ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2006-0132; FRLApproval and Promulgation of Implementation 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, Subchapter A General Rules; and Subchapter F

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 of provisions that provide for an affirmative defense against civil 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 110 ofthe Act.

DATE: Comments must be received on or before [Insert date 30 days from date of publication in
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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 between the hours of 8:00 a.m. and 4:00 p. m. weekdays

except for legal holidays. Special arrangements should be made for deliveries of boxed

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 Business
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Information (CSI) or other information the disclosure of which is restricted by statute. !)li:'"

submit information through www.regulations.gov or e-mail that you consider to 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 of your comment. If you send an e-mail comment directly 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 submit an electronic comment, EPA recommends that you include your name

and other contact information in the body of your comment and with any disk or CD-ROM you

submit. If EPA cannot read your comment due 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 of encryption, and be free of any 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

either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PDL), Environmental Protection Agency, 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 between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays.

Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below

to make an appointment. If possible, please make the appointment at least two working days in

advance of your visit. There will be a 15 cent per page fee for making photocopies of
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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 of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section (6PDL), Environmental Protection Agency, 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 we proposing?

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 we proposing approval of portions 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 Action
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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,

Subchapter A 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 Subchapter A, 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 of permit applications), and

101.222(j) (concerning processing of permit applications) ofthe January 23, 2006 submittal. We

are proposing disapproval ofthese provisions because they provide for an affirmative defense

against civil 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), and
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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 of our Technic.u

Support Document (TSD) prepared in conjunction with this document for more information,

B. What documents did we use in our evaluation of the 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, Assistant Administrator 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 sulfur dioxide control strategy (Kennecott Copper), April 27, 1977 (42 FR 21472);

.EPA's final rule for Idaho's sulfur dioxide control strategy, November 8, 1977 (42 FR 58171);

and the latest clarification of EPA's policy issued on December 5, 2001 (2001 Policy). See the

policy or clarification of policy at: http://www.epa.gov/ttn/oarpg/tl pgm.html (URL dating July

22,2008). The EPA's interpretation that the Act prohibits the inclusion in SIPs of automatic

exemptions from emission limitations for sources in certain startup, shutdown, or malfunction
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situations was upheld by the United States Court of Appeals for the Sixth Circuit in Micl», :/'

Department OfEnvironmental 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 rather than full approval ofthat submission because we found sections

101.222(c) and (e) were ambiguous because they could be interpreted to 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 expired by their own terms, are no

longer part 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, Subchapter A General Rules; and Subchapter F Emissions Events and Scheduled

Maintenance, Startup, and Shutdown Activities. The January 23, 2006 submittal included

revised 30 TAC sections 101.1 (Definitions), 101.201 (Emissions Event Reporting and
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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 to the 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 Enforcement to John Blevins, Director EPA 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 determined that, 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.

If we take final action to disapprove the new sections 101.222 (h), (i) and 0), no sanctions or
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Federal Implementation Plan clocks will be started under section 179(b) of the Act, bCCL1'_'>C'

Texas did not submit these provisions to satisfy a mandatory requirement ofthe Act. A final

disapproval action will mean that no affirmative defense against civil 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 of portions of the January 23, 2006 SIP

submittal?

The EPA interprets the Act such that all emissions in excess of limits established in a SIP,

including among other things, 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 of Significant Deterioration (PSD) increments. However, EPA recognizes that

imposition of a penalty for sudden and unavoidable malfunctions, startups or shutdowns caused

by circumstances entirely beyond the control ofthe owner or operator may not be appropriate.

The EPA has provided guidance on two approaches States may use in addressing such excess

emissions: enforcement discretion and affirmative defense to civil penalties. Under an

enforcement discretion approach, the State (or another entity, such as EPA, seeking to enforce a

violation ofthe SIP) may consider the 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 of an enforcement proceeding. In an

enforcement action, the defendant may raise a response or defense in an action for civil penalties,
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regarding which the defendant has the burden to prove that certain criteria have been 11K; .'~' .

page 2 ofthe attachment to 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 Subchapter A, 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 Subchapter A, 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 ofthe
I 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 with jurisdiction

and to include TCEQ's regulated entity number with the report; modifying the requirement to

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 a number of other minor

revisions to clarify reporting requirements that are described in section 10 ofthe TSD. We

believe that these other revisions to the reporting requirements will facilitate implementation of

the rule by clarifying the existing reporting requirements and establishing a new requirement that

local air pollution authorities be informed of emissions events. See section 10 ofthe 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 prior to 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, if during a

scheduled maintenance activity additional maintenance is required that results in unanticipated

emissions, and that the maintenance was unforeseeable and requires immediate corrective action
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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 criteria to be demonstrated in order to assert the

affirmative defense for upsets and unplanned maintenance emission events versus planned

maintenance, startup, and shutdown activities. Another change to section 101.211 requires prereporting ofthe expected duration of any maintenance, startup or shutdown activity. Section

101.211(t) adopts the requirement for annual reporting of emissions resulting from scheduled

maintenance, startup, and shutdown activities by a regulated entity. For entities subject to

emission inventory (EI) reporting, the annual emissions event report 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 of emissions 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. If our 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.
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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 of April 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 14 ofthe 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 in unauthorized

emissions. Upsets are defined in the Texas rules similar to the term malfunction used in EPA's

guidance. Section lO1.222(a) provides criteria in 101.222(a)(l) through 101.222(a)(6) to

determine if an emission event is excessive. If emission events are determined by the executive
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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 of the 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 a judicial or administrative enforcement action for a

violation of applicable 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 in EPA's

1999 Policy; 6) The burden to prove that the criteria have been met is on the owner or operator;

7) A determination by TCEQ that the criteria have 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 suit enforcement action for the emission violation; 9) The affirmative

defense cannot be asserted where the unauthorized emissions cause or contribute to an

exceedance ofthe NAAQS, PSD increments or to a condition of air 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 event must be reported to TCEQ under section

101.201 in order for the owner or operator to assert the affirmative defense.

Sections 101.222(c) and 101.222(e) provide a similar affirmative defense for unplanned
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maintenance, startup or shutdown activities that arise from sudden and unforeseeable eventbeyond 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 "functionally equivalent to EPA's

'malfunction' with regards to applicability of an affirmative defense." See section

101.1(109)(B). Also see Tables III and VIn of our TSD. The EPA agrees that TCEQ's

treatment of "unplanned maintenance, startup, or shutdown activity" is functionally equivalent to

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 criteria that a

source must prove in asserting the affirmative defense is consistent with EPA's recommended

policy approach for providing 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 of planned 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 to
16

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, if we 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 similar to the term

malfunction used in EPA's guidance. See Table IV of our 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 of our 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 of federally 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 requirement for facilities determined to have
\7

excessive emission events to take necessary corrective actions to reduce the future ocelli j',:'. ,

such events.

In summary, we are proposing approval of30 TAC, General Air Quality Rule 101,

Subchapter A, 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 of sections 101.222(h), 101.222(i), and

101.222(j) of the 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 definition of unplanned maintenance, startup, or

shutdown activity.

This section (l 01.222(h)) also sets forth a time table for an owner or operator to file a

permit application 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 of a permit to authorize planned maintenance,
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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 of the provision. If we finalize the disapproval,

this provision would not be included as part of the 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 other rulemakings that

planned maintenance activities are predictable events that are subject to planning to minimize

releases, unlike malfunctions or upsets, which are sudden, unavoidable or beyond the 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 owner or operator and where emissions control systems

may not be consistently effective, such as during startup or shutdown periods.' 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 of production

equipment or 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 of the NAAQS, rather than establishing an

affirmative defense for such emission events.
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because control equipment can be consistently effective during maintenance, EPA doc:" Ih:!

believe it is appropriate under the 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 submitted to 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 submitted to TCEQ requesting that unauthorized 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 of permit applications referenced in 101.222(h),

and provides the Executive Director with 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 review ofthe January 23, 2006 submittal, we believe our disapproval ofthe

submitted new sections 101.222(h), 101.222(i), and 101.2220), which would result in such
20

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 of our TSD for more information.

F. What happens if Texas 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 subject to 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. Permit provisions addressing emission limitations for planned

maintenance, startup, or shutdown activities cannot interfere with compliance with applicable

SIP requirements. For example, a permit rule cannot alter or provide relief from the emission

limits set forth in 30 TAC Chapter 115 for Volatile Organic Compounds or Chapter 117 for

Oxides of Nitrogen.

Texas adopted this schedule through rulemaking in the new section 101.222(h), which

EPA has proposed to disapprove because it provides an affirmative defense for facilities with

permits that do not include emission limitations for these types of activities during the transition

period. Under the State rule, which EPA has proposed not be approved into the SIP, once a
21

facility receives a new federally enforceable permit or 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 permit and 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 cannot be inconsistent with the applicable SIP.

Thus, if EPA takes final action to disapprove section 101.222(h), and Texas continues to

implement the new section 101.222(h) as a State law, there will be a "gap" between State law

and Federal law in the EPA-approved Texas SIP. The federally-approved SIP will not provide

an affirmative defense for planned maintenance, startup, or shutdown activities, and EPA or

other parties 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 inconsistent with the applicable SIP.

We want to make it clear that if we finalize this rulemaking action, sources subject to the

Chapter 101 Emission Events rules should be aware ofthe gap between the EPA-approved SIP

and the revised State rules for excess emissions from such activities. The current EPA-approved

SIP does not provide for an affirmative defense to civil penalties in an EPA or citizen suit

enforcement action for an exceedance of a SIP requirement. .If we 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 enforcement action for violation of a SIP requirement due to planned

activities.
22

The EPA considers any emissions not authorized under the Act or the regulation.

promulgated or approved thereunder (e.g., exceedance of an emission limitation or other

applicable SIP requirement) a violation. Any such unauthorized emissions should be reponed J.

a deviation under title V reporting and/or other applicable reporting requirements. Under the

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 of 30

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).
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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 of permit 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. If a portion of the

plan revision meets all the applicable requirements ofthis chapter and Federal regulations, the

Administrator may approve the plan revision in part. 42 U.S.C. 74l0(k); 40 CFR 52.02(a). If a

portion ofthe plan revision does not meet all the applicable requirements ofthis chapter and

Federal regulations, the Administrator may 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, in reviewing SIP submissions, EPA's role is to approve state

choices that meet the criteria ofthe Act, and to disapprove state choices that do not meet the

criteria ofthe 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 "significant regulatory action" subject to review by the Office of Management

and Budget under Executive Order 12866 (58 FR 51735, October 4,1993);
24

does not impose an information collection burden under the provisions ofthe Pap\'

Reduction Act (44 U.S.C. 3501 et seq.);

• 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 MandatesReform Act 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

subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355,

May 22, 2001);

is not subject to requirements ofsection 12(d) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose

requirements would be inconsistent with the Clean Air 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, November 9,2000), because the SIP is not approved to apply in Indian country
25

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 of Subjects 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.