EPA's Interpretation of the Clean 

Air Act 

Excess Emissions during startup, shutdown, 

maintenance and malfunction 

January 19, 2005 Meeting with Uta h 

Department of Air Quality, Industr y 

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 Attainment and maintenance of the 

national ambient air quality 

standards (NAAQS) 

o Protection of the 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 of the NAAQS 

1 
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 if the revision would interfere 

with any applicable requirement 

concerning attainment....(s. 110(1)) 

PSD Increments 

o Act requires that the SIP contain 

emission limitations and such other 

measures as may be necessary to 

prevent significant deterioration of 

air quality in attainment and 

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 of excess 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 of the NAAQS 

or exceedences of the PSD increments 

2 
EPA's Interpretation Regarding Excess 

Emissions Stated in: 

-1977 Federal Register Actions 

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) 

10 

1977 Federal Registers Actions 

discretion VS. automatic exemption for 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 that some relief should be 

afforded during certain upset situations, but this 

should not diminish 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 of the violation. 

II 

1977 Federal Registers Actions 

excess emissions during startup and shutdown 

o	 EPA concluded that it is reasonable to 

expect that emission limitations will not 

be violated during startup and shutdown. 

o Starting up and shutting down are part of 

normal operations and should be 

accounted for in the design and 

implementation of the operating 

procedures. 

o Exception:	 if the source can demonstrate 

that there was a malfunction when 

starting up or shutting down. 

II 

3 
1977 Federal Registers Actions 

excess emissions during maintenance 

o	 EPA concluded that no excess anissions 

would be allowed during periods of 

routine maintenance. 

o Routine maintenance can be c01sidered a 

predictable event that can be scheduled 

to coincide with maintenance 01 

production equipment or other 

shutdowns. 

o Would also be inconsistent with	 EPA's 

approach to NSPS, which does not permit

excess emissions during periods of 

scheduled maintenance. 

13 

1982/1983 Policy Memoranda 

o	 EPA will not approve a SIP that provides

an automatic exemption for perrods of 

excess emissions. 

o	 EPA 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 of allo.ving the 

enforcement discretion approach. 

o Added the concept of allowing affirmative 

defense provisions. 

o Clarified that EPA does not int61d to 

approve SIP provisions under which a 

state's decision not to pursue 

enforcement might tar EPA or citizens 

from enforcing SIP. 

15 

Affirmative Defense Provisions 

o	 Provisions that go beyond "enforcement 

discretion" 

o	 SIP provisions (for startup, shutdown and 

malfunction) that would, in the context of an 

enforcement action for excess emissions, excuse 

a source from penalties if the 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 of the Act (attainment and 

maintenance of the NAAQS and protection of the 

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 a judicial or administrative 

proceeding. 

o	 If approved into a SIP, the affirmative 

defense is available to sources in an 

enforcement action seeking penalties brought by the state, EPA or citizens. 

11 

Excess Emission Provisions Cannot 

Bar EPA or Citizen Enforcement 

o Sections 113 and 304 of the Act allow EPA 

and citizens to enforce federall,r-approved 

SIP provisions. 

o Excess emission provisions	 in SIPs cannot 

be the type that could be interpreted to 

bar EPA's or citizens' ability to enforce 

applicable requiranents: 

o Example, the stat e's decision to not enf orce 

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 perfomance standards (e.g. NSPS, NESHAP) - EPA set stardards taking into account technological limitations. 

o	 Also, should not apllly to eml$lon limits with averaging times greater than 24 hours,BACT or LAER limits or limits that already contain relef for startup, shutdown, or malfunction or for whi:h no relief waslntended. 

o	 Can only apply to exce5 emissions resulting from 

malfunction!> startup ard shutIlown. 

o	 Not appropriate for excESS emission resulting from 

maintenance. 

o	 Excess emissions still considerEd a violaton. 

Concerns with 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 

o Affirmative Defense during 

scheduled maintenance 

o Some provisions overly broad 

o Miscellaneous 

5 
Rule Confuses Affirmative Defense 

with Enforcement Discretion 

o	 Affirmative defense is a defense that may be 

raised in the context of an enforcement 

proceeding before an Independent trier of fact. 

o	 Independent trier of fact determines whether the 

elements of the 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 of the 

affirmative defense, but this would be the state's 

exercise of enforcement discretion. 

" 

Decision of Executive Secretary 

Binding on EPA and Citizens 

o R307-107-2(4) and (5) could be 

construed to bar EPA and citizens 

from enforcing applicable provisions 

of the SIP. 

o Inconsistent with regulatory scheme 

established in Title I of the Act. 

o EPA and citizens must be able to 

enforce violations regardless of 

state's decision. 

" 

Excess Emissions Not Violations 

o R307-107-2(2) and (3) indicate that 

excess emissions will constitute a 

violation unless the incident 

qualifies as an affirmative defense 

o Provisions inconsistent with the Act 

o All excess emissions must be 

considered violations 

22 

Affirmative Defense During Scheduled 

Maintenance 

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

for excess emissions during scheduled 

maintenance. 

o	 EPA's interpretation of the 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 of an affirmative 

defense to penalties, to schedule maintenance on control eqUipment while they continue to operate 

production processes. 

" 

6 
Some Provisions Overly Broad 

o	 R307-107-2(1) indicates that it applies to 

all sources except under cstain 

situations, 

o Could be read	 that separate provisions 

contained in other rules, apprO/aI orders, 

and permits take precedence. These 

other provisions could be less stringent 

than the excess emission rule and may 

not ensure protection of the NAAQS and 

PSD increments. 

2S 

Miscellaneous 

--~-----------

o	 R307-107-2(2)(b) and ~3)(a) reference
 

"Good industry practice - term is not
 

familiar and it may not be sufficiently
 

protective of the NAAQS and PSD
 

Increments
 

o	 R307-107-2(2)(c) and (3)(d) should
 

embody the notion that all steps were
 

taken and not tempa-ed by reference to
 

"general industry adopted practices."
 

o	 R307-107-2(2)(e) and (3)(e)must 

require maximum effort on the part of the 

source to minimize emissions. 

Miscellaneous (continued) 

o	 R307-107-1(Z)(c) - definition of malfunction 

needs to indicate that not only is it a 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 

affirmative defense provisions. It is only 

appropriate to approve an affirmative defense to 

penalties and the application of the defense must 

be limited to judicial or administrative 

enforcement proceedings. 

27 

Miscellaneous (continued) 

o To assure protection of the NAAQS and 

increment, the affirmative defense 

provisions for startup, shutdo.vn and 

malfunction should also contain provisions 

that limit the affirmative defense to area; 

and pollutants where a single 9)urce or a 

small group of sources does not have the 

potential to cause an excee:Jence of the 

NAAQS or PSD increments. 

7 
Miscellaneous (continued) 

o	 R307-107-3 contains reporting and 

recordkeeping requirements - we 

are concerned that the reporting 

requirement only apples to excess 

emissions lasting two hours or 

longer. 

" 

8