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l~lthlec.11 Hartnett white, Chairman

Larry R. Soward, Commissioner

H. S. Buddy CiJrciCi, Commissioner

Glc:nn Shankle, Executiae Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protectina Texas by Reducing andPreuenfin_q Pnliiuion

April 17, 2007

Mr. John Blevins, Director

Compliance Assurance and Enforcement Division

USEPA, Rcgion-6 Dallas

1445 Ross Avenue, Suite 1200

Mail Code: 6EN

Dallas, TX 75202-2733

Re: EPA Approval ofthe TCEQ Emission Events Rule

Dear Mr. Blevins:

On February 8, 2007, the Texas Commission on Environmental Quality (TCEQ) and

Environmental Protection Agency (EPA) met to discuss issues related to the TCEQ

Emission Events nile. Please find the TCEQ's responses to those issues raised by EPA

staff regarding the approval of the TCEQ Emission Events rule and incorporation of the

Emission Events rule into the State ofTexas State Implementation Plan (SJP).

Issue 1: Texas' Creation of a Defenge for Unplanned Maintenance Emissions

In the recently adopted emissions events rule' the concept of unplanned maintenance,

startup and shutdown (MSS) activities was added. The EPA staff asked TCEQ to verify

that unplanned MSS activities are functionally equivalent to EPA's definition of

malfunction.

The TCEQ understands that EPA's policy 15 to allow an- affirmative defense for

malfunctions that are sudden, unavoidable, and unpredictable in nature, and could not

have been avoided by better operation and maintenance practices; these are emergency

Iype upset events. The TCEQ's limitation ofthe affirmative defense for unplanned MSS

is limited to these same-types of excess emissions and TCEQ has, therefore, not created a

new category of emissions eligible for an affirmative defense. Unplanned MSS activities

are not the type of emissions that could be authorized. Therefore, the TCEQ concurs

with EPA that unplanned MSS activities can be generally considered as functionally

Revisions to 30 Tex. Admin. Code Chapter 101, SUbchapter F, effective January 5,

2006
._-. --~-- -_ ..._--

Mr. John Blevins

April 17, 2007

Page 2

equivalent to EPA's "malfunction" with regard to applicability of an affirmative defense.

In support, the TCEQ cites language in the preamble ofthe most recent rule making:

The commission adopted the new definition of unplanned maintenance, startup, or

shutdown activity in §101.1(1o9l Activities with unauthorized emissions that are

expected to exceed a reportable quantity (RQ) or with excess opacity would b~ one of

two types. The first type of unplanned maintenance, startup, or shutdown activity is a

startup or shutdown activity that is not part of normal or routine facility operations, is

unpredictable as to timing, and is not the type of event normally authorized by permit.

The second type of unplanned activity is a maintenance activity that arises from sudden

and unforeseeable events beyond the control of the operator that requires inunediate

corrective action to minimize or avoid an upset or malfunction. This is consistent with

EPA guidance, which provides that scheduled maintenance is a predictable event.that can

be scheduled at the discretion ofthe operator, and can be coordinated with maintenance

and, therefore, can be permitted. Examples of activities that would be considered to be

planned would include plant turnarounds, scheduled plant outages, and preventative

maintenance such as routine replacement of facility parts that are regular and

quantifiable. Planned activities are the type that can be authorized by a permit, standard

permit, or permit by rule. Evidence of predictability could include whether procedures

and/or personnel assignments exist well in advance ofthe event.'

Issue 2: Defense Elements for "Plarmed Activities"

Until such time that planned MSS activities are phased out of the affirmative defense,

EPA staff noted that TCEQ rule §lOl.222(h) refers owners and operators to

§101.222(c)(l)-(9). EPA expressed concern that §lOl.222(c) appears to apply to

unplanned MSS. EPA expressed further concern that only certain criteria in this section

appear to apply to planned MSS activities.

The TCEQ acknowledges EPA's concern. In the interim, until the rule is modified,

TCEQ staffhave been instructed to apply appropriate demonstration criteria found in

z The definition is as follows: Unplanned maintenance, startup, or shutdown activity

- For activities with unauthorized emissions that are expected to exceed a reportable

quantity or with excess opacity, an unplanned maintenance, startup, or shutdown activity

IS:

(A) a startup or shutdown that was not part of normal or routine facility operations, is

unpredictable as to timing, and is not the type of event normally authorized by permit; or

(B) a maintenance activity that arises from sudden and unforeseeable events beyond the

control ofthe operator that requires the immediate corrective action to minimize or avoid

an upset or malfunction.

'30 Tex. Reg. 8884, 8886 (December 30,.2005).
Mr. John Blevins

April 17, 2007

Page 3

§J0J.222(c) to planned MSS activities until such time as they are phased out. The TCEQ

plans Lo address this issue in the next rule-making,

Issue 3: Director's Discretion

The EPA staff requested clarification regarding the following rule, specifically, whether

'this rule would allow TCEQ to exempt owners and operators from complying with any

federal requirements. "

§101.221(d) Sources emitting air contaminants that cannot be controlled or reduced due

to a lack of technological knowledge may be exempt from the applicable rules when so

determined and ordered by the commission. The commission may specify limitations and

conditions as to the operation of such exempt sources. The commission will not exempt

sources from complying with any federal requirements, including New Source

Performance Standards (40 Code of Federal Regulations Part 60) and National Emission

Standards for Hazardous Air Pollutants (40 Code of Federal Regulations Parts. 61 and

63).

.

The TCEQ agrees that this rule cannot be used by the agency to grant any requested relief

from compliance with lilly State Implementation Plan (SIP) requirements; such as, for

example, SIP approved rules in 30 Tex. Admin. Code Chapters 115 .and 117, or in

approved area-specific plans. Any such relief would be limited to state-only

requirements for controlling air contaminants. Further, as stated in the last sentence, the

commission will not exempt sources from compliance with my federal requirements.

We look forward to working with you and your staff in this endeavor. If you have any

questions, or if we can be of further assistance please feel free to contact Ms. Jennifer

Sidnell ofmy staff at 5121239-6663 or Mr. Ramiro Garcia ofmy staff at 512/239-4481.

Sincerely,

'---ro""'~ ei , Jr., Deputy Dire tor

Office of Compliance and En orcement

Texas Commission Environmental Quality