### Technical Support Document

Oklahoma Administrative Code Title 252, Chapter 100 Air Pollution Control
, Subchapter 9 E xcess Emission Reporting Requirements ( OAC 252:100

- 9 )

[EPA

- R06

- OAR

- 2010

- 0652]2 I ntroduction
Thi s Technical Support Document (TSD ) is comprised of 3 parts (parts “ 1 ” through “ 3 ” ) . This
TSD c oncerns 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 Requireme nts ( 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 Subchapt er 9 , or 1994 Subchapter 9 provisions). In part 2 , we present the 2001 version of the Subchapter 9 provisions (2001 Subchapter 9 provisions)

. The m aterial in p art 2 is not subject of this particular rulemaking action, and is presented here for historical and background information purposes only

. In p art 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

. Th ere is no confidential busin ess 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. Th is 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, t he 1994 Subchapter 9 pr ovisions
bec a me 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 tabul ated in Table I below.
Note that one section of the 1994 S ubchapter 9 provisions is includ ed in EPA’s propos ed 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 revi se 252:100

- 9

- 3 General reporting requirements of the 1994 Subchapter 9 provisions in the EPA

- approved Oklahoma SIP to address the3 inadequacies identified in the final rulemaking action for the SSM SIP

- call

. It is important t o 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 equ ipment 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 eq uipment 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 shal l 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 th e 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) measur es, such as the use of off

- shift and overtime labor, have been utilized to effect repairs and minimize emissions; and,4 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) Repo rting . When concurrent shutdowns of air pollution and process equipment are not practicable, the operator shall file a report in writing with t he 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 th e 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 polluti on control equipment shutdown to coincide with process maintenance shutdown; and, (5) any additional information pertinent to the circumstances of the shutdown or additional information whic h 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 re lease 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 ma lfunction 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 magn itude 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 th e 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 en gineering 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 owne r 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,5 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 rea sons 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 a ir 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 start up or shutdown , the owner or operator shall f ile 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 t hat propos al
, 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 3 02(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 ele cts to exercise its enforcement discretion

. SIP provisions that create exemptions (s uch that the excess emissions during startup
, shutdown , malfunction s, or ma intenance 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 t wo 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 exemption s 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) and6 contrary to the fundamental structur e 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.
S ee 78 FR 12523

- 1252 4. As discussed below in part 3 of this TSD, however, the 1994 Subchapter 9 provisions have been revised
, re voked 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 1 994 Subchapter 9 provisions of the current EPA

approved Oklahoma SIP.7 Part 2
The ODEQ revised the 1994 Subchapter 9 provisions in 2001

. The 2001 Subchapter 9 provisions are provided in Table II below

. Ok lahoma 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 ” rec odification project published on December 29, 2008 (73 FR 79400), available at www.r egulations.gov
, Docket ID: EPA

- R06

- OAR

2006

- 0389

. ODEQ later amended and rev oked the 2001 Subchapter 9 provisions, and then submitted the 2010 Subchapter 9 pr ovisions, 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 provi sions 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 EMIS SION 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 w ords 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 regul ated 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 pro gram 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 pollutan t 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 a nd 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 equ ipment, process or process equipment. "Startup" means the setting into operation of any air pollution control equipment, process or process8 Table II

- SUBCHAPTER 9. EXCESS EMIS SION 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 l egal 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 facili ty 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 d ays 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 a pplicable 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
s hutdown , 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 informati on 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 tech nological 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 techno logical 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 forme d 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 or9 Table II

- SUBCHAPTER 9. EXCESS EMIS SION 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 ca used 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 reasona bly 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 o perated 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 m ade 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 rep airs 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 min imize the impact of the excess emissions on ambient air quality. (7) Emission monitoring s ystems 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 e vidence. (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 ina dequate 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 consi stent 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 em i ssions on ambient air quality. (6) Emissions monitoring systems cap able of producing valid data were kept in operation if at all10 Table II

- SUBCHAPTER 9. EXCESS EMIS SION 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) Demonstrat ion 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 repor ts. (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 satisfi ed. (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 cale ndar 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 shutdo wns 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.11 Part 3

As stated above
, EPA did not act upon the 2001 Subchapter 9 provisions

. ODEQ later amended and

re voked the 2001 Subchapter 9 provisions in 200 9 , and submitted th e 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 l etter from State ’s Secretary of Environment to EPA Region 6, Regional Administrator, dated Ju ly 16, 2010. As stated in part 1 above, the 2010 Subchapter 9 provisions el iminate the exemption language contained in the 1994 Subchapter 9 provisions. EP A Region 6 would like to express its appreciation to ODEQ ’s Air Quality Division Director for forming the excess emission workgroup and demonstra ting leadership by taking initiative, at the State level, to
revise the Subchapter 9 provisions concerning excess emissions events both in 2001 and 2 009

. 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 limitation s be on a continuous and
not intermittent basis. EPA views all excess emissions as violation s 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 e nforcement 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 malfunction s that EPA has recommended for use in SIPs. The 2010 Subchapter 9 provisions are tabulated in Table III
below. A n evaluation follows each section

.

252:100

- 9

- 1 Purpose Table III

- SUBCHAPTER 9. EXCESS EMISSION AND MALFUNCTION REPORTING REQUIREMENTS

– 2010 versio n , 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 pro visions for facility owners and operators for excess emissions.12 The purpose provision of the rule establishes the reporting requirements and references

“ affirmative defense provisions ” that a source will need to follow for excess emissi ons events. Excess
emission s event s may result from startup, shutdown, or ma lfunction activit ies (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), Secti on 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 prov ides
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 t he term “exce ss 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 r ule 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 emiss ions 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 per iod of time during which excess emissions occurred, either13 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 emplo yees 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 th is 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 n ame, (B) the facility name, (C) the event date, (D) the event start time,14 (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 t hat 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 o wner 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. Th is 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 emissio n 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 extensi on. 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 t he 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 c ause 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 inform ation that may be requested by the Division.

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

ope rator will need to furnish the S tate after the immediate report. This section will assist with the implementation of the rule to curb or co ntrol 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 ( 252:1 00

- 9

- 7(c)) will apply to those events that may last longer than the tim eline 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 s eparable 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. Th e 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.

Th e a lternative 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 p ropose an alternative method of reporting , and

may then use the applicable federal reporting requ irements to fulfill the re porting 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 Par ts 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) Certific ate 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 a nd 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 Th e c ertificate of truth, accuracy and completeness req uired 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 r ule. This section is separable form the affirmative
defen se provisions in 252:100

- 9

- 8. T his 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 an d 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 fo r civil or administrative penalty actions for excess emissions during periods of startup , shutdown and malfunction

.

Th is provision states what type of actions one could assert a claim for affirmative d efense (civil or administrative penalty actions) ; it also states that all excess emissions are considered violation s 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 i n the EPA’s February 22, 2013 Proposed SSM SIP Calls
, a rule which creates a narrowly

- tailored affirmative defense to excess emissions during per iods of sudden, unavoidable, and unpredictable events (i.e., malfunction s) 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 s tartup 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 senten ces in section
252:100

- 9

- 8( a ) are not se parable 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 exa mple, 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

em ission 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 Calcag ni 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 the18 sec tion 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, shu tdown, 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,

se ctions 252:100

- 9

- 8(b) through 252:100

- 9

- 8(e)), and those latter provisions cannot stand by
themselves. Therefore, we are proposing limited ly 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, ODE Q will need to address the deficiency of 252:100

- 9

- 8(a) with respect to startup and shutdown (a for e seen or planned activity) in a future proposed SIP revision of Subchapter 9 , as part its response to the SIP c all proposed in today’s proposed rulemaking

. T his section, 252:100

- 9

- 8(b), in and by itself, is a basis of “substantially inadequa cy ” finding associated with today’s proposed rulemaking

.

252:100

- 9

- 8( b ) Affirmative defenses for exc ess emissions during malfunctions (b) Affirmative defenses for excess emissions during malfunctions

. To establish th e 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 appl icable. (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, o peration

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.

I t is important to note that a valid affirm ative 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 a ffirmative defense simply provides a defense, under narrowly defined circumstances, if and when penalti es 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 evalua ted

. 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 th e criteria recommended in EPA ’s 1999 Policy or EPA’s February 22, 2013 Proposed SSM SIP C all s ; however, they should follow the intent of th e criteria recommended in the EPA’s 199 9 Policy for
malfunctions and EPA’s February 22, 2013 proposed SSM SIP C all s , 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 ef forts to comply.
While t he criteria in 252:100

- 9

- 8( b ) are not identical (word

- by

- word) to th e criteria recommended by EPA in its 1999 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) . Whe n the criteria set forth in 252:100

- 9

- 8(b) are viewed together with the provisions in section s 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 com pleteness 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 Subch a pter 9 provisi ons to the criteria
recommended in EPA’s 1999 Policy for malfunctions, see Appendix A

. Appendix B is a list of the20 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 Subch ap ter 9 provisions to th e recommended criteria expressed in EPA’s February 22, 2013 Proposed SSM SIP Calls (78 FR 12478

- 12479) , see Appendix C.
F inally, Appendix D contains a tabulated listing of affirmative defense criteria related to malfunction s reflected by (1) Oklahoma ’s 2010 S ubchapter 9 provisions at 252:100

- 9

- 8(b) ; (2) the recommendations
in EPA’s 1 999 Policy ; and (3) the r ecommend ations 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 t his section,
252:100

- 9

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

- 9

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

- 9

- 8(b), in and by itself, is not a basis of “substantially inadequa cy ” finding associated with today’s propose d 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 mini mize 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 ope rating 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 redu ndant 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 e xpressed in EPA’s February 22,
2013 Proposed SSM SIP Calls (78 FR 124 80 ) , Section VII(C) titled “ Affirmative Defense Provisions During Periods of Startup and Shutdown
, ” a SIP provision which creates an affirmative defense for21 ex cess 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 ow ner 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. T his 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, t his section should be included in the limited approval and limited dis approv al and
identified as one of the three se ctions 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) Affirm ative 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 promulgate d 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 consist ent 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 f or excess emissions during malfunctions, this section could be

approv ed as being consistent with CAA requirements for SIPs , and for strengthening of the SIP . As such, this sectio n , 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, s ince this provision is not separable from the remainder of section 252:100

- 9

- 8 t his sect ion, 252:100

- 9

- 8(d), should be included in22 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 citi zens' authority under the Act

.

The section sets forth what i nformation ODEQ ’s Air Director will consider in making
affirmative defense determination s

. 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 alter ing 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 . T he
merits of an affirmative defense are indepen dently and objectively evaluated in a judicial or administrative proceeding. T his 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

p rovisions were revised to be applicable only to an appropriately drawn and narrowly tailored
affirmative defense for excess emissions due to malfunctions, this s ection would be consiste n t with
CA A 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 approv al 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, t he following Table IV identif ies the sections of the July 16, 2010 SIP submittal a nd the proposed a ction 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 Ac tion Type 252:100

- 9

- 1 Purpose Propose limited approval and limited disapproval ; a basis for “ substantially23 Section Title Ac tion Type inadequate” proposed finding and propose d SIP c all because is not separable from 252:10 0

- 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 propose d SIP c all 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 . I ncluded 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 propose d SIP c all 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 . I ncluded in proposed SIP call because is not separable from remainder of 252:100

- 9

- 8

. 252:100

- 9

- 8(e) Affirmative defense determin ation Propose limited approval and limited disapproval ; not a basis of “substantially inadequate” proposed finding . I ncluded in proposed SIP call because is not separable from remai nder of 252:100

- 9

- 8

.
Conclusion: Based on above evaluation for OAC 252:100

- 9 Excess Emission Reporting Requirements
submitted to EPA on Ju ly 16, 2010 , a proposal according to the action type presented in Tab le I V is
recommended



### .24 

## Appendix A
T his Appendix illustrates the word by word comparison of EPA ’s 1999 recommended criteria for affirmative defenses for excess emissions due to malfunctions to th e criteria in s ection 252:100

- 9

- 8 (b) of Oklahoma ’s 2010 S ubchapter 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 eq uipment, or the control of failure of a process to operate in the owner normal 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 f or, 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 goo d 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 o r operator’s operator's actions in response to during 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 

## Ap pendix B
T his Appendix contains example recommended regulatory text for affirmative defense provisions for excess emissions during malfunction s , as found in EPA’s February 22, 2013 Proposed SSM SIP Calls (78 FR 1247 8

- 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 caus ed 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 a voided 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 wi th 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 rep airs were made as expeditiously as practicable; (5) The amount and duration of the excess emissions (including any bypass) w ere 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 

## Ap pendix 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 S ubchapter 9 subchapter 9 provisions to th e EPA recommended criter ia 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 equ ipment, or the
control failure of a process to operate in the owner normal 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, an d (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 wi th good pract ice 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 practica ble, 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’s operator's actions in response to during 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 de sign, 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 proc ess 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 minim ize emissions.27 

## Appendix D
This Appendix illustrates the tabulated affirmative defense criteria for excess emissions due to
malfunction s found in section 252:100

- 9

- 8(b) of Oklahoma ’s 2010 S ubchapter 9 provisions
, the
recommended criteria in EPA’s 1999 Policy, and the recommend ations 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 S eptember 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 fai lure 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 am ount 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 reaso n(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 w ith 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 expeditiou s 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 prac ticable; 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 ambie nt 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 b een 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 emis sions; (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 suc h repairs were made as expeditiously as practicable; (5) The amount and duration of the excess emissions (including any bypass) w ere minimized to the maximum extent practicable during periods of such emissions; (6) All possible steps were taken to minimize the impact of28 Affirmative Defense Criteria for malfunctions

- Oklahoma July 16 2010 Submittal Affirmative Defense Criteria for malfunctions

- EPA S eptember 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 evid ence; 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 rel evant 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.