sourcehas demonstrated all ofthe following:" The corresponding sentence in RJ07-107·2(3) should be changed accordingly.



### c. Thereference to "good industrypractices" inR307-107-2(2)(b) and (3)(a) is not appropriate. While the term "good airpollution control practices for minimizing emissions"is contained in theNSPS and has been the subject of judicial and administrative interpretation., we are not familiar withthe term "good industry practices." We are concerned that it mayencompass actions that maynotbe sufficientlyprotective ofthe

### NAAQS and increments. Furthermore, the idea behind these provisions isthatthe affIrmative defense should onlybe available if a sourcehas done 

### all it 

### cantopreventthe excess emissions. Likewise, the language regarding the exercise ofgood air pollution control practices inR307­ 107-2(2)(c) and (3)(d), should embodythe notionthat all stepsweretaken and should not betempered byreference to general industry adopted practices. Similarly, the language inR307-107-2(2)(e) and (3)(e) mustrequire maximum effort onthe part ofthe sourceto minimize emissions. Accordingly, to enable us to propose approval, these provisions should be changed consistent with the following: RJ07-107-2(2): (b) The excess emissions did not stem from any activity orevent that could have been foreseen, avoided, orplanned for, 

### and could not havebeen avoidedbygood better design, operation, and maintenance consistent**~ith** good illdttstry practices. (c) To the maximum extent practicable. Thethe 

### airpollution control equipment or processesweremaintained andoperated in a manner consistentwith goodpractice for minimizingemissions, including sttch as manufacturers'recommendations. and general illdtlshy adopted ptactices. (e) The amountand duration ofthe excess emissions (including anybypass of control equipment) were minimized to the maximum extentpracticableduring periods ofsuch emissions.



### 5

### In RJ07-107-2(3): (a) Excess emissions that occurred during scheduled maintenance, startup or shutdown were short and infrequent and could not havebeen prevented through careful planning and design consistent 

### with good i:ndnstlj' ptaetices. (d) At all times, the facility was operated in a mannerconsistent with good practice for minimizing emissions, such as includingmanufacturers' recommendations mld general indusuy adoptedptactices. (e) The frequency and duration ofoperation in scheduled maintenance, startup or shutdown modewere minimized to the maximum extent practicable. 5. To assureprotection ofthe NAAQS and increment, the affinnative defense provisions for startup, shutdown and malfunction should also contain provisions that limit the affinnative defense to areas and pollutants where a single source or small group ofsources does nothave the potential to cause an exceedance ofthe NAAQS orPSD increments. This wouldbeconsistent with our 1999 policy. 6. R307-107-3 contains the reporting and recordkeeping requirements. We are also concerned that the reporting requirement only applies to excess emissions lasting two hours or longer. 

### It would be helpful ifyou could explain to us your thinkingbehindthis provision, keeping in mind that there couldbe instances in which excess emissions lasting less than two hours might be particularly egregious, part ofarecurring pattern, orcomprisenumerous violations. (For example, in a two hour period, you could have 20 violations ofan opacity standard.) Are there otherreporting requirements that would still apply to all excess emissions?

6UNITED STATES El\TVIRONMENTAL PROTECTIONAGENCY REGION 8 999 ISTH STREET- SUITE 300

DE1'.TVER, CO 80202-2466 Phone 800-227-8917 http://www.epa.gov/region08 December 9, 2004 Ref: 

### 8p·AR Rick Sprott, Director Division ofAir Quality Dept. ofEnvironmental Quality P.O. Box 144820. Salt Lake City, UT 84114-4820 Re:

. Comments on Intent-to-Approve for Summit Vineyard LLC, Lake SidePowerPlant DearRick: This is to submit comments on the Intent-to-Approve (ITA), DAQE-IN3031001-04, for the above-named project. Theproject is described in the ITA as a 560megawattnatural gas fired electrical generating plant. The main pollutant-emitting equipment will consist oftwo combustion turbines with heat recovery steamgenerators. Theproject is a newmajorsource to belocated on Geneva Steel propertyinthe Utah CountyPMlO nonattainment area. Thepublic commentperiod expired on the ITA onNovember 24, 2004. Since we did not receive a copy ofthe pennit application and the State's New Source Plan Review (NSPR) illltil well into the comment period, we sent you a letter on November 24, requesting a two-week extension ofthe comment period. We were later infoImed by Mr. John Jenks ofyour staffthat the Statewill agree to look at andrespond to ourcomments. EMISSION OFFSETS: 1. The NSPR should discuss emission offsets. and offsets should be required in the final Approval Order. This comment is similar to a comment we made on July 

### 1, 2004 on the proposed Calpine peImit in Utah. Since this pennit action is for a new major source in a nonattainrnent area, emission offsets are required. The permit application for Summit indicates (on page 6-18) that emission offsets of 113 tons/yr ofPMIO, 160 tons/yr ofNO

### x, and 31 tons/yr of S02 are required for this project, and that these offsets will be obtained from Geneva Steel. These figures appear to be 1.2 times the potential emissions listed in the ITA, which implies the applicable offset ratio is 1.2. The NSPR says nothing about emission offsets being required for this project. The ITA abstract says only that the applicable emission offset ratio is 1.2, and liststhe amount ofrequired offsets for eachpollutant (PM10, S02 andNO,,). The abstract does not say whether the required offsets have been obtained. Also, the ITA does not include any requirement to obtain offsets. ITA Condition #14 contains a sourcewide emission limit for combined emissions of PMlO, S02 and NOl(' This appears to be a requirement to keep actual emissions below the offset baseline. Ifso, then this requirement should be expressed on a pollutant-specific basis, not the combination ofthreepollutants. (See second paragraph ofcomment #2 below.). For clarity, particularly for a major source nonattainment NSR permit like this one, it is important that the ITA abstract and NSPR describe the source and amounts of the required offsetting reductions from Geneva Steel shutdown credits and specifically describe how the offsets meet relevant requirements that they be surplus, actual, and federally enforceable at the time the pennit is issued. (See section 173(a) ofthe CAA, 42 U.S.C. section 7503(a).) Our comment letters on other major NSRproposed pennits in Utah's PMIO nonattainment area (e.g., Calpine and Gadsby) outline why it is necessary for offsetting reductions to be in tenns ofactual emissions. Also, the [mal Approval Order should include a requirement to obtain and hold offsets sufficient to satisfy Utah regulatory requirements for offsets in the PMlO nonattaimnent area. ITA Condition#14, discussed above, does not serve this purpose. 2. No explanation why emission offsets required for this project will provide a positive net air quality benefit. Utah's SIP-approved regulations, at R307-1-3.3.2.C.(4) (now codified by the State at R307-403-3(3)(d», require that "the emission offsets provide a positive net air quality benefit in the affected area of nonattainment." We could frod no explanation in the NSPR, nor in the State's August 27, 2004 modeling memo, how this requirement 

### will be satisfied. We view this requirement as separate and independent from the requirement in Utah's SIP-approved regulation R307-1-3.3.3.B.(2) (now codified by the State at R307-403-5(1)(b») to obtain 1.2-to-1 offsets. The Clean Air Act requires that emissions increases in each ofthe individual pollutants be offset by reductions in the same pollutant. The one exception is that an increase in a PMlO precursor (S02 or NO,,) could be offsetby a reduction in primary PM 10. It is our understanding, from prior communications with your office, that Utah is generally implementing its SIP consistent with our interpretation. Accordingly,

.the approval order and corresponding analysis should delineate the required offsets by individual pollutant. (We made this same comment on July 1, 2004 ontheproposed CalpinepermitinUtah.)

. . BESTAVAILABLE CONTROL TECHNOLOGY(BACT)! LOWESTACHIEVABLE CONTROLTECHNOLOGYQ..,AER): Tables Ill-I and ill-2 in the NSPR are very useful, by summarizing the BACT/LAER determinations, for each pollutant and emission point, along with a breakout by pollutant of whether BACT is required or LAER is required. However, there are a number of issues 2regarding these determinations, as explainedbelow. 3. The proposed LAER emission limit of 2.0 ppmdv for NOx at the com.bustion turbines should be on a one·hour average rather than a three·hour average. This comment is very similar to a comment we made on July 1,2004 on the proposed Calpine pennit in Utah. ITA Condition #9 proposes a NOx emission limit of2.0 ppmdv on a 3-hour average. As part of our own evaluation ofthe adequacy ofthis limit and averaging time as LAER, we examined EPA'snational combpstion turbine project spreadsheet, at: www.epagov/region04/air/pennitslindex.htm The spreadsheet listed some determinations for NOx at 2.0 ppmdv on a I-hour average, for projects involving four different turbine manufacturers, all with selective catalytic reduction for :"JOx control. One such detennination was in Connecticut (Towantic Energy Project) and four were in Massachusetts (Fore River Station, ANP Bellingham, ANP Blackstone, and Cabot Power). Although the spreadsheet did not indicate whether the detenninations were BACT or LAER, we contacted EPA Region I and learned that these were all LAER determinations. The NSPR for the Summit project in Utah acknowledges that ANP Blackstone has been operating under the 2ppm NOx emission limit since June 2001. This would seem to indicatethat 2 ppm on a I-hour average has been achieved inpractice. Also, EPARegion 9'srecently issued Federal PSD permit, for the same manufacturer and model ofturbines and associated NOx controls as Summitproposes to use 

### inUtah, specifies 2.0 ppmdv on a I-hour average as PSD BACT. Since LAER can reasonably be construed to be at least as stringent as BACT, as defined in Utah air regulations, we recommend that the LAER determination for NOx be at least as stringentas 2.0 ppmdv on a I-hour average. We did not find anyinformation inthe NSPRjustifyinga 3-houraveragerather than a I-hour average 4. BACT emission limit should be established for the combustion turbines for volatile organic compounds. This comment is very similar to a comment we made on July 1, 2004 on the proposed Calpine permit in Utah. No BACT emission limit for VOC from the combustion turbines is proposed in the ITA, even though the NSPR (on page 24) proposes a VOC emission limit of2.0ppmdv on a 3-hour average. Utah's SIP-approved air regulations, at R307-1-3.1.8.A (now codified by Utah at R307-401(6», require aBACT determination for all emissions at a new source, except as otherwise provided in RJ07. Federal PSD regulations, at 40 CFR 51.166U)(2), require BACT for each regulated air pollutant that a new majorstationary source would have the potential to emit in significant amounts. Since SIP-approved PSD regulations must be at least as stringent as 51.166, we interpret R307-40I(6) to be at least as stringent as 51.166(j)(2). VOC is listed in R307-IOl-2 (in reference to ozone) as one of the pollutants for which a PSD significance level has been established. The NSPR and ITA both indicate the potentia1-to-emit for VOC from this project is 72.8 tons 

## per year, which exceeds the PSD significance threshold in R307-10l-2 of40 tons per year. Therefore, we interpret Utah regulations to require that a BACT emission limit. be established for VOC emissions from this project. To bolster the record for the BACT deter3mination, the NSPR should provide some specific citations to values in the RACTIBACT/LAER Clearinghouse, as well as any values from the national combustion turbine project spreadsheet (seewebsite above) that the Statemight beusingin the analysis. With regard to monitoring for compliance with a VOC emission limit, periodic VOC stack tests should be required. Your office'has been considering use ofthe continuous emission monitoring system (CEMS) for CO instead, as a surrogatefor direct measurement ofVOC at new combustion turbines. This approach would only be acceptable ifa reliable correlation could be established between VOC and CO emissions. After consulting with other EPA Regions on this matter for turbine projects, we find that such a correlation would have to involve a number of VOC emission tests at the facility, simultaneous with CO emission measurements via CEMS. A simpler approach would be to just require periodic VOC stack tests, without attempting a VOC/COcorrelation. 

### S. Need for alternate BACTILAER emission limits for periods other than steady state operation has not been adequately justified. ITA Conditions #11 and #12 contain alternate emission limits, as well as duration limits, for periods other than steady state operation at the combustion turbines. The need for these alternate limits has not been adequatelyjustified in the NSPR. EPApolicy on excess emissions, as theyrelate to majorNSRpermits, is stated in a memo dated January 28, 1993, from EPA's Office ofAir Quality Planning & Standards to EPA Region I. The memo available onEPA'sNSRPolicy & Guidance database, accessible via: www.epa.gov/region07/programs/artclJair/policy/search.htm Thememo states, "PSDpennits cannot contain automatic exemptionswhich allow excess emissions during startup and shutdown." Other EPA policy memoranda, dated September 28, 1982; February 15, 1983; and September 20, 1999, as well as EPA's draft NSR Workshop Manual of 1990, are consistent with this view. We have already described the EPA policy memorandain detail, inour comment letters on recent Utahpermit actions for Pacificorp Currant Creek and Intennountain PowerUnit 3 projects. Forreasons explained in thosecomment letters, the policy also applies to LAER emission limits 

### in pennits for new major sources in nonattainment areas. EPA has been willing to entertain the establishment ofseparate LAER and BACT limits for startup and shutdown conditions, but this can only be done based on an adequate record showing that the otherwise applicable limits are not achievable and that the separate startup/ shutdown limits constitute LAER orBACT, as appropriate. The discussion ofalternate emission limits for startup/shutdown, for purposes ofNOx LAER and CO BACT, on pages 44-45 ofthe NSPR, does not adequately make the case. There is no explanation ofhow or why the specific limitations on startup/shutdown (14 hours/day and 613.5 hours/yr per turbine, 744 Ibs/day NOx and 9182 lbs/day CO for both turbines combined) were determined to be NOx LAER and CO BACT. The NSPR only says these conditions are "similar to those being imposed on similar sources elsewhere in the country." 4

### The term "transient load conditions" in the ITA is open-ended and inadequately defined. The term has never' been recognized in EPA policy statements regarding treatment of excess emissions. While it might be possible to consider separate LAER and BACT limits for such conditions, we cannot be certain this would be acceptable, as it is still a matter of policy discussion in the Agency. At any rate, the same considerations and demonstration requirements we stated above for startup and shutdown conditions would apply as well to transient load conditions. The NOx 

### and CO analyses in the NSPR do not explain why the LAER and BACT limits, respectively, for steady state operation are not achievable during·transient load conditions as well, nor why the proposal for alternate requirements during these periods represents LAER and BACT. With regard to PMlO, since there is a relatively long averaging time of24 hours for the emission limit in 

### ITA Condition #9, and sincethere are no PMlO emission control devices for this project, it is not clear why any exclusion from that emission limit should be necessary, for nonsteady-state operation. The LAER analysis in the NSPR says the proposed PMlO emission limit isbased onsulfur contentin the fuel. We are not aware ofwhy non-steady-state operation should have any effect on sulfur content in fuel. Similarly, with regard to VOC, we do not think any exclusion from a steady-state emission limit on a 3-hour average (mentioned above) should be necessary. ForNOx, iftbeConnecticut and Massachusetts nonattainmentNSRpennits, referenced in 

### our comment #3 above; contain no separate LAER detennination for transient load conditions, then the 2.0 

### ppmdv on a I-hour average must be presumed to be LAER without exception for transient load conditions. Also, even ifit can be shown that this I-hour limit is unachievable during transient load conditions, it is not clear to us why any exclusions from the NOx 

### emission limits in Condition #9 would be necessary for transient load conditions, if those limits are expressed on 3-hour averages. EPA Region 9 has infonned us that Calpine sought relieffrom Region 9 for transient load conditions onlybecause Region 9 determined that the NOx 

### emission limit for steady state operation ofthe turbines should be on a I-houraverage, ratherthan a longer averaging time. Also, as far as we know, Calpine did not ask EPARegion 9 for relieffrom the 3-hour CO emission limit for steady state operation due to any transient load conditions, and Region 9's permit does not grant any such relief. Thus the 3-hour CO emission limit in ITA Condition #9 should be achievable even during transient load conditions. There is no apparent reason why special treatment would be warranted. Even ifa showing can be made that separateLAER andlorBACT limits are necessary for startup, shutdo'\VIl, or transient load conditions, appropriate ambient impact analyses must be perfonned for these conditions. Althoughwedid not conductan exhaustive search, we could not find any such analyses intheNSPR, norin the State'sAugust 27, 2004modelingmemo.

5

### 6. The ITA is unclear on when BACT/LAERemission limits applY for PMJO, NO,!, CO and VOC atthe combustion turbines. Even ifitcan beestablished in the record for this permit action that alternate BACT limits arejustified for periods other than steady state operation, ITA Conditions #9, #11 and #12 are not clear onwhen those limits apply. Condition #9 indicates that the ppmdv and lb/hr emission limits for PMlO, NOx and CO in Condition #9, for the combustion turbines, only apply during "steady state operation." The phrase "steady state operation" is not defined in the ITA, nor mentioned at all inthe NSPR. Condition#11 proposes alternate NOx and CO emission limits during "short term excursions," but does not indicate if this means that steady state operation excludes short term excursions (or startup/shutdown as well). Further, it is unclear in the ITA whether the daily emission limits in Condition #9 are intended to serve as alternate BACT addressing startup and shutdown periods (implied on pages 44-45 ofthe NSPR), and whether they apply during all periods ofoperation, including steady state operation, startup, shutdown, malfunctions and transient load conditions. ITA Condition #11 defines short-term excursions as IS-minute periods designated by the owner/ operator that are the direct result of "transient load conditions," not to exceed fOUf consecutive IS-minute periods, and sets alternate BACT limits of 25 ppmdv for NOx and 50 ppmdv for CO for those periods. The transient load conditions apparently include certain portions ofstartup/shutdown events. ITA Condition #12 sets a duration limit of613.5 hours per year, per turbine; for startup and shutdown events, but sets no emission limits applicable during startup Or shutdown. The definition ofstartup in Condition #12 says it is a period oftime during which the combustion turbine is unable to meet the ppmdv emission limits for steady state operation. It is unclear in the ITA whether this implies that steady state operation excludes startup/shutdown. This should be clarified. Also, startup is defined in the Condition #12 as a period extending until the turbine is able to meet the BACT limits for steady state operation. This appears to be circular reasoning; the source is apparently exempted from steady state limits as long as the source can'tmeet those limits. A more direct approach would be to define startup as the period extending until some indicator (e.g., SCR catalyst bed temperature) reaches a level specified in the permit that indicates the emission controls are able to begin functioning effectively. 

### 7. The concept ofLAER is 

### not presented in the proper context in the NSPR Page 

### 13 ofthe NSPR presents the concept ofLAER as step 3 ofthe BACT determination process. This context ignores SIP limits, which are part ofthe definition ofLAER in the Clean AirAct and in Utah air regulations (cited in comment #8 below). The full definition of LAER cited above should be addressed. in this section of the NSPR. Also, for emitting units other than the combustion turbines, the NSPR considers control cost, which is not part of the definition of LAER and should not be used in the analysis. 

### 8. TheNSPRlacks adequate explanation ofhow the LAERemission limit for PM10 

### for the combustion turbines was determined. Table 

### ill-5 ofthe NSPR, along with Condition 9 of the ITA, indicates the proposed LAER determination for PM lO is 10.8 lblhr and 0.01 lblMMBtu, ona 24-hour average. It appears from Table ill-5 that the 10.8 Iblhrwas derived from the "recent average of other deteIminations since 2000," which is listed as 17.4 lblhr, minus the "recent 6standard deviation" of

### 6.6 lblhr. This is not avalid basis for a LAER determination. LAER is defined in Utah's SIP-approved regulations at R307-1-1.85 (now codified by Utah at R307-403-1), as the rate ofemissions which reflects: (a) the most stringent emission limitation which is contained inthe implementation plan ofany state for such class or categoryof source, unless the owner or operator ofthe proposed source demonstrates that such limitations are not achievable, or (b) the most stringent emission limitation which is achieved in practice by such class orcategoryofsource, whichever is more stringent. The NSPR does not discuss LAER for PMJPMIO in these tenus. For example, Table ill-5 lists a "recentminimum" of 1.1 lblhr, but does indicatewhether this emission rate reflects the most stringent SIP limit, orreflects the most stringent limit achieved in practice, orreflects somethingelse. The ITA for the Calpine project in Utah, involving the same manufacturer and model of combustion turbines as for the Summit project, proposed more stringent LAER emission limits for PM10, at 0.00518 IbIMMBtu (without duct burners) and 0.00631 IblMMBtu (with duct burners). No reason has been presented why a less stringent limit is proposed for the Summit project. 9. For the auxiliary boiler and fuel dew point heater, the.NSPR lacks adequate explanation ofhow the BACTILAER emission limits were determined, and the limits were**omitted'~from** the ITA.**~.** NOx: The analysis ofLAER for NOx for the auxiliary boiler and fuel dew point heater begins onpage 28 ofthe NSPR. The analysis fails to address LAER criteria contained. in the Utah SIP and the Clean Air Act, which we have cited above. Based on the analysis presented, we carmot determine whether the proposed emission rate reflects the most stringent SIP limit, or the most stringent limit achieved in practice, or possibly Something else. For example, the analysis rules out ultra-dry-low-NOx control technology, which could reduce NOx at the auxiliaryboiler from 30ppm down to 9 ppm, on the basisthatit is not "cost-effective" and is "complex." These are not valid criteria for a LAER determination. Also, Table 1II-2 ofthe NSPR indicates that the proposed NOx LAERof0.035 IblMMBtu for the auxiliaryboiler and 0.110 IblMMBtu forthe fuel dew point heater are each an "estimated. emission level, not an emission limitation." This is not LAER Bydefinition in Utah airregulations, LAER mustbe an emission limitation. A limit must be included in the ITA. b. PMlO: The NSPR lacks any analysis ofhow LAER for PMIQ for the auxiliary boiler and. fuel dew point heater was determined. Table III-2 ofthe NSPR indicates that the proposed PMlO LAER of0.01 IblMMBtu for the auxiliary boiler and 0.008 IblMMBtu for the fuel dew pointheater are each an "estimated emission level, notan emission limitation." This is not LAER. By definition in Utah air regulations, LAER must be an emission limitation. A limit must be included in the ITA, and an explanation ofhow PMlO LAER was determined must be included in the NSPR.

7

### In Utah's NSPR for the Calpine permit, the LAER analysis for PMIO for the auxiliary boiler mentioned that the most stringent limit found in the RACT/BACTILAER Clearinghouse was 0.001 lblMMBtu. The LAER limit proposed for Summit is ten times greater. While we are aware the auxiliary boiler proposed for Summit will be less than halfthe size ofthe auxiliary boiler proposed for Calpine, there is no explanation in the NSPR for Summit why a limit ten times greater than a limit found in the Clearinghouse for a similartype ofemitting unit should be consideredLAER.

c. CO, VOC 

### and**SO~:** While the NSPR contains a lengthy BACT analysis for the auxiliary boiler and proposes BACT emission limits for CO, VOC and S02, no BACT emission limits are proposed in the ITA. No legal or technical reason has been presented why BACT emission limits should be omitted from the ITA. Table III-2 in the NSPR identifies the BACTILAER control technology for the auxiliaryboiler, for the criteriapollutants 

### in general, as 10w-NOx burners and good combustion practices, but this technology is not expressed as a condition in the ITA, and does not constitute an emission limit. ITA Condition#16 restricts fuel for the auxiliaryboilerto natural gas, but again this is not an emission limit, and 'is not expressed in the NSPR as a control technology for CO, VOC or S02. EPA Region 9's Federal PSD permit for a virtually identical project by Calpine includes emission limits for the auxiliary boiler for PMIO, NOx, CO and VOC, with compliance to be demonstrated via stacktests, Utah should similarly include emission limits for Summit. 

### 10. For the standby generator.llnd emergency fire pump, it is unclear from the NSPR and ITA what the BACT/LAER determination is, and what ITA conditions, if any, are intendedto serve as BACT/LAER emission limits. TheNSPR analyzes BACTILAER for the standby generator and emergency fire pump, for NOx, PM1o, CO, VOC and S02. The NSPR appears to conclude that the "emission levels"proposed 

### inTableIll-2, interms oflblM1vffitu, are BACTILAER. Tables Ill-II and Ill-12 ofthe NSPR suggest that the lb/MMBtu figures were somehow derived from examining RBLC determinations, but leave it unclear how that examination led to the specific lblMMBtu figures proposed in Table Ill-2. For example, LAER applies for NOx and must reflect the most stringent SIP limit orlimit achieved inpractice, yet Tables llI11 and ill-12 indicate a "recent minimum" was found in the RBLC that is lower than what is proposed for Summit. Pages 34-35 ofthe NSPR analyze for BACTILAER,butdo not mentionhowthis analysis might lead to any specific lblMMBtu figures. For NOx, page 34 ofthe NSPR concludes that LAER consists ofproper combustion control. For PMlO, page 35 ofthe NSPR indicates that LAER consists ofinlet air filtering and good combustion control. For CO and 

## voe, page 34 of the NSPR indicates that BACT consists ofgood combustion control. For 502 , page 35 ofthe NSPR indicates that BACTconsists oflimiting operations to 200 hoursperyear. 

### In the ITA, the only conditions on the standby generator and emergency fire pump are Condition #15, which requires records and reasons for generator usage but with no limit on annual operating hours, and Condition # 17, which restricts fuel to #2 fuel oil or diesel fuel, and imposes a limit of0.05 percent by weight sulfur content in fuel. It is unclear how these ITA 8conditions relate, if at all, to the BACT/LAER analysis in the NSPR. No emission limits are proposed. in the ITA for PMlO, 

## sax, NO

## x , CO or VOC for the standby generator or emergency flre pump. The State should clarifywhat the BACTfLAER detennination was for these emitting units, and revise thejustificationas appropriate. DISPERSION MODELING COMMENTS: 11. General. Overall the emissions from the proposed project were relatively small and so modeled impacts were well below the PSD Class I and II thresholds. No modeling data were provided to EPA with the application. For the sake ofthese comments, we are asswning the correct model inputs/defaults wereused. 12. Inadequate explanation for inputs to modeling. The emissions used in the modeling

.were selected based on an analysis ofoperations at the proposed facility under various loads and ambient temperatures. Page 6-11 ofthe pennit application says that for carbon monoxide, the maximum impact scenario was when the facility was at 60 percent load and the temperature 52°F. It is unclear how orwhy this load level and temperature were detennined to be maximum impact scenario. It is also unclear whether this same scenario was determined to be the maximum impact scenario for other pollutants. The application, and Utah's modeling memo, should provide a table summarizing the emission rates, emission averaging times, and operating scenarios that wereused in modelingthe otherpollutants (PM!0, NOx, HAPs). 13. Inadequate discussion of emission offsets.

.

### 1bis comment is virtually identical to a commentwe made onJuly 1, 2004on the proposed Calpinepermit inUtah. InSection 6.8 ofthe pennit application, page 6-14 says the applicant will obtain sufficientbanked emission reduction credits from Geneva Steel to ensure a net air quality benefit. The amount of offsets is then specified as 113, 160, and 31 tons/year for 

### PM,Q, NOx, and SOx, respectivdy. Based on the proposed emissions for the facility (from Table ill-IS ofthe application), the offset ratio appears to be about 1.2 to 1. The basis for the proposed offset ratio should be specified. The application should also state what emission source from Geneva is being used for credit to ensure that a net air quality benefit is actually being achieved. For example, it would not be appropriate to offset stack emissions at the new source with fugitive emissions credit from Geneva Steel, because the ambient impacts from the credits would not occur at the same location as the impact from the proposed new source. This offset discussion should also be included in the NSPR. (See comment#1 above.) 14. PMlO ambient impacts should be evaluated. We do not not agree with the statement on page 37 ofthe NSPR, and onpage 2 ofthe State's August 27,2004 modeling memo, that "An a.'1alysis for PMIO is notrequired since the proposed project's location is 

### in an area designated as non-attainment for this pollutant, and the PMlO emissions would be covered under the offset rules." We are not aware ofany language in Utah's offset rules that exempts Utah from analyz7 ing ambient impact for apollutant where offsets have been obtained, orwill be obtained, for that pollutant. EPA models are available that can and should be used to model for ambient PMlO impact in the immediate vicinity ofthe source. We have made this comment before on pennit actions for sources in the PMjQ nonattainment area. (Example: our June 30, 1999 comment 9letter on a proposed permit to mcrease the allowed annual ore production at Kennecott's BinghamCanyon coppermine.) 15. Startup/shutdown/transient load conditions should be factored into modeling. We could not find anyindication that alternate BACT emission limits and allowed hours ofoperation under these conditions were factored into modeling. Please provide an explanation. 16. Formaldehyde emission rate discrepancy should be corrected. There is a discrepancy between the fonnaldehyde emissionrate listed for the facility in the 

### ITA and the rate listed 

### in the August 27, 2004 modeling memo by Dave Prey. The ITA indicates 6.2 tonslyr but the memo indicates 12.4 tons/yr. This discrepancy shouldbeclearedup. 

### OTHERCOMMENTS: 17. Non-existent annual emission limitations are referenced in the ITA. Condition 

### #12 of the ITA says that startup and shutdown events are "counted toward the applicable annual emission limitations." There are no such limitations in the ITA, nor are any such limitations proposedin the NSPR. The ITA andNSPR shouldbecorrected. 18. ITA Condition #23 on unavoidable breakdowns should be removed. Trus comment is the same as our July 1, 2004 comment on the proposed Calpine permit 

### in Utah. The State should remove ITA Condition #23, which references the State's unavoidable breakdown rule. Utah has.·been advised on a number of occasions that the unavoidable breakdown rule is not consistent with EPA interpretation ofthe Clean AirAct. Utah has committedto work to address EPA concerns with a SIP revision. Including a reference to the unavoidable breakdown rute in this permit, and in any future permits, may have the effect ofcodifying the rule as part ofthe permits even though Utah and EPA are working together to revise the rule. 

### To ensure that permits do not provide inappropriate exemptions from emissions limitations that cannot be changed later, and in light of the fact that the unavoidable breakdown rule currently applies whether or not it is referenced in the permits, the reference to that rule should be removed from the 

### ITA. 19. ITA and/or NSPR should include a finding regarding compliance. This comment is the same as our July 1, 2004 comment on the proposed Calpine permit in Utah. Utah's SIPapproved air regulations, at R307-l-3.3.2.C(2) (now codified bythe State at R307-403-3(3)(b

# », require thepermit applicant to certifythat: "all existing major sources in the State, owned orcontrolled bythe owner or operator (or by any entity controlling, controlled by or under common control with such owner or operator) of the proposed source, are 

### in compliance with all applicable rules in RJ07, including the Utah Implementation Plan requirements or are in compliance with an approved schedule and timetable for compliance under the Utah Implementation Plan, R307, or an enforcement order, and that the source is complying with all requirements and limitations as expeditiously as practicable."
10

### In the State's documentation for this pennit action, we do not find reference to this requirement. We ask that the State address this requirement in the approval order andJor plan review.Thank you for the opportunityto comment. If

### you have anyquestions, please feel free to contact me at 303-312-6005, orMike Owens ofmy staffat 303-312-6440. Sincerely,

Richard R. 

### Long, Director Air & 

### Radiation Program

cc: Regg Olsen (Utah DAQ) RustyRuby (Utah DAQ) John Jenks (UtahDAQ) Brock LeBaron (Utah DAQ)

11UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8 99918TH STREET- SUITE 200**DENVE~** CO 80202-2466 Phone 800-227-8917 http://www.epa.gov/region08 

## AUG - 2 2006 Ref: 8P-AR Richard W. Sprott, Director Division ofAir Quality Utah Dept ofEnvironmental Quality PO Box 144820 Salt Lake City, UT 84114-4820 Re: EPA Comments onIntent-to-Approve (Proposed PSD Major Modification Permit) for Hokim Devil's Slide Cement Plant

## Dear~: This is to submit comments onthe subject Intent-to-Approve (ITA), DAQE-IN0007019­ 06. The purpose ofthe permit action is to allow an increase in annual clinkerproduction, from 799,100 tons to 930,000 tons. The permit action was classifiedbythe State as PSD based on a projected PM i0emission increase of62 tons peryear, above PSD significancethreshold, calculated on an actual-to-potential basis. No otherPSD pollutants areprojected to increase by significant amounts. The public comment period on this permit action expired on July 18,2006; however, we submitted a letterto you onthat date indicating that since we did not receive a copy ofthepermit application until July 3, our opportunityto comment should extend to August 2. We note that the pennit application (dated November2,2004)requests somepermit changes which have alreadybeen made in two separatepermit actions after the application was submitted, and whichwent through public comment: (1) The request for approval ofan increase in clinkercooler capacity (yielding an expected increase of7.6 tons per yearofPMIO) was granted through a minorpermit modification on January 31,2005. (2) The request for an increase inthe S02 emission limit at the kiln (from 104 Iblhr to 475 Ib/hr) was granted through a synthetic minorpermit modification onAugust 18,2005. By "synthetic minor," we are referring to a sourcewide S02 emission limit of457 tonsperrolling l2-month period. It is our understanding that the sourcewide limit wasestabIished in that permit action to enable Holcim to avoid PSD review for S02. We have been informed byyour staffthat there has neverbeen aPSD majormodification at the kiln for S02, and thatthe S02 emission limit at the kiln is not a PSD BACT limit.

## .' '. 

# ·

. '.

The onlypart ofthe pennit application that the State determined to be subject to PSD permitting is the request for an increase in allowed clinkerproduction. Below are ourcomments. Inadequate explanation why no significant emission increase is projected for the kiln. As indicated in the State's "Modified Source Plan Review" (MSPR), under the definition ofa PSD "majormodification" the proposed increase in allowed clinkerproduction is a change in the method ofoperation ofthe cement plant, because the prior pennit contained an enforceable cap on clinker production. Since the kiln is the main process unit at the cement plant, this change in method ofoperation ofthe cement plant necessarilymeans a change in method ofoperation of thekiln. Ifa significant emission increase ofPMlO was to be projected at the kiln, PSD rules would require anew BACT analysis for the kiln. No such analysis has beenpresented. Instead, the MSPR says, "the production increase can be accommodated by the kiln and product handling processes without a need for additional air emissions

..." We understand this to mean no PM i0 emission increase is expected at the kiln, even though the annual clinkerproduction will be allowed to increase by 16 percent. We could not find any explanation for this intheMSPR. We asked your staffabout this and were informed verbally that no increase is expected because the PMlO emission factor has been effectivelyreduced by efficiency gains at the kiln. We would appreciate a more detailed explanation. It is not clearto us why efficiency gains would yield a lower PM lO emission factor. BACT for condensibleparticulate matter should be considered in determining PSD applicability and compliance. Emissions ofcondensible particulate matter (CPM) are not estimated or otherwise discussed in the MSPR. CPM is a component oftotal PMlO. Itcounts toward PSD applicability determinations and must also be considered in PSD BACTdeterminations. We would appreciate an explanationofwhether ornot CPM was considered in the above-mentioned detennination of no emission increase at the kiln. Also, contraryto ITA condition 10.F, which says "backhalf condensibles shaJJ not beused for compliance demonstration but shall be used for inventory purposes," CPM must be considered in determining compliance with PSD BACT emission limits for PMlO. Wemade a similar comment on April 6, 2004, in regard to the NEVCO pennit action. Inadequate BACT discussion for PMlO at the quarry. The MSPR indicates that the quarry is the primary source ofthe projected significant emission increase for PMlO. A new BACT analysis is therefore required. With regard to that analysis, the MSPR only says emissions are "being controlled through water sprays, water! chemical dust suppression, good operatingpractices, and baghouseslbin vents on numerous transfer points." This is not an adequate discussion. An updated top-down BACT analysis shouldbepresented, including a description ofwhat specific transferpoints have baghouses, bin vents or water spray devices already installed, whether any additional controls will be installed at any transfer points, what is meant by good operatingpractices, and whether ornot a fugitive dust 2control plan was considered necessary. It is especiallyimportant to document that BACT has been satisfied because emissions from expanded operations at the quarryhave beenmodeled at 95% ofthe annual PMJO NAAQS. Unclear what emission averagingtimes were used in modelingothercontributing sources for PSD incrementconsumption. The textonpage 5·2 ofthe MSImodelingreportindicates that in determining PSD increment-affecting emissions, the combined average of1988 and 1989 emissions was compared with 2002 actual emission rates (fornon-Holcim sources). The averaging times used in making these calculations are not clear. To be consistent with the EPA's 1990 draft New Source Review workshop manual, the emissionsrates should be calculated based on 24 hour average emission rates for the short term PMlO increment, and annual averages for the annual PM 10 increment. Issuance ofvariance undermines PSD permitting process. TheAbstract in the ITA indicates that the proposed increasein allowed clinker productioncorresponds to the production limit established in Ho1cim's current variance, issued bythe Utah Air Quality Board in Novemberof2oo5. EPAhad previously informed the State that variance provisions need to beremoved from the Utah SIP. This example clearly illustrates why we considerthe variance provisions to be a problem. The variance was granted to authorize !Jolcim to increase production and emissionsbefore Holcim obtained a modified PSD permit. PSD is apre-construction program; the PSD permit is required beforethe modification occurs. It is possible that Holcim has been operating without appropriate BACTin place since November 01'2005. Director's discretion clauses should be removed from the permit. ITA condition 10.F says "The back halfcondensibles shall also be tested using the method specified by the Executive Secretary." This language is a form ofdirector's discretion and shouldbe removed. We see no reason whyM;ethod 202 shouldnotbe specified. We made a similar comment on April 20, 2004, in regard tothePacificorp Currant Creekpermit action, and on March 25,2005, in regard to a number ofdirector's discretion clauses in the Holly Refining permit action. Reference to the unavoidable breakdown rule should be removed from the permit. ITA condition 28, which references Utah'sunavoidable breakdown rule, should be removed. Utah'sunavoidable breakdown rule provides an exemption for excess emissions resulting from an unavoidable breakdowl1. Utah has been advised on a numberofoccasions that the unavoidable breakdownrule is not consistent with EPA's interpretation ofthe Clean AirAct and that the TIlle should not be referenced in Utah's permits. Also, under EPA's interpretations ofthe Clean AirAct, PSD BACT limits apply at all times. PSD BACT emission limits in the permit cannotbe subject to this or any otherexemption.

3Condition on post-construction ambient monitoring shouldbe made clearer. ITA condition 29 requires Holcim to "continue off-site post-construction monitoring of PM10 on a dailybasis for a minimum ofone year." This wording is confusing, as no new construction is being permitted 

### in this permitaction. We discussed this with your staffand were informed that ambient monitoring has alreadybeenconducted for at leasthalfa year, such that the intent of ITA condition29 is to require monitoringto continue for approximately another halfa year afterthismodified permit is issued. We recommend the condition be reworded to make this clear. Explanation never providedon why there is no3-hour emission limit in the permit for 

### S02 at the kiln. Whenthe State permitted the above-mentioned S02 emission increase at the kiln a year ago, emissions were modeled at 475 lblhr onboth a 3-hourbasis and a 24-hourbasis, but the only short-term S02 emission limit inthe permit is 475 lblhr onarolling 24-hour average. We would appreciate an explanation whyemissions from the kiln on a 3-hourbasis should be modeled at the samerate as the 24-hourbasis, absent apermit emission limit on a 3-hourbasis. Thank you for considering these comments. Please feel free to contact Mike Owens of my staffat 303-312-6440ifany technical questions, orKevin Golden at 303-313-6442 ifany modeling questions, orJonah Stallerin our Office ofRegional Counsel at 303-312-6855 ifany legal questions.

cc: Regg Olsen (Utah DAQ) Rusty Ruby (Utah DAQ) John Jenks (Utah DAQ)

4

### DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT Air Quality Control Commission COMMON PROVISIONS REGULATION 5 CCR 1001-2 II.E. Affirmative Defense Provision for Excess Emissions During Malfunctions II. E.1 An affirmative defense to a claim ofviolation under these regulations is provided to owners and operators for civil penalty actions for excess emissions during periods of malfunction. To establish the affirmative defense and to be relieved ofa civil penalty in any action to enforce an applicable requirement, the owner or operator ofthe facility must meet the notification requirements of Section 11.E.2. in a timely manner and prove by a preponderance of evidence that:

II.E 1.a. The excess emissions were caused by a sudden, unavoidable breakdown of equipment, or a sUdden, unavoidable failure of a process to operate in the normal or usual manner, beyond the reasonable control of the owner or operator; II.E. 1.b The excess emissions did not stem from any activity or event that could have reasonably been foreseen and avoided, or planned for, and could not have been avoided by better operation and maintenance practices; II. E.1.c. Repairs were made as expeditiously as possible when the applicable emission limitations were being exceeded. 11.E 1.d. The amount and duration ofthe excess emissions (including any bypass) were minimized to the maximum extent practicable during periods of such emissions; IIE.1.e. All Reasonably possible steps were taken to minimize the impact ofthe excess emissions on ambient air quality; 1I.E.1.f All emissions monitoring systems were kept in operation (ifat all possible); ILE.1.g. The owner or operator's actions during the period of excess emissions were documented by properly signed, contemporaneous operating logs or other relevant evidence; IIE.1h. The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; 11.E.1.i. At all times, the facility was operated in a manner consistent with good practices for minimizing emissions. This Section 11.E.1.i. is intended solely to be a factor in determining whether an affirmative defense is available to an owner or operator, and shall not constitute an additional applicable requirement; and II.E 1.j During the period of excess emissions, there were no exceedances of the relevant ambient air quality standards established in the Commissions' Regulations that could be attributed to the emitting source. II.E.2. NotificationThe owner or operator ofthe facility experiencing excess emissions during a malfunction shall notify the division verbally as soon as possible, but no later than noon ofthe Division's next working day, and shall submit written notification following the initial occurrence ofthe excess emissions by the end of the source's next reporting period. The notification shall address the criteria set forth in Section II. E.1., above. ILE.3. The Affirmative Defense Provision contained in this Section ILE. shall not be available to claims for

. injunctive relief. ILEA. The Affirmative Defense Provision does not apply to failures to meetfederally promulgated performance standards or emission limits, including, but not limited to, new source performance standards and national emission standards for hazardous air pollutants. The affirmative defense provision does not apply to state implementation plan (sip) limits or permit limits that have been settaking into account potential emissions during malfunctions, including, but not necessarily limited to, certain limits with 30-day or longer averaging times, limits that indicate they apply during malfunctions, and limits that indicate they apply at all times or without exception.

V.N. December 15, 2006 This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4) and (12.5), C.R.S. for new and revised regulations. Basis The Common Provisions Regulati.on is designed to assist the implementation of more substantive regulatory programs authorized underthe Colorado Air Pollution Prevention and Control Act ("Act") including provisions ofthe State Implementation Plan addressed in Section, 25-7-105(1)(a), CR.S, emission control regulations addressed in Section, 25-7-105(1)(b), C.RS., prevention of significant deterioration requirements addressed in Section, 25-7-105(1)(c), C.RS., as well as other authorized programs under the Act. The current revisions have been promulgated in order to facilitate this goal. The revisions were proposed by the Air Pollution Control Division based on discussions with EPA and extensive discussions with interested parties regarding the availability ofan affirmative defense for upset conditions or malfunctions. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, C.R.S. § 25-7-105(1)(a) authorizes the Commission to adopt rules necessary to implement the Act, and to adopt and revise comprehensive state implementation plans to assure attainment and maintenance of national ambient air quality standards. C.RS. § 25-7-109 authorizes the Commission to adopt rules that are consistent with state policy regarding air pollution and with federal recommendations and requirements. C.R.S. § 25-7-109(5) requires the Commission to promulgate rules setting conditions and time limitations for periods of startup. shutdown or malfunction or other conditions which justify temporary relief from controls. Additional authority for these revisions is set forth in Section, 25-7-106 and 25-7-109, C.RS. Purpose Revisions to Section II. E., regarding upset conditions and malfunctions, were made to clarify the process by which a source must identify an upset or malfunction. The division has changed the term upset to malfunction for consistency with EPA policy. In addition, the provision was revised to clarify that an affirmative defense is available to claims for violation ofthe Commissions' regulations for civil penalties in enforcement actions regarding excessemissions arising from upset conditions and malfunctions. The Commission does not interpret this to mean that every upset should be reported by the Division to EPA as a violation. The affirmative defense is not available to a claim ofviolation ofthese regulations in the context of claims for injunctive relief. Sudden and unavoidable upset conditions and malfunctions caused by circumstances beyond the control of an owner or operator occur from time to time despite best efforts regarding planning, design and operational procedures. The upset conditions and malfunction provision recognizes this fact. An affirmative defense may be available to shield a source from civil penalty liability if the owner or operator meets the requirements ofthe rule. For purposes of II. E.1.J the Commission does not intend that modeling be done to show that Upsets or malfunctions have or have not caused a violation ofthe NMQS. Section II. E.4 indicates that the affirmative defense does not apply to federally promulgated standards (such as NSPS and NESHAPS requirements.) The Commission does not intend this provision to modify those federally promUlgated standards or any exemptions for malfunction events that may apply under those standards. Additionally, the Commission recognizes and intends that certain source permits may not currently adequately accommodate malfunctions as this new rule provides. The Commission intends that the Division work with those specific sources to accommodate malfunctions into their permit limits, as appropriate. COLORADO AIR QUALITY CONTROL COMMISSION ADOPTED: December 15, 2006