| (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;
Cont'd... |
