TECHNICAL SUPPORT DOCUMENT FOR

30 TAC Chapter 101

General Air Quality Rules

Rule Log Numbers 2001-075-101-AI & 2003-038-101-AI

[Subchapter F)
Ule first part of this technical support document (TSD) concerns evaluation of the September

2002 submittal of the Texas SlP revisions for General Air Quality Rules, Chapler 101, Subchapter F.

Rule Log No. 2001-075-101-AJ

House Bill 2912, §5.01 and § 18.14 - Emissions Events (formerly called Upset Maintenance) Rule

Revisions

Amendment to: §101.1

New: §§101.201, 101.211, 101.221-101.224, 101.231-101.233

Repeal of: §§101.6, 101.7, 101.11, 101.12, 101.15-101.17

Date Adopted: August 21, 2002

Date Filed with the Secretary of State: August 23, 2002

Date Published in the Texas Register. September 6, 2002

Date Effective: September 12,2002

The EPA approved General Rule 101 011 November 28, 2000 (65 FR 70792) with the

effective date of January 29, 2001. [See Region VI, SIP regulation database'].

A sectional comparison of the EPA approved November 2000 version of the General Rule

JOl, and the September 2002 version adopted by Texas.

General Rule 10 I, November 2000 SIP approved Geoeral Rule 10 I, September 2002 submittal

101.6: UPSCt Reporting and Recordkceping RequiremenlS. 101.201: Emissions Evenls Repor1ing and

Recordkeeping Requiremenls

101.7: Maintenance. Start-up and Shutdown Reporting, 101.211: Scheduled Maintenance, Startup and

Recordkeeping, and Operational Requirements. Shutdown Reporting and Recordkeeping

Requirements

10l.ll: Demonstrations. 101.221: Operational Requirements 101.222:

DemonSlnIlions

101.12: Board Seal 101.224: Temporary Exemplions During Drought

[Sectioo 101.12 approved by EPA as Rule 3 on 0513tn2 Conditions

(37 FR 10895) at 52.227O(b). and effective05f3ln2.1

101.15: Petilion for Variance. 101.231: PClition for Variance

[SecliOfl 101.15 approV"ed by EPA as Rule 17 on 05f3ln2

(37 FR 10895) at 52.227O(b). and effective 0513In2.]

101.16: Effect of Acceptance of Variance or Permit. 101.232: Effect of Acceptance of Variance or Permit

[Section 101,16 approved by EPA as Rule 18 on 05/31n2

(37 FH 10895) at 52,2270(b). lind effective 05/31n2, J

Page 2 of 14
General Rule 101, Nnvember 2000 SLP approved General Rule 101, September 2002 submittal

101.17: Transfers 101.233: Variance Transfer

(Section IOLl7 approved by EPA as Rule 20 on 05131n2

(37 FR 10895) aI52.2270(b), and effcclive0513InZ.]

The EPA's policy on excess emissions occurring during startup, shutdown or malfunction is set

forth in the foUowing documents: a memorandum dated September 28, t982, from Kathleen M.

Bennett, Assistant Administrator for Air, Noise, and Radiation, entitled' 'Policy on Excess Emissions

During Startup, Shutdown, Maintenance, and Malfunctions;" EPA's clarification to the above policy

memorandum dated February 15, 1983, from KatWeeo M. Bennett, Assistant Administrator for Air,

Noise, and Radiation; EPA's policy memorandum reaffinning and supplementing the above policy,

dated September 20, 1999, from Steven A. HemlaD, Assistant Administrator for Enforcement and

Compliance Assurance and Robert Perciasepe, Assistant Administrator for All" and Radiation, entitled

'.'State Implementation Plans: Policy Regarding E"cess Emissions During Malfunctions, Startup, and

Shutdown" (September 1999 Policy); EPA's final rule for Utah's sulfur dioxide control strategy

(Kennecott Cnpper) 42 FR 21472 (April 27, 1977); and EPA's final rule for IdallO's sulfur dioxide

contrnl strategy 42 FR 58171 (November 8, 1977).

To find the latest Federally approved Texas SIP concerning excess emissions see 65 FR 70792

(November 28, 2000). lbe November 28, 2000, SIP approved excess emissions rule contains the

tenns "exempt" or "exempt from compliance" and allows for excess emission from scheduled

maintenance, startup, and shutdown activities to be exempt from emission limitations ifsource complies

with the reporting requirements (101.7), and satisfies certain criteria (affirmative defense). See section

101.11(b). The EPA's final rule fnr Utal,'s sulfur dinxide control strategy (Kennecntt Copper) 42 FR

21472 (April 27, 1977); EPA's final rule fnr IdallO's sulfur dinxide control strategy 42 FR 58171

(November 8, 1977); or the September 1999 Policy do not provide for exemption or allow for

affinnative defense to be applied to excess emissions from scheduled maintenance, startup, and

shutdown activities. The April 27, 1977 (42 FR 21472), Federallmplementatinn Plan (FIP) fnr Utah

under the heading of "Discretion vs. Exemption" states:

"The claim that an emission limitation exemption should be automatic during periods of

excess emissions due to Startup, shutdown, or malfunction is based on smelter's

contention that to penalize an operation tor emissions that are beyond the control of a

prudent operator is unreasonable. The Administrator agrees that issuance of an

administrative order or the initiation of a judicial action following a period of e"cess

emissions caused by circwnstances beyond the control of the operator may not be

appropriate. However, the Administrator has detennined that the automatic granting of

a regulatory exemption for these periods of excess emissions is not a suitable remedy."

The April 27, 1977 (42 FR 21472), F1P for Utal, cnntinues to read:

Page 3 of 14
"Although the Administrator recognizes that serre relief should be afforded during

certain upset situations, the promulgation of an upset regulation should not diminish the

smeher's incemive to develop better operating and maintenance procedures. U- an

automatic exemption was promulgated, it would encourage the smelter to claim, after

every period of excess emissions, that an exemption is warranted. If the operator of the

smelter were so inclined, it would be relatively easy for the company, as a result of the

burden of proof placement, to effectively block all Federal enforcement against the

smelter."

The April 27, 1977 (42 FR 21473), FIP for Utah under the heading of "Routine Maintenance" Slales:

"Allowing a smelter to operate independent of emission control equipment during

periods of romine maintenance would be inconsistem with binding legal interpretations

ofsection 110 of the Clean Air Act. These legal opinions dictate prior to allowing a

source to use dispersion techniques to attain and maintain national ambient air quality

standards (NAAQS), the Agency must require such a source to install all available

controls. Permitting a source to employ dispersion techniques to attain and maintain

national standards without constant controls during periods of routine maintenance is

contrary to such legal decisions. This is because routine maintenance can be

considered as basically a predictable evem, with which can be scheduled to a large

extent at the discretion of the smelter operator. As a result of this planning ability,

routine maintenance can be scheduled to coincide with maintenance on production

equipment or other smelter shutdowns. As such, the control equipment is always

available when the equipment it serves is operational. Moreover, since any industry,

including smelter industry, has the ability to build and maintain inventory, the aspect of

planning routine maintenance during periods ofsmelter shutdown should not be of grave

concern to the smelter operator. Consequently, no excess emissions will be allowed

during periods of routine maintenance."

Therefore, based on the two EPA RPs of 1977, Region VI inappropriately approved the 30

TAC, Chapter 101, General Rules concerning excess emissions to become a part of the Texas SIP, in

November 2000, and Region VI erred in doing so.

Texas Corrunission on Environmental Quality (TCEQ) submitted a revision to its SIP, General

Rule 101, Subchapter F on September 12,2002. See a copy of this rule at:

http://www.tllTcc.stare.tx.usloprdlruleslpdtliblIO1f. pdf

TIle latest Clarification of EPA's Policy was issued on December 5, 2001. See the Policy or

clarification of Policy at: http://\\!w\''''.epa.gov/ttn/oarpgltlpgm.html

We submitted a letter of commems to the State on June 10,2002, concerning General Rule

Page 4 of 14
101. The June 10.2002, letter stated: 'Thank you for the opportunity to review and con:nnent on the

proposed rules for 30 TAC General Rule Chapter 101 that was published in the 27 Texas Register

3555 OD April 26, 2002...

IEPA Comment IState Response IAcceptable I

#1: The Environmental Protection Agency (EPA) the defmition of reportable quantity is y~

supports the proposed reductions of lhe reportable being revised so that the commission can

quantities for ethylene and propylene (from 5, 000 revise more limely data wi!h regard to

pounds 10 100 pounds) in subsection IOLI(85). emission of highly-reaclive VQCs.ISee

Page 34 of Evaluation Section of volume 2

of2 of the Submittal]

#2: The proposed language in subsection TIle commission has nol mnde any No

101.222(0.) slates !hat "Emissions events are exempt changes in response to these commenls.

from compliance with aulhorized emission The commission will review all emissions

limitations. if the owner..." events agains.t !he requirements of

101.22(11.) to determine if the emission

The EPA considers all excess emissioos, scheduled events Il.fC excessive, and lherefore, not

or otheI"\I.'L~. as violalions of the emission exempt. facilities wilh excessive e.-missions

limitation, pennitted level, or regulation. Startup events muSI comply with the CAP

and shutdown are part of nonnal operations and requirements in 101.223 upon notification

cmissions from those evenls should be subject to by the executive director. Any emissions

planning and design to eliminate violations of events which are not exeessivc, but do

emission limitations during such periods. not satisfy all the criteria in 101.222(b) are

However, EPA believes a reguJating agency can not exempt and rnay be subject to an

exercise "enforcement discretion" to address enforcement action, including penalties

emissions during star1up and shutdown activities. and appropriate requiremenls to minimize

Also. the permitting agency may provide in ils the recurrence ofsimilar events in the

rules for an atTl1'ITI8tive defense to enforcement future. The conunission's past experience

actions for civil penalties for scheduled startup and has been Ihat the exemption criteria now

shutdown emissions if the owner or operator can located in 101.222(b) and (c) for emissions

demonstrate that certain criteria have been met events and scheduled maintenance.

when evaluated in a judicial or l.Idministrative startup, and shutdown activities operate

proceeding. Section 101.222 (a) lists those criteria. much like l.In affinnative defense in

The burden of proof for an afflrmative defense is enforcement actions. [See page 94 of

on the persOll claiming the defense. In order to Evaluation Section of Volume 2 of 2 of

assure consistency with EPA's legal and policy Submittal]

interpretations of the Clean Air Act, this

subsection should be revised to read: "Emission

events are subject to an affmnative defense for

claims for civil penalties in enfor-cement actions for

noncompliance with authorized cmission

limitations. if the owner or operator complies with

requirements of § 101.201 of this title (relating to

Scheduled Maintenance, Startup and Shutdown

Reporting, and Recordkeeping Requirements) and

demonstrates aU of the following: . ..

Page 5 of 14
IEPA Comn~nt IState ResJ.X:mse IAcceptable I

#2 Continued: Also, number 10 in lhe list The commission agrees with the commenl y",

(subsection 101.221(a)( 10)) tlull follows should be and has mad~ the suggested changes to

revised to read: "unauthorized emissions did not 10 1.222(bX11) and (c)(9) because it

cause or contribute to an exceooanCe of the clarifies existing statutory

NAAQS or PSD increments or Ii condition of air requircments,[Scc pllge 97 of Evaluation

pollution." Section of Volume 2 of 2 of Submitlal]

#3: The Prop:lSed language in subsection The commission has not made any No

101.222(b) States that •. Emissions from any changes in response to these comments.

scheduled maintenance, startup, or shutdown The commission will review all emissions

activity are exempt from compliance with events against the requirements of

authorized emission limitations. if the owner .. ... 101.22(a) to delennine if the emission

events are excessive. and therefore. not

The EPA considers all excess emissions. scheduled exempL facilities with excessh'e emissions

or otherwise, as violations of the emission events must comply with the CAP

Iimit.1tiOIl. pcnnitted level, or regulation. Startup requirements in 101.223 upon notiftcation

and shutdown are part of normal operations and by the executive director. Any emissions

emissions from those events should be subject to events which are not excessive, but do

planning and design to eliminate violations of not satisfy all the criteria in IOl.222(b) are

emission limit.'ltions during such periods. not exempt and J11[IY be subject to an

However, EPA believes a regulating agency can enforcemenlaclion. including pcnulties

exercise "enforcement discretion" to address and approprime requirements to minimize

emissions during startup and shutdown activities. the recurrence ofsimilar events in the

Also. the permitting agency may provide in its future. The commission's past experience

roJes foc an afflrmative defense to enforcement has been that the exemption aitcria now

actions for civil penalties for scheduled startup and located in 101.222(b) and (c) for emissions

shuldown emissions ifthe owner or opernt()[" can events and scheduled maintenance.

dernonstrnlc that certain crileria have been mel Slartup, and shutdown activities operate

when eV<llunted in a judicial or administrative much like an affirmative defense in

proceeding. Section 101.222 (b) lists those criteria. enforcement actions. [Sec page 94 of

The burden of proof for an affinnative defense is Evaluation Section of Volume 2 of 2 of

on the person claiming the defcnse. Submittal]

In order to assure consistency with EPA's legal

and policy interpretations of the Clean Air Act,

recommend this subsection should be revised to

read: '"Emissions from any scheduled maintenance,

startup. or shutdown activilY are subject to an

affinnative defense for claims foc civil penalties in

enforcement actions for noncompliance with

authorized emission limitatioo, if the owner or

operator complies with requirements of § 101.211 of

this title (relating to Scheduled Maintenance,

Startup and ShutdO\vn Reporting. and

Rccordkceping Requircrnt.-'!lls) and demonstratcs all

of the following: ..

Page 6 of 14
EPA Comment State Response Acceptable

#3 Continued: Also, number 8 in the list The commission agrees with the conuncnt Yo>

(subscctioo 10 1.222(b)(8» that follows should be and has made the suggested changes to

revised to read: "unauthorized emissions did not 101.222(b)(11) and (c)(9) bea!.use it

cause or contribute to an exceedance of the clarifies ellisting statutory requirements.

NAAQS or PSD increments or a condition of air [See Page 97 of Evaluation Section of

pollution," Volume 2 of 2 ofSubmiliaI]

#4: The proposed language in subsection The terms "frequent" and "unreasonably Yo>

IOL222(aX9) states that ••...1001 annual operating high" are nO( dermed by statute and left

hours during which unauthorized emissions to the commission to interpret. The most

occurred was nol unreasonably high; ..... We are appropriate way to evaluate excessive

of the opinioo that the term "unreasonably high" is cmissioos events and exemption

brOlld in nature and may need to be more determinations is through case-by-case

specifically dcrmed to avoid inconsistencies in review. Casc-by-casedetenninatioos are

practice, even for the case by case determination subject to internal review, and

situations; coordination between regional and centrnl

(Note: The proposed 101.222(aX9) of the State office personnel which SL'rves to minimize

proposed rulc became 101.222(b)(1O) in the State any inconsistencies in practice. The

Iinal version of the rule 1 commission's practice is also to discuss

the event with facility owners or operators

for furthcr information to develop the

Cllse-by-case review. lSee Page 96 of

Evaluation Scction of Volume 2 of 2 of

SubmittalI

#5: Furthermore, the public record should explain lbrough this rulemaking, the corrunission Yo>

what safeguurds are in place to prevent permitted does not suggest or Illlow that Chapter

facilities experiencing "emission events" from JOJ reporting act as a substitute for or in

substituting the reporting and recordkeeping lieu of reporting required by federal pennit

provisions of Chapter 10 I for reporting and or rule. The commission is sensitivc to

recordkecping requirements under the PSDINSR the burden of duplicative reporting and

wgulations. seeks to minimize lind duplicative

reporting whenever possible. (See Page 37

of Evaluation Section of Volume 2 of 2 of

Submittal]

Page 7 of 14
The second part this TSD concerns evaluation of the December 29, 2003 State adopted

revision (arrived in Region VI Oil January 5, 2004) to the Texas SIP for General Air Quality Rules,

Chapter 10 I, Subchapter F.

Rule Log No. 2003-038-IOI-AI

Emissions Event Demonstrations Revisions

Amendments tn: §§101.221 - 101.223

Date Adopted: December 17, 2003

fOn December 17, 2003, the connnission adopted the amendments to Subchapter F, Emissions Events

and Scheduled Maintenance, Startup, and Shutdown Activities, Division 3, Operational Requirements,

Derrxmstrations, and Actions to Reduce Excessive Emissions, §§ 101.221 - 101.223. Sections

101.221 - 101.223 were adopted with changes to the projXIsed text as published in the July 25, 2003

issue of the Texas Register (28 TexReg 5787).]

Date Filed with the Secretary of State: December 19,2003

Date PubLished in the Texas Register. January 2, 2004

Date Effective: January 8, 2004

The rule as formally submitted to EPA contains a "sunset provision" which was not a pan of the

State's proposal published in the July 25. 2003 issue of the Texas Register (28 TexReg 5787), was

Dot discussed with the Region VI during negotiations, and was not brought up during the public

comment period. The sunset provision states ''This section ex.pires on JUlle 30. 2005." See subsections

IOl.22l(g), I0I.222(h), and 101.223(e) of the submillal.

We submitted a letter of conunents to the State 011 August 5, 2003, concerning General Rule

101. The August 5, 2003, letter stated: ''TImuk you for the opportunity to review and comment on the

proposed rules for 30 TAC General Rule Chapter 101 (Rule Log Number 2003-038-101-AI) that

was submitted to us with a letter dated July 9,2003....

Page 8 of 14
EPA Comment State Resooose Acceptable

#1: The EPA supports removal aflhe terms The commission has deleted the terms Yo;

"exempt from" or "exempt from compliance" with "exemptions" and "exempt from

emissions and opacity limitations from sections compliance" to ensure that there are no

101.221, 101.222. and 101.223 oflherulc. automatic exemptioos from emissions and

opacity limits. The commissioo agTCCS

lIlat pennits and rules which grant brood

aUlomluie exemptions from complitlnce

with emission limits carmet assure

compliance with the health-based limits

under the Federal Clean Air Act. These

amendments do not grant brood

exemptions and ensure that the applicable

requirements for permits issued under title

V ate consistent with the Federal Clean

Air Act. [See page 35 of Evaluation

Section of Submittal]

#2: The EPA supports statemenL.; to the effect thai The rules specify that certain emissions Yo;

an affirmative defense is not applicable in claims e\"cnts and excess opacity events arc

fer adminiSU<ltive technical on:iers and actions for subject to an affinnati\'e defense The

injuncti\'e relief. affirmative defense does not apply to

administrative tedmiCll.\ erders and

actions for injunctive relief for lhcse

events because the commission must

retain that authooty to comply with the

requirements of me Federal Clean Air Act

and Texas Health and Safety Code.

ChapteT 382.... The commission also

deleted the references to the statc-only

enforcement to ensure that the

detennmations made by the executive

director or commission undcr the rules do

not interfere with claims brought by the

EPA or citizens. [See page 40 of

Evaluation Section of Submittal]

Page 9 of 14
EPA Conunent State Resoonse Acceptable

H3: The EPA supports statements to the effect that The amendments make clear that the Yes

the owner or operator has the burden of proof 10 owner or operator must prove the criteria

demonstrate that certain criteria have been met for for there to be no enfcrcemenl action

claims of affmnative defense concerning excess taken under § 101.222(b) and (d), with the

emissions. exception of administrative technical

ordl..'TS and injunctive relief. The burden

of proving all demonstration criteria in the

rules remains on the owner or operator.

Neither the executive director nor the

corrunission has the burden to prove that

the criteria arc not met as part of an

enforcement action. [See page 44 of

Evaluation Section of Submillalj

#4: The EPA suppons the exclusion of claims for The commission revised § 101.222(1) to y""

failure 10 take action, record, or report emissions or provide th.11 § 101.222(c) and (e) do nOl

informalion about the events or activities required exempt the owner or operator from

by IllW from availability of the amrmative defense. violations which may be pan of the

This exclusion makes clear that excess emissions circumstances associated with

are subject to deviation reporting under the title V unauthorized emissions from any

Operating Pennits Prognl.m or other requirements to schl'duled maintenance. startup. or

report violations of permit limits or regulaticns. shutdown activity or excess ope.city

events resulting from scheduled

maintenance. startup. or shuldo\\fJ1

activities. Furthennore, subsection (I)

provides that § 101.222(c) and (e) do nOl

exempt the owner or operator from

compliance with any subsequent.

independent requirement such as

deviation or emissions inventory

reporting. This eliminates !Iny ambiguity

of whether other requirements, such as in

other rulcs and pennits, are eligible for any

exemption from penalties. The

amendments do nOI affect the owner or

opemtor's oplXlJ1tmity 10 prove the

demonstration criterill in § 101.222(a) or

(b). [See page 47 of Evaluation Section of

Submittal)

Page 10 of 14
!EPACommem IState Response IAcceptable I

#5: The EPA also agrees with and supports your The conunission agrees that although the y"

statement that determinations by the Executive demonstration criteria in §J01.222 will

DirecttT under Subchapter F will not limit or bar apply in actions brought by EPA Of

enforcement actions for exceedances of emi~iOlls citizens under the Federal Clean Air Act.

or opacity limilalions brought by EPA or citizens determinations by the executive director

under authority of the Fedeml Clean Air Act. or conunission under §IOI.222 in which

the owner or operator proves the criteria

will not bar those enforcement actions.

[See page 27 of EvaluatiOll Section of

Submittal]

The January 5, 2004, SIP submittal, partly, addresses EPA's concerns expressed in the June

10,2002, letter. The January 5,2004, SIP submittal will

a) resolve the issues associated with EPA's approval of the state's resJX>ose to the operating

pennits program notice of deficiency;

b) clarify that there is no automatic exemption from compliance with emissions and opacity limits;

c) establish that for each occurrence the source or operator has the burden of proof to

demonstrate that emissions were not excessive, and the identified criteria outlined in the rule

have been met.

For these reasons the January 5, 2004, SIP submittal is an improvement when compared with

the November 28, 2000, SIP approved excess emissions rule. We consider the above measures as

strengthening the 2000 Texas SIP.

However, the January 5, 2004, SIP submittaJ rule as presented to us for evaluation and review

is unclear and ambiguous. (see sections 10 1.222(c) and 101.222(e)). Certain sections of the rule 101

will expire on June 30, 2005 (see sectioos 101.221 (g) , 10 l.222(h), and 10 l.223(e)). The EPA's flOaI

rule for Utah's sulfur dioxide control strategy (Kennecott Copper) 42 FR 21472 (April 27, 1977);

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

September 1999 Policy do not provide for affumative defense to excess emissions from scheduled

maintenance, startup, and shutdown activities. Also see the October 29, 2003 (68 FR 61650-61654)

disapproval of the Montana's maintenance of air pollution control equiprrent for existing aluminum

plants.

The January 5, 2004, SIP submittal allows for affinnative defense to be applied to excess

emissions from scheduled maintenance, startup, and shutdown activities. (see sections 101.222(c) and

101.222(e)). Therefore, the current Texas rule is not consistent with the above-mentioned Federal

Implerrentation Plans (FlPs) and EPA's documents (including policies). We also received relevant

Page 11 of 14
adverse comments Oil our March 2,2004 (69 FR 9776), proposal during the public comment period.

These conments were submitted jointly by the Environmentallmegrity Project, Environmental Defense,

Galveston·HoustQn Association for Smog Prevention, Refinery Refonn. Community lnPower and

Development Association, Citizens for Environmental Justice, and Public Citizen's Texas Office (the

Commeolers).

Taken together. and in order to provide the State an opJX>rtunity to avoid a future SIP

consistency process, uJX>n the advice of the Office of Regional Council (ORC) and with the

CODcurrence of the Office of Geoeral Council (OGC), EPA is finalizing this rule with a limited approval

approach.

A summary of relevant comments that we received during the public comment period and our

reS)XInse to those comn:rents are as follows:

Comment Received EPA's Response

1# I: The Commentcrs st..1tc ttl.1t Texas' rule is We appreciale!he Commcl1len' st.1lemC:l1lthat!he Tt.X;lS e...cess

an improvement over ils previous illegal emissions role appro\'ed today into !he TeA.1S SIP is an impro\"eIl1el1l 0\'('1"

e;o;emptioo provisions; however, lhe rule still its previous version, which is removed from !he SIP by this actiOil TIle

creates an llffirlT\lltive defense which is too

criteria and OOOOiliOffi oomtitulin& the affinnative defc:nsc: approach. as

brood. incorporated in Ihe ruJe, are !hose identified in EPA's 1999 policy on

excess emissiOIl$. llt.is impTOvemeJ", ill part, COfI5titutcs our rationale for

a limited approval of this Texas SIP ~vi~on Howel'er, we agree with

Commr.llI.r.n lhal the afiinnative dr.fense lI\ay be too broad beeausr., as

discussed aoo\'e, it appears to be avail.lble for certain lllaUllenance

activities. TIle EPA's interprtl.1tion of Set.1ioll 110 of the Act and related

policies allow all aflinnative defense to be: usc.rted against civil penalties ill

all enforcement aL'l.ion for excess emissions activities which are suddel~

ul1.1voidable or beyond the cOI..rol of the owncr or operator and wllere

emiS~OllS c01llrols may 1I0t be: cOllSistenlly effective during startup or

shutdown periods. '[lIe Stlltc may choose to exercise its enforcement

discretion for excess emis~iOIl.s from predictable evcnts such as scheduled

mamh:lL1nce activities.

Page 120f 14
Comn~nt Received

##2: The Commcnters slate that EPA shouJd

disapprove sections 1OI.222(c) and (e) of

Tens' submittal because these provisions

maintain an exemption for excess emissions

resulting from scheduled startup, shutdown

and maintenance. The commenters believe

that the language in s(,'Clion IOL222(c)

exempts certain excess emissi<ns from

rompliance with pennitted limits and thus

means \hal no enforcement nelion can be

taken for those periods of excess emissions.

The conunentcrs cite to previous

pronouncements by EPA ttUlt excess

emissions during periods ofslartUp and

shutdown must be treated as violations. In

addition, the commcnters reject as

unfounded the statement by Texas that \hese

exempted emissions arc below the level

required for inclusion in permits under the

Texas Health and Safety COOe. The

commenters nole that there is no limit on

how large these emissions might be

#3: The Commenters state that EPA should

only approve sections 101.222(b) and

101.222(d) with the clarilicatioo that

affirmative defense docs not apply to

Federali}' perform.'lnce-based standards. The

Corrunenters state the Texas' rule will allow

the affirmative defense to apply to violations

of pcrfonnance based Federal standards

such as NSPS and NESHAP

EPA's Response

Section 101.222(c) C~Y addresses excess cmissiom from scho:JuJed

mairf.cnance, SUrtUp. or skitdown activities and ~an IOI.222(e)

ad~es excess opacity emissions resWUnr. from scheduled maillleJ101llce.

Sla1t\lp, or shutdowll activities. 011 its face, boIll sectiollS 101.222(e) and

(e) establish criteria ~imilar to those that EPA established for pUIpO~es of

an affinnative defclISe. TIte Texas rule provides that emissions from

scheduled Slartup. $Iwtdown or maullemnce must be included Ul a pennil

unless the own« or opa.l.tor of a 5CJUR;e proves that all ofthe criteria are

n~t. The State 1w exp1a.ined 10 EPA that it construes thU pro\is:i.on as

establi5hi:ng enfOIttl1letl discretion on 1be pan of the State, They Ita\'e

explained that where lite crileria are flOt met. Ihen the State may enforce

against a 5QUrCe for a violation ofthe applicable emissiollS limitation for

lhe period of excess cmissiollS.

Upon furtha readillg of the Texas role. we are not cOllvinced Ihat the

State's ullerpretaLion of the rule is likely to preva.il if challenced. We

think it is pbusible thai ifEPA or a cimen Croup soughlto enfon:c a&.llnst

a source which conIends to ha~'e met the criteria specified in section

101.222(c), tile soun:e would offer a defense WI such emissions were not

subject to perrniuin& rcqUireJllClU and were therefore flOl violations.

Additionally. we are concemed about the ullcrpretatioll of section

101.222(e). whidl al~o seems to pro\ide all r:xemption from the applicable

emission limits if a source can prove that Ute specified. criteria are mcl.

Again, Ule SL1!c tw imieated that il imerprelS this provision not as

CXCI1~ the source from complimce. bul ratht:r as a tool for !be exercise

of enforeerna:r. discretion on the par1 ofthe State. Howe\'Cf. upon further

re\iew. we lhink tile ~ge is ambiguOU! al best and could well be

construed by a court as CXCtlsil\g a source from compliance for these

periods ofCJlcess emissions. TILUS. even if lite State dIOse not to enforce

agaillSt a SOUIce where it believes ule source has met the specified criteria,

we believe it is possible that a I:Ourt would dismiss any suil by EPA or

citizen! 10 enf()fCe on the basis thallhe soun:e was flOt subject to the

unierlyinc emission IimiL

We believe lhat at best thc.se pTO\i$ions ambiguous 00. II worst, do in

fact exempt soun:es from compli;up: with undertying emission limits iftilt

specified criteria mct. Based on this condusion. w~ have cOlICems about

lite effect ofulese provisions on ULC enforceability of applica.ble emission

limits. and thus have concluded U13t we callflOt fiilly approve lite SIP. As

stated. above, however, we belie\'e UI3I lite lIew rule, as a wl101c, slret1Clhens

lhe SIP am we ;tTe cranlin&: a limited approval ofthe SIP re~is:i.om.

Chapter 101 alldresses \iolations ofSIP requimncnIs &lI.used by periods of

exl:CSS emissions due to SSM activities. Forclari1ication am pulJlil: record

purposes. aU ofthe FtdenUy promulgated perfOIIlllln:t or technology·

based stawaros. and other Federal requirements, such as Ulose found in 40

CFR parts 60, 61. and 63; aM titles [V. aOO VI of lite Act remain in full

effect. ard are irdepoxlCJll oflOday's approval or revisions 10 the Texas

SIP. We also want to mal:.e dear that today"s limited approval ofthe

Texas ex~ emissions rule into the Texas SIP nay 1DI, umer any

circumstances, be construed as rescitding. replacing. orlimiling applicable

FedenLI requiremenlS regardless ofthe soun:e's I:ategory or locality.

Page 13 of 14
Comment Received EPA's Response

#4: The Commcnlers Slate the aflirmative We believe Ihe Texas rule, whicll places the burden onlhe source asserti.ng

defense in Texas' rule should not apply an affumalive defcuse 10 demonslr.l.te lhat lhe specific activity al issue did

where II single source or small group has the nol coruribme 10 an exceedance oftile NAAQS or PSD incremerts or 10 a

poIcntiallo cause an exccedance of the

condition of air pollution. is appropri31c. Subsection 101.l22(b)(II)

requin:s Ihe source or operator 10 pro\'e lhal ''unauthorized etnissions did

NAAQS mt C3.U~ or codritMe to aJl exceeda...:e ofw NAAQS. PfeVCIllion of

significaru. delerioration (PSD) incfemetu. or 1O:a coooition of:air

pollution" 11tis pro\ision en,sun,s lhat an :affirmative defense could nol be

SUSlained for an emissions :acti\'ity for wllidJ the owner or operalor has

failed 10 pro\'e thallhe e\"tJI1 did nol cause or conlribute 10 an exettdance

of the NAAQS, PSD increments or 10 I condition of air potlutiOll

#5: The Commentcrs ~tate the Texas' rule Subsection 101.201 (a)(3) concerns llOtification for reportable emissions

allows boilers and combustion turbines to activilies involving boilers or oomoostion Iwbines. Subseclion

escape reporting requirements IOI.211(a){2) concerns w notificalion for I scheduled maiaen.aa:e,

SLaltUp, or shuldown aeti\'ily involvin& a boile£ or combost.ion rurbinc.

Also see subsection I0I.201(d) oflhe rule. We do 001 believe th31 Texas'

reporting req.rlrcmel1lS for exCdS etnissions exclude boilcn or c:mnh:Istion

IUlbines. For these reasons .....e disagree with the CornmetUn.

1#6: The Commcnlers stale that EPA should l1Ie preseru reconl docs nol provide sufficitlV infonn:lIioTlto emble Ihe

announce its intenl 10 automatically re-issue Agcllcy 10 Illal:e a detennirolion of whether a llotice of deficiency onder

a Notice of Deficiency (NOD) to the State title V ofthe Act would be warranted for the circumslances forecagt by

should Texas adopt revised rules prior to petitioner>.

TIlt Agency would need to rc\iew lite rule a1legedJy call~iJl£ Ihe title V

June 3D, 2005, that do not comply with the prui;ram deficiency 10 determine whelher a violation oftitie V has

Act /llld EPA's guidance. Thecornmenlers """""'. 1·lowe\'el', althis stage, COllllllenrers are only specubting as to

are concerned thai Tc:us may rescind the MUle ~sions 10 Ihe TIlles th31 Ihe Slale Illithl or might nOI adopL T1te

existing rules and adopt new rules before Agency also bala.nces a number of olher factors in detCf1nirina whether 10

June 30. 2005 and once again be in the issue a. mtiec of deficiency. ilrludi1li allocation of:lgency rcsoutI:e:S.

position of being unable to enforce the likelihood of N«US in enfon:emenl tlvouth an NOD, Iilelibood

excess emissions provisioo in the SIP of re!(l"~ a. program fla..... throuih olhe:r mechanisms. an:! how

cnfon:emenl in a partieuJar siruation filS wilhin the AJeney's O\=dj

policies. II is not practicable 10 reYiew these factOJ1l prior to the time l\

revision to the Texas roles would wal1'3.1l151lch review.

At the State level, TCEQ continues to be required by the Texas House Bill 2912 (200 I, the

77iJ• Legislative Session) to have an excess emissions rule adopted for addressing excess emissions

resulting from startup, shutdown, and malfunction activities.

On or after tbe effective date of this FR, the December 29,2003 submittal will supersede the

November 28, 2000 (65 FR 70792)-published SIP, and the November 28, 2000 version of the rule

WillllO longer be a part of the Texas SIP. If Texas rule 10 I is not revised by the State, on or before

the expiration date of] une 30, 2005, then no excess emissions rule of any kind will exist in the

federally-approved Texas SIP.

Page 14 of 14