# 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 ofthis technical support document (TSD) concerns evaluation ofthe September 2002 submittal ofthe 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 ofState: 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 ofthe EPA approved November2000 version ofthe 

## General Rule JOl, and the September 2002 version adopted by Texas.

General Rule 10I, November2000 SIP approved Geoeral Rule 10I, 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: ScheduledMaintenance, 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 ofAcceptance ofVariance or Permit. 101.232: Effect ofAcceptance ofVariance 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: VarianceTransfer (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 September28, t

### 982, 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 memorandumreaffinning 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 (November28, 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 

## if source 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 ofa prudent operator is unreasonable. The Administrator agrees that issuance ofan administrative order or the initiation ofajudicial action following a period ofe"cess emissions caused by circwnstances beyond the control ofthe operator may not be appropriate. However, the Administrator has detennined that the automatic granting of

a regulatory exemption for these periods ofexcess 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 reliefshould be 

### afforded during certain upset situations, the promulgation ofan 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 ofexcess emissions, that an exemption is warranted. 

## Ifthe operator ofthe smelter were so inclined, it would 

## be relatively easy for the company, as a result ofthe burden ofproofplacement, 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 ofemission control equipment during periods ofromine maintenance would be 

### inconsistem with binding legal interpretations ofsection 110 

### ofthe 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 ofroutine 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 ofthe smelter operator. As a result ofthis planning ability, routine maintenance can be 

### scheduled to coincide with maintenance on production equipment orother 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 ofgrave
concern to the smelter operator. Consequently, no excess emissions 

## will be 

### allowed during periods ofroutine 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 ofthe 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 ofthis rule at: http://www.tllTcc.stare.tx.usloprdlruleslpdtliblIO

## 1f.pdf

TIle latest Clarification ofEPA's Policy was issued on December 5, 2001. See the Policy or clarification ofPolicy at: http://\\!w\''''.epa.gov/ttn/oarpgltlpgm.html

We submitted a letter ofcommems 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 30TAC 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) thedefmition ofreportablequantity is**y~** supports the proposed reductions oflhe reportable being revised so that the commission can quantities for ethylene and propylene (from 5, 000 revise more limelydata wi!h regard to 

### pounds 10 100

### pounds) in subsection IOLI(85). emission ofhighly-reaclive VQCs.ISee Page 34 of Evaluation Section ofvolume 2 of2 ofthe Submittal]

#2: Theproposed 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. ifthe owner

..." events agains.t !he requirements of 101.22(11.) todetermine ifthe emission The EPA considers all excess emissioos, scheduled events Il.fC excessive, and lherefore, not

or**otheI"\I.'L~.** as violalions ofthe emission exempt. facilities wilh excessivee.-missions limitation, pennitted level, or regulation. Startup events muSI comply with the CAP and shutdown are part ofnonnal 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

### besubject 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 ofsimilarevents in the rules for an atTl1'ITI8tive defense to enforcement future. The conunission's pastexperience actions forcivil penalties for scheduled startup and has been Ihat theexemption criteria now shutdown emissions ifthe 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 ajudicial 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 ofprooffor an afflrmative defense is enforcement actions. [See page94 of

on the persOll claiming thedefense. In order to Evaluation Section ofVolume2 of 2 of

assure consistency with EPA's legal and policy Submittal] interpretations ofthe Clean Air Act, this subsection should be revised to read: "Emission events are subject toan affmnative defense for claims for civil penalties in enfor-cement actions for noncompliance with authorized cmission limitations. ifthe owner or operator complies with requirements of§ 101.201 ofthis title (relating to ScheduledMaintenance, Startup and Shutdown Reporting, and Recordkeeping Requirements) and demonstrates aU ofthe following:

. 

# ..

Page 5 of 14

# IEPA

# Comn~nt 

# IState ResJ.X:mse 

# I Acceptable 

# I

#2 Continued: Also, number 10 in lhe list The commission agrees with thecommenl 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 ofthe clarifies existing statutory NAAQS or PSD increments or Ii condition ofair requircments,[Scc 

### pllge 97 of Evaluation pollution." Section of Volume 2 of 2 ofSubmitlal]

#3: The Prop:lSed language in subsection Thecommission 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. ifthe owner 

# .. 101.22(a) to delennine ifthe emission

... events areexcessive. and therefore. not The EPA considers all excess emissions. scheduled exempL facilities with excessh'e emissions

or otherwise, as violations ofthe emission events must comply with the CAP Iimit.1tiOIl. pcnnitted level, orregulation. Startup requirements in 101.223 upon notiftcation and shutdown are part ofnormal 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 recurrenceofsimilar events in the Also. the permitting agency may provide in its future. The commission's past experience roJes foc an afflrmativedefense 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 iftheowner or opernt()[" can events and scheduled maintenance. dernonstrnlc that certain crileria have been mel Slartup, and shutdown activities operate when eV<llunted in ajudicial or administrative much like an affirmative defense in proceeding. Section 101.222 (b) lists those criteria. enforcement actions. [Sec page 94 of The burden ofprooffor an affinnative defense is Evaluation Section ofVolume 2 of 2 of

on the person claiming the defcnse. Submittal]

In order to assure consistency with EPA's legal and policy interpretations ofthe Clean AirAct, 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, ifthe 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 ofthe 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 orcontribute to an exceedance ofthe clarifies ellisting statutory requirements. NAAQS orPSD increments or a condition ofair 

### [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 bystatute

### and left hours during which unauthorized emissions to thecommission to interpret. The most occurred was nol unreasonably high;

..... We are appropriate way to evaluate excessive oftheopinioo 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) ofthe 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 ofthe rule 1 commission's practice is also to discuss theevent with facility owners oroperators for furthcr information to develop the Cllse-by-case review. lSee Page 96 of Evaluation Scction of Volume2 of 2 of Submittal

## I

#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 ofreporting required by federal pennit provisions ofChapter 10I for reporting and orrule. The commission is sensitivc to recordkecping requirements under the PSDINSR the burden ofduplicative 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 ofthe December29, 2003 State adopted revision (arrived in 

## Region VI Oil 

## January 5, 2004) to 

## the Texas SIP for General Air Quality Rules, Chapter 10I, 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 ofthe Texas Register(28 TexReg 5787).] Date Filed with the Secretary ofState: 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 ofthe State's proposal published in 

## the July 25. 2003 issue ofthe 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) ofthe submillal.

We submitted a letter ofconunents 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. Thecommissioo 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 

### AirAct. [Seepage 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 defensedoes not apply to administrative tedmiCll.\ erders and actions for injunctive relieffor lhcse events because the commission must retain that authooty to comply with the requirements ofme 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 operatorhas the burden ofproof10 owner or operatormust prove the criteria demonstrate that certain criteria have been met for for there to be no enfcrcemenl action claims ofaffmnative defense concerning excess taken under § 101.222(b) and (d), with the emissions. exception ofadministrative technical ordl..'TS and injunctive relief. The burden ofproving 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 ofan enforcement action. [See page 44 of Evaluation Section of Submillalj

#4: The EPA suppons the exclusion ofclaims for The commission revised § 101.222(1) to 

### y"" failure 10 takeaction, record, orreport emissions or provide th.11 § 101.222(c) and (e) do nOl informalion about theevents or activities required exempt the owner or operator from by IllW from availability ofthe amrmative defense. violations which may be pan ofthe This exclusion makes clearthat excess emissions circumstances associated with

are subject todeviation reporting under the title V unauthorized emissions from any Operating Pennits Prognl.m or otherrequirements to schl'duled maintenance. startup. or report violations ofpermit limits orregulaticns. shutdown activityor 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 ofwhether otherrequirements, 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 10prove the demonstration criterill in § 101.222(a) or (b). [See page47 of Evaluation Section of Submittal)



### Page 10 of 14

### !EPACommem 

# IState Response 

# I Acceptable 

# I

#5: The EPA also agrees 

### with and supports your Theconunission agrees that although 

### the 

## y" statementthat determinations by the Executive 

### demonstration criteria in §J01.222 will DirecttT under Subchapter F will not limit or bar apply 

### in actions 

### broughtby 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 theexecutive director 

### under authorityofthe Fedeml Clean AirAct. or conunission under §IOI.222 in which the owner or operatorproves thecriteria will not barthoseenforcement 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 ofthe state's resJX>ose to 

### the operating pennits program notice ofdeficiency;

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 ofproofto 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 ofthe rule 101 

### will expire on June 30, 2005 (see sectioos 10

### 1.221 (g) , 10l.222(h), and 10l.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 ofthe Montana's maintenance ofair 

### 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 submittedjointly 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 ofthe Office ofRegional Council (ORC) and with the 

## CODcurrence ofthe Office ofGeoeral Council (OGC), EPA is finalizing this rule with alimited approval approach.

A summary ofrelevant 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!heTt.X;lS e..

.cess

an improvement over ils previous illegal emissions role appro\'ed today into !heTeA.1S SIP is animpro\"eIl1el1l 0\'('1" e;o;emptioo provisions; however, lhe rule still its previous version, which is removed from !heSIP by this actiOil TIle

creates an llffirlT\lltive defense which is too criteria and OOOOiliOffi oomtitulin& the affinnativedefc:nsc: approach. as 

### brood. incorporated in Ihe ruJe, are !hose identified in EPA's 1999 policy on
excess emissiOIl$. llt.is impTOvemeJ", ill part, COfI5titutcsour rationale for
alimited approval ofthis Texas SIP**~vi~on** Howel'er, we agreewith Commr.llI.r.n lhal the afiinnative dr.fense lI\aybe toobroadbeeausr., as discussed aoo\'e, it appears to be avail.lble for certain lllaUllenance activities. TIle EPA's interprtl.1tionofSet.1ioll 110 ofthe 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 whichare**suddel~** ul1.1voidable orbeyond the cOI

..rol ofthe owncr oroperatorand wllere**emiS~OllS** c01llrols may 1I0tbe: cOllSistenlly effective during startup or shutdown periods. '[lIe Stlltc may choose to exercise its enforcement discretionfor 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 noenforcement nelion can be taken for those periods ofexcess 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 

### byTexas 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 theTexas' rule will allow the affirmative defense to apply to violations ofpcrfonnance 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 skitdownactivities and**~an** IOI.222(e)**ad~es** excess opacity emissions

## resWUnr. from scheduled maillleJ101llce. Sla1t\lp, orshutdowll 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. $Iwtdownor maullemnce must be included Ulapennil unless the own« oropa.l.torofa5CJUR;e proves that all ofthe criteria are**n~t.** The State 1w exp1a.ined 10EPA that it construes thU pro\is:i.on as establi5hi:ng enfOIttl1letl 

### discretionon 1bepan ofthe State, TheyIta\'e explained thatwherelitecrileria are flOt met. Ihen the State may enforce against a 5QUrCe for aviolation ofthe applicable emissiollS limitation for lhe period ofexcess cmissiollS. Upon furthareadillg ofthe Texas role. we are not cOllvinced Ihat the State's ullerpretaLionofthe ruleis likely to preva.il ifchallenced. We think it is pbusiblethai ifEPAoracimen Croup soughlto enfon:c a&.llnst

a source which conIends to**ha~'e** metthecriteria specified in section 101.222(c), tile soun:e would offera defense WI such emissions were not subject to perrniuin& rcqUireJllClU and were thereforeflOl violations. Additionally. we areconcemed about theullcrpretatiollofsection 101.222(e). whidl**al~o** seems to pro\ide all r:xemption from the applicable emission limits ifa source can prove that Ute specified. criteria are mcl. Again, UleSL1!ctw imieated that il imerprelS this provisionnotas**CXCI1~** the source from complimce. bul ratht:ras a tool for !beexercise ofenforeerna:r. discretion onthe 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 iflite State dIOse not to enforce agaillSt aSOUIce where it believes ule sourcehas met the specified criteria,
webelieve it is possible that a I:Ourt would dismiss any suil by EPA or citizen! 10 enf()fCeonthe basis thallhe soun:e was flOt subject to the unierlyinc emission IimiL Webelieve lhat atbest thc.se pTO\i$ions ambiguous 00. II worst, do in fact exempt soun:es from compli;up: withundertying emission limits iftilt specified criteria mct. Based onthis condusion.**w~** havecOlICems about lite effect ofulese provisions onULC enforceability ofapplica.ble emission limits. and thus have concluded U13t we callflOt fiilly approve liteSIP. As stated. above, however, webelie\'e UI3I lite lIew rule, as a wl101c, slret1Clhens lheSIP

### am we ;tTe

### cranlin&: alimited approval ofthe SIP**re~is:i.om.** Chapter 101 alldresses \iolations ofSIP requimncnIs &lI.used byperiods of exl:CSS emissions due to SSM activities. Forclari1ication

## am pulJlil: record purposes. aU oftheFtdenUypromulgated perfOIIlllln:tortechnology· based stawaros. and otherFederal requirements, such as Ulose found in 40 CFR parts 60, 61. and 63; aM titles [V. aOO VI oflite Act remain in full effect. ard are irdepoxlCJll oflOday's approval orrevisions 10theTexas SIP. We also want to mal:.edearthat today"s limited approval ofthe Texas**ex~** emissions rule into theTexas SIP nay 1DI, umerany circumstances, be construed as rescitding. replacing. orlimiling applicable FedenLI requiremenlS regardless ofthe soun:e's I:ategory orlocality.



## Page 13 of 14

### Comment Received EPA's Response

#4: The Commcnlers Slate the aflirmative We believe Ihe Texas rule, whicll places the burdenonlhe source asserti.ng defense in Texas' rule should not apply an affumalive defcuse 10 demonslr.l.te lhat lhe specific activity alissue did where II single source or small group has the nol coruribme 10 anexceedance oftile NAAQS orPSD incremerts or 10 a poIcntiallo causean exccedance ofthe conditionofairpollution. is appropri31c. Subsection 101.l22(b)(II) requin:s Ihe source oroperator 10 pro\'e lhal ''unauthorized etnissions did 

### NAAQS mt**C3.U~** orcodritMeto aJl exceeda...:e ofw NAAQS. PfeVCIllionof significaru. delerioration (PSD) incfemetu. or 1O:acoooitionof:air pollution" 11tis pro\isionen,sun,s lhatan :affirmative defensecould nolbe SUSlained foranemissions :acti\'ity for wllidJ the owneroroperalorhas failed 10 pro\'e thallhee\"tJI1 did nol causeorconlribute 10 anexettdance ofthe NAAQS, PSD increments or 10 I conditionofairpotlutiOll

#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 oomoostionIwbines. Subseclion
escape reporting requirements IOI.211(a){2) concerns w notificalion forI scheduled maiaen.aa:e, SLaltUp, orshuldown aeti\'ily involvin& a boile£orcombost.ionrurbinc. Also see subsection I0I.201(d) oflherule. Wedo001 believe th31 Texas' reporting req.rlrcmel1lS forexCdS etnissions excludeboilcn orc:mnh:Istion IUlbines. Forthese reasons

.....e disagree with theCornmetUn.


### 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 adetennirolion ofwhetherallotice ofdeficiency onder

a Notice ofDeficiency (NOD) to the State title Vofthe 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;ramdeficiency 10 determine whelhera violationoftitie Vhas Act /llld EPA's guidance. Thecornmenlers 

# """""'. 1·lowe\'el', althis stage, COllllllenrers areonly specubting as to
are concerned 

### thai Tc:us may rescind the MUle**~sions** 10 IheTIllesth31 IheSlale Illithl ormight nOI adopL T1te existing rules and adopt new rules before Agency also bala.nces anumberofolher factors in detCf1nirina whether10 June 30. 2005 and once again be in the issue a. mtiec ofdeficiency. ilrludi1li allocation of:lgency rcsoutI:e:S. position ofbeing unable to enforce the likelihood ofN«US in enfon:emenl

### tlvouth anNOD, Iilelibood

excess emissions provisioo in the SIP of**re!(l"~** a. program fla

..... throuiholhe:rmechanisms. an:! how cnfon:emenl in apartieuJarsiruation filS wilhinthe 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 (200I, 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 ofthis FR, the December29,2003 submittal will supersede the 

### November 28, 2000 (65 FR70792)-published SIP, and the November 28, 2000 version ofthe rule WillllO 

### longer 

## be a part ofthe Texas SIP. IfTexas rule 10I 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