## EPA's Interpretation ofthe Clean AirAct Excess Emissions during startup, shutdown, maintenance and malfunction

January 19, 2005 Meeting with Utah Department ofAir Quality, Industry Stakeholders and EPA 

## Presentation Topics

o Background o EPA's interpretation regarding

excess emissions o Concerns with Utah's draft excess

emission rule



## Background

o Attainmentand maintenance ofthe

national ambient air quality standards (NAAQS) o Protection ofthe prevention of

significant deterioration (PSD) increments 

## NAAQS

o Clean Air Act (Act) requires slates to

obtain and maintain the national ambient air quality standards (public health and welfare based standards) o States develop state implementation

plans (SIPs) providing for implementation, maintenance and enforcement ofthe NAAQS



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## NAAQS (continued)

o States given authority to determine

control measures in SIP
o 

### EPA determines whether SIP meets

the Act's requirements o EPA shall not approve a revision of

a plan ifthe revision would interfere with any applicable requirement concerning attainment..

..(s. 110(1)) 

## PSD Increments

o Act requires thatthe SIP contain

emission limitationsand such other measures as may be necessary to preventsignificant deterioration of air quality in attainmentand unclassifiable areas

EPA's Interpretation Regarding Excess Emissions

o Excess emissions in general o Review of EPA interpretations o Affirmative defense provisions
o

### Excess emission provisions cannot

bar EPA or citizen enforcement 

## Excess Emissions in General

o

### Since 1977, EPA has interpreted

that all periods ofexcess emissions must be deemed violations • Excess emissions
- an air emission

level which exceeds any applicable emission limitation • Any excess emissions might cause or

contribute to violations ofthe NAAQS orexceedences ofthe PSD increments



## 2

### EPA's Interpretation Regarding Excess Emissions Stated in: -1977 Federal RegisterActions

4/27/77 (42 FR 21472) and 11/8/77 (42 FR 58171); -1982/83 Bennett policy memoranda -9/20/99 Herman/perciasepe policy

memorandum -12/5/01 Schaeffer/Seitz policy

memorandum clarifying 1999 memorandum 

### EPA's Interpretations Regarding Excess Emissions Upheld in: Michigan De!'artment of Environmental Quality v.

EPA, 230 F.3d 181 (6th Cir. 2000) 

### EPA's Interpretations Regarding

Excess Emissions Given Deference in: Sierra Club, et aI., v. Georgia Power Company, Civil

Action No. 3:02-CV-1S1-JTC, (N.D. Ga. December 14, 2004)

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### 1977 Federal Registers Actions discretion VS. automaticexemptionfor malfunctions

o EPA determined that the automatic granting of a

regulatory exemption for periods of excess emission is not a suitable remedy. o EPA recognized thatsome relief should be

afforded during certain upsetsituations, butthis should notdiminish the source's incentive to develop better operating and maintenance procedures. o EPA determined the best approach is that excess

emissions be considered vioiations but allow sources to submit information that could be used to determine the seriousness ofthe violation.

II 

## 1977 Federal Registers Actions excess emissions during startupand shutdown
oEPA concluded that it is reasonable to

expect that emission limitations will not be violated during startup and shutdown. o Starting up and shutting downare part of

normal operations and should be accounted for in the design and implementation ofthe operating procedures. o Exception: ifthe source can demonstrate

thattherewas a malfunction when starting up or shutting down.

II



## 3

### 1977 Federal Registers Actions excess emissions during maintenance

oEPA concluded that no excess anissions

would be allowed during periods of routine maintenance. o Routine maintenance can be c01sidered a

predictable eventthat can be scheduled to coincide with maintenance 01 production equipment or other shutdowns. o Would also be inconsistent withEPA's

approach to NSPS, which does not permit excess emissions during periods of scheduled maintenance.

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## 1982/1983 Policy Memoranda

oEPA will notapprove a SIP thatprovides

an automatic exemption for perrods of excess emissions. oEPA will approve SIP revisions which

incorporate an "enforcement discretion" approach for unavoidable malfunctions. However, excess emissions must still be considered violations. o Excess emissions from startuPr shutdown

and maintenance to be treatea as violations (i.e., enforcement a:tion must be initiated) unless certain criteria met



## 1999/2001 Policy Memoranda

o Reaffirmed the concept ofallo.ving the

enforcement discretion approach. o Added the concept of allowingaffirmative

defense provisions. o Clarified that EPA does not int61d to

approve SIP provisions underwhich a state's decision not to pursue enforcement might tar EPA or citizens from enforcing SIP.

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## Affirmative Defense Provisions

o Provisions that go beyond "enforcement

discretion" o SIP provisions (forstartup, shutdown and

malfunction) that would, in the context ofan enforcement action for excess emissions, excuse a source from penalties ifthe source can demonstrate that It meets certain objective criteria o Only applies to actions for penalties and not

injunctive relief
- so that the fundamental requirements ofthe Act (attainment and maintenance ofthe NAAQS and protection ofthe PSD increments) can still be met

### Affirmative Defense Provisions (continued)

o The tenn affirmative defense means, in

the context otan enforcement proceeding, a response put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in ajudicial oradministrative proceeding. oIfapproved into a SIP, the affirmative

defense is available to sources in an enforcement action seeking penalties brought by the state, EPA or citizens.

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### Excess Emission Provisions Cannot Bar EPA or Citizen Enforcement

o Sections 113 and 304 ofthe Act allow EPA

and citizens to enforce federall,r-approved SIP provisions. o Excess emission provisionsin SIPs cannot

be the type that could be interpreted to bar EPA's orcitizens' ability to enforce applicable requiranents: o Example, the state's decision to not enforce

an exceedence of an emission limit cannot prevent EPA or citizens from seeking enforcement action. 

### Affirmative Defense Provisions (continued)

o Cannot apply to gp provisions that are rerived from

federally Qromulgated perfomancestandards (e.g. NSPS, NESHAP)

- EPA setstardards taking into accounttechnological limitations. o Also, should not apllly to eml$lon limits with averaging

times greater than 24 hours,BACT or LAER limits or limitsthatalready contain relef for startup,shutdown, or malfunctionor for whi:h no reliefwaslntended. o Can onlyapplyto exce5 emissions resulting from

malfunction!> startup ard shutIlown. o Not appropriate for excESS emission resulting from

maintenance. o Excess emissions still considerEd a violaton.



### Concernswith Utah's Draft Excess Emission Rule
o Rule confuses affirmative defense

with enforcement discretion o 

### Excess emissions not violations o Decision of Executive Secretary

binding on EPA and citizens oAffirmative Defense during

scheduled maintenance o Some provisions overly broad o Miscellaneous



## 5

### Rule ConfusesAffirmative Defense with Enforcement Discretion

o Affirmative defense is a defense that may be

raised in the context ofan enforcement proceeding before an Independenttrierof fact. o Independenttrier offact determines whetherthe

elements ofthe affirmative defense have been met
- not the state (see R307-107-2(4)). o Before pursuing an enforcement action, the state

might evaluate the likelihood that an owner/operator could prove the elements ofthe affirmative defense, but this would be the state's exercise ofenforcement discretion.



## "

Decision of Executive Secretary Binding on EPAand Citizens
o R307-107-2(4) and (5) could be

construed to bar EPA and citizens from enforcingapplicable provisions ofthe SIP. o Inconsistentwith regulatory scheme

established in Title I ofthe Act. o EPA and citizens must be able to

enforce violations regardless of state's decision.


## " Excess Emissions NotViolations

o R307-107-2(2) and (3) indicatethat

excess emissions will constitutea violation unless the incident qualifies as an affirmative defense o Provisions inconsistent with theAct oAll excess emissions mustbe

considered violations

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### Affirmative Defense During Scheduled Maintenance

o R307-107-2(3) provides an affirmative defense

for excess emissions during scheduled maintenance. o EPA's interpretation ofthe Act is that excess

emissions during maintenance should be addressed through enforcement discretion and not an affirmative defense. o Not appropriate to prOVide any incentive to

owners or operators, in the form ofan affirmative defense to penalties, to schedule maintenance on control eqUipment while they continue to operate production processes. 

## "

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### Some Provisions Overly Broad

oR307-107-2(1) indicates that itapplies to

all sources except under cstain situations, o Could be readthat separate provisions

contained in other rules, apprO/aIorders, and permits take precedence. These other provisions could beless stringent than the excess emission rule and may notensure protection ofthe NAAQS and PSD increments.

2S 

## Miscellaneous**--~-----------** oR307-107-2(2)(b) and**~3)(a)** reference

"Good industry practice
- term is not familiar and it may not be sufficiently protective ofthe NAAQS and PSD Increments oR307-107-2(2)(c) and (3)(d) should

embody the notion that all steps were taken and nottempa-ed by reference to "general industry adopted practices." oR307-107-2(2)(e) and (3)(e)must

require maximum efforton thepart ofthe source to minimize emissions.



## Miscellaneous (continued)

o R307-107-1(Z)(c)
- definition ofmalfunction

needs to indicate that notonly is ita sudden but also an "unavoidable" failure of process equipment. o R307-107-Z(Z) includes an undefined phrase of

"other proceeding" and appears to broaden the affirmativedefense provisions. It is only appropriate to approve an affirmative defense to penalties and the application ofthe defense must be limited to judicial or administrative enforcement proceedings.

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## Miscellaneous (continued)

o To assure protection ofthe NAAQS and

increment, the affirmative defense provisions for startup, shutdo.vn and malfunction should also containprovisions that limitthe affirmative defense to area; and pollutants where a single 9)urce or a small group ofsources does not have the potential to cause an excee:Jence ofthe NAAQS or PSD increments.



## 7

## Miscellaneous (continued)

o

### R307-107-3 contains reporting and

recordkeeping requirements
- we are concerned thatthe reporting requirement only apples to excess emissions lasting two hours or longer.



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