| (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.
|
| Source Note: The provisions of this §101.222 adopted to be effective September 12, 2002, 27 TexReg 8499; amended to be effective January 8, 2004, 29 TexReg 118; amended to be effective June 23, 2005, 30 TexReg 3593; amended to be effective January 5, 2006, 30 TexReg 8884; amended to be effective November 24, 2016, 41 TexReg 9142 |
