/­

'/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 of the 

Environmental Protection Agency (,'Administrator" or "EPA"), pursuant to the Administrative 

Procedure Act ("APA"), 5 USC § 551, et seq_; the Clean Air Act ("CAA"), 42 USC § 7401, et 

seq_: and the Environmental Protection Agency's CAA implementing regulations, to require the 

State of Utah to revise its State Implementing Plan C-SIP") to close an illegal loophole and 

prevent inappropriate impkmentation of and/or failure to comply withthe eAA. Specifically, 

Petitioners request the EPA require revision of Rule 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 of the CAA. According to the EPA, 

"Utah has been advised on a number of occasions that the unavoidable breakdown is not 

consistent with EPA's interpretation of the Clean Air Actl.I" Comments from Richard R. 

Long. Rl;gion VIII Dir.. Air and Radiation Program to Rick Sprott, Division of Air Quality 

Director. Utah Division of Air 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. 

el seq. The APA specifically requires that "Ie]ach agency shall give an interested person the 

right to petition for the issuance, amendment, or repeal ofa rule." 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 of Air 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 or fails to meet the 

requirements of the CAA. See 42 USC § 7410. Further, EPA can "require the State to 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 within a reasonable 

time. 5 USC § 555(b). Petitioners requests EPA expedite resolution of this 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 clear that the Utah Sfr must 

be revised in regards to the breakdowns exemption and that, if a 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 of the 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 CONFORM TO THE CLEAN AIR ACT. 

As presently worded, the breakdown exemption of the Utah SIP is plainly inconsistent 

with the CAA. Not only has the EPA agreed with this assessment, but the EPA has also 

recommended that the SIP be revised because of this illegality. In fact, records indicate that the 

EPA has attempted to \-vork with the State of Utah over the years to revise the existing 

breakdown exemption. Unfortunately, the State of Utah has not revised 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 air pollution emission limits, even those that are meant to protect public 

health, in the event of a "breakdovvn." 1 The rule not only allows violations of air pollution 

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 or process equipment causing emissions in 

excess of those allowed by approval order or Title 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 of Utah's air quality regulations. The 

rule states: 

R307-107 applies to all regulated pollutants including those 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 of these 

regulations. If excess emissions are predictable, they must be authorized under the 

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 or preventable 

equipment breakdown 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. The rule states: 

A breakdovVTl for any period longer than 2 hours must be reported to the executive 

secretary within 3 hours of the beginning of the breakdown if reasonable. but in no case 

longer than 18 hours after the beginning of the breakdown. During times other than 

normal otJice hours, breakdowns for any period longer than 2 hours shall be initially 

reported to the Environmental Health Emergency Response Coordinator. Telephone 

(801) 536-4123. Within 7 calendar days of the begiIming of any breakdown of longer 

than 2 hours, a written report shall be submitted to the executive secretary which shall 

include the cause and nature of the event, estimated quantity of pollutant (total and 

excess), time of emissions and steps taken to control the emissions and to prevent 

recurrence. The submittal of such information shall be used by the executive secretary in 

determining whether a violation has occurred and/or the need of further enforcement 

action. 

Utah Regulations, R307-1 07-2. The exemption then states that a violation of R307-1 07-2 will 

only occur if breakdowns that last more than 2 hours are not reported. The rule states: 

Failure to comply with the reporting procedures ofR307-1 07-2 will constitute a violation 

of these regulations. 

4 
Utah Regulations, R307-107-3. The exemption then attempts to provide limits on the application 

of the "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. The rule states: 

The owner or operator of an installation suffering an unavoidable breakdown shall assure 

that emission limitations and visible emission limitations are exceeded' for only as short a 

period of time as reasonable. The owner or operator shall take all reasonable measures 

which may include but are not limited to the immedia1e curtailment of production, 

operations, or activities at all installations ofthe source if necessary to limit the total 

aggregate emissions from the source to no greater than the aggregate allowable emissions 

averaged over the periods provided in the source's approval orders or R307. In the event 

that production, operations or activities cannot be curtailed so as to so limit the total 

aggregate emissions without jeopardizing 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 of any 

installation subject to a SIP emission limitation pursuant to these rules shall be deemed to 

have complied with the provisions of R307-107 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 of R307-107-4 will constitute a violation. The rule states: 

Failure to comply with curtailment actions required by R307-1 07-4 will constitute a 

violation ofR307-107. 

Utah Regulations, R307-1 05. The lUle finally states: 

Other provisions of R307 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:' 

5
 
Taken together, the breakdo\NTI exemption serves to allow polluters to use breakdowns-·­

unavoidable or othenvise-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. 

To begin with, nothing in the CAA provides for the automatic exemption of compliance 

during breakdowns, malfunctions, or any similar event. 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 air quality standards ('"NAAQS") and 

prevention of significant 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 of the CAA are fully met as Congress 

intended. 

For example, the purpose of PSD is, among other things: 

[T]o protect public health and welfare from any actual or potential adverse effect which 

in the Administrator's judgment may reasonably be anticipate to occur from air pollution 

or from exposures to pollutants in other media, which pollutants originate as emissions to 

the ambient air), notwithstanding attainment and maintenance of all national ambient air 

qual ity standards[.] 

42 U.S.c. § 7470(1). On its face. the breakdown exemption automatically allows sources of air 

pollution to avoid "protection of public health and welfare," contrary to the CAA. as well as the 

rights of the 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. 

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

emissions to be violations of the 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 of Envtl. Quality v. Brow11er, 230 F.3d 

18 L 183 (6th Cir. 2000) (citing 42 Fed. Reg. 21,472 (Apr. 27, 1977»; see also Memorandum 

trom Eric Shaeffer, Dir., Office of Regulatory 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 Kathleen M. 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 of sources has the 

potential to cause exeeedance ofNAAQS or PSD requirements and when there is no violation of 

federally promulgated performance standard or emission limitation. In those cases. a state 

director must exercise his or her enforcement discretion and cannot avoid that case-by-case 

obligation by allowing an automatic exemption. 

EPA's policy of identifying all excess emissions as CAA violations and its disallowance 

of automatic exemptions is consistent with the CAA. SlPs protect ambient-based standards. 

Approval and Promulgation of State 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 if there are 

7
 
circumstances 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 of start-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 of malfunction 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 of PSD increments. Thus, a provision that \\ould 

undermine the fundamental requirement of attainment and maintenance of the NAAQS or any 

other reqLlirement ofthe Clean Air Act," 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 supporting the SIP revision is the fact that the EPA has stated on several 

occasions that Utah's breakdown exemption violates the CAA. The EPA has urged SIP revision 

since at least 2002. 3 In late 2002, the State of Utah even conm1itted to revising the breakdown 

exemption. See 67 Fed. Reg. 78185. Since that time, the EPA, the State of Utah, and industry 

representatives attempted to revise the exemption to ensure protection of air quality and 

compliance with the CAA, but with no success. In an October 22, 2004 letter, the EPA 

commented. albeit negatively, on a State of Utah proposal to revise R307-1 07. Then EPA 

Region 8 Director of the 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, our preliminary 

review of the 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 of Air Quality Director. Utah Division of Air Quality (October 22, 1004) 

(emphasis added). Sce Exhibit 1. 

The EPA has continued to express on a number of occasions its concern over the 

breakdown exemption, particularly as it has been included in air pollution permits. For example. 

in comments on a proposed air pollution pennit for a power plant 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 of occasions 

, It is important to note that, although EPA has urged a revision of the Utah SIP with regards to the breakdown 

exemption, the agency has never "required" a revision of the Utah SIP with regards to the breakdown exemption, 

thereby necessitating this citizen petition. 

9 
that the wlavoidable breakdown rule is not consistent with EPA interpretation of the 

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 of codifying the rule as part of the pennits 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 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 of Air Quality Director, Utah Division of Air Quality (December 9,2004) (emphasis 

added). See Exhibit 2. The EPA has echoed virtually the 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 of occasions that the unavoidable breakdown rule is 

not consistent with EPA' s interpretation of the Clean Air Act and that the rule should not 

be referenced in Utah's permits. Also, under EPA's interpretation of the 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 of Air Quality Director, Utah Division of Air Quality (August 2, 2006) (emphasis 

added). See Exhibit 3. 

Although the State of Utah 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 of Utah' s footdragging, there is no reason for the 

Administrator to delay requiring revision of the breakdown exemption. 

10
 
c. A Reasonable Path Fonvard Exists 

Finally. revising the breakdown exemption is all-the-inore appropriate in light of the fact 

that a reasonable and acceptable alternative to the current rule exists and has been adopted by the 

State of Colorado. Colorado's rule 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 of that rule is at1ached hereto as Exhibit 4 along with the Statement of Basis for the rule. 

The State of Colorado rule, which addresses excess emissions during malfunctions, 

makes clear that a source will not be held liable for civil penalties in the event of a malfunction. 

The rule also preserves liability in cases of injunctive relief, but relies on enforcement discretion 

to determine the appropriate course of action to address any liability. Furthermore, the Statement 

of Basis makes clear that 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. 

If the State of Utah 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 of action to take in light of the pressing need to ensure Utah's SIP is consistent 

with the CAA, and to ensure protection of air quality, including the NAAQS and PSD 

increments. 

CONCLusrON 

EPA is Llmhorized to require the States to revise their SIPs to correct for inadequacies 

Section '110(k)(5) of the CA/\. states: "Whenever the Administrator finds that the applicable 

11
 
implementation plan for any area is substantially inadequate to attain or maintain the relevant 

national ambient air quality standard, ... or to 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 § 741 O(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 of action would be to use Colorado '5 malftmction rule as a model for Utah. 

Should the EPA fail to require revision of the Utah Regulations with regards to the 

breakdown exemption within sixty days. Rocky Mountain Clean Air Action will consider such 

delay unreasonable. 

12
 
Dated this 31:il day of December, 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 of Air 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 of Air Quality Director, Utah Division of Air 

Quality (October 22,2004); 

2.	 Comments from Richard R. Long, Region VIII Dir., Air and Radiation Program 

to Rick Sprott Division of Air Quality Director. t;tah Division of Air Qualit) 

(December 9,2004); 

3.	 Comments fr0111. Richard R. Long, Region VlII Dil'., Air and Radiation Program 

to Rick Sprott, Division of Air Quality Director, Utah Division of Air Quality 

(August 2, 2006). 

4.	 Colorado Malfunction Rule and Statement of Basis. 

14
 
rI'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 of Air Quality 

p,O, Box 144820 

Salt Lake City, m 84114-4820 

RE: ATTN: Excess Emissions and Reporting 

Dear Mr. Sprott: 

I am writing to provide comments on the proposed new rule R307-107, General 

Requirements: Excess Emissions and Reporting. We appreciate your efforts to develop a rule to 

address concerns we have previously raised with the state's "Unavoidable Breakdown" rule, 

Unfortunately, our preliminary review of the proposed rule indicates that it is not approvable as a 

state implementation plan (SIP) revision. Our comments are contained below and in the 

enclosure to this letter. Please include these comments in your rulemaking record. 

We have several main concerns with the draft rule, as follows: 

1.	 In more than one place, the draft rule provides that the affirmative defense could be 

asserted to establish that excess emissions do not constitute a violation. This is not 

appropriate because it is not consistent with the requirements of the Clean Air Act. Any 

rule of this nature must be clear that all excess emissions constitute violations, and that 

the affimlative defense is available only for penalties and not for injunctive relief. The 

draft mle is not clear on this point and it must be revised 

2,	 The draft rule (R307~ I 07-2(4)) provides tlIat the executive secretary detennines whether 

an affirmative defense has been established. This provision might be construed to mean 

that the decision of the executive secretary is binding on EPA and citizens. This 

provision is inconsistent with the structure of the Clean Air Act, which allows 

independent EPA and citizen enforcement of violations, regardless of the state's decisions 

in exercising its enforcement discretion, The draft rule must be revised to address this 

coneenl. 

II) . " Printed on Recycled Paper 
3.	 The draft rule provides an affirmative defense for excess emissions during scheduled 

maintenance. This is inappropriate under the Clean Air Act because sources should be 

able to schedule maintenance that might otherwise lead to excess .emissions to coincide 

with maintenance of production equipment or other facility shutdowns. The incentive to 

use appropriate scheduling/practices to avoid excess emissions during scheduled 

maintenance should not be diminish~ by providing an affirrnative defense. 

4.	 The draft rule incl udes a provision (R307-107-2(5» regarding the exercise of 

enforcement discretion by the executive secretary or the board. We agree that even when 

the affirmative defense might 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 of penalties. However, this section of the rule must be clear that the executive 

secretary's or board's decision whether ornot to pursue an enforcement action, or 

regarding the appropriate amount of penalties, does not bind EPA or citizens. 

5.	 The draft rule provides (at R307-l07-2(1» that it applies to all sources except where 

emission standards, limits, or perfonnance standards for malfunctions, scheduled 

maintenance, startup, or shutdown arc identified in a specific rule, approval order, or 

permit. From one standpoint, this provision makes sense - there is no need to provide the 

relief ofan affmnativc defense when the app1icable standard includes an exemption or 

specially designed limit for startup, shutdown, or malfunction conditions. For example, 

many new source performance standards (NSPS) limits do not apply during startup, 

shutdown, or malfunction. 

From another standpoint, however, this provision is overly broad because it could be read 

to mean that less stringent affirmative defense criteria or outright exemptions established 

in a state rule, approval order, or pennit would take precedence over the requirements of 

R307-l07-1, 2, and 3 and not protect the national ambient air quality standards (NAAQS) 

or increment. Accordingly, R307-107-2(1) must be revised as indicated in the enclosure 

to this letter. 

6.	 The draft rule 'uses the concept of "good industry practice." This is not an appropriate 

standard for measuring owner or operator actions, as good industry practice might not 

always be adequate to meet the requirements of the 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 of our concerns are addressed. We do 

not believe we will be able to propose approval of the draft new rule 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 of the draft rule. These views should not be considered our final position., 

2
 
which we will only reach through notice and comment rulemaking after the state has submitted a 

rule for our approval as a SIP revision. 

Please contact me, or have your staff contact Laurie Ostrand, if you have any questions 

regarding this letter. We can both be reached at (800) 227-8917. 

:in

( 

Rich d

Enclosures 

cc: Cheryl Heying, UDAQ 

Fred Nelson, UDAQ 

rely, 

Air and RaJ ---~

3 
Enclosure 

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

1. Thc draft rule confuses the concept of an affirmative defense with the concept of 

enforcement discretion. By definition an affirmative defense is a defense that may be raised in 

the context of an enforcement proceeding before an independent trier of fact. Before pursuing an 

enforcement action, the state might evaluate the likelihood that an owner/operator could prove 

the elements of the affirmative defense, but this would go to the state's exercise of enforcement 

discretion. While the state might decide not to pursue an enforcement action based on such an 

evaluation, if EPA 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 of the affirmative defense. 

We want to ensure that the independent enforcement discretion of EPA and citizens under 

the Clean Air Act is preserved. Accordingly, Utah's rule must make clear that all excess 

emissions arc violations, and that a state decision not to pursue enforcement action does not bar 

EPA or citizen enforcement of the applicable requirements. 

The other reason 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 Air Act health and welfarebased standards. For more discussion of EPA'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: Policy Regarding Excess 

Emissions During Malfunctions, Startup, and Shutdown" and April 27, 1977 and November 8, 

1977 Federal Register notices on the same topic. 

Consistent with the foregoing, we recommend the following changes to enable us to 

propose approval ofthe rule: 

a. Revise the definition of affirmative defense at R307-107-1(2)(a) as follow's: 

"Aflinnative Defense" means, in the context of an enforcement proceeding for an 

excess emissions incident, a response or defense put forward by a source for the 

purpose of establishing that the violation should not be subject to penalties, 

regarding which the source has the burden ofproof, and the merits ofwhieh are 

independently and objectively evaluated in a judicial or administrative proceeding 

fer the pmpose of establishing ti1"t the incident does 110t constitute a "iolatiOlI. 

b. Delete R307~ 107-2(4) or revise it as follows: 
ill Enforcement Discretion. In determining whether to pyrsue M 

enforcement action for a particular excess emissions incident, the executive 

secretary may consider the likelihood that the source would be able to prove the 

elements of the affinnative defense as d&scribed in subsections (2) and (3) aQQv~,

A decision bv the executive secretary to not pursue enforcement for an incident is 

not intended to bar or otherwise affect the enforcement rights of EPA or citizens 

1!!1der the Clean Air Act. 

c,	 Delete or revise R307-1 07-2(5) because it suggests that the affinnative defense 

dctcnnination is made by the executive secretary and that this detennination 

precedes enforcement action. Ifyou wish to revise this subsection, augment the 

above language for R307-107-2(4) as follows: 

(±l	 Enforcement Discretion. In determining whether to pursue an 

enforcement action for a particular excess emissions incident. the executive 

secretary mav consider the likelihoQd that the source would be able to prove the 

elements ofthe affirmative defense as described in subsections (2) and (3) above. 

The executive and the board retain discretion to consider all relevant information 

in determining whether to pUI]ue an enforcement action. and consideration of 

such infonnation and the penalty policy oftbe board in a given instance could 

result in a determination of no penalties or up to the maximwn penalties, 

depending on the circumstances. A decision by the executive secretary or the 

board to not pursue enforcement for an incident, or a decision by either the 

exeeutive secretary or the board regarding penalty amount. is not intended to bar 

or otherwise affect the enforcement riehts of EPA or citizens under the Clean Air 

Act. 

d.	 Dclete from RJ07-1 07-2(2) the phrase "unless the incident qualifies for an 

affirmative defense under this subsection, R307-1 07·2(2)." All excess emissions 

constitute violations; thus, the "unless" clause is not appropriate. 

c,	 Delete from R307-107-2(3) the phrase "unless the incident qualifies for an 

affirmative defense under this subsection, R307-107-2(3)." All excess emissions 

constitute violations; thus, the "unless" clause is not appropriate. 

2. The draft new rule allows an affirmative defense for excess emissions during "scheduled 

maintenance." In EPA's view, it is not appropriate under the Clean Air Act to provide an 

affirmative defense for excess emissions during maintenance activities. Among other things, an 

owner or operator should be able to schedule maintenance that might otherwise lead to excess 

emissions to coincide with maintenance on production equipment or during other facility 

shutdowns. It is not appropriate to provide any incentive to owners or operators, in the fonn of 

an affirmative defense to penalties, to schedule maintenance on control equipment while they 

2
 
continue to opcn~te production processes. In this regard, you should note that our September 

1999 policy does not discuss allowing an affinnative defense for excess emissions during 

maintenance activities. This omission was intentional and based on our interpretation of the 

Clean Air Act that any excess emissions during maintenance activities should be addressed only 

through the exercise of enforcement discretion and not through the provision of an affirmative 

defense. For further discussion of how we view maintenance activities, see the enclosed April 

27, 1977 and November 8, 1977 Federal Register notices. 

Before we could propose 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 

"scheduled maintenance" would have to be removed from R307.107-l(l), R307-107-2(1), (3), 

(3)(a), (3)(e), and R307-1 07-3(3), and any other locations these words appear. 

3. R307-107-2(1) is inconsistent with Clean Air Act requirements. Thc provision reads: 

"R307-107-2 is applicable to all sources except where emission standards, limits, or performance 

standards for malfunctions, scheduled maintenance, startup, or shutdown are identified in a 

specific rule, approval order, or pennit, to include new source perfonnance standards (NSPS), 

and national emissions standards for hazardous air pollutants (NESHAPS), or other federal 

performance standards." 

To the extent this provision indicates that the affirmative defense is not available for 

exceedances ofNSPS, NESHAPS, or other federal perfonnance standards, we agree with it. 

There is no reason to provide the relief of an affirmative defense for these federal performance 

standards because EPA set these standards taking into account technological limitations. While 

there are federal standards that contain exemptions or specify special limits for startup, 

shutdown, and/or malfunctions, there are other federal standards that apply at all times, including 

during startup, shutdown, and malfunction. For example, the S02 limit for IndustrialCommercial-Institutional Steam Generating Units at 40 CFR 60.42h contains no exception or 

special limit for startup, shutdown, or malfunction. To protect the integrity of these federal 

performance standards, any affirmative defense rule must not apply to such performance 

standards or to SIP provisions that dcrivc from such federally promulgated perfOml3llCe 

standards or limits. The rule must be revised to fully address this concern. 

The reference to other rules, approval orders,. and permits is overly broad. It could be 

read Lo mean that separate affinnative dcfense criteria could be established in a rule, permit, or 

approval order. We do not want to be in the position ofinadvertently sanctioning, through our 

approval of this provision, affirmative defense provisions adopted in other contexts that are less 

stringent than what is necessary to ensure protection ofthe NAAQS, increments, etc. Thus, 

before we could propose approval, any allusion to other rules, approval orders, or permits would 

have to be narrowed 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 contained herein is not available for violations of the following: 

(a)	 New source performance standards (NSPS), national emissions standards for 

hazardous air pollutants (NESHAPS), acid rain limits, or other federally 

promulgated performance standards or limits, or SIP provisions derived from such 

standards or limits. 

(b)	 Emissions limits with an averaging time greater than 24 hours. 

(c)	 Best available control technology (BACT) [under prevention of significant 

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 or is appropriate (for 

example, where the language of the limit specifies that it applies at all times.)" 

4. While the draft rule includes many of the affIrmative defense elements that are necessary 

to meet the requirements of the Clean Air Act, the draft rule contains a number of provisions that 

will undermine compliance with Clean Air Act requirements and that require revision, as 

described below: 

a.	 The definition ofmalfunction at R307-107-1 (2)(c) indicates that it is a sudden 

failure of a process, process equipment, or air pollution control equipment to 

operate in a normal or usual manner. The definition of malfunction 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; EPA policies dated 

September 28, 1982 and February 15, 1983, both entitled "Policy on 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 enable us 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 of a process, process equipment, or air pollution 

control equipment to operate in a normal or usual manner." 

b. The second sentence ofR307·1 07-2(2) may be read to broaden the affirmative 

4 
defense to something in addition to penalties and includes the undefined phrase 

"other proceeding." Based on our interpretation ofthe Clean Air Act, it is only 

appropriate to approve an affirmative defense to penalties and to limit the 

application of the defense to judicial or administrative enforcement proceedings. 

Therefore, to enable us to propose approval, this sentence should be revised as 

follows: 

"The owner or operator of a source with emissions in excess of an applicable 

emission limitation due to malfunction shall have an affirmative defense to 

penalties, but not injunctive relief, in a judicial or administrative enforcement 

action, provided the owner or operator ofthe source has demonstrated all of the 

following:" 

The corresponding sentence in RJ07-107·2(3) should be changed accordingly. 

c.	 The reference to "good industry practices" in R307-107-2(2)(b) and (3)(a) is not 

appropriate. While the term "good air pollution control practices for minimizing 

emissions" is contained in the NSPS and has been the subject ofjudicial and 

administrative interpretation., we are not familiar with the term "good industry 

practices." We are concerned that it may encompass actions that may not be 

sufficiently protective of the NAAQS and increments. Furthermore, the idea 

behind these provisions is that the affIrmative defense should only be available if 

a source has done all it can to prevent the excess emissions. Likewise, the 

language regarding the exercise of good air pollution control practices in R307­

107-2(2)(c) and (3)(d), should embody the notion that all steps were taken and 

should not be tempered by reference to general industry adopted practices. 

Similarly, the language in R307-107-2(2)(e) and (3)(e) must require maximum 

effort on the part of the source to minimize emissions. Accordingly, to enable us 

to propose approval, these provisions should be changed consistent with the 

following: 

RJ07-1 07-2(2): 

(b) The excess emissions did not stem from any activity or event that could have 

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

better design, operation, and maintenance consistent ~ith good illdttstry practices. 

(c) To the maximum extent practicable. The the air pollution control equipment or 

processes were maintained and operated in a manner consistent with good practice 

for minimizing emissions, including sttch as manufacturers' recommendations. 

and general illdtlshy adopted ptactices. 

(e) The amount and duration of the excess emissions (including any bypass of 

control equipment) were minimized to the maximum extent practicable during 

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 have been prevented through 

careful planning and design consistent with good i:ndnstlj' ptaetices. 

(d) At all times, the facility was operated in a manner consistent with good 

practice for minimizing emissions, such as including manufacturers' 

recommendations mld general indusuy adopted ptactices. 

(e) The frequency and duration of operation in scheduled maintenance, startup or 

shutdown mode were minimized to the maximum extent practicable. 

5. To assure protection 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 of sources does not have the 

potential to cause an exceedance of the NAAQS or PSD increments. This would be consistent 

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 thinking behind this provision, 

keeping in mind that there could be instances in which excess emissions lasting less than two 

hours might be particularly egregious, part of a recurring pattern, or comprise numerous 

violations. (For example, in a two hour period, you could have 20 violations of an opacity 

standard.) Are there other reporting requirements that would still apply to all excess emissions? 

6
 
UNITED STATES El\TVIRONMENTAL PROTECTION AGENCY
 

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. of Environmental Quality 

P.O. Box 144820.
 

Salt Lake City, UT 84114-4820
 

Re: . Comments on Intent-to-Approve for Summit 

Vineyard LLC, Lake Side Power Plant 

Dear Rick: 

This is to submit comments on the Intent-to-Approve (ITA), DAQE-IN3031 001-04, for 

the above-named project. The project is described in the ITA as a 560 megawatt natural gas fired 

electrical generating plant. The main pollutant-emitting equipment will consist of two combustion turbines with heat recovery steam generators. The project is a new major source to be located 

on Geneva Steel property in the Utah County PMlO nonattainment area. 

The public comment period expired on the ITA on November 24, 2004. Since we did not 

receive a copy of the 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 of the comment period. We were later infoImed by Mr. John Jenks of your staff that 

the State will agree to look at and respond to our comments. 

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 ofNOx, 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 lists 
the amount of required offsets for each pollutant (PM10, S02 and NO,,). 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. If so, then this requirement should be expressed on a pollutant-specific basis, not the 

combination of three pollutants. (See second paragraph of comment #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) of the CAA, 42 U.S.C. section 7503(a).) Our 

comment letters on other major NSR proposed pennits in Utah's PMIO nonattainment area (e.g., 

Calpine and Gadsby) outline why it is necessary for offsetting reductions to be in tenns of actual 

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 PM lO 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 of the 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 offset by 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 on the proposed Calpine permitin Utah.) . . 

BEST AVAILABLE CONTROL TECHNOLOGY (BACT)! 

LOWEST ACHIEVABLE CONTROL TECHNOLOGY Q..,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 

2 
regarding these determinations, as explained below. 

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 of the adequacy of this limit and averaging time as LAER, we examined 

EPA's national 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 2 ppm NOx emission limit since June 2001. This would seem to indicate that 2 ppm on 

a I-hour average has been achieved in practice. 

Also, EPA Region 9's recently issued Federal PSD permit, for the same manufacturer and 

model of turbines and associated NOx controls as Summit proposes to use in Utah, 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 stringent as 2.0 ppmdv on a I-hour average. We did not find 

any information in the NSPR justifying a 3-hour average rather 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 of2.0 ppmdv 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 a BACT 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 major stationary 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 of 40 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 deter3 
mination, 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 

(see website above) that the State might be using in 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 of the continuous emission 

monitoring system (CEMS) for CO instead, as a surrogate for direct measurement ofVOC at new 

combustion turbines. This approach would only be acceptable if a 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/CO correlation. 

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 adequately justified in the 

NSPR. 

EPA policy on excess emissions, as they relate to major NSR permits, is stated in a memo 

dated January 28, 1993, from EPA's Office of Air Quality Planning & Standards to EPA Region 

I. The memo available on EPA's NSR Policy & Guidance database, accessible via: 

www.epa.gov/region07/programs/artclJair/policy/search.htm 

The memo states, "PSD pennits cannot contain automatic exemptions which 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 

memoranda in detail, in our comment letters on recent Utah permit actions for Pacificorp Currant 

Creek and Intennountain Power Unit 3 projects. For reasons explained in those comment 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 of separate 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 or BACT, as appropriate. The discussion of alternate emission 

limits for startup/shutdown, for purposes of NOx LAER and CO BACT, on pages 44-45 of the 

NSPR, does not adequately make the case. There is no explanation of how 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 of 24 hours for the 

emission limit in ITA Condition #9, and since there 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 

is based on sulfur content in 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. 

For NOx, iftbe Connecticut and Massachusetts nonattainment NSR pennits, 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 if it 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 relief from 

Region 9 for transient load conditions only because Region 9 determined that the NOx emission 

limit for steady state operation of the turbines should be on a I-hour average, rather than a longer 

averaging time. 

Also, as far as we know, Calpine did not ask EPA Region 9 for relief from 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 if a showing can be made that separate LAER andlor BACT limits are necessary for 

startup, shutdo'\VIl, or transient load conditions, appropriate ambient impact analyses must be 

perfonned for these conditions. Although we did not conductan exhaustive search, we could not 

find any such analyses in the NSPR, nor in the State's August 27, 2004 modeling memo. 

5 
6. The ITA is unclear on when BACT/LAER emission limits applY for PMJO, NO,!, CO 

and VOC at the combustion turbines. Even ifit can be established in the record for this permit 

action that alternate BACT limits are justified for periods other than steady state operation, ITA 

Conditions #9, #11 and #12 are not clear on when 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 in the 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 of the NSPR), 

and whether they apply during all periods of operation, 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 of startup/shutdown events. ITA Condition #12 sets a duration limit of 613.5 hours per 

year, per turbine; for startup and shutdown events, but sets no emission limits applicable during 

startup Or shutdown. The definition of startup in Condition #12 says it is a period of time 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't meet 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 of LAER is not presented in the proper context in the NSPR Page 13 

of the NSPR presents the concept of LAER as step 3 of the BACT determination process. This 

context ignores SIP limits, which are part of the definition of LAER in the Clean Air Act 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. The NSPR lacks adequate explanation of how the LAER emission limit for PM10 for 

the combustion turbines was determined. Table ill-5 of the NSPR, along with Condition 9 of 

the ITA, indicates the proposed LAER determination for PMlO is 10.8 lblhr and 0.01 lblMMBtu, 

on a 24-hour average. It appears from Table ill-5 that the 10.8 Iblhr was derived from the "recent 

average of other deteIminations since 2000," which is listed as 17.4 lblhr, minus the "recent 

6 
standard deviation" of 6.6 lblhr. This is not a valid 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 of emissions which reflects: (a) the most stringent emission 

limitation which is contained in the implementation plan of any state for such class or category of 

source, unless the owner or operator of the proposed source demonstrates that such limitations 

are not achievable, or (b) the most stringent emission limitation which is achieved in practice by 

such class or category ofsource, whichever is more stringent. The NSPR does not discuss LAER 

for PMJPMIO in these tenus. For example, Table ill-5 lists a "recent minimum" of 1.1 lblhr, but 

does indicate whether this emission rate reflects the most stringent SIP limit, or reflects the most 

stringent limit achieved in practice, or reflects something else. 

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 of how the BACTILAER emission limits were determined, and the limits were 

omitted'~from the ITA. 

~. NOx: The analysis of LAER for NOx for the auxiliary boiler and fuel dew point 

heater begins on page 28 of the 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 auxiliary boiler from 30 ppm down to 9 ppm, on the basis that it is not "cost-effective" and 

is "complex." These are not valid criteria for a LAER determination. 

Also, Table 1II-2 of the NSPR indicates that the proposed NOx LAER of0.035 IblMMBtu 

for the auxiliary boiler and 0.110 IblMMBtu for the fuel dew point heater are each an "estimated. 

emission level, not an 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. 

b. PMlO: The NSPR lacks any analysis of how LAER for PMIQ for the auxiliary 

boiler and. fuel dew point heater was determined. Table III-2 of the NSPR indicates that the 

proposed PMlO LAER of 0.01 IblMMBtu for the auxiliary boiler and 0.008 IblMMBtu for the 

fuel dew point heater are each an "estimated emission level, not an 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 of how 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 half the size of the 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 similar type of emitting unit should be 

considered LAER. 

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 auxiliary boiler, for the criteria pollutants 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 auxiliary boiler to 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 stack tests, 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 

intended to serve as BACT/LAER emission limits. The NSPR 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 in Table Ill-2, in terms oflblM1vffitu, are 

BACTILAER. Tables Ill-II and Ill-12 of the 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 or limit achieved in practice, 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 of the NSPR analyze for BACTILAER, but do not mention how this analysis 

might lead to any specific lblMMBtu figures. For NOx, page 34 of the NSPR concludes that 

LAER consists of proper combustion control. For PMlO, page 35 of the NSPR indicates that 

LAER consists of inlet air filtering and good combustion control. For CO and voe, page 34 of 

the NSPR indicates that BACT consists of good combustion control. For 502, page 35 of the 

NSPR indicates that BACT consists oflimiting operations to 200 hours per year. 

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 of 0.05 percent by weight sulfur content in fuel. It is unclear how these ITA 

8 
conditions relate, if at all, to the BACT/LAER analysis in the NSPR. No emission limits are 

proposed. in the ITA for PMlO, sax, NOx, CO or VOC for the standby generator or emergency 

flre pump. The State should clarify what the BACTfLAER detennination was for these emitting 

units, and revise the justification as 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 of these comments, we are asswning the 

correct model inputs/defaults were used. 

12. Inadequate explanation for inputs to modeling. The emissions used in the modeling 

.were selected based on an analysis of operations at the proposed facility under various loads and 

ambient temperatures. Page 6-11 of the 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 or why 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 were used in modeling the other pollutants (PM! 0, NOx, HAPs). 

13. Inadequate discussion of emission offsets. . 1bis comment is virtually identical to a 

comment we made on July 1, 2004 on the proposed Calpine permit in Utah. In Section 6.8 ofthe 

pennit application, page 6-14 says the applicant will obtain sufficient banked 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 on page 2 ofthe State's August 27,2004 modeling memo, that "An 

a.'1alysis for PMIO is not required 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 of any language in Utah's offset rules that exempts Utah from analyz7 

ing ambient impact for a pollutant where offsets have been obtained, or will 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 of the source. We have made this comment before on pennit 

actions for sources in the PMjQ nonattainment area. (Example: our June 30, 1999 comment 

9 
letter on a proposed permit to mcrease the allowed annual ore production at Kennecott's 

Bingham Canyon copper mine.) 

15. Startup/shutdown/transient load conditions should be factored into modeling. We 

could not find any indication that alternate BACT emission limits and allowed hours of operation 

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 emission rate 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 should be cleared up. 

OTHER COMMENTS: 

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 

proposed in the NSPR. The ITA and NSPR should be corrected. 

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 of the Clean Air Act. Utah has committed to 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 of codifying the rule as part of the 

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 by the State at R307-403-3(3)(b», 

require the permit applicant to certify that: 

"all existing major sources in the State, owned or controlled by the 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 opportunity to comment. If you have any questions, please feel free to 

contact me at 303-312-6005, or Mike Owens ofmy staff at 303-312-6440. 

Sincerely, 

Richard R. Long, Director 

Air & Radiation Program 

cc:	 Regg Olsen (Utah DAQ) 

Rusty Ruby (Utah DAQ) 

John Jenks (Utah DAQ) 

Brock LeBaron (Utah DAQ) 

11
 
UNITED 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 of Air Quality 

Utah Dept ofEnvironmental Quality 

PO Box 144820 

Salt Lake City, UT 84114-4820 

Re:	 EPA Comments on Intent-to-Approve 

(Proposed PSD Major Modification Permit) 

for Hokim Devil's Slide Cement Plant 

Dear~:

This is to submit comments on the subject Intent-to-Approve (ITA), DAQE-IN0007019­

06. The purpose of the permit action is to allow an increase in annual clinker production, from 

799,100 tons to 930,000 tons. The permit action was classified by the State as PSD based on a 

projected PM i 0 emission increase of 62 tons per year, above PSD significance threshold, 

calculated on an actual-to-potential basis. No other PSD pollutants are projected to increase by 

significant amounts. The public comment period on this permit action expired on July 18,2006; 

however, we submitted a letter to you on that date indicating that since we did not receive a copy 

of the permit application until July 3, our opportunity to comment should extend to August 2. 

We note that the pennit application (dated November 2,2004) requests some permit 

changes which have already been made in two separate permit actions after the application was 

submitted, and which went through public comment: 

(1) The request for approval of an increase in clinker cooler capacity (yielding an 

expected increase of 7.6 tons per year of PMIO) was granted through a minor permit modification 

on January 31,2005. 

(2) The request for an increase in the S02 emission limit at the kiln (from 104 Iblhr to 

475 Ib/hr) was granted through a synthetic minor permit modification on August 18,2005. By 

"synthetic minor," we are referring to a sourcewide S02 emission limit of 457 tons per rolling 

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 by your staff that 

there has never been a PSD major modification at the kiln for S02, and that the S02 emission 

limit at the kiln is not a PSD BACT limit. 
.' '. ·.'. 

The only part of the pennit application that the State determined to be subject to PSD 

permitting is the request for an increase in allowed clinker production. Below are our comments. 

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 

of a PSD "major modification" the proposed increase in allowed clinker production is a change 

in the method of operation of the 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 of operation of the cement plant necessarily means a change in method of operation of 

the kiln. 

If a significant emission increase ofPMlO was to be projected at the kiln, PSD rules 

would require a new BACT analysis for the kiln. No such analysis has been presented. 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 i 0 

emission increase is expected at the kiln, even though the annual clinker production will be 

allowed to increase by 16 percent. We could not find any explanation for this in the MSPR. We 

asked your staff about this and were informed verbally that no increase is expected because the 

PMlO emission factor has been effectively reduced by efficiency gains at the kiln. We would 

appreciate a more detailed explanation. It is not clear to us why efficiency gains would yield a 

lower PMlO emission factor. 

BACT for condensible particulate matter should be considered in determining PSD 

applicability and compliance. 

Emissions of condensible particulate matter (CPM) are not estimated or otherwise 

discussed in the MSPR. CPM is a component of total PMlO. It counts toward PSD applicability 

determinations and must also be considered in PSD BACT determinations. We would appreciate 

an explanation of whether or not CPM was considered in the above-mentioned detennination of 

no emission increase at the kiln. Also, contrary to ITA condition 10.F, which says "back half 

condensibles shaJJ not be used for compliance demonstration but shall be used for inventory 

purposes," CPM must be considered in determining compliance with PSD BACT emission limits 

for PMlO. We made 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 of the proj ected 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 operating practices, and baghouseslbin vents on numerous 

transfer points." This is not an adequate discussion. An updated top-down BACT analysis 

should be presented, including a description of what specific transfer points 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 operating practices, and whether or not a fugitive dust 

2 
control plan was considered necessary. It is especially important to document that BACT has 

been satisfied because emissions from expanded operations at the quarry have been modeled at 

95% of the annual PMJO NAAQS. 

Unclear what emission averaging times were used in modeling other contributing sources 

for PSD increment consumption. 

The text on page 5·2 of the MSI modeling report indicates 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 emissions rates should be calculated based on 24 hour average emission 

rates for the short term PMlO increment, and annual averages for the annual PM10 increment. 

Issuance of variance undermines PSD permitting process. 

The Abstract in the ITA indicates that the proposed increase in allowed clinker 

production corresponds to the production limit established in Ho1cim's current variance, issued 

by the Utah Air Quality Board in November of2oo5. EPA had previously informed the State 

that variance provisions need to be removed from the Utah SIP. This example clearly illustrates 

why we consider the variance provisions to be a problem. The variance was granted to authorize 

!Jolcim to increase production and emissions before Holcim obtained a modified PSD permit. 

PSD is a pre-construction program; the PSD permit is required before the modification occurs. It 

is possible that Holcim has been operating without appropriate BACT in place since November 

01'2005. 

Director's discretion clauses should be removed from the permit. 

ITA condition 10.F says "The back half condensibles shall also be tested using the 

method specified by the Executive Secretary." This language is a form of director's discretion 

and should be removed. We see no reason why M;ethod 202 should not be specified. We made a 

similar comment on April 20, 2004, in regard to the Pacificorp Currant Creek permit action, and 

on March 25,2005, in regard to a number of director'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's unavoidable breakdown rule, should be 

removed. Utah's unavoidable breakdown rule provides an exemption for excess emissions 

resulting from an unavoidable breakdowl1. Utah has been advised on a number of occasions that 

the unavoidable breakdown rule is not consistent with EPA's interpretation ofthe Clean Air Act 

and that the TIlle should not be referenced in Utah's permits. Also, under EPA's interpretations 

of the Clean Air Act, PSD BACT limits apply at all times. PSD BACT emission limits in the 

permit cannot be subject to this or any other exemption. 

3 
Condition on post-construction ambient monitoring should be made clearer. 

ITA condition 29 requires Holcim to "continue off-site post-construction monitoring of 

PM10 on a daily basis for a minimum of one year." This wording is confusing, as no new 

construction is being permitted in this permitaction. We discussed this with your staff and were 

informed that ambient monitoring has already been conducted for at least half a year, such that 

the intent of ITA condition 29 is to require monitoring to continue for approximately another 

half a year after this modified permit is issued. We recommend the condition be reworded to 

make this clear. 

Explanation never provided on why there is no 3-hour emission limit in the permit for S02 

at the kiln. 

When the State permitted the above-mentioned S02 emission increase at the kiln a year ago, 

emissions were modeled at 475 lblhr on both a 3-hour basis and a 24-hour basis, but the only 

short-term S02 emission limit in the permit is 475 lblhr on a rolling 24-hour average. We would 

appreciate an explanation why emissions from the kiln on a 3-hour basis should be modeled at 

the same rate as the 24-hour basis, absent a permit emission limit on a 3-hour basis. 

Thank you for considering these comments. Please feel free to contact Mike Owens of 

my staff at 303-312-6440 if any technical questions, or Kevin Golden at 303-313-6442 if any 

modeling questions, or Jonah Staller in our Office of Regional Counsel at 303-312-6855 if any 

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 of violation 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 of a civil penalty in any action to 

enforce an applicable requirement, the owner or operator of the 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 of the excess emissions (including any bypass) were 

minimized to the maximum extent practicable during periods of such emissions; 

II E.1.e. All Reasonably possible steps were taken to minimize the impact of the excess 

emissions on ambient air quality; 

1I.E.1.f All emissions monitoring systems were kept in operation (if at 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; 

II E.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. Notification 
The owner or operator of the facility experiencing excess emissions during a malfunction shall notify the 

division verbally as soon as possible, but no later than noon of the Division's next working day, and shall 

submit written notification following the initial occurrence of the 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 meet federally 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 

set taking 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 under the Colorado Air Pollution Prevention and Control Act ("Act") 

including provisions of the 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 of an 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 of the Commissions' regulations for civil penalties in enforcement actions regarding excess 
emissions 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 of violation of these 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 of the 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 of the 

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