2/15/05 draft excess emissions rule 'from your email of 3/2/05 

Jonah Staller to: FNELSON 05/19/2005 01 :24 PM 

Ce: Laurie Ostrand 

Bee: Jonah Staller 

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 with you or others. 

l} We don't think we'll be able to approve the provisions in R307-107-2(1} as 

currently written. This paragraph could be 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) or prevention of 

significant deterioration (PSD) increments. We cannot sanction, through 

SIP approval, the automatic application of substitute state provisions 

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, or performance standards 

(l) are derived from or contained in federally promulgated performance 

standards or emission limits, such as new source performance standards 

(NSPS) and national emission standards for hazardous air pollutants 

(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 should be clarified that the administrative defense is only for 

penalties and should be revised as follows: " ... an affirmative defense 

to penalties in an administrative or judicial proceeding if the owner 

or operator... " In each instance, include a separate provision 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 in our October 22, 2004 letter and 

explained the basis for the language we were suggesting. While you may 

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 consistency process.** There is 
no guarantee that the outcome of that process would be a decision to
 

change our interpretation. The uncertainty inherent in this process can
 

be avoided through adoption of provisions consistent with our current
 

interpretations of the Act, as reflected in our September 1999 policy on
 

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 air pollution control
 

practices."
 

b) R307-107-2(2) (e) omits "maximum" before the word "extent."
 

c) R307-107-2 (2) (f) and (3) (f) say "all practicable" 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 either the 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
 

and pollutants where a single source or a 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 and pollutants 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 air pollution control practices."
 

g) R307-107-2(3) (e) omits "maximum" before the word "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 to why you have
 

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 to discuss these comments with you. 

Please note that this email contains staff's current views on this 

matter. These views should not be considered EPA'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. 

**EPA has been held to have acted arbitrarily and capriciously when it has 

treated areas differently. The Agency's consistency process 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 an Agency interpretation set forth in a 

guidance document unless a change in interpretation has been approved 

through the consistency process. 
Jonah Staller
 

Associate Regional Counsel
 

EPA Region VIII
 

Denver, Colorado 80202
 

999 18th Street, Suite 300
 

phone: 303 312-6855
 

fax: 303 312-6859