V-./ 'VI ........ V, ..... ...,. oJ"" '"'' V , ...... VV ..... V .......**l~lthlec.11** Hartnett white, Chairman Larry R. Soward, Commissioner H. S. Buddy CiJrciCi, Commissioner Glc:nn Shankle, ExecutiaeDirector 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protectina Texas byReducingandPreuenfin_q Pnliiuion

April 17, 2007

Mr. John Blevins,Director Compliance Assurance and EnforcementDivision 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 staffregarding the approval ofthe TCEQ Emission Events rule and incorporation ofthe Emission Events rule into the State ofTexas State Implementation Plan (SJP).
Issue 1: Texas' Creation of a Defenge forUnplanned MaintenanceEmissions 

### In the recently adopted emissions events rule' the concept ofunplanned maintenance, startup and shutdown (MSS) activities was added. The EPA staffasked 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 ofexcess 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 asfunctionally

Revisions to 30 Tex. Admin. Code Chapter 101, SUbchapter F, effective January 5, 2006

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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 §10

### 1.1 (1

## o9l 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 ofunplanned maintenance, startup, or shutdown activity is a startup or shutdown activity that is not part ofnormal or routine facility operations, is unpredictable as to timing, and is not the type ofevent normally authorized by permit. The second type ofunplanned 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 apredictable 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 ofpredictability could include whether procedures and/orpersonnel assignments existwell in advance ofthe event.' Issue 2: DefenseElements for "PlarmedActivities" Until such time that planned MSS activities are phased out ofthe 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 toplanned 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 ofnormal or routine facility operations, is unpredictable as to timing, and is not the type ofevent 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 anupset 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 arephased out. The TCEQ plans Lo address this issue in the next rule-making,
Issue 3: Director's Discretion The EPA staffrequested 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 oftechnological 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 ofFederal 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 requestedrelief 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 forcontrolling 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 staffin this endeavor. Ifyou 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 staffat 512/239-4481. Sincerely,**'---ro""'~** ei , 

### Jr., Deputy Dire tor Office ofCompliance and En orcement Texas Commission Environmental Quality