DAR File No. 27427

Environmental Quality, Air Quality

R307-107

General Requirements: Unavoidable Breakdown

NOTICE OF PROPOSED RULE

DAR File No.: 27427
Filed: 09/15/2004, 12:41
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose is to update a 25-year-old rule, and to make it consistent with current EPA policy. The EPA policy was issued in 1999. Now that the policy has survived litigation nationally, EPA will not approve future Utah state implementation plans that do not include the policy.

Summary of the rule or change:

A substantive provision in the current rule that is eliminated in the new rule is the allowance, for excess emissions events of 2 hours or more, to report the event within 3 hours if possible, but no later than 18 hours after the beginning of the event. The new rule requires reporting within 3 hours. Additional provisions in the new rule include a list of conditions to be met in order that a source can claim an affirmative defense for an excess emissions event, and additional information that must be reported after an excess emissions event occurs. The following changes are made from the current rule. The title of the rule is changed from "General Requirements: Unavoidable Breakdown," to "General Requirements: Excess Emissions." The current rule applies to emissions of all pollutants, while the new rule applies to all sources of emissions unless specific emissions limits are included in a specific rule, approval order, or permit. Under the current rule, excess emissions from a malfunction are not considered to be violations; under the new rule, all excess emissions are considered to be violations unless the source presents an affirmative defense demonstrating that all the conditions specified in the rule have been met. The current rule includes required actions that a source must conduct to minimize the amount of emissions and duration of the event; the new rule includes those actions in the list of affirmative defense items.

State statutory or constitutional authorization for this rule:

Subsections 19-2-104(1)(a), and 19-2-104(1)(c)

Anticipated cost or savings to:

the state budget:

It is difficult to estimate whether costs will change. Under the new rule, the requirement to demonstrate that a breakdown or malfunction is not a violation lies with the source, and that may mean that costs may decline for the state to determine whether or not a violation has occurred. In addition, many sources are covered under 40 CFR part 70, the operating permits program, and their costs are covered by fees rather than by the state General Fund.

local governments:

It is difficult to estimate whether costs will change for local governments that operate sources of air pollution. Under the new rule, the requirements to demonstrate that a breakdown or malfunction is not a violation lies with the source, and that may mean that costs for local government sources increase. On the other hand, there are costs if the new rule is not implemented, because new and revised state implementation and maintenance plans will not be approved by EPA, and there are costs for sources and other citizens if plans cannot be federally approved. Local governments in Weber, Davis, Salt Lake and Utah Counties are required to demonstrate that their long-range transportation plans are in conformity with state implementation and maintenance plans, and are unlikely to be able to make that demonstration unless the plans are regularly updated. Without federal approval of the conformity demonstration, the local governments would be unable to plan for or construct regionally-significant highway or transit projects, and that could have a detrimental effect in costs to their citizens.

other persons:

It is difficult to estimate whether costs will change for affected persons. There are unknown costs to meet the requirements to demonstrate an affirmative defense, and there will be additional costs to assemble the documentation required to demonstrate an affirmative defense. If the affirmative defense is not complete, then the source will be in violation and that may result in financial or other penalties. Also there are costs if the new rule is not implemented, because new and revised state implementation and maintenance plans will not be approved by EPA and there are costs for sources and for citizens if plans cannot be federally-approved. Local governments in Weber, Davis, Salt Lake and Utah Counties are required to demonstrate that their long-range transportation plans are in conformity with state implementation and maintenance plans, and are unlikely to be able to make that demonstration unless the plans are regularly updated. Without the conformity demonstration, the local governments would be unable to plan for or construct regionally-significant highway or transit projects, and that could have a detrimental effect in costs to businesses and individuals.

Compliance costs for affected persons:

It is difficult to estimate whether costs will change for affected persons. There are unknown costs to meet the requirements to demonstrate an affirmative defense, and there will be additional costs to assemble the documentation required to demonstrate an affirmative defense. If the affirmative defense is not complete, then the source will be in violation and that may result in financial or other penalties. Also there are costs if the new rule is not implemented, because new and revised state implementation and maintenance plans will not be approved by EPA and there are costs for sources and for citizens if plans cannot be federally-approved. Local governments in Weber, Davis, Salt Lake and Utah Counties are required to demonstrate that their long-range transportation plans are in conformity with state implementation and maintenance plans, and are unlikely to be able to make that demonstration unless the plans are regularly updated. Without the conformity demonstration, the local governments would be unable to plan for or construct regionally-significant highway or transit projects, and that could have a detrimental effect in costs to businesses and individuals.

Comments by the department head on the fiscal impact the rule may have on businesses:

There may be increased costs associated with the implementation of this rule, but there are also costs for business if the rule is not implemented.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Jan Miller at the above address, by phone at 801-536-4042, by FAX at 801-536-4099, or by Internet E-mail at janmiller@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/01/2004

Interested persons may attend a public hearing regarding this rule:

10/21/2004 at 1:30 PM, DEQ Building, 168 N 1950 W, Room 201, Salt Lake City, UT

This rule may become effective on:

12/02/2004

Authorized by:

M. Cheryl Heying, Planning Branch Manager

RULE TEXT

R307. Environmental Quality, Air Quality.

[R307-107. General Requirements: Unavoidable Breakdown.

R307-107-1. Application.

R307-107 applies to all regulated pollutants including those for which there are National Ambient Air Quality Standards. Except as otherwise provided in R307-107, emissions resulting from an unavoidable breakdown will not be deemed a violation of these regulations. If excess emissions are predictable, they must be authorized under the variance procedure in R307-102-4. Breakdowns that are caused entirely or in part by poor maintenance, careless operation, or any other preventable upset condition or preventable equipment breakdown shall not be considered unavoidable breakdown.

R307-107-2. Reporting.

A breakdown for any period longer than 2 hours must be reported to the executive secretary within 3 hours of the beginning of the breakdown if reasonable, but in no case longer than 18 hours after the beginning of the breakdown. During times other than normal office hours, breakdowns for any period longer than 2 hours shall be initially reported to the Environmental Health Emergency Response Coordinator, Telephone (801) 536-4123. Within 7 calendar days of the beginning of any breakdown of longer than 2 hours, a written report shall be submitted to the executive secretary which shall include the cause and nature of the event, estimated quantity of pollutant (total and excess), time of emissions and steps taken to control the emissions and to prevent recurrence. The submittal of such information shall be used by the executive secretary in determining whether a violation has occurred and/or the need of further enforcement action.

R307-107-3. Penalties.

Failure to comply with the reporting procedures of R307-107-2 will constitute a violation of these regulations.

R307-107-4. Procedures.

The owner or operator of an installation suffering an unavoidable breakdown shall assure that emission limitations and visible emission limitations are exceeded for only as short a period of time as reasonable. The owner or operator shall take all reasonable measures which may include but are not limited to the immediate curtailment of production, operations, or activities at all installations of the source if necessary to limit the total aggregate emissions from the source to no greater than the aggregate allowable emissions averaged over the periods provided in the source's approval orders or R307. In the event that production, operations or activities cannot be curtailed so as to so limit the total aggregate emissions without jeopardizing equipment or safety or measures taken would result in even greater excess emissions, the owner or operator of the source shall use the most rapid, reasonable procedure to reduce emissions. The owner or operator of any installation subject to a SIP emission limitation pursuant to these rules shall be deemed to have complied with the provisions of R307-107 if the emission limitation has not been exceeded.

R307-107-5. Violation.

Failure to comply with curtailment actions required by R307-107-4 will constitute a violation of R307-107.

R307-107-6. Emissions Standards.

Other provisions of R307 may require more stringent controls than listed herein, in which case those requirements must be met.

KEY: air pollution, breakdown*, excess emissions*

September 15, 1998

Notice of Continuation June 12, 2003

19-2-104]

R307-107. General Requirements: Excess Emissions and Reporting.

R307-107-1. Purpose and Definitions.

(1) The purpose of R307-107 is to establish violations and affirmative defenses for excess emissions caused by malfunctions, scheduled maintenance, startup, or shutdown. Recordkeeping and reporting requirements also are established.

(2) Definitions. The following additional definitions apply to R307-107.

(a) "Affirmative Defense" means, in the context of an excess emissions incident, a response or defense put forward by a source, regarding which the source has the burden of proof, for the purpose of establishing that the incident does not constitute a violation.

(b) "Excess Emissions" means a level, rate or amount of air emissions, including opacity, that exceeds any applicable emission limitation or opacity limit established under statute, rule, approval order, or permit.

(c) "Malfunction" means a sudden failure of a process, process equipment, or air pollution control equipment to operate in a normal or usual manner.

R307-107-2. Violations and Affirmative Defenses for Excess Emissions Due to Malfunctions, Scheduled Maintenance, Startup, and Shutdown.

(1) Applicability. R307-107-2 is applicable to all sources except where emission standards, limits, or performance standards for malfunctions, scheduled maintenance, startup, or shutdown are identified in a specific rule, approval order, or permit, to include new source performance standards (NSPS), and national emissions standards for hazardous air pollutants (NESHAPS), or other federal performance standards.

(2) Violations and Affirmative Defense for Malfunctions. Excess emissions due to malfunction shall constitute a violation unless the incident qualifies for an affirmative defense under this subsection, R307-107-2(2). The owner or operator of a source with emissions in excess of an applicable emission limitation due to malfunction shall have an affirmative defense to a civil, administrative, or other proceeding, other than an action seeking injunctive relief, and is excused from penalties if the owner or operator of the source has demonstrated all of the following.

(a) The excess emissions were caused by a malfunction which was beyond the control of the owner or operator.

(b) The excess emissions did not stem from any activity or event that could have been foreseen, avoided, or planned for, and could not have been avoided by good design, operation, and maintenance consistent with good industry practices.

(c) The air pollution control equipment or processes were maintained and operated in a manner consistent with good practice for minimizing emissions such as manufacturers' recommendations and general industry adopted practices.

(d) 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, to the extent practicable, were utilized to ensure that such repairs were made as expeditiously as practicable.

(e) The amount and duration of the excess emissions (including any bypass of control equipment) were minimized to the extent practicable during periods of such emissions.

(f) All practicable steps were taken to minimize the impact of the excess emissions on ambient air quality.

(g) All emission-monitoring systems were kept in operation if possible.

(h) The owner or operator's actions in response to the excess emissions were documented by contemporaneous operating logs or other relevant evidence.

(i) The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance.

(j) The owner or operator provided notice in accordance with R307-107-3, if required.

(k) The excess emissions did not cause or contribute to an exceedance of the National Ambient Air Quality Standards or the Prevention of Significant Deterioration increments.

(3) Violations and Affirmative Defense for Scheduled Maintenance, Startup or Shutdown. Excess emissions due to scheduled maintenance, startup, or shutdown shall constitute a violation unless the incident qualifies for an affirmative defense under this subsection, R307-107-2(3). If excess emissions occur due to malfunctions during scheduled maintenance, startup, or shutdown, those instances shall be treated as malfunctions subject to subsection (2) above. Otherwise, the owner or operator of a source with emissions in excess of an applicable emission limitation due to scheduled maintenance, startup, or shutdown has an affirmative defense to a civil, administrative, or other proceeding, other than an action seeking injunctive relief, and is excused from penalties if the owner or operator of the source has demonstrated all of the following.

(a) Excess emissions that occurred during scheduled maintenance, startup or shutdown were short and infrequent and could not have been prevented through careful planning and design consistent with good industry practices.

(b) The excess emissions were not part of a recurring pattern indicating inadequate design, operation, or maintenance.

(c) If the excess emissions were caused by an intentional bypass of control equipment, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage.

(d) At all times, the facility was operated in a manner consistent with good practice for minimizing emissions such as manufacturers' recommendations and general industry adopted practices.

(e) The frequency and duration of operation in scheduled maintenance, startup, or shutdown mode were minimized to the extent practicable.

(f) All practicable steps were taken to minimize the impact of the excess emissions on ambient air quality.

(g) All emission monitoring systems were kept in operation if possible.

(h) The owner or operator's actions during the period of excess emissions were documented by contemporaneous operating logs or other relevant evidence.

(i) The owner or operator provided notice in accordance with R307-107-3, if required.

(j) The excess emissions did not cause or contribute to an exceedance of the National Ambient Air Quality Standards or the Prevention of Significant Deterioration increments.

(4) Excess Emissions Determinations. The executive secretary shall determine whether an affirmative defense has been established for excess emissions incidents based on the criteria and information identified in subections (2) and (3) above. An affirmative defense may, but need not, be established pursuant to a judicial or administrative proceeding.

(5) In cases where an excess emissions incident does not qualify for an affirmative defense, the executive secretary or board may evaluate penalties through the exercise of enforcement discretion based on an assessment of all relevant information and the penalty policy of the board which could result in a determination of no penalties or up to the maximum penalties, depending upon the circumstances.

(6) Nothing in this Section R307-107-2 shall be construed to limit the authority of the Board to seek injunctive relief or to enforce the provisions of the Utah Air Conservation Act, Title 19, Chapter 2, and the rules promulgated under it.

R307-107-3. Recording and Reporting Requirements.

(1) This Section R307-107-3 is applicable to all sources. Recording and reporting requirements in any other rule, approval order, permit, or enforcement order are in addition to the requirements of this R307-107-3. It is acceptable for a source to give a combined notice or file a combined report if by so doing it can comply with both the reporting requirements of this R307-107-3 and other reporting requirements applicable to the source.

(2) The owner or operator of any source shall report to the executive secretary any excess emissions with a duration of two hours or longer. Failure to comply with the following reporting requirements and procedures shall preclude the use of the affirmative defense provisions specified in Section R307-107-2.

(a) Initial Report. The source shall notify the executive secretary by telephone or facsimile within three hours of the time the owner or operator first learns of the occurrence of excess emissions of a duration of two hours or longer. The notification shall include the information listed in subsection (b) below to the extent that is available to the source at the time of the initial report. During times other than normal office hours, excess emissions for any period longer than two hours shall be initially reported to the Utah Department of Environmental Quality 24-hour Answering Service at 801-536-4123.

(b) Detailed Report. In the case of excess emissions with a duration of two hours or longer, the source shall provide the executive secretary with a detailed excess emissions report within seven calendar days of the time the initial report was due. The report shall include the following:

(i) the company name and location, and the identity of each stack or other emission point where the excess emissions occurred;

(ii) the magnitude of the excess emissions expressed in the units of the applicable emission limitation and the operating data and calculations used in determining the magnitude of the excess emissions;

(iii) the date, starting time, and duration or expected duration of the excess emissions to include indicating who first identified the excess emissions and when;

(iv) the identity of the equipment from which the excess emissions emanated;

(v) a specific explanation of the cause and nature of the emissions;

(vi) the steps taken to remedy the excess emissions, and the steps taken or planned to prevent the recurrence of the excess emissions;

(vii) the steps that were or are being taken to limit the excess emissions; and

(viii) the steps taken to comply with any applicable procedures governing operations during periods of excess emissions.

(3) Recording. For excess emissions from malfunction, scheduled maintenance, startup or shutdown, the company shall keep the information necessary to demonstrate an affirmative defense under R307-107-2 on-site and available for review for two years after the excess emissions end.

KEY: air pollution, breakdown, malfunction, excess emissions

2004

Notice of Continuation June 12, 2003

19-2-104(1)(a)

19-2-104(1)(c)

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Jan Miller at the above address, by phone at 801-536-4042, by FAX at 801-536-4099, or by Internet E-mail at janmiller@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.