### 2/15/05draftexcessemissionsrule'fromyouremailof3/2/05 JonahStaller to: FNELSON 05/19/200501:24PM Ce: LaurieOstrand Bee: JonahStaller

Fred
Thank you for the opportunity to,review the revised draft of Utah's excess emissions rule. While we think the draft rule is improved, we still have concerns with several provisions as noted below. We would be happy to discuss these comments withyou or others. l} We don't thinkwe'll be able to approve the provisions in R307-107-2(1} as currently written. This paragraph couldbe interpreted as allowing less stringent affirmative defense criteria or outright exemptions established in a state rule, approval order or a permit to take precedence over the requirements of R307-107-2 and not protect the national ambient air quality standards (NAAQS) orprevention of significant deterioration (PSD) increments. We cannot sanction, through SIP approval, the automatic application of substitute stateprovisions we have never seen or approved. We made a similar comment in our October 22, 2004 letter and suggested changes to the rule to address our concerns. The changes you have incorporated in the current draft of the rule are not consistent with our suggestions and still do not address our concerns. Perhaps an alternative way to address our concerns is to shorten the language in R307-107-2(1} to read: "R307-107-2 is applicable to all sources except where emission standards, limits, orperformance standards (l) are derived from or contained in federally promulgatedperformance standards or emission limits, such as new source performance standards (NSPS) and national emission standards for hazardous airpollutants (NESHAPS), or (2) have an averaging time greater than twenty-four hours." For your information, this language is generally consistent with language that the State of Colorado has adopted in its Common Provisions regulation for startups and shutdowns. 2} The provisions in R307-107-2(2} and (3) need to be clarified. Both provisions read "

... an affirmative defense to an administrative or judicial proceeding, other than an action seeking injunctive relief, and is excused from penalties if the owner or operator

..." We think the rule shouldbe clarified that the administrative defense is only for penalties and shouldbe revised as follows: "

...an affirmative defense topenalties inan administrative orjudicialproceeding if the owner or operator

..." In each instance,include a separateprovision that clearly states that the affirmative defense is not available to claims for injunctive relief. 3} Several of the affirmative defense criteria are not consistent with our current interpretations of the Act regarding excess emissions. We highlighted most of these issues inourOctober 22, 2004 letter and explained the basis for the language we were suggesting. While youmay view some of the differences as minor, we do not necessarily agree; we think some or all of these changes are important because they may make a substantive difference. Even if you could convince Region 8 staff to support some of the changes, we would not be able to propose to approve the relevant provisions without first seeking review of the proposed deviations through the Agency's consistencyprocess.** There isno guarantee that the outcome of that process would be a decision to change our interpretation. Theuncertainty inherent in this process can be avoided through adoption of provisions consistent with our current interpretations of the Act, as reflected inour September 1999 policyon excess emissions.
The provisions that are not consistent with our interpretations include: a) R307-107-2(2)(b) omits "better" before the word "design" and adds at the end of the sentence "consistent with good airpollution control practices." b) R307-107-2(2)(e) omits "maximum" before the word "extent." c) R307-107-2(2)(f) and (3)(f) say "allpracticable" rather than "all possible." d) R307-107-2(2)(h) and (3)(h) omit "properly signed" before "contemporaneous." e) R307-107-2(2)(k) and (3)

### (j) indicate that eitherthe source or a group of sources did not "cause or contribute to" an exceedance of the NAAQS or PSD increment. While this is good as far as it goes, it does not completely address the concerns reflected in our guidance. Under our interpretation, affirmative defenses are not appropriate for areas andpollutants where a single source ora small group of sources "has the potential to cause" an exceedance of the NAAQS or PSD increment. This suggests that the affirmative defense rule should also carve out exceptions to applicability for certain areas andpollutants up-front, as appropriate. For example, our September 1999 guidance suggests that an affirmative defense is not appropriate for S02 limits in S02 nonattainment areas. f) R307-107-2(3)(a) adds at the end of the sentence "consistent with good airpollution control practices." g) R307-107-2(3)(e) omits "maximum" before theword "extent." 4) We are still concerned that R307-107-3(2)(a) only requires reporting of excess emissions that last two hours or longer rather than all excess emissions. On several occasions we have inquired as towhyyouhave this provision and whether or not there are other reporting requirements that would still apply to all excess emissions. Without further explanation, we believe this provision should require the reporting of all excess emissions.
As stated above, we would be happy todiscuss these comments withyou. Please note that this email contains staff's current views on this matter. These views should not be consideredEPA's final position, which we will only reach through notice and comment rulemaking after the state has submitted a rule for our approval as a SIP revision.

**EPAhas been held to have acted arbitrarily and capriciouslywhen ithas treated areas differently. The Agency's consistencyprocess is for the purpose of ensuring that the regional offices and headquarters are interpreting and applying the Act (as interpreted through, among other things, regulations and guidance) consistently. Thus, while our guidance documents (such as the SIP excess emissions guidance document) are not binding regulations, the Regional Administrator cannot approve a SIP revision that is inconsistent with anAgency interpretation set forth in a guidance document unless a change in interpretationhas been approved through the consistencyprocess.

### JonahStaller AssociateRegionalCounsel EPARegionVIII Denver,Colorado 80202 99918thStreet,Suite300 phone: 303312-6855 fax: 303312-6859