ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-0AR-2006-0132; FRLApproval and Promulgation ofImplementation Plans; Texas; Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities

AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: The EPA is proposing to partially approve and partially disapprove a revision to the Texas State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) in a letter dated January 23, 2006 (the January 23,2006 SIP submittal). This SIP submittal concerns revisions to 30 Texas Administrative Code (TAC) Chapter 101, General Air Quality Rules, SubchapterA General Rules; and SubchapterF Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities. This action proposes approval ofthose portions ofthe rule that are consistent with the Clean Air Act (the Act), and disapproval ofthose portions ofthe rule that are inconsistent with the Act. We are proposing disapproval ofprovisions that provide for an affirmative defense againstcivil penalties for excess emissions during planned maintenance, startup, or shutdown activities. A disapproval ofthese provisions means that an affirmative defense is not available in the federally approved SIP for violations due to excess emissions during planned maintenance, startup, or shutdown activities. This action is in accordance with section 110ofthe Act.

DATE: Comments must be received on or before [Insert date 30 days from date ofpublication in2 

### the Federal Register]. ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-0AR-2006-0!**~;~.** 

### by one ofthe following methods: • Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

• u.S. EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm. Please click on "6PD" (Multimedia) and select "Air" before submitting comments. • E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by email to the person listed in the FOR FURTHER INFORMAnON CONTACT section below. • Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214- 665-7263. • Mail: Mr.GuyDonaldson.Chief. Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. • Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only betweenthe hours of8:00 a.m. and 4:00 p. m. weekdays except for legal holidays. Special arrangements should be

### made for deliveries ofboxed information.

Instructions: 

### Direct your comments to Docket ID No. EPA-R06-0AR-2006-0132. The EPA's policy is that all comments received will be

### included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business3 Information (CSI) or other information the disclosure ofwhich is restricted by statute. !)li:'" submit informationthrough www.regulations.gov or e-mail that you considerto be CBI or otherwise protected from disclosure. The www.regulations.gov website is an "anonymous access" system, which means EPA will not know your identity or contact information unless yu!! provide it in the body ofyourcomment. If you send an e-mail commentdirectly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part ofthe comment that is placed in the public docket and made available on the Internet. If you submitan electronic comment, EPA recommends that you include your name and othercontact information in the body ofyour comment and with any disk or CD-ROM you submit. If EPA cannot read your commentdue to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free ofany defects or viruses. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available eitherelectronically in www.regulations.gov or in hard copy at the Air Planning Section (6PDL), Environmental ProtectionAgency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOrA Review Room betweenthe hours of8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contactthe person listed in the FOR FURTHER INFORMATION CONTACTparagraph below to make an appointment. Ifpossible, please make the appointment at least two working days in advance ofyour visit. There will be a 15 cent per page fee for making photocopies of4 

### documents. On the day ofthe visit, please check in at the EPA Region 6 reception 

### area :

### ,1**j.~** l 

### Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment: TCEQ, Office ofAir Quality, 12124 Park 35 Circle, Austin, Texas 78753. FOR FURTHER INFORMATION CONTACT: 

### Mr. Alan Shar, Air Planning Section (6PDL), Environmental ProtectionAgency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax (214) 665-7263, e-mail address shai.alan@epa.gov.

SUPPLEMENTARY INFORMATION: 

### Throughout this document "we," "us," and "our" refer to EPA. Outline I. Background A. What actions are weproposing? B. 

### What documents did we use in our evaluation ofthe January 23,2006, SIP submittal? C. 

### What is the background for this proposed rulemaking action? D. Why are weproposing approval ofportions ofthe January 23, 2006 SIP submittal? E. Why are we proposing disapproval ofsections 101.222(h), 101.222(i), and 101.222(j) ofthe January 23,2006 SIP submittal? F. What happens ifTexas continues to implement section 101.222(h) as a State law? II. Proposed Action5
III. 

### Statutory and Executive Order Reviews 

### I. Background A. What actions are we proposing? We are proposing to approve revisions to 30 TAC, General Air Quality Rule 101, SubchapterA General Rules; and Subchapter F Emissions Events and Scheduled Maintenance. Startup, and Shutdown Activities ofthe January 23,2006 submittal as revisions to the federallyapproved SIP. Specifically, we are proposing to approve SubchapterA, section 101.1 (Definitions); and Subchapter F, sections 101.201 (Emissions Event Reporting and Recordkeeping Requirements), 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), 101.221 (Operational Requirements), 101.222 (a) through (g) (Demonstrations), and 101.223 (Actions to Reduce Excessive Emissions) into the Texas SIP. We are also proposing to disapprove sections 101.222(h) (Planned Maintenance, Startup,

or Shutdown Activity), 101.222(i) (concerning effective date ofpermit applications), and 101.222(j) (concerning processing ofpermitapplications) ofthe January 23, 2006 submittal. We

are proposing disapproval ofthese provisions because they provide for an affirmative defense againstcivil penalties for excess emissions during planned maintenance, startup, or shutdown activities. A disapproval ofthese provisions means that an affirmative defense is not available for violations due to excess emissions during planned maintenance, startup, or shutdown activities in the federally-approved SIP. Based on our review ofthe January 23, 2006 submittal, we believe that sections 101.222(h), 101.222(i), and 101.222(j) are severable from, and independent of, the remainder of the submittal. Therefore, our disapproval ofsections 101.222(h), 101.222(i), and 101.222(j), and6 approval ofthe remainder ofthe January 23, 2006 submittal, will not affect the implem,» ,I",' ofthe sections being approved today for inclusion in the SIP. See section 20 ofour Technic.u Support Document (TSD) prepared in conjunction with this document for more information,

B. What documents did we use in our evaluation ofthe January 23, 2006, SIP submittal? The EPA's interpretation ofthe Act as it applies to excess emissions occurring during periods ofstartup, shutdown, and malfunction is set forth in the following documents: a memorandum dated September 28, 1982, from Kathleen M. Bennett, AssistantAdministrator for Air, Noise, and Radiation, entitled "Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions" (1982 Policy); EPA's clarification to the above policy memorandum dated February 15, 1983, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation (1983 Policy); EPA's policy memorandum reaffirming and supplementing the above policy, dated September 20, 1999, from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance and Robert Perciasepe, Assistant Administrator for Air and Radiation, entitled "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown" (1999 Policy); EPA's final rule for Utah's sulfurdioxide control strategy (Kennecott Copper), April 27, 1977 (42 FR 21472);

.EPA's final rule for Idaho's sulfurdioxide control strategy, November 8, 1977 (42 FR 58171); and the latestclarification ofEPA's policy issued on December 5, 2001 (2001 Policy). See the policy or clarification ofpolicy at: http://www.epa.gov/ttn/oarpg/tlpgm.html (URL dating July 22,2008). The EPA'sinterpretationthatthe Actprohibits the inclusion in SIPs ofautomatic exemptions from emission limitations for sources in certain startup, shutdown, or malfunction7
situations was upheld by the United States Court ofAppeals for the Sixth Circuit inMicl», :/' Department Of Environmental Quality v, Browner, 230 F.3d 181 (6th Cir. 2000).

C. What is the background for this proposed rulemaking action?

On March 30,2005 (70 FR 16129), we granted limited approval to SIP revisions to Chapter 101, Subchapter A and Subchapter F, including sections 101.221 (Operational Requirements), 101.222 (Demonstrations), and 101.223 (Actions to Reduce Excessive Emissions). The rules concerned reporting and recordkeeping requirements and enforcement actions for excess emissions during startup, shutdown, maintenance, and malfunction activities. We granted limited ratherthan full approval ofthat submission because we found sections 101.222(c) and (e) were ambiguous because they could be interpretedto provide an exemption from SIP permitting requirements or an affirmative defense for certain scheduled maintenance activities. See also our May 9,2005 (70 FR 24348) proposal, and August 26,2005 (70 FR 50205) final rule granting limited approval to an extension ofthe expiration dates for sections 101.221, 101.222 and 101.223 to June 30, 2006. As discussed below, however, the approved provisions, 30 TAC 101.221, 101.222, and 101.223 have expiredby their own terms, are no longerpart ofthe Texas SIP, and therefore are no longer enforceable under the SIP. On January 26,2006 we received a letter, dated January 23, 2006, from the Chairman of the TCEQ requesting EPA review and approve revisions to 30 TAC, General Air Quality Rule 101, SubchapterA General Rules; and SubchapterF Emissions Events and Scheduled Maintenance, Startup, and ShutdownActivities. The January 23, 2006 submittal included revised 30 TAC sections 101.1 (Definitions), 101.201 (Emissions Event Reporting and8 

### Recordkeeping Requirements), 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), and new sections 101.221 (Operational Requirements), 101.222 (Demonstrations), and 101.223 (Actions to Reduce Excessive Emissions). The previous version ofsections 101)21, 101.222, and 101.223 approved into the SIP in 2005 expired from the Texas SIP, by their own terms, on June 30, 2006. On March 23, 2006, we determined the January 23,2006 submittal administratively complete as reflected in a letter to the Chairman ofthe TCEQ. This administrative completeness letter is a part ofthe docket and available for public review. On February 8, 2007, EPA met with TCEQ to discuss issues related tothe January 23, 2006 SIP submittal. TCEQ responded to our questions in a letter dated April 17,2007 from John F. Steib, Jr, Deputy Director, TCEQ Office ofCompliance and Enforcementto John Blevins, DirectorEPA Compliance Assurance and Enforcement Division (April 17,2007 letter). The April 17,2007 letter is included in the docket for this action. We have reviewed the January 23,2006 submittal including Texas' response to our August 8, 2005 comment letter, and the April 17, 2007 letter and determinedthat,with the exception ofthe affirmative defense provisions discussed below, the January 23,2006 SIP submittal is consistent with our interpretation ofthe Act. See section D ofthis document for more information. We have determined that one ofthe affirmative defense provisions, new section lO1.222(h) (Planned Maintenance, Startup, or Shutdown Activity) ofthe January 23, 2006 submittal is inconsistent with the Act as interpreted in EPA policy and guidance, and therefore we are proposing disapproval ofthe new section 101.222(h), and two related provisions new sections 101.222(i), and 101.222 0). 

### See section E ofthis document for more information. Ifwe take final action to disapprovethe new sections 101.222 (h), (i) and 0), 

### no sanctions or9 Federal Implementation Plan clocks will be started under section 179(b) ofthe Act, bCCL1'_'>C' Texas did not submitthese provisions to satisfy a mandatory requirement ofthe Act. A 

### final disapproval action will mean that no affirmative defense againstcivil penalties will exist in the federally approved SIP for violations that occur during planned maintenance, startup, or shutdown activities.



### D. Why are we proposing approval ofportions ofthe January 

### 23, 2006 SIP submittal? The EPA interprets the Act such that all emissions in excess oflimits established in a SIP, including among otherthings, state control strategies and New Source Review SIP permits, are violations ofthe applicable emission limitation because excess emissions have the potential to interfere with attainment and maintenance ofthe National Ambient Air Quality Standards (NAAQS), reasonable further progress, state control strategies, or with the protection of Prevention ofSignificantDeterioration (PSD) increments. However, EPA recognizes that imposition ofa penalty for sudden and unavoidable malfunctions, startups or shutdowns caused by circumstances entirely beyond the control ofthe owneror operator may not be appropriate. The EPA has provided guidance on two approaches States may use in addressing such excess emissions: enforcementdiscretion and affirmative defense to civil penalties. Under an enforcement discretion approach, the State (or anotherentity, such as EPA, seeking to enforce a violation ofthe SIP) may considerthe circumstances surrounding the event in determining whether to pursue enforcement. Under the affirmative defense approach, the State may establish

an affirmative defense that may be raised in the context ofan enforcementproceeding. In an enforcement action, the defendantmay raise aresponse or defense 

### in an action for civil penalties,10 regarding which the defendant has the burden to prove that certain criteria have been 11K;**.'~'** . page 2 ofthe attachmentto the 1999 Policy. Neither approach may waive reporting requirements for the violation. States are not required to provide an affirmative defense approach, but ifthey choose to do so, EPA will evaluate the State's SIP rules for consistency with the Act as interpreted in our policy and guidance documents listed in section Babove. We are proposing to approve SubchapterA, revised section 101.1 (Definitions); and Subchapter F, revised sections 101.201 (Emissions Event Reporting and Recordkeeping Requirements) and 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), and new sections 101.221 (Operational Requirements), 101.222 (a) through (g) (Demonstrations), and 101.223 (Actions to Reduce Excessive Emissions), into the Texas SIP. TCEQ revised definitions in SubchapterA, section 101.1 as needed to implement Subchapter F and to implement other legislative changes. The changes define "planned maintenance, startup, or shutdown" and "unplanned maintenance, startup, or shutdown" activities; "excess opacity event;" and "emissions event;" and replace the terms "facility" and "site" with "regulated.entity." The submittal also includes several revisions to the SIP definition of"reportable quantity." See section 9 ofthe TSD for more information. We believe that the revisions to section 101.1 will provide for consistency amongsubchapters A and F, and will facilitate implementation ofthe rule. Therefore, we are proposing to approve the submitted revisions to section 101.1. Although we are proposing to approve all ofthe changes to the definitions section 101.1, including the definition for "planned maintenance, startup, or shutdown," as we have stated we are proposing to disapprove the regulatory provisions that would provide an affirmative defense for violations during these events. Our approval oftheI I submitted definition "planned maintenance, startup, or shutdown" insures that the report:**~:** recordkeeping requirements for these events will be appropriately applied. Revisions to sections 101.20 I (Emissions Event Reporting and Recordkeeping Requirements) relate to how and where to report excess emission events. The revisions make

numerous changes to the terms ofthe currently approved SIP, including adding requirements to file initial notifications and final reports with the local air pollution agencies withjurisdiction and to include TCEQ's regulated entity number with the report; modifying the requirementto report by facility to instead require reporting by emission point; allowing reporting without speciation ofthe pollutants emitted for events that have a reportable quantity less than 100 pounds or amounts less than ten pounds per 24 hours. Texas made anumberofother minor revisions to clarify reporting requirements that are described in section 10 ofthe TSD. We believe that these otherrevisions to the reporting requirements will facilitate implementation of the rule by clarifying the existing reporting requirements and establishing a new requirementthat local air pollution authorities be informed ofemissions events. See section 10ofthe TSD for

more information. Therefore, we are proposing to approve the revisions to section 101.201 .

.Revisions to 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements). This section ofthe SIP was last approved on March 30, 2005 (70 FR 16129) and had no expiration date. See Table II ofthe TSD. This section describes the requirements for owners and operator to make an initial notification at least 10 days priorto a scheduled maintenance, startup or shutdown activity and the requirements to provide a final report within 2 weeks after the event. Texas revised the rules to clarify that, ifduring a scheduled maintenance activity additional maintenance is required that results in unanticipated emissions, and that the maintenance was unforeseeable and requires immediate corrective action12 to avoid a malfunction, then the event is considered an unplanned maintenance activity or:» upset depending on the reasons. This change is relevant to the affirmative defense provision- ; . section 101.222 which require different criteriato be demonstrated in order to assert the affirmative defense for upsets and unplanned maintenance emission events versus planned maintenance, startup, and shutdown activities. Anotherchange to section 101.211 requires prereporting ofthe expected duration ofany maintenance, startup or shutdown activity. Section 101.211(t) adopts the requirement for annual reporting ofemissions resulting from scheduled maintenance, startup, and shutdown activities by a regulated entity. For entities subjectto emission inventory (EI) reporting, the annual emissions eventreport must be submitted with the EI report. The annual emissions event report must include the total number ofreportable and non-reportable emissions events and quantity ofemissions experienced at the regulated entity. Major sources statewide and minor sources in nonattainment, maintenance, early action compact areas, and Nueces and San Patricio Counties are subject to the annual emissions event reporting requirements. See section 7 ofthe TSD for more information. These revisions to section 101.211 will provide for reporting and recordkeeping provisions associated with scheduled maintenance, startup, and shutdown events, and will facilitate tracking ofthese events. Therefore, we are proposing to approve the revisions to section 101.211. Ifour proposed approval ofthese reporting requirements for scheduled maintenance, startup and shutdown events is finalized, it only means that facilities will need to make these required notifications. If we finalize our proposed disapproval ofsection 101.222(h), an affirmative defense will not be available for violations due to excess emissions during planned maintenance, startup, or shutdown activities.13 New Section 101.221 (Operational Requirements) discusses the requirement to maini..». pollution equipment in good working order. A previous version ofthis section was part ('1' lhe' SIP but that provision expired. This new section is important because it provides the requirement that air pollution abatement equipment must be maintained and in good working order. Paragraph (d) in Section 101.221 provides that the commission may exempt sources from control requirements when there is a lack oftechnical knowledge. The new section 101.221 also clarifiesthat no exemptions can be authorized by the commission for any federal requirements to maintain air pollution control equipment, including requirements such as New Source Performance Standards (NSPS) or National Emissions Standards for Hazardous Air Pollutants (NESHAP). In its letter ofApril 17, 2007, Texas confirmed that the term "federal requirements" includes any requirement in the federally-approved SIP. Thus, the State interprets this provision not to apply where the control requirement that has been approved as part ofthe SIP. We believe that this interpretation is critical to allowing us to approve the provision into the SIP. Ifthe TCEQ were to be allowed to exempt sources from control requirements specified in the SIP, such action could undermine the attainment and maintenance ofthe NAAQS. Thus, new section 101.221 is approvable only because the State has clarified that it does not allow exemptions to be provided for federal requirements including any requirement in the federally-approved SIP. See sections 13 and 14ofthe TSD for more information. New section 101.222(Demonstrations) provides an affirmative defense for certain emission events. Emission events are defined in the Texas rules as upsets that result inunauthorized emissions. Upsets are defined in the Texas rules similarto the term malfunction used inEPA's guidance. Section lO1.222(a) provides criteriain 101.222(a)(l) through 101.222(a)(6) to determine ifan emission event is excessive. Ifemission events are determined by the executive14 

### director to be excessive, the source may not assert an affirmative defense under sections 101.222(b) through 101.222(e). Section 101.222(b) adopts an affirmative defense for nonexcessive upset events. We have determined that the affirmative defense provided by section 101.222 (b) is consistent with the interpretation ofthe Act set forth in our 1999 Policy for the following reasons: 1) The rule does not provide an exemption from compliance with applicable emission limitations; 2) The affirmative defense provided is limited to upset or malfunctions; 3) The affirmative defense applies only to ajudicial or administrative enforcement action for a violation ofapplicable emission limitations; 4) The defense applies only to civil penalties and cannot be asserted for an enforcement action for injunctive relief. 5) The rule specifies criteria, which must be met in order to assert the defense that are consistent with those outlined inEPA's 1999 Policy; 6) The burden to prove that the criteriahave been met is on the owner or operator; 7) A determination by TCEQ that the criteriahave been met does not constitute a waiver of liability for the violation; 8) Nothing in the rule, including a determination by the TCEQ, would bar EPA or a citizen suitenforcement action for the emission violation; 9) The affirmative defense cannot be asserted where the unauthorizedemissions cause or contribute to an exceedance ofthe NAAQS, PSD increments or to acondition ofair pollution; 10) The affirmative defense may not be asserted against Federal performance or technology-based standards such as NSPS or NESHAP; 11) The affirmative defense may not be

### asserted where the Executive Director ofTCEQ determines that the emissions event is excessive under the criteria in section 101.222 (a); and 12) The emissions eventmust be reported to TCEQ under section 101.201 in order for the owner or operatorto assert the affirmative defense. Sections 101.222(c) and 101.222(e) provide a similar affirmative defense for unplanned15 

### maintenance, startup or shutdown activities that arise from sudden and unforeseeable event

### beyond the control ofthe operator that require immediate corrective action to minimize or ;]\", an upset or malfunction. This provision allows an affirmative defense where the source or operator has the burden to prove that maintenance activities undertaken arose from sudden or unforeseeable events beyond the control ofthe operator, that immediate corrective action was required to minimize or avoid an upset or malfunction and that the criteria in section 101.222(c) or (e) have been met. TCEQ provided supplemental information concerning sections 101.222 (c) and (e) in a letter dated April 17, 2007 (included in the docket for this action and available for public review) in response to questions from EPA. The April 17, 2007 letter confirmed that TCEQ interprets that unplanned maintenance events are "functionallyequivalentto EPA's 'malfunction' with regards to applicability ofan affirmative defense." See section 101.1(109)(B). Also see Tables 

### III and 

### VIn ofour TSD. The EPA agrees that TCEQ's treatmentof"unplanned maintenance, startup, or shutdown activity" is functionally equivalentto EPA's policy definition ofmalfunction. See pages 1 and 2 ofthe April 17, 2007 letter for details. In addition, the affirmative defense provided by TCEQ, including the criteriathat a source must prove in asserting the affirmative defense is consistent with EPA's recommended policy approach forproviding an affirmative defense for excess emissions during a malfunction. Therefore, we are proposing approval of 101.222(c) and (e) into the Texas SIP. As discussed elsewhere, we are proposing to disapprove section 101.222(h), which provides an affirmative defense for excess emissions during periods ofplanned maintenance, startup or shutdown activities. Sections 101.222(c)(1) and 101.222(e)(l) both include requirements for facilities to report scheduled maintenance, startup, or shutdown activities. Our approval ofsections 101.222(c)( 1) and 101.222(e)(1) only affirms a facility's requirement to16 provide notification ofthese events. However, while we believe that it is appropriate Io: ','.' to report such events, we do not believe that it is appropriate to provide an affirmative dcfcn-« for penalties for excess emissions during these planned events. Because these events are planned, we believe that sources should be able to comply with applicable emission limits during these periods oftimes. As discussed elsewhere, ifwe finalize our disapproval ofsection 101.222(h).

an affirmative defense will not be available for unauthorized emissions during these activities. Section 101.222(d) concerns excess opacity events due to an upset or opacity events that are not emissions events. As noted previously, emissions events are upsets that result in unauthorized emissions. See 101.1(28). Upsets are defined in the Texas rules similarto the term malfunction used in EPA's guidance. See Table IV ofour TSD. The affirmative defense criteria in sections 101.222(d) are specifically tailored for opacity related activities and follow the pattern ofthe criteria in'I 01.222(b). Therefore, we are proposing to approve the criteria in the section 101.222(d) provision for the same reasons we believe the criteria in 101.222(b) are consistent with our interpretation ofthe Act as outlined in our 1999 Policy, and we are proposing to approve section 101.222(d). See Table VII ofour TSD for more information. We are proposing to approve section 101.222(f) (Obligations) because this section provides that an affirmative defense cannot apply to violations offederally promulgated performance or technology-based standards, such as those found in 40 CFR parts 60, 61, and 63. This is consistent with EPA's interpretation ofthe Act as provided in the 1999 Policy at page 3. New Section 101.223 (Actions to Reduce Excessive Emissions) provides for a corrective action plan and written notification concerning excessive emission events. This section will enhance the Texas SIP by providing a clear requirementfor facilities determined to have\7 excessive emission events to take necessary corrective actions to reduce the future ocellij',:'. , such events. In summary, we are proposing approval of30 TAC, General Air Quality Rule 101, SubchapterA, revised,section 101.1 (Definitions); and Subchapter F, revised sections 101.201 (Emissions Event Reporting and Recordkeeping Requirements) and 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), and new sections 101.221 (Operational Requirements), 101.222 (Demonstrations, except lO1.222(h), 101.222(i), and 101.222(j)), and 101.223 (Actions to Reduce Excessive Emissions) into the Texas SIP.



### E. Why are we proposing disapproval ofsections 101.222(h), 101.222(i), and 101.222(j) ofthe January 23,2006 SIP submittal?

New Section 101.222(h) provides a temporary affirmative defense for planned maintenance, startup, or shutdown activity emissions, which are currently unauthorized, meet certain criteria, and have been reported in accordance with section 101.211. See section 101.1(l09) or Table III ofour TSD for the definitionofunplanned maintenance, startup, or shutdown activity. This section (l01.222(h)) also sets forth a time table for an owneror operatorto file a permitapplication to authorize startup, shutdown, and maintenance activities from routine or normal operations based on facility's SIC code. The affirmative defense for planned maintenance, startup, or shutdown activities expires the earlier ofone year after the application deadlines in the rule or upon issuance or denial ofapermitto authorize planned maintenance,18 startup, or shutdown activities. We**beli~ve** that section lO1.222(h) (Planned Maintenance Startup, or Shutdown Activity) is inconsistent with the Act as interpreted in EPA's long stanclii national policy on excess emissions during startup, shutdown, maintenance, and malfunction activities and in actions taken by EPA regarding excess-emissions-related SIP revisions for other states; therefore, we are proposing disapproval ofthe provision. If we finalize the disapproval, this provision would not be included as part ofthe Texas SIP. Section 101.222(h) provides an affirmative defense for planned maintenance activities. It is EPA's long-standing position expressed in guidance documents and otherrulemakings that planned maintenance activities are predictable events that are subjectto planning to minimize releases, unlike malfunctions or upsets, which are sudden, unavoidable orbeyondthe control of the owner or operator. Thus, States should require sources to comply with the applicable emission limits during these activities. The EPA's interpretation ofsection 110 ofthe Act and related policies allows an affirmative defense to be asserted against civil penalties in an enforcement action for excess emissions activities which are sudden, unavoidable or caused by circumstances beyond the control ofthe owneror operator and where emissions control systems may not be consistently effective, such as during startup or shutdownperiods.' However, EPA has determined that it is inappropriate to provide an affirmative defense for excess emissions resulting from planned maintenance. The source or operator should be able to plan maintenance that might otherwise lead to excess emissions to coincide with maintenance ofproduction equipmentor other facility shutdowns. Thus, EPA did not provide for an affirmative defense during maintenance activities in the 1999 Policy. Because these events can be planned and

I

.

We also note that we generally believe that for planned startup and shutdown events, most sources should be able to comply with applicable emission limitations. However, for those sources and source categories where such compliance is not possible, the State should develop alternative, applicable emission limits for such events, which they can consider in SIPs demonstrating attainment and maintenance ofthe NAAQS, rather than establishing an affirmative defense for such emission events.19
because control equipment can be consistently effective during maintenance, EPA doc:" Ih:! believe it is appropriate underthe Act to allow an affirmative defense for any excess 

### emissions during maintenance activities; any such events should be addressed only through the exercise of enforcement discretion. Also see 72 FR 5238 published February 5,2007. We expressed our

concern about providing an affirmative defense to section 101.222(h) related activities in our August 8, 2005 comment letter to TCEQ (Comment # 16); however, TCEQ did not incorporate

our comment in its final adoption ofthe rule that was submittedto EPA. We have placed our August 8, 2005 comment letter to TCEQ in the docket where it is available for public review. Also, see April 27, 1977 (42 FR 21472); November 8,1977 (42 FR 58171); and August 23, 2000 (65 FR 51412). For the above reasons, we are proposing to disapprove section 101.222(h). Section 101.222(i) concerns the scheduling and applicable effective dates for permit applications submittedto TCEQ requesting thatunauthorized emissions associated with the planned maintenance, startup, or shutdown activities be permitted. Since section 101.222(i) is not severable from section 101.222(h), which we are proposing to disapprove, we are proposing to disapprove section 101.222(i), as well. Section 101.2220) concerns processing ofpermit applications referenced in 101.222(h), and provides the Executive Directorwith the authority to process, review, and permit unauthorized emissions from planned maintenance, startup, or shutdown activities. We explained our reasons for proposing to disapprove section 101.222(h) above. Since section 101.2220) is not severable from section 101.222(h), which we are proposing to disapprove, we

are proposing to disapprove section 101.2220), as well. Based on our reviewofthe January 23, 2006 submittal, we believe ourdisapproval ofthe submitted new sections 101.222(h), 101.222(i), and 101.2220), which would result in such20 provisions not being included in the approved SIP, does not change the meaning or stringcn. \ the portions ofthe January 23,2006 SIP submittal that we are approving and that would beco:u a part ofthe federally enforceable SIP. Therefore, sections 101.222(h), 101.222(i), and 101.2220) are severable from the remaining sections ofthe SIP and can be disapproved. See section 20 ofour TSD for more information.

F. What happens ifTexas continues to implement section lO1.222(h) as a State law? Historically, emissions from startup, shutdown and maintenance activities were not included in Texas air permits or authorizations; instead, such emissions were subjectto the State's emission events rules. The EPA expects all emissions, including those emissions during startup, shutdown and maintenance activities, to be addressed in permits issued under or authorizations provided by the approved SIP. Texas chose to adopt a schedule for sources to apply for and the State to issue air permits to include emissions due to planned maintenance, startup, or shutdown. Permitprovisions addressing emission limitations for planned maintenance, startup, or shutdown activities cannot interfere with compliance with applicable SIP requirements. For example, a permitrule cannotalter or provide relieffrom the emission limits set forth in 30 TAC Chapter 115 for Volatile Organic Compounds or Chapter 117 for Oxides ofNitrogen. Texas adopted this schedule through rulemaking in the new section 101.222(h), which EPA has proposedto disapprove because itprovides an affirmative defense for facilities with permits that do not include emission limitations for these types ofactivities during the transition period. Underthe State rule, which EPA has proposed not be approved into the SIP, once a21 facility receives a new federally enforceable permitor authorization that includes ernissi. 11 limitations for these activities, an affirmative defense is no longer available. If the permirtc. 'las emissions that exceed an emission limit in a SIP permitand those emissions are due to planned maintenance, startup, or shutdown activities that had not been considered in the original issuance ofthe permit to a facility, this exceedance can still be a violation ofthe SIP. As noted previously, these permits cannotbe inconsistent with the applicable SIP. Thus, ifEPA takes final action to disapprove section 101.222(h), and Texas continues to implementthe new section 101.222(h) as a State law, there will be a "gap" between State law and Federal law in the EPA-approvedTexas SIP. The federally-approved SIP will not provide

an affirmative defense for planned maintenance, startup, or shutdown activities, and EPA or otherparties could seek enforcement ofthe federally-approved limits in federal court. In addition, as stated above, any alternative limits established through the permitting process cannot be inconsistentwith the applicable SIP. We want to make itclearthat ifwe finalize this rulemaking action, sources subjectto the Chapter 101 Emission Events rules should be aware ofthe gap betweenthe EPA-approved SIP and the revised State rules for excess emissions from such activities. The currentEPA-approved SIP does not provide for an affirmative defense to civil penalties in an EPA or citizen suit enforcementaction for an exceedance ofa SIP requirement.

.Ifwe finalize disapproval of sections 101.222(h), 101.222(i) and 101.2220), the EPA-approved SIP will provide an affirmative defense only for unplanned activities and will continue to not provide an affirmative defense to a federal enforcementaction for violation ofa SIP requirementdue to planned activities.22
The EPA considers any emissions not authorized under the Act or the regulation. promulgated or approved thereunder (e.g., exceedance ofan emission limitation or other applicable SIP requirement) a violation. Any such unauthorized emissions shouldbe reponed J.

a deviation undertitle V reporting and/or other applicable reporting requirements. Underthe Act, EPA and citizens may enforce the EPA-approved SIP as federal law. Thus, as provided above, regulated sources remain subject to the requirements ofthe EPA-approved SIP and subject to potential enforcement for violations ofthe SIP during a "SIP gap." See EPA's Revised Guidance on Enforcement During Pending SIP Revisions, dated March 1, 1991. A

source must comply with the EPA-approved SIP until and unless it is revised. See Train v. 

### NRDC, 421 U.S. 60 (1975).

II. Proposed Action Today, we are proposing to approve into the Texas SIP the following provisions of30 TAC General Air Quality Rule 101 as submitted on January 23, 2006: Subchapter A Revised section 101.1 (Definitions); and Subchapter F Revised Section 101.201 (Emissions Event Reporting and Recordkeeping Requirements), Revised Section 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), New Section 101.221 (Operational Requirements), New Section 101.222 (Demonstrations), except 101.222(h), 101.222(i), and 101.2220)), , New Section 101.223 (Actions to Reduce Excessive Emissions).23 We are also proposing to disapprove sections 101.222(h) (Planned Maintenance**s!;~;;** or Shutdown Activity), 101.222(i) (concerning effective date ofperrnit applications), and 101.222(j) (concerning processing ofpermit applications) into Texas SIP. The EPA is proposing to find that these 3 sections (101.222(h), 101.222(i), and 101.222(j)) are not severable from each other.

III. Statutory and Executive Order Reviews:

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. Ifaportion ofthe plan revision meets all the applicable requirements ofthis chapter and Federal regulations, the Administratormay approve the planrevision in part. 42 U.S.C. 74l0(k); 40 CFR 52.02(a). Ifa portion ofthe plan revision does not meet all the applicable requirements ofthis chapterand Federal regulations, the Administratormay then disapprove portions ofthe plan revision in part that does not meet the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 741O(k); 40 CFR 52.02(a). Thus, inreviewing SIP submissions, EPA's role is to approve state choices that meetthe criteriaofthe Act, and to disapprove state choices that do not meet the criteriaofthe Act. Accordingly, this proposed action, in part, approves state law as meeting Federal requirements and, in part, disapproves state law as not meeting Federal requirements; and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• is not a "significantregulatory action" subject to review by the Office ofManagement and Budgetunder Executive Order 12866 (58 FR 51735, October4,1993);24 does not impose an information collection burden under the provisions ofthe Pap\' Reduction Act (44 U.S.C. 3501 etseq.); • is certified as not having a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5 U.S.c. 601 et seq.); • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded MandatesReformAct of 1995 (Public Law 104-4); • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);



### •

•

•



### •

• is not an economically significant regulatory action based on health or safety risks subjectto Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significantregulatory action subjectto Executive Order 13211 (66 FR 28355, May 22, 2001); is not subjectto requirements ofsection 12(d) ofthe National Technology Transfer and AdvancementAct of1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the CleanAir Act; does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994); and this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November9,2000), because the SIP is not approved to apply in Indiancountry25 located in the state, and EPA notes that it will not impose substantial direct costs (ii, tribal governments or preempt tribal law. Authority: 42 U.S.c. 7401 et seq.26
List ofSubjects in 40 CFR Part 52 Environmental protection, Air pollution control, Hydrocarbons, Incorporation 

### hy reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: ,2010 Lawrence E. Starfield, Acting Regional Administrator, Region 6.