Current through Reg. 50, No. 13; March 28, 2025
(a) Excessive emissions event determinations.
The executive director shall determine when emissions events are excessive. To
determine whether an emissions event or emissions events are excessive, the
executive director will evaluate emissions events using the following criteria:
(1) the frequency of the facility's emissions
events;
(2) the cause of the
emissions event;
(3) the quantity
and impact on human health or the environment of the emissions event;
(4) the duration of the emissions
event;
(5) the percentage of a
facility's total annual operating hours during which emissions events occur;
and
(6) the need for startup,
shutdown, and maintenance activities.
(b) Non-excessive upset events. Upset events
that are determined not to be excessive emissions events are subject to an
affirmative defense to all claims in enforcement actions brought for these
events, other than claims for administrative technical orders and actions for
injunctive relief, for which the owner or operator proves all of the following:
(1) the owner or operator complies with the
requirements of §
101.201 of this title (relating to
Emissions Event Reporting and Recordkeeping Requirements). In the event the
owner or operator fails to report as required by §
101.201(a)(2) or (3), (b), or
(e) of this title, the commission will
initiate enforcement for such failure to report and for the underlying
emissions event itself. This subsection does not apply when there are minor
omissions or inaccuracies that do not impair the commission's ability to review
the event according to this rule, unless the owner or operator knowingly or
intentionally falsified the information in the report;
(2) the unauthorized emissions were caused by
a sudden, unavoidable breakdown of equipment or process, beyond the control of
the owner or operator;
(3) the
unauthorized emissions did not stem from any activity or event that could have
been foreseen and avoided or planned for, and could not have been avoided by
better operation and maintenance practices or technically feasible design
consistent with good engineering practice;
(4) the air pollution control equipment or
processes were maintained and operated in a manner consistent with good
practice for minimizing emissions and reducing the number of emissions
events;
(5) prompt action was taken
to achieve compliance once the operator knew or should have known that
applicable emission limitations were being exceeded, and any necessary repairs
were made as expeditiously as practicable;
(6) the amount and duration of the
unauthorized emissions and any bypass of pollution control equipment were
minimized and all possible steps were taken to minimize the impact of the
unauthorized emissions on ambient air quality;
(7) all emission monitoring systems were kept
in operation if possible;
(8) the
owner or operator actions in response to the unauthorized emissions were
documented by contemporaneous operation logs or other relevant
evidence;
(9) the unauthorized
emissions were not part of a frequent or recurring pattern indicative of
inadequate design, operation, or maintenance;
(10) the percentage of a facility's total
annual operating hours during which unauthorized emissions occurred was not
unreasonably high; and
(11) the
unauthorized emissions did not cause or contribute to an exceedance of the
national ambient air quality standards (NAAQS), prevention of significant
deterioration (PSD) increments, or to a condition of air pollution.
(c) Unplanned maintenance,
startup, or shutdown activity. Emissions from an unplanned maintenance,
startup, or shutdown activity that are determined not to be excessive are
subject to an affirmative defense to all claims in enforcement actions brought
for these activities, other than claims for administrative technical orders and
actions for injunctive relief, for which the owner or operator proves the
emissions were from an unplanned maintenance, startup, or shutdown activity, as
defined in §
101.1 of this title (relating to
Definitions), and all of the following:
(1)
for a scheduled maintenance, startup, or shutdown activity, the owner or
operator complies with the requirements of §
101.211 of this title (relating to
Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping
Requirements). For an unscheduled maintenance, startup, and shutdown activity,
the owner or operator complies with the requirements of §
101.201 of this title and
demonstrates that reporting under §
101.211(a) of
this title was not reasonably possible. Failure to report information that does
not impair the commission's ability to review the activity, such as minor
omissions or inaccuracies, will not result in enforcement action and loss of
opportunity to claim the affirmative defense, unless the owner or operator
knowingly or intentionally falsified the information in the report;
(2) the periods of unauthorized emissions
from any unplanned maintenance, startup, or shutdown activity could not have
been prevented through planning and design;
(3) the unauthorized emissions from any
unplanned maintenance, startup, or shutdown activity were not part of a
recurring pattern indicative of inadequate design, operation, or
maintenance;
(4) if the
unauthorized emissions from any unplanned maintenance, startup, or shutdown
activity were caused by a bypass of control equipment, the bypass was
unavoidable to prevent loss of life, personal injury, or severe property
damage;
(5) the facility and air
pollution control equipment were operated in a manner consistent with good
practices for minimizing emissions;
(6) the frequency and duration of operation
in an unplanned maintenance, startup, or shutdown mode resulting in
unauthorized emissions were minimized and all possible steps were taken to
minimize the impact of the unauthorized emissions on ambient air
quality;
(7) all emissions
monitoring systems were kept in operation if possible;
(8) the owner or operator actions during the
period of unauthorized emissions from any unplanned maintenance, startup, or
shutdown activity were documented by contemporaneous operating logs or other
relevant evidence; and
(9)
unauthorized emissions did not cause or contribute to an exceedance of the
NAAQS, PSD increments, or a condition of air pollution.
(d) Excess opacity events. Excess opacity
events due to an upset that are subject to §
101.201(e) of
this title, or for other opacity events where there was no emissions event, are
subject to an affirmative defense to all claims in enforcement actions for
these events, other than claims for administrative technical orders and actions
for injunctive relief, for which the owner or operator proves all of the
following:
(1) the owner or operator complies
with the requirements of §
101.201 of this title. Failure to
report information that does not impair the commission's ability to review the
event, such as minor omissions or inaccuracies, will not result in enforcement
action and loss of opportunity to claim the affirmative defense, unless the
owner or operator knowingly or intentionally falsified the information in the
report;
(2) the opacity was caused
by a sudden, unavoidable breakdown of equipment or process beyond the control
of the owner or operator;
(3) the
opacity did not stem from any activity or event that could have been foreseen
and avoided or planned for, and could not have been avoided by better operation
and maintenance practices or by technically feasible design consistent with
good engineering practice;
(4) the
air pollution control equipment or processes were maintained and operated in a
manner consistent with good practice for minimizing opacity;
(5) prompt action was taken to achieve
compliance once the operator knew or should have known that applicable opacity
limitations were being exceeded and any necessary repairs were made as
expeditiously as practicable;
(6)
the amount and duration of the opacity event and any bypass of pollution
control equipment were minimized and all possible steps were taken to minimize
the impact of the opacity on ambient air quality;
(7) all emission monitoring systems were kept
in operation if possible;
(8) the
owner or operator actions in response to the opacity event were documented by
contemporaneous operation logs or other relevant evidence;
(9) the opacity event was not part of a
frequent or recurring pattern indicative of inadequate design, operation, or
maintenance; and
(10) the opacity
event did not cause or contribute to a condition of air pollution.
(e) Opacity events resulting from
unplanned maintenance, startup, or shutdown activity. Excess opacity events, or
other opacity events where there was no emissions event, that result from an
unplanned maintenance, startup, or shutdown activity that are determined not to
be excessive are subject to an affirmative defense to all claims in enforcement
actions brought for these activities, other than claims for administrative
technical orders and actions for injunctive relief, for which the owner or
operator proves the opacity resulted from an unplanned maintenance, startup, or
shutdown activity, as defined in §
101.1 of this title, and all of
the following:
(1) for excess opacity events
that result from a scheduled maintenance, startup, or shutdown activity, the
owner or operator complies with the requirements of §
101.211 of this title. For excess
opacity events that result from an unscheduled maintenance, startup, and
shutdown activity, the owner or operator complies with the requirements of
§
101.201 of this title and
demonstrates that reporting pursuant to §
101.211(a) of
this title was not reasonably possible. Failure to report information that does
not impair the commission's ability to review the event, such as minor
omissions or inaccuracies, will not result in enforcement action and loss of
opportunity to claim the affirmative defense, unless the owner or operator
knowingly or intentionally falsified the information in the report;
(2) the opacity was caused by a sudden,
unavoidable breakdown of equipment or process beyond the control of the owner
or operator;
(3) the periods of
opacity could not have been prevented through planning and design;
(4) the opacity was not part of a recurring
pattern indicative of inadequate design, operation, or maintenance;
(5) if the opacity event was caused by a
bypass of control equipment, the bypass was unavoidable to prevent loss of
life, personal injury, or severe property damage;
(6) the facility and air pollution control
equipment were operated in a manner consistent with good practices for
minimizing opacity;
(7) the
frequency and duration of operation in a startup or shutdown mode resulting in
opacity were minimized;
(8) all
emissions monitoring systems were kept in operation if possible;
(9) the owner or operator actions during the
opacity event were documented by contemporaneous operating logs or other
relevant evidence; and
(10) the
opacity event did not cause or contribute to a condition of air
pollution.
(f)
Obligations. Subsections (b) - (e) and (h) of this section do not remove any
obligations to comply with any other existing permit, rule, or order provisions
that are applicable to an emissions event or a maintenance, startup, or
shutdown activity. Any affirmative defense provided by subsections (b) - (e)
and (h) applies only to violations of state implementation plan requirements.
An affirmative defense cannot apply to violations of federally promulgated
performance or technology based standards, such as those found in 40 Code of
Federal Regulations Parts 60, 61, and 63. The affirmative defense is available
only for emissions that have been reported or recorded.
(g) Frequent or recurring pattern. Evidence
of any past event subject to subsections (b) - (e) of this section is
admissible and relevant to demonstrate a frequent or recurring pattern of
events, even if all of the criteria in that subsection are proven.
(h) Planned maintenance, startup, or shutdown
activity. Unauthorized emissions or opacity events from a maintenance, startup,
or shutdown activity that are not unplanned that have been reported or recorded
in compliance with §
101.211 of this title are subject
to an affirmative defense to all claims in enforcement actions brought for
these activities, other than claims for administrative technical orders and
actions for injunctive relief, for which the owner or operator proves all of
the criteria listed in subsection (c)(1) - (9) of this section for emissions,
or subsection (e)(1) - (9) of this section for opacity events and the
following:
(1) the owner or operator has
filed an application to authorize the emissions or opacity by the following
dates:
(A) for facilities in Standard
Industrial Classification (SIC) code 2911 (Petroleum Refining), one year after
the effective date of this section;
(B) for facilities in major group SIC code 28
(Chemicals and Allied Products), except SIC code 2895, two years after the
effective date of this section;
(C)
for facilities in SIC code 2895 (Carbon Black), four years after the effective
date of this section;
(D) for
facilities in SIC code 4911 (Electric Services), five years after the effective
date of this section;
(E) for
facilities in SIC codes 1311 (Crude Petroleum and Natural Gas), 1321 (Natural
Gas Liquids), 4612 (Crude Petroleum Pipelines), 4613 (Refined Petroleum
Pipelines), 4922 (Natural Gas Transmission), 4923 (Natural Gas Transmission and
Distribution), six years after the effective date of this section;
and
(F) for all other facilities,
seven years after the effective date of this section.
(2) an owner or operator who filed an
application listed in paragraph (1) of this subsection has provided prompt
response for any requests by the executive director for information regarding
that application.
(i)
The affirmative defense in subsection (h) of this section will expire upon the
earlier of one year after the application deadlines in subsection (h)(1)(A) and
(C) - (F) of this section, or the issuance or denial of a permit applied for
under subsection (h)(1)(A) and (C) - (F) of this section, or voidance of an
application filed under subsection (h)(1)(A) and (C) - (F) of this section. The
affirmative defense in subsection (h) of this section will expire upon the
earlier of two years after the application deadline in subsection (h)(1)(B) of
this section or the issuance or denial of a permit applied for under subsection
(h)(1)(B) of this section, or voidance of an application filed under subsection
(h)(1)(B) of this section. If the permit application remains pending after the
affirmative defense expires, the commission will use enforcement discretion for
all claims in enforcement actions brought for excess emissions from planned
maintenance, startup, or shutdown activities, other than claims for
administrative technical orders and actions for injunctive relief for which the
owner or operator proves the criteria in subsections (c) and (e) of this
section, until the issuance or denial of a permit applied for under subsection
(h)(1) of this section, or voidance of an application filed under subsection
(h)(1) of this section.
(j) The
executive director shall process permit applications referenced in subsection
(h) of this section in accordance with the schedule set out in §
116.114 of this title (relating to
Application Review Schedule).
(k)
Federal court jurisdiction. Subsections (b) - (e) of this section are not
intended to limit a federal court's jurisdiction or discretion to determine the
appropriate remedy in an enforcement action.
(l) Delayed applicability. Subsection (k) of
this section does not apply until all appeals regarding the United States
Environmental Protection Agency's rulemaking entitled "State Implementation
Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM
Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction," published in the Federal Register
on June 12, 2015, (SIP Call) as it applies to subsections (b) - (e) of this
section, have ended, and there is a final and nonappealable court decision that
upholds the SIP Call.
