Technical Support Document

Oklahoma Administrative Code

Title 252, Chapter 100 Air Pollution Control, Subchapter 9 Excess Emission Reporting Requirements

(OAC 252:100-9)

[EPA-R06-OAR-2010-0652]
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Introduction

This Technical Support Document (TSD) is comprised of 3 parts (parts “1” through “3”). This 

TSD concerns our evaluation of proposed revisions to the Oklahoma State Implementation Plan (SIP), 

Oklahoma Administrative Code (OAC) Title 252, Chapter 100 Air Pollution Control, Subchapter 9

Excess Emissions Reporting Requirements (OAC 252:100-9 Excess Emission Reporting Requirements, 

or Subchapter 9), as submitted to us by the Oklahoma in a letter dated July 16, 2010. In part 1, we 

present the 1994 version of the OAC 252:100-9 Excess Emission Reporting Requirements, or 

Subchapter 9, or 1994 Subchapter 9 provisions).

In part 2, we present the 2001 version of the Subchapter 9 provisions (2001 Subchapter 9 

provisions). The material in part 2 is not subject of this particular rulemaking action, and is presented 

here for historical and background information purposes only. In part 3, we present our evaluation of 

proposed revisions to the Oklahoma State Implementation Plan (SIP) concerning OAC 252:100-9 as 

submitted to us by the Oklahoma Department of Environmental Quality (ODEQ) on July 16, 2010 (2010 

Subchapter 9 provisions), which is the subject of this particular rulemaking.

There is no confidential business information associated with the July 16, 2010 SIP submittal

package.

Part 1

The current EPA-approved Oklahoma SIP includes the excess emission requirements submitted 

to EPA in 1994. This 1994 version of OAC 252:100-9, Excess Emission and Malfunction Reporting

Requirements (1994 Subchapter 9 provisions) was approved by EPA in an administrative rulemaking 

action on November 3, 1999 (See 64 FR 59629). Consequently, the 1994 Subchapter 9 provisions 

became a part of the federally-enforceable Oklahoma SIP, effective January 3, 2000. See 40 CFR 

52.1920(c)(48).

The current EPA-approved version of the Subchapter 9 provisions is tabulated in Table I below. 

Note that one section of the 1994 Subchapter 9 provisions is included in EPA’s proposed rulemaking in 

response to Sierra Club’s national petition related to excess emission requirements in 39 SIPs, including 

Oklahoma (hereinafter referred to as EPA’s February 22, 2013 Proposed SSM SIP Calls). See 78 FR 

12460 (February 22, 2013). If EPA’s February 22, 2013 Proposed SSM SIP Calls is finalized, for 

Oklahoma, then Oklahoma will be issued a SIP-call to revise 252:100-9-3 General reporting

requirements of the 1994 Subchapter 9 provisions in the EPA-approved Oklahoma SIP to address the 
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inadequacies identified in the final rulemaking action for the SSM SIP-call. It is important to note that 

ODEQ has revised and revoked the 1994 Subchapter 9 provisions, as a matter of state law, and replaced 

them with the 2010 Subchapter 9 provisions which have been submitted in the July 16, 2010 SIP 

submittal, as discussed in part 3 below.

Table I - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS (As approved by EPA 11/03/1999 (64 FR 59629) at 40 CFR 52.1920(c)(48),

effective 01/03/2000.)

252:100-9-1. Purpose

 The purpose of this Subchapter is to provide timely and accurate data on excess air emissions in the 

state. 

252:100-9-2. Definitions

 The following words and terms, when used in this Subchapter, shall have the following meaning, 

unless the context clearly indicates otherwise:

 "Excess emissions" means the emission of air contaminants in excess of an applicable limitation or 

requirement as specified in the applicable limiting Subchapter.

 "Malfunction" means any sudden and unavoidable failure of air pollution control equipment or 

process equipment to operate in a normal and usual manner. Failures caused entirely or partially by 

poor maintenance, careless operation or any other preventable upset condition or preventable 

equipment failure shall not be considered a malfunction.

 "Phasing in" means the initial introduction of a piece of process equipment into the particular 

process.

 "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, 

injecting, escaping, dumping, or disposing into the environment of any air contaminant which becomes, 

or may become, airborne.

 "Shutdown" means the cessation of operation of any pollution control equipment process or process 

equipment other than routine phasing out of process units. 

 "Startup" means the setting into operation of any air pollution control equipment, process or 

process equipment for any purpose other than routine phasing in of process units. As used in this

Subchapter, the term "phasing in" refers to the initial introduction of a piece of process equipment into 

the particular process.

252:100-9-3. General reporting requirements

(a) Reporting. All excess emissions shall be reported as provided in this Chapter. The operation of 

any air pollution source which results in excess emissions caused by malfunction, shutdown, startup or 

regularly scheduled maintenance is in violation of the applicable air pollution control rule unless the 

owner or operator of the facility has complied with the notification requirements prescribed in this 

Subchapter.

(b) Demonstration of cause. The owner or operator of the facility must demonstrate to the satisfaction 

of the Director of the Air Quality Division, in a timely manner prescribed by 252:100-9-4 and 

252:100-9-5, that:

 (1) the excess emissions resulted from either malfunction or damage to the air pollution control 

or process equipment, sudden and unavoidable abnormal operating conditions during startup or 

shutdown, or scheduled maintenance;

 (2) measures, such as the use of off-shift and overtime labor, have been utilized to effect repairs 

and minimize emissions; and,
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Table I - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS (As approved by EPA 11/03/1999 (64 FR 59629) at 40 CFR 52.1920(c)(48),

effective 01/03/2000.)

 (3) excess emissions do not occur with such frequency that negligent, marginal or unsafe 

operation is indicated.

252:100-9-4. Maintenance procedures

(a) Practicality. When practicable, startup/shutdown of air control equipment for purposes of 

maintenance shall occur during regularly scheduled process maintenance.

(b) Reporting. When concurrent shutdowns of air pollution and process equipment are not practicable, 

the operator shall file a report in writing with the Director of the Air Quality Division prior to the 

proposed startup/shutdown. Such notice shall include:

 (1) identification of the specific facilities to be shutdown, including location and permit number, 

where applicable;

 (2) estimated length of time that the air control equipment will be out of service;

 (3) nature and quantity of emissions of air pollutants expected to be emitted during shutdown; 

 (4) reasons why it is impracticable or impossible to schedule air pollution control equipment 

shutdown to coincide with process maintenance shutdown; and, 

 (5) any additional information pertinent to the circumstances of the shutdown or additional 

information which may be required by the Director of the Air Quality Division.

252:100-9-5. Malfunctions and releases

(a) General provisions. In the event of a malfunction of air pollution control or process equipment, or 

any release which results in excess emissions, the owner or operator of such facility shall notify the 

Director of the Air Quality Division as soon as practical during normal office hours and no later than 

the next working day following the malfunction or release.

(b) Notice. As soon as possible thereafter, within ten (10) business days further notice shall be 

tendered in writing and shall include:

 (1) the identity of the excess emissions source or sources;

 (2) the magnitude of the excess emissions, expressed in units of the applicable limitation and 

including the numbers and formulae used to compute the magnitude of emissions;

 (3) the time and duration of the excess emissions; 

 (4) the identity of the equipment involved in the malfunction;

 (5) the nature and cause of the excess emissions;

 (6) the steps taken to remedy or avert the malfunction;

 (7) the steps taken to mitigate the amount of the excess emissions; and,

 (8) documentation reflecting the air pollution control equipment was properly serviced and 

maintained.

252:100-9-6. Excesses resulting from engineering limitations

If, from the application of practical engineering principles, the owner or operator of a facility concludes 

that the startup or shutdown of air pollution equipment or fluctuating operation of process equipment 

either will or did result in excess emissions solely as a result of engineering limitations of the 

equipment, the owner or operator shall notify the Director of the Air Quality Division in writing of 

such a conclusion.

 (1) Notice. Said notice shall contain:

 (A) the identity of the excess emissions source or sources;

 (B) the magnitude of the excess emissions, expressed in units of the applicable limitations, 
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Table I - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS (As approved by EPA 11/03/1999 (64 FR 59629) at 40 CFR 52.1920(c)(48),

effective 01/03/2000.)

including the data and calculations used to determine the amount of excess emissions;

 (C) the reasons and data upon which the owner or operator bases the conclusion that such excess 

emissions either will or did occur as a result of engineering limitations in the equipment; and,

 (D) any additional information pertinent to the nature of the air pollution or process equipment 

which may be required by the Director of the Air Quality Division.

 (2) Reporting. Thereafter, when excess emissions occur as a result of air pollution or process 

equipment startup or shutdown, the owner or operator shall file quarterly reports with the Director of 

the Air Quality Division. Such reports shall include: 

 (A) the identity of the excess emissions source or sources;

 (B) the date(s) of the excess emissions episode(s) including duration of the emission episode(s);

 (C) the magnitude of the excess emissions including data and calculations used to compute the 

magnitude of the emissions; and,

 (D) any additional information which may be required by the Director of the Air Quality 

Division.

While the 1994 Subchapter 9 provisions are not the subject of this rulemaking action, as 

discussed above, OAC 252:100-9-3(a) and OAC 252:100-9-3(b) of the 1994 Subchapter 9 

provisions are included in EPA’s February 22, 2013 Proposed SSM SIP Calls. See 78 FR 12460, 

12523 (February 22, 2103). As discussed in that proposal, it is EPA’s position that the Clean Air 

Act (CAA) does not allow for exemptions from otherwise applicable SIP emission limitations, 

even where the exemption is only available at the exercise of a state official’s discretion. In 

accordance with CAA sections 110(a)(2)(A) and 302(k), SIPs must contain “emission 

limitations” and those limitations must be continuous. Thus, any emissions above the level of 

the applicable SIP emission limitations must be considered a violation of such limitations,

regardless of whether the state elects to exercise its enforcement discretion.

SIP provisions that create exemptions (such that the excess emissions during startup, 

shutdown, malfunctions, or maintenance are not violations of the applicable emission 

limitations) are inconsistent with the fundamental requirements of the CAA for SIPs. OAC 

252:100-9-3(a) and OAC 252:100-9-3(b) of the 1994 Subchapter 9 provisions are two such 

provisions. The discretion created by these provisions allows for revisions of the applicable 

SIP emission limitations without meeting the applicable SIP revision requirements of the 

CAA, and it allows case-by-case exemptions from emission limitations when such 

exemptions are not permissible in the first instance. As a result, these provisions are 

inconsistent with the requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) and 
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contrary to the fundamental structure of the enforcement provisions of CAA sections 113 and 304. 

On February 22, 2013, EPA proposed to find OAC 252:100-9-3(a) and (b) substantially inadequate 

to meet CAA requirements for SIPs and proposed a SIP call with respect to these provisions. 

See 78 FR 12523-12524. As discussed below in part 3 of this TSD, however, the 1994 Subchapter 

9 provisions have been revised, revoked by Oklahoma as a matter of state law, and replaced with 

the 2010 Subchapter 9 provisions. The 2010 Subchapter 9 provisions were submitted to EPA on 

July 16, 2010, as a proposed revision to the Oklahoma SIP, and are subject of today’s proposed 

rulemaking action. As shown in part 3, the 2010 Subchapter 9 provisions have eliminated the 

exemption language that is present in the 1994 Subchapter 9 provisions of the current EPAapproved Oklahoma SIP.
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 Part 2

The ODEQ revised the 1994 Subchapter 9 provisions in 2001. The 2001 Subchapter 9 

provisions are provided in Table II below. Oklahoma submitted the 2001 Subchapter 9 provisions to 

EPA for approval as a SIP revision on February 14, 2002. However, EPA did not act on the 2001 

Subchapter 9 provisions, as a part of Oklahoma’s “Big SIP” recodification project published on 

December 29, 2008 (73 FR 79400), available at www.regulations.gov, Docket ID: EPA-R06-OAR2006-0389. ODEQ later amended and revoked the 2001 Subchapter 9 provisions, and then submitted 

the 2010 Subchapter 9 provisions, discussed in part 3 below, to EPA for review and evaluation as a 

proposed revision to the Oklahoma SIP. 

The July 16, 2010 cover letter submitting the 2010 Subchapter 9 provisions to EPA states that 

Oklahoma withdraws the 2001 Subchpater 9 provisions submitted to EPA on February 14, 2002. As 

stated before, the 2001 Subchapter 9 provisions are included here for background and information 

purposes only.

Table II - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS – 2001 version

252:100-9-1. Purpose

This Subchapter sets forth requirements for the reporting of excess emissions.

252:100-9-2. Definitions

The following words and terms, when used in this Subchapter, shall have the following meaning, unless 

the context clearly indicates otherwise:

"Bypass" means intentionally avoiding the use of air pollution control equipment.

"Excess emissions" means the emission of regulated air pollutants in excess of an applicable limitation 

or requirement as specified in the applicable limiting Subchapter, permit, or order of the DEQ. This term 

does not include fugitive VOC emissions covered by an existing leak detection and repair program that 

is required by a federal or state regulation.

"Malfunction" means any sudden, infrequent, and not reasonably preventable failure of air pollution 

control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that 

are caused in part by poor maintenance or careless operation are not malfunctions.

"Regulated air pollutant" means: (A) Any Volatile Organic Compound (VOC), as defined in 252:100-

1-3, 252:100-37-2, or 252:100-39-2.

(B) Any pollutant regulated under section 111 or 112 (except 112(r)) of the Federal Clean Air Act.

(C) Any pollutant for which a national primary ambient air quality standard has been promulgated under 

the Federal Clean Air Act. 

(D) Any Toxic Air Contaminant as defined and regulated under 252:100-41-2.

(E) Any other substance for which for which an air emission limitation or equipment standard is set by 

permit or rule.

"Shutdown" means the cessation of operation of any air pollution control equipment, process or 

process equipment.

"Startup" means the setting into operation of any air pollution control equipment, process or process 
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Table II - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS – 2001 version

equipment.

"Technological limitation" means operating constraints deliberately and necessarily designed into a 

piece of pollution control equipment or process equipment to prevent damage to the equipment and/or to 

prevent hazards to operating or maintenance personnel.

"Working day" means 8:00 a.m. to 4:30 p.m. each day except Saturday, Sunday, or a legal holiday for 

state employees as proclaimed by the Governor.

252:100-9-3.1. Excess emission reporting requirements

(a) Immediate notice. Excess emissions shall be reported to the Division as soon as the owner or 

operator of the facility has knowledge of such emissions, but no later than 4:30 p.m. the next working 

day. Notification may be made by fax (1-405-702-4101), telephone (1-877-277-6236), or any other 

method acceptable to the Division.

(b) Written report.

(1) Within ten working days after the immediate notice is given, a written report shall be submitted 

describing the extent of the excess emissions and response actions taken by the facility. The written 

report shall include all of the following data. 

(A) The date and time that the excess emissions occurred.

(B) The duration or expected duration of the excess emissions.

(C) The processes and equipment involved.

(D) The amount by which the total emissions exceed the applicable limitation or requirement, expressed 

in units of the applicable limitation or requirement, including the data and calculations used to compute 

the magnitude of emissions.

(E) The cause of the excess emissions, if known, including the reason for the maintenance, startup or 

shutdown, if applicable.

(F) The applicable limitation(s) or requirement(s) exceeded. 

(G) The steps taken to correct the cause, if applicable, and mitigate the amount or concentration of the 

excess emissions.

(H) Any additional information that may be required by the Division.

(2) If the owner or operator of a facility concludes that the startup or shutdown of air pollution control or 

process equipment results in excess emissions solely as a result of technological limitations, the owner 

or operator shall notify the Division in writing of such conclusion. The notice shall contain the reasons 

and data upon which the owner or operator bases the conclusion that such excess emissions occur as a 

result of technological limitations and shall be submitted with the written report required in (1) of this 

subsection. Thereafter, the owner or operator may file quarterly excess emission reports in place of the 

report required in (1) of this subsection. Quarterly reports shall include the information required in (1) of 

this subsection and shall be submitted within 30 days after the end of each calendar quarter.

(c) Certification

(1) Any written report submitted pursuant to (b)(1) or (b)(2) of this Section or 252:100-9-3.3 shall 

contain certification of truth, accuracy, and completeness. This certification shall be signed by a 

responsible official or designee and shall contain the following language: "I certify, based on 

information and belief formed after reasonable inquiry, the statements and information in this document 

are true, accurate, and complete." 

(2) The report required under (b)(1) of this Section may be submitted without a certification if an 

appropriate certification is provided within ten working days thereafter, together with any corrected or 
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Table II - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS – 2001 version

supplemental information concerning the excess emissions.

252:100-9-3.3. Demonstration of cause

(a) Malfunctions. Excess emissions caused by malfunction are exempt from compliance with air 

emission limitations established in permits, rules, and orders of the DEQ if the owner or operator 

complies with the requirements of 252:100-9-3.1 and (c) of this Section and demonstrates that:

(1) The excess emissions were caused by a sudden and not reasonably preventable failure of air 

pollution control equipment, process equipment or a process to operate in a normal or usual manner. 

(2) The excess emissions did not stem from an activity or event that could have been reasonably 

foreseen and avoided or planned for, and could not have been avoided by better operation and 

maintenance practices.

(3) To the maximum extent practicable, the air pollution control equipment or process equipment was 

maintained and operated in a manner consistent with good practice for minimizing emissions; provided, 

however, that this provision shall not be construed to automatically require the shutdown of process

equipment to minimize emissions. 

(4) Repairs were made in an expeditious fashion when the operator knew or should have known that an 

applicable emission limitation was being exceeded. Off-shift labor and overtime were utilized, to the 

extent practicable, to ensure that such repairs were made as expeditiously as practicable.

(5) The amount and duration of the excess emissions (including any bypass) were minimized to the 

maximum extent practicable during periods of malfunction; however, this provision shall not be 

construed to require the use or installation of additional or redundant pollution control equipment not 

otherwise required.

(6) Reasonable steps were taken to minimize the impact of the excess emissions on ambient air quality.

(7) Emission monitoring systems capable of producing valid data were kept in operation if at all 

possible.

(8) The owner or operator's actions in response to the malfunction were documented by properly signed, 

contemporaneous operation logs, or other relevant evidence.

(9) The excess emissions were not part of a recurring pattern indicative of inadequate design, operation 

or maintenance of the facility.

(b) Maintenance, start-up or shutdown. Excess emissions that result from maintenance, start-up or 

shutdown are exempt from compliance with air emission limitations established in permits, rules, and 

orders of the DEQ if the owner or operator complies with the requirements of 252:100-9-3.1 and (c) of 

this Section and demonstrates that:

(1) The periods of excess emissions were short and infrequent and could not have been prevented 

through careful planning and design.

(2) The excess emissions were not part of a recurring pattern indicative of inadequate operation or 

maintenance.

(3) If the excess emissions were caused by a bypass, then the bypass was unavoidable to prevent loss of 

life, personal injury, or severe property damage.

(4) The facility was operated in a manner consistent with good practice for minimizing emissions; 

provided, however, that this provision shall not be construed to require the use or installation of 

additional or redundant pollution control equipment not otherwise required and that this provision shall 

not be construed to automatically require the shutdown of process equipment to minimize emissions.

(5) Reasonable steps were taken to minimize the impact of the excess emissions on ambient air quality.

(6) Emissions monitoring systems capable of producing valid data were kept in operation if at all 
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Table II - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS – 2001 version

possible.

(7) The owner or operator's actions during the period of excess emissions were documented by properly 

signed, contemporaneous operating logs, or other relevant evidence.

(c) Demonstration deadlines. A demonstration must be made within 30 days after the occurrence has 

ended. Owners and operators who report quarterly under 252:100-9-3.1(b)(2)(relating to technological 

limitations) may submit their demonstrations with their quarterly reports.

(d) Burden of proof. The owner or operator has the burden of proving that the criteria identified in 

subsection (a) for malfunctions or in subsection (b) for maintenance, start-up or shutdown occurrences 

are satisfied.

(e) Exceptions. (1) The Division will not exempt sources from complying with any NSPS or NESHAP

requirements.

(2) Excess emissions occurring more than 1.5 percent of the time that a process operated in a calendar 

quarter may be indicative of inadequate design, operation, or maintenance, and the Division may initiate 

further investigation. 

(3) Excess emissions resulting from malfunctions, maintenance, start-ups or shutdowns will be subject 

to the DEQ's power to require corrective action or order any other action necessary under the 

circumstances, if the emissions cause or contribute to a condition of air pollution.
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Part 3

As stated above, EPA did not act upon the 2001 Subchapter 9 provisions. ODEQ later amended and 

revoked the 2001 Subchapter 9 provisions in 2009, and submitted the new Subchapter 9 provisions to 

EPA for review, evaluation, and approval as a revision to the Oklahoma SIP on July 16, 2010 (2010 

Subchapter 9 provisions). See the letter from State’s Secretary of Environment to EPA Region 6, 

Regional Administrator, dated July 16, 2010. As stated in part 1 above, the 2010 Subchapter 9 

provisions eliminate the exemption language contained in the 1994 Subchapter 9 provisions. EPA 

Region 6 would like to express its appreciation to ODEQ’s Air Quality Division Director for forming 

the excess emission workgroup and demonstrating leadership by taking initiative, at the State level, to 

revise the Subchapter 9 provisions concerning excess emissions events both in 2001 and 2009. 

The EPA has a fundamental responsibility under the CAA to ensure that SIPs provide for 

attainment and maintenance of the NAAQS and protection of prevention of significant deterioration 

(PSD) increments, and that compliance with the established emission limitations be on a continuous and 

not intermittent basis. EPA views all excess emissions as violations of emission limitations or emission 

standards. However, we recognize that, in certain situations, imposition of a civil penalty (but not 

injunctive relief) for sudden and unavoidable events caused by circumstances entirely beyond the 

control of the owner or operator may not be appropriate. The EPA has provided guidance on different 

approaches States may use in addressing excess emissions: (1) traditional enforcement discretion; (2) 

SIP provisions that address the exercise of enforcement discretion by state personnel; and (3) SIP 

provisions that provide for a narrowly tailored affirmative defense to civil penalties. States are not 

required to provide an affirmative defense approach, but if they choose to do so, EPA will evaluate the 

State’s SIP submittal for consistency with the Act. Appendix B of this document contains example 

regulatory text of affirmative defense provisions for excess emissions which occur during malfunctions

that EPA has recommended for use in SIPs. The 2010 Subchapter 9 provisions are tabulated in Table III 

below. An evaluation follows each section.

252:100-9-1 Purpose

Table III - SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING 

REQUIREMENTS – 2010 version, Also see: http://www.deq.state.ok.us/rules/100.pdf

252:100-9-1. Purpose

This subchapter sets forth requirements for the reporting of excess emissions and establishes

affirmative defense provisions for facility owners and operators for excess emissions.
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The purpose provision of the rule establishes the reporting requirements and references 

“affirmative defense provisions” that a source will need to follow for excess emissions events. Excess 

emissions events may result from startup, shutdown, or malfunction activities (three categorical events). 

Consistent with CAA requirements for SIPs and as discussed in EPA’s February 22, 2013 Proposed 

SSM SIP Calls (78 FR 12480), Section VII(C) titled “Affirmative Defense Provisions During Periods of 

Startup and Shutdown,” EPA’s approval of such a defense would not be permissible for excess 

emissions during periods of startup and shutdown, however, approval of a SIP provision which provides 

a limited affirmative defense to a source for excess emissions during periods of malfunction may be 

permissible. Section 252:100-9-1 contains an overly broad reference to the affirmative defense 

provisions for excess emissions, because the term “excess emissions,” defined in section 252:100-9-2, is 

not limited to excess emissions occurring during unplanned events, such as malfunctions. Since this 

section in intertwined with and not separable from the affirmative defense provisions found in section 

252:100-9-8, we are recommending a simultaneous limited approval and a limited disapproval of this 

section along with section 252:100-9-8, as discussed more fully below. 

252:100-9-1.1 Applicability

252:100-9-1.1. Applicability

This subchapter applies to the owners and operators of air contaminant sources that are subject to 

emission limitations in OAC 252:100, an enforceable permit, an administrative order or a judicial 

order.

The applicability provision of the rule defines who becomes subject to the stated requirement, 

and it is separable from the affirmative defense provisions in section 252:100-9-8. This section should 

be approved.

252:100-9-2 Definitions

252:100-9-2. Definitions

The following words and terms, when used in this subchapter, shall have the following meaning,

unless the context clearly indicates otherwise:

"Bypass" means intentionally avoiding the use of air pollution control equipment.

"Excess emissions" means the emission of regulated air pollutants or opacity in excess of an 

applicable limitation or requirement as specified in the applicable rule(s), enforceable permit, 

administrative order or judicial order. This term does not include fugitive VOC emissions covered by 

an existing leak detection and repair program that is required by a federal or state regulation.

"Excess emission episode" means a continuous period of excess emissions occurring from one 

emission unit.

"Excess emission event" means the period of time during which excess emissions occurred, either 
13

continuously or intermittently, as a result of the same primary cause. An excess emission event may 

include one or more excess emission episodes.

"Primary cause" means the fundamental aspect of the cause that can logically be identified. In the 

event of a series of causes, one leading to another, the fundamental cause is the primary cause.

"Working day" means 8:00 a.m. to 4:30 p.m. each day except Saturday, Sunday, or a legal holiday for 

state employees as proclaimed by the Governor.

The definitions provision of the rule will assist in implementation and enforcement of the rule, 

and it is separable from the affirmative defense provisions in 252:100-9-8. This section should be 

approved.

252:100-9-3.1. Excess emission reporting requirements [AMENDED AND RENUMBERED

TO 252:100-9-7]

252:100-9-3.3. Demonstration of cause [AMENDED AND RENUMBERED TO 252:100-9-8]

252:100-9-7(a) Excess emission reporting requirements - Immediate notice

252:100-9-7. Excess emission reporting requirements

(a) Immediate notice. Except as provided in OAC 252:100-9-7(a)(1), the owner or operator of a 

source of excess emissions shall notify the Director as soon as possible but no later than 4:30 p.m. the 

following working day of the first occurrence of excess emissions in each excess emission event. 

Notification may be made by telephone (1-877-277-6236), by email (excessemissions@deq.ok.gov), by 

web (http://www.deq.state.ok.us/excessemissions) or by other method as approved in writing by the 

Director prior to the excess emission event.

(1) Immediate notification shall not be required for:

(A) excess emission events with a primary cause of startup or shutdown as defined in OAC 252:100-1-

3; or

(B) excess emissions that do not exceed ten percent (10%) opacity above the applicable opacity limit or 

standard; or

(C) excess emissions that do not exceed ten percent (10%) of the applicable non-opacity emission limit 

or standard and are less than two hundred (200) pounds of the relevant regulated pollutant during any 

twenty-four (24) hour period.

(2) In any event, no excess emission shall be exempt from the immediate notification requirements of 

OAC 252:100-9-7(a), if the emission is:

(A) in excess of a limit of a hazardous air pollutant as defined in OAC 252:100-7-1.1 or a toxic air 

contaminant as listed in Appendix O of this Chapter; or

(B) in excess of a limit of a criteria pollutant or ozone precursor emitted from a source located in an 

area designated as nonattainment for the relevant criteria pollutant.

(3) Any required immediate notice shall include:

(A) the company name,

(B) the facility name,

(C) the event date,

(D) the event start time,
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(E) the emission unit,

(F) the primary cause, if known, and

(G) the opacity and/or pollutant(s) emitted.

(4) If an immediate notice is submitted and the owner or operator discovers that no excess emission has 

occurred, the owner or operator shall retract the immediate notice in writing within thirty (30) days of 

submission of the immediate notice.

The immediate notice provision of the rule sets forth the information an operator or owner is 

required to supply the ODEQ upon discovery of an excess emission event. This section is separable 

from the affirmative defense provisions in 252:100-9-8. This section should be approved.

252:100-9-7(b) Excess emission event report

(b) Excess emission event report. No later than thirty (30) calendar days after the start of any excess 

emission event, the owner or operator of an air contaminant source from which excess emissions have 

occurred shall submit a report for each excess emission event describing the extent of the event and the 

actions taken by the owner or operator of the facility in response to this event. After receiving a written 

request prior to the thirty (30) day deadline, the Director may grant an extension. The report shall 

include:

(1) The date and start time of each excess emission event.

(2) The start time and duration of each excess emission episode in the excess emission event.

(3) The common name and the permit established identifier(s) from which the excess emissions

occurred.

(4) The applicable authorized emission limits, related to the air contaminant sources involved in the 

event, including:

(A) any applicable permit number(s) and condition(s); and/or

(B) any applicable rule, administrative order provision, or judicial order provision.

(5) The amount by which the total emissions exceeded the applicable limitation or requirement, 

expressed in units of the applicable limitation or requirement, including the data and calculations used 

to compute the magnitude of said event. Include the total mass of any quantifiable air contaminants 

released in excess of the applicable limitation or requirement. Good practice and methods must be used 

to provide reasonably accurate representations for excess emissions.

(6) The primary cause of the event, including the reason for any relevant startup or shutdown.

(7) The immediate action taken to address the excess emission event and the corrective action(s)

taken to address the primary cause of the excess emission event. If no corrective actions are taken, the 

report shall include a detailed explanation for that conclusion.

(8) The corrective action(s) taken to address a reoccurrence of the excess emission event.

(9) Any additional information that may be requested by the Division.

The excess emission event report provision of the rule states what information the owner or 

operator will need to furnish the State after the immediate report. This section will assist with the 

implementation of the rule to curb or control excess emissions, and it is separable from the affirmative 

defense provisions in 252:100-9-8. This section should be approved.
15

For ODEQ’s online excess emissions reporting tool see:
16

252:100-9-7(c) Ongoing events

(c) Ongoing events. If an excess emission event is ongoing at the time the excess emission event report 

required by OAC 252:100-9-7(b) is submitted, the owner or operator shall submit a final excess 

emission event report within thirty (30) calendar days after the end of the ongoing event. If an excess 

emission event is ongoing for one or more calendar quarters, the owner or operator shall file updated 

excess emission event reports within thirty (30) calendar days after the end of each calendar quarter 

until the event has ended. The updated reports shall be clearly identified as updated reports.

This ongoing excess emission event report provision of the rule section (252:100-9-7(c)) will 

apply to those events that may last longer than the timeline set forth in the above section 252:100-9-7(b). 

This section will act as a safeguard to ensure that the reporting requirements are properly addressed, and 

it is separable from the affirmative defense provision in 252:100-9-8. This section should be approved.

252:100-9-7(d) Alternative reporting

(d) Alternative reporting. Owners or operators of air contaminant sources subject to the excess 

emission reporting requirements of OAC 252:100-9-7(b) and the reporting requirements of 40 CFR 

Parts 60, 61 and 63 may submit a written request to the Director for a case-by-case determination 

allowing alternative reporting. The written request shall include an alternative reporting plan and 

explain the extent to which the federal reporting requirements duplicate the requirements of this 

subchapter. A written determination on an alternative reporting request shall be made within ninety (90) 

days after such request is received by the Director. If no determination is made within the ninety (90) 

day period, the owner or operator making such request may operate under the proposed alternative 

reporting plan until the Director issues a determination.

The alternative reporting for excess emission event report provision of the rule will apply to 

those events that may also be subject to the reporting requirements of 40 CFR Parts 60, 61 and 63. 

These sources upon making a written request form ODEQ and explaining to the extent that federal 

requirements duplicate Subchapter 9 requirements and propose an alternative method of reporting, and 

may then use the applicable federal reporting requirements to fulfill the reporting needs of this section. 

This section will provide the owner or operator an opportunity to avoid multiple reporting of the 

same event. This section will promote consistency among the state and 40 CFR Parts 60, 61 and 63 

reporting requirements of excess emissions, and it is separable from the affirmative defense provisions 

in 252:100-9-8. This section should be approved.

252:100-9-7(e) Certificate of truth, accuracy and completeness required

(e) Certificate of truth, accuracy and completeness required. Any report filed pursuant to this 

subchapter shall contain a certification of truth, accuracy and completeness. This certification shall 

include an original signature by a responsible official or designee and shall contain the following 

language: "I certify, based on information and belief formed after reasonable inquiry, the statements and 

information in this document are true, accurate and complete."
17

The certificate of truth, accuracy and completeness required provision of the rule will promote 

correctness, the transparency of information submitted by the owner or operator concerning an emission 

event, and should assist with the enforcement of the rule. This section is separable form the affirmative 

defense provisions in 252:100-9-8. This section should be approved.

252:100-9-8(a) Affirmative defenses - General

252:100-9-8. Affirmative defenses

(a) General. All periods of excess emissions regardless of cause are violations of the Act and rules 

promulgated thereunder, the Oklahoma Clean Air Act and rules promulgated thereunder, and applicable 

permit or other authorization of the DEQ. An affirmative defense is provided to owners and operators 

for civil or administrative penalty actions for excess emissions during periods of startup, shutdown and 

malfunction.

This provision states what type of actions one could assert a claim for affirmative defense (civil 

or administrative penalty actions); it also states that all excess emissions are considered violations of 

emission limitations, regardless of cause. This portion of section 252:100-9-8 is consistent with EPA’s 

interpretation of the Act and EPA’s SSM Policy; however, as expressed in the EPA’s February 22, 2013 

Proposed SSM SIP Calls, a rule which creates a narrowly-tailored affirmative defense to excess 

emissions during periods of sudden, unavoidable, and unpredictable events (i.e., malfunctions) may 

meet CAA requirements for SIP revisions and could be approved by EPA, but a rule with an affirmative 

defense for excess emissions during planned activities (such as startup and shutdown) provisions would 

not be consistent with the requirements of the CAA for SIPs and could not be approved by EPA. 

We have also reviewed the rule in front of us and determined that the two sentences in section 

252:100-9-8(a) are not separable from each other, and approving the first sentence while disapproving 

the second sentence could make the approval of the remainder of that section more stringent than 

Oklahoma anticipated or intended. For example, had Oklahoma known at the time of the rule adoption 

it would be impermissible for EPA to approve a SIP revision which creates an affirmative defense for 

excess emissions due to startups and shutdowns, ODEQ may have elected to establish alternative 

emission limitations or other control measures or techniques designed to minimize emissions during 

startup and shutdown activities in lieu of the affirmative defense. Applying the principles established in 

Bethlehem Steel and as expressed in the 1992 Calcagni Memo, we believe that in this particular factual 

scenario with the wording of these specific provisions, EPA cannot merely excise the words “startup” 

and “shutdown” from the second sentence in section 252:100-9-8(a), and approve the remainder of the 
18

section into the Oklahoma SIP.1

 Likewise, in looking at the other provisions of section 252:100-9-8, we 

believe that they are not separable from section 252:100-9-8(a), which is the general provision that 

establishes the affirmative defenses for startup, shutdown, and malfunction events in the first instance. 

That is, the general provisions of section 252:100-9-8(a) which create the affirmative defenses are 

inextricably intertwined with the remainder of the other provisions in section 252:100-9-8 (that is, 

sections 252:100-9-8(b) through 252:100-9-8(e)), and those latter provisions cannot stand by 

themselves.

Therefore, we are proposing limitedly approving and limitedly disapproving this section into the 

Oklahoma SIP, at the same time. We are limitedly approving this section because the first sentence will 

strengthen the SIP. We are limitedly disapproving this section because the second sentence is 

inconsistent with EPA’s interpretation of the Act for excess emissions. As a result, this section will 

become part of the SIP and federally enforceable. Further, EPA is also proposing a finding of substantial 

inadequacy for section 252:100-9-8. If today’s proposed rulemaking is finalized, ODEQ will need to 

address the deficiency of 252:100-9-8(a) with respect to startup and shutdown (a foreseen or planned

activity) in a future proposed SIP revision of Subchapter 9, as part its response to the SIP call proposed 

in today’s proposed rulemaking. This section, 252:100-9-8(b), in and by itself, is a basis of 

“substantially inadequacy” finding associated with today’s proposed rulemaking.

 

252:100-9-8(b) Affirmative defenses for excess emissions during malfunctions

(b) Affirmative defenses for excess emissions during malfunctions. To establish the affirmative 

defense and to be relieved of a civil or administrative penalty in any action to enforce an applicable 

requirement, the owner or operator of the facility must meet the requirements of OAC 252:100-9-7 and 

establish by a preponderance of the evidence:

(1) The excess emissions were caused by a sudden and not reasonably preventable breakdown of air 

pollution control equipment or process equipment, or the failure of a process to operate in the normal or 

usual manner.

(2) The excess emissions did not stem from any activity or event that could have been planned for or 

reasonably foreseen and avoided.

(3) Repairs were made as expeditiously as possible.

(4) The amount and duration of the excess emissions, including any bypass, were minimized to the 

extent practicable during periods of such emissions.

(5) Reasonable steps were taken to minimize the impact of the excess emissions on ambient air quality.

(6) The reason(s) any monitoring systems were not kept in operation, if applicable.

(7) The owner or operator's actions during the period of excess emissions were documented by 

contemporaneous operating logs or other relevant evidence.

(8) The excess emissions were not part of a recurring pattern indicative of inadequate design, operation 

 1

 See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036-37 (7th Cir. 1984); see also 1992 Calcagni Memo at 2.
19

or maintenance.

(9) To the maximum extent practicable, the air pollution control equipment or process equipment

was maintained and operated in a manner consistent with good practice for minimizing

emissions; provided, however, that this provision shall not be construed to automatically require

the shutdown of process equipment to minimize emissions.

It is important to note that a valid affirmative defense for excess emissions due to a 

malfunction can only be effective with respect to monetary penalties, not with respect to 

potential injunctive relief. An affirmative defense simply provides a defense, under narrowly 

defined circumstances, if and when penalties are assessed. Second, the affirmative defense 

should be limited only to events that are sudden, unavoidable, and unpredictable. Third, a 

valid affirmative defense provision for excess emissions due to a malfunction must provide 

that the defendant has the burden of proof to demonstrate all of the elements of the defense to 

qualify. This demonstration has to occur in a judicial or administrative proceeding where the 

merits of the affirmative defense are independently and objectively evaluated.

In order to have an approvable affirmative defense to excess emissions due to a malfunction, the 

affirmative defense provisions of the rule do not have to be identical (verbatim the same as) to the 

criteria recommended in EPA’s 1999 Policy or EPA’s February 22, 2013 Proposed SSM SIP Calls; 

however, they should follow the intent of the criteria recommended in the EPA’s 1999 Policy for 

malfunctions and EPA’s February 22, 2013 proposed SSM SIP Calls, so as to assure that the affirmative 

defense is available only for events that are entirely beyond the control of the owner or operator of the 

source and events where the owner or operator of the sources has made all practicable efforts to comply. 

While the criteria in 252:100-9-8(b) are not identical (word-by-word) to the criteria 

recommended by EPA in its1999 Policy or recommended in Section VII(B) “Affirmative Defense 

Provisions During Periods of Malfunction,” of EPA’s February 22, 2013 Proposed SSM SIP Calls 

(78 FR 12478-12479), we believe that the criteria in 252:100-9-8(b) closely follow the intent of the 

criteria EPA recommends in the 1999 Policy and in EPA’s February 22, 2013 Proposed SSM SIP Calls

(78 FR 12478-12479). When the criteria set forth in 252:100-9-8(b) are viewed together with the 

provisions in sections 252:100-9-8(d) “Affirmative defenses prohibited;” 252:100-9-8(e) “Affirmative 

defense determination;“ and 252:100-9-7(f) “Certificate of truth, accuracy and completeness required,” 

we find them adequate to meet CAA requirements for SIPs.

For a word-by-word comparison of the criteria for the affirmative defense for excess emissions 

due to a malfunction contained in 252:100-9-8(b) of the 2010 Subchapter 9 provisions to the criteria 

recommended in EPA’s 1999 Policy for malfunctions, see Appendix A. Appendix B is a list of the 
20

recommended affirmative defense criteria for malfunctions, as contained in EPA’s February 22, 2013 

Proposed SSM SIP Calls (78 FR 12478-12479). For a word-by-word comparison of the affirmative 

defense criteria for malfunctions found in the 2010 Subchapter 9 provisions to the recommended criteria 

expressed in EPA’s February 22, 2013 Proposed SSM SIP Calls (78 FR 12478-12479), see Appendix C. 

Finally, Appendix D contains a tabulated listing of affirmative defense criteria related to malfunctions 

reflected by (1) Oklahoma’s 2010 Subchapter 9 provisions at 252:100-9-8(b); (2) the recommendations 

in EPA’s 1999 Policy; and (3) the recommendations in EPA’s February 22, 2013 Proposed SSM SIP 

Calls (78 FR 12478-12479).

Since this provision is not separable from the remainder of section 252:100-9-8 this section,

252:100-9-8(b), should be included in the proposed limited approval and limited disapproval of 

252:100-9-8 as a whole, as well as the proposed finding of substantial inadequacy and proposed SIP call.

This section, 252:100-9-8(b), in and by itself, is not a basis of “substantially inadequacy” finding

associated with today’s proposed rulemaking.

252:100-9-8(c) Affirmative defenses for excess emissions during startup and shutdown

(c) Affirmative defenses for excess emissions during startup and shutdown. To establish the

affirmative defense and to be relieved of a civil or administrative penalty in any action to enforce an 

applicable requirement, the owner or operator of the facility must meet the requirements of OAC 

252:100-9-7 and establish by a preponderance of the evidence:

(1) The periods of excess emissions that occurred during startup and shutdown were short and

infrequent and could not have been prevented through reasonable planning and design.

(2) The excess emissions were not part of a recurring pattern indicative of inadequate operation or 

maintenance.

(3) If the excess emissions were caused by a bypass, the bypass was unavoidable to prevent loss of life, 

personal injury or severe property damage.

(4) The frequency and duration of operation in startup and shutdown periods were minimized to the 

extent practicable.

(5) Reasonable steps were taken to minimize the impact of excess emissions on ambient air quality.

(6) The reason(s) any monitoring systems were not kept in operation, if applicable.

(7) The owner or operator's actions during the period of excess emissions were documented by

contemporaneous operating logs or other relevant evidence.

(8) The facility was operated in a manner consistent with good practice for minimizing emissions; 

provided, however, that this provision shall not be construed to require the use or installation of 

additional or redundant pollution control equipment not otherwise required and that this provision shall 

not be construed to automatically require the shutdown of process equipment to minimize emissions.

Consistent with CAA requirements for SIPs and as expressed in EPA’s February 22, 

2013 Proposed SSM SIP Calls (78 FR 12480), Section VII(C) titled “Affirmative Defense Provisions 

During Periods of Startup and Shutdown,” a SIP provision which creates an affirmative defense for 
21

excess emissions during periods of malfunction may be permissible, provided it meets the CAA 

requirements for SIPs. However, a provision which creates an affirmative defense for excess emissions 

during periods of planned activities (such as startup and shutdown) could not be approved by EPA as a 

SIP revision. The EPA believes that providing affirmative defenses for violations that occur as 

a result of planned events within the control of the owner or operator of the source is 

inconsistent with the requirements of CAA sections 110(a) and 302(k) as well as CAA 

sections 113 and 304, which provide for potential civil penalties for violations of SIP

requirements. This section, 252:100-9-8(c), in and by itself, is a basis of “substantially inadequacy”

finding associated with today’s proposed rulemaking.

As such, this section should be included in the limited approval and limited disapproval and 

identified as one of the three sections of 252:100-9 – together with sections 252:100-9-1 and 252:100-9-

8(a) as discussed above – which together form the basis for the proposed finding of substantial 

inadequacy and proposed SIP call in today’s proposed rulemaking. 

252:100-9-8(d) Affirmative defenses prohibited

(d) Affirmative defenses prohibited. The affirmative defense provisions of this section shall 

not be available for:

(1) Claims for injunctive relief.

(2) SIP limits or permit limits that have been set taking into account potential emissions during

startup and shutdown, including, but not limited to, limits that indicate they apply during startup

and shutdown, and limits that explicitly indicate they apply at all times or without exception.

(3) Excess emissions that cause an exceedance of the NAAQS or PSD increments.

(4) Failure to meet federally promulgated emission limits, including, but not limited to, 40 CFR

Parts 60, 61 and 63.

(5) Violations of requirements that derive from 40 CFR Parts 60, 61 and 63.

This section sets forth specific situations for which the affirmative defense provisions would not 

be available. We believe this section is consistent with section 110 of the Act and the CAA requirements 

for SIPs. SIPs are designed to protect the NAAQS. See 42 USC §7410. If restricted to an appropriately 

tailored affirmative defense provision for excess emissions during malfunctions, this section could be 

approved as being consistent with CAA requirements for SIPs, and for strengthening of the SIP. As 

such, this section, 252:100-9-8(d), in and by itself, is not a basis for the proposed finding of “substantial 

inadequacy” finding associated with today’s proposed rulemaking. However, since this provision is not 

separable from the remainder of section 252:100-9-8 this section, 252:100-9-8(d), should be included in 
22

the proposed limited approval and limited disapproval of 252:100-9-8 as a whole, as well as the 

proposed finding of substantial inadequacy and proposed SIP call.

252:100-9-8(e) Affirmative defense determination

(e) Affirmative defense determination. In making any determination whether a source 

established an affirmative defense, the Director shall consider the information within the 

notification required in OAC 252:100-9-7 and any other information the Director deems 

necessary and relevant, which may include, but is not limited to, physical inspection of the 

facility and review of documentation pertaining to the maintenance and operation of emission 

units and air pollution control equipment. This section should not be construed as limiting EPA

or citizens' authority under the Act.

The section sets forth what information ODEQ’s Air Director will consider in making 

affirmative defense determinations. The section recognizes the EPA’s and citizens’ enforcement 

authority under the Act by stating that “This section should not be construed as limiting EPA or citizens' 

authority under the Act.” When read in conjunction with 252:100-9-8(a), we interpret this section as not

altering the nature of an affirmative defense – that is, an affirmative defense is a response or defense put 

forward by a defendant (i.e., the owner or operator), where the defendant has the burden of proof. The 

merits of an affirmative defense are independently and objectively evaluated in a judicial or 

administrative proceeding. This section will strengthen the SIP and should be included in the proposed 

limited approval and limited disapproval. If the affirmative defense provisions in the Subchapter 9 

provisions were revised to be applicable only to an appropriately drawn and narrowly tailored 

affirmative defense for excess emissions due to malfunctions, this section would be consistent with 

CAA requirements for SIPs. As such, this section is not a basis for the proposed finding of “substantial 

inadequacy” finding associated with today’s proposed rulemaking. However, since section 252:100-9-

8(e) is not separable from the remainder of section 252:100-9-8 it should be included in the proposed 

limited approval and limited disapproval of 252:100-9-8 as a whole as well as the proposed finding of 

substantial inadequacy and proposed SIP call.

In sum, the following Table IV identifies the sections of the July 16, 2010 SIP submittal and the 

proposed action for each section of the 2010 Subchapter 9 provisions submitted therein:

Table IV: Sections of the July 16, 2010 SIP submittal and their corresponding rulemaking action type

Section Title Action Type

252:100-9-1 Purpose Propose limited approval and limited 

disapproval; a basis for “substantially 
23

Section Title Action Type

inadequate” proposed finding and 

proposed SIP call because is not separable 

from 252:100-9-8

252:100-9-1.1 Applicability Propose approval.

252:100-9-2 Definitions Propose approval.

252:100-9-7(a) Immediate notice Propose approval.

252:100-9-7(b) Excess emission event report Propose approval.

252:100-9-7(c) Ongoing events Propose approval.

252:100-9-7(d) Alternative reporting Propose approval.

252:100-9-7(e) Certificate of truth, accuracy and 

completeness required

Propose approval.

252:100-9-8(a) General Propose limited approval and limited 

disapproval; a basis for “substantially 

inadequate” proposed finding and 

proposed SIP call because is not separable 

from remainder of 252:100-9-8.

252:100-9-8(b) Affirmative defenses for excess 

emissions during malfunctions

Propose limited approval and limited 

disapproval; not a basis of “substantially 

inadequate” proposed finding. Included in 

proposed SIP call because is not separable 

from remainder of 252:100-9-8.

252:100-9-8(c) Affirmative defenses for excess 

emissions during startup and 

shutdown

Propose limited approval and limited 

disapproval; a basis for “substantially 

inadequate” proposed finding and 

proposed SIP call because is not separable 

from remainder of 252:100-9-8.

252:100-9-8(d) Affirmative defenses prohibited Propose limited approval and limited 

disapproval; not a basis of “substantially 

inadequate” proposed finding. Included in 

proposed SIP call because is not separable 

from remainder of 252:100-9-8. 

252:100-9-8(e) Affirmative defense determination Propose limited approval and limited 

disapproval; not a basis of “substantially 

inadequate” proposed finding. Included in 

proposed SIP call because is not separable 

from remainder of 252:100-9-8.

Conclusion: Based on above evaluation for OAC 252:100-9 Excess Emission Reporting Requirements 

submitted to EPA on July 16, 2010, a proposal according to the action type presented in Table IV is 

recommended.
24

Appendix A

This Appendix illustrates the word by word comparison of EPA’s 1999 recommended criteria for 

affirmative defenses for excess emissions due to malfunctions to the criteria in section 252:100-

9-8(b) of Oklahoma’s 2010 Subchapter 9 provisions.

(1.) The excess emissions were caused by a sudden, unavoidable and not reasonably preventable

breakdown of technology, beyond air pollution control equipment or process equipment, or the control 

of failure of a process to operate in the ownernormal or operator;usual manner.

(2.) The excess emissions (a) did not stem from any activity or event that could have been planned for or 

reasonably foreseen and avoided, or planned for, and (b) could not have been avoided by better 

operation and maintenance practices;.

(3. To the maximum extent practicable the air pollution control equipment or processes were maintained 

and operated in a manner consistent with good practice for minimizing emissions;

4.) Repairs were made in an expeditious fashion when the operator knew or should have known that 

applicable emission limitations were being exceeded. Off-shift labor and overtime must have been 

utilized, to the extent practicable, to ensure that such repairs were made as expeditiously as 

practicable;possible.

5.(4) The amount and duration of the excess emissions (, including any bypass), were minimized to the 

maximum extent practicable during periods of such emissions;.

6. All possible(5) Reasonable steps were taken to minimize the impact of the excess emissions on 

ambient air quality;.

7. All emission(6) The reason(s) any monitoring systems were not kept in operation, if at all 

possible;applicable.

8.(7) The owner or operator’soperator's actions in response toduring the period of excess emissions were 

documented by properly signed, contemporaneous operating logs, or other relevant evidence;.

9.(8) The excess emissions were not part of a recurring pattern indicative of inadequate design,

operation, or maintenance; and.

10. The owner or operator properly and promptly notified the appropriate regulatory authority. (9) To 

the maximum extent practicable, the air pollution control equipment or process equipment was 

maintained and operated in a manner consistent with good practice for minimizing emissions; provided, 

however, that this provision shall not be construed to automatically require the shutdown of process 

equipment to minimize emissions.
25

Appendix B

This Appendix contains example recommended regulatory text for affirmative defense

provisions for excess emissions during malfunctions, as found in EPA’s February 22, 2013 

Proposed SSM SIP Calls (78 FR 12478-12479), that maybe used in SSM-related SIP rules. The 

recommended criteria for malfunction events are numerated as 1 through 10 below:

(1) The excess emissions were caused by a sudden, unavoidable breakdown of technology, 

beyond the control of the owner or operator;

(2) The excess emissions (a) did not stem from any activity or event that could have been 

foreseen and avoided, or planned for, and (b) could not have been avoided by better 

operation and maintenance practices;

(3) To the maximum extent practicable the air pollution control equipment or processes were 

maintained and operated in a matter consistent with good practice for minimizing emissions;

(4) Repairs were made in an expeditious fashion when the operator knew or should have 

known that applicable emission limitations were being exceeded. Off-shift labor and overtime 

must have been utilized, to the extent practicable, to ensure that such repairs were made as 

expeditiously as practicable;

(5) The amount and duration of the excess emissions (including any bypass) were minimized 

to the maximum extent practicable during periods of such emissions;

(6) All possible steps were taken to minimize the impact of the excess emissions on ambient 

air quality;

(7) All emission monitoring systems were kept in operation if at all possible;

(8) The owner or operator’s actions in response to the excess emissions were documented by 

properly signed, other relevant evidence;

(9) The excess emissions were not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance; and

(10) The owner or operator properly and promptly notified the appropriate regulatory 

authority.
26

Appendix C

This Appendix illustrates the word-by-word comparison of the affirmative defense criteria set forth in

section 252:100-9-8(b) of Oklahoma’s 2010 Subchapter 9 subchapter 9 provisions to the EPA 

recommended criteria discussed in EPA’s February 22, 2013 Proposed SSM SIP Calls (78 FR 12478-

12479).

(1) The excess emissions were caused by a sudden, unavoidable and not reasonably preventable

breakdown of technology, beyond air pollution control equipment or process equipment, or the 

controlfailure of a process to operate in the ownernormal or operator; usual manner.

(2) The excess emissions (a) did not stem from any activity or event that could have been planned for or 

reasonably foreseen and avoided, or planned for, and (b) could not have been avoided by better 

operation and maintenance practices;.

(3) To the maximum extent practicable the air pollution control equipment or processes were 

maintained and operated in a matter consistent with good practice for minimizing emissions;

(4) Repairs were made in an expeditious fashion when the operator knew or should have 

known that applicable emission limitations were being exceeded. Off-shift labor and overtime 

must have been utilized, to the extent practicable, to ensure that such repairs were made as 

expeditiously as practicable;possible.

(54) The amount and duration of the excess emissions (, including any bypass), were minimized to the 

maximum extent practicable during periods of such emissions;.

(6) All possible(5) Reasonable steps were taken to minimize the impact of the excess emissions on 

ambient air quality;.

(7) All emission(6) The reason(s) any monitoring systems were not kept in operation, if at all 

possible;applicable.

(87) The owner or operator’soperator's actions in response toduring the period of excess emissions 

were documented by properly signed,contemporaneous operating logs or other relevant evidence;.

(98) The excess emissions were not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance; and.

(10) The owner or operator properly and promptly notified the appropriate regulatory 

authority.

(9) To the maximum extent practicable, the air pollution control equipment or process equipment

was maintained and operated in a manner consistent with good practice for minimizing

emissions; provided, however, that this provision shall not be construed to automatically require

the shutdown of process equipment to minimize emissions.
27

Appendix D

This Appendix illustrates the tabulated affirmative defense criteria for excess emissions due to 

malfunctions found in section 252:100-9-8(b) of Oklahoma’s 2010 Subchapter 9 provisions, the 

recommended criteria in EPA’s 1999 Policy, and the recommendations found in EPA’s February 22, 

2013 Proposed SSM SIP Calls (78 FR 12478-12479).

Affirmative Defense Criteria for 

malfunctions - Oklahoma July 16 

2010 Submittal

Affirmative Defense Criteria for 

malfunctions - EPA September 

1999 Policy

Affirmative Defense Criteria for 

malfunctions - EPA February 

2013 SIP Calls*

(1) The excess emissions were 

caused by a sudden and not 

reasonably preventable breakdown 

of air pollution control equipment or 

process equipment, or the failure of 

a process to operate in the normal or 

usual manner.

(2) The excess emissions did not 

stem from any activity or event that 

could have been planned for or 

reasonably foreseen and avoided.

(3) Repairs were made as 

expeditiously as possible.

(4) The amount and duration of the 

excess emissions, including any 

bypass, were minimized to the 

extent practicable during periods of 

such emissions.

(5) Reasonable steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality.

(6) The reason(s) any monitoring 

systems were not kept in operation, 

if applicable.

(7) The owner or operator's actions 

during the period of excess 

emissions were documented by 

contemporaneous operating logs or 

other relevant evidence.

(8) The excess emissions were not

part of a recurring pattern indicative 

of inadequate design, operation or 

maintenance.

(9) To the maximum extent 

practicable, the air pollution control 

equipment or process equipment

was maintained and operated in a 

manner consistent with good 

practice for minimizing emissions; 

1. The excess emissions were 

caused by a sudden, unavoidable 

breakdown of technology, beyond 

the control of the owner or operator;

2. The excess emissions (a) did not 

stem from any activity or event that 

could have been foreseen and 

avoided, or planned for, and (b) 

could not have been avoided by 

better operation and maintenance 

practices;

3. To the maximum extent 

practicable the air pollution control 

equipment or processes were 

maintained and operated in manner 

consistent with good practice for 

minimizing emissions;

4. Repairs were made in an 

expeditious fashion when the 

operator knew or should have 

known that applicable emission 

limitations were being exceeded. 

Off-shift labor and overtime must 

have been utilized, to the extent 

practicable, to ensure that such 

repairs were made as expeditiously 

as practicable;

5. The amount and duration of the 

excess emissions (including any 

bypass) were minimized to the 

maximum extent practicable during 

periods of such1emissions; 

6. All possible steps were taken to 

minimize the impact. Of the excess 

emissions on ambient air quality;

7. All emission monitoring systems 

were kept in operation if at all 

possible;

8. The owner or operator's actions in 

(1) The excess emissions were

caused by a sudden, 

unavoidable breakdown of 

technology, beyond the control 

of the owner or operator; 

(2) The excess emissions (a) did 

not stem from any activity or 

event that could have been 

foreseen and avoided, or 

planned for, and (b) could not 

have been avoided by better 

operation and maintenance

practices;

(3) To the maximum extent 

practicable the air pollution 

control equipment or processes 

were maintained and operated 

in a matter consistent with 

good practice for minimizing 

emissions;

(4) Repairs were made in an 

expeditious fashion when the 

operator knew or should have 

known that applicable emission 

limitations were being 

exceeded. Off-shift labor and 

overtime must have been 

utilized, to the extent 

practicable, to ensure that such 

repairs were made as 

expeditiously as practicable;

(5) The amount and duration of 

the excess emissions (including 

any bypass) were minimized to 

the maximum extent 

practicable during periods of 

such emissions;

(6) All possible steps were 

taken to minimize the impact of 
28

Affirmative Defense Criteria for 

malfunctions - Oklahoma July 16 

2010 Submittal

Affirmative Defense Criteria for 

malfunctions - EPA September 

1999 Policy

Affirmative Defense Criteria for 

malfunctions - EPA February 

2013 SIP Calls*

provided, however, that this 

provision shall not be construed to 

automatically require the shutdown

of process equipment to minimize 

emissions.

response to the excess emissions 

were documented by properly 

signed, contemporaneous operating 

logs, or other relevant evidence;

9. The excess emissions were not 

part of a recurring pattern indicative 

of inadequate design, operation, or 

maintenance; and

10. The owner or operator properly 

and promptly notified the 

appropriate regulatory authority.

the excess emissions on 

ambient air quality;

(7) All emission monitoring 

systems were kept in operation 

if at all possible;

(8) The owner or operator’s 

actions in response to the 

excess emissions were 

documented by properly 

signed, other relevant evidence;

(9) The excess emissions were 

not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance; and

(10) The owner or operator 

properly and promptly notified 

the appropriate regulatory 

authority.

* A refinement to these recommendations from the 1999 Policy that should be highlighted is that an affirmative 

defense for malfunctions may be permissible in the SIP in the case of geographic areas and pollutants “where a 

single source or small group of sources has the potential to cause exceedance of the NAAQS or PSD 

increments.” The EPA believes that such affirmative defenses may be permissible, if there is no “potential” for 

exceedances. Such provisions may also be permissible for malfunctions, if the affirmative defense alternatively 

requires the source to make an affirmative after-the-fact showing that the excess emissions that resulted from the 

violations did not in fact cause an exceedance of the NAAQS or PSD increments.